K.H. ex rel. Murphy v. Morgan , 914 F.2d 846 ( 1990 )

POSNER, Circuit Judge.

The defendants in this civil rights damages suit (brought under 42 U.S.C. § 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, 11A F.2d 1567, 1572-74 (11th Cir.1985), and eases 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 ease specifically, knew that mindless shuttling of the Department’s wards among incompetent foster parents was rampant, and indeed had, without justification, formulated and approved the departmental policies that caused such shuttling to occur. It could be argued, consistent with the previous suggestion to compare a plaintiff’s current condition with the condition he would have been in had the state not intervened, that the real injurers in this case are the natural parents, who by their initial abuse of K.H. doomed her to wander among foster homes. No doubt they are joint tortfeasors with the defendants, but this does not excuse the defendants. If, as the complaint alleges, the defendants must have known they were placing K.H. in a sequence of foster homes that would be destructive of her mental health, the ingredients of a valid constitutional claim are present.

Although some or perhaps even all of the defendants may have violated K.H.’s constitutional rights, they can be made to pay damages only if the specific right they violated was clearly established at the time they violated it. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). It is not enough that the recognition of the right could be predicted from cases dealing with analogous issues, or that the right lay in the line of natural evolution from accepted principles, or that, stated with sufficient generality, the right could be said to exist already. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Landstrom v. Illinois Department of Children & Family Services, 892 F.2d 670, 677 (7th Cir.1990); Colaizzi v. Walker, 812 F.2d 304, 307-08 (7th Cir.1987). In this case, therefore, the specific right asserted — not a right to due process of law but a right not to be placed with and shuffled among foster parents known to be incompetent and indeed dangerous — would have to have been either expressly established by, or clearly implicit in, existing case law, to allow a damages suit to be maintained.

The defense of public officer immunity in civil rights damages suits is thought in some quarters a second-best solution to the problems created by imposing tort liability on public officers. The defense is not found in the civil rights statutes themselves, but is a judicial addition to the statutes, Malley v. Briggs, 475 U.S. 335, 339-40, 106 S.Ct. 1092, 1095-96, 89 L.Ed.2d 271 (1986) — a creative graft, and viable therefore only if it serves a social purpose. Id. at 340, 106 S.Ct. at 1095; Anderson v. Creighton, supra, 483 U.S. at 645, 107 S.Ct. at 3041. The defense has been thought necessary to prevent undue timidity by government employees — faced with enormous personal liabilities if they overstep the bounds of their authority (bounds that may have not been apparent when they acted) and someone is hurt, but denied, by methods of compensating civil servants that may be entailed by the very concept of a civil service, commensurate rewards when their vigor and initiative yield net social benefits. The justification becomes strained, however, when, as is increasingly common, the governmental entity indemnifies its employees for damages and other expenses that they incur in defending against suits that complain about their performance of official duties. The indemnity is not always complete, and some governmental entities provide no indemnity, the federal government being a prominent example. But if the public employer itself, by refusing to indemnify its employees for torts committed in the course of public employment — or the legislature, by refusing to authorize indemnity, out of concern with the public fisc — manifests indifference to the disincentive effects of tort liability, it may be questioned whether the courts should worry about those effects and seek to offset them.

An alternative that is sometimes discussed would be to abolish public officer immunity but couple abolition with the imposition of respondeat superior liability on the public officer’s employer. Although rejected in Monell v. New York Dept. of Social Services, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978), it would be a step no bolder than the creation, and in recent years amplification, of public officer immunity itself. The officer would be liable but so would be his employer; as a practical matter the officer would be even farther off the hook than under existing law plus the practice of indemnity; but this end would be accomplished without denying a recovery to the plaintiff and thereby diluting the deterrent effect of the civil rights laws. Only as a theoretical matter would the employee be worse off because an employer held liable for an employee’s torts under the doctrine of respon-deat superior is entitled to indemnity from the employee. Practice is more important than theory. For helpful background see Kramer & Sykes, Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 S.Ct.Rev. 249.

