Wash. Court Didn’t Prove|Social Workers Negligent

(CN) - The 9th Circuit on Wednesday revived the immunity claims of nine social workers accused of ignoring more than 30 complaints about "a predator who slithered into the lives of vulnerable women with young daughters."

The Department of Social and Health Services (DSHS) in Washington continued to license Enrique Fabregas as a foster-care provider despite a decade of complaints suggesting that he was sexually abusing the girls in his care, one of whom he had adopted.

Estera Tamas, Ruth Tamas and a third foster child, Monica, through a court-appointed guardian, sued DSHS and nine of its employees in 2007 for violating their constitutional rights.

Police in Redmond, Wash., arrested Fabregas in 2006 after DSHS received a complaint that two of the girls had rashes on their genitalia, and that Fabregas had given the drug Ecstasy to another.

During a search of Fabregas' home, police found "hundreds of pornographic photographs, movie clips, lingerie items, and dress-up props," according to the ruling.

Over the decade it licensed Fabregas, Social Services had received some 30 complaints similar to the one that finally resulted in Fabregas' arrest. The complaints described how the girls were often bruised and dirty, that they were given drugs by Fabergas and encouraged to shoplift, and that he sexually abused them.

No one followed up to investigate any of the complaints, and Fabregas' foster-care license was renewed three times prior to his arrest.

The employees moved for summary judgment, arguing that they were eligible for absolute and qualified immunity. The circuit court denied the motion and ruled that the employees had been "deliberately indifferent" because they had ignored so many complaints about Fabergas' alleged sexual abuse of the girls.

But the federal appeals panel in Seattle reversed, finding that the court had used the wrong standard.

"Enrique Fabregas is a predator who slithered into the lives of vulnerable women with young daughters," Judge Johnnie Rawlinson wrote for the panel. "There is no question that Fabregas molested his foster daughters, one of whom he legally adopted. The more challenging question this case presents is whether [DSHS] and nine DSHS employees involved in overseeing the foster care ... are legally responsible for the injuries inflicted by Fabregas."

Rawlinson found that the lower court had failed to show "an objectively substantial risk of harm."

To find the social workers liable, the court must prove that the officials were "subjectively aware" that the girls faced a substantial risk of serious harm. The officials must had to have inferred, or should have inferred, the danger that Fabergas posed to the girls.

Rawlinson remanded the case back to the district court "to analyze each appellant's prospective liability individually, utilizing the proper standard."

He added that "the appellants' potential liability varies, depending on whether each appellant was aware of facts from which an inference could be drawn that a substantial risk of serious harm to appellees existed, and upon whether each appellant actually drew that inference." (Emphasis in original).

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