*1 Albеrt, By C. Litem, Ad John B., Guardian Kara B., Plain B., of Kara Parents B., and Jennifer Steven tiffs-Appellants, v. County Department of Human County, Dane Dane Shirley Assigns, Agents Ed Aasen, Services, Its Margaret/Marjorie Page, Mar Johnson, Estate of Jr., Virginia Eby, garet Hanson, Collins, Terri E. Municipal Company, Mutual Insurance Wisconsin
Defendants-Respondents,† [Case Defendants, No. Smit, Roxanne Sue Marshall, 94-1081] By R., C. Minor, Guardian Ad Litem John Mikaela R., R., Albert and Joette Parent of Mikaela Plaintiffs-
Respondents, County Department Dane of Human County, Dane Agents Assigns, Shirley Services, Aasen, Its Ed Page Margaret/Marjorie Jr., Johnson, Estate Mar
garet Eby, Virginia Marshall, Collins, E. Sue Terri Syring Municipal Hanson, Robert and Wisconsin Company, Defendants-Appellants,† Mutual Insurance Roxanne Defendant, Smit, Sentry Company, Insurance Defendant-Appellant. 94-2908] [Case No. review granted.
† Petition of Appeals
Court 94-1081, July on Submitted 94-2908. Nos. briefs 2, 1995. November 1995. Decided *2 777.) (Also in 542 N.W.2d reported *5 plaintiifs-appellants sub- For the the cause was A. mitted on briefs of C. and John Albert Debra Laffey Eustice, Albert, Fumelle, S.C., of Petkovsek of & Sun Prairie. defendants-appellants
For the the cause was sub- mitted on the briefs of M. and David J. John Moore Bell, Moore, S.C., Metzner, Pliner of Gierhart & Madison. defendants-respondents
For the the cause was submitted on the briefs John M. and J. oí Moore David Bell, Metzner, Moore, S.C., Pliner of Gierhart & Madison. plaintiffs-respondents,
For the sub- the cause was mitted on briefs of John C. A. Albert Debra Laffey Eustice, Albert, Fumelle, S.C., Petkovsek of & Sun Prairie. Sundby, Eich, C.J.,
Before Gartzke, P.J., and J. EICH, C.J. We consolidated on these two cases appeal. They brought are actions, under U.S.C. professiоnal negligence mal- 1983 and state-law *6 damages physical
practice seeking for theories, and by young liv- sexual suffered two children while abuse ing in a foster home. Background
I. adjudged Kara B. and Mikaela R. were to be chil- protection separate dren in need or services in juvenile proceedings court in and and were placed custody temporary County in the of the Dane Department place- of Social Services for foster-home placed ment. Kara B. was in a licensed foster home operated by Roxanne Smit on 28, 1989, March July there remained until 14, 1990. Mikaela R. was placed in the Smit home in June 1990 and remained sexually until 18, 1990, December when she was knifepoint by at assaulted two men in the basement of investigating the home. In the course of the assault, police contacted B., Kara who told them that she too sexually by had been abused Smit and a man who during had lived in Smit's house the course of her placement there. separate
In depart- actions, the children sued the professional ment employees and several of its who had placement been involved in either their initial or in relicensing monitoring they the home while were in residence. Smit also was named a defendant both actions. granted
In Kara summary case, B.'s the trial court judgment dismissing grounds § the 1983 claims on county qualified defendants were entitled to immu- nity from suit they because it had not been shown that any "clearly had violated established" constitutional right Although unnecessary Kara B. to resolution of ruling, case because of that the court went on to proofs with in connection submitted decide that a viola- summary judgment establish failed to motions rights. The court went constitutional of Kara B.'s tion claims on tort Kara B.'s state-law to dismiss on grounds immunity entitled the defendants were govern- "discretionary" § STATS.,for their 893.80, under § 895.485, which and also under acts, mental liability agencies for specifically civil from immunizes good faith, in connec- omissions, undertaken acts placing child in a foster home. tion with alleged under claims similar Mikaela R.'s action against B., and, as in Kara same defendants summary judgment. The moved for the defendants (1) *7 concluding that the motion, denied the trial court qualified county immu- not entitled defendants were they nity § claims because had Mikaela R.'s 1983 from duty protect her while she constitutional a known (2) jury could home; and a reasonable in the Smit was presented, that the defendants the evidence find, on duty.1 were Two additional issues had violated that issue in terms of Both courts framed the constitutional with "deliberate indifference" to whether the defendants acted Taylor v. Ledbet rights, notably the based on plaintiffs' cases— (11th 1987), denied, ter, 791, 794 Cir. cert. 489 U.S. 818 F.2d government liability that a official's (1989) indicating — duty depends to exercise an affirmative failing under 1983 for § (1) [was] that "the failure to act a substantial showing on a constitutiоnally factor to the violation of a leading protected (2) interest" and the defendants liberty property "displayed] the plaintiffs rights. deliberate indifference" to below, government As will be seen while we agree may subject be under 1983 for professionals liability actions § or inaction in a violation of the constitu- resulting plaintiffs' rights, tional we do not the standard for agree proper their in that is assessing regard conduct one of deliberate indifference. (1) be Smit could R.'s case: whether
raised Mikaela subjecting actor," her to liabil- a "state thus considered ity § manner the under in the same as (2) "governmental" whether she was defendants; and agent department of the so an or a servant as to render vicariously county negligence the liable for her toward the children. The trial court that she was ruled both agent county. Finally, actor an state county court held that defendants were not § immune from suit under 893.80, STATS. Issues
II. and Decision parties' following The briefs raise the issues with (1) respect county § to the 1983 claims: whether summary judgment defendants are entitled to dis- (a) missing they the claims because are entitled to (b) qualified immunity alternatively, or, there no they evidence that in fact violated the children's consti- (2) rights; tutional and whether Smit a state actor subject § to the 1983 claims in the same manner (1)
county defendants. state-law issues are: county govern- whether the defendants are entitled to immunity mental , under 893.80, Stats. because their respect actions with to the children the foster home "discretionary," were as that term is defined and inter- (2) preted agent in the law; and whether Smit was an department.2 *8 county We conclude that the defendants are not qualified immunity entitled to § from the 1983 claims applicable legal and that under whether, standards, 2Because we conclude that the county are defendants immune from the plaintiffs' state-law tort claims under 893.80, STATS., we need not whether, consider § as they argue, they are also immune under the "good-faith" immunity provi sions of § 895.485, Stats.
