J.H. Ex Rel. Higgin v. Johnson , 346 F.3d 788 ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1964
J.H. AND J.D., by and through,
their father, TODD HIGGIN,
Plaintiffs-Appellants,
v.
GORDON JOHNSON, GARY T. MORGAN,
AMY REMINGTON, LYNN CROWTHER,
MICHAEL HORSTMAN, INA DENTON,
GLORIA LEWIS, AND LUIS SOTO,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 2822—John W. Darrah, Judge.
____________
ARGUED SEPTEMBER 4, 2003—DECIDED OCTOBER 10, 2003
____________
Before FLAUM, Chief Judge, and EASTERBROOK and
MANION, Circuit Judges.
FLAUM, Chief Judge. J.H. and J.D., minor siblings, were
sexually abused by their respective foster fathers in foster
homes selected for them by Ada S. McKinley Community
Services, Inc. (“McKinley”), a licensed private child wel-
fare agency under contract with the Illinois Department
of Children and Family Services (“DCFS”). After the abuse
2 No. 02-1964
came to light, the foster fathers, Richard Hill and William
White, were both convicted of aggravated sexual assault.
The case before us today is about the responsibility of vari-
ous DCFS employees for the placement of J.H. and J.D. in
the two homes in which they were abused. J.H. and J.D.’s
father, Todd Higgin (“Higgin”), has brought this 42 U.S.C.
§ 1983 claim on their behalf against Gordon Johnson, Gary
T. Morgan, Amy Remington, Lynn Crowther, Michael
Horstman, Ina Denton, Gloria Lewis, and Luis Soto for
allegedly violating their constitutional right to be free from
placement in a foster home where the state knew or sus-
pected that abuse was likely to occur. The district court
granted the defendants’ motion for summary judgment. For
the reasons stated herein, we affirm.
I. Background
When J.H. was four years old and her brother, J.D., was
three years old, they entered the custody of DCFS as neg-
lected minors after a juvenile court determined that their
mother was unfit to care for them. Beginning in January
1988 and continuing through January 1990, the two chil-
dren lived separately in several different foster homes su-
pervised by either DCFS or McKinley.
Relevant to the claims in this case, J.H. lived in the
McKinley home of Mr. and Mrs. White from February 3 to
October 20, 1989, and J.D. lived in the McKinley home of
Mr. and Mrs. Hill from March 15 to December 15 of that
same year. It is undisputed that both J.H. and J.D. were
sexually abused by Mr. White and Mr. Hill, respectively.
Although neither child reported any sexual contact at the
time it occurred, the abuse was discovered once they were
returned to the care of their natural father, Higgin. While
in Higgin’s care, his girlfriend saw J.H. perform a sexual
act on J.D. J.H. admitted that she learned the behavior
from Mr. White. This led to the discovery that J.H. and J.D.
No. 02-1964 3
had each been sexually abused in their respective foster
homes. While investigating the molestations, it was re-
vealed that Mr. Hill had been accused of sexually abusing
two other foster children in 1980 and 1984, although sub-
sequent DCFS investigations concluded that those allega-
tions were unfounded.
During the time period when J.H. and J.D. were living in
the White and Hill homes, McKinley was a licensed private
child welfare agency under contract with DCFS to arrange
specialized foster care to children under DCFS guardian-
ship. With respect to McKinley homes, DCFS maintained
essentially a monitoring role while McKinley’s own staff
had responsibility for basic operations, including: finding
potential foster families; conducting initial studies to deter-
mine if families were fit to become foster parents; placing
children in individual McKinley homes; and providing
direct caseworker services to children, such as making
personal home visits and supervising their progress. Each
McKinley child was also assigned a DCFS caseworker who
would monitor the services provided for the child through
the agency’s reports and other records, although the DCFS
caseworker would not generally visit the child.
The eight defendants named in this suit held various
positions at DCFS during the time period at issue. The fol-
lowing five defendants held managerial and supervisory
positions within DCFS: Gordon Johnson was DCFS’s Direc-
tor; Michael Horstman was DCFS’s Executive Deputy
Director; Gary Morgan was DCFS’s Guardianship Admin-
istrator; Ina Denton was Deputy Director of DCFS’s Cook
County Division; and Gloria Lewis was DCFS’s Associate
Deputy Director for the Cook County Division. None of
these five defendants personally handled any casework
functions for children in DCFS homes or child welfare
agency homes or directly handled any licensing functions
for such homes.
