PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JANE DOE, by and through her
guardians Gregory and Michelle
Johnson; GREGORY JOHNSON;
MICHELLE JOHNSON; JOHN AND JANE
DOES, #1-10,
Plaintiffs-Appellants,
v.
SOUTH CAROLINA DEPARTMENT OF
SOCIAL SERVICES, SCDSS; DEBBY
THOMPSON; ELIZABETH G.
PATTERSON, Director; KIM S.
AYDLETTE, Director, No. 08-2161
Defendants-Appellees,
and
KAMERON SETH COX; TITSA M.
FLESCH; HEALTHY MINDS, LLC;
JOHN AND JANE ROES, #1-10;
MANAGERIAL ROES, #1-10;
SUPERVISORY ROES, #1-10;
CASEWORKER ROES, #1-10; FOSTER
PARENT ROES, #1-10,
Defendants.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(3:06-cv-03663-JFA; 3:07-cv-01629-JFA)
2 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
Argued: October 15, 2009
Decided: March 5, 2010
Before TRAXLER, Chief Judge, WILKINSON,
Circuit Judge, and HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by published
opinion. Chief Judge Traxler wrote the majority opinion, in
which Senior Judge Hamilton joined. Judge Wilkinson wrote
a separate opinion concurring in the judgment.
COUNSEL
ARGUED: Robert James Butcher, CAMDEN LAW FIRM,
PA, Camden, South Carolina, for Appellants. Andrew Linde-
mann, DAVIDSON & LINDEMANN, PA, Columbia, South
Carolina, for Appellees. ON BRIEF: William H. Davidson,
II, Katy A. Rice, DAVIDSON & LINDEMANN, PA, Colum-
bia, South Carolina, for Appellees.
OPINION
TRAXLER, Chief Judge:
Jane Doe, a minor child, and her adoptive parents, Gregory
and Michelle Johnson, brought this action under 42 U.S.C.A.
§ 1983 (West 2003), against Debby Thompson
("Thompson"), an Adoption Specialist with the South Caro-
lina Department of Social Services ("SCDSS"), alleging vio-
lations of their substantive due process rights under the
Fourteenth Amendment to the United States Constitution.
Plaintiffs brought additional state law claims against SCDSS
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 3
under the South Carolina Tort Claims Act ("SCTCA"), see
S.C. Code Ann. §§ 15-78-10 to 15-78-220 (1976), alleging
gross negligence on the part of SCDSS and its employees.
The district court granted summary judgment on the § 1983
claims in favor of Thompson based upon qualified immunity,
and summary judgment to SCDSS based upon discretionary
immunity. We affirm in part, vacate in part, and remand.
I.
On August 9, 1999, SCDSS received a report that four-
year-old Jane Doe and her eight-year-old brother, Kameron
Cox, were victims of sexual abuse. The report alleged that
Kameron had been sexually abused by his mother and that
Jane had been sexually abused by her mother’s boyfriend and
her maternal grandfather. The biological father of the children
was incarcerated in another state.
Upon receipt of the report, SCDSS officials took the chil-
dren into emergency protective custody. During the subse-
quent investigation, Kameron claimed that his mother had
sexually abused him, and denied knowledge of anyone sexu-
ally abusing Jane. Jane’s mother denied abuse but reported
that "Kameron had played with [Jane]’s private but she told
him not to do it anymore." J.A. 479. Ultimately, the sexual
abuse assessments and medical examinations were inconclu-
sive as to whether the children had been sexually abused.
However, the South Carolina Family Court found physical
neglect and granted SCDSS temporary custody of the chil-
dren. No findings were made regarding the sexual abuse alle-
gations. Physical custody of the children was initially
transferred to a maternal aunt, but she relinquished the chil-
dren to SCDSS’s legal custody in July 2000. They were
placed in a group home until September 2000 when they were
moved to their first state-approved foster home.
On June 18, 2001, Joy Bennett, the children’s therapist,
reported that Kameron had become increasingly angry and
4 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
depressed at his inability to return to his mother’s home. She
stated that he posed a threat to himself and to Jane, and she
recommended psychiatric hospitalization. However, she also
recommended that, in order to maintain the bond between
Kameron and Jane, the two ultimately should continue to be
placed together "if this c[ould] be done safely" for Jane. J.A.
436. According to the psychiatric records, Kameron had a his-
tory of depression, suicidal and homicidal thoughts, and had
become increasingly aggressive and hostile toward Jane.
Kameron blamed Jane for their being in foster care "because
she made statements that [their] mother, stepfather, and
maternal grandfather [had] sexually molested her," but
Kameron "d[id] not believe her allegations." J.A. 536. The
psychiatric records also included a history of sexual experi-
mentation by Kameron and Jane with each other, possible
sexual abuse of the children, and possible intergenerational
incest.
On May 30, 2001, the defendant Debby Thompson, an
employee of SCDSS, was assigned as the Adoption Specialist
for the children. On July 5, 2001, Kameron was discharged
from the hospital and placed in a foster home separate from
Jane. Thompson began visiting the children later that month,
but Kameron’s threats to Jane necessitated postponement of
recruitment efforts for a joint adoption of the siblings "until
a determination of the appropriateness of an adoptive place-
ment of [Jane] and Kameron together c[ould] be made." J.A.
493. On August 22, 2001, Bennett advised Thompson that
Kameron "ha[d] been a danger to [Jane] and she should be
protected," but that Bennett had "realistic hope that Kameron
c[ould] deal with his emotions and be safely reunited with
her." J.A. 439. She also noted that Jane "show[ed] some signs
of sexual abuse including . . . a history of trying to sneak into
Kameron’s bed, probably for comfort through sexual contact."
J.A. 440. Although the exact history of sexual abuse was
unclear, Bennett noted that it was "very likely that they ha[d]
engaged in inappropriate sexual encounters with adults and
with each other." J.A. 440. During this period, Jane also
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 5
began to exhibit acting-out behaviors of a sexual nature,
including overly affectionate behavior towards boys and men,
as well as anger and aggressiveness when she was frustrated.
On November 26, 2001, Jane was placed in foster care with
Bill and Pam Hamerick, where she could be seen by
Kameron’s therapist, Titsa M. Flesch, and have sibling visits
with Kameron, including some overnight visits on weekends
and holidays. On September 9, 2002, Kameron was placed in
the Hamericks’ home as well. By this time, SCDSS had filed
an action in family court seeking to legally terminate the
parental rights of the biological parents, in order to pursue a
joint adoption of the siblings. Following a contested proceed-
ing, the mother voluntarily relinquished her parental rights,
and the parental rights of the father were judicially termi-
nated. The family court granted "[c]ustody of the minor chil-
dren . . . to [SCDSS] with all rights of guardianship,
placement, care and supervision, including the authority to
approve medical treatment or educational plans, to secure
placement for the minor children and the sole authority to
consent to any adoption, with the authority to seek such rou-
tine and emergency medical care as [SCDSS] deems neces-
sary and in the best interests of said minor children." J.A. 316.
Plaintiffs Gregory and Michelle Johnson completed an
application for adoption in May 2002. The Johnsons
expressed their understanding that the "children [we]re in the
system because of abuse, neglect, etc.," and they stated that
they "fully underst[oo]d the therapy issues." J.A. 673. They
were willing to accept a child or children (including a sibling
group) with "mild/treatable" sexual abuse, J.A. 673, but not a
child who was "sexually aggressive" towards other children,
J.A. 672. In January 2003, Thompson presented a background
summary on Kameron and Jane to the Johnsons. Thompson
claims that the summary contained all of the information
available to her about the children, including the allegations
that they had been sexually abused. It stated that the children
had been removed from the birth home for allegations of sex-
6 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
ual abuse but that Jane had been inconsistent in her reports of
abuse, alternatively naming her birth mother, Kameron, her
maternal grandfather, and her mother’s boyfriend as having
been sexually inappropriate or abusive toward her. Kameron
had also been inconsistent at times, both denying and admit-
ting inappropriate contact with his mother. He denied knowl-
edge of any inappropriate contact between Jane and the
adults. In the end, the Johnsons were advised that SCDSS had
been unable to substantiate or rule out sexual abuse of either
child. However, the summary represented that "[t]here ha[d]
been no reports of any sexually inappropriate behavior from
Kameron since entering care" and that "[p]art of his therapy
ha[d] been to insure that he understands boundaries, good
touch-bad touch rules and appropriate social interactions."
J.A. 280 (emphasis added).
On February 28, 2003, Jane and Kameron were placed with
the Johnsons for prospective adoption. Approximately four
weeks after the placement, however, the Johnsons chose not
to proceed with the adoption of Kameron, and he was
removed from the Johnsons’ home. Among other things,
Kameron was believed to have inappropriately touched the
Johnsons’ biological son. Jane remained with the Johnsons
though, and her adoption was finalized on November 6, 2003.
Approximately one year later, Kameron admitted to his
therapist that he had sexually abused Jane prior to SCDSS’s
removal of them from the birth home. Kameron also claimed
to have sexually abused seven foster children while in foster
care, both before and after his placement with the Johnsons.
