Wolf v. Fauquier County Board of Supervisors

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALEXANDRA WOLF, individually and 

on behalf of her minor children;

C. W., her minor child; R. W., her

minor child,

Plaintiffs-Appellants,

v.

FAUQUIER COUNTY BOARD OF

SUPERVISORS; MIMI DENICOLAS, in

her official and individual

capacities; STEPHANIE DUNCAN, in  No. 07-2022

her official and individual

capacities; LA’TEEKA TUTWILER, in

her official and individual

capacities; BETH STEPHENS;

CHRYSALIS COUNSELING CENTER,

P.C.; ELIZABETH A. STEVENSON,

Individually, and as the Alter Ego

of Chrysalis Counseling Center,

P.C.; DR. MARK SIMONDS,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(1:06-cv-00945-JCC)

Argued: December 5, 2008

Decided: February 6, 2009

2 WOLF v. FAUQUIER COUNTY

Before WILLIAMS, Chief Judge, and WILKINSON and

GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Chief Judge Williams and Judge Gregory

joined.

COUNSEL

ARGUED: Earl Neville Mayfield, III, CUCCINELLI &

DAY, P.L.L.C., Fairfax, Virginia, for Appellants. Julia Bou-

gie Judkins, TRICHILO, BANCROFT, MCGAVIN, HOR-

VATH & JUDKINS, Fairfax, Virginia; Douglas McNeil

Coleman, COLEMAN & RAGLAND, Alexandria, Virginia;

John Harvey Craddock, Jr., LECLAIR RYAN, P.C., Rich-

mond, Virginia, for Appellees. ON BRIEF: Allyson C. Kit-

chel, TRICHILO, BANCROFT, MCGAVIN, HORVATH &

JUDKINS, Fairfax, Virginia, for Appellees Fauquier County

Board of Supervisors, Mimi deNicolas, Stephanie Duncan,

and La’Teeka Tutwiler; James R. Kearney, KEARNEY,

FREEMAN, FOGARTY & JOSHI, P.L.L.C., Fairfax, Vir-

ginia, for Appellees Beth Stephens and Chrysalis Counseling

Center, P.C.; Eugenia Vroustouris, LECLAIR RYAN, P.C.,

Alexandria, Virginia, for Appellee Mark Simonds.

OPINION

WILKINSON, Circuit Judge:

Plaintiffs Alexandra Wolf and her two children appeal the

district court’s grant of summary judgment to various private

and public defendants in a case involving the reporting and

investigation of suspected child abuse. Plaintiffs allege a

WOLF v. FAUQUIER COUNTY 3

number of violations of state law by Chrysalis Counseling

Center, P.C. and its employees, and allege violations of 42

U.S.C. § 1983 by Fauquier County Board of Supervisors and

the employees of the Fauquier County Department of Social

Services ("DSS"). The claims arise out of a complaint of sus-

pected child abuse made to DSS by Alexandra Wolf’s coun-

selor at Chrysalis. Plaintiffs allege that the complaint was

false and that DSS failed to adequately investigate the com-

plaint. We affirm the judgment for defendants because the

Commonwealth of Virginia has made the protection of chil-

dren the centerpiece of its child abuse reporting system and its

social services apparatus. To impose civil liability in these cir-

cumstances would turn that system on its head.

I.

Alexandra Wolf is a single mother of two children who in

2005 resided in Warrenton in Fauquier County, Virginia. At

the time of the events at issue in this litigation, her son was

eleven years old and her daughter was ten. In the late 1980s

and early 1990s, Wolf had problems with panic and anxiety

for which she sought mental health counseling. During the

early 1990s she also briefly experienced suicidal thoughts.

These problems subsided and Wolf had no further mental

health issues until July 2005, when she again began suffering

from panic attacks. As a result, Wolf sought treatment at

Chrysalis Counseling Center in Culpeper, Virginia. Chrysalis

is a Virginia corporation that offers counseling services and

employs a psychiatrist, a psychologist, social workers, and

licensed professional counselors. Elizabeth Stevenson, a

licensed social worker, is the founder and sole shareholder,

officer, and director of Chrysalis. Beth Stephens is a "life

coach" employed at Chrysalis. She has no advanced training

or expertise in mental health. She initially was employed only

as the office manager at Chrysalis, but Stevenson chose to

designate Stephens as a life coach and gave her some limited

training.

