White by White v. Chambliss

Citation112 F.3d 731
Decision Date30 April 1997
Docket Number95-3078,95-3088,Nos. 95-3025,s. 95-3025
PartiesKeena WHITE, by her Personal Representative Cindy WHITE; Cindy White, individually, and Cindy White as Guardian Ad Litem for Deidre Jones, Clifford White, Jr., Patric White, Daniel White and Darren White, Plaintiffs-Appellees, v. Ruby CHAMBLISS, Defendant-Appellant, and Tina Werts; Tanga Gilchrist; Clarence Graham; Cassie Wilson; Marie Dunnam; Ramona Foley; Barry Dowd; Wilbert Lewis; James C. Solomon, Jr.; Joanne Schaekel; Anthony Bonner; Gladys Bonner; Tony Bonner; Aiken County Department of Social Services (ACDSS); Desiree Council, Defendants. Keena WHITE, by her Personal Representative Cindy WHITE; Cindy White, individually, and Cindy White as Guardian Ad Litem for Deidre Jones, Clifford White, Jr., Patric White, Daniel White and Darren White, Plaintiffs-Appellees, v. Tina WERTS; Tanga Gilchrist; Clarence Graham; Marie Dunnam; Ramona Foley; Barry Dowd; Wilbert Lewis; James C. Solomon, Jr.; Joanne Schaekel; Desiree Council, Defendants-Appellants, and Cassie Wilson; Anthony Bonner; Gladys Bonner; Tony Bonner; Aiken County Department of Social Services (ACDSS); Ruby Chambliss, Defendants. Keena WHITE, by her Personal Representative Cindy WHITE; Cindy White, individually, and Cindy White as Guardian Ad Litem for Deidre Jones, Clifford White, Jr., Patric White, Daniel White and Darren White, Plaintiffs-Appellees, v. Cassie WILSON, Defendant-Appellant, and Tina Werts; Tanga Gilchrist; Clarence Graham; Marie Dunnam; Ramona Foley; Barry Dowd; Wilbert Lewis; James C. Solomon, Jr.; Joanne Schaekel; Anthony Bonner; Gladys Bonner; Tony Bonner; Aiken County Department of Social Services (ACDSS); Desiree Council; Ruby Chambliss, Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Elizabeth Herlong Campbell, Nexsen, Pruet, Jacobs & Pollard, L.L.P., Columbia, SC, for Appellants. Sara M. Walker, Columbia, SC, for Appellees. ON BRIEF: Susan P. McWilliams, Nexsen, Pruet, Jacobs & Pollard, L.L.P., Columbia, SC; Charles E. Carpenter, Jr., Richardson, Plowden, Carpenter & Robinson, P.A., Columbia, SC; Douglas McKay, Jr., Ruskin C. Foster, McKay, McKay, Henry & Foster, P.A., Columbia, SC; William L. Pope, Roy F. Laney, Pope & Rogers, Columbia, SC, for Appellants.

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and BLACK, Senior United States District Judge for the District of Maryland, sitting by designation.

OPINION

WILKINSON, Chief Judge:

Cindy White brought suit under 42 U.S.C. § 1983 against several officials of the South Carolina Department of Social Services ("the DSS defendants"). White claims the DSS defendants violated her substantive and procedural due process rights by removing her children from her custody and violated her daughter Keena's rights by placing Keena in a home where she died from abuse at the hands of her foster parents. The district court denied the DSS defendants' motion for summary judgment, and those defendants now appeal.

Keena's death was a tragic event. It did not, however, result from the DSS defendants' violation of any "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Accordingly, we find that the DSS defendants were entitled to qualified immunity and reverse the judgment of the district court.

I.

Late on the night of November 20, 1991, Cindy White brought her eighteen-month-old son, Daniel, to the emergency room of the University Hospital in Augusta, Georgia with a broken arm. The treating physician, Dr. Shearer, determined that Daniel had sustained a spiral fracture to his arm. A spiral fracture is caused by a powerful twisting force and is a strong indicator of child abuse. Because White was a South Carolina resident, the hospital staff contacted the Aiken County DSS office to report a suspected case of abuse.

