SUPREME COURT OF ARIZONA

En Banc

CHERYL WEATHERFORD, as guardian ) Arizona Supreme Court

ad litem for MICHAEL L., a minor, ) No. CV-02-0369-PR

)

) Court of Appeals

Plaintiff-Appellant, ) Division One

) No. 1 CA-CV 01-0289

v. ) 1 CA-CV 01-0496

) (Consolidated)

STATE OF ARIZONA; CLAUDETTE )

WASHINGTON, individually and in ) Maricopa County

her capacity as an employee of ) Superior Court

the State of Arizona; SHIRLEY ) Nos. CV 98-021291

LEWIS, individually and in her ) CV 98-021291-2

capacity as an employee of the )

State of Arizona; PARTHENIA )

GIBSON, individually and in her )

capacity as an employee of the )

State of Arizona, )

)

Defendants-Appellees. )

__________________________________) OPINION

)

MICHAEL L., a minor, by and )

through his guardian CHERYL )

WEATHERFORD, )

)

Plaintiff-Appellee, )

)

v. )

)

STATE OF ARIZONA, )

)

Defendant-Appellant. )

)

__________________________________)

Appeal from Superior Court of Maricopa County

Nos. CV 98-021291 and CV 98-021291-2

The Honorable Edward O. Burke

The Honorable Johnathan H. Schwartz

AFFIRMED IN PART; REVERSED IN PART; REMANDED

Opinion of Court of Appeals Division One

203 Ariz. 313, 54 P.3d 342 (App. 2002)

VACATED IN PART; APPROVED IN PART
 

2

Laurence M. Berlin Tucson

Attorney for Cheryl Weatherford

Terry Goddard, Attorney General Phoenix

by Paula S. Bickett, Chief Counsel

Civil Appeals Section

Assistant Attorney General

Attorneys for Parthenia Gibson,

Claudette Washington, Shirley Lewis, and

the State of Arizona

Martin, Hart & Fullerton Mesa

by James R. Hart, II

Attorneys for Parthenia Gibson

Wilenchik & Bartness, PC Phoenix

by Dennis I. Wilenchik

Attorneys for Claudette Washington and Shirley Lewis

M c G R E G O R, Vice Chief Justice

¶1 This case requires us to determine whether and under

what circumstances a child placed in a foster care facility may

bring an action based upon 42 U.S.C. § 1983 (2003) against

individual state workers for violating the foster child’s

substantive due process rights under the United States

Constitution. We exercise jurisdiction pursuant to Article VI,

Section 5.3 of the Arizona Constitution, Arizona Revised

Statutes (A.R.S.) § 12-120.24 (2003), and Rule 23 of the Arizona

Rules of Civil Appellate Procedure.

I.

A.

¶2 This case arises out of the alleged sexual assault of

twelve-year-old Michael L. by two minors held at the Alice

Peterson Shelter (the Shelter), a foster care facility. The
 

3

assaults reportedly occurred over the course of four months in

1996 and 1997, after Claudette Washington, Michael’s intake

social worker, had arranged for Michael’s placement at the

Shelter following his removal from his home because of

unsanitary conditions. In mid-December 1996, Parthenia Gibson

became Michael’s social worker. Shirley Lewis supervised both

Washington and Gibson throughout Michael’s placement at the

Shelter.

¶3 Cheryl Weatherford, acting as Michael’s guardian ad

litem, sued the State of Arizona, Washington, Gibson, and Lewis

for negligence and for depriving Michael of his constitutional

rights, in violation of § 1983. During summary judgment

proceedings, Washington, Gibson, and Lewis did not dispute that,

acting in their capacity as social workers, they failed to

comply with various agency requirements, including failures to

timely complete an initial case plan, to assess Michael’s needs

and his compatibility with other Shelter residents, and to visit

the Shelter within twenty-four hours of Michael’s placement. In

addition, they did not dispute that they made only two of the

sixteen required weekly supervised visits to the Shelter between

November 14, 1996, and the disclosure of the alleged sexual

abuse on March 4, 1997.

