FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTERA L. TAMAS; RUTH S. TAMAS;
MONICA, by and through her court-
appointed guardian for purposes of
litigation,
Plaintiffs-Appellees,
v.
DEPARTMENT OF SOCIAL & HEALTH
SERVICES, STATE OF WASHINGTON;
MARSCHELL BAKER, individually
and in her official capacity acting
under the color of state law; JOYCE
DRAKE individually and in her
official capacity acting under the
color of state law; JAMES KAIROFF,
individually and in his official
capacity acting under the color of
state law; SHARON KLEINHEN,
individually and in her official
capacity acting under the color of
state law; CHRIS KNESER
individually and in her official
capacity acting under the color of
state law; ELAINE LIPSON,
individually and in her official
capacity acting under the color of
state law;
20527
20528 TAMAS v. DSHS
SHARON LOEFFLER, individually and
in her official capacity acting
under the color of state law;
BEVERLY PAYNE individually and in No. 08-35862
her official capacity acting under
the color of state law; KELLIE D.C. No.
2:07-cv-00750-RAJ
WALKER, individually and in her OPINION
official capacity acting under the
color of state law,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted
October 15, 2009—Seattle, Washington
Filed December 22, 2010
Before: Johnnie B. Rawlinson and Consuelo M. Callahan,
Circuit Judges, and Larry A. Burns,* District Judge.
Opinion by Judge Rawlinson
*The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
20532 TAMAS v. DSHS
COUNSEL
Defendants-Appellants State of Washington Department of
Health and Social Services, Marschell Baker, Joyce Drake,
James Kairoff, Sharon Kleinhen, Chris Kneser, Elaine Lipson,
Sharon Loeffler, Beverly Payne and Kellie Walker are repre-
sented by Robert M. McKenna, Attorney General, Michael P.
Lynch (argued), and Peter J. Helmberger, Assistant Attorneys
General, Olympia, Washington.
Plaintiffs-Appellees Estera L. Tamas, Ruth S. Tamas, and
Monica are represented by David P. Moody (argued),
Anthony D. Shapiro, Erin K. Flory, and Marty D. McLean,
Hagens Berman Sobol Shapiro LLP, Seattle, Washington.
OPINION
RAWLINSON, Circuit Judge:
Enrique Fabregas (Fabregas) is a predator who slithered
into the lives of vulnerable women with young daughters.
TAMAS v. DSHS 20533
There is no question that Fabregas molested his foster daugh-
ters, one of whom he legally adopted. The more challenging
question this case presents is whether the State of Washington
Department of Social and Health Services (DSHS) and nine
DSHS employees’ involved in overseeing the foster care of
Monica (Monica), Ruth Tamas (Ruth), and Estera Tamas
(Estera) are legally responsible for the injuries inflicted by
Fabregas.
Monica, Ruth, and Estera (Appellees) filed a lawsuit
against DSHS and nine of its employees (Appellants) alleging
negligence and civil rights violations under 42 U.S.C. § 1983.
Appellants filed a summary judgment motion asserting that
the individual DSHS employees were entitled to absolute and
qualified immunity. Appellants challenge the district court’s
denial of their motion. Because the district court did not apply
the correct standard in assessing whether qualified immunity
applies, we vacate the district court’s judgment and remand
this case for application of the correct standard, and for sepa-
rate analysis of each Appellant’s prospective liability.
I. BACKGROUND
Over the course of approximately ten years, DSHS received
and responded to almost thirty formal and informal com-
plaints regarding Fabregas’ interaction with his foster chil-
dren, Monica, Ruth and Estera.
On July 19, 1996, DSHS received a referral (Referral 1)
alleging that Fabregas abused Monica’s mother and used
cocaine. DSHS subsequently filed a dependency petition
regarding two-year-old Monica, which was granted. DSHS
placed Monica with Pamela Deming (Deming).
Appellant Chris Kneser (Kneser) was Monica’s DSHS
social worker from June 2, 1997, to February 26, 1999. Dem-
ing reported to Kneser that she witnessed Fabregas “french
kiss” Monica, suspected Monica was molested, and viewed a
20534 TAMAS v. DSHS
video made by Fabregas showing Monica in a freezer, stand-
ing unrestrained in a moving car, and standing by a busy free-
way in a cow costume. On July 1, 1997, Kneser received a
referral (Referral 2) reporting that Monica said she “told Papa
to stop. No no no[,]” and pointed to her bottom when asked
where he touched her. Kneser initiated a Child Protective Ser-
vices (CPS) investigation, which “determined the allegation to
be inconclusive” because Monica and Fabregas denied the
abuse and Moore (Monica’s mother) did not believe Fabregas
abused Monica.