Such far-reaching proposals, however, are for Congress or the Supreme Court, not for us. Our job is the humbler one of applying the immunity doctrine. We begin with the elementary proposition that it would be improper to deny immunity to a particular defendant on the ground that his conduct could be subsumed under some principle of liability in force when he acted. That approach would shrink immunity to trivial dimensions, since it is always possible to find a principle of comprehensive generality (such as “due process of law”). But the immunity doctrine as it has evolved goes much further than this to protect public officers. It is not enough, to justify denying immunity, that liability in a particular constellation of facts could have been, or even that it was, predicted from existing rules and decisions, even though law, as Holmes famously remarked, is a prediction of what courts will do faced with a particular set of facts. (Maybe it is more than that, but it is at least that.) Liability in that particular set must have been established at the time the defendant acted. It begins to seem as if to survive a motion to dismiss a suit on grounds of immunity the plaintiff must be able to point to a previous case that differs only trivially from his case. But this cannot be right. The easiest cases don’t even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.

Youngberg v. Romeo made clear, years before the defendants in this case placed K.H. with an abusing foster parent in 1986, that the Constitution requires the responsible state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically. We had anticipated this ruling in Nelson v. Heyne, 491 F.2d 852, 360 (7th Cir.1974). No case authoritative within this circuit, however, had held that the state had a comparable obligation to protect children from their own parents, and we now know that the obligation does not exist in constitutional law (DeShaney). Ours is the intermediate case in which the state places the child in a private foster home or sequence of such homes and fails to take steps to prevent the child from deteriorating physically or psychologically as a result of either mistreatment by one or more sets of foster parents or the frequency with which the child is moved about within the foster-home system or, as in this case, both.

The intermediate case is really several cases. In one, the supply of competent foster parents is adequate and the defendants have the time and the resources to find a competent foster parent but through indifference to the child’s welfare fail to do so, and the foster parent they do place him with — a foster parent whom they know to be dangerous and incompetent — indeed abuses the child. In another case, the supply of competent foster parents is, through no fault of the defendants, inadequate, and they take a well-meaning, calculated risk, which turns out badly, in placing the child with a foster parent of dubious competence or character. Other cases can be imagined but for present purposes the important point is that the first case we described is not truly an intermediate case; it is obviously and inescapably implicit in Young-berg. It should have been obvious from the day Youngberg was decided that a state could not avoid the responsibilities which that decision had placed on it merely by delegating custodial responsibility to irresponsible private persons, Meador v. Cabinet for Human Resources, 902 F.2d 474 (6th Cir.1990); Lipscomb v. Simmons, 884 F.2d 1242, 1247 (9th Cir.1989), vacated and rehearing en banc granted, 907 F.2d 114 (1990); Taylor v. Ledbetter, 818 F.2d 791, 797 (11th Cir.1987) (en banc); B.H. v. Johnson, 715 F.Supp. 1387, 1396 (N.D.Ill. 1989), any more than a state could avoid its duty not to impose cruel and unusual punishments by turning over the management of its prisons to private correctional entrepreneurs known to inflict cruel and unusual punishments. Spencer v. Lee, 864 F.2d 1376, 1378-79 (7th Cir.1989) (en banc). So the Second Circuit had held in a case materially identical to this case, decided five years before the conduct alleged to give rise to liability in this case. Doe v. New York City Dept. of Social Services, 649 F.2d 134, 141-42 (2d Cir.1981). We approved the holding of that case in DeShaney. 812 F.2d at 303.

We are not suggesting that foster care is a device by which states seek to shirk the responsibility they have assumed for the care of neglected and abused children. Many students of child development believe that foster care is better for children than institutionalization. It is true that, given the privacies of the home, it is more difficult for the state to prevent neglect and abuse by foster parents than by employees in a state institution; nor are foster parents as likely as biological or even adoptive parents to be deterred from sexual abuse by the incest taboo. But institutionalization (public or private) has its own problems. The picture is decidedly mixed, but it can hardly be thought — and it is not argued — that the Constitution requires a state to adopt one system rather than the other. That, however, is not the issue, either of substantive right or of immunity. The substantive issue is whether the state can escape the duties that Young-berg imposes on public child-care institutions by deliberately and without justification placing children with foster parents having a known propensity to neglect or abuse children. (We say “known,” meaning known to the defendants, because merely negligent, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), or even grossly negligent, Archie v. City of Racine, 847 F.2d 1211, 1220 (7th Cir.1988) (en banc), misconduct by state officers is not actionable under section 1983.) The immunity issue is whether this right can be said, on the basis of Young-berg and Doe, to have been clearly established in 1986. It can be. Youngberg made the basic duty of the state to children in state custody clear, and Doe added the obvious corollary that the duty could not be avoided by substituting private for public custodians. No case held the contrary and there was no reason to think that Doe would not be followed in this circuit.

