Johnson Ex Rel. Estate of Cano v. Holmes

F I L E D

United States Court of Appeals

Tenth Circuit

July 26, 2006

PU BL ISH

Elisabeth A. Shumaker

UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

SCOTT JOHNSO N, as personal

representative of the estate of Graciela

Cano a/k/a Grace Lee Bogey,

deceased; and LORENA TORREZ,

Plaintiffs - Appellants,

v.

ANNE HOLM ES; BONNIE

VEH STEDT; KA REN ZARATE; No. 04-2286

LYD IA R . SAENZ; SONIA PEREZ;

V IRGIN IA V ILLA REA L; V IV IANE

EN CIN IAS; G IN G ER BO WM AN;

D EN ISE H . N A RV A EZ; C HILDREN,

YO UTH and FAM ILIES

DEPA RTM ENT, New M exico;

VERONICA BOGEY; TERRY

B OG EY a/k/a TER I B OG EY ,

Defendants - Appellees.

Appeal from the United States District Court

for the District of New M exico

(D.C. No. CIV-02-1239 JB/KBM )

Paul J. Kennedy (Adam S. Baker with him on the briefs), Kennedy & Han,

Albuquerque, New M exico, appearing for Plaintiffs-Appellants.

M ichael Dickman, Assistant Attorney General, Santa Fe, New M exico for

Defendant-Appellee, Children, Youth and Families Department, New M exico.

Randolph B. Felker, Felker, Ish, Hatcher, Ritchie, Sullivan & Geer, Santa Fe,

New M exico, appearing for Defendants-Appellees.

Timothy V. Flynn-O’Brien, Albuquerque, New M exico, appearing for

Defendants-Appellees.

Before LUC ER O, B AL DOC K , and M cCO NNELL, Circuit Judges.

L UC ER O, Circuit Judge.

This case is not much about grace; it is about Grace, a child born with

severe spina bifida. Grace was abandoned soon after birth to the custody of the

New M exico Children, Youth, and Families Department and placed with a foster

family. Over the foster family’s objection, the Children, Youth, and Families

Department allow ed V eronica Bogey to adopt Grace soon after Grace’s first

birthday. The basis of the foster family’s objection was that they thought Bogey

was actually a man pretending to be a woman because of Bogey’s extensive facial

hair. Veronica Bogey’s father – a self-described hermaphrodite who claims also

to be Veronica Bogey’s mother – then moved in. Responsibility for her case

bounced around from one over-worked social worker to another and concerns

about her situation were investigated by an uninquisitive investigator. Grace’s

situation quickly turned from muddled to tragic: she died four weeks after the

adoption was finalized, apparently as the result of being beaten to death.

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This case is legally about the claimed failures of the Children, Youth, and

Families Department (the “Department”) to properly discharge their custodial

obligations of investigation and oversight, particularly during the period between

placement for adoption and the time adoption decree was entered. The argument

is that, but for the failure of oversight by the Department during the months

leading up to the entry of the formal decree of adoption, the adoption would not

have been permitted and Grace would not have been placed in mortal danger.

Scott Johnson, as personal representative of the estate of the child, renamed

Grace Bogey at adoption, filed suit under state tort law and 42 U.S.C. § 1983

against the D epartment and a number of its employees. His state tort claims were

dismissed as a matter of law, his § 1983 claims against several Department

employees w ere dismissed on summary judgment, and a jury entered a verdict in

favor of two D epartment employees on his remaining claims. He now appeals,

arguing that: (1) sovereign immunity does not bar his state tort claims against the

Department and the Department employees; (2) the district court erred in granting

summary judgment to Virginia Villareal and Ginger Bowman, Department

employees responsible for monitoring Grace’s placement and an investigation into

child abuse allegations raised against the adoptive mother; and (3) the jury verdict

in favor of Anne Holmes and Sonia Perez Sanchez, two other Department

employees involved with the adoption, should be overturned because the jury

instructions improperly required a determination that their actions “shocked the

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conscience” in order to find that they violated the child’s substantive due process

rights.

Under New M exico law, it is clear that the State did not waive sovereign

immunity. The jury instructions used in the trials of H olmes and Perez w ere

clearly in accordance with our substantive due process jurisprudence. The district

court’s decision granting summary judgment to Bowman was also proper.

However, there are disputed questions of material fact as to whether Villareal

properly exercised her professional judgment by failing to investigate several

disturbing events that took place while she was the primary social worker

assigned to Grace’s case. W e conclude the district court’s dismissal of the claims

against the D epartment, its grant of summary judgment to Bowman, and the jury

verdicts in favor of Holmes and Perez should be AFFIRM ED. Grant of summary

judgment to Villareal, however, should be REVERSED and the case

REM AND ED to the district court for proceedings consistent with this opinion.

