Opposition Brief — Dalmer v. Lamoille Family Center

No. 02-706 | DEC 12 2002

In the | |

| OPP ce We TA CLERK

Supreme Court of the United States —

BRIAN DALMER,

Petitioner,

LAMOILLE FAMILY CENTER and DAVID CONNOR,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VERMONT

BRIEF IN OPPOSITION

— TO PETITION FOR WRIT OF CERTIORARI

Karen McAndrew

Counsel of Record

Afi Ahmadi

Dinse, Knapp &

a McAndrew, P.C.

209 Battery Street

P.O. Box 988

Burlington, VT 05402

(802) 864-5751

Attorneys for Respondents

Curry & TAYLOR @ (202) 393-4141 @ HTTP?//USBCINFO.COM

i

QUESTIONS PRESENTED

Whether a private human services agency

offering mediation and case management services to

teenagers and their families is susceptible to liability

under 42 U.S.C. § 1983.

ii

TABLE OF CONTENTS

TON TE TT TET i

Se a viicisissicticnaeiaatiitiaiacancnniiee. ii

FRE APT cccisnssiszininisciasirenneitrintabiiaeinsiasieteitecesala iii

TE I i sncnsiinsninitivinasecaliiianiebecisiieiae eae ee 1

PTO scenes ciinsrieiltieaia tae eit iia basa tae l

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .... 1

SPURTE OR TURE CO ivvcsniecitchctte ics 5

REASONS FOR DENYING THE WRIT .............cccccccsccccssscccsceseees 12

CE RII s.cssivesvciccnsniadcansessa oncenleaaieacanlian ie meee 18

TABLE OF AUTHORITIES

CASES

ALBERT V. DANE COUNTY, 542 N.W. 777, 789

SS ae 15

BILLADO V. APPEL, 165 VT. 482 (1996) ........ccccscccseseeee. 12,17

BLUM V. YARETSKY, 457 U.S. 991, 1011, 102 S.CT.

I I cic ssssnsancavndesosecevssinarcecceraseceesses sc, 16

DESHANEY V. WINNEBAGO CTY. DEPT. OF SOCIAL

SERVICES, 489 U.S. 189, 199-200, 109 S.CT. 998,

SEEN Ee Ce 12

DONLAN V. RIDGE, 58 F.SUPP.2D 604, 610 (E.D.PA.

RSE ETE LE RS zea 15

FLAGG BROS., INC. V. BROOKS, 436 U.S. 149, 166, 98

Bes BOM EP RFID sinccansccscessocessasessevesecsorcsaseserces 14

IN RE N.H., 135 VT. 230, 236 (1977).........cccccceccscescssscecesees 17

JACKSON V. METROPOLITAN EDISON Co., 419 U.S.

345, 351, 95 S.CT. 449, 453-54 (1974) oo cccsececsseseeee, 14

LINTZ V. SKIPSKI, 807 F.Supp 1299, 1306

EPMA BITE Pa sneccnisavovassaexeecsvnvsassnsnsveseccenctsaseessaes 15, 16

MILBURN V. ANNE ARUNDEL COUNTY DEP'T OF

SOCIAL SERVS., 871 F.2D 474, 479 (4TH. CIR. 1989)....... 15

MURPHY V. MORGAN, 855 F.Supp 943, 947 (N.D.ILL.

ENE SEES a eee 15

iv

NATIONAL COLLEGIATE ATHLETIC ASS'N V.

