Doe Ex Rel. Johnson v. South Carolina Department of Social Services

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JANE DOE, by and through her 

guardians Gregory and Michelle

Johnson; GREGORY JOHNSON;

MICHELLE JOHNSON; JOHN AND JANE

DOES, #1-10,

Plaintiffs-Appellants,

v.

SOUTH CAROLINA DEPARTMENT OF

SOCIAL SERVICES, SCDSS; DEBBY

THOMPSON; ELIZABETH G.



PATTERSON, Director; KIM S.

AYDLETTE, Director, No. 08-2161

Defendants-Appellees,

and

KAMERON SETH COX; TITSA M.

FLESCH; HEALTHY MINDS, LLC;

JOHN AND JANE ROES, #1-10;

MANAGERIAL ROES, #1-10;

SUPERVISORY ROES, #1-10;

CASEWORKER ROES, #1-10; FOSTER

PARENT ROES, #1-10,

Defendants.



Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(3:06-cv-03663-JFA; 3:07-cv-01629-JFA)

2 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

Argued: October 15, 2009

Decided: March 5, 2010

Before TRAXLER, Chief Judge, WILKINSON,

Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by published

opinion. Chief Judge Traxler wrote the majority opinion, in

which Senior Judge Hamilton joined. Judge Wilkinson wrote

a separate opinion concurring in the judgment.

COUNSEL

ARGUED: Robert James Butcher, CAMDEN LAW FIRM,

PA, Camden, South Carolina, for Appellants. Andrew Linde-

mann, DAVIDSON & LINDEMANN, PA, Columbia, South

Carolina, for Appellees. ON BRIEF: William H. Davidson,

II, Katy A. Rice, DAVIDSON & LINDEMANN, PA, Colum-

bia, South Carolina, for Appellees.

OPINION

TRAXLER, Chief Judge:

Jane Doe, a minor child, and her adoptive parents, Gregory

and Michelle Johnson, brought this action under 42 U.S.C.A.

§ 1983 (West 2003), against Debby Thompson

("Thompson"), an Adoption Specialist with the South Caro-

lina Department of Social Services ("SCDSS"), alleging vio-

lations of their substantive due process rights under the

Fourteenth Amendment to the United States Constitution.

Plaintiffs brought additional state law claims against SCDSS

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 3

under the South Carolina Tort Claims Act ("SCTCA"), see

S.C. Code Ann. §§ 15-78-10 to 15-78-220 (1976), alleging

gross negligence on the part of SCDSS and its employees.

The district court granted summary judgment on the § 1983

claims in favor of Thompson based upon qualified immunity,

and summary judgment to SCDSS based upon discretionary

immunity. We affirm in part, vacate in part, and remand.

I.

On August 9, 1999, SCDSS received a report that four-

year-old Jane Doe and her eight-year-old brother, Kameron

Cox, were victims of sexual abuse. The report alleged that

Kameron had been sexually abused by his mother and that

Jane had been sexually abused by her mother’s boyfriend and

her maternal grandfather. The biological father of the children

was incarcerated in another state.

Upon receipt of the report, SCDSS officials took the chil-

dren into emergency protective custody. During the subse-

quent investigation, Kameron claimed that his mother had

sexually abused him, and denied knowledge of anyone sexu-

ally abusing Jane. Jane’s mother denied abuse but reported

that "Kameron had played with [Jane]’s private but she told

him not to do it anymore." J.A. 479. Ultimately, the sexual

abuse assessments and medical examinations were inconclu-

sive as to whether the children had been sexually abused.

However, the South Carolina Family Court found physical

neglect and granted SCDSS temporary custody of the chil-

dren. No findings were made regarding the sexual abuse alle-

gations. Physical custody of the children was initially

transferred to a maternal aunt, but she relinquished the chil-

dren to SCDSS’s legal custody in July 2000. They were

placed in a group home until September 2000 when they were

moved to their first state-approved foster home.

On June 18, 2001, Joy Bennett, the children’s therapist,

reported that Kameron had become increasingly angry and

4 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

depressed at his inability to return to his mother’s home. She

stated that he posed a threat to himself and to Jane, and she

recommended psychiatric hospitalization. However, she also

recommended that, in order to maintain the bond between

Kameron and Jane, the two ultimately should continue to be

placed together "if this c[ould] be done safely" for Jane. J.A.

436. According to the psychiatric records, Kameron had a his-

tory of depression, suicidal and homicidal thoughts, and had

become increasingly aggressive and hostile toward Jane.

Kameron blamed Jane for their being in foster care "because

she made statements that [their] mother, stepfather, and

maternal grandfather [had] sexually molested her," but

Kameron "d[id] not believe her allegations." J.A. 536. The

psychiatric records also included a history of sexual experi-

mentation by Kameron and Jane with each other, possible

sexual abuse of the children, and possible intergenerational

incest.

On May 30, 2001, the defendant Debby Thompson, an

employee of SCDSS, was assigned as the Adoption Specialist

for the children. On July 5, 2001, Kameron was discharged

from the hospital and placed in a foster home separate from

Jane. Thompson began visiting the children later that month,

but Kameron’s threats to Jane necessitated postponement of

recruitment efforts for a joint adoption of the siblings "until

a determination of the appropriateness of an adoptive place-

ment of [Jane] and Kameron together c[ould] be made." J.A.

493. On August 22, 2001, Bennett advised Thompson that

Kameron "ha[d] been a danger to [Jane] and she should be

protected," but that Bennett had "realistic hope that Kameron

c[ould] deal with his emotions and be safely reunited with

her." J.A. 439. She also 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."

J.A. 440. Although the exact history of sexual abuse was

unclear, Bennett noted that it was "very likely that they ha[d]

engaged in inappropriate sexual encounters with adults and

with each other." J.A. 440. During this period, Jane also

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 5

began to exhibit acting-out behaviors of a sexual nature,

including overly affectionate behavior towards boys and men,

as well as anger and aggressiveness when she was frustrated.

On November 26, 2001, Jane was placed in foster care with

Bill and Pam Hamerick, where she could be seen by

Kameron’s therapist, Titsa M. Flesch, and have sibling visits

with Kameron, including some overnight visits on weekends

and holidays. On September 9, 2002, Kameron was placed in

the Hamericks’ home as well. By this time, SCDSS had filed

an action in family court seeking to legally terminate the

parental rights of the biological parents, in order to pursue a

joint adoption of the siblings. Following a contested proceed-

ing, the mother voluntarily relinquished her parental rights,

and the parental rights of the father were judicially termi-

nated. The family court granted "[c]ustody of the minor chil-

dren . . . to [SCDSS] with all rights of guardianship,

placement, care and supervision, including the authority to

approve medical treatment or educational plans, to secure

placement for the minor children and the sole authority to

consent to any adoption, with the authority to seek such rou-

tine and emergency medical care as [SCDSS] deems neces-

sary and in the best interests of said minor children." J.A. 316.

Plaintiffs Gregory and Michelle Johnson completed an

application for adoption in May 2002. The Johnsons

expressed their understanding that the "children [we]re in the

system because of abuse, neglect, etc.," and they stated that

they "fully underst[oo]d the therapy issues." J.A. 673. They

were willing to accept a child or children (including a sibling

group) with "mild/treatable" sexual abuse, J.A. 673, but not a

child who was "sexually aggressive" towards other children,

J.A. 672. In January 2003, Thompson presented a background

summary on Kameron and Jane to the Johnsons. Thompson

claims that the summary contained all of the information

available to her about the children, including the allegations

that they had been sexually abused. It stated that the children

had been removed from the birth home for allegations of sex-

6 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

ual abuse but that Jane had been inconsistent in her reports of

abuse, alternatively naming her birth mother, Kameron, her

maternal grandfather, and her mother’s boyfriend as having

been sexually inappropriate or abusive toward her. Kameron

had also been inconsistent at times, both denying and admit-

ting inappropriate contact with his mother. He denied knowl-

edge of any inappropriate contact between Jane and the

adults. In the end, the Johnsons were advised that SCDSS had

been unable to substantiate or rule out sexual abuse of either

child. However, the summary represented that "[t]here ha[d]

been no reports of any sexually inappropriate behavior from

Kameron since entering care" and that "[p]art of his therapy

ha[d] been to insure that he understands boundaries, good

touch-bad touch rules and appropriate social interactions."

J.A. 280 (emphasis added).

On February 28, 2003, Jane and Kameron were placed with

the Johnsons for prospective adoption. Approximately four

weeks after the placement, however, the Johnsons chose not

to proceed with the adoption of Kameron, and he was

removed from the Johnsons’ home. Among other things,

Kameron was believed to have inappropriately touched the

Johnsons’ biological son. Jane remained with the Johnsons

though, and her adoption was finalized on November 6, 2003.

Approximately one year later, Kameron admitted to his

therapist that he had sexually abused Jane prior to SCDSS’s

removal of them from the birth home. Kameron also claimed

to have sexually abused seven foster children while in foster

care, both before and after his placement with the Johnsons.

