                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0065n.06

                                           No. 08-4565                                   FILED
                                                                                     Feb 02, 2010
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


JIANNA MOORE, et al.,                                    )
                                                         )
       Plaintiffs-Appellants,                            )         ON APPEAL FROM THE
                                                         )         UNITED STATES DISTRICT
               v.                                        )         COURT FOR THE NORTHERN
                                                         )         DISTRICT OF OHIO
LAKE COUNTY DEPARTMENT OF JOB AND                        )
FAMILY SERVICES, et al.,                                 )
                                                         )
       Defendants-Appellees.                             )




BEFORE: BATCHELDER, Chief Judge, GRIFFIN, Circuit Judge, and TARNOW, District
Judge.*

       TARNOW, District Judge.

       Jianna Moore, a minor, by her birth parents, Danielle Moore and Frederick Waterwash, and

Moore and Waterwash on their own behalf, appeal the district court’s grant of Defendants’ motion

for summary judgment. Plaintiffs argue that this panel should adopt “professional judgment” as the

standard of culpability under which a child’s due process right to be free from harm while in a state

foster home is evaluated, overruling this court’s decision in Lintz v. Skipski, 25 F.3d 304 (6th Cir.

1994) establishing “deliberate indifference” as the standard. For the reasons that follow, we decline

to adopt the “professional judgment” standard and affirm the district court’s ruling.


       *
       The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 08-4565
Moore, et al. v. Lake County
Department of Job and Family Services, et al.

                                                 I.

       In July 2002, Raymond and Lisa Knapp went to the Lake County Department of Job and

Family Services (LCDJFS) seeking to adopt a child. Following their application, the Knapps

underwent pre-service training, taking classes with curriculum developed by the Ohio Department

of Children and Family Services. A home study was completed, in accordance with Ohio law, that

included background checks, a check of personal and employment references, and medical

evaluations. The couple also completed a self assessment where they indicated that their infant care

skills needed some development.

       The Knapps were approved as adoptive parents in June 2003. Ultimately, after determining

that it might be difficult to adopt a young child because of the limited number of children in the

newborn to three-year-old age bracket available strictly for adoption, the Knapps decided they

wanted to serve as foster parents and were licensed as such. They continued to receive training after

their approval, completing the twenty hours of training sessions that were required between

September 2003 and September 2004.

       In December 2004, LCDJFS was granted emergency custody of Jianna Moore, a newborn,

and placed her with the Knapps. During Jianna’s placement, Erin Whipple, a social worker with

LCDJFS, regularly visited the home under the supervision of LCDJFS supervisor Melanie Hale to

monitor the child’s well-being. Ms. Whipple also saw the child weekly at the birth mother’s

supervised agency visits and spoke with the Knapps by phone twice per week. Neither Ms. Hale nor




                                                -2-
No. 08-4565
Moore, et al. v. Lake County
Department of Job and Family Services, et al.

Ms. Whipple had any specific concerns about the safety of the child. Jianna’s mother, Danielle

Moore, did not observe any signs of physical harm during her regular supervised visits.

       On February 3, 2005, Jianna suffered injuries consistent with “shaken baby syndrome.”

LCDJFS and the Mentor Police Department investigated and determined that the injuries resulted

from physical abuse that occurred while the child was in the Knapps’ custody. No criminal charges

were brought against the Knapps, but a civil suit was brought by the child’s mother.1 Danielle

Moore ultimately regained custody of her daughter.

                                                  II.

       Jianna Moore, by and with her birth parents, filed a complaint against LCDJFS and several

of its employees or agents in the Lake County Court of Common Pleas alleging a federal claim under

42 U.S.C. § 1983 and various state claims. Plaintiffs’ § 1983 claim alleged that Defendants’ failure

to investigate, train, and monitor the foster parents caring for the child deprived Jianna of her civil

rights as guaranteed by the United States and Ohio Constitutions. Defendants subsequently filed a

motion for summary judgment, which the district court granted as to the § 1983 claim against

LCDJFS since Plaintiffs were unable to demonstrate that a lack of an agency policy basing foster

care placements upon foster parents’ self assessments caused any violation of a constitutional right.

       The district court also concluded that the individual defendants were entitled to qualified




       1
         Detective Colleen Petro, who investigated the incident, testified that she recommended to
the prosecutor that criminal charges be brought against Ms. Knapp but he declined to do so because
he was concerned that he could not prove the allegations beyond a reasonable doubt.

                                                 -3-
No. 08-4565
Moore, et al. v. Lake County
Department of Job and Family Services, et al.

immunity. Although under Meador v. Cabinet for Human Resources, 902 F.2d 474, 476 (6th Cir.

1990) and Lintz, supra, it is clearly established law in the Sixth Circuit that a child has a due process

right to be free from harm while in a state foster home, no violation of that right had occurred since

Plaintiffs did not demonstrate that Defendants’ conduct constituted “deliberate indifference” to

Jianna’s safety. The district court did note, however, that although it was sympathetic to Plaintiff’s

argument that “professional judgment” is a more appropriate standard of culpability to apply in the

foster care context, it was bound by Lintz, supra, to apply the “deliberate indifference” standard.

                                                   III.

        Plaintiffs asks this panel to overrule this court’s prior ruling in Lintz, supra, and establish the

“professional judgment” standard as the requisite standard of culpability in determining whether a

state has violated a foster child’s due process right to be free from harm while in a state foster home.

However, we decline to do so, as “a fundamental principle of this court is that ‘[a] panel... cannot

overrule the decision of another panel. The prior decision remains controlling authority unless an

inconsistent decision of the United States Supreme Court requires modification of the decision or

this Court sitting en banc overrules the prior decision.” See United States v. Ables, 167 F.3d 1021,

1027 (6th Cir. 1999), quoting Salmi v. Secretary of Health & Human Servs., 774 F.2d 685, 689 (6th

Cir. 1985).

        After hearing oral argument and thoroughly examining the briefs and record in this case, this

court concludes that the district court properly applied the prevailing standard of “deliberate

indifference” in evaluating Plaintiff’s § 1983 claim. Accordingly, we affirm the judgment of the


                                                   -4-
No. 08-4565
Moore, et al. v. Lake County
Department of Job and Family Services, et al.

district court for the reasons stated in its opinion entered on October 6, 2008. In doing so, this court

makes no determination as to which standard, “deliberate indifference” or “professional judgment,”

is a more appropriate one to apply in determining whether a child’s right to be free from harm while

in state foster care is violated.




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