Kameron’s social worker notified the Johnsons that Kameron
had claimed to have had an inappropriate sexual relationship
with Jane prior to SCDSS’s taking custody of them, but Jane
told her therapist "that Kameron was lying and that they were
still having ‘sex’ until they moved in with [the Johnsons]."
J.A. 872. She also claimed that she told Thompson and Flesch
that Kameron had sexually abused her while she was with the
Hamericks and at other foster homes that she could not recall,
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 7
although she was inconsistent as to whom she told first.
According to Jane, Thompson "told her not to tell anyone or
they would never adopt her." J.A. 872. Thompson denies that
Jane made any such report to her. She claims that she received
no reports of any inappropriate behavior or contact between
Jane and Kameron occurring during her relationship with
Jane, and represents that she never observed any behavior
which would have led her to believe that Jane and Kameron
were having sexual or other inappropriate contact at that time.
Since the disclosure, Jane’s behavior has significantly dete-
riorated. According to the Johnsons, she cannot be left alone
or trusted, they are unable to obtain any help supervising her,
and they cannot leave her alone with other children for fear
that she will act out sexually. Among other things, she is
physically and sexually aggressive, violent towards the John-
sons and their biological children, and abusive to animals. Her
behavior has necessitated therapeutic placements outside the
home, and further care and treatment is believed to be indi-
cated.
The Johnsons subsequently filed suit on their own behalf,
and as parents and guardians of Jane, against Thompson.
They alleged under § 1983 that Thompson violated Jane’s
substantive due process rights under the Fourteenth Amend-
ment by placing her in foster care settings with Kameron
knowing that Kameron was sexually abusive toward Jane.
The Johnsons alleged that Thompson also violated their sub-
stantive due process rights by failing to fully disclose the sex-
ual history of Jane and Kameron prior to Jane’s adoption. The
Johnsons filed a second suit in state court against SCDSS,
pursuant to the SCTCA, alleging numerous state law claims,
including a claim of gross negligence on the part of SCDSS
employees in the placement and adoption process. This action
was removed to the district court and consolidated with the
federal action.1
1
A number of additional parties, known and unknown, were originally
named as defendants in both lawsuits. The only remaining claims on
8 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
Thompson moved for summary judgment, claiming that she
was entitled to qualified immunity from suit for the § 1983
claims. SCDSS also moved for summary judgment, claiming
that it was entitled to discretionary immunity from suit for the
state law claims under the SCTCA. The district court granted
the defendants’ respective motions for summary judgment on
all claims, and this appeal followed. We review the district
court’s decision to grant summary judgment to the defendants
de novo. See Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir.
2007).
II.
A.
Qualified immunity from § 1983 claims "protects govern-
ment officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or con-
stitutional rights of which a reasonable person would have
known.’" Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It
is intended to "balance[ ] two important interests — the need
to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties rea-
sonably." Id.
Claims to qualified immunity present a two-pronged
inquiry. The governmental official will be granted immunity
appeal, however, are the § 1983 substantive due process claims against
Thompson and the gross negligence claims against SCDSS. The Johnsons
also included as plaintiffs ten unnamed and unidentified children allegedly
sexually molested by Kameron while in foster care, but they have not cer-
tified the matter as a class action, identified these children, or demon-
strated that they have standing to bring the action on their behalf. To the
extent the Johnsons pursue these claims on appeal, we summarily affirm
their dismissal.
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 9
unless (1) "the facts that a plaintiff has alleged (see Fed. Rules
Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out
a violation of a constitutional right," Pearson, 129 S. Ct. at
815-16, and (2) "the right at issue was ‘clearly established’ at
the time of [the] alleged misconduct," id. at 816. However, it
is within our discretion to decide "which of the two prongs of
the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand."
Pearson, 129 S. Ct. at 818; see Hunsberger v. Wood, 570 F.3d
546, 552 (4th Cir. 2009).2
This case involves the important issue of whether and
under what circumstances a child who has been involuntarily
removed from her home by state social workers and know-
ingly placed in a dangerous foster care environment may state
a claim for damages under § 1983. Because we believe this
case will clarify and elaborate upon our prior jurisprudence in
important and necessary ways, we will first address the con-
stitutional rights of foster children in such circumstances prior
to addressing whether any such rights were clearly established
at the time of the alleged wrongdoing. See Pearson, 129 S. Ct.
at 818 (confirming that the Saucier "two-step procedure pro-
motes the development of constitutional precedent and is
especially valuable with respect to questions that do not fre-
quently arise in cases in which a qualified immunity defense
is unavailable").
2
At the time of the district court decision, the Supreme Court directive
was that courts address the first prong, and determine whether there was
a violation of a constitutional right, prior to turning to the second prong
to determine whether that right was clearly established at the time of the
alleged misconduct. See Saucier v. Katz, 533 U.S. 194, 201 (2001). This,
the Court reasoned, was "necessary to support the Constitution’s ‘elabora-
tion from case to case’ and to prevent constitutional stagnation." Pearson
v. Callahan, 129 S. Ct. 808, 816 (2009). In Pearson, however, the
Supreme Court held that "the Saucier procedure should not be regarded as
an inflexible requirement," and that courts may choose in appropriate cir-
cumstances to grant qualified immunity to state actors "on the ground that
it was not clearly established at the time [of the challenged acts] that their
conduct was unconstitutional." Id. at 813.
10 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
B.
The Due Process Clause of the Fourteenth Amendment bars
States from "depriv[ing] any person of life, liberty, or prop-
erty, without due process of law." U.S. Const. amend. XIV,
§ 1. The Clause "guarantees more than fair process." Troxel
v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion) (inter-
nal quotation marks omitted). It "also includes a substantive
component that provides heightened protection against gov-
ernment interference with certain fundamental rights and lib-
erty interests." Id. (internal quotation marks omitted); see
County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998)
(The Due Process Clause "cover[s] a substantive sphere as
well, barring certain government actions regardless of the
fairness of the procedures used to implement them." (internal
quotation marks omitted)); Love v. Pepersack, 47 F.3d 120,
122 (4th Cir. 1995) ("Substantive due process is a far nar-
rower concept than procedural; it is an absolute check on cer-
tain governmental actions notwithstanding the fairness of the
procedures used to implement them." (internal quotation
marks omitted)).
Here, Jane claims that Thompson violated her substantive
due process right to reasonable safety and security when
Thompson placed Kameron with Jane in foster care, knowing
that Kameron was sexually abusing Jane. At a minimum, she
asserts that Thompson knew or should have known that the
sexual abuse was or probably would be continuing and was
deliberately indifferent to the risk Kameron posed to her. The
district court rejected the claim, however, holding that Jane
had no substantive due process right to affirmative state pro-
tection from violence inflicted at the hands of Kameron, a pri-
vate actor, in the foster care setting. Accordingly, it held that
Thompson was entitled to qualified immunity from suit.
1.
As a general rule, "the Due Process Clause works only as
a negative prohibition on state action," Pinder v. Johnson, 54
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 11
F.3d 1169, 1174 (4th Cir. 1995) (en banc), and the state’s
"failure to protect an individual against private violence sim-
ply does not constitute a violation of [it]," DeShaney v. Win-
nebago County Dep’t of Soc. Servs., 489 U.S. 189, 197
(1989). "Its purpose was to protect the people from the State,
not to ensure that the State protected them from each other."
Id. at 196. Thus, it "serves ‘as a limitation on the State’s
power to act, not as a guarantee of certain minimal levels of
safety and security,’" Patten v. Nichols, 274 F.3d 829, 836
(4th Cir. 2001) (quoting DeShaney, 489 U.S. at 195), and
"does not require governmental actors to affirmatively protect
life, liberty, or property against intrusion by private third par-
ties," Pinder, 54 F.3d at 1174 (emphasis added); see Patten,
274 F.3d at 836 ("[T]he clause ‘confer[s] no affirmative right
to governmental aid, even where such aid may be necessary
to secure life, liberty, or property interests of which the gov-
ernment itself may not deprive the individual.’" (quoting
DeShaney, 489 U.S. at 196)). And, because "the Due Process
Clause does not require the State to provide its citizens with
particular protective services, it follows that the State cannot
be held liable under the Clause for injuries that could have
been averted had it chosen to provide them." DeShaney, 489
U.S. at 196-97.
In DeShaney, the state’s Department of Social Services
received several reports of suspected physical abuse of a
child, Joshua DeShaney, while he was in the custody of his
father. The state failed to intervene and Joshua was eventually
beaten and permanently injured by his father. Relying upon
the Supreme Court’s decisions in Estelle v. Gamble, 429 U.S.
