                    SUPREME COURT OF ARIZONA
                             En Banc

CHERYL WEATHERFORD, as guardian    )   Arizona Supreme Court
ad litem for MICHAEL L., a minor, )    No. CV-02-0369-PR
                                   )
                                   )   Court of Appeals
             Plaintiff-Appellant, )    Division One
                                   )   No. 1 CA-CV 01-0289
                  v.               )       1 CA-CV 01-0496
                                   )       (Consolidated)
STATE OF ARIZONA; CLAUDETTE        )
WASHINGTON, individually and in    )   Maricopa County
her capacity as an employee of     )   Superior Court
the State of Arizona; SHIRLEY      )   Nos. CV 98-021291
LEWIS, individually and in her     )        CV 98-021291-2
capacity as an employee of the     )
State of Arizona; PARTHENIA        )
GIBSON, individually and in her    )
capacity as an employee of the     )
State of Arizona,                  )
                                   )
             Defendants-Appellees. )
__________________________________)    O P I N I O N
                                   )
MICHAEL L., a minor, by and        )
through his guardian CHERYL        )
WEATHERFORD,                       )
                                   )
             Plaintiff-Appellee,   )
                                   )
                  v.               )
                                   )
STATE OF ARIZONA,                  )
                                   )
             Defendant-Appellant. )
                                   )
__________________________________)

          Appeal from Superior Court of Maricopa County
               Nos. CV 98-021291 and CV 98-021291-2
                   The Honorable Edward O. Burke
                The Honorable Johnathan H. Schwartz
           AFFIRMED IN PART; REVERSED IN PART; REMANDED

            Opinion of Court of Appeals Division One
             203 Ariz. 313, 54 P.3d 342 (App. 2002)
                VACATED IN PART; APPROVED IN PART
Laurence M. Berlin                                                                    Tucson
Attorney for Cheryl Weatherford

Terry Goddard, Attorney General                                                    Phoenix
     by   Paula S. Bickett, Chief Counsel
          Civil Appeals Section
          Assistant Attorney General
Attorneys for Parthenia Gibson,
Claudette Washington, Shirley Lewis, and
the State of Arizona

Martin, Hart & Fullerton                                                               Mesa
     by   James R. Hart, II
Attorneys for Parthenia Gibson

Wilenchik & Bartness, PC                                                           Phoenix
     by   Dennis I. Wilenchik
Attorneys for Claudette Washington and Shirley Lewis


M c G R E G O R, Vice Chief Justice

¶1           This case requires us to determine whether and under

what circumstances a child placed in a foster care facility may

bring   an    action      based    upon    42       U.S.C.   §    1983    (2003)   against

individual     state       workers       for        violating     the     foster   child’s

substantive        due     process       rights          under    the     United      States

Constitution.       We exercise jurisdiction pursuant to Article VI,

Section      5.3    of     the     Arizona         Constitution,         Arizona   Revised

Statutes (A.R.S.) § 12-120.24 (2003), and Rule 23 of the Arizona

Rules of Civil Appellate Procedure.

                                               I.

                                               A.

¶2           This case arises out of the alleged sexual assault of

twelve-year-old          Michael    L.    by       two   minors    held    at   the    Alice

Peterson Shelter (the Shelter), a foster care facility.                                 The


                                               2
assaults reportedly occurred over the course of four months in

1996   and     1997,      after       Claudette          Washington,       Michael’s      intake

social    worker,         had   arranged           for    Michael’s      placement       at    the

Shelter      following          his        removal       from     his    home        because    of

unsanitary conditions.                 In mid-December 1996, Parthenia Gibson

became Michael’s social worker.                          Shirley Lewis supervised both

Washington        and     Gibson      throughout          Michael’s      placement       at    the

Shelter.

¶3             Cheryl     Weatherford,             acting   as     Michael’s     guardian       ad

litem, sued the State of Arizona, Washington, Gibson, and Lewis

for negligence and for depriving Michael of his constitutional

rights,      in      violation        of    §     1983.         During     summary      judgment

proceedings, Washington, Gibson, and Lewis did not dispute that,

acting    in      their    capacity          as    social       workers,      they    failed    to

comply with various agency requirements, including failures to

timely complete an initial case plan, to assess Michael’s needs

and his compatibility with other Shelter residents, and to visit

the Shelter within twenty-four hours of Michael’s placement.                                    In

addition, they did not dispute that they made only two of the

sixteen required weekly supervised visits to the Shelter between

November     14,      1996,     and    the        disclosure      of    the   alleged     sexual

abuse on March 4, 1997.