TARKANIAN, 488 U.S. 179, 191, 109 S.CT. 454, 461-

DY nO Re ae Sane TO eC RT 14

PFOLTZER V. COUNTY OF FAIRFAX, 775 F.SUPP. 874,

re a A SE vicieicieteininaecessies eahtintaneiilecnahlainsetiahibiapattindei 16

UNITED STATES. PARRATT V. TAYLOR, 451 U.S. 527,

535, 101 S.CT. 1908, 1912-13 (1981) .............eeeeceeereeeees 14

WALKER V. JOHNSON, 891 F.SupPP. 1040, 1050

AIIRIIITE th UUTTIIIUTTN shebang chal tealteeibiblaancaien 15

WILKINSON V. RUSSELL, 182 F.3D 89 (2D Cir. 1999).......... 17

STATUTES

Sy Pana any: Wr MeN iss sisi nnncececnecinisndhntaentlapsimueisactabedipumaiinadaacuiaell 1

Te SPER BE wnicvinsineiinedonsndinneiaaenneinmaalaiiany i, 1, 12, 13

1

OPINIONS BELOW

The opinion of the Vermont Supreme Court is not

yet officially reported, but is reprinted in the Petitioner's

Appendix ("Pet.App.") at 1. The opinion of the Lamoille

Superior Court is not reported; it is reprinted in Pet.App.

at 27.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 2104.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

& The Due Process Clause of the Fourteenth

Amendment of the United States Constitution and 42

U.S.C. § 1983 are reprinted in Petitioner's Petition at pp.

1-2.

2. Title 33, Section 5502(a)(10) of Vermont

Statutes Annotated provides:

Definitions and provisions of general

application.

(a) As used in this chapter, unless the

context otherwise requires:

(10) "Legal custody" means the

legal status created by order of the

juvenile court under the authority

of this chapter which invests in a

party to a proceeding under this

2

chapter or another person, which

party or person may also be the

guardian of the person of the

minor, the right to have the

physical possession of a minor and

to determine where and with whom

he shall live, the authority to-

consent to major medical,

psychiatric, and surgical treatment,

and the right and duty to protect,

train, and discipline him and to

provide him with food, shelter,

education and ordinary medical

care, all subject to the powers,

rights, duties and responsibilities of

the guardian of the person of the

minor and subject to any residual

parental rights and responsibilities.

3. Title 33, Section 5511 of Vermont Statutes

Annotated provides:

Release, shelter or delivery to court.

(a) The person taking a child alleged to be

a delinquent child or a child in need of

care or supervision into custody shall

immediately and without first taking the

child elsewhere:

(1) Release the child to his or her

parents, guardian or custodian; or

(2) Deliver the child to the juvenile

court and immediately file written

notice thereof with the court,

together with a statement of the

3

reason for taking the child into

custody.

(b) In the event that a law enforcement

officer has reasonable grounds to believe

that a child has run away from his or her

parents, foster parents, guardian, legal

custodian, parent lawfully exercising

parent-child contact, or other person

having legal or physical responsibility for

the child, the law enforcement officer

shall take and deliver the child to:

(1) his or her parents, foster

parents, guardian, legal custodian,

parent lawfully exercising parent-

child contact, or person having

legal or physical responsibility for

the child; or

(2) any organization designated by

the commissioner of social and

rehabilitation services as qualified

to assist children who have run

away for the purpose of reuniting

them with their parents, guardian

or legal custodian.

4. Title 33, Section 5512(a) of Vermont

Statutes Annotated provides:

Designated shelter.

(a) The commissioner of social and

rehabilitation services shall designate

shelters throughout the state where a child

taken into custody pursuant to section

4

5510(4) of this title may be housed for a

period not to exceed 7 days.

(b) Upon delivery of a child to a

designated shelter program, the shelter

program director _ or his or her designee,

shall:

(1) notify the child's parents,

guardian or custodian that the child

has been taken into custody; and

(2) make reasonable efforts to

mediate the differences between

the parties.

(c) Upon expiration of the period referred

to in subsection (a) of this section or at

the request of the child or the parents:

(1) the child shall be released to his

or her parents, guardian or

custodian; or

(2) a law enforcement officer shall

deliver the child to the juvenile

court pursuant to section 5511(2) of

this title.

(d) During the period of time the child is

at the shelter, the legal custody of the

child shall remain with the parent, unless

otherwise designated by the juvenile

court.

=

5

, 5. Title 33, Section 5510 of Vermont Statutes

Annotated provides:

Taking into custody.

