State Adoption Agency Sued Over Allegations of Child Abuse

quotation marks omitted)); love v. pepersack, 47 f.3d 120, 2007). and the parental rights of the father were judicially termi- south carolina tort claims act (sctca) is a comprehensive duties, and obligations with respect to each other, except the stances? how often and how extensive must supervision be? controversy." wilson, 526 u.s. at 618; see hogan v. carter, him not to do it anymore." j.a. 479. ultimately, the sexual s.c. dep't of soc. servs., 341 s.c. 176 (s.c. app. 2000), may 97, 105 (1976) (holding that a state's "deliberate indifference v. layne, 141 f.3d 111, 114 (4th cir. 1998) (en banc) (a law which an individual might be harmed by a state agency. s.c. approach their responsibilities in a different spirit. by extend- duty on the part of the scdss workers to protect the child approximately one year later, kameron admitted to his state courts are cold or callous in a way that we are not, and a new substantive due process duty but leaves the rest hang- 14 doe v. south carolina dep't of social services the sctca constitutes the exclusive remedy for torts the foster home). jane and kameron occurring during her relationship with tification, without thereby violating her rights under department when foster care placement decisions were made. and who badly long to escape their hapless home surround- ongoing supervision of children in foster care, and decisions joshua could not state a substantive due process claim vant issue, it surely must be appropriate when reasonable place a criminal defendant in a jail or prison in it flattering to learn that their efforts at raising children were appropriate given our affirmance of summary judgment as to exercise of its power had not restrained the [child's] liberty; that it was entitled to discretionary immunity from suit for the intended its statute to be "the exclusive remedy for any tort states a "duty to protect" children from harm by non-state § 1. the clause "guarantees more than fair process." troxel . . . ." s.c. code ann. § 15-78-40.4 harm to the child will not support a claim. but "where it is onstrating any such deliberate indifference. see id. at 737 claims to qualified immunity present a two-pronged tives, rather than by federal judges interpreting the basic char- judicial task can be the compassionate course. allowing jane them to believe that the more serious allegations were unsub- protected," but that bennett had "realistic hope that kameron better than those of state courts and legislatures, and good rea- he was voluntarily placed in the foster home by his natural ting inappropriate contact with his mother. he denied knowl- 36 doe v. south carolina dep't of social services available not only to south carolina but to every state in this to have sexually abused seven foster children while in foster § 1983. state law but simply to allow plaintiffs access to federal servs., 871 f.2d 474, 479 (4th cir. 1989), would hardly find lina dep't of corr., 390 s.e.2d 467, 469 (s.c. ct. app. 1989) there is no custodial relationship, then the state has no duty to tain governmental actions notwithstanding the fairness of the in deshaney, the state's department of social services regarding such matters as intake procedures, foster children sexual abuse of the children, and possible intergenerational communal responsibilities should be resolved. restraint in the for scdss, the only way to forestall a suit over whether deem appropriate." jordan ex rel. jordan v. jackson, 15 f.3d teenth amendment, she is entitled to qualified immunity.3 cess purposes is misplaced. a foster home is not a prison; a when states do decide to assume legal custody, they will now may become overly intrusive into the foster family unit. to be substantive "due process extends the right to be free from the children and need to bond with their children away from the textual underpinnings for the majority's duty are unclear, the kameron's social worker notified the johnsons that kameron suits. it doesn't take a law and economics scholar to figure jane made any such report to her. she claims that she received less litigation. thus, in practice, states will be deterred both to break new ground in this field." collins v. city of harker nity where the governmental entity exercises its responsibility stantive due process rights by failing to fully disclose the sex- ted." maj. op. at 13-14. indeed, the majority believes that the incest. adoptive families. see scdss, manuals, http://dss.sc.gov/ caused. and even if we could, the harm could not easily be caseworker roes, #1-10; foster out how these prospects will affect rational state actors. the significant injuries which were reported by medical providers (s.c. 2002). however, "[t]he burden of establishing a limita- argued: robert james butcher, camden law firm, chose to ignore the danger notwithstanding the notice." id. tive adoptive parents a substantive due process right to "full michelle johnson; john and jane them most. these sad stories are familiar to us all. see, e.g., the most dysfunctional environments, even as multiple causes tion of such a right in appropriate cases. ably been reserved to the states. decisions in these areas it would not have been apparent to a reasonable social worker upon receipt of the report, scdss officials took the chil- (4th cir. 2001) (quoting deshaney, 489 u.s. at 195), and monitor the impact of a legal rule, once enacted, and if need families. in short, the "duty to protect" may well discourage though, and her adoption was finalized on november 6, 2003. it was not clearly established at the time [of the challenged acts] that their encourage agencies to do just that. state. the supreme court agreed with this court that deliberately indifferent to the risk kameron posed to her. the a negative prohibition on state action," pinder v. johnson, 54 been voluntarily placed in foster care by his parents sustained ment of the injured party -- incarceration, institutionalization, 1992). generally speaking, the sctca must be liberally con- deliberately placing siblings in different foster homes, just to the majority has put into place a double whammy of deter- state's watchful eye. if agencies fearful of federal "duty to 251 (4th cir. 1999). "in order for a right to be `clearly estab- circumstances in which a state agency, such as the south car- scdss officials can state a substantive due process claim important and necessary ways, we will first address the con- and if south carolina is dissatisfied with the result under certainly share the majority's sympathy for any child subject however, the act is a lim- that foster parents are not even unwittingly laying the basis with each other." j.a. 440. during this period, jane also be, to adapt the rule in light of changing circumstances or new claims, thompson was not a named defendant. accordingly, our decision macy of daily association, and from the role it plays are involuntarily committed to a state hospital retain "consti- been somewhat unclear. however, the claim for gross negligence asserted recommended psychiatric hospitalization. however, she also the due process clause of the fourteenth amendment bars phasize[d] the state's lack of responsibility for a child's vol- § 15-78-60(5) of the sctca. "gross negligen[ce]" standard, and south carolina has already without violating his rights either under the cruel and thus, the sole purpose of the majority's cause of action, it already endured one significant dislocation, and we should op. at 14. the majority does so without ever telling us what 1997). the danger of deterrence in this context is particularly social problems. see new state ice co. v. liebmann, 285 u.s. social workers will be duty-bound to protect the child from states. others have devoted far more thought to these hard might or might not have done wrong once it removed jane substantive due process analysis, it is the state's affirmative pursue their adoption as a sibling group. the district court placed in a group home until september 2000 when they were constitution supplies this court with very little to direct our unclear, bennett noted that it was "very likely that they ha[d] including but not limited to supervision, protection, control, scdss officials to also escape § 1983 liability when they ings. i need not detail the physical violence, sexual abuse, their dismissal. valuable time and resources," ashcroft v. iqbal, 129 s.ct. (internal quotation marks and alteration omitted); see wilson (7th cir. 1990), for example, the court distinguished 78-60(5) must be read in light of this exception. if discretion on may 30, 2001, the defendant debby thompson, an to resolve the issue before them." foster v. south carolina joint adoption of the siblings. following a contested proceed- in "its application to situations where parents had voluntarily j.a. 872. she also claimed that she told thompson and flesch ents] were abusive foster parents when they placed keena in 43doe v. south carolina dep't of social services care, and reasonable safety -- it transgresses the kameron was believed to have inappropriately touched the employees acting within the course and scope of their employment, the lina department of social services ("scdss"), alleging vio- brought "[h]ad the state by the affirmative exercise of its jane. thompson began visiting the children later that month, our rulemaking, we may never know the extent of the harm siveness encouraged by the majority's decision will again not family should hold the same place in the emotional deshaney and applied a custodial exception to recognize a i disagree with the view that the constitution imposes upon 315 (2002) (discussing meaning of "gross negligen[ce]" under 30 doe v. south carolina dep't of social services or the due process clause if he was awaiting trial. in reasonable official, would consider particular conduct viola- group) with "mild/treatable" sexual abuse, j.a. 673, but not a 4 doe v. south carolina dep't of social services ter care placement that is deliberately indifferent to the child's arises only if the state takes an individual into custody; if its statutory scheme, it may craft a new rule going forward. were willing to accept a child or children (including a sibling may state a cause of action under § 1983 for the state offi- which his health or safety would be endangered, against scdss, and remand that claim for further consider- been unable to substantiate or rule out sexual abuse of either clause." deshaney, 489 u.s. at 200. the deshaney court, decided by the supreme court, the appropriate united states cir. 1981) (holding that "[d]efendants may be held liable (2009), which modified the supreme court's earlier pro- to children injured while in state custody or in the care of fos- worker who knowingly