Petition for Writ of Certiorari — McLean v. McGinnis (No. 08-1241)

Us () 081241 APR 3 ~ 2009

No. GRICE OF THE CLERIC

IN THE

Supreme Court of the United States

BRANDIE MCLEAN, PETITIONER

VU.

MISSOURI DEPARTMENT OF SOCIAL SERVICES,

CHILDREN’S DIVISION, JOHN MCGINNIS AND MICKEY

MORGAN

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

tr

CHRISTIAN L. FATELLA

Counsel of Record

SIDNEY E. WHEELAN

Tatlow, Gump & Faiella,

LLC

110 North Fifth Street

Moberly, Missouri 65270

660-263-3100

Attorney for Petitioner

CURRY & TAYLOR @ (202) 393-4141

i

QUESTIONS PRESENTED

I. Whether a federal court should apply qualified

immunity with respect to Petitioner’s substantive due

process claim when there is a deprivation of a

constitutional right that was clearly established at the

time of the deprivation and genuine issues of material fact

existed regarding whether the acts or omissions of social

workers rose to the level of “shocking the conscience”?

II. Whether the federal court should apply the doctrine of

official immunity to shield officials from liability under

Missouri’s Wrongful Death statute when genuine issues

of material fact exist regarding whether the death of a

child in the protective custody of the state arose out of

discretionary acts or ministerial acts of the officials?

22

TABLE OF CONTENTS

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RELEVANT PROVISIONS INVOLVED ........ccccoscccessesevosssseseseses

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REASONS FOR GRANTING THE PETITION ........ccscrsseeeeseeneesnes

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APPENDIX

Crrcutt Court Opinion (12/1/08) ......crcccossercecssscessnssosssoceeseses

Circutt Court Mandate (1/15/09) ........cecersevresesessesansesceesess

Circuit Court Judgment (12/1/08) .........rrccrecssroccsssssssocseesers

Order of the District Court (1/21/09)...........ccccseesssscesscesesees

Order of the District Court (5/4/07) ..ccccccccsccccccececcecveneeeeeeees

Order Denying Rehearing (1/7/09) .....ccececcccccserssesereeneeeseens

Reteennt Pravisions TRCCCWOG ..cecsceceesssiccissninicimmmemanaian

Missouri Form CS45 — Kinship Home & Safety

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Firearm Safety —- from DSS Manual Foster

STARS/Adopt STARS STARSb00k-2004......ccccccccceceves

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TABLE OF AUTHORITIES

Page

CASES

ANDERSON V, LIBERTY LOBBY, 477 U.S. 242 (1986).........000 10

BROWN V, TATE, 888 S.W, 2D 413 (MO, CT, APP, W.D,

a a shan bin bed b6nndeorenvoueenes 13

BURTON V, RICHMOND, 276 F.8D 978 (C.A. 8 (MO,)

ee a ivaveapetiveiseucsdueccoocscese 6

BURTON V. RICHMOND, 370 F’. 8D 728 (C.A. 8 (MO.)

I sssshononentctennce 13

CELOTEX CORP. V. CATRETT, 477 U.S. 317, 322 (1986)......... 10

COLEMAN V. CITY OF PAGEDALE, 2008 WL 161897

a Lo sodesneovenisehedaneyersocese 10

COUNTY OF SACRAMENTO V. LEWIS, 523 U.S. 8338

a sabaesdbbuadbinevduerevevess 5

DESHANEY V. WINNEBAGO COUNTY DEPT, OF SOC,

SERVICES, 489 U.S, 189 (1989).....cccccssssrrsrsscerserseseersers 5, 6, 8, 10

SSTELLE V. GAMBLE, 429 U.S, 97 (1976) ...rccssrcrscvssrroreessereesens 1Y

ITT COMMERCIAL FINANCE Corr. V, MID-AMERICA

MARINE SUPPLY CORP., 854 8.W.2D 871 (MO,

ssh an apesenoncsbonvonscussouserse 1]

JAMES EX REL. JAMES V. FRIEND, 458 F.8D 726, 728-

I I ccc assnsneunssnendaeveonsenesnesonvepevcccees 4,6,7

JUNGERMAN V. CITY OF RAYTOWN, 925 S.W.2D 202

os cubansbenindiicerenensees 12,17

KAMPOURIS V. ST. LOUIS SYMPHONY SOc., 210 F.3D

I I Do cacvcnsscasuenssvesececsoessnssoccscseccoees 10

KANAGAWA V. STATE BY AND THROUGH FREEMAN,

865 S.W.2D 881, 886 (MO. BANC. 1985) .........cccccccsssessssseees 12, 19

NORFLEERT V. ARK. DEP’T OF HUMAN SERVS., 989

I is EF ED ss sccnsonesennsseeconesnvonsvacceesececsoses 6

PORTER V. WILLIAMS, 436 F 8p 917 (C.A. 8 (MO.)

ec scsnenannevoebooenserecceoes 7, 12-14

YOUNGBERG V. ROMEO, 457 U.S. 807 (1982)............000065, 18, 19

Ww

OTHER PROVISIONS

14th Amendment of the United States Constitution......... 5, 10

See en rh I IED. 5s saisdepeenrsicbsuveeaanannieuanipssonaseiide l

ee ee es annauceenenesurocansesse smallest

I ac ose nipslsnspubeseboubieduannnibenean l

Oe a te SE IIE scdisehcnpsiceddcabsiciscesesenedesbsasonndsinesenteinn passim

SP ss cass diniinduinlteniinouens vanienpinnd Aes 10

Missouri Revised Statute Section 587.080 ........cccccccsecceeseces 2,12

Se ee PD es intninseccesnsecavessecerininsnsseccnntavesviciin passim

]

OPINIONS BELOW

The opinion of the Court of Appeals for the Eighth

Circuit is reported at 548 F.3d 613 and is reprinted in the

appendix hereto at p. la-9a, infra,

The memorandum decision of the United States

District Court for the Western District of Missouri,

Western Division (Fenner, D.J.) has not been reported.

It is reprinted in the appendix hereto at p. 15a-22a, infra.

JURISDICTION

The Court of Appeals entered its opinion and order

on December 1, 2008. A petition for re-hearing was

sought and denied on January 7, 2009. It is reprinted in

the appendix hereto at p, 23a, infra.

The jurisdiction of this Court to review the

judgment of the Eighth Circuit is invoked under 28

U.S.C, § 1254(1).

This action is one in which the U.S. District Courts

had original jurisdiction under 28 U.S.C. Section 1331, in

that it arises under the constitution laws, treaties of the

United States. The U.S. District Court had supplementa!

jurisdiction under 28 U.S.C. Section 1367 of the Missour:

Wrongful Death claim in that it so related to claims in the

action to which the District Court had _ original

jurisdiction in that it formed part of the same case or

controversy.

RELEVANT PROVISIONS INVOLVED (sce appendix)

2

STATEMENT

On August 26, 2005, McLean filed a Petition in the

Circuit Court of Jasper County, Missouri, Case No. 05AO-

CC00535. On September 30, 2005, Defendants filed a

Notice of Removal in the U. S. District Court, Western

District of Missouri. On October 19, 2005, an Answer to

the Complaint was filed on behalf of McGinnis, Morgan

and DSS.

On April 17, 2006, McLean filed her First Amended

Complaint in the U. 8. District Court for the Western

District of Missouri, Case No.: 3:05-CV-04308-GAF’.

McLean asserted claims against Defendant McGinnis,

Morgan and DSS pursuant to 42 U.S.C. Section 1983 and

Missouri Revised Statute Section 537.080 et. seq., and

sought monetary relief. Specifically, McLean sought

damages resulting from the death of her son BDW, who

was killed on June 2, 2005 by EG, the biological son of

Mark and Treva Gordon, who were BDW’s foster parents

at the time of his death. McLean’s First Amended

Complaint alleged that McGinnis, Morgan and DSS acted

recklessly and with gross negligence in failing to monitor

and adequately supervise the Gordons and the decedent,

BDW,, in the provision of supervision and case worker

services to the Gordons and to BDW while BDW was

residing in the Gordon’s foster home.

McLean alleged that Respondents failed to follow

internal DSS policies and practices as well as statutory

requirements and regulations designed to protect BDW.

Further, McLean alleged deprivation by Respondents

McGinnis, Morgan and DSS under color of state law of

rights, privileges and immunities secured by the statutes

3

and the constitution of the United States of America.

McGinnis, Morgan and DSS filed their answer to

McLean’s Amended Complaint on May 5, 2006, denying

McLean’s allegations.

On January 16, 2007, McGinnis, Morgan and DSS

filed their Motion for Summary Judgment with

Suggestions in Support. McLean filed her Reply to

Defendants’ Motion for Summary Judgment and

Suggestions in Opposition to the Motion for Summary

Judgment on April 26, 2007.

On May 4, 2007, the District Court entered an

Order denying, in part, Morgan, McGinnis and DSS’s

Motion for Summary Judgment. (App. 15a-22a)

Specifically, the District Court held that McGinnis and

Morgan were not entitled to qualified immunity with

respect to McLean’s Section 1983 claim because issues of

fact existed as to whether their actions reached the level

of “shocking the conscience”. The District Court further

held that DSS was not entitled to 11% Amendment:

immunity with respect to the Section 1983 claim which is

not disputed on this appeal. The District Court also held

that McGinnis and Morgan were not entitled to official

immunity based upon the court’s conclusion that their

actions or inactions could not, as a matter of law, be held

to be related only to discretionary functions. (App. 15a-

22a)

On May 11, 2007, the District Court stayed all

proceeds pending resolution of this Appeal. Appellants’

filed their Notice of Appeal on May 17, 2007.

