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T.D. v. Patton

United States Court of Appeals, Tenth Circuit

August 28, 2017

T.D., Plaintiff-Appellee,
v.
KELCEY PATTON, Defendant-Appellant, and THE DENVER DEPARTMENT OF HUMAN SERVICES, Defendant.

         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.

          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:

• 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 registered sex offender for that conviction.
• In 2005, Mr. Duerson violated a restraining order by attempting to contact P.G.
• In November 2007, Mr. Duerson violated probation. His probation was revoked because he had "purposefully failed" to complete his sex offender treatment obligations had "been deceptive in disclosing his relationship with his current girlfriend, " and had "purposefully violated his no contact contract with his girlfriend, while missing treatment appointments." Dist. Ct. Order at 9 (quotations omitted). The probation report documenting the violation stated that he was not amenable to treatment and was unwilling to comply with his probation conditions.
• Mr. Duerson was charged, but not convicted, for other offenses, including misdemeanor assault, misdemeanor wrongs to minors, misdemeanor domestic violence, and misdemeanor resisting police authority.
• Apart from his 2005 conviction, there had been "multiple other incidents" involving Mr. Duerson abusing P.G., including an incident when Mr. Duerson dragged P.G. into a bedroom and grabbed her butt. Id.

         As part of her investigation, Ms. Patton also reviewed what the parties call the "Trails Report, " a document in the DDHS's system prepared in 2005 by a DDHS social worker. The report detailed that Mr. Duerson's 2005 conviction was based on his attempt to sodomize P.G. against her will.

         Based on her investigation, Ms. Patton's "gut [did not] feel good" about, and she questioned, placing T.D. with Mr. Duerson. Id. at 10.

         5. The August 17, 2010 Hearing

         On August 17, 2010, before the next juvenile court hearing, Ms. Patton, T.D., Briana Hutchinson (an outside family therapist), Kyle Hommes (T.D.'s clinician at Shiloh House), and Mr. Duerson met to discuss T.D.'s custody. The attendees agreed T.D. was ready to transition from Shiloh House to a lower level of care. Mr. Duerson reported that he had successfully completed his offense-specific therapy and that he was no longer on probation.

         The meeting participants approved a tentative plan-subject to Ms. Gomez's approval-to transition T.D. from Shiloh House to Mr. Duerson's home. The participants agreed to gradually increase the visits between T.D. and Mr. Duerson, under the supervision of Mr. Duerson's wife.

         Ms. Patton misrepresented her knowledge of Mr. Duerson's criminal history to the meeting participants. She also failed to share with the meeting participants the full extent of her concerns about T.D.'s placement with his father, including that Mr. Duerson was not taking his sex offense treatment seriously.[8]

         6. The September 7, 2010 Hearing

         On September 7, 2010, the juvenile court held another permanency planning hearing.

a. Report for the Hearing

         Before the September 7, 2010 hearing, Ms. Patton submitted a report to the juvenile court. It recounted how the participants at the August 17, 2010 meeting agreed T.D. was ready to transition to a lower level of care and that the family therapist believed it was in T.D.'s best interest to return to Mr. Duerson's home. The report also stated that Mr. Duerson believed he was better equipped to address T.D.'s special needs and that Mr. Duerson had completed his offense-specific therapy and was no longer on probation.

         Although Ms. Patton had informed the juvenile court that Mr. Duerson had been convicted of a sexual offense against a minor in 2005 and was later put on probation for that offense, she did not include all of her particular knowledge about that conviction or other facts about Mr. Duerson's criminal history in the final September 7, 2010 report. In the final report, Ms. Patton did not attach Mr. Duerson's criminal history or the Trails Report, which provided details of Mr. Duerson's 2005 conviction. Nor did she inform the court that his probation was revoked due to his purposeful failure to fulfill his sex offender treatment obligations or the "multiple" other incidents of abuse involving P.G.

         In an initial draft of her report, Ms. Patton had expressed her concerns about T.D.'s placement with his father, including: Mr. Duerson's criminal record (and specifically his attempted sexual assault on P.G. in 2005); the 2007 revocation of his probation for purposeful failure to fulfill his sex offender treatment obligations; and his therapist's concern that he was "not taking treatment seriously." Dist. Ct. Order at 10. Ms. Patton intentionally omitted those concerns in her final report to the juvenile court. She did so because her supervisor, Ms. Ketema, had told her that DDHS was going to return T.D. to Mr. Duerson and Ms. Patton should "not go against the DDHS." Id. (quotations omitted). Ms. Patton feared she would be fired if she included her knowledge or concerns in her final report.

         b. The Hearing

         Ms. Patton and Ms. Gomez attended the hearing on September 7, 2010. No other professional from the August 17, 2010 meeting was there. At the hearing, both Ms. Gomez and Ms. Patton recommended T.D.'s transfer to Mr. Duerson's custody.[9]The juvenile court granted permission to begin that transition.

