J.W. v. Utah

FILED
United States Court of Appeals
Tenth Circuit

July 27, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

J.W. and M.R.W., individually and as
parents, guardians and next friends of
A.W. f/k/a/ A.M., a minor child and No. 10-4060
M.W. f/k/a/ K.C., a minor child,

Plaintiffs-Appellants,

v.

STATE OF UTAH; UTAH STATE
DEPARTMENT OF HUMAN
SERVICES; ROBIN ARNOLD-
WILLIAMS, individually and in her
former capacity as Executive Director
of the Utah State Department of
Human Services; LISA-MICHELLE
CHURCH, in her capacity as
Executive Director of Utah State
Department of Human Services;
DIVISION OF CHILD AND FAMILY
SERVICES; RICHARD ANDERSON,
individually and in his capacity as
Director of the Division of Child and
Family Services; CAROLYN
HANSEN, KOLYN TACY, and
LAURIE ZUMBRUNNEN,
individually and in their official
capacities,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:05-CV-00968-CW)
S. Brook Millard of Wrona Law Firm, P.C., Draper, Utah, for
Plaintiffs–Appellants.
Peggy E. Stone, Assistant Utah Attorney General (Mark L. Shurtleff, Utah
Attorney General, with her on the brief), Salt Lake City, Utah, for
Defendants–Appellees.

Before MURPHY, McKAY, and O’BRIEN, Circuit Judges.

McKAY, Circuit Judge.

This case arises from an unfortunate situation of child-on-child abuse

within the foster care system. Plaintiffs are a foster couple and their now-adopted

foster children who allege they incurred injuries after an abusive foster child was

placed in their home in August of 2002. In this § 1983 action, Plaintiffs raised

several state and federal claims against the State of Utah and the various State

employees and entities involved in placing this child in their home. The district

court dismissed several of Plaintiffs’ claims under Rule 12(b)(6) and granted

summary judgment to Defendants on Plaintiffs’ remaining federal claims.

Plaintiffs’ remaining state claims were then remanded to the state court for

disposition. On appeal, Plaintiffs challenge the Rule 12(b)(6) dismissal of their

negligence claims and the grant of summary judgment to the children’s

caseworker and her direct supervisor on Plaintiffs’ Fourteenth Amendment due

process claim.

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 BACKGROUND

While Plaintiffs J.W. and M.R.W. were in the process of adopting their

five-year-old foster daughter, A.W., they were asked whether they would also be

willing to accept infant M.W. and her six-year-old brother, W.C.C., as foster

children. All three children had the same caseworker at Utah’s Division of Child

and Family Services. Plaintiffs allege the Division’s records revealed that

W.C.C. had a history of sexual abuse, sexual reactivity, and violence; however,

Defendants failed to warn Plaintiffs of this history, although the children’s

caseworker did tell Plaintiffs that W.C.C. was being medically treated for ADHD,

occasionally told lies, had exhibited some jealous behaviors, and had made some

racist comments about a previous foster brother. Soon after W.C.C. was placed in

the home, he began engaging in violent and sexual behavior towards A.W.,

causing her extensive and permanent psychological harm. Ten days following

this placement, A.W.’s adoption was finalized. W.C.C. was removed from the

home some months later, and M.W. was subsequently adopted into Plaintiffs’

home. Plaintiffs allege A.W.’s abuse at the hands of W.C.C. caused her to later

abuse M.W. in similar fashion.

Plaintiffs’ complaint raised, inter alia, several state negligence claims

against the State and its entities and a Fourteenth Amendment claim against the

children’s caseworker and her direct supervisor. The district court dismissed

Plaintiffs’ negligence claims based on Utah’s Governmental Immunity Act, which

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provides immunity to the State when the alleged harm is caused by a third party’s

assault or battery. As for Plaintiffs’ Fourteenth Amendment claim, the court held

that the caseworker and her supervisor were entitled to qualified immunity

because Plaintiffs had not shown a failure to exercise professional judgment on

the part of the caseworker, nor had they shown any basis for holding the

supervisor liable under § 1983. Plaintiffs challenge these decisions on appeal.

DISCUSSION

We review the district court’s dismissal of Plaintiffs’ negligence claims

under Rule 12(b)(6) de novo. See MacArthur v. San Juan Cnty., 309 F.3d 1216,

1220 (10th Cir. 2002). We also review the district court’s grant of summary

judgment on qualified immunity grounds de novo, applying the same standard as

the district court. See Lawmaster v. Ward, 125 F.3d 1341, 1346 (10thCir. 1997).