4

The Eighth Circuit Court of Appeals entered its

judgment and opinion on December 1, 2008, determining

first that the District Court erred in denying the

protections of qualified immunity to Morgan and

McGinnis and the Section 1983 claim, relying on James ex

rel. James v. Friend, 458 F.3d 726, 728-30 (C.A.8 (Mo.)

2006) to find that the actions of Morgan and McGinnis in

repeatedly failing to the check the Gordon’s home for

unsecured firearms was not conscience shocking. (App.

la-9a and 1la-12a)

The Eighth Circuit also opined that the District

Court erred in denying Morgan and McGinnis’ Motion for

Summary Judgment on the official immunity basis finding

that the actions of Morgan and McGinnis’ responsibilities

to insure that the Gordon’s home was safe were

discretionary as a matter of law and therefore, finding

official immunity protects Morgan and McGinnis for

liability under Missouri’s wrongful death statute. (App.

la-9a)

Further, the Eighth Circuit Court of Appeals

found that the District Court erred in failing to grant

summary judgment for DSS, an agency “arm of the state”

on the Section 1983 claim brought by the claim. This

ruling is not presented to this court. (App. la-9a)

Thereafter, McLean filed a Petition for Panel

Rehearing which was denied by Order Denying

Rehearing dated January 7, 2009. (App. 23a)

Mandate was issued herein on January 15, 2009,

(App. 10a) which was so ordered by the United States

District Court for the Western District of Missouri,

i)

Southwestern Division on January 21, 2009. (App. 18a-

14a)

REASONS FOR GRANTING THE PETITION

I. Qualified Immunity. The United States Court

of Appeals Eighth Circuit has decided a

important question of qualified immunity in a

way that conflicts with relevant decisions of

this court.

The decision of the Eighth Circuit in this case

squarely and irreconcilably conflicts with the principals

set forth by this court in DeShaney v. Winnebago County

Dept. of Soc. Services, 489 U.S. 189 (1989); Youngberg v.

Romeo, 457 U.S. 807 (1982); County of Sacramento v.

Lewis, 523 U.S. 833 (1998).

The Due Process Clause of the 14° Amendment of

the Constitution imposes a duty to protect the safety and

general well being of those taken into a state’s custody.

“The rational for this principle is simple enough:

when the state by the affirmative exercise of its

power so restrains an individual’s liberty that it

renders him unable to care for himself, and at the

same time fails to provide for his basic human

needs — e.g., food, clothing, shelter, medical care

and reasonable safety, it transgresses_ the

substantive limits on state action set by the due

process clause.”

DeShaney v. Winnebago County Dept. of Soc. Services,

489 U.S. at 189, 200 (1989). The affirmative duty to

6

protect arises not from the state’s knowledge of the

individual's predicament or from its expressions of intent

to help him, but from the limitations which are imposed

on his freedom to act on his own behalf. Jd. at 200.

Respondents McGinnis and Morgan are not

entitled to qualified immunity with respect to McLean’s

substantive due process claim because:

A. Defendants Had a Duty to Protect BDW

Foster care is designed to provide basic human

needs of “food, clothing, shelter, medical care and

reasonable safety” to minor children. DeShaney v.

Winnebago County Department of Social Services, 489

U.S. 189, 200 (1989). The specific source of an aifirmative

duty to protect is the custodial nature of a “special

relationship” between the individual and the State. /d.

The key is whether the State has assumed a custodial role

in an individual’s life and whether as a result of that role,

the State has actively participated in creating the

dangerous environment. Burton v. Richmond, 276 F.3d

973 (C.A.8 (Mo.) 2002).

Defendants Morgan and McGinnis had a duty to

protect BDW, because unlike the plaintiffs in Burton v.

Richmond, 370 F.3d 723 (CA. 8 (Mo.) 2004) relied on by

the Eighth Circuit, BDW was in the legal custody of DFS

at the time of his death. Norfleet v. Ark. Dep’t of Human

Servs., 989 F.2d 289 (C.A. 8 (Ark.) 1993). “Since 1993, we

have recognized that children taken into state custody

maintain a clearly established right to be kept in

reasonable safety while in foster care.” James ex rel

James v. Friend, 458 F.3d 726, 732 (C.A. 8 (Mo.) 2006).

7

B. Defendants Violated Clearly Established

Law

Government officials “re not entitled to qualified

immunity under Section 1983, even if performing

discretionary functions, when they violate clearly

established law. Burton v. Richmond, 370 F. 3d 723 (C.A.

8 (Mo.) 2004).

At the time of BDW’s death, the law was clearly

established that defendants had a duty to protect a child

in DSS custody. James ex rel James v. Friend, 458 F. 3d

726, 728-30 (C.A. 8 (Mo.) 2006).

The laws and regulation of Missouri, particularly

13 CSR 40-60.040(1)(D), (see App. 28a) mandated that all

weapons shall be made inaccessible to children. As

stated by this court in Porter, “shall” indicated acts

required without regard to the social worker’s own

judgment or opinion. Porter v. Williams, 436 F 3d 917

(C.A. 8 (Mo.) 2006). Such acts are ministerial, not

discretionary. Porter v. Williams, 436 F. 3d at 922.

The Defendants did not make a discretionary

decision to believe the foster parents as in James ex rel.

James v. Friend, 458 F.3d 726 (C.A. 8 (Mo.) 2006). They

failed to even investigate as mandated by law, even

though there was documentation of an arsenal of

weapons in the DSS files and the Respondents were

aware of a substantial change of circumstances including a

new residence for the foster family.

This case should be distinguished from Burton v.

Richmond, 370 F.3d 723 (C.A. 8 (Mo.) 2004). The child in

8

this case, BDW, was in DSS custody, contrary to Burton

where the alleged misconduct occurred prior to being

placed in DSS custody. The Defendants took custody of

BDW, placed him in a home with foster parents known by

DSS to possess assault rifles and other firearms, and then

did nothing to ensure that those weapons were

inaccessible to children as mandated by state regulation.

It was not that the Respondents merely made a mistake

about how to make the weapons inaccessible to children,

even though their manuals specifically delineated the

manner in which any weapons were to be stored. The

facts are that the Respondents, in violation of the law,

never asked the required questions and they never made

the required inspection of the foster family residence.

This is unconscionable conduct that shocks the

contemporary conscience.

C. Respondents Actions Were Conscience -

Shocking

If Plaintiff's allegations are true, this demonstrates

not only the custodial role of the Respondents required by

DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189, 200 (1989) and other decisions by

this court, but a deliberate indifference to BDW’s welfare.

It is clear that the district court found that the actions of

the Respondents as alleged by the Plaintiff shocked the

conscience.

The following facts concerning the actions of

Respondents McGinnis and Morgan were considered by

the district court but overlooked by the Eighth Circuit

Court of Appeals:

9

i. There was a record of not one, but an

arsenal of weapons, including three (3)

SKS assault rifles, a .38 revolver, a

semi-automatic .9 mm Ruger pistol, a

.22 pistol, a shotgun and a rifle in the

DSS files;

ii. McGinnis and Morgan were aware of

the change of residence of the foster

family, including BDW and other foster

children.

iii. Respondent Morgan admits in her

deposition (p. 23, lines 5-10) that a new

safety checklist (Missouri Form CS-45)

(App. 36a-40a) was to be performed at

each home of the foster parent,

however, neither defendant performed

the safety check or delegated that task

to another individual.

iv. Respondents McGinnis and Morgan had

the responsibility to insure that the

foster parents are continually evaluated

and to keep others informed of

significant changes, which would include

a change in the physical structure that

required Defendants to comply with the

provisions of 13 C.S.R. 40-60.040. (App.

28a-31a)

The Respondents cannot ignore the responsibility

to ensure the safety and welfare ofa child in their custody

and then hide behind their alleged ignorance of the

10

dangerous situation to deny responsibility for the tragic

outcome. This is clearly not the intent of the 14%

Amendment of the Constitution or the protections

afforded under 42 U.S.C. Section 1983.

D. Genuine Issues of Material Fact Precludes

Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(c),

a court may grant a motion for summary judgment only if

all of the information before the court shows “there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law”.

Fed.R.Civ.P. 56(c) (App. 32a-34a) See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). The court may not

“weigh the evidence in the summary judgment record,

decide credibility questions, or determine the truth of any

factual issue”. Coleman v. City of Pagedale, 2008 WL

161897 (E.D.Mo.) citing Kampouris v. St. Louis

Symphony Soc., 210 F.3d 845, 847 (C.A. 8 (Mo.) 2000).

The court instead “perform[s] only a gatekeeper function

of determining whether there is evidence in the summary

judgment record generating a genuine issue of material

fact for trial on each essential element ofa claim.” Jd. The

trial court should not act other than with caution in

granting summary judgment and may deny summary

judgment where there is reason to believe that the better

course would be to proceed to a full trial. Anderson v.

Liberty Lobby, 477 U.S. 242 (1986).

