“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Sixth Circuit judge John Nalbandian argued in dissent that a county could not be held responsible for the repeated abuse and death of an African American child even though there was evidence that a county custom or informal policy of interviewing a child in front of her suspected abusers helped lead to continued abuse and the county’s failure to take action. The majority rejected Nalbandian’s view and ruled that the county could be liable in its September 2020 decision in Lipman v. Budish.
Ta’Naejah McCloud, an African American child, was born in Virginia in 2011.When she was 5, her mother Tequila Crump separated from her partner Shabrina McCloud, who also had custodial rights to Ta’Naejah. Crump moved with her daughter to Cleveland to live with Ursula Owens. Beginning in the fall, social workers and others employed by the Cuyahoga County Division of Children and Family Services (DCFS) received numerous reports from neighbors, medical providers, and others of “severe abuse by Crump and Owens” against Ta’Naejah. This included reports of severe “burning and beating Ta’Naejah,” which led to her hospitalization with third-degree burns and skin-graft surgery. A DCFS written policy provided that suspected abuse victims should not be interviewed in the presence of their suspected abusers, partly because of the increased danger of additional abuse that can result. DCFS workers nevertheless interviewed Ta’Naejah about what happened “in the presence of Crump and Owens – the two individuals suspected of committing the abuse.” Not surprisingly, the victim did not say anything blaming either of them, and she returned home.
Over the next five months, reports of severe abuse continued. DCFS personnel sometimes took Ta’Naejah to medical examinations that produced evidence suggesting abuse and interviewed her about them five times, but always in the presence of Crump and Owens, which led to her return to them. One day in mid-March, Crump and Owens “repeatedly struck Ta’Naejah,” then “threw her against the wall and dresser” and “to the ground,” and then “stepped on and repeatedly beat her.” She was later taken to a hospital emergency room, where she was diagnosed with a brain hemorrhage and died two days later. Crump and Owens were arrested and convicted of reckless homicide and murder.
After the criminal convictions, a federal civil suit was filed for damages by Ta’Naejah’s estate and by McCloud against Crump and Owens (who never responded), several DCFS caseworkers who were involved in the case, and DCFS and the county. The trial court granted a motion to dismiss the case against the governmental defendants, based primarily on the Supreme Court’s DeShaney decision, which ruled that in general, the government has no constitutional duty to “protect citizens from private harms.” The plaintiffs appealed.
All three Sixth Circuit judges who heard the case agreed that an exception recognized in DeShaney applied, at least as to the claims against the social workers: a situation where government officials act to “create or increase the danger of private harm.” Although they recognized that the final outcome would depend upon the facts as proven at later stages of the case, the court ruled based on past precedent that the plaintiffs had “adequately alleged a claim based on state-created danger.”
A 2-1 majority of the court also ruled that DCFS and Cuyahoga County could be held liable for the damages in the case. Despite the written policy against such interviews, the majority held, a jury “could reasonably infer” based on the facts alleged in the complaint that “DCFS and the county had a custom of allowing caseworkers to interview potential abuse victims in the presence of their abusers,” which happened in this case and could well have helped create or worsen the danger that occurred. Such municipal liability is very important in such cases to ensure that victims are adequately compensated for harm.
Trump judge Nalbandian partially dissented. He reluctantly agreed about individual liability, noting that the individual caseworkers had “failed to argue at least two issues that I think they would have prevailed on,” and argued that the complaint’s allegations were not enough to prove municipal liability under prior precedent. In particular, he relied on a previous Sixth Circuit case that held that “five instances of alleged misconduct” over a five-month period was “not enough to prove a custom.”
The majority responded, however, that the prior case relied on by Nalbandian did not apply. That case was decided on summary judgment after full discovery, the majority went on, and the only evidence the plaintiff had was what had happened to that one individual due to the actions of one individual officer, with evidence that the misconduct was due to the officer’s “personal circumstances” and not a “widespread custom.” In contrast, the majority continued, this case involves allegations of misconduct by “multiple caseworkers,” so a “reasonable factfinder could infer” that the violations extended beyond just this one case, and the plaintiffs “should be allowed to gather evidence through discovery” that could prove their claim of a custom or informal policy that helped lead to the child’s abuse and death.
As a result of the majority’s decision, the plaintiffs will have a chance to hold the county partly responsible for the tragic abuse that took Ta’Nejah’s life and the failure to act on it. If it had been up to Trump judge Nalbandian, however, there would have been no such opportunity.