United States District Court, D. Colorado
THE ESTATE OF ANGEL PLACE, Represented by Shane Place and Misty Blackwell, Personal Representatives, Plaintiff,
JOYCE ANDERSON, JONI BEDELL, and CRYSTAL STEWART, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (ECF No. 66)
L. KANE, SENIOR U.S. DISTRICT JUDGE
civil action involves the death of Angel Place
(“Angel”) on September 17, 2014, when she was 11
months old and a foster child under the care of foster
parents Randy Bond and Sydney White. Angel died after having
been shaken and kicked violently by Sydney White. Plaintiff
seeks damages against three social workers employed by the
Mesa County Department of Human Services.
operative complaint is the Second Amended Complaint. (ECF No.
is provided by 28 U.S.C. §§ 1331 & 1343(a)(3).
plaintiff is the Estate of Angel Place, represented by Shane
Place and Misty Blackwell, personal representatives. Shane
Place is Angel Place's paternal grandfather. He was
appointed personal representative of the Estate on October
22, 2016, in the state court probate proceeding captioned
In the Matter of the Estate of Angel Place, No.
16PR30293, in the District Court for Mesa County, Colorado.
Ms. Blackwell was appointed co-personal representative of the
Estate on September 26, 2018.
defendants are Joyce Anderson, Joni Bedell, and Crystal
Stewart. They are sued in their individual capacities and in
their official capacities as employees of the Mesa County
Department of Human Services.
claims against defendant Jacque Berry were dismissed by
stipulation. See Stipulated motion to dismiss (ECF
No. 80) and Order dated March 28, 2019 (ECF No. 81).
asserts three claims for relief pursuant to 42 U.S.C. §
first and second claims allege that Defendants violated
Angel's right to Substantive Due Process guaranteed by
the Fourteenth Amendment to the United States Constitution.
As discussed below, claim one is premised on the
“special relationship doctrine, ” and claim two
is premised on the “state-created danger theory.”
third claim alleges violations of the Adoption Assistance and
Child Welfare Act of 1980 (AACWA), 42 U.S.C. § 670 et
fourth claim for violation of the Child Abuse Prevention and
Treatment Act, 42 U.S.C. § 5106a et seq., was dismissed
by stipulation. See Stipulated motion to dismiss
(ECF No. 80) and Order dated March 28, 2019 (ECF No. 81).
MOTION FOR SUMMARY JUDGMENT (ECF No. 66)
January 9, 2019, Defendants moved pursuant to Fed.R.Civ.P. 56
for dismissal of all claims, arguing (1) the doctrine of
qualified immunity shields them from liability in their
individual capacities; (2) the first and second claims fail
on the ground that Plaintiff's evidence is not sufficient
to show a substantive Due Process violation under either the
special relationship or state-created danger theory; and (3)
the third claim fails because the subject provisions of the
AACWA do not provide rights enforceable under § 1983, or
if they do, the available relief is limited to injunctive
motion is supported by documents, deposition testimony, and
other evidence identified as Defendants' Exhibits A-1
through A-22 (ECF Nos. 66-1 through 66-47).
opposed the motion in a response filed February 15, 2019 (ECF
No. 74). Plaintiff supported its response with exhibits
marked as Plaintiff's Exhibits 1 through 32 (ECF Nos.
74-1 through 74-32).
replied on March 15, 2019, and provided additional documents
marked as Defendants' Exhibits A-23 through A-28-1 (ECF
Nos. 78 and 78-1 though 78-7).
was granted leave to file a sur-reply, which was filed on May
1, 2019 (ECF No. 86).
motion includes a statement of undisputed facts, but that
statement is set forth in narrative form and not in numbered
paragraphs. (Defs.' mot. at pp. 3-12). Plaintiff's
opposition brief does not admit or deny Defendants'
statement of undisputed facts. Instead, Plaintiff provides
its own statement of facts in narrative form. (Pl.'s
resp. at pp. 2 - 22). Both parties include argument with
their version of the facts.
is my own effort to describe the factual background without
the parties' argumentative statements. I drew the
following statement of facts from exhibits and the
parties' descriptions of the background facts.
underlying material facts appear to be generally undisputed.
There are, however, disputes about inferences to be drawn
from the facts. Those disputes are identified in the
enters foster care
Place (Angel) was born on October 6, 2013 to parents Tierra
Bond Place (age 16) and Theodore Place (age 19). In late
November 2013, the Mesa County Department of Human Services
(MCDHS) received a report of safety concerns about Angel. An
MCDHS case manager, Jacque Berry, investigated that report.