         Before the hearing, Ms. Patton did not discuss the information in the Trails Report with Ms. Gomez. Ms. Gomez testified that she was under a misconception about the nature of Mr. Duerson's 2005 conviction, and, had she known about the details of the offense documented in the Trails Report, she "probably would not have recommended T.D.'s placement with [Mr. Duerson]" to the juvenile court. Id. at 11. (brackets and quotations omitted).

         7. T.D.'s Transition and Placement in Mr. Duerson's Home

         Meetings were held on September 17 and October 8, 2010, to complete a plan to transition T.D. from Shiloh House to Mr. Duerson's home. T.D., Ms. Garcia, Mr. Duerson (at one meeting), Ms. Hutchinson, Mr. Hommes, Mr. Duerson's wife, Ms. Gomez, and a representative for DDHS attended. Ms. Patton did not attend either meeting.

         On October 21, 2010, Ms. Gomez filed a Stipulated Agreement with the juvenile court reporting that T.D. had successfully transitioned to Mr. Duerson's home on October 15, 2010. The Stipulated Agreement asked the court to give Mr. Duerson "temporary legal custody" of T.D. so that T.D. could enroll in school and be added to his father's public assistance benefits. Id. at 13. It also documented that Ms. Patton agreed with the placement. Other than Ms. Patton and T.D.'s parents, none of the attendees at the August 17, 2010 meeting, such as Ms. Hutchinson or Mr. Hommes, were listed on the Stipulated Agreement.

         On November 3, 2010, the juvenile court granted "temporary legal and physical custody" of T.D. to Mr. Duerson "under an order of supervision by [DDHS]." Id. (quotations omitted).

         8. The December 13, 2010 Hearing

         Ms. Patton prepared a report for a December 13, 2010 juvenile court hearing. It stated that Mr. Duerson had successfully completed probation, was compliant with DDHS's treatment plan, and was in contact with Ms. Patton. It also stated that T.D.'s behavior was improving to a point where he could transition from attending school at Shiloh House to attending a local school. In the report, Ms. Patton recommended that T.D. remain in Mr. Duerson's temporary custody.

         In December 2010, Mr. Duerson and T.D. were discharged from their required family therapy sessions. The therapist stated in her discharge report that the family had reached their treatment goals and that she had "no safety concerns regarding [Mr. Duerson's] house." Id. at 14.

         9. The March 21, 2011 Hearing

         The juvenile court held another permanency planning hearing on March 21, 2011. In her report for the hearing, Ms. Patton said T.D.'s behavior had improved at school and at home and that, overall, T.D. "was flourishing" in Mr. Duerson's home. Id. She noted a minor concern that T.D. had missed 30 class periods in the second school term, which Mr. Duerson blamed on conflicting appointments and T.D. being sick. Ms. Patton said that she encouraged the family to try not to schedule appointments during school. Ms. Patton's report recommended that temporary custody of T.D. remain with Mr. Duerson.

         10. The June 13, 2011 Hearing

         In a report prepared for a June 13, 2011 permanency planning hearing, Ms. Patton wrote that Mr. Duerson had used physical punishment on T.D. Specifically, T.D. had told her and Ms. Gomez that his father had hit him across the back with a wooden mop handle for not completing his chores. School officials had told her that, in the last few months, T.D. had spent a lot of time at the nurse's office complaining of sickness and body aches, appeared to be afraid of his father, and at times did not want to go home. Ms. Garcia had reported that, during weekend stays with her, T.D. had acted disrespectfully, refused to complete chores, smelled badly, and had unclean clothes when he arrived at her home. Ms. Patton stated in her report that, as a result of this information, she had referred Mr. Duerson to participate in DDHS's Fatherhood Initiative Program.

         In the report, Ms. Patton stated that, although she had "some concerns" with Mr. Duerson's "parenting skills, " she still recommended that T.D. remain in his father's custody. Id. at 15. She testified at her deposition that she made this recommendation despite the fact that she truly "wanted to remove T.D. from [his father's] home because she was afraid for T.D.'s safety." Id. She did not express her concerns to the juvenile court because her supervisor, Ms. Ketema, had told her that T.D. would remain in his father's home, and Ms. Patton was afraid she would be fired if she did not recommend T.D. remain with his father.

         At the June 13, 2011 hearing, the juvenile court ordered Mr. Duerson to participate in the recommended Fatherhood Initiative Program and not to use physical discipline on T.D.

         11. The August 25, 2011 Hearing

         In a report for an August 25, 2011 hearing, Ms. Patton informed the juvenile court that she was having trouble reaching Mr. Duerson and was unable to contact him for a period of time. She had no face-to-face contact with T.D. in July, as her supervisor had instructed.

