SUPREME COURT OF ARIZONA En Banc
CHERYL WEATHERFORD, as guardian ) Arizona Supreme Court ad litem for MICHAEL L., a minor, ) No. CV-02-0369-PR ) ) Court of Appeals Plaintiff-Appellant, ) Division One ) No. 1 CA-CV 01-0289 v. ) 1 CA-CV 01-0496 ) (Consolidated) STATE OF ARIZONA; CLAUDETTE ) WASHINGTON, individually and in ) Maricopa County her capacity as an employee of ) Superior Court the State of Arizona; SHIRLEY ) Nos. CV 98-021291 LEWIS, individually and in her ) CV 98-021291-2 capacity as an employee of the ) State of Arizona; PARTHENIA ) GIBSON, individually and in her ) capacity as an employee of the ) State of Arizona, ) ) Defendants-Appellees. ) __________________________________) O P I N I O N ) MICHAEL L., a minor, by and ) through his guardian CHERYL ) WEATHERFORD, ) ) Plaintiff-Appellee, ) ) v. ) ) STATE OF ARIZONA, ) ) Defendant-Appellant. ) ) __________________________________)
Appeal from Superior Court of Maricopa County Nos. CV 98-021291 and CV 98-021291-2 The Honorable Edward O. Burke The Honorable Johnathan H. Schwartz AFFIRMED IN PART; REVERSED IN PART; REMANDED
Opinion of Court of Appeals Division One 203 Ariz. 313, 54 P.3d 342 (App. 2002) VACATED IN PART; APPROVED IN PART Laurence M. Berlin Tucson Attorney for Cheryl Weatherford
Terry Goddard, Attorney General Phoenix by Paula S. Bickett, Chief Counsel Civil Appeals Section Assistant Attorney General Attorneys for Parthenia Gibson, Claudette Washington, Shirley Lewis, and the State of Arizona
Martin, Hart & Fullerton Mesa by James R. Hart, II Attorneys for Parthenia Gibson
Wilenchik & Bartness, PC Phoenix by Dennis I. Wilenchik Attorneys for Claudette Washington and Shirley Lewis
M c G R E G O R, Vice Chief Justice
¶1 This case requires us to determine whether and under
what circumstances a child placed in a foster care facility may
bring an action based upon 42 U.S.C. § 1983 (2003) against
individual state workers for violating the foster child’s
substantive due process rights under the United States
Constitution. We exercise jurisdiction pursuant to Article VI,
Section 5.3 of the Arizona Constitution, Arizona Revised
Statutes (A.R.S.) § 12-120.24 (2003), and Rule 23 of the Arizona
Rules of Civil Appellate Procedure.
I.
A.
¶2 This case arises out of the alleged sexual assault of
twelve-year-old Michael L. by two minors held at the Alice
Peterson Shelter (the Shelter), a foster care facility. The
2 assaults reportedly occurred over the course of four months in
1996 and 1997, after Claudette Washington, Michael’s intake
social worker, had arranged for Michael’s placement at the
Shelter following his removal from his home because of
unsanitary conditions. In mid-December 1996, Parthenia Gibson
became Michael’s social worker. Shirley Lewis supervised both
Washington and Gibson throughout Michael’s placement at the
Shelter.
¶3 Cheryl Weatherford, acting as Michael’s guardian ad
litem, sued the State of Arizona, Washington, Gibson, and Lewis
for negligence and for depriving Michael of his constitutional
rights, in violation of § 1983. During summary judgment
proceedings, Washington, Gibson, and Lewis did not dispute that,
acting in their capacity as social workers, they failed to
comply with various agency requirements, including failures to
timely complete an initial case plan, to assess Michael’s needs
and his compatibility with other Shelter residents, and to visit
the Shelter within twenty-four hours of Michael’s placement. In
addition, they did not dispute that they made only two of the
sixteen required weekly supervised visits to the Shelter between
November 14, 1996, and the disclosure of the alleged sexual
abuse on March 4, 1997.
