Doe Ex Rel. Johnson v. South Carolina Department of Social Services

Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge TRAXLER wrote the majority opinion, in which Senior Judge HAMILTON joined. Judge WILKINSON wrote a separate opinion concurring in the judgment.

OPINION

Jane Doe, a minor child, and her adoptive parents, Gregory and Michelle Johnson, brought this action under 42 U.S.C.A. § 1983 (West 2003), against Debby Thompson (“Thompson”), an Adoption Specialist with the South Carolina Department of Social Services (“SCDSS”), alleging violations of their substantive due process rights under the Fourteenth Amendment to the United States Constitution. Plaintiffs brought additional state *166law claims against SCDSS under the South Carolina Tort Claims Act (“SCTCA”), see S.C.Code Ann. §§ 15-78-10 to 15-78-220 (1976), alleging gross negligence on the part of SCDSS and its employees. The district court granted summary judgment on the § 1983 claims in favor of Thompson based upon qualified immunity, and summary judgment to SCDSS based upon discretionary immunity. We affirm in part, vacate in part, and remand.

I.

On August 9, 1999, SCDSS received a report that four-year-old Jane Doe and her eight-year-old brother, Kameron Cox, were victims of sexual abuse. The report alleged that Kameron had been sexually abused by his mother and that Jane had been sexually abused by her mother’s boyfriend and her maternal grandfather. The biological father of the children was incarcerated in another state.

Upon receipt of the report, SCDSS officials took the children into emergency protective custody. During the subsequent investigation, Kameron claimed that his mother had sexually abused him, and denied knowledge of anyone sexually abusing Jane. Jane’s mother denied abuse but reported that “Kameron had played with [Janej’s private but she told him not to do it anymore.” J.A. 479. Ultimately, the sexual abuse assessments and medical examinations were inconclusive as to whether the children had been sexually abused. However, the South Carolina Family Court found physical neglect and granted SCDSS temporary custody of the children. No findings were made regarding the sexual abuse allegations. Physical custody of the children was initially transferred to a maternal aunt, but she relinquished the children to SCDSS’s legal custody in July 2000. They were placed in a group home until September 2000 when they were moved to their first state-approved foster home.

On June 18, 2001, Joy Bennett, the children’s therapist, reported that Kameron had become increasingly angry and depressed at his inability to return to his mother’s home. She stated that he posed a threat to himself and to Jane, and she recommended psychiatric hospitalization. However, she also recommended that, in order to maintain the bond between Kameron and Jane, the two ultimately should continue to be placed together “if this c[ould] be done safely” for Jane. J.A. 436. According to the psychiatric records, Kameron had a history of depression, suicidal and homicidal thoughts, and had become increasingly aggressive and hostile toward Jane. Kameron blamed Jane for their being in foster care “because she made statements that [their] mother, stepfather, and maternal grandfather [had] sexually molested her,” but Kameron “d[id] not believe her allegations.” J.A. 536. The psychiatric records also included a history of sexual experimentation by Kameron and Jane with each other, possible sexual abuse of the children, and possible intergenerational incest.

On May 30, 2001, the defendant Debby Thompson, an employee of SCDSS, was assigned as the Adoption Specialist for the children. On July 5, 2001, Kameron was discharged from the hospital and placed in a foster home separate from Jane. Thompson began visiting the children later that month, but Kameron’s threats to Jane necessitated postponement of recruitment efforts for a joint adoption of the siblings “until a determination of the appropriateness of an adoptive placement of [Jane] and Kameron together c[ould] be made.” J.A. 493. On August 22, 2001, Bennett advised Thompson that Kameron “ha[d] been a danger to [Jane] and she should be *167protected,” but that Bennett had “realistic hope that Kameron c[ould] deal with his emotions and be safely reunited with her.” J.A. 439. She also noted that Jane “show[ed] some signs of sexual abuse including ... a history of trying to sneak into Kameron’s bed, probably for comfort through sexual contact.” J.A. 440. Although the exact history of sexual abuse was unclear, Bennett noted that it was “very likely that they ha[d] engaged in inappropriate sexual encounters with adults and with each other.” J.A. 440. During this period, Jane also began to exhibit acting-out behaviors of a sexual nature, including overly affectionate behavior towards boys and men, as well as anger and aggressiveness when she was frustrated.

