Lewis, Edward M. v. Anderson, Eloise S.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3318
EDWARD M. LEWIS, et al.,
Plaintiffs-Appellants,
v.
ELOISE ANDERSON, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 01 C 56—John C. Shabaz, Judge.
____________
ARGUED APRIL 1, 2002—DECIDED OCTOBER 21, 2002
____________
Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. This suit is about a foster
care placement, and later adoption, that failed, because
the host family (and later parents) turned out to be abu-
sive. The plaintiffs are five of six siblings who were placed
with the family. They have sued several officials of the
Wisconsin Department of Health and Social Services
(DHSS) in their individual capacities under 42 U.S.C.
§ 1983, alleging that the defendants violated their Fifth
and Fourteenth Amendment due process rights when they
entrusted them to this family. On cross motions for sum-
mary judgment, the district court ruled for the defendants,
holding that the plaintiffs could not show that the state
2 No. 01-3318
knew or suspected that the foster parents were probable
child abusers, and that such a showing was necessary for
liability. The court dismissed some supplemental state
claims without prejudice. While we are sympathetic to the
unfortunate history of these individuals, we agree with
the district court that the defendants violated no legal
duty to the plaintiffs, and we therefore affirm.
I
The plaintiffs, Edward Max Lewis, Matthew S. Lewis,
Michael G. Lewis, T.L., and O.L., all siblings, were minors
at the time of the relevant events. Defendant Eloise
Anderson was the Administrator of the Division of Com-
munity Services at DHSS. Defendants Sandra Stolle and
April Lancour were social workers for DHSS; they were
supervised by defendant Shirley Bohle.
In 1987, Derwin and Rebecca Lewis were the heads of
a family that included one biological child and one foster
child. In 1988 the couple adopted three “special needs”
children. Later, the Lewises were considering adopting
more children, and so the state undertook a new study
of their suitability, which was completed in 1989. In
1990, DHSS became the legal guardian of the five plain-
tiffs and their sister, and it began searching for adoptive
placement for them. As the children were Native Ameri-
cans, the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq.,
applied to them. A strong preference had been expressed
for placement of all the children together—a situation
regarded as less traumatic for adopted children.
During the investigation of the Lewis family, DHSS ob-
tained reports from at least three outside sources vouch-
ing for the ability of the Lewises to adopt more children.
All sources ultimately recommended the Lewises as suit-
able adoptive parents, even though one source expressed
some reservations. Prior to the placement of the children
with the Lewises, DHSS also learned that Derwin Lewis,
No. 01-3318 3
the father, had on one occasion hit one of his children.
Derwin discussed the event with a social worker. This
was the only instance of even arguable rough treatment
that DHSS knew about before the events at issue here.
On May 31, 1990, the state terminated the parental
rights of the children’s biological parents and they be-
came wards of the state. Shortly thereafter, in June and
July 1990, they were placed in preadoptive foster care
with the Lewises, largely because the Lewises were (like
the children) Native Americans and they were willing
to take all six children. This placement involved remov-
ing the children from other temporary foster homes where
they were doing well. Furthermore, it left the Lewises
with a family of two parents and 11 children ranging from
ages 5 to 15; of the 11 children, nine had special needs,
including emotional, physical, and behavioral problems. On
April 23, 1991, the Lewises formally adopted all six sib-
lings.
The second amended complaint focuses on the time peri-
od between the foster care placement (roughly mid-1990)
and the formal adoption. The children allege that they
were physically abused by the family. Later, after the
adoption, these problems came to light and the children
were removed from the Lewis household and placed with
other foster families. The district court found that during
the foster care period the defendants neither knew nor
suspected that the children would be, or were being, abused
by the Lewises.