When Tanga Gilchrist, the DSS employee on call, arrived at the hospital, she questioned White about Daniel's injury. White claimed she was not in Daniel's bedroom when he broke his arm, but speculated he might have fallen out of his crib and caught his arm in its slats. Dr. Shearer and an orthopedist, Dr. Hankerson, both found White's explanation to be "very unlikely," and Dr. Shearer stated that "the child needed to be in custody."

On November 22, Gilchrist visited the White residence to investigate Daniel's bed and see for herself whether Daniel's injury might have occurred as the result of a fall. She found that the slats of the bed were far enough apart that her arm, which was larger than Daniel's, did not get caught between them. She further noted that Daniel's bed was less than one foot from the floor. This investigation, in combination with the two doctors' opinions, convinced Gilchrist that White's explanation of Daniel's broken arm was implausible. Gilchrist and her supervisor, Ruby Chambliss, determined that an ex parte petition for custody of White's children should be submitted to the Family Court for Aiken County.

On November 26, 1991, DSS filed a petition for emergency protective custody and a petition for removal in Aiken County Family Court. The judge signed an ex parte order granting emergency protective custody on November 26, which DSS received on December 3. On the day the order was received, Gilchrist and another case worker accompanied sheriff's office personnel to White's trailer and took custody of Daniel and the five other White children.

At a hearing the following day, which White attended, the judge determined that there was probable cause for the minor children to be taken into emergency custody. The judge further concluded that in light of the evidence of abuse to Daniel, the children should remain with DSS pending a merits hearing. DSS placed the White children in various foster homes, with eleven-month-old Keena White going to the home of Anthony and Gladys Bonner.

In the weeks between the December 4 emergency protective custody hearing and the scheduled merits hearing, White was allowed supervised visitation with her children. During these visits, White alleges that she noticed scratches and bruises on her children, including Keena. She wrote a letter to Senator Strom Thurmond expressing her concerns. On December 20, Senator Thurmond wrote a letter to DSS on White's behalf. Cassie Wilson, one of the caseworkers on the White case, testified that White had told her that the children routinely sustained minor injuries due to playing or fighting with one another. Furthermore, Tina Werts, another caseworker, testified that she had taken Keena to the doctor with a cold on January 3, and that Keena had appeared to be in good condition on that date. DSS thus concluded that any alleged injuries were the "results of natural child play."

On January 18, 1992, approximately six weeks after she had been placed with the Bonners, Keena died from blows to the head while in the Bonners' care. A forensic pathologist determined that Keena's death was "best classified as homicide," but law enforcement officials were unable to determine who had struck Keena, so no criminal charges were filed. DSS removed all foster children from the Bonners' home and placed no other children with the Bonners after Keena's death. After an investigation, the DSS revoked the Bonners' license due to abuse and neglect.

At the merits hearing on January 24, 1992, DSS and White submitted a settlement agreement in which White agreed to acknowledge that Daniel White had been abused by an "unknown" perpetrator. DSS returned legal and physical custody of the children to White on the condition that she receive a psychological evaluation, including observation of the family unit, at the expense of DSS.

On November 18, 1993, White brought this lawsuit as personal representative of the estate of Keena for Keena's wrongful death, pain and suffering, and violations of Keena's due process rights. She also sued as guardian ad litem for her five children and on her own behalf claiming DSS violated both her and her children's due process rights. Ruby Chambliss, Tanga Gilchrist, Cassie Wilson, Tina Werts, and various other DSS officials were named as defendants in the suit along with the Bonners.

After extensive discovery, the DSS defendants filed motions for summary judgment based on qualified immunity which were denied by the district court. The DSS defendants then filed the instant appeal.

II.

Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). White alleges constitutional violations in three phases of DSS's actions. First, she maintains that the DSS defendants violated her family's constitutional rights in the initial decision to remove her children. Second, she contends that Keena's due process rights were violated when she was placed with the Bonners. Lastly, she contends that the DSS defendants did not adequately protect Keena's safety after she was placed in the Bonners' care. We shall review these contentions in turn. 1

A.

White first asserts that DSS unlawfully seized her children and that the illegal seizure violated her right to custody. This is no idle claim.

As we have recognized, "[t]here are few rights more fundamental in and to our society than those of parents to retain custody over and care for their children, and to rear their children as they deem appropriate." Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 342 (4th Cir.1994). These rights, however, are not absolute. The parent's right to custody is subject to the child's interest in his personal health and safety and the state's...

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