97, 105 (1976) (holding that a state’s "deliberate indifference
to a prisoner’s serious illness or injury states a cause of action
under § 1983" for violation of the Eighth Amendment), and
Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (employing
the Fourteenth Amendment to hold that disabled persons who
are involuntarily committed to a state hospital retain "consti-
tutionally protected [liberty] interests in conditions of reason-
able care and safety"), Joshua and his mother sued the
12 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
department and its employees under § 1983, alleging that they
had similarly "deprived Joshua of his liberty interest without
due process of law . . . by failing to intervene to protect him
against a risk of violence at his father’s hands of which they
knew or should have known." DeShaney, 489 U.S. at 193.
Although noting that "in certain limited circumstances the
Constitution imposes upon the State affirmative duties of care
and protection with respect to particular individuals," id. at
198, the DeShaney Court held that the defendants owed no
such duty to Joshua. This was because in Estelle and Young-
berg the affirmative duty arose not from knowledge of any
particular danger or an intent to help, but rather from the
state’s act of taking the individual into its custody and care.
Taken together, [Estelle and Youngberg] stand only
for the proposition that when the State takes a person
into its custody and holds him there against his will,
the Constitution imposes upon it a corresponding
duty to assume some responsibility for his safety and
general well-being. The rationale for this principle is
simple enough: when the State by the affirmative
exercise of its power so restrains an individual’s lib-
erty that it renders him unable to care for himself,
and at the same time fails to provide for his basic
human needs — e.g., food, clothing, shelter, medical
care, and reasonable safety — it transgresses the
substantive limits on state action set by the Eighth
Amendment and the Due Process Clause. The affir-
mative duty to protect arises not from the State’s
knowledge of the individual’s predicament or from
its expressions of intent to help him, but from the
limitation which it has imposed on his freedom to act
on his own behalf.
Id. at 199-200 (citations and footnote omitted); see Patten,
274 F.3d at 841 ("[T]he Supreme Court in DeShaney made it
clear that an exception to the general no-duty-to-act rule
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 13
arises only if the state takes an individual into custody; if
there is no custodial relationship, then the state has no duty to
protect."); Pinder, 54 F.3d at 1175 ("Some sort of confine-
ment of the injured party — incarceration, institutionalization,
or the like — is needed to trigger the affirmative duty [to pro-
tect]. This Court has consistently read DeShaney to require a
custodial context before any affirmative duty can arise under
the Due Process Clause." (citation omitted)). Thus, "[i]n the
substantive due process analysis, it is the State’s affirmative
act of restraining the individual’s freedom to act on his own
behalf — through incarceration, institutionalization, or other
similar restraint of personal liberty — which is the ‘depriva-
tion of liberty’ triggering the protections of the Due Process
Clause, not [the State’s] failure to act to protect his liberty
interests against harms inflicted by other means." DeShaney,
489 U.S. at 200.
Joshua could not state a substantive due process claim
against the state officials because "the harms [he] suffered
occurred not while he was in the State’s custody, but while he
was in the custody of his natural father, who was in no sense
a state actor." Id. at 201. Furthermore, "[w]hile the State may
have been aware of the dangers that Joshua faced in the free
world, it played no part in their creation, nor did it do any-
thing to render him any more vulnerable to them." Id.
2.
The issue before us today, however, is whether a child who
has been involuntarily removed from her home by state offi-
cials for abuse or neglect, placed in the legal custody of the
SCDSS, and transferred to state-approved foster care by
SCDSS officials can state a substantive due process claim
against a state social worker for violations of her fundamental
right to personal safety and security analogous to that recog-
nized in Estelle for prisoners and in Youngberg for the invol-
untarily committed and, if so, what degree of culpability must
14 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
be demonstrated to subject the social worker to liability under
§ 1983.
As the DeShaney Court noted, several circuit courts had
already "held, by analogy to Estelle and Youngberg, that the
State may be held liable under the Due Process Clause for
failing to protect children in foster homes from mistreatment
at the hands of their foster parents." Id.; see, e.g., Taylor v.
Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987) (en banc)
(holding that a child involuntarily placed in a foster home
may state a cause of action under § 1983 for the state offi-
cial’s deliberate indifference to her right to safety); Doe v.
New York City Dep’t. of Soc. Servs., 649 F.2d 134, 145 (2d
Cir. 1981) (holding that "[d]efendants may be held liable
under § 1983 [for a child’s injuries suffered during foster
care] if they . . . exhibited deliberate indifference to a known
injury, a known risk, or a specific duty."). In such cases,
unlike in DeShaney, there would not be a mere "failure to act"
on the part of a state official to remove a child from a family
member, but rather the exercise of affirmative state action in
the form of involuntary removal and placement of the child in
a dangerous, foster care environment, i.e., a "restraint of per-
sonal liberty triggering the protections of the Due Process
Clause." DeShaney, 489 U.S. at 200. The DeShaney Court,
however, expressly declined to decide the question because,
unlike in these situations, the state had returned Joshua to the
custody of his father. See id. at 201 n.9 (declining to decide
whether a substantive due process claim could have been
brought "[h]ad 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").
Since DeShaney, additional circuits have also recognized
the right of a foster child to bring a substantive due process
claim where state officials have taken the affirmative action
of involuntarily removing the child from his home and plac-
ing him in a known, dangerous foster care environment, in
deliberate indifference to the child’s right to reasonable safety
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 15
and security. In K.H. ex rel. Murphy v. Morgan, 914 F.2d 846
(7th Cir. 1990), for example, the court distinguished
DeShaney and applied a custodial exception to recognize a
due process claim where a child was involuntarily removed
from the custody of his parents and placed by child welfare
workers with a foster parent the state knew or suspected to be
a child abuser:
This is not a "positive liberties" case, like
DeShaney, where the question was whether the Con-
stitution entitles a child to governmental protection
against physical abuse by his parents or by other pri-
vate persons not acting under the direction of the
state. The Supreme Court agreed with this court that
there is no such entitlement. Here, in contrast, the
state removed a child from the custody of her par-
ents; and having done so, it could no more place her
in a position of danger, deliberately and without jus-
tification, without thereby violating her rights under
the due process clause of the Fourteenth Amendment
than it could deliberately and without justification
place a criminal defendant in a jail or prison in
which his health or safety would be endangered,
without violating his rights either under the cruel and
unusual punishments clause of the Eighth Amend-
ment (held applicable to the states through the Four-
teenth Amendment) if he was a convicted prisoner,
or the due process clause if he was awaiting trial. In
either case the state would be a doer of harm rather
than merely an inept rescuer, just as the Roman state
was a doer of harm when it threw Christians to lions.
Id. at 848-49 (citations omitted); see Hutchinson ex rel. Baker
v. Spink, 126 F.3d 895, 900 (7th Cir. 1997) ("[O]nce the State
removes a child from her natural parents, it assumes at least
a rudimentary duty of safekeeping. It cannot place a child in
custody with foster parents it knows are incompetent or dan-
gerous." (citation omitted)); see also Nicini v. Morra, 212
16 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
F.3d 798, 808 (3d Cir. 2000) (en banc) ("[W]hen [a] state
places a child in state-regulated foster care, the state has
entered into a special relationship with that child which
imposes upon it certain affirmative duties" which, if attended
to in a manner deliberately indifferent to the safety of the
child, can give rise to liability under § 1983); Norfleet v.
Arkansas Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir.
1993) ("[A] special custodial relationship . . . was created by
the state when it took [a child] from his caregiver and placed
him in foster care" where the "child los[t] his freedom and
ability to make decisions about his own welfare, and must
rely on the state to take care of his needs."); Yvonne L. v. New
Mexico Dep’t of Human Servs., 959 F.2d 883, 893 (10th Cir.
1992) ("[C]hildren in the custody of a state ha[ve] a constitu-
tional right to be reasonably safe from harm" and "if the per-
sons responsible place children in a foster home or institution
that they know or suspect to be dangerous to the children they
incur liability if the harm occurs."); Meador v. Cabinet for
Human Res., 902 F.2d 474, 476 (6th Cir. 1990) (holding that
substantive "due process extends the right to be free from the
infliction of unnecessary harm to children in state-regulated
foster homes" where the complaint alleged that the state offi-
cials "were ‘deliberately indifferent’ to reports of abuse" in
the foster home).
3.
Relying upon a trilogy of cases discussed below, Thomp-
son contends that our circuit, in contrast to our sister circuits,
has answered DeShaney’s unresolved question in the negative
and would not recognize such a claim of deliberate indiffer-
ence in the foster care placement, and the district court "rejec-
t[ed] plaintiffs’ attempt to establish a custodial or foster care
exception to the DeShaney rule," even in the limited context
that we face today. J.A. 1004. While we agree with Thomp-
son’s alternative contention that any such right was not
clearly established at the time she made her placement deci-
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 17
sions in this case, we disagree that they foreclose our recogni-
tion of such a right in appropriate cases.