32 closely rights issue so they is an the children's violated motive intent and the defendants' with intertwined inappropriate for reso- to be factual issues as and other judgment. is summary Smit also conclude We lution on liability subject under her to as to a state actor so not § claims, we hold the state-law 1983. As to discretionary-act county are entitled defendants immunity § that Smit 893.80, under STATS., county agent of law. as a matter an insofar in Kara B. reverse the order
We therefore summary judg- granted for the defendants' motion as it dismissing § it insofar claims and affirm dismissing ment the 1983 granted judgment the state-law as it it the order insofar as R., claims. In Mikaela we affirm judgment summary the defendants' motion for denied insofar as it denied on the 1983 claims and reverse on the state-law claims. We also reverse motion ruling that was both a state Mikaela R. court's Smit county agent, cases to actor and a and we remand both proceedings the trial courts for further consistent with opinion. this
III. of Review Scope parties dispute reviewing that, do not employ grant summary judgment, or denial of we analysis trial and that our review is same as the court 719, Peck, de novo. 177 Wis. 2d Ollhoff (Ct. 1993); App. 323, Milwaukee Partners N.W.2d Engineers, Inc., 355, 361, Wis. 2d v. Collins 169 1992). (Ct. App. Summary judgment N.W.2d appropriate genuine in cases where there is no issue moving party and the has established of material fact judgment his or entitlement as a matter of law. her *9 Co., 293, v. Indent. 119 Wis. 2d Germanotta National (Ct. 1984). App. not 296, 733, N.W.2d 735 We do 349 summary judgment proceed- decide of fact in issues " ing, process nor is the cut to a trial.'" a 'short avoid 511, State Bank Crosse v. 128 2d Elsen, 508, La Wis. of (Ct. 1986) App. (quoted 916, 383 N.W.2d 917-18 source omitted). summary judgment methodology Indeed, the developed prevent by deposi- trial or affidavit equally recognized remedy [t]he tion. It Id. is well that" summary judgment many of does not lend itself to types especially basically cases, those are fac- which depend large upon testimony." tual to a extent oral Brown, 656, Schandelmeier v. 37 658, Wis. 2d 155 (1968). Accordingly, 659, N.W.2d 660 when there " any which, evidence under view, reasonable 'will support support either or an admit of inference in or in party, jury denial of a claim of either it is for the proper draw the inference for the court to permissible determine which of two or more inferences prevail.'" Foryan should v. Co., Firemen's Fund Ins. (1965) Wis. 133, 138, 2d (quoted N.W.2d omitted). source
IV. Discussion A. The Immunity 1983 Claims: Qualified qualified immunity protects public doctrine employees litigation" "harassing officials and from rendering performance them immune from suit discretionary of their functions insofar as their conduct " 'clearly does not statutory violate the established'" rights person. constitutional of another Barnhill Regents, Board Wis. 2d 406, 479 N.W.2d (1992) omitted). (quoted 917, 921 source *10 by quali- bemay protected official a public Whether legal the objective turns on immunity fied of the action, light the assessed of reasonableness the time at established clearly rules that were legal clearly not If the law was was taken. the action it the action when of subject on established be held to official cannot occurred, then the public was unlawful. that the conduct know or anticipate estab- hand, clearly if the law was the other On should fail lished, defense immunity then official reasonably public because a competent that the conduct was or was should have known lawful. be suffi-
. . . "The contours of the
must
right
clear
that
a reasonable
official would
ciently
[or she]
that what he
is
violates
doing
understand
that an official action is
say
that
This is not to
right.
unless the
by qualified immunity
very
protected
action in
has
been held unlaw-
question
previously
ful;
it
to
that in the
of pre-existing
but
say
light
law the unlawfulness must be apparent."
(emphasis omitted;
407-08, 479
Id. at
N.W.2d at 921-22
omitted).
quoted
omitted;
source
citations
particu-
qualified immunity
Whether
attaches
a
question
that we decide without
lar case is a
of law
reasoning
406,
deference to the
of the trial court. Id. at
plaintiff
the burden
ment is too hand, the immunity. "clearly On the other qualified not have to corre- specifically established law" does situation. spond every present with facet of the Rather, suffi- established law" must be "clearly with official ciently analogous provide public his or lawfulness of her conduct. guidance Id. at at 922. N.W.2d The Kara B. court reasoned as follows in conclud- ing qualified the defendants were entitled to immunity: government duty protect has a an private "spe- individual from acts violence where *11 relationship" government cial exists between the "clearly the individual, but there is no law established" recognizing relationship govern- such a between the ment and a foster child.3 holding, placed principal
In so
the court
reliance
(7th
1989),
on
Bobbitt,
Doe v.
Kara placed not in a in that case had been the child because in the home of a relative —an foster home but licensed agree, We and our the abuse occurred.5 aunt —-when reasoning in court's is bolstered same conclusion (7th Morgan, F.2d 846 Cir. case, K.H. v. a later 1990), immunity rejected qualified defense where it placed interposed by who had state welfare workers plaintiff in foster homes where the infant one or more severely abused. she was case, the defendants in this
Like the trial court and
holding that, at
defendants read Bobbitt as
the K.H.
early
clearly established
1984,
a child had no
least
against
right
claimed
them for their
to seek redress
rights
process
in con-
her,
due
violation of
substantive
placement
in a
and maintenance
with her
nection
argument,
rejected the
K.H. court
home. The
foster
that,
only one case
as of
The Bobbitt court stated
City Dep't
existed —Doe v. New York
right
held that such a
(2d
1981),
denied,
cert.
464 U.S.
Servs.,
F.2d 134
Cir.
Social
an
(1983),
"depended upon
the Bobbitt court felt
a case
placement
incarceration and
between
absolutely
analogy
novel
(7th
Bobbitt,
511-12
Cir.
881 F.2d
in a foster home." Doe
*12
(1990).
1989),
denied,
cert.
6The defendants also suggest Supreme Court's in DeShaney County decision Social Winnebago Dep't of Servs., (1989), U.S. dismissal of the actions. supports Bobbitt, disagree. DeShaney, We like did not involve placement home; a plaintiff in foster in DeShaney was abused after the agency him parent. returned to his natural cases,
In K.H. the
court saw material difference between
like DeShaney, "where the question was whether the Constitu-
tion entitles a child to governmental protection against physical
by
abuse
his parents
or
private persons
other
not acting
under the direction of the state" and cases—such as the ones
under consideration here —where the state removes a child
from parental custody
places
him or
her
a foster home. In
latter,
court,
said the K.H.
the state
duty
assumes a
not to
act so as to deprive the child of
his
her constitutional rights.
