Tamas v. Department of Social & Health Services

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTERA L. TAMAS; RUTH S. TAMAS; 

MONICA, by and through her court-

appointed guardian for purposes of

litigation,

Plaintiffs-Appellees,

v.

DEPARTMENT OF SOCIAL & HEALTH

SERVICES, STATE OF WASHINGTON;

MARSCHELL BAKER, individually

and in her official capacity acting

under the color of state law; JOYCE

DRAKE individually and in her

official capacity acting under the 

color of state law; JAMES KAIROFF,

individually and in his official

capacity acting under the color of

state law; SHARON KLEINHEN,

individually and in her official

capacity acting under the color of

state law; CHRIS KNESER

individually and in her official

capacity acting under the color of

state law; ELAINE LIPSON,

individually and in her official

capacity acting under the color of

state law;



20527

20528 TAMAS v. DSHS

SHARON LOEFFLER, individually and 

in her official capacity acting

under the color of state law;

BEVERLY PAYNE individually and in No. 08-35862

her official capacity acting under

the color of state law; KELLIE  D.C. No.

2:07-cv-00750-RAJ

WALKER, individually and in her OPINION

official capacity acting under the

color of state law,

Defendants-Appellants.



Appeal from the United States District Court

for the Western District of Washington

Richard A. Jones, District Judge, Presiding

Argued and Submitted

October 15, 2009—Seattle, Washington

Filed December 22, 2010

Before: Johnnie B. Rawlinson and Consuelo M. Callahan,

Circuit Judges, and Larry A. Burns,* District Judge.

Opinion by Judge Rawlinson

*The Honorable Larry A. Burns, United States District Judge for the

Southern District of California, sitting by designation.

20532 TAMAS v. DSHS

COUNSEL

Defendants-Appellants State of Washington Department of

Health and Social Services, Marschell Baker, Joyce Drake,

James Kairoff, Sharon Kleinhen, Chris Kneser, Elaine Lipson,

Sharon Loeffler, Beverly Payne and Kellie Walker are repre-

sented by Robert M. McKenna, Attorney General, Michael P.

Lynch (argued), and Peter J. Helmberger, Assistant Attorneys

General, Olympia, Washington.

Plaintiffs-Appellees Estera L. Tamas, Ruth S. Tamas, and

Monica are represented by David P. Moody (argued),

Anthony D. Shapiro, Erin K. Flory, and Marty D. McLean,

Hagens Berman Sobol Shapiro LLP, Seattle, Washington.

OPINION

RAWLINSON, Circuit Judge:

Enrique Fabregas (Fabregas) is a predator who slithered

into the lives of vulnerable women with young daughters.

TAMAS v. DSHS 20533

There is no question that Fabregas molested his foster daugh-

ters, one of whom he legally adopted. The more challenging

question this case presents is whether the State of Washington

Department of Social and Health Services (DSHS) and nine

DSHS employees’ involved in overseeing the foster care of

Monica (Monica), Ruth Tamas (Ruth), and Estera Tamas

(Estera) are legally responsible for the injuries inflicted by

Fabregas.

Monica, Ruth, and Estera (Appellees) filed a lawsuit

against DSHS and nine of its employees (Appellants) alleging

negligence and civil rights violations under 42 U.S.C. § 1983.

Appellants filed a summary judgment motion asserting that

the individual DSHS employees were entitled to absolute and

qualified immunity. Appellants challenge the district court’s

denial of their motion. Because the district court did not apply

the correct standard in assessing whether qualified immunity

applies, we vacate the district court’s judgment and remand

this case for application of the correct standard, and for sepa-

rate analysis of each Appellant’s prospective liability.

I. BACKGROUND

Over the course of approximately ten years, DSHS received

and responded to almost thirty formal and informal com-

plaints regarding Fabregas’ interaction with his foster chil-

dren, Monica, Ruth and Estera.

On July 19, 1996, DSHS received a referral (Referral 1)

alleging that Fabregas abused Monica’s mother and used

cocaine. DSHS subsequently filed a dependency petition

regarding two-year-old Monica, which was granted. DSHS

placed Monica with Pamela Deming (Deming).

Appellant Chris Kneser (Kneser) was Monica’s DSHS

social worker from June 2, 1997, to February 26, 1999. Dem-

ing reported to Kneser that she witnessed Fabregas “french

kiss” Monica, suspected Monica was molested, and viewed a

20534 TAMAS v. DSHS

video made by Fabregas showing Monica in a freezer, stand-

ing unrestrained in a moving car, and standing by a busy free-

way in a cow costume. On July 1, 1997, Kneser received a

referral (Referral 2) reporting that Monica said she “told Papa

to stop. No no no[,]” and pointed to her bottom when asked

where he touched her. Kneser initiated a Child Protective Ser-

vices (CPS) investigation, which “determined the allegation to

be inconclusive” because Monica and Fabregas denied the

abuse and Moore (Monica’s mother) did not believe Fabregas

abused Monica.