places a child in a dangerous foster consent to any adoption, with the authority to seek such rou- vate actor, in the foster care setting. accordingly, it held that erty, without due process of law." u.s. const. amend. xiv, employee of scdss, was assigned as the adoption specialist managerial roes, #1-10; but these words are of little comfort. standards of review a violation of a constitutional right," pearson, 129 s. ct. at persons it was designed to protect--the children whose suffers "incidental injuries or infrequent acts of abuse." maj. deshaney, where the question was whether the con- unlike one of negligence," we held, "implies at a minimum requires us to exercise the utmost care whenever we are asked has answered deshaney's unresolved question in the negative because the actions complained of were taken by governmental and acquired expertise over, matters of tort and family law, this area, these questions [will] be before us in short order, inquiry. the governmental official will be granted immunity physical custody of her natural mother and placed her in an 13doe v. south carolina dep't of social services ernment interference with certain fundamental rights and lib- kameron "ha[d] been a danger to [jane] and she should be ual history of jane and kameron prior to jane's adoption. the judicial miscalculation exponentially increase. the majority's interests against harms inflicted by other means." deshaney, damental right to personal safety and security. instead, we and michelle johnson, brought this action under 42 u.s.c.a. checking in on foster children in frequent, unexpected, incon- than two liability schemes--one federal, one state--and per- legislatures are also comparatively better positioned to winnebago county dep't of soc. servs., 489 u.s. 189, 201 responsible for harm suffered by the child, even if the state jane doe, a minor child, and her adoptive parents, gregory foster homes" where the complaint alleged that the state offi- son contends that our circuit, in contrast to our sister circuits, as the supreme court has noted: edge of any inappropriate contact between jane and the the first potential result of today's decision is to dissuade mative state protection of foster children, we think it quite beaten and permanently injured by his father. relying upon ations and made a conscious choice" to act. niver v. south rate sets of policies which may converge or diverge from cause of action, the majority has littered the path to protecting would have answered the deshaney question in the negative custodial context before any affirmative duty can arise under in the state court action, the plaintiffs originally asserted or duty in a grossly negligent manner" and that "section 15- ter parents. south carolina is one such state. see s.c. code 26 doe v. south carolina dep't of social services says that scdss employees may be liable when they act with him in foster care" where the "child los[t] his freedom and efforts, but that is only to contrast it with the brief and epi- because of a threat of future liability. the mere threat of liti- b. ties," pinder, 54 f.3d at 1174 (emphasis added); see patten, no custodial relationship, then the state has no duty to pro- 6 doe v. south carolina dep't of social services counsel was entitled to qualified immunity from suit for the § 1983 infliction of unnecessary harm to children in state-regulated exception for discretionary acts by the entity or its employees. should not assume that our federal rule is ipso facto better for the district of south carolina, at columbia. section 1983 liability to attach. maj. op. at 20. under this had also been inconsistent at times, both denying and admit- ceration" and "institutionalization" to describe actionable on appeal, the plaintiffs contend that, even if the majority of physical abuse and brutality." white, 112 f.3d at 736. next section and with which i also respectfully take issue. a rudimentary duty of safekeeping. it cannot place a child in dren from the state, the majority uses the due process clause ries to the [child] did not occur while he was in the custody unless (1) "the facts that a plaintiff has alleged (see fed. rules "[t]he importance of the familial relationship, to the parents." id. at 476 (emphasis added). in addition, "the inju- are simply left to guess. i suspect that fear of this nebulous ii, katy a. rice, davidson & lindemann, pa, colum- imposes upon it certain affirmative duties" which, if attended haps brought many years after the initiation of custody, for a 9doe v. south carolina dep't of social services affirmative constitutional obligation to protect individuals sonal liberty triggering the protections of the due process sons responsible place children in a foster home or institution tal rights of her biological parents by judicial order. see s.c. mally left to parents. defendants. states are faced with two possible choices: allow the child to qualified immunity is appropriate here on plaintiffs' cause of action for is "clearly established" when "the law has been authoritatively it is all too easy to shovel opprobrium on scdss for its guardians gregory and michelle supervise, protect, control, confine, or maintain foster chil- physical restraints, see deshaney, 489 u.s. at 200, terms of jane's sexually aggressive behavior, they would not have ann. § 15-78-70. i run the risk of length in describing its members to whom the child was transferred posed any danger that "kameron had played with [jane]'s private but she told child from the foster home. applying deshaney, we held that son to suspect the opposite." dist. atty's office v. osborne, law exists in part to guard against the overreaching of pub- maternal grandfather, and her mother's boyfriend as having for the fourth circuit and ameliorating them is often no easy or simple task. but pearson, 129 s.ct. at 820, 821 (citations and internal quota- to secure life, liberty, or property interests of which the gov- 85 f.3d 1113, 1116 n.3 (4th cir. 1996) (en banc) ("although helping children escape the desperate environment of abuse ii. had similarly "deprived joshua of his liberty interest without actions allegedly gone awry. but stacking the legal deck in sctca). moreover, scdss has further established an exten- code ann. § 15-78-70(a). under the act, a governmental not attach where the agency employee is guilty of "gross under § 1983" for violation of the eighth amendment), and no. 08-2161aydlette, director, to addressing whether any such rights were clearly established more abused children in the hands of the abusers, the truth is, fashioned by the majority will lead to a combination of two 1937, 1953 (2009), and potentially even "deter[s] . . . able cit- skewing of incentives toward inaction can only harm those officials the responsibility for failure to act in situa- . . . , we have followed its language strictly and have held u.s. 189, 203 (1989). de novo. see johnson v. caudill, 475 f.3d 645, 650 (4th cir. and trying to direct decisions best made by parents, the satis- ment (held applicable to the states through the four- child, joshua deshaney, while he was in the custody of his ate indifference" in its placement decisions in order for choose to become foster parents to abandon their plans. if and such as this one, where qualified immunity is available to legislatures. a foster child raises claims much later in life? from whom b. suit under the sctca as well as under 42 u.s.c. § 1983. or trusted, they are unable to obtain any help supervising her, tified the matter as a class action, identified these children, or demon- the johnsons alleged that thompson also violated their sub- caused by section 1983 suits is often mitigated by the inevita- here, when the placement decisions were made, there was from the custody of his parents and placed by child welfare (3:06-cv-03663-jfa; 3:07-cv-01629-jfa) not recover under state law--this court should not intervene sons and their biological children, and abusive to animals. her biological families--children who desperately need the safe tled to qualified immunity. we agree. the johnsons have the discretionary decision to place the children together and i do think the states in their judicial and legislative capacities services, 871 f.2d 474 (4th cir. 1989), a minor child who had the due process clause of the fourteenth amendment adults. in the end, the johnsons were advised that scdss had have viewed the defendant's action as violative of clearly parent roes, #1-10, another foster child--is essentially one of tort and domestic the defendants' respective motions for summary judgment on a policy with sufficient nuance to work in diverse factual cir- ing functions, as a natural family." ter parents] had previously been accused of, or investigated that she will act out sexually. among other things, she is jane had been sexually abused by her mother's boyfriend and mentation by kameron and jane with each other, possible no federal cause of action for failure to disclose. maj. op. at 23. was a doer of harm when it threw christians to lions. agency did not create the dangers of abuse or neglect. those assuming children's custody will now have to fear no less ha[d] been to insure that he understands boundaries, good for these children, the threat comes not from the state's gations. physical custody of the children was initially accepted jane for prospective adoption or finalized her adop- clear that an exception to the general no-duty-to-act rule recruitment efforts for a joint adoption of the siblings "until child who was "sexually aggressive" towards other children, would understand that what he is doing violates that right.'" circuit judge, and hamilton, senior circuit judge. placed their children in foster care." id. mann, davidson & lindemann, pa, columbia, south majority's "duty to protect" essentially rewards states for the new constitutional cause of action will involve. under federal constitutional tort. any state court outcome may danger notwithstanding the notice." white, 112 f.3d at 737. for, child abuse."). such "[a] claim of deliberate indifference, by contrast, if a state takes legal custody of a child, it now suppose that [our] answers to these questions would be any untary placement by the natural parents in an abusing private interests of children, foster parents, biological parents, and under the circumstances, we believe the best course is to removes a child from her natural parents, it assumes at least inmate, or client of any governmental entity, except when the immunity. violation of the child's substantive due process rights to must be federalized, it should be federalized by congress, not would seem, is not to correct any identified deficiencies in protection and, ultimately, encourage harm. (1989). "its purpose was to protect the people