CAI Submits Writ of Certiorari Petition to US Supreme Court

On Wednesday, July 11, 2012 the Children’s Advocacy Institute, together with co-counsel Winston & Strawn, filed a petition with the U.S. Supreme Court asking it to rule on a foster child’s ability to seek relief in federal court.    The petition, known as a Writ of Certiorari, urges the Supreme Court to decide whether it was appropriate for a federal court to refuse to hear a case brought by foster children.

In March of this year, the Ninth Circuit Court of Appeals entered an opinion in the case of E.T. et al., v. Tani Cantil-Sakauye, which basically bars foster children from turning to the federal courts for relief when the state systems designed to protect them from abuse and neglect have failed, often because they are overburdened.

“It is unconscionable” says Robert Fellmeth, Executive Director of the Children’s Advocacy Institute and an attorney on the case.  “It is ridiculous to require foster children to seek redress in the state courts.  Particularly in a case like this where the underlying complaint is that the state courts themselves, and in particular, the State Supreme Court, have let these kids down by not providing them with attorneys who can adequately represent them in their state court proceedings.”

Fellmeth added: “This case represents a categorical abdication – a walkaway from foster kids and their due process and statutory rights. The Ninth Circuit holds, bizarrely, that an action simply to reject 388 kids per attorney as an excessive caseload purportedly cannot even be heard at all, since it represents an ‘intrusion’ into the state court system.”

“But this is why the federal courts exist,” said Fellmeth, “to provide a check when the states engage in egregious, unlawful, unconstitutional state action – including state courts.

Federal courts are often the appropriate forum for seeking redress when systemic failures have harmed foster children, because many aspects of the state systems designed to protect foster children are based on federal requirements.  When state systems are not meeting mandated federal requirements, foster children have in the past been able to turn to federal courts for assistance.

The Ninth Circuit found that because foster children are involved in state court judicial proceedings, a federal court cannot consider any of their claims.  The Ninth Circuit reasoned that if the federal court ruled on the claims of the foster children, it would necessarily “intrude upon the state’s administration of its government, and more specifically, its court system.”

The ruling by the Ninth Circuit purported to build upon previous Supreme Court decisions holding that where a state court is handling a matter, a federal court should not issue a decision that would undermine the validity of the state court decision.  This line of reasoning, referred to as the abstention doctrine, has been read narrowly in some jurisdictions but very broadly in the Second, Fifth, Sixth, Tenth Circuits, and now Ninth Circuits.  This decision in the Ninth Circuit, in fact, is one of the broadest interpretations of the abstention doctrine stretching beyond the Supreme Court’s intent and purpose behind the doctrine and closes the federal court doors to foster children.

“This holding applies and elevates ‘abstention’ – the radical doctrine that whatever the facts or the degree of violation, the state may do what it will.” Fellmeth called the decision “one of the most dangerous self-abnegation opinions in recent decades. It represents the strong empathy lines of judges for their colleagues on the state bench, who are here elevated to “above the law” status, rather than for foster kids who are parented by these state courts and have no other redress.”

The U.S. Supreme Court is expected to rule on whether or not it will hear the case in September of this year.

You can find the filed Petition here:


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