K.H.,
For similar these cases are distinguishable from 892, 921-22, Jones County, v. Dane 195 Wis. 2d 537 N.W.2d (Ct. 1995), where App. county a child whom had returned to his family home shot seriously wounded one of his par- ents. We concluded that because the child had been returned to his parents and was no longer in custodial with relationship county, there no such "special relationship" between the county and either child or the wounded parent, as would support a 1983 substantive due process claim. cases,
In these as we note elsewhere in this opinion, only were orders in effect granting temporary custody ofKara B. and Mikaela R. to County Dane but both children were in the custodial care of a county-licensed foster home at the time the And, below, assaults occurred. maybe seen involving cases placements foster-home similar R.'s, to Kara B.'s and Mikaela *13 opinion on the K.H. is instructive in The court's immunity for it qualified well, issue the merits of preced- dealing placements and made in 1986 was with placement ing years in the Kara B.'s initial —before qualified Recognizing that the defendants' Smit home. right "only specific pierced immunity if the be could they they clearly time at the established violated against decided the issue it," the K.H. court violated added). (emphasis Thus, while 849,850 Id. at them. (after opinion Kara B. had in K.H. was issued in 1990 home), implic- recognized, both left the Smit court right itly explicitly, plaintiff child's government have act in a manner consistent officials rights clearly estab- with her constitutional had been placement her lished at the time of in 1986.7 holding, Youngberg In so the K.H. court discussed (1982), Supreme Romeo, 307,324 where the U.S. person involuntarily to a Court rilled that a committed process state mental institution has substantive due right safety" during his or her to "reasonable care and According appeals: the court of confinement. upheld profes-
courts have 1983 claims when a government sional's action or inaction results in the deprivation constitutional of a child in foster care. rights 7The court stated: said, immunity right issue is whether this be on the basis can Servs.], City Youngberg Dep't [ and Doe v. New York Social clearly Youngberg been in 1986. It be. made have established can custody clear, duty state the basic of the to children state corollary duty
Doe added obvious could not be avoided by substituting private public for custodians. No case held contrary and was no to think that Doe not be there reason would followed this circuit. K.H., F.2d at 852. *14 clear, the . . . made before
Youngberg years abusing K.H. with an defendants in this case placed in that Constitution parent foster the the state officials to take requires responsible steps to children in state institutions from deteri- prevent No case orating physically or .... psychologically circuit, however, authoritative had held within this that the state had a to comparable obligation pro- tect children from we their own and now parents, know the not exist in constitu- obligation does tional law .... Ours is the intermediate case in which the state child a places the foster private . home . . and fails to take to the child steps prevent from a deteriorating physically as psychologically result of.. . mistreatment....
K.H.,
Another case
the existence of such a
right
appropriate
at times
the
instant cases is Doe v.
(2d
City Dep't
Servs.,
New York
Social
trial instructed the applicable standard conduct defendants —an opinion. issue we discuss in detail elsewhere in this For present purposes, early that, Doe indicates as the government charged employees mid-1970's, with the *15 placement supervision and of children in foster homes could be held liable for under 1983 actions or inaction resulting in the violation of the children's constitu- rights. tional Id. at 145. Appeals
The Court of for the Eleventh Circuit Taylor came to a similar сonclusion in Ledbetter, v. (11th 1987), F.2d 791 (1989). Cir. cert. denied, U.S. 1065 Taylor, placed In the child, who had been in a responsible foster home in 1982, sued the officials for placement supervision her physically after she was by operator alleged abused the her foster home. She "deliberately that the officials had been indifferent to deciding place plac her welfare when her, and after ing her, Analogizing in the foster home." Id. at 793. foster child's situation to that of the institutionalized Youngberg prisoner in individual and the in Estelle v. examined aby psychiatrist, who concluded that she had been sexually involved with her foster father for some time and rec- ommended her immediate removal from the household. No such steps were taken by the agencies and Anna's placement contin- ued. Finally, in July mother, by Anna's foster then involved in divorce told proceedings, agencies that she had found her husband in and Anna bed together. Anna and other children in the home were removed shortly thereafter. (1976),9 that "a held the court
Gamble, 429 U.S. involuntarily placed a situa- is in in a foster home child prisoner penal analogous institution a a tion so facility [patient] in a mental health confined a may bring 1983 action for section the foster child Taylor, rights." fourteenth amendment violation of F.2d at 797. Dep't Finally, L. New Mexico in Yvonne (10th Cir. 883, 885, 892-93 Servs., 959 F.2d
Human 1992), Taylor, citing Youngberg, Doe and court, "clearly early August 1985, the law was as held that home] [plaсed in a foster . . . that a child established bodily right protected from be had a constitutional parties private . ..." harm from third plaintiffs in these cases events of which complain placement the Smit home and the —their county subsequent monitoring placement of that 28, 1989, March when defendants —occurred between through home, Kara B. Mikaela entered continued placement R.'s in June and ended on December during 18, 1990. We are satisfied that at and those "clearly times the established law" was—and is—that *16 involuntarily parents' foster child taken from his or her temporarily custody placed gov- home and in the the of placement ernment for in a licensed foster home10 has 9 Estelle, In the a Supreme Court held that order to state for of Eighth claim violation the Amendment's prohibition and against punishment, cruel unusual a must prisoner allege facts showing part "deliberate indifference" on the of state Gamble, serious medical needs. Estelle v. to actors the inmate's (1976). 97, 104 429 U.S. dispositional order in Kara B.'s CHIPS case ordered "[t]emporary custody non-secure the permit [in department] placement... case, in foster care ...." In Mikaela R.'s the court process right, due actionable under substantive physical safety § 1983, to and while U.S.C. emotional placement that, result, such and as a the defendants' qualified immunity defense must fail. Scope Duty
B.
the
Constitutional
of Defendants'
diverge
sсope
The cases
on
of
constitutional
duty
by government agencies
professional
owed
personnel
persons actually
constructively
in the
government's custody.
prison
In
situation,
Estelle
(1976),
v. Gamble, 429
U.S.
and,
104-05
more
recently,
(1994),
Brennan,
Farmer v.
11 1n
the court held that
prison
official
Eighth
cannot be found liable under the
Amend-
denying
ment for
an inmate humane conditions of confinement
unless
disregards
the official knows
an excessive risk to
safety;
inmate health or
the official must
be
both
aware of facts
from which the inference could be drawn that a substantial risk of
exists,
serious harm
and he must also draw the inference.
(1994)
Brennan,
Farmer v.
114 S.Ct.
(emphasis
added).
*17
43
already
we havе
circuits, in cases
Two federal
Eighth
applied
Estelle/Farmer
to,
referred
have
some
test —or
deliberate-indifference
Amendment
thing very
by
brought
children
to
actions
close
it—to
physical
involun
while
abuse
sexual
who suffered
City Dep't
tarily
York
v.
In Doe New
in foster care.
of
recognized the difference
Servs.,
the court
Social
government
the close control exercised
between
supervision
prisoners
exercised
and the broader
over
autonomy
parents,
need to retain
over foster
who
implemented
raising
it
a
nonetheless,
children;
knowledge trigger
subjective
required
"some
test
ing
duty
part of the
an
to act" on the
affirmative
may
under
defendants.
"Defendants
be held liable
they
if
.
.
indifference
a
1983
. exhibited deliberate
[or]
injury
a known risk .
. and their failure to
known
perform
.
duty
injury
or act to
the risk
ameliorate
proximate
plaintiffs deprivation
cause of
rights
City Dep't
Servs.,
v.
...." Doe New York
Social
(2d
1981),
denied,
649 F.2d
Cir.
cert.
U.S.
(1983).
Taylor
adopted
court
test
Doe
specifically analogizing
verbatim,
between the foster
pro
his
child's situation —and
or her substantive due
rights
prison
Taylor
cess
that of a
inmate.
v.
