Opinion
CIVIL ACTION NO. 3:99-CV-1654-P
November 22, 2002
MEMORANDUM OPINION AND ORDER
Plaintiffs have sued current and former employees of Child Protective Services ("CPS"), an arm of the Texas Department of Protective and Regulatory Services ("TDPRS"), in connection with the death of Eric Hernandez, who died while in the custody of a state-licensed foster family. Eric had been removed from the custody of his parents pending an investigation into suspected child abuse. His parents, individually and on his behalf, have lodged complaints against these state employees based on 42 U.S.C. § 1983 and common-law negligence.
Now before the Court for consideration are Defendants' Motion for Summary Judgment, filed July 31, 2002; Plaintiffs' Response, filed August 19, 2002; and Defendants' Reply, filed September 9, 2002. After reviewing the motion, the pleadings, the summary-judgment evidence, and applicable case law, the Court hereby GRANTS IN PART and DENIES IN PART Defendants' Motion.
I. Factual Background
The events leading to Eric's death began long before his birth on New Year's Day 1999. They story begins in March 1997 when CPS approved the home of Sue and Jerome Claud as a foster home. App. to Def.'s Br. at 15. In April or May 1997 CPS assigned Defendant Diane Purdin to monitor the home for compliance with agency standards, which she did over the next two years, making eight visits to the home. Id. Ms. Purdin claims she never observed "any condition in the home or behavior of any one in the household, which would have indicated to me that any of the children placed there were in danger." Id. Indeed, when Marianne Sharp reviewed the Clauds' foster-home case file in the spring of 1999, it contained no documented complaints. See Pl.'s Resp., Ex.6 at 12.
On March 21, 1997, "Rolling Hills Day Care Center called [CPS] . . . with concerns about the care provided to" the first two children in the care of Sue and Jerome Claud. The caller complained that Mrs. Claud sent the children (both less than 16 months old) to daycare "in dirty diapers," with too few and unsterilized bottles, and with instructions to dilute the baby formula at twice the ordinary rate. This information was to be sent to a CPS worker, though no report was to be written. See Pl.'s Resp., Ex. 11.
The Clauds contacted CPS employees in January 1998 about adopting a child they had fostered in March 1997. The CPS workers "reviewed [the Clauds'] home study and decided NOT to place [the child] back with them." Id., Ex. 6 at 8-9 (emphasis original).
In May 1998, a CPS employee removed two children from the Clauds' home. One child had twice flooded the bathroom and once placed pillows on another toddler in the house. Wrote the social worker responsible for the children, "Due to what I thought was a dangerous situation with [Mrs. Claud] not supervising the children in her home and obviously having negative feelings about at least one of the children, I moved the kids." The bathroom at the new foster home was soon also flooded. The new foster mother quickly discovered that the child "apparently thought that you flush your pull-ups [disposable toddler diapers] when you go to the bathroom." The new mother dealt with the problem "and had no other problems or complaints about . . . the two children." Id., Ex. 6 at 7.
The next month, Patty Zukas, a CPS case worker, visited the Clauds. The "home was a mess." Mrs. Claud left "3 young children in the playpen together the entire time [Zukas] was in her home (about 2 1/2 hours)." The home "smelled of [cigarette] smoke so badly that [Zukas] had a headache when [she] left [the] home." Id., Ex. 6 at 6.
Later that summer, another case worker had two children in the Claud home. He describes the home as "junky," "in disarray." Mrs. Claud seemed "lazy and didn't take the time to care for . . . the children. . . She never appeared very nurturing." Notwithstanding the fact that he "personally [did not] care for the Claud home," the case worker never saw any specific thing "that caused [him] concern about the immediate safety of the children." Id., Ex. 6 at 8.
At some point, caseworker Danielle Wilson had two children in the Claud home. Mrs. Claud "never follow[ed] through" with visits to the children's siblings. She did not supervise the children and "never had anything positive to say about the children . . . "According to the case worker, the children "would be so dirty when they came for visits (with snot all over their faces) that [she] would have to clean them up before they saw their parents." Id.
In September 1998, Mrs. Claud brought a child to CPS who had a swollen jaw, which was starting to bruise. Mrs. Claud explained that the child "just woke up with it this morning." Patty Zukas brought this circumstance to the attention of the case worker and Diane Purdin. Id., Ex. 6 at 6.
The next month, Purdin learned that Mrs. Claud had placed a device on a foster child's bedroom doorknob, which effectively locked the child in its room. Locking a child in a room is a licensing standards violation. Id., Ex. 5 at 6. When Pudin investigated, she learned that the child had been wandering about the house at night. Mrs. Claud agreed not to use the device any longer.
The record contains additional negative reports about the Claud home, though without any date specified. "[I] never saw Mrs. Claud get off of the couch . . . [It] was 2:30 and [the child] had not had any lunch. There did not appear to be much nurturing taking place." Id., Ex. 6 at 6. One child brought to CPS with Mrs. Claud had "a diaper that was so wet that [it had] soaked [the] entire outfit." Id. at 6-7. "I feel that Sue is just overwhelmed with having the foster children, especially young ones that are very active. I have concerns about her way of supervising the children." Id. at 7. "I do not like the foster home. My feeling was the house was too clutter[ed], not clean and had a bad cigarette odor to it. Even if you did a home visit after you left your clothes would smell like smoke. . . . I don't think that the children received the nurturing that is needed while in foster care from her." Id. at 9. "My primary concerns were Mrs. Claud's ability to manage and meet the needs of the child." Id. "I found her home to be disgusting. I don't know how anyone could live in the environment she lives in." Id. at 10. Though several of the workers had positive remarks, the overall tone of the reports (all elicited after Eric Hernandez died) were fairly negative. The record shows that, before Eric was even born, caseworkers at CPS had concerns about the Claud home. The summary-judgment evidence also shows that few of these concerns were ever communicated to any of the Defendants before Eric was placed in the home. See id. at 12.
By the fall of 1998, Denise Carol Baker, an investigative supervisor at CPS, had grown concerned about "a serious problem" at CPS "regarding understaffing and high turnover." Pl.'s Resp., Ex. 3. These problems, she avers, "were well known throughout the CPS organization." She found it "difficult to perform [her] job in a manner which [she] believed sufficient" and had "grave concerns about ongoing risk to Dallas County children." She and other supervisors met with Defendant Wayne Hairgrove to discuss theses issues "and their dire implications for child abuse and neglect victims." Ms. Baker resigned in the spring of 1999 "due to an oppressive and unmanageable caseload." Id.