We emphasize that the issue is not whether the state’s duty follows the child into the private home in which he is placed. We may assume, without having to decide, that it does not, that the foster parents, even if paid by the state, are not state agents for constitutional purposes. Certainly if the state decides to return a child whom it has taken custody of to the child’s natural parents, those parents do not become state agents. That would undo De-Shaney. A state court had awarded custody of the plaintiff in that case to his father when his parents were divorced; that did not make the father a state agent whose beating of his child imposed liability on the state. The only right in question in this ease is the right of a child in state custody not to be handed over by state officers to a foster parent or other custodian, private or public, whom the state knows or suspects to be a child abuser. Only in this case thus narrowly described can the foster parent be fairly considered an instrument of the state for child abuse.

In resisting this conclusion the defendants cite our decision in Doe v. Bobbitt, 881 F.2d 510 (7th Cir.1989), describing it as holding on similar facts that no such right as we have described had been clearly established in 1984. Bobbitt, however, distinguished the Second Circuit’s decision in Doe v. New York City Dept. of Social Services on the ground that there the child had been placed in a licensed foster home, rather than, as in Bobbitt, with a relative. This may seem to be cutting things too fine; our opinion in DeShaney states Doe - ’s holding more broadly. 812 F.2d at 303. But there is indeed a difference between placing a child with a member of her family and placing the child with a foster parent. It is notable in this connection that K.H. does not focus on the return to her parents as a placement for which she seeks damages. The focus is on her placement with a nonrelative foster parent in 1986. State employees who withhold a child from her family run the risk of being sued by the family for infringing their liberty of familial association, Lossman v. Pekarske, 707 F.2d 288 (7th Cir.1983), and we do not want to place child welfare workers on a razor’s edge — damned if they return the child to its family and damned if they retain custody of the child or place him in a foster home or institution. The aunt who was awarded custody of the plaintiff in Doe v. Bobbitt was not a foster parent, and this may explain why Bobbitt does not discuss Youngberg — and certainly Bobbitt does not say that Youngberg is applicable only to institutions. Bobbitt is distinguishable from the present case, in which the defense of immunity must be rejected — at least upon the present and incomplete record, and at least with respect to the exceedingly narrow formulation of the right to safe foster care that we have sketched.

Insofar as the complaint in this case can be read to go further and challenge a general practice of shuttling children among foster parents, the defendants are, we believe, immune from damages liability. This is not to deny the seriousness of such a challenge, but to affirm its novelty. It is true that even if all eight sets of parents among whom K.H. bounced had been loving and competent, a child who had so many parents in four years might well suffer psychiatric harm; but if all those parents had been loving and competent, the state would not have shuttled K.H. among them, unless some ghastly plague or war or other catastrophe had killed them off in rapid succession. The reasons for the shuttle are not entirely clear from the incomplete record but cannot be assumed to be frivolous. Apparently one foster parent did die; another left town; some of course were unfit (as were K.H.’s natural parents); others may simply have had short-term contracts with the Department. The wrong lies not in the shuttle itself — the shuttle might be necessary to protect the defendants from liability for placing or leaving a child with a foster parent having a known propensity for child abuse — but in a system of foster care that is unable to achieve a reasonable balance among safety, competence, and stability. Whether the federal courts can solve the underlying problem or even treat the symptoms effectively may be doubted. Although Young-berg establishes an intelligible standard of liability (conformity to minimal professional standards — much as in criminal cases in which the defendant argues that his counsel was ineffective), the underlying problem is not lack of professional competence but lack of resources, a problem of political will unlikely to be soluble by judicial means. Good foster parents are difficult to find, unless they are paid generously; good institutional care is expensive too. The needs of neglected, abused, and abandoned children compete with other demands, both public and private, for scarce resources. The allocation of the nation’s— even of a single state’s — resources is not a realistic assignment for the federal courts. Any standard of foster care that the courts declare in the name of the Constitution is likely to be a minimum one that will do little for the plight of the unwanted, abandoned, neglected, or abused child. But in any event the outer bounds of judicial competence to remedy deep-seated problems of public responsibility are to be explored not in damages suits but in equity actions — a route that K.H.’s guardian rather ostentatiously forwent in this case.