4 WOLF v. FAUQUIER COUNTY

On July 27, 2005, Wolf contacted Chrysalis by telephone

and requested help dealing with anxiety and panic. The recep-

tionist took down her information on a contact sheet. Steven-

son reviewed the contact sheet and assigned Wolf to

Stephens. Wolf’s first two sessions with Stephens, in which

they discussed Wolf’s problems with anxiety, occurred with-

out incident.

However, what happened at the end of the third session, on

August 17, 2005, is disputed. What the parties do agree on is

that this is when events took a strange turn. Wolf claims that

she mentioned to Stephens that she had years earlier had sui-

cidal thoughts and had considered ending her life with carbon

monoxide poisoning, but that she now recognized those

thoughts were foolish. Stephens alleges that Wolf described a

plan to kill herself and her children using carbon monoxide on

November 1, 2005. Wolf for her part concedes that suicide

had been on her mind and that at the least her suicide as a sin-

gle mother would leave her children dangerously unattended.

Whatever was actually said, it seems clear that Stephens

understood Wolf as expressing present intentions to kill her-

self or her children. And whether Wolf’s thoughts had turned

to taking her own life or that of her offspring hardly seems

dispositive, for the effect on the children would in either case

be horrific and surely sufficient to elicit Stephens’s concern

for their well-being. Stephens, in a self-described state of

"shock" at Wolf’s description of her suicidal thoughts,

excused herself to go speak with Dr. Mark Simonds, a psychi-

atrist employed by Chrysalis. Simonds instructed Stephens to

have Wolf sign a "no-harm contract," a document stating that

the signor has no intention to harm herself or others; he also

advised Stephens to contact Stevenson and DSS.

Stephens then phoned Stevenson, who reiterated Simonds’s

advice that Stephens call DSS. Stephens also obtained a copy

of a no-harm contract and returned to the room where she had

left Wolf. According to Wolf, Stephens asked her several

WOLF v. FAUQUIER COUNTY 5

times whether she planned to hurt herself or her children, and

Wolf each time said no. Stephens asked that Wolf sign the no-

harm contract. Wolf was reluctant to sign the contract, but

ultimately did sign. Stephens claims that Wolf then abruptly

left the Chrysalis building. Wolf claims that she left only after

Stephens exited the room once Wolf had signed the contract.

Stephens then telephoned DSS, but received a recorded

message stating that for urgent matters callers should contact

the local sheriff’s office. Stephens telephoned Stevenson, who

instructed Stephens to contact law enforcement. Stephens then

telephoned the Warrenton Police Department and told the dis-

patcher that she believed Wolf planned to kill herself and her

children.

The police department sent an officer to Wolf’s residence

in order to check on Wolf’s safety. When Wolf learned of the

officer’s visit, she contacted her attorney, David Silek. Silek

contacted the police department and stated that Wolf was of

sound mind and requested that the police not bother her.

The next morning, August 18, 2005, Stephens and Steven-

son spoke with Mimi deNicolas, DSS’s program manager, on

a conference call. Stephens told deNicolas that Wolf had

threatened to kill herself and her children. DSS thus began an

investigation. Because the complaint was considered "high

priority," two social workers were dispatched that morning to

Wolf’s home. The social workers found no one at home.

Later that day, two other DSS employees, Stephanie Dun-

can and Lateeka Tutwiler, were sent to Wolf’s home. Duncan

and Tutwiler knocked on Wolf’s door, but no one answered.

However, the DSS employees heard noises inside the house,

so they returned to their car and called the police. Wolf had

been napping inside; when she awoke and saw a white car in

front of her house, she called Silek again. Wolf came outside

to speak to Duncan and Tutwiler. Wolf attempted to have

Silek speak to Duncan on Wolf’s cellphone, but Duncan was

6 WOLF v. FAUQUIER COUNTY

skeptical that Silek was actually an attorney. Silek contacted

deNicolas, and they agreed that Silek, deNicolas, and Wolf

would meet the next day to discuss the situation. The DSS

workers were not permitted to interview Wolf or her children

about the details of the complaint while at the residence.

Because the meeting was not scheduled until the next

morning, Duncan and Tutwiler told Wolf that they needed to

establish a plan to ensure the safety of Wolf’s children for the

night. The parties agreed that the children would spend the

night at the home of Wolf’s neighbor. Wolf signed the "safety

plan," although she noted on it several objections, and wrote

a statement that she was not suicidal and would not hurt her

children. The children were placed with the neighbor, who

was told to call the police if Wolf attempted to contact the

children that night.

