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Ruling on an issue that has split the federal circuits, two 3rd U.S. Circuit Court of Appeals judges have held that the Due Process Clause of the 14th Amendment does not protect the interest of a parent in the companionship of an independent adult child. The ruling in McCurdy v. Dodd upholds the dismissal of a civil rights suit brought by the father of Donta Dawson, the unarmed 19-year-old whose shooting death at the hands of a Philadelphia police officer became a lightning rod for complaints of racism in the police department. Significantly, two of the appellate judges decided that the case failed because plaintiff Bobby McCurdy had not asserted a cognizable constitutional right — an issue that was never addressed by the lower court. But the third judge on the panel said he would have upheld the dismissal on the basis of the lower court’s reasoning — without reaching the constitutional question. In the lower court, Senior U.S. District Judge Clifford Scott Green granted summary judgment on the ground that McCurdy was precluded from bringing suit after he entered into an agreement with Dawson’s mother to share the proceeds from her settlement of a prior civil action against the same defendants. But the 3rd Circuit majority found that the question of whether McCurdy had asserted a cognizable constitutional right was a “controlling, threshold issue” that made it unnecessary to reach the issue of whether the suit was precluded by the prior settlement. “Where liberty interests are asserted as a basis for liability pursuant to Section 1983, courts have consistently undertaken a threshold inquiry at the onset of litigation,” 3rd Circuit Judge Julio M. Fuentes wrote in an opinion joined by Senior U.S. Circuit Judge Edward R. Becker. In a footnote, the court noted that 3rd Circuit Judge Samuel A. Alito concurred in the judgment “for essentially the reasons given by the district court.” Fuentes said that in any civil rights suit, courts must first address the threshold issue of “whether the plaintiff has alleged the deprivation of an actual constitutional right at all.” Under U.S. Supreme Court and 3rd Circuit case law, Fuentes said, it is well-settled that the Due Process Clause protects “certain narrowly defined fundamental rights of parents” in their relationships with their children. But those precedents, Fuentes said, “are clear in one respect: The cases extending liberty interests of parents under the Due Process Clause focus on relationships with minor children.” In the context of parental liberty interests, Fuentes found that the Due Process Clause protects only against “deliberate violations of a parent’s fundamental rights — that is, where the state action at issue was specifically aimed at interfering with protected aspects of the parent-child relationship.” McCurdy’s suit sought to expand on that right, Fuentes said, by asserting a claim that, as a father, he had a “protected liberty interest in the companionship, care, and affection of his independent adult son.” Fuentes found that there were “a number of problems immediately apparent with McCurdy’s purported due process right.” The Supreme Court, Fuentes said, “has never considered whether parental liberty interests extend to the companionship of independent adult children.” Fuentes found that judges within the 3rd Circuit have misinterpreted language in a 1985 decision from the 3rd Circuit in Estate of Bailey by Oare v. York County to mean that parental liberty interests extend to the companionship of independent adult children. In Bailey, the 3rd Circuit recognized a “cognizable liberty interest in preserving the life and physical safety of [a minor child] … a right that logically extends from [a parent's] recognized liberty interest in the custody of his children and the maintenance and integrity of the family.” McCurdy, too, relied on Bailey, but Fuentes found that the case did not help him. “ Bailey concerned a father’s liberty interest in ‘preserving the life and physical safety’ of his 5-year-old daughter. Thus, Bailey must be understood as consistent with and derived from the existing Supreme Court precedents establishing a parental interest in the care, custody, and control of minor children, not as supporting the leap McCurdy seeks to make,” Fuentes wrote. Fuentes noted that the federal circuits are split on the issue, with the 7th and 10th circuits holding that parents have a liberty interest in the companionship of adult children. But the 1st and District of Columbia circuits went the other way, Fuentes noted, holding that due process protections do not extend to a parent’s liberty interest in the relationship with an adult child. Fuentes sided with the circuits that refused to recognize the interest, saying, “We believe that … a broad expansion of due process protections to encompass McCurdy’s proposed definition is unwarranted in this case.” As defined by the Supreme Court, Fuentes said, the liberty interest of a parent “concerns the right of parents to make critical child-rearing decisions concerning the care, custody, and control of minors.” As a result, Fuentes said, “this fundamental right cannot exist indefinitely. By its very definition, it must cease to exist at the point at which a child begins to assume that critical decision-making responsibility for himself or herself.”

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