II
As an initial matter, we must consider whether this
suit is barred by the Rooker-Feldman doctrine. See gener-
ally District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983) and Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923). While neither party addressed this point
in the original briefs, the panel raised it at oral argu-
4 No. 01-3318
ment and requested supplemental memoranda on the
issue. The Rooker-Feldman doctrine is jurisdictional in
nature, and thus it may be raised at any time for the
parties and by the court sua sponte, see 4901 Corp. v. Town
of Cicero, 220 F.3d 522, 527 (7th Cir. 2000). Because of the
jurisdictional nature of the doctrine, we must assure
ourselves that it does not bar the suit before we turn to
the merits. Id. See also Garry v. Geils, 82 F.3d 1362, 1364
(7th Cir. 1996).
Rooker and Feldman establish the fact that lower fed-
eral courts do not have jurisdiction to conduct direct
review of state court decisions. Rooker, 263 U.S. at 416;
Feldman, 460 U.S. at 482. Furthermore, the Rooker-Feld-
man principle extends to claims that are “inextricably
intertwined with the state-court judgment [such that] the
federal claim succeeds only to the extent that the state
court wrongly decided the issues before it.” Pennzoil Co.
v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., con-
curring); Edwards v. Illinois Bd. of Admissions to the
Bar, 261 F.3d 723, 729 (7th Cir. 2001). The pivotal ques-
tion, then, is “whether the injury alleged by the fed-
eral plaintiff resulted from the state court judgment it-
self or is distinct from that judgment.” Rizzo v. Sheahan,
266 F.3d 705, 713 (7th Cir. 2001) (quotation marks and
citation omitted). To put it another way, the key inquiry
is “whether ‘the district court is in essence being called
upon to review the state-court decision.’ ” Ritter v. Ross,
992 F.2d 750, 754 (7th Cir. 1993), quoting Feldman, 460
U.S. at 483-84 n.16.
The plaintiffs contend that the Rooker-Feldman doc-
trine does not bar their claim because they are not chal-
lenging the final placement decision, but rather the short-
comings of the defendants in their evaluation of the suit-
ability of the Lewis family for both interim and permanent
placement. Labeling a suit as a § 1983 action alleging due
process violations, however, does not automatically re-
move the bar to suit in federal court. See Remer v. Bur-
No. 01-3318 5
lington Area Sch. Dist., 205 F.3d 990, 997 (7th Cir. 2000)
(“A plaintiff may not circumvent the effect of the Rooker-
Feldman doctrine simply by casting [his] complaint in
the form of a federal civil rights action.”) (quotation marks
and citation omitted).
To the extent that the plaintiffs in this case contend
that their constitutional rights were violated by the defen-
dants during the pre-adoption period, they may proceed;
to the extent that they challenge the decision to approve
the Lewises as adoptive parents, they may not (as the
latter decision was taken under the supervision of the
state courts). The decision with respect to the pre-adop-
tion period, however, was not taken pursuant to any court
order, and thus the § 1983 suit cannot be the equivalent
of an attempt to have a lower federal court review a
state court judgment. As to that period, there is no state
court judgment to review; there is only the course of ac-
tion followed by the DHSS officials. No Wisconsin court
has ever entertained a case touching upon the process
whereby the state actors chose the Lewises as foster
parents and monitored their performance in that capac-
ity prior to the adoption. We conclude that DHSS’s al-
legedly negligent placement of the children with the
Lewises, as opposed to any other foster family, is not
“inextricably intertwined” with the decision that the
children ought to be placed with a family in the first
place, and thus that there is no Rooker-Feldman bar to
this action.
III
This clears the way for us to proceed to the issues
presented for review on this appeal. We review the dis-
trict court’s decision to grant summary judgment de novo,
viewing all facts and drawing all inferences in favor of the
non-moving party. Weinberger v. State of Wisconsin, 105
F.3d 1182, 1186 (7th Cir. 1997).
6 No. 01-3318
Although the underlying facts of this case portray a sad
course of events, it is important to bear in mind that “the
claim here is based on the Due Process Clause of the
Fourteenth Amendment, which, as [the Supreme Court
has] said many times, does not transform every tort
committed by a state actor into a constitutional violation.”