Kameron’s social worker notified the Johnsons that Kameron

had claimed to have had an inappropriate sexual relationship

with Jane prior to SCDSS’s taking custody of them, but Jane

told her therapist "that Kameron was lying and that they were

still having ‘sex’ until they moved in with [the Johnsons]."

J.A. 872. She also claimed that she told Thompson and Flesch

that Kameron had sexually abused her while she was with the

Hamericks and at other foster homes that she could not recall,

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 7

although she was inconsistent as to whom she told first.

According to Jane, Thompson "told her not to tell anyone or

they would never adopt her." J.A. 872. Thompson denies that

Jane made any such report to her. She claims that she received

no reports of any inappropriate behavior or contact between

Jane and Kameron occurring during her relationship with

Jane, and represents that she never observed any behavior

which would have led her to believe that Jane and Kameron

were having sexual or other inappropriate contact at that time.

Since the disclosure, Jane’s behavior has significantly dete-

riorated. According to the Johnsons, she cannot be left alone

or trusted, they are unable to obtain any help supervising her,

and they cannot leave her alone with other children for fear

that she will act out sexually. Among other things, she is

physically and sexually aggressive, violent towards the John-

sons and their biological children, and abusive to animals. Her

behavior has necessitated therapeutic placements outside the

home, and further care and treatment is believed to be indi-

cated.

The Johnsons subsequently filed suit on their own behalf,

and as parents and guardians of Jane, against Thompson.

They alleged under § 1983 that Thompson violated Jane’s

substantive due process rights under the Fourteenth Amend-

ment by placing her in foster care settings with Kameron

knowing that Kameron was sexually abusive toward Jane.

The Johnsons alleged that Thompson also violated their sub-

stantive due process rights by failing to fully disclose the sex-

ual history of Jane and Kameron prior to Jane’s adoption. The

Johnsons filed a second suit in state court against SCDSS,

pursuant to the SCTCA, alleging numerous state law claims,

including a claim of gross negligence on the part of SCDSS

employees in the placement and adoption process. This action

was removed to the district court and consolidated with the

federal action.1

1

A number of additional parties, known and unknown, were originally

named as defendants in both lawsuits. The only remaining claims on

8 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

Thompson moved for summary judgment, claiming that she

was entitled to qualified immunity from suit for the § 1983

claims. SCDSS also moved for summary judgment, claiming

that it was entitled to discretionary immunity from suit for the

state law claims under the SCTCA. The district court granted

the defendants’ respective motions for summary judgment on

all claims, and this appeal followed. We review the district

court’s decision to grant summary judgment to the defendants

de novo. See Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir.

2007).

II.

A.

Qualified immunity from § 1983 claims "protects govern-

ment officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or con-

stitutional rights of which a reasonable person would have

known.’" Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It

is intended to "balance[ ] two important interests — the need

to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties rea-

sonably." Id.

Claims to qualified immunity present a two-pronged

inquiry. The governmental official will be granted immunity

appeal, however, are the § 1983 substantive due process claims against

Thompson and the gross negligence claims against SCDSS. The Johnsons

also included as plaintiffs ten unnamed and unidentified children allegedly

sexually molested by Kameron while in foster care, but they have not cer-

tified the matter as a class action, identified these children, or demon-

strated that they have standing to bring the action on their behalf. To the

extent the Johnsons pursue these claims on appeal, we summarily affirm

their dismissal.

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 9

unless (1) "the facts that a plaintiff has alleged (see Fed. Rules

Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out

a violation of a constitutional right," Pearson, 129 S. Ct. at

815-16, and (2) "the right at issue was ‘clearly established’ at

the time of [the] alleged misconduct," id. at 816. However, it

is within our discretion to decide "which of the two prongs of

the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand."

Pearson, 129 S. Ct. at 818; see Hunsberger v. Wood, 570 F.3d

546, 552 (4th Cir. 2009).2

This case involves the important issue of whether and

under what circumstances a child who has been involuntarily

removed from her home by state social workers and know-

ingly placed in a dangerous foster care environment may state

a claim for damages under § 1983. Because we believe this

case will clarify and elaborate upon our prior jurisprudence in

important and necessary ways, we will first address the con-

stitutional rights of foster children in such circumstances prior

to addressing whether any such rights were clearly established

at the time of the alleged wrongdoing. See Pearson, 129 S. Ct.

at 818 (confirming that the Saucier "two-step procedure pro-

motes the development of constitutional precedent and is

especially valuable with respect to questions that do not fre-

quently arise in cases in which a qualified immunity defense

is unavailable").

2

At the time of the district court decision, the Supreme Court directive

was that courts address the first prong, and determine whether there was

a violation of a constitutional right, prior to turning to the second prong

to determine whether that right was clearly established at the time of the

alleged misconduct. See Saucier v. Katz, 533 U.S. 194, 201 (2001). This,

the Court reasoned, was "necessary to support the Constitution’s ‘elabora-

tion from case to case’ and to prevent constitutional stagnation." Pearson

v. Callahan, 129 S. Ct. 808, 816 (2009). In Pearson, however, the

Supreme Court held that "the Saucier procedure should not be regarded as

an inflexible requirement," and that courts may choose in appropriate cir-

cumstances to grant qualified immunity to state actors "on the ground that

it was not clearly established at the time [of the challenged acts] that their

conduct was unconstitutional." Id. at 813.

10 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

B.

The Due Process Clause of the Fourteenth Amendment bars

States from "depriv[ing] any person of life, liberty, or prop-

erty, without due process of law." U.S. Const. amend. XIV,

§ 1. The Clause "guarantees more than fair process." Troxel

v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion) (inter-

nal quotation marks omitted). It "also includes a substantive

component that provides heightened protection against gov-

ernment interference with certain fundamental rights and lib-

erty interests." Id. (internal quotation marks omitted); see

County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998)

(The Due Process Clause "cover[s] a substantive sphere as

well, barring certain government actions regardless of the

fairness of the procedures used to implement them." (internal

quotation marks omitted)); Love v. Pepersack, 47 F.3d 120,

122 (4th Cir. 1995) ("Substantive due process is a far nar-

rower concept than procedural; it is an absolute check on cer-

tain governmental actions notwithstanding the fairness of the

procedures used to implement them." (internal quotation

marks omitted)).

Here, Jane claims that Thompson violated her substantive

due process right to reasonable safety and security when

Thompson placed Kameron with Jane in foster care, knowing

that Kameron was sexually abusing Jane. At a minimum, she

asserts that Thompson knew or should have known that the

sexual abuse was or probably would be continuing and was

deliberately indifferent to the risk Kameron posed to her. The

district court rejected the claim, however, holding that Jane

had no substantive due process right to affirmative state pro-

tection from violence inflicted at the hands of Kameron, a pri-

vate actor, in the foster care setting. Accordingly, it held that

Thompson was entitled to qualified immunity from suit.

1.

As a general rule, "the Due Process Clause works only as

a negative prohibition on state action," Pinder v. Johnson, 54

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 11

F.3d 1169, 1174 (4th Cir. 1995) (en banc), and the state’s

"failure to protect an individual against private violence sim-

ply does not constitute a violation of [it]," DeShaney v. Win-

nebago County Dep’t of Soc. Servs., 489 U.S. 189, 197

(1989). "Its purpose was to protect the people from the State,

not to ensure that the State protected them from each other."

Id. at 196. Thus, it "serves ‘as a limitation on the State’s

power to act, not as a guarantee of certain minimal levels of

safety and security,’" Patten v. Nichols, 274 F.3d 829, 836

(4th Cir. 2001) (quoting DeShaney, 489 U.S. at 195), and

"does not require governmental actors to affirmatively protect

life, liberty, or property against intrusion by private third par-

ties," Pinder, 54 F.3d at 1174 (emphasis added); see Patten,

274 F.3d at 836 ("[T]he clause ‘confer[s] no affirmative right

to governmental aid, even where such aid may be necessary

to secure life, liberty, or property interests of which the gov-

ernment itself may not deprive the individual.’" (quoting

DeShaney, 489 U.S. at 196)). And, because "the Due Process

Clause does not require the State to provide its citizens with

particular protective services, it follows that the State cannot

be held liable under the Clause for injuries that could have

been averted had it chosen to provide them." DeShaney, 489

U.S. at 196-97.

In DeShaney, the state’s Department of Social Services

received several reports of suspected physical abuse of a

child, Joshua DeShaney, while he was in the custody of his

father. The state failed to intervene and Joshua was eventually

beaten and permanently injured by his father. Relying upon

the Supreme Court’s decisions in Estelle v. Gamble, 429 U.S.

97, 105 (1976) (holding that a state’s "deliberate indifference

to a prisoner’s serious illness or injury states a cause of action

under § 1983" for violation of the Eighth Amendment), and

Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (employing

the Fourteenth Amendment to hold that disabled persons who

are involuntarily committed to a state hospital retain "consti-

tutionally protected [liberty] interests in conditions of reason-

able care and safety"), Joshua and his mother sued the

12 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

department and its employees under § 1983, alleging that they

had similarly "deprived Joshua of his liberty interest without

due process of law . . . by failing to intervene to protect him

against a risk of violence at his father’s hands of which they

knew or should have known." DeShaney, 489 U.S. at 193.