I

In 1997, Lorena Torrez gave birth to Graciela Cano a/k/a Grace Lee Bogey

(“Grace”). As noted, Grace was born with severe spina bifida and, because of her

special needs, Torrez soon proved unable to care for her. Torrez thus

relinquished all parental rights, whereupon the Department assumed legal custody

and began efforts to find adoptive parents. In the interim, Grace was placed with

foster parents Charlene and G raydon Blevins.

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The Department conducted several “home studies” in its efforts to find

permanent adoptive parents for G race, including one by Denise Narvaez, a

Department employee, of Veronica Bogey, a single schoolteacher previously

licensed by the Department as a qualified adoptive parent. Viviane Encinias, an

adoption consultant, forwarded the Bogey home study along with several other

home studies to Anne Holmes, a Department employee previously assigned as

Grace’s treatment worker.

Department officials decided to focus on Bogey and held a “matching

staffing” meeting to discuss Bogey as the potential adoptive parent and her ability

to care for G race. In attendance were Encinias, Holmes, Narvaez, Lydia Saenz, a

treatment supervisor, Sonia Perez, 1 the placement worker assigned to provide

post-placement services for G race, and Virginia Villareal, Perez’s supervisor. A t

the meeting, they decided that Bogey was a good match for Grace. An expert

hired by the personal representative described the process as having been

conducted in an “excessively hasty” manner.

The Department’s ultimate decision to place Grace with Bogey was not free

from hesitation and doubt. Holmes expressed concern that Bogey would not be

able to meet Grace’s needs because she was single. Charlene Blevins objected

because she believed Bogey appeared to be a man pretending to be a woman.

1

During the period at issue in this case, Perez was married and changed her

name to Sonia Sanchez. For the purposes of this opinion, she will be referred to

as Sonia Perez.

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Both of these worries were determined by the Department to be unfounded. The

Department then proceeded to the next steps required to permanently place Grace

with Bogey: a home inspection and “full disclosure,” during which Department

officers fully explained to Bogey the extent of Grace’s medical problems, and a

visit by Bogey with Grace in the foster home.

On completion of this process, the Department allowed preadoptive

placement with Bogey. Soon thereafter, Perez expressed concern that Bogey

would be overwhelmed by the responsibility of caring for a child with special

needs, and suggested that respite care might be appropriate. Despite this concern,

the Department proceeded without offering such assistance, but did provide a

monthly subsidy of $487 and agreed to cover medical expenses for any pre-

existing condition not covered by Bogey’s health insurance or M edicaid.

A fter placement, Perez, w ho was performing the responsibilities of two

social workers due to understaffing in the Department, assumed primary

responsibility for monitoring Grace’s progress. Although under Department

policy Perez w as expected to conduct monthly home visits, Perez visited B ogey’s

home but two or three times over the course of almost six months. Perez did,

however, monitor Grace’s progress in other ways. She saw Grace in the

Department’s offices on two or three occasions, once picked her up at a daycare

facility, and placed a number of phone calls to Bogey to discuss Grace’s progress.

Villareal also met with Grace during her visits to the Department’s offices.

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During the preadoptive placement, a nurse, Kerstin Lagestam, was hired to

conduct check-ups on G race. During her first visit to Bogey’s home, Nurse

Lagestam noticed swelling and a large purple bruise on the left side of G race’s

face. Bogey explained that she accidently bumped Grace’s face on the side of a

car door.

Nurse Lagestam then began to visit Grace once each day at her day care

facility. Several months after she started, Nurse Lagestam noticed marks on

Grace’s neck, back, and abdomen. Considering the marks to be intentionally-

inflicted fingernail scratches deep enough to leave scars, Nurse Lagestam reported

the injuries to her supervisor, Janie M ealand, who proceeded to call Holmes at the

Department. Holmes was unavailable and, a few days later, Nurse Lagestam

noticed that Grace’s right hand was bruised and swollen. She promptly reported

this to M ealand as w ell.

M ealand did not hear from Holmes for several days. W hen Holmes

eventually returned her call, she told M ealand to call Sonia Perez. M ealand did

so on M arch 22, 2000, and two days later, Perez told M ealand to call the

Department’s abuse hotline. Immediately after she heard from Perez, M ealand

called the hotline: It was M arch 24. She did not hear back from the Department

for two weeks, at which point, she called the hotline again. This time, she was

told that Perez would call her back. Another week passed before Perez returned

her call.

