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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

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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TINY ise sceasisccienisincseinnscicicunicuetessulnecuedanssianieneianielnaanana
RELEVANT PROVISIONS INVOLVED ........ccccoscccessesevosssseseseses
S15 A aan ENON SUNPRE I, nt EE. SO
REASONS FOR GRANTING THE PETITION ........ccscrsseeeeseeneesnes
SE TT nA
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
IO iss osssso<ncasensnannssnnniibbupanteansieuesss saaniads aan aaa
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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0369%3A1. Public record. Not legal advice.