Immunity Denied in Tragic Foster Case Death

     (CN) – Human services officials may be liable for the death of a 7-year-old in foster care, taken from his mother and placed with the man first suspected of abusing him, the 10th Circuit ruled.
     Chandler Grafner was found on May 6, 2007, locked in a closet, dehydrated and starved, at the home of Jon Phillips and his girlfriend, Sarah Berry. He died from cardiac arrest later that day.
     Chandler’s biological parents, Christina Grafner and Joshua Norris, filed suit with the personal representative and administrator of Chandler’s estate, Melissa Schwartz.
     A federal judge dismissed the claims against the Arapahoe County Department of Human Services and the Jefferson County Department of Human Services, but upheld claims against two officials in their personal capacity.
     Margaret Booker headed the Investigation of Child Maltreatment and Intake Services at Denver County Department of Human Services. Mary Peagler was a case record supervisor there. Both were responsible for the investigation of Chandler’s case.
     Though the court found that the 11th Amendment gave Booker and Peagler immunity in their official capacities, it refused to shield either from claims that they, as individuals, violated Chandler’s due-process rights.
     A three-judge panel of the 10th Circuit in Denver affirmed, reciting the harrowing facts as alleged in the plaintiffs’ complaint.
     Christina Grafner had allegedly first contacted the Arapahoe County Department of Human Services in October 2004 while she was living with Phillips, who had no biological relationship with Chandler.
     Grafner reported fearing that Phillips would harm Chandler, but human services allegedly failed to update Chandler’s case in a statewide automated reporting system.
     Grafner and Chandler had moved in with her mother in Jefferson County, and Chandler’s case fell by the wayside. When Jefferson received Arapahoe’s referral, it simply booted it back to Arapahoe without looking into the address change, according to the complaint.
     After opening a new case on Chandler in 2006, Jefferson County removed Chandler from his mother’s custody, and placed him with Phillips and Berry, the new girlfriend.
     Over the next year, Chandler’s school repeatedly reported abuse concerns to the county.
     Chandler had allegedly been sent to school in December wearing only one shoe and no coat.
     In January 2007, a kindergarten teacher’s aide allegedly noticed red marks on Chandler’s neck, a bump on his head, and swelling and redness in his right ear. Chandler said his “dad” had “kept slapping” him, and “kept putting me in water,” according to the complaint.
     He later allegedly claimed that he had fallen in the shower, leading Denver County to deem the abuse report unfounded.
     The teacher was less convinved and question Chandler about it when he returned to school. Chandler allegedly admitted that his parents had told him to make up the story about falling.
     Caseworkers conducted interviews about this new report, but Paegler simply closed Chandler’s case in February 2007.
     Phillips withdrew Chandler from school on March 9, and the school filed another report in April.
     “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 abuse,” according to the 10th Circuit’s summary. “On May 6, over three weeks after the April referral, Chandler was found in a locked closet in an emaciated state and taken from Jon Phillips’s home; Chandler died later that day from cardiac arrest caused by severe dehydration and starvation.”
     The court said precedent dating back to 1985 has “clearly established” that state officials could violate foster children’s substantive due process rights if they knew of an asserted danger to a foster child or failed to exercise professional judgment.
     “As our case law makes clear, the special relationship exists between the State and foster child, which triggers an accompanying, continuing duty imposed on state custodial officials thereafter – not a duty limited to only the specific officials who executed the placement of the child,” Chief Judge Mary Briscoe wrote for the three-judge panel.
     Booker and Peagler’s appeal for immunity relied on “cherry-picked” language from a handful of 10th Circuit cases, according to the ruling.
     “It was apparent, in light of pre-existing law, to a reasonable official in Booker’s and Peagler’s positions that failing to investigate the child abuse referrals and dismissing Chandler’s case without investigation was an abdication of duty that would violate Chandler’s substantive due process right to be reasonably safe from harm as a foster child,” Briscoe wrote.

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