Hunt v. Montano

Appellate Case: 20-2042 Document: 010110706189 Date Filed: 07/06/2022 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 6, 2022

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

_________________________________

LEE HUNT, as personal representative of

the wrongful death Estate of Ariza

Barreras; GABRIELLE VALDEZ, as the

Guardian Ad Litem for T.B. and F.B.,

minor children,

Plaintiffs - Appellees.

v. No. 20-2042

LEAH MONTANO; GWENDOLYN

GRIFFIN; KIM CHAVEZ-BUIE;

MICHELLE HILL; LORA VALDEZ, all

in their personal capacities acting under

color of state law,

Defendants - Appellants,

and

STEPHANIE CROWNOVER; THE NEW

MEXICO CHILDREN, YOUTH AND

FAMILIES DEPARTMENT,

Defendants.

_________________________________

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. 1:19-CV-00700-KWR-KRS)

_________________________________

Jerry A. Walz (Alisha L. Walz with him on the briefs), Walz and Associates, P.C.,

Albuquerque, New Mexico, for Defendants-Appellants.

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Andrew G. Schultz, Rodey Dickason Sloan Akin & Robb, P.A. (F. Michael Hart and

Kelly Stout Sanchez, Martinez, Hart, Thompson & Sanchez, P.C., and Bryan L.

Williams, Williams Injury Law, P.C., with him on the brief), Albuquerque, New Mexico,

for Plaintiffs-Appellees.

_________________________________

Before MATHESON, KELLY, and EID, Circuit Judges.

_________________________________

EID, Circuit Judge.

_________________________________

This is an interlocutory appeal from the denial of a motion for judgment on the

pleadings asserting qualified immunity. At issue is whether the special relationship

doctrine exposes five employees of the New Mexico Children, Youth and Families

Department (“CYFD”) to liability arising from the abuse of two foster children, T.B.

and F.B., and the death of a third foster child, Ariza Barreras. We agree with the

district court that the children’s representatives’ allegations state a plausible claim

that two of the CYFD employees—Leah Montano and Gwendolyn Griffin—violated

the children’s substantive due process rights. However, the district court erred by

concluding that the other three employees—Kim Chavez-Buie, Michelle Hill, and

Lora Valdez—committed a constitutional violation. The district court also erred by

finding that the clearly established prong of qualified immunity had been waived for

purposes of this motion. We reverse as to Chavez-Buie, Hill, and Valdez on the

constitutional violation prong of qualified immunity because the complaint failed to

allege liability under the special relationship doctrine. Chavez-Buie, Hill, and

Valdez are therefore entitled to qualified immunity. We reverse as to Montano and

Griffin on the clearly established prong of qualified immunity because, even though

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we agree with the district court that the allegations state a claim under the special

relationship doctrine, the district court incorrectly deemed the clearly established

prong waived. We remand for a determination whether Montano and Griffin violated

clearly established law.

I.

a.

The following facts are based on the allegations in the amended complaint.

Ariza Barreras, T.B., and F.B. (“the children”) were siblings. In May 2017, the

children were transferred to CYFD’s custody. At the time, Barreras was four months

old, T.B. was two years old, and F.B. was one year old. CYFD employees Michelle

Hill and Lora Valdez placed the children with foster parents Vanessa Dominguez and

Justin Romero. They did so without evaluating whether Barreras and T.B., who were

exposed to drugs in utero, “should have been treated and cared for as ‘special needs’

children and placed with foster parents who had received . . . additional training.”

App’x at 21. Dominguez and Romero had no experience as full-time foster parents

for multiple children under the age of three with special needs. Hill and Valdez

allegedly made this full-time placement even though Dominguez and Romero were

licensed only as respite care providers.1

1

Unlike full-time foster parents, respite care providers “care for foster children

for short periods of time when the child’s original foster parents are unable to

provide care.” App’x at 13.

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Dominguez and Romero applied to be foster parents in 2016. At the time, they

only sought to provide respite care. As part of the application process, La Familia,

Inc.—an independent agency operating on CYFD’s behalf—prepared an 18-page

home study report. The report recommended that CYFD deny Dominguez and

Romero a foster-parent license. La Familia’s investigator found that Romero had a

family history of schizophrenia, was neglected by his mother as a child, and had a

history of deprivation and trauma. Romero also struggled to cope with the death of

his wife; he removed all reminders of her from his home and refused to speak with

his six-year-old daughter about her mother. The investigator concluded that Romero

would not be able to focus on a foster child’s emotional needs because he had not

addressed his grief and had not helped his daughter cope with hers. The investigator

submitted allegations of emotional abuse by Romero against his daughter to Child

Protective Services.