Although noting that "in certain limited circumstances the

Constitution imposes upon the State affirmative duties of care

and protection with respect to particular individuals," id. at

198, the DeShaney Court held that the defendants owed no

such duty to Joshua. This was because in Estelle and Young-

berg the affirmative duty arose not from knowledge of any

particular danger or an intent to help, but rather from the

state’s act of taking the individual into its custody and care.

Taken together, [Estelle and Youngberg] stand only

for the proposition that when the State takes a person

into its custody and holds him there against his will,

the Constitution imposes upon it a corresponding

duty to assume some responsibility for his safety and

general well-being. The rationale for this principle is

simple enough: when the State by the affirmative

exercise of its power so restrains an individual’s lib-

erty that it renders him unable to care for himself,

and at the same time fails to provide for his basic

human needs — e.g., food, clothing, shelter, medical

care, and reasonable safety — it transgresses the

substantive limits on state action set by the Eighth

Amendment and the Due Process Clause. The affir-

mative duty to protect arises not from the State’s

knowledge of the individual’s predicament or from

its expressions of intent to help him, but from the

limitation which it has imposed on his freedom to act

on his own behalf.

Id. at 199-200 (citations and footnote omitted); see Patten,

274 F.3d at 841 ("[T]he Supreme Court in DeShaney made it

clear that an exception to the general no-duty-to-act rule

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 13

arises only if the state takes an individual into custody; if

there is no custodial relationship, then the state has no duty to

protect."); Pinder, 54 F.3d at 1175 ("Some sort of confine-

ment of the injured party — incarceration, institutionalization,

or the like — is needed to trigger the affirmative duty [to pro-

tect]. This Court has consistently read DeShaney to require a

custodial context before any affirmative duty can arise under

the Due Process Clause." (citation omitted)). Thus, "[i]n the

substantive due process analysis, it is the State’s affirmative

act of restraining the individual’s freedom to act on his own

behalf — through incarceration, institutionalization, or other

similar restraint of personal liberty — which is the ‘depriva-

tion of liberty’ triggering the protections of the Due Process

Clause, not [the State’s] failure to act to protect his liberty

interests against harms inflicted by other means." DeShaney,

489 U.S. at 200.

Joshua could not state a substantive due process claim

against the state officials because "the harms [he] suffered

occurred not while he was in the State’s custody, but while he

was in the custody of his natural father, who was in no sense

a state actor." Id. at 201. Furthermore, "[w]hile the State may

have been aware of the dangers that Joshua faced in the free

world, it played no part in their creation, nor did it do any-

thing to render him any more vulnerable to them." Id.

2.

The issue before us today, however, is whether a child who

has been involuntarily removed from her home by state offi-

cials for abuse or neglect, placed in the legal custody of the

SCDSS, and transferred to state-approved foster care by

SCDSS officials can state a substantive due process claim

against a state social worker for violations of her fundamental

right to personal safety and security analogous to that recog-

nized in Estelle for prisoners and in Youngberg for the invol-

untarily committed and, if so, what degree of culpability must

14 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

be demonstrated to subject the social worker to liability under

§ 1983.

As the DeShaney Court noted, several circuit courts had

already "held, by analogy to Estelle and Youngberg, that the

State may be held liable under the Due Process Clause for

failing to protect children in foster homes from mistreatment

at the hands of their foster parents." Id.; see, e.g., Taylor v.

Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987) (en banc)

(holding that a child involuntarily placed in a foster home

may state a cause of action under § 1983 for the state offi-

cial’s deliberate indifference to her right to safety); Doe v.

New York City Dep’t. of Soc. Servs., 649 F.2d 134, 145 (2d

Cir. 1981) (holding that "[d]efendants may be held liable

under § 1983 [for a child’s injuries suffered during foster

care] if they . . . exhibited deliberate indifference to a known

injury, a known risk, or a specific duty."). In such cases,

unlike in DeShaney, there would not be a mere "failure to act"

on the part of a state official to remove a child from a family

member, but rather the exercise of affirmative state action in

the form of involuntary removal and placement of the child in

a dangerous, foster care environment, i.e., a "restraint of per-

sonal liberty triggering the protections of the Due Process

Clause." DeShaney, 489 U.S. at 200. The DeShaney Court,

however, expressly declined to decide the question because,

unlike in these situations, the state had returned Joshua to the

custody of his father. See id. at 201 n.9 (declining to decide

whether a substantive due process claim could have been

brought "[h]ad 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").

Since DeShaney, additional circuits have also recognized

the right of a foster child to bring a substantive due process

claim where state officials have taken the affirmative action

of involuntarily removing the child from his home and plac-

ing him in a known, dangerous foster care environment, in

deliberate indifference to the child’s right to reasonable safety

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 15

and security. In K.H. ex rel. Murphy v. Morgan, 914 F.2d 846

(7th Cir. 1990), for example, the court distinguished

DeShaney and applied a custodial exception to recognize a

due process claim where a child was involuntarily removed

from the custody of his parents and placed by child welfare

workers with a foster parent the state knew or suspected to be

a child abuser:

This is not a "positive liberties" case, like

DeShaney, where the question was whether the Con-

stitution entitles a child to governmental protection

against physical abuse by his parents or by other pri-

vate persons not acting under the direction of the

state. The Supreme Court agreed with this court that

there is no such entitlement. Here, in contrast, the

state removed a child from the custody of her par-

ents; and having done so, it could no more place her

in a position of danger, deliberately and without jus-

tification, without thereby violating her rights under

the due process clause of the Fourteenth Amendment

than it could deliberately and without justification

place a criminal defendant in a jail or prison in

which his health or safety would be endangered,

without violating his rights either under the cruel and

unusual punishments clause of the Eighth Amend-

ment (held applicable to the states through the Four-

teenth Amendment) if he was a convicted prisoner,

or the due process clause if he was awaiting trial. In

either case the state would be a doer of harm rather

than merely an inept rescuer, just as the Roman state

was a doer of harm when it threw Christians to lions.

Id. at 848-49 (citations omitted); see Hutchinson ex rel. Baker

v. Spink, 126 F.3d 895, 900 (7th Cir. 1997) ("[O]nce the State

removes a child from her natural parents, it assumes at least

a rudimentary duty of safekeeping. It cannot place a child in

custody with foster parents it knows are incompetent or dan-

gerous." (citation omitted)); see also Nicini v. Morra, 212

16 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

F.3d 798, 808 (3d Cir. 2000) (en banc) ("[W]hen [a] state

places a child in state-regulated foster care, the state has

entered into a special relationship with that child which

imposes upon it certain affirmative duties" which, if attended

to in a manner deliberately indifferent to the safety of the

child, can give rise to liability under § 1983); Norfleet v.

Arkansas Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir.

1993) ("[A] special custodial relationship . . . was created by

the state when it took [a child] from his caregiver and placed

him in foster care" where the "child los[t] his freedom and

ability to make decisions about his own welfare, and must

rely on the state to take care of his needs."); Yvonne L. v. New

Mexico Dep’t of Human Servs., 959 F.2d 883, 893 (10th Cir.

1992) ("[C]hildren in the custody of a state ha[ve] a constitu-

tional right to be reasonably safe from harm" and "if the per-

sons responsible place children in a foster home or institution

that they know or suspect to be dangerous to the children they

incur liability if the harm occurs."); Meador v. Cabinet for

Human Res., 902 F.2d 474, 476 (6th Cir. 1990) (holding that

substantive "due process extends the right to be free from the

infliction of unnecessary harm to children in state-regulated

foster homes" where the complaint alleged that the state offi-

cials "were ‘deliberately indifferent’ to reports of abuse" in

the foster home).

3.

Relying upon a trilogy of cases discussed below, Thomp-

son contends that our circuit, in contrast to our sister circuits,

has answered DeShaney’s unresolved question in the negative

and would not recognize such a claim of deliberate indiffer-

ence in the foster care placement, and the district court "rejec-

t[ed] plaintiffs’ attempt to establish a custodial or foster care

exception to the DeShaney rule," even in the limited context

that we face today. J.A. 1004. While we agree with Thomp-

son’s alternative contention that any such right was not

clearly established at the time she made her placement deci-

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 17

sions in this case, we disagree that they foreclose our recogni-

tion of such a right in appropriate cases.

In Milburn v. Anne Arundel County Department of Social

Services, 871 F.2d 474 (4th Cir. 1989), a minor child who had

been voluntarily placed in foster care by his parents sustained

significant injuries which were reported by medical providers

to social services officials as suspected child abuse. After the

fourth such incident, the officials intervened and removed the

child from the foster home. Applying DeShaney, we held that

the child had no substantive due process right to affirmative

protection by the state. First, the state "by the affirmative

exercise of its power had not restrained the [child’s] liberty;

he was voluntarily placed in the foster home by his natural

parents." Id. at 476 (emphasis added). In addition, "the inju-

ries to the [child] did not occur while he was in the custody

of the State of Maryland, [but] rather while he was in the cus-

tody of his foster parents, who were not state actors." Id.

