Tamas v. Dep't of Soc. & Health Serv.
| Decision Date | 22 December 2010 |
| Docket Number | No. 08–35862.,08–35862. |
| Citation | 630 F.3d 833 |
| Parties | Estera L. TAMAS; Ruth S. Tamas; Monica, by and through her court-appointed guardian for purposes of litigation, Plaintiffs–Appellees,v.DEPARTMENT OF SOCIAL & HEALTH SERVICES, State Of Washington; Marschell Baker, individually and in her official capacity acting under the color of state law; Joyce Drake individually and in her official capacity acting under the color of state law; James Kairoff, individually and in his official capacity acting under the color of state law; Sharon Kleinhen, individually and in her official capacity acting under the color of state law; Chris Kneser individually and in her official capacity acting under the color of state law; Elaine Lipson, individually and in her official capacity acting under the color of state law; Sharon Loeffler, individually and in her official capacity acting under the color of state law; Beverly Payne individually and in her official capacity acting under the color of state law; Kellie Walker, individually and in her official capacity acting under the color of state law, Defendants–Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Robert M. McKenna, Attorney General, Michael P. Lynch (argued), and Peter J. Helmberger, Assistant Attorneys General, Olympia, WA, for Defendants–Appellants, State of Washington Department of Health and Social Services, Marschell Baker, Joyce Drake, James Kairoff, Sharon Kleinhen, Chris Kneser, Elaine Lipson, Sharon Loeffler, Beverly Payne and Kellie Walker.David P. Moody (argued), Anthony D. Shapiro, Erin K. Flory, and Marty D. McLean, Hagens Berman Sobol Shapiro LLP, Seattle, WA, for Plaintiffs–Appellees, Estera L. Tamas, Ruth S. Tamas, and Monica.Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge, Presiding. D.C. No. 2:07–cv–00750–RAJ.Before: JOHNNIE B. RAWLINSON and CONSUELO M. CALLAHAN, Circuit Judges, and LARRY A. BURNS,* District Judge.
Enrique Fabregas (Fabregas) is a predator who slithered into the lives of vulnerable women with young daughters. There is no question that Fabregas molested his foster daughters, one of whom he legally adopted. The more challenging question this case presents is whether the State of Washington Department of Social and Health Services (DSHS) and nine DSHS employees' involved in overseeing the foster care of Monica (Monica), Ruth Tamas (Ruth), and Estera Tamas (Estera) are legally responsible for the injuries inflicted by Fabregas.
Monica, Ruth, and Estera (Appellees) filed a lawsuit against DSHS and nine of its employees (Appellants) alleging negligence and civil rights violations under 42 U.S.C. § 1983. Appellants filed a summary judgment motion asserting that the individual DSHS employees were entitled to absolute and qualified immunity. Appellants challenge the district court's denial of their motion. Because the district court did not apply the correct standard in assessing whether qualified immunity applies, we vacate the district court's judgment and remand this case for application of the correct standard, and for separate analysis of each Appellant's prospective liability.
Over the course of approximately ten years, DSHS received and responded to almost thirty formal and informal complaints regarding Fabregas' interaction with his foster children, Monica, Ruth and Estera.
On July 19, 1996, DSHS received a referral (Referral 1) alleging that Fabregas abused Monica's mother and used cocaine. DSHS subsequently filed a dependency petition regarding two-year-old Monica, which was granted. DSHS placed Monica with Pamela Deming (Deming).
Appellant Chris Kneser (Kneser) was Monica's DSHS social worker from June 2, 1997, to February 26, 1999. Deming reported to Kneser that she witnessed Fabregas “french kiss” Monica, suspected Monica was molested, and viewed a video made by Fabregas showing Monica in a freezer, standing unrestrained in a moving car, and standing by a busy freeway in a cow costume. On July 1, 1997, Kneser received a referral (Referral 2) reporting that Monica said she and pointed to her bottom when asked where he touched her. Kneser initiated a Child Protective Services (CPS) investigation, which “determined the allegation to be inconclusive” because Monica and Fabregas denied the abuse and Moore (Monica's mother) did not believe Fabregas abused Monica.
On November 25, 1997, Fabregas applied for a foster care license 1 and filed a motion for an order placing Monica with him.2 On March 2, 1998, the court ordered Monica's placement with Fabregas, subject to conditions that he obtain a foster-care license and comply with DSHS's service plan.3 Appellant Sharon Kleinhen (Kleinhen), a foster home licensor from 1975 to 1999, conducted a home study and reviewed Fabregas' license application. She noted the court's placement of Monica with Fabregas despite his criminal history, his “odd parenting methods, a drug and rehabilitation past, and concerns about sexual deviance[.]” Kleinhen nevertheless recommended to her supervisor, Appellant Joyce Drake (Drake), that Fabregas be licensed. Drake, the licensor supervisor from 1997 to 2002, signed the license, and dated it March 9, 1998.
