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Voting 10-1, the 3rd U.S. Circuit Court of Appeals has upheld the dismissal of a civil rights suit brought by a once-suicidal teenager who was sexually assaulted and given drugs while in para-foster care with a man who had been convicted 15 years before of corrupting the morals of a minor. The court found that the youth’s caseworker was at most negligent in failing to detect the man’s criminal record. Applying a shocks-the-conscience test, the court said that no jury could find that the caseworker had acted with deliberate indifference. But a dissenting judge said that while she agreed with the test fashioned by the majority, she would have let a jury decide whether the caseworker was indifferent, especially since an unrebutted expert report faulted the caseworker’s decisions at several steps. The court’s opinion in Nicini v. Morra is significant for several reasons. First, it illustrates just how much the U.S. Supreme Court’s 1998 decision in County of Sacramento v. Lewis has altered the landscape for civil rights suits alleging substantive due process violations. The Lewis court held that in a suit brought by innocent bystanders injured in a high-speed police chase, substantive due process liability attaches only to executive action that is “so ill-conceived or malicious that it shocks the conscience.” The 3rd Circuit had already adopted a shocks-the-conscience test for high-speed chase cases in Fagan v. City of Vineland, but it had applied a more lenient test in other contexts. Now, after Lewis, the court is applying a shocks-the-conscience test in all substantive due process cases. But as U.S. Circuit Judge Dolores K. Sloviter explained: “the exact degree of wrongfulness necessary to reach the conscience-shocking level depends upon the circumstances of a particular case.” The Lewis court, she said, “recognized that in some contexts conduct falling within a middle range of culpability — that is, involving more than negligence but less than intentional conduct — can be shocking in the constitutional sense.” Sloviter said Lewis makes clear that a plaintiff seeking to establish a constitutional violation must demonstrate that the official’s conduct shocks the conscience “in the particular setting in which that conduct occurred.” In some circumstances, Sloviter said, conduct that is deliberately indifferent will shock the conscience. The foster-care context, she said, is just such a setting. But Nicini v. Morra was a complicated case because the 15-year-old youth was not placed in standard foster care. Instead, the court was forced to grapple with the added constitutional implications of “para-foster care,” because the youth had fled his abusive home environment and a foster home to seek refuge in the home of acquaintances who had once housed his older brother. A caseworker from the New Jersey Department of Health and Human Services, Division of Youth and Family Services testified in court that he had conducted a preliminary investigation of the home and that he believed the youth would do well there. Sloviter tackled the larger question first. The U.S. Supreme Court’s 1989 decision in DeShaney v. Winnebago County Dep’t of Soc. Servs., she said, specifically left open the question of whether the foster-care setting establishes a “special relationship” with the state, but noted that several appellate courts had already held that it did. Until now, she said, the 3rd Circuit has never answered the question. “We now hold that when the state places a child in state-regulated foster care, the state has entered into a special relationship with that child which imposes upon it certain affirmative duties. The failure to perform such duties can give rise, under sufficiently culpable circumstances, to liability under Section 1983,” Sloviter wrote. Although Anthony Nicini fled to the home of Edward Morra on his own, Sloviter said the state officials were nonetheless in a special relationship with him because they acquiesced in his stay there and took him back to the Morra home after an arrest, despite objections from Nicini’s aunt and father. “Under these facts, we believe Nicini’s situation is sufficiently analogous to a foster care placement to fall within the ‘special relationship’ exception to DeShaney,” Sloviter wrote. But Sloviter found that Nicini’s case against caseworker Frank Cyrus was properly dismissed because he had no evidence that Cyrus acted with deliberate indifference in approving his continued stay in the Morra home. Nicini pointed to Cyrus’s testimony at the hearing that there was nothing the agency saw “in terms of problems with the law.” But Sloviter said “there is nothing in the record to support Nicini’s argument that Cyrus made an affirmative representation that he ‘checked out’ Morra.” Instead, she said, the record showed that Cyrus “was frank and forthright as to the extent of his inquiry into the appropriateness of the Morra home,” by honestly stating only that he had checked for whether Morra was convicted of any crimes in New Jersey. In fact, Morra had been convicted in New York in 1975 for corrupting the morals of a minor and for distribution of controlled substances to minors. Nicini also claimed that Cyrus was “placed on notice” about the Morra home by the allegations of Nicini’s mother. But Sloviter said Cyrus alerted the judge to the fact that Nicini’s mother objected to placement with the Morras. When the judge asked Mrs. Nicini for her views, she informed him of reports that the Morras’ son took drugs and that “something just seems strange about these people” due to their willingness to take an unknown child into their home. Sloviter noted that the mother “never made any more specific allegations.” In dissent, U.S. Circuit Judge Marjorie O. Rendell said “I believe that more than one reasonable inference can be drawn from the facts, including an inference of deliberate indifference that shocks the conscience, making it inappropriate to dispose of Nicini’s case on summary judgment.” Rendell said the majority had “neatly” concluded that “Cyrus was, at most, merely negligent.” But she said “there is more than one way to view or perceive what Cyrus did, or failed to do, in furtherance of his duty to Nicini.” The expert report and the documents in the case, she said, made it “glaringly obvious that some investigation was necessary before placing a suicidal teenager in a home where children were permitted to ‘drink and party.’” Rendell posed several urgent questions that she said the case presented: “Does it not matter that Cyrus failed to make inquiries fundamental to placing any child, let alone a physically-abused and suicidal teenager in desperate need of a stable environment? Did this conduct merely fall below an acceptable standard, as the majority concludes, or was Cyrus indifferent over a period of several weeks when he should have detected a problem and when he could and should have acted?” Sloviter answered her, saying “our colleague would have us second-guess Cyrus’s actions from hindsight. That is not our task.” Sloviter said Rendell had relied too heavily on the expert’s report to conclude that Cyrus’s investigation at the time was so inadequate as to manifest deliberate indifference to Nicini’s rights. “It may be dramatic to attempt to analogize Cyrus to a caseworker who ‘allow[s] a child to starve before his eyes,’ … but, so far as the record reveals, there was nothing ‘before [Cyrus's] eyes’ that suggested that Nicini faced a substantial risk of serious harm,” Sloviter wrote. “To the contrary … while at the Morra home Nicini was no longer suicidal, no longer depressed, and appeared to be adjusting well,” she wrote.

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