¶4 The superior court nonetheless granted summary

judgment in favor of each of the defendants based upon qualified

immunity, 42 U.S.C. § 1983, and protective services immunity,
 

4

A.R.S. § 8-805.A (2001). The court of appeals reversed the

order dismissing Weatherford’s negligence and § 1983 claims.

Weatherford v. State, 203 Ariz. 313, 320 ¶ 31, 54 P.3d 342, 349

(App. 2002). The court held that a foster child’s right to

reasonable safety while in foster care was clearly established

in 1996 and that a social worker’s failure to exercise

professional judgment in the placement and monitoring of a child

in state foster care may subject the social worker to individual

liability under § 1983. Id. at 319-20 ¶¶ 29-30, 54 P.3d at 348-

49.1

B.

¶5 Section 1983 imposes liability on one who, under color

of law, deprives a person of any “rights, privileges, or

immunities secured by the Constitution and laws.” 42 U.S.C. §

1983. Government officials performing discretionary functions,

however, receive qualified immunity from § 1983 actions unless

their conduct violated a clearly established constitutional or

federal statutory right of which a reasonable person would have

known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

¶6 To overcome the social workers’ qualified immunity

defense, Weatherford bears the initial burden of proving a

violation of a clearly established constitutional or statutory

 1 The court of appeals decided a number of other issues

affecting defendants’ liability. We granted review only of the

question pertaining to § 1983 liability.
 

5

right. A right is “clearly established” when “[t]he contours of

the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). Establishing

liability requires more than alleging a “violation of extremely

abstract rights.” Id. at 639. An official's specific action,

however, need not previously have been held unlawful. Id. at

640. Rather, the unlawfulness must be apparent in light of

preexisting law. Id. If Weatherford is able to show a

violation of Michael’s clearly established constitutional right,

then the social workers must demonstrate that their conduct was

reasonable under the applicable standard of care. See, e.g.,

Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).

¶7 At oral argument, the social workers conceded that a

foster child’s substantive due process right to reasonable

safety while in foster care was clearly established in 1996.2 As

 2 In DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189 (1989), the Supreme Court held that a

state does not have a constitutional duty to protect a child

from an abusive parent even if the state has received reports of

and had investigated the possibility of abuse. In a footnote,

however, the Court stated:

Had the State by the affirmative exercise of its power

removed Joshua from free society and placed him in a

foster home operated by its agents, we might have a

situation sufficiently analogous to incarceration or

institutionalization to give rise to an affirmative

duty to protect. Indeed, several Courts of Appeals

have held, by analogy to Estelle and Youngberg, that

the State may be held liable under the Due Process
 

6

a result, the issue before this court is whether the social

workers’ conduct, viewed in the light most favorable to

Weatherford, could subject them to individual liability under §

1983. Determining the appropriate standard by which to measure

the challenged conduct presents a question of substantive

federal law. Martinez v. California, 444 U.S. 277, 284 n.8

(1980).

C.

¶8 In interpreting substantive federal law, state courts

look first to decisions of the United States Supreme Court.

Although only a decision of the Supreme Court binds a state

court on a substantive federal issue, a number of state supreme

courts have elected to follow, as far as reasonably possible,

their federal circuits’ decisions on questions of substantive

federal law. See Littlefield v. Dep’t of Human Servs., 480 A.2d

731, 737 (Me. 1984); Phillips v. Williams, 608 P.2d 1131, 1135

(Okla. 1980); York v. Gaasland Co., 250 P.2d 967, 971 (Wash.

1952); see also Busch v. Graphic Color Corp., 662 N.E.2d 397,

____________________________ 

Clause for failing to protect children in foster homes

from mistreatment at the hands of their foster

parents.

Id. at 201 n.9 (emphasis added). Neither the Supreme Court nor

the Ninth Circuit Court of Appeals has addressed whether and to

what extent the state owes a duty to a foster child held in a

state foster care facility. Because the State concedes that

Michael’s right to reasonable safety existed, we address only

the appropriate standard of conduct.
 

