Schwartz et al v. Booker et al

Filing 400

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. The Court ORDERS as follows: 1. Defendants' Motion (ECF No. 390 ) is GRANTED IN PART AND DENIED IN PART, as set forth above; 2. The stay (ECF No. 374 ) is LIFTED; and 3. The parties are DIRECTED to jointly contact the chambers of U.S. Magistrate Judge Maritza Dominguez Braswell by no later than July 29, 2024 for the purpose of setting a status conference, or such other proceeding as Judge Dominguez Braswell deems appropriate, to facilitate moving this case forward. SO ORDERED by Judge William J. Martinez on 07/25/2024.(jrobe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-0915-WJM-MDB
MELISSA R. SCHWARTZ, as personal representative and administrator of the Estate of
Chandler Grafner, deceased;
CHRISTINA GRAFNER, and
JOSHUA NORRIS,
Plaintiffs,
v.
MARGARET BOOKER, in her individual capacity, and
MARY PEAGLER, in her individual capacity,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In this civil rights action, Plaintiffs Melissa Schwartz, as personal representative
and administrator of the estate of Chandler Grafner (“Chandler” or “C.G.”), Christina
Grafner (“Ms. Grafner”), and Joshua Norris (collectively, “Plaintiffs”), bring claims under
42 U.S.C. § 1983 against Defendants Margaret Booker and Mary Peagler (jointly,
“Defendants”) in their individual capacities arising out of Chandler’s death.
Before the Court is Defendants’ Motion for Summary Judgment (“Motion”). (ECF
No. 390.) Plaintiffs filed a response in opposition. 1 (ECF No. 392.) Defendants filed a
reply. (ECF No. 398.) For the following reasons, the Motion is granted in part and

The Court is very displeased that Plaintiffs used lengthy, single-spaced footnotes (see,
e.g., ECF No. 392 at 18 n.20, 21–23 n.23, 32 n.28), and in doing so, exceeded the Court’s 40page limitation for their response brief (ECF No. 386).
1

denied in part.
I. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence and
all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. MATERIAL FACTS 2

3

On or about March 28, 2006, Jefferson County (Colorado) Division of Children,
The following factual summary is based on the parties’ briefs on the Motion and
documents submitted in support thereof. These facts are undisputed unless attributed to a party
or source. All citations to docketed materials are to the page number in the CM/ECF header,
which sometimes differs from a document’s internal pagination.
2

As Defendants emphasize in their reply, Plaintiffs’ Statement of Additional Disputed
Facts contains numerous legal conclusions asserted as factual allegations. For example, and
though this list is not exhaustive, Plaintiffs state that the State placed Chandler in “kinship care
placement” (ECF No. 392 at 8 ¶ 1); “kinship care is a form or subset of ‘foster care’” (Id. ¶ 3); the
State “retained ‘full and complete responsibility over all of the aspects of C.G.’s safety, food,
clothing, health, et cetera’” (id. ¶ 7); the State “maintained a special relationship with C.G. up
3

2

Youth and Families (“JCDCYF”) filed a Verified Petition in Dependency or Neglect.
According to that Petition, on March 26, 2006, Christina Grafner, the biological mother
of Chandler Grafner, was arrested by the Wheat Ridge Police Department on a warrant
for child abuse. It was reported that at the time of her arrest, Ms. Grafner was found in
her truck which was parked in the middle of a street blocking traffic. Two children were
with her but were not in car seats, did not have shoes on, and appeared to be
neglected, thin, and unkempt. Ms. Grafner appeared to be high on drugs.
On March 28, 2006, the Jefferson County District Court placed Chandler and his
half-brother, Dominic, 4 in the protective custody of JCDCYF. (ECF No. 390-2 (signed
March 28, 2006).) In conjunction with that order, the Jefferson County District Court
also granted temporary legal custody of Chandler and Dominic to JCDCYF. (ECF No.
390-3 (signed March 30, 2006).) At the time the State removed Chandler from Ms.
Grafner’s home in March 2006, he was only six years old. Chandler shared no
biological relationship with Jon Phillips, Dominic’s father. However, throughout the span
of Chandler’s dependency and neglect case, the State repeatedly referred to Phillips as
Chandler’s “psychological father” and represented to the Jefferson County District Court
that Phillips was his father.
The parties dispute whether Jefferson County had legal custody over Chandler
during the relevant period. According to Defendants, legal custody remained with
Jefferson County until May 29, 2006. (ECF No. 390 at 4 ¶ 6 (citing ECF No. 390-4

until his death because had C.G. wanted to leave [Jon] Phillips’ house at any time, he would not
have been able to” (id. ¶ 13). The Court takes a dim view of Plaintiffs’ attempt to insert legal
conclusions into a section clearly reserved for factual statements only.
4

Ms. Grafner is Dominic’s mother. (ECF No. 390 at 1.)

