White Ex Rel. White v. Chambliss

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEENA WHITE, by her Personal

Representative Cindy White; CINDY

WHITE, individually, and Cindy

White as Guardian Ad Litem for

Deidre Jones, Clifford White, Jr.,

Patric White, Daniel White and

Darren White,

Plaintiffs-Appellees,

v.

RUBY CHAMBLISS,

Defendant-Appellant,

No. 95-3025

and

TINA WERTS; TANGA GILCHRIST;

CLARENCE GRAHAM; CASSIE WILSON;

MARIE DUNNAM; RAMONA FOLEY;

BARRY DOWD; WILBERT LEWIS; JAMES

C. SOLOMON, JR.; JOANNE SCHAEKEL;

ANTHONY BONNER; GLADYS BONNER;

TONY BONNER; AIKEN COUNTY

DEPARTMENT OF SOCIAL SERVICES

(ACDSS); DESIREE COUNCIL,

Defendants.

KEENA WHITE, by her Personal

Representative Cindy White; CINDY

WHITE, individually, and Cindy

White as Guardian Ad Litem for

Deidre Jones, Clifford White, Jr.,

Patric White, Daniel White and

Darren White,

Plaintiffs-Appellees,

v.

TINA WERTS; TANGA GILCHRIST;

CLARENCE GRAHAM; MARIE DUNNAM;

RAMONA FOLEY; BARRY DOWD;

No. 95-3078

WILBERT LEWIS; JAMES C. SOLOMON,

JR.; JOANNE SCHAEKEL; DESIREE

COUNCIL,

Defendants-Appellants,

and

CASSIE WILSON; ANTHONY BONNER;

GLADYS BONNER; TONY BONNER;

AIKEN COUNTY DEPARTMENT OF

SOCIAL SERVICES (ACDSS); RUBY

CHAMBLISS,

Defendants.

2

KEENA WHITE, by her Personal

Representative Cindy White; CINDY

WHITE, individually, and Cindy

White as Guardian Ad Litem for

Deidre Jones, Clifford White, Jr.,

Patric White, Daniel White and

Darren White,

Plaintiffs-Appellees,

v.

CASSIE WILSON,

Defendant-Appellant,

No. 95-3088

and

TINA WERTS; TANGA GILCHRIST;

CLARENCE GRAHAM; MARIE DUNNAM;

RAMONA FOLEY; BARRY DOWD;

WILBERT LEWIS; JAMES C. SOLOMON,

JR.; JOANNE SCHAEKEL; ANTHONY

BONNER; GLADYS BONNER; TONY

BONNER; AIKEN COUNTY DEPARTMENT

OF SOCIAL SERVICES (ACDSS);

DESIREE COUNCIL; RUBY CHAMBLISS,

Defendants.

Appeals from the United States District Court

for the District of South Carolina, at Aiken.

Charles E. Simons, Jr., Senior District Judge.

(CA-93-3058-1-6)

Argued: March 6, 1997

Decided: April 30, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge,

and BLACK, Senior United States District Judge for the

District of Maryland, sitting by designation.

_________________________________________________________________

3

Reversed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Luttig and Senior Judge Black joined.

_________________________________________________________________

COUNSEL

ARGUED: Elizabeth Herlong Campbell, NEXSEN, PRUET,

JACOBS & POLLARD, L.L.P., Columbia, South Carolina, for

Appellants. Sara M. Walker, Columbia, South Carolina, for Appel-

lees. ON BRIEF: Susan P. McWilliams, NEXSEN, PRUET,

JACOBS & POLLARD, L.L.P., Columbia, South Carolina; Charles

E. Carpenter, Jr., RICHARDSON, PLOWDEN, CARPENTER &

ROBINSON, P.A., Columbia, South Carolina; Douglas McKay, Jr.,

Ruskin C. Foster, MCKAY, MCKAY, HENRY & FOSTER, P.A.,

Columbia, South Carolina; William L. Pope, Roy F. Laney, POPE &

ROGERS, Columbia, South Carolina, for Appellants.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Cindy White brought suit under 42 U.S.C. § 1983 against several

officials of the South Carolina Department of Social Services ("the

DSS defendants"). White claims the DSS defendants violated her sub-

stantive and procedural due process rights by removing her children

from her custody and violated her daughter Keena's rights by placing

Keena in a home where she died from abuse at the hands of her foster

parents. The district court denied the DSS defendants' motion for

summary judgment, and those defendants now appeal.