On November 25, 1997, Fabregas applied for a foster care

license1 and filed a motion for an order placing Monica with

him.2 On March 2, 1998, the court ordered Monica’s place-

ment with Fabregas, subject to conditions that he obtain a

foster-care license and comply with DSHS’s service plan.3

Appellant Sharon Kleinhen (Kleinhen), a foster home licensor

from 1975 to 1999, conducted a home study and reviewed

Fabregas’ license application. She noted the court’s placement

of Monica with Fabregas despite his criminal history, his “odd

parenting methods, a drug and rehabilitation past, and con-

cerns about sexual deviance[.]” Kleinhen nevertheless recom-

mended to her supervisor, Appellant Joyce Drake (Drake),

that Fabregas be licensed. Drake, the licensor supervisor from

1997 to 2002, signed the license, and dated it March 9, 1998.

In February, 1999, Fabregas requested a second license

when he changed his residence. Fabregas once again misrep-

resented his criminal history on the application. Appellant

1

Fabregas falsely declared on his foster-care license application that he

had never been convicted of a felony. On May 6, 1998, Fabregas moved

the court for a certificate of rehabilitation, which enabled him to be

licensed regardless of his criminal history.

2

Fabregas attached his extensive criminal history to his motion.

3

On May 8, 1998, prior to DSHS issuing Fabregas’ foster-care license,

the King County Superior Court entered a permanency planning order

placing Monica with Fabregas.

TAMAS v. DSHS 20535

Sharon Loeffler, the foster home licensor on Fabregas’ second

license request, reviewed Kleinhen’s remarks and Fabregas’

1998 criminal charge, interviewed Fabregas, and recom-

mended approval to Drake. Drake signed the license on May

17, 1999.

From 1998 to 2005, Appellant Beverly Payne (Payne) was

the supervisor of the Department of Licensing Resources and

CPS. Payne reviewed and evaluated whether the referrals

received in a CPS unit were properly screened and sent out

for investigation. During Payne’s supervisory period, DSHS

received numerous referrals involving Fabregas.4

On December 1, 1999, DSHS received a referral (Referral

3) alleging that Fabregas left Monica alone with her alcoholic

mother, failed to regularly take Monica to school or her

speech therapy appointments, and failed to adequately feed

Monica; and that Monica had bruises on her feet. DSHS inter-

viewed Monica, Monica’s teacher and Fabregas, all of whom

either denied or negated the alleged complaints. DSHS con-

cluded that the allegations were unfounded.

By 2000, Fabregas had legally adopted Monica. In June of

that year, DSHS received a referral (Referral 4) alleging that

6-year-old Monica soiled her pants at school several times

and accused Fabregas of having drugs. DSHS concluded that

the “allegation did not meet the criteria for investigation” and

that there was “no allegation about Mr. Fabregas.”

On September 29, 2000, DSHS received a referral (Referral

5) regarding Monica. The referral also mentioned Ruth and

Estera, the daughters of Fabregas’ then girlfriend, Lydia. The

referral alleged that Monica was left alone until midnight and

4

A CPS referral addresses child abuse or neglect and investigations are

concluded as either founded, unfounded, or inconclusive. A licensing

referral addresses violations of regulations or policies and investigations

are concluded as valid or invalid.

20536 TAMAS v. DSHS

that Estera regularly left with Fabregas at approximately

10:00 p.m. dressed like a “hooker,” returning about 5:00 a.m.

DSHS closed the investigation after Monica, Ruth, and Estera

denied the allegations and law enforcement expressed no

interest in investigating.

DSHS received a March 5, 2001, referral (Referral 6)

reporting Fabregas “kissing and holding” Monica as if she

were a “girlfriend or lover.” DSHS concluded that “the allega-

tion did not meet the criteria for investigation” because there

was “no allegation about Mr. Fabregas.” Ten days later,

DSHS received a referral (Referral 7) that Monica said a

bruise on her face resulted from her dad biting her and school

staff observed Fabregas “all over [Monica] physically all the

time.” After Monica told DSHS that the bruise was from

wrestling and her dad liked “to hug and kiss everyone[,]”

DSHS determined that the allegations were unfounded.

Appellant Elaine Lipson (Lipson), was Ruth and Estera’s

social worker from June 14, 2001, to January 27, 2003. Dur-

ing this period, DSHS received six referrals (Referrals 8

through 13) alleging Fabregas’ abuse of Ruth and Estera. On

June 1, 2001, DSHS filed dependency petitions for Ruth and

Estera, who requested to be placed with Fabregas. Over the

objections of DSHS and Lydia,5 on July 31, 2001, the court

ordered that Ruth and Estera be placed with Fabregas on the

condition that he obtain a foster care license.

Fabregas applied for a third foster care license on July 23,

2001, and again failed to disclose his felony convictions.

