868 F.3d 1209 (10th Cir. 2017), 16-1092, T.D. v. Patton

Docket Nº:16-1092
Citation:868 F.3d 1209
Opinion Judge:MATHESON, Circuit Judge.
Party Name:T.D., Plaintiff - Appellee, v. KELCEY PATTON, Defendant - Appellant, and THE DENVER DEPARTMENT OF HUMAN SERVICES, Defendant
Attorney:Andrew D. Ringel (Gillian Dale, with him on the briefs), Hall & Evans, LLC., Denver, Colorado, appearing for Appellant. Jordan Factor, Allen & Vellone, P.C., Denver, Colorado, appearing for Appellee.
Judge Panel:Before BRISCOE, EBEL, and MATHESON, Circuit Judges. BRISCOE, Circuit Judge, concurring. BRISCOE, Circuit Judge, concurring.
Case Date:August 28, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

Kelcey Patton, a social worker for the Denver Department of Human Services (“DDHS”), was one of those responsible for removing T.D., a minor at the time, from his mother’s home, placing him into DDHS’s custody, and recommending T.D. be placed and remain in the temporary custody of his father, Tiercel Duerson. T.D. eventually was removed from his father’s home after DDHS received reports that T.D. ... (see full summary)

 
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Page 1209

868 F.3d 1209 (10th Cir. 2017)

T.D., Plaintiff - Appellee,

v.

KELCEY PATTON, Defendant - Appellant, and THE DENVER DEPARTMENT OF HUMAN SERVICES, Defendant

No. 16-1092

United States Court of Appeals, Tenth Circuit

August 28, 2017

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 1:14-CV-01568-RM-MJW).

Andrew D. Ringel (Gillian Dale, with him on the briefs), Hall & Evans, LLC., Denver, Colorado, appearing for Appellant.

Jordan Factor, Allen & Vellone, P.C., Denver, Colorado, appearing for Appellee.

Before BRISCOE, EBEL, and MATHESON, Circuit Judges.

OPINION

MATHESON, Circuit Judge.

T.D. sued Kelcey Patton under 42 U.S.C. § 1983 for violating his right to substantive due process. He relies on a " danger-creation theory," which provides that " state officials can be liable for the acts of third parties where those officials created the danger that caused the harm." Currier v. Doran, 242 F.3d 905, 917 (10th Cir. 2001) (quotations omitted).1

Ms. Patton, a social worker for the Denver Department of Human Services (" DDHS" ), was one of those responsible for removing T.D., a minor at the time, from his mother's home, placing him into DDHS's custody, and recommending T.D. be placed and remain in the temporary custody of his father, Tiercel Duerson. T.D. eventually was removed from his father's home after DDHS received reports that T.D. had sexual contact with his half-brother, also Mr. Duerson's son. DDHS later determined that during T.D.'s placement with Mr. Duerson, T.D. had suffered severe physical and sexual abuse at the hands of his father.

Ms. Patton moved for summary judgment on the ground that she is entitled to qualified immunity. The district court denied the motion. This interlocutory appeal followed.[2] Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Viewing the facts in the light most favorable to T.D., we conclude that, under Currier, Ms. Patton violated T.D.'s clearly established substantive due process constitutional right to be free of a state official's creation of danger from a private actor.

We agree with the district court that Ms. Patton violated T.D.'s substantive due process right by knowingly placing T.D. in a position of danger and knowingly increasing T.D.'s vulnerability to danger.3 She recommended to the juvenile court that T.D. be placed and remain in Mr. Duerson's temporary custody despite her admitted concerns about T.D.'s safety in the home, her knowledge of Mr. Duerson's criminal history that included a conviction for attempted sexual assault against a minor in his care, and notice of evidence that Mr. Duerson was potentially abusing T.D. She failed to inform the juvenile court about her concerns and knowledge of Mr. Duerson's criminal history and made her affirmative recommendations out of fear of being fired.

She also failed to investigate whether Mr. Duerson was abusing T.D. despite her awareness of evidence of potential abuse. This evidence included T.D.'s report that Mr. Duerson had hit him with a wooden mop handle and school officials' reports that T.D. was spending significant time in the nurse's office complaining of body aches and appearing fearful of his father. In the face of this information, she recommended to the juvenile court that T.D. remain with his father. Ms. Patton acted recklessly and in conscious disregard of a known and substantial risk that T.D. would suffer serious, immediate, and proximate harm in his father's home. Her conduct, taken as a whole, shocks the conscience and thus amounts to a substantive due process violation under the Fourteenth Amendment.

