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Melissa R. Schwartz, As v. Margaret Booker

December 19, 2012



The opinion of the court was delivered by: Briscoe, Chief Judge.

United States Court of Appeals Tenth Circuit


Elisabeth A. Shumaker Clerk of Court

Before BRISCOE, Chief Judge, GORSUCH and MATHESON, Circuit Judges.

This is an interlocutory appeal from the denial of a motion to dismiss asserting qualified immunity. At issue is the scope of the special relationship doctrine and whether it would apply to the facts alleged to expose two human services employees to potential individual liability for the death of a seven-year-old child in foster care.*fn1

After their son, Chandler Grafner, died while in the foster care of Jon Phillips and Sarah Berry, Chandler's biological parents, Christina Grafner and Joshua Norris, and Melissa R. Schwartz, personal representative and administrator of Chandler's estate, filed suit against two county human services departments and two employees alleging, among other claims, a 42 U.S.C. § 1983 claim for violation of Chandler's substantive due process rights. The two employees, Defendants-Appellants Margaret Booker and Mary Peagler, have filed this interlocutory appeal from the district court's order denying their Rule 12(b)(6) motion to dismiss on the basis of qualified immunity. We affirm.


Factual Background*fn2

Over a period of almost three years, three Colorado county departments of human services were called upon to investigate possible abuse of Chandler as he transitioned between homes and caretakers. Sadly, none prevented his untimely death at the hands of his foster parents. This series of events began in October 2004, when Christina Grafner contacted Arapahoe County Department of Human Services (ACDHS) to express her fears that Jon Phillips, a man with whom she lived, would harm her son, Chandler Grafner. By September 2005, Christina and Chandler had moved in with Christina's mother, Sandra Younger. In December 2005, ACDHS created an open case regarding Chandler, which was ultimately referred to Jefferson County Department of Human Services (JCDHS) after

Chandler and Christina relocated to Jefferson County. Rather than confirm Christina's address in Jefferson County, JCDHS referred Chandler's case back to ACDHS. On the same date, ACDHS closed Chandler's case. On March 26, 2006, JCDHS opened a case regarding Chandler and removed Chandler from his mother's custody. By March 28, Chandler was in JCDHS's custody. In May 2006, JCDHS placed Chandler in Jon Phillips's home. JCDHS placed Chandler with Jon Phillips, who had no biological relationship to Chandler, in disregard of previous concerns of abuse voiced by Chandler's mother and without updating Chandler's case in the automated reporting system--a state-wide system used by Colorado state departments of human services to monitor cases. Thereafter, JCDHS added Sarah Berry, Jon Phillips's live-in girlfriend, as a special respondent in Chandler's foster care case. Reports of possible abuse began on January 17, 2007, when a kindergarten teacher's aide, Amy Domanski, noticed red marks on Chandler's neck, a bump on his head, and swelling and redness in his right ear. When the aide asked Chandler about these injuries, he responded, "Dad kept slapping my ear in the shower. He smacked me in the neck and kept putting me in the water." Aplts. App. at 5. When questioned further by the assistant principal,*fn3 Maureen Hogan, Chandler responded that "[m]y daddy put me in the shower and slapped me in the ear over and over. He was mad at me because my little brother made me steal candy." Id. at 6. The assistant principal subsequently reported her suspicions of child abuse to Denver County Department of Human Services (DCDHS), which then referred her to JCDHS. The following day, JCDHS referred the reported child abuse to DCDHS citing Jon Phillips's and Sarah Berry's status as Denver County residents as the basis for referral. JCDHS took no further action.

Two days after the reported abuse, on January 19, 2007, a DCDHS intake worker visited Chandler's school in an attempt to investigate Chandler's injuries, but was unable to do so due to Chandler's absence from school. The same day, Denver police attempted a welfare check at Chandler's home, but received no answer at the door. The following day, January 20, Denver police again conducted a welfare check at Chandler's home; this time, officers found Chandler and removed him from the home. Officers took Chandler to the Family Crisis Center to be evaluated by Denver Social Services. Upon questioning by the officers, Chandler initially informed them that his father had hit him, but later explained that he had fallen in the bathtub.

In response to questioning by the emergency-response caseworker at the crisis center, Chandler stated that he had to take showers when he misbehaved and that he had taken candy from the kitchen, so he had to take a shower. Chandler also told the emergency-response caseworker that he had to "eat nasty food" when he misbehaved. Id. at 7. In light of this discussion, the caseworker determined that Chandler's injuries were indicative of nonaccidental trauma. DCDHS concluded otherwise and ruled that abuse was unfounded after a home visit by a caseworker. DCDHS returned Chandler to Jon Phillips and Sarah Berry's home later that day. Two days later, Denver police and DCDHS questioned Jon Phillips and Sarah Berry about the suspected abuse. In response to this questioning, both denied abuse and reported that the school official's reports were retaliation. After returning to school, Chandler informed his teacher that his parents were mad at her because she was interrogating him and that he had just fallen in the shower. When asked if his parents told him to say that he had fallen, Chandler responded, "Yes, they did." Id. at 8. The day after this exchange, DCDHS caseworkers went to the school to interview school personnel. During this investigation, DCDHS caseworkers discovered that Chandler had been sent to school in December wearing only one shoe and no coat. Throughout this period, Margaret Booker served as the head of Investigation of Child Maltreatment and Intake Services at DCDHS and was responsible for the investigation of Chandler's case. Mary Peagler was a case record supervisor at DCDHS and was also responsible for investigating Chandler's case. On February 7, 2007, Peagler closed Chandler's case regarding the January allegations of abuse.

Suspicions of abuse continued. Two months after the January 2007 investigation, Chandler told his teacher aide to "stop interrogating me. I get in so much trouble." Id. And, on April 17, 2007, Chandler's school informed DCDHS that Chandler had been withdrawn from school since March 9. Chandler's school also informed DCDHS that school staff made several unsuccessful attempts to reach Chandler's home during this period and that when they finally reached Jon Phillips, he explained that Chandler would be transferring schools due to "family problems." Id. Overall, the personnel at Chandler's school filed at least four written complaints to DCDHS regarding Chandler's continued absence and suspected neglect and abuse. Despite the school's concerns, Booker and Peagler did not investigate the April referral and ultimately closed the case, contrary to the Colorado Department of Human Services' procedure requiring a within 24-hours response to suspicions of child ...

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