—and
(11th
1987),
Ledbetter, 818 F.2d
Cir.
cert.
(1989).
denied,
"only requires that the courts make certain that professional judgment in fact It was exercised. is for the courts appropriate which of specify several professionally choices should acceptable have been made. ..."
. . . be [L]iability may imposed only when the by decision the professional is such a substantial departure from accepted professional judgment, practice, standards as to demonstrate that the person responsible actually did not the deci- base on such sion a judgment. omitted).13
Id. at
321,
323 (quoted source
Other courts
have followed
Youngberg
actions
commit-
persons
See,
ted to mental hospitals.
Good Will
e.g., Society for
12
Estelle,
Like
began
the case
claim
with a
under the cruel-
and-unusual-punishment provisions of the Eighth Amendment.
Both
Court,
the court of appeals
Supreme
however,
and the
felt
that the rights at stake were substantive Fourteenth Amend
ment
process rights,
due
appeals proceeded
and the
on that
312-13,
basis.
Youngberg,
U.S. at
314.
13The
noted in
Court
this regard that:
damages against
In an
professional
action for
in his individual
capacity, however,
professional
will not be
if
liable
he was
satisfy
professional
unable to
his normal
standards because of
F.2d
Cuomo,
Children, Inc.
to Retarded.
(2d
1990);
Strackhouse, 920 F.2d
Cir.
Shaw v.
(3d
1990);
Porter, 36 F.3d
Estate
Cir.
1135,1139
1994).
(7th Cir.
appellate
that the
has decided
one
court
At least
against
applicable
Youngherg
1983 action
to a
test
employees
agency
professional
had
who
state
placed
plaintiff
home where
in a foster
children
*19
sexually
they
In
v. New Mexico
YvonneL.
were
abused.
(10th
1992),
Dep't
Cir.
Servs.,
fessional standard is foster judgment "entitled involuntarily likе committed are patients, to more considerate treatment and conditions" than [citing Youngherg, 321-22]. 457 U.S. at criminals children, These are taken the state from young for not the parents their reasons that are generally fault the children themselves.
Id. at 894. Youngherg are L.
We satisfied that and Yvonne proper state standard to evaluate Four- against teenth Amendment claims of foster children such, constraints; situation, budgetary good-faith immunity liability. bar would Youngberg, U.S. at 323.
agency Certainly professionals. children in foster care occupy position significantly from different that of Supreme recog- prisoners. Youngberg, In Court persons involuntarily nized that committed to mental possess greater rights prisoners, institutions than care, we believe that children in need foster who society wrong punish- have done no and deserve no protection ment, are entitled to constitutional to at degree persons least afforded to institutionalized through process. the civil commitment permissive
The more Estelle /Farmer deliberate- indifference test would not serve that distinction for it would force foster children to endure constitutional deprivations showing absent a of deliberate indiffer- part ence on the of their caretakers. The more strict professional judgment standard, on the other hand, recognizes only placed custody that children in the through of the state no fault of their own are situated similarly patients far more to institutionalized mental ('Youngberg) than convicted criminals (Estelle ) *20 inappropri- / Farmer but also that it would be ate to hold the children's caretakers liable for deprivations they constitutional in situations where professional judgment had determining exercised in respect the best course of conduct with to the children. conclude, We therefore, that the standard to be applied professional to assess the defendants' conduct plaintiffs objective toward these is an test based on compliance recognized applicable their with standards professions. subjective to their predicated It is not a standard knowledge
on actual
risk,
of harm or
nor is
by
person
which determina-
standard
it a reasonable
negligence
made.14
and recklessness are
tions of
apply
is one that
we
in this case
The standard
"only
by
profes-
liability
imposes
the decision
the
when
accepted
departure
a substantial
from
sional
such
judgment,
professional
practice, or
as to
standards
actually
person responsible
did
the
that
demonstrate
judgment." Youngberg,
base the decision on such a
not
specify
to
which of
U.S. at
It is
for courts
323.
professionally acceptable
have
choices should
several
optimal
conduct as
made, whether
course of
been
the
experts
followed,
whether
was
but
dеtermined
some
Society
judgment
professional
in
was exercised.
fact
Children,
In these both trial courts tested the sum- mary judgment using /Farmer motions Estelle court, Kara deliberate-indifference test. The B. after ruling qualified immu- defendants were entitled they nity, held in were entitled to the alternative summary plaintiffs' judgment any event because they proofs on the motion to establish that "had failed knowledge deliberately failed actual abuse or 14Indeed, where, here, it is well settled the law that claims party *21 will deprivation process, negligence due mere Williams, Daniels support 1983 action. U.S. (1986). 329, 330-31 occurring home." The in the Smit foster learn what was employing "actual knowl- court, Mikaela R. a similar proofs edge" were concluded that standard, for sufficient to raise an issue trial. inappropriate standard, said,
That as we have is equally summary judgment such as cases this. And inappropriate perhaps First, on this most record. and significant, any expert the record is barren of evidence bearing professional on the defendants' exercise of judgment placing maintaining and the children in the Smit home. Second, above, as we have noted sum- mary judgment appropriate only remedy anis in cases disputes disputed where no factual inferences from —or undisputed exist; it is not cut short to avoid a facts— procedure factually trial and the does not lend to itself complex presented cases. "If the material on the motion subject conflicting interpretations is people might or reasonable significance, its
differ it would be improper grant summary judgment." Coleman v. Corp., Outboard Marine 565, 571, Wis. 2d 634(1979). N.W.2d
The record in these actions is voluminous, exceed- ing pages, 2,000 although progressed the cases have only pretrial stage. empha- to the motion And the facts parties' arguments sized in the on the claimed grounded constitutional violations are on extensive wide-ranging depositions, reports facts found in investigations, evaluations, conversations and meet- ings involving thirty including more than individuals — social workers, consultants, the children's relatives, attorneys, guardians, psychiatrists, teachers, ther- apists employees and various officials department going of human services—all to what the county respect defendants did or did not do with to the placement children's and residence in the Smit home. *22 Summary judgment inappropriate vehicle for is an determining plaintiffs' claims. constitutional the Kara B. court conclude, therefore,
We erroneously granted for sum- the defendants' motions mary judgment dismissing plaintiffs' § claims, properly and that the Mikaela R. court denied motions. Operator §
C. The 1983 Claims: Foster Home as State Actor complaint alleges Mikaela R.'s amended that Smit acting government Depart- on behalf of the —the operating ment of Social Services—in home, the foster subject liability § and was thus under 1983 in the county same as the defendants. The trial court manner agreed, reasoning power place that the state's chil- regulate dren in foster homes and to the homes makes operators agents foster home of the state as a matter of law. plaintiff seeking
A in a 1983 action redress for right allege violation of a constitutional must that the acting defendant was under color of state law —that he Lugar or she was a state actor.15 Co., v. Edmondson Oil (1982). requirement 457 U.S. The is intended imposing responsibility government avoid on the for Collegiate conduct it cannot control. National Athletic (1988). Tarkanian, Ass'n v. prin 179, 191 488 U.S. cipal inquiry challenged is whether conduct is
15In this analysis, the "state" is synonymous with "gov case, ernment" —in this county Department of Social Services and its agents, operating under a variety of state and county laws and regulations. Lugar,
"fairly at 457 U.S. attributable to State." 937. making
In havе assessment, federal courts adopted three-part recently test most described *23 (6th 1992). Wolotsky Huhn, F.2d 1331, 1335 Cir. "public element, test, The first called the asks function" private party exercising powers whether the was that traditionally exclusively gov are and reserved to the compulsion" The second, test, power" ernment. the "state asks exercising whether the state is such "coercive providing "significant encouragement, such either private covert," overt or that in law the actor's choice must be deemed to be that of third, the state. The "symbiotic relationship" test, or "nexus" asks whether sufficiently there is government such close nexus between challenged private and the action that it may fairly government. be treated that of the
The trial court ruled that Smit was a actor state solely under all three tests, on of the basis the state's power place regulate in children foster care and to foster homes.16 respect public
With to the test, function Mikaela R. argues concluding that the trial court was correct in that "the test ... had been met because the is the state only party involuntarily who can remove a from child agree its natural home." We with the defendants, how- (1) According to the court: Smit was engaged public function because the government "responsible origi was for the (2) nal placement and care"; supervision [Mikaela R.'s] foster cоmpulsion state test met by authority the state's secure compliance by foster homes with regulatory require (3) ments; the "plethora" of government regulations foster homes "is so pervasive as to amount to a symbiotic relationship." misapplied the trial court
ever, that
the test. Its correct
power
government
is
of the
focus not
but the activi
engaged
parent;
is,
ties
the foster
that
whether
parent
exercising powers
the foster
is
that are tradi
tionally reserved for the state. "The care of foster
traditionally
prerogative
children
the exclusive
County Dep't
of the State." Milburn v. Anne Arundel
(4th Cir.),
Servs.,
Social
F.2d
denied,
cert.
