K.H. Through Murphy v. Morgan

Decision Date24 September 1990
Docket NumberNo. 89-3158,89-3158
Citation914 F.2d 846
PartiesK.H., through her next friend and guardian ad litem, Patrick T. MURPHY, Plaintiff-Appellee, v. Gary T. MORGAN, Guardianship Administrator, Department of Children and Family Services, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Patrick T. Murphy, Jeanette DeGrange, R. Jane Burwell, Susan T. Pierce, Kathleen G. Kennedy, and Mary Burns, Office of the Public Guardian, Chicago, Ill., for plaintiff-appellee.

Jeffrey W. Finke, Office of the Atty. Gen., Chicago, Ill., for defendants-appellants.

Before WOOD, Jr., POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

The defendants in this civil rights damages suit (brought under 42 U.S.C. Sec. 1983) appeal--as is their right, Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985)--from an order by the district judge rejecting their defense of immunity. The defendants are the Director of the Illinois Department of Children and Family Services, the Department's guardianship administrator, and two social workers employed by the Department; together they raised the defense of immunity in a motion to dismiss the complaint. This was a permissible way to proceed. If the defense was sustained, the suit would have to be dismissed, because these were the only defendants and damages the only relief that the plaintiff was seeking, the claim for injunctive relief having been abandoned. But this means that the only facts before the judge when he ruled on the defense of immunity were those alleged in the complaint, and we must take them as true, as did he. The defendants have attempted to fog the factual issues by tendering first to the district judge and now to us the transcript of a juvenile court hearing that casts the facts in a light slightly more favorable to them. But since they did not ask the district judge to make any factual findings we shall ignore the juvenile-court transcript beyond reminding the reader that allegations in a complaint are not proven facts.

The complaint paints an ugly picture of official neglect of human misery. K.H., the plaintiff, is a black girl born in Chicago in 1981. When she was seventeen months old she was discovered to have gonorrhea contracted in vaginal intercourse. The juvenile court of Cook County ordered her removed from the custody of her parents. Pursuant to this order, the Department of Children and Family Services placed her with a foster parent. This was placement number one. Two weeks later the Department transferred her to another foster parent, with whom she remained for four months. At the end of that time she was transferred to a third foster parent, with whom she remained for ten months before being transferred to foster parent number four. She remained for more than a year with that foster parent and then was returned to her natural parents. Three months after that, however, she was again removed from her parents' custody on grounds of parental neglect and placed with her sixth parental custodian (counting her parents as the fifth). She was now three years old. Shortly after this transfer K.H. was shifted to yet another foster parent--who beat her; in addition, a neighbor of this foster parent abused K.H. sexually. The hospital staff that discovered this outrage advised the Department that K.H. needed psychotherapy, but none was administered and instead she was shunted to another foster parent, who, far from having the training or ability to care for what had become an emotionally disturbed child, abused her physically. After this abuse came to light, K.H. was transferred to an institution that provides safe and professional care. But that care is expensive. The complaint seeks $300,000 in damages to help defray the psychiatric treatment needed to alleviate the consequences of the defendants' irresponsible discharge of their duty to provide foster care for K.H. We do not know whether, if the suit fails, there is any source of public or private funds for defraying these expenses.

In 1987, when at last K.H. was placed in an adequate facility, she was not yet six years old. She had changed homes nine times in four years. The defendants argue from the juvenile court transcript that there were good reasons for each of the moves and--inconsistently--that none of K.H.'s foster parents abused her. As confession and avoidance, this argument leaves more to be desired than consistency. To change an infant's parents nine times in four years not only is suggestive of profound disarray in the state's system of caring for abused and neglected children; more to the point, it may--though this depends on the state of mind with which the authors of this shuttle, the defendants, acted--bespeak violations by these state actors of their constitutional obligations.