CYFD employees Leah Montano and Gwendolyn Griffin looked into the

emotional abuse accusations but could not substantiate them. Montano, Griffin, and

fellow CYFD employee Kim Chavez-Buie prepared a one-page addendum to the La

Familia home study, disagreeing with the investigator and finding that Dominguez

and Romero could be appropriate caregivers. It was a “team decision that

support[ed] overturning . . . the home study.” Id. at 16. On July 11, 2016, CYFD

issued Dominguez and Romero a license that was only for respite foster care.

However, by May 2017, Dominguez and Romero began serving as full-time foster

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parents. There is no record that CYFD ever relicensed them to provide full-time

care.

As full-time foster parents to Barreras, T.B., and F.B., Dominguez and Romero

regularly relied on respite care for the children, using such care approximately eleven

times in eight months. Initially, Dominguez and Romero contacted Montano, who

would arrange these placements—including several with Stephanie Crownover, who

lived nearby. The children were in Crownover’s respite care when Barreras died.

CYFD had licensed Crownover in 2016. Montano completed Crownover’s

home study, which Griffin approved. The study showed Crownover’s spare

bedrooms lacked necessary furniture for foster children, although she communicated

her intention to buy beds. The study noted that her monthly income was $1,200

while her monthly expenses were roughly $1,060, which the evaluator called “barely

enough to meet the family’s needs.” Id. at 17. According to the study, Crownover

had a history of drug and alcohol abuse, associated with dangerous criminals, and

maintained relationships with abusive men. Crownover had numerous traffic

citations and had been arrested for conspiracy, aggravated battery, and battery against

a family member. Crownover committed the latter against her six-year-old

granddaughter with a broomstick because she did not wake up on time. CYFD

investigated and substantiated that physical abuse allegation. CYFD also

substantiated allegations in 2012 that Crownover failed to provide her granddaughter

with adequate food and shelter, and emotionally abused her, as well as 2013

allegations that Crownover excessively and inappropriately disciplined her. The

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home study findings were inconsistent with a questionnaire completed by Crownover

a few months earlier, in which she denied that she had been the subject of an abuse

investigation or had ever been arrested. These discrepancies were not identified or

addressed by Montano or Griffin. Despite all this, CYFD licensed Crownover.

Crownover told CYFD that she was only interested in providing respite care

for sibling groups of no more than two. Although Barreras, T.B., and F.B. were a

group of three, Crownover regularly provided them respite care. After Montano

coordinated the first few visits, Dominguez and Romero started contacting

Crownover directly to arrange respite care “without CYFD’s prior knowledge or

approval.” Id. at 23. Montano knew about and permitted this deviation from normal

CYFD procedure, never telling Dominguez and Romero that it was improper.

After a two-night respite stay with Crownover in August 2017, CYFD received

a report of physical abuse against T.B. and F.B. F.B. had bite marks on his arm and a

black eye, while T.B.’s eye and arm were bruised. Hill and Valdez investigated.

They could not substantiate the physical abuse allegations against Crownover

because the children were too young to explain how they were hurt. Their

investigative report indicated that a home visit was conducted and no safety threats

were found. The home was “in good condition.” Id. at 24.

Other foster families had problems with Crownover’s respite care during this

period. Foster children in her care were unkempt, lacking showers and presenting

with matted hair. In one case, Crownover observed spots on a foster child’s hands—

which turned out to be hand, foot, and mouth disease—but failed to take the child to

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the doctor and encouraged him to play, telling him he was not sick. Various foster

parents reported these incidents to Montano, but they are not recorded in CYFD files.

Montano’s notes do indicate that in November 2017, she had a conversation with

Crownover to discuss an “incident” that was “unacceptable,” “against policy,” and

warranted “some type of corrective action plan.” Id. at 27. Griffin’s notes reference

the incident too. Their notes do not specify whether any plan was implemented.

Griffin’s notes—entered, like Montano’s, en masse shortly after Barreras’s death—

report her satisfaction with Crownover’s home throughout 2017, but fail to reflect

whether she actually visited the home.

In October 2017, Crownover reported violence between T.B. and F.B. and told

CYFD that she would no longer care for them together. She cared for the siblings

separately in November 2017. But on December 28, 2017, Crownover once again

accepted all three children for several days of respite care. She told CYFD

investigators in the aftermath of Barreras’s death that, although she “knew she could

not handle all three children at once, she hates telling people no.” Id. at 29. The next

day, the children had a two-hour supervised visitation with their biological parents.