On November 25, 1997, Fabregas applied for a foster care
license1 and filed a motion for an order placing Monica with
him.2 On March 2, 1998, the court ordered Monica’s place-
ment with Fabregas, subject to conditions that he obtain a
foster-care license and comply with DSHS’s service plan.3
Appellant Sharon Kleinhen (Kleinhen), a foster home licensor
from 1975 to 1999, conducted a home study and reviewed
Fabregas’ license application. She noted the court’s placement
of Monica with Fabregas despite his criminal history, his “odd
parenting methods, a drug and rehabilitation past, and con-
cerns about sexual deviance[.]” Kleinhen nevertheless recom-
mended to her supervisor, Appellant Joyce Drake (Drake),
that Fabregas be licensed. Drake, the licensor supervisor from
1997 to 2002, signed the license, and dated it March 9, 1998.
In February, 1999, Fabregas requested a second license
when he changed his residence. Fabregas once again misrep-
resented his criminal history on the application. Appellant
1
Fabregas falsely declared on his foster-care license application that he
had never been convicted of a felony. On May 6, 1998, Fabregas moved
the court for a certificate of rehabilitation, which enabled him to be
licensed regardless of his criminal history.
2
Fabregas attached his extensive criminal history to his motion.
3
On May 8, 1998, prior to DSHS issuing Fabregas’ foster-care license,
the King County Superior Court entered a permanency planning order
placing Monica with Fabregas.
TAMAS v. DSHS 20535
Sharon Loeffler, the foster home licensor on Fabregas’ second
license request, reviewed Kleinhen’s remarks and Fabregas’
1998 criminal charge, interviewed Fabregas, and recom-
mended approval to Drake. Drake signed the license on May
17, 1999.
From 1998 to 2005, Appellant Beverly Payne (Payne) was
the supervisor of the Department of Licensing Resources and
CPS. Payne reviewed and evaluated whether the referrals
received in a CPS unit were properly screened and sent out
for investigation. During Payne’s supervisory period, DSHS
received numerous referrals involving Fabregas.4
On December 1, 1999, DSHS received a referral (Referral
3) alleging that Fabregas left Monica alone with her alcoholic
mother, failed to regularly take Monica to school or her
speech therapy appointments, and failed to adequately feed
Monica; and that Monica had bruises on her feet. DSHS inter-
viewed Monica, Monica’s teacher and Fabregas, all of whom
either denied or negated the alleged complaints. DSHS con-
cluded that the allegations were unfounded.
By 2000, Fabregas had legally adopted Monica. In June of
that year, DSHS received a referral (Referral 4) alleging that
6-year-old Monica soiled her pants at school several times
and accused Fabregas of having drugs. DSHS concluded that
the “allegation did not meet the criteria for investigation” and
that there was “no allegation about Mr. Fabregas.”
On September 29, 2000, DSHS received a referral (Referral
5) regarding Monica. The referral also mentioned Ruth and
Estera, the daughters of Fabregas’ then girlfriend, Lydia. The
referral alleged that Monica was left alone until midnight and
4
A CPS referral addresses child abuse or neglect and investigations are
concluded as either founded, unfounded, or inconclusive. A licensing
referral addresses violations of regulations or policies and investigations
are concluded as valid or invalid.
20536 TAMAS v. DSHS
that Estera regularly left with Fabregas at approximately
10:00 p.m. dressed like a “hooker,” returning about 5:00 a.m.
DSHS closed the investigation after Monica, Ruth, and Estera
denied the allegations and law enforcement expressed no
interest in investigating.
DSHS received a March 5, 2001, referral (Referral 6)
reporting Fabregas “kissing and holding” Monica as if she
were a “girlfriend or lover.” DSHS concluded that “the allega-
tion did not meet the criteria for investigation” because there
was “no allegation about Mr. Fabregas.” Ten days later,
DSHS received a referral (Referral 7) that Monica said a
bruise on her face resulted from her dad biting her and school
staff observed Fabregas “all over [Monica] physically all the
time.” After Monica told DSHS that the bruise was from
wrestling and her dad liked “to hug and kiss everyone[,]”
DSHS determined that the allegations were unfounded.
Appellant Elaine Lipson (Lipson), was Ruth and Estera’s
social worker from June 14, 2001, to January 27, 2003. Dur-
ing this period, DSHS received six referrals (Referrals 8
through 13) alleging Fabregas’ abuse of Ruth and Estera. On
June 1, 2001, DSHS filed dependency petitions for Ruth and
Estera, who requested to be placed with Fabregas. Over the
objections of DSHS and Lydia,5 on July 31, 2001, the court
ordered that Ruth and Estera be placed with Fabregas on the
condition that he obtain a foster care license.
Fabregas applied for a third foster care license on July 23,
2001, and again failed to disclose his felony convictions.
While Fabregas’ license was pending, DSHS received a refer-
ral (Referral 8) that Ruth had bruising due to a fight with
Monica. DSHS rendered a finding of “not valid for discipline”
and “not valid for supervision” because Fabregas was not yet
licensed.