TDPRS published the very next month a report entitled Child Abuse and Neglect Related Deaths in Texas and the Nation ("TDPRS Report"). According to this report, "103 Texas children died as a result of abuse or neglect" in 1997, while another 176 children died in 1998. Pl.'s Resp., Ex. 2 at i. To deal with this significant problem, the TDPRS Report recommended that Texas' CPS programs address understaffing and turnover problems, train caseworkers to identify risk factors for abuse and neglect, and hire more supervisory personnel. Id. at iii. The TDPRS Report included a discussion of a study that identified tangible and intangible factors which CPS workers should look for when investigating abuse. See id. at 9-10 14-15. In certain cases where a child died despite contact with CPS workers, "it appeared CPS could have completed a more thorough risk assessment." Id. In other cases, "the agency conducted complete investigations but failed to recognize key factors that later were found to be related to the child's unsafe condition." Id. The TDPRS Report found that
High caseloads have resulted in fewer hours available for training to improve caseworker and supervisory skills. High turnover has forced limited training resources to be spent on basic job training of new employees rather than advanced clinical and investigation training. Without proper training, caseworkers are not prepared to recognize or assess family conditions that jeopardize a child's safety and create a likelihood of serious harm or death. This is especially true for chronic neglect conditions, where the immediacy of the harm is less apparent.Id. at 11 (emphasis added).
The TDPRS Report listed actions then in process to address these concerns. Risk-assessment tools were to be revised and the Child and Adult Protection System was to be "modified to assist caseworkers in identifying cases that meet high risk criteria." Pl.'s Resp., Ex. 2 at 17. Also planned was "[i]ntensive training emphasizing the newly identified risk factors" for "all CPS field staff." Id. Family Based Safety Services (formerly Family Preservation and Reunification Services) workers and supervisors were to receive this training by the end of summer 1999; the remaining staff would be trained in these matters by January 2000. A new risk-assessment tool was due for implementation in the year 2000.
Eric Hernandez was born to Nicolas Hernandez and Juana Olalde on New Year's Day 1999. On January 19, 1999, Annie Sharp made a "Priority 1 — Physical Abuse" referral after observing bruises on each of two children in the care of Mrs. Claud. One child "had a brownish bruise on her right thigh. [The other] had a greenish bruise on the right side of her buttocks. The bruise was 'big in size.' There were "fading marks' underneath the bruise." Id., Ex. 7 at 5. Mrs. Claud claimed not to know where the bruises came from, but suggested that they came from jumping on the bed. Ms. Sharp "believed that [the children] could not [have] received the bruises from jumping on the bed." Id.
Defendant Lois Lilly investigated the allegations but ruled out abuse. The children denied being hit. During the home visit, Mrs. Claud suggested that the bruises probably came from the children "climb[ing] and run[ning] into things." They were very active children, even during Defendant Lilly's visit. She "observed the children running up and down the hall, climbing onto the furniture, and bumping into one another." Pl.'s Resp., Ex. 5 at 1. She spoke with Annie Sharp and Carla Brown, who "both said these foster parents were appropriately upset about the unexplained bruises." Id. Defendant Lilly concluded that the Clauds "'have a realistic outlook on foster parenting, and they appear nurturing and appropriate.'" Id.
An anonymous caller reported on January 28, 1999, that Mrs. Claud would lock the children in a closet while she worked on crafts. The caller said that the home was not hygienic, and that the father did not provide proper supervision. It was also suggested that the foster parents were told of upcoming visits and thus had a chance to spruce up the home to impress CPS workers. The next day, Defendant Lilly returned to the Claud home. She spoke to Mrs. Claud, but not Mr. Claud, and determined that it was unlikely that the children "could be locked in a closet without destroying the closet." Id. at 2. Defendant Lilly "described the Claud home as neat, adequately furnished, and child proof" Id. She again ruled out abuse. Id. The record suggests that a natural parent might have made the anonymous complaint. Id.
Defendant Lilly claims to have exercised her "best judgment" in "determin[ing] that the allegations were not valid." Lilly Aff. During the investigation into the death of Eric Hernandez, however, she told Defendant Amy Millender "that she felt pressure from Diane Purdin to 'rule out' and close the case/get it written up quickly so they could place another "baby' in the home." Pl.'s Resp., Ex. 6 at 7. She told Millender that "she had concerns about the foster mother" and "had a 'feeling' about the foster parent but could not validate abuse." The bottom line, Millender reported to Marianne Sharp, was that Lilly "felt foster care was anxious for the investigation to be over so another child could be moved into the home." Id. CPS cited this alleged "pressure" in its report on the death of Eric Hernandez. See Pl.'s Resp., Ex. 5 at 7.
Patty Zukas visted the Claud home on February 24, 1999. The report of this visit is almost entirely redacted. The only information remaining states that she "did observe [a child] to show affection to Sue and she did respond back appropriately." Pl.'s Resp., Ex. 6 at 6.
On February 27, 1999, Juana Olalde and Nicolas Hernandez took their child, seven-week-old Eric, to Children's Medical Center because Eric kept crying and his leg was swollen. Ms. Olalde claims that she tripped and fell while carrying Eric in her arms. See Pl.'s Resp., Ex. 5 at 2. Eric suffered a spiral fracture to his right femur. Medical personnel became suspicious about the circumstances surrounding the injury because "[Ms. Olalde's] explanation was not consistent with Eric's injury." Id. A CPS worker removed Eric from the custody of his mother and placed him in the Claud home until the suspicions could be thoroughly investigated. See Def.'s Br. at 2.
CPS investigated those suspicions in the first few days of March 1999. On March 5, Mrs. Claud took Eric to the Children's Medical Center orthopedic clinic, where he was placed in a spica cast that covered his leg and torso. Pl.'s Resp., Ex. 5 at 3. Two days later, Mrs. Claud discovered Eric face down on a pillow in his crib — he had stopped breathing. Id. at 4. The Clauds took him to Charleton Methodist Hospital, but he was declared dead in the early hours of March 8, 1999. Id.
During CPS's investigation of Eric's death, Marianne Sharp solicited comments from case workers about their experiences with the Clauds. She received about a dozen responses. These responses were mixed, but generally negative. No memoranda or "dictation" recording these complaints were found in the Clauds' foster home case file. See Pl.'s Resp., Ex. 6 at 12.