In Milburn v. Anne Arundel County Department of Social
Services, 871 F.2d 474 (4th Cir. 1989), a minor child who had
been voluntarily placed in foster care by his parents sustained
significant injuries which were reported by medical providers
to social services officials as suspected child abuse. After the
fourth such incident, the officials intervened and removed the
child from the foster home. Applying DeShaney, we held that
the child had no substantive due process right to affirmative
protection by the state. First, the state "by the affirmative
exercise of its power had not restrained the [child’s] liberty;
he was voluntarily placed in the foster home by his natural
parents." Id. at 476 (emphasis added). In addition, "the inju-
ries to the [child] did not occur while he was in the custody
of the State of Maryland, [but] rather while he was in the cus-
tody of his foster parents, who were not state actors." Id.
There being no affirmative exercise of the state’s power to
restrain the child’s liberty in the first instance, there could be
no corresponding duty or responsibility on the part of the state
officials to protect the child from harm by private parties. See
K.H., 914 F.2d at 849 (noting our decision in Milburn to be
"[c]onsistent with [its custodial] distinction," as Milburn "em-
phasize[d] the state’s lack of responsibility for a child’s vol-
untary placement by the natural parents in an abusing private
foster home"); cf. Walton v. Alexander, 44 F.3d 1297, 1303-
04 (5th Cir. 1995) (en banc) ("Since DeShaney was decided
. . . , we have followed its language strictly and have held
consistently that only when the state, by its affirmative exer-
cise of power, has custody over an individual involuntarily or
against his will does a ‘special relationship’ exist between the
individual and the state.").
In Weller v. Department of Social Services, 901 F.2d 387
(4th Cir. 1990), we held that a foster child could not maintain
a substantive due process claim against state agents who had
affirmatively removed the child from the home of his natural
18 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
father, upon allegations of abuse, where the child was imme-
diately transferred to the custody of his natural grandmother
and then to his natural mother. At no point was the child in
foster care, nor was there any prior indication that the family
members to whom the child was transferred posed any danger
to the child. We agreed "that DeShaney [was] applicable to
the extent that Maryland had no duty to provide [the child]
with protective services" in the first instance and held that
"the transfer of custody [from one family member to another]
did not make the State ‘the permanent guarantor’ of [the
child’s] safety." Id. at 392 (quoting DeShaney, 489 U.S. at
201). Also, as in Milburn, any actual physical harm that was
inflicted upon the child at the hands of his family members
"was not [harm] inflicted by the State." Id.
This brings us to the case of White ex rel. White v. Cham-
bliss, 112 F.3d 731 (4th Cir. 1997), and the one most analo-
gous to the case before us. In White, SCDSS officials
involuntarily removed Keena White, a minor child, from the
physical custody of her natural mother and placed her in an
approved foster home, where she later died from severe blows
to the head. The mother brought a § 1983 action alleging that
the SCDSS officials had a duty to protect Keena from abuse
after her placement in foster care and, in the alternative, had
been deliberately indifferent in their placement of Keena in
the foster home.
We rejected the plaintiff’s claim that there was a general
duty on the part of the SCDSS workers to protect the child
from abuse after she was placed with the foster family
because "children placed in foster care ha[ve] no federal con-
stitutional right to state protection" and "the state ha[s] no
affirmative constitutional obligation to protect individuals
against private violence." Id. at 737 (citing Milburn, 871 F.2d
at 476); see id. at 738 ("’[H]arm suffered by [the] child at the
hands of h[er] foster parents [wa]s not harm inflicted by state
agents,’" (quoting Weller, 901 F.2d at 392)). We further noted
that, as it pertains to this principle, Milburn was not limited
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 19
in "its application to situations where parents had voluntarily
placed their children in foster care." Id.
In this case, SCDSS takes the position that no protection
means no protection and that Fourth Circuit law allows
SCDSS officials to also escape § 1983 liability when they
affirmatively place a child in a known dangerous environ-
ment, including, for example, with a known child predator.
However, in White, we declined to dispose of the question of
whether a § 1983 action could be maintained against a social
worker who knowingly places a child in a dangerous foster
care environment, in deliberate indifference to the child’s fun-
damental right to personal safety and security. Instead, we
held that the factual record before us there fell short of dem-
onstrating any such deliberate indifference. See id. at 737
("Whatever the clearly established law on this question,
White’s claim simply falls short on the facts. The summary
judgment record contains no evidence to indicate that any of
the DSS defendants knew or suspected that the [foster par-
ents] were abusive foster parents when they placed Keena in
their care. Indeed, the [foster parents] were licensed by the
DSS, and White points to no evidence indicating that the [fos-
ter parents] had previously been accused of, or investigated
for, child abuse."). Such "[a] claim of deliberate indifference,
unlike one of negligence," we held, "implies at a minimum
that defendants were plainly placed on notice of a danger and
chose to ignore the danger notwithstanding the notice." Id.
We now hold that when a state involuntarily removes a
child from her home, thereby taking the child into its custody
and care, the state has taken an affirmative act to restrain the
child’s liberty, triggering the protections of the Due Process
Clause and imposing "some responsibility for [the child’s]
safety and general well-being." DeShaney, 489 U.S. at 200.
Such responsibility, in turn, includes a duty not to make a fos-
ter care placement that is deliberately indifferent to the child’s
right to personal safety and security. This does not mean that
social workers will be duty-bound to protect the child from
20 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
unknown harm or dangers. Nor "does [it] mean that every
child in foster care may prevail in a section 1983 action
against state officials based on incidental injuries or infre-
quent acts of abuse." Taylor, 818 F.2d at 797. Negligence, and
even carelessness, on the part of such officials that results in
harm to the child will not support a claim. But "where it is
alleged and the proof shows that the state officials were delib-
erately indifferent to the welfare of the child," liability may be
imposed. Id. Such "[a] claim of deliberate indifference, unlike
one of negligence, implies at a minimum that defendants were
plainly placed on notice of a danger and chose to ignore the
danger notwithstanding the notice." White, 112 F.3d at 737.
C.
Here, Jane was involuntarily removed from the custody of
her natural parents by affirmative state action and ultimately
placed in foster care approved by SCDSS. The state filed a
complaint in family court alleging abuse, sought emergency
and temporary custody and, ultimately, terminated the paren-
tal rights of her biological parents by judicial order. See S.C.
Code Ann. § 20-7-1576 ("An order terminating the relation-
ship between parent and child . . . divests the parent and the
child of all legal rights, powers, privileges, immunities,
duties, and obligations with respect to each other, except the
right of the child to inherit from the parent."). Thus, unlike the
children in DeShaney, Milburn and Weller, Jane was clearly
within the custody and control of the state social services
department when foster care placement decisions were made.
Accordingly, the state officials responsible for those decisions
had a corresponding duty to refrain from placing her in a
known, dangerous environment in deliberate indifference to
her right to personal safety and security.
We affirm the grant of summary judgment, however, under
the second prong of the qualified immunity inquiry. Although
our precedents do not foreclose a foster child’s claim that her
substantive due process right to personal safety and security
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 21
is violated by a foster care placement made in deliberate indif-
ference to a known danger, such a right was not clearly estab-
lished in this circuit at the time Thompson made her
placement decisions regarding Jane.
In determining whether there has been a violation of a con-
stitutional right, we must identify the right "at a high level of
particularity." Edwards v. City of Goldsboro, 178 F.3d 231,
251 (4th Cir. 1999). "In order for a right to be ‘clearly estab-
lished,’ the Supreme Court has instructed that ‘[t]he contours
of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.’"
White, 112 F.3d at 737 (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). "Although notice does not require that
the ‘very action in question has previously been held unlaw-
ful,’ it does mean that ‘in the light of pre-existing law the
unlawfulness must be apparent.’" Robles v. Prince George’s
County, 302 F.3d 262, 270 (4th Cir. 2002) (quoting Wilson v.
Layne, 526 U.S. 603 (1999) (internal quotation marks omit-
ted)).
"In determining whether a [constitutional] right was clearly
established at the time of the claimed violation, courts in this
circuit ordinarily need not look beyond the decisions of the
Supreme Court, this court of appeals, and the highest court of
the state in which the case arose." Edwards, 178 F.3d at 251
(internal quotation marks and alteration omitted); see Wilson
v. Layne, 141 F.3d 111, 114 (4th Cir. 1998) (en banc) (A law
is "clearly established" when "the law has been authoritatively
decided by the Supreme Court, the appropriate United States
Court of Appeals, or the highest court of the state." (internal
quotation marks omitted)).
For the reasons discussed above, our precedents in Milburn,
Weller, and White do not alone foreclose Jane’s substantive
due process claim. But neither did they, or any other prece-
dent in the Supreme Court or this court, clearly establish that
such a claim might have existed at the time of the placements.
22 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
And while we disagree with the district court’s interpretation
of DeShaney and our precedents, we do not view the interpre-
tation to have been unreasonable. "[I]f judges . . . disagree on
a constitutional question, it is unfair to subject [government
officials] to money damages for picking the losing side of the
controversy." Wilson, 526 U.S. at 618; see Hogan v. Carter,
85 F.3d 1113, 1116 n.3 (4th Cir. 1996) (en banc) ("Although
there might be instances where a reasonable jurist, but not a
reasonable official, would consider particular conduct viola-
tive of clearly established law, if a reasonable jurist would not
have viewed the defendant’s action as violative of clearly
established law, then it necessarily follows that the reasonable
officer likewise would not have viewed that conduct as viola-
tive of clearly established law."); Swanson v. Powers, 937
F.2d 965, 968 (4th Cir. 1991) ("Since qualified immunity is
appropriate if reasonable officers could disagree on the rele-
vant issue, it surely must be appropriate when reasonable
jurists can do so." (citation omitted)).