A child may be taken into custody:

(1) Pursuant to the laws of arrest of

this state,

(2) Pursuant to an order of the

juvenile court under the provisions

of this chapter,

(3) By a law enforcement officer

when the officer has reasonable

grounds to believe that the child is

in immediate danger from his or her

surroundings, and that removal is

necessary for the child's protection,

(4) By a law enforcement officer

when the officer has reasonable

grounds to believe that the child

has run away from his or her

parents, foster parents, guardian,

legal custodian, parent lawfully

exercising parent-child contact, or

other person having legal or

physical responsibility for the child.

STATEMENT OF THE CASE

Respondent David Connor is director of a

program called the Lamoille Inter-agency Network for

Kids (“LINK”), which is operated by the Respondent

Lamoille Family Center (hereinafter “LFC”). LFC is a

non-profit parent-child center located in Morrisville,

Vermont. The LINK program was conceived from a

6

collaboration of human_ service agencies and

educational agencies in the Lamoille Valley region of

Vermont around 1989, in order to meet the needs of

teenagers with problems at home or in school. The

LINK program offers mediation and case management

services to teenagers and their families. LINK also

offers a shelter program for teenagers who are either

thrown out of their homes or who voluntarily run away

from home.

The LINK program was designed to try every

reasonable avenue to resolve teenagers’ family issues,

keep teenagers at home, and provide services for

families so children can avoid State custody. Indeed,

the single most important element of the LINK program

is forestalling State custody of children. The ultimate

goal of the LINK program is to reunite families. Prior to

the creation of the LINK program, runaways would

either be on the street, or in the care of the Department

of Social and Rehabilitation Services (hereinafter

“SRS”). LINK was designed to provide an alternative.

LFC, among its other services, contracted with

SRS-as an independent contractor-to provide

counseling and mediation services, and also, if

necessary, shelter to unmanageable youths and

runaways. Shelter services are limited to a period of

two weeks. The purpose of the shelter home is twofold.

First, it provides for a cooling-off period. Second, the

families are afforded an opportunity to resolve whatever

difficulties they are having. Entry into a LINK shelter is

voluntary, and the child always has the choice whether

to enter the program. When a child is in the LINK

program, the parents retain legal custody.

It is SRS policy initially to refer a runaway to

LINK. Once a child is referred to LINK, SRS only

7

becomes re-involved if efforts by LINK are fruitless. SRS

has estimated that LINK is successful in resolving family

conflict nearly 96% of the time. As a result of LINK’s

successes, the Lamoille County district now has the

lowest number of unmanageable children in custody in

the State of Vermont.

In addition to referrals from SRS, LFC and LINK

receive referrals directly from schools, from parents,

from individual youths, from mental health programs,

and other agencies dealing with children who might

benefit from LINK’s programs and services.

On December 26, 1993, Jeremy Dalmer-age 15 at

the time—left his home in Elmore, Vermont, without his

parents’ permission. Jeremy had apparently clashed

with his father, Petitioner Brian Dalmer, over teenage

issues such as snowboarding, television, and curfews.

Jeremy rode his bicycle nearly 45 miles through slush

on a cold evening to stay with his friends, the Stewarts,

in Plainfield, Vermont. Jeremy voluntarily and

individually. made the decision to go to the Stewarts'

home. He received no assistance from, nor had he ever

heard of, David Connor or the Lamoille Family Center at

that time. Indeed, Petitioner testified that he had no

evidence or personal knowledge that would indicate

that David Connor or the Lamoille Family Center

encouraged Jeremy Dalmer to run away from home on

December 26, 1993.

On or about December 27, 1993, Mrs. Stewart

called the youth services agency in a neighboring county

to ask what she should do about Jeremy. They gave her

the number of SRS, and told her that Jeremy should

contact SRS. Mrs. Stewart was not comfortable with

Jeremy staying at her house without his parents’

permission. Therefore, on or about December 27, 1993,

8

Jeremy left the Stewarts’ residence—voluntarily and

without any assistance from defendants—and went to the

Fisk residence in Marshfield, Vermont.