¶4             The      superior           court       nonetheless         granted       summary

judgment in favor of each of the defendants based upon qualified

immunity, 42 U.S.C. § 1983, and protective services immunity,


                                                   3
A.R.S. § 8-805.A (2001).                  The court of appeals reversed the

order      dismissing    Weatherford’s             negligence    and     §    1983    claims.

Weatherford v. State, 203 Ariz. 313, 320 ¶ 31, 54 P.3d 342, 349

(App. 2002).         The court held that a foster child’s right to

reasonable safety while in foster care was clearly established

in     1996   and    that       a     social       worker’s     failure       to     exercise

professional judgment in the placement and monitoring of a child

in state foster care may subject the social worker to individual

liability under § 1983.               Id. at 319-20 ¶¶ 29-30, 54 P.3d at 348-

49.1

                                               B.

¶5            Section 1983 imposes liability on one who, under color

of     law,   deprives      a       person    of    any   “rights,       privileges,         or

immunities secured by the Constitution and laws.”                                 42 U.S.C. §

1983.      Government officials performing discretionary functions,

however, receive qualified immunity from § 1983 actions unless

their conduct violated a clearly established constitutional or

federal statutory right of which a reasonable person would have

known.      Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

¶6            To    overcome        the   social      workers’    qualified          immunity

defense,      Weatherford       bears        the    initial     burden       of    proving   a

violation of a clearly established constitutional or statutory


       1
          The court of appeals decided a number of other issues
affecting defendants’ liability. We granted review only of the
question pertaining to § 1983 liability.



                                               4
right.     A right is “clearly established” when “[t]he contours of

the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).                   Establishing

liability requires more than alleging a “violation of extremely

abstract rights.”        Id. at 639.        An official's specific action,

however, need not previously have been held unlawful. Id. at

640.       Rather, the unlawfulness must be apparent in light of

preexisting     law.      Id.    If    Weatherford    is   able     to   show   a

violation of Michael’s clearly established constitutional right,

then the social workers must demonstrate that their conduct was

reasonable under the applicable standard of care.                   See, e.g.,

Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).

¶7           At oral argument, the social workers conceded that a

foster     child’s     substantive    due   process   right   to    reasonable

safety while in foster care was clearly established in 1996.2                   As


       2
          In DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989), the Supreme Court held that a
state does not have a constitutional duty to protect a child
from an abusive parent even if the state has received reports of
and had investigated the possibility of abuse.    In a footnote,
however, the Court stated:

       Had the State by the affirmative exercise of its power
       removed Joshua from free society and placed him in a
       foster home operated by its agents, we might have a
       situation sufficiently analogous to incarceration or
       institutionalization to give rise to an affirmative
       duty to protect.    Indeed, several Courts of Appeals
       have held, by analogy to Estelle and Youngberg, that
       the State may be held liable under the Due Process



                                        5
a result, the issue before this court is whether the social

workers’     conduct,    viewed        in    the       light   most    favorable   to

Weatherford, could subject them to individual liability under §

1983.     Determining the appropriate standard by which to measure

the     challenged    conduct    presents          a    question      of   substantive

federal law.         Martinez v. California, 444 U.S. 277, 284 n.8

(1980).

                                            C.

¶8          In interpreting substantive federal law, state courts

look    first   to   decisions    of    the      United    States     Supreme   Court.

Although only a decision of the Supreme Court binds a state

court on a substantive federal issue, a number of state supreme

courts have elected to follow, as far as reasonably possible,

their federal circuits’ decisions on questions of substantive

federal law.     See Littlefield v. Dep’t of Human Servs., 480 A.2d

731, 737 (Me. 1984); Phillips v. Williams, 608 P.2d 1131, 1135

(Okla. 1980); York v. Gaasland Co., 250 P.2d 967, 971 (Wash.

1952); see also Busch v. Graphic Color Corp., 662 N.E.2d 397,


____________________________
      Clause for failing to protect children in foster homes
      from mistreatment at the hands of their foster
      parents.

Id. at 201 n.9 (emphasis added). Neither the Supreme Court nor
the Ninth Circuit Court of Appeals has addressed whether and to
what extent the state owes a duty to a foster child held in a
state foster care facility.     Because the State concedes that
Michael’s right to reasonable safety existed, we address only
the appropriate standard of conduct.




