Cheryl Weatherford v State of Arizona

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SUPREME COURT OF ARIZONA En Banc CHERYL WEATHERFORD, as guardian ) ad litem for MICHAEL L., a minor, ) ) ) Plaintiff-Appellant, ) ) v. ) ) STATE OF ARIZONA; CLAUDETTE ) WASHINGTON, individually and in ) her capacity as an employee of ) the State of Arizona; SHIRLEY ) LEWIS, individually and in her ) capacity as an employee of the ) State of Arizona; PARTHENIA ) GIBSON, individually and in her ) capacity as an employee of the ) State of Arizona, ) ) Defendants-Appellees. ) __________________________________) ) MICHAEL L., a minor, by and ) through his guardian CHERYL ) WEATHERFORD, ) ) Plaintiff-Appellee, ) ) v. ) ) STATE OF ARIZONA, ) ) Defendant-Appellant. ) ) __________________________________) Arizona Supreme Court No. CV-02-0369-PR Court of Appeals Division One No. 1 CA-CV 01-0289 1 CA-CV 01-0496 (Consolidated) Maricopa County Superior Court Nos. CV 98-021291 CV 98-021291-2 O P I N I O N Appeal from Superior Court of Maricopa County Nos. CV 98-021291 and CV 98-021291-2 The Honorable Edward O. Burke The Honorable Johnathan H. Schwartz AFFIRMED IN PART; REVERSED IN PART; REMANDED Opinion of Court of Appeals Division One 203 Ariz. 313, 54 P.3d 342 (App. 2002) VACATED IN PART; APPROVED IN PART Laurence M. Berlin Attorney for Cheryl Weatherford Tucson Terry Goddard, Attorney General by Paula S. Bickett, Chief Counsel Civil Appeals Section Assistant Attorney General Attorneys for Parthenia Gibson, Claudette Washington, Shirley Lewis, and the State of Arizona Phoenix Martin, Hart & Fullerton by James R. Hart, II Attorneys for Parthenia Gibson Mesa Wilenchik & Bartness, PC by Dennis I. Wilenchik Attorneys for Claudette Washington and Shirley Lewis Phoenix M c G R E G O R, Vice Chief Justice ¶1 This case requires us to determine whether and under what circumstances a child placed in a foster care facility may bring an action based upon 42 U.S.C. individual state workers for substantive due process rights Constitution. Section 5.3 § violating under 1983 (2003) against the foster child s the United States We exercise jurisdiction pursuant to Article VI, of the Arizona Constitution, Arizona Revised Statutes (A.R.S.) § 12-120.24 (2003), and Rule 23 of the Arizona Rules of Civil Appellate Procedure. I. A. ¶2 This case arises out of the alleged sexual assault of twelve-year-old Michael L. by two minors held at the Peterson Shelter (the Shelter), a foster care facility. 2 Alice The assaults reportedly occurred over the course of four months in 1996 and social 1997, after worker, Shelter had following Claudette arranged his unsanitary conditions. Washington, for removal from and Gibson his placement home intake at the because of In mid-December 1996, Parthenia Gibson became Michael s social worker. Washington Michael s Michael s Shirley Lewis supervised both throughout Michael s placement at the Shelter. ¶3 Cheryl Weatherford, acting as Michael s guardian ad litem, sued the State of Arizona, Washington, Gibson, and Lewis for negligence and for depriving Michael of his constitutional rights, in violation of § 1983. During summary judgment proceedings, Washington, Gibson, and Lewis did not dispute that, acting in their capacity as social workers, they failed to comply with various agency requirements, including failures to timely complete an initial case plan, to assess Michael s needs and his compatibility with other Shelter residents, and to visit the Shelter within twenty-four hours of Michael s placement. In addition, they did not dispute that they made only two of the sixteen required weekly supervised visits to the Shelter between November 14, 1996, and the disclosure of the alleged sexual abuse on March 4, 1997. ¶4 The superior court nonetheless granted summary judgment in favor of each of the defendants based upon qualified immunity, 42 U.S.C. § 1983, and protective services immunity, 3 A.R.S. § 8-805.A (2001). order dismissing The court of appeals reversed the Weatherford s negligence and § 1983 claims. Weatherford v. State, 203 Ariz. 313, 320 ¶ 31, 54 P.3d 342, 349 (App. 2002). The court held that a foster child s right to reasonable safety while in foster care was clearly established in 1996 and that a social worker s failure to exercise professional judgment in the placement and monitoring of a child in state foster care may subject the social worker to individual liability under § 1983. Id. at 319-20 ¶¶ 29-30, 54 P.3d at 348- 49.1 B. ¶5 of Section 1983 imposes liability on one who, under color law, deprives a person of any rights, privileges, immunities secured by the Constitution and laws. 1983. or 42 U.S.C. § Government officials performing discretionary functions, however, receive qualified immunity from § 1983 actions unless their conduct violated a clearly established constitutional or federal statutory right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). ¶6 To overcome defense, Weatherford the social bears the workers initial qualified burden of immunity proving a violation of a clearly established constitutional or statutory 1 The court of appeals decided a number of other issues affecting defendants liability. We granted review only of the question pertaining to § 1983 liability. 