         Ms. Patton reported that she could confirm Mr. Duerson's attendance at only one fatherhood class since the last hearing in June. She also reported that she had tried several times, without success, to conduct a written parental assessment of Mr. Duerson. She stated, however, that Mr. Duerson was participating actively in family therapy and acting appropriately with young children. She recommended that T.D. remain in the temporary custody of Mr. Duerson. And, although she had failed to visit Mr. Duerson's home at least every other month as DDHS policy required, the report mistakenly stated Ms. Patton had made monthly visits to the home.[10]

         12. T.D.'s Removal from Mr. Duerson's Home

         On September 19, 2011, DDHS received a report of sexual contact between T.D. and his half-brother. On September 21, 2011, DDHS removed T.D. from Mr. Duerson's home and took him into its temporary custody the next day.

         In a report prepared for a November 16, 2011 hearing, Ms. Patton stated she had minimal communication with Mr. Duerson since the last hearing in August, and that Mr. Duerson's youngest children had been removed from the home due to domestic violence and drug use. She further reported that Mr. Duerson had attended only one fatherhood class since getting temporary custody of T.D., had moved out of state, and was not complying with his treatment plan.

         13. Report and Investigation of Abuse

         In March 2014, T.D. reported that Mr. Duerson had abused him while he was in his father's temporary custody. DDHS investigated and concluded that:

• In August 2011, Mr. Duerson had repeatedly sexually assaulted T.D. by forcibly orally sodomizing him twice;
• Mr. Duerson had hit T.D. with a broomstick and threatened to knock him unconscious and send him to the hospital for not performing oral sex on him;
• Mr. Duerson had forced T.D. to perform oral sex on him for 10-15 minutes as punishment for T.D.'s staying up past his bedtime;
• Mr. Duerson had physically forced T.D. and his three-year-old brother to perform oral sex on each other; and
• Mr. Duerson had told T.D. not to tell anyone about the abuse.

         DDHS determined the abuse T.D. had suffered while in Mr. Duerson's home was "severe." Id. at 18.

         B. Procedural Background

         In 2014, Ms. Garcia, on behalf of T.D., sued Ms. Patton and DDHS in state court alleging they violated T.D.'s substantive due process right under the Fourteenth Amendment. The defendants removed the case to the United States District Court for the District of Colorado. Plaintiffs' second amended complaint, the operative one here, raised a § 1983 substantive due process claim against Ms. Patton and DDHS based on a danger-creation theory and a special-relationship theory.

         T.D. filed a motion for partial summary judgment on the special-relationship theory. Ms. Patton filed a cross-motion for summary judgment on both theories, asserting a defense of qualified immunity. DDHS also moved for summary judgment on the § 1983 claim.

         The court granted summary judgment in Ms. Patton's favor on the special-relationship theory and against her on the danger-creation theory. On the danger-creation theory, the court concluded that Ms. Patton's conduct amounted to a constitutional violation and that, based on Currier, her conduct violated clearly established law. The court also granted summary judgment to DDHS.

         T.D. does not appeal the grant of summary judgment to Ms. Patton on the special-relationship theory or the grant of summary judgment to DDHS. This appeal thus concerns only the court's order denying qualified immunity to Ms. Patton on T.D.'s danger-creation claim.

         II. DISCUSSION

         We affirm the district court's denial of qualified immunity because the facts, taken in the light most favorable to T.D., show Ms. Patton violated T.D.'s clearly established substantive due process right under the Fourteenth Amendment. We first describe the applicable standard of review and legal standards. We then analyze whether (1) Ms. Patton violated T.D.'s substantive due process right under a danger-creation theory and (2) whether his right was clearly established.

         A. Standard of Review

         "We review summary judgment de novo, applying the same legal standard as the district court." Gutierrez, 841 F.3d at 900. A "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party, " Gutierrez, 841 F.3d at 900, here T.D., as the nonmoving party on the danger-creation theory.

         B. Legal Standards

         1. 42 U.S.C. § 1983 and Qualified Immunity

         Under 42 U.S.C. § 1983, a person acting under color of state law who "subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." "Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials . . . from damages actions unless their conduct was unreasonable in light of clearly established law." Gutierrez, 841 F.3d at 899.

         "Once an individual defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct." Id. at 900 (quotations omitted). "This is a heavy burden. If the plaintiff fails to satisfy either part of the inquiry, the court must grant qualified immunity." Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208 (10th Cir. 2017).

         A plaintiff may show clearly established law by pointing to either a Supreme Court or Tenth Circuit decision, or the weight of authority from other courts, existing at the time of the alleged violation. Gutierrez, 841 F.3d at 900. To be clearly established, "existing precedent must have placed the statutory or constitutional question beyond debate." White v. Pauly, 137 S.Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). Although there need not be a "case directly on point, " id. (quoting Mullinex, 136 S.Ct. at 308), "[a]n officer 'cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in his shoes would have understood that he was violating it.'" City & Cty. of San Francisco v. Sheehan, 135 S.Ct. 1765, 1774 (2015) (brackets omitted) (quoting Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014)).

         Courts must not define "clearly established law at a high level of generality." Id. at 1776 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Instead, "the clearly established law must be 'particularized' to the facts of the case." White, 137 S.Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "Otherwise, 'plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging ...


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