(1989).
As to the
test, Mikaela R.
power
the state's exercise of its
to remove her from her
family
place
coupled
her in
home,
a foster
with the
"many regulations
government imposes
on the fos
parent,"
ter
"coerc[ion]"
constitute such state
Smit's own conduct must as a matter of law be "deemed
[government]." Wolotsky,
to be that of the
See
960 F.2d
Again,
disagree.
Skipski,
at 1335.
we
In Lintz v.
807 F.
(W.D.
Supp.
1992),
1299, 1306
Mich.
aff'd,
17We
by
are not bound
decisions of federal
trial courts.
Co.,
Bldgs. Royal
v.
573,
Indem.
145 Wis. 2d
Professional Office
(Ct.
580-81,
1988).
427,
427 N.W.2d
429-30
App.
However, Lintz
(W.D.
v. Skipski,
807 F. Supp.
1992),
Mich.
aff'd, 25
(6th Cir.),
F.3d 304
denied,
(1994),
cert.
Additionally, defendants point out that many of the Wis- consin regulations foster governing homes are general in scope, dealing, for example, physical with requirements for the size, living-space type of heating systems, etc. WlS. homes — Adm. CODE HSS § 56.05. And many may that be said to relate to agree R. also with defendants that Mikaela We Smit actor not established that state under has relationship argues symbiotic test. She that state regulations, "when and administrative ana- statutes conjunction lyzed parts with the other two of the symbiotic relationship rise[] test, to the level of a parent. . . we First, between the state and the foster parts that other have concluded two of the test have purposes Second, of not been met. for the color-of-state- requirement regulation § 1983, law of "the fact that of [actor] not was extensive detailed did itself convert its action into that of the State." Milburn, 871 (citing Metropolitan Co., F.2d at 477 Jackson Edison (1974)). Wolotsky, 419 U.S. See also 960 F.2d (the entity subject at 1335 mere fact that an to state action). regulation not does render its activities state Finally, we note the Lintz court's remark it any of was "unaware case has which held that foster parents juris- are state Indeed, actors. courts in other dictions have rеfused to attribute the actions foster parents Supp. Lintz, the state." F. at 1306. any authority Mikaela R. has offered to the con- See, the care of foster only very children are generally stated. 56.07, HSS e.g., entitled children," "Care of foster which states care," that foster children are to receive "humane and nurturing "respectU," and "room to and the grow personal maximum and physical freedom appropriate child's and matur- age Other ity." provisions require children under five years receive age physical every examinations twelve months and that children may meals, not be punished by depriving them of 56.07(4)(b) (5)(f). mail and family visits. Section HSS We *25 with the agree that defendants such generally "regula- worded fairly tions" cannot be said constitute the of type extensive control over a parent's foster day-to-day parenting decisions that necessary would be parent to convert the a state into actor under tests discussed herein.
53 principal all the trary; discussed cases indeed, the together appeals, parties to Milburn these Lintz— Supp. County 874, 775 F. Fairfax, v. with of Pfoltzer 1991)18 (E.D. parents are not that foster 891 Va. —hold purposes § action. of a 1983 actors for state persuaded a us Smit is has not Mikaela R. liability purposes under of 1983 state actor for accepted tests. Immunity" "Discretionary
D. The State-Law Claims:
893.80(4),
may
states
no action
Section
Stats.,
public agenciеs
employees
against
or
be maintained
legislative, quasi-legis-
"for acts
in the exercise of
done
judicial
quasi-judicial
or
functions."
lative,
statutory
"quasi-
"quasi-legislative" acts and
terms
judicial"
recognized
synonymous
have been
as
acts
"
"discretionary"
involving
exer-
with
acts—those
'the
judgment.'"
of
cise
discretion
Harkness
Palmyra-Eagle
Dist.,
567, 574-75,
Sch.
Wis. 2d
460
(Ct.
1990).
App.
N.W.2d
public
Thus,
...
officer
is immune fromsuit where
complained
"discretionary,"
the act or acts
of are
opposed merely "ministerial,"
and the
have
terms
applied
been discussedand
in several cases.
Generally, discretionary
quasi-legislative
or
quasi-judicial
act "involvesthe exercise discre-
Pfoltzer,
court,
Milburn v. Anne Arundel
In
citing
(4th
Servs.,
County Dep't
Social
cert.