The following day, on or about December 28,

1993, Jeremy made his initial contact with SRS to notify

them that he had run away from home. An SRS worker

referred Jeremy. Dalmer’s case to David Connor,

director of LINK, on December 29, 1993, three days after

Jeremy ran away. Prior to the referral from SRS, neither

David Connor nor LFC had any contact with Jeremy

Dalmer. It was while Jeremy was at the Fisk residence

that Mr. Connor first contacted him.

On December 29, 1993, David Connor informed

Brian Dalmer that his son had been found. Mr. Connor

did not tell Mr. Dalmer where Jeremy was staying for

two reasons. First, Jeremy had requested that he not do

so. Second, Mr. Connor wanted to avoid the potentially

dangerous situation where parents show up and forcibly

remove their child.

Mr. Connor felt it was imperative to reunite the

family as quickly as possible because school was

starting the following Monday. Mr. Connor obtained a

history of the family problems Jeremy was having from

both Jeremy and Mr. Dalmer. Although Mr. Dalmer

regularly insisted that he wanted Jeremy to return home,

Mr. Connor did not forcibly try to return Jeremy

because Jeremy made it very clear that if he were forced

to go home, he would simply run away again.

Jeremy voluntarily stayed at the Fisk residence

from December 29, 1993 until January 6, 1994, and

steadfastly refused to go home. David Connor drove

Jeremy to and from school so that Jeremy could

continue to attend People’s Academy while staying at

9

the Fisk residence, and in the hopes of trying to break

Jeremy’s interest in the Marshfield area and reuniting

Jeremy with his family. Jeremy testified that he was

pleased Mr. Connor drove him to and from school while

he was staying at the Fisks’ residence. On these trips,

Mr. Connor and Jeremy discussed what Jeremy needed

and wanted in order to reconcile with his family. During

this time, Jeremy chose to stay with the Fisks rather

than return home. David Connor regularly encouraged

Jeremy to return home.

On January 6, 1994, Mr. Connor explained to

Jeremy that if he were unable to work things out at

home, he would likely be placed in SRS custody. Mr.

Connor also informed Jeremy that he would no longer

be able to take Jeremy to People’s Academy from the

Fisks’ home. Nonetheless, despite David Connor’s

efforts to reunite the family, Jeremy decided that he

would rather enter the LINK shelter program than return

home. On January 6, 1994, Jeremy, by his own choice,

voluntarily entered the LINK shelter program and stayed

at the Stones' residence in Morrisville, Vermont.

Jeremy was treated well while staying at the

Stones' residence, and he testified to enjoying the time

he spent there. Although he was staying in a shelter as

part of the LINK program, Jeremy’s parents maintained

legal custody of him. While Jeremy was staying with the

Stones, Mr. Connor encouraged Jeremy to have face-to-

face contact with his parents in an effort to resolve their

problems. Mr. Dalmer visited with Jeremy and had

conversations with him on the phone. However, Mr.

Dalmer refused to go to LFC to meet with David Connor

in an attempt to mediate family problems. Mr. Dalmer

testified that he had no interest in the mediation or

dispute resolution services that LFC could provide.

Jeremy, however, continued to refuse to go home.

10

Pursuant to LFC’s contract with SRS, Jeremy

could only stay with the Stones for a two-week period.

On January 20, 1994, Mr. Connor told Jeremy that the

two-week period that he could keep him in a shelter

home under the LINK contract with SRS had expired.

Mr. Connor told Jeremy that he could either go home;

call his family to work out some agreement with them;

or turn himself in to the police. Mr. Connor told Jeremy

that if he did not exercise one of those three options, he

would be considered a runaway and would be picked up

by police. On January 20, 1994, Mr. Connor also

informed the Dalmers that LFC’s involvement had

ended.

Jeremy continued to refuse to go home and

instead went to the Misicks' residence in Marshfield. On

January 21, 1994, the police picked up Jeremy at the

Misicks’ and returned him home to his parents. Jeremy

testified that he was not happy when the police forcibly

returned him to his father’s home. The next day, Jeremy

ralt away again. He ran away from home again in May,

1994, and a fourth time on November 30, 1994. Finally,

in an attempt to go to his prom, Jeremy ran away yet

again on May 19, 1995.