3

(Jefferson County District Court order, dated May 29, 2006, granting temporary legal
custody of Chandler to Phillips)).) On May 29, 2006, the Jefferson County District Court
entered another order transferring temporary legal custody of Chandler and Dominic to
Phillips. (ECF No. 390 at 4 ¶ 7 (citing ECF No. 390-4).) Temporary legal (and physical)
custody of Chandler remained with Phillips until January 11, 2007. (ECF No. 390 at 4 ¶
8 (citing ECF No. 390-5).)
On January 11, 2007, in open court, the Jefferson County District Court made the
temporary order of legal custody of May 29, 2006 permanent; the order was signed on
January 25, 2007. (ECF No. 390 at 4 ¶ 9 (citing ECF No. 390-5).) The order specified
that the Jefferson County District Court was allocating full parental responsibilities for
Chandler and Dominic to Phillips. (Id.; see also ECF No. 390-6 (protective custody
order).) The order further stated that the Jefferson County District Court allocated sole
decision-making rights and responsibilities with respect to Chandler and Dominic to
Phillips. (ECF No. 390 at 5 ¶ 10 (citing ECF Nos. 390-5, 390-6).) The January 11, 2007
order formally relieved the JCDCYF “of the protective supervision and monitoring” of
Chandler and Dominic, “and from any further duty to provide services to the parties,
effective today.” (ECF No. 390 at 5 ¶ 11 (citing ECF No. 390-5 at 4 ¶ 9).)
Plaintiffs deny the foregoing statements concerning the Jefferson County District
Court’s orders and their effects and, by contrast, assert that legal custody remained with
Jefferson County until the time of Chandler’s death in May 2007. (ECF No. 392 at 5 ¶ 6
(citing Matter of J.N. In Int. of C.G., 2022 COA 69, ¶¶ 1, 18-19, 35-36, 41; 2022 WL
2349168, at *5; ECF No. 392-1 (Jefferson County District Court order).) Plaintiffs state
that “any order that purported to transfer custody of C.G. away from JCDCYF (that is,

4

the State) between March 28, 2006, and the time of his death on May 6, 2007, was held
to be entered in violation of Plaintiff Joshua Norris’s[ 5] due process rights, is void ab
initio, and was vacated.” (Id.) They rely on the August 31, 2022 Jefferson County
District Court order that vacated the following: the May 29, 2006 order transferring
temporary legal custody of the child from the Division to Phillips, with protective
supervision by the Division; the November 1, 2006 judgment adjudicating the child
dependent or neglected by default as to father, who was identified as John Doe; the
January 25, 2007 judgment allocating parental responsibilities to Phillips and relieving
the Division of protective supervision; and the February 7, 2007 judgment terminating
the dependency and neglect proceeding. (ECF No. 392-1.)
For support, Plaintiffs rely on their expert, Wade Livingston, who “testified that
C.G. was in the custody of the State until January 11, 2007.” (Id.) They also state that
the Jefferson County District Court “did not even sign the Allocation of Parental Rights
(“APR”) Order until January 25, 2007, and [the] same was not signed nunc pro tunc.”
(Id.) Additionally, Plaintiffs state that the “Jefferson County District Court did not even
actually terminate the Dependency and Neglect (“D&N”) case involving C.G. until
February 7, 2007.” (Id. (citing ECF No. 393-8 (order terminating dependency or neglect
proceedings, signed February 7, 2007)).)
Further, Plaintiffs contend that the State placed Chandler in what they refer to as
kinship care with Phillips, Ms. Grafner’s parental rights to Chandler were never
terminated, and she never regained custody of him prior to his death. (Id.) Finally,
Plaintiffs state that “while C.G. lived with Phillips, the State retained full and complete
5

Norris is Chandler’s biological father.