¶4 The superior court nonetheless granted summary
judgment in favor of each of the defendants based upon qualified
immunity, 42 U.S.C. § 1983, and protective services immunity,
3 A.R.S. § 8-805.A (2001). The court of appeals reversed the
order dismissing Weatherford’s negligence and § 1983 claims.
Weatherford v. State, 203 Ariz. 313, 320 ¶ 31, 54 P.3d 342, 349
(App. 2002). The court held that a foster child’s right to
reasonable safety while in foster care was clearly established
in 1996 and that a social worker’s failure to exercise
professional judgment in the placement and monitoring of a child
in state foster care may subject the social worker to individual
liability under § 1983. Id. at 319-20 ¶¶ 29-30, 54 P.3d at 348-
49.1
B.
¶5 Section 1983 imposes liability on one who, under color
of law, deprives a person of any “rights, privileges, or
immunities secured by the Constitution and laws.” 42 U.S.C. §
1983. Government officials performing discretionary functions,
however, receive qualified immunity from § 1983 actions unless
their conduct violated a clearly established constitutional or
federal statutory right of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
¶6 To overcome the social workers’ qualified immunity
defense, Weatherford bears the initial burden of proving a
violation of a clearly established constitutional or statutory
1 The court of appeals decided a number of other issues affecting defendants’ liability. We granted review only of the question pertaining to § 1983 liability.
4 right. A right is “clearly established” when “[t]he contours of
the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). Establishing
liability requires more than alleging a “violation of extremely
abstract rights.” Id. at 639. An official's specific action,
however, need not previously have been held unlawful. Id. at
640. Rather, the unlawfulness must be apparent in light of
preexisting law. Id. If Weatherford is able to show a
violation of Michael’s clearly established constitutional right,
then the social workers must demonstrate that their conduct was
reasonable under the applicable standard of care. See, e.g.,
Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).
¶7 At oral argument, the social workers conceded that a
foster child’s substantive due process right to reasonable
safety while in foster care was clearly established in 1996.2 As
2 In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Supreme Court held that a state does not have a constitutional duty to protect a child from an abusive parent even if the state has received reports of and had investigated the possibility of abuse. In a footnote, however, the Court stated:
Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Appeals have held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due Process
5 a result, the issue before this court is whether the social
workers’ conduct, viewed in the light most favorable to
Weatherford, could subject them to individual liability under §
1983. Determining the appropriate standard by which to measure
the challenged conduct presents a question of substantive
federal law. Martinez v. California, 444 U.S. 277, 284 n.8
(1980).
C.
¶8 In interpreting substantive federal law, state courts
look first to decisions of the United States Supreme Court.
Although only a decision of the Supreme Court binds a state
court on a substantive federal issue, a number of state supreme
courts have elected to follow, as far as reasonably possible,
their federal circuits’ decisions on questions of substantive
federal law. See Littlefield v. Dep’t of Human Servs., 480 A.2d
731, 737 (Me. 1984); Phillips v. Williams, 608 P.2d 1131, 1135
(Okla. 1980); York v. Gaasland Co., 250 P.2d 967, 971 (Wash.
1952); see also Busch v. Graphic Color Corp., 662 N.E.2d 397,
____________________________ Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents.
Id. at 201 n.9 (emphasis added). Neither the Supreme Court nor the Ninth Circuit Court of Appeals has addressed whether and to what extent the state owes a duty to a foster child held in a state foster care facility. Because the State concedes that Michael’s right to reasonable safety existed, we address only the appropriate standard of conduct.
6 403 (Ill. 1996) (“[D]ecisions of the Federal courts interpreting
a Federal act . . . are controlling upon Illinois courts.”). In
Littlefield, for example, the Maine Supreme Court considered the
proper construction of eligibility requirements under the
federal Social Security Act. Noting that the First Circuit had
recently decided the exact issue before the court in Sweeney v.