Here, when the placement decisions were made, there was
no authority from the Supreme Court or this circuit that would
have put Thompson on fair notice that her actions violated
Jane’s substantive due process rights. On the contrary, given
the precedents that did exist in our circuit on the issue of affir-
mative state protection of foster children, we think it quite
reasonable for jurists and officials to have believed that we
would have answered the DeShaney question in the negative
and foreclosed the existence of such a right. In sum, because
it would not have been apparent to a reasonable social worker
in Thompson’s position that her actions violated the Four-
teenth Amendment, she is entitled to qualified immunity.3
3
Because it is unnecessary to our disposition of this case, we decline to
decide whether the record contains sufficient, admissible evidence to sup-
port Jane’s claim that Thompson’s decision to reunite Jane and Kameron
in foster care rose to the level of deliberate indifference.
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 23
III.
We turn briefly now to the Johnsons’ § 1983 claim that
Thompson violated their substantive due process rights by
placing Jane and Kameron in their home without fully dis-
closing Jane’s history of sexual abuse and sexual aggressive-
ness. The Johnsons acknowledge that the background
summary presented to them by Thompson related some of this
history. However, they assert that Thompson failed to disclose
much of the history and reassured them that no inappropriate
sexual behavior had occurred between the children, leading
them to believe that the more serious allegations were unsub-
stantiated. They assert that had they known of the incest, and
of Jane’s sexually aggressive behavior, they would not have
accepted Jane for prospective adoption or finalized her adop-
tion. Thompson asserts that she presented all known informa-
tion to the Johnsons and that she received no reports of
inappropriate behavior between the children during her rela-
tionship with Jane.
The district court held that prospective adoptive parents
have no substantive due process right to the disclosure of a
child’s history of sexual abuse and that Thompson was enti-
tled to qualified immunity. We agree. The Johnsons have
pointed to no authority from the Supreme Court, this court or,
for that matter, any circuit court of appeals granting prospec-
tive adoptive parents a substantive due process right to "full
disclosure" about a child under consideration and certainly no
"clearly established" authority which would have put Thomp-
son on notice that she was violating any such right. Accord-
ingly, we affirm the grant of summary judgment on this claim
as well.
IV.
The plaintiffs’ final claim is that the district court erred in
granting summary judgment to SCDSS on their state law
24 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
claim for gross negligence on the part of the SCDSS officials
who handled Jane’s foster care placements and adoption.
In the state court action, the plaintiffs originally asserted
claims for gross negligence, assault and battery, intentional
infliction of emotional distress/outrage, negligent supervision,
negligent training, false imprisonment, and premises liability.
The district court dismissed all claims, holding that the deci-
sions made by the SCDSS employees were discretionary in
nature, entitling SCDSS to discretionary immunity under
§ 15-78-60(5) of the SCTCA.
The SCTCA constitutes the exclusive remedy for torts
allegedly committed by employees of state agencies. See S.C.
Code Ann. § 15-78-70(a). Under the Act, a governmental
entity, such as SCDSS, is subject to liability for torts "in the
same manner and to the same extent as a private individual
. . . ." S.C. Code Ann. § 15-78-40.4 However, the Act is a lim-
ited waiver of governmental immunity from suit and contains
a list of exceptions to the waiver of immunity, including an
exception for discretionary acts by the entity or its employees.
Specifically, under § 15-78-60(5), "[t]he governmental entity
is not liable for a loss resulting from . . . the exercise of dis-
cretion or judgment by the governmental entity or employee
or the performance or failure to perform any act or service
which is in the discretion or judgment of the governmental
entity or employee." Id.
Under South Carolina law, discretionary immunity is nor-
mally "contingent on proof that the [governmental entity],
faced with alternatives, actually weighed competing consider-
ations and made a conscious choice" to act. Niver v. South
4
Because the actions complained of were taken by governmental
employees acting within the course and scope of their employment, the
district court correctly noted that SCDSS should be substituted as the party
defendant for the individual defendants. See S.C. Code Ann. § 15-78-
70(c).
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 25
Carolina Dep’t of Highways & Pub. Transp., 395 S.E.2d 728,
730 (S.C. Ct. App. 1990). "[T]he governmental entity must
show that in weighing the competing considerations and alter-
natives, it utilized accepted professional standards appropriate
to resolve the issue before them." Foster v. South Carolina
Dep’t of Highways & Pub. Transp., 413 S.E.2d 31, 35 (S.C.
1992). Generally speaking, the SCTCA must be liberally con-
strued in favor of the governmental defendant. See Faile v.
South Carolina Dep’t of Juvenile Justice, 566 S.E.2d 536, 540
(S.C. 2002). However, "[t]he burden of establishing a limita-
tion upon liability or an exception to the waiver of immunity
is upon the governmental entity asserting it as an affirmative
defense." Niver, 395 S.E.2d at 730.
SCDSS asserts that it met its burden of establishing appli-
cation of the discretionary acts exception to the waiver of
immunity under S.C. Code Ann. § 15-78-60(5), because its
employees relied upon professional standards when making
the discretionary decision to place the children together and
pursue their adoption as a sibling group. The district court
agreed and held that SCDSS was entitled to discretionary
immunity.
On appeal, the plaintiffs contend that, even if the majority
of the state law claims were properly dismissed, the gross
negligence claim was not because § 15-78-60(25) of the
SCTCA excepts gross negligence from the normal application
of discretionary immunity under § 15-78-60(5). S.C. Code
Ann. § 15-78-60(25) provides that "[t]he governmental entity
is not liable for a loss resulting from . . . responsibility or duty
including but not limited to supervision, protection, control,
confinement, or custody of any student, patient, prisoner,
inmate, or client of any governmental entity, except when the
responsibility or duty is exercised in a grossly negligent man-
ner." Id. (emphasis added).
The South Carolina Supreme Court has held that "[s]ection
15-78-60(25) provides an exception to [discretionary] immu-
26 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
nity where the governmental entity exercises its responsibility
or duty in a grossly negligent manner" and that "Section 15-
78-60(5) must be read in light of this exception. If discretion
is exercised in a grossly negligent manner, the exception to
the normal rule of immunity applies." Jackson v. South Caro-
lina Dep’t of Corr., 390 S.E.2d 467, 469 (S.C. Ct. App. 1989)
(per curiam). It is unclear whether the Johnsons made this
precise argument below, and the district court order does not
separately or explicitly address the question of whether
SCDSS is entitled to discretionary immunity from liability for
the gross negligence claim. However, it does appear that
South Carolina may recognize an exception to the grant of
discretionary immunity where state officials exercise a duty to
supervise, protect, control, confine, or maintain foster chil-
dren "in a grossly negligent manner." Id.
Under the circumstances, we believe the best course is to
vacate the grant of summary judgment on the state law claim
for gross negligence and remand for the district court’s con-
sideration of the applicability of § 15-78-60(25) or, if deemed
appropriate given our affirmance of summary judgment as to
the federal claims, the propriety of remanding the state law
claim back to the state court for its determination.5
V.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment as to all claims asserted under
§ 1983 against Thompson. We vacate the grant of summary
5
As the district court observed, the presentation of the claims below has
been somewhat unclear. However, the claim for gross negligence asserted
against SCDSS is contained solely within the state court complaint, which
was removed to the district court and consolidated with the federal court
action. Although the state court complaint also contained some federal
claims, Thompson was not a named defendant. Accordingly, our decision
today affirms the grant of summary judgment as to all claims in the federal
court complaint and all but the state law claim for gross negligence in the
state court complaint.
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 27
judgment as to the state law claim for gross negligence
against SCDSS, and remand that claim for further consider-
ation.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
WILKINSON, Circuit Judge, concurring in the judgment:
I agree with the affirmance of the grant of summary judg-
ment to Thompson on all federal claims.* Maj. Op. at 26. I
agree also with the vacatur of summary judgment and remand
on the state claim, with explicit permission for the district
court to further remand those claims back to state court. Maj.
Op. at 26.
State court is the place where claims such as these should
be heard. We should not further constitutionalize this
intensely domestic area of the law. Every tort committed in
this country by some public actor was never meant to be a
matter of constitutional import. See Paul v. Davis, 424 U.S.
693, 701 (1976).
I disagree with the view that the Constitution imposes upon
states a "duty to protect" children from harm by non-state
actors in foster homes. Maj. Op. at 19-20. Such a holding is
appealing in rhetoric and harmful in practice. The majority’s
rule constitutes an unnecessary expansion of substantive due
process that, however well-intentioned, will visit real misfor-
tune upon abused and neglected children. The creation of this
federal cause of action is not merely a misadventure in consti-
tutional theory but a real-life loss for those most in need of
help.