She determined that the biological parents were physically
and verbally abusive toward each other, using marijuana,
neglecting Angel, and the home was unsafe for Angel.
(Pl.'s Ex. 1, Request to File Petition in Dependency and
Neglect). The MCDHS obtained custody and removed Angel from
her biological parents' home on December 6, 2013,
pursuant to an emergency court order in a state court action
captioned In the Interest of Angel Lanee Place, a minor
child, and concerning Tierra Sue Place and Theodore Elvin
Place, No. 13 JV 410, District Court for Mesa County,
Colorado (the Juvenile Court Action). (Pl.'s Ex. 2,
Emergency Custody and Pickup Order).
is placed with foster mother Misty Blackwell
MCDHS initially placed Angel with foster parent Misty
Blackwell. An organization known as Ariel Services had
certified Ms. Blackwell to be a foster parent, and Ariel
Services referred Ms. Blackwell to the MCDHS. Cassandra
Strang, an Ariel Services caseworker, monitored Angel's
placement with Ms. Blackwell and reported to the MCDHS.
(Defs.' Ex. A-3, M. Blackwell Dep. at 19:6-18; Defs.'
Ex. A-4, Strang Dep.)
Blackwell was a good foster mother who provided a safe home
for Angel. (Defs.' Ex. A-5, Stewart Dep. at 66:1-9). By
all accounts, Angel was healthy, comfortable, and
well-adjusted under her care.
MCDHS considers kinship placement
Blackwell was not related to Angel. According to Colorado and
federal law, the MCDHS was required to engage in a diligent
search for a kinship foster home. See 42 U.S.C.
§671(a)(19); C.R.S. § 19-3-403; C.R.S. §
19-3-508(5)(b)(I); C.R.S. § 19-3-605(1); C.R.S. §
19-1-115(1) & (3)(a). The MCDHS manual for the Family and
Children Services Division includes the following statement:
“The State Department of Human Services Mandates that
children be placed with kin when kin are determined to be
safe and appropriate, and that a diligent search process to
locate kin begin within 3 days of placement and continue
until a permanent placement plan is reached.”
(Pl.'s Ex. 10, MCDHS Kinship Care Policy and Procedure).
MCDHS began that search in early December 2013. By the end of
that month, a young couple, Mr. Randy Bond (Randy) and Ms.
Sydney White (Sydney), were identified as potential kinship
foster parents. (Def.'s Ex. A-6-1, Kinship Diligent
Search Referral Form).Randy is a first cousin of Angel's
biological mother, Tierra Bond Place.
and Sydney had lived together as common law husband and wife
for approximately four years. Randy was then 21 years old,
and Sydney was almost 20 years old. They were the parents of
two children - a son (Kaleb) who was then just over 2 years
old, and daughter (Harper) who was under the age of 1. Randy
and Sydney expressed their desire to provide Angel with a
loving home. (Defs.' Ex. A-6-5, Home Study at
the relevant time period, Defendant Joni Bedell was a
supervisor employed by the MCDHS.
MCDHS caseworker, Ethan Storeng, initiated the process to
certify Randy and Sydney as foster parents by sending an
email to Bedell, requesting a Safe Home Study of Randy and
Sydney. (Defs.' Ex. A-6-2, Jan. 30, 2014 email from
Storeng to Bedell).
Home Study is an industry standard used by state and county
agencies to assess and approve potential foster parents. It
is a detailed report that includes information such as
criminal background checks; reference checks; medical reports
regarding the applicants; interviews with the applicants and
members of their household; and other documents. (Def.'s
Ex. A-6-4, part 1 at ¶ 44110).
Bedell assigned the task of conducting the Safe Home Study of
the Bond/White household to defendant Joyce Anderson, an
MCDHS Placement Resource Manager.
Mercer, another placement resource manager, also was involved
in the process of certifying the Bond/White household to
become a foster home. Ms. Mercer was responsible for matters
such as ensuring that the applicants' home met certain
standards; the applicants were prepared to provide a safe
environment for the foster child; and required paperwork was
completed. (Pl.'s Ex. 16, Mercer Dep. 64:12-65:21;
Defs.' Ex. A-9, Bedell Dep. at 34:21-36:7;
Certification Process and Home Study Report
become certified as foster parents, Randy and Sydney attended
a series of training classes and completed application forms.
(Defs.' Ex. A-6-3, MCDHS training records; Defs.' Ex.