4 right. A right is clearly established when [t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Establishing liability requires more than alleging a violation of extremely abstract rights. Id. at 639. An official's specific action, however, need not previously have been held unlawful. Id. at 640. Rather, the unlawfulness must be apparent in light of preexisting law. Id. If Weatherford is able to show a violation of Michael s clearly established constitutional right, then the social workers must demonstrate that their conduct was reasonable under the applicable standard of care. See, e.g., Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). ¶7 At oral argument, the social workers conceded that a foster child s substantive due process right to reasonable safety while in foster care was clearly established in 1996.2 2 As In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Supreme Court held that a state does not have a constitutional duty to protect a child from an abusive parent even if the state has received reports of and had investigated the possibility of abuse. In a footnote, however, the Court stated: Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Appeals have held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due Process 5 a result, the issue before this court is whether the social workers conduct, viewed in the light most favorable to Weatherford, could subject them to individual liability under § 1983. the Determining the appropriate standard by which to measure challenged federal law. conduct presents a question of substantive Martinez v. California, 444 U.S. 277, 284 n.8 (1980). C. ¶8 In interpreting substantive federal law, state courts look first to decisions of the United States Supreme Court. Although only a decision of the Supreme Court binds a state court on a substantive federal issue, a number of state supreme courts have elected to follow, as far as reasonably possible, their federal circuits decisions on questions of substantive federal law. See Littlefield v. Dep t of Human Servs., 480 A.2d 731, 737 (Me. 1984); Phillips v. Williams, 608 P.2d 1131, 1135 (Okla. 1980); York v. Gaasland Co., 250 P.2d 967, 971 (Wash. 1952); see also Busch v. Graphic Color Corp., 662 N.E.2d 397, ____________________________ Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents. Id. at 201 n.9 (emphasis added). Neither the Supreme Court nor the Ninth Circuit Court of Appeals has addressed whether and to what extent the state owes a duty to a foster child held in a state foster care facility. Because the State concedes that Michael s right to reasonable safety existed, we address only the appropriate standard of conduct. 6 403 (Ill. 1996) ( [D]ecisions of the Federal courts interpreting a Federal act . . . are controlling upon Illinois courts. ). In Littlefield, for example, the Maine Supreme Court considered the proper construction of eligibility federal Social Security Act. requirements under the Noting that the First Circuit had recently decided the exact issue before the court in Sweeney v. Murray, 732 F.2d 1022 (1st Cir. 1984), the Maine court chose to follow its circuit s precedent. The court stated: [E]ven though only a decision of the Supreme Court of the United States is the supreme law of the land on a federal issue, nevertheless, in the interests of existing harmonious federal-state relationships, it is a wise policy that a state court of last resort accept, so far as reasonably possible, a decision of its federal circuit court on such a federal question. Littlefield, 480 A.2d at 737; see also Commonwealth v. Negri, 213 A.2d 670, 672 (Pa. 1965) ( [T]he clear indication for this Court is to accept and follow the decision of the Third Circuit on this matter until some further word is spoken by the Supreme Court of the United States. ). ¶9 We agree that, although state courts are not bound by decisions of federal circuit courts, we may choose to follow substantive decisions of the Ninth Circuit Court of Appeals, recognizing that relationships. doing so furthers federal-state court In addition, consistent decisions among federal and state courts further predictability and stability of the law. Therefore, if the Ninth Circuit has announced a clear rule on an issue of substantive federal statutory law and if the rule 7 appears just, we will look first to the Ninth Circuit rule in interpreting substantive federal statutory law. II. ¶10 The gravamen of Weatherford s § 1983 complaint is the claim that the social workers violated Michael s substantive due process rights. In determining the appropriate standard for imposing § 1983 liability, we first acknowledge that standards of state tort law do not apply; rather, the question is whether defendants violated Michael s federal constitutional rights. Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. Daniels v. Williams, 474 U.S. 327, 332 (1986). ¶11 The touchstone of substantive due process is protection against government power arbitrarily and oppressively exercised. Id. at 331-32; see also County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). Thus, the Due Process Clause is intended to prevent government officials from abusing their power or employing it as an instrument of oppression. Sacramento, 523 U.S. at 846 (citations and quotations omitted). When, as abusive here, a executive plaintiff conduct, alleges the he conduct incurred damage must said be from to be arbitrary in the constitutional sense to implicate the Due 8 Process Clause.3 Id. (quoting Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992)). ¶12 Neither the Supreme Court nor the Ninth Circuit has clearly defined when executive conduct becomes arbitrary in the constitutional liability in sense the so foster as to care impose context. individual We gain § 1983 guidance, however, from standards adopted by the Supreme Court and Ninth Circuit in analogous situations. See, e.g., Daniels, 474 U.S. 327; Youngberg v. Romeo, 457 U.S. 307 (1982); Estelle v. Gamble, 429 U.S. 97 (1976); L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996) (Grubbs II); Estate of Connors v. O Connor, 846 F.2d 1205 (9th Cir. 1988) (O Connor). As our discussion below reveals, § 1983 standards have developed, first expanding and then contracting, over time. 3 While acknowledging that it is a constitution we are expounding, M'Culloch v. Maryland, 17 U.S. 316, 407 (1819), we also recognize that the people of Arizona may adopt a system of their choosing for determining when state officials may be held liable for foster care placement decisions. Lest the Constitution be demoted to . . . a font of tort law, it is the prerogative of the self-governing people of the State of Arizona to make the legislative choice of when tort liability, except at the ends of the tort law s spectrum of culpability, may attach to social worker placement and monitoring decisions. Sacramento, 523 U.S. at 847 n.8, 848; see also Clouse ex rel. Clouse v. State, 199 Ariz. 196, 203 ¶ 24, 16 P.3d 757, 764 (2001) ( We conclude that the immunity clause [of the Arizona Constitution], by authorizing the legislature to direct by law the manner in which suits may be brought against the state, confers upon the legislature a power to control actions against the state that it does not possess with regard to actions against or between private parties. ). 9 ¶13 Two established upon relatively general executive parameters branch Estelle, 429 U.S. 97. the appropriate early Supreme for officials. Court decisions imposing § liability Youngberg, 1983 457 U.S. 307; In Estelle, the Supreme Court examined standard for determining when a prison official s failure to provide adequate medical care to a prison inmate could subject the official to § 1983 liability. at 101-02. 429 U.S. The Estelle Court began by noting that the Eighth Amendment s right to be free from cruel and unusual punishment embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency. Id. at 102 (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). Based on this principle, the Court reasoned: An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical torture or a lingering death . . . . In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. Id. at 103 (citations omitted). deliberate indifference to The Court held that the State s the serious medical needs of a prisoner violates the Eighth Amendment and provides the basis for an action under § 1983. ¶14 Id. at 104. The Supreme Court extended this analysis beyond the prison setting in Youngberg. the appropriate standard In that case, the Court considered for determining 10 whether a patient involuntarily committed to a state mental institution could bring suit against institution officials for the alleged breach of the patient s substantive due process right to reasonable safety and to freedom from unreasonable restraints. 457 U.S. at 321. unusual The Court explained: If it is cruel and punishment conditions, it Youngberg, to must hold be convicted criminals unconstitutional to in unsafe confine the involuntarily committed who may not be punished at all in unsafe conditions. ¶15 Id. at 315-16. Based on this reasoning, the Youngberg Court held that § 1983 liability may be imposed for executive decisions that are such a judgment, substantial practice, departure or standards from as to accepted professional demonstrate that the person responsible actually did not base the decision on such a judgment. Id. at 323. The Court noted, however, that the decision, if made by a professional, is presumptively valid. Id. In addition, the professional will not be liable if he was unable to satisfy his normal professional standards because of budgetary constraints; in such a case good-faith immunity would bar liability. Id. This standard, the Court reasoned, strikes the appropriate balance between an individual s constitutionally protected liberty interests and legitimate state interests in light of the constraints under which most state institutions necessarily operate. Id. at 324. 