The next morning, August 19, 2005, Wolf, Silek, deNi-

colas, Duncan, and two of Wolf’s friends met at Wolf’s

house. The parties discussed DSS’s family assessment pro-

cess, and Wolf agreed that later that day she would receive an

emergency temporary detaining order evaluation by a member

of the Community Services Board in order to determine

whether she was suicidal or homicidal. Wolf told deNicolas

and Duncan that she planned to travel to Florida with her chil-

dren in the next few weeks. The evaluation was conducted by

Annie Holland later that afternoon. In her report, Holland rec-

ommended that Wolf continue to seek counseling, and that

she allow DSS to monitor her children. However, she did not

recommend that Wolf be hospitalized. The children were

returned to Wolf after the evaluation.

Later that month, Janis Selbo, deNicolas’s supervisor, told

deNicolas to contact DSS’s attorney, Robert Beard. Selbo was

concerned that DSS had not heard from Wolf since the

August 19 meeting, and that DSS had never been able to

interview Wolf’s children. Beard’s advice was that DSS go to

court to obtain a protective order for the children against

WOLF v. FAUQUIER COUNTY 7

Wolf. Accordingly, Duncan and Tutwiler prepared a petition

for each child.

At a September 2, 2005 ex parte hearing in Fauquier

County Juvenile & Domestic Relations Court, a judge entered

an order for each child appointing Whitson Robinson as the

guardian ad litem ("GAL"), and requiring that Wolf undergo

a psychiatric evaluation, make the children available for inter-

views with DSS, and allow DSS to provide services to the

children. The court continued the matter for one week and

scheduled a hearing for September 9.

Wolf had left for Florida on September 1 and was not

aware of the September 2 hearing. Silek, having learned of the

September 9 hearing from one of Wolf’s neighbors, appeared

at the hearing. He negotiated an agreement with Beard in

which Wolf would allow a friend to have daily contact with

her children, and that friend would report to DSS on the chil-

dren’s safety. Wolf also agreed that she would receive a psy-

chiatric evaluation, the children could be evaluated by a social

services representative, and the appointment of the GAL

would continue.

Pursuant to the agreement, Wolf had daily contact with her

friend. She received an evaluation from a psychologist in late

September. The children were interviewed by Beverly Dun-

ford, Director of Rappahannock County Department of Social

Services on November 4, 2005. In Dunford’s view, the chil-

dren had been "coached," and she was not able to make any

assessment about the children. The GAL met with Wolf and

her children in January of 2006. He did not file his report until

April of 2006. After receiving the GAL’s report, DSS had

Beard request that the court continue the GAL’s appointment.

The court denied the request and dismissed the GAL.

On August 16, 2006, Wolf and her children filed an action

in the United States District Court for the Eastern District of

Virginia, alleging various state law claims against Chrysalis

8 WOLF v. FAUQUIER COUNTY

and Stephens as well as several claims arising under 42

U.S.C. § 1983 against defendants Fauquier County Board of

Supervisors, deNicolas, Tutwiler, and Duncan. After the com-

plaint was amended a third time, the district court dismissed

Simonds as a defendant for failure to state a claim upon which

relief can be granted. The court ultimately granted the remain-

ing defendants’ motion for summary judgment on all claims.

Plaintiffs timely appealed.

II.

First, we shall consider the district court’s dismissal of the

claims against the Chrysalis defendants. At issue here are

claims of defamation, breach of contract of confidentiality,

negligence, and intentional infliction of emotional distress

against Stephens and Chrysalis; negligent hiring against Chrysa-

lis;1 and medical malpractice against Stevenson and Simonds.

A.

The claims brought against both Stephens and Chrysalis

arise directly out of Stephens’s report to DSS. The most seri-

ous obstacle to these claims is Virginia’s statutory scheme for

the prevention of child abuse. Under Virginia Code § 63.2-

1509, medical and mental health professionals, social work-

ers, as well as a number of other occupation holders who

"have reason to suspect that a child is an abused or neglected

child" are legally required to "report the matter immediately

to the local department of the county or city wherein the child

resides or wherein the abuse or neglect is believed to have

occurred or to the Department’s toll-free child abuse and

neglect hotline." Va. Code § 63.2-1509. Mandatory reporters

who fail to notify the authorities are subject to fines. Id. A

person who is not required to report but who nonetheless

1

Plaintiffs also brought a claim for negligent supervision against Chrys-

alis, but have not appealed the district court’s determination that such a

cause of action does not lie under Virginia law.

