Petition for Writ of Certiorari — Waubanascum v. Shawano County

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whether Fry had committed any type of crime after receiving

his license. [App. F-14]?

On October 21, 1995 (after the Petitioner had been

placed in the Fry foster home), Shawano County Deputy

Sheriff Randall Giese was called to the emergency room at

the Shawano County Community Hospital to investigate the

possible drugging and sexual assault of a minor. [App. F-15]

The minor reported that, while visiting Mark Fry's home the

night before, he drank some juice, after which he went

upstairs to bed because he felt groggy and believed he had

dreamed that Fry was “messing” with him. !App. F-16] The

minor also reported that he believed that Fry had rubbed his

penis on his leg, and that Fry had touched his genitals. [App.

F-16] Officer Giese contacted an intake worker at the

Shawano County Department of Social Services to report the

drugging and sexual assault allegations against Fry. [App. F-

17] Officer Giese believes he had other conversations with

representatives of the Shawano County Department of Social

Services regarding the October 21, 1995 incident. [App. F-

18] No action was taken by Shawano County to remove the

Petitioner from the Fry home, or to revoke or suspend Fry's

license.

Beginning in December 1995, the Petitioner began to

have dreams about Fry fondling him, masturbating in his

presence, attempting to force him to perform oral sex on Fry,

and attempting to penetrate his anus. [App. F-26, F-31 to F-

32] In addition to other incidents, during a trip to

Albuquerque, New Mexico, Fry ordered a pornographic

* As of September 24, 2001 (the date when Ronald Stuber signed

responses to written interrogatories on behalf of Shawano

County), Stuber did not know whether a criminal background

check had ever been conducted on Fry in connection with his

application for a license, or what the results of any such check

may have been. [App. F-13 to F-14]

movie from the hotel im which he and the Petitioner were

staying, and attempted to have intercourse with the

Petitioner. [App. F-27, F-32 to F-33] Fry pulled down the

Petitioner's pants, and climbed naked into the Petitioner's

bed. [App. F-32 to F-33] The Petitioner locked himself in

the bathroom, and when he returned, Fry had his legs in the

air and again asked the Petitioner to have intercourse with

him. [App. F-33]

The Petitioner was finally removed from Fry's home

in February 1996 after reporting the abuse to his

grandmother and his cas. worker. Fry was charged

criminally for his abuse of the Petitioner and the other minor,

and is presently serving out his sentence in the Oshkosh

(Wisconsin) Correctional Facility.

At trial, the jury heard extensive testimony from

Ronald Stuber and from Richard Kane, the Deputy Director

of the Shawano Department of Social Services, regarding the

foster care licensing process. Mr. Kane testified that Fry

would never have been issued a foster care license had

Shawano County been aware of his criminal background in

the State of Illinois, arising out of his nocturnal activities in

the “Ninja” costume. [App. F-6]

Ronald Stuber testified that Chapter 48 of the

Wisconsin Statutes specifically mandates a child’s right to be

placed in a safe and secure home that is free from physical,

sexual, or emotional injury or exploitation. [App. F-41] He

further testified that the requirements of HSS 56 of the

Wisconsin Administrative Code are in place for the specific

purpose of verifying whether or not prospective applicants

are qualified to receive a license. [App. F-41 to F-42] When

asked if the shortage of foster parents alleviates the need to

make sure that foster homes are suitable for children, Stuber

replied “Of course not...That is why you want to do an

extensive study, to insure the safety of children.” [App. F-

41] He acknowledged this same duty would apply, even in

the absence of a statute directing such a study. (App. F-41]

In response to the question of whether his agency’s

obligation ended when it obtained the criminal background

authorization, Stuber responded “We have to do more...We

have to do all we can.” (App. F-45] He also testified that

Shawano County had the authority to remove the Petitioner

from Fry’s home for his protection at any time. [App. F-39]

Shawane-County moved for judgment as a matter of

law at the close of the plaintiff's case, which was denied by

the District Court. [App. F-33 to F-35] After the verdict,

Shawano County filed another motion for judgment as a

matter of law, or alternatively, for a new trial, which was

denied by the District Court in a Decision and Order dated

August 24, 2004. [App.C] The District Court concluded

that Shawano County had a special relationship to the

Petitioner, and therefore an affirmative duty to protect him

from harm, which it failed to do. [App. C-4]

The District Court futher found that the evidence at

trial established that Shawano County had a ‘ong-standing

custom of granting licenses at the request of other counties

without conducting investigations of the applicants, and that

this custom was authorized by Shawano County’s policy-

making official. [App. C-5] The District Court found that

the laws and regulations of Wisconsin specifically mandate

Shawano County's duties to children placed in foster homes

in Shawano County: “(T]he policy of not conducting an

investigation insured that the Defendant would not have

knowledge of a potential foster parent's criminal history

background.” [App. C-6] Because Ron Stuber, Shawano

County’s policy-maker, acknowledged that foster children

are threatened by harm when adequate checks are not

conducted, the District Court concluded that “the Defendant

cannot be absolved of liability for lack of knowledge at the

policy making level.” {App. C-6, citing Canton v. Harris,

489 U.S. 378 (1989)]

With respect to the sexual assault allegations reported

by Officer Giese to Shawano County, the District Court

found that the jury could reasonably infer from this evidence

that Shawano County had no procedures or requirements for

notification of superiors when such allegations were made

against foster parents licensed by Shawano County, which

exhibited deliberate indifference on the part of Shawano

County and its policy-making officials to the safety of foster

children. [App. C-8 to C-9}

Shawano County appealed, and on August 1, 2005,

the Seventh Circuit Court of Appeals reversed the District

Court’s denial of Shawano County's motion for judgment as

a matter of law, and vacated the judgment of the District

Court entered on the jury's verdict.

REASONS FOR GRANTING THE PETITION

Several lower courts have issued varying opinions on

the constitutional rights of foster children in a variety of

contexts. However, this Court has not specifically addressed

the constitutional rights of foster children, and governmental

duties toward those children.

Here, the lower court reversed a jury verdict finding

that a county's policy, practice, and custom with respect to

issuing and monitoring foster care licenses was deliberately

indifferent to the constitutional rights of the Petitioner, a

foster child who was sexually abused by his foster parent.

The Petitioner submits that the lower court disregarded

material evidence, in violation of the Fed. R. Civ. P. 50

standard for reviewing jury verdicts. Consequently, the

Petitioner moves this Court to grant the petition for a writ of

certiorari to protect the standard of review of Rule 50

motions by the lower courts.

Furthermore, the appropriate care and protection of

foster children, who depend on the state for their care and

protection, is an issue of critical national importance.” It is

imperative that the lower courts, and children and state

actors within the foster care system, obtain clear, certain, and

uniform guidance as to the duties and responsibilities of

those entrusted with the care and protection of foster

children.

* According to data collected from the Adoption and Foster

Care Analysis and Reporting System, in the year 2001, 290,000

children entered the foster care system in the United States.

National Clearinghouse on Child Abuse and Neglect Information

(DHHS), Foster Care National Statistics, 2003 (National

Clearinghouse on Child Abuse and Negiect Information website,

(http://nccanch.acf .hhs.gov/pubs/factsheets/foster.cfm). According to

Child Maltreatment 200] , 0.5% of perpetrators of abuse or neglect

were foster parents, which equates to an estimated 4,239

perpetrators and 5,133 instances of abuse or neglect in 2001. /d.

More alarming statistics were summarized in a recent law review

article. A survey concluded that the rates of abuse of children in

foster care were up to ten times higher than that of children in the

general public. Another study concluded that, after accounting for

unreported or uninvestigated cases, “forty-three percent of

children studied had been placed in unsuitable foster homes, and

that fifty-seven percent...were at serious risk of harm while in

foster care.” See Christine M. Dine, “Protecing Those who Cannot

Protect Themselves: State Liability for Violation of Foster

Chidlren’s Right to Safety,” 38 Cal. W.L. Rev. 507, 509-510

(Spring 2002) (citing Michael B. Mushlin, Unsafe Havens: The

Case for Constitutional Protection of Foster Children from Abuse

and Neglect, 23 Harv. C.R.-C.L. L. Rev. 199, 206-07 (1988)).

1. THE DECISION BELOW CONFLICTS

WITH THE STANDARD OF REVIEW FOR

RULE 50 MOTIONS ESTABLISHED BY

THIS COURT.

Motions for judgment as a matter of law may be

granted “if there is no legally sufficient evidentiary basis for

a reasonable jury to find for the non-moving party on the

issue.” Fed. R. Civ. P. 50. Upon renewal of the motion after

verdict, the trial court may allow the judgment to stand,

order a new trial, or direct entry of judgment as a matter of

law. Here, the Court of Appeals noted that “attacking a jury

verdict is a hard row to hoe.” Waubanascum, 416 F.3d at

670 (citation omitted); [App. A-19] Nevertheless, the Court

vacated the jury's verdict, which had been approved by an

experienced trial judge following motions after verdict. In

doing so, the Court of Appeals disregarded the well-

established Rule 50 standards, and improperly ignored

material evidence heard by the jury.

This Court has commented on numerous occasions

regarding the sanctity of jury verdicts, and the principles of

appellate review under Rule 50 are well-established. “The

jury's factual determinations as a general rule are final.”

Edmonson v. Leesville Concrete Co., 500 U.S. 614, 625

(1991). Furthermore, “[ojnly when there is a complete

absence of probative facts to support the conclusion reached

(by the jury) does a reversible error appear.” Lavender v.

Kurn, 327 U.S. 645, 653 (1946). In Denesha v. Farmers

Ins. Exchange, 161 F.3d 491, 497 (8th Cir. 1998), cert

denied, 526 U.S. 1115 (1999), the Eighth Circuit recently

articulated the applicable standard of review as follows:

In reviewing a denial of a motion for

judgment as a matter of law, we must (1)

consider the evidence in the light most

favorabie to [the plaintiff], (2) assume that all

conflicts were resolved in favor of [the

plaintiff}, (3) assume as proved all facts that

[the plaintiff's] evidence tended to prove, (4)

give [the plaintiff] the benefit of all favorable

inferences that may reasonably be drawn from

the proved facts, and (5) deny the motion

unless all the evidence points one way andis ~

susceptible of no reasonable inferences

sustaining [the plaintiff's} position.

Here, the Court of Appeals found that there was no

evidence supporting the conclusion that Shawano County

owed any constitutional duty to the Petitioner. The case was

submitted to the jury on the issue of Shawano County’s

policy, practice, and custom regarding foster care licenses

issued at the request of other counties and its follow. up post-

issuance. Consequently, the jury was required to analyze the

case under the principles of Monell v. Department of Social

Services of the City of New York, 436 U.S. 658 (1978), and

its progeny.

In its decision, the Court of Appeals applied a

“modified deliberate indifference” standard, relying on K.H.

through Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990),

J.H. ex rel. Higgin v. Johnson, 346 F.3d 788 (7th Cir. 2003),

and Lewis v. Anderson, 308 F.3d 768 (7th Cir. 2002).* These

* Other circuits have applied the “professiona! judgment standard,”

set forth in Youngberg v. Romeo, 457 U.S. 307, 314 (1982), in

foster care settings. See Yvonne L. ex rel. Lewis v. New Mexico

Department of Human Services, 959 F.2d 883, 892 (10th Cir.

1992); Winston v. Children and Youth Servs. of Delaware County,

948 F.2d 1380 (3rd Cir. 1991), cert. denied, 504 U.S. 956 (1992);

see also T.M. ex rel. Cox v. Carson, 93 F. Supp. 2d 1179 (D.

Wyo. 2000), citing Wendy H. v. City of Philadelphia, 849 F.Supp.

367, 371-72 (E.D. Penn. 1994) (noting that the defendants’

suggestion that they could not be liable unless they knew or

cases provide that, to be liable in a foster care context,

individual state actors must know of or suspect a specific

risk facing a child, and consciously ignore it or fail to stop

abuse once it is discovered.

The present case involves a claim against Shawano

County itself, based on its policy, practice, and custom, and

that was the issue submitted to the jury. A municipal policy

choice which exhibits deliberate indifference to the rights of

its citizens is an actionable policy. See Canton v. Harris,

489 U.S. at 389; Collins v. City of Harker Heights, Tex.,

503 U.S. 115, 124-28 (1992)(noting that a City may be

liable when a policy or practice causes the constitutional

injury even if no individual officer is found constitutionally

liable); Stoneking v. Bradford Area School Dist. , 882 F.2d

720, 725 (3rd Cir. 1989), cert. denied, 493 U.S. 1044

(1990)(“Nothing in [DeShaney v. Winnebago County)

suggests that state officials may escape liability arising from

their policies maintained in deliberate indifference to

actions taken by their subordinates.”); Ruge v. City of

Bellevue, 892 F.2d 738, 742 (8th Cir. 1989) (“We deem a

policy, if adopted and proven, that would show a city

actively pursued conduct which was deliberately indifferent

to the constitutional rights of its citizens, would reach

suspected that the foster child was being molested would

encourage an “ostrich” approach to placement of foster children).

As the District Court's decision herein implied, it would be

impossible for a municipality's policy-makers to ever learn of any

disqualifying information regarding an applicant if they failed to

conduct any background check or monitor the licensee/placement.

The Wisconsin Supreme Court has expressly held that the

professional judgment standard controls the issue of liability in

safe placement cases under applicable Wisconsin law. Kara B. v.

Dane County Dept. of Human Serv. , 205 Wis. 2d 140, 160, 555

N.W.2d 630, 638 (Wis. 1996).

constitutional dimensions and be actionable under the Civil

Rights Act.”).

This is precisely what the jury determined in this

case, and there was ample evidence in the record to support

that conclusion. Based on the evidence, the jury concluded

that Shawano County's policy was enacted and followed

with deliberate indifference to the safety of foster children.

In the process of usurping the jury's function, the Court of

Appeals disregarded the bulk of the evidence supporting the

jury's conclusion.

The jury heard extensive testimony from Shawano

County's own witnesses regarding the known risk posed to

foster children if appropriate background checks were not

completed. However, Shawano County never followed the

Statutory requirements regarding background checks when

issuing foster care licenses at the request of another county.

Ronald Stuber testified that thorough checks were vital to

protect foster children, even in the absence of legislation

specifically mandating such checks. Yet, he also conceded

(after repeated questioning by plaintiff's counsel and the

District Court itself) that he had a practice of issuing licenses

prior to the completion of the criminal background checks on

the prospective applicant. [App. -42 to F-45]

When an element of a claim is whether a state actor

knew of the existence of a particular risk of injury, a jury

may infer that the requisite knowledge existed from facts that

demonstrate that the particular risk was obvious. See, e.g.

Farmer v. Brennan, 511 U.S. 825, 842 (1994); Hall v.

Bennett, 379 F.3d 462, 465 (7th Cir. 2004) (jury may infer

knowledge of obviousness of risk based on professional

status of official). In addition, the jury could infer deliberate

indifference to the Petitioner's welfare from a pattern of

omissions revealing deliberate inattention to specific duties

imposed for purposes of safeguarding foster children. See

Doe v. New York City Dept. of Social Services, 649 F.2d

134, 145 (2nd Cir. 1981).

Based on the evidence presented to the jury, Shawano

County officials were clearly aware of the vulnerability of

foster children, and the risk of harm they face. However, its

policy-making official sanctioned a policy whereby licenses

were issued by Shawano County without verifying that the

appropriate safety and criminal background checks had been

completed. In other words, not only could the jury infer that

the risk posed by the policy was obvious, the jury was

presented with testimony that th« »olicy-maker for Shawano

County was specifically aware ot the risk; thus, the jury had

every right to conclude that Shawano County chose to ignore

that risk.

The jury also heard evidence that Shawano County

had received actual notice of sexual assault allegations by a

minor child against its licensee. Shawano County therefore

.had the duty to investigate and remove the Petitioner from

Fry's home, and to revoke or suspend Fry’s license, but

deliberately failed to do so until after Fry had abused the

Petitioner.

Fry was licensed to care for one foster child, at the

specific request of Menominee County. Therefore, the jury

could infer that Shawano County officials had knowledge

that a foster child would be placed in Fry's home. Such

licenses were specifically granted so that the licensed home

could be used by the requesting county.” See Delaney v.

* Stuber testified that Shawano County became involved in the

process of licensing Mark Fry because: “Basically at the time

someone is seeking to place a child, after a period of time [the

prospective foster parent has] to be licensed as a foster parent.”

[App. F-39] Shawano County knew that Menominee County

intended to place a child in the Fry home, as Menominee County

DeTella, 256 F.3d 679, 686 (7th Cir. 2001)(an inmate who

brought Eighth Amendment claim was only required to

establish that defendants acted with deliberate indifference to

all members of a class of which he was a member, rather

than that they were aware of his status as the most likely

victim),

Shawano County's witnesses repeatedly testified that

Menominee County, not Shawano County, was responsible

for monitoring the Fry foster home. Based on this testimony,

the jury drew the reasonable inference that Shawano County

officials failed to take any action when confronted with

knowledge of allegations against its licensee because of

Shawano County's policy of exclusive reliance on the

requesting county to investigate prospective foster parents

and to monitor homes licensed by Shawano County. The

jury was entitled to infer that Shawano County officials were

deliberately indifferent to the known risk posed by Mark Fry

to his foster child as a result of Shawano County’s policy.®

As the District Court noted, the jury could also reasonably

infer from this evidence that Shawano County had no

procedures or requirements for reporting or investigation of

would not have requested the license unless it intended to place a

child in the home.