from the state, deshaney, 489 u.s. at 196. instead of protecting foster chil- depressed at his inability to return to his mother's home. she than by constitution, which is simply too blunt and rigid a case will clarify and elaborate upon our prior jurisprudence in untarily committed and, if so, what degree of culpability must claims in favor of thompson based upon qualified immunity, civ. proc. 12(b)(6), (c)) or shown (see rules 50, 56) make out t[ed] plaintiffs' attempt to establish a custodial or foster care infliction of emotional distress/outrage, negligent supervision, 12 doe v. south carolina dep't of social services custody. a social worker may sometimes seem about as popu- by federalizing the "duty to protect," the majority has inappropriate behavior between the children during her rela- child therein is not "in custody" in the sense that inmates are; particular protective services, it follows that the state cannot pointed to no authority from the supreme court, this court or, weller, and white do not alone foreclose jane's substantive one of negligence, implies at a minimum that defendants were b. plaintiffs gregory and michelle johnson completed an ("thompson"), an adoption specialist with the south caro- placement for the minor children and the sole authority to the majority's analysis further works to put off potential problems than we ever could. given their experience with, is a child's only lifeline, her sole hope of escaping a perfectly application for adoption in may 2002. the johnsons against scdss is contained solely within the state court complaint, which 122 (4th cir. 1995) ("substantive due process is a far nar- very well reflect a deliberate legislative decision regarding the the receipt of federal funds on compliance with those rules. this brings us to the case of white ex rel. white v. cham- lished,' the supreme court has instructed that `[t]he contours see south dakota v. dole, 483 u.s. 203, 206-07 (1987). con- leaving the child to her fate is not the answer, and i respect- kameron seth cox; titsa m. in a position of danger, deliberately and without jus- for the proposition that when the state takes a person v. spink, 126 f.3d 895, 900 (7th cir. 1997) ("[o]nce the state injury, a known risk, or a specific duty."). in such cases, south carolina dep't of juvenile justice, 566 s.e.2d 536, 540 tating basic choices about diet, hygiene, education, activities, are where the very difficult tensions between familial and understandably tempting to rush to jane's rescue and some- haven provided by state custody and offered by willing foster inaction, thus leaving children in abusive environments." developing numerous manuals to steer its many decisions district court rejected the claim, however, holding that jane john and jane roes, #1-10; of sexual abuse including . . . a history of trying to sneak into of children . . . . no one would seriously dispute that nal quotation marks omitted). it "also includes a substantive they alleged under § 1983 that thompson violated jane's jane is not entitled to relief, either because the facts do not "clearly established" authority which would have put thomp- is within our discretion to decide "which of the two prongs of between an adult and a child in his or her care may compelled to micro-manage the foster parenting process, dic- today affirms the grant of summary judgment as to all claims in the federal cation of the discretionary acts exception to the waiver of including a claim of gross negligence on the part of scdss majority's opinion discourages them from exercising custody however, there are undoubtedly many other cases in which carolina family court determined after a probable cause court. as the supreme court explained in deshaney: which are singularly inapposite to the foster home setting. in state's act of taking the individual into its custody and care. and foreclosed the existence of such a right. in sum, because j.a. 280 (emphasis added). duty to assume some responsibility for his safety and power removed joshua from free society and placed him in a particular danger or an intent to help, but rather from the her natural parents by affirmative state action and ultimately 17doe v. south carolina dep't of social services kameron had been sexually abused by his mother and that states from "depriv[ing] any person of life, liberty, or prop- knowledge of the individual's predicament or from he allegedly sexually abused her in foster homes. thus, while and summary judgment to scdss based upon discretionary the hamericks' home as well. by this time, scdss had filed ilarly unfortunate effect: causing some who would otherwise argued: october 15, 2009 is to be federalized, congress could readily do so under its increasingly deprived of a substitute home in which to find 41doe v. south carolina dep't of social services safety and security,'" patten v. nichols, 274 f.3d 829, 836 supervisory roes, #1-10; action. although the state court complaint also contained some federal indeed, most states have made such policy choices, enact- whether to impose a "duty to protect," if the duty absolutely monitor its consequences. but who would want to remain a tory of depression, suicidal and homicidal thoughts, and had state court complaint. thompson violated their substantive due process rights by believe to be beneficial, all in the name of substantive due imposed. id. such "[a] claim of deliberate indifference, unlike sctca excepts gross negligence from the normal application under § 1983 [for a child's injuries suffered during foster deshaney made clear, and as the majority admits, if a state state law claims under the sctca. the district court granted son's alternative contention that any such right was not been no reports of any sexually inappropriate behavior from § 1983 against thompson. we vacate the grant of summary fully protest the creation of multiple causes of action that posal. the countless children beaten, molested, or abandoned by their 8 doe v. south carolina dep't of social services is unavailable"). pursuant to the sctca, alleging numerous state law claims, unusual punishments clause of the eighth amend- children, including, as here, their own biological siblings. states from assuming legal custody of children altogether. as although she was inconsistent as to whom she told first. federal "duty to protect," since it can do so by statute rather code ann. § 15-78-120, and implications of state liability a number of additional parties, known and unknown, were originally after her placement in foster care and, in the alternative, had require weighing a number of competing policy consider- might want states to separate siblings, and if the facts alleged 24 doe v. south carolina dep't of social services and psychological harm inflicted by one foster child upon does, #1-10, 20 doe v. south carolina dep't of social services child's liberty, triggering the protections of the due process s.c. code ann. §§ 15-78-10 to 15-78-220 (1976), alleging riorated. according to the johnsons, she cannot be left alone the cost of pile-on liability. by imposing a federal constitu- hearing, and allegedly sexually abused her; jane's biological ann. § 15-78-20(a). a separate opinion concurring in the judgment. ference to a known danger, such a right was not clearly estab- placed in foster care approved by scdss. the state filed a negligence claim was not because § 15-78-60(25) of the held that the factual record before us there fell short of dem- assumption of custody but from the state's refusal to assume scdss asserts that it met its burden of establishing appli- ity for its actions," and therefore decided upon a system of under south carolina law, discretionary immunity is nor- are regrettably all too often in the eye-of-the-beholder. and a violation of a constitutional right, prior to turning to the second prong 19doe v. south carolina dep't of social services to require states to protect foster children from other foster before traxler, chief judge, wilkinson, officials to protect the child from harm by private parties. see tion. thompson asserts that she presented all known informa- to social services officials as suspected child abuse. after the of the boundaries of our function that i shall address in the carolina, for appellees. on brief: william h. davidson, exact opposite: for not protecting and for doing nothing. as sexual abuse was or probably would be continuing and was involuntarily removed keena white, a minor child, from the vate individuals. s.c. code ann. § 15-78-40. it then creates the form of involuntary removal and placement of the child in precise argument below, and the district court order does not balance they have struck. in fact, in enacting the sctca, the and care, the state has taken an affirmative act to restrain the lar as a tax collector, but sometimes that same social worker or the like -- is needed to trigger the affirmative duty [to pro- § 1983 (west 2003), against debby thompson ble public outcry over crime gone unaddressed. in the case of olina department of social services (scdss), see joubert v. committed by employees of state government entities. maj. father. the state failed to intervene and joshua was eventually and would not recognize such a claim of deliberate indiffer- behavior has necessitated therapeutic placements outside the unlawfulness must be apparent.'" robles v. prince george's due process claim. but neither did they, or any other prece- in `promot(ing) a way of life' through the instruction placing jane and kameron in their home without fully dis- tect" in the constitution. protect" suits are constantly making suspicion-laden inquiries 198, the deshaney court held that the defendants owed no from the hospital and placed in a foster home separate from against a risk of violence at his father's hands of which they the district court granted summary judgment on the § 1983 natives, it utilized accepted professional standards appropriate such a claim might have existed at the time of the placements. 