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Click here for the full text of this decision FACTS:In late February 1999, Juana Olalde took her 7-week-old son, Eric, to the hospital with a fractured femur. When the nature of the injury did not match up to Olalde’s explanation of how the injury happened, workers from the Dallas division of Child Protective Services took Eric away from Olalde and placed him in foster care with the Clauds, a foster family. A week later, after Mrs. Claud left Eric on his stomach to sleep, the child suffocated and died. Olalde and Eric’s father, Nicholas Hernandez, sued several defendants, including the Texas Department of Protective and Regulatory Services, CPS and two CPS officials, Lois Lilly and Diane Purdin. It was revealed that the Clauds’ home was frequently described as being junky and smelling of cigarette smoke, that Mrs. Claud sent children in her care to day care in dirty diapers and with too few bottles, and that she had once brought one of her charges to CPS with a swollen jaw. Purdin learned of these incidents, and also heard that Mrs. Claud was using a device on the doorknob to keep the children locked in their room. Following an investigation, Mrs. Claud agreed not to use the device anymore. In January 1999, a month before Olalde’s child was placed with the Clauds, a case worker noticed bruising on two of the children staying with the Clauds. Lilly investigated the source of the bruising — which Mrs. Claud said she was surprised about — and ultimately concluded that they merely stemmed from climbing and running into things. Later that same month, an anonymous called to CPS said that Mrs. Claud would lock children in the closet while she worked on crafts. Lilly investigated that allegation, too, and concluded the alleged practice was unlikely. Through a series of motions, amendments and settlements, several defendants were removed from the suit. In November 2002, the district court denied Lilly’s and Purdin’s motion for summary judgment, based on official immunity. Under the district court’s qualified immunity inquiry, the constitutional right at issue was Eric’s substantive due process right, as a foster child, to personal security and reasonably safe living conditions. Under step one of qualified immunity, the district court then found such right was “clearly established” based on a “special relationship” between a foster child and the state. In step two of its analysis, the district court found the actions of Lilly and Purdin objectively unreasonable because the summary judgment evidence demonstrated that each social worker had knowledge of a risk of serious harm to any child placed in the Claud foster home. The district court found that the social workers’ good faith was sufficiently controverted by the parents’ evidence of deliberate indifference. Lilly and Purdin brought an interlocutory appeal challenging the denial. HOLDING:Reversed and remanded for entry of judgment. The court determines that it has jurisdiction over the appeal. In this case, the questions raised by both sides pertain to the application of the legal standard of qualified immunity. The central legal issues on appeal are whether the conduct the district court deemed sufficient to support its summary judgment rulings met the standards of “deliberate indifference” and “objective legal reasonableness.” As the court is addressing conclusions of law, the court concludes that the disputes of fact in this case do not deprive it of jurisdiction. Although qualified immunity is a two-step analysis, the threshold issue presented by a case arising under �1983 is whether a plaintiff has sufficiently alleged a deprivation of a right secured by the constitution. There is no dispute that Eric suffered a deprivation of a right to personal security. Nor is there a dispute over the state’s special relationship to protect Eric from violence. Thus, the only issue on appeal, the court rules, is whether the social workers’ conduct constituted deliberate indifference. To demonstrate a viable substantive due process claim, in cases involving government action, the plaintiff must show that the state acted in a manner that “shocks the conscience.” The court disagrees with Lilly and Purdin that they had to have actual knowledge of suffocation before they could be found to have acted with deliberate indifference. “[S]o long as the facts demonstrate that the risk of severe physical abuse to a foster child’s bodily integrity is obvious, a showing of deliberate indifference need not teeter on whether the very act of suffocation has been previously held to be unlawful. Stated differently, an obvious showing that state social workers exhibited a conscious disregard for known severe physical abuses in a state-licensed foster home by itself sufficiently demonstrates deliberate indifference to a child’s right to personal security.” The court then turns to whether the social workers were aware of facts from which an inference of deliberate indifference could be drawn. Examining Lilly’s conduct first, the court notes that actions or decisions that merely inept, erroneous, ineffective or negligent do not amount to deliberate indifference. Lilly was aware of two incidents involving the Clauds: the two incidents in January 1999. Contrary to the parents’ assertions, Lilly did not turn a blind eye to these complaints. She investigated them and concluded a danger was not presented. The court adds that the parents cannot prove their case merely by alleging that Lilly might have learned of more damaging information if she had conducted a more thorough inquiry. “While Lilly may arguably have been negligent in conducting an incomplete background investigation of the Clauds prior to placing Eric in the Clauds’ foster home, the very high standard of deliberate indifference cannot be inferred from negligence alone.” The court next examines Purdin’s conduct. Purdin was not Lilly’s supervisor and there was no evidence Purdin urged Lilly to terminate her investigation early. And thought Purdin was aware of two complaints of possible abuse — the swollen jaw and the locking the kids in the closet — the record shows that Purdin basically acted appropriately. “[W]hile the quality of state agency supervision over the care giving offered by the Clauds appears highly questionable, at best the plaintiffs have made out a case of negligence on the part of the state social workers.” The court finds the district court should have granted the workers’ summary judgment both on their claims of qualified immunity and official immunity, as there was no evidence of bad faith. OPINION:: Stewart, J.; Davis, Wiener and Stewart, JJ.

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