Johnson ex rel. Estate of Cano v. Holmes, 04-2286.

• Decision Date: 26 July 2006
• Docket Number: No. 04-2286.,04-2286.
• Parties: Scott JOHNSON, as personal representative of the ESTATE OF Graciela CANO a/k/a Grace Lee Bogey, deceased; and Lorena Torrez, Plaintiffs-Appellants, v. Anne HOLMES; Bonnie Vehstedt; Karen Zarate; Lydia R. Saenz; Sonia Perez; Virginia Villareal; Viviane Encinias; Ginger Bowman; Denise H. Narvaez; Children, Youth And Families Department, New Mexico; Veronica Bogey; Terry Bogey a/k/a Teri Bogey, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1133

455 F.3d 1133

Scott JOHNSON, as personal representative of the ESTATE OF Graciela CANO a/k/a Grace Lee Bogey, deceased; and Lorena Torrez, Plaintiffs-Appellants, v. Anne HOLMES; Bonnie Vehstedt; Karen Zarate; Lydia R. Saenz; Sonia Perez; Virginia Villareal; Viviane Encinias; Ginger Bowman; Denise H. Narvaez; Children, Youth And Families Department, New Mexico; Veronica Bogey; Terry Bogey a/k/a Teri Bogey, Defendants-Appellees.

No. 04-2286.

United States Court of Appeals, Tenth Circuit.

July 26, 2006.

Paul J. Kennedy (Adam S. Baker with him on the briefs), Kennedy & Han, Albuquerque, NM, appearing for Plaintiffs-Appellants.

Michael Dickman, Assistant Attorney General, Santa Fe, NM, for Defendant-Appellee, Children, Youth and Families Department, New Mexico.

Randolph B. Felker, Felker, Ish, Hatcher, Ritchie, Sullivan & Geer, Santa Fe, NM, Timothy V. Flynn-O'Brien, Albuquerque, NM, appearing for Defendants-Appellees.

Before LUCERO, BALDOCK, and McCONNELL, Circuit Judges.

LUCERO, Circuit Judge.

This case is not much about grace; it is about Grace, a child born with severe spina bifida. Grace was abandoned soon after birth to the custody of the New Mexico Children, Youth, and Families Department and placed with a foster family. Over the foster family's objection, the Children, Youth, and Families Department allowed Veronica Bogey to adopt Grace soon after Grace's first birthday. The basis of the foster family's objection was that they thought Bogey was actually a man pretending to be a woman because of Bogey's extensive facial hair. Veronica Bogey's father — a self-described hermaphrodite who claims also to be Veronica Bogey's mother — then moved in. Responsibility for her case bounced around from one over-worked social worker to another and concerns about her situation were investigated by an uninquisitive investigator. Grace's situation quickly turned from muddled to tragic: she died four weeks after the adoption was finalized, apparently as the result of being beaten to death.

This case is legally about the claimed failures of the Children, Youth, and Families Department (the "Department") to properly discharge their custodial obligations of investigation and oversight, particularly during the period between placement for adoption and the time adoption decree was entered. The argument is that, but for the failure of oversight by the Department during the months leading up to the entry of the formal decree of adoption, the adoption would not have been permitted and Grace would not have been placed in mortal danger.

Scott Johnson, as personal representative of the estate of the child, renamed Grace Bogey at adoption, filed suit under state tort law and 42 U.S.C. § 1983 against the Department and a number of its employees. His state tort claims were dismissed as a matter of law, his § 1983 claims against several Department employees were dismissed on summary judgment, and a jury entered a verdict in favor of two Department employees on his remaining claims. He now appeals, arguing that: (1) sovereign immunity does not bar his state tort claims against the Department and the Department employees; (2) the district court erred in granting summary judgment to Virginia Villareal and Ginger Bowman, Department employees responsible for monitoring Grace's placement and an investigation into child abuse allegations raised against the adoptive mother; and (3) the jury verdict in favor of Anne Holmes and Sonia Perez Sanchez, two other Department employees involved with the adoption, should be overturned because the jury instructions improperly required a determination that their actions "shocked the conscience" in order to find that they violated the child's substantive due process rights.

Under New Mexico law, it is clear that the State did not waive sovereign immunity. The jury instructions used in the trials of Holmes and Perez were clearly in accordance with our substantive due process jurisprudence. The district court's decision granting summary judgment to Bowman was also proper. However, there are disputed questions of material fact as to whether Villareal properly exercised her professional judgment by failing to investigate several disturbing events that took place while she was the primary social worker assigned to Grace's case. We conclude the district court's dismissal of the claims against the Department, its grant of summary judgment to Bowman, and the jury verdicts in favor of Holmes and Perez should be AFFIRMED. Grant of summary judgment to Villareal, however, should be REVERSED and the case REMANDED to the district court for proceedings consistent with this opinion.