Keena's death was a tragic event. It did not, however, result from

the DSS defendants' violation of any "clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Accord-

ingly, we find that the DSS defendants were entitled to qualified

immunity and reverse the judgment of the district court.

4

I.

Late on the night of November 20, 1991, Cindy White brought her

eighteen-month-old son, Daniel, to the emergency room of the Uni-

versity Hospital in Augusta, Georgia with a broken arm. The treating

physician, Dr. Shearer, determined that Daniel had sustained a spiral

fracture to his arm. A spiral fracture is caused by a powerful twisting

force and is a strong indicator of child abuse. Because White was a

South Carolina resident, the hospital staff contacted the Aiken County

DSS office to report a suspected case of abuse.

When Tanga Gilchrist, the DSS employee on call, arrived at the

hospital, she questioned White about Daniel's injury. White claimed

she was not in Daniel's bedroom when he broke his arm, but specu-

lated he might have fallen out of his crib and caught his arm in its

slats. Dr. Shearer and an orthopedist, Dr. Hankerson, both found

White's explanation to be "very unlikely," and Dr. Shearer stated that

"the child needed to be in custody."

On November 22, Gilchrist visited the White residence to investi-

gate Daniel's bed and see for herself whether Daniel's injury might

have occurred as the result of a fall. She found that the slats of the

bed were far enough apart that her arm, which was larger than Dan-

iel's, did not get caught between them. She further noted that Daniel's

bed was less than one foot from the floor. This investigation, in com-

bination with the two doctors' opinions, convinced Gilchrist that

White's explanation of Daniel's broken arm was implausible. Gil-

christ and her supervisor, Ruby Chambliss, determined that an ex

parte petition for custody of White's children should be submitted to

the Family Court for Aiken County.

On November 26, 1991, DSS filed a petition for emergency protec-

tive custody and a petition for removal in Aiken County Family

Court. The judge signed an ex parte order granting emergency protec-

tive custody on November 26, which DSS received on December 3.

On the day the order was received, Gilchrist and another case worker

accompanied sheriff's office personnel to White's trailer and took

custody of Daniel and the five other White children.

At a hearing the following day, which White attended, the judge

determined that there was probable cause for the minor children to be

5

taken into emergency custody. The judge further concluded that in

light of the evidence of abuse to Daniel, the children should remain

with DSS pending a merits hearing. DSS placed the White children

in various foster homes, with eleven-month-old Keena White going

to the home of Anthony and Gladys Bonner.

In the weeks between the December 4 emergency protective cus-

tody hearing and the scheduled merits hearing, White was allowed

supervised visitation with her children. During these visits, White

alleges that she noticed scratches and bruises on her children, includ-

ing Keena. She wrote a letter to Senator Strom Thurmond expressing

her concerns. On December 20, Senator Thurmond wrote a letter to

DSS on White's behalf. Cassie Wilson, one of the caseworkers on the

White case, testified that White had told her that the children rou-

tinely sustained minor injuries due to playing or fighting with one

another. Furthermore, Tina Werts, another caseworker, testified that

she had taken Keena to the doctor with a cold on January 3, and that

Keena had appeared to be in good condition on that date. DSS thus

concluded that any alleged injuries were the "results of natural child

play."

On January 18, 1992, approximately six weeks after she had been

placed with the Bonners, Keena died from blows to the head while in

the Bonners' care. A forensic pathologist determined that Keena's

death was "best classified as homicide," but law enforcement officials

were unable to determine who had struck Keena, so no criminal

charges were filed. DSS removed all foster children from the Bon-

ners' home and placed no other children with the Bonners after

Keena's death. After an investigation, the DSS revoked the Bonners'

license due to abuse and neglect.

At the merits hearing on January 24, 1992, DSS and White submit-

ted a settlement agreement in which White agreed to acknowledge

that Daniel White had been abused by an "unknown" perpetrator. DSS

returned legal and physical custody of the children to White on the

condition that she receive a psychological evaluation, including

observation of the family unit, at the expense of DSS.