On November 26, 2001, Jane was placed in foster care with Bill and Pam Hamerick, where she could be seen by Kameron’s therapist, Titsa M. Flesch, and have sibling visits with Kameron, including some overnight visits on weekends and holidays. On September 9, 2002, Kameron was placed in the Hamericks’ home as well. By this time, SCDSS had filed an action in family court seeking to legally terminate the parental rights of the biological parents, in order to pursue a joint adoption of the siblings. Following a contested proceeding, the mother voluntarily relinquished her parental rights, and the parental rights of the father were judicially terminated. The family court granted “[cjustody of the minor children ... to [SCDSS] with all rights of guardianship, placement, care and supervision, including the authority to approve medical treatment or educational plans, to secure placement for the minor children and the sole authority to consent to any adoption, with the authority to seek such routine and emergency medical care as [SCDSS] deems necessary and in the best interests of said minor children.” J.A. 316.

Plaintiffs Gregory and Michelle Johnson completed an application for adoption in May 2002. The Johnsons expressed their understanding that the “children [we]re in the system because of abuse, neglect, etc.,” and they stated that they “fully underst[oo]d the therapy issues.” J.A. 673. They were willing to accept a child or children (including a sibling group) with “mild/treatable” sexual abuse, J.A. 673, but not a child who was “sexually aggressive” towards other children, J.A. 672. In January 2003, Thompson presented a background summary on Kameron and Jane to the Johnsons. Thompson claims that the summary contained all of the information available to her about the children, including the allegations that they had been sexually abused. It stated that the children had been removed from the birth home for allegations of sexual abuse but that Jane had been inconsistent in her reports of abuse, alternatively naming her birth mother, Kameron, her maternal grandfather, and her mother’s boyfriend as having been sexually inappropriate or abusive toward her. Kameron had also been inconsistent at times, both denying and admitting inappropriate contact with his mother. He denied knowledge of any inappropriate contact between Jane and the adults. In the end, the Johnsons were advised that SCDSS had been unable to substantiate or rule out sexual abuse of either child. However, the summary represented that “[tjhere ha[d] been no reports of any sexually inappropriate behavior from Kameron since entering care” and that “[p]art of his therapy ha[d] been to insure that he understands boundaries, good touch-bad touch rules and appropriate social interactions.” J.A. 280 (emphasis added).

On February 28, 2003, Jane and Kameron were placed with the Johnsons for prospective adoption. Approximately four *168weeks after the placement, however, the Johnsons chose not to proceed with the adoption of Kameron, and he was removed from the Johnsons’ home. Among other things, Kameron was believed to have inappropriately touched the John-sons’ biological son. Jane remained with the Johnsons though, and her adoption was finalized on November 6, 2003.

Approximately one year later, Kameron admitted to his therapist that he had sexually abused Jane prior to SCDSS’s removal of them from the birth home. Kameron also claimed to have sexually abused seven foster children while in foster care, both before and after his placement with the Johnsons. Kameron’s social worker notified the Johnsons that Kameron had claimed to have had an inappropriate sexual relationship with Jane prior to SCDSS’s taking custody of them, but Jane told her therapist “that Kameron was lying and that they were still having ‘sex’ until they moved in with [the Johnsons].” J.A. 872. She also claimed that she told Thompson and Flesch that Kameron had sexually abused her while she was with the Hamericks and at other foster homes that she could not recall, although she was inconsistent as to whom she told first. According to Jane, Thompson “told her not to tell anyone or they would never adopt her.” J.A. 872. Thompson denies that Jane made any such report to her. She claims that she received no reports of any inappropriate behavior or contact between Jane and Kameron occurring during her relationship with Jane, and represents that she never observed any behavior which would have led her to believe that Jane and Kameron were having sexual or other inappropriate contact at that time.

Since the disclosure, Jane’s behavior has significantly deteriorated. According to the Johnsons, she cannot be left alone or trusted, they are unable to obtain any help supervising her, and they cannot leave her alone with other children for fear that she will act out sexually. Among other things, she is physically and sexually aggressive, violent towards the Johnsons and their biological children, and abusive to animals. Her behavior has necessitated therapeutic placements outside the home, and further care and treatment is believed to be indicated.