The visitation monitor reported to CYFD that Crownover arrived late, Barreras’s

diaper had been soiled for over an hour, F.B. and Barreras had diaper rashes, and

Barreras had dried feces on her buttocks and lower back. There is no record that

CYFD contacted Crownover about these observations or tried to investigate them.

Around this time, Barreras would usually sleep in a playpen or bed.

Crownover told Dominguez that she had a bed for Barreras, so Dominguez would not

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need to bring any bedding when she dropped off the children. But Crownover did not

have a bed. On December 28, 29, and 30, Crownover strapped Barreras into a car

seat on the floor to put her to sleep. On the morning of December 31, 2017,

Crownover discovered Barreras slumped forward in the car seat with her left arm

caught in the shoulder strap. She was not breathing. The Office of the Medical

Investigator pronounced her dead.

A law enforcement investigation showed that the outside temperature had

fallen below freezing overnight, there were holes in the walls and ceiling, and the

heater was not operational. The investigation also found that Crownover’s house did

not have a crib or bed for Barreras, the floors were filthy, rotten food remained in the

refrigerator and around the house, trash was stuffed under the beds, soiled clothing

and diapers were stacked in the corners, dog feces and urine covered the floor, and

human feces floated in the toilet. Officers described the odor in the house as

“intolerable.” Id. at 32. They described T.B. and F.B. as sick, soiled, and unbathed,

with severe diaper rashes.

CYFD removed T.B. and F.B. from Crownover’s home and opened an

investigation. It found they were in danger of serious harm from abuse or neglect. It

also found that Crownover did not have a strong emotional bond or positive

attachment with them. CYFD substantiated Crownover’s physical neglect of

Barreras, her inadequate shelter of all three children, and her physical abuse and

neglect of F.B. related to a burn F.B. suffered in her care. T.B. and F.B. “suffered

physical injury, pain, emotional distress and severe mental anguish.” Id. at 46.

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b.

Lee Hunt, the personal representative of Barreras’s estate, and Gabrielle

Valdez, the guardian ad litem for T.B. and F.B. (“the children’s representatives”),

sued Crownover, CYFD, Montano, Griffin, Chavez-Buie, Hill, and Valdez in New

Mexico state court under 42 U.S.C. § 1983 and the New Mexico Tort Claims Act for

violating the children’s substantive due process rights. Crownover removed the case

to the District of New Mexico.

The CYFD employees moved for judgment on the pleadings, asserting

qualified immunity. The district court denied the motion. It determined the

children’s representatives plausibly alleged that each CYFD employee violated the

children’s substantive due process rights under the special relationship doctrine.

However, the court did not determine whether the rights at issue were clearly

established. The court opined that the CYFD employees “did not raise the clearly

established prong of qualified immunity” in their motion, which had “solely argued

that there was no constitutional violation.” Id. at 199. The children’s representatives

“noted this in their response” and the employees “did not dispute this characterization

of their argument in their reply brief.” Id. The court concluded that the employees

“waived, for this motion only, review under the clearly established prong.” Id.

The CYFD employees appealed. They assert that the district court erred both

by finding that the children’s representatives adequately pled a Fourteenth

Amendment substantive due process violation and by denying them qualified

immunity without a showing that they violated clearly established law.

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II.

“Qualified immunity protects governmental officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Schwartz v.

Booker, 702 F.3d 573, 579 (10th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). We review de novo the district court’s denial of the CYFD

employees’ motion for judgment on the pleadings asserting a qualified-immunity

defense. Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019).

To survive a motion for judgment on the pleadings based on qualified

immunity, plaintiffs “must allege sufficient facts that show—when taken as true—the

defendant plausibly violated [their] constitutional rights, which were clearly

established at the time of violation.” Schwartz, 702 F.3d at 579. To determine

whether a claim is plausible, we “accept as true ‘all well-pleaded factual allegations

in a complaint and view these allegations in the light most favorable to the

plaintiff.’” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (quoting

Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th Cir. 2011)).

III.

We first address our jurisdiction to consider the CYFD employees’

interlocutory appeal. Under the collateral-order doctrine, a district court’s denial of

qualified immunity is immediately appealable to the extent the court’s decision turns

on an abstract question of law. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). “At

this stage, however, we are not at liberty to review a district court’s factual

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conclusions, such as the existence of a genuine issue of material fact for a jury to

decide, or that a plaintiff’s evidence is sufficient to support a particular factual

inference.” Fogarty v. Gallegos, 523 F.3d 1147, 1154 (10th Cir. 2008).

