Heather BURTON; Amy Burton; Thomas Burton; Jenny Brandt; Michelle Balikes; John Burton, Plaintiffs — Appellees, v. Patricia RICHMOND, Defendant — Appellant, Jeanie Heskett, Defendant, Mary Ann Barnes, formerly known as Mary Ann Allen, Defendant — Appellant, Susan Wilfong; David Gaddie; Leann Haslag, Defendant.
No. 03-2487
United States Court of Appeals, Eighth Circuit
Filed: June 2, 2004
Rehearing and Rehearing En Banc Denied August 2, 2004.
370 F.3d 723
Submitted: January 12, 2004. Joel E. Anderson, AAG, argued, Jefferson City, MO (Susan K. Glass, AAG, on the brief), for appellant. Christopher Slusher, argued, Jefferson City, MO, for appellee. Before LOKEN, Chief Judge, FAGG and BOWMAN, Circuit Judges.
1 Defendants Patricia Richmond and Mary Ann Allen appeal from the District Court‘s denial of their motion for summary judgment on grounds of qualified immunity. Because we determine that there was no violation of a clearly established constitutional right, defendants are entitled to qualified immunity. We reverse and remand the case to the District Court and direct the entry of judgment in favor of defendants.
I.
2 In January 1985, plaintiffs’ mother, Shirley Burton, left them with their aunt, Rhonda Richards. Rhonda and her mother, Jean Huffman, agreed that four of the children — Amy, Jenny, Heather and Thomas — would move in with Jean and her husband, Jim Huffman, while Michelle and John would remain with Rhonda until the end of the school year.1 After working out the details of this arrangement, Rhonda contacted Richmond, a social worker at the Missouri Division of Family Services (“DFS“). Rhonda asked for Richmond‘s assistance because the family wanted to prevent Shirley from returning and taking plaintiffs back to live with her. To this end, Allen, another DFS caseworker, informed a juvenile officer of the arrangement worked out by Rhonda and Jean, and the officer recommended to the Cole County Circuit Court that it place the children with Rhonda and Jean as per their arrangement. The court then entered an order giving physical custody of the children to Rhonda and Jean and requiring continuing supervision of the placement by DFS. The court retained legal custody, so the children remained wards of the court, even after the court-ordered placement with their relatives. In accordance with Rhonda and Jean‘s initial agreement, the court later ordered the transfer of physical custody of Michelle and John from Rhonda to Jean at the end of the school year. Neither Allen nor Richmond conducted a home study or criminal background check of either home before the court-ordered placement.2
4 Plaintiffs brought suit against six DFS workers under
II.
5 Governmental officials are entitled to qualified immunity under
6 The state does not have a general duty to protect individuals from harm at the hands of private actors. DeShaney v. Winnebago County Soc. Servs. Dep‘t, 489 U.S. 189, 197 (1989). A substantive due process right to protection can arise under two theories. Under the first theory, the state may owe a duty to protect individuals in its custody. Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992) (en banc), cert. denied, 507 U.S. 913 (1993). Under the second, the state may owe a duty to protect individuals if it created the danger to which they become subject. Id.; see also S.S. v. McMullen, 225 F.3d 960, 962 (8th Cir.2000) (en banc) (“[I]f the state acts affirmatively to place someone in a position of danger that he or she would not otherwise have faced, the state actor, depending on his or her state of mind, may have committed a constitutional tort.“), cert. denied, 532 U.S. 904 (2001). Plaintiffs argue that they were owed a duty by defendants, employees of DFS, under both theories.
7 As to custody, the summary-judgment record shows that the Cole County Circuit Court placed plaintiffs with the Huffmans and DFS was directed to exercise continuing supervision over the court-ordered placement, but the court retained legal custody of the children. (Dist. Ct. Order 15). Furthermore, DFS did not have physical custody of these plaintiffs before the court-ordered placement.3 Plaintiffs’ mother initially placed them with Rhonda who agreed to keep physical custody of two of them and Jean agreed to take custody of the other four. It was only after the family made these custodial arrangements that they contacted defendants and involved the juvenile court. In effect, the family made their own custodial determinations and then went to the court in order to get them legally sanctioned. Defendants merely assisted a family to obtain the protection of the state court in order to prevent an unstable mother from demanding the return of her children.4
9 Nor did defendants have a duty to protect plaintiffs under the state-created danger theory. The danger in this case — the placement in the Huffman home — was created by Rhonda and Jean‘s agreement as to the best custodial arrangement for the family. Neither DFS nor the individual defendants took an active role in creating this placement; they merely helped the family get recognition from the juvenile court of the changed custodial arrangement. The placement was made by the court upon recommendation from the juvenile officer and did not result directly from any action taken by either appellant. Recommending to the juvenile officer the placement agreed to by the plaintiffs’ aunt and grandmother was not sufficient to create a duty to protect the children while in the placement. Cf. Milburn ex rel Milburn v. Anne Arundel County Dep‘t of Soc. Servs., 871 F.2d 474, 476 (4th Cir.) (refusing to find a duty to protect arising from the state‘s placement of a child in a foster home when the parents voluntarily placed the child in the home), cert. denied, 493 U.S. 850 (1989).
