4th Circuit overturns decision to dismiss lawsuit against adoption agency

Where the state of Ohio terminated the parental rights of then four-year-old plaintiff’s biological parents, the state took on an affirmative constitutional duty not to make a foster placement that was deliberately indifferent to plaintiff’s right to personal safety and security, the U.S. Court of Appeals for the 4th Circuit ruled.

When the state contracted with the defendant-private adoption agency to place plaintiff, the state’s delegation of an affirmative constitutional duty may give rise to liability for the agency under 42 U.S.C. § 1983.

The appeals court vacated a South Carolina U.S. District Court’s grant of the adoption agency’s motion to dismiss.

From the appeals court ruling:

In 2010, plaintiff’s adoptive mother, Yulanda Mitchell, was listed on South Carolina’s Registry of Abuse and Neglect for physically abusing a foster child. Nevertheless, the adoption agency placed four foster children with the Mitchells between 2010 and 2015, when the adoption agency made a pre-adoptive placement of plaintiff with the Mitchells.

Those four foster children were repeatedly beaten, starved and abused in other ways. School and medical officials made many reports of clear signs of abuse and malnutrition to the South Carolina Department of Social Services. But the adoption agency still chose to place plaintiff with the Mitchells.

Like the other children, plaintiff was beaten and starved by the Mitchells. A few weeks after plaintiff’s adoption was finalized, South Carolina officials placed the Mitchells’ foster and adoptive children in emergency protective custody. The Mitchells ultimately pled guilty to multiple counts of unlawful conduct toward a child.

A private party may, under certain circumstances, be deemed a state actor when the government has outsourced one of its constitutional obligations to a private entity.

Here, plaintiff alleges that the State of Ohio terminated her birth parents’ rights and placed her in the custody of state officials. She also alleges that until her adoption was finalized, Ohio retained legal custody and control over her autonomy. “[W]hen a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child’s liberty, triggering the protections of the Due Process Clause.” Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163 (4th Cir. 2010). “Such responsibility, in turn, includes a duty not to make a foster care placement that is deliberately indifferent to the child’s right to personal safety and security.”

Under West v. Atkins, 487 U.S. 42 (1988), the state’s delegation of an affirmative constitutional duty to the adoption agency’s employees may give rise to liability under § 1983. The district court here did not consider whether Doe imposed such an affirmative constitutional duty on the state with respect to plaintiff’s placement with the Mitchells. Nor did it consider whether the delegation of any such duty to private adoption agency employees might suffice to establish § 1983 liability under West.

We vacate the court’s judgment and remand so that the district court may address these questions in the first instance.

E.R.L. v. Adoption Advocacy, Inc. Appealed from USDC at Beaufort, S.C. (Richard Gergel, J.) Robert James Butcher and Deborah Butcher for appellant; Steven Chase Parker for appellees. 4th Cir. Unpub.

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