On November 18, 1993, White brought this lawsuit as personal

representative of the estate of Keena for Keena's wrongful death, pain

6

and suffering, and violations of Keena's due process rights. She also

sued as guardian ad litem for her five children and on her own behalf

claiming DSS violated both her and her children's due process rights.

Ruby Chambliss, Tanga Gilchrist, Cassie Wilson, Tina Werts, and

various other DSS officials were named as defendants in the suit

along with the Bonners.

After extensive discovery, the DSS defendants filed motions for

summary judgment based on qualified immunity which were denied

by the district court. The DSS defendants then filed the instant appeal.

II.

Under the doctrine of qualified immunity, "government officials

performing discretionary functions generally are shielded from liabil-

ity for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). White alleges constitutional violations in three phases of

DSS's actions. First, she maintains that the DSS defendants violated

her family's constitutional rights in the initial decision to remove her

children. Second, she contends that Keena's due process rights were

violated when she was placed with the Bonners. Lastly, she contends

that the DSS defendants did not adequately protect Keena's safety

after she was placed in the Bonners' care. We shall review these con-

tentions in turn.1

A.

White first asserts that DSS unlawfully seized her children and that

the illegal seizure violated her right to custody. This is no idle claim.

_________________________________________________________________

1 The appeal of the district court's denial of qualified immunity is prop-

erly before this court on interlocutory review. Mitchell v. Forsyth, 472

U.S. 511 (1985). In this case, the district court failed to make any find-

ings or undertake any analysis in support of its denial of qualified immu-

nity. As a result, we must engage in an independent examination of the

record, viewed in the light most favorable to the nonmoving party.

Johnson v. Jones, 115 S.Ct. 2151, 2159 (1995); Winfield v. Bass, 106

F.2d 525, 533 (4th Cir. 1997) (en banc).

7

As we have recognized, "[t]here are few rights more fundamental in

and to our society than those of parents to retain custody over and

care for their children, and to rear their children as they deem appro-

priate." Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 342 (4th Cir.

1994). These rights, however, are not absolute. The parent's right to

custody is subject to the child's interest in his personal health and

safety and the state's interest as parens patriae in protecting that

interest. Id. at 346; see also Renn v. Garrison, 100 F.3d 344, 349 (4th

Cir. 1996).

The DSS defendants removed the White children under the author-

ity of law which this court has adjudged constitutional. South Caro-

lina law limits the state's authority to assume emergency protective

custody over children to those circumstances where"there is probable

cause to believe that by reason of abuse or neglect there exists an

imminent danger to the child's life or physical safety." S.C. Code

§ 20-7-610(F)(2); see also S.C. Code§ 20-7-610 (A)(1). Recently we

upheld the constitutionality of a Virginia statute which similarly con-

strained the state's power to take emergency custody of children, not-

ing that "[w]hile there is always a risk of error when an emergency

removal of a child from his parents' custody is required, the Com-

monwealth has substantially reduced that risk at the threshold by the

imposition of significant substantive limitations upon the removal

authorization." Jordan, 15 F.3d at 346.

Moreover, substantial evidence supported the DSS defendants'

decision to pursue an order for the removal of the White children. Gil-

christ sought the opinions of two medical professionals who told her

that the spiral fracture Daniel had suffered was strong evidence of

child abuse. Gilchrist also consulted with White and listened to her

explanation of Daniel's injury. Gilchrist was entitled to rely on the

professional judgments of the two physicians that White's explanation

of Daniel's injury was "highly unlikely." See Youngberg v. Romeo,

457 U.S. 307, 324-25 (1982); Hogan v. Carter, 85 F.3d 1113, 1117

(4th Cir. 1996) (en banc). Moreover, Gilchrist's examination of Dan-

iel's crib further demonstrated that White's explanation of Daniel's

injury was implausible. Gilchrist thus came to the reasonable conclu-

sion that there was a significant probability of child abuse within the

White household. And, as we held in Weller v. Dep't of Social Servs.

for Baltimore, 901 F.2d 387, 391 (4th Cir. 1990), removal of a child

8

in an emergency action is constitutional when there is "some evidence

of child abuse."

White also contends that she and her children were denied proce-

dural due process. We disagree. The Fourteenth Amendment interest

that White possesses runs to court proceedings provided under state

law and not to the discretionary discharge by DSS of its duties.