5
Lydia was facing criminal charges at the time.
TAMAS v. DSHS 20537
On October 15, 2001, Lipson filed a declaration with the
court to remove Ruth’s placement from Fabregas’ home after
Ruth expressed a desire to no longer reside with Fabregas.
Ruth changed her mind by the time of the hearing, however,
and the Snohomish County Superior Court ordered that both
Ruth and Estera remain with Fabregas, neither Ruth nor
Estera be moved absent allegations of abuse or an emergency,
and that a DSHS-approved comprehensive placement assess-
ment be completed.6
On December 27, 2001, Fabregas renewed his application
for a foster care license and again failed to disclose his felony
convictions. While Fabregas was still unlicensed, DSHS
received a referral (Referral 9) alleging that Fabregas pro-
vided Ruth and Estera with cigarettes and alcohol. Ruth,
Estera and Fabregas denied the allegations and accused the
referent of lying. Prior to the issuance of Fabregas’ third
license, Lydia7 filed a motion to remove the girls from Fabre-
gas’ care. However, Ruth and Estera both requested to stay
with Fabregas.
Appellant Kellie Walker (Walker), a DSHS foster home
licensor from October, 2001, to December, 2002, was in
charge of reviewing Fabregas’ third license application. She
interviewed Fabregas and “the girls”, spoke to the police, and
reviewed the October 8, 2001, and January 17, 2002, referrals.
On March 20, 2002, Appellant Walker issued Fabregas’ third
license.
On July 31, 2002, DSHS received a referral (Referral 10)
reporting that Fabregas pushed Estera against a wall causing
her to bang her head, and slapped Ruth in the face with his
shirt. DSHS concluded that the referral was unfounded
6
Ellis Amdur conducted the assessment and recommended that Fabregas
adopt both Ruth and Estera.
7
Lydia changed her name from “Lydia Tamas” to “Diana Smith.” For
consistency, this opinion uses “Lydia.”
20538 TAMAS v. DSHS
because Ruth and Estera denied the allegations. On August 4,
2002, DSHS received a referral (Referral 11) reporting that
Fabregas pinched Ruth and Estera’s sister’s breast, leaving a
bruise. DSHS closed the referral as “information only”. On
September 25, 2002, DSHS received a referral (Referral 12)
reporting that Fabregas encouraged Ruth and Estera to shop-
lift. DSHS closed the investigation because there was no alle-
gation as to Fabregas’ care. The following day, DSHS
received a similar referral (Referral 13) regarding Fabregas’
encouragement of the Tamas sisters’ shoplifting, his accep-
tance of their drinking and his verbal abuse of the girls. DSHS
interviewed Ruth, Estera, Ruth and Estera’s sister, and Fabre-
gas, all of whom denied the allegations. Thus, DSHS con-
cluded that the allegations were unfounded.
James Kairoff (Kairoff) was Ruth and Estera’s social
worker from January, 2003, to July, 2003, and from May,
2004, to August, 2004. On August 12, 2003, DSHS granted
Fabregas his fourth foster home license. On October 9, 2003,
DSHS received a referral (Referral 14) that Monica’s 12-year-
old female neighbor kissed her and requested sex. On Novem-
ber 5, 2003, DSHS received a referral (Referral 15) that Mon-
ica stated she was tired because “she sleeps with her dad and
he bumps into her in bed.” DSHS concluded that the referrals
did not allege abuse or neglect.
DSHS received a referral (Referral 16) on December 16,
2003. The referent described possessing a pornographic pic-
ture of Monica giving Fabregas a “blow job.” DSHS dis-
missed the allegations as unfounded because the picture was
of Monica’s mother rather than Monica. In addition, Monica,
Ruth, Estera and Fabregas all denied inappropriate touching.
DSHS, however, forwarded the referral to the King County
Sheriff’s Office, which also concluded that the allegations
were unfounded.
Appellant Marschell Baker (Baker) became a supervisor of
the Department of Licensing Resources and CPS in 2004. On
TAMAS v. DSHS 20539
April 7, 2004, DSHS received a referral (Referral 17) that
Monica had bruising and gave conflicting stories on the origin
of the bruises. DSHS concluded that the allegations were
unfounded after Monica, Ruth, Estera and Fabregas all denied
abuse and Dr. Kenneth Feldman was unable to conclude that
the bruises resulted from abuse.
On May 6, 2004, Ruth requested to be removed from
Fabregas’ care. DSHS placed Ruth in the foster care of Mary
Jean Smith (Smith). DSHS received a May 12, 2004, referral
(Referral 18) reporting that Fabregas punished Ruth by yell-
ing at her for up to two hours, grounding her, making her
stand for hours, and requiring her to write passages up to
2,000 times. On May 17, 2004, DSHS received a referral
(Referral 19) that Ruth found a pornographic video of Estera
giving Fabregas a “blow job” and Fabregas inserting his fin-
gers into Estera’s vagina. Ruth allegedly copied the video and
later destroyed it due to her fear of Fabregas and because of
Fabregas’ claim to having “mob connections.” The referral
also noted that Monica was “very sexualize[d]” and “makes
out with [Ruth and Estera’s sister’s] face.”