In this case, as a matter of law, the District Court

correctly found that genuine issues of material fact

existed, however this decision was overruled by the

Eighth Circuit Court of Appeals. A “genuine issue” that

1]

will prevent summary judgment exists where the record

shows two plausible but contradictory, accounts of the

essential facts and the “genuine issue” is real, not merely

argumentative, imaginary or frivolous. 17T Commercial

Finance Corp. v. Mid-America Marine Supply Corp., 854

S.W.2d 371 (Mo. Banc. 1993). Here, the Plaintiffs allege

that neither Morgan nor McGinnis ever inquired about

whether the foster family’s numerous guns were made

inaccessible to children, despite the fact that the

existence of those guns was documented in DSS files and

the legal mandate of 13 CSR 40-60.040 (1)(D) (App. 28a)

required that all weapons shall be inaccessible to

children. However, Respondents Morgan and McGinnis

claim to have no reason to know about the guns and no

reason to ask the foster parents about the guns and no

reason to suspect that the Gordons had unsecured guns in

their home. The district court properly found that the

conflicting versions of these facts, among others, created

genuine factual disputes that prevented summary

judgment in favor of the Respondents, and the Eighth

Circuit’s decision to the contrary should be overruled.

II. Official Immunity. The United States

Court of Appeals Eighth Circuit has

decided an important question regarding

the official immunity doctrine in a way

that conflicts with decision of the

Missouri Supreme Court and has departed

from the accepted and usual course of

judicial proceedings as to call for an

exercise of this court’s supervisory power.

According to the official immunity doctrine, public

officials acting within the scope of their authority are

12

liable for injuries arising- from torts committed when

acting in a ministerial capacity but may be protected from

liabilities for injuries arising from their discretionary acts.

Porter v. Williams, 436 F.3d 917 (C.A. 8 (Mo.) 2006). The

Missouri Supreme Court has defined discretionary acts as

acts which require the exercise of reason in the

adaptation of means to an end and discretion in

determining how or whether an act should be done or

course pursued. Jungerman v. City of Raytown, 925

S.W.2d 202 (Mo. Banc. 1996) citing Kanagawa v. State by

and through Freeman, 865 S.W.2d 831, 836 (Mo. Banc.

1985). In contrast, the Missouri Supreme Court has

defined ministerial acts as acts that require certain duties

to be performed upon a given state of facts, in a

prescribed manner, in obedience to the mandate of legal

authority, without regard to an employee’s own judgment

or opinion concerning the propriety of the act to be

performed. Jungerman v. City of Raytown, 925 S.W.2d

at 205. The Missouri Supreme Court makes it clear that

“the fact that written procedures cannot anticipate every

circumstance does not transform a ministerial activity

into a discretionary function”. Jd. at 206.

The Eighth Circuit erroneously found that that

Morgan and McGinnis’s responsibilities to insure that the

Gordons’ home was safe was discretionary as a matter of

law. McGinnis and Morgan are not entitled to Summary

Judgment on the issue of official immunity under

McLean’s claim of wrongful death pursuant to Missouri’s

wrongful death statute Section 537.080 RSMo. as set forth

below.

The official immunity doctrine generally does not

apply to public officials responding to non-emergencies

13

for ministerial, nondiscretionary duties. Brown v. Tate,

888 S.W. 2d 413 (Mo. Ct. App. W.D. 1994). According to

the official immunity doctrine, public officials acting

within the scope of their authority are not liable for

injuries arising from their discretionary acts, or

omissions, but they may be held liable for torts committed

when acting in a ministerial capacity. Porter v. Williams,

436 F.8d 917 (C.A. 8 (Mo.) 2006). Porter involved an

action against the social worker and others after a child

died from abuse after being placed in a foster home,

where the court determined that genuine issues of

material fact existed which precluded summary judgment

on official immunity grounds.

The Eighth Circuit overlooked or disregarded

material facts, to wit:

a. Missouri State Regulation 13 C.S.R. 40-

60.040, requires certain conditions to be

placed upon the home in which foster

children will be living. Pursuant to

subsection (1)(D) of the regulation, “All

flammable liquids, matches, cleaning

supplies, poisonous materials, medicines,

weapons or other hazardous items shall be

stored so as to be inaccessible to the

children.” (emphasis added) (App. 28a).

The regulation makes it mandatory that all

weapons shall be made inaccessible. This is

not a discretionary rule. As stated in

Porter, the word “shall” indicated acts that

were required without regard to the social

worker’s own judgment or opinion. Those

acts were ministerial, not discretionary.

14

Porter v. Williams, 436 F.3d 917, (C.A. 8

(Mo.) 2006).

When the foster parents lived at a prior

residence, a home inspection was performed

by an agent of the Jasper County

Children’s Division for that residence at 304

E. Fox Street, Alba, Missouri. That

inspection revealed numerous weapons

possessed by the foster parents at that

address including three (8) SKS assault

rifles, a .38 revolver, a semi-automatic .9

mm Ruger pistol, a .22 pistol, a shotgun and

a rifle; and this report was placed in the

DSS file.

Morgan admits in her deposition that the

primary purpose for visiting the foster

home was to insure a safe environment

(depo. p. 32, lines 16-20); that it was the

policy of the state to insure that a new

safety checklist is done on each home of a

foster parent (depo. p. 23, lines 5-10); and

further that in the past she had completed

new safety checklists called form CS-45, for

foster parents who moved into a new home

(depo. p. 21, lines 8-25).

The form CS45 referred to by Morgan in

her deposition is a “Kinship Home and

Safety Checklist” (App.36a-40a). The form

is to be used by the social service worker

and social service supervisor as noted on

the last page of the form where there is a

15

place for the social service worker and

supervisor to sign after the words “I have

toured this home and reviewed this form

with the potential placement parent(s) and

am of the opinion that the above

information is accurate and that the home

and potential kinship parents appear

acceptable for the kinship with the possible

concerns and limitations as noted.” (App.

40a).

Morgan knew the parties had moved into a

second residence and had visited the foster

children, including BDW, at the second

residence. However, she did not complete

the required safety checklist (Missouri

Form CS45) (App. 36a-40a) nor did she

require someone else to complete the safety

checklist.

Morgan admits in sworn deposition

testimony that she knew that weapons pose

a serious risk of harm to foster children

(depo. p. 38, lines 1-12) and it was part of

Morgan’s duty as a Social Worker to insure

the safety of the foster home and to carry

out a case plan that leads to an adequate

level of care for the child.

Morgan admits in her deposition that it was

the policy that “. . .if there is any guns they

have to have a trigger lock on the triggers

16

and they need to not be accessible to the

children.” (depo. p. 19, lines 10-14).

h. DSS Manuals provided specific methods by

which weapons were to be made

inaccessible to children, thereby removing

any discretion on the part the caseworker,

1.e.:

i. Guns and weapons were to be stored

unloaded (App.35a)

li. Guns and weapons were to be stored

in an uncocked position (App. 35a)

iii. Guns and weapons were to be stored

in a securely locked case out of

children’s reach (App. 35a);

iv. Ammunition was to be stored

separately in a securely locked

container out of the reach of children

(App. 35a); and

v. Trigger locks or other child proof

devices were always to be used

(App.35a)

The Missouri regulation 18 CSR 40-60.040(1)(D)

(App. 28a) makes it mandatory, not discretionary, that all

weapons shall be stored so as to be inaccessible to the

children. The DSS form CS45, (App. 36a-40a) mirrored

the language of the reguiation and provided a checklist

for use in assessing the physical and safety requirements

17

of the placement home, to be signed by both the social

service worker and the social service supervisor to ensure

that the required physical inspection of the foster home

was performed and appeared to meet the safety

requirements for the safety of the foster child. This was

never done on the foster family residence at 104 South

Smith Street.

The Eighth Circuit relies on the premise that the

Code of State Regulations did not prescribe how to make

the foster home free from weapons that are accessible to

children and declared that to mean it was discretionary in

nature. However, as stated above, 13 C.S.R. 40-

60.040(1)(D) mandated that weapons shall be made

inaccessible, therefore although the Respondents may

have had some discretion in determining whether the

weapons were inaccessible, Respondents were allowed

NO discretion about whether to make the assessment.

The purpose of 13 CSR 40-60.040 (1)(D) (App. 28a) and

form CS-45, (App.36a-402) was to insure that the proper

inquiry was made. As stated by the Missouri Supreme

Court, “the fact that written procedures cannot anticipate

every circumstance does not transform a ministerial

activity into a discretionary function”. Jungerman v. City

of Raytown, 925 8.W.2d 202 (Mo. Banc. 1996).

The Eighth Circuit incorrectly found that there

was no policy imposing a duty on Morgan or McGinnis to

complete the CS-45 form (App. 36a-40a) at any time after

the Gordons were initially approved to serve as foster

parents. However, this finding directly conflicts with

Respondent Morgan’s deposition testimony that it was

DSS policy to complete a new CS8-45 form (App. 36a-40a)

on each new home when a foster parent changed

18

residence and that she, in the past, had completed the

form in just such a circumstance.

It could be argued that determining whether the

home was deemed “safe” involved some discretion on the

part of the social worker or social service supervisor.

However, the mandates of the Missouri Regulation 13

CSR 40-60.400(1)(D) require that weapons shall be made

inaccessible to children. (App. 28a) It is mandatory and is

not discretionary. Since non-discretionary functions are

not protected by the doctrine of official immunity,

summary judgment in favor of the Social Worker,

Respondent Morgan; or the Social Service Supervisor,

Respondent McGinnis, is not appropriate and the Eighth

Circuit Court of Appeal’s granting of summary judgment

on the Missouri Wrongful Death Claim should be

overturned.