A-6-4, part 2, Application to Care for Children).
prepare the Home Study, Ms. Anderson assembled and reviewed
various records, including criminal background checks of
Randy and Sydney, social histories, documentation of their
interactions with DHS, and other data. (Defs.' Ex. A-6-4,
parts 1 & 2). Ms. Anderson interviewed Randy and Sydney -
both individually and together - and observed them with their
two children. (Defs.' Ex. A-11, Anderson Dep. at 43:8-21;
57:22-58:14). Ms. Anderson reviewed Randy's and
Sydney's responses to questions on the application forms
and SAFE assessments, which included detailed information
about their personal lives and histories. (Defs.' Ex.
A-6-4, part 1).
Home Study report, Ms. Anderson documented that Sydney
“grew up in an extremely dysfunctional home” and
experienced a difficult childhood and teen years. (Defs.'
Ex. A-6-5 at MC-2032). In questionnaire responses, Sydney had
disclosed that her mother had abused her emotionally and
sometimes physically. (Def.'s A-6-4, part 1 at
MD-4127-4128). In response to questions about whether she had
been sexually abused, assaulted or molested as a child or
teenager, Sydney wrote that she was uncertain. (Id.)
Sydney's written responses also indicated that she
suffered from depression and panic attacks. (Id. at
MD-4140). The information compiled by Ms. Anderson included a
Colorado Department of Human Services Child Welfare
“Trails System Report” which showed that in 2010
Sydney had been a truant during her school years and assessed
as a “Youth in Conflict.” (Defs.' Ex. A-6-4
pt. 2 at MD-4195). The Trails Report included statements by
White's mother who said that she and Sydney had verbal
and physical altercations, which included them pushing and
slapping each other. (Id. at MD 4197).
documents that Ms. Anderson gathered showed that Randy, too,
had experienced a troubled family life during his youth.
(Defs.' Ex. A-6-5 at MC-2023-2024). A Trails System
Report for Randy described an incident in 2007 when it was
reported that Randy's stepfather had been physically
abusive to him. (Defs.' Ex. A-6-4 pt. 2 at MD-4186-4194).
Home Study, defendant Anderson documented that both Randy and
Sydney graduated from high school, and that Sydney had
graduated a year early. (Defs.' Ex. A-6-5 at
MC-2023-2027). Randy was described as healthy with no medical
issues. (Id.). Neither of them smoked or drank.
(Id.). They appeared to be financially responsible.
(Defs.' Ex. A-6-5 at ¶ 2030). They had recently
purchased a home in Grand Junction. (Id. at MC-2018
and Sydney's daily routines were described in the Home
Study. It showed that Randy was employed by Coca Cola as a
commercial driver, and that he left for work around 5:00 a.m.
and was gone much of the day, often working 50 hours a week.
The Home Study stated that Sydney stayed at home with their
2-year old son and infant daughter, and was also home
schooling her younger sister. (Defs.' Ex. A-6-5 at
short, the personal history information that Ms. Anderson
assembled about Randy and Sydney showed they had experienced
abuse and family dysfunction during their younger years, but
described Randy and Sydney as responsible parents to their
own two children. (Defs.' Ex. A-6-5 at ¶
provided by Sydney and Randy indicated they argued almost
daily, but there were no reports of them being physically
abusive to each other or their children. (Defs.' Ex.
A-6-4, part 1 at MD-4136).
of MCDHS workers reviewed and discussed Anderson's Home
Study report. They discussed that Randy and Sydney were young
parents who already had two young children. (Defs.' Ex.
A-6-5 at ¶ 2017-2035; Defs.' Ex. A-9, Bedell Dep. at
34:21-36:7; Defs.' Ex. A-8, Storeng Dep. at
April 11, 2014, Ms. Bedell (Anderson's supervisor) wrote
an email to Ms. Anderson and Ms. Mercer, stating in part:
I can't make it to the co-team meeting today to discuss
the Bond home study. . . . Here's my two cents. We give
preference to family unless there is extenuating
circumstances that it would be detrimental to the child (i.e.
breaking the attachment during critical developmental stages,
which usually starts at about 9 months to 3 years of age). .
(Pl.'s Ex. 28, Bedell email).
Anderson concluded that Angel should be placed with Randy and
Sydney. (Defs.' Ex. A-6-5 at MC-2033). Ms. Bedell
concurred with that recommendation. (Id. at MC
Ms. Anderson was deposed in this litigation, she testified
that the reasons for her recommendation were “based on
many factors and both of them (Randy and Sydney) had been
living very productive lives, and they had - their current
behavior and the current lifestyle was not one of
abuse.” (Defs.' Ex. A-11, Anderson Dep. at
138:15-19). Ms. Anderson was aware that Sydney was only 20
years old, but viewed her as a “very mature 20.”