DeShaney v. Winnebago County Dep’t of Soc. Servs., 489
U.S. 189, 202 (1988). DeShaney held that a state has no
constitutional duty to protect a child against parental
abuse. Id. Nevertheless, it also recognized an exception—
on which the plaintiffs here rely—for cases where the
danger to the child is “state-created.” See Dykema v.
Skoumal, 261 F.3d 701, 704-05 (7th Cir. 2001), citing
DeShaney, 409 U.S. at 201. Despite the fact that a state
has no positive duty under the federal Constitution to
provide for the safety of its citizens, DeShaney, 489 U.S. at
195, the Due Process clause of the Fourteenth Amend-
ment imposes such a duty where state action “creates, or
substantially contributes to the creation of, a danger or
renders citizens more vulnerable to a danger than they
otherwise would have been.” Reed v. Gardner, 986 F.2d
1122, 1126 (7th Cir. 1993). Alternatively, the state’s duty
may arise from the creation of a “special relationship”
between the state and the individual. See, e.g., Nicini v.
Morra, 212 F.3d 798, 808 (3d Cir. 2000) (en banc).
This court has held, in the context of child placement by
an adoption agency, that agency officials and case work-
ers are liable only if they violated “the right of a child
in state custody not to be handed over by state officers to
a foster parent or other custodian, private or public,
whom the state knows or suspects to be a child abuser.
Only in this case thus narrowly described can the foster
parents be fairly considered an instrument of the state
for child abuse.” K.H. v. Morgan, 914 F.2d 846, 852 (7th
Cir. 1990) (emphasis in original). Negligence or even gross
negligence does not suffice to give rise to liability under
§ 1983. Id. at 852, citing Daniels v. Williams, 474 U.S. 327,
328 (1986) and Archie v. City of Racine, 847 F.2d 1211, 1220
(7th Cir. 1988) (en banc).
No. 01-3318 7
The standard articulated in K.H. does not take the next
step and impose some kind of duty of inquiry in these
cases. If we are to follow K.H., therefore, the DHSS offi-
cials cannot be held liable on the basis of facts they did
not actually know or suspect, even if they might have
learned about disqualifying information if they had con-
ducted a more thorough inquiry. In order to survive sum-
mary judgment, the plaintiffs needed to put forth a case
that the DHSS defendants actually knew of or suspected
the existence of child abuse in the prospective adoptive
family.
The plaintiffs have attempted to meet this stringent
standard by arguing that there is at least a dispute of
fact on the question whether the defendants knew or sus-
pected that the children were likely to be abused or ne-
glected in the Lewis home. They also assert that there is
a dispute of fact on the question whether the defen-
dants failed to exercise professional judgment. As a last
resort, they also urge us to revisit the standard set forth
in K.H.
Operating under the “knowledge or suspicion” standard,
we of course review the facts in the light most favorable
to the plaintiffs. The relevant time frame for our inquiry
is between the time when the state became the guardian
of the children and when it relinquished guardianship
to the adopting family—that is, between May 31, 1990 and
April 23, 1991—when the children were formally adopted.
Once a child is placed with a foster family prior to adop-
tion, the state’s duty continues through the period of fos-
ter care, as the state at that point is still legally the chil-
dren’s guardian. See, e.g., Terry B. v. Gilkey, 229 F.3d 680,
682 (8th Cir. 2000).
The main evidence that the plaintiffs put forth to satisfy
the knowledge or suspicion requirement comes from two
sources: first, the incident mentioned earlier when Derwin
slapped a different child, and second, the contents of a
reference letter from friends of the family, the Nelsons.