WOLF v. FAUQUIER COUNTY 9

"suspects that a child is an abused or neglected child may

make a complaint concerning such child." Id. § 63.2-1510. A

child whose parent has threatened to kill the child qualifies

under the statute as an "abused or neglected child." Id. § 63.2-

100.

Under Virginia law, reporters are protected. A person who

reports suspected child abuse pursuant to either § 63.2-1509

or § 63.2-1510 "shall be immune from any civil or criminal

liability in connection therewith, unless it is proven that such

person acted in bad faith or with malicious intent." Id. § 63.2-

1512. Virginia’s scheme is thus highly solicitous of the needs

of potentially abused or neglected children. The statutory

framework is designed to encourage those who genuinely sus-

pect a child is at risk to report their suspicions to authorities

without fear of civil liability.

Plaintiffs argue that § 63.2-1509 "clearly does not apply to

layperson reports" like that of Stephens. Opening Brief of

Appellants at 44. The Chrysalis defendants argue that "as an

employee of a licensed counseling center," Stephens is "con-

sidered a mandatory reporter." Brief of Appellees Stevenson,

Chrysalis, Stephens & Simonds at 6. On this point, we shall

assume that Stephens is not a mandatory reporter, as she does

not appear to be "licensed to practice medicine or any of the

healing arts," "employed as a social worker," or a "mental

health professional." Stephens has no degree or training in

social work or any mental health field, and she has no profes-

sional license of any kind. Nor does she fit into any of the

other enumerated categories in the statute. Va. Code § 63.2-

1509. Even if Stephens were not a mandatory reporter, how-

ever, she could hardly be condemned for having some doubt

about her status and not wishing to risk criminal penalties for

failure to "immediately" report. Va. Code § 63.2-1509.

Stephens’s status, however, does not resolve the ultimate

question of liability because immunity attaches to both man-

datory and voluntary reporters. In fact, the standards for

10 WOLF v. FAUQUIER COUNTY

immunity—a presumptive protection absent bad faith or

malice—are the same. See Va. Code § 63.2-1512. The main

difference between the two types of reporters lies not in the

level of immunity provided but rather in the penalty for fail-

ure to report, which applies only to mandatory reporters.

We address therefore the standard for immunity. Plaintiffs

claim that Stephens made the report to DSS in bad faith. The

Virginia Supreme Court has not had occasion to interpret the

terms "bad faith" or "malicious intent" in the particular con-

text of § 63.2-1512. The cases interpreting bad faith have

largely arisen in the context of insurance law. See CUNA Mut.

Ins. Soc’y v. Norman, 375 S.E.2d 724, 726-27 (Va. 1989);

State Farm Mut. Auto. Ins. Co. v. Floyd, 366 S.E.2d 93, 96-97

(Va. 1988); Aetna Cas. & Sur. Co. v. Price, 146 S.E.2d 220,

228 (Va. 1966). Those cases, while helpful, are of less than

complete utility in the very different field of reporting sus-

pected child abuse. Our deference to the Virginia Supreme

Court on matters of state law makes it inadvisable to attempt

a comprehensive definition of bad faith in this context. Cer-

tain points, however, are self-evident. One is the strong pre-

sumption that immunity applies, a presumption that cannot be

overcome "unless it is proven that such person [the reporter]

acted in bad faith or with malicious intent." Va. Code § 63.2-

1512 (emphasis added). The burden is placed squarely on the

person who would overcome the presumption to prove that

immunity should not attach.

In short, the Virginia General Assembly set a high bar for

those wishing to strip reporters of suspected child abuse of

their statutory immunity. This conclusion is evident from the

words chosen by the General Assembly. The words "mali-

cious intent" obviously require some kind of malign motive.

As to bad faith, Black’s Law Dictionary defines the term (out-

side of the context of insurance law) as "[d]ishonesty of belief

or purpose." Black’s Law Dictionary 149 (8th ed. 2004). Neg-

ligence or mistake does not rise to the level of dishonesty. Cf.

Aetna, 146 S.E.2d at 228 (holding that "sound reason compels

WOLF v. FAUQUIER COUNTY 11

the adoption of the bad faith rule, rather than the negligence

rule" in the context of an insurer’s refusal to settle a claim).