Murray, 732 F.2d 1022 (1st Cir. 1984), the Maine court chose to
follow its circuit’s precedent. The court stated:
[E]ven though only a decision of the Supreme Court of the United States is the supreme law of the land on a federal issue, nevertheless, in the interests of existing harmonious federal-state relationships, it is a wise policy that a state court of last resort accept, so far as reasonably possible, a decision of its federal circuit court on such a federal question.
Littlefield, 480 A.2d at 737; see also Commonwealth v. Negri,
213 A.2d 670, 672 (Pa. 1965) (“[T]he clear indication for this
Court is to accept and follow the decision of the Third Circuit
on this matter until some further word is spoken by the Supreme
Court of the United States.”).
¶9 We agree that, although state courts are not bound by
decisions of federal circuit courts, we may choose to follow
substantive decisions of the Ninth Circuit Court of Appeals,
recognizing that doing so furthers federal-state court
relationships. In addition, consistent decisions among federal
and state courts further predictability and stability of the
law. Therefore, if the Ninth Circuit has announced a clear rule
on an issue of substantive federal statutory law and if the rule
7 appears just, we will look first to the Ninth Circuit rule in
interpreting substantive federal statutory law.
II.
¶10 The gravamen of Weatherford’s § 1983 complaint is the
claim that the social workers violated Michael’s substantive due
process rights. In determining the appropriate standard for
imposing § 1983 liability, we first acknowledge that standards
of state tort law do not apply; rather, the question is whether
defendants violated Michael’s federal constitutional rights.
“Our Constitution deals with the large concerns of the governors
and the governed, but it does not purport to supplant
traditional tort law in laying down rules of conduct to regulate
liability for injuries that attend living together in society.”
Daniels v. Williams, 474 U.S. 327, 332 (1986).
¶11 The touchstone of substantive due process is
protection against government power arbitrarily and oppressively
exercised. Id. at 331-32; see also County of Sacramento v.
Lewis, 523 U.S. 833, 845-46 (1998). Thus, the Due Process
Clause is “intended to prevent government officials from abusing
their power or employing it as an instrument of oppression.”
Sacramento, 523 U.S. at 846 (citations and quotations omitted).
When, as here, a plaintiff alleges he incurred damage from
abusive executive conduct, the conduct must be said to be
“arbitrary in the constitutional sense” to implicate the Due
8 Process Clause.3 Id. (quoting Collins v. City of Harker Heights,
503 U.S. 115, 129 (1992)).
¶12 Neither the Supreme Court nor the Ninth Circuit has
clearly defined when executive conduct becomes “arbitrary in the
constitutional sense” so as to impose individual § 1983
liability in the foster care context. We gain guidance,
however, from standards adopted by the Supreme Court and Ninth
Circuit in analogous situations. See, e.g., Daniels, 474 U.S.
327; Youngberg v. Romeo, 457 U.S. 307 (1982); Estelle v. Gamble,
429 U.S. 97 (1976); L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996)
(Grubbs II); Estate of Connors v. O’Connor, 846 F.2d 1205 (9th
Cir. 1988) (O’Connor). As our discussion below reveals, § 1983
standards have developed, first expanding and then contracting,
over time.
3 While acknowledging that “it is a constitution we are expounding,” M'Culloch v. Maryland, 17 U.S. 316, 407 (1819), we also recognize that the people of Arizona may adopt a system of their choosing for determining when state officials may be held liable for foster care placement decisions. “Lest the Constitution be demoted to . . . a font of tort law,” it is the prerogative of the self-governing people of the State of Arizona to make the legislative choice of when tort liability, except “at the ends of the tort law’s spectrum of culpability,” may attach to social worker placement and monitoring decisions. Sacramento, 523 U.S. at 847 n.8, 848; see also Clouse ex rel. Clouse v. State, 199 Ariz. 196, 203 ¶ 24, 16 P.3d 757, 764 (2001) (“We conclude that the immunity clause [of the Arizona Constitution], by authorizing the legislature to direct by law the manner in which suits may be brought against the state, confers upon the legislature a power to control actions against the state that it does not possess with regard to actions against or between private parties.”).