III. The Questions Presented are Important

Both questions presented have a broad impact on

the safety, health and welfare of children throughout this

country who have been removed from their parental

homes and placed in foster care under the custody of the

Missouri Division of Social Services. The situation is

particularly egregious given that the children in state

custody are unable to speak for themselves and are at the

complete mercy of the actions or omissions of the social

workers hired by the state to protect them. As stated by

this court in Youngberg v. Romeo, 457 U.S. 307 (1982), the

right to personal security constitutes a historic liberty

interest protected substantively by the due process

clause, and that right is not extinguished by lawful

confinement, even for penal purposes.

19

Foster care is designed to provide basic human

needs of “food, clothing, shelter, medical care and

reasonable safety” to minor children. DeShaney v.

Winnebago County Department of Social Services, 489

U.S. 189, 200 (1989). The specific source of an affirmative

duty to protect is the custodial nature of a “special

relationship” between the individual and the state. In

DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189, 200 (1989) this court reasoned that

“the affirmative duty to protect arises not from the state’s

knowledge of the individuals predicament or from its

expressions of intent to help him, but from the limitation

which it has imposed on his freedom to act in his own

behalf’. DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189, 200 (1989). In emphasizing

this rule of law, this Supreme Court cited to the holdings

of Estelle v. Gamble, 429 U.S. 97 (1976); Youngberg v.

Romeo, 457 U.S. 307 (1982); and Kanagawa v. State by

and through Freeman, 865 S.W.2d 831, 836 (Mo. Bane.

1985), all of which were decided well before BDW’s

placement with his foster family.

Based on data provided by the U.S. Department of

Health and Human Services submitted as of January 16,

2008, there are more than 500,000 children in the foster

care system throughout the United States.

(Wikepedia.org/wiki/foster_care citing Dorsey, et al

current status and evidence base of training for foster and

treatment foster parents.)

In the United States, accidents involving firearms

kill 250 children under the age of 14 every year. Missouri

is not exempt from this tragedy. In 2004, 36 children

were killed by a firearm. In 2005, at least 13 Missouri

20

children died as a result of a firearm injury. (DSS

publication “Family Connections” - Summer 2005, p. 4)

This case is brought by McLean, the natural

mother of BDW, as a result of the child’s tragic death by a

gunshot wound to the head after the child was placed in

the legal custody of the Missouri Department of Social

Services, Children’s Division (DSS). The sad truth is that

this tragic result could be repeated again and again if

social workers are not required to perform even the

rudimentary duties mandated by law and by their own

internal policies.

As the legal custodian of BDW, it was

Respondents’ ultimate responsibility to insure that BDW

was provided a safe and nurturing environment. It was

Respondents’ responsibility to ensure that the foster

parents were appropriately trained and continually

evaluated and it was’ ultimately Respondents’

responsibility to ensure that any weapons were made

inaccessible to children by being stored in a very specific

manner.

The Respondents’ own files and records reflect

that the Respondents were aware that the foster parents

possessed not just one weapon but a virtual arsenal of

weapons including three (3) SKS assault rifles, a .38

revolver, a semi-automatic .9 mm Ruger pistol, a .22

pistol, a shotgun and a rifle. Not once when the foster

parents moved to a new residence, did any of the

Respondents ask any questions regarding the firearms

that the foster parents had earlier admitted to having.

21

None of the Respondents inquired as to where the

guns were stored; whether the guns were stored

unloaded and in an uncocked position; whether the guns

were in a securely locked case out of the children’s reach;

whether or not the ammunition was stored separately;

whether or not the ammunition was in a securely locked

container out of the reach of children; nor whether trigger

locks or other child proof devices were used to secure any

of the weapons, as required by law and DSS procedures.

(App. 35a and 36a-40a STARS Manual)

The Respondents were mandated by law to insure

that any weapons were made inaccessible to children.

Respondents were provided with a checklist and were

required to ask specifically whether the weapons were

made inaccessible to children and the manner in which the

weapons were to be made inaccessible to children was

clearly laid out in their procedural manual so that no gun

expertise or discretional judgments were required to

determine whether or not any weapons were indeed

inaccessible to the children. DSS, Morgan and McGinnis’

failure to follow their own clearly established procedure

resulted in the tragic death of BDW, a child that had been

placed in DSS’s legal custody for the purpose of insuring

his safety and welfare.

99

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

Christian L. Faiella

Counsel of Record

Sidney E. Wheelan

TATLOW, GUMP &

FAIELLA, LLC

110 North Fifth Street

Moberly, Missouri 65270

Phone: 660-263-3100

Fax: 660-263-0660

Attorney for Petitioner

Brandie McLean

la

No. 07-2250

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Brandie McLean,

Plaintiff-Appellee,

Rhonda Stone, Rhonda Stone as Next Friend of Minors

ZPW(1), ZPW(II), CZW and KSW, Minors; ZPW(1), by

Next Friend Rhonda Stone; ZPW(II), by Next Friend

Rhonda Stone; CZW, by Next Friend Rhonda Stone;

KCW, by Next Friend Rhonda Stone,

Plaintiffs

V.

Mark Gordon; Treva Gordon; Ethan Gordon,

Defendants,

John McGinnis; Mickey Morgan; Missouri Department

of Social Services, Children's Division,

Defendants-Appellants.

February 13, 2008, Submitted

December 1, 2008, Filed

Appeal from the United States District Court

for the Western District of Missouri.

Before MELLOY, GRUENDER, and SHEPHERD,

Circuit Judges.

SHEPHERD, Circuit Judge.

2a

John McGinnis, Mickey Morgan, and the Missouri

Department of Social Services (DSS) appeal the district

court's denial of their motion for summary judgment.

We reverse the denial and remand this matter to the

district court.

I.

The facts of this case are tragic. On June 2, 2005,

Braxton Wooden, Jr. died as a result of an accidental

shooting. At the time of the shooting, Braxton was a

foster child in the custody of DSS and placed with DSS-

approved foster parents, Mark and Treva Gordon. On

that June day, Treva Gordon left Braxton, then eight

years old, and her biological son Ethan, then 14, alone in

the home while she attended to a work-related errand.

Ethan retrieved a .38 caliber handgun that his father

had hidden beneath clothing on a shelf at the back of

the parents’ closet. While playing “cops and robbers,"

Ethan pulled the trigger and a .38 caliber round struck

Braxton in the head. Ethan was not aware that the gun

was loaded. Braxton died in route to a hospital in

Kansas City.

Brandie McLean, Braxton's biological mother, brought

this suit against, among others, DSS social worker

Mickey Morgan, Morgan's supervisor John McGinnis,

and DSS, pursuant to 42 U.S.C. § 1983 and Missouri's

Wrongful Death Statute, Mo. Rev. Stat. § 537.080.

According to the allegations in McLean's complaint,

Morgan, McGinnis, and DSS “acted negligently,

recklessly and with gross negligence" in failing to

properly evaluate and supervise the Gordons, including

ensuring that adequate supervision was available and

that there were no weapons accessible to children in the

3a

home. McLean also alleged that these defendants, in

violation of section 1988, acted "in a gross and negligent

manner, and with deliberate indifference" in failing to

follow internal policies and practices designed to

protect foster children.

Morgan, McGinnis, and DSS filed a motion for summary

judgment. Morgan and McGinnis asserted that they

were shielded from suit under the doctrines of qualified

and official immunity. DSS claimed that it was

protected from liability by sovereign immunity. The

district court granted in part and denied in part the

summary judgment motion. The district court granted

summary judgment to DSS on McLean's state-law

wrongful death claim. This grant of summary judgment

to DSS is not before us. The district court denied

qualified immunity to Morgan and McGinnis on the

section 1988 claim and official immunity on the state-

law wrongful death claim. The court also denied

summary judgment to DSS on the section 1983 claim,

holding that the state had waived Eleventh

Amendment immunity when it removed the action from

state to federal court. This interlocutory appeal

challenging the denials followed.

II.

On appeal, the defendants argue that the district court

erred in holding that (1) Morgan and McGinnis were not

entitled to qualified immunity on the section 1983 claim,

(2) Morgan and McGinnis were not entitled to official

immunity on the wrongful death claim, and (83) DSS was

not entitled to sovereign immunity under section 1983.

We review the district court's denial of summary

judgment de novo. Brown v. Fortner, 518 F.3d 552, 558

4a

(8th Cir. 2008). We consider the evidence in the light

most favorable to McLean, making all reasonable

inferences in her favor. Jd. Summary judgment is

appropriate where "there is no genuine issue as to any

material fact and ... the movant is entitled to judgment

as a matter of law." Fed. R. Civ. P. 56(c).

A.

In considering a motion for summary judgment on

qualified immunity grounds, the court makes two

inquiries. First, the court asks "whether the facts

alleged, taken in the light most favorable to [McLean],

show that [Morgan and McGinnis's] conduct violated a

constitutional right." Flowers v. City of Minneapolis,

478 F.3d 869, 872 (8th Cir. 2007); see Saucier v. Katz,

533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272

(2001). "If so, then [the court] determine[s] whether the

constitutional right was clearly established at the time."

Flowers, 478 F.3d at 872.

"To establish a violation of substantive due process

rights by an executive official, a plaintiff must show (1)

that the ‘official violated one or more fundamental

constitutional rights, and (2) that the conduct of the

executive official was shocking to the ‘contemporary

conscience." Jd. at 873 (quoting County of Sacramento

v. Lewis, 523 U.S. 838, 847 n.8, 118 S. Ct. 1708, 140 L.

Ed. 2d 1043 (1998)). Conscience-shocking behavior is

"egregious" or "outrageous" behavior. Lewis, 523 U.S. at

&47 n.8. "Mere negligence is not conscience-shocking

and cannot support a claim alleging a violation of a

plaintiffs substantive due process rights." Avalos v.