730 (s.c. ct. app. 1990). "[t]he governmental entity must quent investigation, kameron claimed that his mother had maternal grandfather [had] sexually molested her," but individuals involved and to the society, stems from relations law. both legal realms have historically and justifi- ents; and having done so, it could no more place her "was not [harm] inflicted by the state." id. individuals will volunteer. without willing foster families, ability of such serious harms, betrays an inflated conception on june 18, 2001, joy bennett, the children's therapist, spending power, by creating rules for states and conditioning the federal claims, the propriety of remanding the state law entity, such as scdss, is subject to liability for torts "in the in the first place. although foster parents and biological par- stitutional rights of foster children in such circumstances prior elastic and at best imperfect protection against even ground- jurists can do so." (citation omitted)). f.3d 1169, 1174 (4th cir. 1995) (en banc), and the state's where they have acted in a particularly blameworthy manner. judgment as to the state law claim for gross negligence thompson and the gross negligence claims against scdss. the johnsons mally "contingent on proof that the [governmental entity], cases, it is just as likely, and probably more so, to deter many tion to the johnsons and that she received no reports of than the state's or that the south carolina courts and legisla- power to act, not as a guarantee of certain minimal levels of ment by placing her in foster care settings with kameron be safe. of course, there are undoubtedly cases in which we work to the advantage of children. although such heightened standard, the majority reassures us, social workers will not be of the state law claims were properly dismissed, the gross even carelessness, on the part of such officials that results in responsibility or duty is exercised in a grossly negligent man- j.a. 672. in january 2003, thompson presented a background 262, 386-87 (1932) (brandeis, j., dissenting). not only does this rule might, at least on the margins, induce a state into south carolina may recognize an exception to the grant of at the time of the alleged wrongdoing. see pearson, 129 s. ct. 39doe v. south carolina dep't of social services state actors and where the declaration can have no conceiv- rescue the child and quite possibly defend against two law- then fills in missing pieces with specific provisions address- failure to protect, maj. op. at 20, and in the majority's view that there is insulated from the democratic pulse, we learn of conse- "only if the state takes an individual into custody; if there is all the more puzzling the majority's intervention in this area. a constitutional nature, years after the fact, states may feel to sibling sexual or physical abuse. however, i fear that the 3doe v. south carolina dep't of social services a. substance addiction, or outright abandonment and neglect that the child had no substantive due process right to affirmative district court correctly noted that scdss should be substituted as the party gous to the case before us. in white, scdss officials care environment, in deliberate indifference to the child's fun- who handled jane's foster care placements and adoption. the tolerance of varied state approaches to our most stubborn vacate the grant of summary judgment on the state law claim legal rule established, ironically and tragically, will have the was that courts address the first prong, and determine whether there was sive as to whether the children had been sexually abused. be held liable under the clause for injuries that could have and they cannot leave her alone with other children for fear 40 doe v. south carolina dep't of social services state may be held liable under the due process clause for the states, via statutes or the common law of tort. it does not social services, scdss; debby department and its employees under § 1983, alleging that they tion from case to case' and to prevent constitutional stagnation." pearson workers with a foster parent the state knew or suspected to be 16 doe v. south carolina dep't of social services i agree with the affirmance of the grant of summary judg- decision, a state taking custody of a child from her biological fourteenth amendment to the united states constitution. clause, which "was to protect the people from the state, not received several reports of suspected physical abuse of a 110 (1932). for judges, things are different. because we are already "held, by analogy to estelle and youngberg, that the berg the affirmative duty arose not from knowledge of any kameron's bed, probably for comfort through sexual contact." ited waiver of governmental immunity from suit and contains 3 15doe v. south carolina dep't of social services the intrusion is none other than substantive due process, teenth amendment) if he was a convicted prisoner, sonably." id. thompson moved for summary judgment, claiming that she circuit in balancing the claims of families, children, and those make unnecessary a federal declaration of rights in cases, explained, the "host of policy choices" implicated in cases stated that he posed a threat to himself and to jane, and she 4 human res., 902 f.2d 474, 476 (6th cir. 1990) (holding that since deshaney, additional circuits have also recognized "the people of wisconsin may well prefer a system regarding whether and when to remove children from foster neither "total immunity" nor "unqualified liability." s.c. code parental rights of the biological parents, in order to pursue a right of the child to inherit from the parent."). thus, unlike the and while we disagree with the district court's interpretation estelle and youngberg. those cases use words such as "incar- ingly, we affirm the grant of summary judgment on this claim quences, if at all, by fortuity. although logic suggests that the clause and imposing "some responsibility for [the child's] child in foster care may prevail in a section 1983 action affirmatively removed the child from the home of his natural employees relied upon professional standards when making south carolina's own legal scheme. moreover, the basis for ful,' it does mean that `in the light of pre-existing law the and encourages them to leave children "defenseless in the face named as defendants in both lawsuits. the only remaining claims on sideration of the applicability of § 15-78-60(25) or, if deemed be heard. we should not further constitutionalize this placement decisions regarding jane. whether a § 1983 action could be maintained against a social never hits the judicial radar in quite the same manner as process that, however well-intentioned, will visit real misfor- on november 26, 2001, jane was placed in foster care with and temporary custody and, ultimately, terminated the paren- affirmed in part, a list of exceptions to the waiver of immunity, including an specifically, under § 15-78-60(5), "[t]he governmental entity failing to protect children in foster homes from mistreatment we never learn, of course, precisely when the threat of lia- avoids taking custody of a child, it cannot be held legally tions omitted). pearson's cautionary signals were sent for 815-16, and (2) "the right at issue was `clearly established' at safety and general well-being." deshaney, 489 u.s. at 200. began to exhibit acting-out behaviors of a sexual nature, have no substantive due process right to the disclosure of a nonetheless provides an additional, federal remedy for torts alleged shortcomings and make it the scapegoat for a terribly all in all, the scheme is quite a comprehensive one, making exception to the deshaney rule," even in the limited context sary and in the best interests of said minor children." j.a. 316. sctca); jensen v. anderson county dep't of soc. servs., ter parents need some freedom in deciding how to raise their sions in this case, we disagree that they foreclose our recogni- and holidays. on september 9, 2002, kameron was placed in protect."); pinder, 54 f.3d at 1175 ("some sort of confine- 31doe v. south carolina dep't of social services create a perverse set of incentives that will deter states and recover under state law--and perhaps especially if jane can- opinion. chief judge traxler wrote the majority opinion, in history. however, they assert that thompson failed to disclose ability to make decisions about his own welfare, and must in federal court, one in state court. and as noted, this dual in promoting an abused child's welfare and best interest. we to the child. we agreed "that deshaney [was] applicable to to have her day in state court will both respect her individual question in this case--who may be held liable for physical 274 f.3d at 841 ("[t]he supreme court in deshaney made it such intricate determinations. as the supreme court code ann. § 15-78-70(a); maj. op. at 24. yet the majority knowing that kameron was sexually abusive toward jane. i. home, and further care and treatment is believed to be indi- deshaney, 489 u.s. at 196)). and, because "the due process or the performance or failure to perform any act or service court's decision to grant summary judgment to the defendants removed from her home by state social workers and know- where congress has feared to tread. additionally, because the her there. jane's biological mother neglected her, as the south there is no such entitlement. here, in contrast, the the sctca); faile v. s.c. dep't of juvenile justice, 350 s.c. chances in life depend on being rescued from the ravages of on his own behalf. physically and sexually aggressive, violent towards the john- as the district court observed, the presentation of the claims below has therapist that he had sexually abused jane prior to scdss's by placing law on the side of pulling them apart from their to determine whether that right was clearly established at the time of the all claims, and this appeal followed. we review the district ject foster parents to an onslaught of prying questions about "failure to protect an individual against private violence sim- ted)). their care. indeed, the [foster parents] were licensed by the the dss defendants knew or suspected that the [foster par- a determination of the appropriateness of an adoptive place- that kameron had sexually abused her while she was with the need to be more on guard than ever against section 1983 suits, substantive due process rights under the fourteenth amend- op. at 20 (citations and internal quotations omitted). there- (which slips into "should have known") are by their nature a. foster home"); cf. walton v. alexander, 44 f.3d 1297, 1303- pa, camden, south carolina, for appellants. andrew linde- our precedents do not foreclose a foster child's claim that her dren to scdss's legal custody in july 2000. they were age states from taking legal custody of children in the first and neglect, it likely will hinder them in doing so. it will 382 s.c. 535 (2009) (discussing proper burden of proof under custody of his father. see id. at 201 n.9 (declining to decide continue to suffer, with no accompanying risk of liability, or kameron and jane, the two ultimately should continue to be life of the foster child, and fulfill the same socializ- for a later section 1983 action, states may go overboard, of liability which would place upon the state and its certain exceptions to the general rule, providing immunity in scdss is entitled to discretionary immunity from liability for children who are badly mistreated by their biological families 32 doe v. south carolina dep't of social services had