                                            6
403 (Ill. 1996) (“[D]ecisions of the Federal courts interpreting

a Federal act . . . are controlling upon Illinois courts.”).                 In

Littlefield, for example, the Maine Supreme Court considered the

proper     construction    of     eligibility      requirements   under    the

federal Social Security Act.            Noting that the First Circuit had

recently decided the exact issue before the court in Sweeney v.

Murray, 732 F.2d 1022 (1st Cir. 1984), the Maine court chose to

follow its circuit’s precedent.          The court stated:

       [E]ven though only a decision of the Supreme Court of
       the United States is the supreme law of the land on a
       federal issue, nevertheless, in the interests of
       existing harmonious federal-state relationships, it is
       a wise policy that a state court of last resort
       accept, so far as reasonably possible, a decision of
       its federal circuit court on such a federal question.

Littlefield, 480 A.2d at 737; see also Commonwealth v. Negri,

213 A.2d 670, 672 (Pa. 1965) (“[T]he clear indication for this

Court is to accept and follow the decision of the Third Circuit

on this matter until some further word is spoken by the Supreme

Court of the United States.”).

¶9          We agree that, although state courts are not bound by

decisions of federal circuit courts, we may choose to follow

substantive decisions of the Ninth Circuit Court of Appeals,

recognizing     that      doing    so       furthers   federal-state      court

relationships.     In addition, consistent decisions among federal

and state courts further predictability and stability of the

law.     Therefore, if the Ninth Circuit has announced a clear rule

on an issue of substantive federal statutory law and if the rule


                                        7
appears just, we will look first to the Ninth Circuit rule in

interpreting substantive federal statutory law.

                                            II.

¶10            The gravamen of Weatherford’s § 1983 complaint is the

claim that the social workers violated Michael’s substantive due

process rights.             In determining the appropriate standard for

imposing § 1983 liability, we first acknowledge that standards

of state tort law do not apply; rather, the question is whether

defendants       violated     Michael’s        federal      constitutional        rights.

“Our Constitution deals with the large concerns of the governors

and     the    governed,      but   it      does      not    purport       to    supplant

traditional tort law in laying down rules of conduct to regulate

liability for injuries that attend living together in society.”

Daniels v. Williams, 474 U.S. 327, 332 (1986).

¶11            The     touchstone      of        substantive        due    process      is

protection against government power arbitrarily and oppressively

exercised.           Id. at 331-32; see also County of Sacramento v.

Lewis,    523    U.S.     833,   845-46     (1998).         Thus,    the   Due    Process

Clause is “intended to prevent government officials from abusing

their power or employing it as an instrument of oppression.”

Sacramento, 523 U.S. at 846 (citations and quotations omitted).

When,    as    here,    a    plaintiff      alleges    he    incurred      damage    from

abusive       executive     conduct,     the      conduct    must     be   said    to   be

“arbitrary in the constitutional sense” to implicate the Due




                                             8
Process Clause.3    Id. (quoting Collins v. City of Harker Heights,

503 U.S. 115, 129 (1992)).

¶12         Neither the Supreme Court nor the Ninth Circuit has

clearly defined when executive conduct becomes “arbitrary in the

constitutional     sense”   so   as     to     impose   individual    §   1983

liability    in   the   foster   care       context.    We   gain    guidance,

however, from standards adopted by the Supreme Court and Ninth

Circuit in analogous situations.             See, e.g., Daniels, 474 U.S.

327; Youngberg v. Romeo, 457 U.S. 307 (1982); Estelle v. Gamble,

429 U.S. 97 (1976); L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996)

(Grubbs II); Estate of Connors v. O’Connor, 846 F.2d 1205 (9th

Cir. 1988) (O’Connor).      As our discussion below reveals, § 1983

standards have developed, first expanding and then contracting,

over time.



      3
          While acknowledging that “it is a constitution we are
expounding,” M'Culloch v. Maryland, 17 U.S. 316, 407 (1819), we
also recognize that the people of Arizona may adopt a system of
their choosing for determining when state officials may be held
liable for foster care placement decisions.           “Lest the
Constitution be demoted to . . . a font of tort law,” it is the
prerogative of the self-governing people of the State of Arizona
to make the legislative choice of when tort liability, except
“at the ends of the tort law’s spectrum of culpability,” may
attach to social worker placement and monitoring decisions.
Sacramento, 523 U.S. at 847 n.8, 848; see also Clouse ex rel.
Clouse v. State, 199 Ariz. 196, 203 ¶ 24, 16 P.3d 757,
764 (2001) (“We conclude that the immunity clause [of the
Arizona Constitution], by authorizing the legislature to direct
by law the manner in which suits may be brought against the
state, confers upon the legislature a power to control actions
against the state that it does not possess with regard to
actions against or between private parties.”).



