Doe ex rel. Johnson v. South Carolina, Soc. Serv.

Decision Date05 March 2010
Docket NumberNo. 08-2161.,08-2161.
Citation597 F.3d 163
PartiesJane DOE, by and through her guardians Gregory and Michelle JOHNSON; Gregory Johnson; Michelle Johnson; John and Jane Does, # 1-10, Plaintiffs-Appellants, v. SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, SCDSS; Debby Thompson; Elizabeth G. Patterson, Director; Kim S. Aydlette, Director, Defendants-Appellees, and Kameron Seth Cox; Titsa M. Flesch; Healthy Minds, LLC; John and Jane Roes, # 1-10; Managerial Roes, # 1-10; Supervisory Roes, # 1-10; Caseworker Roes, # 1-10; Foster Parent Roes, # 1-10, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Robert James Butcher, Camden Law Firm, PA, Camden, South Carolina, for Appellants. Andrew Lindemann, Davidson & Lindemann, PA, Columbia, South Carolina, for Appellees. ON BRIEF: William H. Davidson, II, Katy A. Rice, Davidson & Lindemann, PA, Columbia, South Carolina, for Appellees.

Before TRAXLER, Chief Judge, WILKINSON, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge TRAXLER wrote the majority opinion, in which Senior Judge HAMILTON joined. Judge WILKINSON wrote a separate opinion concurring in the judgment.


TRAXLER, Chief Judge:

Jane Doe, a minor child, and her adoptive parents, Gregory and Michelle Johnson, brought this action under 42 U.S.C.A. § 1983 (West 2003), against Debby Thompson ("Thompson"), an Adoption Specialist with the South Carolina Department of Social Services ("SCDSS"), alleging violations of their substantive due process rights under the Fourteenth Amendment to the United States Constitution. Plaintiffs brought additional state law claims against SCDSS under the South Carolina Tort Claims Act ("SCTCA"), see S.C.Code Ann. §§ 15-78-10 to 15-78-220 (1976), alleging gross negligence on the part of SCDSS and its employees. The district court granted summary judgment on the § 1983 claims in favor of Thompson based upon qualified immunity, and summary judgment to SCDSS based upon discretionary immunity. We affirm in part, vacate in part, and remand.


On August 9, 1999, SCDSS received a report that four-year-old Jane Doe and her eight-year-old brother, Kameron Cox, were victims of sexual abuse. The report alleged that Kameron had been sexually abused by his mother and that Jane had been sexually abused by her mother's boyfriend and her maternal grandfather. The biological father of the children was incarcerated in another state.

Upon receipt of the report, SCDSS officials took the children into emergency protective custody. During the subsequent investigation, Kameron claimed that his mother had sexually abused him, and denied knowledge of anyone sexually abusing Jane. Jane's mother denied abuse but reported that "Kameron had played with [Jane]'s private but she told him not to do it anymore." J.A. 479. Ultimately, the sexual abuse assessments and medical examinations were inconclusive as to whether the children had been sexually abused. However, the South Carolina Family Court found physical neglect and granted SCDSS temporary custody of the children. No findings were made regarding the sexual abuse allegations. Physical custody of the children was initially transferred to a maternal aunt, but she relinquished the children to SCDSS's legal custody in July 2000. They were placed in a group home until September 2000 when they were moved to their first state-approved foster home.

On June 18, 2001, Joy Bennett, the children's therapist, reported that Kameron had become increasingly angry and depressed at his inability to return to his mother's home. She stated that he posed a threat to himself and to Jane, and she recommended psychiatric hospitalization. However, she also recommended that, in order to maintain the bond between Kameron and Jane, the two ultimately should continue to be placed together "if this c[ould] be done safely" for Jane. J.A. 436. According to the psychiatric records, Kameron had a history of depression, suicidal and homicidal thoughts, and had become increasingly aggressive and hostile toward Jane. Kameron blamed Jane for their being in foster care "because she made statements that [their] mother, stepfather, and maternal grandfather [had] sexually molested her," but Kameron "d[id] not believe her allegations." J.A. 536. The psychiatric records also included a history of sexual experimentation by Kameron and Jane with each other, possible sexual abuse of the children, and possible intergenerational incest.