5

responsibility over all of the aspects of C.G.’s safety, food, clothing, health, et cetera.”
(Id. (internal quotation marks omitted).)
Plaintiffs assert that the “State maintained a special relationship with C.G. up
until his death because C.G. had absolutely no freedom to act on his own behalf from
the time the State removed him from his mother’s home.” (ECF No. 392 at 10 ¶ 12.)
However, Defendants dispute this statement, responding that there is “no evidence that
C.G. lacked freedom to act on his own behalf because the state was exercising any
control or authority over him. Rather, . . . C.G. had no freedom to act because he was a
six-year-old child.” (ECF No. 398 at 3 ¶ 12.) Specifically, Defendants state that the
evidence Plaintiffs rely on supports Defendants’ version of the facts because Plaintiffs’
witness “never says anything about state-imposed limitations on Chandler’s freedom of
movement because there were none”; rather, Chandler was not free to leave Phillips’s
home because of his age. (Id.)
Defendants were employed by Denver Department of Human Services (“DDHS”).
The Amended Complaint (“AC”) (ECF No. 82) does not allege any involvement of
DDHS with Chandler until January 17, 2007. Chandler tragically died on May 6, 2007.
On January 17, 2007, a principal at Holm Elementary School (“Holm”),
Chandler’s school, reported that there was a risk of abuse to Chandler. (ECF No. 392
at 12 ¶ 23; ECF No. 398 at 5 ¶ 23.) Upon acceptance of the child abuse referral, DDHS
had an obligation to review six prior TRAILS 6 reports involving Chandler. DDHS
workers did not make contact with Chandler within 24 hours of the Holm report of

Plaintiffs explain that “TRAILS is a statewide computer database used by Colorado
Department of Human Services (“CDHS”) and its county arms . . . to record child welfare or
child abuse and neglect information.” (ECF No. 392 at 3 n.6.)
6

6

suspected abuse on January 17, 2007. By January 22, 2007, Booker acknowledged
bruises or marks on Chandler, and Peagler acknowledged a bruise.
Phillips executed a safety plan stating he would not execute physical discipline
on Chandler. DDHS allowed Chandler to return home with Phillips rather than removing
him from Phillips’s home; Peagler had the authority to prevent Chandler from going
home with Phillips on January 22, 2007 had she seen the need to do so. Defendants
admit that they were not presented with a situation which they believed, in their
professional judgment, prevented Chandler from returning home.
Defendants state that on or about April 17, 2007, DDHS received a call from
Chandler’s school alleging not that Chandler was being abused, but rather, that he had
not been in school since March 9, 2007. (ECF No. 390 at 5 ¶ 15.) Plaintiffs deny this
statement, and instead maintain that a report of child abuse was made to DDHS on
April 17, 2007 that should have been investigated. (ECF No. 392 at 8 ¶ 15.)
Defendants admit they did not rely upon any court orders whatsoever when
making decisions with respect to reports of Phillips abusing Chandler in 2007.
Defendants admit that if a child is taken from its biological parent and taken into the
custody of the State, the State has an obligation to ensure the well-being of that child,
ensure the child is not placed into an unsafe environment, and to remove the child from
an abusive environment if one occurs after placement. Booker believed she knew and
Peagler indicated that she did not know that there was an open case in TRAILS in
Jefferson County regarding Chandler when they were making decisions about him. A
case remained open in TRAILS until May 7, 2007, after Chandler’s death.
The Jefferson County District Court’s orders granting Phillips temporary legal

7

custody (ECF Nos. 390-4, 390-5, 390-6) were vacated by the Jefferson County District
Court on August 31, 2022. (ECF No. 392-1.)
III. PROCEDURAL HISTORY
On April 21, 2009, Plaintiffs filed this civil action against Defendants Jefferson
County Department of Human Services (“JCDHS”), DDHS, Margaret Booker, in her
individual and official capacity, and Mary Peagler, in her individual and official capacity.
(ECF No. 1.) They brought several claims, including: 42 U.S.C. § 1983 claims against
JCDHS and DDHS for deliberate indifference and/or failure to exercise professional
judgment under the Fourteenth Amendment (Claims 1 and 2); § 1983 claims against
JCDHS and DDHS asserting liability under the danger creation theory (Claims 3 and 4);
§ 1983 municipal liability claims against Booker and Peagler (Claims 5 and 6); § 1983
claims for negligent supervision against JCDHS and DDHS (Claims 7 and 8); § 1983
claim for violation of Christina Grafner’s liberty interest in familial association and
privacy against JCDHS (Claim 9); and negligence and negligence per se resulting in
wrongful death claims against Booker and Peagler (Claims 10 and 11).
Following significant motion practice, 7 on May 16, 2011, the Court dismissed all
claims against JCDHS with prejudice, dismissed all claims against DDHS with
prejudice, and dismissed all claims against Booker and Peagler in their official
capacities with prejudice. (ECF No. 71.) On May 18, 2011, the Court held oral
argument on Booker and Peagler’s motion to reconsider the order denying the motion to
dismiss the claims against them individually. (ECF No. 73.)