                                        9
¶13        Two       relatively       early       Supreme     Court           decisions

established   general     parameters        for   imposing    §    1983       liability

upon   executive     branch   officials.          Youngberg,       457     U.S.    307;

Estelle, 429 U.S. 97.         In Estelle, the Supreme Court examined

the    appropriate     standard       for     determining         when     a     prison

official’s failure to provide adequate medical care to a prison

inmate could subject the official to § 1983 liability.                         429 U.S.

at 101-02.       The Estelle Court began by noting that the Eighth

Amendment’s right to be free from cruel and unusual punishment

embodies “broad and idealistic concepts of dignity, civilized

standards, humanity, and decency.” Id. at 102 (quoting Jackson

v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)).                      Based on this

principle, the Court reasoned:

       An inmate must rely on prison authorities to treat his
       medical needs; if the authorities fail to do so, those
       needs will not be met.    In the worst cases, such a
       failure may actually produce physical “torture or a
       lingering death” . . . .      In less serious cases,
       denial of medical care may result in pain and
       suffering which no one suggests would serve any
       penological purpose.

Id. at 103 (citations omitted).              The Court held that the State’s

deliberate    indifference       to   the     serious     medical        needs    of   a

prisoner violates the Eighth Amendment and provides the basis

for an action under § 1983.           Id. at 104.

¶14         The Supreme Court extended this analysis beyond the

prison setting in Youngberg.           In that case, the Court considered

the    appropriate    standard    for       determining      whether      a     patient



                                        10
involuntarily      committed       to    a   state     mental   institution       could

bring suit against institution officials for the alleged breach

of the patient’s substantive due process right to reasonable

safety and to freedom from unreasonable restraints.                        Youngberg,

457 U.S. at 321.             The Court explained: “If it is cruel and

unusual       punishment     to    hold      convicted      criminals      in   unsafe

conditions,       it   must       be     unconstitutional        to     confine    the

involuntarily committed—who may not be punished at all—in unsafe

conditions.”      Id. at 315-16.

¶15           Based on this reasoning, the Youngberg Court held that

§ 1983 liability may be imposed for executive decisions that are

“such     a    substantial        departure       from      accepted    professional

judgment,      practice,     or   standards       as   to    demonstrate    that    the

person responsible actually did not base the decision on such a

judgment.”       Id. at 323.            The Court noted, however, that “the

decision, if made by a professional, is presumptively valid.”

Id.     In addition, the “professional will not be liable if he was

unable to satisfy his normal professional standards because of

budgetary constraints; in such a case good-faith immunity would

bar liability.”        Id.    This standard, the Court reasoned, strikes

the appropriate balance between an individual’s constitutionally

protected liberty interests and legitimate state interests “in

light of the constraints under which most state institutions

necessarily operate.”         Id. at 324.




                                             11
¶16         After Youngberg and Estelle, the Supreme Court decided

two companion cases concerning the degree of official misconduct

necessary to give rise to liability under § 1983 for a violation

of a prison inmate’s due process rights.                       See Daniels, 474 U.S.

327;   Davidson     v.     Cannon,    474     U.S.    344       (1986).        In     those

decisions, the Court emphasized the distinction between the type

of conduct that gives rise to a negligence action and the type

of conduct that gives rise to a § 1983 action.

¶17         In Daniels, a prison inmate brought a § 1983 claim

alleging    a    prison    official    deprived       him       of   his    due    process

rights by negligently placing a pillow on a prison stairway,

causing the inmate to slip and injure his back and ankle.                                 474

U.S.   at   328.     The     Court,   seeking        to    define      “when       tortious

conduct     by     state     officials        rises       to     the       level     of     a

constitutional      tort,”    held    that     “the       Due    Process      Clause       is

simply not implicated by a negligent act of an official causing

unintended loss of or injury to life, liberty, or property.”

Id. at 328-29; see also Davidson, 474 U.S. at 348 (observing

that due process protections “are just not triggered by lack of

due care by prison officials”).               The Court reasoned that the Due

Process Clause was “intended to secure the individual from the

arbitrary exercise of the powers of government,” Daniels, 474

U.S. at 331 (quoting Hurtado v. California, 110 U.S. 516, 527

(1884)), and “to prevent governmental power from being ‘used for

purposes    of     oppression,’”      id.      (quoting         Murray’s      Lessee       v.