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The bureaucratic morass at the Department did not only impede its ability

to return phone calls; the actual investigation into the abuse allegations was

stalled as well. Although M ealand had first contacted Department officials about

the reported abuse much earlier, the Department did not begin its investigation

until the call to the hotline was made on M arch 24. Bogey left for a vacation the

next day, M arch 25. Although Perez and the D epartment’s abuse investigator,

Ginger Bowman, attempted to contact Bogey before she went on vacation and left

a phone message, they were not able to reach her.

W hen Bogey returned from vacation on April 3, she called Perez, who told

Bogey about the allegations and explained that allegations of this sort are

frequently unsubstantiated. Bogey responded by saying that Grace tends to get

bruises that do not heal quickly when crawling and that the pet ferret belonging to

Bogey’s father may have scratched Grace.

W hen Perez and Bowman finally conducted the required home visit

following abuse allegations, Bowman examined Grace and determined that there

was no evidence of physical abuse. Grace’s shins were bruised, but Bowman

noted that this is common among children like Grace who lack feeling in their

lower extremities. According to Bowman, Grace seemed attached to Bogey and

did not flinch when Bogey approached. Bogey told Bowman that any scratches or

bruises were probably the result of contact with other children at day care or from

incidental contact with rings that Bogey wears.

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After this investigation, Bowman told Villareal and Perez that there was no

evidence of abuse. She did not, however, prepare a contemporaneously written

report, nor did she explain to either co-worker what she had observed. Perez

offered Bogey respite care, but Bogey declined. Bowman did not contact any

third party to ask about the abuse allegations.

Two months later, Perez quit her job at the Department. Because of the

lack of available staffing at the Department, Villareal assumed the entirety of

Perez’s double caseload, as well as keeping her supervisory responsibilities. For

the next two months, Villareal was the primary social worker assigned to G race’s

case. During this period, substantial changes occurred in the Bogey home. First,

Bogey’s father, Terry Bogey, moved in. Villareal did not know that Terry Bogey

was going to move in, although she did know that Bogey planned to move, along

with Grace, to W isconsin after the adoption became final in order to be closer to

her father. Second, Bogey removed Grace from daycare and fired her home

health nurses, leaving Grace entirely cut off from any contact with the outside

world. Villareal neither investigated Terry Bogey nor the decision to remove

Grace from outside contact. Despite the upheaval in Grace’s life, Villareal did

not visit Bogey’s home once during this period

Following a hearing in Children’s Court, Bogey’s adoption of Grace was

finalized on July 31, 2000. Both the abuse allegations and Bowman’s report that

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determined the allegations as being without merit were provided to the Children’s

Court and Grace’s guardian ad litem before the finalization of the adoption.

Little more than one month later, Bogey brought Grace to a hospital

emergency room because she was congested and could not breathe. Grace died

soon after. On admission, hospital personnel determined that Grace’s death was

the result of child abuse. An autopsy report concluded that Grace died of

craniocerebral blunt force, and noted that there was evidence of serious injuries to

Grace’s head, neck, torso, and extremities. Grace’s arm was also broken.

Autopsy timing of the break was placed as likely having occurred several weeks

prior to Grace’s death. Fingernail scratches of recent origin were identified on

Grace’s arm, as were scars on Grace’s abdomen and lower back.

The personal representative for G race’s estate sued Bogey and her father, a

number of Department employees – Perez, Villareal, Bowman, Holmes, Saenez,

Encinias, K aren Zarate, and B onnie Vehstedt – and the Department itself. 2 He

claimed that the defendants violated the New M exico Torts Claims Act

(“NM TCA”) and the federal Adoption Assistance and Child W elfare Act

2

Although it is not in the record, at oral argument it was revealed that

Johnson’s status as personal representative has been the subject of much

litigation. He was appointed by a state court on the request of an attorney for

Grace’s birth mother, Lorena Torrez, and Lorena Torrez’s children, who now

represents Johnson before this court. The propriety of appointing Johnson as

personal representative is on appeal in state court. Torrez and Torrez’s children

are also attempting to recover from Grace’s estate in parallel litigation in state

court.

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(“AACW A”). He also filed a claim under § 1983 for violations of the substantive

component of the Due Process Clause against the Department employees and the

Bogeys.

In response to a 12(b)(6) motion, the district court dismissed the NM TCA

and AACW A claims against all defendants. The district court also dismissed the

§ 1983 claims against Bogey and her father because they were not state actors. It

declined to exercise supplemental jurisdiction over the state law claims against

the Bogeys.

The district court then granted summary judgment on the § 1983 claims for

Bowman, Encinias, Narvaez, Saenz, Vehstedt, Villareal, and Zarate on qualified

immunity grounds. Claims against H olmes and Perez, however, proceeded to

trial, and a jury returned a verdict in their favor.