4 No. 02-1964
Defendant Amy Remington-Flem (“Remington”) was a
DCFS caseworker assigned to J.H.’s and J.D.’s cases when
they were originally placed under DCFS guardianship in
January 1988 until September 15, 1988. Gloria Hunt, who
is not a defendant in this case, took over this assignment
from Remington. Defendant Lynn Crowther (“Crowther”)
was J.H. and J.D.’s caseworker from June 6, 1989 until
August 1, 1990. Defendant Luis Soto (“Soto”) supervised
Remington and Crowther. In line with DCFS’s practice with
respect to private agency foster homes, Remington and
Crowther did not provide in-person caseworker services for
J.H. and J.D. while they were in the White and Hill homes,
but rather monitored the casework services provided to
them by reviewing McKinley staff reports.
In early 1989, DCFS commenced a licensing investigation
of McKinley based on reports that McKinley was receiving
“kick backs” from its foster parents. Reports produced by
this investigation reflected a wide variety of concerns with
McKinley homes, including, for example, the use of corporal
punishment; clutter and filth; and inadequate medical and
other records. For the White home, the licensing investiga-
tion records reported that the household exceeded the
licensed capacity by one child, cleaning supplies were ac-
cessible to children, and Mr. White had not furnished re-
quested documentation reflecting counseling he supposedly
received after a nervous breakdown a few years earlier. The
Hill’s report found that the household exceeded the maxi-
mum number of children permitted, there were no inocula-
tion papers for their dog, and a medical exam for one of the
foster children in their care was missing.
The results of the investigation into McKinley led
DCFS to give notice to McKinley that is was cancelling
its contract for services. McKinley filed a lawsuit seeking
to enjoin DCFS from taking any action against McKinley’s
contract, including removing children from McKinley fos-
ter homes. As the dispute between McKinley and DCFS
No. 02-1964 5
ensued, a number of McKinley foster families, including the
Hill home but not the White home, transferred to DCFS
supervision. Remington visited the White home in October
1989 for the purpose of preparing a foster placement as-
sessment and recommended that J.H. be removed from the
home due to behavioral problems. Shortly thereafter, J.H.
was relocated to another foster home. In December, three
days after a hotline report that Mr. Hill had sexually
abused female foster children in his home, J.D. was re-
moved from the Hill home and placed in a DCFS emergency
shelter. Both children were eventually returned to Higgin’s
custody.
II. Discussion
We review a district court’s grant of summary judgment
de novo. Dykema v. Skoumal, 261 F.3d 701, 704 (7th Cir.
2001). Summary judgment is proper when there is no gen-
uine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law. Tesch v. County
of Green Lake, 157 F.3d 465, 471 (7th Cir. 1998). Therefore
we must examine the plaintiffs’ allegations to see whether
the facts, construed in the light most favorable to them,
establish an actionable claim under § 1983. To succeed on
such a claim, a plaintiff must show that: (1) the defendant
deprived the plaintiff of a right secured by the Constitution
and laws of the United States, and (2) the defendant acted
under color of state law. Reed v. City of Chicago, 77 F.3d
1049, 1051 (7th Cir. 1996). The second requirement is not
an issue in this case as all parties agree that defendants
were acting under color of state law.
As to the first requirement, the plaintiffs claim that the
DCFS employees violated their due process rights under the
Fourteenth Amendment. Though the state usually does not
have a constitutional duty to protect private citizens from
doing harm to each other, see DeShaney v. Winnebago
6 No. 02-1964
County Dept. of Soc. Servs., 489 U.S. 189, 202, 109 S. Ct.
998, 103 L. Ed. 2d 249 (1988), we have recognized that chil-
dren in state custody have a constitutional right not to be
placed in a foster home where the state knows or suspects
that the children may be subject to sexual or other abuse.
K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 852 (7th Cir.
1990); Lewis v. Anderson, 308 F.3d 768 (7th Cir. 2002)
(finding that right arises under “state-created danger” and
“special relationship” exception to the general rule).
Thus, to prevail on a § 1983 claim based on this right, the
plaintiffs must not only prove their injuries but must also
prove that the state actors knew of or suspected the specific
risk facing plaintiffs and consciously ignored it or failed
to stop the abuse once it was discovered. Lewis, 308 F.3d
at 773 (“In order to survive summary judgment [on a § 1983
claim], the plaintiffs needed to put forth a case that the
[state’s department of health and social services] defen-
dants actually knew of or suspected the existence of child
abuse in the prospective adoptive family.”). By incorporat-
ing a modified deliberate indifference standard (i.e., requir-
ing actual knowledge or suspicion of the alleged risk), the
right set forth in K.H. and Lewis aligns itself with Supreme
Court decisions and other cases from this circuit dealing
with state actors failing to prevent harm to those whom
they have a duty to protect. See, e.g., Estelle v. Gamble, 429
U.S. 97, 104-06, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (ap-
plying the “deliberate indifference” standard to evaluate de-
cisions regarding the medical needs of prisoners); Davis v.