Baker forwarded the May 12th and May 17th referrals
(Referrals 18 and 19) to the Kirkland Police Department and
interviewed Monica, Ruth, Estera, Fabregas, Detective Jack
Kessee, Ruth and Estera’s sister, and Smith. Estera and Fabre-
gas both stated that Ruth had a history of lying. Monica
denied the allegations. Detective Kessee had investigated the
case and concluded that there was no proof of a crime. How-
ever, Ruth and Estera’s sister believed Ruth. DSHS again
concluded that the sexual and physical abuse allegations were
unfounded due to lack of conclusive evidence.
On May 20, 2004, DSHS received a referral (Referral 20)
stating that Monica was “filthy from head to toe” and that
Fabregas was “very shaky.” DSHS concluded the referral was
invalid. On May 26, 2004, DSHS received a referral (Referral
21) stating that Fabregas told Ruth she could not call his
20540 TAMAS v. DSHS
home to talk to Estera. DSHS terminated the referral with an
“inconclusive” determination.
Smith wrote DSHS a letter on May 31, 2004, detailing
Ruth’s statements to her regarding Fabregas’ abuse of the
girls. Throughout June and July 2004, Smith wrote letters to
DSHS, Payne, Kairoff, and Baker complaining that “some-
thing needs to be done.” Kairoff interviewed Estera, who
denied Ruth’s allegations.
On June 15, 2004, DSHS received a referral (Referral 22)
alleging that in the prior year Fabregas beat Ruth in his car.
DSHS concluded that the referral was not valid for discipline.
On July 29, 2004, DSHS received three referrals (Referrals
23, 24, 25) alleging that Fabregas was preventing contact
between Ruth and Estera and that Estera admitted the sexual
abuse had occurred. In response, on July 30, 2004, the Kirk-
land police removed Estera and Monica from Fabregas’
home. At the same time, DSHS concluded that the sexual
abuse allegations were inconclusive.
On August 3, 2004, DSHS received a referral (Referral 26)
reflecting that Estera admitted she and Fabregas were ingest-
ing cocaine when the police removed her from Fabregas’
home. Baker interviewed Estera the following day and Estera
confirmed Ruth’s allegations. Baker nevertheless concluded
that the sexual abuse allegations were inconclusive because
Fabregas’ denials of abuse were believable and the Tamas
girls had a history of recantations. Monica was returned to
Fabregas’ care.
DSHS did not renew Fabregas’ foster license in October,
2004, because Fabregas refused to complete a sexual devi-
ancy evaluation. On November 15, 2004, DSHS received a
letter from Estera recanting her sexual abuse allegations and
accusing Smith of bribing her with an offer to pay for braces
if Estera said Fabregas gave her cocaine and raped her. On
TAMAS v. DSHS 20541
August 12, 2005, the King County Prosecutor’s Office
declined prosecution.
On February 2, 2006, DSHS received a referral (Referral
27) alleging that Monica and Fabregas had matching rashes
on their genitalia, that Monica had a bladder problem and
anxiety attacks, and that Fabregas provided Ecstasy to Mon-
ica. Two weeks later, the Redmond Police Department
obtained a search warrant to search Fabregas’ home. Monica
was escorted to CPS, Fabregas was arrested, and hundreds of
pornographic photographs, movie clips, lingerie items, and
dress-up props were seized.
On April 27, 2007, Monica, Ruth, and Estera, filed their
complaint against Appellants asserting claims under 42
U.S.C. § 1983. Appellees specifically alleged that Appellants
deprived them of their constitutional rights by “choo[sing] to
license Fabregas to care for children in his home” and by not
“acting appropriately to protect [Appellees].” After the case
was removed to federal court, the district court denied Appel-
lants’ summary judgment motion predicated on their immu-
nity from suit. Appellants filed a timely notice of appeal.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment
de novo and construe all the evidence in the light most favor-
able to the non-moving party. See Kraus v. Presidio Trust
Facilities Division/Residential Management Branch, 572 F.3d
1039, 1042 (9th Cir. 2009). Whether an Appellant is entitled
to absolute immunity or qualified immunity is also reviewed
de novo. Tennison v. City & County of San Francisco, 570
F.3d 1078, 1087 (9th Cir. 2009).
III. DISCUSSION
A. Absolute Immunity
[1] “Absolute immunity is generally accorded to judges
and prosecutors functioning in their official capacities.” Olsen
20542 TAMAS v. DSHS
v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.