7

403 (Ill. 1996) (“[D]ecisions of the Federal courts interpreting

a Federal act . . . are controlling upon Illinois courts.”). In

Littlefield, for example, the Maine Supreme Court considered the

proper construction of eligibility requirements under the

federal Social Security Act. Noting that the First Circuit had

recently decided the exact issue before the court in Sweeney v.

Murray, 732 F.2d 1022 (1st Cir. 1984), the Maine court chose to

follow its circuit’s precedent. The court stated:

[E]ven though only a decision of the Supreme Court of

the United States is the supreme law of the land on a

federal issue, nevertheless, in the interests of

existing harmonious federal-state relationships, it is

a wise policy that a state court of last resort

accept, so far as reasonably possible, a decision of

its federal circuit court on such a federal question.

Littlefield, 480 A.2d at 737; see also Commonwealth v. Negri,

213 A.2d 670, 672 (Pa. 1965) (“[T]he clear indication for this

Court is to accept and follow the decision of the Third Circuit

on this matter until some further word is spoken by the Supreme

Court of the United States.”).

¶9 We agree that, although state courts are not bound by

decisions of federal circuit courts, we may choose to follow

substantive decisions of the Ninth Circuit Court of Appeals,

recognizing that doing so furthers federal-state court

relationships. In addition, consistent decisions among federal

and state courts further predictability and stability of the

law. Therefore, if the Ninth Circuit has announced a clear rule

on an issue of substantive federal statutory law and if the rule
 

8

appears just, we will look first to the Ninth Circuit rule in

interpreting substantive federal statutory law.

II.

¶10 The gravamen of Weatherford’s § 1983 complaint is the

claim that the social workers violated Michael’s substantive due

process rights. In determining the appropriate standard for

imposing § 1983 liability, we first acknowledge that standards

of state tort law do not apply; rather, the question is whether

defendants violated Michael’s federal constitutional rights.

“Our Constitution deals with the large concerns of the governors

and the governed, but it does not purport to supplant

traditional tort law in laying down rules of conduct to regulate

liability for injuries that attend living together in society.”

Daniels v. Williams, 474 U.S. 327, 332 (1986).

¶11 The touchstone of substantive due process is

protection against government power arbitrarily and oppressively

exercised. Id. at 331-32; see also County of Sacramento v.

Lewis, 523 U.S. 833, 845-46 (1998). Thus, the Due Process

Clause is “intended to prevent government officials from abusing

their power or employing it as an instrument of oppression.”

Sacramento, 523 U.S. at 846 (citations and quotations omitted).

When, as here, a plaintiff alleges he incurred damage from

abusive executive conduct, the conduct must be said to be

“arbitrary in the constitutional sense” to implicate the Due
 

9

Process Clause.3 Id. (quoting Collins v. City of Harker Heights,

503 U.S. 115, 129 (1992)).

¶12 Neither the Supreme Court nor the Ninth Circuit has

clearly defined when executive conduct becomes “arbitrary in the

constitutional sense” so as to impose individual § 1983

liability in the foster care context. We gain guidance,

however, from standards adopted by the Supreme Court and Ninth

Circuit in analogous situations. See, e.g., Daniels, 474 U.S.

327; Youngberg v. Romeo, 457 U.S. 307 (1982); Estelle v. Gamble,

429 U.S. 97 (1976); L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996)

(Grubbs II); Estate of Connors v. O’Connor, 846 F.2d 1205 (9th

Cir. 1988) (O’Connor). As our discussion below reveals, § 1983

standards have developed, first expanding and then contracting,

over time.

 3

 While acknowledging that “it is a constitution we are

expounding,” M'Culloch v. Maryland, 17 U.S. 316, 407 (1819), we

also recognize that the people of Arizona may adopt a system of

their choosing for determining when state officials may be held

liable for foster care placement decisions. “Lest the

Constitution be demoted to . . . a font of tort law,” it is the

prerogative of the self-governing people of the State of Arizona

to make the legislative choice of when tort liability, except

“at the ends of the tort law’s spectrum of culpability,” may

attach to social worker placement and monitoring decisions.