City of Glenwood, 382 F.3d 792, 799 (8th Cir. 2004).

5a

The district court, in denying Morgan and McGinnis

qualified immunity, held that genuine issues of fact

remained regarding “whether Morgan and McGinnis

committed acts or omissions that rise above mere

negligence and reach the level of ‘shocking the

conscience.'" Specifically, the district court noted that

"neither Morgan nor McGinnis ever inquired about

whether the Gordons' numerous guns were unloaded

and secured, despite the fact that the existence of these

guns at the Gordons' home was well documented."

The actions of Morgan and McGinnis in repeatedly

failing to check the Gordons' home for unsecured

firearms was not conscious-shocking. Even though

there was documentation that firearms were in the

home, there was no evidence available to either Morgan

or McGinnis prior to the incident that any firearm was

unsecured or accessible to the children in the home.

While failing to inquire about the location of the

firearms might rise to the level of negligence, it does

not approach the much higher standard of conscience-

shocking conduct that is required to maintain this

action. See James ex rel. James v. Friend, 458 F.3d 726,

728-30 (8th Cir. 2006) (holding that social workers'

decision to accept foster parents' explarcvions for

bruising and return the child to the home, where the

child later was subjected to physical abuse that

resulted in his death, was not conscience-shocking

behavior); Burton v. Rickmond, 370 F.3d 723, 729 (8th

Cir. 2004) (determining that social workers' “failure to

respond to two reports of sexual abuse and... failure to

conduct a background check" of the children's relatives

prior to placement was "not so outrageous or egregious

as to shock the conscience and thus the failure to

investigate did not violate [the children's] substantive

6a

due process rights"). Thus, the district court erred in

denying the protections of qualified immunity to

Morgan and McGinnis on the section 1983 claim.

B.

In denying Morgan and McGinnis's claim to official

immunity on the state-law wrongful death claim, the

district court found "that numerous of Morgan's and

McGinnis' actions did not involve any degree of

discretion, but instead involved simply following DSS

policy with regard to ensuring the safety of foster

children" and that "numerous factual disputes regarding

what DSS policy required of DSS employees with

respect to the safety of foster children, and what degree

of discretion DSS employees were afforded in

implementing the applicable policy" remained.

"Under Missouri law, the doctrine of official immunity

protects public officials from civil liability for injuries

arising out of their discretionary acts or omissions

performed in the exercise of their official duties. Official

immunity does not, however, shield officials for liability

arising from their negligent performance of ministerial

acts or functions." James ex rel. James, 458 F.3d at 731

(citations omitted). The Missouri Supreme Court has

explained "[a] ministerial function is one which a public

officer is required to perform ‘upon a given state of

facts, in a prescribed manner, in obedience to the

mandate of legal authority, without regard to {an

employee's] own judgment or opinion concerning the

propriety of the act to be performed. Charron v.

Thompson, 939 S.W.2d 885, 886 (Mo. 1996) (en banc)

(quoting Rustici v. Weidemeyer, 673 S.W.2d 762, 769

(Mo. 1984) (en banc)). Whether a state official's action

7a

"is discretionary or ministerial is a case by case

determination to be made after weighing ‘such factors

as the nature of the official's duties, the extent to which

the acts involve policymaking or the exercise of

professional expertise and judgment." Id. (quoting

Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831,

836 (Mo. 1985) (en banc)).

The district court did not specify what actions or

inactions it believed that Morgan and McGinnis took

that were ministerial and non-discretionary and subject

only to the "implement[ation] [of] clearly defined DSS

procedures and policies with regard to the safety of

foster children." Appellee argues that the ministerial

duties pertained to the completion of the CS-45 form

("Kinship Home and Safety Checklist") and to the

general requirement found in the Code of State

Regulations that foster homes be free from weapons

that are accessible to children. See Mo. Code Regs. Ann.

tit. 13, § 40-60.040 (rescinded January 30, 2007).

First, Appellee presents no policy imposing a duty on

Morgan or McGinnish, or any state official, to complete

the CS-45 form at any time after the Gordons were

initially approved to serve as foster parents. Another

social worker had completed the CS-45 form for the

Gordons in August 2003. At that time, the Gordons

reported that any weapons were stored in a manner so

as to be inaccessible to children. Second, the Code of

State Regulations requirement that the foster home be

free from weapons that are accessible to children does

not prescribe how that directive is to be met; therefore,

much discretion is left to the state actors to implement

it. The district court erred in denying Morgan and

McGinnis's motion for summary judgment on the

8a

official immunity basis. In response to the motion for

summary judgment, McLean failed to present facts that

create a genuine issue that Morgan or McGinnis

negligently performed or failed to perform any

ministerial duty. Further, Morgan and McGinnis's

responsibilities to insure that the Gordons' home was

safe were discretionary as a matter of law. Accordingly,

official immunity protects Morgan and McGinnis from

liability under Missouri's Wrongful Death Statute.

C.

McLean's action was originally filed in state court, and

the defendants, including DSS, voluntarily removed it

to federal court. The district court held that this

voluntary removal resulted in DSS's_ waiver of

Eleventh Amendment immunity. DSS maintains that

even if it did waive Eleventh Amendment immunity,

the district court failed to consider its claim of

sovereign immunity. Alternatively, DSS argues that

the State is not a person for purposes of section 1983

litigation, and therefore DSS may not be sued under

section 1983.

We need not address the question of whether the State

waived its Eleventh Amendment immunity by

voluntarily removing this matter to federal court.

Section 1983 provides for an action against a "person"

for a violation, under color of law, of another's civil

rights. As the Supreme Court reminded us, "a State is

not a 'person' against whom a § 1983 claim for money

damages might be asserted." Lapides v. Bd. of Regents,

535 U.S. 613, 617, 122 S. Ct. 1640, 152 L. Ed. 2d 806

(2002); Will v. Mich. Dept. of State Police, 491 U.S. 58,

71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) ("We hold

9a

that neither a State nor its officials acting in their

official capacities are 'persons' under § 1983."); see

Howlett v. Rose, 496 U.S. 356, 365, 110 8. Ct. 2430, 110

L. Ed. 2d 332 (1990) ("Will establishes that the State

and arms of the State, which have traditionally enjoyed

Eleventh Amendment immunity, are not subject to suit

under § 1983 in either federal court or state court.").

Thus, the district court erred in failing to grant

summary judgment for DSS, an agency or "arm[] of the

State," on the section 1983 claim brought by McLean.

II.

Accordingly, we reverse the denial of summary

judgment for Morgan and McGinnis on the section 1983

claim and the state wrongful death claim. We further

reverse the denial of summary judgment for DSS on

the section 1983 claim. We remand this matter to the

district court with instructions to enter summary

judgment in accordance with this opinion.

10a

Filed 1/15/2009

No. 07-2250

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Brandie McLean,

Plaintiff-Appellee,

Rhonda Stone, Rhonda Stone as Next Friend of Minors

ZPW(1), ZPWCII), CZW and KSW, Minors et al.,

Plaintiffs

V.

Mark Gordon et al.,

Defendants,

John McGinnis et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Missouri.

MANDATE

In accordance with the opinion and judgment of

12/01/2008, and pursuant to the provisions of Federal

Rule ofAppellate Procedure 41(a) the formal mandate is

hereby issued in the above-styled matter.

lla

Filed 12/11/2008

No. 07-2250

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Brandie McLean,

Plaintiff-Appellee,

Rhonda Stone, Rhonda Stone as Next Friend of Minors

ZPW(1), ZPW(I1), CZW and KSW, Minors et al.,

Plaintiffs

V.

Mark Gordon et al.,

Defendants,

John McGinnis et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Missouri.

JUDGMENT

This appeal from the United States District Court was

submitted on the record of the district court, briefs of

the parites and was argued by counsel.

After consideration, it is hereby ordered and adjudged

that the judgment of the district court in this cause is

reversed and the cause is remanded to the district court

for proceedings consistent with the opinion of this

court.

12a

Order Entered in Accordance with Opinion:

Cierk, U.S. Court of Appeals, Eighth Circuit

/s/Michael E. Gans

l3a

Filed 1/21/2009

Case No. 05-4308-CV

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

SOUTHWESTERN DIVISION

BRANDIE MCLEAN,

Plaintiff,

VS.

MISSOURI DEPARTMENT OF SOCIAL

SERVICES, CHILDREN'S

DIVISION, et al.,

Defendants.

ORDER

Pending before the Court is the Mandate of the United

States Court of Appeals for the Eighth Circuit

regarding summary judgment for Defendants John

McGinnis, Mickey Morgan, and the Missouri

Department of Social Services. (Doc. #89). In

accordance with the Eighth Circuit's Judgment and

Opinion, (Doc. #88), with regard to the interlocutory

appeal of Defendants McGinnis, Morgan, and the

Missouri Department of Social Services, (Doc. #80),

summary judgment is GRANTED for Defendants

McGinnis and Morgan on Plaintiff Brandie McLean's

("Plaintiff) section 1983 claim on qualified immunity

grounds. In addition, summary judgment is GRANTED

for Defendants McGinnis and Morgan on Plaintiff's

state-law wrongful death claim on official immunity

grounds. Finally, summary judgment is GRANTED for

Defendant Missouri Department of Social Services on

14a

Plaintiff's section 1988 claim as "a State is not a ‘person’

against whom a § 1983 claim for money damages might

be asserted." See Lapides v. Bd. of Regents, 535 U.S.

613, 617 (2002).