9 ¶13 Two relatively early Supreme Court decisions
established general parameters for imposing § 1983 liability
upon executive branch officials. Youngberg, 457 U.S. 307;
Estelle, 429 U.S. 97. In Estelle, the Supreme Court examined
the appropriate standard for determining when a prison
official’s failure to provide adequate medical care to a prison
inmate could subject the official to § 1983 liability. 429 U.S.
at 101-02. The Estelle Court began by noting that the Eighth
Amendment’s right to be free from cruel and unusual punishment
embodies “broad and idealistic concepts of dignity, civilized
standards, humanity, and decency.” Id. at 102 (quoting Jackson
v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). Based on this
principle, the Court reasoned:
An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical “torture or a lingering death” . . . . In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.
Id. at 103 (citations omitted). The Court held that the State’s
deliberate indifference to the serious medical needs of a
prisoner violates the Eighth Amendment and provides the basis
for an action under § 1983. Id. at 104.
¶14 The Supreme Court extended this analysis beyond the
prison setting in Youngberg. In that case, the Court considered
the appropriate standard for determining whether a patient
10 involuntarily committed to a state mental institution could
bring suit against institution officials for the alleged breach
of the patient’s substantive due process right to reasonable
safety and to freedom from unreasonable restraints. Youngberg,
457 U.S. at 321. The Court explained: “If it is cruel and
unusual punishment to hold convicted criminals in unsafe
conditions, it must be unconstitutional to confine the
involuntarily committed—who may not be punished at all—in unsafe
conditions.” Id. at 315-16.
¶15 Based on this reasoning, the Youngberg Court held that
§ 1983 liability may be imposed for executive decisions that are
“such a substantial departure from accepted professional
judgment, practice, or standards as to demonstrate that the
person responsible actually did not base the decision on such a
judgment.” Id. at 323. The Court noted, however, that “the
decision, if made by a professional, is presumptively valid.”
Id. In addition, the “professional will not be liable if he was
unable to satisfy his normal professional standards because of
budgetary constraints; in such a case good-faith immunity would
bar liability.” Id. This standard, the Court reasoned, strikes
the appropriate balance between an individual’s constitutionally
protected liberty interests and legitimate state interests “in
light of the constraints under which most state institutions
necessarily operate.” Id. at 324.
11 ¶16 After Youngberg and Estelle, the Supreme Court decided
two companion cases concerning the degree of official misconduct
necessary to give rise to liability under § 1983 for a violation
of a prison inmate’s due process rights. See Daniels, 474 U.S.
327; Davidson v. Cannon, 474 U.S. 344 (1986). In those
decisions, the Court emphasized the distinction between the type
of conduct that gives rise to a negligence action and the type
of conduct that gives rise to a § 1983 action.
¶17 In Daniels, a prison inmate brought a § 1983 claim
alleging a prison official deprived him of his due process
rights by negligently placing a pillow on a prison stairway,
causing the inmate to slip and injure his back and ankle. 474
U.S. at 328. The Court, seeking to define “when tortious
conduct by state officials rises to the level of a
constitutional tort,” held that “the Due Process Clause is
simply not implicated by a negligent act of an official causing
unintended loss of or injury to life, liberty, or property.”
Id. at 328-29; see also Davidson, 474 U.S. at 348 (observing
that due process protections “are just not triggered by lack of
due care by prison officials”). The Court reasoned that the Due
Process Clause was “intended to secure the individual from the
arbitrary exercise of the powers of government,” Daniels, 474
U.S. at 331 (quoting Hurtado v. California, 110 U.S. 516, 527
(1884)), and “to prevent governmental power from being ‘used for
purposes of oppression,’” id. (quoting Murray’s Lessee v.