Sacramento, 523 U.S. at 847 n.8, 848; see also Clouse ex rel.

Clouse v. State, 199 Ariz. 196, 203 ¶ 24, 16 P.3d 757,

764 (2001) (“We conclude that the immunity clause [of the

Arizona Constitution], by authorizing the legislature to direct

by law the manner in which suits may be brought against the

state, confers upon the legislature a power to control actions

against the state that it does not possess with regard to

actions against or between private parties.”).
 

10

¶13 Two relatively early Supreme Court decisions

established general parameters for imposing § 1983 liability

upon executive branch officials. Youngberg, 457 U.S. 307;

Estelle, 429 U.S. 97. In Estelle, the Supreme Court examined

the appropriate standard for determining when a prison

official’s failure to provide adequate medical care to a prison

inmate could subject the official to § 1983 liability. 429 U.S.

at 101-02. The Estelle Court began by noting that the Eighth

Amendment’s right to be free from cruel and unusual punishment

embodies “broad and idealistic concepts of dignity, civilized

standards, humanity, and decency.” Id. at 102 (quoting Jackson

v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). Based on this

principle, the Court reasoned:

An inmate must rely on prison authorities to treat his

medical needs; if the authorities fail to do so, those

needs will not be met. In the worst cases, such a

failure may actually produce physical “torture or a

lingering death” . . . . In less serious cases,

denial of medical care may result in pain and

suffering which no one suggests would serve any

penological purpose.

Id. at 103 (citations omitted). The Court held that the State’s

deliberate indifference to the serious medical needs of a

prisoner violates the Eighth Amendment and provides the basis

for an action under § 1983. Id. at 104.

¶14 The Supreme Court extended this analysis beyond the

prison setting in Youngberg. In that case, the Court considered

the appropriate standard for determining whether a patient
 

11

involuntarily committed to a state mental institution could

bring suit against institution officials for the alleged breach

of the patient’s substantive due process right to reasonable

safety and to freedom from unreasonable restraints. Youngberg,

457 U.S. at 321. The Court explained: “If it is cruel and

unusual punishment to hold convicted criminals in unsafe

conditions, it must be unconstitutional to confine the

involuntarily committed—who may not be punished at all—in unsafe

conditions.” Id. at 315-16.

¶15 Based on this reasoning, the Youngberg Court held that

§ 1983 liability may be imposed for executive decisions that are

“such a substantial departure from accepted professional

judgment, practice, or standards as to demonstrate that the

person responsible actually did not base the decision on such a

judgment.” Id. at 323. The Court noted, however, that “the

decision, if made by a professional, is presumptively valid.”

Id. In addition, the “professional will not be liable if he was

unable to satisfy his normal professional standards because of

budgetary constraints; in such a case good-faith immunity would

bar liability.” Id. This standard, the Court reasoned, strikes

the appropriate balance between an individual’s constitutionally

protected liberty interests and legitimate state interests “in

light of the constraints under which most state institutions

necessarily operate.” Id. at 324.
 

12

¶16 After Youngberg and Estelle, the Supreme Court decided

two companion cases concerning the degree of official misconduct

necessary to give rise to liability under § 1983 for a violation

of a prison inmate’s due process rights. See Daniels, 474 U.S.

327; Davidson v. Cannon, 474 U.S. 344 (1986). In those

decisions, the Court emphasized the distinction between the type

of conduct that gives rise to a negligence action and the type

of conduct that gives rise to a § 1983 action.

¶17 In Daniels, a prison inmate brought a § 1983 claim

alleging a prison official deprived him of his due process

rights by negligently placing a pillow on a prison stairway,

causing the inmate to slip and injure his back and ankle. 474

U.S. at 328. The Court, seeking to define “when tortious

conduct by state officials rises to the level of a

constitutional tort,” held that “the Due Process Clause is

simply not implicated by a negligent act of an official causing

unintended loss of or injury to life, liberty, or property.”