ITIS SO ORDERED.

s/ Gary A. Fenner Gary A. Fenner, Judge United

States District Court

DATED: January 21, 2009

15a

Filed 5/4/2007

Case No. 05-4308-CV

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

SOUTHWESTERN DIVISION

BRANDIE MCLEAN,

Plaintiff,

VS.

MISSOURI DEPARTMENT OF SOCIAL

SERVICES, CHILDREN'S

DIVISION, et al.,

Defendants.

ORDER

Pending before the Court is a Motion for Summary

Judgment, filed by Defendants Missouri Department of

Social Services, Children's Division ("DSS"), John

McGinnis ("McGinnis"), and Mickey Morgan ("Morgan")

(collectively "Defendants"). (Doc. #50). Plaintiff, Brandie

McLean ("Plaintiff '), opposes Defendants' Motion. (Doc.

#67). Having considered the facts and arguments

presented by the parties, Defendants' Motion is

GRANTED IN PART AND DENIED IN PART.

DISCUSSION

I. Legal Standard

Defendants filed this Motion for Summary Judgment

pursuant to Rule 56(c) of the Federal Rules of Civil

Procedure. According to this Rule, summary judgment

16a

is appropriate when the "pleadings, depositions,

answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is

no genuine issue as to any materia] fact and the moving

party is entitled to judgment as a matter of law." Fed.

R. Civ. P. 56(c). When considering this Motion, the

Court views all facts in the light most favorable to

Plaintiff and gives her the benefit of all reasonable

inferences. See Prudential Ins. Co. v. Hinkel, 121 F.3d

364, 366 (8th 1997). The Court will not weigh the

credibility of the evidence, but rather will focus on

whether a genuine issue of material fact exists for trial.

Roberts v. Browning, 610 F.2d 528, 531 (8th Cir. 1979);

United States v. Porter, 581 F.2d 698, 703 (8th Cir.

1978).

II. Analysis

A. Background

This case arises from the death of 8 year-old Braxton

Wooden ("BDW") while he was in the legal custody of

the DSS. In June 2005, several months after BDW's

placement in the home of Mark and Treva Gordon (the

"Gordons”), the Gordons’ biological son shot and killed

BDW with a pistol owned by Mark Gordon. At the time

of BDW's death, Morgan was employed by DSS as

BDW's social worker. McGinnis was a Circuit Manager

for the DSS and_= supervised approximately 60

employees, including Morgan.

B. 42 U.S. C. § 1983

Count II sets forth a claim against al] Defendants for

wrongful death under 42 U.S.C. § 1983 ("§ 1983").

17a

Plaintiff alleges that Defendants, acting under color of

state law, recklessly in a grossly negligent manner, and

with deliberate indifference to Plaintiff's and BDW's

rights, failed to protect BDW from harm and failed to

provide protective case worker services. (Doc. #65).

Plaintiff further alleges that Defendants failed to follow

their own internal policies and practices as well as

statutory requirements and regulations designed to

protect BDW and failed to provide him with the

requisite level of care and protection required by law.

Id.

Defendants argue that the Court should grant

summary judgment on Plaintiff's § 1983 claim against

Morgan and McGinnis because, as government officials,

they are entitled to qualified immunity. The Court

disagrees. Government officials are not shielded from

liability under § 1983 when their actions violate "clearly

established statutory or constitutional rights of which a

reasonable person would have known." Burton v.

Richmond, 276 F.3d 973, 976 (8th Cir. 2002) quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "The

right to personal security is a ‘historic liberty interest

protected substantively by the Due Process Clause. "'

Id. quoting Ingraham v. Wright, 430 U.S. 651, 673

(1977). The state has an obligation to provide adequate

medical care, protection and supervision to children

piaced in foster homes. Norfleet v. Arkansas Dept of

Human Serv., 989 F.2d 289, 293 (8th Cir. 1993). To

succeed on such a claim, Plaintiff must allege acts that

shock the conscience. 8.8. v. McMullen, 225 F.3d 960,

964 (8th Cir. 2000). Merely negligent acts are

insufficient as a matter of law. Id.

The Court finds that genuine issues of material fact

exist regarding whether Morgan and McGinnis

18a

committed acts or omissions that rise above mere

negligence and reach the level of "shocking the

conscience." Plaintiff claims, among other things, that

neither Morgan nor McGinnis ever inquired about

whether the Gordons' numerous guns were unloaded

and secured, despite the fact that the existence of these

guns at the Gordon's home was well documented.

Defendants claim Morgan and McGinnis had no reason

to know about the guns, no reason to ask the Gordons

about guns, and no reason to suspect that the Gordons

had unsecured guns in their home. The parties'

conflicting versions of the facts create a genuine factual

dispute that is appropriately determined by a jury.

Accordingly, summary judgment is inappropriate on

Plaintiff's claims against Morgan and McGinnis under

Count II.

Defendant also argues the Court should grant summary

judgment on Plaintiff's § 1983 claim against DSS

because Plaintiff's claims are barred by the Eleventh

Amendment. The Eleventh Amendment protects non-

consenting states from suits for damages in federal

court. Hadley v. North Arkansas Comm. College, 76

F.3d 1487, 1488 (8th Cir. 1996). However, a state may

consent to be sued in federal court. Sante Sioux Tribe of

Nebraska v. State of Nebraska, 121 F.3d 427, 432 citing

Burk v. Beene, 948 F.2d 489, 493 (8th Cir. 1991). A state

voluntarily invokes the federal court's jurisdiction,

thereby waiving its Eleventh Immunity, when it

voluntarily removes the action to federal court. Skelton

v. Henry, 390 F.3d 614, 618 (8th Cir. 2004) citing

Lapides v. Bd. of Regents, 535 U.S. 613, 619 (2002). This

case was originally filed in state court, and Defendants

voluntarily removed it to this court. Accordingly,

Defendants have waived their Eleventh Amendment

immunity.

C. State Wrongful Death Claim

Count I sets forth a state law claim against all

Defendants for the wrongful death of BDW. Under

Count I, Plaintiff claims Defendants acted negligently,

recklessly, and with gross negligence by failing to

monitor and adequately supervise the Gordons and

BDW in the provision of caseworker services while

BDW was residing in the Gordons' home.

Defendants argue the Court should grant summary

judgment on Plaintiff's claims in Count I against

Morgan and McGinnis because Plaintiff has not

established a submissible underlying claim; in this case,

substantive due process pursuant to § 1983. Plaintiff

contends that the allegations in Count I and in Count I]

are not subject to the same standards of proof, arguing

that although simple negligence does not support

Plaintiff's § 1983 claim, negligence does support a claim

for wrongful death under Mo. Rev. Stat. § 537.080.

However, the Court need not decide this issue because,

as discussed above, Plaintiff has in fact established a

submissible § 1983 cla*in.

Defendants further argue that Morgan and McGinnis

are entitled to summary judgment on Count I pursuant

to the official immunity doctrine and the public duty

rule. However, the Missouri Supreme Court has

indicated that the "doctrine of official immunity shields

officials from liability for injuries arising only out of

their discretionary acts or omissions." Charron v.

Thompson, 939 S.W. 885, 886 (Mo. 1996) citing

Kanagawa v. State By and Through Freeman, 685

20a

S.W.2d 831, 835 (Mo. bane 1985). Officials may be held

liable for injuries resulting from ministerial acts. Id.

Whether a function is discretionary or ministerial is

determined on a case by case basis by weighing factors

such as the nature of the official's duties and the extent

to which the acts involve policymaking or the exercise

of professional expertise and judgment. Id. citing

Kanagawa, 685 S.W.2d at 836. "A ministerial function is

one which a public officer is required to perform ‘upon a

given state of facts, in a prescribed manner, in

obedience to the mandate of legal authority, without

regard to [an employee's] own judgment or opinion

concerning the propriety of the act to be performed."

Id. quoting Rustici v. Weidemeyer, 673 S.W.2d 762, 769

(Mo. bane 1984) quoting Jackson v. Wilson, 581 S.W.2d

39, 43 (Mo. App. 1979).

Plaintiff argues that numerous of Morgan's and

McGinnis' actions did not involve any degree of

discretion, but instead involved simply following DSS

policy with regard to ensuring the safety of foster

children. While certain aspects of a social worker's

handling of a child's case are certainly discretionary,

this case involves numerous factual disputes regarding

what ‘DSS policy required of DSS employees with

respect to the safety of foster children, and what degree

of discretion DSS employees were afforded in

implementing the applicable policy. Plaintiff's have set

forth sufficient evidence from which a reasonable jury

couid determine that many aspects of this case involved

the ministerial, non-diseretionary aspect = of

implementing clearly defined DSS procedures and

policies with regard to the safety of foster children.

Accordingly, the Court cannot determine as a matter of

law that Morgan's and McGinnis’ actions and inactions

2la

involving BDW were purely discretionary functions.

Summary judgment is therefore inappropriate on

Plaintiffs state law wrongful death claim against

Morgan and McGinnis.

Defendants further contend that the public duty

doctrine protects Morgan and McGinnis from liability.

Under that doctrine, a public employee is not liable to

an individual for injuries resulting from a breach of

duty the employee owes only to the general public.

Davis-Bey v. Missouri Dept of Corrections, 944 S.W.2d

294 (Mo. Ct. App. W.D. 1997). However, as

discussed above, Defendants indeed owed a duty to

provide BDW with the requisite level of care and

protection from harm. This duty was owed to BDW

individually, not to the public at large. Accordingly, the

Court is unpersuaded by Defendants’ argument that

the public duty doctrine protects Morgan and McGinnis

from liability.