a corresponding duty to refrain from placing her in a at the time of the district court decision, the supreme court directive maj. op. at 19-20. leaving aside the fact that managing sib- against the state officials because "the harms [he] suffered liable for "unknown harm or dangers" or every time a child 25doe v. south carolina dep't of social services circuit ordinarily need not look beyond the decisions of the foster families from providing helpless children with the carolina dep't of highways & pub. transp., 395 s.e.2d 728, child from her home, thereby taking the child into its custody well, barring certain government actions regardless of the siblings. children removed from their biological homes have cial ventures into policy, which, with all respect, is what we within the custody and control of the state social services custody with foster parents it knows are incompetent or dan- for the foregoing reasons, we affirm the district court's ing. what exactly are a state's affirmative obligations? what parents, against the parents' wishes, is subject to a second v. granville, 530 u.s. 57, 65 (2000) (plurality opinion) (inter- tool for the imposition of general tort liability. if the matter clause, not [the state's] failure to act to protect his liberty with multiple prospects for substantive due process suits, the dren . . . to [scdss] with all rights of guardianship, the foster home. of action now counsel the rescuer to back off. transferred to a maternal aunt, but she relinquished the chil- separate but equally devastating effects: first, it will discour- to say the constitution of the united states allows us to s.c. code ann. § 15-78-60(5). the immunity, however, does sad set of circumstances, it is worth remembering that the the majority's approach is likely to have a second and sim- information. if a law is indeed having a negative effect, legis- unlike in these situations, the state had returned joshua to the oversight may ferret out abuse by foster parents in a few fore, in theory, states should fear liability only in those cases the south carolina supreme court has held that "[s]ection stitution entitles a child to governmental protection defendant for the individual defendants. see s.c. code ann. § 15-78- that kameron was sexually abusing jane. at a minimum, she amendment and the due process clause. the affir- here, jane was involuntarily removed from the custody of sure, some level of supervision is necessary. but to ensure children who are abused by their biological families will be father was incarcerated; and moreover, jane's brother alleg- difficulties? these questions and others have no easy or obvi- since the disclosure, jane's behavior has significantly dete- "deliberate indifference" to foster care placements. maj. op. "[c]onsistent with [its custodial] distinction," as milburn "em- create a risk of bad decisionmaking" and "depart[ ] from the venient, and invasive visits to foster homes. states may sub- qualified immunity from § 1983 claims "protects govern- claims to justice and avoid the heartache that creation of this similar restraint of personal liberty -- which is the `depriva- immunity. we affirm in part, vacate in part, and remand. and expert opinion, thus enabling it to more accurately antici- do not have a roving warrant to adopt whatever policies they to make matters worse, the majority's intrusion is her right to personal safety and security. assuming legal custody of battered children and of excess than merely an inept rescuer, just as the roman state court of appeals, or the highest court of the state." (internal inflicted upon the child at the hands of his family members sodic nature of the majority's federal judicial foray. the 3. been averted had it chosen to provide them." deshaney, 489 state agencies may be liable for torts to the same extent as pri- its expressions of intent to help him, but from the placed together "if this c[ould] be done safely" for jane. j.a. neither the majority nor the parties point to any instance a constitutional question, it is unfair to subject [government develop in jane's favor or because south carolina may not constitutionality . . . unless such adjudication is unavoidable." brothers and sisters. nouncements in saucier v. katz, 533 u.s. 194 (2001), to id. at 196. thus, it "serves `as a limitation on the state's port jane's claim that thompson's decision to reunite jane and kameron thompson placed kameron with jane in foster care, knowing the parents' wishes, already risked one form of litigation: a ply does not constitute a violation of [it]," deshaney v. win- moved to their first state-approved foster home. c. still having `sex' until they moved in with [the johnsons]." a claim for damages under § 1983. because we believe this (1989); maj. op. at 12-13. a "duty to protect" arises, if at all, disclosure" about a child under consideration and certainly no scdss, and transferred to state-approved foster care by grant of summary judgment as to all claims asserted under ter of government for the entire country." collins v. city of for that matter, any circuit court of appeals granting prospec- in this case, jane may in fact be entitled to recovery under when the south carolina legislature has not spoken, the with jane prior to scdss's taking custody of them, but jane known.'" pearson v. callahan, 129 s. ct. 808, 815 (2009) at 14. this standard seems a rough approximation of the while state legislatures are the traditional fora for deciding under what circumstances a child who has been involuntarily 27doe v. south carolina dep't of social services against physical abuse by his parents or by other pri- county of sacramento v. lewis, 523 u.s. 833, 840 (1998) v. callahan, 129 s. ct. 808, 816 (2009). in pearson, however, the dren into emergency protective custody. during the subse- show that in weighing the competing considerations and alter- deshaney, 489 u.s. at 200). by piling on this additional south carolina's statute begins with a baseline rule that vacated in part, removed from the johnsons' home. among other things, of discretionary immunity under § 15-78-60(5). s.c. code is intended to "balance[ ] two important interests -- the need here, jane claims that thompson violated her substantive claims that the summary contained all of the information placed a child in the care of foster families. maj. op. at 13-14. 1 employees in the placement and adoption process. this action ship between parent and child . . . divests the parent and the "duty to protect," we will be pushed further into the uncom- dren "in a grossly negligent manner." id. this is not a "positive liberties" case, like factions of foster parenting cannot be enhanced. and by mak- south carolina courts have stepped up interstitially. see, e.g., at 476); see id. at 738 ("'[h]arm suffered by [the] child at the child, can give rise to liability under § 1983); norfleet v. in weller v. department of social services, 901 f.2d 387 lations of their substantive due process rights under the faced with alternatives, actually weighed competing consider- tionship with jane. state removed a child from the custody of her par- is not liable for a loss resulting from . . . the exercise of dis- an initial foster placement was good or bad is to continually the issue before us today, however, is whether a child who approve medical treatment or educational plans, to secure states are better suited than the federal government to make and remanded reported that kameron had become increasingly angry and removal of them from the birth home. kameron also claimed erty interests." id. (internal quotation marks omitted); see guided. but even if it were not--even if it were a great idea intensely domestic area of the law. every tort committed in we have previously recognized, "[i]f section 1983 liability however, expressly declined to decide the question because, kameron "d[id] not believe her allegations." j.a. 536. the substantive due process. foster parents, who are rarely state 70(c). appeal from the united states district court plainly placed on notice of a danger and chose to ignore the they would never adopt her." j.a. 872. thompson denies that gress can hold hearings and consult a wide range of public entity or employee." id. f.2d 965, 968 (4th cir. 1991) ("since qualified immunity is children in deshaney, milburn and weller, jane was clearly attaches too readily to removal and placement decisions, the diately transferred to the custody of his natural grandmother no corresponding duty or responsibility on the part of the state potentially faces steep liability. before this decision, a state tion of liberty' triggering the protections of the due process v. is not liable for a loss resulting from . . . responsibility or duty on august 9, 1999, scdss received a report that four- particularity." edwards v. city of goldsboro, 178 f.3d 231, south carolina department of pearson, 129 s. ct. at 818; see hunsberger v. wood, 570 f.3d gross negligence on the part of scdss and its employees. ("whatever the clearly established law on this question, matter of constitutional import. see paul v. davis, 424 u.s. distraction, and liability when they perform their duties rea- content/library/manuals/index/aspx. its manual on "foster conduct does not violate clearly established statutory or con- white's claim simply falls short on the facts. the summary 38 doe v. south carolina dep't of social services ating this new "duty to protect," the majority commandeers a abuse assessments and medical examinations were inconclu- with special needs and health concerns, appropriate levels of such responsibility, in turn, includes a duty not to make a fos- ation. have put thompson on fair notice that her actions violated nebago county dep't of soc. servs., 489 u.s. 189, 197 cox, were victims of sexual abuse. the report alleged that under the south carolina tort claims act ("sctca"), see court these consequences, or even to flirt with the unpredict- her." j.a. 439. she also noted that jane "show[ed] some signs become increasingly aggressive and hostile toward jane. kameron since entering care" and that "[p]art of his therapy cise of power, has custody over an individual involuntarily or and from what must the state protect a child? from which of tutionally protected [liberty] interests in conditions of reason- edly sexually abused her in their biological home even before the gross negligence claim. however, it does appear that lished in this circuit at the time thompson made her the time of [the] alleged misconduct," id. at 816. however, it thing to render him any more vulnerable to them." id. supreme court, this court of appeals, and the highest court of section 1983 suit by the biological parents for a violation of appropriate if reasonable officers could disagree on the rele- acted to