The CYFD employees present two questions on appeal. The first is whether

the children’s representatives’ allegations plausibly show the violation of a

substantive due process right. The second is whether the district court erred by

denying qualified immunity where, in its view, the representatives “made no effort

before the district court to meet their burden of demonstrating that the constitutional

right at issue was clearly established.” Aplt. Br. at 47. We have jurisdiction to

consider these purely legal issues.

IV.

Federal law authorizes a private cause of action for “the deprivation of any

rights, privileges, or immunities secured by the Constitution” under color of state

law. 42 U.S.C. § 1983. The children’s representatives’ claims are rooted in the

substantive component of the Fourteenth Amendment’s Due Process Clause, which

provides that “[n]o State shall . . . deprive any person of life, liberty, or property,

without due process of law.” U.S. Const. amend. XIV, § 1. State actors like the

CYFD employees, however, are generally not liable for “failure to protect an

individual against private violence.” DeShaney v. Winnebago Cty. Dep’t of Soc.

Servs., 489 U.S. 189, 197 (1989). One exception to this principle is the special

relationship doctrine at issue here.

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“A special relationship exists when the state assumes control over an

individual sufficient to trigger an affirmative duty to provide protection to that

individual.” Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995). We have

recognized that foster care creates a special relationship. See Schwartz, 702 F.3d at

580; see also Yvonne L. ex rel. Lewis v. N.M. Dep’t of Human Servs., 959 F.2d 883,

892–93 (10th Cir. 1992). “This special relationship triggers a continuing duty that is

subsequently violated if a state official knew of the asserted danger to a foster child

or failed to exercise professional judgment with respect thereto, and if an affirmative

link to the injuries the child suffered can be shown.” Gutteridge v. Oklahoma, 878

F.3d 1233, 1238–39 (10th Cir. 2018) (cleaned up). A state official’s failure to

exercise professional judgment requires something beyond mere negligence. It

requires an “abdication of professional responsibility . . . sufficient to shock the

conscience.” Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1143 (10th

Cir. 2006).

We proceed to assess whether each individual CYFD employee violated the

children’s substantive due process rights under the special relationship doctrine. See

Matthews v. Bergdorf, 889 F.3d 1136, 1144 (10th Cir. 2018). De novo review

suggests the district court correctly found that Montano and Griffin could be liable if

their alleged conduct violated clearly established law, but the district court erred with

respect to Chavez-Buie, Hill, and Valdez.

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a.

We start with the allegations against Montano and Griffin.2 We focus on the

allegations related to licensing and monitoring Crownover, which we conclude

amount to a conscience-shocking abdication of professional judgment by both

Montano and Griffin.3

We have previously held employees in similar roles could be liable for failing

to investigate foster homes. In Schwartz, we found two county employees violated a

foster child’s substantive due process rights when they “ignored known or likely

injuries and abuse to [the foster child], chose not to further investigate such possible

2

The CYFD employees argue on appeal that the special relationship doctrine

cannot apply to the decisions to license either Dominguez and Romero or Crownover

because the children were not yet in state custody when those decision were made.

The employees concede that they did not identify this issue before the district court.

Even assuming they forfeited rather than waived this theory below, we decline to

consider it now because they fail to argue plain error. See Richison v. Ernest Grp.,

Inc., 634 F.3d 1123, 1130 (10th Cir. 2011) (“If a newly raised legal theory is entitled

to appellate review at all—if it wasn’t waived before the district court—it may form a

basis for reversal only if the appellant can satisfy the elements of the plain error

standard of review.”). “The burden of establishing plain error lies with the appellant.

In civil cases, this burden is ‘extraordinary . . . [and] nearly insurmountable.’”

Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1151 (10th Cir. 2012)

(alterations in original) (quoting Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 802

(10th Cir. 2001)). Thus, “the failure to argue for plain error and its application on

appeal . . . surely marks the end of the road for an argument for reversal not first

presented to the district court.” Richison, 634 F.3d at 1131.