II. Plaintiffs' Complaint and Defendants' Motion
The Plaintiffs filed their Original Complaint on October 7, 1999, and a Second Amended Complaint on May 15, 2001, asserting claims under 42 U.S.C. § 1983 and common-law negligence. Several state defendants were dismissed by order of this Court on September 7, 2001. Plaintiffs reached a settlement with the Clauds in February 2002. See Order Dismissing With Prejudice, entered February 19, 2002. of the ten defendants originally named, only four remain. Wayne Hairgrove, now retired, was Region 3 Director for TDPRS at all times relevant to this suit. Amy Millender was a CPS Supervisor during the investigation into Eric's death. Lois Lilly was a CPS Investigator during the winter of 1999; she has since become a supervisor. And Diane Purdin, now retired, was a CPS Placement Worker at all times relevant to this suit.
Plaintiffs' Second Amended Complaint separates claims against so-called "State Directors" and "Regional Directors" from claims against "State Social Workers." The remaining defendants include one "Regional Director" and three "State Social Workers." The Complaint alleges that State and Regional Directors (including Defendant Hairgrove) are liable to Plaintiffs under 42 U.S.C. § 1983 because they knew that they did not (1) adequately train or supervise foster parents; (2) adequately train foster placement workers or foster home developers; or (3) adequately train the Clauds, and that the need to train was so obvious and the failure so likely to result in the deprivation of constitutional rights of foster children that the failure to train amounted to deliberate indifference. See Pl's Second Am. Compl. ¶¶ 43, 44 46.
Plaintiffs presented five theories of liability under § 1983 against the State Social Workers: deliberate indifference, lack of professional judgment, unconstitutional conditions of confinement, failure to train the Clauds, and state-created danger. Pl.'s Second Am. Compl. ¶¶ 26-37. These theories of liability pertain only to Defendants Millender, Lilly, and Purdin.
The motion currently before the Court seeks summary judgment in favor of the remaining defendants. Defendants present the following grounds for summary judgment:
A. The Actions of the Defendants were objectively reasonable.
B. The Plaintiffs cannot show that the defendants knew of a specific danger to Eric Hernandez of the particular injury the plaintiffs suffered.
C. With respect to their state law negligence claims, the defendants are entitled to official immunity.
The Motion seeks summary judgment as to all claims and all defendants based on qualified immunity. The Motion also seeks summary judgment as to the state-created-danger claims asserted against Defendants Millender, Lilly and Purdin. Finally, Defendants seek summary judgment with respect to the common-law negligence claims based on the affirmative defense of official immunity.
III. Summary-Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party bears the burden of identifying the basis for its belief that there is an absence of a genuine issue for trial, and pointing out those portions of the record that demonstrate such an absence. Id. Once the movant has made this initial showing, the nonmoving party must present competent summary-judgment evidence to show a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Such evidence consists of specific facts that show a genuine fact issue, such that a reasonable jury might return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). But mere conclusory statements, speculation, and unsubstantiated assertions are insufficient to fend off a motion for summary judgment. Id. at 248-50; Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993).
If the nonmoving party fails to present probative evidence with respect to an essential element of his case, on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Admin. Central S.A., 776 F.3d 1277, 1279 (5th Cir. 1985). But if the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. Mbank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1999).
III. The State-Created Danger Claim
Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law." 42 U.S.C. § 1983. The constitutional right at issue in this case is Eric Hernandez's right, as a foster child, to personal security and reasonably safe living conditions. See Memo. Opinion Order of Sept. 7, 2001, at 5 (citing Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987); K.H. through Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990)).
One theory of liability under § 1983 is the so-called "state-created danger theory." To recover under this theory, a plaintiff must demonstrate two things: "First, a plaintiff must show that the state actors increased the danger to her. Second, a plaintiff must show that the state actors acted with deliberate indifference." Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995). "[T]he environment created by the state actors must be dangerous; they must know it is dangerous; and, to be liable, they must have used their authority to create an opportunity that would not otherwise have existed for the third party's crime to occur." Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994). "Such a situation could arise by virtue of the state affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid." Wideman v. Shallowford Comm'y Hopsital, Inc., 826 F.2d 1030, 1035 (11th Cir. 1987). key to this theory is the circumstance that the state actor puts a known victim into a dangerous situation: the theory "is inapposite without a known victim." Saenz v. Heldenfels Bros., Inc., 183 F.3d 389, 392 (5th Cir. 1999). The Fifth Circuit has never expressly adopted the state-created danger theory of recovery. See McClendon v. City of Columbia, 305 F.3d 314, 325 (5th Cir. 2002) (en banc, per curiam); Piotrowski v. City of Houston, 237 F.3d 567, 584 (5th Cir. 2001).
The other theory is the "special relationship" theory of liability. When a state agency removes a child from the custody of his natural parents and places him under state supervision in the form of licensed foster home, the State stands in a "special relationship" to that child. Griffith v. Johnson, 899 F.2d 1427, 1439 (5th Cir. 1990) (Jones, J.). See also Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000); Yvonne L. by and through Lewis v. N.M. Dept. of Human Svcs., 959 F.2d 883, 891 (10th Cir. 1992); K.H. through Murphy v. Morgan, 914 F.2d 846, 849 (7th Cir. 1990) ( Posner, J.); Taylor by and through Walker v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987); Doe v. N.Y. Dept. of Soc. Svcs., 649 F.2d 134, 141 (2d Cir. 1981); Wendy H. through Smith v. City of Philadelphia, 849 F. Supp. 367, 371 (E.D. Pa. 1994); Jensen v. Conrad, 570 F. Supp. 114, 122 (D.S.C. 1983).
Defendants' Motion for Summary Judgment appears to be directed toward Plaintiffs state-created-danger claim. They maintain that Plaintiffs cannot recover on a state-created-danger theory because they cannot establish an essential element of their case. "Plaintiffs cannot show that the defendants knew of a specific danger to Eric Hernandez of the particular injury the plaintiffs suffered." Def.'s Mot. at 1. Defendants point to a purported absence of evidence to the effect that a known victim was in immediate danger due to the acts of Defendants. Def.'s Reply at 2.
The wording of Defendants' second ground for summary judgment echoes the standard of liability in state-created-danger cases, and the case law cited in their brief addresses this theory only. Nothing in the motion or the briefs indicates an intent to dispose of any other theory of liability asserted against Defendants Millender, Lilly, and Purdin.