8 No. 01-3318
Stolle, one of the defendants, knew about the slapping
incident: Derwin admitted that he once lost his temper
and hit Daniel, one of the children that the Lewises had
already adopted at the time the plaintiffs were being
considered for foster placement. Even though evidence of
even a single instance of abuse may constitute a circum-
stance sufficient to warrant immediate state action on
a child’s behalf, see, e.g., Hatch v. Dep’t for Children,
Youth & Their Families, 274 F.3d 12, 22 (1st Cir. 2001),
that must be an instance of actual abuse. A single hitting
of a child (without more evidence of the severity of the
consequences than we have here) does not necessarily
constitute child abuse; were that the case, nearly any
practitioner or case worker who has ever witnessed a
slapping of a child would be under a legal duty to report
the occurrence to the designated agency—and every par-
ent who ever slapped or spanked a child would face the
possibility of losing custody of the child. See, e.g., Wis.
Stat. § 48.981(2) (making reporting of possible child abuse
mandatory for designated persons). Many states have
adopted a “not every bruise is an abuse” rule. See, e.g.,
Briggs v. State, 752 N.E.2d 1206 (Ill. App. Ct. 2001) (“Be-
yond the regulation which states not every bruise amounts
to abuse, the [Abused and Neglected Child Reporting Act]
requires for a finding of abuse death, disfigurement, im-
pairment of physical or emotional health, or loss or im-
pairment of any bodily function, substantial risk of such
injury, or corporal punishment which is excessive.”) (quota-
tions omitted). While one instance of child-hitting may
raise a red flag, it does not immediately become a “suspi-
cion” of child abuse.
Even if one known instance of slapping was not enough
to raise a suspicion of an abusive environment for the
DHSS officials, the plaintiffs also argue that this infor-
mation did not stand alone. There was also a lukewarm
reference letter in the file. Taken together, they argue,
these two items should have done the job, in the sense
that they would permit a trier of fact to find the neces-
No. 01-3318 9
sary knowledge or suspicion on the part of the defendants.
We disagree. DHSS requires three letters of reference from
non-relatives detailing the family’s fitness for place-
ments. Two of the references, given by the Curtises and
the Genges, were unconditional in their endorsement of
the Lewises. While the third reference, submitted by the
Nelsons, was not unqualified, neither was it a negative
report. To the contrary, the Nelsons concluded in their
report that they believed the Lewis family was fit to adopt
the children. They merely expressed a few concerns, such
as their perceptions that the parents had short tempers
and that the home might be too small for such a large
number of children. The report also pointed to some “ir-
ritability” on the part of the mother related to her job
and the fact that the parents “seem to have a little prej-
udice in some of the children.” The Nelsons further wrote
that “the [existing] children are still adjusting to find
their place and we don’t feel that their family is stable
enough for more children yet.”
Assuming that the DHSS officials credited every word
of the Nelsons’ report, this is still not enough to charge
them with either knowledge or suspicion of child abuse.
The Nelsons were asked to comment on “irritability, ex-
cessive drinking, use of narcotics, history of mental ill-
ness, [and] criminality.” They mentioned only irritability
in their response and qualified their comment with the
statements about Rebecca’s work demands. “Strict disci-
pline,” another factor the Nelsons included, is hardly di-
rect evidence of likely child abuse. The plaintiffs claim
that this should have alerted DHSS and its workers to
the possibility of abuse. “Should have alerted,” possibly
(though we note that many people today bemoan the
converse, loose discipline), but it is not sufficient to sup-
port a finding of knowledge or suspicion of abuse. In fact,
no references to abuse or its possibility appear in the
Nelson report. In response to the question “If you were
responsible for a child’s future, would you consider this
individual/couple a good choice as a parent(s)?” the Nelsons
10 No. 01-3318
said “yes.” While it might have been a good idea for the
DHSS officials to have looked further into the Nelsons’
potentially euphemistic references to strictness, discipline,
and irritability, this is not the standard for § 1983 liabil-
ity in the placement context under K.H.