6 Despite Stuber’s testimony admitting a duty to do everything

possible to protect foster children from harm, the Court of Appeals

concluded that there was no evidence indicating that Shawano

County was required to monitor the license. 416 F.3d at 670;

[App. A-18]. However, A.R. Vinent-Cantoral, the Petitioner's

expert, criticized Shawano County for failing to investigate the

sexual assault allegations against Fry, and to remove

Waubanascum from Fry's home until such an investigation was

complete, consistent with duties imposed under Chapter 48

(Wisconsin Statutes) and HSS 56 (Wisconsin Administrative

Code). [App. F-30 to F-31} The Court of Appeals ignored this

testimony.

abuse allegations when made against foster parents licensed

by Shawano County, again exhibiting deliberate indifference

on the part of Shawaro County and its policy-making

officials to the safety of foster children. [App. C-6] See

Canton, 489 U.S. at 378 (failure to promulgate a policy may

demonstrate deliberate indifference and be grounds for

liability under § 1983).

Alternatively, the jury could infer that officials from

Shawano County were in fact advised of the abuse

allegations, but failed to take appropriate action to protect

the foster child. See Farmer, 511 U.S. at 842 (jury may infer

knowledge from circumstantial evidence alone); Delaney,

256 F.3d at 685 (jury may infer from surrounding

circumstances that officials had been exposed to information

regarding a risk). The jury was permitted to infer that

Stuber or Kane had actual knowledge of the sexual abuse

allegations leveled against Fry by another minor, but failed

to take any action. While the Court of Appeals noted that

both Stuber and Kane denied knowledge of this incident

prior to April 1996, it is the jury's role, not that of an

appellate court, to assess the credibility of witnesses. See

Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133,

151 (2000)(the district court can disregard all evidence

favorable to the moving party that the jury is not required to

believe); Courtney v. Biosound, Inc., 42 F.3d 414, 424 (7th

Cir. 1994) (it is the function of the trier of fact to choose

among competing inferences and to make credibility

determinations).

The Seventh Circuit's myopic view of the evidentiary

record, and its application of the controlling Supreme Court

precedent to that record, did not comport with the applicable

Rule 50 standards, and must be reversed.

Il. THE DECISION BELOW CONFLICTS

WITH DECISIONS OF OTHER CIRCUITS

APPLYING THE EXCEPTIONS SET

FORTH IN DESHANEY V. WINNEBAGO

COUNTY.

Even assuming that the Petitioner was required to

establish a constitutional duty vniquely owed to the

Petitioner by Shawano County (above and beyond the duty

not '* pursue a policy which was deliberately indifferent to

the safety of foster children), precedent and the evidence

establishes that such a duty existed.

The substantive due process right to personal security

and bodily integrity is sacrosanct. This Court has recognized

this constitutional right in variety of contexts. See, e.g.,

Ingraham v. Wright, 430 U.S. 651, 673 (1977) (declaring that

“{almong the historic liberties” protected by the Due Process

Clause is the right to be free from “unjustified intrusions on

personal security”)(footnote omitted).

In DeShaney v Winnebago County Dept. of Social

Services, 489 U.S. 195 (1989), this Court held that the state

generally has no affirmative duty to protect an individual

from private harm. However, this Court expressly

recognized two exceptions to this general rule, namely that

the Constitution imposes an affirmative duty of care and

protection in circumstances where the state and the

individual have a “special relationship,” such as a custodial

relationship, or when the state has created or enhanced a

dangerous situation.

Several courts have recognized a child's

constitutional right to be placed in a safe and secure foster

home. See K.H. through Murphy v. Morgan, 914 F.2d 846

(7th Cir. 1990); Ray v. Foltz, 370 F.3d 1079, 1082-83 (11th

Cir. 2004) (recognizing foster child's right to reasonable

safety while in foster care); Yvonne L. ex rel. Lewis v. New

Mexico Department of Human Services, 959 F.2d 883, 892

(10th Cir. 1992) (foster children have a constitutional right

to be reasonably safe from harm, such as sexual

molestation).

Here, the Court of Appeals analyzed the “special

relationship” exception and the “state created danger”

exception in isolation from each other. The Court

unambiguously, but erroneously, concluded that Shawano

County could not be held liable under the special relationship

exception to the DeShaney rule because Menominee County

had “custody” of the Petitioner. In other words, under this

analysis, absent a “legal” custodial relationship, there can be

no “special relationship” imposing a duty on the state to

protect a foster child from harm. This conclusion conflicts

with decisions from other circuits, and ignores the plain

evidence that Shawano County issued the foster care license

to effectuate the custodial relationship of the Petitioner,

pursuant to state foster care law. Without such issuance,

placement of the Petitioner would have been illegal.

Circuits have found that diverse factual

circumstances, including but not expressly limited to

custodial settings, may give rise to “special relationships”

between the state and an individual and corresponding duties

to protect the individual from danger to his or her safety or

bodily integrity. See Horton v. Flenory, 889 F.2d 454, 458

(3 Cir. 1989) (holding that the state owed a duty to a suspect

in private club based on functional custody by police

officer); Wells v. Walker, 852 F.2d 368, 370 (8th Cir. 1988),

cert denied, 489 U.S. 1012 (1989) (holding that when state

transported a released prisoner to the victim's store, that

“transportational link” placed the victim in a custodian-like

unique, confrontational encounter with person with violent

tendencies, thus creating a “special relationship” and duty to

protect).’

Therefore, an affirmative duty to protect can arise

outside of traditional custodial situations, and the Seventh

Circuit's exclusive emphasis on Menominee County's

conduct improperly ignored the special relationship between

the Petitioner and Shawano County, inherent in Shawano

County's licensing mandate under state law.

Furthermore, the “state created danger” exception

must be examined in the overall context of Shawano

County's actions, and inaction, in this case. Significantly,

this Court noted in DeShaney that the state, through its social

workers, played no part in the creation of the danger facing

the plaintiff, thus indicating that the state’s role in creating or

enhancing danger was a vital factor in the analysis.

DeShaney, 498 U.S. at 201 (“When the [state] returned [the

plaintiff] to his father’s home, it placed him in no worse

position then that in which he would have been had not acted

at all...”)

’ The present case is analagous to the situation in Wells v. Walker,

wherein the Court determined that a special, quasi-custodial

relationship existed between the police officers and the victim.

The evidence for such a relationship is much stronger here because

Shawano County created the danger faced by the Petitioner when

it issued the license, and subsequently had the opportunity to

protect the Petitioner by removing him from the home prior to his

being sexually assaulted on numerous occasions.

* Perhaps the most precise statement of the “state created danger”

theory of liability was that of the Seventh Circuit Judge Posner in

Bowers v. De Vito, 686 F.2d 616, 618 (7th Cir. 1982): “If the state

puts a man in a position of danger from private persons and then

fails to protect him, it will not be heard to say that its role was

merely passive; it is as much an active tortfeasor as if it had

thrown him into a snake pit.” This formulation was subsequently

recognized by this Court in DeShaney.

Here, the evidence establishes that Shawano County

had a special relationship with the Petitioner, and a

corresponding duty to protect him from harm. Shawano

County, as a political subdivision of the State of Wisconsin,

was authorized to issue foster care licenses, to take foster

children into protective custody, and was required to comply

with legal safeguards to protect foster children from harm.

As the District Court noted, the specific purpose of Chapter

HSS 56 of the Wisconsin Administrative Code is to protect

the health, safety and welfare of children placed in foster

home. [App. C-4, E-1] Consequently, the District Court

concluded that a special relationship existed between the

Petitioner and the State of Wisconsin and its subdivisions.

[App. C, p. 4-5]

As the county of residence of the foster parent,

Shawano County was the only entity authorized to license

the foster parent. Absent Shawano County’s granting the

license to Mark Fry, the Petitioner would not have been

placed in his care, providing Fry with the opportunity to

assault the Petitioner. Without Shawano County’s issuance

of the license, there would have been no Fry foster home,

and no placement. Additionally, if Shawano County had

revoked or suspended the license after receiving news of the

allegations against Fry, there would have been no abuse.

As the licensing agency, Shawano County was

required to comply with the applicable statutes and

regulations regarding the licensing process specifically

intended to protect foster children from harm. Although

state law violations, by :hemselves, do not rise to the level of

a claim under 42 U.S.C. § 1983, the existence of laws

designed to protect specific individuals can, as here, give rise

to a constitutionally protected liberty interest, and expressly

informs the issue of whether a special relationship exists

between the Petitioner and Shawano County, especially in

light of a foster child's right to be placed in a safe and secure

foster home. See Youngberg v. Romec, 457 U.S. at 317

(discussing the duty of the state arising from the dependency

of the individual on the state for care and protection);

White v. Rochford, 592 F.2d 381, 385, n.6 (7th Cir. 1979) (the

policy of statutes to protect children, when considered in the

context of the function of the police, supports the existence

of an affirmative duty to protect children endangered due to

the performance of police duties).

Shawano County had a duty to investigate Mark

Fry’s background, and to investigate the abuse allegations

against him which surfaced after it had issued the license.

The jury was free to infer that Shawano County officials

were aware of the risks posed by its conscious disregard of

its duties, but chose to ignore them. In doing so, Shawano

County created the risk of harm to the Petitioner, who was

placed in a home licensed by Shawano County, and further

enhanced that risk by failing to suspend Fry’s license and

remove the Petitioner from his care.

In this context, the Court of Appeals’ reliance on

Ruiz v. McDonnell, 299 F.3d 1173 (10th Cir. 2002), cert.

denied, 538 U.S. 999 (2003), is misplaced. In Ruiz, an

employee of a State licensed day care center abused the

plaintiff's child. The Court of Appeals concluded that the

licensing of Fry, like the licensing of the day care center in

Ruiz, did not create an immediate danger of harm, but rather

a danger to the public as a whole. However, the present case

does not involve a random injury to a random citizen, or a

license issued to a day care facility whose multiple

employees would be caring for a number of children over an

extended period of time. Fry was licensed to care for one

foster child. The jury could infer that Shawano County

officials had knowledge that a foster child would be placed

in Fry’s home within a short time after the license was

issued, and knew that a specific child had been placed by the

time that the allegations of drugging and sexual assault were

made against Fry by another minor. Unlike the present case,

there was no allegation that the state actors in Ruiz had

notice of the danger posed by the employee of the day care

center, but nevertheless failed to take any action to stop

abuse at the hands of the employee. Here, the licensing of

Fry (an unqualified foster parent), given Shawano County's

failure to undertake any pre-licensing investigation, posed an

immediate threat of harm to the one identifiable child placed

in his care, the Petitioner, Nahquaseh B. Waubanascum.

Therefore, Shawano County owed a constitutional

duty to the Petitioner, which it violated.

CONCLUSION

For the foregoing reasons, the Petitioner submits that

the petition for a writ of certiorari should be granted.

Respectfully submitted,

Lawrence G. Albrecht

Counsel of Record

First, Albrecht, & Blondis, s.c.

Broadway Theatre Center

158 North Milwaukee, Suite 600

Milwaukee, WI 53202-6015

(414) 271-1972

(414) 271-1511 (Fax)

Terry J. Gerbers

Deron J. Andre

Gerbers Law Offices, S.C.

2270 Holmgren Way, Suite A

Green Bay, WI 54304

(920) 499-5700

(920) 499-9790 (Fax)

Attorneys for Petitioner

Supreme Court of the Gnited States

NAHQUASEH B. WAUBANASCUM,

Petitioner,

SHAWANO COUNTY,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

APPENDIX

Lawrence G. Albrecht Terry J. Gerbers

Counsel of Record Deron J. Andre

FIRST, ALBRECHT & GERBERS LAW OFFICES, S.c.

BLONDIS, S.c. 2270 Holmgren Way, Ste A

158 N. Broadway, Ste 600 Green Bay, WI 54304

Milwaukee, WI 53202 (920) 499-5700

(414) 271-1972 (920) 499-9790 (Fax)

(414) 271-1511 (Fax)

Attorneys for Petitioner

LANTAGNE LEGAL PRINTING

80) East Main Street Suite 100 Richmond, Virginsa 23219 (800) 847-0477

APPENDIX

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District Court’s Decision dated March 9, 2004 ............cc000 B

District Court Decision dated August 24, 2004.0... >

Decision and Amended Judgment dated August 24, 2004 ..D

Relevant Portions of Chapter HSS 56

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Portions of the Trial Transcript .............-c-cceccseceerscscersesesesnees F

A-l

In the

United States Court of Appeals

For the Seventh Circuit

No. 04-3290

NAHQUASEH B. WAUBANASCUM,

Plaintiff-Appellee,

SHAWANO COUNTY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01-C-111—Thomas J. Curran, Judge.

Argued January 20, 2005 ~— Decided August 1, 2005

Before FLAUM, Chief Judge, .nd BAUER and KANNE,

Circuit Judges.

KANNE, Circuit Judge. Nahquaseh Waubanascum was

placed into foster care in the Shawano County, Wisconsin,

home of Mark Fry. Tragically, Waubanascum suffered

sexual abuse at Fry’s hands. Waubanascum brought a 42

U.S.C. § 1983 claim against Shawano County, alleging that

the county deprived him of substantive due process when it

issued a “courtesy” foster care license to Fry. A jury returned

a verdict in Waubanascum’s favor, and the district court

entered judgment thereon against the county. We conclude,

however, that Shawano County owed no constitutional duty

to Waubanascum and thus is entitled to judgment as a matter

of law. Accordingly, we vacate the judgment of the district

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court and direct that judgment be entered in Shawano

County's favor on remand.

1. Background

A tragic series of circumstances brought Nahquaseh

Waubanascum into the vile clutches of Mark Fry.

Waubanascum was raised by his grandparents on the

Menominee Indian Reservation in Wisconsin. Waubanascum

had a troubled childhood. In 1995, when Waubanascum was

around fifteen years old, he stole a car and went for a

joyride. Menominee County subsequently took legal custody

of Waubanascum, removed him from his grandparents’

home, and deposited him in a series of group homes for

boys.

At the time, Fry was the principal at the Menominee

Indian Junior/Senior High School. Fry befriended

Waubanascum and visited him in the group homes for a

time. Eventually, Fry suggested that Waubanascum come to

live as a foster child in his home, and Waubanascum agreed.

One wrinkle was that Fry's home was located not in

Menominee County, which had custody of Waubanascum,

but just across the line in neighboring Shawano County.

Accordingly, Fry submitted his foster care application to

Menominee County, not Shawano County.

Menominee County processed Fry's foster application in

accordance with its standard procedure. As with all such

applications, the process was lengthy and detailed. Among

other things, the county constructed a foster home study,

which involved several home visits to evaluate the physical

condition of Fry's home. The process also entailed a number

of interviews to determine whether Fry would be a suitable

foster parent. The interviews evaluated Fry's views on

various topics, including parenting, education, and

A-3

supervision. A Menominee County representative met with

Fry at least three times for a total of eight to ten hours.

The resulting home study described Fry’s residence, his

family history, and his educational and work background,

which included ten years of prior teaching experience in

Illinois. The home study concluded that Fry was “a very

intelligent and caring individual” whose “desiré to help

seems very genuine.” In short, the study concluded that Fry

met the state standards governing licensure of foster homes

and that he was a good candidate for a license.

Menominee County also contacted two of Fry's personal

references, who offered no information that raised any red

flags. In addition, Fry gave written authorization for a

criminal background check. The county arranged for the

check in the same way it did with all of its foster care

applications—it submitted a request to the Wisconsin

Department of Justice (“DOJ”) to undertake the task, which

often requires six weeks to complete.

While Fry’s criminal background check was proceeding,

Menominee County reviewed all of the information it had

gathered in Fry's case and concluded that he was an

excellent candidate for a foster care license. Fry was well

known in sparsely populated Menominee County. He was a

licensed teacher, an experienced educator, and the principal

of the local high school. One county social worker later

described Fry as “very intelligent,” “eager to assist,” and “a

valuable resource for kids who may . . . have educational

issues.” In short, Fry appeared to be an ideal foster parent,

and at the time, the county had no reason to believe

otherwise. Consequently Menominee County requested that

Shawano County issue a foster care license to Fry. At the

time of the request, Menominee County also informed

Shawano County that it had initiated the criminal!

background check of Fry.

A-4

A request to issue a “courtesy” license of this sort was

not uncommon; Shawano County had for years issued such

licenses to Menominee County and other counties. Other

Wisconsin counties did likewise. Shawano County’s practice

was to rely solely on the requesting county to conduct all

background checks of the prospective licensee and to fulfill

all of the requirements of relevant state law and regulations.

The county had in the past issued licenses in cases like Fry’s,

in which the criminal background check was in progress but

not yet completed.

Shawano County reviewed Fry’s home study along with

the other information pertaining to Fry's application that

Menominee County provided. Persons reviewing Fry’s file

believed that a criminal background check had already been

completed or was being handled by Menominee County,

based on that county’s earlier representation. On the basis of

this belief, the positive information contained in the home

study, and past positive experiences with courtesy licensing,

Shawano County issued Fry a foster care license on August

21, 1995. Two months later, on October 16, Fry’s criminal

background check came back clean from Wisconsin’s DOJ.

In September, Menominee County placed Waubanascum

in Fry’s home, although Menominee County kept legal

custody over Waubanascum. In fact, under the terms of the

license, Menominee County retained jurisdiction over, and

responsibility for, the placement of any foster children in

Fry’s home. Regarding Waubanascum specifically,

Menominee County continued to provide services to him and

paid for his foster care placement with Fry. When it issued

Fry’s license, Shawano County did not know of

Waubanascum or that he would be placed in Fry’s home.