Weller, 901 F.2d at 392. As to those court procedures, we have noted

that "the requirements of process may be delayed where emergency

action is necessary to avert imminent harm to a child." Jordan, 15

F.3d at 343; Weller, 901 F.2d at 393. In this case, DSS sought a judi-

cially approved ex parte order before removing the White children.

Furthermore, a full hearing was held within twenty-four hours of the

removal. DSS therefore fully complied with this circuit's directive

that such a hearing should be held soon after an emergency removal.

Jordan, 15 F.3d at 351. In Jordan, we approved a hearing which was

held some 65 hours after a child was removed from his home. Per-

force, the much prompter hearing held in this case cannot be judged

constitutionally invalid. Under these circumstances, we cannot con-

clude that White was denied the process she was due. 2

The discretionary judgment which was made in removing the

White children was obviously not an easy one. It involved weighing

professional opinions of child abuse against the obvious interests in

maintaining the integrity of a household. Here the tug and pull of

competing concerns is evident. Premature action by a social worker

can disrupt the legitimate interest parents possess in raising and disci-

plining their children. On the other hand, a failure to act can leave a

child defenseless in the face of physical abuse and brutality. These

types of decisions are precisely the sort that the doctrine of qualified

immunity is designed to protect. See Wood v. Strickland, 420 U.S.

_________________________________________________________________

2 White also alleges that she and her children were denied their consti-

tutional right of access to the courts. White does nothing more, however,

than posit the existence of an abstract right, and that is not sufficient to

defeat qualified immunity. See Anderson v. Creighton, 483 U.S. 635,

640-41 (1987); Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992).

White has failed to point to any facts which would demonstrate that her

or her children's right of access to the courts was violated by the DSS

defendants in this case.

9

308, 319-20 (1975). If 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. The facts presented by White reveal that the DSS

defendants violated no "clearly established" law in removing White's

children from her custody. Therefore, qualified immunity must lie.

Harlow, 457 U.S. at 818.

B.

White next claims that the DSS defendants violated Keena's con-

stitutional rights when they placed her in the Bonner home. A negli-

gent placement, of course, would implicate no federal rights for

questions of negligence have long been regarded by the Supreme

Court as within the province of state law. Daniels v. Williams, 474

U.S. 327, 328 (1986). White, however, refers us to circuit cases where

DSS defendants were alleged to have crossed the line from negligence

into deliberate indifference thus implicating substantive Fourteenth

Amendment protections. See K.H. ex rel. Murphy v. Morgan, 914

F.2d 846, 852 (7th Cir. 1990) ("The only right in question in this case

is the right of a child in state custody not to be handed over by state

officers to a foster parent or other custodian, private or public, whom

the state knows or suspects to be a child abuser."); accord Meador v.

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

Taylor v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987); Doe v. New

York City Dept. of Social Servs., 649 F.2d 134, 141 (2d Cir. 1981).

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 Bonners were abusive foster parents when they

placed Keena in their care. Indeed, the Bonners were licensed by the

DSS, and White points to no evidence indicating that the Bonners had

previously been accused of, or investigated for, child abuse. A claim

of deliberate indifference, unlike one of negligence, implies at a mini-

mum that defendants were plainly placed on notice of a danger and

chose to ignore the danger notwithstanding the notice. There is simply

no evidence that the DSS defendants were on notice of any problem

at the time the placement decision was made.

10

C.

White also asserts that the DSS defendants had a clearly estab-

lished duty to protect Keena from abuse after she was placed with the

Bonners. In order for a right to be "clearly established," the Supreme

Court has instructed that "[t]he contours of the right must be suffi-

ciently clear that a reasonable official would understand that what he

is doing violates that right." Anderson v. Creighton, 483 U.S. 635,

640 (1987).

In DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S.

189 (1989), the Supreme Court held that the state had no affirmative

duty to protect a child from abuse when that child was not in state

custody. However, the Court specifically declined to determine

whether placing a child in foster care would constitute the sort of cus-

todial relationship that would give rise to a duty of protection. Id. at

201 n.9. By 1991, when the events relevant to the instant suit

occurred, this circuit had squarely held that children placed in foster

care had no federal constitutional right to state protection. In Milburn

v. Anne Arundel County Dep't of Social Servs., 871 F.2d 474 (4th Cir.