Cir.),
871 F.2d
denied,
(1989),
The of such as those 893.80(4), §in found is to ensure that courts are Stats., upon pass judgment policy not callеd on decisions govern- made members coordinate branches ment in the context of actions, tort because such "' ] inadequate testing actions an crucible for "furnishf political, the merits of social, or economic decisions."'" County, Gordon v. Milwaukee 62, 66, 125 Wis. 2d (Ct. 1985) App. (quoted N.W.2d sources omitted). county
The Kara B. court concluded that immunity defendants were entitled to under the stat- they ute and the R. Mikaela court ruled were not. Kara argues holding B. the trial court erred so because, view, in her acts, defendants' while discre- tionary in nature, were made decisions at "operational "planning level," rather than level," "govern- and, such, as did not involve the exercise of immunity mental" discretion to which attaches. As authority proposition, points for the she to Jablonski (9th 1983), States, United 712 F.2d 391 Cir. and a refer- ence Jablonski in Gordon, 125 2d at Wis. only at N.W.2d 807. The reference in Gordon was passing, adopt "opera- however. We did not tional/planning" distinction in Gordon-, nor did we apply arriving it to the of the facts case in at our deci- may referred be we said As much
sion.
opinion
in Gordon.
course
our
in the
Jablonski
precedential
no
value.
has
reference
*27
that
we
held
Gordon,
of
there
to
merits
As
the
psychiatric
performance
examination
of "a
while
discretionary,
used
diagnosis"
"the discretion
governmental."
medical,
Gordon,
professional,
In
recent
at 806.
a more
67,
2d at
370 N.W.2d
125 Wis.
County,
808, 818
161
2dWis.
case, Stann v. Waukesha
(Ct.
1991),
App.
775,
we distin
n.3,
779
468 N.W.2d
&
reaching
guished
similar
and two other cases
Gordon
"[o]nly
stating
decisions
three Wisconsin
results,
"govern
recognized ...
a distinction" between
have
nongovernmental
discretion and
mental" and
allegations
negligence
involved
of
"each of these cases
regarding
in
medical decisions." As we concluded
as no
Stann,
facts,
are
to their
"These cases
restricted
applies
exception
any other
decision
this
Wisconsin
setting."
City
Janesville,
Id.
174
See also Linville v.
of
(Ct. App.
465,
571, 584-85,
Wis. 2d
497 N.W.2d
471
(1994).19
1993),
705,
184 Wis. 2d
516
427
aff'd,
N.W.2d
agree
We
trial
this case
with
Kara B.
court that
v.
422
Olson,
701,
is much closer to C.L.
143
2dWis.
(1988),
supreme
upheld
614
N.W.2d
where the
court
immunity
parole
negligence of a
officer sued for
19The concurring/dissenting judge, apparently recognizing
818,
808,
that Stann v.
County,
Waukesha
161 Wis. 2d
468
(Ct.
775,
1991),
N.W.2d
779
Linville
Janes
App.
City
v.
(Ct.
ville,
571, 584-85,
465,
174 Wis. 2d
App.
497 N.W.2d
1993),
705,
(1994),
aff'd, 184 Wis. 2d
Finally, argument plaintiff of the parole that the allegedly negligent judgment discretion, involve but did not agent governmental *28 in akin to considered judgment professional of the judgment parole We Scarpaci. disagree. as the of discretionary imposition officer insofar and of are concerned rules conditions parole a more decision-making compara- involves process an ble to a medical examiner's decision to perform in found to constitute which autopsy, Scarpaci discretion, exer- judgment than to governmental cised in the actual of the performance autopsy, of which was found to be from the doctrine excepted an immunity. autopsy, Like the decision to perform a the discretion of a officer required parole requires the evaluation and of law to subjective application the facts in an individual case. While the presented decisions to officer is the parole given flexibility within be made a the framework regarding parolee, which that discretion is to be exercised is . . . regu- Thus, lated while [by code]. administrative a professional judgment implicated parole decision, agent's generally, imposi- regarding and, tion of rules and conditions of parole of regarding grant permission specifically, discretion vehicle, the evalu- a involves operate regulated within a public policies ation of and consti- fundamentally framework consequently of tutes discretion nature. governmental (citations 724-25, Id. at at omitted; N.W.2d omitted). footnote quoted length
We have at from because we Olson operate think similar considerations here. Like the parole agents employees officer, and of the Dane County Department of Human act within Services they framework of laws and administrative rules when place regulate children in foster care and and monitor discretionary foster homes. The determinations and only decisions made within that framework involve not variety profes- the consideration and evaluation of a sional considerations also, but Olson, as in "the public policies regulated evaluation of within a framework." types
We conclude that the of decisions and deter- being challenged minations in the cases before relating they employees do activities us— agents public agency charged of a with administer- ing programs foster care and related established regulated type govern- law—are well within immunity mental discretion to which attaches under Wisconsin law. We therefore conclude that the Kara B. properly granted triаl court the defendants' motion for *29 summary judgment on that issue and that the Mikaela denying R. court erred in the motion. Operator as Home Claims: Foster The State-Law
E. County Agent argued that Smit was trial court R. to the Mikaela county County agent would be that the an of Dane so The trial court under state law. for her torts liable (1) following agreed in a factors: the basis of the on parents departmental policy statement, foster written (2) county "agents"; licensed Smit identified as are through parent home and "controlled" the as a foster (3) "accepted" regulations; a foster- Smit visits and took in foster children. home license department's policy deals with statement "involving agents investigations alleged of child abuse " county," purposes this that, of the and states [f]or family policy, 'agent county' foster an of the includes... added.) policy (Emphasis The intent of the members." provide adequate protec- statement is two-fold: "to first alleged tion for children prove to be abused . . . but also to investigation which unbiased, an coordinated duplication of contacts with minimizes and agree number parties." involved We the defendants that with policy operates only very statement in a narrow county's ability area: to ensure the to conduct unbiased investigations alleged involving county child abuse agents, required by Accordingly, law. state county policy has defined term in statement as including persons all whose circumstances or situa- might county tions make it difficult for the itself to investigation.20 conduct an unbiased We do not believe families, In addition to foster others along mentioned — permanent with county employees the "definition" agents —in staff, are "group day staff, home treatment or others in circum stances where 'there is a substantial that the probability county agency ... would not conduct an unbiased investigation.'" *30 par- policy intended define foster statement was agents county any other
ents as of the for and all purposes particularly purposes for of vicari- —and county liability, argued ous as is here. briefly
The other factors the trial listed court support agent of its conclusion that Smit was an of the county county's regulator relate to the function as a may person and licensor of foster homes. Whether a be purposes considered a "servant" for of vicarious liabil- ity, analysis however, involves the determination and going of several" 'matters fact'" to whether he or she " legal person meets the employed definition of a servant as 'a perform services in the affairs of another respect physical and who with to the conduct in the performance subject of the services is to the other's right City control or to control.'" Franklin, Arsand v. (1978) 83 n.4, Wis. 2d 264 N.W.2d (1958)). (quoting Agency (Second) Restatement Among these factual matters аre: the extent of the "master's" control "over work"; the details of the employee engaged occupa- whether the "is in a distinct tion or usually business"; whether the work is done employer's "by specialist under direction or with- supervision"; employer supplies out whether the place instrumentalities and the work is work; and whether part employer's "regular of the business." Id.