There being no affirmative exercise of the state’s power to

restrain the child’s liberty in the first instance, there could be

no corresponding duty or responsibility on the part of the state

officials to protect the child from harm by private parties. See

K.H., 914 F.2d at 849 (noting our decision in Milburn to be

"[c]onsistent with [its custodial] distinction," as Milburn "em-

phasize[d] the state’s lack of responsibility for a child’s vol-

untary placement by the natural parents in an abusing private

foster home"); cf. Walton v. Alexander, 44 F.3d 1297, 1303-

04 (5th Cir. 1995) (en banc) ("Since DeShaney was decided

. . . , we have followed its language strictly and have held

consistently that only when the state, by its affirmative exer-

cise of power, has custody over an individual involuntarily or

against his will does a ‘special relationship’ exist between the

individual and the state.").

In Weller v. Department of Social Services, 901 F.2d 387

(4th Cir. 1990), we held that a foster child could not maintain

a substantive due process claim against state agents who had

affirmatively removed the child from the home of his natural

18 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

father, upon allegations of abuse, where the child was imme-

diately transferred to the custody of his natural grandmother

and then to his natural mother. At no point was the child in

foster care, nor was there any prior indication that the family

members to whom the child was transferred posed any danger

to the child. We agreed "that DeShaney [was] applicable to

the extent that Maryland had no duty to provide [the child]

with protective services" in the first instance and held that

"the transfer of custody [from one family member to another]

did not make the State ‘the permanent guarantor’ of [the

child’s] safety." Id. at 392 (quoting DeShaney, 489 U.S. at

201). Also, as in Milburn, any actual physical harm that was

inflicted upon the child at the hands of his family members

"was not [harm] inflicted by the State." Id.

This brings us to the case of White ex rel. White v. Cham-

bliss, 112 F.3d 731 (4th Cir. 1997), and the one most analo-

gous to the case before us. In White, SCDSS officials

involuntarily removed Keena White, a minor child, from the

physical custody of her natural mother and placed her in an

approved foster home, where she later died from severe blows

to the head. The mother brought a § 1983 action alleging that

the SCDSS officials had a duty to protect Keena from abuse

after her placement in foster care and, in the alternative, had

been deliberately indifferent in their placement of Keena in

the foster home.

We rejected the plaintiff’s claim that there was a general

duty on the part of the SCDSS workers to protect the child

from abuse after she was placed with the foster family

because "children placed in foster care ha[ve] no federal con-

stitutional right to state protection" and "the state ha[s] no

affirmative constitutional obligation to protect individuals

against private violence." Id. at 737 (citing Milburn, 871 F.2d

at 476); see id. at 738 ("’[H]arm suffered by [the] child at the

hands of h[er] foster parents [wa]s not harm inflicted by state

agents,’" (quoting Weller, 901 F.2d at 392)). We further noted

that, as it pertains to this principle, Milburn was not limited

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 19

in "its application to situations where parents had voluntarily

placed their children in foster care." Id.

In this case, SCDSS takes the position that no protection

means no protection and that Fourth Circuit law allows

SCDSS officials to also escape § 1983 liability when they

affirmatively place a child in a known dangerous environ-

ment, including, for example, with a known child predator.

However, in White, we declined to dispose of the question of

whether a § 1983 action could be maintained against a social

worker who knowingly places a child in a dangerous foster

care environment, in deliberate indifference to the child’s fun-

damental right to personal safety and security. Instead, we

held that the factual record before us there fell short of dem-

onstrating any such deliberate indifference. See id. at 737

("Whatever the clearly established law on this question,

White’s claim simply falls short on the facts. The summary

judgment record contains no evidence to indicate that any of

the DSS defendants knew or suspected that the [foster par-

ents] were abusive foster parents when they placed Keena in

their care. Indeed, the [foster parents] were licensed by the

DSS, and White points to no evidence indicating that the [fos-

ter parents] had previously been accused of, or investigated

for, child abuse."). Such "[a] claim of deliberate indifference,

unlike one of negligence," we held, "implies at a minimum

that defendants were plainly placed on notice of a danger and

chose to ignore the danger notwithstanding the notice." Id.

We now hold that when a state involuntarily removes a

child from her home, thereby taking the child into its custody

and care, the state has taken an affirmative act to restrain the

child’s liberty, triggering the protections of the Due Process

Clause and imposing "some responsibility for [the child’s]

safety and general well-being." DeShaney, 489 U.S. at 200.

Such responsibility, in turn, includes a duty not to make a fos-

ter care placement that is deliberately indifferent to the child’s

right to personal safety and security. This does not mean that

social workers will be duty-bound to protect the child from

20 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

unknown harm or dangers. Nor "does [it] mean that every

child in foster care may prevail in a section 1983 action

against state officials based on incidental injuries or infre-

quent acts of abuse." Taylor, 818 F.2d at 797. Negligence, and

even carelessness, on the part of such officials that results in

harm to the child will not support a claim. But "where it is

alleged and the proof shows that the state officials were delib-

erately indifferent to the welfare of the child," liability may be

imposed. Id. Such "[a] claim of deliberate indifference, unlike

one of negligence, implies at a minimum that defendants were

plainly placed on notice of a danger and chose to ignore the

danger notwithstanding the notice." White, 112 F.3d at 737.

C.

Here, Jane was involuntarily removed from the custody of

her natural parents by affirmative state action and ultimately

placed in foster care approved by SCDSS. The state filed a

complaint in family court alleging abuse, sought emergency

and temporary custody and, ultimately, terminated the paren-

tal rights of her biological parents by judicial order. See S.C.

Code Ann. § 20-7-1576 ("An order terminating the relation-

ship between parent and child . . . divests the parent and the

child of all legal rights, powers, privileges, immunities,

duties, and obligations with respect to each other, except the

right of the child to inherit from the parent."). Thus, unlike the

children in DeShaney, Milburn and Weller, Jane was clearly

within the custody and control of the state social services

department when foster care placement decisions were made.

Accordingly, the state officials responsible for those decisions

had a corresponding duty to refrain from placing her in a

known, dangerous environment in deliberate indifference to

her right to personal safety and security.

We affirm the grant of summary judgment, however, under

the second prong of the qualified immunity inquiry. Although

our precedents do not foreclose a foster child’s claim that her

substantive due process right to personal safety and security

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 21

is violated by a foster care placement made in deliberate indif-

ference to a known danger, such a right was not clearly estab-

lished in this circuit at the time Thompson made her

placement decisions regarding Jane.

In determining whether there has been a violation of a con-

stitutional right, we must identify the right "at a high level of

particularity." Edwards v. City of Goldsboro, 178 F.3d 231,

251 (4th Cir. 1999). "In order for a right to be ‘clearly estab-

lished,’ the Supreme Court has instructed that ‘[t]he contours

of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.’"

White, 112 F.3d at 737 (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). "Although notice does not require that

the ‘very action in question has previously been held unlaw-

ful,’ it does mean that ‘in the light of pre-existing law the

unlawfulness must be apparent.’" Robles v. Prince George’s

County, 302 F.3d 262, 270 (4th Cir. 2002) (quoting Wilson v.

Layne, 526 U.S. 603 (1999) (internal quotation marks omit-

ted)).

"In determining whether a [constitutional] right was clearly

established at the time of the claimed violation, courts in this

circuit ordinarily need not look beyond the decisions of the

Supreme Court, this court of appeals, and the highest court of

the state in which the case arose." Edwards, 178 F.3d at 251

(internal quotation marks and alteration omitted); see Wilson

v. Layne, 141 F.3d 111, 114 (4th Cir. 1998) (en banc) (A law

is "clearly established" when "the law has been authoritatively

decided by the Supreme Court, the appropriate United States

Court of Appeals, or the highest court of the state." (internal

quotation marks omitted)).

For the reasons discussed above, our precedents in Milburn,

Weller, and White do not alone foreclose Jane’s substantive

due process claim. But neither did they, or any other prece-

dent in the Supreme Court or this court, clearly establish that

such a claim might have existed at the time of the placements.

22 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

And while we disagree with the district court’s interpretation

of DeShaney and our precedents, we do not view the interpre-

tation to have been unreasonable. "[I]f judges . . . disagree on

a constitutional question, it is unfair to subject [government

officials] to money damages for picking the losing side of the

controversy." Wilson, 526 U.S. at 618; see Hogan v. Carter,

85 F.3d 1113, 1116 n.3 (4th Cir. 1996) (en banc) ("Although

there might be instances where a reasonable jurist, but not a

reasonable official, would consider particular conduct viola-

tive of clearly established law, if a reasonable jurist would not

have viewed the defendant’s action as violative of clearly

established law, then it necessarily follows that the reasonable

officer likewise would not have viewed that conduct as viola-

tive of clearly established law."); Swanson v. Powers, 937

F.2d 965, 968 (4th Cir. 1991) ("Since qualified immunity is

appropriate if reasonable officers could disagree on the rele-

vant issue, it surely must be appropriate when reasonable

jurists can do so." (citation omitted)).