*Specifically, I concur in the majority’s view that, at the very least,
qualified immunity is appropriate here on plaintiffs’ cause of action for
failure to protect, Maj. Op. at 20, and in the majority’s view that there is
no federal cause of action for failure to disclose. Maj. Op. at 23.
28 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
I.
Faced with the wrenching allegations of this case, it is
understandably tempting to rush to Jane’s rescue and some-
how right whatever wrongs were perpetrated against her. I
certainly share the majority’s sympathy for any child subject
to sibling sexual or physical abuse. However, I fear that the
legal rule established, ironically and tragically, will have the
exact opposite effect of that which is intended. Instead of
helping children escape the desperate environment of abuse
and neglect, it likely will hinder them in doing so. It will
create a perverse set of incentives that will deter states and
foster families from providing helpless children with the
assistance they need.
More specifically, the new substantive due process right
fashioned by the majority will lead to a combination of two
separate but equally devastating effects: first, it will discour-
age states from taking legal custody of children in the first
place, and second, it will discourage potential foster parents
from becoming foster parents. Both outcomes disadvantage
the countless children beaten, molested, or abandoned by their
biological families—children who desperately need the safe
haven provided by state custody and offered by willing foster
families. In short, the "duty to protect" may well discourage
protection and, ultimately, encourage harm.
A.
The first potential result of today’s decision is to dissuade
states from assuming legal custody of children altogether. As
DeShaney made clear, and as the majority admits, if a state
avoids taking custody of a child, it cannot be held legally
responsible for harm suffered by the child, even if the state
knew about the harm and stood by to watch. DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 201
(1989); Maj. Op. at 12-13. A "duty to protect" arises, if at all,
"only if the state takes an individual into custody; if there is
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 29
no custodial relationship, then the state has no duty to pro-
tect." Patten v. Nichols, 274 F.3d 829, 841 (4th Cir. 2001).
By contrast, if a state takes legal custody of a child, it now
potentially faces steep liability. Before this decision, a state
taking custody of a child from her biological parents, against
the parents’ wishes, already risked one form of litigation: a
section 1983 suit by the biological parents for a violation of
their substantive due process rights to "retain custody over
and care for their children, and to rear their children as they
deem appropriate." Jordan ex rel. Jordan v. Jackson, 15 F.3d
333, 342 (4th Cir. 1994) (citations omitted). Now, after this
decision, a state taking custody of a child from her biological
parents, against the parents’ wishes, is subject to a second
form of litigation: a section 1983 suit by the child herself, per-
haps brought many years after the initiation of custody, for a
violation of the child’s substantive due process rights to
"safety and general well-being." Maj. Op. at 19 (quoting
DeShaney, 489 U.S. at 200). By piling on this additional
cause of action, the majority has littered the path to protecting
children with section 1983 landmines.
Thus, in deciding whether to assume custody of a child,
states are faced with two possible choices: allow the child to
continue to suffer, with no accompanying risk of liability, or
rescue the child and quite possibly defend against two law-
suits. It doesn’t take a Law and Economics scholar to figure
out how these prospects will affect rational state actors. The
majority’s "duty to protect" essentially rewards states for the
exact opposite: for not protecting and for doing nothing. As
we have previously recognized, "[i]f section 1983 liability
attaches too readily to removal and placement decisions, the
course of public agencies would invariably become one of
inaction, thus leaving children in abusive environments."
White ex rel. White v. Chambliss, 112 F.3d 731, 736 (4th Cir.
1997). The danger of deterrence in this context is particularly
acute. In the case of law enforcement, any deterrent effect
caused by section 1983 suits is often mitigated by the inevita-
30 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
ble public outcry over crime gone unaddressed. In the case of
abused and neglected children, however, public outrage is
often absent, since abuse occurring to the defenseless behind
closed doors is typically invisible to public view.
We never learn, of course, precisely when the threat of lia-
bility produces inaction. The failure of agencies to take action
never hits the judicial radar in quite the same manner as
actions allegedly gone awry. But stacking the legal deck in
the direction of inaction surely carries costs of its own. The
skewing of incentives toward inaction can only harm those
children who are badly mistreated by their biological families
and who badly long to escape their hapless home surround-
ings. I need not detail the physical violence, sexual abuse,
substance addiction, or outright abandonment and neglect that
befall young children at the hands of those who should love
them most. These sad stories are familiar to us all. See, e.g.,
DeShaney, 489 U.S. at 191-93.
For these children, the threat comes not from the state’s
assumption of custody but from the state’s refusal to assume
custody. A social worker may sometimes seem about as popu-
lar as a tax collector, but sometimes that same social worker
is a child’s only lifeline, her sole hope of escaping a perfectly
brutal and life-scarring state. By slamming social workers
with multiple prospects for substantive due process suits, the
majority’s opinion discourages them from exercising custody
and encourages them to leave children "defenseless in the face
of physical abuse and brutality." White, 112 F.3d at 736.
This case illustrates the perils of a rule that discourages
states from taking custody of children. Whatever SCDSS
might or might not have done wrong once it removed Jane
from her home, no one contends that SCDSS should have left
her there. Jane’s biological mother neglected her, as the South
Carolina Family Court determined after a probable cause
hearing, and allegedly sexually abused her; Jane’s biological
father was incarcerated; and moreover, Jane’s brother alleg-
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 31
edly sexually abused her in their biological home even before
he allegedly sexually abused her in foster homes. Thus, while
it is all too easy to shovel opprobrium on SCDSS for its
alleged shortcomings and make it the scapegoat for a terribly
sad set of circumstances, it is worth remembering that the
agency did not create the dangers of abuse or neglect. Those
dangers were present long before SCDSS came on the scene,
and ameliorating them is often no easy or simple task. But
leaving the child to her fate is not the answer, and I respect-
fully protest the creation of multiple causes of action that
encourage agencies to do just that.
B.
The majority’s approach is likely to have a second and sim-
ilarly unfortunate effect: causing some who would otherwise
choose to become foster parents to abandon their plans. If and
when states do decide to assume legal custody, they will now
need to be more on guard than ever against section 1983 suits,
and in an effort to fulfill their new "duty to protect," states
may become overly intrusive into the foster family unit. To be
sure, some level of supervision is necessary. But to ensure
that foster parents are not even unwittingly laying the basis
for a later section 1983 action, states may go overboard,
checking in on foster children in frequent, unexpected, incon-
venient, and invasive visits to foster homes. States may sub-
ject foster parents to an onslaught of prying questions about
their private lives. Further, lest they later face accusations of
a constitutional nature, years after the fact, states may feel
compelled to micro-manage the foster parenting process, dic-
tating basic choices about diet, hygiene, education, activities,
schedule, and interactions with peers—choices that are nor-
mally left to parents.
This is all contrary to the basic purpose of the Due Process
Clause, which "was to protect the people from the State, not
to ensure that the State protected them from each other."
DeShaney, 489 U.S. at 196. Instead of protecting foster chil-
32 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
dren from the state, the majority uses the Due Process Clause
to require states to protect foster children from other foster
children, including, as here, their own biological siblings.
Maj. Op. at 19-20. Leaving aside the fact that managing sib-
ling relationships is among the foremost of parental duties,
this rule might, at least on the margins, induce a state into
deliberately placing siblings in different foster homes, just to
be safe. Of course, there are undoubtedly cases in which we
might want states to separate siblings, and if the facts alleged
in this case turn out to be true, this case might be one of them.
However, there are undoubtedly many other cases in which
we would not want to skew legal incentives toward separating
siblings. Children removed from their biological homes have
already endured one significant dislocation, and we should
not maximize the disruption of what remains of their family
by placing law on the side of pulling them apart from their
brothers and sisters.
For SCDSS, the only way to forestall a suit over whether
an initial foster placement was good or bad is to continually
monitor its consequences. But who would want to remain a
foster parent under such a regime? The increased state intru-
siveness encouraged by the majority’s decision will again not
work to the advantage of children. Although such heightened
oversight may ferret out abuse by foster parents in a few
cases, it is just as likely, and probably more so, to deter many
fine individuals from ever agreeing to become foster parents
in the first place. Although foster parents and biological par-
ents do not share identical rights, they share similar purposes.
As the Supreme Court has noted:
"[T]he importance of the familial relationship, to the
individuals involved and to the society, stems from
the emotional attachments that derive from the inti-
macy of daily association, and from the role it plays
in ‘promot(ing) a way of life’ through the instruction
of children . . . . No one would seriously dispute that
a deeply loving and interdependent relationship
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 33
between an adult and a child in his or her care may
exist even in the absence of blood relationship. At
least [in certain cases], it is natural that the foster
family should hold the same place in the emotional
life of the foster child, and fulfill the same socializ-
ing functions, as a natural family."