While Fabregas’ license was pending, DSHS received a refer-

ral (Referral 8) that Ruth had bruising due to a fight with

Monica. DSHS rendered a finding of “not valid for discipline”

and “not valid for supervision” because Fabregas was not yet

licensed.

5

Lydia was facing criminal charges at the time.

TAMAS v. DSHS 20537

On October 15, 2001, Lipson filed a declaration with the

court to remove Ruth’s placement from Fabregas’ home after

Ruth expressed a desire to no longer reside with Fabregas.

Ruth changed her mind by the time of the hearing, however,

and the Snohomish County Superior Court ordered that both

Ruth and Estera remain with Fabregas, neither Ruth nor

Estera be moved absent allegations of abuse or an emergency,

and that a DSHS-approved comprehensive placement assess-

ment be completed.6

On December 27, 2001, Fabregas renewed his application

for a foster care license and again failed to disclose his felony

convictions. While Fabregas was still unlicensed, DSHS

received a referral (Referral 9) alleging that Fabregas pro-

vided Ruth and Estera with cigarettes and alcohol. Ruth,

Estera and Fabregas denied the allegations and accused the

referent of lying. Prior to the issuance of Fabregas’ third

license, Lydia7 filed a motion to remove the girls from Fabre-

gas’ care. However, Ruth and Estera both requested to stay

with Fabregas.

Appellant Kellie Walker (Walker), a DSHS foster home

licensor from October, 2001, to December, 2002, was in

charge of reviewing Fabregas’ third license application. She

interviewed Fabregas and “the girls”, spoke to the police, and

reviewed the October 8, 2001, and January 17, 2002, referrals.

On March 20, 2002, Appellant Walker issued Fabregas’ third

license.

On July 31, 2002, DSHS received a referral (Referral 10)

reporting that Fabregas pushed Estera against a wall causing

her to bang her head, and slapped Ruth in the face with his

shirt. DSHS concluded that the referral was unfounded

6

Ellis Amdur conducted the assessment and recommended that Fabregas

adopt both Ruth and Estera.

7

Lydia changed her name from “Lydia Tamas” to “Diana Smith.” For

consistency, this opinion uses “Lydia.”

20538 TAMAS v. DSHS

because Ruth and Estera denied the allegations. On August 4,

2002, DSHS received a referral (Referral 11) reporting that

Fabregas pinched Ruth and Estera’s sister’s breast, leaving a

bruise. DSHS closed the referral as “information only”. On

September 25, 2002, DSHS received a referral (Referral 12)

reporting that Fabregas encouraged Ruth and Estera to shop-

lift. DSHS closed the investigation because there was no alle-

gation as to Fabregas’ care. The following day, DSHS

received a similar referral (Referral 13) regarding Fabregas’

encouragement of the Tamas sisters’ shoplifting, his accep-

tance of their drinking and his verbal abuse of the girls. DSHS

interviewed Ruth, Estera, Ruth and Estera’s sister, and Fabre-

gas, all of whom denied the allegations. Thus, DSHS con-

cluded that the allegations were unfounded.

James Kairoff (Kairoff) was Ruth and Estera’s social

worker from January, 2003, to July, 2003, and from May,

2004, to August, 2004. On August 12, 2003, DSHS granted

Fabregas his fourth foster home license. On October 9, 2003,

DSHS received a referral (Referral 14) that Monica’s 12-year-

old female neighbor kissed her and requested sex. On Novem-

ber 5, 2003, DSHS received a referral (Referral 15) that Mon-

ica stated she was tired because “she sleeps with her dad and

he bumps into her in bed.” DSHS concluded that the referrals

did not allege abuse or neglect.

DSHS received a referral (Referral 16) on December 16,

2003. The referent described possessing a pornographic pic-

ture of Monica giving Fabregas a “blow job.” DSHS dis-

missed the allegations as unfounded because the picture was

of Monica’s mother rather than Monica. In addition, Monica,

Ruth, Estera and Fabregas all denied inappropriate touching.

DSHS, however, forwarded the referral to the King County

Sheriff’s Office, which also concluded that the allegations

were unfounded.

Appellant Marschell Baker (Baker) became a supervisor of

the Department of Licensing Resources and CPS in 2004. On

TAMAS v. DSHS 20539

April 7, 2004, DSHS received a referral (Referral 17) that

Monica had bruising and gave conflicting stories on the origin

of the bruises. DSHS concluded that the allegations were

unfounded after Monica, Ruth, Estera and Fabregas all denied

abuse and Dr. Kenneth Feldman was unable to conclude that

the bruises resulted from abuse.