One of the less controversial aspects of the due process clause is its implicit prohibition against a public officer's intentionally killing a person, or seriously impairing the person's health, without any justification. The right to be free from this kind of governmental oppression, although not from lesser oppressions such as defamation and simple assault, is among the "negative liberties" that the due process clause of the Bill of Rights and the Fourteenth Amendment has been held to protect. Youngberg v. Romeo, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2457-58, 73 L.Ed.2d 28 (1982); DeShaney v. Winnebago County Dept. of Social Services, 812 F.2d 298, 301 (7th Cir.1987), aff'd, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Brown v. Brienen, 722 F.2d 360, 364 (7th Cir.1983). The extension to the case in which the plaintiff's mental health is seriously impaired by deliberate and unjustified state action is straightforward.

This is not a "positive liberties" case, like DeShaney, where the question was whether the Constitution entitles a child to governmental protection against physical abuse by his parents or by other private persons not acting under the direction of the state. The Supreme Court agreed with this court that there is no such entitlement. Here, in contrast, the state removed a child from the custody of her parents; and having done so, it could no more place her in a position of danger, deliberately and without justification, without thereby violating her rights under the due process clause of the Fourteenth Amendment than it could deliberately and without justification place a criminal defendant in a jail or prison in which his health or safety would be endangered, without violating his rights either under the cruel and unusual punishments clause of the Eighth Amendment (held applicable to the states through the Fourteenth Amendment) if he was a convicted prisoner, Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), or the due process clause if he was awaiting trial. Hamm v. DeKalb County, 774 F.2d 1567, 1572-74 (11th Cir.1985), and cases cited there. In either case the state would be a doer of harm rather than merely an inept rescuer, just as the Roman state was a doer of harm when it threw Christians to lions. Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982); DeShaney v. Winnebago County Dept. of Social Services, supra, 812 F.2d at 303; Walker v. Rowe, 791 F.2d 507, 511 (7th Cir.1986). Consistent with this distinction, Milburn v. Anne Arundel County Dept. of Social Services, 871 F.2d 474, 476 (4th Cir.1989), emphasizes the state's lack of responsibility for a child's voluntary placement by the natural parents in an abusing private foster home.

The Roman analogy is sound even if one concedes, as one must in the light of DeShaney, that the State of Illinois has no constitutional obligation to protect children from physical or sexual abuse by their parents. The state could have left K.H. to the tender mercies of her parents without thereby violating her rights under the Constitution. But having removed her from their custody the state assumed at least a limited responsibility for her safety. If the fire department rescues you from a fire that would have killed you, this does not give the department a constitutional license to kill you, on the ground that you will be no worse off than if there were no fire department. The state, having saved a man from a lynch mob, cannot then lynch him, on the ground that he will be no worse off than if he had not been saved. The Illinois Department of Children and Family Services could not have subjected K.H. to sexual abuse and then defended on the ground that by doing this it did not make her any worse off than she would have been had she been left with her parents. The law does not ask a prisoner complaining of unsafe and unsanitary prison conditions to prove that he is worse off than he would be if restored to the criminal milieu from which he had been taken off to prison. Once the state assumes custody of a person, it owes him a rudimentary duty of safekeeping no matter how perilous his circumstances when he was free. The distinction follows the lines of tort law. There is no duty to rescue a bystander in distress, Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Jackson v. City of Joliet, 715 F.2d 1200, 1202 (7th Cir.1983), but having rescued him from certain death you are not privileged to kill him. This is not to say that you assume responsibility for his future welfare. You do not. Our point is only that the absence of a duty to rescue does not entitle a rescuer to harm the person whom he has rescued.

The complaint in this case focuses on the penultimate placement--the placement of K.H. in 1986 with a foster parent who was incompetent to care for an emotionally disturbed child and who physically abused K.H. into the bargain. The complaint alleges that the two caseworkers who are defendants knew that the foster parent was incompetent and that the administrator defendants, although they did not know about K.H.'s case...

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