It was open to the legislature to provide a less effective immu-

nity defense by using different language. The statute could

have provided that immunity attaches only to those reports

that are "reasonable," or "supported by substantial evidence,"

or "tendered with due care," but the General Assembly used

no such terminology.

Whether the standard is thus the subjective one of mali-

cious intent or the more objective one of bad faith, see State

Farm, 366 S.E.2d at 97, it is plain that Virginia law requires

something more than a mistaken report, or a report based on

a misunderstanding, or even a report that was negligently ten-

dered. See Aetna, 146 S.E.2d at 228. So long as the reporter

was acting in the interest of protecting a child rather than out

of self-interest or with an intent, for example, to settle some

score with the child’s parent, the plain intent of the legislature

was to allow immunity to attach to the reporter. Cf. State

Farm, 366 S.E.2d at 97 (to show bad faith refusal to settle by

insurer, insured must prove that "insurer acted in furtherance

of its own interest, with intentional disregard of the financial

interest of the insured").

In other words, the statute provides that immunity will dis-

solve only in those infrequent circumstances where someone

used the reporting system for purposes other than that for

which it was designed—namely, the protection of children. It

is very clear what the General Assembly wished to do, and we

will not make public policy of our own by pursuing a differ-

ent course—specifically, that of discouraging the reporting of

suspected child abuse by exposing either mandatory or volun-

tary reporters to the significant risk of civil liability. Viewing

the evidence in the light most favorable to plaintiffs suggests

that Stephens was at worst negligent in making the report, and

negligence is a far cry from "bad faith."

Plaintiffs have not alleged or suggested any untoward ani-

mus, pre-existing bad blood, desire for revenge, or the like

12 WOLF v. FAUQUIER COUNTY

that would strip Stephens of immunity. As the district court

noted, plaintiffs have also not suggested "that Stephens was

acting only in furtherance of her own interest and with com-

plete disregard for Plaintiffs’ interests." J.A. 2414. To the

contrary, reporting the incident could well have cost Stephens

and Chrysalis a client. While one may dispute exactly what

was said in the course of the conversation between Wolf and

Stephens the district court found "it is undisputed that Ste-

phens believed Wolf intended to harm her children," that Ste-

phens repeated the same on several occasions, and that she

called DSS when told by her superiors of the obligation to do

so. J.A. 2413. In any case, no interpretation of events leaves

room for the view that Stephens was acting with malicious

intent or in bad faith. Plaintiffs suggest that Stephens should

have inquired or investigated further and assembled some

objective foundation for her report. See Opening Brief of

Appellants at 41. But the statute makes no mention of such

duties of inquiry and investigation, perhaps because in the

case of an abused or neglected child there often is no time to

investigate, and because investigation is after all the job of

DSS.

Because of the nature of the relationship between a patient

and a counselor, a rule that immunity could be overcome

merely by a patient’s disputing the contents of a conversation

during a counseling session would gut the reporting statute.

Under such a regime, the requirement that a counselor keep

the contents of her counseling sessions confidential would

make it difficult for the counselor ever to protect herself

because it limits her opportunities to establish her version of

the record. Such a rule would further put counselors between

a rock and a hard place, as they weigh on one hand the risks

of harm to a child, and perhaps criminal liability for a failure

to report, and on the other the burden of a lawsuit for report-

ing a suspicion that turned out to be inaccurate. The Virginia

legislature sought to resolve the dilemma by encouraging

reporting, simply because the failure to do so might leave

WOLF v. FAUQUIER COUNTY 13

children to a tragic fate. We do no more here than respect its

choice.

Thus, we find that Stephens and Chrysalis are immune

from suit on the defamation, breach of contract of confidenti-

ality, negligence, and intentional infliction of emotional dis-

tress claims under Virginia Code § 63.2-1512, as all arise

directly out of Stephens’s report of suspected child abuse.2

Summary judgment for defendants on those claims was

proper.

B.

The negligent hiring claim against Chrysalis and the medi-

cal malpractice claims against Stevenson and Simonds also

arise, albeit indirectly, from the fact of Stephens’s report. We

need not decide, however, whether the immunity provision in

§ 63.2-1512 bars these claims, because they fail on other

grounds.