On May 6, 2004, Ruth requested to be removed from

Fabregas’ care. DSHS placed Ruth in the foster care of Mary

Jean Smith (Smith). DSHS received a May 12, 2004, referral

(Referral 18) reporting that Fabregas punished Ruth by yell-

ing at her for up to two hours, grounding her, making her

stand for hours, and requiring her to write passages up to

2,000 times. On May 17, 2004, DSHS received a referral

(Referral 19) that Ruth found a pornographic video of Estera

giving Fabregas a “blow job” and Fabregas inserting his fin-

gers into Estera’s vagina. Ruth allegedly copied the video and

later destroyed it due to her fear of Fabregas and because of

Fabregas’ claim to having “mob connections.” The referral

also noted that Monica was “very sexualize[d]” and “makes

out with [Ruth and Estera’s sister’s] face.”

Baker forwarded the May 12th and May 17th referrals

(Referrals 18 and 19) to the Kirkland Police Department and

interviewed Monica, Ruth, Estera, Fabregas, Detective Jack

Kessee, Ruth and Estera’s sister, and Smith. Estera and Fabre-

gas both stated that Ruth had a history of lying. Monica

denied the allegations. Detective Kessee had investigated the

case and concluded that there was no proof of a crime. How-

ever, Ruth and Estera’s sister believed Ruth. DSHS again

concluded that the sexual and physical abuse allegations were

unfounded due to lack of conclusive evidence.

On May 20, 2004, DSHS received a referral (Referral 20)

stating that Monica was “filthy from head to toe” and that

Fabregas was “very shaky.” DSHS concluded the referral was

invalid. On May 26, 2004, DSHS received a referral (Referral

21) stating that Fabregas told Ruth she could not call his

20540 TAMAS v. DSHS

home to talk to Estera. DSHS terminated the referral with an

“inconclusive” determination.

Smith wrote DSHS a letter on May 31, 2004, detailing

Ruth’s statements to her regarding Fabregas’ abuse of the

girls. Throughout June and July 2004, Smith wrote letters to

DSHS, Payne, Kairoff, and Baker complaining that “some-

thing needs to be done.” Kairoff interviewed Estera, who

denied Ruth’s allegations.

On June 15, 2004, DSHS received a referral (Referral 22)

alleging that in the prior year Fabregas beat Ruth in his car.

DSHS concluded that the referral was not valid for discipline.

On July 29, 2004, DSHS received three referrals (Referrals

23, 24, 25) alleging that Fabregas was preventing contact

between Ruth and Estera and that Estera admitted the sexual

abuse had occurred. In response, on July 30, 2004, the Kirk-

land police removed Estera and Monica from Fabregas’

home. At the same time, DSHS concluded that the sexual

abuse allegations were inconclusive.

On August 3, 2004, DSHS received a referral (Referral 26)

reflecting that Estera admitted she and Fabregas were ingest-

ing cocaine when the police removed her from Fabregas’

home. Baker interviewed Estera the following day and Estera

confirmed Ruth’s allegations. Baker nevertheless concluded

that the sexual abuse allegations were inconclusive because

Fabregas’ denials of abuse were believable and the Tamas

girls had a history of recantations. Monica was returned to

Fabregas’ care.

DSHS did not renew Fabregas’ foster license in October,

2004, because Fabregas refused to complete a sexual devi-

ancy evaluation. On November 15, 2004, DSHS received a

letter from Estera recanting her sexual abuse allegations and

accusing Smith of bribing her with an offer to pay for braces

if Estera said Fabregas gave her cocaine and raped her. On

TAMAS v. DSHS 20541

August 12, 2005, the King County Prosecutor’s Office

declined prosecution.

On February 2, 2006, DSHS received a referral (Referral

27) alleging that Monica and Fabregas had matching rashes

on their genitalia, that Monica had a bladder problem and

anxiety attacks, and that Fabregas provided Ecstasy to Mon-

ica. Two weeks later, the Redmond Police Department

obtained a search warrant to search Fabregas’ home. Monica

was escorted to CPS, Fabregas was arrested, and hundreds of

pornographic photographs, movie clips, lingerie items, and

dress-up props were seized.

On April 27, 2007, Monica, Ruth, and Estera, filed their

complaint against Appellants asserting claims under 42

U.S.C. § 1983. Appellees specifically alleged that Appellants

deprived them of their constitutional rights by “choo[sing] to

license Fabregas to care for children in his home” and by not

“acting appropriately to protect [Appellees].” After the case

was removed to federal court, the district court denied Appel-

lants’ summary judgment motion predicated on their immu-

nity from suit. Appellants filed a timely notice of appeal.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment

de novo and construe all the evidence in the light most favor-

able to the non-moving party. See Kraus v. Presidio Trust

Facilities Division/Residential Management Branch, 572 F.3d

1039, 1042 (9th Cir. 2009). Whether an Appellant is entitled

to absolute immunity or qualified immunity is also reviewed

de novo. Tennison v. City & County of San Francisco, 570

F.3d 1078, 1087 (9th Cir. 2009).

III. DISCUSSION

A. Absolute Immunity

[1] “Absolute immunity is generally accorded to judges

and prosecutors functioning in their official capacities.” Olsen

20542 TAMAS v. DSHS

v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.