Ms. Anderson said that based on “everything (she had)
observed at the time that I did the study told me that
(Sydney) was mature and she was a good mom to her
child(ren).” (Id. at 157:1-3, 157:16-18).
Crystal Stewart, an MCDHS senior case manager, was
responsible for monitoring Angel's foster home placement.
Her job was to focus on the child. (Defs.' Ex. A-5,
Stewart Dep. at 80:1-80:14). Ms. Stewart saw Angel in Ms.
Blackwell's home on May 2, 2014, and reported,
“Angel is a very happy baby. She has no medical issues
and is overall a healthy baby.” (Pl.'s Ex. 9,
Family Services Plan Review).
position of the MCDHS remained that Angel should be placed in
the Bond/White household. (Id.).
Sydney was under 21, a written waiver was required before she
could be certified as a foster parent. (Pl.'s Ex. 16,
Mercer Dep. at 109:15-18; 116:6-12). The MCDHS team decided
that the age requirement should be waived, but the waiver was
not signed until July 23, 2014. (Pl.'s Ex. 23). It was
not completed on June 17, 2014, when the MCDHS recommended to
the Juvenile Court that Angel be moved to the Bond/White
Court Action Proceedings
in the Juvenile Court Action had been ongoing, and
Angel's biological parents had appeared through separate
counsel. By court order dated January 22, 2014, Angel was
adjudicated dependent or neglected as to the biological
mother, and a similar order entered as to the biological
father on March 13, 2014. (Pl.'s Exs. 7 & 8, Court
orders). Those orders stated that the MCDHS was making
“reasonable efforts to reunite the child and
family” and that such efforts would continue.
(Id.). That is, the Juvenile Court Action did not
involve efforts to terminate the parental rights of the
biological parents. Pursuant to the state court's orders,
Angel remained in the custody of the MCDHS, in the care of
the spring of 2014, the MCDHS focused on placing Angel with
the Bond/White kinship family.
March 2014, Ms. Blackwell filed a pro se motion to
intervene in the Juvenile Court Action, stating that she
objected to any plans the MCDHS might have to change
Angel's placement. (Pl.'s Ex. 2). Her motion to
intervene was granted on April 22, 2018. (Id.).
presiding judge in the Juvenile Court Action, Magistrate
William T. McNulty, held a hearing on May 2, 2014, and set a
hearing for June 17, 2014, to review the biological
parents' treatment plan and to consider the proposed
transfer of Angel's foster placement from Ms. Blackwell
to the Bond/White household. (Defs.' Ex. A-15, Hrg.Tr.
June 17, 2014 at 2:14-24).
preparation for the June 17, 2014 hearing, the MCDHS
conducted an evaluation to assess “Angel's
developmental stage and her attachment to determine whether
or not Angel (could) transition into the kinship home
successfully.” (Pl.'s Ex. 9, Family Services Plan
Review). That evaluation was done by MCDHS employee Michelle
Doll, a licensed counselor with experience in making such
assessments. After meetings with Ms. Blackwell and the
Bond/White family, Ms. Doll prepared a written report, which
was completed on June 13, 2014. (Defs.' Ex. A-6-7,
Attachment Assessment, under the heading “parental
strengths, ” Ms. Doll wrote:
Angel's current foster mother, Misty, is consistently
responsive, nurturing, and able to read Angel's cues. It
is evident she is bonded to Angel. The kin family, Randy and
Sydney, are gentle, are responsive, are nurturing, and
demonstrate a lot of concern for Angel's needs and will
modify their strategies to meet her needs. Their own children
have formed secure attachments with them. Both families
demonstrate age appropriate and developmentally supportive
(Id. at MC-2532). Ms. Doll observed that Angel
generally was where she needed to be developmentally, stating
that Angel was behind on her gross motor skills, but socially
and emotionally she was on track. (Id. at MC-2533).
Ms. Doll concluded that placement of Angel in the Bond/White
household could proceed if the transition was completed soon.
(Defs.' Ex. A-6-7 at MC-2533-34; and Defs.' Ex. A-14,
Doll Dep. at 21:1-2; 100:4-10; 100:15-22; 102:14-103:1;
June 17, 2014 Hearing
before the June 17, 2014 hearing, Ms. Blackwell consulted
with attorney Trudee Andersen Gurley. On June 13, 2014,
Attorney Gurley moved to continue the upcoming hearing and
filed a “conditional entry of appearance, ” which
stated that Gurley would appear for Ms. Blackwell if the
court were to grant the motion for continuance. (Pl.'s
Ex. 22, Intervenor's Conditional Entry of Appearance).
court proceeded with the June 17 hearing. Attorney Gurley
initially appeared with Ms. Blackwell. The County Attorney
was present, with Ms. Stewart as the MCDHS representative.