3

In finding a substantive due process violation by Montano and Griffin, we do

not rely on the allegations about (1) their licensure of Dominguez and Romero and

(2) their investigation into the reported emotional abuse of Romero’s daughter. Not

only do the children’s representatives state a claim against Montano and Griffin

under the special relationship doctrine without regard to those allegations, but, as we

discuss below in relation to Chavez-Buie, allegations about Dominguez and Romero

have dispositive causation defects because they lack an “affirmative link” to the harm

suffered by the children in Crownover’s care. See Yvonne L., 959 F.2d at 890.

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abuse, and ignored the danger posed by his continued residence” in the home in

which he was placed. 702 F.3d at 587. In Johnson, we determined that a CYFD

employee may have abdicated her professional judgment when she allegedly failed to

investigate circumstances surrounding a foster parent’s removing the child from day

care, firing the child’s home health nurses, and inviting the parent’s father to live in

the foster home without informing CYFD. 455 F.3d at 1145. In Matthews, we

deemed sufficient a plaintiff’s allegations that a caseworker “‘screened out’ a referral

that alleged the . . . foster home was dangerous and filthy, [a foster child] did not

bathe frequently, his or her clothes were dirty, and preteen children of different sexes

were sleeping in the same room.” 889 F.3d at 1149. Comparing our precedents with

the allegations against Montano and Griffin, we think that the children’s

representatives have alleged “enough facts to raise a reasonable expectation that

discovery will reveal evidence that a constitutional violation has in fact occurred.”

Id.

Regarding the Crownover licensure, Montano and Griffin allegedly knew

about Crownover’s precarious financial situation, her alcohol and drug problems, her

criminal history, her previous relationships with abusers, and her record of

committing physical abuse herself—including a battery against her six-year-old

granddaughter. Montano and Griffin had personal knowledge that Crownover’s

home lacked necessary beds and bedding. Nothing in the CYFD records showed that

Montano or Griffin followed up on these red flags, or that they reconciled conflicting

information Crownover provided to CYFD in a questionnaire. Once licensed,

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Montano allegedly allowed Dominguez and Romero to independently arrange respite

care with Crownover “without CYFD’s prior knowledge, approval, or authorization.”

App’x at 23. That was inconsistent with CYFD policy. Montano was also allegedly

aware that Crownover no longer wanted to care for T.B. and F.B. at the same time

but did not intervene when the children continued to receive care from her.

The children’s representatives alleged that, during this period, Montano had

personal knowledge of complaints related to Crownover’s ability to care for foster

children but declined to investigate them or monitor her. Other foster parents

reported to Montano that Crownover failed to provide adequate hygienic care and in

one instance ignored a child’s hand, foot, and mouth disease. Notes allegedly taken

by Montano and Griffin mention an “incident” with Crownover that “was against

policy” and “unacceptable,” but did not lead to any response. Id. at 27.

Nevertheless, the children’s representatives alleged that Griffin repeatedly wrote in

her notes throughout 2017 that there were “[n]o concerns noted with the Crownover

home.” Id. at 28.

Considering the allegations against Montano and Griffin, we think they

abdicated their professional judgment with respect to the placement and monitoring

of the children with Crownover. Not only did they allegedly approve a foster parent

with a violent and dangerous history, but they failed to adequately monitor her home.

Eschewing even the barest safeguards, Montano allegedly allowed the children’s

respite placement with her to be privately arranged in violation of CYFD policy.

Montano and Griffin knew that Crownover did not want to take care of the children

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together and had reason to think that she would not be capable of doing so. They

even allegedly knew that she lacked essential items like beds and did not follow up to

ensure that she obtained them. Barreras died when Crownover put her to sleep in a

car seat in a filthy home without functional heating. The juxtaposition of Griffin’s

glowing notes about the state of the home and the appalling scene observed by first

responders speaks volumes. Although Crownover is directly responsible for what

happened to the children, it was allegedly only through Montano and Griffin that she

was licensed to provide foster care and connected with the children in the first place.

Neither Montano nor Griffin addressed any of the problems with Crownover to

ensure her home was a safe and appropriate place to care for foster children. More

than acting with “mere negligence,” see J.W. v. Utah, 647 F.3d 1006, 1011 (10th Cir.

2011), Montano and Griffin allegedly abdicated their professional responsibility in

nearly every aspect of the children’s placement with Crownover. Under the special

relationship doctrine, that leaves only two questions: whether their alleged conduct

caused the children’s injuries and whether it shocks the conscience. We answer both

questions in the affirmative.