12 Hoboken Land & Improvement Co., 59 U.S. 272, 277 (1855)).
Negligent conduct, the Court concluded, is “quite remote” from
these concerns. Id. at 332. “To hold that injury caused by
such conduct is a deprivation within the meaning of the
Fourteenth Amendment would trivialize the centuries-old
principle of due process of law.” Id. The Daniels Court,
however, reserved the question of “whether something less than
intentional conduct, such as recklessness or gross negligence,
is enough to trigger the protections of the Due Process Clause.”
Id. at 334 n.3.
¶18 Relying upon this guidance from the Supreme Court, the
Ninth Circuit initially held that certain types of gross
negligence can implicate the Due Process Clause. See, e.g.,
Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir. 1995)
(“conscious indifference amounting to gross negligence”);
Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (same);
O’Connor, 846 F.2d at 1208 (same); see also Fargo v. City of San
Juan Bautista, 857 F.2d 638, 641 (9th Cir. 1988) (“If [the
police officer’s] conduct constituted gross negligence or
recklessness, as opposed to mere negligence, then it constitutes
a deprivation of a liberty interest . . . under the due process
clause.”); Wood v. Ostrander, 851 F.2d 1212, 1215 (9th Cir.
1988) (holding that due process claim was not barred under §
1983 because the alleged police conduct “may be more than mere
negligence”).
13 ¶19 In O’Connor, the Ninth Circuit considered the
implications of Daniels and Davidson for determining whether a
state actor may be held liable, under the professional judgment
standard, for violating the rights of an involuntarily committed
mental patient. The O’Connor court concluded that Daniels and
Davidson did not affect the Youngberg test:
Under Youngberg’s balancing test, the risk of harm and the burden on the state are weighed in examining discretionary management choices for reasonableness. Liability may be imposed on a professional state officer only when his or her decision is so objectively unreasonable as to demonstrate that he or she actually did not base the challenged decision upon professional judgment. We believe that this standard is equivalent to that required in ordinary tort cases for a finding of conscious indifference amounting to gross negligence. Certainly, the Youngberg standard is far more stringent than that required for a finding of negligence, which may be demonstrated by a professional's mere failure to exercise the level of care expected of other professionals in the same field. We therefore hold that the inquiry relevant under Youngberg has not been affected by the Court’s intervening decisions in Daniels and Davidson.
O’Connor, 846 F.2d at 1208 (emphasis added).
¶20 Similarly, the Ninth Circuit held that police officer
conduct amounting to gross negligence or recklessness4 would
4 Defining terms such as negligence, gross negligence, and recklessness is, at best, inexact. As between negligence and gross negligence, negligence suggests “a failure to measure up to the conduct of a reasonable person.” Daniels, 474 U.S. at 332. Gross negligence generally signifies “more than ordinary inadvertence or inattention, but less perhaps than conscious indifference to the consequences.” Fargo, 857 F.2d at 641 (quoting W. Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 212 (5th ed. 1984)). Under this definition of gross negligence, “conscious indifference amounting to gross
14 constitute a violation of the constitutional right to be free
from excessive force and would subject an officer to § 1983
liability. Fargo, 857 F.2d at 641. Fargo involved a claim
brought by an arrestee whom a police officer accidentally shot
while placing him in handcuffs. The officer admitted that he
acted contrary to his police training, but claimed that he was
entitled to summary judgment because the shooting was accidental
and, at most, merely negligent. Id. at 639. Rejecting the
officer’s argument, the court determined that the officer’s
conduct may have “constituted gross negligence or recklessness.”
Id. at 641. The Ninth Circuit held, “We cannot conclude as a
matter of law that [the officer’s] conduct, contrary as it was
to proper police procedures, constituted mere inadvertence, and
not a greater want of care.” Id. at 642.
¶21 Recent Ninth Circuit case law, however, rejects the
Fargo standard and raises a serious question about the continued
validity of the professional judgment standard as applied in
O’Connor and similar decisions. See Grubbs II, 92 F.3d 894.