Here, when the placement decisions were made, there was

no authority from the Supreme Court or this circuit that would

have put Thompson on fair notice that her actions violated

Jane’s substantive due process rights. On the contrary, given

the precedents that did exist in our circuit on the issue of affir-

mative state protection of foster children, we think it quite

reasonable for jurists and officials to have believed that we

would have answered the DeShaney question in the negative

and foreclosed the existence of such a right. In sum, because

it would not have been apparent to a reasonable social worker

in Thompson’s position that her actions violated the Four-

teenth Amendment, she is entitled to qualified immunity.3

3

Because it is unnecessary to our disposition of this case, we decline to

decide whether the record contains sufficient, admissible evidence to sup-

port Jane’s claim that Thompson’s decision to reunite Jane and Kameron

in foster care rose to the level of deliberate indifference.

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 23

III.

We turn briefly now to the Johnsons’ § 1983 claim that

Thompson violated their substantive due process rights by

placing Jane and Kameron in their home without fully dis-

closing Jane’s history of sexual abuse and sexual aggressive-

ness. The Johnsons acknowledge that the background

summary presented to them by Thompson related some of this

history. However, they assert that Thompson failed to disclose

much of the history and reassured them that no inappropriate

sexual behavior had occurred between the children, leading

them to believe that the more serious allegations were unsub-

stantiated. They assert that had they known of the incest, and

of Jane’s sexually aggressive behavior, they would not have

accepted Jane for prospective adoption or finalized her adop-

tion. Thompson asserts that she presented all known informa-

tion to the Johnsons and that she received no reports of

inappropriate behavior between the children during her rela-

tionship with Jane.

The district court held that prospective adoptive parents

have no substantive due process right to the disclosure of a

child’s history of sexual abuse and that Thompson was enti-

tled to qualified immunity. We agree. The Johnsons have

pointed to no authority from the Supreme Court, this court or,

for that matter, any circuit court of appeals granting prospec-

tive adoptive parents a substantive due process right to "full

disclosure" about a child under consideration and certainly no

"clearly established" authority which would have put Thomp-

son on notice that she was violating any such right. Accord-

ingly, we affirm the grant of summary judgment on this claim

as well.

IV.

The plaintiffs’ final claim is that the district court erred in

granting summary judgment to SCDSS on their state law

24 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

claim for gross negligence on the part of the SCDSS officials

who handled Jane’s foster care placements and adoption.

In the state court action, the plaintiffs originally asserted

claims for gross negligence, assault and battery, intentional

infliction of emotional distress/outrage, negligent supervision,

negligent training, false imprisonment, and premises liability.

The district court dismissed all claims, holding that the deci-

sions made by the SCDSS employees were discretionary in

nature, entitling SCDSS to discretionary immunity under

§ 15-78-60(5) of the SCTCA.

The SCTCA constitutes the exclusive remedy for torts

allegedly committed by employees of state agencies. See S.C.

Code Ann. § 15-78-70(a). Under the Act, a governmental

entity, such as SCDSS, is subject to liability for torts "in the

same manner and to the same extent as a private individual

. . . ." S.C. Code Ann. § 15-78-40.4 However, the Act is a lim-

ited waiver of governmental immunity from suit and contains

a list of exceptions to the waiver of immunity, including an

exception for discretionary acts by the entity or its employees.

Specifically, under § 15-78-60(5), "[t]he governmental entity

is not liable for a loss resulting from . . . the exercise of dis-

cretion or judgment by the governmental entity or employee

or the performance or failure to perform any act or service

which is in the discretion or judgment of the governmental

entity or employee." Id.

Under South Carolina law, discretionary immunity is nor-

mally "contingent on proof that the [governmental entity],

faced with alternatives, actually weighed competing consider-

ations and made a conscious choice" to act. Niver v. South

4

Because the actions complained of were taken by governmental

employees acting within the course and scope of their employment, the

district court correctly noted that SCDSS should be substituted as the party

defendant for the individual defendants. See S.C. Code Ann. § 15-78-

70(c).

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 25

Carolina Dep’t of Highways & Pub. Transp., 395 S.E.2d 728,

730 (S.C. Ct. App. 1990). "[T]he governmental entity must

show that in weighing the competing considerations and alter-

natives, it utilized accepted professional standards appropriate

to resolve the issue before them." Foster v. South Carolina

Dep’t of Highways & Pub. Transp., 413 S.E.2d 31, 35 (S.C.

1992). Generally speaking, the SCTCA must be liberally con-

strued in favor of the governmental defendant. See Faile v.

South Carolina Dep’t of Juvenile Justice, 566 S.E.2d 536, 540

(S.C. 2002). However, "[t]he burden of establishing a limita-

tion upon liability or an exception to the waiver of immunity

is upon the governmental entity asserting it as an affirmative

defense." Niver, 395 S.E.2d at 730.

SCDSS asserts that it met its burden of establishing appli-

cation of the discretionary acts exception to the waiver of

immunity under S.C. Code Ann. § 15-78-60(5), because its

employees relied upon professional standards when making

the discretionary decision to place the children together and

pursue their adoption as a sibling group. The district court

agreed and held that SCDSS was entitled to discretionary

immunity.

On appeal, the plaintiffs contend that, even if the majority

of the state law claims were properly dismissed, the gross

negligence claim was not because § 15-78-60(25) of the

SCTCA excepts gross negligence from the normal application

of discretionary immunity under § 15-78-60(5). S.C. Code

Ann. § 15-78-60(25) provides that "[t]he governmental entity

is not liable for a loss resulting from . . . responsibility or duty

including but not limited to supervision, protection, control,

confinement, or custody of any student, patient, prisoner,

inmate, or client of any governmental entity, except when the

responsibility or duty is exercised in a grossly negligent man-

ner." Id. (emphasis added).

The South Carolina Supreme Court has held that "[s]ection

15-78-60(25) provides an exception to [discretionary] immu-

26 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

nity where the governmental entity exercises its responsibility

or duty in a grossly negligent manner" and that "Section 15-

78-60(5) must be read in light of this exception. If discretion

is exercised in a grossly negligent manner, the exception to

the normal rule of immunity applies." Jackson v. South Caro-

lina Dep’t of Corr., 390 S.E.2d 467, 469 (S.C. Ct. App. 1989)

(per curiam). It is unclear whether the Johnsons made this

precise argument below, and the district court order does not

separately or explicitly address the question of whether

SCDSS is entitled to discretionary immunity from liability for

the gross negligence claim. However, it does appear that

South Carolina may recognize an exception to the grant of

discretionary immunity where state officials exercise a duty to

supervise, protect, control, confine, or maintain foster chil-

dren "in a grossly negligent manner." Id.

Under the circumstances, we believe the best course is to

vacate the grant of summary judgment on the state law claim

for gross negligence and remand for the district court’s con-

sideration of the applicability of § 15-78-60(25) or, if deemed

appropriate given our affirmance of summary judgment as to

the federal claims, the propriety of remanding the state law

claim back to the state court for its determination.5

V.

For the foregoing reasons, we affirm the district court’s

grant of summary judgment as to all claims asserted under

§ 1983 against Thompson. We vacate the grant of summary

5

As the district court observed, the presentation of the claims below has

been somewhat unclear. However, the claim for gross negligence asserted

against SCDSS is contained solely within the state court complaint, which

was removed to the district court and consolidated with the federal court

action. Although the state court complaint also contained some federal

claims, Thompson was not a named defendant. Accordingly, our decision

today affirms the grant of summary judgment as to all claims in the federal

court complaint and all but the state law claim for gross negligence in the

state court complaint.

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 27

judgment as to the state law claim for gross negligence

against SCDSS, and remand that claim for further consider-

ation.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED

WILKINSON, Circuit Judge, concurring in the judgment:

I agree with the affirmance of the grant of summary judg-

ment to Thompson on all federal claims.* Maj. Op. at 26. I

agree also with the vacatur of summary judgment and remand

on the state claim, with explicit permission for the district

court to further remand those claims back to state court. Maj.

Op. at 26.

State court is the place where claims such as these should

be heard. We should not further constitutionalize this

intensely domestic area of the law. Every tort committed in

this country by some public actor was never meant to be a

matter of constitutional import. See Paul v. Davis, 424 U.S.

693, 701 (1976).

I disagree with the view that the Constitution imposes upon

states a "duty to protect" children from harm by non-state

actors in foster homes. Maj. Op. at 19-20. Such a holding is

appealing in rhetoric and harmful in practice. The majority’s

rule constitutes an unnecessary expansion of substantive due

process that, however well-intentioned, will visit real misfor-

tune upon abused and neglected children. The creation of this

federal cause of action is not merely a misadventure in consti-

tutional theory but a real-life loss for those most in need of

help.