Finally, Defendants argue that Plaintiff's state law

wrongful death claim against DSS is barred by the

doctrine of sovereign immunity. In Plaintiff's opposition

to Defendants' Motion for Summary Judgment, Plaintiff

concedes that her claims against DSS do not fall within

any statutory exception to sovereign immunity and are

therefore barred. Accordingly, summary judgment is

appropriate as to Plaintiff's state law wrongful death

claim against DSS in Count I.

CONCLUSION

For the reasons set forth above, Defendants' Motion for

Summary Judgment is DENIED as to Counts I and II

against Morgan and McGinnis. Summary judgment is

also DENIED as to Plaintiff's § 1983 claim against DSS,

22a

as set forth in Count II. However, Summary Judgment

is GRANTED as to Plaintiff s state law wrongful death

claim against DSS, as set forth in Count I.

IT ISSO ORDERED.

s/ Gary A. Fenner

GARY A. FENNER, JUDGE

UNITED STATES DISTRICT COURT

DATED: May 4, 2007

23a

Filed 1/7/2009

No. 07-2250

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Brandie McLean,

Plaintiff-Appellee,

Rhonda Stone, Rhonda Stone as Next Friend of Minors

ZPW(1), ZPW(I1), CZW and KSW, Minors et al.,

Plaintiffs

Vv.

Mark Gordon et al.,

Defendants,

John McGinnis et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Missouri.

ORDER

The petition for rehearing by the panel filed by appellee

has been considered by the court and is denied.

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit

/s/Michael E. Gans

24a

28 USC § 1254. Courts of appeals; certiorari; certified

questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any part, to any civil or criminal case, before or after

rendition of judgment or decree;

(2) By certification at any time by a court of appeals of

any question of law in any civil or criminal case as to

which instructions are desired, and upon such

certification the Supreme Court may give binding

instructions or require the entire record to be sent up

for decision of the entire matter in controversy.

28 USC § 1867. Supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or as

expressly provided otherwise by Federal statute, in

any civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction

that they form part of the same case or controversy

under Article III of the United States Constitution.

Such supplemental jurisdiction shall include claims that

involve the joinder or intervention of additional parties.

(b) In any civil action of which the district courts have

original jurisdiction founded solely on section 1332 of

this title, the district courts shall not have supplemental

jurisdiction under subsection (a) over claims by

plaintiffs against persons made parties under Rule 14,

19, 20, or 24 of the Federal Rules of Civil Procedure, or

over claims by persons proposed to be joined as

plaintiffs under Rule 19 of such rules, or seeking to

25a

intervene as plaintiffs under Rule 24 of such rules,

when exercising supplemental jurisdiction over such

claims would be inconsistent with the jurisdictional

requirements of section 1332.

(c) The district courts may decline to exercise

supplemental jurisdiction over a claim under subsection

(a) if—

(1) the claim raises a novel or complex issue of State

law,

(2) the claim substantially predominates over the claim

or claims over which the district court has original

jurisdiction,

(3) the district court has dismissed all claims over

which it has original jurisdiction, or

(4) in exceptional circumstances, there are other

compelling reasons for declining jurisdiction.

(d) The period of limitations for any claim asserted

under subsection (a), and for any other claim in the

same action that is voluntarily dismissed at the same

time as or after the dismissal of the claim under

subsection (a), shall be tolled while the claim is pending

and for a period of 30 days after it is dismissed unless

State law provides for a longer tolling period.

(e) As used in this section, the term “State” includes the

District of Columbia, the Commonwealth of Puerto

Rico, and any territory or possession of the United

States.

42 USC § 1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

26a

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any

action brought against a judicial officer for an act or

omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable. For the purposes of this section, any

Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the

District of Columbia.

§ 537.080 R.S.Mo. (2009). Action for wrongful death--

who may sue--limitation

1. Whenever the death of a person results from any

act, conduct, occurrence, transaction, or circumstance

which, if death had not ensued, would have entitled

such person to recover damages in respect thereof, the

person or party who, or the corporation which, would

have been liable if death had not ensued shall be liable

in an action for damages, notwithstanding the death of

the person injured, which damages may be sued for:

(1) By the spouse or children or the surviving lineal

descendants of any deceased children, natural or

adopted, legitimate or illegitimate, or by the father or

mother of the deceased, natural or adoptive;

(2) If there be no persons in class (1) entitled to bring

the action, then by the brother or sister of the

deceased, or their descendants, who can establish his or

her right to those damages set out in section 537.090

because of the death;

(3) lf there be no persons in class (1) or (2) entitled to

bring the action, then by a plaintiff ad litem. Such

27a

plaintiff ad litem shall be appointed by the court having

jurisdiction over the action for damages provided in

this section upon application of some person entitled to

share in the proceeds of such action. Such plaintiff ad

litem shall be some suitable person competent to

prosecute such action and whose appointment is

requested on behalf of those persons entitled to share in

the proceeds of such action. Such court may, in its

discretion, require that such plaintiff ad litem give bond

for the faithful performance of his duties.

2. Only one action may be brought under this section

against any one defendant for the death of any one

person.

Amendment XIV [Privileges and Immunities, Due

Process, Equal Protection, Apportionment of

Representatives, Civil War Disqualification and Debt

(1868)]

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein

they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state

deprive any person of life, liberty, or property, without

due process of Jaw; nor deny to any person within its

jurisdiction the equal protection of the laws.

28a

13 CSR 40-60.040 Physical Standards for Foster Homes

PURPOSE: This rule explains what is required in a

physical structure. It further describes sleeping

arrangements and fire and safety requirements.

(1) General Requirements.

(A) The foster parent(s) shall be so located that they

have access to schools, recreational, religious or other

community resources.

(B) The home shall be so constructed, arranged and

maintained as to provide adequately for the health and

safety of all occupants. It shall be of size and space and

shall have furnishings and equipment to accommodate

comfortably both the foster family and foster children

in their care.

(C) The division may require inspection of the home by

fire, health, sanitation or safety officials when in the

agency's judgment such expert opinion is needed to

assist in making a decision about the safety of the home

for the care of foster children.

(D) All flammable liquids, matches, cleaning supplies,

poisonous materials, medicines, weapons or other

hazardous items shall be stored so as to be inaccessible

to the children.

(E) Private water supply shall be safe for human

consumption and testing shall be required at the time of

licensing.

(F) The interior of the home shall be free from an

accumulation of visible dirt and any evidence of vermin

and rodent infestations.

(G) All rooms shall have proper lighting and ventilation.

Windows and doors shall be screened as needed unless

the area is air conditioned.

(H) All interior doors shall be designed to permit the

opening of a locked door from the outside in an

emergency.

29a

(1) The hone shall have space for indoor play and access

to outdoor play space. The outdoor play space shall be

fenced when in the judgment of the division, nearby

street traffic, railroad tracks, lake, river or other

potential hazards suggest the necessity for such

protections.

(J) Mobile homes.

1. There shail be an exit(s) at each end(s) of the home.

2. The mobile home shall be skirted with latticed or

solid skirting and securely anchored by cable to the

ground.

(2) Sleeping Arrangements.

(A) Foster children shall not be permitted to sleep in

any building, apartment or other structure which is

separate from the foster family home; nor shall any

foster child be permitted to sleep in an unfinished attic,

in an unfinished basement or in a hall or any other room

which is normally used for other than sleeping

arrangements.

(B) Foster children under ten (10) years of age shall not.

be permitted to sleep in finished basement bedrooms or

in bedrooms above the second floor of a single family

dwelling unless suitable provision has been made for

heating, ventilation and humidity control and all exits

from these bedrooms have been approved by the

division.

(C) At night a respensible adult shall sleep within call of

the foster children.

(D) Foster children of the opposite sex, who are over

six (6) years of age, shall not sleep in the same room.

(E) Foster children over two (2) years of age shall not

sleep in the bedroom of the foster parents except for

special temporary care, such as during a child's illness.

(F) Each bed or crib shall be of a size as to insure

comfort of the foster child, shall have suitable springs in

30a

good condition, clean and comfortable mattress with

waterproof covering, if needed, and suitable covers

adequate to the season.

(G) Each foster child under age two (2) shall have a

separate bed. Each foster child over age two (2) shall

have bed space equivalent to one-half (112) of a full-size

bed.

(H) Separate and accessible drawer space for personal

belongings and closet space for clothing shall be

available for each foster child.

(83) Fire and Safety Requirements.

(A) In all foster homes the telephone numbers of the

fire department, police, doctor and ambulance shall be

posted at all times. The house number shall be plainly

visible from the street in case of emergency.

(B) The foster family shall have a plan for evacuation in

case of fire. Foster children shall be instructed in the

evacuation plan. The plan shall be posted. Fire drills

shall be held.

(C) Every room used for sleeping, living or dining

purposes shall have at least two (2) means of exit. At

least one (1) of which shall be a door or stairway

providing a means of unobstructed travel to the

outside. An operable window will be considered as one

(1) means of exit.

(D) No room or space shall be occupied for living or

sleeping purposes which is accessible only by a ladder,

folding stairs or through a trap door.

(E) In apartment buildings where the foster family

residence is second floor or above there shall be an exit

stairway.

(F) A smoke detector shall be installed at a location

where sleeping areas can be alerted. (G) A portable

ABC fire extinguisher of at least two and one-half (2

1/2) pound capacity shall be located near the kitchen

3la

area.

