CPS failure to protect

If CPS fails to remove a child from dangerous circumstances they may not be held responsible. As the court put it, the child that was not removed was in no worse or better position as a result of CPS failure to protect.

The court affirmed the trial court's orders in these consolidated cases granting the defendants-DHS and DHS employees and officers summary disposition, holding, inter alia, that the plaintiffs-PRs for the decedent children could not prevail under DeShaney and Gazette on their MCTC claims. In Docket No. 302545, plaintiff alleged that defendants were derelict in their mandatory duties to investigate and safeguard decedent-Nicholas from his "extremely abusive father," who later killed himself, his wife, and Nicholas. In Docket No. 302622, the plaintiff alleged that defendants failed to protect decedent-Calista from her parents, which resulted in her death. She was chained to her bed when a fire broke out in her home, and was asphyxiated from carbon monoxide poisoning. The court noted that because none of the individual defendants other than defendant-Udow were state officers, the trial court (the Court of Claims) lacked jurisdiction over them and plaintiffs' claims against the employee defendants were properly dismissed. However, the trial court had jurisdiction to hear the claims against the state and Udow. Plaintiffs' only claim was based on "the principle that the Michigan Constitution contains an implied cause of action for money damages when the state, or its agents/agencies, infringe on a resident's due process rights guaranteed under the Michigan Constitution." They asserted that the decedents were deprived of their rights to life and liberty. The court concluded that this was unfortunately true. "However, it was the fire and the decedents' negligent parents, not the state, who deprived them of these rights." The court noted that in a very similar case, DeShaney, the U.S. Supreme Court "declared that in the absence of a special relationship the government's failure to protect a child from his parents cannot qualify as a violation of due process, notwithstanding the government imposing affirmative duties on its employees." Likewise, the court held in Gazette "that no special relationship existed for purposes of a due process violation when a police officer failed to timely investigate the disappearance of the victim." The undisputed facts showed "that there was no special relationship between the decedents and the state. Neither was ever taken into custody, nor did the state deprive them of their liberty. Instead, the facts show that the state unfathomly failed to act, leaving both children in the same perilous position they had always been in - no more or no less vulnerable then they had always been." The court concluded that the plaintiffs "failed to properly plead a substantive due process violation against the state under the Michigan Constitution." The only affirmative act they alleged imposed a duty on the state for increasing the risk to the decedents was warning the parents of the danger presented by chaining a child to a bed. "Defendants' failure to remove the decedents was not an affirmative act," and plaintiffs failed to show that the DHS and Udow "were deliberately indifferent" to the decedents' well-being. Plaintiffs also failed to "sufficiently allege that defendants' conduct of inaction was mandated by official custom or policy." While plaintiffs cited "several failures by the employee defendants to comply with their official CPS investigation policies and guidelines, these failures merely prove the state's failure to act, not that it was acting pursuant to a mandatory policy of inaction."