deny immunity in cases where agency employees are more specifically, the new substantive due process right clause of the fourteenth amendment." judgment record contains no evidence to indicate that any of against his will does a `special relationship' exist between the (quoting harlow v. fitzgerald, 457 u.s. 800, 818 (1982)). it the plaintiffs' final claim is that the district court erred in strued in favor of the governmental defendant. see faile v. the court reasoned, was "necessary to support the constitution's `elabora- marks omitted)). negligen[ce]." s.c. code ann. § 15-78-60(25). the sctca the state in which the case arose." edwards, 178 f.3d at 251 care. see id. discretionary immunity where state officials exercise a duty to 5 thus, in deciding whether to assume custody of a child, unlike in deshaney, there would not be a mere "failure to act" tional system of liability on top of a state system of liability, tation to have been unreasonable. "[i]f judges . . . disagree on role traditionally--and for good reason--entrusted to state son on notice that she was violating any such right. accord- abused and neglected children, however, public outrage is 304 s.c. 195 (1991) (discussing whether scdss's decision statutory scheme, which covers a breadth of situations in the qualified immunity analysis should be addressed first in 28 doe v. south carolina dep't of social services court to further remand those claims back to state court. maj. however, in white, we declined to dispose of the question of deshaney, 489 u.s. at 191-93. dents provide valuable functions, most foster parents had claimed to have had an inappropriate sexual relationship cumstances to grant qualified immunity to state actors "on the ground that opinion south carolina general assembly expressly "recognize[d] the because such decisions were dictated by their merits, but able effect on the outcome of the case or controversy. among wilkinson, circuit judge, concurring in the judgment: a child abuser: 22 doe v. south carolina dep't of social services rely on the state to take care of his needs."); yvonne l. v. new placement, care and supervision, including the authority to in this case, and it is wrong for a federal court to rush in as the majority acknowledges, the south carolina legislature which would have led her to believe that jane and kameron world, it played no part in their creation, nor did it do any- in this case, scdss takes the position that no protection jane, and represents that she never observed any behavior ally abusing jane. jane's mother denied abuse but reported at the hands of their foster parents." id.; see, e.g., taylor v. heights, 503 u.s. 115, 125 (1992) (citation omitted). process. the project of creating such a duty should be left to child. however, the summary represented that "[t]here ha[d] "does not require governmental actors to affirmatively protect 1992) ("[c]hildren in the custody of a state ha[ve] a constitu- child of all legal rights, powers, privileges, immunities, any comparison of the foster home environment to that of undone--not by us, bound as we are by precedent, and not by conduct was unconstitutional." id. at 813. new york city dep't. of soc. servs., 649 f.2d 134, 145 (2d nized in estelle for prisoners and in youngberg for the invol- "the transfer of custody [from one family member to another] responsible decisionmaking in this uncharted area are scarce foster home operated by its agents"). fairness of the procedures used to implement them." (internal knew or should have known." deshaney, 489 u.s. at 193. rower concept than procedural; it is an absolute check on cer- the majority attempts to lull us into a false sense of secur- simple enough: when the state by the affirmative clause does not require the state to provide its citizens with 18 doe v. south carolina dep't of social services 21doe v. south carolina dep't of social services 34 doe v. south carolina dep't of social services layne, 526 u.s. 603 (1999) (internal quotation marks omit- a system . . . . but they should not have it thrust upon united states court of appeals youngberg v. romeo, 457 u.s. 307, 324 (1982) (employing johnsons' biological son. jane remained with the johnsons neglect and granted scdss temporary custody of the chil- they "fully underst[oo]d the therapy issues." j.a. 673. they 2 summary presented to them by thompson related some of this in this case turn out to be true, this case might be one of them. claim where state officials have taken the affirmative action tive of clearly established law, if a reasonable jurist would not the supreme court's decisions in estelle v. gamble, 429 u.s. taken together, [estelle and youngberg] stand only available to her about the children, including the allegations of deshaney and our precedents, we do not view the interpre- u.s. 635, 640 (1987)). "although notice does not require that the older, wiser judicial counsel not to pass on questions of and care for their children, and to rear their children as they motes the development of constitutional precedent and is ing him in a known, dangerous foster care environment, in that they had been sexually abused. it stated that the children mative duty to protect arises not from the state's course of public agencies would invariably become one of their substantive due process rights to "retain custody over have here. grossly negligent. s.c. code ann. § 15-78-60(25). 2. tutional theory but a real-life loss for those most in need of deficiency in south carolina law or practice has led it to inter- place, and second, it will discourage potential foster parents life, liberty, or property against intrusion by private third par- their private lives. further, lest they later face accusations of exact opposite effect of that which is intended. instead of was removed to the district court and consolidated with the on the state claim, with explicit permission for the district (the due process clause "cover[s] a substantive sphere as belong to the federal government, via the constitution. in cre- schedule, and interactions with peers--choices that are nor- which senior judge hamilton joined. judge wilkinson wrote harker heights, 503 u.s. 115, 129 (1992). recommended that, in order to maintain the bond between 201). also, as in milburn, any actual physical harm that was 33doe v. south carolina dep't of social services county, 302 f.3d 262, 270 (4th cir. 2002) (quoting wilson v. make stuff up. it is always tempting, i recognize, to respond fortable position of policy maker and will have to, bluntly, federal courts are not exempt. when the many cautionary ing, the mother voluntarily relinquished her parental rights, defense." niver, 395 s.e.2d at 730. 693, 701 (1976). either case the state would be a doer of harm rather no reports of any inappropriate behavior or contact between allow recovery as a matter of law. but even if jane cannot thompson was entitled to qualified immunity from suit. fourth such incident, the officials intervened and removed the human needs -- e.g., food, clothing, shelter, medical she made statements that [their] mother, stepfather, and f.3d 798, 808 (3d cir. 2000) (en banc) ("[w]hen [a] state child's] safety." id. at 392 (quoting deshaney, 489 u.s. at undertaken pursuant to pearson v. callahan, 129 s.ct. 808 thompson; elizabeth g. including overly affectionate behavior towards boys and men, kameron blamed jane for their being in foster care "because its reasons for modifying saucier, the supreme court noted the right of a foster child to bring a substantive due process "discretionary"); varn v. s.c. dep't of highways & public ture would gratefully welcome this court's recalibration of the the district court dismissed all claims, holding that the deci- work. harlow v. fitzgerald, 457 u.s. 800, 814 (1982). be held liable for torts. not surprisingly, plaintiffs brought general well-being. the rationale for this principle is clause, the majority has triggered a myriad of issues that this that decision, however, is the prerogative of the state, not this how right whatever wrongs were perpetrated against her. i gation is enough to give officials pause, because even when be demonstrated to subject the social worker to liability under 29doe v. south carolina dep't of social services of the state of maryland, [but] rather while he was in the cus- known, dangerous environment in deliberate indifference to liberty in a manner "analogous to that recognized in estelle dep't of highways & pub. transp., 413 s.e.2d 31, 35 (s.c. code ann. § 15-78-10 et seq. it exhaustively delineates the expanding the concept of custody in this fashion, the majority sexual behavior had occurred between the children, leading a. traxler, chief judge: afield from the context of physical confinement envisioned by by us. congress is the appropriate institution to create any entered into a special relationship with that child which due process claim where a child was involuntarily removed incur liability if the harm occurs."); meador v. cabinet for occurred not while he was in the state's custody, but while he for the reasons discussed above, our precedents in milburn, 35doe v. south carolina dep't of social services to a prisoner's serious illness or injury states a cause of action jane's substantive due process rights. on the contrary, given due process of law . . . by failing to intervene to protect him v. act of restraining the individual's freedom to act on his own ing custody to the case at bar, the majority has drifted far from taking custody of abused children and encouraged to that they know or suspect to be dangerous to the children they tine and emergency medical care as [scdss] deems neces- erately indifferent to the welfare of the child," liability may be brutal and life-scarring state. by slamming social workers allegedly committed by employees of state agencies. see s.c. system of deterrence may work to the detriment of those very to governmental aid, even where such aid may be necessary which is in the discretion or judgment of the governmental the state when it took [a child] from his caregiver and placed and in an effort to fulfill their new "duty to protect," states was incarcerated in another state. states from taking custody of children. whatever scdss code ann. § 20-7-1576 ("an order terminating the relation- white ex rel. white v. chambliss, 112 f.3d 731, 736 (4th cir. granting summary judgment to scdss on their state law the majority concludes that a state's removal of a child from actors, see milburn v. anne arundel county dep't of soc. patterson, director; kim s. 436. according to the psychiatric records, kameron had a his- ner." id. (emphasis added). tional right to be reasonably safe from harm" and "if the per- i. we would not want to skew legal incentives toward separating effectively scuttled one of the primary benefits of federalism: individual and the state."). 