We first consider the dismissal of Plaintiffs’ negligence claims on

governmental immunity grounds. Under Utah law, a three-step test determines

whether the State retains immunity from suit. See Hoyer v. State, 212 P.3d 547,

553 (Utah 2009). This test considers “(1) whether the activity undertaken is a

governmental function; (2) whether governmental immunity was waived for the

particular activity; and (3) whether there is an exception to that waiver.” Peck v.

State, 191 P.3d 4, 7 (Utah 2008) (internal quotation marks omitted). The parties

agreed for purposes of the motion to dismiss that the State’s blanket immunity

had been waived, absent an exception, by Section 63G-7-301(4) of the Utah Code,

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which waives immunity for “any injury proximately caused by a negligent act or

omission of an employee committed within the scope of employment.” Utah

Code Ann. § 63-G-7-301(4). However, Defendants contend—and the district

court agreed—that an applicable exception to that waiver was provided in the next

subsection of the statute, which states that immunity is not waived under

subsection 4 “if the injury arises out of, in connection with, or results from: . . .

(b) assault, battery, . . . or violation of civil rights.” Id. § 63G-7-301(5).

On appeal, Plaintiffs argue the district court erred in holding that this

exception provided the State entities with immunity for the alleged harms caused

by W.C.C. Plaintiffs argue that their complaint’s allegations regarding W.C.C.’s

young age and “mental impairments” 1 were sufficient to create a fact issue as to

whether his actions could be considered intentional torts. (Appellant’s Opening

Br. at 20.) However, we conclude that the district court correctly dismissed

Plaintiffs’ negligence claims based on the battery exception to Section 63-G-7-

301’s waiver of immunity.

1
In their complaint, Plaintiffs alleged that W.C.C. was being medically
treated for Attention Deficit Hyperactivity Disorder when he was placed with
them and that he later received treatment at a day treatment program at Valley
Mental Health and an in-patient program at Primary Children’s Hospital. We are
not persuaded, however, by Plaintiffs’ assertion that these allegations created a
factual dispute as to whether W.C.C.’s actions were conscious and deliberate. We
see nothing in the complaint supporting Plaintiffs’ contention that W.C.C.’s
alleged mental problems were sufficiently severe that his actions could be found
to have been purely autonomic.

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 Under Utah law, a battery is committed if (1) the actor deliberately makes a

physical contact and (2) this contact is deemed harmful or offensive at law,

regardless of whether the actor was aware of the harmful or offensive nature of

the contact. See Wagner v. State, 122 P.3d 599, 603-04 (Utah 2005). Although

W.C.C. may not have been aware of the harmful or offensive nature of his contact

with A.W., the types of contacts alleged in Plaintiffs’ complaint—repeated

physical and sexual abuses—were of a deliberate nature, and they certainly fall

within the definition of harmful or offensive contacts. See id. at 609 (explaining

that “the law defines ‘harmful and offensive’ with reference to the mores of polite

society, and protects against invasions of bodily integrity perpetrated outside

those bounds”); see also id. at 605 (explaining that the “actor need not appreciate

that his contact is forbidden; he need only intend the contact, and the contact

must, in fact, be forbidden”).

We are not persuaded by Plaintiffs’ argument that the Wagner test applies

only to adults and that Utah requires a higher showing of intent for children.

Plaintiffs argue that the Wagner court made clear that physical contacts from a

young child will not be batteries per se. However, the court’s reasoning—that

certain contacts from very young children are not deemed offensive or harmful at

law because reasonable people would consider these contacts to be normal and

customary—relates only to the second prong of the test for battery and does not

assist Plaintiffs’ argument that Utah courts would require an additional intent

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element under the first prong of this test for physical contacts made by children.

Nothing in Wagner suggests the Utah Supreme Court would find the violent

physical and sexual attacks alleged in this case to be exempt from the definition

of battery simply because they were committed by a six-year-old child who was

being treated for ADHD. Nor are we persuaded by Plaintiffs’ citation to the

Restatement comment that “[a] child may be of such tender years that he has no

awareness of these matters and is in fact incapable of the specific intent that is

required.” Restatement (Second) of Torts § 895I, cmt. b. We are not convinced

Utah courts would interpret this comment to mean that a child, unlike an adult,

must have the specific intent to harm or offend, and not just the specific intent to

make a contact that will be objectively considered harmful or offensive at law.

