Elwell v. Byers

• Decision Date: 14 November 2012
• Docket Number: 11–3174.,Nos. 11–3172,s. 11–3172
• Parties: Ann ELWELL; Greg Elwell, Plaintiffs–Appellees, v. Bob BYERS; Lynnea Kaufman, Defendants–Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

699 F.3d 1208

Ann ELWELL; Greg Elwell, Plaintiffs–Appellees,

v.Bob BYERS; Lynnea Kaufman, Defendants–Appellants.

Nos. 11–3172, 11–3174.

United States Court of Appeals,

Tenth Circuit.

Nov. 14, 2012.

Carl W. Ossman (Brian Dempsey and David W. Davies, with him on the briefs), State of Kansas—SRS Legal Division, Topeka, KS, for the Defendants–Appellants.

Charles T. Schimmel (W. Greg Wright with him on the briefs), Beam–Ward Kruse Wilson Wright & Fletes LLC, Overland Park, KS, for the Plaintiffs–Appellees.

Before LUCERO, HOLLOWAY, and MATHESON, Circuit Judges.

LUCERO, Circuit Judge.

This case grows out of an avoidable tragedy. Ann and Greg Elwell were in the process of adopting T.S., a young boy who had been in their care almost his entire life. But approximately one month after a complaint of emotional abuse of another child in the Elwells' care—which all parties agree did not raise concerns for T.S.'s safety or welfare and was subsequently deemed unsubstantiated—state officials withdrew the license allowing the Elwells to care for T.S. and removed him from their home without any advance notice. Despite a state court's finding that the agency acted wrongfully in removing the boy, he was never returned to them.

The Elwells brought suit against several state officials involved in the removal under 42 U.S.C. § 1983. On a motion for summary judgment, the district court concluded that qualified immunity did not shield the state officials from liability. We agree with the district court that the defendants violated the Elwells' Due Process rights when they removed T.S. without notice. However, despite our sympathy for the Elwells' plight, we must conclude that this violation was not clearly established in our case law at the time of T.S.'s removal. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's denial of summary judgment.

I

We recite the facts of the case in the light most favorable to the plaintiffs. See Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir.2010). Ann and Greg Elwell, a married couple with two biological children, held a license issued by the Kansas Department of Health and Environment (“KDHE”) that allowed them to keep two foster children in their home.¹ They became foster parents of T.S. in March 2006, when the child was three months old. Very soon thereafter, the parental rights of T.S.'s biological parents were terminated. The Elwells bonded with the child over the next year and took substantial steps towards adopting him. They were identified as T.S.'s “adoptive resource” and, with the support of the state department of Social and Rehabilitative Services (“SRS”), a state court approved of the proposed adoption plan and set the final adoption hearing for May 4, 2007.

On April 4, 2007, SRS received a report that Mrs. Elwell had emotionally abused another foster child in her care. The report alleged that Mrs. Elwell kept the child in soiled clothes for a short period after the child wet herself. Although SRS initially decided the allegations had substance, the agency agreed to designate the report as unsubstantiated after the events at issue in this case transpired.

SRS, KDHE, county health officials, and the Elwells agreed to remove the allegedly abused child from the Elwell home. Initially, agency staff did not express concern that T.S. might have to be removed as well. However, KDHE eventually concluded that it would terminate the Elwells' foster care license. As the investigation into the complaint progressed, SRS made plans to place T.S. with another family. No one notified the Elwells of the possibility of T.S.'s removal. In fact, defendant Lynnea Kaufman, an SRS supervisor, directed other agency employees to keep this information from the Elwells until the investigation was complete.

Sometime in early May, SRS decided it would deem the report of emotional abuse as substantiated. On May 11, agency staff held a meeting and determined that T.S. would be removed from the Elwells' home and placed with a different family on the following Monday. On that day, May 14, KDHE withdrew the Elwells' foster care license, effective immediately. SRS officials arrived at the Elwell home and told Mrs. Elwell they were removing T.S. This was the first the Elwells heard of SRS's plan. In Mrs. Elwell's words, the family was “devastated.”

Despite the revocation of their KDHE license, T.S. could have remained in the Elwells' care if an adoption placement agreement had been completed. KDHE indicated that it would have been willing to delay withdrawing the license to allow this step to be taken. Defendants Kaufman and Bob Byers, however, determined that SRS would not sign an adoption consent form, and thus elected not to offer an adoption placement packet.