Following each of Jeremy’s run-aways, a hearing

was conducted to determine who should have custody

of Jeremy. At the first court hearing, on January 24,

1994, Jeremy told the court that he did not feel safe in

his parents’ home. Judge Cook determined that

reasonable efforts were made to have Jeremy return

home, but that he believed Jeremy would not stay home

and, thus, placed him in temporary custody with SRS.

Judge Cook concluded that the only way to keep Jeremy

at home would be to chain him to a bed. Similarly, after

Jeremy ran away in May, 1994, Jeremy was asked by the

Judge if he would go home and stay home, and Jeremy

11

replied “no.” Therefore, Judge Cook felt it would be

irresponsible of him to return Jeremy home, so Jeremy

was once again placed in SRS custody. Finally, at a

juvenile disposition hearing in March, 1995, Jeremy was

asked if he thought his problems with running away

from home stemmed from his exposure to influences

such as the defendants. Jeremy, under oath, replied

“no,” because:

[N]o matter who influences me in any way,

I'll be influenced that way no matter

where I am, whether it’s even ina

newspaper article or something. And,

also, they haven’t influenced me. No one

has ever said: Don’t go home. They have

just like told me the facts: That we need

counseling. And no one has ever told me

not to let me go home. In fact, they have

all kind of encouraged it- because that

would be the final goal.

Similarly, at the juvenile detention hearings Mr. Dalmer

testified that the fundamental reasons Jeremy ran away

from home had to do with involvement with drugs,

incorrigible behavior, and sexual relations with girls.

On January 9, 1996 Petitioner filed an Amended

Complaint in the Lamoille Superior Court against, inter

alia, Defendants David Connor and LFC. Mr. Dalmer

maintained that respondents deprived him of his

fundamental liberty interest in family integrity. On

August 15, 1997, the trial court granted summary

judgment to defendants on this claim. The Vermont

Supreme Court affirmed on August 15, 2002.

12

REASONS FOR DENYING THE WRIT

There is no compelling reason for the Court to

review the decision of the Vermont Supreme Court in

this case. The trial court properly dismissed, and the

Vermont Supreme Court properly affirmed dismissal of

Brian Dalmer's civil rights claim. Neither David Connor

nor the Lamoille Family Center could have violated

Plaintiff's right to family integrity because (a) they never

took custody of Jeremy Dalmer; (b) they are not state

actors as required by 42 U.S.C. § 1983; and (c) even if

there were a constitutional right of family integrity

under these circumstances, the respondents would be

protected from a section 1983 claim by qualified

immunity.’

A. David Connor and LFC Never Had

Custody of Jeremy

In order for Petitioner Brian Dalmer successfully

to assert that his constitutional right to family integrity

was violated, he must show that David Connor and LFC

had custody of Jeremy. See DeShaney v. Winnebago

Cty. Dept. of Social Services, 489 U.S. 189, 199-200, 109

S.Ct. 998, 1005 (1989), cited in Billado v. Appel, 165 Vt.

482, 491-92 (1996). The Vermont Supreme Court noted

in this case that "[p]laintiffs [Brian and Jeremy Dalmer]

' The Vermont Supreme Court affirmed on the grounds that the case

was indistinguishable from the claim made in Billado v. Appel, 165

Vt. 482 (1996), and that no constitutional right of family integrity

existed under the circumstances. Pet.App. at 21-22. The Vermont

Supreme Court further determined that even if a constitutional right

to family integrity were to be recognized under the circumstances,

the respondents could not have violated that right as Jeremy was

never in the custody of David Connor or LFC. Pet.App. at 21-22.

The Vermont Supreme Court also determined that Petitioner

waived the argument that Mr. Connor and LFC were state actors, as

it was not raised at trial. Pet.App, at 22.