The personal representative now appeals, arguing that the district court (1)

improperly dismissed on the pleadings the claims brought under the NM TCA; (2)

utilized improper jury instructions for the trial of Perez and Holmes; and (3)

improperly granted summary judgment to Bowman and Villareal.

II

Below, the state tort claims against the Department, a N ew M exico state

agency, and the Department employees w ere dismissed because the defendants

were protected by sovereign immunity. This determination was erroneous, the

personal representative argues, because the “building waiver” clause in the

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NM TCA expressly waives sovereign immunity in these circumstances. He is

mistaken. Because New M exico does not have a duty to engage in the day-to-day

“operation” of Bogey’s house or the provision of care to Grace, the “buildings

waiver” does not apply. Sovereign immunity thus bars the personal

representative’s state tort law claims against the Department and the individual

defendants.

W e review a district court’s grant of a motion to dismiss de novo. Sutton

v. Utah State Sch. For D eaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

The New M exico Tort Claims A ct does not provide a cause of action for all

negligent behavior engaged in by State employees. Instead, it seeks to balance

the need to limit governmental liability and the desire to compensate those injured

by the negligence of State employees by creating a general immunity from tort

liability for the State and State employees with certain, limited exceptions. Cobos

v. Dona Ana County Hous. Auth., 970 P.2d 1143, 1145 (N .M . 1998).

One exception is the so-called “building waiver” exception, which states.

The immunity granted pursuant to Subsection A of Section 41-4-4

NM SA 1978 does not apply to liability for damages resulting from

bodily injury, wrongful death or property damage caused by the

negligence of public employees w hile acting within the scope of their

duties in the operation or maintenance of any building, public park,

machinery, equipment or furnishings.

N.M . Stat. Ann. § 41-4-6 (emphasis added).

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Because the Department had the responsibility to provide oversight over

Grace’s care by Bogey, it is urged, the State had responsibility to maintain and

operate Bogey’s home. The New M exico Supreme Court has interpreted the

phrase “operation and maintenance” in § 41-4-6 somewhat broadly; it is not

“limited [in] its applicability strictly to defects in the physical building.” Upton

v. Clovis M un. Sch. Dist., 115 P.3d 795, 797 (N.M . Ct. App. 2005). Nor is it

limited to buildings owned by the government. Cobos, 970 P.2d at 1146-47.

Instead, courts must examine the “scope of the duties” performed by public

employees to operate or maintain the building in question. Id. W hen public

employees have a duty to operate or maintain a structure, the state is liable if the

negligent actions of the public employees pose a danger to the “general public.”

Espinoza v. Town of Taos, 905 P.2d 718, 721 (N.M . 1995). However, claims

based on a public employee’s duty to inspect and supervise do not fall within the

“building waiver” exception. Cobos, 970 P.2d at 1149.

This is not an issue of first impression; New M exico courts have considered

similar facts twice before. In M .D.R. v. State ex rel. Human Servs. Dep’t, 836

P.2d 106, 109 (N.M . Ct. App. 1992), the New M exico Court of Appeals held the

Department did not “operate” a foster home under the NM TCA by virtue of

placing a child in the home. Judge M izner wrote a concurring opinion noting

that, although the Department did not operate the foster home by making the

placement decision, under some circumstances the Department could “operate” a

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foster home because it engages in extensive “supervision of actual day-to-day

operation.” Id. at 111. 3

In Young v. Van Duyne, 92 P.3d 1269 (N.M . Ct. App. 2004), the Court of

Appeals seized upon this distinction made in Judge M izner’s concurrence. It held

that the “building waiver” exception applied when the state placed an extremely

violent young man in a foster home and the young man killed one of the foster

parents. The court found that the waiver applied because the state’s extensive

role in regulating foster homes amounted to “control over the . . . home as a

licensed foster home.” Id. at 1276. The holding in Young rested on the

extensive role the state plays in regulating and operating foster homes.

Before us, the personal representative’s claim that the Department operated

and maintained Bogey’s home takes two forms. First, he argues that the State’s

regulation of adoptive homes before the adoption is final is akin to the State’s

regulation of foster homes, and that, therefore, Young applies. This argument is

flawed because the State’s treatment of adoptive homes is substantially different

from its treatment of foster homes. Under the NM TCA, foster parents are “public

employees,” and hence the “operation” of their home is by the State. N.M . Stat.

Ann. § 41-4-3(F)(4). New M exico regulations make clear that, although foster

parents are private citizens, they play a public role when they take in foster

3

Judge M izner’s concurring opinion did not have any binding precedential

effect. However, the New M exico Court of Appeals has since relied on its

reasoning.