After placement, Waubanascum was monitored under

Menominee County’s “Intensive Supervision Program,” the

highest level of supervision by its social workers, which is

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geared toward at-risk juveniles. Pursuant to the program, two

certified social workers made face-to-face contact with

Waubanascum seven days a week and with Fry and the

school at least once a week. The social workers also visited

Fry’s home two to three times a week.

Not long after Waubanascum’s foster care placement,

disquieting information came to light about Fry. In October

1995, an Indian School student told someone at a hospital in

Shawano County that Fry sexually abused him. The student

described shopping for clothes with Fry, and then returning

to Fry’s home. The student drank some juice, became

groggy, and went upstairs to nap. The student described

“dreaming” that Fry had “messed” with him—that Fry

rubbed his penis on the student's leg and fondled his

genitals. Other evidence indicated that the student had been

drugged and sexually assaulted.

Randall Giese, a Shawano County Sheriff's Deputy,

investigated the allegations and informed the Menominee

County Department of Social Services, which initiated its

own investigation. Deputy Giese also informed an unnamed

intake worker at Shawano County's Department of Social

Services. Deputy Giese assured the worker that the child in

question was safe and that he would continue the

investigation. Deputy Giese later testified that he may have

spoken with other Shawano County workers, as well.

In the wake of the allegations, Waubanascum's social

workers questioned him without Fry present. Waubanascum,

however, indicated that everything was fine and that he

wished to remain in Fry’s home. Menominee County

considered removing Waubanascum from Fry's home, but

decided not to on the basis of the results of its inquiry and

the fact that Waubanascum was doing very well in terms of

behavior, school attendance, and grades. The social workers

A-6

became more vigilant in their supervision of Waubanascum’s

status, but believed that Waubanascum was not at risk.

All was not well at the Fry home, however. In December

1995, Waubanascum began to have trouble sleeping and

“dreamed” of Fry fondling him and masturbating in his

presence as he attempted to sleep. Over the course of several

months, these “dreams” progressed to more disturbing events

during Waubanascum’s waking hours. Fry often contrived to

sleep in the same bed with Waubanascum. Worse, Fry

became increasingly and openly physical with

Waubanascum, giving him “backrubs” that ultimately led to

undisgutsed attempts to engage in various sex acts with

Waubanascum. These encounters took place in Fry’s home

and in various hotel rooms during several cross-country trips.

In February 1996, Waubanascum informed one of the

Menominee County social workers about these acts of sexual

abuse. That same day, Menominee County removed

Waubanascum from Fry's home. On April 30, 1996,

Shawano County revoked Fry's foster care license, and Fry

was arrested and later convicted for his crimes.

It was only after the removal of Waubanascum from

Fry's home that Fry’s unsavory past came to light. Fry had

been a history teacher for ten years in Illinois. In his off

hours, however, Fry engaged in very disturbing behavior. In

one bizarre instance, Fry was discovered at night on the roof

of the home of one of his male students trying to peer into a

window. Even more bizarre, Fry was dressed in black “ninja-

style” attire, wearing a mask, and toting binoculars, a

flashlight, and a canister of mace. Another student reported

that he had spotted a similarly attired prowler in his backyard

at night on more than ten occasions. .

A person matching this description was also discovered

attempting to enter the bedroom window of a sleeping

A-?

student. After pursuing the person on foot, the student was

able to identify the person as Mark Fry. These acts garnered

considerable public attention in Northbrook, I!linois, where

Fry lived. Local authorities eventually arrested Fry in 199]

and charged him with attempted burglary and disorderly

conduct. He was later convicted of misdemeanor disorderly

conduct. Following these events, Fry moved to Wisconsin,

where, amazingly, he was licensed as a teacher and hired as a

high school principal in Menominee County.

Unfortunately, Fry's criminal past and history of bizarre

behavior did not come to light when Menominee County

processed Fry's foster care application. It was later

discovered that when the Wisconsin DOJ performed its

criminal background check of Fry, it limited its inquiry to

reported criminal activity within Wisconsin, not elsewhere.

This oversight, combined with the other unfortunate

occurrences recounted above, resulted in Waubanascum

being placed in Fry’s home.

On January 30, 2001, Waubanascum filed suit in federal

court against Menominee County, the Menominee Indian

School District, and Shawano County. Waubanascum

pursued his claims under 42 U.S.C. § 1983, alleging that

each of the defendants violated his constitutional due process

rights in issuing the foster care license and placing him in the

foster care home with Fry.-Waubanascum later settled his

claims against Menominee County and the school district,

and the district court entered an order dismissing those

claims on February 18, 2004.

The case against Shawano County, however, proceeded

to trial. Following the presentation of Waubanascum’'s case,

Shawano County filed a motion for judgment as a matter of

law, which the district court denied. On May 13, 2004, the

jury returned a special verdict in favor of Waubanascum and

against the county, and the court entered judgment in the

A-8

amount of $175,000, plus almost $70,000 in costs and fees.

Shawano County filed another motion for judgment as a

matter of law or, in the alternative, a new trial. The court

denied this motion, and the county appealed.

Il. Discussion

We review a denial of a motion for judgment as a matter

of law de novo, viewing all the evidence in the light most

favorable to the nonmovant. See Gower v. Vercler, 377 F.3d

661, 666 (7th Cir. 2004); DeBiasio v. Ill. Cent. R.R., 52 F.3d

678, 682 (7th Cir. 1995). Pursuant to Rule 50, judgment as a

matter of law is appropriate if “there is no legally sufficient

evidentiary basis for a reasonable jury to find for [a] party on

[an] issue... .” Fed. R. Civ. P. 50(a)(1). We examine the

record as a whole to determine whether there was sufficient

evidence from which a reasonable jury could have returned

the verdict, Marshall v. Teske, 284 F.3d 765, 770 (7th Cir.

2002), but we may not reweigh this evidence nor substitute

our own credibility determinations for that of the jury. See

Gower, 377 F.3d at 666. If reasonable persons could not find

that the evidence justifies a decision for a party on an

essential element of its claim, the court should grant

judgment as a matter of law. Deimer v. Cincinnati Sub-Zero

Prods., Inc., 58 F.3d 341, 343 (7th Cir. 1995).

It is important to keep in mind what this case is not

about. Despite the lengthy recitation in the facts of the

unfortunate miscues that led to Waubanascum’s abuse, this

case is not a state law tort action against Shawano County.

This is a case alleging deprivation of due process rights

secured under the federal constitution. Waubanascum’s

claims arise under 42 U.S.C. § 1983, which requires a

plaintiff to show that (1) the defendant deprived him of a

right secured by the Constitution and laws of the United

States, and (2) the defendant acted under color of state law.

See J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 791 (7th

A-9

Cir. 2003). The second requirement is not disputed in this

case. As to the first, the jury agreed with Waubanascum's

contention that Shawano County violated his Fourteenth

Amendment due process rights. Specifically, the jury found

that Shawano County had a policy or custom of issuing

courtesy foster care licenses, and that the county acted with

deliberate indifference to Waubanascum's constitutional

rights when it issued Fry's courtesy foster care license in the

first place and failed to monitor the license thereafter.

The Supreme Court has made it very clear that a state

ordinarily has no constitutional duty to protect private

citizens from doing harm to each other, so the state's failure

to protect an individual from private injury does not violate

that individual's due process rights. See DeShaney v.

Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195

(1989). “[T]he Due Process Clause of the Fourteenth

Amendment . . . does not transform every tort committed by

a State actor into a constitutional violation.” Jd. at 202. Even

so, the Due Process Clause imposes such a duty when “state

action creates, or substantially contributes to the creation of,

a danger or renders citizens more vulnerable to a danger than

they otherwise would have been.” Lewis v. Anderson, 308

F.3d 768, 773 (7th Cir. 2002) (internal quotation and citatior

omitted). Accordingly, we have recognized two exceptions

to DeShaney’s general rule. See Monfils v. Taylor, 165 F.3d

511, 516 (7th Cir. 1998) (citations omitted). One exception

arises when the state has established a “special relationship”

with an individual—if the state has custody of the individual,

for example. See id. The other exception comes about when

the state “affirmatively places a particular individual in a

position of danger the individual would not have otherwise

faced.” Jd. at 516 (citations omitted); see also Lewis, 308

F.3d at 773.

A-10

A. Special relationship exception

In the foster care context, we have recognized that a child

has a constitutional right to be placed into a safe and secure

foster home. Specifically, we have recognized that state

actors are liable only if they violated “the right of a child in

State custody not to be handed over by state officers to a

foster parent or other custodian . .. whom the state knows or

suspects to be a child abuser.” K.H. ex rel. Murphy v.

Morgan, 914 F.2d 846, 852 (7th Cir. 1990) (emphasis in

original); cf DeShaney, 489 U.S. at 201 n.9.

For there to be a constitutional) duty, the state must have

custody over the child, or it cannot be liable under the special

relationship exception to DeShaney. See Stevens v. Umsted,

131 F.3d 697, 702 (7th Cir. 1997) (citing DeShaney, 489

U.S. at 200); Hutchinson v. Spink, 126 F.3d 895, 900 (7th

Cir. 1997) (“[T}he State has a ‘special relationship’ with

those it has taken into custody.”). Under the facts presented,

we do not see how a reasonable jury could find that :

Waubanascum satisfied this requirement at trial. As ample

evidence indicates, and as Waubanascum concedes,

Menominee County, not Shawano County, had custody over

Waubanascum. Waubanascum lived in Menominee County

and attended school there. Menominee County took him

_ from his grandparents’ custody after his involvement in petty

crime. It processed Fry’s foster care application. It

investigated Fry's background and suitability to be a foster

parent. It requested the criminal background check from the

Wisconsin DOJ. It requested that Shawano County issue the

foster care license (and the license specified that Menominee

County would place children in Fry's home and maintain

jurisdiction and custody over them). It monitored

Waubanascum under its highest level of supervision during

the time he was placed in Fry's home. It investigated the

allegations of abuse lodged against Fry by the unnamed

student. And, it ultimately removed Waubanascum from

A-11

Fry’s home when Waubanascum reported the sexual abuse to

Menominee County case workers. In short, Menominee

County unambiguously exercised custody over

Waubanascum in every respect except two: Fry's home

happened to be in Shawano County, and Shawano County

granted the courtesy license that allowed Waubanascum to

be placed in Fry’s home.

Waubanascum attempts to sidestep the unambiguous

custody requirement by contending that Shawano County's

“special relationship” with Waubanascum arose because it

issued the courtesy foster license; had it not done so,

Waubanascum never would have been placed with Fry to

begin with. Waubanascum argues that Wisconsin laws and

regulations set forth numerous requirements regarding foster

licensing, thus indicating that Shawano County had a

constitutional duty to him. He further argues that the county

violated this duty by its policy of issuing courtesy licenses

without undertaking its own background investigations,

which exhibited “deliberate indifference” to Waubanascum's

right to be placed in a safe foster home.

As to Shawano County’s “policy,” the evidence indicates

that Shawano County issued courtesy foster licenses over the

years under circumstances similar to those in

Waubanascum’s case—it relied on the requesting county to

process the applications, conduct investigations, and initiate

background checks. It is less clear whether Shawano

County's practice in fact complied with Wisconsin law in

effect at the time. The jury apparently believed that it did

not, which is not surprising, given the extensive testimony to

that effect at trial. But this fact is irrelevant in determining

whether Shawano County’s actions created a constitutional

duty to Waubanascum, let alone whether it violated that

duty. That state laws required Shawano County to perform

its own background checks is not sufficient to create a

“special relationship” that qualifies as a DeShaney exception.

A-12

State law does not create duties under the federal

constitution, and violations of state law are by themselves

insufficient to impose liability under § 1983. See, e.g., J.H.,

346 F.3d at 793 (collecting authority). If Shawano County's

failure to conduct a separate background check was contrary

to state law, such “dereliction of statutory duties should be of

concern to... . the [s]tate of [Wisconsin], [but] doles} not

form the basis of a § 1983 claim.” /d. (citation omitted).

But even if Shawano County may somehow be

understood to have had “custody” over Wauanascurn by

virtue of having issued a foster care license to Fry, this

would not end the inquiry. Shawano County must also have

exhibited deliberate indifference. In the foster care context,

we apply a “modified” deliberate indifference standard. /d. at

792. Under this standard, the state must have actual

knowledge or suspicion of the risk of harm the child may

suffer while in foster care. As we noted in K.H., “{t}he only

right in question . . . is the right of a child in state custody

not to be handed over by state officers to a foster parent . . .

whom the state knows or suspects to be a child abuser. Only

in this case thus narrowly described can the foster parent be

fairly considered an instrument of the state for child abuse.”

K.H., 914 F.2d at 852 (emphasis in original); see also J.H.,

346 F.3d at 795 (“[Lliability will only arise if the state actor

knows or suspects that the agency or foster parents with

whom a child is placed are likely to abuse the child.”); Camp

v. Gregory, 67 F.3d 1286, 1293 (7th Cir. 1995) (reiterating

K.H.'s knowledge or suspicion requirement) (collecting

authority).

Waubanascum suggests that Shawano County showed

deliberate indifference by its “long-standing custom of

granting courtesy licenses without conducting investigations

of the applicants.” Thus, he argues, “Shawano County's

policy was deliberately indifferent to a known risk to foster

children.” Waubanascum seems to propose that state laws

A-13

and regulations assume that failure to perform background

checks necessarily will expose foster children to risk, thus

constituting deliberate indifference. This argument misstates

the legal standard, because it sidesteps the requirement that

there be knowledge or suspicion of actual risk and substitutes

the possibility of risk arising from the county's custom.

Undoubtedly, foster children would be exposed to a

heightened degree of risk if foster license applicants were

subjected to no background checks at all. We may assume

that it is this very concern that underlies Wisconsin's laws

and regulations requiring such background checks before a

foster license may be granted.

But a failure to abide by a general statutory requirement

for background checks cannot substitute for the requirement

of actual knowledge or suspicion in the foster home context.

See J.H., 346 F.3d at 793 (“(C]onstructive or statutorily-

implied knowledge cannot serve as a substitute for actual

knowledge or suspicion.”). As noted, it is unclear that

Shawano County actually did violate Wisconsin law in effect

at the time that the county granted Fry the courtesy foster

license. But in any event, state law does not create a duty

under the federal constitution, so even if Shawano County

failed to abide by Wisconsin law, this would not by itself

amount to a violation of Waubanascum’s due process rights.

See id.

No evidence presented at trial indicated that Shawano

County knew or even suspected that Fry had a criminal past

or would be likely to abuse Waubanascum. Indeed, to the

contrary, all of the information and findings that Menominee

County made in processing Fry's application (and passed on

to Shawario County when it requested a courtesy license)

indicated that Fry would make an ideal foster parent.

Shawano County witnesses testified that they, too, believed

Fry would make an excellent candidate on the basis of that

information.

A-14

But even if Shawano County should have performed its

own background check or otherwise duplicated the work of

Menominee County, it is far from clear that the situation

would have ended any differently. The evidence at trial

indicated that Fry's background check, which was performed

by Wisconsin's DOJ, came back clean. No evidence

indicated that Menominee County did anything wrong when

it requested that the state perform the background check, nor

did any evidence show that Shawano County would have

gone beyond what Menominee County did in requesting the

check. Likewise, it is unclear that the result would have been

any different if Shawano County had waited for the return of

the clean background check from Wisconsin's DOJ before

issuing the foster license. Of course, with the clarity of

hindsight, we now know that the criminal background check

conducted by the state was inadequate because it excluded a

check of criminal convictions outside Wisconsin that would

have turned up details of Fry's checkered past in Illinois. But

this oversight at most amounts to some species of negligence

on the part of Wisconsin's DOJ and, even if it could be laid

at the feet of Shawano County, cannot establish the county's

liability. See Lewis, 308 F.3d at 773 (“Negligence or even

gross negligence does not suffice to give rise to liability

under § 1983) (citations omitted); c.f Kitzman-Kelley v.

Warner, 203 F.3d 454, 462 (7th Cir. 2000) (Posner, C.J.,

dissenting) (noting that it would be a “fundamental

misconception” to conclude “that negligence and deliberate

indifference are the same thing”).

We have applied the modified deliberate indifference

standard to dispose of analogous arguments in cases with

similarly tragic facts. In Lewis, foster children were placed

into an abusive home, and they later sued the state

defendants under § 1983. Lewis, 308 F.3d at 770. The

defendants licensed the foster parents after receiving mostly

positive information in the course of their investigation, but

also some information that hinted that the applicants might

A-15

be unfit. /d. at 774-75. We reaffirmed the K.H. modified

deliberate indifference standard and held that the state

defendants were entitled to summary judgment. /d. at 775-

76. We concluded that the state workers may well have been

negligent in performing their background investigation, but

they were never alerted to actual abuse or the likelihood of it.

Id. Thus, the defendants could not be held liable under §

1983. See id. at 773 (stating that, pursuant to K.H., the

defendants could not “be held liable on the No. 04-3290 15

basis of facts they did not actually know or suspect, even if

they might have learned about disqualifying information if

they had conducted a more thorough inquiry”).

In /.H., the plaintiffs were sexually abused in foster

homes selected by a licensed private welfare agency under

contract with the IHinois Department of Children and Family

Services. J.H., 346 F.3d at 789. The plaintiffs sued several

employees of the latter department under § 1983. /d. The

plaintiffs made an argument similar to Waubanascum'’s—

that the defendants “knew” of the risk of abuse because

Illinois law imposed various statutory duties on the state

workers regarding licensing of foster homes, and the workers

could not delegate its statutory supervisory duties to the

contracted agency. /d. at 793. We held, however, that the

defendants were entitled to summary judgment. /d. at 796.