In February, 1999, Fabregas requested a second license when he changed his residence. Fabregas once again misrepresented his criminal history on the application. Appellant Sharon Loeffler, the foster home licensor on Fabregas' second license request, reviewed Kleinhen's remarks and Fabregas' 1998 criminal charge, interviewed Fabregas, and recommended approval to Drake. Drake signed the license on May 17, 1999.
From 1998 to 2005, Appellant Beverly Payne (Payne) was the supervisor of the Department of Licensing Resources and CPS. Payne reviewed and evaluated whether the referrals received in a CPS unit were properly screened and sent out for investigation. During Payne's supervisory period, DSHS received numerous referrals involving Fabregas.4
On December 1, 1999, DSHS received a referral (Referral 3) alleging that Fabregas left Monica alone with her alcoholic mother, failed to regularly take Monica to school or her speech therapy appointments, and failed to adequately feed Monica; and that Monica had bruises on her feet. DSHS interviewed Monica, Monica's teacher and Fabregas, all of whom either denied or negated the alleged complaints. DSHS concluded that the allegations were unfounded.
By 2000, Fabregas had legally adopted Monica. In June of that year, DSHS received a referral (Referral 4) alleging that 6–year–old Monica soiled her pants at school several times and accused Fabregas of having drugs. DSHS concluded that the “allegation did not meet the criteria for investigation” and that there was “no allegation about Mr. Fabregas.”
On September 29, 2000, DSHS received a referral (Referral 5) regarding Monica. The referral also mentioned Ruth and Estera, the daughters of Fabregas' then girlfriend, Lydia. The referral alleged that Monica was left alone until midnight and that Estera regularly left with Fabregas at approximately 10:00 p.m. dressed like a “hooker,” returning about 5:00 a.m. DSHS closed the investigation after Monica, Ruth, and Estera denied the allegations and law enforcement expressed no interest in investigating.
DSHS received a March 5, 2001, referral (Referral 6) reporting Fabregas “kissing and holding” Monica as if she were a “girlfriend or lover.” DSHS concluded that “the allegation did not meet the criteria for investigation” because there was “no allegation about Mr. Fabregas.” Ten days later, DSHS received a referral (Referral 7) that Monica said a bruise on her face resulted from her dad biting her and school staff observed Fabregas “all over [Monica] physically all the time.” After Monica told DSHS that the bruise was from wrestling and her dad liked “to hug and kiss everyone[,]” DSHS determined that the allegations were unfounded.
Appellant Elaine Lipson (Lipson), was Ruth and Estera's social worker from June 14, 2001, to January 27, 2003. During this period, DSHS received six referrals (Referrals 8 through 13) alleging Fabregas' abuse of Ruth and Estera. On June 1, 2001, DSHS filed dependency petitions for Ruth and Estera, who requested to be placed with Fabregas. Over the objections of DSHS and Lydia,5 on July 31, 2001, the court ordered that Ruth and Estera be placed with Fabregas on the condition that he obtain a foster care license.
Fabregas applied for a third foster care license on July 23, 2001, and again failed to disclose his felony convictions. While Fabregas' license was pending, DSHS received a referral (Referral 8) that Ruth had bruising due to a fight with Monica. DSHS rendered a finding of “not valid for discipline” and “not valid for supervision” because Fabregas was not yet licensed.
On October 15, 2001, Lipson filed a declaration with the court to remove Ruth's placement from Fabregas' home after Ruth expressed a desire to no longer reside with Fabregas. Ruth changed her mind by the time of the hearing, however, and the Snohomish County Superior Court ordered that both Ruth and Estera remain with Fabregas, neither Ruth nor Estera be moved absent allegations of abuse or an emergency, and that a DSHS-approved comprehensive placement assessment be completed.6
On December 27, 2001, Fabregas renewed his application for a foster care license and again failed to disclose his felony convictions. While Fabregas was still unlicensed, DSHS received a referral (Referral 9) alleging that Fabregas provided Ruth and Estera with cigarettes and alcohol. Ruth, Estera and Fabregas denied the allegations and accused the referent of lying. Prior to the issuance of Fabregas' third license, Lydia 7 filed a motion to remove the girls from Fabregas' care. However,...
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