Print Page   |   Contact Us   |   Your Cart   |   Sign In   |   Join
Latest News: Amicus Curiae Activity

NACC Files Amicus Brief in Texas

Thursday, May 3, 2018   (0 Comments)
Posted by: Kim Dvorchak
Share |

MD v. Abbott

 

Court: United States Court of Appeals for the 5th District

 

Topic: The Care of Children in the Texas Child Welfare System

 

Filed: April 9, 2018

 

Summary:

 

NACC filed an amicus brief in MD v. Abbott, No. 18-40057, in the United States Court of Appeals for the 5th Circuit supporting the Appellees.  In its brief, NACC asks the 5th Circuit Court of Appeals to affirm the decision of the United States District Court for the Southern District of Texas. 

 

The Plaintiffs, children in Permanent Managing Conservatorship (PMC), in the state of Texas, brought this class action under 42 U.S.C. § 1983 against officials of the State of Texas, claiming the State had violated their 14th Amendment substantive due process rights, including “the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services” by how the State and its officials managed the Department of Family and Protective Services as well as the departments under its control.

 

The District Court held that foster children have a Fourteenth Amendment substantive due process right to be free from an unreasonable risk of harm caused by the State and that Texas violated that right.  The Court noted, “[t]he reality is that DFPS has ignored 20 yearsof reportsoutlining problems and recommending solutions. DFPS has also ignored professional standards. All the whileTexas'PMC children have been shuttled throughout a system where rapeabusepsychotropic medicationand instability are the norm. The Court has no assurance that anything has changed.”

 

The State filed an appeal. However, in its initial brief, the State did not raise any issue challenging the existence of foster children’s Fourteenth Amendment substantive due process right to be free from an unreasonable risk of harm caused by the State, or even the State’s corresponding constitutional duty to foster children. Accordingly, NACC’s first argued that the state waived any challenges it may have to the District Court’s finding that children in foster care have a substantive due process right to be free from an unreasonable risk of harm caused by the State.

 

Second, NACC asserted that even if the issue was not deemed to have been waived due to inadequate briefing, the District Court was correct in finding that children in foster care have a substantive due process right to be free from an unreasonable risk of harm.  The “special relationship” between foster children and the State imposes a constitutional duty on the State to protect foster children from an unreasonable risk of harm. Further, the deprivation of liberty resulting from being placed in foster care is sufficient to trigger the protections of the Due Process Clause.

 

Finally, NACC also argued that the State’s “special relationship” with foster children coupled with the deprivation of liberty as a result of being placed in foster care imposes on the State a constitutional duty to provide personal security and reasonably safe living conditions.

 

NACC is grateful to Akerman, LLP for providing its attorneys, Terry Adams and Nicolas Stepp, to write this important brief pro bono on behalf of NACC.  

 

Click here for NACC's Amicus Brief

 

Click here for the Texas Court Order subject to appeal

 


Membership Software Powered by YourMembership  ::  Legal