2004). “[I]n determining absolute immunity, we examine the
nature of the function performed, not the identity of the actor
who performed it.” Tennison, 570 F.3d at 1092 (citation,
alteration and internal quotation marks omitted). Absolute
immunity is extended to state officials, such as social work-
ers, when they are performing quasi-prosecutorial and quasi-
judicial functions. See Caldwell v. LeFaver, 928 F.2d 331,
333 (9th Cir. 1991) (naming advocacy to the decisionmaker
and execution of a court order as examples). However, social
workers are not afforded absolute immunity for their investi-
gatory conduct, discretionary decisions or recommendations.
See Beltran v. Santa Clara County, 514 F.3d 906, 908-09 (9th
Cir. 2008); see also Miller v. Gammie, 335 F.3d 889, 898 (9th
Cir. 2003) (citing as examples decisions and recommenda-
tions regarding a particular foster home or foster parents).
[2] The Appellants assert that they are entitled to absolute
immunity because their placement of the three girls with
Fabregas was pursuant to court order. However, Appellants’
decisions to license Fabregas and to retain Monica, Ruth and
Estera in Fabregas’ care were not quasi-prosecutorial or
quasi-judicial in nature. Appellants placed Monica, Ruth and
Estera in Fabregas’ care pursuant to court orders conditioned
upon Appellants’ licensing Fabregas as a foster parent. A
court order further provided that Ruth and Estera could be
removed from Fabregas’ care if allegations of abuse or emer-
gency existed. Therefore, in deciding to license Fabregas and
not remove Monica, Ruth and Estera from Fabregas’ home
Appellants performed the traditional investigation and place-
ment responsibilities assumed by social agencies. See Miller,
335 F.3d at 898. We therefore conclude that the Appellants
were not entitled to absolute immunity. See Beltran, 514 F.3d
at 908-09 (concluding that absolute immunity does not apply
to social workers’ “investigatory conduct”).
B. Qualified Immunity
[3] The determination of whether qualified immunity
shields the Appellants from liability presents a closer and
TAMAS v. DSHS 20543
more difficult question. In determining whether officials are
entitled to qualified immunity, we inquire: (1) whether the
facts, taken in the light most favorable to the party asserting
the injury, show that the officer’s conduct violated a constitu-
tional right and (2) if so, whether the right was clearly estab-
lished, such that a reasonable official would understand that
his conduct violated that right. See Conn v. City of Reno, 572
F.3d 1047, 1061 (9th Cir. 2009). We may apply the two-step
analysis in any sequence we deem appropriate. See id.
1. Constitutional Right
[4] The Fourteenth Amendment substantive due process
clause protects a foster child’s liberty interest in social worker
supervision and protection from harm inflicted by a foster
parent. See Carlo v. City of Chino, 105 F.3d 493, 501 (9th Cir.
1997); see also Campbell v. Burt, 141 F.3d 927, 931 n.2 (9th
Cir. 1998). “Once the state assumes wardship of a child, the
state owes the child, as part of that person’s protected liberty
interest, reasonable safety and minimally adequate care . . .”
Lipscomb v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992)
(citations omitted). Accordingly, Monica, Ruth and Estera
held protected liberty interests in being shielded from harm
inflicted by a foster parent and enjoyed a special relationship
with the state once their dependency petitions were granted.
See Lipscomb, 962 F.2d at 1379; see also Carlo, 105 F.3d at
501. Understandably, the law does not impose the duty of
guarding their own safety on wards of the state. Rather, that
duty is the quintessential responsibility of the social workers
assigned to safeguard the well-being of this helpless and vul-
nerable population. Appellants argue that they did not inter-
fere with Appellees’ liberty interests because the girls were
free to leave Fabregas’ care upon request.8 However, Appel-
8
Appellees maintain that Appellants’ failure to follow state law regard-
ing reporting child abuse allegations to law enforcement supports their
claims under § 1983. However, to state a claim under § 1983, a plaintiff
must “allege the deprivation of a right secured by the federal Constitution
or statutory law . . .” Lone Star Sec. & Video, Inc. v. City of Los Angeles,
572 F.3d 685, 692 (9th Cir. 2009) (emphasis added). Therefore, the
alleged violations of state law are not relevant to our analysis. See id.
20544 TAMAS v. DSHS
lants cannot escape liability by shifting the onus onto the
wards to request removal. In addition, years of abuse ham-
pered Appellees in their ability to ensure their own safety. See
Carlo, 105 F.3d at 501. For example, Estera believed that “ev-
erything that [she] went through [was] normal.”
a. Fabregas’ Adoption of Monica
[5] A state official’s duty to provide adequate care to a fos-
ter child generally terminates once the foster child is officially
adopted. See Griffith v. Johnston, 899 F.2d 1427, 1440 (5th
Cir. 1990).9 This principle is consistent with the concept that
the state functions as the de facto parent of a child in foster
care. See Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791,
795 (11th Cir. 1987) (en banc) (“The state’s action in assum-
ing the responsibility of finding and keeping the [foster] child
in a safe environment placed an obligation on the state to
insure the continuing safety of that environment.”). Once the
foster child is adopted, the adoptive parent assumes the role
of caregiver previously occupied by the state. It becomes the
adoptive parent’s responsibility to provide for the well-being
of the adopted child, see Griffith, 899 F.2d at 1440, with no
further need for the state to oversee the welfare of the former
foster child.