1989), the court considered a claim brought by parents who had

placed their child in the state foster care system. While in foster care,

the child was subjected to abuse and required medical treatment on

four separate occasions. The child's parents brought suit against the

state DSS and several officers of the DSS alleging that they had

breached the child's right to protection. The court noted that the state

had no affirmative constitutional obligation to protect individuals

against private violence, id. at 476, and went on to reject the parents'

claim, reasoning that foster parents were private actors and not agents

of the state:

The State of Maryland was not responsible for the specific

conduct of which plaintiff complains, that is, the physical

child abuse itself. It exercised no coercive power over the

Tuckers; neither did it encourage them. The care of foster

children is not traditionally the exclusive prerogative of the

State. Thus . . . the Tuckers should not be considered state

actors.

Id. at 479 (citations omitted).

11

Nothing in Milburn limited its application to situations where par-

ents had voluntarily placed their children in foster care, and Milburn

was not interpreted as being so limited in subsequent Fourth Circuit

cases. In Weller, for example, the court relied on Milburn for the

proposition "that harm suffered by a child at the hands of his foster

parents is not harm inflicted by state agents." 901 F.2d at 392. Given

the state of this circuit's law on the issue and the absence of control-

ling Supreme Court authority, we cannot say that a right to affirma-

tive state protection for children placed in foster care was clearly

established at the time of Keena's death.

White next argues that the South Carolina Child Protection Act

forms the basis of a clearly established right to protection while in

foster care which is enforceable under 42 U.S.C.§ 1983. We disagree.

The Supreme Court has made clear that section 1983 provides a cause

of action for "violations of federal statutory as well as constitutional

law." Maine v. Thiboutot, 448 U.S. 1, 4 (1980). Following Thiboutot,

this circuit explicitly rejected the contention that state child welfare

statutes create substantive due process rights enforceable through sec-

tion 1983. For example, in Weller, we held:"If Weller is seeking

compliance with state law, this is not the proper forum. Even if

BCDSS did violate state laws, it is well settled that violations of state

law cannot provide the basis for a due process claim." 901 F.2d at 392

(citation omitted); see also Hodge v. Jones, 31 F.3d 157, 168 (4th Cir.

1994). Indeed, this circuit has specifically rejected the contention that

the very statute at issue in this case -- the South Carolina Child Pro-

tection Act -- creates substantive rights enforceable through a section

1983 action. See Jensen v. Conrad, 747 F.2d 185, 195 n.12 (4th Cir.

1984).3

_________________________________________________________________

3 Our decision in Better Government Bureau, Inc. v. McGraw, 106 F.3d

582 (4th Cir. 1997), is not to the contrary. That case referred to state law

to determine only whether an official performed an act "clearly estab-

lished to be beyond the scope of his discretionary authority." Id. at 592.

Better Government Bureau, therefore, is inapplicable here as the defen-

dants in this case are being sued for discretionary judgment calls that

clearly fell within the scope of their duties as social workers. Moreover,

Better Government Bureau had not been decided when the actions rele-

vant to this suit occurred.

12

Because the South Carolina Child Protection Act does not create

a clearly established substantive federal right, the immunity claims of

the DSS defendants do not rise or fall on questions of state law. As

we noted in Jordan, the whole area of domestic relations has "`been

left to the States from time immemorial, and not without good rea-

son.'" 15 F.3d at 348 (quoting Santosky v. Kramer, 455 U.S. 745, 770

(1982) (Rehnquist, J., dissenting)). Domestic violence of all varieties

is one of the most wrenching problems that any society must face, but

to federalize the issue through the vehicle of section 1983 is not the

answer. That is not to say that there should be no remedy, but rather

that where state officials acting within the scope of their discretionary

duties commit violations of state law, one must look to state law and

to state courts to pursue those remedies that the state has provided. In

South Carolina, for example, aggrieved individuals may pursue a state

law cause of action under the South Carolina Child Protection Act for

public officials' alleged failures to abide by the directives of that stat-

ute. See Jensen v. Anderson County Dep't of Social Servs., 403 S.E.2d

615, 617 (S.C. 1991).

