## Facts

- Eleven minor children, suing through adult “next friends,” alleged systemic failures in New York City’s child welfare system while under agency supervision or custody.
- Plaintiffs sought declaratory and injunctive relief under 42 U.S.C. § 1983 against City and State officials responsible for administering child welfare services.
- The complaint alleged severe abuse and neglect despite agency involvement, including failures to respond to reports of maltreatment, unsafe returns to parents, disruptive foster-care moves, and inadequate services and permanency planning.
- Defendants moved to dismiss substantial portions of the complaint under Rule 12(b)(6); plaintiffs also sought class certification, and the City defendants sought bifurcation.

## Issues

1. Whether children in state custody have a substantive due process right to protection from harm by the government, and whether that right extends to emotional and developmental harms.
2. Whether abused or neglected children not in state custody have a substantive due process right to governmental protection from private harm.
3. Whether foster children have a substantive due process right to the “least restrictive, most appropriate, and family-like” placement.
4. Whether plaintiffs adequately pleaded procedural due process violations in child welfare removal, placement, and service practices.
5. Whether provisions of federal child welfare statutes (including the Adoption Assistance and Child Welfare Act and CAPTA) create rights enforceable via § 1983.

## Decision

- The court granted in part and denied in part the motions to dismiss.
- Substantive due process “right to protection” claims were allowed to proceed for children in state custody, based on the state’s affirmative obligations when it takes custody.
- Substantive due process “right to protection” claims were dismissed to the extent asserted by children not actually in agency custody.
- The court rejected and dismissed the theory that the Constitution guarantees a “least restrictive” or otherwise “optimal” foster placement.
- Procedural due process claims were permitted to proceed.
- Many statutory claims under federal child welfare enactments were permitted to proceed to the extent particular provisions satisfied the enforceability test for § 1983 claims.

## Legal Principles

- When the state takes custody of a child, it assumes affirmative constitutional duties to provide reasonable safety and care; absent custody (or a comparable restraint), failure to protect from private violence generally does not violate substantive due process.
- For children in custody, the substantive due process right to be free from harm may include serious non-physical harms, including unreasonable and unnecessary intrusions on emotional well-being, not solely physical injury.
- Substantive due process does not establish a freestanding entitlement to an “optimal,” “least restrictive,” or best-available placement.
- Procedural due process protections apply to government decision-making affecting children in the child welfare system; at the pleading stage, systemic allegations of deficient procedures may state a claim.
- Federal statutory provisions are enforceable under § 1983 only if they are intended to benefit the plaintiff, impose binding obligations (not merely policy preferences), and are sufficiently definite for judicial enforcement.

## Conclusion

The court permitted core systemic-reform claims to proceed, recognizing custody-based substantive due process protections against unreasonable harm and allowing procedural due process and many statutory § 1983 claims, while limiting liability for non-custodial children and rejecting any constitutional right to “optimal” placement.


Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996)