Defendants cannot plausibly argue that there was no "known" victim. A comparison with Saenz v. Heldenfels Bros., Inc., 183 F.3d 389 (5th Cir. 1999), is instructive here. In Saenz, two police officers failed to stop a suspected drunk driver who sat at a stop sign in front of their squad car for fifteen minutes. They allowed the drunk to drive away. Soon afterwards, the officers learned that the drunk had crashed into an oncoming vehicle, killing two persons and injuring three others. Id. at 389. The Court of Appeals held that summary judgment was proper because the defendant officer "was neither aware of a known victim, nor did he use his authority to prevent [the victims] from receiving aid." Id. at 392. When the officers let the drunk leave, there was no way of knowing who (if anyone) might be harmed by the drunk driver. By contrast, when CPS placed Eric in the Claud foster home, it was clear who (if anyone) might be harmed in that home. Eric, quite simply, was a known victim. The Motion for Summary Judgment is DENIED with respect to the state-created-danger claims under § 1983.
IV. Qualified Immunity
A. Legal Standard
Qualified immunity is an affirmative defense, and it must be raised by the defendant. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001). To call it an affirmative defense, however, is a bit misleading. It is not merely a defense to liability; it provides immunity from suit. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Qualified immunity protects state officials from suit when it appears that a reasonable official, in light of clearly established law and the information known to the defendant at the time he acted, could have believed that the defendant's actions were lawful. Anderson v. Creighton, 483 U.S. 635, 641 (1987). The focus of a court's inquiry into qualified immunity is on the "objective legal reasonableness of an official's acts." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).
This Court previously declined to dismiss Defendants based on the facts alleged in the pleadings. See Order of Sept. 7, 2001. In doing so, the Court found that the facts alleged, if true, would constitute a violation of Eric Hernandez's constitutional rights. Id. at 5. Defendants do not now dispute this reading of the pleadings. Instead, they move for summary judgment on grounds that the evidence adduced by Plaintiffs demonstrates that Defendants' actions were objectively reasonable. Def.'s Br. at 5 6. "On summary judgment, . . . the plaintiff can no longer rest on the pleadings . . . and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the Harlow inquiry," that is, when considering objective legal reasonableness. Behrens v. Pelletier, 516 U.S. 299, 309 (1996); McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc, per curiam). This question cannot be resolved as a matter of law if there are contested issues of material fact. Bazan, 246 F.3d at 490. But "to the extent that the relevant discrete, historic facts are undisputed . . . the question of the objective [legal] reasonableness of the defendant's conduct . . . is . . . a question of law." Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997).
For Plaintiffs to survive summary judgment, they must produce facts that indicate "that [each defendant's] conduct was objectively unreasonable in light of law that was clearly established at the time of [their] actions." McClendon, 503 F.3d at 323. In conducting this inquiry, the Court must bear in mind the particular theory of recovery asserted against each defendant. The Court first considers the objective legal reasonableness of the actions taken by the State Social Workers. The Court then turns to Defendant Hairgrove.
B. The State Social Workers
1. Special Relationships and Deliberate Indifference
To determine whether the summary-judgment evidence shows Defendants' conduct to be objectively unreasonable, it is first necessary to delineate the "clearly established law" concerning a State's duties toward children in state-licensed foster care as that law stood in the winter of 1999. The Supreme Court has acknowledged that the State owes a "duty to assume some responsibility for [the] safety and general well-being" of persons taken into its custody and held against their will. DeShaney v. Winnebago County Dept. of Soc. Svcs., 489 U.S. 189, 199-200 (1989). The constitutional violation alleged in this case derives from this principle, that the State must provide "basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety" — of those with whom it stands in a "special relationship." Id. at 200. When a state agency removes a child from the custody of his natural parents and places him under state supervision in the form of licensed foster home, the State stands in a "special relationship" to that child. Griffith v. Johnson, 899 F.2d 1427, 1439 (5th Cir. 1990) (Jones, J.). See also Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000); Yvonne L. by and through Lewis v. N.M Dept. of Human Svcs., 959 F.2d 883, 891 (10th Cir. 1992); K.H. through Murphy v. Morgan, 914 F.2d 846, 849 (7th Cir. 1990) (Posner, J.); Taylor by and through Walker v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987); Doe v. N.Y Dept. of Soc. Svcs., 649 F.2d 134, 141 (2d Cir. 1981); Wendy H. through Smith v. City of Philadelphia, 849 F. Supp. 367, 371 (E.D. Pa. 1994); Jensen v. Conrad, 570 F. Supp. 114, 122 (D.S.C. 1983).
The courts are split over what standard of liability should apply in special-relationship cases involving children in state-sponsored foster care. The Second and Eleventh Circuits require a showing of deliberate indifference to establish § 1983 liability in foster-care cases. See Doe, 649 F.2d at 144-45; Taylor, 818 F.2d at 795-96. Other circuits apply the professional-judgment standard articulated in Youngberg v. Romeo, 457 U.S. 307 (1982), the case from which the special relationship theory is derived. Under Youngberg, a decision made by a professional "is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323. See Yvonne L., 959 F.2d at 894; K.H., 914 F.2d at 854; Wendy H., 849 F. Supp. at 372-374; Lashawn A. v. Dixon, 762 F. Supp. 959, 996 (D.D.C. 1991), remanded on other grounds sub nom., 990 F.2d 1319, 1325 (D.C. Cir. 1993).
The Fifth Circuit has not yet addressed this issue. It recently noted that "courts applying both the "special relationship' exception to the DeShaney rule and the 'state-created danger' exception to the DeShaney rule have generally required plaintiffs to demonstrate . . . that the defendant state official at a minimum acted with deliberate indifference toward the plaintiff." McClendon v. City of Columbia, 305 F.3d 314, 326 (5th Cir. 2002) (en banc, per curiam). Elsewhere, the Fifth Circuit has questioned the continuing vitality of Youngberg in light of DeShaney. See Hare v. City of Corinth, 74 F.3d 633, 647 (5th Cir. 1996). Plaintiffs have not presented this Court with any reason to believe that one standard applies rather than the other. Following the dicta in McClendon and Hare, the Court applies the deliberate-indifference standard in determining whether the summary-judgment evidence shows that a reasonable state official in a particular defendant's position, knowing what that defendant knew at the time she acted, could have believed, in light of clearly established law, that the defendant's actions were lawful.
Defendants do not maintain that the law on a social worker's liability in this arena was "clearly established."