PRS RL AES EEE SEEM ANE WE OEE

ERT IAP IE I NIE SALONS OP AY I

13

admit that a necessary element of their claim is that

defendants took custody of Jeremy." Pet.App. at 22. The

critical holding in this case, therefore, is the finding that

"as a matter of law, plaintiffs failed to show such

custody at trial." Pet.App. at 22.

The Vermont Supreme Court reviewed the

relevant provisions of the Vermont Juvenile Proceedings

Act, 33 V.S.A. § 5501, et seq., and affirmed that, as a

matter of law, Mr. Dalmer did not prove that either

David Connor or LFC ever had custody of Jeremy.

Jeremy ran away from home in Decemeber, 1993 and

stayed with friends for over one week before he chose

to enter the LINK shelter program. He was never

arrested, and there was no juvenile order issued

regarding his custody at the time. Nor was he picked up

by a law enforcement officer until after he had stayed in

the shelter the maximum 14 days allowed by the SRS

contract with LINK. Consequently, Jeremy was not in

the custody of the defendants as defined in the Juvenile

Proceedings Act.

B. David Connor and LFC were not

“State Actors”

The Vermont Supreme Court held that petitioner

waived the argument that respondents Connor and LFC

were not entitled to qualified immunity on the section

1983 claims. Even if there were no waiver, however,

petitioner's claim fails for the more fundamental reason

that Connor and LFC were not acting "under color of

state law."

To state a cause of action under 42 U.S.C. § 1983,

Brian Dalmer must allege sufficient facts to establish the

following two elements: (1) that the defendants were

acting under color of state law, and (2) that their

14

conduct deprived the Plaintiff of rights secured by the

Constitution or laws of the United States. Parratt v.

Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13 (1981).

Generally, the protections of section 1983 do not extend

to private conduct violating individual rights no matter

how abhorrent the conduct may be. National Collegiate

Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct.

454, 461-62 (1988). Accordingly, for David Connor and

the Lamoille Family Center-private actors—to be subject

to section 1983 liability, petitioner must establish that

they were the equivalent of “state actors,” and thus

acting under color of state law.

A three-part test has evolved to determine

whether or not a private actor is susceptible to section

1983 liability. First, the “public function” test questions

whether the defendants were exercising powers

traditionally and exclusively reserved for the

government. Jackson v. Metropolitan Edison Co., 419

U.S. 345, 351, 95 S.Ct. 449, 453-54 (1974), Second, the

“state compulsion” test questions whether the state is

exercising such “coercive power” or “significant

encouragement, either overt or covert,” that the

defendants’ actions must be deemed to be that of the

state. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 166, 98

S.Ct. 1729, 1738-39 (1978). And third, the “nexus” test,

questions whether there is a sufficiently close nexus

between the government and the challenged private

action that it may fairly be treated as that of the

government. Jackson, 419 U.S. at 351. David Connor

and the Lamoille Family Center do not fulfill any of

these criteria.

First, it cannot be said that permitting

unmanageable children to stay in shelters is a power

exclusively reserved for the state. Several courts have

held that the care of foster children, or the placing of

15

displaced children in foster care, is not traditionally the

exclusive prerogative of the State. See, e.g., Murphy v.

Morgan, 855 F.Supp 943, 947 (N.D.Il. 1994) (holding

that the mere placement of displaced children in a group

facility does not convert the owner of that facility into a

state actor); Lintz v. Skipski, 807 F.Supp 1299, 1306

(W.D.Mich. 1992) (“The care of foster children is not a

power which has been exclusively reserved for the

state.”); Walker v. Johnson, 891 F.Supp. 1040, 1050

(M.D.Pa. 1995) (same); Albert v. Dane County, 542 N.W.

777, 789 (Ct.App.Wis. 1995) (same); Milburn v. Anne

Arundel County Dep’t of Social Servs. , 871 F.2d 474, 479

(4". Cir. 1989) (same); but see Donlan v. Ridge, 58

F.Supp.2d 604, 610 (E.D.Pa. 1999) (holding that forcible

removal of child from his home by foster care agency

was exclusively prerogative of the state).