The Johnsons subsequently filed suit on their own behalf, and as parents and guardians of Jane, against Thompson. They alleged under § 1983 that Thompson violated Jane’s substantive due process rights under the Fourteenth Amendment by placing her in foster care settings with Kameron knowing that Kameron was sexually abusive toward Jane. The Johnsons alleged that Thompson also violated their substantive due process rights by failing to fully disclose the sexual history of Jane and Kameron prior to Jane’s adoption. The Johnsons filed a second suit in state court against SCDSS, pursuant to the SCTCA, alleging numerous state law claims, including a claim of gross negligence on the part of SCDSS employees in the placement and adoption process. This action was removed to the district court and consolidated with the federal action.1

*169Thompson moved for summary judgment, claiming that she was entitled to qualified immunity from suit for the § 1983 claims. SCDSS also moved for summary judgment, claiming that it was entitled to discretionary immunity from suit for the state law claims under the SCTCA. The district court granted the defendants’ respective motions for summary judgment on all claims, and this appeal followed. We review the district court’s decision to grant summary judgment to the defendants de novo. See Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir.2007).

II.

A.

Qualified immunity from § 1983 claims “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). It is intended to “balance[] two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id.

Claims to qualified immunity present a two-pronged inquiry. The governmental official will be granted immunity unless (1) “the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right,” Pearson, 129 S.Ct. at 815-16, and (2) “the right at issue was ‘clearly established’ at the time of [the] alleged misconduct,” id. at 816. However, it is within our discretion to decide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 129 S.Ct. at 818; see Hunsberger v. Wood, 570 F.3d 546, 552 (4th Cir.2009).2

This case involves the important issue of whether and under what circumstances a child who has been involuntarily removed from her home by state social workers and knowingly placed in a dangerous foster care environment may state a claim for damages under § 1983. Because we believe this case will clarify and elaborate upon our prior jurisprudence in important and necessary ways, we will first address the constitutional rights of foster children in such circumstances prior to addressing whether any such rights were clearly established at the time of the alleged wrongdoing. See Pearson, 129 S.Ct. at 818 (confirming that the Saucier “two-step procedure promotes the development of constitutional precedent and is *170especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable”).

B.

The Due Process Clause of the Fourteenth Amendment bars States from “depriving] any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. The Clause “guarantees more than fair process.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) (internal quotation marks omitted). It “also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id. (internal quotation marks omitted); see County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (The Due Process Clause “cover[s] a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them.” (internal quotation marks omitted)); Love v. Pepersack, 47 F.3d 120, 122 (4th Cir.1995) (“Substantive due process is a far narrower concept than procedural; it is an absolute check on certain governmental actions notwithstanding the fairness of the procedures used to implement them.” (internal quotation marks omitted)).

Here, Jane claims that Thompson violated her substantive due process right to reasonable safety and security when Thompson placed Kameron with Jane in foster care, knowing that Kameron was sexually abusing Jane. At a minimum, she asserts that Thompson knew or should have known that the sexual abuse was or probably would be continuing and was deliberately indifferent to the risk Kameron posed to her. The district court rejected the claim, however, holding that Jane had no substantive due process right to affirmative state protection from violence inflicted at the hands of Kameron, a private actor, in the foster care setting. Accordingly, it held that Thompson was entitled to qualified immunity from suit.

1.

As a general rule, “the Due Process Clause works only as a negative prohibition on state action,” Pinder v. Johnson, 54 F.3d 1169, 1174 (4th Cir.1995) (en banc), and the state’s “failure to protect an individual against private violence simply does not constitute a violation of [it],” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). “Its purpose was to protect the people from the State, not to ensure that the State protected them from each other.” Id. at 196, 109 S.Ct. 998. Thus, it “serves ‘as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security,’ ” Patten v. Nichols, 274 F.3d 829, 836 (4th Cir.2001) (quoting DeShaney, 489 U.S. at 195, 109 S.Ct. 998), and “does not require governmental actors to affirmatively protect life, liberty, or property against intrusion by private third par ties,” Pinder, 54 F.3d at 1174 (emphasis added); see Patten, 274 F.3d at 836 (“[T]he clause ‘confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.’ ” (quoting DeShaney, 489 U.S. at 196, 109 S.Ct. 998)). And, because “the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to *171provide them.” DeShaney, 489 U.S. at 196-97, 109 S.Ct. 998.

In DeShaney, the state’s Department of Social Services received several reports of suspected physical abuse of a child, Joshua DeShaney, while he was in the custody of his father. The state failed to intervene and Joshua was eventually beaten and permanently injured by his father. Relying upon the Supreme Court’s decisions in Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that a state’s “deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983” for violation of the Eighth Amendment), and Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (employing the Fourteenth Amendment to hold that disabled persons who are involuntarily committed to a state hospital retain “constitutionally protected [liberty] interests in conditions of reason able care and safety”), Joshua and his mother sued the department and its employees under § 1983, alleging that they had similarly “deprived Joshua of his liberty interest without due process of law ... by failing to intervene to protect him against a risk of violence at his father’s hands of which they knew or should have known.” DeShaney, 489 U.S. at 193, 109 S.Ct. 998.

