Tuesday, March 3, 2020
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Ninth Circuit:
County Not Liable for Failure to Remove Child From Foster Home Despite Peril
Dissent Says Duty Existed to Boy Whose Sister, 3, Died in His Arms After Second Instance of Ingesting Methamphetamine
By a MetNews Staff Writer
A county and two of its employees are entitled to qualified immunity in an action brought on behalf of a boy who, with his sister, was placed in a foster home and not removed from there even after the girl, then days from her third birthday, was hospitalized based on aberrant conduct, with a blood test showing she had ingested methamphetamine.
Although social workers were aware of that finding, no effort was made to remove the children from the home.
According to a decision by District Court Judge Yvonne Gonzalez Rogers of the Northern District of California, the girl, M.M., 13 days later “exhibited unusual behavior and symptoms, including being petrified by imaginary spiders, cramping and contortion of her hands, shaking fingers, speaking incoherently with her eyes closed, and stomach spasms,” and “[h]ours later,…died in her brother’s arms.”
In his civil rights action, the boy claimed “a sibling’s rights to be free from the government’s creation of danger and failure to protect foster children as proscribed by the Fourteenth Amendment” and an “invasion of a family member’s right to association under the First Amendment.”
A memorandum opinion—by Ninth Circuit Judge Johnnie B. Rawlinson and Michael R. Murphy, a circuit judge for the Tenth Circuit, sitting by designation—reverses Rogers’ denial of qualified immunity on those claims. Circuit Judge Richard Paez dissented.
State-Created Danger
The majority’s opinion says that the state-created danger exception to the general rule against governmental liability for the conduct of non-government actors only applies where the plaintiff was personally harmed by a third party. It declares:
“Appellee alleged that the Appellants’ failure to remove him from his foster home caused him emotional distress, exposing him to potential harm from drugs. Appellee never alleged any direct harm to him, only to his sibling. Our cases have not recognized a Fourteenth Amendment violation under these two exceptions for emotional distress alone, or for direct harm to another party….Because no law clearly established that child welfare workers could be liable to a sibling who suffered no direct injury as a result of a state-created danger or special relationship, the defendants were entitled to qualified immunity.”
Loss of familial relationship, the opinion says, “has been limited to that between a parent and child.” The Ninth Circuit’s 1991 decision in Ward v. City of San Jose, it points out, expressly precludes an action by a sibling under the Fourteenth Amendment.
“No basis exists to disregard this precedent simply because the claim is raised under the First Amendment rather than the Fourteenth Amendment,” it says. “Notably, the dissent cites no case to that effect.”
Paez’s Dissent
Paez insisted that the defendants “overlooked” their obligations to foster children by causing them to remain in the foster home after the girl’s hospitalization. He said that “contrary to the majority’s position,” the plaintiff “did allege that he suffered a direct harm, even though he did not personally ingest methamphetamine; he claims that he suffered emotional distress as a result of losing his younger sister when she died from ingesting methamphetamine a second time at that home.”
The decision in Ward, he asserted, is inapposite because it does not entail the First Amendment right to familial association. Paez explained:
“[T]he First Amendment goes beyond protecting what we deem ‘historic’ or traditional, or against government action that shocks the conscience. It protects ‘certain intimate human relationships’....The relationship between two sibling children raised in the same foster home—and the emotional attachments that derive therefrom—would, in my view, certainly fall under the type of intimate relationship protected under First Amendment.”
(Although Paez said he agrees “in full with the district court’s thorough and reasoned analysis,” he did not take note that Rogers, while denying qualified immunity with respect to “the First Amendment right to familial association,” did grant immunity as to allegations of a denial of ““the First Amendment right to intimate association.”)
Paez made note of the U.S. Supreme Court’s 1984 pronouncement in Roberts v. U.S. Jaycees that childhood siblings share precisely the kind “of highly personal relationship” that warrants a “substantial measure of sanctuary from unjustified interference by the State.”
The majority’s opinion counters that Paez’s reliance on that case “is completely misplaced, as it does not even address foster home placement or sibling relationships,” adding:
“Rather, that case involved the exclusion of women from a fraternal organization….Nothing in that case supports the dissent’s position that child welfare workers could be liable for indirect injury to a sibling, or the argument that a loss-of-familial-association claim exists for siblings under the First Amendment.”
The case is J.P. v. County of Alameda, 18-15963.
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