                                         12
Hoboken    Land     &    Improvement          Co.,       59    U.S.     272,      277    (1855)).

Negligent conduct, the Court concluded, is “quite remote” from

these concerns.           Id. at 332.              “To hold that injury caused by

such     conduct    is        a    deprivation           within     the     meaning          of     the

Fourteenth        Amendment           would        trivialize           the       centuries-old

principle of due process of law.”                             Id.       The Daniels Court,

however, reserved the question of “whether something less than

intentional conduct, such as recklessness or gross negligence,

is enough to trigger the protections of the Due Process Clause.”

Id. at 334 n.3.

¶18            Relying upon this guidance from the Supreme Court, the

Ninth     Circuit       initially         held     that        certain      types       of        gross

negligence can implicate the Due Process Clause.                                     See, e.g.,

Neely     v.    Feinstein,           50     F.3d      1502,      1507      (9th      Cir.         1995)

(“conscious        indifference             amounting          to     gross       negligence”);

Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (same);

O’Connor, 846 F.2d at 1208 (same); see also Fargo v. City of San

Juan    Bautista,       857       F.2d    638,     641    (9th      Cir.    1988)       (“If       [the

police     officer’s]             conduct     constituted           gross      negligence            or

recklessness, as opposed to mere negligence, then it constitutes

a deprivation of a liberty interest . . . under the due process

clause.”);      Wood     v.       Ostrander,       851    F.2d      1212,     1215      (9th       Cir.

1988) (holding that due process claim was not barred under §

1983 because the alleged police conduct “may be more than mere

negligence”).


                                                 13
¶19        In   O’Connor,      the    Ninth   Circuit     considered    the

implications of Daniels and Davidson for determining whether a

state actor may be held liable, under the professional judgment

standard, for violating the rights of an involuntarily committed

mental patient.       The O’Connor court concluded that Daniels and

Davidson did not affect the Youngberg test:

      Under Youngberg’s balancing test, the risk of harm and
      the burden on the state are weighed in examining
      discretionary management choices for reasonableness.
      Liability may be imposed on a professional state
      officer   only  when   his  or  her   decision  is  so
      objectively unreasonable as to demonstrate that he or
      she actually did not base the challenged decision upon
      professional judgment. We believe that this standard
      is equivalent to that required in ordinary tort cases
      for a finding of conscious indifference amounting to
      gross negligence.    Certainly, the Youngberg standard
      is far more stringent than that required for a finding
      of negligence, which may be demonstrated by a
      professional's mere failure to exercise the level of
      care expected of other professionals in the same
      field. We therefore hold that the inquiry relevant
      under Youngberg has not been affected by the Court’s
      intervening decisions in Daniels and Davidson.

O’Connor, 846 F.2d at 1208 (emphasis added).

¶20        Similarly, the Ninth Circuit held that police officer

conduct   amounting    to   gross    negligence   or   recklessness4   would


      4
          Defining terms such as negligence, gross negligence,
and recklessness is, at best, inexact.    As between negligence
and gross negligence, negligence suggests “a failure to measure
up to the conduct of a reasonable person.” Daniels, 474 U.S. at
332.   Gross negligence generally signifies “more than ordinary
inadvertence or inattention, but less perhaps than conscious
indifference to the consequences.”     Fargo, 857 F.2d at 641
(quoting W. Keeton et al., Prosser and Keeton on the Law of
Torts § 34, at 212 (5th ed. 1984)).    Under this definition of
gross negligence, “conscious indifference amounting to gross



                                      14
constitute a violation of the constitutional right to be free

from excessive force and would subject an officer to § 1983

liability.     Fargo, 857 F.2d at 641.           Fargo involved a claim

brought by an arrestee whom a police officer accidentally shot

while placing him in handcuffs.          The officer admitted that he

acted contrary to his police training, but claimed that he was

entitled to summary judgment because the shooting was accidental

and, at most, merely negligent.             Id. at 639.     Rejecting the

officer’s    argument,   the    court   determined   that   the   officer’s

conduct may have “constituted gross negligence or recklessness.”

Id. at 641.        The Ninth Circuit held, “We cannot conclude as a

matter of law that [the officer’s] conduct, contrary as it was

to proper police procedures, constituted mere inadvertence, and

not a greater want of care.”       Id. at 642.