It
points
true,
as Mikaela R.
out,
agency
particularly,
or, more
whether one is the "ser-
—
purposes
vant" of
liability
another for
of vicarious
—is
generally
question
jury.
considered a
of fact for the
put
Here, however, Mikaela R. has
forth no cases or
authority suggesting
other
parents
that foster
are "ser-
vants" under the Arscmci/RESTATEMENT
formula. More
importantly,
authority appears
all
go
the other
County,
Sayers
472 N.W.2d
way.
Beltrami
See
*31
(Minn.
grounds, 481 N.W.2d
App.),
other
rev'd on
Ct.
(Minn.
County,
1992);
N.W.2d
322
Steele
Kern v.
547
(Minn. 1982);
Robinson, 409 S.E.2d
v.
Simmons
187
(S.C. 1991); Stanley
Indus., Inc., 630 A.2d
v. State
381
(N.J.
1993);
Super.
Blanca C.
Div.
Ct. Law
1188
(N.Y. App. Div.
County
N.Y.S.2d 747
Nassau, 480
1985).
(N.Y.
1984),
In most
Finally, requires fos- 48.627, STATS., we note that carry liability "for acts or ter homes to insurance [the] placed affecting in a child who is omissions Department home," and further authorizes purchase for the Human Services to such insurance 48.627(2)(a) (2)(c). agree foster homes. Section We attorney general, in 1986 with Wisconsin's who noted a opinion subject legislation "[t]his on a related unnecessary parents would have been if foster were (1986). agents." Op. Atty. state Gen. that, law,
We conclude as a matter of was not Smit agent county county an of the liable so to make negligent performance for acts in the of her services as parent. a foster By Judgments part; affirmed in Court. — part pro-
reversed in and cause remanded for further ceedings opinion. consistent with this dissenting (concurring part; J. in
SUNDBY, part). often Foster children suffer abuse ten times more general population.1 than children in the When places special care, a child it take state in foster must place Judge care that it does not metaphorical the child in Posner's pit. DeVito, snake See F.2d Bowers v. (7th 1982).2 616, 618 Cir. It therefore assumes an duty protect duty compelled affirmative child; by the Due Dee, Process Clause. Terrence J. Foster Liability Parent under Section 1983: Foster Parents' Liability Children, as State Actors Abuse to Foster for (1991). L.Q. Wash. U. 1207 & n.39 The defen- claim, dant social however, workers if a that even liberty foster child has constitutional interest his *32 safety placed by or her state, when in foster care they qualified immunity are entitled to because that right "clearly was not established" in 1989 and 1990 placed when Kara B. and Mikaela R. were and main- join my tained in the foster care of Roxanne Smit. I colleagues rejecting that claim. part company they
I from them, however, when parent conclude that the foster is not liable under § acting U.S.C. 1983 because she was not under color of par- state law when she acted as a state-licensed foster majority's holding ent. I also dissent from the that the Foster Parent Liability under Section Dee, Terrence J. 1983: Foster Parents' Liability as State Actors to Abuse Fos for Children, ter (1991) L.Q. 1201, 1201 Wash. U. (citing Michael Havens: The Case B. Mushlin, Constitutional Protec Unsafe for tion Foster Children Abuse Neglect, and 23 HARV. C.R. from (1988)). 199, C.L. L. Rev. 206 & n.30 2 "If the state puts a man in a position danger pri from vate persons and him, then fails protect it will not be heard say that its role was merely it passive; is as much an active tortfeasor if it had thrown him into a pit." snake liability from are immune workers social defendant acts were discretion- because their tort law under state 893.80(4), ary. § STATS. See
BACKGROUND juvenile Kara In court determined protection services, a child in need of B. was placed Smit, home had been her with Roxanne whose recently 11, 1990, On June licensed as a foster home. placed On December Mikaela R. in Smit's home. raped in home. Kara B. then 18,1990, Mikaela was by sexually that she had been abused one of revealed by Smit. Smit's male Mends allege Appellants that defеndants were deliber- ately indifferent to Kara's situation and are liable for injuries rights her in a civil action under 1983. argue, they however, Defendants are entitled to qualified immunity because at that time it was not "clearly obligation established" that the an state had protect commanded the Due Process Clause chil- placed dren it in foster homes. See Barnhill v. Board of Regents, 395, 406, 166 Wis. 2d 479 N.W.2d (1992).
Respondents
DeShaney Winnebago
contend that
County Dep't
(1989),
Servs.,
Social
SECTION LIABILITY: QUALIFIED
IMMUNITY
provides
If the Due Process Clause
constitutional
protection
liberty
of the
interest of foster
children
personal safety,
may escape liability
their
defendants
if
"clearly
right was not
established"
defend-
when
kept
placed
home.
ants
Kara and Mikaela
Smit's
public
employee
qualified
A
officer or
has
immu-
nity
liability
from suit and
1983 if the
under
claimed
right
"clearly
constitutional
was not
established" when
employee
complained
the officer or
took the action
of.
166 Wis. 2d at
Barnhill,
Had the
by
State
the affirmative exercise of its
removed
power
Joshua from frеe society and placed
him in a
home
foster
its
operated by
we
agents,
might have a situation sufficiently analogous to
incarceration or institutionalization
to give rise to
an affirmative duty
protect.
Indeed,
several
held,
Courts
have
Appeals
Estelle
analogy
(1976)]
Gamble,
[v.
DeShaney,
(part
Thus, because Court declined to argued reach the it issue, can be that whether the state *34 duty agents Process under the Due a its have involuntarily-placed protect foster children Clause "clearly when Kara established" harm was not from placed in foster and maintained and Mikaela were employees public cannot However, officers and care. immunity simply qualified defense succeed on Supreme opportunity an the Court has not had because person specific constitutional decide whether a has a to right. qualified deny It is sufficient to the defense public immunity warn a if the course оf the law should employee or omission that his or her act official By person's rights. 1989 and violates a constitutional appeals courts of 1990, the decisions of the federal clearly had a constitutional established that the state protect obligation Process Clause to under the Due custody of some over whom it had assumed children form. cases, states: "In most
One commentator supported protection [courts] chil of foster have process grounds." Arlene E. dren on substantive due Ques The Foster Child's Avenues Redress: Fried, J.L. & Soc. PROBS. Unanswered, 26 tions Left COLUM. (1993). court held that a foster The Ledbetter liberty environment, child interest in a safe has par protect from an abusive foster failure to child right due violated the child's to substantive ent J.L. & Soc. process. Fried, at 481 Probs. Colum. 797). (citing Ledbetter, 818 F.2d at The Seventh Circuit pro due also held that a foster child has a substantive right protected parent cess to be from a foster agency dangerous knows or should know is physical Morgan, child's or mental health. K.H. v. (7th 1990). F.2d 848-49 Cir. surprising departures
While there are some appeals federal courts of Arundel Anne —Milburn *35 (4th Cir.), County Dep't Servs., 871 Social F.2d (1989) great majority of denied, 493 cert. U.S. 850 —the considered the federal circuit courts which have possess question children that foster have concluded process rights protection. due to care and substantive 485. Fried, 26 COLUM. J.L. & Soc. Probs. at responsibility protеct fos- The of social workers to explicated solely by ter children has not been caselaw. The 1979 National Association of Social Workers Dele- gate Assembly adopted (revised Code of Ethics Assemblies) "represents 1990 and 1993 which stan- dards ethical behavior for in social workers professional relationships with col- served, those with leagues, employers, with with other and individuals professions, community society and with the and as a whole." Code of Ethics at v. The Code states that the primary responsibility social worker's is to Id. clients. at 5. The also Code states: The
6. social worker should clients provide with accurate complete and information regarding the extent and nature of the services available to them.