The procedural history of this 15-year-old case is lengthy and complex, and the Court
only recounts here certain significant events for purposes of judicial economy.
7

8

On June 16, 2011, Plaintiffs filed the AC, alleging two claims under section 1983
for violation of Chandler’s substantive due process rights against both Defendants in
their individual capacities (Claims 5 and 6) and two claims for negligence and
negligence per se against both Defendants (Claims 10 and 11). 8 (ECF No. 82.) On
December 6, 2011, the Court issued an order denying Defendants’ motion to dismiss
the claims against them based on qualified immunity. (ECF No. 100.) Defendants
appealed that order to the Tenth Circuit on December 29, 2011 (ECF No. 101), and the
Court administratively closed this case pending disposition of their appeal (ECF No.
106).
On December 19, 2012, the Tenth Circuit affirmed the Court’s order denying
Defendants’ qualified immunity, Schwartz v. Booker, 702 F.3d 573 (10th Cir. 2012), and
the mandate issued on January 10, 2013. (ECF Nos. 107, 108.) Defendants filed
Answers to the AC. (ECF No. 121, 122.) The parties engaged in discovery for
approximately the next two years, and in 2014, the parties filed summary judgment
briefing. (ECF Nos. 226, 257.)
On June 8, 2014, Plaintiffs filed a Motion to Extend Deadline for Filing Dispositive
Motions. (ECF No. 224.) Plaintiffs informed the Court that they had recently filed
motions pursuant to Colorado Rule of Civil Procedure 60(b) in Jefferson County,
Colorado District Court, seeking to declare as void “almost all Orders and actions in

Plaintiffs’ filings note that the AC is amended as to Claims 5 and 6 only, ostensibly
reflecting that only claims against Booker and Peagler in their individual capacities remained
open to amendment after the Court’s order, explained above. (ECF No. 82 at 1.) Should
Plaintiffs ever file amended pleadings again before the undersigned, they are directed to file a
clean document that eliminates stale claims and only includes the claims currently at issue in
the case. The manner in which Plaintiffs filed the AC made it exceedingly difficult to discern the
remaining claims over ten years after the filing of the AC.
8

9

Chandler Grafner’s underlying Dependency and Neglect case.” (Id. at 2.) Plaintiffs’
Rule 56(d) Motion asked the Court to withhold ruling on Defendant’s Motion for
Summary Judgment until the Jefferson County Court has an opportunity to decide the
Rule 60(b) motions. (ECF No. 257.) Plaintiffs asked the Court to extend their
dispositive motions deadline until 21 days after Jefferson County ruled on their pending
Rule 60(b) motions. (Id. at 3.) On August 14, 2014, the Court issued an order delaying
ruling on Defendants’ motion for summary judgment until after the Jefferson County
District Court resolves Plaintiffs’ Rule 60(b) motions. (ECF No. 280.) The Court also
granted the parties’ joint motion to stay phase II of discovery. (ECF No. 284.)
On November 5, 2014, Plaintiffs filed a status report stating that the Jefferson
County District Court had denied their Rule 60(b) Motions on the grounds that Chandler
Grafner’s custody status was moot because he is deceased. (ECF Nos. 287-88.) In a
subsequent status report, filed on November 26, 2014, Plaintiffs informed the Court that
they had appealed the Jefferson County District Court’s denial of their Rule 60(b)
Motions. (ECF No. 289.) Given the ongoing, lengthy appeals process in state court, on
January 15, 2015, the Court administratively closed this action pending Plaintiffs’ appeal
of the denial of their Rule 60(b) motions. (ECF No. 292.)
Little to no activity occurred in this action until September 22, 2022, when
Plaintiffs filed their unopposed motion to reopen the case, explaining that the Colorado
Court of Appeals concluded that the orders that gave both legal and physical custody of
Chandler to Phillips were void ab initio. (ECF No. 301.) See Matter of J.N. In Int. of
C.G., 518 P.3d 788 (Colo. App. 2022). On October 4, 2022, the Court reopened the
case and set a status conference. (ECF Nos. 302, 304.) The Court conducted a status