"Deliberate indifference is more than mere negligence." Conner v. Travis County, 209 F.3d 794, 796 (5th Cir. 2000) (per curiam). It is a "lesser form of intent," as opposed to "gross negligence," which is a "heightened degree of negligence." See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 n. 7 (5th Cir. 1994) (en banc) (citing Germany v. Vance, 868 F.2d 9, 18 n. 10 (1st Cir. 1989)). In the Eighth Amendment context, the Supreme Court has held that "a prison official cannot be found liable . . . for denying an inmate humane conditions of confinement unless the official 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." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Mindful that an infant in state-sponsored foster care deserves a higher degree of solicitude than the minimum required for a convicted criminal in the custody of the State, the Court applies the standard used in Roes through Bazerman v. Florida Department of Children Family Services: To demonstrate deliberate indifference in a foster-care case, the plaintiff must show that each defendant subjectively knew of (but disregarded) a risk of serious harm to children in a foster home. See 176 F. Supp.2d 1310, 1321 (S.D. Fla. 2001) (citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)).
The Roes case — where the district court held that certain defendants were not entitled to summary judgment on the basis of qualified immunity — is instructive on this matter. In Roes, the record told a "harrowing tale" of the neglect and verbal, physical, and sexual abuse of four siblings initially placed in the foster care of, and later adopted by, the Lynches. Id. at 1313.
Qualified immunity was denied to one defendant in part because she knew of a serious risk of abuse. After the children had been with the Lynches for about a year, the defendant learned that Mrs. Lynch would send the children to school when ill, but capitulated to Mrs. Lynch's demands that they be removed from the school after being confronted on this matter. Id. at 13 14. The defendant learned from the children's guardian ad litem (orally and in writing) that the Roes children had "exhibited drastic behavioral changes, appeared intimidated, and were not bonding with the Lynches." Id. She knew that Mrs. Lynch yelled at the guardian when she made a surprise visit at the home, and drafted a complaint to the guardian's supervisor about the incident. Id. She also knew that the Lynches' natural son "was on community control due to a felony involving sexual misconduct with a minor." Id. at 1313. The defendant knew that Mrs. Lynch's daughter had been sexually abused by her father (Mrs. Lynch's ex-husband) with Mrs. Lynch's knowledge. Id. And she knew all this when she and other staff members "unanimously decided" that the children should remain in the Lynches' home. Id.
Another defendant learned from a foster mother who at one time cared for two of the Roe children that "she had an "enemy' in Mrs. Lynch." 176 F. Supp.2d at 1315. Mrs. Lynch threatened this defendant "that she would return the children" if her foster-care payments were decreased. Id. at 1316. The defendant later learned that Mrs. Lynch was "overwhelmed" when the last two of the six Roe children were placed in her home. Id. She too knew of the Lynches' son's felony for sexual misconduct and the daughter's sexual abuse. Id.
The relicensing counselor learned that "the natural children of Mrs. Lynch were the objects of an abuse investigation and dependency proceeding due to the claim" of the sexually abused daughter. 176 F. Supp.2d at 1316. She learned of allegations of excessive corporal punishment by Mrs. Lynch and risks of neglect and emotional abuse. Id. This counselor read the dependency file, which described Mrs. Lynch as "defensive, emotionally lazy, domineering, loud and uncaring, seemingly deceptive, with a low frustration tolerance, and a person who does not like taking orders." Id. She also knew of the son's felony. Id. at 1317.
A fourth defendant, an adoptions counselor, while investigating the suitability of the Lynches as adoptive parents, discovered inconsistencies in their application and the official record. Id. She knew of Mrs. Lynch's demands regarding subsidy payments. Id. She was also notified that certain of the children were "displaying severe behavioral problems" and that one of the children had said he did not want to be adopted. Id.
The Roes court found that the decision to keep the Roe children in the Lynches' foster home, in light of this knowledge, constituted deliberate indifference (disregard of a known risk of serious harm) and denied these defendants' motion for summary judgment based on qualified immunity. 176 F. Supp.2d at 1321-23.
In the case at hand, as in Roes, Plaintiffs claim that the defendants knew of a risk of serious harm. To prove a lack of objective legal reasonableness, Plaintiffs must demonstrate that a reasonable social worker, given the knowledge possessed by each defendant social worker, would have perceived a risk of serious harm, not necessarily to Eric Hernandez in particular but to any child whose "safety and general well-being" was vouchsafed to the Clauds. DeShaney, 489 U.S. at 200. Defendants maintain that Plaintiffs cannot demonstrate such knowledge.
2. Qualified-Immunity Analysis
a. Defendant Lilly
Defendant Lois Lilly was the Investigations Supervisor who looked into the allegations of physical abuse at the Claud foster home in January 1999. The summary-judgment evidence indicates that she knew of a risk of serious harm to any child placed in the Claud home.
Clearly, Defendant Lilly knew about specific allegations of child abuse at the Claud home. She investigated the January 20, 1999, referral based on bruises observed on the legs of children under the care of the Clauds, as well as the January 28, 1999, referral based on an anonymous accusation of children being locked in a closet and otherwise neglected. Pl.'s Resp., Ex. 4 at 5 — 6. She investigated the allegations but ruled out physical abuse after being "pressured" by Defendant Purdin to conclude the inquiry quickly so more babies could be placed there. Defendant Lilly acknowledged (after Eric's death) that she "had a 'feeling' about the foster parent" when she was investigating the abuse allegations. Id., Ex. 6 at 7.
Although Defendant Lilly ruled out abuse during her investigation, this Court is not obliged to treat her conclusions as findings of fact. Reading the evidence in a light most favorable to Plaintiffs, the Court concludes that a reasonable social worker, knowing of these allegations, would have perceived a risk of serious harm to children placed in the Claud home. Defendant Lilly is not entitled to summary judgment based on qualified immunity.
b. Defendant Purdin
Defendant Dianne Purdin was the placement worker responsible for placing Eric in the Clauds' home. The summary-judgment evidence supports Plaintiffs' contention that Defendant Purdin knew of a risk of serious harm. The Court finds that Purdin knew about the March 1997 report from the daycare facility concering dirty diapers and diluted formula. In September 1998 Purdin learned that a child in the Claud home had a red mark on his jaw. Patty Zukas "[wrote] memos to the placement worker Dianne Purdin regarding the issues/concerns [regarding Mrs. Claud's supervision of the children]." Pl.'s Resp., Ex. 12 at 11. In October 1998 Defendant Purdin investigated an incident at the Claud home involving the placement of a device on the doorknob of a foster child's room, effectively locking the child in its room. She also knew about the allegations of physical abuse at the Claud home, which were investigated in January 1999, and pressured Defendant Lilly to rule out abuse so she could place more children in the Claud home. Given this knowledge, a reasonable social worker in Purdin's position would have perceived a risk of serious to any child placed in the Claud home. Defendant Purdin is not entitled to summary judgment based on qualified immunity.
c. Defendant Millender
Defendant Amy Millender was the CPS supervisor in charge of the investigation into alleged abuse by Eric's parents. In their Response, Plaintiffs do not address the motion as it pertains to Defendant Millender, and nothing in the exhibits specifically indicates Millender's subjective knowledge of a risk before Eric's death. At most, Millender learned, after Eric's death, that Lilly felt pressured by Purdin to rule out abuse. See Pl's Resp., Ex. 6 at 7. The summary-judgment evidence does not suggest that a reasonable social worker (who knew what Defendant Millender knew in the days leading up to Eric's death) would have perceived a risk of serious harm to any child in the custody of the Clauds. Defendant Millender is entitled to summary judgment on the basis of qualified immunity.