¶21         Recent Ninth Circuit case law, however, rejects the

Fargo standard and raises a serious question about the continued

validity of the professional judgment standard as applied in

O’Connor and similar decisions.           See Grubbs II, 92 F.3d 894.

Grubbs II involved a § 1983 claim brought by a registered nurse

at    a   medium     security   custodial     institution    against   her

supervisors after she was attacked by an inmate.            The Grubbs II

____________________________
negligence” falls closer to a recklessness standard, which
usually involves a conscious disregard of a risk, than mere
gross negligence. See id. at 642 n.7 (noting that recklessness
can, however, be inferred from the facts and circumstances)
(citation omitted).




                                    15
court examined prior circuit decisions to decide whether a state

official could be held liable under § 1983 for gross negligence.

Id. at 896.       The court concluded:

      [I]n order to establish Section 1983 liability in an
      action against a state official for an injury . . .
      the plaintiff must show that the state official
      participated in creating a dangerous condition, and
      acted with deliberate indifference to the known or
      obvious danger in subjecting the plaintiff to it.
      . . . Deliberate indifference to a known, or so
      obvious as to imply knowledge of, danger, by a
      supervisor who participated in creating the danger, is
      enough. Less is not enough.

Id. at 900 (emphasis added); see also McGrath v. Scott, 250

F.Supp.     2d    1218,   1226     (D.   Ariz.    2003)    (finding     that   the

deliberately indifferent standard adopted in Grubbs II “applies

generally to all supervisory liability claims under § 1983”).

¶22         In redefining and applying the deliberate indifference

standard,      the   Grubbs   II    court     also     examined   the   continued

validity of the O’Connor professional judgment standard.                       The

court reasoned that Neely, in which the court had held that

“conscious       indifference      amounting     to    gross   negligence”     was

enough    to     impose   liability      under   the    professional     judgment

standard, Neely, 50 F.3d at 1507, either was incorrect or must

be limited to its facts.         The court stated:

      While Neely can be distinguished on its facts from the
      present case, its language . . . is either incorrect
      to the extent that it approves the gross negligence
      standard, or it must be limited to the claims of
      inmate plaintiffs injured because of a miscarriage of
      the “professional judgment of a government hospital
      official” in the context of a captive plaintiff.



                                         16
Grubbs II, 92 F.3d at 897.

¶23         Two      years         after        the     Ninth     Circuit’s          Grubbs     II

decision,     the    Supreme            Court    reviewed       another        Ninth       Circuit

decision in an analogous area of § 1983 liability.                                Sacramento,

523 U.S. 833.        In Lewis v. Sacramento County, 98 F.3d 434 (9th

Cir.    1996),    the    circuit          court       had   concluded         that     a    police

officer’s deliberate indifference to, or reckless disregard for,

a person’s right to life and security during a high speed chase

could    establish       liability         under        §   1983.        In     reaching      its

conclusion, the court noted that “[d]eliberate indifference is

the greatest degree of misconduct we have previously required a

plaintiff to prove to sustain a § 1983 action.”                           Id. at 441.

¶24         Reversing             the    Ninth        Circuit,      the       Supreme       Court

emphasized the relatively narrow scope of constitutionally-based

§ 1983 actions.         The Court noted that the conduct of the officer

fell within the middle range of culpability, somewhere between

negligence,      which       is    “categorically           beneath      the    threshold       of

constitutional due process,” and “conduct intended to injure in

some way unjustifiable by any government interest.”                              Sacramento,

523 U.S. at 849.         The Court held that, with regard to high speed

police chases, deliberate indifference, rather than being the

highest     degree      of        misconduct          required,     is    insufficient          to

establish liability.                The Court concluded instead that “high

speed chases with no intent to harm suspects . . . do not give




                                                 17
rise to liability under the Fourteenth Amendment, redressible by

an action under § 1983.”                 Id. at 854.

¶25          The       Court        emphasized        again        that    “only      the        most

egregious official conduct can be said to be ‘arbitrary in the

constitutional sense,’” id. at 846 (quoting Collins, 503 U.S. at

129), and that, as it had repeatedly stated, “the Due Process

Clause     was     intended         to     prevent     government           officials            ‘from

abusing     [their]      power,       or    employing         it    as     an   instrument          of

oppression,’” id. (quoting Collins, 503 U.S. at 126 (in turn

quoting DeShaney v. Winnebago County Dep’t of Soc. Servs., 489

U.S. 189, 196 (1989) (in turn quoting Davidson, 474 U.S. at

348))).      To meet that burden, the Court stated, “for half a

century now we have spoken of the cognizable level of executive

abuse of power as that which shocks the conscience.”                                  Id.        Under

the circumstances of a high speed chase, only “a purpose to

cause harm unrelated to the legitimate object of arrest will

satisfy     the    element          of     arbitrary     conduct           shocking         to    the

conscience, necessary for a due process violation.”                              Id. at 836.