11 ¶16 After Youngberg and Estelle, the Supreme Court decided two companion cases concerning the degree of official misconduct necessary to give rise to liability under § 1983 for a violation of a prison inmate s due process rights. 327; Davidson v. Cannon, 474 U.S. See Daniels, 474 U.S. 344 (1986). In those decisions, the Court emphasized the distinction between the type of conduct that gives rise to a negligence action and the type of conduct that gives rise to a § 1983 action. ¶17 In Daniels, a prison inmate brought a § 1983 claim alleging a prison official deprived him of his due process rights by negligently placing a pillow on a prison stairway, causing the inmate to slip and injure his back and ankle. U.S. at conduct 328. by constitutional The state tort, Court, seeking officials held to rises that the define when to the level Due Process 474 tortious of a Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property. Id. at 328-29; see also Davidson, 474 U.S. at 348 (observing that due process protections are just not triggered by lack of due care by prison officials ). The Court reasoned that the Due Process C lause was intended to secure the individual from the arbitrary exercise of the powers of government, Daniels, 474 U.S. at 331 (quoting Hurtado v. California, 110 U.S. 516, 527 (1884)), and to prevent governmental power from being used for purposes of oppression, id. 12 (quoting Murray s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 277 (1855)). Negligent conduct, the Court concluded, is quite remote from these concerns. such conduct Fourteenth Id. at 332. is a To hold that injury caused by deprivation Amendment would within the trivialize principle of due process of law. meaning of the the The Id. centuries-old Daniels Court, however, reserved the question of whether something less than intentional conduct, such as recklessness or gross negligence, is enough to trigger the protections of the Due Process Clause. Id. at 334 n.3. ¶18 Relying upon this guidance from the Supreme Court, the Ninth Circuit initially held that certain types negligence can implicate the Due Process Clause. Neely v. Feinstein, ( conscious 50 F.3d indifference 1502, amounting 1507 to gross See, e.g., (9th gross of Cir. 1995) negligence ); Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (same); O Connor, 846 F.2d at 1208 (same); see also Fargo v. City of San Juan Bautista, police 857 officer s] F.2d 638, conduct 641 (9th constituted Cir. gross 1988) ( If [the negligence or recklessness, as opposed to mere negligence, then it constitutes a deprivation of a liberty interest . . . under the due process clause. ); Wood v. Ostrander, 851 F.2d 1212, 1215 (9th Cir. 1988) (holding that due process claim was not barred under § 1983 because the alleged police conduct may be more than mere negligence ). 13 ¶19 In O Connor, the Ninth Circuit considered the implications of Daniels and Davidson for determining whether a state actor may be held liable, under the professional judgment standard, for violating the rights of an involuntarily committed mental patient. The O Connor court concluded that Daniels and Davidson did not affect the Youngberg test: Under Youngberg s balancing test, the risk of harm and the burden on the state are weighed in examining discretionary management choices for reasonableness. Liability may be imposed on a professional state officer only when his or her decision is so objectively unreasonable as to demonstrate that he or she actually did not base the challenged decision upon professional judgment. We believe that this standard is equivalent to that required in ordinary tort cases for a finding of conscious indifference amounting to gross negligence. Certainly, the Youngberg standard is far more stringent than that required for a finding of negligence, which may be demonstrated by a professional's mere failure to exercise the level of care expected of other professionals in the same field. We therefore hold that the inquiry relevant under Youngberg has not been affected by the Court s intervening decisions in Daniels and Davidson. O Connor, 846 F.2d at 1208 (emphasis added). ¶20 Similarly, the Ninth Circuit held that police officer conduct amounting to gross negligence 4 or recklessness4 would Defining terms such as negligence, gross negligence, and recklessness is, at best, inexact. As between negligence and gross negligence, negligence suggests a failure to measure up to the conduct of a reasonable person. Daniels, 474 U.S. at 332. Gross negligence generally signifies more than ordinary inadvertence or inattention, but less perhaps than conscious indifference to the consequences. Fargo, 857 F.2d at 641 (quoting W. Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 212 (5th ed. 1984)). Under this definition of gross negligence, conscious indifference amounting to gross 14 constitute a violation of the constitutional right to be free from excessive force and would subject an officer to § 1983 liability. Fargo, 857 F.2d at 641. Fargo involved a claim brought by an arrestee whom a police officer accidentally shot while placing him in handcuffs. The officer admitted that he acted contrary to his police training, but claimed that he was entitled to summary judgment because the shooting was accidental and, at most, merely negligent. officer s argument, the court Id. at 639. determined that Rejecting the the officer s conduct may have constituted gross negligence or recklessness. Id. at 641. The Ninth Circuit held, We cannot conclude as a matter of law that [the officer s] conduct, contrary as it was to proper police procedures, constituted mere inadvertence, and not a greater want of care. ¶21 Id. at 642. Recent Ninth Circuit case law, however, rejects the Fargo standard and raises a serious question about the continued validity of the professional judgment standard as applied in O Connor and similar decisions. See Grubbs II, 92 F.3d 894. Grubbs II involved a § 1983 claim brought by a registered nurse at a medium security custodial institution supervisors after she was attacked by an inmate. against her The Grubbs II ____________________________ negligence falls closer to a recklessness standard, which usually involves a conscious disregard of a risk, than mere gross negligence. See id. at 642 n.7 (noting that recklessness can, however, be inferred from the facts and circumstances) (citation omitted). 15 court examined prior circuit decisions to decide whether a state official could be held liable under § 1983 for gross negligence. Id. at 896. The court concluded: [I]n order to establish S ection 1983 liability in an action against a state official for an injury . . . the plaintiff must show that the state official participated in creating a dangerous condition, and acted with deliberate indifference to the known or obvious danger in subjecting the plaintiff to it. . . . Deliberate indifference to a known, or so obvious as to imply knowledge of, danger, by a supervisor who participated in creating the danger, is enough. Less is not enough. Id. at 900 (emphasis added); see also McGrath v. Scott, 250 F.Supp. 2d 1218, 1226 (D. Ariz. 2003) (finding that the deliberately indifferent standard adopted in Grubbs II applies generally to all supervisory liability claims under § 1983 ). ¶22 In redefining and applying the deliberate indifference standard, the validity of Grubbs II court also examined the continued the O Connor professional judgment standard. The court reasoned that Neely, in which the court had held that conscious indifference enough impose to amounting liability under to the gross negligence professional was judgment standard, Neely, 50 F.3d at 1507, either was incorrect or must be limited to its facts. The court stated: While Neely can be distinguished on its facts from the present case, its language . . . is either incorrect to the extent that it approves the gross negligence standard, or it must be limited to the claims of inmate plaintiffs injured because of a miscarriage of the professional judgment of a government hospital official in the context of a captive plaintiff. 16 Grubbs II, 92 F.3d at 897. ¶23 Two decision, years the after Supreme the Court Ninth reviewed Circuit s another Ninth decision in an analogous area of § 1983 liability. 523 U.S. 833. Cir. 1996), Grubbs II Circuit Sacramento, In Lewis v. Sacramento County, 98 F.3d 434 (9th the circuit court had concluded that a police officer s deliberate indifference to, or reckless disregard for, a person s right to life and security during a high speed chase could establish liability under § 1983. In reaching its conclusion, the court noted that [d]eliberate indifference is the greatest degree of misconduct we have previously required a plaintiff to prove to sustain a § 1983 action. ¶24 Reversing the Ninth Circuit, Id. at 441. the Supreme Court emphasized the relatively narrow scope of constitutionally-based § 1983 actions. The Court noted that the conduct of the officer fell within the middle range of culpability, somewhere between negligence, which is categorically beneath the threshold of constitutional due process, and conduct intended to injure in some way unjustifiable by any government interest. 