Grubbs II involved a § 1983 claim brought by a registered nurse
at a medium security custodial institution against her
supervisors after she was attacked by an inmate. The Grubbs II
____________________________ negligence” falls closer to a recklessness standard, which usually involves a conscious disregard of a risk, than mere gross negligence. See id. at 642 n.7 (noting that recklessness can, however, be inferred from the facts and circumstances) (citation omitted).
15 court examined prior circuit decisions to decide whether a state
official could be held liable under § 1983 for gross negligence.
Id. at 896. The court concluded:
[I]n order to establish Section 1983 liability in an action against a state official for an injury . . . the plaintiff must show that the state official participated in creating a dangerous condition, and acted with deliberate indifference to the known or obvious danger in subjecting the plaintiff to it. . . . Deliberate indifference to a known, or so obvious as to imply knowledge of, danger, by a supervisor who participated in creating the danger, is enough. Less is not enough.
Id. at 900 (emphasis added); see also McGrath v. Scott, 250
F.Supp. 2d 1218, 1226 (D. Ariz. 2003) (finding that the
deliberately indifferent standard adopted in Grubbs II “applies
generally to all supervisory liability claims under § 1983”).
¶22 In redefining and applying the deliberate indifference
standard, the Grubbs II court also examined the continued
validity of the O’Connor professional judgment standard. The
court reasoned that Neely, in which the court had held that
“conscious indifference amounting to gross negligence” was
enough to impose liability under the professional judgment
standard, Neely, 50 F.3d at 1507, either was incorrect or must
be limited to its facts. The court stated:
While Neely can be distinguished on its facts from the present case, its language . . . is either incorrect to the extent that it approves the gross negligence standard, or it must be limited to the claims of inmate plaintiffs injured because of a miscarriage of the “professional judgment of a government hospital official” in the context of a captive plaintiff.
16 Grubbs II, 92 F.3d at 897.
¶23 Two years after the Ninth Circuit’s Grubbs II
decision, the Supreme Court reviewed another Ninth Circuit
decision in an analogous area of § 1983 liability. Sacramento,
523 U.S. 833. In Lewis v. Sacramento County, 98 F.3d 434 (9th
Cir. 1996), the circuit court had concluded that a police
officer’s deliberate indifference to, or reckless disregard for,
a person’s right to life and security during a high speed chase
could establish liability under § 1983. In reaching its
conclusion, the court noted that “[d]eliberate indifference is
the greatest degree of misconduct we have previously required a
plaintiff to prove to sustain a § 1983 action.” Id. at 441.
¶24 Reversing the Ninth Circuit, the Supreme Court
emphasized the relatively narrow scope of constitutionally-based
§ 1983 actions. The Court noted that the conduct of the officer
fell within the middle range of culpability, somewhere between
negligence, which is “categorically beneath the threshold of
constitutional due process,” and “conduct intended to injure in
some way unjustifiable by any government interest.” Sacramento,
523 U.S. at 849. The Court held that, with regard to high speed
police chases, deliberate indifference, rather than being the
highest degree of misconduct required, is insufficient to
establish liability. The Court concluded instead that “high
speed chases with no intent to harm suspects . . . do not give
17 rise to liability under the Fourteenth Amendment, redressible by
an action under § 1983.” Id. at 854.
¶25 The Court emphasized again that “only the most
egregious official conduct can be said to be ‘arbitrary in the
constitutional sense,’” id. at 846 (quoting Collins, 503 U.S. at
129), and that, as it had repeatedly stated, “the Due Process
Clause was intended to prevent government officials ‘from
abusing [their] power, or employing it as an instrument of
oppression,’” id. (quoting Collins, 503 U.S. at 126 (in turn
quoting DeShaney v. Winnebago County Dep’t of Soc. Servs., 489
U.S. 189, 196 (1989) (in turn quoting Davidson, 474 U.S. at
348))). To meet that burden, the Court stated, “for half a
century now we have spoken of the cognizable level of executive
abuse of power as that which shocks the conscience.” Id. Under
the circumstances of a high speed chase, only “a purpose to
cause harm unrelated to the legitimate object of arrest will
satisfy the element of arbitrary conduct shocking to the
conscience, necessary for a due process violation.” Id. at 836.