Lastly, White argues that since South Carolina receives federal

funds for its child welfare program, plaintiffs had an enforceable right

to protection through the provisions of the federal Adoption Assis-

tance and Child Welfare Act ("AACWA"). Specifically, White points

to 42 U.S.C. § 671(a)(10), which states:

In order for a State to be eligible for payments under

this part, it shall have a plan approved by the Secretary

which --

(10) provides for the establishment or designa-

tion of a State authority or authorities which shall

be responsible for establishing and maintaining

standards for foster family homes and child care

institutions which are reasonably in accord with

recommended standards of national organizations

concerned with standards for such institutions or

homes, including standards related to admission

policies, safety, sanitation, and protection of civil

rights, and provides that the standards so estab-

lished shall be applied by the State to any foster

13

family home or child care institution receiving

funds under this part or part B of this subchapter.

The Supreme Court addressed the availability of privately enforce-

able rights under the AACWA in Suter v. Artist M., 503 U.S. 347

(1992). Section 671(a)(15) of that statute requires a state to make

"reasonable efforts" to return children placed in foster care to their

homes. The Court held that this section created no private right of

action under section 1983 because (1) the section did not state a clear

requirement of any conditions on state receipt of federal grants, id. at

356-57; (2) the statute did not include any "statutory guidance . . . as

to how `reasonable efforts' are to be measured," id. at 360; and (3)

section 42 U.S.C. § 671(b) provided for the establishment of an alter-

native enforcement mechanism, id. at 360-61.

For the same reasons, section 671(a)(10) does not create an

enforceable right. The requirement that a state's plan be "reasonably

in accord with recommended standards of national organizations," is

no more specific than section 671(a)(15)'s "reasonable efforts"

requirement. Furthermore, the AACWA provides no"statutory guid-

ance" to clarify the meaning of the requirements of 671(a)(10).

Lastly, section 671(a)(10) is enforceable through the same alternative

enforcement mechanism provided for section 671(a)(15). As the

Supreme Court noted in Suter, "[t]he Secretary [of Health and Human

Services] has the authority to reduce or eliminate payments to a State

on finding that the State's plan no longer complies with § 671(a) or

that `there is a substantial failure' in the administration of a plan such

that the State is not complying with its own plan." 503 U.S. at 360.

Suter thus forecloses the argument that section 671(a)(10) of the

AACWA provides the source for an enforceable right through section

1983. See also Wildauer v. Frederick County, 993 F.2d 369, 373 (4th

Cir. 1993).4

_________________________________________________________________

4 The congressional response to Suter codified at 42 U.S.C. § 1320a-2

does not alter our view. As an initial matter, that response came after the

events relevant to this case. Further, Congress made clear that the statute

was "not intended to alter the holding in Suter v. Artist M. that section

671(a)(15) . . . is not enforceable in a private right of action." 42 U.S.C.

§ 1320a-2. Lastly, Suter itself was not a novel holding, but rather rested

upon settled legal principles with regard to private rights of action in the

context of the AACWA.

14

We are again mindful that this case has involved the loss of a

child's life. We are unable, however, from the record before us to

attribute this sad occurrence to constitutional or federal statutory

defalcations of the defendants in this case. The only evidence in the

record indicating potential abuse by the Bonners is White's complaint

regarding bruises and scratches on Keena and her other children.

White, however, had told Cassie Wilson, a DSS caseworker, that her

children often sustained such injuries in the course of playing or fight-

ing. Furthermore, Tina Werts, another caseworker, took Keena to the

doctor for a cold on January 3 and observed that she appeared to be

in good condition. Given these circumstances, DSS reasonably con-

cluded that any scratches and bruises on Keena arose from normal

child play.

We are reminded again that the defense of qualified immunity is

often asserted in the most difficult of cases. Yet it is precisely for the

hard case that the immunity exists. The availability of immunity can-

not be judged solely by tragedies that later occur or by mistakes that

later come to light. Knowing what we know now, no child would

have been placed in the care of the Bonners. But now is not then, and

few mortals stand unscathed by hindsight. The question under quali-

fied immunity is thus whether fallible and imprescient human beings

acted reasonably on the law as it stood and on the facts as they were

known at the time the action was taken. Anderson , 483 U.S. at 641.

On this record, we are unable to find that the standard of objective

reasonableness applied to the actions of public officials has been

transgressed.

III.

For the foregoing reasons, we conclude that the DSS defendants

are entitled to qualified immunity. Because the district court erred in

denying their motion for summary judgment, we hereby reverse.

REVERSED

15