First, the negligent hiring claim. Plaintiffs claim that Chrys-

alis was negligent in hiring Stephens as a life coach when

under Virginia law, "one who conducts an activity through

employees is subject to liability for harm resulting from the

[employee’s] conduct if the employer is negligent in the hir-

ing of an improper person in work involving an unreasonable

risk of harm to others." Se. Apts. Mgmt., Inc. v. Jackman, 513

S.E.2d 395, 397 (Va. 1999). Although the Virginia Supreme

Court has never definitively stated what kind of harm suffices

2

It is not entirely clear whether plaintiffs alleged these claims against

Stevenson as well. The complaint names only Stephens and Chrysalis on

these counts, but plaintiffs’ brief treats the claims as if they are made

against Stevenson also. See Opening Brief of Appellants at 33. The case

for liability is weak against Stevenson, however, because Stevenson, as a

licensed clinical social worker, is a mandatory reporter under a duty to

report immediately suspected child abuse. See Va. Code § 63.2-1509. Ste-

venson, who had known Stephens for some years, further had no reason

to doubt the accuracy of her claim.

14 WOLF v. FAUQUIER COUNTY

to make out a claim, other courts have concluded that a seri-

ous physical injury to the plaintiff is a required element. See

Parker v. Geneva Enterprises, 997 F. Supp. 706, 713 (E.D.

Va. 1997). Investors Title Ins. Co. v. Lawson, 68 Va. Cir. 337,

338 (Henry County 2005). But see Flanary v. Roanoke Valley

SPCA, 53 Va. Cir. 134, 139 (Roanoke 2000); Courtney v.

Ross Stores, Inc., 45 Va. Cir. 429, 430 (Fairfax County 1998).

The Virginia Supreme Court cases upholding a cause of

action for negligent hiring involved physical injuries. See J.

v. Victory Tabernacle Baptist Church, 372 S.E.2d 391 (Va.

1988); Davis v. Merrill, 112 S.E. 628 (Va. 1922); Weston’s

Adm’x v. Hospital of St. Vincent of Paul, 107 S.E. 785 (Va.

1921). Although the Virginia Supreme Court would certainly

be free to adopt a broad definition of harm extending beyond

physical injury as an element of negligent hiring, we decline

to do so on our own. Because there is no allegation that Wolf

or her children suffered any physical harm as a result of

Chrysalis’s decision to hire Stephens, or that there was any

reason for Chrysalis to think that hiring Stephens would

create a risk of physical harm to anyone, summary judgment

was properly granted for Chrysalis on the claim for negligent

hiring.

Next, we turn to the medical malpractice claim. Under Vir-

ginia law, "a physician’s liability for malpractice is predicated

upon an initial finding that a consensual agreement exists

between physician and patient, establishing a relationship

from which flows the physician’s duty of care." Harris v.

Kreutzer, 624 S.E.2d 24, 30 (Va. 2006). "A physician’s duty

arises only upon the creation of a physician-patient relation-

ship . . . . Whether a physician-patient relationship is created

is a question of fact, turning upon a determination whether the

patient entrusted his treatment to the physician and the physi-

cian accepted the case." Lyons v. Grether, 239 S.E.2d 103,

105 (Va. 1977).

We agree with the district court that no physician-patient

relationship existed between Wolf and either Simonds or Ste-

WOLF v. FAUQUIER COUNTY 15

venson. Wolf signed a contract for life coaching, which is not

medical care. She never saw Stevenson or Simonds. Wolf did

not agree to receive, and neither Stevenson nor Simonds

agreed to provide, "health care" as defined by Virginia’s Med-

ical Malpractice Act. See Va. Code §8.01-581.1. There is no

evidence that Stevenson or Simonds advised Stephens as to

the course of treatment for Wolf. When Stevenson and

Simonds each advised Stephens to report Wolf’s threats to

DSS, they were not providing medical advice but rather were

giving non-medical professional advice. Because no

physician-patient relationship existed, the claim against

Simonds was correctly dismissed and summary judgment for

Stevenson on the claim against her was properly awarded.

Plaintiffs also face an additional difficulty with respect to

these tort actions, namely that a breach of a duty must be the

proximate cause of the claimed injury. Fruiterman v.

Granata, 668 S.E.2d 127, 132 (Va. 2008) (medical malprac-

tice); Interim Personnel of Cent. Va., Inc. v. Messer, 559

S.E.2d 704, 708 (Va. 2002) (negligent hiring). We do not

believe a reasonable jury could find that any negligence by

Chrysalis, Stevenson, or Simonds was the proximate cause of

any harm that allegedly arose out of the DSS investigation,

for the causal link between the two is simply too attenuated.