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children. 4 “The foster parent is a member of the child’s case management team

and, as a team member, participates in the development and implementation of

team plans and may participate in conferences, citizen review boards, judicial

reviews, individual education plans, etc. Foster parents do not make independent

plans for children in their care.” N .M . Admin. Code § 8.27.2.19(C) (emphasis

added). Instead, “foster parents cooperate w ith and carry out the [Department]

plans for the child.” Id. Further, the State directly controls day-to-day parenting

in foster homes. For instance, State regulations specifically require foster

children to be assigned household chores, id. § 8.27.3.22, and foster parents are

forbidden from making negative comments about the foster children’s birth

parents. N.M . Admin. Code § 8.27.3.25. New M exico regulations also

specifically regulate the buildings in which foster parents live. See id.

§§ 8.27.2.15; 8.27.3.11; N.M . Stat. A nn. § 40-7a-4(D ).

There are no similar regulations of putative parents before adoptions are

made final. Adoptive parents are investigated by the State and their progress is

monitored by the State, but they are not considered public employees nor is their

day-to-day conduct as parents regulated and controlled by the State. In light of

4

State regulations suggest that foster parents are effectively state officials,

at least for some purposes. Foster parents are screened, trained, studied, approved

and licensed by the state. N .M . Admin. Code § 8.27.2.13. See also N.M . Stat.

Ann. §§ 32(A)-1-4(G); 40-7A-4(B). Licenses must be renewed each year and

applicants must meet stringent and extensive requirements for serving as a foster

parent as well as undergoing annual training. N.M . Admin. Code § 8.27.2.13; see

also N.M . Admin. Code §§ 8.27.2.19; 8.27.3.12.

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the highly unusual facts of Young and the tension between its analysis and that in

M .D.R., we are not persuaded that New M exico precedent treats everything that

happens within a foster home as within the building waiver exception. But even

accepting that premise for sake of argument, we conclude that the reasoning of

Young does not extend to adoptive homes. The State does not play anywhere

near as extensive a role in adoptive homes as it does in foster homes.

Secondly, the personal representative argues that the Department failed to

sufficiently investigate and report the allegation of child abuse. The Department

does have a duty to investigate and report on whether there has been successful

integration of the family, whether there were needs for social services, and

whether there were instances of child abuse. This, however, is not “day-to-day

operation” of the home. New M exico courts have been clear that a duty to

regulate and investigate violations does not constitute “operation” of a facility

under the NM TCA. See, e.g., Caillouette v. Hercules, Inc., 827 P.2d 1306, 1312-

13 (N.M . Ct. App. 1992) (holding that the State did not “operate” within the

meaning of the NM TCA a truck containing explosives that was inspected by state

police officer following a crash because “the use of the words ‘operation’ and

‘maintenance’ . . . indicates an intent not to extend liability to all activities

supervised or inspected by the state.”); Owens v. Leavitts Freight Serv., Inc., 745

P.2d 1165, 1168 (N.M . Ct. App. 1987) (“The design, planning and enforcement of

safety rules for school bus transportation do not fall within the meaning of

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‘operation’ of a motor vehicle.”); cf. Cobos, 970 P.2d at 1149 (finding the State

did operate a private building used as a housing project because the “D efendants’

duties in this case do not arise as a consequence of the general regulatory

relationship between the government and its citizens.”).

Neither the Department nor its employees “operated” Bogey’s home and

they are therefore protected by sovereign immunity against the personal

representative’s tort claims. Dismissal of these claims should be affirmed.

III

The personal representative also appeals the jury’s verdict that Holmes and

Perez did not violate Grace’s rights under the substantive component of the Due

Process Clause. He claims that the jury instructions for their trial misstated the

applicable law by requiring the jury to find that their actions “shocked the

conscience.” Therefore, the personal representative claims, the jury’s verdict

should be reversed. This claim is meritless; the jury instructions were a correct

statement of applicable law.

Because the personal representative failed to object to the jury instructions

at trial, we review only for plain error. Greene v. Safeway Stores, Inc., 210 F.3d

1237, 1245 (10th Cir. 2000). “Under that standard, we will affirm unless the

instructions w ere ‘patently, plainly erroneous and prejudicial.’” Id. (quoting Unit

Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1190 (10th Cir. 1997)).

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The § 1983 claims against Holmes and Perez allege violations of G race’s

substantive due process rights under the Fourteenth Amendment. Generally, state

actors are liable under the Due Process Clause only for their own actions and not

the actions of private citizens. Ulhrig v. Harder, 64 F.3d 567, 572 (10th Cir.