The State of Vermont is not vested with exclusive

responsibility for sheltering unmanageable children

under the Juvenile Proceedings Act, 33 V.S.A. § 5501, et

seq. The juvenile court may grant legal custody to SRS,

but it also has the authority to grant legal custody of

unmanageable children to other agencies and private

actors. 33 V.S.A. § 5502(10). SRS is only one of the

potential legal custodians. Thus, the State of Vermont

does not have exclusive right to take custody of minors,

who are determined to be unmanageable, in shelters or

foster homes. Close relatives, private organizations, and

other suitable individuals may serve as well. Therefore,

David Connor and Lamoille Family Center were not

performing traditionally exclusive state functions.

The second prong of the “state actor” test

similarly doesn't apply. There is no evidence, nor does

Brian Dalmer allege, that the state exercised any

coercive power over David Connor and the Lamoille

Family Center. The day-to-day decision-making of the

16

Center was left to David Connor and LFC's employees.

See Lintz, 807 F.Supp. at 1305. Other than making initial

referrals and receiving progress reports, the state has

minimal interaction with the LINK program. Therefore,

Defendants were not, at any time, subject to the

coercive power of the state.

Finally, Brain Dalmer argues that he has

presented facts demonstrating a sufficient “nexus”

between the state and defendants, given the contractual

undertaking by the Lamoille Family Center to run the

LINK shelter program. Although the Lamoille Family

Center did sign a contract with SRS, that fact alone is

not sufficient to convert a private party into a state

actor. Pfoltzer v. County of Fairfax,.775 F.Supp. 874,

891 (E.D.Va. 1991). Nor is the fact that the LINK

program receives its funding from the state proof that it

is a state actor. Blum v. Yaretsky, 457 U.S. 991, 1011,

102 S.Ct. 2777, 2789 (1982). The Lamoille Family Center

is a non-profit parent-child center which entered into a

contract with the state to provide placement in shelters

for unmanageable children. As noted, supra, the

placement of children in shelters is not an exclusive

function of the state. Therefore, David Connor and LFC

cannot be categorized as “state actors,” and could not

have violated any of Brian Dalmer's constitutionally-

protected rights.

C. There is No Controlling

Constitutional Right of Family

Integrity under these Circumstances

The Vermont Supreme Court has not, as

petitioner suggests, held that there is no controlling

constitutional right of family integrity. The court has

held that in certain circumstances, "the [claimed] right is

so amorphous and conditional that no worker could

17

know that his or her actions were in violation of that

right.” Billado v. Appel, 165 Vt. 482 (1996). In the

present case, the Vermont Supreme Court determined

that "[Petitioner's] substantive claim is indistinguishable

from that made in Billado." Petitioner apparently

alleges that he was deprived of the custody of his son by

defendants without his permission, but the Vermont

Supreme Court found as a matter of fact and law that

neither LFC nor Connor took custody of Jeremy Dalmer.

Petitioner's reliance on Wilkinson v. Russell, 182

F.3d 89 (2d Cir. 1999) is misplaced. Wilkinson

acknowledged the Vermont Supreme Court's view that

"although the constitution extends certain rights

pertaining to the family, precedent has not delineated

the exact parameters of those rights and case workers

have therefore seldom had a basis for concluding that

their actions were unconstitutional." Jd. at p. 104, n.8.

The Vermont Supreme Court has not refused to

recognize the right to family integrity; rather, the Billado

case held that it does not apply to circumstances similar

to those in the present case.” The Second Circuit

opinion in Wilkinson does not suggest a different result.

* Indeed, the Vermont Supreme Court expressly recognized the

constitutional right to family integrity 25 years ago. See In re N.H.,

135 Vt. 230, 236 (1977) ("[T]he freedom of children and parent to

relate to one another in the context of the family, free of

governmental interference, is a basic liberty long established in our

constitutional law").

18

ONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

Karen McAndrew

Counsel of Record

Dinse, Knapp &

McAndrew, P.C.

209 Battery Street

Burlington, VT 05402-0988

(802) 864-5751

Attorneys for Respondents