Id. at 328-29; see also Davidson, 474 U.S. at 348 (observing

that due process protections “are just not triggered by lack of

due care by prison officials”). The Court reasoned that the Due

Process Clause was “intended to secure the individual from the

arbitrary exercise of the powers of government,” Daniels, 474

U.S. at 331 (quoting Hurtado v. California, 110 U.S. 516, 527

(1884)), and “to prevent governmental power from being ‘used for

purposes of oppression,’” id. (quoting Murray’s Lessee v.
 

13

Hoboken Land & Improvement Co., 59 U.S. 272, 277 (1855)).

Negligent conduct, the Court concluded, is “quite remote” from

these concerns. Id. at 332. “To hold that injury caused by

such conduct is a deprivation within the meaning of the

Fourteenth Amendment would trivialize the centuries-old

principle of due process of law.” Id. The Daniels Court,

however, reserved the question of “whether something less than

intentional conduct, such as recklessness or gross negligence,

is enough to trigger the protections of the Due Process Clause.”

Id. at 334 n.3.

¶18 Relying upon this guidance from the Supreme Court, the

Ninth Circuit initially held that certain types of gross

negligence can implicate the Due Process Clause. See, e.g.,

Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir. 1995)

(“conscious indifference amounting to gross negligence”);

Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (same);

O’Connor, 846 F.2d at 1208 (same); see also Fargo v. City of San

Juan Bautista, 857 F.2d 638, 641 (9th Cir. 1988) (“If [the

police officer’s] conduct constituted gross negligence or

recklessness, as opposed to mere negligence, then it constitutes

a deprivation of a liberty interest... under the due process

clause.”); Wood v. Ostrander, 851 F.2d 1212, 1215 (9th Cir.

1988) (holding that due process claim was not barred under §

1983 because the alleged police conduct “may be more than mere

negligence”).
 

14

¶19 In O’Connor, the Ninth Circuit considered the

implications of Daniels and Davidson for determining whether a

state actor may be held liable, under the professional judgment

standard, for violating the rights of an involuntarily committed

mental patient. The O’Connor court concluded that Daniels and

Davidson did not affect the Youngberg test:

Under Youngberg’s balancing test, the risk of harm and

the burden on the state are weighed in examining

discretionary management choices for reasonableness.

Liability may be imposed on a professional state

officer only when his or her decision is so

objectively unreasonable as to demonstrate that he or

she actually did not base the challenged decision upon

professional judgment. We believe that this standard

is equivalent to that required in ordinary tort cases

for a finding of conscious indifference amounting to

gross negligence. Certainly, the Youngberg standard

is far more stringent than that required for a finding

of negligence, which may be demonstrated by a

professional's mere failure to exercise the level of

care expected of other professionals in the same

field. We therefore hold that the inquiry relevant

under Youngberg has not been affected by the Court’s

intervening decisions in Daniels and Davidson.

O’Connor, 846 F.2d at 1208 (emphasis added).

¶20 Similarly, the Ninth Circuit held that police officer

conduct amounting to gross negligence or recklessness4 would

 4 Defining terms such as negligence, gross negligence,

and recklessness is, at best, inexact. As between negligence

and gross negligence, negligence suggests “a failure to measure

up to the conduct of a reasonable person.” Daniels, 474 U.S. at

332. Gross negligence generally signifies “more than ordinary

inadvertence or inattention, but less perhaps than conscious

indifference to the consequences.” Fargo, 857 F.2d at 641

(quoting W. Keeton et al., Prosser and Keeton on the Law of

Torts § 34, at 212 (5th ed. 1984)). Under this definition of

gross negligence, “conscious indifference amounting to gross
 

15

constitute a violation of the constitutional right to be free

from excessive force and would subject an officer to § 1983

liability. Fargo, 857 F.2d at 641. Fargo involved a claim

brought by an arrestee whom a police officer accidentally shot

while placing him in handcuffs. The officer admitted that he

acted contrary to his police training, but claimed that he was

entitled to summary judgment because the shooting was accidental

and, at most, merely negligent. Id. at 639. Rejecting the

officer’s argument, the court determined that the officer’s

conduct may have “constituted gross negligence or recklessness.”