There was no evidence that the defendants knew of or

suspected abuse, and such knowledge could not be imputed

from a Statute, nor could “statutorilyimplied” knowledge

serve as a Substitute for K.H.'s requirement of actual

knowledge or suspicion. /d. at 795-96.

Though the sad facts of this case are not precisely

analogous to those in K.H., /.H., or Lewis, the same legal

principles apply. There was no evidence presented at trial

that Shawano County had actual knowledge, or even

suspicion, that Waubanascum (or any child) would be at risk

in Fry's home. Therefore, under the appropriate legal

a A-16

standard, the jury could not have found Shawano County

deliberately indifferent to Waubanascum’s rights. We

conclude that no special relationship existed between -

Shawano County and Waubanascum, and therefore the

county had no constitutional duty to Waubanascum on that

basis.

B. State-created danger exception

Waubanascum also invokes the second exception to

DeShaney, under which the state may be liable when it

“affirmatively places a particular individual in a position of

danger the individual would not otherwise have faced.”

Monfils, 165 F.3d at 516 (quotation and citation omitted).

Waubanascum argues that Shawano County, by issuing the

iicense to Fry, “committed an affirmative act that placed

Waubanascum in a position of danger that he would not have

faced, and subsequently had an opportunity to protect him

from that danger.” In essence, Waubanascum simply repeats

the claim we disposed of above: that Shawano County never

should have issued the courtesy license to begin with.

Waubanascum also, however, takes issue with Shawano

County's actions (or inactions) following the issuance of the

license. In particular, Waubanascum contends that the county

failed to respond to the sexual assault allegations against Fry

leveled by the unnamed student in October 1995. According

to Waubanascum, the county knew of these allegations

because Deputy Giese notified an unnamed intake worker for

the county's department of social services and possibly

others in that organization. He also proposes that the county

is on the hook “regardless of whether or not Shawano

County officials placed the child with its licensee, or knew

the specific identity of the child placed in his home.”

Although Waubanascum contends otherwise, we find the

facts of this case to be very similar to those in Ruiz v.

McDonnell, 299 F.3d 1173 (10th Cir. 2002). In Ruiz, the

plaintiff's son died while in a licensed day care facility. The

A-17

plaintiff brought a § 1983 action against the director and

various workers of Colorado's Department of Human

Services, alleging that her case fell within the “danger

creation” exception. /d. at 1182. As the Tenth Circuit noted,

“the crux of Ms. Ruiz’s claim is that [her son] suffered

injuries of constitutional proportions because the State

Defendants improperly licensed Tender Heart [Day Care]

after failing to conduct an investigation into the facility.” /d.

at 1183.

The Tenth Circuit affirmed the dismissal of the plaintiff's

complaint, concluding that the act of granting a license did

not impose an immediate risk of harm. /d. In addition, the

court found it dispositive that the licensure “affected the

public at large” and did not target specifically the plaintiff or

her child. See id. In sum, the court concluded that the

plaintiff “failed to allege any affirmative conduct on the part

of the State Defendants that created or increased the danger

to [the child,]” and therefore failed to state a viable § 1983

claim. /d.

We find this reasoning persuasive and applicable in the

present case. The evidence at trial revealed that Shawano

County did not know who specifically would be placed into

Fry's home. Similar to the Ruiz court's conclusion, the only

conceivable danger created by Shawano County's licensing

of Fry would be to the public as a whole (all children eligible

to be placed in Fry's home), because the licensure was not

“aimed” at Waubanascum specifically. Cf Ruiz, 299 F.3d at

1183 (“Unlike the direct placement of a child into an abusive

home, the mere licensure of [the day care facility] was not an

act directed at [the child], which, in and of itself placed [the

child] in danger.”). The evidence clearly established that it

was Menominee County, not Shawano County, that placed

Waubanascum in Fry's home (in fact, the terms of the

license unambiguously indicated that Menominee County

would have responsibility for placement of any foster

A-18

children in the home). Therefore, the evidence did not

support the conclusion that Shawano County affirmatively

placed Waubanascum into harm's way when it did not even

know of Waubanascum'’s existence at the time it issued the

license to Fry. See Monfils, 165 F.3d at 516; accord Ruiz,

299 F.3d at 1183.

For similar reasons, Shawano County's failure to act in

the wake of the October 1995 accusations does not satisfy

the state-created danger exception. Waubanascum asserts

that Shawano County was responsible for “monitoring

[Fry's] license” and was on notice of the October 1995

allegations, so the county should have removed

Waubanascum from Fry’s home.

We think Waubanascum reads the danger exception and

the evidence too broadly. No evidence indicates that

Shawano County was required to “monitor” Fry's license. In

fact, as discussed above, the evidence revealed the

contrary— Menominee County retained legal custody of

Waubanascum and continued to monitor his status in Fry’s

home under its highest level of supervision, even though

Fry's home was located across the Shawano County line.

Regarding the county’s notice that Waubanascum may be

in danger, the evidence is unclear whether Deputy Giese

informed only a low-level intake worker, or additional

Shawano County employees as well, of the October 1995

abuse allegations. It is clear, however, that there was no

definitive evidence from which the jury could conclude that

someone with decision- or policymaking authority at

Shawano County received word of the allegations (indeed,

the director and deputy director of Shawano County's

Department of Social Services both testified that they did not

receive word of the allegations until April 1996, after

Waubanascum reported Fry's abuse). Nevertheless, the

distinction is irrelevant.

A-19

Evidence at trial showed that Deputy Giese undertook a

Criminal inquiry of the matter, which was certainly

appropriate. Consistent with his concern for the well-being

of foster children that may have been in Fry's custody, the

deputy informed Menominee County, which then conducted

its own investigation of the allegations and took special steps

to question Waubanascum outside the presence of Fry. Even

if we assume that responsible persons at Shawano County

knew of the allegations and failed to act despite the fact that

Menominee County was pursuing its own investigation, this

would be insufficient to trigger the exception. As we

observed in Stevens, “[iJnaction by the state in the face of a

known danger is not enough to trigger the obligation [to

protect private citizens from each other).” Stevens, 131) F.3d

at 705 (quotation and citation omitted); see also DeShaney,

489 U.S. at 203 (“The most that can be said of the state

functionaries in this case is that they stood by and did

nothing when suspicious circumstances dictated a more

active role for them.”). Similarly, the evidence introduced in

this case is insufficient to satisfy the statecreated danger

exception to DeShaney, and Waubanascum points us to no

authority to support a contrary conclusion.

We remain mindful that “[a}ttacking a jury verdict is a

hard row to hoe[,]” particularly in a tragic case like this one.

Sheehan v. Donlen Corp., 173 F.3d 1039, 1043 (7th Cir.

1999). The evidence before the jury certainly revealed a

number of missteps axd dropped balls leading to the tragic

outcome of this case. But we are equally mindful of the

Supreme Court's caution against rnaking “the Fourteenth

Amendment a font of tort law io be superimposed upon

whatever systems may already be administered by the

states.” Paul v. Davis, 424 U.S. 693, 701 (1976). As we have

already noted, mere negligence does not provide a basis for

liability under § 1983, see Lewis, 308 F.3d at 773, nor does a

violation of state law. See J.H., 346 F.3d at 793. To recover

under § 1983, Waubanascum had to show that the county's

A-20

actions deprived him of some right to which he is entitled

under the federal constitution. He has not done so. An

exhaustive review of the record and the trial evidence in the

light most favorable to Waubanascum reveals at most

negligence or some violation of state law on Shawano

County's part. Absent from this evidence are facts

supporting the conclusion that Shawano County owed

Waubanascum a constitutional duty as defined under

controlling caselaw, let alone that the county violated that

duty. In sum, the evidence presented to the jury was

insufficient to demonstrate that Shawano County deprived

Waubanascum of his due process rights, and thus there was

not a legally sufficient basis for the jury's verdict.

Shawano County is entitled to judgment as a matter of

law, and we need not reach the parties’ remaining arguments.

Ill. Conclusion

Because the evidence introduced at trial was insufficient

to demonstrate § 1983 liability on Shawano County's part,

we REVERSE the district court's denial of Shawano

County's motion for judgment as a matter of law, and

VACATE the judgment of the district court entered on the

jury's verdict. We REMAND the case to the district court

and direct that judgment as a matter of law be entered in

Shawano County's favor. The parties shall bear their own

costs.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

B-1 i

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

(filed March 9, 2004)

—- oa

NAQUASEH B. WAUBANASCUM,

Plaintiff, Case No. 01-C-111

Vv.

SHAWANO COUNTY,

Defendant.

DECISION AND ORDER

Naquaseh Waubanascum is suing Shawano County,

Wisconsin for violating his civil-rights while he was in foster

care. He is seeking relief pursuant to 42 U.S.C. § 1983.(1)

After the close of all discovery, the Defendant moved for

summary judgment. See Federal Rule of Civil Procedure 56(c).

This matter is now fully briefed.

Summary judgment is appropriate only whe, ‘he pleadings,

depositions, and other materials in the record demonstrate that

there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law. See Musser v.

Gentiva Health Services, 356 F.3d 751, 760 (7th Cir. 2004).

Rule 56 mandates the entry of summary judgment against a

party “who fails to make a showing sufficient to establish the

existence of an element essential to the party's case, and on

which that party will bear the burden of proof at trial." Celotex

Corporation v. Catrett, 437 U.S. 317, 322 (1986).

In this case, the Plaintiff has managed to raise an issue of

material fact on the dispositive issue of whether Shawano

(1) All other Defendants which were originally parties to this

case have been dismissed.

B-2

County had a policy or practice which caused the Plaintiff's

injuries. Moreover, the record is insufficient on the issue of the

Statutory authority of the alleged policymaker. The parties must

cite specific Wisconsin law in supporting their positions on that

issue.

Therefore, because there are material issues of fact which

must be resolved by a jury, the court ORDERS that “Shawano

County's Motion for Summary Judgment” (filed October 30,

2003) IS DENIED.

Done and Ordered in Chambers at the United States

Courthouse, Milwaukee, Wisconsin, this 9" day of March,

2004.

/s/

Thomas J. Curran

United States District Judge

C-1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

(filed August 24, 2004)

NAQUASEH B. WAUBANASCUM,

Plaintiff, Case No. 01-C-111

SHAWANO COUNTY,

Defendant.

DECISION AND ORDER

Defendant Shawano County has moved the court for

judgment as a matter of law or, alternatively, for a new trial.

See Federal Rules of Civil Procedure 50 & 59(a}. The

motion follows a May 13, 2004, jury verdict finding that

Shawano County had a policy or custom of issuing courtesy

foster care licenses (1) without undertaking any investigation

before or after a license was issued and that Shawano County

carried out its policy with deliberate indifference to the rights

of the Plaintiff, Naquaseh Waubanascum. The jury awarded

Waubanascum a total of $175,000.00 in damages.

Despite the verdict in favor of the Plaintiff, Shawano

County argues that the court should grant judgment in its

favor as a matter of law for the following reasons:

1. The evidence at trial affirmatively demonstrated that

Shawano County did not owe a duty to the Plaintiff under the

Due Process Clause as required in DeShaney v. Winnebago

County Social Services, 489 U.S. 189, 197-98 (1989).

(1) Evidence presented at trial showed that a courtesy foster

care license is a license issued without investigation by one

county at the request of another county.

C-2

2. As a matter of law, Shawano County is not liable

under 42 U.S.C. § 1983 for issuing a courtesy foster care

license to Menomonee County because:

(a) The evidence did not demonstrate thai

Shawano County had a policy that was

unconstitutional on its face.

(b) The evidence did not demonstrate that

Shawano County had a custom which caused a

constitutional violation.

constitutional deprivation resulted from a

single decision by a person with final policy

making authority.

3. The Plaintiff cannot show an unconstitutional policy

through evidence of conduct by low-level county employees

after the license was issued.

In the alternative, the Defendant asks for a new trial due

to the following trial rulings:

1. The court erred in failing to instruct the jury that there

was no respondeat superior liability.

2. The evidence of conduct after the license was issued

was not relevant and should not have been admitted.

3. The evidence of Menomonee County's settlement with

the Plaintiff should have been admitted.

Brief in Support of Its Motion for Shawano County's

Motion for Judgment as a Matter of law or Alternatively, for

A New Trial at 2-13.

C-3

1. MOTION FOR JUDGMENT

AS A MATTER OF LAW

The Defendant has renewed its motion for judgment as a

matter of law which was made at the close of all evidence.

See Federal Rule of Civil Procedure 50(b). The Defendant

says that the grounds raised here are precisely the same as

the grounds it raised in its previous motion, although the

Defendant has not submitted portions of the transcript to

support this assertion.

In ruling on a motion made pursuant to Federal Rule of

Civil Procedure 50(b), a district court must decide whether

there is sufficient evidence in the record upon which the jury

properly could find a verdict for the Plaintiff. See Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 150

(2000). In determining whether the evidence presented at

trial is sufficient to withstand a motion for judgment as a

matter of law, the district court is not free to weigh the

parties’ evidence, Or to pass on the credibility of witnesses,

or to substitute its judgment of the facts for that of the jury.

See Tart v. Illinois Power Company, 366 F.3d 461, 472 (7th

Cir. 2004). The court must view the evidence most favorably

to the party against whom the motion is made and give that

party the benefit of all reasonable inferences that may be

drawn from the evidence. See 9A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure Civil §

2524 (2d ed. 1995).

The court can disregard all evidence favorable to the

moving party that the jury is not required to believe. See

Reeves, 530 U.S. at 151. In the end, the court must be

assured that it was presented with a legally sufficient basis to

support the verdict. See Massey _v. Blue Cross-Blue Shield

of Illinois, 226 F.3d 922, 924 (7th Cir. 2000).

C-4

A. DUTY

First, the Defendant argues that, even though it licensed

the foster home in Shawano County where Waubanascum

was placed, Shawano County did not have a duty to Plaintiff

Waubanascum to investigate potential foster parents because

Waubanascum was in the custody of Menomonee County. In

his response to the post judgment motions, The Plaintiff says

that Wisconsin laws and regulations received into evidence

at trial (but not identified by the Plaintiff by name, number,

or exhibit number) establish that Shawano County had a « uty

toward all Wisconsin children in foster custody who might

be placed in foster homes in Shawano County.

As explained at trial, the court agrees with the Plaintiff.

The Introduction to Chapter HSS 56 of the Wisconsin

Administrative Code (Trial Exhibit 1006) states that:

(1) PURPOSE. The purpose of this chapter is

to protect the health, safety and welfare of

children placed in foster homes. . . .

Because Naquaseh Waubanascum was a child placed in a

foster home a special relationship existed between him and

the State of Wisconsin and its subdivisions. Therefore,

Shawano County had a duty to protect him under DeShaney

v. Winnebaao Countv Social Services Department of Social

Services, 489 U.S. 189, 197-98 (1989), so judgment as a

matter of law will not be granted to the Defendant on this

ground.

B. POLICY CUSTOM

Next, the Defendant argues that the evidence did not

establish that Shawano County had a policy that was

unconstitutional on its face or that resulted from a single

decision by a person with final policy making authority. This

argument misstates the law governing local government

liability. It is well-established that a county can be held liable

C-5

to a plaintiff deprived of a federal right as a result of: (1) an

express municipal policy; or (2) a widespread custom; or (3)

a deliberate act of a decision-maker with final policy-making

authority. See lenco v. City of Chicago, 286 F.3d 994, 997-

98 (7th Cir.), cert. denied sub nom. Angarone v. lenco, 537

U.S 1028 (2002). Although the policy of granting courtesy

foster home licenses is not found in state law, a

preponderance of the evidence admitted at trial established

that Shawano County had a long-standing custom of granting

the courtesy licences without conducting investigations of

the applicants and that this custom was authorized by

Shawano County's policy-making official. Therefore, it was

unnecessary for the Plaintiff to prove an alternative basis for

liability-that a policy resulted from a single decision by a

person with final policy-making authority. Likewise, it was

unnecessary for the Plaintiff to prove that the policy was

unconstitutional on its face. The Plaintiff proved that the

policy was unconstitutional as applied to him.

The Defendant also argues that the evidence did not

demonstrate that Shawano County had a custom which

caused a constitutional violation, but the jury disagreed. The

court will not overturn the jury finding because sufficient

evidence was received at trial which showed that Shawano

County's custom of issuing courtesy licenses without

investigation led to the placing of the Plaintiff with a foster

parent who was later found to have a criminal record and

who caused injury to the Plaintiff.

C. KNOWLEDGE

Shawano County recounts that it was not until after the

Plaintiff was placed in the licensed home of Mark Fry that a

low level county employee learned of the foster father's

criminal record. The County argues that, because there is no

evidence that a policy-making county official was informed,

Shawano County cannot be held liable.

C-6

As explained above, the Plaintiff established by

sufficient evidence that Shawano County had an unwritten

policy of granting courtesy foster home licenses without

investigating the potential licensee. Although the general

rule requires that a Defendant have knowledge of a specific

risk in order to be found deliberately indifferent to a

constitutional right(2), in this particular case the policy of

not conducting an investigation insured that the Defendant

would not have knowledge of a potential foster parent's

criminal history background. Shawano County's policy was

one of omission of a procedure which could lead to

knowledge of a specific risk to a child in foster care. At trial,

Ronald Stuber, who was proven to be a final policy maker

for Shawano County, testified that children are threatened

with danger when adequate background checks of

prospective foster parents are not conducted. Thus, in this

case, the Defendant cannot be absolved of liability for lack

of knowledge at the policy-making level. Cf. City of Canton

v. Harris, 489 U.S. 378 (1989).