Smith v. Org. of Foster Families for Equality & Reform, 431
U.S. 816, 844 (1977) (citations omitted). To be effective, fos-
ter parents need some freedom in deciding how to raise their
children and need to bond with their children away from the
state’s watchful eye. If agencies fearful of federal "duty to
protect" suits are constantly making suspicion-laden inquiries
and trying to direct decisions best made by parents, the satis-
factions of foster parenting cannot be enhanced. And by mak-
ing it less appealing to become a foster parent, fewer
individuals will volunteer. Without willing foster families,
children who are abused by their biological families will be
increasingly deprived of a substitute home in which to find
sanctuary.
The majority’s analysis further works to put off potential
foster parents by painting foster homes in an unfortunate light.
The majority concludes that a state’s removal of a child from
her biological home is an exercise of custody sufficient to
trigger the "duty to protect," insofar as it deprives the child of
liberty in a manner "analogous to that recognized in Estelle
for prisoners and in Youngberg for the involuntarily commit-
ted." Maj. Op. at 13-14. Indeed, the majority believes that the
state’s custodial relationship continues even after the state has
placed a child in the care of foster families. Maj. Op. at 13-14.
Any comparison of the foster home environment to that of
prisons and mental health institutions for substantive due pro-
cess purposes is misplaced. A foster home is not a prison; a
child therein is not "in custody" in the sense that inmates are;
and such an analogy is a poor foundation for an expansion of
substantive due process. Foster parents, who are rarely state
34 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
actors, see Milburn v. Anne Arundel County Dep’t of Soc.
Servs., 871 F.2d 474, 479 (4th Cir. 1989), would hardly find
it flattering to learn that their efforts at raising children were
being analogized by courts to those of prison wardens and
mental health superintendants. While wardens and superinten-
dents provide valuable functions, most foster parents
approach their responsibilities in a different spirit. By extend-
ing custody to the case at bar, the majority has drifted far
afield from the context of physical confinement envisioned by
Estelle and Youngberg. Those cases use words such as "incar-
ceration" and "institutionalization" to describe actionable
physical restraints, see DeShaney, 489 U.S. at 200, terms
which are singularly inapposite to the foster home setting. In
expanding the concept of custody in this fashion, the majority
has misapprehended the nature of foster parents’ services, all
the while risking a variety of untoward effects.
The majority attempts to lull us into a false sense of secur-
ity with its ruling that the state must have acted with "deliber-
ate indifference" in its placement decisions in order for
section 1983 liability to attach. Maj. Op. at 20. Under this
standard, the majority reassures us, social workers will not be
liable for "unknown harm or dangers" or every time a child
suffers "incidental injuries or infrequent acts of abuse." Maj.
Op. at 20 (citations and internal quotations omitted). There-
fore, in theory, states should fear liability only in those cases
where they have acted in a particularly blameworthy manner.
But these words are of little comfort. Standards of review
are regrettably all too often in the eye-of-the-beholder. And
words such as "incidental," "infrequent," and even "unknown"
(which slips into "should have known") are by their nature
elastic and at best imperfect protection against even ground-
less litigation. Thus, in practice, states will be deterred both
from taking custody of abused children and encouraged to
intrude upon foster families to the detriment of that unit, not
because such decisions were dictated by their merits, but
because of a threat of future liability. The mere threat of liti-
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 35
gation is enough to give officials pause, because even when
state workers are ultimately absolved, litigation takes a toll.
By diverting government officials from their duties, litigation
"exacts heavy costs in terms of efficiency and expenditure of
valuable time and resources," Ashcroft v. Iqbal, 129 S.Ct.
1937, 1953 (2009), and potentially even "deter[s] . . . able cit-
izens from acceptance of public office," or in this case social
work. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).
To say the Constitution of the United States allows us to
court these consequences, or even to flirt with the unpredict-
ability of such serious harms, betrays an inflated conception
of the federal judicial role. It is the majority’s mistaken view
of the boundaries of our function that I shall address in the
next section and with which I also respectfully take issue.
II.
Law exists in part to guard against the overreaching of pub-
lic authority, and from that general purpose the life-tenured
federal courts are not exempt. When the many cautionary
maxims of restraint are toppled like dominos, the chances of
judicial miscalculation exponentially increase. The majority’s
discovery of a constitutional "duty to protect" is badly mis-
guided. But even if it were not—even if it were a great idea
—we should not indulge in its creation. Federal courts simply
do not have a roving warrant to adopt whatever policies they
believe to be beneficial, all in the name of substantive due
process. The project of creating such a duty should be left to
the states, via statutes or the common law of tort. It does not
belong to the federal government, via the Constitution. In cre-
ating this new "duty to protect," the majority commandeers a
role traditionally—and for good reason—entrusted to state
legislatures.
A.
To begin, by federalizing the "duty to protect," the majority
trespasses on the most traditional of state roles. The core legal
36 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
question in this case—who may be held liable for physical
and psychological harm inflicted by one foster child upon
another foster child—is essentially one of tort and domestic
relations law. Both legal realms have historically and justifi-
ably been reserved to the states. Decisions in these areas
require weighing a number of competing policy consider-
ations. Deciding whether and to what extent to impose a "duty
to protect," for example, demands a delicate balancing of the
interests of children, foster parents, biological parents, and
states. Others have devoted far more thought to these hard
problems than we ever could. Given their experience with,
and acquired expertise over, matters of tort and family law,
states are better suited than the federal government to make
such intricate determinations. As the Supreme Court
explained, the "host of policy choices" implicated in cases
such as this one "must be made by locally elected representa-
tives, rather than by federal judges interpreting the basic char-
ter of Government for the entire country." Collins v. City of
Harker Heights, 503 U.S. 115, 129 (1992).
Indeed, most states have made such policy choices, enact-
ing statutes addressing whether and when to provide recourse
to children injured while in state custody or in the care of fos-
ter parents. South Carolina is one such state. See S.C. Code
Ann. § 15-78-70. I run the risk of length in describing its
efforts, but that is only to contrast it with the brief and epi-
sodic nature of the majority’s federal judicial foray. The
South Carolina Tort Claims Act (SCTCA) is a comprehensive
statutory scheme, which covers a breadth of situations in
which an individual might be harmed by a state agency. S.C.
Code Ann. § 15-78-10 et seq. It exhaustively delineates the
circumstances in which a state agency, such as the South Car-
olina Department of Social Services (SCDSS), see Joubert v.
S.C. Dep’t of Soc. Servs., 341 S.C. 176 (S.C. App. 2000), may
be held liable for torts. Not surprisingly, plaintiffs brought
suit under the SCTCA as well as under 42 U.S.C. § 1983.
South Carolina’s statute begins with a baseline rule that
state agencies may be liable for torts to the same extent as pri-
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 37
vate individuals. S.C. Code Ann. § 15-78-40. It then creates
certain exceptions to the general rule, providing immunity in
instances where an agency employee exercises discretion.
S.C. Code Ann. § 15-78-60(5). The immunity, however, does
not attach where the agency employee is guilty of "gross
negligen[ce]." S.C. Code Ann. § 15-78-60(25). The SCTCA
then fills in missing pieces with specific provisions address-
ing, for example, the statute of limitations, S.C. Code Ann.
§ 15-78-110, appropriate remedies and damages caps, S.C.
Code Ann. § 15-78-120, and implications of state liability
insurance. S.C. Code Ann. § 15-78-140, -150, -160.
When the South Carolina legislature has not spoken, the
South Carolina courts have stepped up interstitially. See, e.g.,
City of Hartsville v. S.C. Mun. Ins. & Risk Financing Fund,
382 S.C. 535 (2009) (discussing proper burden of proof under
the SCTCA); Faile v. S.C. Dep’t of Juvenile Justice, 350 S.C.
315 (2002) (discussing meaning of "gross negligen[ce]" under
SCTCA); Jensen v. Anderson County Dep’t of Soc. Servs.,
304 S.C. 195 (1991) (discussing whether SCDSS’s decision
regarding whether to investigate a report of child abuse was
"discretionary"); Varn v. S.C. Dep’t of Highways & Public
Transp., 311 S.C. 349 (S.C. App. 1993) (per curiam) (discuss-
ing whether a court can award costs of litigation under the
SCTCA). Moreover, SCDSS has further established an exten-
sive set of policies that touch every aspect of a child’s care,
developing numerous manuals to steer its many decisions
affecting children, biological families, foster families, and
adoptive families. See SCDSS, Manuals, http://dss.sc.gov/
content/library/manuals/index/aspx. Its manual on "Foster
Care," for example, is 180 pages of detailed guidelines
regarding such matters as intake procedures, foster children
with special needs and health concerns, appropriate levels of
ongoing supervision of children in foster care, and decisions
regarding whether and when to remove children from foster
care. See id.
All in all, the scheme is quite a comprehensive one, making
all the more puzzling the majority’s intervention in this area.
38 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
As the majority acknowledges, the South Carolina legislature
intended its statute to be "the exclusive remedy for any tort
committed by an employee of a governmental entity." S.C.
Code Ann. § 15-78-70(a); Maj. Op. at 24. Yet the majority
nonetheless provides an additional, federal remedy for torts
committed by employees of state government entities. Maj.