2004). “[I]n determining absolute immunity, we examine the

nature of the function performed, not the identity of the actor

who performed it.” Tennison, 570 F.3d at 1092 (citation,

alteration and internal quotation marks omitted). Absolute

immunity is extended to state officials, such as social work-

ers, when they are performing quasi-prosecutorial and quasi-

judicial functions. See Caldwell v. LeFaver, 928 F.2d 331,

333 (9th Cir. 1991) (naming advocacy to the decisionmaker

and execution of a court order as examples). However, social

workers are not afforded absolute immunity for their investi-

gatory conduct, discretionary decisions or recommendations.

See Beltran v. Santa Clara County, 514 F.3d 906, 908-09 (9th

Cir. 2008); see also Miller v. Gammie, 335 F.3d 889, 898 (9th

Cir. 2003) (citing as examples decisions and recommenda-

tions regarding a particular foster home or foster parents).

[2] The Appellants assert that they are entitled to absolute

immunity because their placement of the three girls with

Fabregas was pursuant to court order. However, Appellants’

decisions to license Fabregas and to retain Monica, Ruth and

Estera in Fabregas’ care were not quasi-prosecutorial or

quasi-judicial in nature. Appellants placed Monica, Ruth and

Estera in Fabregas’ care pursuant to court orders conditioned

upon Appellants’ licensing Fabregas as a foster parent. A

court order further provided that Ruth and Estera could be

removed from Fabregas’ care if allegations of abuse or emer-

gency existed. Therefore, in deciding to license Fabregas and

not remove Monica, Ruth and Estera from Fabregas’ home

Appellants performed the traditional investigation and place-

ment responsibilities assumed by social agencies. See Miller,

335 F.3d at 898. We therefore conclude that the Appellants

were not entitled to absolute immunity. See Beltran, 514 F.3d

at 908-09 (concluding that absolute immunity does not apply

to social workers’ “investigatory conduct”).

B. Qualified Immunity

[3] The determination of whether qualified immunity

shields the Appellants from liability presents a closer and

TAMAS v. DSHS 20543

more difficult question. In determining whether officials are

entitled to qualified immunity, we inquire: (1) whether the

facts, taken in the light most favorable to the party asserting

the injury, show that the officer’s conduct violated a constitu-

tional right and (2) if so, whether the right was clearly estab-

lished, such that a reasonable official would understand that

his conduct violated that right. See Conn v. City of Reno, 572

F.3d 1047, 1061 (9th Cir. 2009). We may apply the two-step

analysis in any sequence we deem appropriate. See id.

1. Constitutional Right

[4] The Fourteenth Amendment substantive due process

clause protects a foster child’s liberty interest in social worker

supervision and protection from harm inflicted by a foster

parent. See Carlo v. City of Chino, 105 F.3d 493, 501 (9th Cir.

1997); see also Campbell v. Burt, 141 F.3d 927, 931 n.2 (9th

Cir. 1998). “Once the state assumes wardship of a child, the

state owes the child, as part of that person’s protected liberty

interest, reasonable safety and minimally adequate care . . .”

Lipscomb v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992)

(citations omitted). Accordingly, Monica, Ruth and Estera

held protected liberty interests in being shielded from harm

inflicted by a foster parent and enjoyed a special relationship

with the state once their dependency petitions were granted.

See Lipscomb, 962 F.2d at 1379; see also Carlo, 105 F.3d at

501. Understandably, the law does not impose the duty of

guarding their own safety on wards of the state. Rather, that

duty is the quintessential responsibility of the social workers

assigned to safeguard the well-being of this helpless and vul-

nerable population. Appellants argue that they did not inter-

fere with Appellees’ liberty interests because the girls were

free to leave Fabregas’ care upon request.8 However, Appel-

8

Appellees maintain that Appellants’ failure to follow state law regard-

ing reporting child abuse allegations to law enforcement supports their

claims under § 1983. However, to state a claim under § 1983, a plaintiff

must “allege the deprivation of a right secured by the federal Constitution

or statutory law . . .” Lone Star Sec. & Video, Inc. v. City of Los Angeles,

572 F.3d 685, 692 (9th Cir. 2009) (emphasis added). Therefore, the

alleged violations of state law are not relevant to our analysis. See id.

20544 TAMAS v. DSHS

lants cannot escape liability by shifting the onus onto the

wards to request removal. In addition, years of abuse ham-

pered Appellees in their ability to ensure their own safety. See

Carlo, 105 F.3d at 501. For example, Estera believed that “ev-

erything that [she] went through [was] normal.”

a. Fabregas’ Adoption of Monica

[5] A state official’s duty to provide adequate care to a fos-

ter child generally terminates once the foster child is officially

adopted. See Griffith v. Johnston, 899 F.2d 1427, 1440 (5th

Cir. 1990).9 This principle is consistent with the concept that

the state functions as the de facto parent of a child in foster

care. See Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791,

795 (11th Cir. 1987) (en banc) (“The state’s action in assum-

ing the responsibility of finding and keeping the [foster] child

in a safe environment placed an obligation on the state to

insure the continuing safety of that environment.”). Once the

foster child is adopted, the adoptive parent assumes the role

of caregiver previously occupied by the state. It becomes the

adoptive parent’s responsibility to provide for the well-being

of the adopted child, see Griffith, 899 F.2d at 1440, with no

further need for the state to oversee the welfare of the former

foster child.