10 doe v. south carolina dep't of social services joseph f. anderson, jr., district judge. cials for abuse or neglect, placed in the legal custody of the acute. in the case of law enforcement, any deterrent effect cated. state's custodial relationship continues even after the state has from abuse after she was placed with the foster family right to personal safety and security analogous to that recog- faced with the wrenching allegations of this case, it is substantive due process right to personal safety and security least [in certain cases], it is natural that the foster had no substantive due process right to affirmative state pro- limitation which it has imposed on his freedom to act much of the history and reassured them that no inappropriate the majority defeat the benefit of variation but it also incurs into its custody and holds him there against his will, touch-bad touch rules and appropriate social interactions." where congress has laid down a rule to govern the conduct year-old jane doe and her eight-year-old brother, kameron against private violence." id. at 737 (citing milburn, 871 f.2d sions made by the scdss employees were discretionary in cials "were `deliberately indifferent' to reports of abuse" in quent acts of abuse." taylor, 818 f.2d at 797. negligence, and approved foster home, where she later died from severe blows affirmed in part, vacated in part, and remanded by published agree also with the vacatur of summary judgment and remand actors in foster homes. maj. op. at 19-20. such a holding is which unlike its procedural cousin, limits the range of options closing jane's history of sexual abuse and sexual aggressive- officials] to money damages for picking the losing side of the expressed their understanding that the "children [we]re in the mental health superintendants. while wardens and superinten- from becoming foster parents. both outcomes disadvantage ii. substantive limits on state action set by the eighth op. at 26. ing it less appealing to become a foster parent, fewer this is all contrary to the basic purpose of the due process a dangerous, foster care environment, i.e., a "restraint of per- that, as it pertains to this principle, milburn was not limited alleged misconduct. see saucier v. katz, 533 u.s. 194, 201 (2001). this, 274 f.3d at 836 ("[t]he clause `confer[s] no affirmative right 37doe v. south carolina dep't of social services and because "children placed in foster care ha[ve] no federal con- insurance. s.c. code ann. § 15-78-140, -150, -160. 1. white, 112 f.3d at 737 (quoting anderson v. creighton, 483 and then to his natural mother. at no point was the child in complaint in family court alleging abuse, sought emergency u.s. 816, 844 (1977) (citations omitted). to be effective, fos- were having sexual or other inappropriate contact at that time. to override that statutory result by allowing her to recover ment to thompson on all federal claims.* maj. op. at 26. i potential problems and hardships each governmental entity lation accordingly." see packer corp. v. utah, 285 u.s. 105, system because of abuse, neglect, etc.," and they stated that according to jane, thompson "told her not to tell anyone or whether a substantive due process claim could have been haps, as happened here initially, two separate lawsuits--one assistance they need. how do limitations periods and tolling principles apply when affecting children, biological families, foster families, and bia, south carolina, for appellees. such as this one "must be made by locally elected representa- vate persons not acting under the direction of the cumstances. none of these tools did this court have at its dis- places a child in state-regulated foster care, the state has claim for gross negligence on the part of the scdss officials c[ould] deal with his emotions and be safely reunited with care," for example, is 180 pages of detailed guidelines at 818 (confirming that the saucier "two-step procedure pro- state court is the place where claims such as these should gerous." (citation omitted)); see also nicini v. morra, 212 ann. § 15-78-60(25) provides that "[t]he governmental entity foster parent under such a regime? the increased state intru- knew about the harm and stood by to watch. deshaney v. tion upon liability or an exception to the waiver of immunity --we should not indulge in its creation. federal courts simply exercise of its power so restrains an individual's lib- abuse, alternatively naming her birth mother, kameron, her the johnsons subsequently filed suit on their own behalf, relying upon a trilogy of cases discussed below, thomp- latures "may recognize degrees of evil and adapt [their] legis- the district court held that prospective adoptive parents against state officials based on incidental injuries or infre- ment of [jane] and kameron together c[ould] be made." j.a. to begin, by federalizing the "duty to protect," the majority have been aware of the dangers that joshua faced in the free befall young children at the hands of those who should love to hold public officials accountable when they exercise power federal cause of action is not merely a misadventure in consti- being analogized by courts to those of prison wardens and ness. the johnsons acknowledge that the background vene with a cause of action all its own. in fact, the majority told her therapist "that kameron was lying and that they were was removed to the district court and consolidated with the federal court ernment itself may not deprive the individual.'" (quoting iv. 1993) ("[a] special custodial relationship . . . was created by the constitution imposes upon it a corresponding behalf -- through incarceration, institutionalization, or other affirmatively place a child in a known dangerous environ- this case illustrates the perils of a rule that discourages in thompson's position that her actions violated the four- flesch; healthy minds, llc; ous answers, but by "extend[ing] substantive due process to (4th cir. 1990), we held that a foster child could not maintain in determining whether there has been a violation of a con- there being no affirmative exercise of the state's power to to ensure that the state protected them from each other." federal action.1 dss, and white points to no evidence indicating that the [fos- tions such as the present one. they may create such dangers were present long before scdss came on the scene, transp., 311 s.c. 349 (s.c. app. 1993) (per curiam) (discuss- claims. scdss also moved for summary judgment, claiming an inflexible requirement," and that courts may choose in appropriate cir- claims for gross negligence, assault and battery, intentional quotation marks omitted)). fine individuals from ever agreeing to become foster parents of the right must be sufficiently clear that a reasonable official had been removed from the birth home for allegations of sex- form of litigation: a section 1983 suit by the child herself, per- the emotional attachments that derive from the inti- life's inevitable bumps and a family's inevitable strains and agents,'" (quoting weller, 901 f.2d at 392)). we further noted constitution imposes upon the state affirmative duties of care discovery of a constitutional "duty to protect" is badly mis- although noting that "in certain limited circumstances the trigger the "duty to protect," insofar as it deprives the child of father, upon allegations of abuse, where the child was imme- the south carolina statute--an issue which appropriately may means no protection and that fourth circuit law allows established at the time of the claimed violation, courts in this a legislature, since the majority has rooted its "duty to pro- 42 doe v. south carolina dep't of social services bility produces inaction. the failure of agencies to take action the precedents that did exist in our circuit on the issue of affir- and security. in k.h. ex rel. murphy v. morgan, 914 f.2d 846 task. "[t]he court has always been reluctant to expand the to protect," for example, demands a delicate balancing of the tect]. this court has consistently read deshaney to require a this country by some public actor was never meant to be a claim back to the state court for its determination.5 we turn briefly now to the johnsons' § 1983 claim that the johnsons for prospective adoption. approximately four because it is unnecessary to our disposition of this case, we decline to against a state social worker for violations of her fundamental psychiatric records also included a history of sexual experi- 04 (5th cir. 1995) (en banc) ("since deshaney was decided engaged in inappropriate sexual encounters with adults and agreed and held that scdss was entitled to discretionary "safety and general well-being." maj. op. at 19 (quoting the fourteenth amendment to hold that disabled persons who intervention into new family units. and in the future, when of involuntarily removing the child from his home and plac- ment officials `from liability for civil damages insofar as their than it could deliberately and without justification concept of substantive due process because guideposts for established law, then it necessarily follows that the reasonable committed by an employee of a governmental entity." s.c. and such an analogy is a poor foundation for an expansion of either to constrain or to guide our task. the majority creates dren. no findings were made regarding the sexual abuse alle- tect." patten v. nichols, 274 f.3d 829, 841 (4th cir. 2001). we affirm the grant of summary judgment, however, under majority's opinion will have the unfortunate result of leaving exist even in the absence of blood relationship. at 23doe v. south carolina dep't of social services her maternal grandfather. the biological father of the children strated that they have standing to bring the action on their behalf. to the and it is hard to imagine what tools federal courts would use rule constitutes an unnecessary expansion of substantive due decide whether the record contains sufficient, admissible evidence to sup- an action in family court seeking to legally terminate the tection from violence inflicted at the hands of kameron, a pri- however, the south carolina family court found physical care, both before and after his placement with the johnsons. due process right to reasonable safety and security when arkansas dep't of human servs., 989 f.2d 289, 293 (8th cir. (per curiam). it is unclear whether the johnsons made this from her home, no one contends that scdss should have left 493. on august 22, 2001, bennett advised thompson that to in a manner deliberately indifferent to the safety of the without any feedback mechanism in place to help us assess stitutional rights of which a reasonable person would have prisons and mental health institutions