10

conference on February 7, 2023, at which the Court struck all previously filed, years-old
dispositive motion briefing and directed the parties to participate in mediation. (ECF No.
311.)
On April 10, 2023, the parties participated in an unsuccessful mediation with
Retired Judge Leland Anderson. (ECF No. 316.) Thereafter, the parties filed fresh
summary judgment briefing. (ECF Nos. 328, 334, 345, 361, 368.) The United States
Magistrate Judge granted a stipulated motion to stay this action pending a ruling on the
Motion. (ECF No. 374.)
Given the poor quality of Plaintiffs’ briefing, the Court struck all summary
judgment briefing and allowed the parties to refile their summary judgment briefs and
exhibits. (ECF No. 386.) The Motion is now ripe for the Court’s review.
IV. ANALYSIS
A.

Section 1983 Claims 9
1.

Special Relationship
a.

Legal Framework

“Generally speaking, state officials are not liable under the Due Process Clause
for violence committed by third parties.” Garcia v. Patton, 2016 WL 879635, at *9 (D.
Colo. Mar. 8, 2016), aff’d sub nom. T.D. v. Patton, 868 F.3d 1209 (10th Cir. 2017) (citing
J.W. v. Utah, 647 F.3d 1006, 1011 (10th Cir. 2011)). The two exceptions to this general
rule are: when (1) “the state assumes control over an individual sufficient to trigger an
affirmative duty to provide protection to that individual,” id., also known as a “special
Defendants argue that “alternatively,” they are entitled to qualified immunity. (ECF No.
390 at 18.) However, given the Court’s finding that Defendants had no duty of protection toward
Chandler because there was no special relationship, the Court need not analyze whether
Defendants are alternatively entitled to qualified immunity.
9

11

relationship”; and (2) the state “created the danger that harmed the individual,” Armijo
ex rel. Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1260 (10th Cir. 1998), also
known as “danger creation.” 10
A special relationship is created when the state assumes control over an
individual sufficient to trigger an affirmative duty to provide protection. See Garcia,
2016 WL 879635, at *9 (citing J.W., 647 F.3d at 1011). “This includes when a state
places a child in foster care.” Id. “However, a defendant only violates this duty if: (1)
she knew of the danger to the individual or failed to exercise professional judgment in
that regard; and (2) an affirmative link can be shown to the injuries suffered.” Id. (citing
Schwartz, 702 F.3d at 585). “‘Whether the state official failed to exercise professional
judgment requires more than mere negligence; the official must have abdicated her
professional duty sufficient to shock the conscience.’” Id. (quoting Schwartz, 702 F.3d
at 585–86).
The Tenth Circuit has observed:
[I]t 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 its failure to act to protect his liberty
interests against harms inflicted by other means . . . While the
Court foreshadowed in DeShaney [v. Winnebago Cnty. Dep’t of
Soc. Servs., 489 U.S. 189, 197 (1989)] that such a right could
extend to children in foster care, it was not until Yvonne L. ex rel.
Lewis v. New Mexico Department of Human Services, 959 F.2d
883 (10th Cir.1992), that the Tenth Circuit explicitly recognized that
foster children have a substantive due process right to “protection
while in foster care.” Id. at 892–93. Accordingly, foster care is
recognized as one of the custodial relationships that creates a
In a prior Order, the Court held that “this is not a danger creation case; the salient
question here is whether Defendants had a special relationship with Chandler.” (ECF No. 100
at 8.) Therefore, the Court only addresses the special relationship doctrine here.
10

12

special relationship . . . As our case law makes clear, the special
relationship exists between the State and foster child, which
triggers an accompanying, continuing duty imposed on state
custodial officials thereafter[.]
Schwartz, 702 F.3d at 580–81.
In the Tenth Circuit, “the focus of the special-relationship theory is the level of
restraint imposed on an individual at the time of that individual’s injury.” Garcia, 2016
WL 879635, at *12 (citing Armijo, 159 F.3d at 1261–62 (“The fact that Armijo ended his
life after he was ‘released’ [ ] bars any liability under the special relationship doctrine.”)
and then citing J.W., 647 F.3d at 1011 (explaining that the state owed children “the
affirmative duty of protection while they were in foster care.”)). Accordingly, Tenth
Circuit authority provides that whether a special relationship existed between
Defendants and Chandler turns on whether Chandler was in foster care, and thus in the
State’s legal custody, during the relevant time period. If he was not in foster care, he
was not in the State’s legal custody, and no special relationship existed triggering an
accompanying duty of protection.
b.

