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Foster parents in Pennsylvania cannot be sued under federal civil rights laws for allegedly harming the children in their care because they are not “state actors,” the 3rd U.S. Circuit Court of Appeals has ruled. “No aspect of providing care to foster children in Pennsylvania has ever been the exclusive province of the government,” U.S. Circuit Judge D. Brooks Smith wrote in Leshko v. Servis. “Even today, while removing children from their homes and placing them with other caregivers arguably are exclusively governmental functions in Pennsylvania, the hands-on care may be tendered by families, private organizations, or public agencies … and thus is not exclusively governmental,” Smith wrote in an opinion joined by 3rd Circuit Judges Samuel A. Alito Jr. and D. Michael Fisher. The ruling upholds a decision by U.S. District Judge Yvette Kane of the Middle District of Pennsylvania that dismissed a suit brought by Karen M. Leshko, now 20 years old, over an incident that occurred when she was 2. According to the suit, Leshko’s foster mother, Judy Servis, had placed Leshko in the kitchen sink to wash her — within the baby’s reach of a “large pot of exceedingly hot water.” When Servis left the room, Leshko pulled the pot over on herself and sustained severe burns across much of her abdomen, legs and mid-section, according to the suit. The suit also alleged that neither Servis nor her husband sought medical treatment for Leshko for more than 12 hours. When she turned 18, Leshko filed a civil rights suit against the Servises and Dauphin County Social Services for Children & Youth saying she had been deprived of her 14th Amendment right to be free from physical harm. After Kane dismissed the entire suit, Leshko filed an appeal that focused on only one issue: Kane’s dismissal of her §1983 claim against the Servises on the grounds that foster parents are not state actors. Smith said Leshko’s appeal forced the appellate court to “weave our way … through the Supreme Court’s labyrinthine state action jurisprudence.” Smith found that Supreme Court cases under the 14th Amendment “draw no ‘simple line’ between states and private persons.” Instead, Smith said, the justices have instructed courts to focus on whether there is such a “close nexus” between the state and the challenged action that “seemingly private” behavior may be “fairly treated as that of the state itself.” Smith also found that the justices have broadly divided state action cases into two factual categories. “The first category involves an activity that is significantly encouraged by the state or in which the state acts as a joint participant,” Smith wrote. “Determining state action in such cases requires tracing the activity to its source to see if that source fairly can be said to be the state. The question is whether the fingerprints of the state are on the activity itself.” The second category, Smith said, are cases that involve an actor “that is controlled by the state, performs a function delegated by the state, or is entwined with government policies or management.” One of the leading cases in the second category, Smith said, is the Supreme Court’s 1988 decision in West v. Atkins which held that a private doctor hired to treat prison inmates was a state actor because he “performed a function traditionally and exclusively reserved to the state.” Leshko’s lawyer, Joseph M. Farrell of Palmyra, Pa., argued that because Pennsylvania comprehensively regulates foster care, and funds that care together with its counties, the courts should infer a sufficiently “close nexus” between the Servises and Pennsylvania. Smith disagreed, saying “the Supreme Court repeatedly has rejected that argument.” Leshko’s suit, Smith said, “does not allege that Pennsylvania forced or encouraged, or jointly participated in, the Servises’ negligent behavior, and therefore she states no claim of state action on the basis of state regulation and funding.” Although the Servises “ostensibly served the state” and received government funds, Smith found that “that is not enough.” Instead, Smith said, the Supreme Court has consistently held that the mere fact that a private entity “performs a function which serves the public does not make its acts state action.” As a result, Smith found that the issue of whether foster parents in Pennsylvania may be treated as state actors hinged on whether foster parents are “delegated a ‘traditionally and exclusively’ state function.” Farrell argued that they are, noting that Pennsylvania courts have held that foster parents are “public employees.” In the lower court’s decision, Farrell noted, Kane had dismissed a tort claim against the Servises on the grounds that Pennsylvania law would treat them as county employees who are entitled to immunity. Farrell said he found it “anomalous” that the Servises could successfully contend that they are county employees entitled to immunity, yet also claim not to be “state actors” for purposes of federal civil rights laws. But Smith found that, despite the “force” of Farrell’s argument, that was nonetheless how the comity cookie crumbles. “We acknowledge the seeming heads-we-win-tails-you-lose aspect of the Servises’ litigation strategy, but the law is on their side,” Smith wrote. “It is true that the Supreme Court in West declared that ‘state employment is generally sufficient to render the defendant a state actor,’ and observed that the only time it had held that a state employee was not a state actor was in the case of a public defender, who was tasked with acting as the state’s adversary,” Smith wrote. “Nevertheless, by its own terms, West does not allow state definitions to dictate federal court decisions under Section 1983,” the judge wrote. Leshko’s only hope, Smith found, was to show that “the provision of care to children in foster homes is a traditionally exclusive governmental function.” On that point, Smith found that the history of foster care in Pennsylvania shows that it is not an exclusively governmental function. “While over time Pennsylvania began to administer aspects of the foster care system previously performed privately, providing hands-on care has never been, and is not now, an exclusively governmental function,” Smith wrote. Foster parents, Smith said, cannot be treated the same as the prison doctor in West because a state’s duty to provide medical care to inmates is premised on the Constitution. “Constitutional obligations on a state obviously are powerful evidence that the required functions are traditionally governmental, but here there are no such obligations. Instead … state-supervised foster care in Pennsylvania is a creature of statute, begun in 1901 under Pennsylvania’s Juvenile Act,” Smith wrote. An unlike the situation in West, Smith said, Leshko’s foster care “was not delivered in an institutional setting.” As a result, Smith found that “the Servises’ care was unaffected by such pervasive institutional influences” that were critical to the Supreme Court’s decision in West. The Servises were represented in the appeal by attorney David P. Karamessinis of William J. Devlin Jr. & Associates in Philadelphia.

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