*Specifically, I concur in the majority’s view that, at the very least,

qualified immunity is appropriate here on plaintiffs’ cause of action for

failure to protect, Maj. Op. at 20, and in the majority’s view that there is

no federal cause of action for failure to disclose. Maj. Op. at 23.

28 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

I.

Faced with the wrenching allegations of this case, it is

understandably tempting to rush to Jane’s rescue and some-

how right whatever wrongs were perpetrated against her. I

certainly share the majority’s sympathy for any child subject

to sibling sexual or physical abuse. However, I fear that the

legal rule established, ironically and tragically, will have the

exact opposite effect of that which is intended. Instead of

helping children escape the desperate environment of abuse

and neglect, it likely will hinder them in doing so. It will

create a perverse set of incentives that will deter states and

foster families from providing helpless children with the

assistance they need.

More specifically, the new substantive due process right

fashioned by the majority will lead to a combination of two

separate but equally devastating effects: first, it will discour-

age states from taking legal custody of children in the first

place, and second, it will discourage potential foster parents

from becoming foster parents. Both outcomes disadvantage

the countless children beaten, molested, or abandoned by their

biological families—children who desperately need the safe

haven provided by state custody and offered by willing foster

families. In short, the "duty to protect" may well discourage

protection and, ultimately, encourage harm.

A.

The first potential result of today’s decision is to dissuade

states from assuming legal custody of children altogether. As

DeShaney made clear, and as the majority admits, if a state

avoids taking custody of a child, it cannot be held legally

responsible for harm suffered by the child, even if the state

knew about the harm and stood by to watch. DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 201

(1989); Maj. Op. at 12-13. A "duty to protect" arises, if at all,

"only if the state takes an individual into custody; if there is

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 29

no custodial relationship, then the state has no duty to pro-

tect." Patten v. Nichols, 274 F.3d 829, 841 (4th Cir. 2001).

By contrast, if a state takes legal custody of a child, it now

potentially faces steep liability. Before this decision, a state

taking custody of a child from her biological parents, against

the parents’ wishes, already risked one form of litigation: a

section 1983 suit by the biological parents for a violation of

their substantive due process rights to "retain custody over

and care for their children, and to rear their children as they

deem appropriate." Jordan ex rel. Jordan v. Jackson, 15 F.3d

333, 342 (4th Cir. 1994) (citations omitted). Now, after this

decision, a state taking custody of a child from her biological

parents, against the parents’ wishes, is subject to a second

form of litigation: a section 1983 suit by the child herself, per-

haps brought many years after the initiation of custody, for a

violation of the child’s substantive due process rights to

"safety and general well-being." Maj. Op. at 19 (quoting

DeShaney, 489 U.S. at 200). By piling on this additional

cause of action, the majority has littered the path to protecting

children with section 1983 landmines.

Thus, in deciding whether to assume custody of a child,

states are faced with two possible choices: allow the child to

continue to suffer, with no accompanying risk of liability, or

rescue the child and quite possibly defend against two law-

suits. It doesn’t take a Law and Economics scholar to figure

out how these prospects will affect rational state actors. The

majority’s "duty to protect" essentially rewards states for the

exact opposite: for not protecting and for doing nothing. As

we have previously recognized, "[i]f section 1983 liability

attaches too readily to removal and placement decisions, the

course of public agencies would invariably become one of

inaction, thus leaving children in abusive environments."

White ex rel. White v. Chambliss, 112 F.3d 731, 736 (4th Cir.

1997). The danger of deterrence in this context is particularly

acute. In the case of law enforcement, any deterrent effect

caused by section 1983 suits is often mitigated by the inevita-

30 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

ble public outcry over crime gone unaddressed. In the case of

abused and neglected children, however, public outrage is

often absent, since abuse occurring to the defenseless behind

closed doors is typically invisible to public view.

We never learn, of course, precisely when the threat of lia-

bility produces inaction. The failure of agencies to take action

never hits the judicial radar in quite the same manner as

actions allegedly gone awry. But stacking the legal deck in

the direction of inaction surely carries costs of its own. The

skewing of incentives toward inaction can only harm those

children who are badly mistreated by their biological families

and who badly long to escape their hapless home surround-

ings. I need not detail the physical violence, sexual abuse,

substance addiction, or outright abandonment and neglect that

befall young children at the hands of those who should love

them most. These sad stories are familiar to us all. See, e.g.,

DeShaney, 489 U.S. at 191-93.

For these children, the threat comes not from the state’s

assumption of custody but from the state’s refusal to assume

custody. A social worker may sometimes seem about as popu-

lar as a tax collector, but sometimes that same social worker

is a child’s only lifeline, her sole hope of escaping a perfectly

brutal and life-scarring state. By slamming social workers

with multiple prospects for substantive due process suits, the

majority’s opinion discourages them from exercising custody

and encourages them to leave children "defenseless in the face

of physical abuse and brutality." White, 112 F.3d at 736.

This case illustrates the perils of a rule that discourages

states from taking custody of children. Whatever SCDSS

might or might not have done wrong once it removed Jane

from her home, no one contends that SCDSS should have left

her there. Jane’s biological mother neglected her, as the South

Carolina Family Court determined after a probable cause

hearing, and allegedly sexually abused her; Jane’s biological

father was incarcerated; and moreover, Jane’s brother alleg-

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 31

edly sexually abused her in their biological home even before

he allegedly sexually abused her in foster homes. Thus, while

it is all too easy to shovel opprobrium on SCDSS for its

alleged shortcomings and make it the scapegoat for a terribly

sad set of circumstances, it is worth remembering that the

agency did not create the dangers of abuse or neglect. Those

dangers were present long before SCDSS came on the scene,

and ameliorating them is often no easy or simple task. But

leaving the child to her fate is not the answer, and I respect-

fully protest the creation of multiple causes of action that

encourage agencies to do just that.

B.

The majority’s approach is likely to have a second and sim-

ilarly unfortunate effect: causing some who would otherwise

choose to become foster parents to abandon their plans. If and

when states do decide to assume legal custody, they will now

need to be more on guard than ever against section 1983 suits,

and in an effort to fulfill their new "duty to protect," states

may become overly intrusive into the foster family unit. To be

sure, some level of supervision is necessary. But to ensure

that foster parents are not even unwittingly laying the basis

for a later section 1983 action, states may go overboard,

checking in on foster children in frequent, unexpected, incon-

venient, and invasive visits to foster homes. States may sub-

ject foster parents to an onslaught of prying questions about

their private lives. Further, lest they later face accusations of

a constitutional nature, years after the fact, states may feel

compelled to micro-manage the foster parenting process, dic-

tating basic choices about diet, hygiene, education, activities,

schedule, and interactions with peers—choices that are nor-

mally left to parents.

This is all contrary to the basic purpose of the Due Process

Clause, which "was to protect the people from the State, not

to ensure that the State protected them from each other."

DeShaney, 489 U.S. at 196. Instead of protecting foster chil-

32 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

dren from the state, the majority uses the Due Process Clause

to require states to protect foster children from other foster

children, including, as here, their own biological siblings.

Maj. Op. at 19-20. Leaving aside the fact that managing sib-

ling relationships is among the foremost of parental duties,

this rule might, at least on the margins, induce a state into

deliberately placing siblings in different foster homes, just to

be safe. Of course, there are undoubtedly cases in which we

might want states to separate siblings, and if the facts alleged

in this case turn out to be true, this case might be one of them.

However, there are undoubtedly many other cases in which

we would not want to skew legal incentives toward separating

siblings. Children removed from their biological homes have

already endured one significant dislocation, and we should

not maximize the disruption of what remains of their family

by placing law on the side of pulling them apart from their

brothers and sisters.

For SCDSS, the only way to forestall a suit over whether

an initial foster placement was good or bad is to continually

monitor its consequences. But who would want to remain a

foster parent under such a regime? The increased state intru-

siveness encouraged by the majority’s decision will again not

work to the advantage of children. Although such heightened

oversight may ferret out abuse by foster parents in a few

cases, it is just as likely, and probably more so, to deter many

fine individuals from ever agreeing to become foster parents

in the first place. Although foster parents and biological par-

ents do not share identical rights, they share similar purposes.

As the Supreme Court has noted:

"[T]he importance of the familial relationship, to the

individuals involved and to the society, stems from

the emotional attachments that derive from the inti-

macy of daily association, and from the role it plays

in ‘promot(ing) a way of life’ through the instruction

of children . . . . No one would seriously dispute that

a deeply loving and interdependent relationship

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 33

between an adult and a child in his or her care may

exist even in the absence of blood relationship. At

least [in certain cases], it is natural that the foster

family should hold the same place in the emotional

life of the foster child, and fulfill the same socializ-

ing functions, as a natural family."