Analysis

Here, for the following reasons, the evidence shows that at the time of Chandler’s
death in May 2007, he was not in foster care, and thus, not in the State’s legal or
physical custody. At the times relevant to this case, Colorado Revised Statutes § 19-1103 provided the following definition:
(51.3) “Foster care” means the placement of a child into the
legal custody or legal authority of a county department of
social services for physical placement of the child in a
kinship care placement or certified or licensed facility or the
physical placement of a juvenile committed to the custody of
the state department of human services into a community
placement.

13

The record shows that on March 28, 2006, Jefferson County District Court placed
Chandler in the protective custody of JCDCYF. (ECF No. 390-2.) In conjunction with
that order, the Jefferson County District Court also granted temporary legal custody11 of
Chandler to JCDCYF. (ECF No. 390-3.)
On May 29, 2006, the Jefferson County District Court granted temporary legal
and physical custody of Chandler to Phillips. (ECF No. 390-4.) The Court concludes
that at that time, the State no longer had custody of Chandler, and therefore, a special
relationship no longer existed between Chandler and the State. See Garcia, 2016 WL
879635, at *11 (“[W]hen [temporary] legal and physical custody was transferred to
Father on November 3, 2010, a special relationship no longer existed between T.D. and
the [Denver Department of Human Services].”); see also DeShaney, 489 U.S. at 200.
However, even if there were some doubt as to whether the “temporary” nature of
that order called into question the status of a special relationship—which the Court
determines there is not—the Jefferson County District Court’s January 25, 2007 Order
Allocating Parental Responsibilities puts any such doubt to rest. In the January 25,
2007 order, the Jefferson County District Court made its May 29, 2006 order
permanent, ordering that Chandler remain home with Phillips, that Phillips had sole
decision-making rights and responsibilities over Chandler, and that the JCDCYF was

11

The State of Colorado defines “legal custody” as
the right to the care, custody, and control of a child and the duty to
provide food, clothing, shelter, ordinary medical care, education,
and discipline for a child and, in an emergency, to authorize
surgery or other extraordinary care. “Legal custody” may be taken
from a parent only by court action.

Colo. Rev. Stat. § 19-1-103(94)(a).

14

relieved of the protective supervision and monitoring of Chandler, and from any further
duty to provide services to the parties, effective today. 12 (ECF No. 390-5.) As
Defendants point out, allocation of “parental responsibilities” is the same as “custody”
under Colorado law. See In re Marriage of Stewart, 43 P.3d 740, 741 (Colo. App. 2002)
(allocation of parental responsibilities which was, by then, the new term for “custody”);
see also Colorado Revised Statutes § 14-10-103(4) (effective February 1, 1999,
“custody” became “parental responsibilities”). “Parental responsibilities” includes both
“decision-making responsibilities” and “parenting time.” See In re Marriage of Roosa,
89 P.3d 524, 527 (Colo. App. 2004).
Additionally, Plaintiffs concede that Phillips was not a foster parent. (ECF No.
392 at 17 (“Admittedly, Phillips was not a foster parent licensed or certified by the State
when C.G. was placed with him or at any time thereafter until the date of C.G.’s death
on May 6, 2007.”).) Thus, the Court finds that as of May 29, 2006, Chandler was in the
legal and physical custody of Phillips, and as of January 25, 2007, he remained there.
The first alleged involvement of DDHS with Chandler occurred on January 17,
2007, when Holm reported that Chandler suffered a risk of abuse. However, given the
Court’s findings, at that time, Chandler had been in Phillips’s legal and physical custody
for at least seven and a half months; and to the extent the January 2007 order had
effect as of January 11, 2007, Phillips had permanent custody a week before the

The January 2007 order was signed January 25, 2007, though it refers to the January
11, 2007 hearing. Further, a minute order was entered on January 11, 2007 with respect to the
hearing. (ECF No. 390-6.) Therefore, it appears to the Court as though the Order Allocating
Parental Responsibilities was effective as early as January 11, 2007. Nonetheless, whether the
Court considers the order effective January 11, 2007 or January 25, 2007 does not affect the
outcome here.
12