I]. MOTION FOR NEW TRIAL

1. Jury Instruction

In the alternative, Shawano County has moved the court

to grant it a new trial pursuant to Federal Rule of Civil

Procedure 59 in order to correct manifest errors of law.

Shawano County's first ground for a new trial is that the

court erred when it refused to instruct the jury of the

definition of respondeat superior liability. The County says

that, “without this instruction, the jury could not possibly

have known that they could not find liability against

Shawano County based solely on the conduct of Officer

Giese and the intake worker.” Shawano County's Brief in

Support of Its Motion for Judgment as a Mater of Law or

Alternatively, for a New Trial at 12.

(2) See, e.g., Butera v Coffey, 284 F.3d 601, 605-06 (7th Cir.

2002).

C-7

When a party is requesting a new trial based on

erroneous jury instructions, the party must show that: (1) the

instruction did not adequately state Seventh Circuit law; and

(2) the party was prejudiced by the error because the jury

was likely confused or misled. See Susan Wakeen Doll

Company. Inc. v. Ashton-Drake Galleries, 272 F.3d 452,

454-55 (7th Cir. 2001). An erroneous jury instruction cannot

be found to be prejudicial unless, considering the instruction

as a whole, along with all of the evidence and arguments, the

jury was misinformed about the applicable law. See Id.

The Plaintiff's theory of liability was that a policy and

practice of Shawano County led to his abuse at the hands of

his foster father. The court did not give the proffered

respondeat superior instruction because it was not directly

relevant to this theory and, injecting this Latin phrase and

technical definition into the instructions, would have led to

jury confusion. The Defendant's speculation that the jury

might have decided the case differently if given the

respondeat superior instruction is insufficient to establish

prejudice. The court concludes that the absence of a

respondeat superior jury instruction was not prejudicial in

light of the charge as a whole. The Defendant has cited no

case establishing that the Seventh Circuit requires that a

respondeat superior instruction be given under these

circumstances and the movant has not persuaded the court

that the jury was misinformed about the applicable law.

Moreover, the Defendant has not demonstrated that any of

the other instructions were ambiguous or suggested that the

jury might find Shawano County liable on the basis of a

respondeat superior theory. See Perry v. Ethan Allen. Inc.,

115 F.3d 143, 152-53 {2d Cir. 1997). Therefore, the court

will not grant a new trial on this ground.

C-8

2. Evidentiary Rulings

The Defendant's two remaining grounds for seeking a

new trial involve evidentiary rulings. Even if an evidentiary

error is made at trial, a new trial is warranted only where the

error has caused substantial prejudice or resulted in

substantial injustice to the affected party. The court must ask

how much of an effect the improperly admitted or excluded

evidence had on the verdict. See Woodward v. Correctional

Medical Services of Illinois, Inc., 368 F.3d 917, 929 (7th Cir.

2004). To answer this question, courts have looked at a

number of factors, including: the number of errors; the

closeness of the factual disputes; the prejudicial effect of the

evidence at issue; whether counsel intentionally elicited the

evidence; whether counsel focused on the evidence during

the trial; and, whether any cautionary or limiting instructions

were given. See Peat, Inc., v. Vanguard Research,

Incorporated, 2004 WL, 1627025 (11th Cir. 2004) No. 03-

11565.

First, the Defendant contends that evidence of conduct

after Shawano County granted the foster care license at issue

was not relevant and should not have been admitted. This

evidence showed that, after Shawano County granted the

foster care license to Mark Fry who later became the foster

father of the Plaintiff, Shawano Deputy Sheriff Randall

Giese investigated an abuse complaint against Fry involving

another child. He found that Fry had a history of

involvement with the criminal justice system in Illinois. He

says that he then informed an unnamed intake worker at

Shawano County Social Services of Fry's record.

The court admitted this evidence because it is relevant to

showing Shawano County's policy of not investigating

persons issued courtesy foster home licenses. The Defendant

points out that neither Deputy Giese nor the unnamed intake

worker notified any policy maker of the complaint against

Fry. From this, the jury could infer that the County had no

Cc-9

procedures or requirements for such notification. The court

finds that admitting this evidence did not result in substantial

injustice to the Defendant. Therefore, a new trial will not be

granted on this basis.

Finally, the movant maintains that evidence of

Menomonee County's(3) settlement with the Plaintiff should

have been admitted to show the bias of an expert witness and

to dispute the Plaintiff's claim that he was not receiving

medical treatment because he did not have any money.

Federal Rule of Evidence 408 is grounded on the policy of

encouraging the settlement of disputes without resort to trial.

Although settlement can be admitted to show bias, it must be

weighed with great caution. A court considering the

admissibility of setthkement evidence, for impeachment

purposes, must reconcile the tension between two important

policies: encouraging settlement of disputes and

accommodating the truth-finding process to the assessment

of a witnesses’ credibility. In this case, the Plaintiff's expert

witness was cross examined extensively and effectively

about her prior opinions. Through her earlier reports and

deposition testimony, counsel was able to establish

conflicting opinions reached, without reference to the

settlement. The incentive to settle cases in which a number

of parties were involved would be undermined if the

settlement with one could come back to haunt him in

pursuing his litigation. There is also the danger that the jury

could conclude that the Plaintiff had been compensated for

his injury and that one or more of the Defendants would not

have paid, unless they felt that they were at fault. The

settlement of the claim may be motivated by a desire to "buy

peace" or avoid further expense rather than an

acknowledgment of the validity of the claim.

(3) Menomonee County was dismissed as a party Defendant

to this lawsuit by this court's Order of February 18, 2004.

C-10

The court also excluded the amount of the settlement

with the other Defendants because it would require the court

to permit the Plaintiff to come forward with evidence

relating to the disposition of the settlement funds. In addition

to the attorney fees, it is not unlikely that Menomonee

County and, for that matter / Shawano County / may well

have imposed liens on the funds to repay them for the

monies expended on Plaintiff's behalf and other liens that

might have been asserted against such fund. The likelihood

that some, or all of the funds, were placed in trust for the

Plaintiff's benefit would cause the jury to speculate as to how

or if such funds could be released. The court ruled against

admitting the settlement agreement between Waubanascum

and the other Defendants because the interest in admitting

the settlement and the amount of the settlement was

outweighed by the likelihood of unfairly prejudicing the

Plaintiff and confusing the jury. Revealing the amount

received in the settkement would not necessarily establish

that Waubanascum had sufficient funds to seek medical

treatment. Consequently, the court will not grant a new trial

on this ground.

ORDER

For the reasons explained above, the court ORDERS that

“Shawano County's Motion for Judgment as a Matter of Law

or Alternatively, for a New Trial” (filed May 25, 2004) IS

DENIED.

IT IS FURTHER ORDERED that the Clerk of Court

shall amend the judgment entered on May 13, 2004 to add

that:

IT IS FURTHER ORDERED AND ADJUDGED that

Defendant Shawano County's Motion for Judgment as a

Matter of Law or Alternatively, for a New Trial is denied.

C-11

Done and Ordered in Chambers at the United States

Courthouse, Milwaukee, Wisconsin, this 24" day of August,

2004.

/s/

THOMAS J. CURRAN

United States District Judge

D-1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

(filed August 24, 2004)

NAQUASEH B. WAUBANASCUM,

Plaintiff, Case No. 01-C-111

Vv.

SHAWANO COUNTY,

Defendant.

DECISION

The Plaintiff has moved the court for an award of attorney

fees pursuant to Rule 54 of the Federal Rules of Civil

Procedure and 42 U.S.C. § 1988, following the return of a jury

verdict in his favor.

The awarding of attorney fees under 42 U.S.C. § 1983 is

governed by 42 U.S.C. § 1988, which authorizes such awards

to a prevailing party. See Alliance to End Repression v. City

of Chicago, 356 F.3d 767, 769 (7th Cir. 2004). District courts

have wide discretion in determining the appropriate amount of

attorney fees and costs.

BACKGROUND

The district court must first determine the number of hours

reasonably expended on the matter. Hours that relate to

matters not involving the Defendant Shawano County cannot

properly be billed to the County. Plaintiff's counsel claims that

he has excluded all charges attributable to the other two

defendants who were originally parties to this action but

settled out following ediation.

D-2

The Defendant Shawano County asks the court to reduce

the number of hours further, raising two objections-first, that

the Plaintiff did not adequately reduce fees for time spent

prosecuting the claims against the other Defendants and,

second, that the Plaintiff has not produced adequate

documentation for what it calls “research fees.”

It is undisputed that this lawsuit began on June 16, 2000,

when the Plaintiff retained Plaintiff's counsel. The complaint

was filed on January 30, 2001, naming as Defendants the

Menomonee Indian School District, Menomonee County, and

Shawano County. As stated above, the Menomonee Indian

School District and Menomonee County settled with Plaintiff

on November 19, 2003, as a result of mediation. The trial

began on May 10, 2004, and the verdict was returned on May

14, 2004. The motion requests fees in the amount of

$91,908.50.

DISCUSSION

The Plaintiff alleges that the total fees incurred amounted

to $102,040.00. From that, Plaintiff deducted the sum of

$10,131.50 for fees specifically incurred to prosecute the

Plaintiff's claims against the settling Defendants. It argues that

prior to the settlement, “fees were incurred for tasks relating

to procedural matters which, for the most part, would have

been incurred if there were one or three defendants.” Plaintiff

does not identify these “procedural matters” nor, for that

matter, does he point out the items used to arrive at the

deduction of $10,131.50. The district court must determine

whether the hours claimed to have been expended on the fee

request bear a rational relationship to the number of hours

spent litigating the merits of the claim against Shawano

County. The fee applicant bears the burden of documenting

the appropriate hours and hourly rates to the satisfaction of the

district court. See Tomazzoli v. Sheedy, 804 F.2d 93,96 (7th

Cir. 1986).

D-3

The Defendant argues that the Plaintiff's request for

attorney fees should be reduced by two-thirds to reflect the

fees incurred in pursuing Menomonee County and the

Menomonee Indian School District. Shawano County requests

that this court exercise its discretion and reduce the amount of

fees based on the vague time descriptions, and because of the |

inadequate documentation. Like the Plaintiff, the Defendant

does not identify which charges it is challenging. The invoices

set forth the time spent on each entry so the challenge based

on vagueness of time is not supported by the submissions. A

review of the docket sheet reveals that of the 112 entries, 56

related to matters occurring prior to November 19, 2003. The

remaining 56 entries all related to filings after that date. Thus,

to apply the two-third reduction suggested by Deferdant,

would be unreasonable and not supported by the record.

The fees sought for work done on and after November 19,

2003, relate solely to the claim against Shawano County. The

total of those claimed fees amount to $46,556.00 and should

be separated from the total fees claimed of $102,040. 00,

leaving a balance of $55,484.00.

Plaintiff's counsel concedes that most of the work prior to

May of 2003, related to Plaintiff's claims against all three

Defendants. After May, 2003, Plaintiff's counsel asserts that

most of the fees related to the depositions which included

attorneys for all three Defendants. Without the assistance of

counsel, this court is unable to determine which depositions, if

any, relate solely to Shawano County and, therefore, must

assume that up to November 19, 2003, the depositions related

to all three Defendants arid will attribute one-third of the fees

incurred up to November 19, 2003, to each Defendant.

Ip-4

CONCLUSION

The Defendant does not challenge the hourly rate charged

by Plaintiff's counsel and the court will determine that the

“market value” of Plaintiff's attorney fees is reasonable. As set

forth above, the Plaintiff is entitled to recover attorney fees

incurred on or after November 19, 2003, in the amount of

$46.556.00, together with one-third of the fees incurred

between June 16, 2000 and November 19, 2003, in the amount

of $18,495.00, for a total of $65,051.00.

Plaintiff's counsel has filed a motion for a supplemental

award of attorney fees. Counsel seeks payment for fees

incurred in responding to the Defendant's motions after

verdict. Defendant has indicated that it does not have any

specific objections to the amount sought in the supplemental

motion. Therefore, the court finds that the sum of $4,208.50

sought by Plaintiff's counsel is reasonable and necessary for

the adequate representation of Plaintiff's interest subsequent to

the trial. Accordingly,

For the reasons explained above, the court ORDERS that

the Plaintiff's “Motion for Attorney Fees” (filed May 26,

2004) IS GRANTED IN PART AND DENIED IN PART.

The court orders the Defendant to pay the Plaintiff the sum of

Sixty-Five Thousand Fifty-One Dollars and No Cents

($65,051.00).

IT IS FURTHER ORDERED that the plaintiff's

additional “Motion for Attorney Fees” (filed June 21, 2004)

IS GRANTED. The court orders the Defendant to pay the

Plaintiff the sum of Four Thousand Two Hundred Eight

Dollars and Fifty Cents ($4,208.50) as additional attorney

fees.

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The total amount of attorney fees awarded to the Plaintiff

is Sixty-Nine Thousand Two Hundred Fifty-Nine Dollars and

Fifty Cents ($69,259.50).

IT IS FURTHER ORDERED that the Clerk of Court

shall enter an amended judgment as a separate document. See

Federal Rule of Civil Procedure 58. This amended judgment

shall provide that:

IT IS ORDERED AND ADJUDGED that Plaintiff

Naquaseh B. Waubanascum recover of the Defendant

Shawano County the sum of One Hundred Seventy-Five

Thousand Dollars and No Cents ($175,000.00) with interest

thereon at the rate as provided by law and his costs of this

action.

IT IS FURTHER ORDERED AND ADJUDGED that

this action is DISMISSED upon its merits.

IT IS FURTHER ORDERED AND ADJUDGED that

the Defendant shall pay the Plaintiff the total sum of Sixty-

Nine Thousand Two Hundred Fifty-Nine Dollars and Fifty

Cents ($69,259.50) as attorney fees.

Done and Ordered in Chambers at the United States

Courthouse, Milwaukee, Wisconsin, the 24" day of August,

2004.

BY THE COURT:

/S/

Thomas J. Curran

United States District Judge

E-1]

WISCONSIN ADMINISTRATIVE CODE

CHAPTER HSS 56

FOSTER HOME CARE FOR CHILDREN

(September 1990)

RELEVANT PROVISIONS

HSS 56.01 INTRODUCTION. (1) PURPOSE. The purpose

of this chapter is to protect the health, safety and welfare of

children placed in foster homes. The chapter established the

qualifications and responsibilities of foster parents, the size

and condition of the foster home and the essential

components of care which must be provided to each foster

child. Although children in need of foster care may not be

placed in a home that is not licensed under this chapter, a

license to operate a foster home does not entitle the holder to

placements.

(2) STATUTORY AUTHORITY. This chapter is

promulgated under the authority of s. 48.67(1), Stats., to

carry out licensing requirements under ss. 48.48(9),

48.57(1)(i), 48.61(7), 48.62, 48.66 and 48.75, Stats., to

establish a fair hearing procedure under s. 48.675, Stats., and

to establish criteria for supplemental payments to foster

parents under s. 49.19(12), Stats.

(3) TO WHOM THE RULES APPLY. Except as provided in

sub. (4), all requirements contained in this chapter shall be

met by all persons required to be licensed under s. 48.62,

Stats.

(4) EXCEPTION TO RULES. (a) A licensing agency may

grant an exception to any requirement in this chapter if the

licensing agency determines that the exception will not

jeopardize the health, safety or welfare of the foster children,

except that no exception may be granted to any of the

following requirements: ss. HSS 56.01; HSS 56.02; HSS

E-2

56.03(1), (2), (4)(a)1 to 5 and 8 and (b)2, and (6); HSS 56.04

(1) (a) and (b)2 to 7 and 9, (2), (4m) and (6)(a); HSS

56.05(3)(a), (4) (b), (c) and (e) to (h), (5) (a) and (c), (6) and

(10)(8); HSS 56.06(1)(8) and (b), (2), (3), (4), (5), (6)(e),

(7)(a), (8) and (10); HSS 56.07(1), (2)(c), (3), (4)fc), (5) (8)

to (i), (9)(8) and (b), (10) and (11); and HSS 56.09.

(b) An applicant or licensee wanting to ask the licensing

agency to grant an exception to a requirement in this chapter

shall submit the request in writing, stating the specific

provision of this chapter for which an exception is requested,

the justification for the requested exception and an

explanation of any alternative provisions planned to meet the

intent of the requirement.

cited on the license and shall be in effect no longer than 2

years from the date on which the exception is granted by

which time the licensing agency shall determine if there is

continued justification for the exception. In addition, the

licensing agency may impose conditions to be met within a

specified period of time by the licensee as an alternative to

compliance with any requirement for which an exception has

been granted.

(d) Any requirement which reads “if required by the

licensing agency” shall be met by an applicant or licensee

when the licensing agency requires the applicant or licensee

to meet that requirement.

HSS 56.02 DEFINITIONS. In this chapter:

(1) “Applicant” means a person who applies for a license to

operate a foster home, for renewal of a license to operate a

foster home or for modification of a license to operate a

foster home.

E-3

4) “Child” means a person under age 18 years of age.

(8) “County agency” means a county department of social

services under s. 46.215 or 46.22, Stats., or a county

department of human services under s. 46.23, Stats.

(11) “Foster child” means a child placed for care and

maintenance in a foster home by the department, a county

agency, a child welfare agency or a court.