(H) Heating appliances shall not be located in a place

which blocks escape in case of malfunctioning which

could result in a fire.

(I) Fireplaces, wood stoves, heaters, radiators or floor

furnaces shall be protected as required by the fire

inspector.

AUTHORITY section 210.221, RSMo 1986. Original

rule filed May 10, 1978, effective Sept. 11, 1978.

Amended: Filed June 28, 1983, effective Nov. 11, 1983.

*Original authority: 210.221, RSMo 1949, amended

1955.

32a

F.R.C.P. Rule 56. Summary Judgment

(a) By a Claiming Party.

A party claiming relief may move, with or without

supporting affidavits, for summary judgment on all or

part of the claim. The motion may be filed at any time

after:

(1) 20 days have passed from commencement of the

action; or

(2) the opposing party serves a motion for summary

judgment.

(b) By a Defending Party.

A party against whom relief is sought may move at any

time, with or without supporting affidavits, for

summary judgment on all or part of the claim.

(c) Serving the Motion: Proceedings.

The motion must be served at least 10 days before the

day set for the hearing. An opposing party may serve

opposing affidavits before the hearing day. The

judgment sought should be rendered if the pleadings,

the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to

judgment as a matter of law.

(d) Case Not Fully Adjudicated on the Motion.

(1) Establishing Facts.

If summary judgment is not rendered on the whole

action, the court should, to the extent practicable,

determine what material facts are not genuinely at

issue. The court should so determine by examining the

pleadings and evidence before it and by interrogating

the attorneys. It should then issue an order specifying

what facts — including items of damages or other relief

— are not genuinely at issue. The facts so specified

must be treated as established in the action.

(2) Establishing Liability.

33a

An interlocutory summary judgment may be rendered

on liability alone, even if there is a genuine issue on the

amount of damages.

(e) Affidavits; Further Testimony.

(1) In General.

A supporting or opposing affidavit must be made on

personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant is

competent to testify on the matters stated. If a paper or

part of a paper is referred to in an affidavit, a sworn or

certified copy must be attached to or served with the

affidavit. The court may permit an affidavit to be

supplemented or opposed by depositions, answers to

interrogatories, or additional affidavits.

(2) Opposing Pasty's Obligation to Respond.

When a motion for summary judgment is properly

made and supported, an opposing party may not rely

merely on allegations or denials in its own pleading;

rather, its response must — by affidavits or as

otherwise provided in this rule — set out snecific facts

showing a genuine issue for trial. If the opposing party

does not so respond, summary judgment should, if

appropriate, be entered against that party.

(f) When Affidavits Are Unavailable.

If a party opposing the motion shows by affidavit that,

for specified reasons, it cannot present facts essential to

justify its opposition, the court may:

(1) deny the motion;

(2) order a continuance to enable affidavits to be

obtained, depositions to be taken, or other discovery to

be undertaken; or

(3) issue any other just order.

(g) Affidavits Submitted in Bad Faith.

If satisfied that an affidavit under this rule is submitted

in bad faith or solely for delay, the court must order the

34a

submitting party to pay the other party the reasonable

expenses, including attorney's fees, it incurred as a

result. An offending party or attorney may also be held

in contempt.

35a

EXHIBIT J

Firearm Safety

In the United States, accidents involving firearms kill

250 children under the age of 14 every year. The best

way to prevent these deaths is eliminate guns from

your home. As a resource family you are responsible to

ensure that you comply with your state laws and

agency regulations or policies related to firearms. If

you do own a firearm, follow these rules to ensure the

safety of children in your family:

e Store guns unloaded and in an uncocked position

in a securely locked case out of children’s reach.

Store ammunition separately, in a securely

locked container out of the reach of children.

e Always use trigger locks or other childproof

devices.

e Teach children that guns are not toys

e Teach children to report to you if they find any

guns or ammunition

e Ifyou child spends time in other homes, ask the

parents if there are guns in the house and how

they are stored

Foster STARS/Adopt STARS STARSbook — 2004

Promoting Safety, Permanence, and Well-Being

36a

EXHIBIT L — (Form CS — 45)

Missouri Department of Social Services

Division of Family Services

Kinship Home and Safety Checklist

| Date

Name of Potential Kinship Provider(s) Tel #

Street City

State Zip Code

Relationship DOB

Others in Home Age

Name of Youth

A. Potential Placement Family Personal Inf***

Have you or any Household Member Ever:

Y {| N

| 1. Been Convicted of a Felony?

.2. Been Convicted of a Crime?

3. Committed an Act of Child Abuse or

Neglect, as Confirmed by DFS?

4. Had Serious Illness that is Still Contagious?

5. Been Treated or Diagnosed for Chemical

| Dependency and/or Alcoholism?

_6. Received a DUI/DWI?

Tf} You Answered Yes to Any of the Above, Please

Attach a Detailed Explanation

B. Care and Supervision of Youth

_You or Do You:

| eR Cooperate with and Follow Kinship

ly

Gg

|

37a

Placement Plan Regarding Contact with

Relatives?

2. Assure Regular School Attendance and/or

Cooperate with Educational Plan?

3. Provide Appropriate Supervision/Nurturing

and Care of Children?

4. Agree to Use Consistent, Appropriate

Discipline and Consequences:

5. Agree not to Use the Following Forms of

Punishment

A. Corporal Punishment (Children in DFS

Custody)

B. Tying or Binding

C. Confining in Locked or Dark Area

D. Witholding Food, Rest, Or Toilet Use

E. Refusing Access to the Home

I’. Mental or Emotional Cruelty

6. Work Cooperatively with DFS, Juvenile

Court Officials, and Others as Necessary to

Develop and Fulfill Plans for the Youth ***

Home?

C. The Kinship Placement Home

| Physical and Safety Requirements

i. Home Appears Clean and in Good Repair?

2. Porches, Rails and Steps Appear Safe?

3. Mobile Homes Have Two Exits Located in

| Different parts of the Home?

4. Ifa Basement is Used for Sleeping, it Must

have a Second Exit to the Outside, It Should

not Pass by a Heating Appliance

pion Where Sleeping Areas Can be

Alerted?

5. Working Smoke Detectors are Installed ata |

x

6. 2* Pound Capacity Fire Extinguishers is

38a

Located in the Kitchen Area?

7. Bedroom has Windows to Provide

Immediate Access to Outside?

8. One Half of a Full Sized Bed for Youth Over

Age 2 Will be Provided?

9. Rooms for Children/Youth Over the Age of

8, of Opposite Sex Will be Provided?

10. Separate Rooms from Adults Will be

Provided for Youth Over 24 Months, If Not,

Explain?

11. Provide Separate Accessible Drawer and

Closet Space to Each Child?

12. Alternative Heating Source?

13. Screen on Windows Above 2™ Floor?

14, Flammable Liquids, Matches, Cleaning

Supplies, Poisonous Materials, Medicine,

Weapons and Other Hazardous Items are

Stored so as to be Inaccessible to Children?

_D. Health Care Policies

1. Appropriate Medical Care will be Provided

| for Youth?

2. | 2. Kinship Providers are in Good Health? If

No, Explain

3. Kinship Providers Submit a ***-215 Foster

Family Home Medical Report, Which is a

Statement of Physical and Mental Health.

E. Policies Relating to Illness/Emergencies

1. Kinship Family Emergency Procedures:

A. Have an Emergency Exit Plan Developed

and Posted

B. Will Have an Emergency Plan Reviewed

with Kinship Youth

39a

C. Agree to Report Serious Accidents, and/or

Illness, or Deaths to the Appropriate Juvenile

Justice Official and DFS

D. Agree to Report Suspected Child Abuse to

Authorities

E. Telephone Numbers of the Fire

Department, Police, Doctor and Ambulance are

Posted at All Times, House Number is Plainly

Visible from the Street in Case of an

Emergency.

F. Expectations of the Kinship Provider(s) -— For

Agency Arranged Care Only Se

I/We Agree a YIN

1. To Cooperate with Treatment Goals

Established for Children, to Participate in

Case Planning Activities and Family Support

*** Meetings

2. To Abide by Visitation Arrangements Set

Forth by the Family Support Team or the

Court

3. To Provide Reasonable and Customary

Transportation for Children to School and

Community Activities, Medical, Dental, and

Counseling Appointments and Family Visits

4. To Obtain Routine and Emergency Medical

and Dental Care for Children, as Necessary, to

Monitor the School Progress and Attendance

of Children, as Necessary, and to Provide

Children with Reasonable Access to

Appropriate Community Activities.

5. Not to Disclose Confidential Medical,

Personal or Social Information Regarding the

Child in Their Care.

G. Is There Anything Else that the Division _|

40a

Should Know About You and/or Your Family

that Would be Relevant for a Kinship

Placement in Your Home? If Yes, Explain

H. I/We Have Answered the Questions as

Accurately as I/We Can and Believe I/We

Would Provide Placement for the Above-

Named Youth

I Agree to voluntarily Place My Child(ren) in This

Kinship Home Upon the Recommendation of the

Division of Family Services and the Juvenile

Court/Law Enforcement. I Understand that the

Division Will be Working with My Family during This

Period of Time With the Goal to Reunify My Child(ren)

With Me in My Home

| Signature of Bioligical Parent Date

a

I Have toured This Home and Reviewed This Form With

the Potential Placement Parent(s) and Am of the

Opinion That the Above Information is Accurate and

That the Home and Potential Kinship Parent(s) Appear

Acceptable for theKinship With the Possible Concern(s)

and *** as Noted.

Signature of Social Service Worker me