Id. at 641. The Ninth Circuit held, “We cannot conclude as a

matter of law that [the officer’s] conduct, contrary as it was

to proper police procedures, constituted mere inadvertence, and

not a greater want of care.” Id. at 642.

¶21 Recent Ninth Circuit case law, however, rejects the

Fargo standard and raises a serious question about the continued

validity of the professional judgment standard as applied in

O’Connor and similar decisions. See Grubbs II, 92 F.3d 894.

Grubbs II involved a § 1983 claim brought by a registered nurse

at a medium security custodial institution against her

supervisors after she was attacked by an inmate. The Grubbs II

____________________________ 

negligence” falls closer to a recklessness standard, which

usually involves a conscious disregard of a risk, than mere

gross negligence. See id. at 642 n.7 (noting that recklessness

can, however, be inferred from the facts and circumstances)

(citation omitted).
 

16

court examined prior circuit decisions to decide whether a state

official could be held liable under § 1983 for gross negligence.

Id. at 896. The court concluded:

[I]n order to establish Section 1983 liability in an

action against a state official for an injury...

the plaintiff must show that the state official

participated in creating a dangerous condition, and

acted with deliberate indifference to the known or

obvious danger in subjecting the plaintiff to it.

. . . Deliberate indifference to a known, or so

obvious as to imply knowledge of, danger, by a

supervisor who participated in creating the danger, is

enough. Less is not enough.

Id. at 900 (emphasis added); see also McGrath v. Scott, 250

F.Supp. 2d 1218, 1226 (D. Ariz. 2003) (finding that the

deliberately indifferent standard adopted in Grubbs II “applies

generally to all supervisory liability claims under § 1983”).

¶22 In redefining and applying the deliberate indifference

standard, the Grubbs II court also examined the continued

validity of the O’Connor professional judgment standard. The

court reasoned that Neely, in which the court had held that

“conscious indifference amounting to gross negligence” was

enough to impose liability under the professional judgment

standard, Neely, 50 F.3d at 1507, either was incorrect or must

be limited to its facts. The court stated:

While Neely can be distinguished on its facts from the

present case, its language . . . is either incorrect

to the extent that it approves the gross negligence

standard, or it must be limited to the claims of

inmate plaintiffs injured because of a miscarriage of

the “professional judgment of a government hospital

official” in the context of a captive plaintiff.
 

17

Grubbs II, 92 F.3d at 897.

¶23 Two years after the Ninth Circuit’s Grubbs II

decision, the Supreme Court reviewed another Ninth Circuit

decision in an analogous area of § 1983 liability. Sacramento,

523 U.S. 833. In Lewis v. Sacramento County, 98 F.3d 434 (9th

Cir. 1996), the circuit court had concluded that a police

officer’s deliberate indifference to, or reckless disregard for,

a person’s right to life and security during a high speed chase

could establish liability under § 1983. In reaching its

conclusion, the court noted that “[d]eliberate indifference is

the greatest degree of misconduct we have previously required a

plaintiff to prove to sustain a § 1983 action.” Id. at 441.

¶24 Reversing the Ninth Circuit, the Supreme Court

emphasized the relatively narrow scope of constitutionally-based

§ 1983 actions. The Court noted that the conduct of the officer

fell within the middle range of culpability, somewhere between

negligence, which is “categorically beneath the threshold of

constitutional due process,” and “conduct intended to injure in

some way unjustifiable by any government interest.” Sacramento,

523 U.S. at 849. The Court held that, with regard to high speed

police chases, deliberate indifference, rather than being the

highest degree of misconduct required, is insufficient to

establish liability. The Court concluded instead that “high

speed chases with no intent to harm suspects . . . do not give
 

18

rise to liability under the Fourteenth Amendment, redressible by

an action under § 1983.” Id. at 854.