1995). There are two exceptions to this rule. State officials may be subject to

constitutional liability if they: (1) create a danger that results in a harm to an

individual, even if that harm is not ultimately inflicted by a state official; or (2) if

the state has a “special relationship” with the individual who is harmed by the

third party. Id. Both the “danger creation” and the “special relationship”

theories of liability were advanced at trial. The district court instructed the jury

that the personal representative w as required to prove that the defendants’

conduct “shocked the conscience” to recover under either theory.

On appeal, the personal representative argues that a “shocks the

conscience” test only applies to “danger creation” claims and does not apply to

“special relationship” claims. This argument is directly precluded by our

precedent. In Radecki v. Barela, we held:

It is true, of course, that state actors are generally only liable under

the Due Process Clause for their own acts and not private violence.

There are, however, two exceptions to that rule. First, the state may

be subject to constitutional liability if it does not perform a duty to

provide protection to an individual with whom the state has a special

relationship because it has assumed control over that individual, such

as in a prison. Second, the state may be constitutionally liable if it

creates a danger that results in harm to an individual, even if that

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harm is ultimately inflicted by a private party. The shocks the

conscience standard applies to both types of suits.

146 F.3d 1227, 1230 (10th Cir. 1998) (internal citations and quotation marks

omitted) (emphasis added). The jury instruction correctly stated the law and there

is no reason to reverse the jury verdicts in favor of Holmes and Perez.

IV

Appeal of the district court’s grant of summary judgment favoring Villareal

and Bowman on qualified immunity grounds is predicated on the claim that the

district court improperly resolved factual disputes and improperly drew inferences

in favor of Bowman and Villareal. The undisputed facts show that Bowman

exercised her professional judgment in her investigation of abuse allegations and,

thus, did not violate Grace’s substantive due process rights. There are, however,

genuine issues of material fact as to whether Villareal exercised her professional

judgment by failing to investigate several suspicious events during the period she

was the D epartment employee directly responsible for Grace. Hence, we affirm

the grant of summary judgment for Bowman, but reverse the grant of summary

judgment for Villareal.

W e review a grant of summary judgment on the basis of qualified immunity

de novo. Jiron v. City of Lakew ood, 392 F.3d 410, 413-14 (10th Cir. 2004).

Summary judgment is appropriate if the pleadings, depositions, answ ers to

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interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue of material fact and one party is entitled to

judgment as a matter of law . Fed. R. Civ. P. 56(c). W e must construe the record

in the light most favorable to the non-moving party. Id.

In order to defeat a qualified immunity defense, “a plaintiff must show that

(1) the official violated a constitutional or statutory right; and (2) the

constitutional or statutory right was clearly established when the alleged violation

occurred.” M imics, Inc. v. Village of A ngel Fire, 394 F.3d 836, 841 (10th Cir.

2005) (internal citations and quotation marks omitted). “W e must first determine

if a constitutional right was violated because in the course of determining whether

a constitutional right was violated on the premises alleged, a court might find it

necessary to set forth principles which will become the basis for a holding that a

right is clearly established.” H arman v. Pollock, 446 F.3d 1069, 1077 (10th Cir.

2006) (internal quotation marks omitted). In this case, the parties agree that the

allegations are based on clearly established law . Thus, the only question for us to

decide is whether there is a genuine question of material fact as to whether

Bow man or Villareal violated G race’s substantive due process rights.

As noted above, state officials are generally not responsible for the actions

of third parties under the substantive component of the Due Process Clause.

DeShaney v. W innebago County Dept. of Social Servs., 489 U.S. 189, 201 (1989).

They, however, can be held liable for harm done by third parties if the state has a

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“special relationship” with the harmed individual. A “special relationship . . .

exists when the state assumes control over an individual sufficient to trigger an

affirmative duty to provide protection to that individual . . . .” Id. at 199-200. In

Yvonne L. v. New M exico D ep’t of H uman Serv., 959 F.2d 883 (10th Cir. 1992),

we held that the state has a special relationship w ith children in state custody. If

the state or its employees “knew of the asserted danger to [minor children in state

custody] or failed to exercise professional judgment with respect thereto . . . and

if an affirmative link to the injuries [the children] suffered can be shown, then

[the state or its employees] violated plaintiffs’ constitutional rights.” Id. at 890.

W e noted that the standard used in Yvonne L., “failure to exercise professional

judgment,” requires more than mere negligence: it requires an abdication of

professional responsibility. Id. at 894. Such abdication must be sufficient to

shock the conscience. Cf. Radecki, 146 F.3d at 1230. Both Bowman and

Villareal concede that the state had a special relationship with Grace, but argue

that their conduct did not violate the Fourteenth Amendment.

