Mark G. v. Sabol: substantive due process rights, a possibility for foster care children in New York.

AuthorDiebel, Beth A.


We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort.(1)

Justice Blackmun, in his dissent in DeShaney v. Winnebago County Department of Social Services,(2) admonished the Supreme Court for not reading the Constitution sympathetically when deciding young Joshua DeShaney's fate.(3) Now, ten years later, in Mark G. v. Sabol,(4) the New York Court of Appeals has given children a chance to find a remedy for the alleged harm perpetrated against them while in foster care.(5)

The court's decision in Mark G. v. Sabol has been described as a "groundbreaking decision on substantive due process rights in child welfare cases."(6) The decision allowed plaintiffs, children in the New York foster care system, to replead their claims under substantive due process and common-law tort.(7) The court, however, dismissed claims seeking monetary damages stemming from alleged violations of various provisions of New York's Social Services Law and of procedural due process rights.(8)

The New York Department of Family Assistance (formerly New York Department of Social Services) estimates that 49,746 children currently live in foster care in New York.(9) Of those children, three-quarters of them reside in New York City.(10) Plaintiffs in Mark G. v. Sabol have already refiled claims in the court,(11) and the ramifications, if the suits are successful, extend beyond these plaintiffs in a number of ways. First, a significant number of children reside in the foster care system in New York, and a decision in Mark G. v. Sabol has the potential to impact their constitutional rights.(12) Second, the particular claims of the twelve plaintiffs are generally representative of the plight of many foster care children in New York; thus, the potential exists for similar suits to follow.(13) For a system that is fraught with problems, litigation could help fuel reform in the foster care system, benefiting the children within the system.(14)

Part I of this note will discuss the factual backgrounds of the twelve plaintiffs involved in Mark G. v. Sabol.(15) Part II will examine the New York Court of Appeals' decision in Mark G. v. Sabol.(16) Part III will present an argument that foster children should be considered as being within the custodial care of the child welfare system and, therefore, be accorded an appropriately protective level of substantive due process rights.(17) Part IV will discuss why the "qualified professional" standard is the appropriate standard of care that a child welfare agency must provide a foster child within its custodial care.(18)


    The Mark G. v. Sabol case started as a proposed class action suit that sought both injunctive relief and monetary damages from New York City welfare officials.(19) From the original action, only claims for monetary relief remain for the eleven living plaintiffs and the estate of a twelfth, representing children from four different families.(20)

    The plaintiffs' stories paint a picture of a child social welfare system failing the very clients the system exists to protect. From 1983 to 1985, city welfare workers received ten different reports of abuse or neglect of the five children--Mark, Kevin, Steven, Susan, and Alan--in the G. Family.(21) The reports implicated the children's mother, Virginia G., and her boyfriend, Raymond H., in the abuse.(22) In 1985, child welfare workers removed the children from the couple's home, but one year later, after Virginia G. completed a parents training program, the city returned the children to her.(23) Shortly thereafter, Virginia G. moved back in with Raymond H., and the abuse of the children resumed.(24) Medical reports showed that the children had sustained "broken bones, burned feet and multiple bruises."(25) In March of 1990, shortly after he turned five, Alan G. was beaten to death by Virginia G. and Raymond H.(26) After this unfortunate incident, the child welfare agency placed the remaining children in foster care, which did not alleviate the disruption in the children's lives.(27)

    With respect to the F. family, Marie F. took her children, John and Francis, and left an abusive marriage to live in a protective shelter.(28) When child welfare workers decided that Marie, who was hearing-impaired, could not care for her children in a shelter setting, they removed the children and placed them in foster care.(29) A state supreme court judge ordered the children to be returned to Marie because they had been illegally removed from her care.(30) However, after the child welfare workers returned the children, they did not provide services outlined in the case plan they had developed, and again the children entered foster care.(31) John had been placed in ten separate foster care situations from 1988 to 1992 and appeared to have been physically abused during this time.(32) Francis had been placed in six different situations and had been sexually abused.(33)

    Dakinya B. was raped at knife point at the age of ten.(34) Afterwards, she needed psychotherapeutic services that her mother unsuccessfully attempted to obtain for her.(35) As Dakinya's behavioral problems continued, her mother was unable to care for her, and Dakinya was placed in foster care.(36) Even after placement in foster care, Dakinya did not receive the mental health care treatment that a family court judge had ordered.(37) Eventually, Dakinya's attempted suicide led to her placement at the Bronx Children's Psychiatric Center.(38)

    Mrs. A., a victim of domestic violence, voluntarily placed her children, Martin, Bill, Laura, and Vincent, in foster care because city child welfare workers led her to believe that her hearing disability would make it impossible for her to care for her children.(39) Like others before them, the A. children endured multiple placements in foster care.(40) At one point, city child welfare workers returned two of the children to their abusive father, a known substance abuser.(41) Mrs. A. never received services that could have enabled her to care for her children.(42)

    In sum, each family's story is a tale of abuse and missed opportunities for critical intervention. Taken together, the stories implicate the child welfare system's failure to intervene at the report of abuse, to follow specific court orders, and to properly care for the children placed in foster care.(43)


    In Mark G. v. Sabol,(44) the Court of Appeals clarified the legal theories under which plaintiffs could seek monetary damages from the New York City child welfare agency.(45) Plaintiffs in Mark G. asserted that the city child welfare agency had not fulfilled its legal obligation under Titles IV and VI of article 6 of the New York Social Services Law, thereby violating the plaintiffs' procedural and substantive due process rights.(46) In addition, the plaintiffs alleged common-law tort claims.(47) The court addressed those claims in an opinion that clearly defines the status of such claims under article 6 of the New York Social Services Law,(48) as well as the approach the court would take in evaluating a substantive due process rights claim,(49) and permitted the plaintiffs to replead their common-law tort claims.(50)

    Article 6 of the New York Social Services Law sets forth various laws concerning the care and protection of children,(51) with "Preventive Services for Children and Their Families" defined under Title IV(52) and the role of "Child Protective Services" established under Title VI.(53) Title IV defines "`preventive services'" as "supportive and rehabilitative services provided ... to children and their families for the purpose of: averting an impairment or disruption of a family which will or could result in the placement of a child in foster care."(54) Pursuant to Title VI, the purpose of child protective services is to:

    encourage more complete reporting of suspected child abuse and maltreatment and to establish in each county of the state a child protective service capable of investigating such reports swiftly and competently and capable of providing protection for the child or children from further abuse or maltreatment and rehabilitative services for the child or children and parents involved.(55) The Mark G. court began its analysis of the plaintiffs' Title IV money damages claim by applying the court's previously established threshold test for determining if a private right of action for monetary damages exists for a given statutory violation.(56) This three-part test first determines if the "`plaintiff is one of the class for whose particular benefit the statute was enacted.'"(57) Second, "`whether recognition of a private right of action would promote the legislative purpose;'" and third, "`whether creation of such a right would be consistent with the legislative scheme.'"(58)

    Under the first part of the test, the court found that the plaintiffs were within the class meant to benefit under Title IV, "and that a private right of action for money damages could arguably promote the title's goals."(59) The court determined that the statute was designed to encourage the child welfare system to find permanent homes for children who are currently in foster care or at risk of entering foster care.(60) The court further noted that the statute placed greater emphasis on preventive services to encourage family unity in order to avoid placement of children in foster care.(61) Along with these goals, the legislation called for additional "`monitoring of the foster care system with safeguards against abuse and for penalties where violations are found to ensure that the needs of children in foster care are appropriately met.'"(62) Based on...

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