¶25 The Court emphasized again that “only the most

egregious official conduct can be said to be ‘arbitrary in the

constitutional sense,’” id. at 846 (quoting Collins, 503 U.S. at

129), and that, as it had repeatedly stated, “the Due Process

Clause was intended to prevent government officials ‘from

abusing [their] power, or employing it as an instrument of

oppression,’” id. (quoting Collins, 503 U.S. at 126 (in turn

quoting DeShaney v. Winnebago County Dep’t of Soc. Servs., 489

U.S. 189, 196 (1989) (in turn quoting Davidson, 474 U.S. at

348))). To meet that burden, the Court stated, “for half a

century now we have spoken of the cognizable level of executive

abuse of power as that which shocks the conscience.” Id. Under

the circumstances of a high speed chase, only “a purpose to

cause harm unrelated to the legitimate object of arrest will

satisfy the element of arbitrary conduct shocking to the

conscience, necessary for a due process violation.” Id. at 836.

¶26 The Court also recognized, however, that due process

guarantees cannot be mechanically applied. Id. at 850.

“Deliberate indifference that shocks in one environment may not

be so patently egregious in another, and our concern with

preserving the constitutional proportions of substantive due

process demands an exact analysis of circumstances before any

abuse of power is condemned as conscience shocking.” Id. The
 

19

Court distinguished between imposing liability for deliberate

indifference in a high speed chase situation and imposing

liability for deliberate indifference to inmate welfare. The

primary distinction rests upon the fact that, in a high speed

chase, the officer must act decisively and show restraint at the

same moment. Under such circumstances, little time exists for

deliberation and, as use of the “term ‘deliberate indifference’

implies, the standard is sensibly employed only when actual

deliberation is practical.” Id. at 851 (citing Whitley v.

Albers, 475 U.S. 312, 320 (1986)). In the custodial situation

considered in Estelle, in contrast to the high speed chase

situation, prison officials had time for reflection. “When such

extended opportunities to do better are teamed with protracted

failure even to care, indifference is truly shocking.” Id. at

853. Similarly, the Court noted, in a situation such as

Youngberg, “[t]he combination of a patient’s involuntary

commitment and his total dependence on his custodians obliges

the government to take thought and make reasonable provision for

the patient’s welfare.” Id. at 852 n.12.

¶27 Both Grubbs II and Sacramento held that, as to the

situations considered, nothing less than deliberate indifference

to a known or obvious danger on the part of a public official

involves behavior that rises to a constitutionally conscienceshocking level. Neither decision, of course, considered the

behavior sufficient to rise to such a level when the state
 

20

places or monitors a foster child. We consider, then, whether

deliberate indifference or some other level of behavior gives

rise to liability in the foster care context.

III.

¶28 The Grubbs II standard, applied to the foster care

context, would require that state workers responsible for

placing and supervising a child in foster care could not be held

liable under § 1983 unless they exhibited deliberate

indifference to a known or obvious danger to the child.

Weatherford argues that applying that standard will encourage

those responsible for the well-being of foster children to

deliberately overlook information that could place them on

notice of dangerous conditions. Officials should not be less

likely to incur liability, she argues, if they fail to consider

available information. We agree that a child’s right to

reasonable safety while in foster care demands more from state

workers than attention to known or obvious dangers. We hold,

therefore, that a foster child can establish § 1983 liability

against a state official by showing that the official, without

justification, acted with deliberate indifference by placing a

child in foster care or by maintaining a placement when the

official knew that the placement exposed the child to danger or

would have known of the danger but for the official’s deliberate

indifference. If a state worker, with time to consider the

placement for a foster child, acts with such deliberate
 

21

indifference as to ignore information indicating that the

placement will result in danger to the child or refuses to

obtain information that, if considered, would reveal a danger to

the child, the official’s indifference is sufficiently egregious

to justify imposing liability under § 1983.

¶29 This standard reflects the Supreme Court’s admonition

that executive behavior violates § 1983 only if it involves an

element of using the state’s power in an oppressive manner.

Daniels, 474 U.S. at 331-32. An official faces liability not

for placing a child in foster care, but for placing the child in

a dangerous foster care situation of which the official knew or

would have known but for the official’s deliberate indifference.