Aside from the Nelson reference, the plaintiffs point to
a statement by Rebecca, the mother, that she was “not
too patient, moody.” Rebecca further admitted that she
came from a dysfunctional family and never really knew
her father. The plaintiffs also rely on statements by ther-
apists and psychologists that these six children should
not be placed together because any foster parent would
be quickly overwhelmed by the challenges they presented.
Even taken together and in the light most favorable to
the plaintiffs, this evidence is insufficient to support a
finding of knowledge or suspicion of impending child
abuse on the part of any of the DHSS defendants. The
question is not whether abuse was actually occurring or
how bad it was; it is instead what degree of responsibility
the law imposes on these state actors, and whether a
lawsuit against them is a remedy for any abuse that
was occurring. Much worse abuse of children has unfor-
tunately taken place, but other courts have agreed with
us that something like the K.H. standard governs wheth-
er any remedy lies against the state social workers. The
Eighth Circuit had occasion to visit this issue en banc
in S.S. v. McMullen, 225 F.3d 960 (8th Cir. 2000). In S.S.,
the Eighth Circuit affirmed the dismissal of a § 1983 suit
against several state actors for their placement of a child
who was in state custody with her father. The father was
known to associate with a convicted child molester who
later sodomized the infant girl on at least two occasions.
225 F.3d at 962. The state actors were also in possession
of a psychological evaluation of the father that described
him as likely to endanger her welfare. The court con-
cluded that even this degree of knowledge was insufficient
to impose liability on the state actors. Id. at 963.
No. 01-3318 11
Thus, while the DHSS social workers may have been
negligent in their background investigation of the prospec-
tive adoptive family, negligence is not enough to give rise to
§ 1983 liability. See County of Sacramento v. Lewis, 523
U.S. 833, 849 (1998). They were never alerted by anyone
or anything to either actual abuse or the possibility that
the Lewises would abuse these children while they
were under the state’s guardianship. If state actors are to
be held liable for the abuse perpetrated by a screened fos-
ter parent, under K.H. the plaintiffs must present evi-
dence that the state officials knew or suspected that abuse
was occurring or likely. 914 F.2d at 852.
Lastly, we decline the plaintiffs’ invitation to reconsider
the standard set forth in K.H. That standard does not
conflict with any decision of the Supreme Court or more
recent decision from this court. See, e.g., Estelle v. Gamble,
429 U.S. 97, 104-06 (1976) (setting forth the “deliberate
indifference” standard); Farmer v. Brennan, 511 U.S. 825,
837 (1994) (deliberate indifference requires knowing dis-
regard of risk to safety); Jones v. Simek, 193 F.3d 485, 490
(7th Cir. 1999) (“Farmer reaffirms the Gamble standard
and stresses that the test for deliberate indifference is a
subjective one: the prison official must act or fail to act
‘despite his knowledge of a substantial risk of serious
harm.’ ”). See also White by White v. Chambliss, 112 F.3d
731, 737 (4th Cir. 1997) (adopting K.H. standard); Yvonne
L. v. New Mexico Dep’t of Human Servs., 959 F.2d 883, 893
(10th Cir. 1992) (same). It is consistent with the approach
taken by the Eighth Circuit, and it reflects the fact that
liability should not be imposed lightly on state workers.
(We note as well that even if we were inclined to recon-
sider K.H., it would be virtually impossible to impose
§ 1983 liability on these particular defendants, because
they would have an iron-clad defense of qualified immu-
nity.)
12 No. 01-3318
IV
We likewise find it unnecessary to reach any of the other
contentions on this appeal, including in particular the
argument that the caseworkers gave undue weight to the
Lewises as prospective foster parents because of the In-
dian Child Welfare Act. In light of our decision to adhere
to the K.H. standard, the question whether the casework-
ers would have found a better family had they looked
beyond the field of prospective Native American parents
is not relevant. We AFFIRM the judgment of the district
court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-21-02