FILED

NOT FOR PUBLICATION

FEB 26 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA DAVIS, as Personal No. 18-35924 Representative of the Estate of G.B., deceased, D.C. No. 2:17-cv-00062-SMJ

Plaintiff-Appellant,

MEMORANDUM*

v.

WASHINGTON STATE DEPARTMENT

OF SOCIAL AND HEALTH SERVICES;

et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Argued and Submitted February 3, 2020 Seattle, Washington

Before: M. SMITH, N.R. SMITH, and BRESS, Circuit Judges.

Barbara Davis, personal representative of decedent G.B.’s estate, appeals the

district court’s grant of summary judgment for Sarah Oase, a social worker

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. supervisor with the Washington State Department of Social and Health Services,

based on its determination that Oase was entitled to qualified immunity. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

In determining whether a social worker is entitled to qualified immunity, we

must examine “(1) whether the facts, taken in the light most favorable to the party

asserting the injury, show that the social workers’ conduct violated a constitutional

right and (2) if so, whether the right was clearly established, such that a reasonable

official would understand that his conduct violated that right.” Cox v. Dep’t of Soc.

& Health Servs., 913 F.3d 831, 837 (9th Cir. 2019) (alterations adopted) (quoting

Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir. 2010)).

Under our precedents “[w]here children are in state custody, the Fourteenth

Amendment’s substantive due process clause protects their liberty interest ‘in

social worker supervision and protection from harm inflicted by a third party.’” Id.

(alteration adopted) (quoting Tamas, 630 F.3d at 842). We have held that this

liberty interest is violated when a social worker acts with deliberate indifference,

which requires a two-part showing: (1) “an objectively substantial risk of harm”

and (2) “‘that the officials were subjectively aware of facts from which an

inference could be drawn’ that such a risk existed and that ‘either the official

actually drew that inference or that a reasonable official would have been

2 compelled to draw that inference.’” Id. at 837–38 (quoting Tamas, 630 F.3d at

845). “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391

F.3d 1051, 1061 (9th Cir. 2004).

Davis argues that, because Oase violated department policies requiring a

request for courtesy supervision and a home study from the Spokane office in

conjunction with G.B.’s placement in his paternal aunt’s home, Oase was

deliberately indifferent to G.B.’s protected liberty interest. However, “[w]hether

the [social worker] violated a state law or an internal departmental policy is not the

focus of our inquiry.” Case v. Kitsap Cty. Sheriff’s Dep’t, 249 F.3d 921, 929 (9th

Cir. 2001). Rather, the focus is on whether there is a violation of federal statutory

or constitutional rights. See id.

Viewing the record in a light most favorable to Davis, there is insufficient

evidence to show that there was an objectively substantial risk that G.B. would be

physically harmed by his aunt. Oase supervised G.B.’s assigned social worker from

the time they began looking for permanent placement for G.B. in April 2014 until

the end of August 2014. While WSDSHS was looking for foster placement for

G.B., G.B.’s aunt offered permanent placement. The assigned social worker

reported conducting a walkthrough of the aunt’s home to determine its suitability

for G.B’s placement, and a background check was conducted. Shortly thereafter,

3 the dependency court, with the approval of the Hoh Tribe, ordered G.B. have an

extended visit at the home. The assigned social worker told Oase she would

continue to do health and safety visits with G.B. while he was in the aunt’s home.

Neither before nor during the time that Oase supervised the assigned social worker

were there any substantiated reports showing that G.B.’s aunt either harmed G.B.

or her own children. While questions were later raised about the quality of the

assigned social worker’s work, by this point Oase was no longer her supervisor.

Because these facts known at the time do not rise to the level of an objectively

substantial risk of harm to G.B., the high standard of deliberate indifference is not

met. Thus, Oase is entitled to qualified immunity.1

AFFIRMED.2

1 Because we determine there was no objectively substantial risk of harm, we need not decide WSDSHS’s contentions about the scope of the clearly established right and the applicability of Ashcroft v. Iqbal, 556 U.S. 662 (2009). 2 WSDSHS’s motion for the court to take judicial notice of two records filed by Davis in the companion case is denied. 4