¶30 The standard also incorporates the Ninth Circuit’s

admonition that anything less than deliberate indifference is

not sufficient to establish § 1983 liability. The standard

reflects the principle, however, that the state, once it

undertakes to make a person dependent upon its care, also

undertakes an affirmative duty to assume responsibility for that

person’s safety and general well-being. DeShaney, 489 U.S. at

200. Additionally, the standard takes into account the

difficult decisions imposed upon state workers in making and

maintaining foster child placements. In deciding whether the

worker made a particular decision “without justification,” a

court must consider the totality of the circumstances: A social

worker cannot be held liable if safe placement cannot be found
 

22

or if financial constraints prevent any choice other than that

made. Youngberg, 457 U.S. at 323; K.H. ex rel. Murphy v.

Morgan, 914 F.2d 846, 853-54 (7th Cir. 1990). Whether an

initial placement decision reaches a “constitutionally shocking”

level may involve different factual considerations than whether

a decision to continue a placement rises to this level.

¶31 The standard we articulate today is also similar to

the standard of conduct required by other circuit courts of

appeals, whether denominated a “deliberate indifference” or

“professional judgment” standard, in the foster care context.

See Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 894

(10th Cir. 1992); Doe v. N.Y. Dep’t of Soc. Servs., 649 F.2d

134, 145 (2d Cir. 1981); see also Camp v. Gregory, 67 F.3d 1286,

1293 (7th Cir. 1995) (“[P]ublic officials may be held liable for

damages when they place a child in a foster home knowing or

having reason to know that the child is likely to suffer harm

there.”); Taylor v. Ledbettter, 818 F.2d 791, 796 (11th Cir.

1987) (“A child abused while in foster care, in order to

successfully recover from state officials in a section 1983

action, will be faced with the difficult problem of showing

actual knowledge of abuse or that agency personnel deliberately

failed to learn what was occurring in the foster home.”).

¶32 In Yvonne L., for example, the plaintiffs asserted the

right “not to be placed in a foster care environment involving a

known or reasonably suspected risk of harm by a third party.”
 

23

959 F.2d at 891. The Tenth Circuit adopted a standard it

labeled the “professional judgment” standard and held that this

standard, “while it does not require actual knowledge the

children will be harmed, [] implies abdication of the duty to

act professionally in making the placements.” Id. at 894.

Similarly, in Doe, the Second Circuit, purporting to adopt the

“deliberate indifference” standard, held that child placement

agency officials may be held liable under § 1983 if they

“exhibited deliberate indifference to a known injury, a known

risk, or a specific duty, and their failure to perform the duty

or act to ameliorate the risk or injury was a proximate cause of

plaintiff’s deprivation of rights under the Constitution.” Doe,

649 F.2d at 145.

¶33 As Doe and Yvonne L. demonstrate, when applied to the

unique facts of the foster care context, not much difference

exists between the “deliberate indifference” and “professional

judgment” standards. Yvonne L., 959 F.2d at 894 (“To the extent

there is a difference in the standards, we agree with the

Seventh Circuit that the Youngberg standard applies.”). As a

result, we do not find it particularly helpful to label this

standard of conduct “deliberate indifference” or “professional

judgment.”

¶34 Applying this standard to the facts of this case, we

reverse the trial court’s grant of summary judgment. On remand,

the court must consider whether, under the standard articulated
 

24

today, undisputed material facts permit the court to conclude,

as a matter of law, that defendant social workers acted with

deliberate indifference sufficient to impose responsibility

either for the decision to place Michael in the Shelter or for

the decision to continue the placement.

IV.

¶35 For the reasons described above, we vacate that part

of the court of appeals’ opinion set out in paragraphs twentytwo through thirty and approve the remainder of the opinion,

reverse the trial court’s grant of summary judgment to these

defendants with regard to the § 1983 claim, and remand for

further proceedings consistent with this opinion.

____________________________________

Ruth V. McGregor, Vice Chief Justice

CONCURRING:

__________________________________

Charles E. Jones, Chief Justice

__________________________________

Rebecca White Berch, Justice

__________________________________

Michael D. Ryan, Justice

__________________________________

Andrew D. Hurwitz, Justice