(12) “Foster home” means any facility operated by a person

required to be licensed under s. 48.62, Stats., that provides

care and maintenance for no more than 4 foster children

unless all the children are siblings.

(13) “Foster parent” means a person with primary

responsibility for the care and supervision of one or more

foster children piaced in his or her home and who is the

person or persons referred to as “licensee” in this chapter.

(18) “Licensee” means a person or persons licensed under

5.48.62, Stats., and this chapter to operate a foster home.

(19) “Licensing agency” means the department, a county

agency or a child welfare agency.

HSS 56.03 APPLYING FOR A LICENSE. (1) WHO MUST

APPLY. Anyone proposing to provide foster care for

children shall apply to a licensing agency for a foster home

license. Application shall be made on a form provided by the

licensing agency.

E-4

(2) LICENSE PROHIBITION. No licensing agency or any

of its contracted or subcontracted agencies may issue a foster

home license to one of its own employees.

(3) REAPPLICATION FOLLOWING DENIAL OR

REVOCATION. No applicant or former licensee previously

denied a license or whose license was revoked may reapply

for a license within a period of 2 years following the

effective date of licensing denial or revocation.

(4) DOCUMENTS REQUIRED PRIOR TO LICENSING.

(a) Initial license. Before an applicant for an initial license

may be issued a license, the applicant shall submit the

following to the licensing agency:

1. An application form completed and signed by the

applicant. Married persons living together shall both sign the

application;

2. Written authorization for the licensing agency to contact

the department of justice or any federal or local law

enforcement agency to determine whether the applicant is

unqualified to receive a license for any reason specified

under s. HSS 56.04(4m) (b);

3. Verification of homeowner's or renter’s and vehicle

liability insurance coverage required under s. HSS 56.04(5)

and (6) or a request for a waiver in accordance with s. HSS

56.04(7). Verification means that the licensing agency

representative has personally seen the appropriate

documentation. A licensing agency need not retain a copy in

its files;

4. Health examination documentation for all household

members:

5. References from at least 3 nonrelatives;

E-5

6. Documentation of fire safety inspection, if required by the

licensing agency;

7. A private water supply test report, if required by the

licensing agency;

8. The employment history of the applicant; and

9. Other documentation or authorizations required by the

licensing agency for its review of the application.

(5) ACTION BY THE LICENSING AGENCY. Within 60

days after receiving a complete application for a foster home

license, the licensing agency shall either approve the

application and issue the license or deny the application If

the application for a license is denied, the licensing agency

shall give the applicant reasons in writing for the denial.

(6) EFFECTIVE PERIOD OF A LICENSE. A foster home

license shall be effective for a period not to exceed two years

and may be renewed.

HSS 56.04 LICENSEE OUALIFICATIONS. (1) GENERAL

REQUIREMENTS. (a) A person licensed to operate a foster

home shall be a responsible, mature individual who is fit and

qualified, who does not abuse alcohol or drugs or have a

history of law violations that substantially relate to operating

a foster home and who exercises sound judgment and

displays the capacity to successfully nurture foster children.

The applicant or licensee shaél give truthful and sufficient

information to enable the licensing agency to verify whether

or not he or she meets these requirements. Giving false

information or withholding information shall constitute

grounds for denial or revocation of the license.

(b) The licensee shall:

E-6

1. Be familiar with this chapter and comply with its

requirements;

2. Accept foster children for care only in conformity with the

conditions specified-on the license;

3. Cooperate fully with the licensing agency and any other

agency responsible for supervising foster children in the

licensee's care and to keep the licensing agency and any

other responsible agency informed of each child's progress

and problems;

4. Immediately notify the licensing agency of any change in

the job of the foster parent who works outside the home and

any change in the work schedule of the foster parent who

works outside the home. The licensing agency shall assess

the impact these changes will have on the licensee's ability

to provide foster care.

5. Immediately notify the supervising agency of any life-

threatening or serious illness or injury requiring medical

treatment for a foster child, the unauthorized absences of a

foster child from the home for longer than 8 hours or for a

period of time that cannot reasonably be justified by the

child's age, maturity or mental and emotional capacity, or

any similar crisis related to a foster child;

6. Secure authorization of the supervising agency before

takine a foster child our of state for a period longer than 24

hour);

7. Cooperate with efforts of the supervising agency to

maintain relationships between foster children and their

families and with the agency's efforts to implement plans for

care and treatment and for arrang.ng permanency of care as

required under s. 48.38, Stats;

E-7

8. Allow the supervising agency up to 30 days in which to

make alternate placement plans when the licensee asks that a

foster child be removed from the home; and

9. Maintain in confidence all personal information about

foster children and their families.

(4) HEALTH. (a) A person licensed to operate a foster home

shall be in good health.

(b) The good health of an applicant for an initial license to

operate a foster home shall be documented by the applicant

presenting to the licensing agency a written statement from a

physician that, based upon a medical examination performed

within the previous 6 months, the applicant does not have

any illness or disability that is likely to threaten the health of

foster children or interfere with the applicant's capacity to

provide care.

reason to believe that the physical or mental health of an

applicant, licensee or other household member may pose a

threat to the health, safety or welfare of children in care, the

licensing agency may require an alcohol and other drug

abuse assessment or physical health or mental health

evaluation of the person as a condition for licensing or

relicensing.

(4m) CRIMINAL RECORD. (a) Before a foster home

license is issued or renewed, the applicant for a license or

foster parent applying for renewal of a license shall provide

written authorization for the licensing agency to contact the

department of justice and federal and local law enforcement

agencies to determine whether the applicant is unqualified to

receive a new license or have an existing license renewed for

any reason specified in par. (b).

E-8

(b) An applicant or licensee is unqualified to hold a license if

the applicant or any other adult living in the household:

1. Is the subject of a pending state or federal criminal charge

if the circumstances of the charge substantially relate to

caring for children or operating a foster home; or

2. Has been convicted of a felony, misdemeanor or other

state or federal offense, the circumstances of which

substantially relate to caring for children or operating a foster

home.

HSS 56.07 CARE OF FOSTER CHILDREN. (1)

PRINCIPLES FOR HUMANE AND NURTURING CARE.

The foster parents shall provide humane and nurturing care

to each child placed in the foster home. This is care that:

(a) Ensures that the child is provided a humane physical and

psychological environment;

(b) Is respectful of the child as a person;

F-1

1 UNITED STATES DISTRICT COURT

2 FOR THE EASTERN DISTRICT OF WISCONSIN

4 NAHQUASEH B. WAUBANASCUM,

5 Plaintiff,

6 VS. Case No. 01-C-111

7 SHAWANO COUNTY, JURY TRIAL

8 Defendant.

OS ee

11 VOLUME 1

12 TRANSCRIPT OF TRIAL

13 BEFORE THE HONORABLE THOMAS J. CURRAN,

14 UNITED STATES DISTRICT JUDGE, AND A JURY

18 Milwaukee, Wisconsin

19 May 10, 2004

20 9:30 a.m.

24 Proceedings recorded by mechanical stenography,

transcript

25 produced by computer-aided transcription.

F-2

15 THE WITNESS: Richard Kane, K A N E.

16 DIRECT EXAMINATION

17 BY MR. GERBERS:

18 Q. Good afternoon, Mr. Kane. Would you please state

19 Ag omenaeg

20 A. Home or -

21 Q. Business is fine.

22 A. 607 East Elizabeth, Shawano, Wisconsin.

23 Q. And your occupation?

24 A. I'm the Deputy Director for Social Services.

25 Q. Shawano County?

1 A. Correct.

2 Q. How long have you held that position?

3 A. Eight or nine years.

4 Q. Have you held that position in 1995 at the time that a

5 foster home license was issued to one Mark Fry?

6 A. Correct.

7 Q. As part of your duties, Mr. Kane, you're aware of the

8 statutes concerning the issuance of foster care licenses; is

9 that true?

10 A. Lam.

11 Q. Mr. Kane, I'm showing you what has been marked as

Exhibit

12 Number 2, which is the HSS 56 foster care -- foster

home care

13. for children. Is that correct?

14 A. That's correct.

15 Q. That is a provision under the Wisconsin

Administrative Code?

16 A. Yes.

17 Q. And that's law here in the State of Wisconsin?

18 A. That's correct.

19 Q. And the particular edition that you have here

September of

F-3

20 1990, which would have been in effect at the time in

1995?

21 A. Correct.

1 A. Permitting who to do an investigation about what?

2 Q. Let me just rephrase the question. Are you familiar

with

3 HSS 56.04 of the Administrative Code?

4A. I can't reference this thing, you know, verbatim, but I

5 familiar with it.

6 Q. You're familiar with the information that an applicant is

7 supposed to get to the licensing agency so that you can

take a

8 look at that information?

9A. Correct.

10 Q. Showing you part of HSS 56 concerning those

specific

11 provisions.

12 First of all, it indicates with respect to criminal

13 records that before a foster home license is issued cr

renewed,

14 that they have to provide written authorization for the

15 licensing agency to contact the Department of Justice and

16 federal and local law enforcement agencies to determine

whether

17 or not that applicant is qualified or unqualified to receive

18 license. Is that true?

19 A. Correct.

20 Q. Who was the licensing agency in this case?

21 A. Shawano County.

| Q. Nor did you receive any type of employment history

from

2 Mr. Fry, only the home care study.

3 A. Correct.

F-4

4 Q. You never spoke with Mr. Fry?

5 A. That's correct.

6 Q. In fact, the truth of the matter is, you didn't have

7 anything other than the two pages that are over to your

left; is

8 that correct?

9 A. That is correct.

10 Q. Now, there's been talk by your counsel in his

opening

11 statement that Mr. Fry supposedly had some glowing

12 recommendations and so forth from the school that he

had come

13 from. The truth of the matter is, you didn't have those

14 available anyway at the time that this license was issued,

true?

15 A. That's correct.

16 Q. Now, Mr. Kane, it's my understanding that, what we

heard

17 Mr. Bohl indicate in his opening statement, that in this

18 particular instance Shawano County relied upon another

county to .

19 basically conduct the necessary searches, get the

employment

20 history, and those items that are specifically delegated to

21 Shawano County in this instance under the

Administrative Code.

22 Is that true?

23 A. It was implied they would do that.

24 Q. There is no provision in the Wisconsin

Administrative Code

25 for that, is there?

1 A. I'm not sure.

2 Q. Now, even if you did that, Mr. Kane, as we look here

you

3 could tell that references and background checks have

been

F-5

4 placed in the file upon receipt. Correct?

5 A. Correct.

6 Q. Did you nave those background checks before you

actually

7 issued the license?

8 A. I believe they were done.

9 Q. Did you have them?

10 A. No.

11 Q. This license was issued by Mr. Stuber without any

knowledge

12 as to what the contents of any background search were;

is that

13 true?

14 A. I don't know. I'm assuming yes.

15 Q. So it was implied at least in your mind that those

16 particular things would be taken care of my Menominee

County.

17 A. Correct.

18 Q. However, you personally would not recommend the

issuance of

19 a license unless that background check had been

completed,

20 correct?

2; A. That is correct.

22 Q. Did you ever request any employment verification

from

23 Mr. Fry?

24 A. No.

25 Q. Do you know if anyone from your agency did?

1 A. 1am not sure.

2 Q. At the time of licensing you knew that Mr. Fry had

about two

3 years under his belt at Menominee High School and 10

years in

4 the Chicago cities area with another school, true?

5 A. True.

F-6

6 Q. You didn't contact any of the schools or anything,

though,

7 did you?

8 A. [had no reason to.

9 THE COURT: Is that a no?

10 THE WITNESS: No.

11 BY MR. GERBERS:

12 Q. Is it a true statement that upon the issuance of the

license

13 your department took no further action with respect to

14 monitoring that license?

15 A. That's correct.

21 Q. In fact, you recall being asked at the time of your

22 deposition that if when he made his application for a

foster

23 home license you knew what he engaged in in Illinois,

he never

24 would have been issued a foster license.

25 A. That's correct.

1 Q. Your statement was “absolutely not?” Is that correct?

2 A. I don't follow --

3 Q. lLasked you if he would have been issued a foster

license if

4 you knew the information?

5 A. If we would have known the information about Mr.

Fry's past?

6 Q. Right.

7 A. We would not have issued him a license.

8 Q. In this particular instance you reviewed the home

study and

9 made a recommendation to Mr. Stuber your director that

that

10 license be issued. Correct?

11 A. Correct.

F-7

12 Q. It's my understanding Mr. Stuber as the director

decides

13 whether or not a license is issued?

14 A. That's correct.

15 Q. He has final authority on that?

16 A. Correct.

1 A. I can't find that immediately.

2 Q. Is it in there?

3 A. I'm assuming it is.

4 Q. Well, I'm going to give you the time to look through

it. I

5 don't mean to do it to the jury, but I want you to -- I think

6 you have the original exhibit there. I want to see in the

7 Administrative Code, Mr. Kane, where it says that the

licensing

& agency has the ability to assign its obligations to another

9 county.

10 (Witness peruses document.)

11 A. Can't find it.

12 Q. I didn't expect that you would, Mr. Kane.

13 With respect to the other issue with the references

14 all look good, you didn't have the references when you

issued

15 this license, did you?

16 A. No.

17 Q. You also said the background check had been taken

care of.

18 In fact, you later found out well after this case had

started,

19 that that background check was done after your license

was

20 issued and only in the State of Wisconsin. True?

21 A. I'm not sure where it was done.

22 Q. Bottom line is you didn't have it before you issued

the

23 license, did you?

F-8

24 A. No. I thought it was in the file.

16 THE WITNESS: Ronald N. Stuber,S TUBER.

17 DIRECT EXAMINATION

18 BY MR. GERBERS:

19 Q. Mr. Stuber, would you please tell us your business

address?

20 A. 607 East Elizabeth Street, Shawano, Wisconsin.

21 Q. And your occupation, sir?

22 A. I'm the Director of Social Services.

23 Q. And you've held that position for how long?

24 A. About 18 years.

1 when a foster care license was issued to Mr. Mark Fry?

2 A. Yes, I did.

3 Q. There has been admitted into evidence in this

particular

4 case an exhibit that might be easiest to look at, Exhibit

1095A,

5 which is the foster home license. Is that correct?

6 A. lassume so. I see the foster home license here.

7 Q. Is that your signature which appears on that?

8 A. Yes, itis.

9 Q. That document gave Mr. Fry the legal authority to

have

10 children placed in his home; is that true?

11 A. That's correct.

12 Q. Consistent with what I understand to be past

practices and

13 the policy of Shawano County, as testified to by Mr.

Kane, you

14 issued this license without conducting the licensing

15 requirements specified in HSS 56. Is that true?

16 A. I relied on Menomince County's report, that's

correct.

17 Q. So the answer to my question was yes, correct?

18 A. Would you repeat the question?

F-9

19 MR. GERBERS: If we could have the court

reporter read

20 it back, please.

21 (Record read.)

22 THE WITNESS: | did not conduct any

investigation.

23 BY MR. GERBERS:

24 Q. So the answer to the question is yes?

25 A. Is yes.

{ Q. Okay. You don't dispute the fact that you were the

2 licensing agency, correct?

3 A. That's correct.

4 Q. In fact, on the license that I see there it specifically

5 says that, Mark Fry, having been found to be in

substantial

6 compliance with HSS 56, true? Very top line?

7 A. That's part of the license, correct.

8 Q. That is something that you're certifying by signing

your

9 name to that document, correct?

10 A. That's correct.

11 Q. You did that upon the recommendation of your staff,

12 Mr. Kane?

13 A. That's correct.

14 Q. And the only document that you had available to you

was the

15 foster home study that we've identified in this case as

Exhibit

16 Number 1, correct?

17 A. That's correct.

18 Q. You also did not have any criminal background

information,

19 work history, or anything of that nature, correct?

20 A. I did not, no.

21 Q. Now, it's my understanding a home study would

typically

F-10

22 contain the results of a background check whether it was

done by

23 you or someone else, true?

24 A. Would typically contain it?

25 Q. It would contain a criminal background.

1 A. It would contain the requirements, that's correct, of a

2 background check or a criminal check that would be done.

3 Q. In this particular case you didn't have that information

4 the time --

5 A. I did not have the results of that no, I did not.

6 Q. And you also had no information regarding his

employment.

7 Is that true?

8 A. Other than what would have been contained in the

study, no.

9 Q. I think we've established that all that you and Mr.

Kane

10 reviewed before that issue was licensed was that

document there.

11 A. That's correct.

12 Q. And no conversations occurred with anyone from

Menominee

13 County before it was issued?

14 A. Not by myself.

15 Q. I'm going to ask you the same question that | asked

16 Mr. Kane. Are you aware of any administrative or

statutory

17 authority which alleviates the 1icensing agericy's

obligation

18 under HSS 56?

19 A. I'm not sure I understand the question. Under HSS

56 all of

20 the elements need to be completed. There has to be an

21 application, there has to be a written authorization to do a

F-11

22 criminal background check, there has to be a safety

check, an

23 insurance check. All of those things are required. There

is no

24 exception to that rule that I'm aware of.

25 Q. The purpose for which you get that information is set

forth

1 in 56.04(1)(a), and thet is to enable the licensing agency

2 verify wherever you need to determine whether the

licensing

3 requirements have been established, correct?

4 A. That's correct.

5 Q. And you concede in this case that that was not done

by the

6 licensing agency?