[6] However, state actors may nevertheless incur liability

under § 1983 if state officials affirmatively created a danger

that the adopted child would not have otherwise faced. See

L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). In Grubbs,

we held that the danger creation exception applied where state

correctional officers knowingly created an opportunity for a

convicted sex offender to assault the custodial institution’s

nurse. See id. The officers in Grubbs “affirmatively created

the dangerous situation,” id. at 122, because they assigned the

sex offender to work with the nurse despite knowing: (1) that

9

There does not appear to be authority from the United States Supreme

Court or our circuit specifically addressing this point.

TAMAS v. DSHS 20545

the sex offender “had an extraordinary history of unrepentant

violence against women and girls;” (2) that the sex offender

would “likely assault a female if left alone with her;” (3) that

the nurse “would be alone with [the sex offender]”; and (4)

that the nurse “would not be prepared to defend [herself]”

because she was not “informed . . . that she would be left

alone with violent offenders.” Id. at 121. Similarly, prior to

Fabregas’ adoption of Monica, various Appellants affirma-

tively created the particular danger that exposed Monica to

harm. Despite referrals reporting Fabregas’ physical and sex-

ual abuse, Kleinhein, Loeffler and Drake approved Fabregas’

foster-care licenses, paving the way for Fabregas to continue

abusing Monica after her adoption. The state’s approval of

Monica’s foster care and adoption by Fabregas created a dan-

ger of molestation that Monica would not have faced had the

state adequately protected her as a result of the referrals.

[7] Appellants cite DeShaney v. Winnebago County Dep’t

of Social Services, 489 U.S. 189, 192 (1989) in support of

their argument for immunity. In DeShaney, the state briefly

took custody of a child from his birth father to investigate

alleged abuse. See id. The Court concluded that “the State had

no constitutional duty to protect [the child] against his father’s

violence” because “the State does not become the permanent

guarantor of an individual’s safety by having once offered

him shelter.” Id. at 201, 202. By contrast, Monica, as a foster

child, was in the custody of the state for three years prior to

her adoption. Unlike the facts in DeShaney, where the victim

was “in no worse a position than that in which he would have

been had [the state] not acted at all,” DeShaney, 489 U.S. at

201, Monica was placed in a worse situation by the actions

and inactions of the various Appellants. Therefore, we con-

clude that Monica’s liberty interest continued after her adop-

tion under the danger-creation exception to the general rule

that state actors are not liable for failure to protect members

of the public.

20546 TAMAS v. DSHS

b. Violation of Liberty Interest

[8] To violate due process, state officials must act with

such deliberate indifference to the liberty interest that their

actions “shock the conscience.” Brittain v. Hansen, 451 F.3d

982, 991 (9th Cir. 2006) (citation omitted). Conduct that

“shocks the conscience” is “deliberate indifference to a

known or so obvious as to imply knowledge of, danger.”10

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1064 (9th Cir.

2006) (citation and internal quotation marks omitted).

c. Objective and Subjective Inquiry

Appellants contend that “[a] substantive due process claim

for deliberate indifference in a foster home placement requires

examination of both objective and subjective components”

and that neither component is met in this case.

[9] This court has only addressed the application of the

deliberate indifference standard with respect to foster children

in one case. See Gibson v. Merced County Department of

Human Resources, 799 F.2d 582, 589-90 (9th Cir. 1986). In

Gibson, we held that state officials were not deliberately

indifferent to a foster child’s liberty interest when they

removed the child from uncooperative foster parents who

were attempting to prevent the child’s reunification with her

natural mother. See id. Although we did not discuss the delib-

erate indifference standard in Gibson, we have addressed that

standard at length in resolving cases involving prisoners alleg-

ing deliberate indifference. In the prisoner cases we have held

that deliberate indifference “requires an objective risk of harm

and a subjective awareness of that harm.” Conn v. City of

Reno, 591 F.3d 1081, 1095 (9th Cir. 2010), as amended (cita-

10

Citing Hearns v. Terhune, 413 F.3d 1036 (9th Cir. 2005), Appellees

argue that deliberate indifference includes gross negligence. However, in

Kennedy, we explicitly held that the deliberate indifference standard is

“not gross negligence.” Kennedy, 439 F.3d at 1064.

TAMAS v. DSHS 20547

tion and emphasis omitted); see also, Simmons v. Navajo

County, No. 08-15522, 2010 WL 2509181, at *4 (9th Cir.