Op. at 14. The majority does so without ever telling us what
deficiency in South Carolina law or practice has led it to inter-
vene with a cause of action all its own. In fact, the majority
says that SCDSS employees may be liable when they act with
"deliberate indifference" to foster care placements. Maj. Op.
at 14. This standard seems a rough approximation of the
"gross negligen[ce]" standard, and South Carolina has already
acted to deny immunity in cases where agency employees are
grossly negligent. S.C. Code Ann. § 15-78-60(25).
Thus, the sole purpose of the majority’s cause of action, it
would seem, is not to correct any identified deficiencies in
state law but simply to allow plaintiffs access to federal
courts, where federal judges may fashion over time their sepa-
rate sets of policies which may converge or diverge from
South Carolina’s own legal scheme. Moreover, the basis for
the intrusion is none other than substantive due process,
which unlike its procedural cousin, limits the range of options
available not only to South Carolina but to every state in this
circuit in balancing the claims of families, children, and those
state agencies charged with protecting their welfare.
To make matters worse, the majority’s intrusion is
undertaken pursuant to Pearson v. Callahan, 129 S.Ct. 808
(2009), which modified the Supreme Court’s earlier pro-
nouncements in Saucier v. Katz, 533 U.S. 194 (2001), to
make unnecessary a federal declaration of rights in cases,
such as this one, where qualified immunity is available to
state actors and where the declaration can have no conceiv-
able effect on the outcome of the case or controversy. Among
its reasons for modifying Saucier, the Supreme Court noted
that gratuitous proclamations of constitutional rights "may
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 39
create a risk of bad decisionmaking" and "depart[ ] from the
general rule of constitutional avoidance and run[ ] counter to
the older, wiser judicial counsel not to pass on questions of
constitutionality . . . unless such adjudication is unavoidable."
Pearson, 129 S.Ct. at 820, 821 (citations and internal quota-
tions omitted). Pearson’s cautionary signals were sent for
good reason, namely to deflect advisory and ill-advised judi-
cial ventures into policy, which, with all respect, is what we
have here.
In this case, Jane may in fact be entitled to recovery under
the South Carolina statute—an issue which appropriately may
be litigated in state court. See Maj. Op. at 26. And perhaps
Jane is not entitled to relief, either because the facts do not
develop in Jane’s favor or because South Carolina may not
allow recovery as a matter of law. But even if Jane cannot
recover under state law—and perhaps especially if Jane can-
not recover under state law—this court should not intervene
to override that statutory result by allowing her to recover
under federal constitutional tort. Any state court outcome may
very well reflect a deliberate legislative decision regarding the
relative merits of enhanced state liability versus the relative
merits of permitting social workers some judgmental latitude
in promoting an abused child’s welfare and best interest. We
should not assume that our federal rule is ipso facto better
than the state’s or that the South Carolina courts and legisla-
ture would gratefully welcome this court’s recalibration of the
balance they have struck. In fact, in enacting the SCTCA, the
South Carolina General Assembly expressly "recognize[d] the
potential problems and hardships each governmental entity
may face being subjected to unlimited and unqualified liabil-
ity for its actions," and therefore decided upon a system of
neither "total immunity" nor "unqualified liability." S.C. Code
Ann. § 15-78-20(a).
And if South Carolina is dissatisfied with the result under
its statutory scheme, it may craft a new rule going forward.
40 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
That decision, however, is the prerogative of the state, not this
court. As the Supreme Court explained in DeShaney:
"The people of Wisconsin may well prefer a system
of liability which would place upon the State and its
officials the responsibility for failure to act in situa-
tions such as the present one. They may create such
a system . . . . But they should not have it thrust upon
them by this Court’s expansion of the Due Process
Clause of the Fourteenth Amendment."
DeShaney v. Winnebago County Dep’t of Soc. Servs., 489
U.S. 189, 203 (1989).
By federalizing the "duty to protect," the majority has
effectively scuttled one of the primary benefits of federalism:
the tolerance of varied state approaches to our most stubborn
social problems. See New State Ice Co. v. Liebmann, 285 U.S.
262, 386-87 (1932) (Brandeis, J., dissenting). Not only does
the majority defeat the benefit of variation but it also incurs
the cost of pile-on liability. By imposing a federal constitu-
tional system of liability on top of a state system of liability,
the majority has put into place a double whammy of deter-
rence coupled with a double wringer of litigation; states
assuming children’s custody will now have to fear no less
than two liability schemes—one federal, one state—and per-
haps, as happened here initially, two separate lawsuits—one
in federal court, one in state court. And as noted, this dual
system of deterrence may work to the detriment of those very
persons it was designed to protect—the children whose
chances in life depend on being rescued from the ravages of
the most dysfunctional environments, even as multiple causes
of action now counsel the rescuer to back off.
B.
While state legislatures are the traditional fora for deciding
whether to impose a "duty to protect," if the duty absolutely
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 41
must be federalized, it should be federalized by Congress, not
by us. Congress is the appropriate institution to create any
federal "duty to protect," since it can do so by statute rather
than by Constitution, which is simply too blunt and rigid a
tool for the imposition of general tort liability. If the matter
is to be federalized, Congress could readily do so under its
spending power, by creating rules for states and conditioning
the receipt of federal funds on compliance with those rules.
See South Dakota v. Dole, 483 U.S. 203, 206-07 (1987). Con-
gress can hold hearings and consult a wide range of public
and expert opinion, thus enabling it to more accurately antici-
pate a proposed rule’s potential consequences and to develop
a policy with sufficient nuance to work in diverse factual cir-
cumstances. None of these tools did this court have at its dis-
posal.
Legislatures are also comparatively better positioned to
monitor the impact of a legal rule, once enacted, and if need
be, to adapt the rule in light of changing circumstances or new
information. If a law is indeed having a negative effect, legis-
latures "may recognize degrees of evil and adapt [their] legis-
lation accordingly." See Packer Corp. v. Utah, 285 U.S. 105,
110 (1932). For judges, things are different. Because we are
insulated from the democratic pulse, we learn of conse-
quences, if at all, by fortuity. Although logic suggests that the
majority’s opinion will have the unfortunate result of leaving
more abused children in the hands of the abusers, the truth is,
without any feedback mechanism in place to help us assess
our rulemaking, we may never know the extent of the harm
caused. And even if we could, the harm could not easily be
undone—not by us, bound as we are by precedent, and not by
a legislature, since the majority has rooted its "duty to pro-
tect" in the Constitution.
Neither the majority nor the parties point to any instance
where Congress has laid down a rule to govern the conduct
in this case, and it is wrong for a federal court to rush in
where Congress has feared to tread. Additionally, because the
42 DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES
textual underpinnings for the majority’s duty are unclear, the
Constitution supplies this court with very little to direct our
task. "[T]he Court has always been reluctant to expand the
concept of substantive due process because guideposts for
responsible decisionmaking in this uncharted area are scarce
and open-ended. The doctrine of judicial self-restraint
requires us to exercise the utmost care whenever we are asked
to break new ground in this field." Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992) (citation omitted).
By basing its newfound duty in the elusive Due Process
Clause, the majority has triggered a myriad of issues that this
court will eventually have to address, with virtually nothing
either to constrain or to guide our task. The majority creates
a new substantive due process duty but leaves the rest hang-
ing. What exactly are a state’s affirmative obligations? What
must it do to seek out information regarding a child’s circum-
stances? How often and how extensive must supervision be?
How do limitations periods and tolling principles apply when
a foster child raises claims much later in life? From whom
and from what must the state protect a child? From which of
life’s inevitable bumps and a family’s inevitable strains and
difficulties? These questions and others have no easy or obvi-
ous answers, but by "extend[ing] substantive due process to
this area, these questions [will] be before us in short order,
and it is hard to imagine what tools federal courts would use
to answer them. At the end of the day, there is no reason to
suppose that [our] answers to these questions would be any
better than those of state courts and legislatures, and good rea-
son to suspect the opposite." Dist. Atty’s Office v. Osborne,
129 S.Ct. 2308, 2323 (2009).
So those who must follow the scarcely formed federal rule
are simply left to guess. I suspect that fear of this nebulous
liability will produce many instances of excess caution in
assuming legal custody of battered children and of excess
intervention into new family units. And in the future, when
we are forced to further define the contours of the majority’s
DOE v. SOUTH CAROLINA DEP’T OF SOCIAL SERVICES 43
"duty to protect," we will be pushed further into the uncom-
fortable position of policy maker and will have to, bluntly,
make stuff up. It is always tempting, I recognize, to respond
to contentions that tug at the heartstrings, but I do not think
state courts are cold or callous in a way that we are not, and
I do think the states in their judicial and legislative capacities
are where the very difficult tensions between familial and
communal responsibilities should be resolved. Restraint in the
judicial task can be the compassionate course. Allowing Jane
to have her day in state court will both respect her individual
claims to justice and avoid the heartache that creation of this
new constitutional cause of action will involve.