Eugene D. ex rel. Olivia D. v. Karman

MERRITT, Chief Judge,

dissenting.

This case is about the protection the due process clause offers to children who are wards of the state, a case in which the majority has held that officials have no personal liability for allowing such wards to be physically abused by foster parents. The Court holds that the law which has *712 developed under the due process clause concerning wards of the state is so unclear and unformed that officials should not reasonably understand that they have a legal duty to put a stop to known and ongoing physical abuse. The Court refuses to say under due process that state officials have even the most minimal legal duties to protect such wards from physical harm. I disagree with the Court’s understanding of the law, its history and development, and its application to this case.

The majority denies Eugene D. access to federal court on the basis of two readily apparent errors. First, it provides an inadequate statement of the right asserted here. Eugene D. does not assert merely “the right of a foster child to be protected from bodily harm at the hands of a state-licensed foster parent.” Op. at 708. The state’s role here is not limited to licensure of the foster home. In addition, the state took Eugene D. out of his mother’s custody, apparently in the context of an abuse proceeding, assumed custody itself, and then bestowed custody on a foster parent of its sole selection. No one — not Eugene, not his mother, not another relative or a public-minded citizen — could transfer Eugene from his placement; that could be done only by the state. The right asserted here is the right not to be legally constrained to remain in the custody of a foster parent who, as state officials knew, continually and repeatedly provided dangerously inadequate care.

A violation of this right is proven adequately for this preliminary stage of the proceedings in this case. According to the record, the defendants, state social workers, placed the plaintiff child with a foster parent. The foster parent failed to provide decent food, clothing, medical attention and education. At age 9 the child weighed only 17 pounds and had a broken leg which had gone uncared for. The child was not bathed and was kept in filthy conditions and clothing. The defendants had knowledge of the conditions in which the child was made to exist, and they did nothing to correct the situation for many years.

Second, the majority errs when it determines that the defendants have qualified immunity from a § 1983 action asserting a right not to be committed to the care of a foster parent who, as the defendants knew, exposed the plaintiff to continual and severe danger and suffering. Here, the majority overstates the novelty of the question before it, and gives a rigid and wooden reading to the Supreme Court precedents on qualified immunity.

The last half of the Twentieth Century is hardly the first time this type of question before us today has arisen in our legal system. The rights of helpless children who are wards of the state has a history going back to the Magna Carta and beyond. The feudal “law of the land” of the Twelfth Century gave children upon the death of their parents a cause of action for abuse by a liege lord, the feudal equivalent of a state official who held office under the authority of the King. The feudal law created a series of causes of action, beginning with the writ of mort d’ancestor in 1176, which the child had against a lord or other persons for the theft of inheritance and other forms of abuse. See I Pollock & Maitland, History of English Law, Bk. II, Chap. I, § 8, at 318-29 (Lawyers Literary Club ed. (1959)); and W.L. Warren, Henry II342-48 (1977). In addition, four sections of the Magna Carta of 1215 chapters 3, 4, 5, and 37 treated the grievances of the Barons against King John for his abuse of the rights of children in connection with wardship. See McKechnie, Magna Carta 203-12, 367-69 (2d ed. 1914); Ganshoff, Feudalism 127-28 (English ed. 1952). Thus, the law of England in 1215 protected wards against abuse by the state, both through the newly developing common law writs and by the constitutional law promulgated in the Magna Carta.

Should the “due process of law” of the Twentieth Century for the protection of helpless children from official abuse be less attentive in its protection than the “law of the land” in the time of Glanvillé, Henry II and the Magna Carta? If the law against such official child abuse was sufficiently clear then to have been declared as the law of the realm at Runnymede, “the contours *713 of the right must be sufficiently clear [to] a reasonable official” today to provide minimal protection, Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987). One need not be a scholar of the Magna Carta or the law in the time of Henry II to see the irony in saying that the law of the land against official child abuse was settled in the formative years of our legal system eight centuries ago, but as the system has advanced, the protection of children in wardship to the state has regressed. The law is surely capable of more continuity and more humanity than that.

Our court has held that the defendant officials are immune in this suit, freeing them of any legal responsibility whatsoever for the welfare of the child they took into custody and placed in the foster home. The major premise of the Court’s opinion by which this result is reached is certainly correct as far as it goes: neither the Supreme Court nor our Court has yet specifically ruled that foster children generally, or foster children held in custody under Kentucky’s particular foster care system, are protected by the due process clause. There is no case in the Supreme Court or in our Court on foster care which specifically establishes “deliberate indifference” or “reckless disregard” or “gross negligence” or any other particular set of words as the standard of a ward’s substantive due process rights.

But the reason that neither of the two Courts has yet reached such a decision is simple: we have not had a case that presented the issue of care in the specific context of foster care. Thus, there are no cases which specifically say that foster children are not protected under substantive due process. The cases from the two Courts have not expressly decided the issue either way.

Counsel for plaintiff at page 27 of her brief points out concisely the fundamental error in the position of the defendants which our Court has now adopted:

In essence, defendants [and the court] argue that unless the factual situations in the two cases are identical, the holding of one case can never be applied to the other. Of course, no such requirement exists. Instead courts look to the principles underlying a holding to determine its relevance to subsequent cases.

