her on a permanent basis. Finney Deposition. For several months, the children made bi-weekly visits to Jackson's home, and in June, 1990, they moved into her home on a permanent basis. Id.
On July 9, 1990, Jackson contacted Finney to inform her of the plaintiff's complaints of sexual abuse. Finney at 90. Jackson also told Finney that the plaintiff had complained to Mrs. Mitchell and Bogans. Id. at 94. Finney called Bogans, who acknowledged the plaintiff's complaints, but expressed his belief that the plaintiff's allegations were false. Id. at 97-99.
Finney immediately visited Jackson's home and spoke to the plaintiff. Finney Deposition. The plaintiff reiterated her complaints of sexual abuse. Id. Both Dana and Alonzo have since admitted to the attacks. Ellis at 39, 43; Finney at 103-04.
A. Procedural Posture and Summary Judgment Standard
Plaintiff filed suit under the Fourteenth Amendment, the Federal Adoption Assistance Act and state statutes against the City of Philadelphia, the Department of Human Services (DHS), Finney, the Women's Christian Alliance, Curtis Bogans, and Elizabeth Mitchell.
Defendants City of Philadelphia, the DHS, and Finney have moved for summary judgment. Finney has moved on the basis that any misconduct on her part did not rise to the level of a constitutional violation. The City and DHS ground their motion for summary judgment in the plaintiff's failure to proffer evidence that any violations against the plaintiff were the result of a "policy or practice" on the part of the city or the agency, and the failure to identify the relevant policymaker for such a policy or practice.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Defendants are entitled to summary judgment only if no reasonable resolution of the conflicting evidence and the inferences which could be drawn from that evidence could result in a judgment for the plaintiff. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Where there is a dispute or disagreement over what inferences reasonably could be drawn from the facts, even if those facts are undisputed, it is improper to grant summary judgment. See Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991). However, "the mere existence of a scintilla of evidence in support of plaintiffs['] position will be insufficient[;] there must be evidence on which the jury could reasonably find for the plaintiffs." Anderson, 477 U.S. at 252.
B. Liability of Individual Defendant Finney Under 42 U.S.C. § 1983
To make out a claim under civil rights statute 42 U.S.C. § 1983, plaintiff must allege the violation of a constitutional or federal statutory right. Defendant Finney concedes a substantive due process right to reasonable safety for foster children. Defendants' Motion for Summary Judgment at 25. Courts have recognized this right as implicit in the "special relationship" created by the state when they take children from their natural parents and place them in foster homes, a right analogous to the relationships created between the state and individuals when the individual is committed to a mental institution or incarcerated. See e.g. Baby Neal v. Casey, 821 F. Supp. 320, 335 (E.D. Pa. 1993); K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990); Taylor ex. rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (en banc); Doe v. New York City Dept. of Social Services, 649 F.2d 134 (2d Cir. 1983).
The parties disagree, however, on whether the standard of care owed the plaintiff by Finney is the "deliberate indifference" standard established for care of prisoners, Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), or the "professional judgment" standard extended to care in mental institutions. Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982); Shaw v. Strackhouse, 920 F.2d 1135 (3d Cir. 1990). The circuits have divided over the proper standard. See e.g. Yvonne L. by and through Lewis v. New Mexico Dept. of Human Services, 959 F.2d 883, 893-94 (10th Cir. 1992) (professional judgment standard); K.H., 914 F.2d at 854 (7th Cir.)(professional judgment); Taylor, 818 F.2d at 797 (11th Cir.)(deliberate indifference); Doe, 649 F.2d at 141 (2d Cir.)(deliberate indifference).
In Youngberg v. Romeo, the Supreme Court's choice of the arguably more strict "professional judgment" standard for the state's care in mental institutions, rather than the more permissive "deliberate indifference" standard was grounded in the recognition that "persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." 457 U.S. at 321-22. As others, including a member of my own court, have recognized, this consideration is equally prevailing in the assignment of children to foster homes. Cf. Yvonne L., 959 F.2d at 894; Baby Neal, 821 F. Supp. at 340 (professional judgment standard is correct because "similarly to institutionalized mental patients, [foster] children have been placed in the custody of the state through no fault of their own"); LaShawn A. v. Dixon, 762 F. Supp. 959, 996 (D.D.C. 1991), aff'd 301 U.S. App. D.C. 49, 990 F.2d 1319 (D.C. Cir. 1993). I find that the "professional judgment" standard is appropriate for evaluating defendant Finney's conduct.
If "deliberate indifference" is equated with recklessness or gross negligence, Doe, 649 F.2d at 143, and failing the "professional judgment" standard demands more misconduct than simple negligence, Youngberg, 457 U.S. at 321-22, then at first blush it seems we dance on the head of a pin in applying the professional judgment standard. Cf. Shaw, 920 F.2d at 1146. But the "professional judgment" standard represents more than just a difference in degree of malfeasance, but in kind.
In Youngberg, in which the professional judgment standard was first employed by the United States Supreme Court, the Court established that a decision
if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice,or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.