¶26          The Court also recognized, however, that due process

guarantees        cannot       be     mechanically        applied.              Id.    at         850.

“Deliberate indifference that shocks in one environment may not

be    so   patently      egregious          in   another,          and    our   concern           with

preserving       the    constitutional           proportions          of    substantive           due

process demands an exact analysis of circumstances before any

abuse of power is condemned as conscience shocking.”                                   Id.        The


                                                 18
Court   distinguished        between       imposing         liability         for    deliberate

indifference       in   a    high      speed      chase         situation         and    imposing

liability for deliberate indifference to inmate welfare.                                         The

primary distinction rests upon the fact that, in a high speed

chase, the officer must act decisively and show restraint at the

same moment.        Under such circumstances, little time exists for

deliberation and, as use of the “term ‘deliberate indifference’

implies,   the     standard       is     sensibly      employed            only    when       actual

deliberation     is     practical.”            Id.     at       851     (citing     Whitley       v.

Albers, 475 U.S. 312, 320 (1986)).                      In the custodial situation

considered    in    Estelle,        in     contrast      to         the    high    speed       chase

situation, prison officials had time for reflection.                                “When such

extended opportunities to do better are teamed with protracted

failure even to care, indifference is truly shocking.”                                        Id. at

853.     Similarly,         the   Court      noted,         in      a     situation      such     as

Youngberg,     “[t]he        combination          of        a       patient’s       involuntary

commitment and his total dependence on his custodians obliges

the government to take thought and make reasonable provision for

the patient’s welfare.”             Id. at 852 n.12.

¶27          Both Grubbs II and Sacramento held that, as to the

situations considered, nothing less than deliberate indifference

to a known or obvious danger on the part of a public official

involves behavior that rises to a constitutionally conscience-

shocking level.          Neither decision, of course, considered the

behavior   sufficient        to     rise    to    such          a   level    when       the    state


                                             19
places or monitors a foster child.                          We consider, then, whether

deliberate indifference or some other level of behavior gives

rise to liability in the foster care context.

                                                  III.

¶28         The Grubbs II standard, applied to the foster care

context,    would       require          that       state     workers        responsible         for

placing and supervising a child in foster care could not be held

liable     under        §       1983     unless           they     exhibited          deliberate

indifference       to       a    known       or     obvious      danger       to    the     child.

Weatherford argues that applying that standard will encourage

those    responsible            for    the    well-being         of       foster    children     to

deliberately       overlook           information         that     could      place       them   on

notice of dangerous conditions.                          Officials should not be less

likely to incur liability, she argues, if they fail to consider

available    information.                We       agree     that      a    child’s    right      to

reasonable safety while in foster care demands more from state

workers than attention to known or obvious dangers.                                    We hold,

therefore, that a foster child can establish § 1983 liability

against a state official by showing that the official, without

justification, acted with deliberate indifference by placing a

child in foster care or by maintaining a placement when the

official knew that the placement exposed the child to danger or

would have known of the danger but for the official’s deliberate

indifference.           If a state worker, with time to consider the

placement    for        a       foster       child,       acts     with      such     deliberate


                                                  20
indifference          as     to       ignore     information         indicating          that    the

placement       will       result      in    danger     to    the    child      or    refuses     to

obtain information that, if considered, would reveal a danger to

the child, the official’s indifference is sufficiently egregious

to justify imposing liability under § 1983.

¶29          This standard reflects the Supreme Court’s admonition

that executive behavior violates § 1983 only if it involves an

element    of    using          the    state’s       power    in    an   oppressive        manner.

Daniels, 474 U.S. at 331-32.                         An official faces liability not

for placing a child in foster care, but for placing the child in

a dangerous foster care situation of which the official knew or

would have known but for the official’s deliberate indifference.