523 U.S. at 849. Sacramento, The Court held that, with regard to high speed police chases, deliberate indifference, rather than being the highest degree of establish liability. misconduct required, is insufficient The Court concluded instead to that high speed chases with no intent to harm suspects . . . do not give 17 rise to liability under the Fourteenth Amendment, redressible by an action under § 1983. ¶25 The Court Id. at 854. emphasized again that only the most egregious official conduct can be said to be arbitrary in the constitutional sense, id. at 846 (quoting Collins, 503 U.S. at 129), and that, as it had repeatedly stated, the Due Process Clause abusing was intended [their] to power, or prevent government employing it officials as an from instrument of oppression, id. (quoting Collins, 503 U.S. at 126 (in turn quoting DeShaney v. Winnebago County Dep t of Soc. Servs., 489 U.S. 189, 196 (1989) (in turn quoting Davidson, 474 U.S. at 348))). To meet that burden, the Court stated, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. Id. Under the circumstances of a high speed chase, only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking conscience, necessary for a due process violation. ¶26 to the Id. at 836. The Court also recognized, however, that due process guarantees cannot be mechanically applied. Id. at 850. Deliberate indifference that shocks in one environment may not be so patently preserving the egregious in constitutional another, and proportions our of concern substantive with due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking. 18 Id. The Court distinguished indifference in a between high imposing speed liability chase for situation deliberate and imposing liability for deliberate indifference to inmate welfare. The primary distinction rests upon the fact that, in a high speed chase, the officer must act decisively and show restraint at the same moment. Under such circumstances, little time exists for deliberation and, as use of the term deliberate indifference implies, the deliberation standard is is sensibly practical. Id. employed at Albers, 475 U.S. 312, 320 (1986)). considered in Estelle, in contrast 851 only (citing when actual Whitley v. In the custodial situation to the high situation, prison officials had time for reflection. speed chase When such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking. 853. Similarly, Youngberg, [t]he the Court noted, combination of in a a situation patient s Id. at such as involuntary commitment and his total dependence on his custodians obliges the government to take thought and make reasonable provision for the patient s welfare. ¶27 Id. at 852 n.12. Both Grubbs II and Sacramento held that, as to the situations considered, nothing less than deliberate indifference to a known or obvious danger on the part of a public official involves behavior that rises to a constitutionally shocking level. conscience- Neither decision, of course, considered the behavior sufficient to rise to such a level 19 when the state places or monitors a foster child. deliberate indifference We consider, then, whether or some other level of behavior gives rise to liability in the foster care context. III. ¶28 The Grubbs II context, would standard, applied to the foster care require that state workers responsible for placing and supervising a child in foster care could not be held liable under indifference § to 1983 a unless known or they obvious exhibited danger to deliberate the child. Weatherford argues that applying that standard will encourage those responsible deliberately for overlook the well-being information notice of dangerous conditions. of that foster could children place them to on Officials should not be less likely to incur liability, she argues, if they fail to consider available information. We agree that a child s right to reasonable safety while in foster care demands more from state workers than attention to known or obvious dangers. therefore, that a foster child can establish We hold, § 1983 liability against a state official by showing that the official, without justification, acted with deliberate indifference by placing a child in foster care or by maintaining a placement when the official knew that the placement exposed the child to danger or would have known of the danger but for the official s deliberate indifference. If a state worker, with time to consider the placement a for foster child, 20 acts with such deliberate indifference placement as will to ignore information result in to danger the indicating child that refuses or the to obtain information that, if considered, would reveal a danger to the child, the official s indifference is sufficiently egregious to justify imposing liability under § 1983. ¶29 This standard reflects the Supreme Court s a dmonition that executive behavior violates § 1983 only if it involves an element of using the state s power in an oppressive manner. Daniels, 474 U.S. at 331-32. An official faces liability not for placing a child in foster care, but for placing the child in a dangerous foster care situation of which the official knew or would have known but for the official s deliberate indifference. ¶30 The standard also incorporates the Ninth Circuit s admonition that anything less than deliberate indifference is not sufficient to establish § reflects the undertakes principle, to make a 1983 liability. however, person that dependent The the state, upon its standard once care, it also undertakes an affirmative duty to assume responsibility for that person s safety and general well-being. 