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U.S. courts grapple with constitutional claims for loss of adult children.

Shortly after midnight on October 1, 1988, two Philadelphia police officers noticed a car parked in the middle of the road, its engine running. They found 19-year-old Donta Dawson in the driver's seat, apparently unconscious and unhurt, and he did not respond to their questions or get out of the car when asked. Finally, one officer reached into the car and saw the young man's arm move; the officer, convinced that he had seen a gun, killed Donta with a shot to the bead. Later, the officers discovered that Donta was unarmed.

The courts found that the shooting officer had acted reasonably and dismissed three criminal charges against him. Donta's mother, Cynthia, filed a federal civil rights lawsuit against the city and several police officers. She sought damages for violations of Donta's civil rights, wrongful death, and for violations of her own civil rights by depriving her of her right to Donta's companionship. The city settled with Cynthia in what the Philadelphia City Paper called "one of the largest ever--and one of the fastest" city settlements. Since she released the defendants from all claims in the settlement agreement, Cynthia's claim that her civil rights had been violated was not considered.

But a few months later Donta's father, Bobby McCurdy, filed his own suit, claiming that the police officer's actions had denied him, too, a constitutionally protected right to his relationship with his son. McCurdy filed under [section] 1983 of the Civil Rights Act. (McCurdy v. Dodd, 352 F.3d 820 (3d Cir. 2003).)

His suit brought to the forefront a question that has bedeviled courts across the country: Is a parent's right to a relationship with an adult child constitutionally protected? The Seventh and Tenth circuits, for instance, have adopted all expansive view of the parental liberty interest, allowing parents (and even siblings) to sue under [section]1983, while the First and District of Columbia circuits have taken a much narrower view--and the Supreme Court has never had to decide the issue.

McCurdy's suit progressed to the Third Circuit, where it was dismissed in December 2003. Writing for the majority, Judge Julio Fuentes noted that while "we are mindful of the broad remedial purposes of [section]1983 grounded on alleged parental liberty interests, we are venturing into the murky area of unenumerated constitutional rights."

The court found that McCurdy was proposing too broad an expansion of due process rights and that the state had not specifically intended to interfere with his relationship with Donta. (Intent is a crucial element in finding a due process violation.)

The judges also noted that there was no evidence to show a close relationship between McCurdy and Donta and that Cynthia had largely raised him on her own. Finally, Fuentes concluded that while the definition of a"child" is fluid, it would be a "serious mistake ... to extend the liberty interests of parents into the amorphous open-ended area of a child's adulthood."

Blame it on Bailey

The McCurdy ruling repudiates almost 20 years of district court decisions in the Third Circuit that go back to a landmark ruling, Estate of Bailey v. County of York. The Bailey judges recognized a "cognizable liberty interest in preserving the life and safety of a minor child"; yet the decision has been cited routinely to support claims that involve adult children. (768 E2d 503 (3d Cir. 1985).)

"District courts misread a footnote in Bailey, thinking [the parental liberty question] was a decided issue," explained Sarah Ricks, a former attorney for the city and a Rutgers School of Law professor, who wrote an amicus brief in McCurdy.

"They never recognized that it was, in tact, undecided in the Third Circuit and split in the federal circuits. But since then, the courts have consistently misread that decision and ruled in favor of this expanded parental liberty interest. What McCurdy did was to recognize the split in the courts, and to finally decide it with a ruling firmly grounded in U.S. Supreme Court analysis." In fact, the trial court cited Bailey when it allowed Cynthia to press her [section]1983 claim.

The McCurdy decision is one of two key Third Circuit cases that deal with this issue. The other was brought by the family of a 23-year-old murder victim, Shannon Schieber.

In May 1998, Philadelphia police officers responded to an early-hours emergency call from Schieber's neighbor, who reported that he and his wife heard a scream and "a choking sound." This was in a neighborhood where several recent rapes had been attributed to the so-called Center City rapist. When the police arrived, the neighbors expressed some doubt about the origin of the noises. The officers knocked on Schieber's door; when no one answered, they told the neighbors to call 911 again if they heard anything, and left.

The next clay, Schieber's brother broke into her apartment; she had been raped and murdered.

A few months later, the Schiebers sued the city and the police officers in federal court, under the same due process theory that McCurdy used. Senior District Judge Norma Shapiro, ruling that the case could go before a jury, agreed that the officers had violated Shannon Schieber's civil rights by placing her "in a worse situation than if they had not responded at all"--the so-called state-created-danger doctrine. Given that Schieber was probably still alive when the officers arrived, and that they knew the Center City rapist was still at large, Shapiro agreed they should have foreseen serious danger.