¶26 The Court also recognized, however, that due process
guarantees cannot be mechanically applied. Id. at 850.
“Deliberate indifference that shocks in one environment may not
be so patently egregious in another, and our concern with
preserving the constitutional proportions of substantive due
process demands an exact analysis of circumstances before any
abuse of power is condemned as conscience shocking.” Id. The
18 Court distinguished between imposing liability for deliberate
indifference in a high speed chase situation and imposing
liability for deliberate indifference to inmate welfare. The
primary distinction rests upon the fact that, in a high speed
chase, the officer must act decisively and show restraint at the
same moment. Under such circumstances, little time exists for
deliberation and, as use of the “term ‘deliberate indifference’
implies, the standard is sensibly employed only when actual
deliberation is practical.” Id. at 851 (citing Whitley v.
Albers, 475 U.S. 312, 320 (1986)). In the custodial situation
considered in Estelle, in contrast to the high speed chase
situation, prison officials had time for reflection. “When such
extended opportunities to do better are teamed with protracted
failure even to care, indifference is truly shocking.” Id. at
853. Similarly, the Court noted, in a situation such as
Youngberg, “[t]he combination of a patient’s involuntary
commitment and his total dependence on his custodians obliges
the government to take thought and make reasonable provision for
the patient’s welfare.” Id. at 852 n.12.
¶27 Both Grubbs II and Sacramento held that, as to the
situations considered, nothing less than deliberate indifference
to a known or obvious danger on the part of a public official
involves behavior that rises to a constitutionally conscience-
shocking level. Neither decision, of course, considered the
behavior sufficient to rise to such a level when the state
19 places or monitors a foster child. We consider, then, whether
deliberate indifference or some other level of behavior gives
rise to liability in the foster care context.
III.
¶28 The Grubbs II standard, applied to the foster care
context, would require that state workers responsible for
placing and supervising a child in foster care could not be held
liable under § 1983 unless they exhibited deliberate
indifference to a known or obvious danger to the child.
Weatherford argues that applying that standard will encourage
those responsible for the well-being of foster children to
deliberately overlook information that could place them on
notice of dangerous conditions. Officials should not be less
likely to incur liability, she argues, if they fail to consider
available information. We agree that a child’s right to
reasonable safety while in foster care demands more from state
workers than attention to known or obvious dangers. We hold,
therefore, that a foster child can establish § 1983 liability
against a state official by showing that the official, without
justification, acted with deliberate indifference by placing a
child in foster care or by maintaining a placement when the
official knew that the placement exposed the child to danger or
would have known of the danger but for the official’s deliberate
indifference. If a state worker, with time to consider the
placement for a foster child, acts with such deliberate
20 indifference as to ignore information indicating that the
placement will result in danger to the child or refuses to
obtain information that, if considered, would reveal a danger to
the child, the official’s indifference is sufficiently egregious
to justify imposing liability under § 1983.
¶29 This standard reflects the Supreme Court’s admonition
that executive behavior violates § 1983 only if it involves an
element of using the state’s power in an oppressive manner.
Daniels, 474 U.S. at 331-32. An official faces liability not
for placing a child in foster care, but for placing the child in
a dangerous foster care situation of which the official knew or
would have known but for the official’s deliberate indifference.