Smith v. Org. of Foster Families for Equality & Reform, 431

U.S. 816, 844 (1977) (citations omitted). To be effective, fos-

ter parents need some freedom in deciding how to raise their

children and need to bond with their children away from the

state’s watchful eye. If agencies fearful of federal "duty to

protect" suits are constantly making suspicion-laden inquiries

and trying to direct decisions best made by parents, the satis-

factions of foster parenting cannot be enhanced. And by mak-

ing it less appealing to become a foster parent, fewer

individuals will volunteer. Without willing foster families,

children who are abused by their biological families will be

increasingly deprived of a substitute home in which to find

sanctuary.

The majority’s analysis further works to put off potential

foster parents by painting foster homes in an unfortunate light.

The majority concludes that a state’s removal of a child from

her biological home is an exercise of custody sufficient to

trigger the "duty to protect," insofar as it deprives the child of

liberty in a manner "analogous to that recognized in Estelle

for prisoners and in Youngberg for the involuntarily commit-

ted." Maj. Op. at 13-14. Indeed, the majority believes that the

state’s custodial relationship continues even after the state has

placed a child in the care of foster families. Maj. Op. at 13-14.

Any comparison of the foster home environment to that of

prisons and mental health institutions for substantive due pro-

cess purposes is misplaced. A foster home is not a prison; a

child therein is not "in custody" in the sense that inmates are;

and such an analogy is a poor foundation for an expansion of

substantive due process. Foster parents, who are rarely state

34 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

actors, see Milburn v. Anne Arundel County Dep’t of Soc.

Servs., 871 F.2d 474, 479 (4th Cir. 1989), would hardly find

it flattering to learn that their efforts at raising children were

being analogized by courts to those of prison wardens and

mental health superintendants. While wardens and superinten-

dents provide valuable functions, most foster parents

approach their responsibilities in a different spirit. By extend-

ing custody to the case at bar, the majority has drifted far

afield from the context of physical confinement envisioned by

Estelle and Youngberg. Those cases use words such as "incar-

ceration" and "institutionalization" to describe actionable

physical restraints, see DeShaney, 489 U.S. at 200, terms

which are singularly inapposite to the foster home setting. In

expanding the concept of custody in this fashion, the majority

has misapprehended the nature of foster parents’ services, all

the while risking a variety of untoward effects.

The majority attempts to lull us into a false sense of secur-

ity with its ruling that the state must have acted with "deliber-

ate indifference" in its placement decisions in order for

section 1983 liability to attach. Maj. Op. at 20. Under this

standard, the majority reassures us, social workers will not be

liable for "unknown harm or dangers" or every time a child

suffers "incidental injuries or infrequent acts of abuse." Maj.

Op. at 20 (citations and internal quotations omitted). There-

fore, in theory, states should fear liability only in those cases

where they have acted in a particularly blameworthy manner.

But these words are of little comfort. Standards of review

are regrettably all too often in the eye-of-the-beholder. And

words such as "incidental," "infrequent," and even "unknown"

(which slips into "should have known") are by their nature

elastic and at best imperfect protection against even ground-

less litigation. Thus, in practice, states will be deterred both

from taking custody of abused children and encouraged to

intrude upon foster families to the detriment of that unit, not

because such decisions were dictated by their merits, but

because of a threat of future liability. The mere threat of liti-

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 35

gation is enough to give officials pause, because even when

state workers are ultimately absolved, litigation takes a toll.

By diverting government officials from their duties, litigation

"exacts heavy costs in terms of efficiency and expenditure of

valuable time and resources," Ashcroft v. Iqbal, 129 S.Ct.

1937, 1953 (2009), and potentially even "deter[s] . . . able cit-

izens from acceptance of public office," or in this case social

work. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).

To say the Constitution of the United States allows us to

court these consequences, or even to flirt with the unpredict-

ability of such serious harms, betrays an inflated conception

of the federal judicial role. It is the majority’s mistaken view

of the boundaries of our function that I shall address in the

next section and with which I also respectfully take issue.

II.

Law exists in part to guard against the overreaching of pub-

lic authority, and from that general purpose the life-tenured

federal courts are not exempt. When the many cautionary

maxims of restraint are toppled like dominos, the chances of

judicial miscalculation exponentially increase. The majority’s

discovery of a constitutional "duty to protect" is badly mis-

guided. But even if it were not—even if it were a great idea

—we should not indulge in its creation. Federal courts simply

do not have a roving warrant to adopt whatever policies they

believe to be beneficial, all in the name of substantive due

process. The project of creating such a duty should be left to

the states, via statutes or the common law of tort. It does not

belong to the federal government, via the Constitution. In cre-

ating this new "duty to protect," the majority commandeers a

role traditionally—and for good reason—entrusted to state

legislatures.

A.

To begin, by federalizing the "duty to protect," the majority

trespasses on the most traditional of state roles. The core legal

36 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

question in this case—who may be held liable for physical

and psychological harm inflicted by one foster child upon

another foster child—is essentially one of tort and domestic

relations law. Both legal realms have historically and justifi-

ably been reserved to the states. Decisions in these areas

require weighing a number of competing policy consider-

ations. Deciding whether and to what extent to impose a "duty

to protect," for example, demands a delicate balancing of the

interests of children, foster parents, biological parents, and

states. Others have devoted far more thought to these hard

problems than we ever could. Given their experience with,

and acquired expertise over, matters of tort and family law,

states are better suited than the federal government to make

such intricate determinations. As the Supreme Court

explained, the "host of policy choices" implicated in cases

such as this one "must be made by locally elected representa-

tives, rather than by federal judges interpreting the basic char-

ter of Government for the entire country." Collins v. City of

Harker Heights, 503 U.S. 115, 129 (1992).

Indeed, most states have made such policy choices, enact-

ing statutes addressing whether and when to provide recourse

to children injured while in state custody or in the care of fos-

ter parents. South Carolina is one such state. See S.C. Code

Ann. § 15-78-70. I run the risk of length in describing its

efforts, but that is only to contrast it with the brief and epi-

sodic nature of the majority’s federal judicial foray. The

South Carolina Tort Claims Act (SCTCA) is a comprehensive

statutory scheme, which covers a breadth of situations in

which an individual might be harmed by a state agency. S.C.

Code Ann. § 15-78-10 et seq. It exhaustively delineates the

circumstances in which a state agency, such as the South Car-

olina Department of Social Services (SCDSS), see Joubert v.

S.C. Dep’t of Soc. Servs., 341 S.C. 176 (S.C. App. 2000), may

be held liable for torts. Not surprisingly, plaintiffs brought

suit under the SCTCA as well as under 42 U.S.C. § 1983.

South Carolina’s statute begins with a baseline rule that

state agencies may be liable for torts to the same extent as pri-

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 37

vate individuals. S.C. Code Ann. § 15-78-40. It then creates

certain exceptions to the general rule, providing immunity in

instances where an agency employee exercises discretion.

S.C. Code Ann. § 15-78-60(5). The immunity, however, does

not attach where the agency employee is guilty of "gross

negligen[ce]." S.C. Code Ann. § 15-78-60(25). The SCTCA

then fills in missing pieces with specific provisions address-

ing, for example, the statute of limitations, S.C. Code Ann.

§ 15-78-110, appropriate remedies and damages caps, S.C.

Code Ann. § 15-78-120, and implications of state liability

insurance. S.C. Code Ann. § 15-78-140, -150, -160.

When the South Carolina legislature has not spoken, the

South Carolina courts have stepped up interstitially. See, e.g.,

City of Hartsville v. S.C. Mun. Ins. & Risk Financing Fund,

382 S.C. 535 (2009) (discussing proper burden of proof under

the SCTCA); Faile v. S.C. Dep’t of Juvenile Justice, 350 S.C.

315 (2002) (discussing meaning of "gross negligen[ce]" under

SCTCA); Jensen v. Anderson County Dep’t of Soc. Servs.,

304 S.C. 195 (1991) (discussing whether SCDSS’s decision

regarding whether to investigate a report of child abuse was

"discretionary"); Varn v. S.C. Dep’t of Highways & Public

Transp., 311 S.C. 349 (S.C. App. 1993) (per curiam) (discuss-

ing whether a court can award costs of litigation under the

SCTCA). Moreover, SCDSS has further established an exten-

sive set of policies that touch every aspect of a child’s care,

developing numerous manuals to steer its many decisions

affecting children, biological families, foster families, and

adoptive families. See SCDSS, Manuals, http://dss.sc.gov/

content/library/manuals/index/aspx. Its manual on "Foster

Care," for example, is 180 pages of detailed guidelines

regarding such matters as intake procedures, foster children

with special needs and health concerns, appropriate levels of

ongoing supervision of children in foster care, and decisions

regarding whether and when to remove children from foster

care. See id.

All in all, the scheme is quite a comprehensive one, making

all the more puzzling the majority’s intervention in this area.

38 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

As the majority acknowledges, the South Carolina legislature

intended its statute to be "the exclusive remedy for any tort

committed by an employee of a governmental entity." S.C.

Code Ann. § 15-78-70(a); Maj. Op. at 24. Yet the majority

nonetheless provides an additional, federal remedy for torts

committed by employees of state government entities. Maj.