Our Court has erred by asking the wrong question and therefore made the case turn on the wrong major premise. Instead of asking a narrow question — is there a specific or identical case on foster care? — the Court should have asked: is there a principle of substantive due process well established in our legal conscience that covers a person held in state custody, including a foster care child? The answer to that question is yes.

In DeShaney v. Winnebago County Dep’t of Social Services, — U.S. -, 109 S.Ct. 998, 1005-06 , 103 L.Ed.2d 249 (1989), the Supreme Court in dicta said in a foster care case that it had previously found in our legal conscience and declared a principle of reciprocity which covers the subject:

When the state takes a person into its custody and holds him there against his will the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.

The Court explained the moral basis of this principle:

The rationale for this principle is simple enough: when the state by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care and reasonable safety— it transgresses the substantive limits on state action set by the eighth amendment and the due process clause.

The plaintiff argues that this fundamental master principle is applicable to wards of the state placed with foster parents, and I agree.

There are many eases respecting mental patients, pretrial detainees, prisoners, and juvenile delinquents which establish the principle that state officials may not remain completely indifferent to the health and safety of persons detained in state *714 custody. The principle applies not only to prisoners under the Eighth Amendment, Estelle v. Gamble, 429 U.S. 97 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976), and arrestees under due process, Fitzke v. Shappell, 468 F.2d 1072 (6th Cir.1972), but also to mental patients, Youngberg v. Romeo, 457 U.S. 307, 315-16 , 102 S.Ct. 2452, 2457-58 , 73 L.Ed.2d 28 (1982) (“if it is cruel and unusual to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed — who may not be punished at all — in unsafe conditions”). As the majority acknowledges, the Second Circuit has applied the same principle to foster care. Doe v. New York City Dep’t of Social Services, 649 F.2d 134 (1981). Neither the majority nor I find any appellate case, other than the instant case, which rejects the principle in the context of foster care.

Furthermore, no court before today has been convinced that, simply because the state chooses to place a helpless child in a foster home rather than in a state-operated institution, and persists in holding him to that custody despite ongoing harm, the concept of fundamental decency and reasonable care expressed in Youngberg has no application. Indeed, the Supreme Court suggested in Youngberg that mental patients are not confined for punishment’s sake and therefore “are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg, 457 U.S. at 322 , 102 S.Ct. at 2461 (emphasis added). An irony of our Court’s decision in the instant case is that, because the plaintiff is a helpless child placed in foster care through no fault of his own, rather than an adult felon, he is not entitled even to minimal due process protection. Such a result is not only inhumane but inconsistent with the rationale of the applicable precedents.

In order to meet the test of “law” for purposes of qualified immunity “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 107 S.Ct. at 3039 . The Supreme Court could have defined “clearly established” in the immunity context as the majority in this case has defined it, to mean “so clearly declared in existing case law that no court, advocate or legal scholar could question its existence.” But the Supreme Court did not so define “clearly established.” Instead, the Supreme Court’s test asks us whether the right asserted is so clear that reasonable officials — in this as in most cases, non-lawyer officials — would understand their actions to violate that right. We are to look to the legal conscience of state officials, not to the cold pages of Shepard’s or the Harvard Law Review.

With our case thus placed in the proper context, it is quite surprising to hear that officials have no duty to take reasonable steps to put a stop to continuous and unnecessary suffering caused by their actions or no obligation to give reasonable aid to those they have taken into their care, or both. Here the right arises from both the duty not to cause unnecessary suffering to a helpless child and the obligation to give aid to children under official control. The history of wardship and the recent precedents discussed above, as well as clear moral principles, make the “contours of the right” clear enough to put reasonable officials on notice.

The Court leads itself into today’s erroneous ruling by taking an inflexible positivist position. It takes the view that law consists of the specific commands of the sovereign and nothing more 1 and that, since neither the Supreme Court nor the Sixth Circuit has ruled on a foster care case, there is no law on the subject. The *715 Court fails to take into account that our law is also found in social contract, in principles of morality generally accepted by our people. The principle that children who are wards of the state deserve special protection describes an objective moral and legal reality. Had the inflexible positivist position stated in the majority opinion governed at the Nuremberg trials, those responsible for the atrocities in the gas chambers would have had no legal liability for their conduct. The Court would have said that, in the absence of a statute or case precedent directly on point, the law was too unclear to impose liability.

I do not find in Anderson v. Creighton or in previous official immunity cases an inflexible positivist legal ethic which excludes consideration of history or the legal and moral principles developed over time in analogous cases. I see no reason to blind ourselves to the moral reality that condemns the conduct alleged here, or to feel compelled to distinguish numerous analogous precedents which would, to the legal conscience of a reasonable official, be directly relevant. We should not make our decision turn purely on the question of whether there is an identical case previously decided by the Supreme Court or our Court. Accordingly, I respectfully dissent.

. The classic statement of the positivist position is found in the statement of Justice Holmes:

If you want to know the law and nothing else, you must look at it as a bad man who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.

I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.

Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 459-61 (1897).