for substantive due pro- as well. sive set of policies that touch every aspect of a child's care, may face being subjected to unlimited and unqualified liabil- published to answer them. at the end of the day, there is no reason to to proceed with the adoption of kameron, and he was 2 doe v. south carolina dep't of social services state agencies charged with protecting their welfare. the while risking a variety of untoward effects. lic authority, and from that general purpose the life-tenured johnson; gregory johnson; so those who must follow the scarcely formed federal rule rence coupled with a double wringer of litigation; states a state actor." id. at 201. furthermore, "[w]hile the state may negligent training, false imprisonment, and premises liability. and as parents and guardians of jane, against thompson. to the head. the mother brought a § 1983 action alleging that stitutional right, we must identify the right "at a high level of ing, for example, the statute of limitations, s.c. code ann. plaintiffs-appellants, confinement, or custody of any student, patient, prisoner, stitutional right to state protection" and "the state ha[s] no the extent that maryland had no duty to provide [the child] 129 s.ct. 2308, 2323 (2009). u.s. at 196-97. tune upon abused and neglected children. the creation of this by diverting government officials from their duties, litigation the second prong of the qualified immunity inquiry. although that defendants were plainly placed on notice of a danger and 546, 552 (4th cir. 2009).2 11doe v. south carolina dep't of social services same manner and to the same extent as a private individual is upon the governmental entity asserting it as an affirmative been deliberately indifferent in their placement of keena in ing whether a court can award costs of litigation under the cial's deliberate indifference to her right to safety); doe v. asserts that thompson knew or should have known that the been sexually inappropriate or abusive toward her. kameron jane doe, by and through her supreme court held that "the saucier procedure should not be regarded as reasonable for jurists and officials to have believed that we court complaint and all but the state law claim for gross negligence in the sexually abused him, and denied knowledge of anyone sexu- irresponsibly and the need to shield officials from harassment, has misapprehended the nature of foster parents' services, all and open-ended. the doctrine of judicial self-restraint deshaney v. winnebago county dep't of soc. servs., 489 we rejected the plaintiff's claim that there was a general intrude upon foster families to the detriment of that unit, not unknown harm or dangers. nor "does [it] mean that every no authority from the supreme court or this circuit that would (holding that a child involuntarily placed in a foster home sexually molested by kameron while in foster care, but they have not cer- often absent, since abuse occurring to the defenseless behind tody of his foster parents, who were not state actors." id. the direction of inaction surely carries costs of its own. the especially valuable with respect to questions that do not fre- liability will produce many instances of excess caution in procedures used to implement them." (internal quotation izens from acceptance of public office," or in this case social stantiated. they assert that had they known of the incest, and by basing its newfound duty in the elusive due process for gross negligence and remand for the district court's con- and at the same time fails to provide for his basic quently arise in cases in which a qualified immunity defense for prisoners and in youngberg for the involuntarily commit- on the part of a state official to remove a child from a family decided: march 5, 2010 in foster care rose to the level of deliberate indifference. as the deshaney court noted, several circuit courts had 7doe v. south carolina dep't of social services id. at 848-49 (citations omitted); see hutchinson ex rel. baker ents do not share identical rights, they share similar purposes. good reason, namely to deflect advisory and ill-advised judi- relative merits of enhanced state liability versus the relative protection by the state. first, the state "by the affirmative this case involves the important issue of whether and 333, 342 (4th cir. 1994) (citations omitted). now, after this ing statutes addressing whether and when to provide recourse tive of clearly established law."); swanson v. powers, 937 id. at 199-200 (citations and footnote omitted); see patten, a deeply loving and interdependent relationship § 15-78-110, appropriate remedies and damages caps, s.c. the scdss officials had a duty to protect keena from abuse there might be instances where a reasonable jurist, but not a court will eventually have to address, with virtually nothing the `very action in question has previously been held unlaw- member, but rather the exercise of affirmative state action in ual abuse but that jane had been inconsistent in her reports of k.h., 914 f.2d at 849 (noting our decision in milburn to be component that provides heightened protection against gov- to contentions that tug at the heartstrings, but i do not think immunity under s.c. code ann. § 15-78-60(5), because its foster parents by painting foster homes in an unfortunate light. that gratuitous proclamations of constitutional rights "may extent the johnsons pursue these claims on appeal, we summarily affirm pate a proposed rule's potential consequences and to develop defendants-appellees, "exacts heavy costs in terms of efficiency and expenditure of appeal, however, are the § 1983 substantive due process claims against dent in the supreme court or this court, clearly establish that light of the circumstances in the particular case at hand." ence in the foster care placement, and the district court "rejec- in milburn v. anne arundel county department of social ling relationships is among the foremost of parental duties, able care and safety"), joshua and his mother sued the "in determining whether a [constitutional] right was clearly appealing in rhetoric and harmful in practice. the majority's a substantive due process claim against state agents who had kameron's therapist, titsa m. flesch, and have sibling visits separately or explicitly address the question of whether maxims of restraint are toppled like dominos, the chances of and protection with respect to particular individuals," id. at also included as plaintiffs ten unnamed and unidentified children allegedly courts, where federal judges may fashion over time their sepa- ingly placed in a dangerous foster care environment may state 15-78-60(25) provides an exception to [discretionary] immu- we are forced to further define the contours of the majority's summary on kameron and jane to the johnsons. thompson state workers are ultimately absolved, litigation takes a toll. her biological home is an exercise of custody sufficient to consistently that only when the state, by its affirmative exer- care] if they . . . exhibited deliberate indifference to a known did not make the state `the permanent guarantor' of [the iii. be litigated in state court. see maj. op. at 26. and perhaps deliberate indifference to the child's right to reasonable safety bill and pam hamerick, where she could be seen by is violated by a foster care placement made in deliberate indif- *specifically, i concur in the majority's view that, at the very least, sanctuary. weeks after the placement, however, the johnsons chose not bliss, 112 f.3d 731 (4th cir. 1997), and the one most analo- on february 28, 2003, jane and kameron were placed with city of hartsville v. s.c. mun. ins. & risk financing fund, 5doe v. south carolina dep't of social services trespasses on the most traditional of state roles. the core legal with protective services" in the first instance and held that plaintiffs brought additional state law claims against scdss nature, entitling scdss to discretionary immunity under words such as "incidental," "infrequent," and even "unknown" ment, including, for example, with a known child predator. general rule of constitutional avoidance and run[ ] counter to for the children. on july 5, 2001, kameron was discharged cretion or judgment by the governmental entity or employee of the federal judicial role. it is the majority's mistaken view as well as anger and aggressiveness when she was frustrated. smith v. org. of foster families for equality & reform, 431 489 u.s. at 200. closed doors is typically invisible to public view. officer likewise would not have viewed that conduct as viola- that we face today. j.a. 1004. while we agree with thomp- instances where an agency employee exercises discretion. clearly established at the time she made her placement deci- j.a. 440. although the exact history of sexual abuse was we now hold that when a state involuntarily removes a right to personal safety and security. this does not mean that children with section 1983 landmines. was in the custody of his natural father, who was in no sense mexico dep't of human servs., 959 f.2d 883, 893 (10th cir. as a general rule, "the due process clause works only as taking custody of a child from her biological parents, against not to ensure that the state protected them from each other." ledbetter, 818 f.2d 791, 797 (11th cir. 1987) (en banc) erty that it renders him unable to care for himself, accordingly, the state officials responsible for those decisions but kameron's threats to jane necessitated postponement of the due process clause." (citation omitted)). thus, "[i]n the is exercised in a grossly negligent manner, the exception to the normal rule of immunity applies." jackson v. south caro- help. not maximize the disruption of what remains of their family regarding whether to investigate a report of child abuse was nated. the family court granted "[c]ustody of the minor chil- must it do to seek out information regarding a child's circum- ity with its ruling that the state must have acted with "deliber- child's history of sexual abuse and that thompson was enti- restrain the child's liberty in the first instance, there could be such duty to joshua. this was because in estelle and young- merits of permitting social workers some judgmental latitude ations. deciding whether and to what extent to impose a "duty hamericks and at other foster homes that she could not recall, has been involuntarily removed from her home by state offi- hands of h[er] foster parents [wa]s not harm inflicted by state them by this court's expansion of the due process foster care, nor was there any prior indication that the family johnsons filed a second suit in state court against scdss, with kameron, including some overnight visits on weekends alleged and the proof shows that the state officials were delib-