Op. at 14. The majority does so without ever telling us what

deficiency in South Carolina law or practice has led it to inter-

vene with a cause of action all its own. In fact, the majority

says that SCDSS employees may be liable when they act with

"deliberate indifference" to foster care placements. Maj. Op.

at 14. This standard seems a rough approximation of the

"gross negligen[ce]" standard, and South Carolina has already

acted to deny immunity in cases where agency employees are

grossly negligent. S.C. Code Ann. § 15-78-60(25).

Thus, the sole purpose of the majority’s cause of action, it

would seem, is not to correct any identified deficiencies in

state law but simply to allow plaintiffs access to federal

courts, where federal judges may fashion over time their sepa-

rate sets of policies which may converge or diverge from

South Carolina’s own legal scheme. Moreover, the basis for

the intrusion is none other than substantive due process,

which unlike its procedural cousin, limits the range of options

available not only to South Carolina but to every state in this

circuit in balancing the claims of families, children, and those

state agencies charged with protecting their welfare.

To make matters worse, the majority’s intrusion is

undertaken pursuant to Pearson v. Callahan, 129 S.Ct. 808

(2009), which modified the Supreme Court’s earlier pro-

nouncements in Saucier v. Katz, 533 U.S. 194 (2001), to

make unnecessary a federal declaration of rights in cases,

such as this one, where qualified immunity is available to

state actors and where the declaration can have no conceiv-

able effect on the outcome of the case or controversy. Among

its reasons for modifying Saucier, the Supreme Court noted

that gratuitous proclamations of constitutional rights "may

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 39

create a risk of bad decisionmaking" and "depart[ ] from the

general rule of constitutional avoidance and run[ ] counter to

the older, wiser judicial counsel not to pass on questions of

constitutionality . . . unless such adjudication is unavoidable."

Pearson, 129 S.Ct. at 820, 821 (citations and internal quota-

tions omitted). Pearson’s cautionary signals were sent for

good reason, namely to deflect advisory and ill-advised judi-

cial ventures into policy, which, with all respect, is what we

have here.

In this case, Jane may in fact be entitled to recovery under

the South Carolina statute—an issue which appropriately may

be litigated in state court. See Maj. Op. at 26. And perhaps

Jane is not entitled to relief, either because the facts do not

develop in Jane’s favor or because South Carolina may not

allow recovery as a matter of law. But even if Jane cannot

recover under state law—and perhaps especially if Jane can-

not recover under state law—this court should not intervene

to override that statutory result by allowing her to recover

under federal constitutional tort. Any state court outcome may

very well reflect a deliberate legislative decision regarding the

relative merits of enhanced state liability versus the relative

merits of permitting social workers some judgmental latitude

in promoting an abused child’s welfare and best interest. We

should not assume that our federal rule is ipso facto better

than the state’s or that the South Carolina courts and legisla-

ture would gratefully welcome this court’s recalibration of the

balance they have struck. In fact, in enacting the SCTCA, the

South Carolina General Assembly expressly "recognize[d] the

potential problems and hardships each governmental entity

may face being subjected to unlimited and unqualified liabil-

ity for its actions," and therefore decided upon a system of

neither "total immunity" nor "unqualified liability." S.C. Code

Ann. § 15-78-20(a).

And if South Carolina is dissatisfied with the result under

its statutory scheme, it may craft a new rule going forward.

40 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

That decision, however, is the prerogative of the state, not this

court. As the Supreme Court explained in DeShaney:

"The people of Wisconsin may well prefer a system

of liability which would place upon the State and its

officials the responsibility for failure to act in situa-

tions such as the present one. They may create such

a system . . . . But they should not have it thrust upon

them by this Court’s expansion of the Due Process

Clause of the Fourteenth Amendment."

DeShaney v. Winnebago County Dep’t of Soc. Servs., 489

U.S. 189, 203 (1989).

By federalizing the "duty to protect," the majority has

effectively scuttled one of the primary benefits of federalism:

the tolerance of varied state approaches to our most stubborn

social problems. See New State Ice Co. v. Liebmann, 285 U.S.

262, 386-87 (1932) (Brandeis, J., dissenting). Not only does

the majority defeat the benefit of variation but it also incurs

the cost of pile-on liability. By imposing a federal constitu-

tional system of liability on top of a state system of liability,

the majority has put into place a double whammy of deter-

rence coupled with a double wringer of litigation; states

assuming children’s custody will now have to fear no less

than two liability schemes—one federal, one state—and per-

haps, as happened here initially, two separate lawsuits—one

in federal court, one in state court. And as noted, this dual

system of deterrence may work to the detriment of those very

persons it was designed to protect—the children whose

chances in life depend on being rescued from the ravages of

the most dysfunctional environments, even as multiple causes

of action now counsel the rescuer to back off.

B.

While state legislatures are the traditional fora for deciding

whether to impose a "duty to protect," if the duty absolutely

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 41

must be federalized, it should be federalized by Congress, not

by us. Congress is the appropriate institution to create any

federal "duty to protect," since it can do so by statute rather

than by Constitution, which is simply too blunt and rigid a

tool for the imposition of general tort liability. If the matter

is to be federalized, Congress could readily do so under its

spending power, by creating rules for states and conditioning

the receipt of federal funds on compliance with those rules.

See South Dakota v. Dole, 483 U.S. 203, 206-07 (1987). Con-

gress can hold hearings and consult a wide range of public

and expert opinion, thus enabling it to more accurately antici-

pate a proposed rule’s potential consequences and to develop

a policy with sufficient nuance to work in diverse factual cir-

cumstances. None of these tools did this court have at its dis-

posal.

Legislatures are also comparatively better positioned to

monitor the impact of a legal rule, once enacted, and if need

be, to adapt the rule in light of changing circumstances or new

information. If a law is indeed having a negative effect, legis-

latures "may recognize degrees of evil and adapt [their] legis-

lation accordingly." See Packer Corp. v. Utah, 285 U.S. 105,

110 (1932). For judges, things are different. Because we are

insulated from the democratic pulse, we learn of conse-

quences, if at all, by fortuity. Although logic suggests that the

majority’s opinion will have the unfortunate result of leaving

more abused children in the hands of the abusers, the truth is,

without any feedback mechanism in place to help us assess

our rulemaking, we may never know the extent of the harm

caused. And even if we could, the harm could not easily be

undone—not by us, bound as we are by precedent, and not by

a legislature, since the majority has rooted its "duty to pro-

tect" in the Constitution.

Neither the majority nor the parties point to any instance

where Congress has laid down a rule to govern the conduct

in this case, and it is wrong for a federal court to rush in

where Congress has feared to tread. Additionally, because the

42 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES

textual underpinnings for the majority’s duty are unclear, the

Constitution supplies this court with very little to direct our

task. "[T]he Court has always been reluctant to expand the

concept of substantive due process because guideposts for

responsible decisionmaking in this uncharted area are scarce

and open-ended. The doctrine of judicial self-restraint

requires us to exercise the utmost care whenever we are asked

to break new ground in this field." Collins v. City of Harker

Heights, 503 U.S. 115, 125 (1992) (citation omitted).

By basing its newfound duty in the elusive Due Process

Clause, the majority has triggered a myriad of issues that this

court will eventually have to address, with virtually nothing

either to constrain or to guide our task. The majority creates

a new substantive due process duty but leaves the rest hang-

ing. What exactly are a state’s affirmative obligations? What

must it do to seek out information regarding a child’s circum-

stances? How often and how extensive must supervision be?

How do limitations periods and tolling principles apply when

a foster child raises claims much later in life? From whom

and from what must the state protect a child? From which of

life’s inevitable bumps and a family’s inevitable strains and

difficulties? These questions and others have no easy or obvi-

ous answers, but by "extend[ing] substantive due process to

this area, these questions [will] be before us in short order,

and it is hard to imagine what tools federal courts would use

to answer them. At the end of the day, there is no reason to

suppose that [our] answers to these questions would be any

better than those of state courts and legislatures, and good rea-

son to suspect the opposite." Dist. Atty’s Office v. Osborne,

129 S.Ct. 2308, 2323 (2009).

So those who must follow the scarcely formed federal rule

are simply left to guess. I suspect that fear of this nebulous

liability will produce many instances of excess caution in

assuming legal custody of battered children and of excess

intervention into new family units. And in the future, when

we are forced to further define the contours of the majority’s

DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 43

"duty to protect," we will be pushed further into the uncom-

fortable position of policy maker and will have to, bluntly,

make stuff up. It is always tempting, I recognize, to respond

to contentions that tug at the heartstrings, but I do not think

state courts are cold or callous in a way that we are not, and

I do think the states in their judicial and legislative capacities

are where the very difficult tensions between familial and

communal responsibilities should be resolved. Restraint in the

judicial task can be the compassionate course. Allowing Jane

to have her day in state court will both respect her individual

claims to justice and avoid the heartache that creation of this

new constitutional cause of action will involve.