[6] However, state actors may nevertheless incur liability
under § 1983 if state officials affirmatively created a danger
that the adopted child would not have otherwise faced. See
L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). In Grubbs,
we held that the danger creation exception applied where state
correctional officers knowingly created an opportunity for a
convicted sex offender to assault the custodial institution’s
nurse. See id. The officers in Grubbs “affirmatively created
the dangerous situation,” id. at 122, because they assigned the
sex offender to work with the nurse despite knowing: (1) that
9
There does not appear to be authority from the United States Supreme
Court or our circuit specifically addressing this point.
TAMAS v. DSHS 20545
the sex offender “had an extraordinary history of unrepentant
violence against women and girls;” (2) that the sex offender
would “likely assault a female if left alone with her;” (3) that
the nurse “would be alone with [the sex offender]”; and (4)
that the nurse “would not be prepared to defend [herself]”
because she was not “informed . . . that she would be left
alone with violent offenders.” Id. at 121. Similarly, prior to
Fabregas’ adoption of Monica, various Appellants affirma-
tively created the particular danger that exposed Monica to
harm. Despite referrals reporting Fabregas’ physical and sex-
ual abuse, Kleinhein, Loeffler and Drake approved Fabregas’
foster-care licenses, paving the way for Fabregas to continue
abusing Monica after her adoption. The state’s approval of
Monica’s foster care and adoption by Fabregas created a dan-
ger of molestation that Monica would not have faced had the
state adequately protected her as a result of the referrals.
[7] Appellants cite DeShaney v. Winnebago County Dep’t
of Social Services, 489 U.S. 189, 192 (1989) in support of
their argument for immunity. In DeShaney, the state briefly
took custody of a child from his birth father to investigate
alleged abuse. See id. The Court concluded that “the State had
no constitutional duty to protect [the child] against his father’s
violence” because “the State does not become the permanent
guarantor of an individual’s safety by having once offered
him shelter.” Id. at 201, 202. By contrast, Monica, as a foster
child, was in the custody of the state for three years prior to
her adoption. Unlike the facts in DeShaney, where the victim
was “in no worse a position than that in which he would have
been had [the state] not acted at all,” DeShaney, 489 U.S. at
201, Monica was placed in a worse situation by the actions
and inactions of the various Appellants. Therefore, we con-
clude that Monica’s liberty interest continued after her adop-
tion under the danger-creation exception to the general rule
that state actors are not liable for failure to protect members
of the public.
20546 TAMAS v. DSHS
b. Violation of Liberty Interest
[8] To violate due process, state officials must act with
such deliberate indifference to the liberty interest that their
actions “shock the conscience.” Brittain v. Hansen, 451 F.3d
982, 991 (9th Cir. 2006) (citation omitted). Conduct that
“shocks the conscience” is “deliberate indifference to a
known or so obvious as to imply knowledge of, danger.”10
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1064 (9th Cir.
2006) (citation and internal quotation marks omitted).
c. Objective and Subjective Inquiry
Appellants contend that “[a] substantive due process claim
for deliberate indifference in a foster home placement requires
examination of both objective and subjective components”
and that neither component is met in this case.
[9] This court has only addressed the application of the
deliberate indifference standard with respect to foster children
in one case. See Gibson v. Merced County Department of
Human Resources, 799 F.2d 582, 589-90 (9th Cir. 1986). In
Gibson, we held that state officials were not deliberately
indifferent to a foster child’s liberty interest when they
removed the child from uncooperative foster parents who
were attempting to prevent the child’s reunification with her
natural mother. See id. Although we did not discuss the delib-
erate indifference standard in Gibson, we have addressed that
standard at length in resolving cases involving prisoners alleg-
ing deliberate indifference. In the prisoner cases we have held
that deliberate indifference “requires an objective risk of harm
and a subjective awareness of that harm.” Conn v. City of
Reno, 591 F.3d 1081, 1095 (9th Cir. 2010), as amended (cita-
10
Citing Hearns v. Terhune, 413 F.3d 1036 (9th Cir. 2005), Appellees
argue that deliberate indifference includes gross negligence. However, in
Kennedy, we explicitly held that the deliberate indifference standard is
“not gross negligence.” Kennedy, 439 F.3d at 1064.
TAMAS v. DSHS 20547
tion and emphasis omitted); see also, Simmons v. Navajo
County, No. 08-15522, 2010 WL 2509181, at *4 (9th Cir.