June 23, 2010) (concluding that “[a] prison official cannot be

liable for deliberate indifference unless he or she knows of

and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference”) (citation and internal

quotation marks omitted); Clouthier v. County of Contra

Costa, 591 F.3d 1232, 1242 (9th Cir. 2010) (recognizing that

the objective component requires a showing of “a substantial

risk of serious harm” and the subjective component requires

a showing that the official was “aware of facts from which the

inference could be drawn that a substantial risk of serious

harm exist[ed], and he . . . also dr[e]w the inference”). These

cases inform our analysis and our review of precedent from

our sister circuits.

In the specific context of cases involving foster care, the

Fifth, Sixth, and Eighth Circuits have held that deliberate

indifference is established if an “official [was] both aware of

facts from which the inference could be drawn that a substan-

tial risk of serious harm exist[ed] and [the official] . . . also

dr[e]w the inference.” Hernandez ex rel. Hernandez v. Texas

Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 881

(5th Cir. 2004) (citation omitted); Arledge v. Franklin County,

Ohio, 509 F.3d 258, 261, 263 (6th Cir. 2007) (same); James

ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006)

(same). This analysis is identical to the subjective deliberate

indifference component that we have articulated in prisoner

cases and includes by implication the objective component

requiring the existence of a substantial risk of serious harm.

The Second, Third, Fourth, Seventh, Tenth, and Eleventh

Circuits have each phrased the deliberate indifference test

along the same lines. See Doe v. New York City Dep’t of

Social Services, 649 F.2d 134, 145 (2d Cir. 1981) (explaining

that deliberate indifference “cannot exist absent some knowl-

20548 TAMAS v. DSHS

edge triggering an affirmative duty to act . . .”); Nicini v.

Morra, 212 F.3d 798, 811-12 (3d Cir. 2000) (defining deliber-

ate indifference as “conduct [that] shocks the conscience”

while assuming that the “should have known” standard

applies); White by White v. Chambliss, 112 F.3d 731, 737 (4th

Cir. 1997) (including a requirement that state officials “were

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

danger notwithstanding the notice”); J.H. ex rel. Higgin v.

Johnson, 346 F.3d 788, 792 (7th Cir. 2003) (requiring subjec-

tive actual knowledge or suspicion of the risk); Roska ex rel.

Roska v. Peterson, 328 F.3d 1230, 1246 (10th Cir. 2003)

(holding that state actors may be liable for placing children in

a foster home “they know or suspect to be dangerous to the

children . . .) (citation omitted); H.A.L. ex rel. Lewis v. Foltz,

551 F.3d 1227, 1231-32 (11th Cir. 2008) (assigning liability

if the official was “deliberately indifferent to a known and

substantial risk to the child of serious harm”).

[10] We are persuaded by our precedent and cases from

other circuits analyzing the issue, that the deliberate indiffer-

ence standard, as applied to foster children, requires a show-

ing of an objectively substantial risk of harm and a showing

that the officials were subjectively aware of facts from which

an inference could be drawn that a substantial risk of serious

harm existed and that either the official actually drew that

inference or that a reasonable official would have been com-

pelled to draw that inference. See Clouthier, 591 F.3d at 1242;

see also Conn, 591 F.3d at 1095-96; Arledge, 509 F.3d at 263;

James, 458 F.3d at 730; Hernandez, 380 F.3d at 881. We also

conclude that the subjective component may be inferred

“from the fact that the risk of harm is obvious.” Hernandez,

380 F.3d at 881 (citation and emphasis omitted); Arledge, 509

F.3d at 263.

[11] The district court ruled that the Appellants were delib-

erately indifferent because they “were aware of facts that

would have led reasonable people in their position to know or

suspect that Fabregas was abusing [Appellees].” However, the

TAMAS v. DSHS 20549

district court did not analyze whether there was an objectively

substantial risk of serious harm and whether Appellants actu-

ally drew the inference that a substantial risk of serious harm

to Appellees existed or that a reasonable official would have

been compelled to draw that inference. Failure to apply the

correct standard constituted reversible error. See Ellis v. City

of San Diego, 176 F.3d 1183, 1186 (9th Cir. 1999), as

amended.

2. Clearly Established Right

[12] The second prong required to defeat qualified immu-

nity is a showing that the Appellees’ constitutional rights

were clearly established. See Conn, 572 F.3d at 1062. “The

relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he con-

fronted.” Id. at 1062. This inquiry is “wholly objective.” Brit-

tain, 451 F.3d at 988.

