Doe Ex Rel. Johnson v. South Carolina Department of Social Services
2010 U.S. App. LEXIS 4740, 2010 WL 746439, 597 F.3d 163 (2010)
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Rule of Law:
When a state involuntarily removes a child from their home and places them in state custody, it assumes a substantive due process duty not to make a foster care placement that is deliberately indifferent to the child's right to personal safety and security. However, state officials are protected by qualified immunity if this right was not clearly established at the time of their actions.
Facts:
- On August 9, 1999, the South Carolina Department of Social Services (SCDSS) received a report alleging that four-year-old Jane Doe and her eight-year-old brother, Kameron Cox, were victims of sexual abuse.
- SCDSS officials took Jane and Kameron into emergency protective custody, and in July 2000, a maternal aunt relinquished the children to SCDSS's legal custody after initial placement.
- On May 30, 2001, Debby Thompson was assigned as the Adoption Specialist for Jane and Kameron.
- On June 18, 2001, the children’s therapist, Joy Bennett, reported that Kameron had become increasingly angry and depressed, posed a threat to himself and Jane, and had a history of aggression towards Jane.
- On August 22, 2001, Bennett advised Thompson that Kameron 'ha[d] been a danger to [Jane] and she should be protected,' and noted that Jane 'show[ed] some signs of sexual abuse including ... a history of trying to sneak into Kameron’s bed, probably for comfort through sexual contact.'
- On February 28, 2003, Jane and Kameron were placed with Gregory and Michelle Johnson for prospective adoption, after Thompson presented a background summary that stated no reports of sexually inappropriate behavior from Kameron 'since entering care.'
- Approximately four weeks later, the Johnsons chose not to proceed with Kameron's adoption due to suspected inappropriate touching of their biological son; Jane remained with the Johnsons, and her adoption was finalized on November 6, 2003.
- Approximately one year after Jane's adoption, Kameron admitted to his therapist that he had sexually abused Jane prior to SCDSS custody and had sexually abused seven other foster children while in foster care.
Procedural Posture:
- On August 9, 1999, SCDSS received a report of alleged sexual abuse of Jane Doe and Kameron Cox.
- SCDSS officials took the children into emergency protective custody.
- The South Carolina Family Court found physical neglect and granted SCDSS temporary custody of the children.
- In July 2000, a maternal aunt relinquished the children to SCDSS’s legal custody.
- SCDSS filed an action in family court seeking to legally terminate the parental rights of Jane's and Kameron's biological parents.
- The mother voluntarily relinquished her parental rights, and the father's rights were judicially terminated; the family court granted custody of the minor children to SCDSS with all rights of guardianship.
- Gregory and Michelle Johnson, Jane's adoptive parents, filed a § 1983 action in federal court against Debby Thompson, an SCDSS Adoption Specialist, alleging violations of Jane's and their own substantive due process rights.
- The Johnsons filed a second suit in state court against SCDSS, pursuant to the South Carolina Tort Claims Act, alleging gross negligence on the part of SCDSS employees.
- The state court action was removed to the federal district court and consolidated with the federal action.
- Debby Thompson moved for summary judgment on the § 1983 claims, asserting qualified immunity.
- SCDSS moved for summary judgment on the state law claims, asserting discretionary immunity.
- The district court granted summary judgment in favor of Thompson on the § 1983 claims based on qualified immunity.
- The district court granted summary judgment in favor of SCDSS on the state law claims based on discretionary immunity.
- Jane Doe and Gregory and Michelle Johnson appealed the district court's decision to the Fourth Circuit Court of Appeals.
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Issue:
Does a state social worker violate a foster child's substantive due process rights under the Fourteenth Amendment by placing the child in a foster care setting with a sibling known to be sexually abusive, in deliberate indifference to the child's safety and security, when the child was involuntarily removed from their home and placed in state custody?
Opinions:
Majority - Traxler, Chief Judge
Yes, when a state involuntarily removes a child from her home and takes her into its custody, thereby restraining her liberty, the state has a corresponding duty to assume some responsibility for the child's safety and general well-being. This responsibility includes a duty not to make a foster care placement that is deliberately indifferent to the child’s right to personal safety and security. The court distinguished its prior precedents in Milburn, Weller, and White, which did not involve children involuntarily removed and placed in state custody with a known danger, or where deliberate indifference was not proven. The court found that Jane was clearly in the custody and control of SCDSS, triggering this affirmative duty. However, Thompson is entitled to qualified immunity because, at the time of her placement decisions, this specific substantive due process right for involuntarily removed foster children was not 'clearly established' in the Fourth Circuit, meaning a reasonable official would not have known their conduct violated that right. Additionally, prospective adoptive parents (the Johnsons) do not have a clearly established substantive due process right to full disclosure of a child's history. The court vacated and remanded the state law claim for gross negligence against SCDSS to allow the district court to consider the applicability of S.C.Code Ann. § 15-78-60(25), which provides an exception to discretionary immunity for grossly negligent exercise of custodial duties.
Concurring - Wilkinson, Circuit Judge
While concurring in the judgment to affirm qualified immunity for Thompson on federal claims and remand state claims, Judge Wilkinson strongly disagreed with the majority’s decision to recognize a new federal constitutional 'duty to protect' children from harm by non-state actors in foster homes. He argued that this expansion of substantive due process, however well-intentioned, creates perverse incentives: it will discourage states from taking legal custody of abused children due to increased § 1983 liability and deter potential foster parents because of increased state intrusiveness and an unflattering comparison of foster homes to prisons. He emphasized that tort and domestic relations law are traditionally state responsibilities, and states like South Carolina already have comprehensive statutory schemes (like the SCTCA) to address such issues. He criticized the majority for creating an 'advisory and ill-advised judicial venture into policy' contrary to the Supreme Court's guidance in Pearson v. Callahan and argued that if a federal duty is needed, it should be created by Congress, not the courts, as legislatures are better equipped to weigh policy, monitor impact, and adapt rules.
Analysis:
This case significantly clarifies the scope of the 'custody exception' to the DeShaney rule within the Fourth Circuit, aligning it with other circuits that recognize a substantive due process right for involuntarily removed foster children to reasonable safety when in state custody. While establishing this right, the court simultaneously protects state social workers from retroactive liability through qualified immunity, emphasizing that the right was not 'clearly established' at the time of the alleged misconduct. The concurring opinion highlights the enduring tension between judicial enforcement of constitutional rights and concerns about judicial overreach, federalism, and the potential for unintended negative policy consequences, such as discouraging state intervention in child abuse cases or deterring foster care providers.