We start with causation. Our cases require an “affirmative link” between the

state actor’s conduct and “the injuries . . . suffered” to impose special relationship

liability. Yvonne L., 959 F.2d at 890. That calls for something more than mere but-

for causation or coincidence, especially where it is so important to evaluate the

conduct of each employee claiming qualified immunity individually. See Matthews,

889 F.3d at 1144. We reject the children’s representatives’ position that but-for

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causation is sufficient because it fails to engage with our precedents. The issue with

respect to causation is whether the special relationship doctrine’s causation standard

is met, so that the CYFD employees are responsible for the children’s treatment by

Crownover. The children’s representatives’ arguments about whether the general

causation standard for § 1983 liability is satisfied, while important to the merits, are

irrelevant to whether qualified immunity was properly denied based on a

constitutional violation under the special relationship doctrine.

There is an obvious “affirmative link” between the licensing and monitoring of

Crownover and the injuries suffered by the children in her care. See Yvonne L., 959

F.2d at 890. The children’s representatives allege a host of risk factors ignored by

Montano and Griffin in licensing Crownover, all of which were exacerbated by their

failure to adequately monitor her. When the children were placed in her care, these

risks became real. Barreras died while sleeping in a car seat; Montano and Griffin

allegedly knew Crownover did not have a bed and never followed up. T.B. and F.B.

suffered physical harm in Crownover’s home; Montano and Griffin allegedly knew

that Crownover was an abuser who fraternized with abusers. The children were

harmed in Crownover’s care, tragically but foreseeably, because of Crownover’s

conduct as a respite care provider. That is an affirmative link under the special

relationship doctrine, which leaves us to decide only whether her conduct shocks our

conscience.

“Conscience-shocking behavior evades precise definition and evolves over

time.” Schwartz, 702 F.3d at 586 (alteration and internal quotation marks omitted).

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The test is not an exact science; it depends greatly on the circumstances. To satisfy

this standard, the children’s representatives must “do more than show that the

government actor intentionally or recklessly caused injury . . . by abusing or misusing

government power.” Uhlrig, 64 F.3d at 574. They must show “a degree of

outrageousness and a magnitude of potential or actual harm that is truly conscience

shocking.” Id. Behavior under this standard is “viewed in total”—“the cumulative

impression of [the] conduct should be considered.” Currier v. Doran, 242 F.3d 905,

920 (10th Cir. 2001).

In Currier, we held that a caseworker’s behavior could be conscience shocking

where he allegedly failed to investigate bruises and abuse allegations and was in part

responsible for a court’s order granting legal custody to the father of two minor

children despite knowing about the father’s financial instability and the allegation of

abuse against him. Id. In Schwartz, we held that two social workers behaved in a

conscience-shocking manner by allegedly ignoring a foster child’s known or likely

injuries, choosing not to investigate possible abuse, and ignoring the danger posed by

the child remaining with his foster parents. 702 F.3d at 587. In Armijo v. Wagon

Mound Public Schools, we held that returning a suicidal special-education student to

his home, where he had access to firearms and took his own life, was conscience-

shocking behavior. 159 F.3d 1253, 1264 (10th Cir. 1998).

We agree with the district court that Montano and Griffin behaved in a manner

that shocks the judicial conscience consistent with our earlier cases. Accepting the

allegations in the complaint as true, Montano and Griffin licensed Crownover—and

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Montano circumvented CYFD protocols to permit Barreras, T.B., and F.B. to be

repeatedly placed in her care—despite her history of crime, past dangerous

relationships, financial situation, alcohol and drug problems, and record of physical

abuse against a child in her care. They knew Crownover’s home lacked necessary

beds and bedding but never followed up to make sure she purchased some before

providing care. They allowed Crownover to care for the children even as CYFD

investigated reports of abuse by Crownover against T.B. and F.B. The notes hastily

entered after Barreras’s death suggest a shocking degree of malfeasance when

compared with the condition of the home in December 2017. Montano and Griffin

consciously placed the children in a perilous environment and ignored signs of

continued danger and abuse as time went on. Because of their conduct, toddlers T.B.

and F.B. suffered physical abuse and lost their infant sister. Barreras lost her life.

The “cumulative impression” of the conduct in this case is dismal and damning. See

Currier, 242 F.3d at 920. The effects were devastating. The children’s

representatives have plausibly alleged that Montano and Griffin are responsible. If

the allegations in the complaint are substantiated, their actions shock our conscience

enough to impose liability under the special relationship doctrine.4

b.

4

At this stage, we make all inferences in the children’s representatives’ favor.

