Plaintiff's complaint appears to assert two theories of liability against the City. Plaintiff first contends that a special relationship existed between Theresa and the City during her foster care. According to plaintiff, such a relationship gave rise to an affirmative constitutional duty on the part of City officials to protect a foster care child such as Theresa from serious harm.
It is now settled that the Due Process Clause of the Fourteenth Amendment
does not impose an affirmative duty upon a state to protect its citizens. Rather, it serves as a limitation on a state's power to act, not as an assurance of certain minimal levels of safety and protection. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 195, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). However, when a state enters into a special relationship with a particular citizen, it can be held liable for failing to protect that citizen from the private actions of third parties. See D.R. by L.R. v. Middle Bucks Area Vocational Tech. School, 972 F.2d 1364, 1369 (3d Cir. 1992), cert. denied, 506 U.S. 1079, 113 S. Ct. 1045, 122 L. Ed. 2d 354 (1993). This liability attaches against a state actor under 42 U.S.C. § 1983 when a state fails, under sufficiently blameworthy circumstances, to protect the health and safety of the citizen to whom it owes an affirmative duty. Id.5
In DeShaney, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), the Supreme Court held that the government generally has no duty to protect individuals from privately inflicted harms. Id. at 195-96. There, the guardians of a four-year-old child brought suit under 42 U.S.C. § 1983 against a Wisconsin county Department of Social Services. Id. at 192-94. The guardians claimed that the Department had failed to protect the child from beatings inflicted by his father, which ultimately resulted in irreversible brain damage. Id. The plaintiffs claimed that over a 26 month period the Department knew of the abuse but failed to act. Id. The Court determined that "a State's failure to protect an individual against private violence by a third party simply does not constitute a violation of the Due Process Clause." Id. at 197. The Court added, "... the State does not become the permanent guarantor of an individual's safety by having once offered him shelter." Id. at 201.
However, the Supreme Court has recognized narrow situations where the state does have a duty to provide protection when the state acts affirmatively to limit the individual's ability to protect himself or herself. Id. at 198. For example, in Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), the Court held that the state had an affirmative duty to provide adequate medical care to inmates because their incarceration prevented the inmates from caring for themselves. The Court extended this exception in Youngberg v. Romeo, 457 U.S. 307, 317, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982), holding that the state had a duty to provide involuntarily committed mental patients with services necessary to insure their reasonable safety.
The Court in DeShaney noted in its much debated "footnote 9" that "had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect." DeShaney, 489 U.S. at 201, n.9. Although the majority in DeShaney did not decide the question of foster care, the Court cited to court of appeals decisions holding "that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents ...." Id. (citing Doe v. New York City Dept. of Social Services, 649 F.2d 134, 141-42 (2d Cir. 1981) after remand, 709 F.2d 782 (2d Cir.), cert. denied sub nom., Catholic Home Bureau v. Doe, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983); Taylor By and Through Walker v. Ledbetter, 818 F.2d 791, 794-97 (11th Cir. 1987) (en banc), cert. denied, 489 U.S. 1065, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989). We now squarely face the issue which the Supreme Court raised but did not decide in footnote 9 of DeShaney and which the Court of Appeals for the Third Circuit has likewise not resolved: Does a state actor, in this case the City of Philadelphia, owe an affirmative duty under § 1983 to protect a child for whom it is legal guardian and whom it placed in foster care?
The closest case in this circuit on the matter at bar is D.R. by L.R. v. Middle Bucks Area Vocational Tech. School, 972 F.2d 1364, 1369 (3d Cir. 1992), cert. denied, 506 U.S. 1079, 113 S. Ct. 1045, 122 L. Ed. 2d 354 (1993) ("Middle Bucks "). Middle Bucks involved students who were sexually molested by classmates while attending a public high school. The plaintiffs attempted to hold school system officials liable based upon the custodial relationship between the school system and the child. Under state law, school attendance was compulsory and school officials acted in loco parentis. Plaintiffs maintained they were in the state's custody involuntarily and that it owed a duty to them under § 1983 similar to what it owes to prisoners under Estelle and mental patients in Youngberg, who are also in the state's custody involuntarily. The court of appeals rejected this argument. It held that substantive due process did not allow plaintiffs to recover against the school system because the state had not rendered the students totally dependent upon the state.
The court explained that students could leave the school building each day and seek help from parents or other sources. Middle Bucks, 972 F.2d at 1371. It noted that parents have the option to send a child to a learning institution other than a public school. Id. The court also emphasized that parents remain a child's primary caretaker, despite mandatory school attendance, and that students do not rely on schools to provide their basic human needs. Id. at 1371-72.
A child for whom the City is legal guardian and who is involuntarily placed in foster care presents a sharp contrast to that of a public school student. The court of appeals in Middle Bucks, albeit in dicta, acknowledged this distinction. The court observed:
a relationship between the state and foster children arises out of the state's affirmative act in finding the children and placing them with state-approved families. By so doing, the state assumes an important continuing, if not immediate, responsibility for the child's well-being. In addition, the child's placement renders him or her dependent upon the state, through the foster family, to meet the child's basic needs.