7 MR. BOHL: Object to the form of the question.

8 THE COURT: Overruled. You may answer.

9 THE WITNESS: Can you repeat?

10 BY MR. GERBERS:

11 Q. Sure. You did not go through and verify whether or

not

12 those particular elements had been met.

13 A. Did 1 personally, no.

14 Q. As part of these proceedings you signed a response

to some

15 interrogatories. Is that correct?

16 A. That's correct.

17 Q. Mr. Stuber, showing you what's been marked as

Exhibit Number

18 4, do you recognize that document?

19 A. Yes, I do.

20 Q. Is this your signature which appears at the end of

that

21 document?

22 A. Yes, it ts.

F-12

23 Q. Your signature was under oath, correct?

24 A. Yes, correct.

25 Q. Take a look at Exhibit Number -- or excuse me,

Interrogatory

1 Number 2, you were asked to please state in detail the

2 guidelines and policies followed by the county when

conducting a

3 background investigation prior to the issuance of a foster

care

4 license to any person.

5 Your response was:

6 Shawano County Department of Social Services

completes

7 a foster home study in accordance with Chapter 48 of the

8 Wisconsin Statutes and HSS 56 for foster care licensing.

For

9 foster care licenses requests by other counties, Shawano

County

10 Department of Social Services relies upon the

completion of the

11 licensing requirements by the requesting county

department and a

12 copy of their foster home study.

13 A. That's correct.

] Correct?

2 A. That's correct.

3 Q. That's the courtesy license that we've referred to here

4 wday?

5 A. That's correct, yes.

6 Q. Now, there is no reference in HSS 56 regarding

courtesy

7 licenses? .

8 A. The word “courtesy” does not appear that I'm aware

of, no.

F-13

9 Q. Now, at the time that you answered these

interrogatories,

10 number 7, you were asked:

11 At any time prior to the issuance of a foster care

12 license to Mark Fry, was a criminal background inquiry

made with

13 the Department of Justice as required by the Wisconsin

14 Administrative Code?

15 If the answer is in the affirmative, please state the

16 date upon which the Department of Justice was

contacted.

17 If the answer is negative, please state the reason

why

18 this requirement was not performed by the county.

19 Your response says: Unknown to Shawano

County

20 Department of Social Services.

21 Correct?

22 A. At the time of this it was unknown, other than my

assumption

23 based upon their report that one was done which

requires that

24 there be written authorization on the part of the applicant

25 actually complete whatever investigations, criminal

background

1 they would need to do.

2 Q. Your whole basis of issuing this license was based

upon

3 assumptions that someone else taking care of those

requirements,

4 true?

5 A. And belief that they would follow through as they had

6 previous cases.

F-14

7 Q. But you never checked into that, did you? You never

checked

8 into that before you issued the license.

9 A. I think, again, based upon your previous question --

10 Q. Did you or did you not, Mr. Stuber, check to see if

the

11 items that are required by the statute --

12 A. No, I did not.

13 Q. -- were done? Okay.

14. Number 8 asked you whether or not to the extent that

15 an inquiry was made to the Department of Justice, what

the

16 results of the criminal background investigation were

and what

17 the county did further to investigate the information set

forth

18 by the Department of Justice.

19 Once again, unknown to Shawano County

Department of

20 Social Services. Correct?

21 A. At the time of this interrogatory, that's correct.

22 THE COURT: Can you establish the date of the

inquiry?

23 MR. GERBERS: J don't have that in this particular

24 document, Your Honor. | have the date of thie

interrogatory as

25 being signed on September 24th, 2001.

1 Q. Did you do anything to try to ascertain whether or not

the

2 licensee was still free of any type of crime after the license

3 was issued?

4 A. Did I personally, no.

i4 THE WITNESS: Randall S. Giese, GIES E.

15 DIRECT EXAMINATION

16 BY MR. GERBERS:

F-15

17 Q. Good afternoon, Mr. Giese.

18 A. Good afternoon.

19 Q. Detective, would you please state your business

address?

20 A. 405 North Main Street, Shawano, Wisconsin, 54166.

21 Q. And your occupation?

22 A. Deputy sheriff for the Shawano County Sheriff's

Department.

23 Q. And how long have you held that position?

24 A. I've been a deputy sheriff for approximately 25

years.

5 Q. I'm sorry, I should rephrase that question. The first

6 matter that you got involved with that concerned Mark

Fry would

7 have occurred on or about October 21st, 1995?

8 A. Yes, that is correct.

9 Q. Detective, can you tell us what you were called to do?

10 A. I was called in for a report of an alleged sexual

assault

11 that was at the Shawano County Community Hospital.

12 Q. And who called you?

13 A. J am not sure who called, probably our dispatch

center.

14 Q. And what was the information that was relayed to

you

15 concerning the facts of your matter?

16 A. There was a juvenile male at the Shawano

Community Hospital

17 who they felt had been sexually assaulted.

18 Q. Can you tell us the circumstances under which he

was

19 believed to have been sexually assaulted?

20 A. ! guess I don't understand where you're going with

that,

21 Counselor.

F-16

22 Q. Did you speak to someone, either the minor himself

1 Q. Can you recall what those were?

2 A. I first initially spoke with the doctor, and he stated

that

young man said to him that he felt like he had been

messed

4 with; that his genitals had been touched and the like.

5 Q. You were specifically told that he went to bed and

woke up

6 with some different clothes on?

7 A. Yes, once I got to talk to him.

8 Q. All right, let's move right to what he told you.

9 A. He stated he was picked up by a male at his residence

and

10 they had gone tc another city and bought some clothing,

and had

11 come home. He drank some type of juice, felt tired,

groggy, and

12 went up to bed, and felt that he had dreamt that this

individual

13 was, as he put it, messing with him.

14 Q. Did he go into any more detail about what “messing”

meant?

15 A. He felt that Fry had -- or the individual Mark Fry had

16 rubbed his penis on his leg and touched his genitals.

17 Q. Was there also wetness noticed in the groin area of

the

18 young boy's underwear?

19 A. He said he noticed that it was wet_yes.

20 Q. What did you do after that?

F-17

21 A. I had the medical staff do a sexual assault kit and

spoke

22 with the individual and allowed him to go home with his

father

23 who was at the emergency room.

24 Q. Did you do anything else at this point in time?

25 A. I don't believe that night any longer.

Q. Could you tell the jury what a benzoate is?

A. It's a depressant type substance, but it was only a

iminary test. It couldn't be isolated any further than

But wasn't there some subsequent tests that were

performed?

6 A. On the blood? Not to my knowledge on the blood.

7 Q. That has the effect of being like a tranquilizer, that

8 particular drug; isn't that correct?

9 A. That is correct.

10 Q. Did the minor child voluntarily consume any of that

to the

11 best of your knowledge?

12 A. He had stated he was taking a cold medication.

13 Q. Would that be sufficient to give us what we saw in

this

14 particular case? es

15 A. lam nota pharmacist -- I'm not sure.

16 Q. Okay. You told this to an intake worker at Shawano

County

17 Department of Social Services; is that true?

18 A. Yes.

19 Q. Why did you do that?

20 A. it's the policy of our department to notify social

services

21 when the victim is a juvenile.

22 Q. What information -- or, excuse me, what did

Shawano County

23 do with that information if anything?

F-18

24 A. | at that point in time told them that the child was

safe,

25 he was going home, and that we would revisit this

later as I

1 could gain more information.

2 Q. Did Shawano County tell you that, jeez, we have a

license

3 issued to this guy, we have another child in his care?

4 A. I don't recall them saying that, no.

5 Q. In fact, you believe you had other conversations with

6 Shawano County personnel after that concerning the

October 21st,

7 1995 incident, true?

8 A. Pardon? Can you rephrase that, please, sir?

9 Q. Sure. You believed that you had conversations with

Shawano |

10 Cownty Department of Social Services personnel after

that time

11 as well.

12 A. Yes.

13 Q. It's my understanding that you took it upon yourself

to do

14 some investigating into this guy's background after this

15 incident.

16 A. Yes, 1 did.

17 Q. My understanding is that you did a computerized

check in

18 Illinois?

19 A. Yes.

20 Q. That's ~~ething you do from your computer at your

office?

21 A. Yes.

22 Q. I understand cr -- Strike that.

23 Why did you do it in Illinois?

24 A. Because I developed information that Mr. Fry had

resided in

F-19

25 Illinois.

1 Q. As part of your check you did a criminal background

check,

2 correct?

3 A. That would be the teletype I ran, yes, to see if there

was a

4 criminal record.

5 Q. What did you discover?

6 A. | found that in running him to Illinois there was a

7 conviction for disorderly conduct in Cook County.

8 Q. Is that a misdemeanor?

9 A. Yes.

16 Q. Did you then proceed to find out the circumstances

of that

11 arrest?

12 A. Yes.

13 Q. What was that? What did you do?

14 A. I contacted the Northbrook Police Department and

asked them

15 to send the file reference this case.

16 \. Were they cooperative?

17 A. Yes, they were.

18 Q. They sent you the information you requested?

19 A. Yes.

20 Q. Any difficulties getting it?

21 A. No.

22 Q. Showing you what has been marked as Exhibit

Number 8. Is

23 that the documentation that you had received from the

Northbrook

24 Police Department?

25 A. I don't know if this is the entirety of it, but it looks to

1 be from Northbrook Police Department, yes.

2 Q. What did you find out about the nature of his

misdemeanor

F-20

3 conviction in Northbrook, Illinois?

4 A. I found that he was convicted reference an incident

when he

5 was on a student's roof at night.

6 Q. That specifically involved being called to the home, is

that

7 ‘correct, police work?

8 A. Yes.

9 Q. Do you remember who had called them?

10 A. The owners of the house.

11 Q. And what was he doing? You said he was on the

roof. Can

12 you be a little more specific? What did the police report

13 indicate; do you recall?

14 A. That there was a prowler on the roof of this house.

15 Q. And what did they do, do you recall, the

homeowners?

16 A. Called the police.

17 Q. And the police responded?

18 A. Yes.

19 Q. Now, when they found Mr. Fry -- well, they found

the

20 suspect, they found him on the roof, was he carrying

anything?

21 A. 1 am not sure they found him on the roof. They

found him in

22 the area, and | think he had a pair of binoculars.

23 Q. May you be confusing two incidences? Were there a

couple

24 different things asserted in the police file regarding Mr.

Fry?

25 A. Acouple different things. I guess I'm --

1 Q. Let's take a look at the actual ‘cident report if we

can.

2 I believe it's the third page of Exhibit Number 8.

3 A. Is that the one you're talking --

F-21

4 MR. BOHL: No objection to the admission, Your

Honor.

5 THE COURT: No objection? All right, you may read

it,

6 Counsel.

7 (Exhibit 8 offered and received.)

8 THE WITNESS: Are you talking about "reporting

officer

9 responded with units 37 and 34?"

10 BY MR. GERBERS:

11 Q. Yes.

12 A. Okay.

13. (Reading) Reporting officer reported with units 37

14 and 34 to 2111 Mallard for a subject on the roof of the

house.

15 Upon arrival at 2111 Mallard, this officer and Officer

Matheny,

16 unit 37, went to the south side of the house. Officer

Matheny

17 then entered the -- rear, I believe -- on the east side of

the

18 house and upon shining his flashlight located the subject

19 wearing a dark ski mask, black clothes, laying on the

roof. At

20 this time I was also able to locate the subject with my

21 flashlight. Subject was then ordered to come down from

the

22 roof, and after doing so he was taken into custody and

23 transported to ESB by Officer Matheny and Patrolman --

I can't

24 read the name.

25 Q. Okay. Is it your recollection that he was carrying

some

1 mace and a flashlight?

2 A. Yes. I believe the mace was in a pocket and the

binoculars

F-22

3 I spoke of earlier were found on a fence in the location --

near

4 the location.

5 Q. Reaching down towards the window, that's how the

parties

6 that had observed him called the police; is that correct?

7 A. I believe so, yes.

8 Q. Reaching down over the roof towards the window and

9 THE COURT: Counsel, what relevance does that

have?

10 MR. GERBERS: What's that?

1] THE COURT: What relevance does that have?

12 MR. GERBERS: To the circumstances of the

crime.

13 THE COURT: Well, you've established that he

was there

14 atthe crime.

15 MR. GERBERS: Oh.

16 BY MR. GERBERS:

17 Q. Was that the home of a student at the time?

18 A. Yes, a student in Northbrook, !Ilinois.

19 Q. Attached to that is a number of pictures; is that

correct?

20 Police report?

21 A. Yes.

6 Counsel, you may proceed.

7 MR. GERBERS: Thank you, Your Honor.

8 BY MR. GERBERS:

9 Q. We began to talk about some photographs that were

taken with

10 respect to Mr. Fry's ninja outfit when he was on top of

the home

11 of another student, correct?

12 A. Yes.

13 Q. You've seen those pictures, they're part of your file;

F-23 ‘

14 that correct?

15 A. Yes, I have.

16 Q. Are these pictures that were taken by the Northbrook

Police

17 Department of Mr. Fry in his black ninja costume?

18 A. Looks to be black and white blowups of those

pictures, yes.

19 THE COURT: Do you want to identify that,

Counsel, for

20 the record? It will be part of Exhibit 8?

21 MR. GERBERS: 8A.

22 THE COURT: Uh-huh.

23 BY MR. GERBERS:

24 Q. Those photos are contained in Exhibit 8 as well,

correct?

25 A. I believe so, yes. Yes.

1 Q. Now, additionally we discovered another incident that

2 occurred in 1991 on page 14 of this report; is that correct?

3 MR. BOHL: Object to the form of that question.

The

4 word “initially.”

5 THE COURT: I think he said additionally.

6 MR. BOHL: Oh, then I misheard.

7 THE WITNESS: Page 14 you said?

8 BY MR. GERBERS:

9 Q. It's identified as page 14. Last two pages of Exhibit

10 Number 8?

11 A. Okay. Yes.

12 Q. There's an interview by the police department of

another

13 individual who had contact with Mark Fry. Is that

correct?

14 A. Yes.

15 Q. Call him Dennis for purposes of these proceedings.

Mr. Fry

16 was Dennis’ social studies teacher; is that correct?

F-24

17 A. That's what it says, correct.

18 Q. And Dennis actually resided in the Fry home for a

short

19 period of time; is that correct, maybe a couple of

months?

20 A. That is correct.

21 Q. Moved back in with his family after that; is that

correct?

22 A. That is correct.

23 Q. It says here in the rerrt that there were

approximately 10

24 to 15 incidents where a subject dressed in dark clothes

was

25 observed in his backyard late at night. Correct?

1 A. Correct.

2 Q. Dennis related on several occasions he identified the

3 subject as “offender Fry," usually after a foot chase. True?

4A. Yes.

5 Q. He would confront Fry who would deny he was in the

yard. He 6. remembers two incidents with the offender Fry

specifically. The

7 first incident was during the fall of 1989. He was upstairs

8 watching television with friends. Steve Krueger was in

Dennis'

9 home sleeping when he was awakened by a subject

entering the

10 window. The subject in the window was immediately

identified as

11 offender Fry. A foot chase ensued but Fry got away.

Correct? ;

12 A. Yes.

13 Q. His car however was observed in the area? Is that

correct?

14A. Yes.

15 Q. Another time you chased Fry to a point where he was

actually

F-25

16 stopped by the police, at which point Fry said he was

stopped as

17 a result of racing with a friend? Is that correct?

18 A. Yes.

19 Q. And Dennis also advised that when offender Fry was

in his

20 yard he always wore black or dark clothes, always wore

the same

21 type of gym shoes, and always appeared approximately

one hour

22 after his lights were turned out. Correct?

23 A. Correct.

24 MR. GERBERS: Your Honor, I would move Exhibit 8

into

25 evidence.

] MR. BOHL: I believe it already is, Your Honor,

but no

2 objection.

3 THE COURT: All right, Exhibit 8 is received.

4 (Exhibit 8 offered and received.)

17 BY MR. GERBERS:

18 Q. Thank you. Finally, is: Exhibit Number 8, Detective,

there's

19 a statement from a concerned citizen calling Mr. Fry's

actions

20 suspect and more deviant in nature; is that correct?

21 A. Yes.

22 Q. This is all information that was available prior to

August ;

23 21st of 1995. Correct?

24 A. I'm sure it would have been, but I didn't get it at that

25 time.

1 BY MR. GERBERS:

2 Q. He was in fact convicted. Is that true?

F-26

3 A. He was convicted of disorderly conduct, yes.

4 Q. You also received a number of newspaper articles; is

that

5 correct?

6 A. Yes.

7 Q. Related to the specific allegations of the complaint

that he

8 was on the student's roof in a ninja outfit; is that true?

9 A. Yes, l received newspaper articles of that incident and

10 others.

11 Q. And those articles appear not only in the local

Northbrook

12 Star, but also the Chicago Tribune. Correct?

13 A. Yes.

14 Q. Appears to be about 12 different articles; does that

sound

15 about right?

16 A. I haven't counted them in quite awhile, but that --

yes,

17 that looks to be approximately.

21 Q. Let's talk about Mr. Waubanascum a little bit.

Remember

22 when your first contact was with Nahquaseh?

23 A. I believe it was right after he was removed from the

home.

2 A. He felt at first that he was dreaming these, much as

the

3 earlier young man Mr. Shawanokasic felt.

4 Q. Before we move on, did you ever talk to Mr.

Waubanascum

5 about Frank Shawanokasic -- excuse me, about the other

6 gentleman?

7 A. No, I didn't.

8 Q. So his complaints were consistent with that of the one

9 gentleman who believed he had been assaulted?