15

reported abuse.
The next involvement between Chandler and DDHS occurred on April 17, 2007,
when Holm reported that Chandler had not been in school since March 9, 2007. At that
time, Phillips had legal and physical custody of Chandler for approximately eleven
months. Further, Defendants point out that under Colorado law, truancy is not
considered child abuse or neglect, and investigation of truancy is the school or school
district’s responsibility—not DDHS’s responsibility. (ECF No. 390 at 17 (citing Colorado
Revised Statutes § 19-1-103(1)(a)).)
Accordingly, based on the evidence in the record, at the time of Chandler’s death
in May 2007, Phillips had physical and legal custody of Chandler. Therefore, the State
did not have custody of Chandler as a foster child, and Defendants thus owed him no
duty of protection.
The Court acknowledges the undisputed fact that the Jefferson County District
Court vacated ab initio the orders placing Chandler into Phillips’s legal and physical
custody and relieving the State of responsibility toward Chandler on August 31, 2022.
(ECF No. 390-6.) However, at the time of the events at issue, said orders had not been
vacated, and thus no special relationship then existed between Chandler and
Defendants. While the facts of this case are tragic and heart-breaking, the Court is
constrained to agree with Defendants that
[o]rders vacated fifteen years after Defendants could have
had any interaction with Chandler cannot cause a duty to
spring into existence fifteen years after the fact, so that
actors like Defendants, confronted with a situation in 2007,
could be expected to comply or even be able to comply with
a duty that did not yet exist.
(ECF No. 390 at 18.) Stated differently, the Court is aware of no basis in law or fact to
16

impose upon Defendants a legal duty against which it will evaluate their conduct in 2007
that perforce would be predicated solely on a court order not to be entered until fifteen
years after such conduct took place.
2.

Plaintiffs’ Arguments

While the Court finds that Plaintiffs’ numerous arguments to the contrary are
without merit, below it addresses some of Plaintiffs’ most prominent arguments for the
sake of completeness.
a.

State Court Orders Vacated

Plaintiffs argue that the fact that the Jefferson County District Court’s orders were
vacated means that they simply never existed, and thus the State had custody of
Chandler from March 2006 until his death in May 2007. (ECF No. 392 at 15–17.) They
also argue that the custody orders were “wrongfully obtained.” (Id. at 15.) However, as
Defendants point out, both Chandler and Ms. Grafner were represented at all of the
court hearings by a guardian ad litem and private counsel, respectively. (ECF No. 398
at 7 (citing ECF No. 390-4).) There is no evidence that the state court orders were
wrongfully obtained. And nonetheless, the Court has already explained above that
while the state court vacated its orders, that does not change the fact that at the time—
in 2006–2007—the orders gave Phillips temporary and then permanent custody of
Chandler. 13

Defendants cite several cases showing that their conduct must be judged on the facts
presented to them at the time of the child’s injury. The Court notes that these cases are
distinguishable; for instance, one is a criminal case examining a warrant, and the others
concern qualified immunity analysis. (See ECF No. 398 at 7 (citing cases).) While the Court
concludes that they are not binding, they are persuasive—particularly Garcia, which dealt with
very similar legal issues of the special relationship doctrine and custody.
13

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b.

State’s Purported Restraint of Chandler’s Liberty

Plaintiffs also contend that the “State sufficiently restrained C.G.’s personal
liberty such that he lost his freedom and ability to make decisions about his own welfare
and C.G.’s parent(s) could not care for his basic needs[] once the State—through
JCDCYF—took C.G. into State custody and placed [him] with Phillips[.]” (ECF No. 392
at 17.) To the extent Plaintiffs argue that the mere fact of the State placing Chandler
into custody (with Phillips or otherwise) creates a special relationship, the Court agrees
with Defendants that “no statute, regulation or case law supports this claim.” (ECF No.
398 at 8.)
Taking Plaintiffs’ argument to its logical conclusion leads to an absurd result:
under their analysis, every time the State effects a child placement, it would necessarily
always have a special relationship with the child, regardless of whether the State
retained custody or exerted control over the child after placement. In this case, the
State placed Chandler with Phillips, and the Jefferson County District Court granted
legal and physical custody to Phillips. Without the State restraining the child’s liberty,
such as through foster care, a special relationship does not exist.
Additionally, to the extent Plaintiffs argue that the State restrained Chandler’s
liberty such that he lost the freedom to make decisions on his own behalf, this argument
also falls short. Chandler was a very young child, and his parents bore the
responsibility for making decisions for him; when they could not, the State stepped in
and did so by placing him with Phillips, first temporarily and then permanently. At that
point, the State no longer restrained Chandler’s liberty.
c.