See Schwartz, 702 F.3d at 587. It is, of course, possible that “discovery may inform

the context” of the CYFD employees’ behavior such that the allegations in the

complaint are undermined or unsubstantiated. Id. That does not render a denial of

qualified immunity improper at this stage in the proceedings, just as it does not

prejudice the renewal of a qualified-immunity claim at a later stage. See id.

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Next, we discuss Chavez-Buie. The only allegation against Chavez-Buie is

that, along with Montano and Griffin, she summarily dismissed the La Familia home

study recommending that CYFD deny Dominguez and Romero a foster care license.

Chavez-Buie allegedly ignored the home study investigator’s findings about

Romero’s history of trauma and neglect, and his inability to emotionally support his

daughter in the wake of her mother’s death.

Even if we agreed that the mere licensure of Dominguez and Romero

demonstrated a conscience-shocking lack of professional judgment, we think that the

children’s representatives failed to plausibly allege the special relationship doctrine’s

causation element. Sifting through the allegations against Chavez-Buie illustrates

this theory’s causal shortcomings. At the outset, we disregard the children’s

representatives’ conclusory allegations that the children’s injuries were “direct[ly]

and proximate[ly],” App’x at 43, caused by Chavez-Buie’s conduct. See Crane v.

Utah Dep’t of Corr., 15 F.4th 1296, 1303 (10th Cir. 2021) (“Courts do not assume as

true allegations that are legal conclusions, formulaic recitations of elements, or naked

assertions devoid of further factual enhancement.”). Turning to the complaint’s

substance, we think that however questionable the certification of Dominguez and

Romero could have been, there is no allegation that the children were harmed by

them. The complaint alleges that Barreras died, and T.B. and F.B. were harmed, in

Crownover’s respite care. The children’s representatives may note red flags related

to Dominguez and Romero, but they do not allege—nor does it follow by any

reasonable inference—that the CYFD employees were wrong to license Dominguez

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and Romero because the couple would go on to seek respite care from another

improperly licensed foster parent who would, in turn, harm the children. That makes

little sense. Even inferring that Dominguez and Romero may have been more likely

to seek respite care than other foster parents because that was all they originally

sought to provide, and all they were licensed for, it remains unreasonable to assume

from the complaint that respite foster care with licensed providers is inherently

dangerous to foster children.

It is true that the children were allegedly placed with Crownover while they

were in the full-time custody of Dominguez and Romero. But without any plausible

allegations from which we can infer causation, that does not mean Dominguez and

Romero are automatically to blame. Chavez-Buie’s relevant conduct was limited to

licensing Dominguez and Romero despite La Familia’s concerns. For purposes of

applying the special relationship doctrine, her actions have nothing to do with what

happened to the children in any legally relevant sense. Even assuming the other

elements of the special relationship doctrine are satisfied, there is no affirmative link

between the children’s harms and their placement with Dominguez and Romero.

Chavez-Buie is entitled to qualified immunity.

c.

Finally, we consider the allegations against Hill and Valdez, which fall into

two categories: (1) placing the children with Dominguez and Romero, and (2) failing

to substantiate abuse allegations against Crownover in August 2017.

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First, our discussion of the licensure of Dominguez and Romero applies

directly to the children’s placement in their home by Hill and Valdez. Even

assuming that the placement was a conscience-shocking abdication of professional

judgment, it did not cause the children’s injuries at Crownover’s hand in any

meaningful sense. The allegations about the failure by Hill and Valdez to consider

the children’s special needs, while concerning, are likewise inapposite. Without an

affirmative link between the alleged misconduct and the harm suffered, the special

relationship doctrine does not apply. See Yvonne L., 959 F.2d at 890.

Second, regarding the Crownover abuse investigation, subsequent

dissatisfaction with the result of a formal inquiry does not mean, without more, that

Hill and Valdez failed to exercise their professional judgment in conducting that

inquiry. Our cases support liability under the special relationship doctrine where

social workers fail to investigate reported abuse entirely. See Schwartz, 702 F.3d at

587. They do not support liability where social workers’ professional judgment leads

them to a finding that, in retrospect, may strike us as suspect. See Johnson, 455 F.3d

at 1144 (“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.”). The children’s representatives’ allegations

reference an “investigation report” that in turn referenced a favorable “home visit”

conducted by Hill and approved by Valdez. App’x at 24. Without any allegation that

the August 2017 investigation by Hill and Valdez was a sham or otherwise

unprofessional, it is unreasonable to conclude or infer as much, especially when the

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allegations about the home’s sordid condition are set several months later. That

leaves no basis for finding that Hill or Valdez abandoned their professional

judgment. See Johnson, 455 F.3d at 1143–44. The allegations suggest that Hill and

Valdez investigated, but failed to substantiate concerns of, reported abuse. Hill and

Valdez are entitled to qualified immunity.