The biological parents were represented by their counsel.
Also present were Mr. Robert Tweedell, the court-appointed
Guardian Ad Litem (GAL), and a CASA representative, Ms.
Schmid. (Hrg. Tr. at 2:1-13).
McNulty began the hearing by stating that he had reviewed a
number of reports, including the Home Study, and asked
counsel to address the issue of a continuance.
counsel for the biological mother objected to the
continuance. The GAL expressed concern about delay. There was
discussion about Ms. Blackwell's reasons for not
obtaining counsel sooner. The County Attorney would agree
only to a very short continuance of less than two weeks, and
stated that the County's witnesses were present and ready
to testify. (Id. at 2:14-10:5).
McNulty denied the motion for continuance, stating that
although there was some good cause for continuance, it was
uncertain when a hearing could be rescheduled and the court
could not find that a continuance would be in the best
interest of the child, recognizing that allegations in the
case involved attachment issues which needed to be resolved
promptly. (Id. at 10:11-13:24). After the motion for
continuance was denied, Attorney Gurley departed and Ms.
Blackwell represented herself.
County called Ms. Doll as its first witness, and the
Attachment Assessment was admitted into evidence.
(Id. at 19:14- 20:19; 26:14-27:10). Ms. Doll
testified that Angel, then 8-months old, was in the early
phases of developing attachment and was already forming a
secure attachment with Ms. Blackwell. (Id. at
28:5-30:6; 32:6-7; 42:20-25). Ms. Doll did not make a
recommendation about whether Angel should be moved from Ms.
Blackwell's home to the Bond/White household, but opined
that any decision should be made quickly. (Id. at
34:13). Ms. Doll said there were risks with many moves and
that multiple moves were less than ideal. (Id. at
Bond was the next witness. He testified about his background,
employment, family, relationship to Angel, and his
participation in the foster family certification process.
(Id. at 57:19-71:5).
Place (Angel's biological mother) testified by telephone
and expressed her desire to have Angel placed in the
Bond/White household. (Id. at 71:6-75:16).
County then called Ms. Stewart. (Id. at 76:20). She
testified that Randy and Sydney were approved to be a
licensed foster home. She opined that it was in Angel's
best interest to be placed with Randy and Sydney.
(Id. at 76:14-19; 78:24-79:1). The Home Study was
admitted into evidence during questioning by counsel for the
biological father. (Id. at 82:17-84:7).
Ms. Stewart was asked by the County Attorney if there was
anything that was not addressed that the Court should know,
she responded, “I don't think so.”
(Id. at 78:16-18). Ms. Stewart did not draw
attention to any information about Sydney and Randy that
might have raised concerns about placing Angel with them. Ms.
Stewart did not explain that the Bond/White household could
not yet legally be a foster home because Sydney was under 21
and the form required to waive the minimum age standard had
not been signed.
the County presented its evidence, Ms. Blackwell called
Sydney White as a witness and questioned her about the
difficulties of caring for a third child and whether she had
concerns about potential child abuse by Randy's mother
and stepfather. (Id. at 90:12-99:6).
Blackwell also called Cassandra Strang (the Ariel
caseworker), who testified about Angel's attachment to
Ms. Blackwell and Angel's healthy development under
Blackwell's care. (Id. at 99:16-24). Another
witness, Cheryl Morris, also testified about her observations
of Angel's attachment to Ms. Blackwell. Blackwell's
father (O'Neal Blackwell) and mother (Shirley Blackwell)
testified about their relationship with Angel. (Id.
at 108:22-121:2). Ms. Blackwell was sworn as a witness and
explained why she believed Angel should not be moved from her
home. (Id. at 121:3-127:20).
Schmid, the CASA representative, was not called to testify.
When deposed in this litigation, Ms. Schmid said that she had
reservations about the Bond/White household and thought Angel
would be a lot safer with Ms. Blackwell. (Pl.'s Ex. 5,
Schmid Dep. at 89:12-25). Ms. Schmid had expressed those
concerns to the GAL before the June 17 hearing. (Id.
GAL, however, supported the MCDHS's position that Angel
should be transferred to the Bond/White kinship foster home,
as did the attorneys for the biological parents. (Tr. at
conclusion of the hearing, Magistrate McNulty ruled that it
was in Angel's best interests to be placed with the
Bond/White kinship family and ordered that the transfer occur
according to a ...