On May 30, 2001, the defendant Debby Thompson, an employee of SCDSS, was assigned as the Adoption Specialist for the children. On July 5, 2001, Kameron was discharged from the hospital and placed in a foster home separate from Jane. Thompson began visiting the children later that month, but Kameron's threats to Jane necessitated postponement of recruitment efforts for a joint adoption of the siblings "until a determination of the appropriateness of an adoptive placement of [Jane] and Kameron together c[ould] be made." J.A. 493. On August 22, 2001, Bennett advised Thompson that Kameron "ha[d] been a danger to [Jane] and she should be protected," but that Bennett had "realistic hope that Kameron c[ould] deal with his emotions and be safely reunited with her." J.A. 439. She also noted that Jane "show[ed] some signs of sexual abuse including ... a history of trying to sneak into Kameron's bed, probably for comfort through sexual contact." J.A. 440. Although the exact history of sexual abuse was unclear, Bennett noted that it was "very likely that they ha[d] engaged in inappropriate sexual encounters with adults and with each other." J.A. 440. During this period, Jane also began to exhibit acting-out behaviors of a sexual nature, including overly affectionate behavior towards boys and men, as well as anger and aggressiveness when she was frustrated.

On November 26, 2001, Jane was placed in foster care with Bill and Pam Hamerick, where she could be seen by Kameron's therapist, Titsa M. Flesch, and have sibling visits with Kameron, including some overnight visits on weekends and holidays. On September 9, 2002, Kameron was placed in the Hamericks' home as well. By this time, SCDSS had filed an action in family court seeking to legally terminate the parental rights of the biological parents, in order to pursue a joint adoption of the siblings. Following a contested proceeding, the mother voluntarily relinquished her parental rights, and the parental rights of the father were judicially terminated. The family court granted "[c]ustody of the minor children ... to [SCDSS] with all rights of guardianship, placement, care and supervision, including the authority to approve medical treatment or educational plans, to secure placement for the minor children and the sole authority to consent to any adoption, with the authority to seek such routine and emergency medical care as [SCDSS] deems necessary and in the best interests of said minor children." J.A. 316.

Plaintiffs Gregory and Michelle Johnson completed an application for adoption in May 2002. The Johnsons expressed their understanding that the "children [we]re in the system because of abuse, neglect, etc.," and they stated that they "fully underst[oo]d the therapy issues." J.A. 673. They were willing to accept a child or children (including a sibling group) with "mild/treatable" sexual abuse, J.A. 673, but not a child who was "sexually aggressive" towards other children, J.A. 672. In January 2003, Thompson presented a background summary on Kameron and Jane to the Johnsons. Thompson claims that the summary contained all of the information available to her about the children, including the allegations that they had been sexually abused. It stated that the children had been removed from the birth home for allegations of sexual abuse but that Jane had been inconsistent in her reports of abuse, alternatively naming her birth mother, Kameron, her maternal grandfather, and her mother's boyfriend as having been sexually inappropriate or abusive toward her. Kameron had also been inconsistent at times, both denying and admitting inappropriate contact with his mother. He denied knowledge of any inappropriate contact between Jane and the adults. In the end, the Johnsons were advised that SCDSS had been unable to substantiate or rule out sexual abuse of either child. However, the summary represented that "[t]here ha[d] been no reports of any sexually inappropriate behavior from Kameron since entering care" and that "[p]art of his therapy ha[d] been to insure that he understands boundaries, good touch-bad touch rules and appropriate social interactions." J.A. 280 (emphasis added).

On February 28, 2003, Jane and Kameron were placed with the Johnsons for prospective adoption. Approximately four weeks after the placement, however, the Johnsons chose not to proceed with the adoption of Kameron, and he was removed from the Johnsons' home. Among other things, Kameron was believed to have inappropriately touched the Johnsons' biological son. Jane remained with the Johnsons though, and her adoption was finalized on November 6, 2003.

Approximately one year later, Kameron admitted to his therapist that he had sexually abused Jane prior to SCDSS's removal of them from the birth home. Kameron also claimed to have sexually abused seven foster children while in foster care, both before and after his placement with the Johnsons. Kameron's social worker notified the Johnsons that Kameron had claimed to have had an inappropriate sexual relationship with Jane prior to SCDSS's taking custody of them, but Jane told her therapist "that Kameron was lying and that they were still having `sex' until they moved in with [the Johnsons]." J.A. 872. She also claimed that she told Thompson and Flesch that Kameron had sexually abused her while she was with the Hamericks and at other foster homes that she could not recall, although s...

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