Monroe County Bd. of Educ., 526 U.S. 629, 119 S. Ct. 1661,
1674, 143 L. Ed. 2d 839 (1999) (applying “deliberate indif-
ference” standard to school officials’ response to student-on-
student sexual harassment); Jones v. Simek, 193 F.3d 485,
490 (7th Cir. 1999) (holding that the test for deliberate in-
difference is subjective and prison officials will only be lia-
ble if they act or fail to act despite knowledge of a substan-
tial risk of serious harm). “Deliberate indifference” is found
No. 02-1964 7
where an actor responds unreasonably to a substantial
and known risk rather than to a risk of which the actor
merely should have known. See Farmer v. Brennan, 511
U.S. 825, 836-39, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)
(equating “deliberate indifference” with subjective reckless-
ness). The standard set forth in K.H. and Lewis differs from
the “deliberate indifference” standard only in the sense
that it can be satisfied by proof of a state actor’s knowledge
or suspicion of the risk of harm, rather than just knowledge.
Both standards are subjective. Though we have described
the burden of proof for plaintiffs asserting § 1983 claims
against state child welfare employees as “stringent” and
acknowledged that often the underlying facts of cases like
this “portray a sad course of events,” we nevertheless con-
tinue to require plaintiffs to demonstrate that the in-
dividual defendants had specific “knowledge or suspicion”
of the risk of sexual abuse facing the children in order to
hold defendants liable under § 1983. Lewis, 308 F.3d at 773.
The plaintiffs vigorously argue that the appropriate
standard for analyzing this case is the “professional judg-
ment” standard as articulated in Youngberg v. Romeo,
457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d. 28 (1982) (hold-
ing that decisions regarding the safety training of involun-
tarily committed mentally retarded persons made by a pro-
fessional can be the basis for § 1983 liability only when the
decision substantially departed from accepted professional
judgment). Employing this standard would amount to us
overruling our decisions in K.H. and Lewis. As K.H. made
clear, a professional judgment exercised by a child welfare
worker serves as a “secure haven from liability” rather than
the starting point for determining liability. K.H., 914 F. 2d
at 854. (“Only if without justification based either on finan-
cial constraints or on considerations of professional judg-
ment [child welfare workers] place the child in hands they
know to be dangerous or otherwise unfit do they expose
themselves to liability in damages.”). A bonafide profes-
8 No. 02-1964
sional judgment may shield the state’s caseworkers and
supervisors who acted despite knowledge of a risky place-
ment from liability, but whether such a professional
judgment was exercised is not the threshold determination.
Knowledge or suspicion that a foster parent is a probable
child abuser remains the legal yardstick for measuring the
culpability of state actors in § 1983 cases like this one.
Moreover, in order to recover damages against a state
actor under § 1983, a plaintiff must show the actor was
“personally responsible for the constitutional deprivation.”
Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 614 (7th
Cir. 2002) (citing Sanville v. McCaughtry, 266 F.3d 724, 740
(7th Cir. 2001)). This limitation mandates that a supervisor
can be held liable under § 1983 only if he or she “had some
personal involvement in the constitutional deprivation, es-
sentially directing or consenting to the challenged conduct.”
Doyle, 305 F.3d at 614 (citing Chavez v. Ill. State Police, 251
F.3d 612, 651 (7th Cir. 2001)).
In this case, the plaintiffs essentially argue that the de-
fendants “knew” of the risk of sexual abuse to J.D. and J.H.
because it was the defendants’ responsibility to know. In
particular, the plaintiffs assert that because Illinois state
law requires foster homes, even those supervised by private
agencies, as the White and Hill homes were in this case, to
be licensed and does not permit DCFS employees to dele-
gate their essential supervisory responsibilities, the defend-
ants must be liable for the plaintiffs’ injuries. The plaintiffs’
brief describes at length the statutory duties Illinois law
imposes on various DCFS workers. However, we find that
the plaintiffs’ theory of statutorily-imposed knowledge falls
short of satisfying their burden of proof.