* * * * *
Defendants' Motion for Summary Judgment is DENIED with respect to the § 1983 claims asserted against Defendants Lilly and Purdin, and GRANTED in favor of Defendant Millender.
C. Regional Director — Wayne Hairgrove
1. Failure to Train, Failure to Supervise, and Deliberate Indifference
Plaintiffs claim that Defendant Hairgrove did not (i) adequately train or supervise foster parents, (ii) adequately train foster-placement workers to evaluate risk of injury or harm to infants in a foster home, or (iii) adequately train foster-home developers or their supervisors to monitor and supervise foster homes in a manner that would reasonably protect foster children from injury, abuse, or neglect. See Pl.'s Second Am. Compl. ¶¶ 43-44. In moving for summary judgment on grounds of objective legal reasonableness, Defendants assert that an official in Hairgrove's position, knowing what he knew, could believe that his acts conformed with clearly established law.
Defendant Hairgrove cannot be held liable under the doctrine of respondeat superior in a § 1983 action. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 (5th Cir. 1994) (en banc). However, liability can be premised on a failure to train or supervise. Cozzo v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 286 (5th Cir. 2002). A plaintiff can succeed on a failure-to-train or failure-to-supervise claim by demonstrating that an official's failure to train or supervise his subordinates caused a deprivation of the plaintiffs rights, and the official's failure to train or supervise under the circumstances constituted deliberate indifference to the plaintiff's constitutional rights. Id.; Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001); Conner v. Travis County, 209 F.3d 794, 796 (5th Cir. 2000); Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996). To demonstrate deliberate indifference, a plaintiff must show that the defendant "disregarded a known or obvious consequence of his action." Bd. of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 410 (1997) (quoted in Brown v. Bryan County, Okla., 219 F.3d 450, 457 (5th Cir. 2000)). In a failure-to-train suit, the need for more or different training must be "so obvious and obviously likely to result in a constitutional violation" that the failure to train amounted to deliberate indifference. Thompson, 245 F.3d at 459 (citing City of Canton v. Harris, 489 U.S. 378, 390 (1989); Snyder v. Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998)); Conner, 209 F.3d at 796. The Fifth Circuit has stated that "it is clear from the [Supreme] Court's decisions in City of Canton . . . and Bryan County, that, under certain circumstances, § 1983 liability can attach for a single decision not to train an individual officer, even where there has been no pattern of previous constitutional violations." Brown, 219 F.3d at 459. Where there has been no such pattern, a plaintiff must provide "proof of the possibility of recurring situations that present an obvious potential for violation of constitutional rights and the need for additional or different . . . training." Gabriel v. City of Plano, 202 F.3d 741, 745 (5th Cir. 2000).
In a failure-to-supervise suit, deliberate indifference is demonstrated by showing that an official "fail[ed] to take action that was obviously necessary to prevent or stop [a deprivation of constitutional rights]." Doe, 15 F.3d at 454. Supervisory liability arises "at the point when . . . the official, by action or inaction, demonstrates a deliberate indifference" to someone's constitutional rights; no pattern of indifference need be shown. Id.
As discussed in more detail below, to overcome Defendants' objective-reasonableness defense, Plaintiffs must present evidence indicating that a reasonable official in Hairgrove's position, knowing what Hairgrove knew, would have considered the need to better train (or supervise) foster parents, foster-placement workers, and foster-home developers to be so obvious, and the failure to provide better training so likely to result in a deprivation of the constitutional rights of foster children, that it would amount to deliberate indifference not to provide better training for those persons. The key word is "obvious," and to determine whether a reasonable official would consider these purported needs obvious it is helpful to examine the case law to see what facts could have made other such needs obvious.
The Supreme Court laid out the rule for liability in failure-to-train cases in City of Canton v. Harris, 489 U.S. 378 (1989). Byway of example, the Court explained that the need to train police officers in the constitutional use of deadly force was "obvious:"
For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force, see Tennessee v. Garner, 471 U.S. 1 (1985), can be said to be "so obvious," that failure to do so could properly be characterized as "deliberate indifference" to constitutional rights.
It could also be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are "deliberately indifferent" to the need.489 U.S. at 390 n. 10. The Supreme Court's footnote speaks at a high level of generality. of course it is obvious that a city arming its police officers with deadly weapons should train them to understand when deadly force can be used consistently with constitutional limits. But what is not so obvious is whether a particular (or peculiar) set of circumstances should be addressed in such training. In McClendon v. City of Columbia, the Fifth Circuit upheld qualified immunity in favor of a city whose police officer "loaned" a gun to a confidential informant who later that day shot the plaintiff. See 258 F.3d 432, 434 (5th Cir. 2001), reinstated at 305 F.3d 314 (5th Cir. 2002). The Court did not address the obviousness issue, but distinguished "a complete failure to train" from "a failure to train in one limited area." Id. at 443. The implication of McClendon is that the need to train officials how to respond to particular, unusual fact pattern is not always as obvious as the need to train generally.
In Thompson v. Upshur County, 245 F.3d 447, 462-463 (5th Cir. 2001), the plaintiff alleged that a failure to train led to a violation of his constitutional right not to have his serious medical needs met with deliberate indifference by those who hold him in custody. The court considered whether a sheriff would consider obvious the need to train his staff in the serious health risks posed by delirium tremens (DTs). The plaintiff's evidence in support of his claim of obviousness was found to be lacking:
We note . . . that there is no evidence that inmates in either Upshur County or Marion County had ever previously suffered adverse serious health problems which the jail personnel handled inappropriately. Nor is there any evidence that either jail had previously had any inmates who suffered adverse consequences from the delay or failure of jail personnel to furnish or procure medical treatment for DTs or the like or from the failure of jail personnel to recognize either the potential seriousness of an inmate's DTs or that an inmate, though able to adequately communicate refusal of medical treatment, was incompetent to so refuse. Nor is there any evidence of the extent or frequency either in Texas generally or in the nation as a whole of instances in which jail inmates suffered any serious adverse consequences from the failure of jail personnel to recognize the potential dangerousness of an inmate's DTs or that an inmate with DTs though able to adequately communicate refusal of medical treatment was incompetent to do so, or in which the failure to train jail personnel respecting the medical seriousness of DTs was seriously harmful to inmates.245 F.3d at 462-62. The plaintiff could have presented evidence suggesting the need to address the peculiar circumstances faced by the jailers, but did not. The plaintiff could have presented evidence about serious health problems generally or the DTs in particular at the county jails, but did not. The plaintiff could presented evidence about the DTs among inmates in Texas or the Nation as a whole, but did not. In short, the plaintiff failed to prove the obvious. See also Conner v. Travis County, 209 F.3d 794, 797 (5th Cir. 2000) (finding no general evidence about stroke conditions, incident rates among the general or detainee population, the consequences of failing to treat symptoms, or what training ought to be given to satisfy the Texas Jail Standards).