June 23, 2010) (concluding that “[a] prison official cannot be
liable for deliberate indifference unless he or she knows of
and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference”) (citation and internal
quotation marks omitted); Clouthier v. County of Contra
Costa, 591 F.3d 1232, 1242 (9th Cir. 2010) (recognizing that
the objective component requires a showing of “a substantial
risk of serious harm” and the subjective component requires
a showing that the official was “aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exist[ed], and he . . . also dr[e]w the inference”). These
cases inform our analysis and our review of precedent from
our sister circuits.
In the specific context of cases involving foster care, the
Fifth, Sixth, and Eighth Circuits have held that deliberate
indifference is established if an “official [was] both aware of
facts from which the inference could be drawn that a substan-
tial risk of serious harm exist[ed] and [the official] . . . also
dr[e]w the inference.” Hernandez ex rel. Hernandez v. Texas
Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 881
(5th Cir. 2004) (citation omitted); Arledge v. Franklin County,
Ohio, 509 F.3d 258, 261, 263 (6th Cir. 2007) (same); James
ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006)
(same). This analysis is identical to the subjective deliberate
indifference component that we have articulated in prisoner
cases and includes by implication the objective component
requiring the existence of a substantial risk of serious harm.
The Second, Third, Fourth, Seventh, Tenth, and Eleventh
Circuits have each phrased the deliberate indifference test
along the same lines. See Doe v. New York City Dep’t of
Social Services, 649 F.2d 134, 145 (2d Cir. 1981) (explaining
that deliberate indifference “cannot exist absent some knowl-
20548 TAMAS v. DSHS
edge triggering an affirmative duty to act . . .”); Nicini v.
Morra, 212 F.3d 798, 811-12 (3d Cir. 2000) (defining deliber-
ate indifference as “conduct [that] shocks the conscience”
while assuming that the “should have known” standard
applies); White by White v. Chambliss, 112 F.3d 731, 737 (4th
Cir. 1997) (including a requirement that state officials “were
plainly placed on notice of a danger and chose to ignore the
danger notwithstanding the notice”); J.H. ex rel. Higgin v.
Johnson, 346 F.3d 788, 792 (7th Cir. 2003) (requiring subjec-
tive actual knowledge or suspicion of the risk); Roska ex rel.
Roska v. Peterson, 328 F.3d 1230, 1246 (10th Cir. 2003)
(holding that state actors may be liable for placing children in
a foster home “they know or suspect to be dangerous to the
children . . .) (citation omitted); H.A.L. ex rel. Lewis v. Foltz,
551 F.3d 1227, 1231-32 (11th Cir. 2008) (assigning liability
if the official was “deliberately indifferent to a known and
substantial risk to the child of serious harm”).
[10] We are persuaded by our precedent and cases from
other circuits analyzing the issue, that the deliberate indiffer-
ence standard, as applied to foster children, requires a show-
ing of an objectively substantial risk of harm and a showing
that the officials were subjectively aware of facts from which
an inference could be drawn that a substantial risk of serious
harm existed and that either the official actually drew that
inference or that a reasonable official would have been com-
pelled to draw that inference. See Clouthier, 591 F.3d at 1242;
see also Conn, 591 F.3d at 1095-96; Arledge, 509 F.3d at 263;
James, 458 F.3d at 730; Hernandez, 380 F.3d at 881. We also
conclude that the subjective component may be inferred
“from the fact that the risk of harm is obvious.” Hernandez,
380 F.3d at 881 (citation and emphasis omitted); Arledge, 509
F.3d at 263.
[11] The district court ruled that the Appellants were delib-
erately indifferent because they “were aware of facts that
would have led reasonable people in their position to know or
suspect that Fabregas was abusing [Appellees].” However, the
TAMAS v. DSHS 20549
district court did not analyze whether there was an objectively
substantial risk of serious harm and whether Appellants actu-
ally drew the inference that a substantial risk of serious harm
to Appellees existed or that a reasonable official would have
been compelled to draw that inference. Failure to apply the
correct standard constituted reversible error. See Ellis v. City
of San Diego, 176 F.3d 1183, 1186 (9th Cir. 1999), as
amended.
2. Clearly Established Right
[12] The second prong required to defeat qualified immu-
nity is a showing that the Appellees’ constitutional rights
were clearly established. See Conn, 572 F.3d at 1062. “The
relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he con-
fronted.” Id. at 1062. This inquiry is “wholly objective.” Brit-
tain, 451 F.3d at 988.
[13] Appellants contend that the law was not clearly estab-
lished that foster children had a federal constitutional right to
state protection, citing Doe v. South Carolina Department of
Social Services, 597 F.3d 163, 176 (4th Cir. 2010). The
Fourth Circuit in Doe held that its precedent did not clearly
establish such a right because its prior cases did not involve
foster children within the custody and control of the state
when the state made foster care placement decisions. See Doe,
597 F.3d at 173-77. However, unlike the Fourth Circuit, we
previously held in 1992 that “[o]nce the state assumes ward-
ship of a child, the state owes the child, as part of that per-
son’s protected liberty interest, reasonable safety and
minimally adequate care and treatment appropriate to the age
and circumstances of the child.” Lipscomb, 962 F.2d at 1379.