Like an adult having an epileptic fit, a very young child may not always be in

control of his limbs and thus may make a physical contact without having the

intent to do so. Cf. Restatement (Second) of Torts § 895J cmt. c, illus. 2. This

does not suggest, however, that contacts initiated by children must satisfy an

additional intent element in order to be considered intentional torts. We are also

unpersuaded that the Utah Supreme Court’s discussion of a significantly different

legal standard in the insurance case of N.M. v. Daniel E., 175 P.3d 566 (Utah

2008), should inform our consideration of the appropriate standard to apply in an

intentional tort case.

We are persuaded the Utah Supreme Court would apply the Wagner test to

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cases involving children as well as adults, and we conclude W.C.C.’s alleged

conduct fell squarely within the definition of battery. We thus affirm the district

court’s dismissal of Plaintiffs’ negligence claims on governmental immunity

grounds under Section 63-G-7-301.

We turn now to the district court’s grant of summary judgment on qualified

immunity grounds to the children’s caseworker and her direct supervisor on A.W.

and M.W.’s Fourteenth Amendment due process claim. 2 State officials are

generally liable under the due process clause only for their own acts, and not for

violence committed by others. See Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.

1995). However, “there are two recognized . . . exceptions to this rule: (1) the

special relationship doctrine; and (2) the ‘danger creation’ theory.” Id. In this

case, Plaintiffs rely on the first exception, the special relationship doctrine. This

doctrine applies “when the state assumes control over an individual sufficient to

trigger an affirmative duty to provide protection to that individual.” Id. Thus,

the State owed A.W. and M.W. the affirmative duty of protection while they were

in foster care. See Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 892-

93 (10th Cir. 1992). Indeed, the constitutional right of foster children to be kept

2
It does not appear that J.W. and M.R.W. raised a Fourteenth Amendment
claim against any Defendants. In any event, since these two Plaintiffs were not in
the State’s custody, they would be unable to succeed on the special relationship
theory asserted in this case. See Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.
1995) .

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reasonably safe from harm has been clearly established since at least 1985. Id.

However, state officials will only be found to have violated this right if

they “knew of the asserted danger to [foster children] or failed to exercise

professional judgment with respect thereto, . . . and if an affirmative link to the

injuries [the children] suffered can be shown.” Id. at 890. The applicable

standard, “‘failure to exercise professional judgment,’ requires more than mere

negligence: it requires an abdication of such professional responsibility,” and

“[s]uch abdication must be sufficient to shock the conscience.” Johnson v.

Holmes, 455 F.3d 1133, 1143 (10th Cir. 2006).

Plaintiffs contend that the children’s caseworker abdicated her professional

responsibilities when she placed W.C.C. in Plaintiffs’ home because she neither

considered W.C.C.’s history nor deliberated on whether this placement would be

in A.W. and M.W.’s best interests. However, the undisputed evidence in the

record refutes these contentions. The record reflects that the caseworker knew of

the children’s histories and had observed their interactions, considered their

safety, and received reports from Plaintiffs regarding W.C.C.’s pre-placement

visits when she decided that this placement would be safe and appropriate for all

involved. Plaintiffs have not demonstrated a factual dispute as to whether the

caseworker actually made this decision following deliberation and consideration

of the relevant facts, and they do not argue or cite to “particularized evidence”

showing that this decision “was an impermissible deviation from professional

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judgment.” Johnson, 455 F.3d at 1144. We therefore affirm the district court’s

grant of summary judgment to the caseworker on Plaintiffs’ due process claim

against her.

As for the caseworker’s supervisor, the district court correctly concluded

that Plaintiffs’ claim was essentially one of negligent supervision, which is

insufficient to support a § 1983 claim. See Woodward v. City of Worland, 977

F.2d 1392, 1400 (10th Cir. 1992). The undisputed evidence in the summary

judgment record reflects that the supervisor was not responsible for the placement

decision on which Plaintiffs’ claim is premised. Plaintiffs have cited to no

evidence that the supervisor personally participated or knowingly acquiesced in

the alleged deprivations of Plaintiffs’ constitutional rights, and thus the district

court correctly held that Plaintiffs have not set forth a valid basis for finding the

supervisor liable under § 1983. See id.

CONCLUSION

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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