"The proximate cause of an event is that act or omission

which, in natural and continuous sequence, unbroken by an

efficient intervening cause, produces the event, and without

which that event would not have occurred." Beverly

Enterprises-Virginia v. Nichols, 441 S.E.2d 1, 4, (Va. 1994)

(quoting Coleman v. Blankenship Oil Corp., 267 S.E.2d 143,

147 (Va. 1980)). We do not believe that the allegedly pro-

longed DSS investigation resulted "in natural and continuous

sequence" from any alleged negligence on the part of Chrysa-

lis, Stevenson, or Simonds. Moreover, the actions of DSS

employees constitute intervening causes that break any chain

of proximate causation between the alleged negligence and

the alleged injury. Thus, for this reason as well the negligent

16 WOLF v. FAUQUIER COUNTY

hiring claim and medical malpractice claims were rightly dis-

missed by the district court.

III.

We turn now to the claims under 42 U.S.C. § 1983 against

the Fauquier County Board of Supervisors and Fauquier DSS

employees deNicolas, Duncan, and Tutwiler.

A.

We consider first the claims made against Fauquier County.

A county may be found liable under 42 U.S.C. § 1983 only

"when execution of a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury."

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

Plaintiffs contend that Fauquier County should be held liable

for DSS’s "overriding policy . . . of assuming that abuse com-

plaints are true." Opening Brief of Appellants at 62. The

County argues that it is not a proper defendant because it did

not supervise the individual defendants nor did it make policy

for DSS. Brief of Appellees Fauquier County Board of Super-

visors et al. at 22.

We agree with the County that it was not a proper party.

Under Virginia law, the supervision of local social services

departments is entrusted to the Commissioner of Social Ser-

vices and the State Board of Social Services. Bockes v. Fields,

999 F.2d 788, 789 (4th Cir. 1993). Counties and cities appoint

the members of their local social services boards from a list

of eligible candidates provided by the Commissioner; the

local boards in turn appoint local directors of social services.

Va. Code § 63.2-325. Beyond this limited appointment power,

municipalities have no control over the operations of local

social services boards or departments. The boards report to

the Commissioner and the State Board of Social Services, not

to the counties or cities that appoint their members. The poli-

WOLF v. FAUQUIER COUNTY 17

cies followed by Fauquier County DSS are found in the Vir-

ginia Code, the Virginia Department of Social Services

Manual, and the Virginia Administrative Code—all of which

are drafted by the Commonwealth of Virginia, not Fauquier

County. Fauquier County did not hire, train, or supervise the

individual DSS employees who are defendants.

Plaintiffs argue that Fauquier County is liable because it

appointed DSS Director Selbo, who, they contend, has final

policymaking authority over the agency. Opening Brief of

Appellants at 62-63 (citing Pembaur v. City of Cincinnati, 475

U.S. 469, 481-84 (1986) (opinion of Brennan, J.); Lytle v.

Doyle, 326 F.3d 463, 472 (4th Cir. 2003)). Contrary to this

assertion, the record shows that Selbo serves under the author-

ity of the Social Services Board, and must follow the policies

set by the Virginia legislature and the Commissioner of Social

Services. Plaintiffs have not adduced any evidence suggesting

that the actions of the individual DSS employees in this case

followed policies set by Selbo rather than by the Common-

wealth of Virginia.

The proper defendant was thus not Fauquier County Board

of Supervisors, but rather Fauquier County Social Services

Board. Whether the Social Services Board, as an arm of the

Commonwealth of Virginia, might assert a successful Elev-

enth Amendment defense is not before us because plaintiffs

did not name the Social Services Board as a defendant. The

district court rightly granted summary judgment for the

County.

B.

Finally we turn to the claims against the individual DSS

defendants. Plaintiffs allege that in the course of the DSS

investigation deNicolas, Duncan, and Tutwiler violated the

Wolfs’ procedural and substantive due process rights to famil-

ial relations guaranteed by the Fourteenth Amendment.3 They

3

Plaintiffs in their third amended complaint alleged that DSS’s removal

of the children from Wolf’s home on August 18 violated the Fourth

18 WOLF v. FAUQUIER COUNTY

allege that the DSS employees made false allegations against

Wolf; rejected Wolf and Silek’s attempts to explain that Ste-

phens’s report was false; told Wolf she could leave for Flor-

ida, but filed for the protective order after she left; refused to

investigate Stephens’s lack of mental health qualifications or

the circumstances of the alleged threat; created a fraudulent

affidavit on which Beard relied in obtaining a protective

order; insisted that Wolf accept "services" from DSS; and

unreasonably opposed the release of the GAL.