First, a violation of state law—even assuming one
occurred in this case—does not per se make a state actor
liable under § 1983. State law violations do not form the
basis for imposing § 1983 liability. See, e.g., Windle v. City
No. 02-1964 9
of Marion, Ind., 321 F.3d 658, 662-63 (7th Cir. 2003); White
v. Olig, 56 F.3d 817, 820 (7th Cir. 1995) (“It is therefore a
truism, reiterated many times by this court, that mere
allegations of state law infraction are insufficient to support
a Section 1983 claim.”). While a DCFS employee’s derelic-
tion of statutory duties should be of concern to Cook County
and the State of Illinois, they do not form the basis of a
§ 1983 claim. See Estate of Novack v. County of Wood, 226
F.3d 525, 531-32 (7th Cir. 2000).
Second, knowledge or suspicion of abuse cannot merely be
imputed from a statute. Rather, the plaintiffs need to put
forth a case that the DCFS employees actually knew of or
suspected the existence of child abuse in the White and Hill
foster homes. See Lewis, 308 F.3d at 773. Under these cir-
cumstances, constructive or statutorily-implied knowledge
cannot serve as a substitute for actual knowledge or sus-
picion. Even if state regulations do fix personal responsibil-
ity for children in the custody and guardianship of DCFS
with DCFS employees, the regulations themselves provide
no evidence that any individual defendant had any actual
knowledge or suspicion of the problems occurring in these
particular households.
In addition, the plaintiffs must show a connection be-
tween any knowledge or suspicion of risk that the defend-
ants may have had and the injury that the children actually
suffered. Here, the plaintiffs presented evidence regarding
various conditions in the White and Hill homes, including
overcrowding and the dangerous placement of cleaning sup-
plies. They also present evidence showing that the homes
were not properly licensed at all relevant times. However,
we are not persuaded that a reasonable jury could find that
knowledge of these problems would have suggested to the
defendants that Mr. White and Mr. Hill were likely to
sexually abuse their foster children. Absent evidence estab-
lishing a strong connection between the presence of these
10 No. 02-1964
conditions and a risk of child abuse, these allegations are
unable to satisfy the plaintiffs’ burden of proof.
Our decision in Kitzman-Kelley v. Warner, 203 F.3d 454(7th Cir. 2000) addresses the importance that an adequate
link exist between the danger known to state officials and
the alleged harm suffered by the plaintiff in cases falling
within the “special relationship” exception to the DeShaney
doctrine, as does this case. In Kitzman-Kelley, a DCFS
intern subjected a seven-year-old foster child to a pattern of
sexual abuse. It was alleged that the DCFS defendants
violated the child’s due process rights by failing to provide
adequate screening, training and supervision of the intern.
We found that the deliberate indifference standard could
not be met by merely showing that hiring officials engaged
in less than careful scrutiny of the applicant resulting in
a generalized risk of harm, but rather the standard “re-
quire[d] a strong connection between the background of the
particular applicant and the specific constitutional violation
alleged.” Kitzman-Kelley, 203 F.3d at 459 (citations omit-
ted). Accordingly, proving a general risk of minor dangers
is insufficient to warrant liability. It must be shown that
there were known or suspected risks of child abuse or seri-
ous neglect in particular.
The strongest evidence that the plaintiffs put forward
connecting the foster homes to sexual abuse are the two
previous allegations of abuse in Mr. Hill’s record. Aside
from clear evidence of intent, we cannot think of a stronger
indication that a foster parent is a probable child abuser
than a past record of abuse. But in this case both reports
reflect that after DCFS investigation the allegations were
determined to be unfounded. Knowing what we do now, it
is difficult not to question the accuracy or even the thor-
oughness of these investigations. However, neither those in-
vestigations nor their investigators are currently before the
court. In a large state agency like DCFS, it is imperative
that labor be divided and that employees be able to rely on
No. 02-1964 11
the determinations of their colleagues. Absent awareness
that these internal investigations were a sham, a reason-
able jury could not find that a defendant’s knowledge of
these reports was equal to knowledge or suspicion that Mr.
Hill was a probable child molester.
Ideally, given the severity of the potential harm to chil-
dren, the strictest precautions should be employed in mak-
ing foster care placements. Indeed, one could argue that any
accusation that an individual abused a child, whether fully
established or not, should presumptively disqualify him or
her from serving as a foster parent. However, the demands
of the placement process may restrict such an approach
with the limited number of appropriate foster parents and
occasional false accusations of abuse. Against this backdrop,
we cannot conclude in this case that the placement of a
child with an individual who had two past accusations of
child abuse that were investigated and determined to be
unfounded warrants imposing liability on these defendants.