2. Qualified-Immunity Analysis
In evaluating Plaintiffs' summary-judgment evidence with respect to the failure-to-train claims, the Court looks for evidence that would support Plaintiffs' claim that the need for better training in the areas identified in the pleadings would have been obvious to a reasonable official in Defendant Hairgrove's position.
Hairgrove was Regional Director for Region 3 (the Dallas-Fort Worth region) of TDPRS at the time Eric was placed with the Clauds. This position was "managerial with responsibility for budgetary decisions, approval of personnel actions and supervision of upper level administrators with program responsibility." Hairgrove Aff. Defendant Hairgrove avows that he had no involvement with this case or the decision to place [Eric] in [the Claud] foster home. [He] did not have any prior knowledge of or participate in decisions regarding licensing of the Claud foster home." Id. Furthermore, Hairgrove "first became aware of Eric Hernandez when it was reported to [him] that he had died in one of [CPS's] foster homes." Id.
Hairgrove testified that he was "ultimately" responsible for "all of the programs for Protective Regulatory Services which included Adult Protective Services, child care licensing, business management, contract services, and Child Protective Services." Hairgrove Depo. at 5 10. Hairgrove was familiar with the study and evaluation process would-be foster parents undergo to become licensed, but testified that he had not been involved with this process since 1994 or 1995. Id. at 20. "My recollection is that there was a process that lasted approximately three months where potential foster parents attended class and went through a study process to determine their suitability . . . to be foster parents." Id. at 21. This process involved, among other things, criminal background checks. Id. In his deposition, Hairgrove admitted that "the total number of foster families increased from the time that [he] took over as regional director until the time [he] retired . . ." Hairgrove Depo. at 44.
The summary-judgment record shows that Hairgrove knew about serious problems in Region 3 involving understaffing and high turnover. He met with Denise Baker and other supervisors in November 1998, and discussed "understaffing issues and their dire implications for child abuse and neglect victims." Baker Aff. Hairgrove acknowledged that CPS was understaffed in the winter of 1999. Hairgrove Depo. at 44-45. The record does not indicate whether the current training regimen and any inadequacies were discussed at this meeting. Reading the record in a light most favorable to Plaintiffs, the Court assumes that Hairgrove knew about the TDPRS Report on child-abuse and neglect-related deaths in Texas.
Plaintiffs first allege that Defendant Hairgrove failed to train or supervise foster parents adequately. Pl.'s Second Am. Compl. ¶ 43. By moving for summary judgment on grounds of objective legal reasonableness, Defendants argue that no one in Hairgrove's position, knowing what he knew, would have considered the need to train foster parents so obvious and the failure to train foster parents so likely to result in a constitutional violation that a failure to do so would amount to deliberate indifference to the constitutional rights of foster children. Obviously, an agency entrusting children to the care of licensed foster parents must train those agents of the state in the constitutional dimensions of their position, that is, TDPRS must train foster parents not to disregard known risks of serious harm to the foster children. But would someone in Hairgrove's position consider it obvious that the agency needed to train foster parents how to care for an infant in a body cast? To survive summary judgment, Plaintiffs must present evidence indicating that Hairgrove knew of facts that would have made it obvious to a reasonable official that foster parents needed to be better trained not to disregard known risks of serious harm and that a failure to provide this training would likely result in constitutional violations. Plaintiffs have presented no evidence of such facts. Nothing in the evidence tells the Court how frequently children placed in foster care are as helpless as Eric Hernandez. No evidence explains as a general matter the physical condition of children placed in foster care, and plaintiffs present no statistics on the types of harms suffered by children in foster care. The summary-judgment evidence does not so much as describe the type of training foster parents receive. On the whole, Plaintiffs have presented no specific facts indicating that Defendant Hairgrove possessed the kind of knowledge that would have made the need for additional or different training obvious to a reasonable person in his position.
Additionally, to fend off the motion and retain the claim of failure to supervise foster parents, Plaintiffs must show that Hairgrove knew facts that would lead a reasonable official to consider that it was "obviously necessary" to act so as to "prevent or stop" a violation of a foster child's constitutional rights. Assuming that this allegation refers specifically to the Clauds, as it must, nothing in the summary-judgment evidence indicates that Hairgrove had any knowledge that would lead him to believe that it was obviously necessary to act to protect any child, let alone Eric Hernandez. Summary judgment is GRANTED as to Plaintiffs' claims that Defendant Hairgrove failed to adequately train or supervise foster parents.
Plaintiffs next claim that Defendant Hairgrove failed to adequately train foster-placement workers "to evaluate risk of injury or harm to infants in a [foster] home before placing them in a home." Pl.'s Second Am. Compl. ¶ 44. Foster-placement workers select homes for foster children. They are under a constitutional obligation not to disregard known risks of serious harm. It seems beyond dispute that the need to train them in evaluating risks to foster children is obvious. Plaintiffs allege that current training is inadequate to this task. To avoid summary judgment, Plaintiffs must demonstrate that, given what Defendant Hairgrove knew, a reasonable official in his position would consider obvious the need to provide better, additional training to foster-placement workers so they can assess risks of harm faced by foster children. Plaintiffs have not carried this burden.
Plaintiffs submitted a report describing child abuse and neglect in Texas. This report does not address the particular risks faced by children placed in foster homes. No other summary-judgment evidence supports the conclusion that an official in Hairgrove's position would consider the need to train foster-placement workers to be obvious, even if the need to train other social workers might have appeared obvious. Furthermore, Plaintiffs present no evidence suggesting that a reasonable official — knowing that "all . . . staff" would be trained in risk-assessment by January 2000 — would consider a failure to train placement workers (whose duties do not typically involve assessment of risks posed by foster parents), immediately upon reading the TDPRS Report, to be inconsistent with clearly established constitutional law.