7. social worker should clients of apprise risks, their rights, and opportunities, obligations associated with social service to them.
Id. says
Robert Horowitz that when the American Bar surveyed Association Center on Children and the Law liability early child welfare in the 1980's, it found rela- tively Liability few cases. in Child Welfare Management Strategies, Protection Work: Risk ABA (1991). However, Center on Children and the Law pro- Children's Center states that when social services fessionals are now asked about the incidence of litigation surrounding foster care, more and more poten- reflecting being an raised, are increase hands Chapter liability at ix. In child welfare work. Id. tial for Sprague DeShaney, Defining Marsha the Risks after DeShaney "[w]hile to limit the has served that, states liability protective and child caseworkers, of child providers agencies, private and of service welfare respects, the cases filed it does not affect most of some Sprague endnotes, In in this context." Id. at 18. her liability. to ade- ranks the areas of risk of Failure quately protect the child in foster care from harm "high." Id. at 27. ranks as subject, given
In view of all the attention to this it impossible department its to conclude that the *36 they potentially social workers did not know that were they liable under the Due Process Clause and 1983 if adequately investigate qualifications failed to parents they placed foster care with whom children or adequately supervise did not the foster care promptly remove children when confronted with evi- dence of abuse. allegedly
Thus, the social workers who knew or permitted should have known that Smit caused or abuse of children in her care are not entitled to the qualified immunity. prior defense of Relevant caselaw placement supervision to the of Kara B. and clearly Mikaela R. established that reckless or deliber- safety ate indifference to the of foster care children liberty violated their interest under the Due Process Clause.
FOSTER PARENT AS STATE ACTOR
majority
concludes that Smit was not a state
persоn
actor. Section 1983 makes it a federal tort for a
deprive
rights
another of his or her constitutional
[t]he
"under color of
that,"
law." It has been held
care of
traditionally
prerog
foster children is not
the exclusive
Milburn,
ative of the State."
Treating parents private foster actors is incon- development sistent with the historical of the state- action Dee, doctrine. See L.Q. WASH. U. 1201. It is closely supervise also inconsistent with the need to parent high foster care because of the incidence of placed by abuse. Where a child is the state in foster parent care, the acts of the foster can be said to be "fairly attributable" to the state. See id. at 1218. parent
Some courts have held that where the vol- untarily places his or her child in foster care, the foster parent is not a state actor. I do not believe it should matter how the child comes into foster care. Martin Guggenheim, The Tort Law on Child Effect of Welfare Liability, Management Strategies in Risk at states:
It is true that the way in which a child enters the foster system care is significant from the par- *37 ent's perspective, but that difference is immaterial from the perspective of the child. Once a child is in care, foster regardless of the method by which s/he entered system, the it is difficult to conclude that some children have federal which rights protect them against harm while others have no such fed- eral rights.
Quoted in Fried, 26 COLUM. J.L. & Soc. PROBS.at 487 n.162. CLAIMS
STATE-LAW (a) v.Anderson. Cords 893.80(4), majority § concludes that The Stats., department from workers the and its social
immunizes failing liability to remove under Wisconsin law for tort they person plaintiff care of a children from foster subject- exposing and have known was knew or should ing majority The the children to sexual abuse. 893.80(4). § that the misconstrues The statute assumes employee governmental subdivision or its officer or The makes a choice between reasonable alternatives. protects agency statute or officer whose reasonable badly. agency situations, In choice turns out some example, may For or officer not have a choice of action. park manager area recreational state-owned away publicly-used trail was inches who knew that a dangerous ninety-foot gorge terrain did from a warning posting signs users of choice of not have the danger. 525, 541-42, Anderson, 80 Wis. 2d Cords v. (1977). manager's park The 259 N.W.2d 679-80 duty to became ministerial. warn shocking Wisconsin's
It would be to construe liability agen- immunity public to shield from statute deliberately to the are indifferent cies and officеrs who safety persons they govern. haveWe lives and of the children is that such conduct as to foster concluded and 1983. the Due Process Clause actionable under Congress Are we so insensitive that we leave protection of our children? I believe not.
(b) Discretion. Professional majority implies discretion" that the "medical County, Scarpaci 96 Wis. 2d v. Milwaukee
cases— *38 (1980), Co., 816 Protic Wis. 2d 292 N.W.2d v. Castle 132 (Ct. 1986), App. 392 v. Mil- 364, N.W.2d 119 Gordon (Ct. County, 62, 2d waukee 125 Wis. 370 N.W.2d 1985) App. anomalies. In Stann v. Waukesha —are County, n.3, 161 Wis. 2d & N.W.2d (Ct. 1991), App. we confined the cited cases to their necessary. However, was not should facts. This we explained employee public have that a who officer or practices profession must of meet standards care profession. required by and conduct his or her supreme Scarpaci. In court made that clear in county case, court held that while the medical "govern- autopsy examiner's decision to conduct an 893.80(4), subject mental" and how the STATS., performed "profes- autopsy examiner involved sional" discretion to of which the standard care required applied. of medical at examiners 96 Wis. 2d 685-88, 292 words, N.W.2d at 826-28. In other the med- performance autopsy ical examiner's of an towas be according profession. tested to the of standards his practice Social work is no of different from the respect; medicine in this there of are standards care to just which sоcial worker conform, must as there are standards of care to which a doctor must conform. among profes- demanding "Social work is the most sions." Cohen, J.D., Robert H. A.C.S.W., General Counsel, National Workers, Association of Social Fore- word Frederic G. Malpractice Reamer, Social Work (1994). Liability: Strategies for Prevention xi "Malpractice usually in social work is the result of a (in practitioner's rights active violation a client's legal terms, commission, acts misfeasance, mal- feasance) practitioner's perform or a failure certain (acts nonfeasance)." duties 3; omission or Id. at see ("[S]ocial also Social Work Malpractice at 107 work- *39 rights special position to abuse substantive are in a ers clientele."). particularly vulnerable of their pride Government-employed take social workers professionals. in their work and consider themselves they ordinarily govern- exercise is not The discretion professional. discretion must be mental but That according of the social work exercised standards privately profession, is whether the social worker 893.80(4), publicly employed. Section does not Stats., professional immunize a from actions which do professional meet standards. profes-
Whether the defendant social workers met placing maintaining Kara B. sional standards in and Mikaela R. in the foster of Roxanne Smit care necessary. affidavits; cannot be decided a trial part reasons, and dissent in For these I concur in part.