F-27

10 A. Yes.

11 Q. Did he talk about any type of oral sex?

12 A. Yes, there was mention of that, both asking

Waubanascum to

13 perform that and asking to perform it on Fry.

14 Q. Did he also think ihat maybe Mr. Fry had inserted

his

15 fingers into his rectum?

16 A. Yes, I believe there was indications of that also.

17 Q. Did he talk to you about any of his trips?

18 A. Yes, they talked of one to Phoenix, Arizona, |

believe, in

19 which Mr. Fry tried to have sexual relations with him,

and also

20 another one in Oshkosh, | believe.

21 Q. Anything else that he told you about?

22 A. I'm not aware of any right offhand. I'm sure there

were

23 more.

24 Q. Did he tell you about the episode that he knew was

legit as

25 far as going to Albuquerque, New Mexico?

1 A. Yes.

2 Q. What did he tell you about that time?

3 A. I believe that was when Fry put in a pornographic

movie and

4 attempted to have sexual relations with him and --

5 Q. Did he tell his grandmother about what was going on?

6 A. Yes, he did.

7 Q. Did he talk to you about how Fry tried to intimidate

him as

8 far as telling him he'd have to go back to the group home

if he

9 told anybody what was going on?

10 A. And that everybody would find out. And then he

was told to

F-28

11 tell his grandmother that he had lied to her and that that

12 really didn't happen.

13 Q. You also had some discussions that are contained in

your

is that

15 correct?

16 A. Yes.

17 Q. Based upon your discussions with Mr.

Waubanascum as well as

18 the other young man who had been assaulted, did you

have some

19 susnicion or did you come to some conclusion as to what

was

20 happening as to these dreams?

21 A. I guess I don't --

22 Q. What was causing these dreams, what was putting

them into

23 this dreamy state?

24 A. The information that Investigator Snow supplied was

he had

25 seen a news article on the drug Rohipnol which was a

date rape

1 Q. Mr. Fry was ultimately convicted of the crimes that he

had

2 perpetrated against Mr. Waubanascum and the other

child; is that

3 correct?

4 A. Yes.

5 Q. And he's still serving prison?

6 A. As far as 1 know, yes.

F-29

] UNITED STATES DISTRICT COURT

2 FOR THE EASTERN DISTRICT OF WISCONSIN

SEES Oe

4 NAHQUASEH B. WAUBANASCUM,

5 Plaintiff,

6 VS. Case No. 01-C-111

7 SHAWANO COUNTY, JURY TRIAL

8 Defendant.

EEE

11 VOLUME 2

12 TRANSCRIPT OF TRIAL

13 BEFORE THE HONORABLE THOMAS J. CURRAN,

14 UNITED STATES DISTRICT JUDGE, AND A JURY

18 Milwaukee, Wisconsin

19 May 11, 2004

20 9:00 a.m.

24 Proceedings recorded by mechanical stenography,

transcript

25 produced by computer-aided transcription.

F-30

19 THE WITNESS: Aida Vinent-Cantoral, AID A,

20 VINENTdashCANTORAL.

21 DIRECT EXAMINATION

22 BY MR. GERBERS:

23 Q. Ms. Cantoral, what is your present business address?

24 A. P.O. Box 462, Greéndale, Wisconsin.

5 Q. Now, if in fact Shawano County, as we've heard from

6 Detective Giese in this case, became put on notice -- their

7 social services department was put on notice of these

8 allegations while Mr. Waubanascum was in the Fry home,

what

9 would you expect the licensing agency to do in that case?

10 MR. BOHL: Object to the form of that question.

It's

11 a hypothetical question and the witness hasn't been given

enough

12 facts to meaning fully address the hypothetical.

13 THE COURT: Overruled. You may answer.

14 THE WITNESS: I would have found out more

about the

15 allegations and taken steps to put a child in a safe place

until

16 the investigation ts completed.

17 BY MR. GERBERS:

18 Q. And as far as the licensing agency itself?

19 A. The same thing, sir. | would have done an

investigation and

20 made sure that that child was in a safe place in

compliance with

21 Chapter 48 and HS 56.

22 Q. You stated earlier that you were critical of other

parties.

23 Why are you so critical of Shawano in this case?

24 A. They had the ultimate opportunity not to put Mr.

Waubanascum

F-31

25 in the home of Mark Fry.

12 THE WITNESS: Nahquaseh Waubanascum,

13 NAHQUASEH, Waubanascum. WAUBANA

SCUM.

14 THE REPORTER: Would you spell your first

name again.

15 Please.

16 THE WITNESS: NAHQUASEH.

17 DIRECT EXAMINATION

18 BY MR. GERBERS:

19 Q. Nahquaseh, how old are you?

20 A. 24.

21 Q. And your date of birth?

22 A. 8/6 of '79.

23 Q. What nationality are you?

24 A. Native American.

10 Q. Now, in December things started to happen in your

11 relationship with Mr. Fry; is that correct?

12 A. Yes.

13 Q. I know that it's not an easy thing for you to go

through, I

14 know that there's already testimony from Officer Giese

including

15 your statement, but I do want the jury to hear from you

as to

16 some of the things that started to happen to you and

these

17 dreams that you were having.

18 Would you start by telling us about when they

started?

19 A. Usually I was sleeping, I had dreams of him

touching me,

20 fondling me, masturbating in front of me, trying to stick

21 himself in me, trying to make me give him oral sex.

22 Q. Did he try to give you oral sex?

F-32 7

23 A. Yes.

24 Q. Were you usually erect or no?

25 A. No.

1 A. What's this.

2 Q. What was his response?

3 A. He said some lubricant or something like that.

4 Q. By this time did you suspect that he was engaging in

this

5 activity with you?

6 A. Kinda, yeah.

7 Q. I believe that the last episode, at least I'm aware of,

was

8 shortly thereafter; is that correct?

9 A. Yes.

10 Q. And where did that occur?

11 A. Albuquerque, New Mexico.

12 Q. What were you doing down there?

13. A. Convention, all Indian thing that they went to for

schools

14 inthe United States.

15 Q. And when this -- when you went on this trip I

understand

16 that there was a pornographic video ti... was rented?

17 A. Yes.

18 Q. And what did Mr. Fry do?

19 A. He said I know how you like to watch porn movies

so here |

20 bought one. And it was --

21 Q. Did you get into watching porn movies?

22 A. Well, it was uncomfortable for him to, you know,

order that

23 kind of movie.

24 Q. Okay. What did he do after the movie?

25 A. Well, he tried to have sex with me.

1 Q. What did he do? Pull down your pants?

F-33

2 A. Yes.

3 Q. And was he naked when he crawled into bed with

you?

4 A. Yes.

5 Q. When you say try having sex with you, he tried

inserting his

6 penis into your anus, your rectum?

7 A. Yes.

8 Q. What did you do?

9 A. Jumped from the bed.

10 Q. What else did you do?

11 A. I went in the bathroom.

12 Q. Did he ask you to come out of the bathroom?

13 A. Yes.

14 Q. How long did you stay in the bathroom?

15 A. About a half hour.

16 Q. After that half hour expired did you walk out of the

17 bathroom?

18 A. Yes.

19 Q. What was Mr. Fry doing?

20 A. Had his legs in the air.

21 Q. Did he ask you to do anything?

22 A. Asked me to have sex with him.

23 Q. Did he say something specific?

24 A. Maybe it would be more easier if you went.

25 Q. Maybe easier if you did something to him?

1 (Recess taken at 4:01 p.m. until 4:16 p.m.)

2 THE COURT: The court has taken some time to

examine

3 its notes to see whether or not the facts construed in the

light

4 most favorable at this point to the plaintiff establish an

5 actionable claim under 1983.

6 To succeed the plaintiff must show that the defendant

7 deprived the plaintiff of a right that is secured by the

F-34

8 Constitution and the laws of the United States, and,

secondly,

9 that the defendant acted under color of state law.

10 The second requirement is aot an issue in this case.

11 The issue that, of course, must be addressed is the first

12 requirement which the plaintiff asserts that the policy

maker of

13 the defendant violated his due process rights under the

14 Fourteenth Amendment.

15 The cases generally provide that they do not -- the

16 defendant does not! ive a constitutional duty to protect

private

17 citizens from harm, except that the courts have

recognized that

18 children that are placed in the custody of a state or

19 municipality have a constitutional right not to be placed

ina

20 foster home where the state knows or suspects that the

children

21 may be subject to sexual abuse.

22 _ In other words, to prevail on the plaintiff's 1983

23 claim, they must prove that the injuries that are alleged

24 have been incurred by the plaintiff were the result of

actions

25 or failure to act by the defendant who knew or had

reason to

1 suspect that there was some apt danger lurking there in that

2 home.

3 Now we get into the definition of “deliberate

4 indifference," and of course there have been many cases

that

5 have reviewed that and applied it to a variety of facts. But

6 basically I think it's safe to say that deliberate indifference

7 is found where an actor responds unreasonably to a

substantial

F-35

8 and known risk rather than to a risk of which the actor

merely

9 should have known.

10 The time frames indicate here that a license was

11 issued by the defendant on August 21st of 1995. The

plaintiff

12 was placed in the Fry home on September 6th of 1995.

13. According to Exhibit Number 6 and the testimony of

14 Detective Giese, he uncovered evidence of abuse by Fry

15 October 21 of 1995, and based upon his testimony on that

date,

16 or the date following, he notified the Department of

Intake

17 Social Services at the defendant county that this incident

had

18 come to light. It wasn't then until February 28 in 1996

that —

19 the plaintiff was removed from the Fry residence.

20 Under these circumstances the court feels that it is

21 an issue for the jury to determine whether or not the actor

22 this case, the county, responded unreasonably to a

substantial

23 and known risk in that home and, therefore, the court is

going

24 to deny the motion.

F-36

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

NAHQUASEH B. WAUBANASCUM,

Plaintiff, Civil Action No. 01-C-111

-VS- Milwaukee, Wisconsin

SHAWANO COUNTY, May, 12, 2004

Defendant.

VOLUME 3 — Page 424

TRANSCRIPT OF TRIAL — BEFORE THE

HON. THOMAS J. CURRAN

UNITED STATES DISTRICT JUDGE, and a jury.

APPEARANCES

For the Plaintiff: Gerbers Law Offices

By: Mr. Terry J. Gerbers

2270 Holmgren Way

Green Bay, WI 54304

For the Defendant: Whyte, Hirschboeck, Dudek, S.C.

By: Mr. Charles Bohl

Ms. Jennifer Kopp

Attorneys at law

555 E. Wells St. #1900

Milwaukee, WI 53202

Court Reporter: Heidi J. Trapp

310, U.S. Courthouse

517 E. Wisconsin Avenue

Milwaukee, WI 54302

(414) 297-3071

Proceedings recorded by mechanical stenography, transcript

produced by computer-aided transcription.

F-37

13 THE WITNESS: My name is Nancy Odierno.

14 name is spelled O-D-1-E-R-N-O.

15 DIRECT EXAMINATION

16 BY MR. BOHL:

17 Q. Good morning, Miss Odierno. How are you?

18 A. Good. How are you doing?

19 Q. Fine. Thank you. Can you tell the ladies of the jury

what

20 community you live in?

21 A. What community I live in right now?

22 Q. Where do you live?

23 A. Shawano, Wisconsin.

24 Q. Are you familiar with Menominee County?

25 Yes, sir.

1 Q. And did Mr. Fry give you three references?

2 A. Yes, sir, he did.

3 And just so we're clear, why don’t you tell us what you

4 mean when you say reference?

5 A. Somebody that can speak on behalf of the person to

say

6 whether they'd be appropriate or not. Somebody that

knows

7 them. Somebody that may have grown up with them, but

somebody

8 that’s not a relative.

9 Q. Did Mr. Fry provide you with three references?

10 A. Yes, sir, he did.

11 Q. Did you do anything with regard to those references?

12 A. Yes, sir. I called two of them and have phone

conversations

13 with them, which I documented. I didn’t speak with the

last

14 one.

15 Q. Can you give us the names of the three and tell us

which

F-38

16 ones you talked to, and which one you didn’t talk to?

17 A. There was a man. | believe David Robinson. A lady

named

18 Shelly Hutter. Those are the two people I spoke with

over the

19 phone that were both I think in the Chicago area.

18 CROSS EXAMINATION

19 BY MR. GERBERS:

20 Q. Miss Odierno, when you met with Mr. Fry you didn't

talk to

21 him about his past employment with respect to why he

left his

22 position, is that true?

23 A.1am sorry. Can you say that again?

24 Sure.

25 THE COURT: Just a minute, counsel. Hold the

] question while she pours herself--

2 THE WITNESS: That's okay. I didn’t want to

3 spill it.

4 MR. GERBERS:

5 Q. You had--specifically, you can’t recall whether or not

you

6 contacted any present or past employers prior to

completing

7 your home study, is that correct?

8 A.I can’t remember if I contacted them, or if I--I know |

9 spoke

10 past employment.

Testimony By Ronald Stuber

6 Q. 1am going to ask you a few specific questions about

this

7 incident. You were involved with the issuance of the

foster

F-39

8 care license to Mark Fry, is that correct?

9 A. Yes.

10 Q. If you could just state generally, how did Shawano

County

1] get involved?

12 A. Basically atthe time that someone is seeking to place

13 child, after a period of time they have to be licensed as a

14 foster parent.

18 Q. If Shawano County had become aware the abuse that

took

19 place, would Shawano County have had the authority to

remove

20 Waubanascum from the home?

21 MR. GERBERS: Objection. Foundation.

22 THE COURT: Overruled. He may answer.

23 THE WITNESS: Yes. We would have done all we

24 could to insure the safety of the child.

15 CROSS EXAMINATION

16 BY MR. GERBERS:

17 Q. Mr. Stuber, you were present during the course of

this

18 entire trial, true?

19 A. That's correct.

20 Q. And you heard Miss Odierno testify that she gathered

the

21 information to prepare her home study and also

proceeded to get

22 a background check performed by the State of

Wisconsin, and

23 that information was delivered to Shawano County to

determine

24 whether or not that information should result in the

issuance

F-40

25 of a license, or if you need to do anything further. Did

you

1 hear that testimony?

2 MS. KOPP: Object to the form of the question,

3 Your Honor.

4 THE COURT: Overruled. He may answer.

5 THE WITNESS: That isn’t what | heard her

6 testify to.

7 MR. GERBERS:

8 Q. All right. She had indicated that--specifically that the

9 background check as specified on the home study report

10 identified in this case as Exhibit Number 1 would be

placed

11 within the file upon receipt, is that true?

12 A. That's correct.

13 Q. She also testified that it wasn’t even received by

14 Menominee County until October 16" of 1995, correct?

15 A. That's correct.

16 Q. And in fact you had issued your license well before

October

17 16", 1995?

18 A. I testified to that, that’s correct.

19 Q. And the truth of the matter is you didn’t even know

the

20 results of this test, even though she testified it was

21 forwarded to your Department in 2001?

22 MS. KOPP: Objection, Your Honor.

23 Argumentative.

24 THE COURT: Overruled.

25 THE WITNESS: No, | did not personally know.

] MR. GERBERS:

2 Q. So the results of this background check could have

been in

3 Illinois, they could have been in Wisconsin, could have

been

F-4]

4 anywhere. You wouldn’t have known them because it was

your

5 policy to rely upon Menominee County to fulfill the

licensing

6 requirements, true?

7 A. We relied upon Menominee County to fulfill all of the

8 requirements of HSS-56, that’s correct.

9 Q. And you testified for us on Monday that ultimately you

10 could reject that application. That was your decision to

make.

11 A. Based upon the information available to me, that is

exactly

12 what happens.

13 Q. Now, you testified that there is a need for foster

parents.

14 That’s--would you agree that that does not alleviate the

need

15 to make sure that the foster homes are suitable place for

16 children?

17 A. Of course not. That is why you want to do an

extensive

18 study, to insure that safety of children.

19 Q. That would be with or without the Statute, isn’t that

20 correct?

21 A. Exactly. That's what I have done for 30 years.

22 Q. And Chapter 48, as testified to by | 3s Cantoral in

this

23 case, specifically recognizes a child's right to be placed

ina

24 home that is free from physical, sexual, or emotional

injury or

25 exploitation, is that correct?

1 A. That's correct.

9 Q. Mr. Stuber, you understand that HS-56 specifically

indicates that the whole purpose of this is to verify

F-42

whether or not they are entitled or they're qualified to

receive a license, isn’t that true?

10 A. That’s correct.

17 Q. That's the requirements to receive a license for a

foster

18 home?

19 A. And that’s what we accept this foster home study to

be, is

20 a documentation that those requirements have been met,

and in

21 fact were met.

22 Q. So it’s your testimony--you're telling the jury here

today

23 that this requires you to obtain that authorization. It does

24 not require you to obtain a background check before you

issue

25 the license?

l MS. KOPP: Objection, Your Honor. Misstates his

2 prior testimony.

3 THE COURT: Overruled. He may answer.

4 THE WITNESS: What I am trying to say is the

5 requirement--if you read that HSS-56, indicates written

6 authorization for the license means you contact the

Department

7 of Justice or any Federal or local law enforcement agency

8 determine whether the applicant is unqualified to receive

the

9 license for any reason. That's exactly what it says.

10 Q. So you don’t make that determination as to whether

or not

11 they're unqualified to receive a license before you issue

it.

12 That's what you're telling the jurors?

F-43

13 A. No, what I am te’ling--what I am trying to Say is that

14 they--once they have met that requirement, we will seek

and

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