200. Additionally, the standard difficult decisions imposed upon takes made a particular into account the state workers in making and maintaining foster child placements. worker DeShaney, 489 U.S. at decision In deciding whether the without justification, court must consider the totality of the circumstances: a A social worker cannot be held liable if safe placement cannot be found 21 or if financial constraints prevent any choice other than that made. Youngberg, Morgan, 914 F.2d 457 U.S. 846, at 853-54 323; (7th K.H. Cir. ex rel. v. Whether 1990). Murphy an initial placement decision reaches a constitutionally shocking level may involve different factual considerations than whether a decision to continue a placement rises to this level. ¶31 The standard we articulate today is also the standard of conduct appeals, whether required denominated a similar to by other circuit courts of deliberate indifference or professional judgment standard, in the foster care context. See Yvonne L. v. N.M. Dep t of Human Servs., 959 F.2d 883, 894 (10th Cir. 1992); Doe v. N.Y. Dep t of Soc. Servs., 649 F.2d 134, 145 (2d Cir. 1981); see also Camp v. Gregory, 67 F.3d 1286, 1293 (7th Cir. 1995) ( [P]ublic officials may be held liable for damages when they place a child in a foster home knowing or having reason to know that the child is likely to suffer harm there. ); Taylor v. Ledbettter, 818 F.2d 791, 796 (11th Cir. 1987) ( A child successfully abused recover from while state in foster officials care, in in section a order to 1983 action, will be faced with the difficult problem of showing actual knowledge of abuse or that agency personnel deliberately failed to learn what was occurring in the foster home. ). ¶32 In Yvonne L., for example, the plaintiffs asserted the right not to be placed in a foster care environment involving a known or reasonably suspected risk of harm by a third party. 22 959 F.2d at 891. The Tenth Circuit adopted a standard it labeled the professional judgment standard and held that this standard, while it does not require actual knowledge the children will be harmed, [] implies abdication of the duty to act professionally in making the placements. Id. at 894. Similarly, in Doe, the Second Circuit, purporting to adopt the deliberate indifference standard, held agency officials may be held liable that child placement under § 1983 if they exhibited deliberate indifference to a known injury, a known risk, or a specific duty, and their failure to perform the duty or act to ameliorate the risk or injury was a proximate cause of plaintiff s deprivation of rights under the Constitution. Doe, 649 F.2d at 145. ¶33 As Doe and Yvonne L. demonstrate, when applied to the unique facts of the foster care context, not much difference exists between the deliberate indifference and professional judgment standards. there is a Yvonne L., 959 F.2d at 894 ( To the extent difference Seventh Circuit that the result, we in the standards, we agree with Youngberg standard applies. ). the As a do not find it particularly helpful to label this standard of conduct deliberate indifference or professional judgment. ¶34 Applying this standard to the facts of this case, we reverse the trial court s grant of summary judgment. On remand, the court must consider whether, under the standard articulated 23 today, undisputed material facts permit the court to conclude, as a matter of law, deliberate that defendant social workers acted with indifference sufficient to impose responsibility either for the decision to place Michael in the Shelter or for the decision to continue the placement. IV. ¶35 For the reasons described above, we vacate that part of the court of appeals opinion set out in paragraphs twentytwo through thirty and approve the remainder of the opinion, reverse the trial court s grant of summary judgment to these defendants with regard to the § 1983 claim, and remand for further proceedings consistent with this opinion. ____________________________________ Ruth V. McGregor, Vice Chief Justice CONCURRING: __________________________________ Charles E. Jones, Chief Justice __________________________________ Rebecca White Berch, Justice __________________________________ Michael D. Ryan, Justice __________________________________ Andrew D. Hurwitz, Justice 24

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