The Elwells alleged that SRS violated a Kansas statute that required thirty-day notice to foster parents before a foster child who had been in their care for at least six months could be removed. SeeKan. Stat. Ann. 38–2258 (2007).² They sought a hearing in state court to challenge T.S.'s removal. The state court found that “[t]here were no concerns for [T.S.'s] safety and protection in the Elwell home” and that SRS “could have and should have notified the Elwells of the intent to remove” him. Unfortunately, litigation over T.S.'s placement dragged on, and the court did not consider the possibility of returning T.S. to the Elwells until March 2008. By then, T.S. had been living with another family for almost a year, and the court concluded that T.S. had significantly bonded with that family and that removing him from his new home would be more disruptive than beneficial. Although the court sympathized with the Elwells' “unrectifiable loss,” it concluded that removing T.S. a second time was not the proper remedy for the harm they had suffered.

The Elwells subsequently filed this action pursuant to 42 U.S.C. § 1983 in federal district court against Kaufman and Byers, asserting violations of procedural and substantive due process rights. The defendants asserted qualified immunity with respect to both claims. On a motion for summary judgment, the district court granted qualified immunity on the substantive due process claim, but denied it as to the procedural due process claim. Kaufman and Byers now appeal the denial of qualified immunity.

II

A

We have jurisdiction to review the denial of summary judgment on qualified immunity grounds when such denial presents “abstract issues of law.” Shrum v. City of Coweta, 449 F.3d 1132, 1137 (10th Cir.2006). We review the district court's determination as to qualified immunity de novo. Amundsen v. Jones, 533 F.3d 1192, 1198 (10th Cir.2008). To overcome a defense of qualified immunity, a plaintiff must show: (1) that the official's actions violated a constitutional right and (2) that the right was clearly established at the time of the action. Id. Courts retain discretion to consider those questions in the order they see fit. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). ³ It is “often beneficial,”however, to address the constitutional merits first, in order to “promote[ ] the development of constitutional precedent.” Id. That rationale suits this case well.

The concurrence would not have us address the constitutional question. We conclude that the question is appropriately considered for two reasons. First, the district court's legal ruling was that a protected liberty interest exists, and that is the issue before us on appeal. We can affirm a lower court's ruling on any grounds adequately supported by the record, even grounds not relied upon by the district court. See Dummar v. Lummis, 543 F.3d 614, 618 (10th Cir.2008). The statutory basis of the district court's conclusion does not foreclose our review of the constitutional question.

Second, as we discuss infra, both the Supreme Court in Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (hereinafter “OFFER ”), and we in Spielman v. Hildebrand, 873 F.2d 1377 (10th Cir.1989), dodged the constitutional issue presented in this case. As the Court recently reaffirmed, addressing the constitutional issue is often “advantageous” under such circumstances. Camreta v. Greene, ––– U.S. ––––, 131 S.Ct. 2020, 2031, 179 L.Ed.2d 1118 (2011). “[O]ur regular policy of avoidance sometimes does not fit the qualified immunity situation because it threatens to leave standards of official conduct permanently in limbo.” Id. As the Camreta court explained:

Consider a plausible but unsettled constitutional claim asserted against a government official in a suit for money damages. The court does not resolve the claim because the official has immunity. He thus persists in the challenged practice; he knows that he can avoid liability in any future damages action, because the law has still not been clearly established. Another plaintiff brings suit, and another court both awards immunity and bypasses the claim. And again, and again, and again. So the moment of decision does not arrive. Courts fail to clarify uncertain questions, fail to address novel claims, fail to give guidance to officials about how to comply with legal requirements. Qualified immunity thus may frustrate the development of constitutional precedent and the promotion of law-abiding behavior.

Id. (footnote, quotation, and citations omitted).

We are faced with such a dilemma. By passing over the constitutional issue on multiple occasions, courts have failed to clarify the law with the result that these tragedies continue to occur without legal recourse to the victims. Accordingly, we proceed to the constitutional question.

B

The first step in assessing a claimed procedural due process violation is to identify a constitutionally protected liberty or property interest. A liberty interest can either “inhere in the Due Process clause or it may be created by state law.” Boutwell v. Keating, 399...