¶30 The standard also incorporates the Ninth Circuit’s
admonition that anything less than deliberate indifference is
not sufficient to establish § 1983 liability. The standard
reflects the principle, however, that the state, once it
undertakes to make a person dependent upon its care, also
undertakes an affirmative duty to assume responsibility for that
person’s safety and general well-being. DeShaney, 489 U.S. at
200. Additionally, the standard takes into account the
difficult decisions imposed upon state workers in making and
maintaining foster child placements. In deciding whether the
worker made a particular decision “without justification,” a
court must consider the totality of the circumstances: A social
worker cannot be held liable if safe placement cannot be found
21 or if financial constraints prevent any choice other than that
made. Youngberg, 457 U.S. at 323; K.H. ex rel. Murphy v.
Morgan, 914 F.2d 846, 853-54 (7th Cir. 1990). Whether an
initial placement decision reaches a “constitutionally shocking”
level may involve different factual considerations than whether
a decision to continue a placement rises to this level.
¶31 The standard we articulate today is also similar to
the standard of conduct required by other circuit courts of
appeals, whether denominated a “deliberate indifference” or
“professional judgment” standard, in the foster care context.
See Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 894
(10th Cir. 1992); Doe v. N.Y. Dep’t of Soc. Servs., 649 F.2d
134, 145 (2d Cir. 1981); see also Camp v. Gregory, 67 F.3d 1286,
1293 (7th Cir. 1995) (“[P]ublic officials may be held liable for
damages when they place a child in a foster home knowing or
having reason to know that the child is likely to suffer harm
there.”); Taylor v. Ledbettter, 818 F.2d 791, 796 (11th Cir.
1987) (“A child abused while in foster care, in order to
successfully recover from state officials in a section 1983
action, will be faced with the difficult problem of showing
actual knowledge of abuse or that agency personnel deliberately
failed to learn what was occurring in the foster home.”).
¶32 In Yvonne L., for example, the plaintiffs asserted the
right “not to be placed in a foster care environment involving a
known or reasonably suspected risk of harm by a third party.”
22 959 F.2d at 891. The Tenth Circuit adopted a standard it
labeled the “professional judgment” standard and held that this
standard, “while it does not require actual knowledge the
children will be harmed, [] implies abdication of the duty to
act professionally in making the placements.” Id. at 894.
Similarly, in Doe, the Second Circuit, purporting to adopt the
“deliberate indifference” standard, held that child placement
agency officials may be held liable under § 1983 if they
“exhibited deliberate indifference to a known injury, a known
risk, or a specific duty, and their failure to perform the duty
or act to ameliorate the risk or injury was a proximate cause of
plaintiff’s deprivation of rights under the Constitution.” Doe,
649 F.2d at 145.
¶33 As Doe and Yvonne L. demonstrate, when applied to the
unique facts of the foster care context, not much difference
exists between the “deliberate indifference” and “professional
judgment” standards. Yvonne L., 959 F.2d at 894 (“To the extent
there is a difference in the standards, we agree with the
Seventh Circuit that the Youngberg standard applies.”). As a
result, we do not find it particularly helpful to label this
standard of conduct “deliberate indifference” or “professional
judgment.”
¶34 Applying this standard to the facts of this case, we
reverse the trial court’s grant of summary judgment. On remand,
the court must consider whether, under the standard articulated
23 today, undisputed material facts permit the court to conclude,
as a matter of law, that defendant social workers acted with
deliberate indifference sufficient to impose responsibility
either for the decision to place Michael in the Shelter or for
the decision to continue the placement.
IV.
¶35 For the reasons described above, we vacate that part
of the court of appeals’ opinion set out in paragraphs twenty-
two through thirty and approve the remainder of the opinion,
reverse the trial court’s grant of summary judgment to these
defendants with regard to the § 1983 claim, and remand for
further proceedings consistent with this opinion.
____________________________________ Ruth V. McGregor, Vice Chief Justice
CONCURRING:
__________________________________ Charles E. Jones, Chief Justice
__________________________________ Rebecca White Berch, Justice
__________________________________ Michael D. Ryan, Justice
__________________________________ Andrew D. Hurwitz, Justice