# Petition for Writ of Certiorari — Waubanascum v. Shawano County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1092

## Text

6
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]

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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-

8
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

10
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)).

11

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

12
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

13
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).

14
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

15
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

16
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.

17
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.

18
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

19
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

20
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.

21

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

22
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

23
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,

V.

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,
Vz
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

A-2
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

A-5
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
Ve
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.

(c) The evidence did not demonstrate that a
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.

D-5
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.

(c) Any exception granted under par. (a) shall be specifically
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.

(c) If, at any time, the licensing agency suspects or has
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
3

4 NAHQUASEH B. WAUBANASCUM,

5 Plaintiff,

6 VS. Case No. 01-C-111

7 SHAWANO COUNTY, JURY TRIAL

8 Defendant.

OS ee
10

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
am

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
a

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
at

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0395%3A1. Public record. Not legal advice.