The judge also ruled unequivocally that the parents of an adult child have a liberty interest in their child's life "because of the parents' interest in custody and maintaining the family."

The Third Circuit granted summary judgment for the officers in February 2003, saying that there was no evidence that Shannon's civil rights had been violated, and remanded the case to the trial court. Significantly, the judges left open the parental liberty question. In the words of the chief judge: "I express no view on whether the Schiebers, as parents, had a liberty interest in the continued companionship of their adult, emancipated child." (Schieber v. City of Philadelphia, 320 E3d 409 (3d Cir. 2003).)

With the question of parental liberty still undecided, resolving the debate was left to the judges in McCurdy. Ricks said McCurdy sets the precedent for any similar claims that the court will consider in the future: "This totally changes the framework. It puts an end to these parental claims, and does so by being grounded in Supreme Court holdings."

While the Supreme Court has never ruled specifically" on the relationship between parents and their adult children, it has examined related issues. Troxel v. Granville first established that "the parent-child relationship is constitutionally protected" by the Due Process Clause of the Fourteenth Amendment and that parents have a constitutional right to the "care, custody, and control" of their children. But the justices made it clear that this applied only to minor children, on the assumption that parents do not "control" their adult children. (530 U.S. 57 (2000).)

Troxel also laid down the requirement that for a government action to be unconstitutional, it had to be specifically aimed at harming the parent-child relationship. In McCurdy's case, noted Ricks, "the relationship of Donta Dawson to his parents was not on the police officer's mind when he pulled the trigger."

Fifteen years earlier, in Tennessee v. Garner, the Court ruled that a father had the right to sue for loss of companionship under [section] 1983 for the death of his 15-year-old son, shot by police. The Court reasoned that the father could compel his son's companionship because the boy was still a minor. (171 U.S. 1 (1985).)

An ongoing fight?

Constitutional arguments are also wending their way into typical wrongful death cases that involve parents' loss of adult children. One reason is that the states vary widely in the compensation they allow for losses related to an adult child's wrongful death (a few states don't allow any), and plaintiff attorneys are looking to federal remedies.

Two years ago in Seattle, a trial court judge overturned years of precedent when she allowed the parents of 22-year-old Yianni Philippides to sue after he was run down in a crosswalk while riding his bicycle.

The defendants--Robert Bernard, who was driving the car that hit Yianni; Wolverine World Wide, for whom Bernard worked as a salesman; and Robert Johns, another motorist--argued that state law allowed parents to sue tot loss of consortium only if the child was a minor.

But Judge Kathleen Learned disagreed, noting in her pretrial ruling a 1988 change in the law's wording that "a mother or father, or both, of a child on whom either, or both, are dependent for support may maintain or join as a party an action as plaintiff for the injury or death of the child." She added that nothing in the law required that support to be specifically financial, and that the Philippideses could sue for loss of emotional support. (Philippides v. Bernard, No. 01-2-099744SEA, 2002 WL 31923585 (Wash., King County Super. Ct. Aug. 19, 2002).)

Around the same time, Glenn and Kay Estensen of Newark, Illinois, lost their son Matthew, 23, in a fiery three-car pileup in Iowa. Their attorney, Martin Diaz of Iowa City, is preparing to challenge a state law that bars them from recovering damages.

The law violates the rights to due process and equal protection, Diaz argued. "If it were the father who died in a car crash, the son could sue. It's the same two people, it's the identical relationship--why is it only a one-way street?"

Diaz called McCurdy "a bad decision," saying, "All of these arguments about the constitutional liberty interest focus on the age concept. The Supreme Court has ruled only on cases involving minors, and there is absolutely no dispute that the right to a relationship with your child is a constitutional right. So why does this right disappear when your child reaches majority?"

He added, "What if the state were telling you, now your child is 18, so you can't have him in your house? That would be state interference in free association. That would be unconstitutional, clearly. The state can't interfere with your choice of who you associate with." He noted that certain types of adult-to-adult relationships are constitutionally protected and said, "It's not about parent-child, it's about the right to associate with whom you want."

Change in the law can be slow. Ricks noted that the city of Philadelphia had waited "about 10 years," letting many similar cases go by unchallenged, before finding the one that could settle the parental liberty issue, at least in the Third Circuit. "It's been a conscious, long-term strategy of waiting for the right case, and tiredly, this was it."
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Author:Sileo, Carmel
Publication:Trial
Date:Mar 1, 2004
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