The summary-judgment evidence indicates that high case loads and high turnover were problems in Region 3, and that Hairgrove knew of the "dire implications" for victims of abuse and neglect. However, this evidence does not suggest that a person in Hairgrove's position would consider the need for additional or different training (of overworked staff) was obvious or that the failure to provide such training was obviously likely to lead placement workers to disregard known risks of serious harm when placing children in foster homes. Summary judgment must be GRANTED on Plaintiffs claim of failure to adequately train placement workers.
Arguably, the need to address these problems (high case loads and high turnover) is obvious and the failure to hire more social workers is so likely to result in disregard of known serious risks that the failure amounts to deliberate indifference. But Plaintiffs do not assert this claim.
Finally, Plaintiffs assert that Defendant Hairgrove failed to adequately train foster-home developers to monitor or supervise foster homes. Pl's Second Am. Compl. — 44. Again, these workers are under a constitutional obligation not to ignore known risks of serious harm to foster children, and training them to fulfill this obligation is obvious. It is important not to confuse any professional duty to monitor homes with a constitutional duty to do so. Although home developers may be under a professional duty to monitor foster homes so as to anticipate risks of harm to foster children, the Court cannot say that a Regional Director — even one who considers it obvious that he must train home developers how not to disregard known risks — would conclude that a failure to train social workers to make themselves aware of risks of serious harm is obviously likely to result in a violation of the constitutional duty, that is, to result in a disregard of already known serious risks.
The case law indicates that a duty to monitor may be inconsistent with the deliberate-indifference standard. See Wendy H. by and through Smith v. City of Philadelphia, 849 F. Supp. 367, 374 (E.D. Pa. 1994) (refusing to apply deliberate-indifference standard because doing so would allow foster care workers to escape liability by claiming ignorance); TM through Cox v. Carson, 93 F. Supp.2d 1179, 1193 (D. Wy. 2000) (following Wendy H.). The Court expresses no opinion as to whether the defendants breached any professional duty.
As for training foster-home developers to supervise foster parents, it seems obvious that foster-home developers, like placement workers, should be trained not to disregard known risks of serious harm to children in foster care. To survive summary judgment, Plaintiffs must present evidence indicating that Hairgrove knew of facts that would have made it obvious to a reasonable official that foster-home developers needed to be better trained in supervising foster homes and that a failure to provide such training would likely result in the violation of the constitutional rights of foster children. Plaintiffs have presented no such evidence. They provide no statistics on harms suffered at the hands of foster parents (with or without monitoring) in Region 3, Texas, or the Nation. The evidence does not explain how supervision of the Clauds was inadequate to prevent Eric's death or how supervision could prevent serious harm to other foster children. The evidence does not describe how current supervision falls short of professional standards. Plaintiffs do not so much as describe the training currently given to foster-home developers. And though the TDPRS Report identifies a need for additional training, the evidence does not indicate that a reasonable official in Defendant Hairgrove's position would conclude that a failure to provide such training immediately was obviously likely to result in social workers disregarding known serious risks. In short, Plaintiffs present no evidence to show that it would seem obvious to a reasonable official that additional or different training is necessary to prevent constitutional violations. Summary judgment is GRANTED on Plaintiff's claim of failure to train foster-home developers to monitor or supervise foster parents.
To summarize, Plaintiffs have failed to present evidence indicating that Hairgrove is not entitled to qualified immunity. Summary judgment is GRANTED with respect to the § 1983 claims against Defendant Hairgrove.
V. Common-Law Negligence
In addition to the § 1983 claims, Plaintiffs assert common-law negligence as a theory of recovery. In the motion for summary judgment, Defendants Hairgrove, Purdin, Lilly, and Millender raise the defense of official immunity. Under Texas law, "[a] governmental employee is entitled to official immunity for (1) the performance of discretionary duties (2) that are within the scope of the employee's authority, (3) provided that the employee acts in good faith." Telthorster v. Tennell, 45 Tex. Sup. J. 948, ___, 2002 Tex. LEXIS 97, at *5 (Tex. June 27, 2002). Inasmuch as official immunity is an affirmative defense, governmental employees seeking to obtain summary judgment on this basis "must conclusively establish each of these elements." Id. at *6. There is no dispute that the defendants were performing discretionary duties within the scope of their authority. To show good faith, each defendant must show that a reasonably prudent official, under the same or similar circumstances, could have believed that his or her acts were justified. See id. at 7-8.
In the summary-judgment context, good faith may be established by the official's own affidavit, Barker v. City of Galveston, 907 S.W.2d 879, 888 (Tex.App.-Houston [1st Dist.] 1995, writ denied), or by expert testimony. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). It is not sufficient to assert that the plaintiffs failed to show that "no reasonable person in the defendant's position could have thought that the facts justified the officials [sic] acts." Def.'s Reply at 3. The defendant must present evidence that is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and readily controvertible. Id.; Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). Mere conclusory statements by an affiant that a reasonable official could have taken the same action are insufficient to establish good faith. Wadewitz, 951 S.W.2d at 466-67; Clement v. City of Plano, 26 S.W.3d 544, 551 (Tex.App.-Dallas 2000, no pet.). "[T]estimony on good faith must discuss what a reasonable [official] could have believed under the circumstances and must be substantiated by facts showing that the [official] assessed the need [to take such acts] . . ." Univ. of Houston v. Clark, 38 S.W.3d 578, 581 (Tex. 2000). To controvert summary-judgment proof of a governmental employee's good faith, the nonmovant must show that "no reasonable person could have thought that the facts justified the [official's] acts." Univ. of Houston, 38 S.W.3d at 581.
The Court finds that Defendants Hairgrove and Millender acted in good faith based on the knowledge they possessed. Plaintiffs have presented no evidence to controvert the good faith of Hairgrove and Millender. The Court thus GRANTS the Motion for Summary Judgment in favor of Defendants Hairgrove and Millender with respect to the common-law negligence claims.
The same cannot be said of Defendants Lilly and Purdin. Their conclusory claims of good faith are sufficiently controverted by Plaintiffs' evidence of deliberate indifference. Summary judgment is DENIED on the negligence claims asserted against Lilly and Purdin.
VI. Conclusion
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED IN PART and DENTED IN PART. Summary judgment is GRANTED as to all claims asserted against Defendants Hairgrove and Millender, and DENIED as to all claims asserted against Defendants Lilly and Purdin.