10 Even assuming arguendo that defendants had a duty to protect plaintiffs from harm at the hands of Jim Huffman, plaintiffs have nonetheless failed to provide sufficient evidence of a substantive due process violation by the defendants. Before official conduct or inaction rises to the level of a substantive due process violation it must be so egregious or outrageous that it is conscience-shocking. County of Sacramento v. Lewis, 523 U.S. 833, 848 n. 8 (1998) (“[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental official is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.“); Hawkins, 316 F.3d at 780. The conduct at issue in this case consists in part of defendants’ failure to respond to two reports of sexual abuse and Allen‘s failure to conduct a background check of the Huffmans prior to the placement of plaintiffs with them. Each defendant received only a single and isolated complaint of possible sexual abuse in the Huffman home. The complaints were made by Shirley, the mother who previously had abandoned plaintiffs and who was attempting to reassert her parental rights. In these circumstances, defendants’ failure to investigate is not so outrageous or egregious as to shock the conscience and thus the failure to investigate did not violate plaintiffs’ substantive due process rights. Cf. DeAnzona v. City and County of Denver, 222 F.3d 1229, 1235 (10th Cir.2000) (“Even knowingly permitting unreasonable risks to continue does not necessarily rise to the level of conscience-shocking.“).
12 Because there was no duty to protect and, even if there was such a duty, because defendants’ actions were not conscience-shocking, the District Court erred in concluding that plaintiffs’ constitutional rights were violated by defendants’ conduct. Richmond and Allen are entitled to qualified immunity because plaintiffs have failed to show a constitutional violation.
III.
13 Assuming arguendo that plaintiffs have shown a constitutional violation, defendants are still entitled to qualified immunity if the alleged right at issue was not clearly established at the time of the complained-of conduct in 1985. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We believe the constitutional right of children under DFS supervision, yet not within DFS custody, to be free from abuse in a court-ordered placement was not clearly established in 1985. Courts have split on whether children in the mid-1980s had a clearly established right to reasonable safety while placed in foster care after having been taken into state custody. Compare Yvonne L. ex rel Lewis v. N.M. Dep‘t of Human Servs., 959 F.2d 883, 893 (10th Cir.1992) (right clearly established as of 1985); K.H. ex rel Murphy v. Morgan, 914 F.2d 846, 849 (7th Cir.1990) (right clearly established in 1986); Taylor ex rel Walker v. Ledbetter, 818 F.2d 791, 797 (11th Cir.1987) (recognizing right protected child injured in 1982), cert. denied, 489 U.S. 1065 (1989); Doe v. New York City Dep‘t of Soc. Servs., 649 F.2d 134, 141 (2d Cir.1981) (recognizing right protected child injured during 1970s), cert. denied, 464 U.S. 864 (1983); with White ex rel White v. Chambliss, 112 F.3d 731, 738 (4th Cir.1997) (right not clearly established in 1992); Eugene D. ex rel Olivia D. v. Karman, 889 F.2d 701, 711 (6th Cir.1989) (right not clearly established in 1982), cert. denied, 496 U.S. 931 (1990); Doe v. Bobbitt, 881 F.2d 510, 511 (7th Cir.1989) (right not clearly established in 1984), cert. denied, 495 U.S. 956 (1990). This Court did not find such a duty until 1993. Norfleet, 989 F.2d at 293. Given the wide divergence of views on whether the right to protection from abuse was clearly established for children in state custody placed in foster care, we refuse to find that a right to protection while under state supervision, yet not in state custody, was clearly established in 1985. The District Court erred when it ruled that in 1985 plaintiffs had a clearly established constitutional right to be protected from abuse at the hands of a private individual while under state supervision yet not in state custody.
14 It is regrettable that plaintiffs suffered sexual abuse at the hands of their step-grandfather. But for the reasons stated, their attempts to assert constitutional claims for damages against Allen and Richmond cannot succeed. The order of the District Court is reversed and the case is remanded for the entry of summary judgment in favor of Allen and Richmond on the basis of qualified immunity.