There was no clearly established right to a stable foster-home environment in 1986 (one circuit, indeed, had rejected the right: Drummond v. Fulton County Dept. of Family & Children’s Services, 563 F.2d 1200, 1208 (5th Cir.1977)); there is none today. There is, made explicit by this opinion but clearly implicit in Youngberg, a prima facie right not to be placed with a foster parent who the state’s caseworkers and supervisors know or suspect is likely to abuse or neglect the foster child. We say “prima facie” to underscore the limitations of this right. Youngberg implies that if, because of resource constraints, the defendants cannot find a safe placement for the child, they cannot be held liable in damages for a risky placement; they have no choice. 457 U.S. at 323, 102 S.Ct. at 2462. The officials responsible for the inadequacy of those resources might be liable in damages, provided they were sued in their personal rather than official capacities, Will v. Michigan Dept. of State Police, — U.S. -, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989); Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985), and that the plaintiff could sur.mount the immunity barrier; and there might of course be broader liability in an injunctive suit against those officials. But these are not issues in this case.

Even when resources are not severely limited, child welfare workers and their supervisors have a secure haven from liability when they exercise a bona fide professional judgment as to where to place children in their custody. Only if without justification based either on financial constraints or on considerations of professional judgment they place the child in hands they know to be dangerous or otherwise unfit do they expose themselves to liability in damages. This right we regard as clearly established, but the distinct right not to be shifted among foster homes “too frequently” remains more problematic and its existence and dimensions remain to be explored in proceedings suitable to the elaboration of constitutional rights. The Supreme Court believes that damages suits are not suitable for this purpose. The case must therefore be remanded to enable the district judge to determine how much of the complaint survives our analysis of immunity.

We reject the defendants’ alternative contention that they are entitled to absolute immunity from damages liability. So far as relevant to this case, absolute immunity has been confined to participants in judicial or judicial-type proceedings, such as judges, witnesses, and prosecutors. We may assume that a caseworker who initiates a proceeding to remove a child from its parents’ custody, or who executes an order made by a judge in a juvenile proceeding, enjoys absolute immunity. Babcock v. Tyler, 884 F.2d 497 (9th Cir.1989). This is not such a case — there was a juvenile court proceeding, but the defendants have not pointed to any court orders commanding them to place K.H. with particular foster parents — and the suggestion that caseworkers should enjoy absolute immunity merely because they are quite likely to be sued does not distinguish them from police officers or other public officers whose duties require them to interfere with people’s liberty or property and hence make them natural targets of civil rights suits.

The defendants present additional grounds for affirming the district court’s dismissal of the suit; the plaintiff counters by arguing that those grounds are not proper pendants to an appeal from a denial of immunity. We need not decide the interesting question of the scope of pendent appellate jurisdiction in immunity appeals. Dube v. State University of New York, 900 F.2d 587 (2d Cir.1990); see generally Asset Allocation & Management Co. v. Western Employers Ins. Co., 892 F.2d 566, 568-69 (7th Cir.1989). Such jurisdiction, like its more familiar district court counterpart, is discretionary, United States v. Gerena, 869 F.2d 82, 84 (2d Cir.1989), and discretion should be exercised to prevent this judge-made jurisdictional doctrine from swallowing the rule against piecemeal appeals. We therefore decline to exercise such discretion as we may have to consider the defendants’ nonimmunity grounds for dismissal at this early stage in the case.

Affirmed in Part, and in Part Remanded With Directions.