***

We hold that the children’s representatives plausibly alleged that Montano and

Griffin violated the children’s substantive due process rights under the special

relationship doctrine. But the complaint falls short for Chavez-Buie, Hill, and

Valdez.

V.

Proving that the CYFD employees violated a constitutional right is not enough

to defeat their assertion of qualified immunity. The children’s representatives must

also demonstrate “that the right was clearly established at the time of the challenged

conduct.” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (internal quotation

marks omitted). To do so, plaintiffs do “not have to show that the specific action at

issue had been held unlawful, but the alleged unlawfulness of the defendant[s’]

conduct must be apparent in light of preexisting law.” Armijo, 159 F.3d at 1260.

This inquiry typically requires plaintiffs either to identify an on-point Supreme Court

or Tenth Circuit decision establishing the unlawfulness of the alleged conduct, or to

prove that the clearly established weight of authority from other courts supports the

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plaintiffs’ assertions about the state of the law. Cummings v. Dean, 913 F.3d 1227,

1239 (10th Cir. 2019).

The court below declined to consider whether the children’s representatives

met their burden of proving the law was clearly established. The court found the

prong was not material to its decision because the CYFD employees “waived, for this

motion only, review under the clearly established prong.” App’x at 199. According

to the district court, the employees had temporarily waived review because they “did

not raise the clearly established prong” when they asserted qualified immunity. Id.

But that is not how qualified immunity works.

The district court was wrong to find the clearly established prong waived

because doing so erroneously shifted the children’s representatives’ burden to the

CYFD employees. See Estate of Vallina v. Petrescu, 757 F. App’x 648, 651 n.1

(10th Cir. 2018) (unpublished).5 When a § 1983 defendant raises qualified immunity,

as the employees did in their motion for judgment on the pleadings, the burden shifts

to the plaintiff to establish both prongs of the defense. See Cox v. Glanz, 800 F.3d

1231, 1245 (10th Cir. 2015). Even if the CYFD employees failed to argue the clearly

established prong in detail, as here, the children’s representatives still bore the

burden to demonstrate that it was met. The district court’s provisional denial of

qualified immunity, which sought to reserve the clearly established prong for later

decision, was therefore improper. The CYFD employees could not waive,

5

Unpublished cases are not binding precedent, but we consider them for their

persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.

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temporarily or not, the very defense that they asserted as grounds for judgment on the

pleadings.

We remand for the district court to conduct the clearly established inquiry in

the first instance. See Rife v. Okla. Dep’t of Pub. Safety, 854 F.3d 637, 649 (10th

Cir. 2017); see also Kerns v. Bader, 663 F.3d 1173, 1182 (10th Cir. 2011) (Gorsuch,

J.) (“[R]emanding the matter back to the district court to finish the work of answering

the . . . qualified immunity question . . . bears the advantage of allowing the

adversarial process to work through the problem and culminate in a considered

district court decision, a decision that will minimize the risk of an improvident

governing appellate decision from this court.”). The issue of whether the law is

clearly established with respect to the conduct of Montano and Griffin, although a

legal determination based on existing precedent, was only minimally briefed by the

parties on appeal and was barely briefed below. It was also unaddressed by the

district court. Now that we have clarified the specific constitutional violation by

Montano and Griffin that the children’s representatives have plausibly alleged under

the special relationship doctrine, we think the clearly established prong is best

addressed at the district court level as an initial matter. See Workman v. Jordan, 958

F.2d 332, 337 (10th Cir. 1992) (“[A]s a general rule, a federal appellate court does

not consider an issue not passed upon below.”).

VI.

We REVERSE the district court’s order denying qualified immunity to

Montano, Griffin, Chavez-Buie, Hill, and Valdez. The complaint failed to plead a

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constitutional violation by Chavez-Buie, Hill, or Valdez, so they are entitled to

qualified immunity. Although the complaint plausibly pleaded a constitutional

violation by Montano and Griffin under the special relationship doctrine, the district

court erred by denying them qualified immunity on the basis that they waived the

clearly established prong. Whether Montano and Griffin are entitled to qualified

immunity depends on whether their conduct violated clearly established law, which

the district court must determine in the first instance. We REMAND for further

proceedings consistent with this opinion.

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