As Lewis found with regard to a single past incident of a
foster parent slapping a child, “[w]hile [it] may raise a red
flag, it does not immediately become a ‘suspicion’ of child
abuse.” 308 F.3d at 774. See also, S.S. v. McMullen, 225
F.3d 960 (8th Cir. 2000) (en banc) (finding defendants’
knowledge insufficient to impose liability despite their
awareness that the father with whom the plaintiff child was
placed 1) associated with a convicted child molester and 2)
underwent a psychological evaluation finding him likely to
endanger the child’s welfare).
Even if these reports were sufficient to give rise to know-
ledge or suspicion of child abuse, the plaintiffs present no
evidence that any of the defendants were actually aware
of them. As previously discussed, there is no liability under
§ 1983 for what a defendant “should have known,” Pacelli
v. deVito, 972 F.2d 871, 876 (7th Cir. 1992), nor is there
an affirmative duty of inquiry on the defendants’ part to
learn disqualifying information. See Lewis, 308 F.3d at 773.
12 No. 02-1964
The only defendants with any casework responsibilities
were Remington and Crowther and, arguably, their supervi-
sor, Soto. The remaining defendants—Johnson, Morgan,
Horstman, Denton and Lewis—exercised higher level man-
agement roles. The plaintiffs have presented no evidence
that any of the defendants involved in child welfare func-
tions—either directly or in a supervisory capacity—per-
sonally participated in the challenged placement decisions.
It is undisputed that J.H. and J.D. were placed in the White
and Hill homes after Remington was no longer their
assigned DCFS caseworker, and before Crowther became
their assigned DCFS caseworker. It is further undisputed
that placements in individual McKinley homes were
selected by McKinley’s staff. There is no evidence that any
of the defendants were actually aware of the reports that
Mr. Hill had been accused of sexually abusing children in
his care. Furthermore, it is unclear which, if any, of the
defendants knew the details of the McKinley investigation
in general and the violations of licensing standards in the
White and Hill homes in particular. While it is true that the
state cannot avoid its responsibilities to the children in its
care by merely delegating custodial responsibility to
irresponsible private parties, see K.H., 914 F.2d at 851-52,
liability will only arise if the state actor knows or suspects
that the agency or foster parents with whom a child is
placed are likely to abuse the child. See Lewis, 308 F.3d at
773-76; K.H., 914 F.2d at 852-54.
The plaintiffs also cite a number of disturbing statistics
regarding the level of abuse within the DCFS system. These
general allegations of systemic risk are insufficient to bring
this case to a jury. Just as it is necessary for the known risk
to be of a particular type (in this case, abuse or serious neg-
lect), it is also necessary that the risk come from a parti-
cular source (in this case, the White and Hill homes). While
the statistics may show that children in the foster care
system are at greater risk of becoming victims of sexual
No. 02-1964 13
abuse than other children, they do not demonstrate that the
defendants knew or suspected the likelihood that these
particular homes would generate abuse. One could imagine
a truly nightmarish foster care system where any child
placed in it would be at a serious risk of becoming the
victim of abuse. Notwithstanding the disturbing nature of
the statistics that the plaintiffs put forward, one cannot
rationally conclude from them that DCFS or McKinley were
running such a system at the relevant time.
Finally, the plaintiffs’ arguments regarding evidentiary
and legal errors made by the district court are immaterial
as we examine grants of summary judgment de novo. We
find that the plaintiffs’ remaining arguments, including
their property-right-based argument, lack merit.
In sum, the plaintiffs have not put forth any evidence that
these defendants knew of or suspected that J.D. and J.H.
were at risk of sexual abuse in the White and Hill homes.
The miscellaneous licensing problems in these homes
pointed to by the plaintiffs are too general in nature to raise
a question regarding whether the named child welfare
workers knew of the terrible dangers lurking within.
Although a closer call, the reports of previous accusations
of abuse in the Hill home are similarly insufficient to have
alerted the defendants to the likelihood of abuse given that
they were investigated and determined to be unfounded.
Moreover, the plaintiffs’ case as a whole fails for a lack of
evidence demonstrating that each individual defendant had
personal awareness of the circumstances surrounding the
White and Hill homes.
III. Conclusion
As regrettable as the decisions to allow the Whites
and the Hills to serve as foster parents may have been, the
plaintiffs have not shown that any of the defendants vio-
14 No. 02-1964
lated any constitutional rights of J.H. and J.D. That being
the case, the district court appropriately granted summary
judgment in favor of the eight defendants named in this
§ 1983 suit. The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-10-03