I

In 1997, Lorena Torrez gave birth to Graciela Cano a/k/a Grace Lee Bogey ("Grace"). As noted, Grace was born with severe spina bifida and, because of her special needs, Torrez soon proved unable to care for her. Torrez thus relinquished all parental rights, whereupon the Department assumed legal custody and began efforts to find adoptive parents. In the interim, Grace was placed with foster parents Charlene and Graydon Blevins.

The Department conducted several "home studies" in its efforts to find permanent adoptive parents for Grace, including one by Denise Narvaez, a Department employee, of Veronica Bogey, a single schoolteacher previously licensed by the Department as a qualified adoptive parent. Viviane Encinias, an adoption consultant, forwarded the Bogey home study along with several other home studies to Anne Holmes, a Department employee previously assigned as Grace's treatment worker.

Department officials decided to focus on Bogey and held a "matching staffing" meeting to discuss Bogey as the potential adoptive parent and her ability to care for Grace. In attendance were Encinias, Holmes, Narvaez, Lydia Saenz, a treatment supervisor, Sonia Perez,¹ the placement worker assigned to provide post-placement services for Grace, and Virginia Villareal, Perez's supervisor. At the meeting, they decided that Bogey was a good match for Grace. An expert hired by the personal representative described the process as having been conducted in an "excessively hasty" manner.

The Department's ultimate decision to place Grace with Bogey was not free from hesitation and doubt. Holmes expressed concern that Bogey would not be able to meet Grace's needs because she was single. Charlene Blevins objected because she believed Bogey appeared to be a man pretending to be a woman. Both of these worries were determined by the Department to be unfounded. The Department then proceeded to the next steps required to permanently place Grace with Bogey: a home inspection and "full disclosure," during which Department officers fully explained to Bogey the extent of Grace's medical problems, and a visit by Bogey with Grace in the foster home.

On completion of this process, the Department allowed preadoptive placement with Bogey. Soon thereafter, Perez expressed concern that Bogey would be overwhelmed by the responsibility of caring for a child with special needs, and suggested that respite care might be appropriate. Despite this concern, the Department proceeded without offering such assistance, but did provide a monthly subsidy of $487 and agreed to cover medical expenses for any pre-existing condition not covered by Bogey's health insurance or Medicaid.

After placement, Perez, who was performing the responsibilities of two social workers due to understaffing in the Department, assumed primary responsibility for monitoring Grace's progress. Although under Department policy Perez was expected to conduct monthly home visits, Perez visited Bogey's home but two or three times over the course of almost six months. Perez did, however, monitor Grace's progress in other ways. She saw Grace in the Department's offices on two or three occasions, once picked her up at a daycare facility, and placed a number of phone calls to Bogey to discuss Grace's progress. Villareal also met with Grace during her visits to the Department's offices.

During the preadoptive placement, a nurse, Kerstin Lagestam, was hired to conduct check-ups on Grace. During her first visit to Bogey's home, Nurse Lagestam noticed swelling and a large purple bruise on the left side of Grace's face. Bogey explained that she accidently bumped Grace's face on the side of a car door.

Nurse Lagestam then began to visit Grace once each day at her day care facility. Several months after she started, Nurse Lagestam noticed marks on Grace's neck, back, and abdomen. Considering the marks to be intentionally-inflicted fingernail scratches deep enough to leave scars, Nurse Lagestam reported the injuries to her supervisor, Janie Mealand, who proceeded to call Holmes at the Department. Holmes was unavailable and, a few days later, Nurse Lagestam noticed that Grace's right hand was bruised and swollen. She promptly reported this to Mealand as well.

Mealand did not hear from Holmes for several days. When Holmes eventually returned her call, she told Mealand to call Sonia Perez. Mealand did so on March 22, 2000, and two days later, Perez told Mealand to call the Department's abuse hotline. Immediately after she heard from Perez, Mealand called the hotline: It was March 24. She did not hear back from the Department for two weeks, at which point, she called the hotline again. This time, she was told that Perez would call her back. Another week passed before Perez returned her call.

The bureaucratic morass at the Department did not only impede its ability to return phone calls; the actual investigation into the abuse allegations was stalled as well. Although Mealand had first contacted Department officials about the reported abuse much earlier, the Department did not begin its investigation until the call to the hotline was made on March 24. Bogey left for a vacation the next day, March 25. Although Perez and the Department's abuse investigator, Ginger Bowman, attempted to contact Bogey before she...