Bowman

Two bases are advanced in support of the contention that summary

judgment should not be granted to Bowman. First, the personal representative

argues that a genuine question of material fact exists as to whether the

investigation of the abuse allegation violated Grace’s rights, given the delay in

initiating the investigation and the decision by Perez to notify Bogey in advance

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that an investigator was coming. Second, he claims that a genuine dispute of

material facts exists as to whether Bowman employed professional judgment in

conducting her investigation because Bowman reported that there was no

evidence that Grace had been abused, despite evidence indicating otherwise, and

did not contact any third parties after meeting with Bogey to discuss the abuse

allegations.

Regarding the first contention, there is no evidence that Bowman was

responsible for the delay in the investigation. Perez and Holmes were the

officials responsible and the personal representative’s claims against them went to

trial. Further, it was Perez who notified Bogey about the abuse allegations. This

contention – that the delay and early notification of Bogey by Perez and Holmes

may form the basis of a claim that Bowman violated Grace’s Fourteenth

Amendment rights – was properly rejected.

As for the second contention, our review of the record reveals that there are

no disputed questions of material fact. There is clear, uncontradicted evidence

that Bowman thoroughly examined Grace’s body during her visit to Bogey’s

home and, in her professional judgment, determined there was no abuse. No facts

were advanced that contradict this clear evidence. Instead, the personal

representative attempts to indict Bow man’s judgment by noting that Nurse

Lagestam found intentionally-inflicted fingernails scratches on Grace’s neck,

back, and abdomen during her examination of Grace that Bowman did not find.

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He also claims that the autopsy revealed that fingernail scratches on Grace’s back

and neck were apparent when Bowman performed her examination. However, the

autopsy states that the scratches were “consistent with recent injury,” and the

autopsy took place months after Bow man’s investigation. Because the autopsy

report does not show what the personal representative claims it does, there

remains no evidence that Bow man missed something in her investigation; Nurse

Lagestam determined Grace had been abused weeks before Bowman conducted

her examination. This claim thus distills to the assertion Lagestam found

evidence of abuse and Bow man did not. That two professionals both conducted

an investigation and simply disagreed about a diagnosis is not proof, in and of

itself, that either professional has abandoned her professional judgment.

It is clearly correct that Bowman failed to call Nurse Lagestam or any other

third party following her investigation. But no evidence is advanced that

establishes that failing to do so is “such a substantial departure from accepted

professional judgment, practice or standards as to demonstrate that the person

responsible actually did not base the decision on such a judgment.” Youngberg v.

Romero, 457 U.S. 307, 323 (1982). In order to create a question of material fact

as to whether Bowman’s decision not to call a secondary source violated the

Fourteenth Amendment, the personal representative must establish that this

failure was a substantial departure from accepted professional judgment, practice,

or standards. The only evidence the personal representative points to is a report

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by Alvin Sallee, an expert witness, who expressed an opinion that the

Department’s behavior as a whole during the investigation, including Bowman’s

failure to call a third party, was grossly negligent. Given the deferential standard

of review we employ under Youngberg, this does not provide the type of

particularized evidence necessary to create a dispute of material fact as to whether

the failure to contact outside sources was an impermissible deviation from

professional judgment. 5 Summary judgment as to this defendant was thus proper.

Villareal

Under a “special relationship” theory, the personal representative argues

that Villareal violated Grace’s substantive due process rights by failing to

exercise professional judgment in: (1) deciding to place Grace in Bogey’s home;

(2) loosely supervising Perez w hen she w as the social worker assigned to G race’s

case; and (3) failing to investigate the arrival of Bogey’s father, Terry Bogey, and

the decision by Bogey to withdraw Grace from all contact with the outside world

when she was the social worker w ith sole responsibility for G race’s case.

There is no merit to the claims relating to the placement decision or

Villareal’s oversight of Perez. Villareal did not decide to place Grace with Bogey

on her own: she acted on the advice of the Department’s adoption consultant,

5

Further, Bowman explained that her failure to make the calls was a result

of a staffing problem at the Department. A failure to satisfy professional

standards can be excused, under certain circumstances, because of budgetary

constraints. Youngberg, 457 U.S. at 323. Because there is no evidence that her

conduct fell below professional standards, we need not address this argument.

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Viviane Encinias, and as part of a Department committee. Only two Department

employees expressed any doubts about Bogey’s fitness as an adoptive parent:

Perez and H olmes both noted that they were somewhat worried that Bogey, as a

single mother, might have trouble meeting Grace’s needs. That Villareal, along

with others at the Department, decided to go ahead and place Grace with Bogey in

the face of such mild doubts does not constitute a failure to exercise professional

judgement. Further, the personal representative’s claim that Villareal violated

Grace’s constitutional rights by improperly supervising Sonia Perez is precluded

by the jury’s finding that Perez did not violate Grace’s constitutional rights.