[14] We may also look to the law of other circuits to deter-
mine if a principle is clearly established. See Prison Legal
News v. Lehman, 397 F.3d 692, 701-02 (9th Cir. 2005). As
20550 TAMAS v. DSHS
early as 1981, the Second Circuit recognized that a state
agency could be liable for deliberate indifference to a foster
child’s right to adequate supervision. See Doe v. New York
City Department of Social Services, 649 F.2d 134, 141-42 (2d
Cir. 1981). Subsequently, in 1987, the Eleventh Circuit held
that “a child involuntarily placed in a foster home is in a situa-
tion so analogous to a prisoner in a penal institution and a
child confined in a mental health facility that the foster child
may bring a section 1983 action for violation of fourteenth
amendment rights.” Taylor ex rel. Walker, 818 F.2d at 797. In
1990, the Sixth Circuit held that “due process extends the
right to be free from the infliction of unnecessary harm to
children in state-regulated foster homes.” Meador v. Cabinet
for Human Resources, 902 F.2d 474, 476 (6th Cir. 1990). In
the same year, the Seventh Circuit also concluded that foster
children’s right to state protection was clearly established
because “Youngberg made the basic duty of the state to chil-
dren in state custody clear . . .” K.H. ex rel. Murphy v. Mor-
gan, 914 F.2d 846, 852 (7th Cir. 1990). In 1992, the Tenth
Circuit concluded that foster children have a “clearly estab-
lished right to protection while in foster care.” Yvonne L. ex
rel. Lewis v. N.M. Dep’t of Human Servs., 959 F.2d 883, 892-
93 (10th Cir. 1992). One year later, the Eighth Circuit held
that “it was clearly established in 1991 that the state had an
obligation to provide adequate medical care, protection and
supervision [to foster children].” Norfleet ex rel. Norfleet v.
Ark. Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir.
1993). In 2000, the Third Circuit held that “when the 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. The failure to per-
form such duties can give rise, under sufficiently culpable cir-
cumstances, to liability under section 1983.” Nicini v. Morra,
212 F.3d 798, 808 (3d Cir. 2000) (en banc).
[15] Based on these cases, we conclude that it was clearly
established in 1996 that Appellees had a protected liberty
TAMAS v. DSHS 20551
interest in safe foster care placement once they became wards
of the state.
3. Individual Appellants
[16] Because the district court analyzed whether the
Appellants were deliberately indifferent under an erroneous
standard, we remand for the district court to analyze each
Appellant’s prospective liability individually, utilizing the
proper standard. The Appellants’ potential liability varies,
depending on whether each Appellant was aware of facts
from which an inference could be drawn that a substantial risk
of serious harm to Appellees existed, and upon whether each
Appellant actually drew that inference.
At a minimum, the court should consider the following
facts:
Kneser was aware of three graphic allegations regarding
Fabregas — Fabregas’ abuse of Monica’s mother and drugs
(Referral 1), Fabregas’ “french kiss[ing]” of Monica, and
Monica’s report of telling “Papa to stop” while pointing at her
bottom (Referral 2). Kleinhen, Loeffler, and Drake approved
Fabregas’s foster home licenses, despite their awareness of
the two referrals and of a complaint regarding Fabregas’
physical abuse of Monica’s mother, drug abuse, and sexual
abuse of Monica. Likewise, Walker approved Fabregas’ third
license despite knowledge of the escalating referrals alleging
Fabregas’ abuse of all three girls. Over the course of six
years, Payne reviewed and evaluated nine CPS referrals
regarding Fabregas’ physical and sexual abuse of Monica,
Ruth and Estera. During Lipson’s employ at DSHS, DSHS
received Referrals 8 through 13 and Lipson had the authority
to recommend Ruth and Estera’s removal pursuant to court
order, but failed to do so. During Kairoff’s tenure, DSHS
received a referral that Monica and Fabregas were actually
sleeping together and she was tired because Fabregas “bum-
p[ed] into her in bed.” Finally, in 2004, Baker received per-
20552 TAMAS v. DSHS
haps the most serious CPS referrals, including a pornographic
video involving Fabregas and Estera, and Estera’s admission
that the sexual allegations were true and that she used cocaine
with Fabregas.
We express no view as to the outcome of the individualized
qualified immunity inquiries to be conducted on remand.
IV. CONCLUSION
We vacate the district court’s decision and remand this case
to the district court to apply the correct deliberate indifference
standard to analysis of the prospective liability of each Appel-
lant.
VACATED AND REMANDED.