¶30         The        standard         also    incorporates          the    Ninth       Circuit’s

admonition that anything less than deliberate indifference is

not    sufficient          to    establish       §    1983    liability.           The    standard

reflects     the       principle,            however,        that   the     state,       once    it

undertakes       to    make       a     person       dependent      upon     its      care,     also

undertakes an affirmative duty to assume responsibility for that

person’s safety and general well-being.                             DeShaney, 489 U.S. at

200.       Additionally,               the     standard       takes      into        account    the

difficult decisions imposed upon state workers in making and

maintaining foster child placements.                            In deciding whether the

worker    made     a       particular        decision        “without     justification,”          a

court must consider the totality of the circumstances:                                    A social

worker cannot be held liable if safe placement cannot be found


                                                 21
or if financial constraints prevent any choice other than that

made.      Youngberg,      457    U.S.   at      323;      K.H.    ex    rel.     Murphy    v.

Morgan,    914    F.2d    846,     853-54     (7th        Cir.    1990).        Whether     an

initial placement decision reaches a “constitutionally shocking”

level may involve different factual considerations than whether

a decision to continue a placement rises to this level.

¶31           The standard we articulate today is also similar to

the   standard     of    conduct    required         by    other    circuit        courts   of

appeals,      whether     denominated       a    “deliberate            indifference”       or

“professional judgment” standard, in the foster care context.

See Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 894

(10th Cir. 1992); Doe v. N.Y. Dep’t of Soc. Servs., 649 F.2d

134, 145 (2d Cir. 1981); see also Camp v. Gregory, 67 F.3d 1286,

1293 (7th Cir. 1995) (“[P]ublic officials may be held liable for

damages when they place a child in a foster home knowing or

having reason to know that the child is likely to suffer harm

there.”); Taylor v. Ledbettter, 818 F.2d 791, 796 (11th Cir.

1987)   (“A      child   abused     while       in    foster       care,     in    order    to

successfully      recover    from     state      officials         in    a   section      1983

action,    will    be    faced   with    the     difficult         problem        of   showing

actual knowledge of abuse or that agency personnel deliberately

failed to learn what was occurring in the foster home.”).

¶32           In Yvonne L., for example, the plaintiffs asserted the

right “not to be placed in a foster care environment involving a

known or reasonably suspected risk of harm by a third party.”


                                            22
959   F.2d    at    891.        The    Tenth      Circuit     adopted       a   standard       it

labeled the “professional judgment” standard and held that this

standard,     “while       it    does       not     require     actual      knowledge         the

children will be harmed, [] implies abdication of the duty to

act   professionally        in     making         the   placements.”            Id.    at    894.

Similarly, in Doe, the Second Circuit, purporting to adopt the

“deliberate        indifference”           standard,     held   that       child      placement

agency    officials        may    be       held    liable     under    §    1983       if    they

“exhibited deliberate indifference to a known injury, a known

risk, or a specific duty, and their failure to perform the duty

or act to ameliorate the risk or injury was a proximate cause of

plaintiff’s deprivation of rights under the Constitution.”                                   Doe,

649 F.2d at 145.

¶33           As Doe and Yvonne L. demonstrate, when applied to the

unique facts of the foster care context, not much difference

exists between the “deliberate indifference” and “professional

judgment” standards.             Yvonne L., 959 F.2d at 894 (“To the extent

there    is   a    difference         in    the     standards,    we       agree      with    the

Seventh Circuit that the Youngberg standard applies.”).                                      As a

result, we do not find it particularly helpful to label this

standard of conduct “deliberate indifference” or “professional

judgment.”

¶34           Applying this standard to the facts of this case, we

reverse the trial court’s grant of summary judgment.                               On remand,

the court must consider whether, under the standard articulated


                                               23
today, undisputed material facts permit the court to conclude,

as a matter of law, that defendant social workers acted with

deliberate    indifference     sufficient      to   impose    responsibility

either for the decision to place Michael in the Shelter or for

the decision to continue the placement.

                                     IV.

¶35       For the reasons described above, we vacate that part

of the court of appeals’ opinion set out in paragraphs twenty-

two through thirty and approve the remainder of the opinion,

reverse the trial court’s grant of summary judgment to these

defendants    with   regard   to   the   §   1983   claim,   and   remand   for

further proceedings consistent with this opinion.



                               ____________________________________
                               Ruth V. McGregor, Vice Chief Justice

CONCURRING:


__________________________________
Charles E. Jones, Chief Justice


__________________________________
Rebecca White Berch, Justice


__________________________________
Michael D. Ryan, Justice


__________________________________
Andrew D. Hurwitz, Justice




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