Although noting that “in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals,” id. at 198, 109 S.Ct. 998, the DeShaney Court held that the defendants owed no such duty to Joshua. This was because in Estelle and Youngberg the affirmative duty arose not from knowledge of any particular danger or an intent to help, but rather from the state’s act of taking the individual into its custody and care.

Taken together, [Estelle and Young-berg ] stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.

Id. at 199-200, 109 S.Ct. 998 (citations and footnote omitted); see Patten, 274 F.3d at 841 (“[T]he Supreme Court in DeShaney made it clear that an exception to the general no-duty-to-act rule arises only if the state takes an individual into custody; if there is no custodial relationship, then the state has no duty to protect.”); Pinder, 54 F.3d at 1175 (“Some sort of confinement of the injured party — incarceration, institutionalization, or the like — is needed to trigger the affirmative duty [to protect]. This Court has consistently read DeShaney to require a custodial context before any affirmative duty can arise under the Due Process Clause.” (citation omitted)). Thus, “[i]n the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — -which is the ‘deprivation of liberty" triggering the protections of the Due Process Clause, not *172[the State’s] failure to act to protect his liberty interests against harms inflicted by other means.” DeShaney, 489 U.S. at 200, 109 S.Ct. 998.

Joshua could not state a substantive due process claim against the state officials because “the harms [he] suffered occurred not while he was in the State’s custody, but while he was in the custody of his natural father, who was in no sense a state actor.” Id. at 201, 109 S.Ct. 998. Furthermore, “[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.” Id.

2.

The issue before us today, however, is whether a child who has been involuntarily removed from her home by state officials for abuse or neglect, placed in the legal custody of the SCDSS, and transferred to state-approved foster care by SCDSS officials can state a substantive due process claim against a state social worker for violations of her fundamental right to personal safety and security analogous to that recognized in Estelle for prisoners and in Youngberg for the involuntarily committed and, if so, what degree of culpability must be demonstrated to subject the social worker to liability under § 1983.

As the DeShaney Court noted, several circuit courts had already “held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents.” Id.; see, e.g., Taylor v. Ledbetter, 818 F.2d 791, 797 (11th Cir.1987) (en banc) (holding that a child involuntarily placed in a foster home may state a cause of action under § 1983 for the state official’s deliberate indifference to her right to safety); Doe v. New York City Dep’t. of Soc. Servs., 649 F.2d 134, 145 (2d Cir.1981) (holding that “[d]efendants may be held liable under § 1983 [for a child’s injuries suffered during foster care] if they ... exhibited deliberate indifference to a known injury, a known risk, or a specific duty.”). In such cases, unlike in DeShaney, there would not be a mere “failure to act” on the part of a state official to remove a child from a family member, but rather the exercise of affirmative state action in the form of involuntary removal and placement of the child in a dangerous, foster care environment, i.e., a “restraint of personal liberty triggering the protections of the Due Process Clause.” DeShaney, 489 U.S. at 200, 109 S.Ct. 998. The DeShaney Court, however, expressly declined to decide the question because, unlike in these situations, the state had returned Joshua to the custody of his father. See id. at 201 n. 9, 109 S.Ct. 998 (declining to decide whether a substantive due process claim could have been brought “[h]ad 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”).

Since DeShaney, additional circuits have also recognized the right of a foster child to bring a substantive due process claim where state officials have taken the affirmative action of involuntarily removing the child from his home and placing him in a known, dangerous foster care environment, in deliberate indifference to the child’s right to reasonable safety and security. In K.H. ex rel. Murphy v. Morgan, 914 F.2d 846 (7th Cir.1990), for example, the court distinguished DeShaney and applied a custodial exception to recognize a due process claim where a child was involuntarily removed from the custody of his parents and placed by child welfare work*173ers with a foster parent the state knew or suspected to be a child abuser:

This is not a “positive liberties” case, like DeSkaney, where the question was whether the Constitution entitles a child to governmental protection against physical abuse by his parents or by other private persons not acting under the direction of the state. The Supreme Court agreed with this court that there is no such entitlement. Here, in contrast, the state removed a child from the custody of her parents; and having done so, it could no more place her in a position of danger, deliberately and without justification, without thereby violating her rights under the due process clause of the Fourteenth Amendment than it could deliberately and without justification place a criminal defendant in a jail or prison in which his health or safety would be endangered, without violating his rights either under the cruel and unusual punishments clause of the Eighth Amendment (held applicable to the states through the Fourteenth Amendment) if he was a convicted prisoner, or the due process clause if he was awaiting trial. In either case the state would be a doer of harm rather than merely an inept rescuer, just as the Roman state was a doer of harm when it threw Christians to lions.