Jiron, 392 F.3d at 419 (holding that a finding that an officer did not violate a

plaintiff’s constitutional rights meant that the officer’s supervisor could not be

held liable for deficient supervision).

However, there is merit to the personal representative’s argument that there

are disputed questions of fact as to whether Villareal exercised her professional

judgment after Perez left the Department. After Perez resigned, Villareal was

solely responsible for Grace’s case. During this period, Bogey removed G race

from day care and fired her home health nurses. Then, Terry Bogey moved in to

Bogey’s home, and Bogey did not inform the Department. Villareal did not

investigate any of these circumstances and, over a two-month span, did not make

a single visit to Bogey’s house or inquire into these matters. According to the

personal representative’s expert witness, Sallee, this was an abandonment of

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professional judgment. Whether V illareal exercised professional judgment in

concluding that the events were not of concern is a disputed question of material

fact and is inappropriate for resolution on summary judgment.

Villareal argues that extreme short-staffing at the D epartment is the cause

of any failures on her part during this period. Undisputed testimony shows that

Villareal was both covering the large number of cases Perez left behind and

serving as a supervisor to other social workers. The Supreme Court has stated

that, “[i]n an action for damages against a professional in his individual capacity,

however, the professional will not be liable if he was unable to satisfy his normal

professional standards because of budgetary constraints; in such a situation,

good-faith immunity would bar liability.” Youngberg, 457 U.S. at 323.

However, Villareal does not present evidence that budgetary problems at the

Department caused her complete failure to investigate. Existence of budgetary

problems is not an automatic free pass for unprofessional behavior, and the record

is not clear about whether Villareal’s workload, and not some less benign

explanation, made her unable to investigate the questionable situation in Bogey’s

home. Summary judgment on this issue was therefore inappropriate. 6

6

A substantive due process claim rooted in a “danger creation” theory is

also advanced on appeal. The “danger creation” theory is another exception to

the rule from DeShaney that state officials cannot be held responsible under the

substantive due process clause for the actions of third parties. Liebson v. New

M exico Corrections Dep’t, 73 F.3d 274, 276 (10th Cir. 1996). “[A] state may

also be liable for an individual’s safety if it created the danger that harmed the

(continued...)

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IV

W e A FFIR M the district court’s dismissal of the state tort claims against

the Department and Department employees on sovereign immunity grounds.

Further, we AFFIRM the jury verdicts in favor of Holmes and Perez and the

6

(...continued)

individual. Id. In C urrier v. D oran, 242 F.3d 905, 919 (10th Cir. 2001), we

applied the “danger creation” doctrine to child placements by the very agency

involved in this case, the Children, Youth and Families Department. W e held that

Department officials can be held responsible under the substantive component of

the Due Process Clause for creating danger to children by engaging in such

reckless conscious disregard for risk when placing them in a home that it shocks

the conscience. To establish liability under a “danger creation” theory, a plaintiff

must prove that “(1) the charged state entity and the charged individual actors

created the danger or increased plaintiff’s vulnerability to the danger in some

way; (2) plaintiff was a member of a limited and specifically definable group; (3)

defendant’s conduct put plaintiff at substantial risk of serious, immediate, and

proximate harm; (4) the risk was obvious or known; (5) defendant acted

recklessly in conscious disregard of that risk; and (6) such conduct, when viewed

in total, is conscience shocking.” Id. at 918. In Currier, a Department official

failed to investigate numerous allegations of severe abuse before placement and

we held that the failure to do so could meet these requirements and thereby

violate a child’s substantive due process rights. Id. at 924.

The “danger creation” claim in this case does not meet the requirements

laid out in Currier. The personal representative argues that Villareal failed to

properly investigate Bogey before recommending to the Children’s Court that the

adoption be finalized, and thereby created the danger that led to Grace’s death.

However, there is no allegation that the risk of abuse to Grace was obvious or

known, as is required for a danger creation claim, because it is undisputed that

Villareal relied upon Bowman’s determination that the abuse allegation was

unsubstantiated. W ithout proving the existence of a “obvious or known” risk,

such as the uninvestigated abuse allegation in Currier, a danger creation claim

cannot survive. Therefore, the district court rightly granted summary judgment as

to this claim.

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grant of summary judgment to Bowman. However, the grant of summary

judgment to Villareal was improper because there are disputed questions of

material fact relating to the period in which she was the Department employee

directly responsible for Grace prior to the adoption. W ith respect to that claim

only, we REV ER SE the district court and REM AND for further proceedings

consistent with this opinion.

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