No constitutional right was violated in this case. With

respect to the procedural due process claim, Wolf points to a

number of ways in which she claims the investigation could

have been better handled and more quickly resolved. But she

cannot show that the investigation did not meet the minimum

standards required by procedural due process. Procedural due

process provides merely "a guarantee of fair procedures—

typically notice and an opportunity to be heard." Mora v. City

of Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008) (citing

Zinermon v. Burch, 494 U.S. 113, 125 (1990); Goss v. Lopez,

419 U.S. 565, 579 (1975)) (internal citations omitted). Wolf

was not denied the right to be heard; indeed, the DSS employ-

ees went out of their way to try to interview and otherwise

obtain information about the safety of Wolf’s children and

were stonewalled by Wolf and her attorney.

In a sense plaintiffs’ claim is the opposite of most proce-

dural due process claims. Where most plaintiffs allege that

government officials act too precipitously and without ade-

quate information in depriving a plaintiff of a protected inter-

est, in this case plaintiffs allege that DSS sought too much

Amendment and the Due Process Clause of the Fourteenth Amendment.

However, plaintiffs now state that "[n]o one would plausibly claim that the

DSS social workers were not entirely reasonable in initially responding to

the report . . . that Wolf was contemplating suicide and posed a danger to

her children" and concede that the removal was reasonable. Opening Brief

of Appellants at 65.

WOLF v. FAUQUIER COUNTY 19

information and spent too long investigating. While it is

regrettable that Wolf had to spend time addressing an undeni-

ably intrusive inquiry, DSS’s investigation, even if imperfect,

did not deprive Wolf of due process by denying her the right

to make her case.

We also cannot say any substantive due process right was

violated by the DSS investigation. The Court made clear in

Lewis that "only the most egregious official conduct can be

said to be ‘arbitrary in the constitutional sense,’" 523 U.S. at

846 (quoting Collins v. City of Harker Heights, 503 U.S. 115,

129 (1992)). Only abuse of power which "shocks the con-

science" creates a substantive due process violation. Id. The

conduct of the individual DSS defendants does not approach

the level of shocking the conscience. DSS responded to a

complaint suggesting the possibility of serious harm and pro-

ceeded to investigate and take steps to assure the safety of

children that might have been in danger. Despite plaintiffs’

attempts to paint DSS’s actions as abusive, the investigation

does not seem irregular, let alone conscience-shocking.

Were we to say that DSS’s investigation violated due pro-

cess, we would surely place social services workers in an

impossible situation. In the face of a complaint alleging child

abuse, DSS employees would have two choices. On the one

hand, they could investigate and face § 1983 liability if their

investigation was somehow imperfect or the complaint turned

out to be unfounded. On the other hand, they could do nothing

—and risk tragic consequences such as those illustrated by the

facts of DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189 (1989), in which social services

employees failed to protect a child from being so savagely

beaten by his father that the child was rendered profoundly

retarded. Surely the Constitution does not require that social

services workers be placed in any such dilemma.

Because we find that deNicolas, Duncan, and Tutwiler did

not violate any of plaintiffs’ constitutional rights, summary

judgment on the claims against them was proper.

20 WOLF v. FAUQUIER COUNTY

IV.

Hard choices surround the issue of suspected child abuse.

Virginia’s reporting statute and its social services apparatus

are both based on the assumption that false positives—

mistaken reports of child abuse followed by DSS

investigations—are less harmful than false negatives — seri-

ous harm to a child that could have been prevented but was

not. Thus it is with every legal regime; whenever government

seeks to prevent harm before it occurs, it must make difficult

tradeoffs between tolerating mistake on the one hand and seri-

ous injury on the other. There is no conceivable child abuse

prevention policy that both gives government the ability to

respond to threats in order to prevent harms before they occur

yet prevents government from investigating before being cer-

tain that a perceived threat is real. Policymakers must choose

which of these harms is the greater evil.

This case makes concrete the consequences of a false posi-

tive. A legal regime that weighed the costs of false positives

differently might provide a legal redress for the harm that

plaintiffs allege. But because the Commonwealth of Virginia

in designing its child abuse reporting scheme and its social

services apparatus decided the costs of an occasional mistaken

report were far less than the costs of lasting harm to the lives

and safety of young children, the judgment must be affirmed.

AFFIRMED