Id. at 848-49 (citations omitted); see Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir.1997) (“[Ojnce the State removes a child from her natural parents, it assumes at least a rudimentary duty of safekeeping. It cannot place a child in custody with foster parents it knows are incompetent or dangerous.” (citation omitted)); see also Nicini v. Morra, 212 F.3d 798, 808 (3d Cir.2000) (en banc) (“[Wjhen [a] state places a child in state-regulated foster care, the state has entered into a special relationship with that child which imposes upon it certain affirmative duties” which, if attended to in a manner deliberately indifferent to the safety of the child, can give rise to liability under § 1983); Norfleet v. Arkansas Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir.1993) (“[A] special custodial relationship ... was created by the state when it took [a child] from his caregiver and placed him in foster care” where the “child los[t] his freedom and ability to make decisions about his own welfare, and must rely on the state to take care of his needs.”); Yvonne L. v. New Mexico Dep’t of Human Servs., 959 F.2d 883, 893 (10th Cir.1992) (“[Cjhildren in the custody of a state ha[ve] a constitutional right to be reasonably safe from harm” and “if the per sons responsible place children in a foster home or institution that they know or suspect to be dangerous to the children they incur liability if the harm occurs.”); Meador v. Cabinet for Human Res., 902 F.2d 474, 476 (6th Cir.1990) (holding that substantive “due process extends the right to be free from the infliction of unnecessary harm to children in state-regulated foster homes” where the complaint alleged that the state officials “were ‘deliberately indifferent’ to reports of abuse” in the foster home).

3.

Relying upon a trilogy of cases discussed below, Thompson contends that our circuit, in contrast to our sister circuits, has answered DeShaney’s unresolved question in the negative and would not recognize such a claim of deliberate indifference in the foster care placement, and the district court “rejected] plaintiffs’ attempt to establish a custodial or foster care exception to the DeShaney rule,” even in the limited context that we face today. J.A. 1004. While we agree with Thompson’s alternative contention that any such right was not clearly established at the time she made her placement deci*174sions in this case, we disagree that they foreclose our recognition of such a right in appropriate cases.

In Milburn v. Anne Arundel County Department of Social Services, 871 F.2d 474 (4th Cir.1989), a minor child who had been voluntarily placed in foster care by his parents sustained significant injuries which were reported by medical providers to social services officials as suspected child abuse. After the fourth such incident, the officials intervened and removed the child from the foster home. Applying DeShaney, we held that the child had no substantive due process right to affirmative protection by the state. First, the state “by the affirmative exercise of its power had not restrained the [child’s] liberty; he was voluntarily placed in the foster home by his natural parents.” Id. at 476 (emphasis added). In addition, “the injuries to the [child] did not occur while he was in the custody of the State of Maryland, [but] rather while he was in the custody of his foster parents, who were not state actors.” Id. There being no affirmative exercise of the state’s power to restrain the child’s liberty in the first instance, there could be no corresponding duty or responsibility on the part of the state officials to protect the child from harm by private parties. See K.H., 914 F.2d at 849 (noting our decision in Mil-bum to be “[Consistent with [its custodial] distinction,” as Milbum “emphasize[d] the state’s lack of responsibility for a child’s voluntary placement by the natural parents in an abusing private foster home”); cf. Walton v. Alexander, 44 F.3d 1297, 1303-04 (5th Cir.1995) (en banc) (“Since DeShaney was decided ..., we have followed its language strictly and have held consistently that only when the state, by its affirmative exercise of power, has custody over an individual involuntarily or against his will does a ‘special relationship’ exist between the individual and the state.”).

In Weller v. Department of Social Services, 901 F.2d 387 (4th Cir.1990), we held that a foster child could not maintain a substantive due process claim against state agents who had affirmatively removed the child from the home of his natural father, upon allegations of abuse, where the child was immediately transferred to the custody of his natural grandmother and then to his natural mother. At no point was the child in foster care, nor was there any prior indication that the family members to whom the child was transferred posed any danger to the child. We agreed “that DeShaney [was] applicable to the extent that Maryland had no duty to provide [the child] with protective services”