Based on the facts and legal determination in this court's Currier decision, a reasonable official in Ms. Patton's shoes would have understood she was violating T.D.'s constitutional rights. In both Currier and here, county social workers removed children from their mothers' homes and placed them in their fathers' homes, where the children were abused. The social workers in both cases failed to alert the juvenile court of relevant facts undermining the fathers' fitness as caretakers and recommended that the fathers assume custody of the children--despite being on notice that the fathers' homes were places of danger. And, in both cases, the social workers failed to investigate whether the fathers were abusing their children, despite being on notice of evidence suggesting abuse. Ms. Patton's conduct sufficiently resembles the conduct we held unconstitutional in Currier such that a reasonable official in her position would have known that her actions violated T.D.'s clearly established right. She was therefore not entitled to qualified immunity.

I.

BACKGROUND

A.

Factual Background

The following facts are presented in the light most favorable to T.D., the nonmoving party on the request for summary judgment on the danger-creation claim.4 See

Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016).5

1.

T.D.'s Removal from his Mother's Home

T.D. is the son of Regina Garcia and Tiercel Duerson, who are separated. The family has a troubled past, with the parents having been referred to DDHS for intra-familial neglect, lack of supervision, and intra-familial sexual abuse.

In November 2009, T.D. turned 14 and was living with his mother, Ms. Garcia. On November 2, 2009, DDHS was notified that T.D. had not been in school, which served as a diversion program for criminal charges, since mid-October. DDHS also learned that his medications had not been refilled and he had not participated in his mandated therapy. After T.D. did not return to school, a DDHS social worker visited Ms. Garcia's home and discovered the home in disarray, with animal feces, cigarette butts, and piles of dirty clothes on the floor. The social worker gave Ms. Garcia a list of tasks to accomplish, including sending T.D. back to his diversion program.

On December 15, 2009, DDHS was informed T.D. had been kicked out of his diversion program for noncompliance and truancy. On January 4, 2010, DDHS received another report that T.D.'s violent behavior was escalating at school and at home. For instance, T.D. had reportedly stabbed his sister with a fork and had threatened to commit suicide.

In early April 2010, T.D. was removed from his mother's home and placed at the " Family Crisis Center."

2.

DDHS's Petition for Dependency or Neglect

On April 9, 2010, DDHS filed a " Petition in Dependency or Neglect" for T.D. and his sister in juvenile court based on DDHS's concerns that Ms. Garcia was unable to care for her children. Ms. Patton was the DDHS case worker on the Petition, and Lisa Gomez was appointed as T.D.'s guardian ad litem.

On May 12, 2010, the juvenile court held a hearing on the Petition. Ms. Patton prepared a report for the hearing, signed by her supervisor, Senait Ketema. In the report, Ms. Patton determined the family's risk assessment score was 11--signaling a high level of risk--and that the children were unsafe.6 Ms. Patton mentioned in the report that Mr. Duerson had been incarcerated for two years for attempted sexual assault on a minor and that Ms. Garcia had taken out a restraining order against him to keep Mr. Duerson away from her family. Ms. Patton recommended that T.D. remain in the custody of DDHS for purposes of placement.

At the hearing, the juvenile court explored options for T.D.'s placement. The court ordered DDHS to obtain a parental risk assessment of Mr. Duerson under the applicable Colorado Sex Offender Management Board (" SOMB" ) standards to determine his likelihood of re-committing sex offenses, an important factor to evaluate whether T.D. should be placed with his father. Ms. Patton was responsible for arranging Mr. Duerson's risk assessment, but failed to do so.7

3.

T.D.'s Placement in Shiloh House

On May 25, 2010, the juvenile court ordered DDHS to place T.D. in " Shiloh House," a residential child care facility where T.D. could live, receive treatment, and go to school.

On July 30, 2010, the juvenile court held a permanency planning hearing--one of several that would happen every few months to determine T.D.'s placement and custody status. At this hearing, a family therapist reported that Mr. Duerson was making " great progress" in his therapy with T.D. The therapist also relayed Mr. Duerson's request that T.D. be placed in his care after T.D. was discharged from Shiloh House.

4.

Ms. Patton's Review of Mr. Duerson's Criminal History

Before the next juvenile court hearing, Ms. Patton reviewed Mr. Duerson's criminal history, which revealed: o In 2005, Mr. Duerson was convicted and sentenced to two years in prison for attempted sexual assault of a minor, P.G., his step-child living in his care at the time of the offense. Mr. Duerson was a...

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