[13] Appellants contend that the law was not clearly estab-

lished that foster children had a federal constitutional right to

state protection, citing Doe v. South Carolina Department of

Social Services, 597 F.3d 163, 176 (4th Cir. 2010). The

Fourth Circuit in Doe held that its precedent did not clearly

establish such a right because its prior cases did not involve

foster children within the custody and control of the state

when the state made foster care placement decisions. See Doe,

597 F.3d at 173-77. However, unlike the Fourth Circuit, we

previously held in 1992 that “[o]nce the state assumes ward-

ship of a child, the state owes the child, as part of that per-

son’s protected liberty interest, reasonable safety and

minimally adequate care and treatment appropriate to the age

and circumstances of the child.” Lipscomb, 962 F.2d at 1379.

[14] We may also look to the law of other circuits to deter-

mine if a principle is clearly established. See Prison Legal

News v. Lehman, 397 F.3d 692, 701-02 (9th Cir. 2005). As

20550 TAMAS v. DSHS

early as 1981, the Second Circuit recognized that a state

agency could be liable for deliberate indifference to a foster

child’s right to adequate supervision. See Doe v. New York

City Department of Social Services, 649 F.2d 134, 141-42 (2d

Cir. 1981). Subsequently, in 1987, the Eleventh Circuit held

that “a child involuntarily placed in a foster home is in a situa-

tion so analogous to a prisoner in a penal institution and a

child confined in a mental health facility that the foster child

may bring a section 1983 action for violation of fourteenth

amendment rights.” Taylor ex rel. Walker, 818 F.2d at 797. In

1990, the Sixth Circuit held that “due process extends the

right to be free from the infliction of unnecessary harm to

children in state-regulated foster homes.” Meador v. Cabinet

for Human Resources, 902 F.2d 474, 476 (6th Cir. 1990). In

the same year, the Seventh Circuit also concluded that foster

children’s right to state protection was clearly established

because “Youngberg made the basic duty of the state to chil-

dren in state custody clear . . .” K.H. ex rel. Murphy v. Mor-

gan, 914 F.2d 846, 852 (7th Cir. 1990). In 1992, the Tenth

Circuit concluded that foster children have a “clearly estab-

lished right to protection while in foster care.” Yvonne L. ex

rel. Lewis v. N.M. Dep’t of Human Servs., 959 F.2d 883, 892-

93 (10th Cir. 1992). One year later, the Eighth Circuit held

that “it was clearly established in 1991 that the state had an

obligation to provide adequate medical care, protection and

supervision [to foster children].” Norfleet ex rel. Norfleet v.

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

1993). In 2000, the Third Circuit held that “when the 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. The failure to per-

form such duties can give rise, under sufficiently culpable cir-

cumstances, to liability under section 1983.” Nicini v. Morra,

212 F.3d 798, 808 (3d Cir. 2000) (en banc).

[15] Based on these cases, we conclude that it was clearly

established in 1996 that Appellees had a protected liberty

TAMAS v. DSHS 20551

interest in safe foster care placement once they became wards

of the state.

3. Individual Appellants

[16] Because the district court analyzed whether the

Appellants were deliberately indifferent under an erroneous

standard, we remand for the district court to analyze each

Appellant’s prospective liability individually, utilizing the

proper standard. The Appellants’ potential liability varies,

depending on whether each Appellant was aware of facts

from which an inference could be drawn that a substantial risk

of serious harm to Appellees existed, and upon whether each

Appellant actually drew that inference.

At a minimum, the court should consider the following

facts:

Kneser was aware of three graphic allegations regarding

Fabregas — Fabregas’ abuse of Monica’s mother and drugs

(Referral 1), Fabregas’ “french kiss[ing]” of Monica, and

Monica’s report of telling “Papa to stop” while pointing at her

bottom (Referral 2). Kleinhen, Loeffler, and Drake approved

Fabregas’s foster home licenses, despite their awareness of

the two referrals and of a complaint regarding Fabregas’

physical abuse of Monica’s mother, drug abuse, and sexual

abuse of Monica. Likewise, Walker approved Fabregas’ third

license despite knowledge of the escalating referrals alleging

Fabregas’ abuse of all three girls. Over the course of six

years, Payne reviewed and evaluated nine CPS referrals

regarding Fabregas’ physical and sexual abuse of Monica,

Ruth and Estera. During Lipson’s employ at DSHS, DSHS

received Referrals 8 through 13 and Lipson had the authority

to recommend Ruth and Estera’s removal pursuant to court

order, but failed to do so. During Kairoff’s tenure, DSHS

received a referral that Monica and Fabregas were actually

sleeping together and she was tired because Fabregas “bum-

p[ed] into her in bed.” Finally, in 2004, Baker received per-

20552 TAMAS v. DSHS

haps the most serious CPS referrals, including a pornographic

video involving Fabregas and Estera, and Estera’s admission

that the sexual allegations were true and that she used cocaine

with Fabregas.

We express no view as to the outcome of the individualized

qualified immunity inquiries to be conducted on remand.

IV. CONCLUSION

We vacate the district court’s decision and remand this case

to the district court to apply the correct deliberate indifference

standard to analysis of the prospective liability of each Appel-

lant.

VACATED AND REMANDED.