Placements Analogous to Foster Care

Next, Plaintiffs argue that “precisely because custody for purposes of special
18

relationship turns on the state affirmatively restraining an individual’s freedom to act on
his or her own behalf, special relationships sufficient to establish constitutional liability
have been found in placements analogous to foster care.” (ECF No. 392 at 17
(emphasis in original).) This argument is related to the arguments addressed above in
that it relies on the idea that the State restrained Chandler’s liberty and thus triggered
the protections of the Due Process Clause. (Id. at 19.) Plaintiffs emphasize that the
Court should not overly rely on “hyper-technical” distinctions, such as “whether the state
chooses to place a removed child with ‘licensed/certified foster parents’ in a
‘licensed/certified foster home or institution,’ but rather upon the ‘State’s affirmative act
of restraining the [child’s] freedom to act on his own behalf’ regardless of where the
state (or the state’s employees) place the child.” (Id. at 20 (emphasis in original).)
However, the Court is not relying on overly technical definitions; instead, it relies
on the Tenth Circuit’s development of this issue in Schwartz, where it stated that “foster
care is recognized as one of the custodial relationships that creates a special
relationship.” Schwartz, 702 F.3d at 580. To the extent that Plaintiffs argue that
Chandler was in a “kinship care placement” that was a subset of or was like or
comparable to foster care (id. at 6), the Court finds this argument unavailing. Plaintiffs
state that “[u]nder Colorado law, foster care includes the taking of a child into state
custody for purposes of kinship care placement.” (Id. (citing C.R.S. § 19-1-103(66)).)
But, even assuming Chandler was in a kinship care placement—which the Court finds
he was not—such placement was not like foster care because the Jefferson County
District Court granted Phillips legal and physical custody of Chandler. Foster care
requires the State having custody of the child, and once the court granted Phillips

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custody, the State lacked custody over Chandler. As such, he was not in foster care or
in State custody for purposes of a kinship care placement.
Similarly, any argument concerning protective supervision as analogous to foster
care does not create a special relationship. (ECF No. 392 at 26.) The Jefferson County
District Court relieved the State from any protective supervision obligations in January
2007—four months before Chandler’s tragic death in May 2007. (ECF No. 390-5).
d.

Other Alleged Genuine Disputed Issues of Material Fact

In Plaintiffs’ response, they recite in a single, lengthy paragraph nine issues that
they argue constitute genuine disputed issues of material fact which preclude summary
judgment. (ECF No. 392 at 25–26.) Although the Court does not reiterate these
arguments here, it has carefully considered them. The Court concludes that these
issues either are not truly disputed facts, and to the extent they are, they do not
constitute genuine disputes of material fact which preclude summary judgment on
Plaintiffs’ section 1983 claims. Therefore, the Court finds that Defendants are entitled to
summary judgment in their favor on Plaintiffs’ section 1983 claims.
B.

State Law Claims
1.

Analysis

Defendants argue, in a cursory fashion, that the Court should grant summary
judgment on Plaintiffs’ state law claims. (ECF No. 390 at 24.) They point to paragraphs
312 and 322 of the AC, in which Plaintiffs allege that Defendants are liable for
negligence and negligence per se:
312. Pursuant to C.R.S. § 19-3-308(1)(a),[ 14] Margaret
14

Colorado Revised Statutes § 19-3-308(1)(a) provides:
The county department shall respond immediately upon receipt of

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Booker owed Chandler Grafner a special duty of care
beyond its duty to the public at large, arising from the special
relationship between a social services Head of Investigation
and a foster child. Defendant Margaret Booker owed
Chandler Grafner a duty to act reasonably under the
circumstances toward Chandler Grafner.
...
322. Pursuant to C.R.S. § 19-3-308(1)(a), Mary Peagler
owed Chandler Grafner a special duty of care beyond its
duty to the public at large, arising from the special
relationship between a social services case worker
supervisor and a foster child. Defendant Margaret Booker
owed Chandler Grafner a duty to act reasonably under the
circumstances toward Chandler Grafner.
(ECF No. 82 at 35–36.) Defendants argue that these allegations are premised on the
fact that “Defendants violated state law imposed on them as a result of the ‘special
relationship’ between a social worker and a child.” (ECF No. 390 at 24.) However, they
contend that “[a]s demonstrated above, there was no special relationship between
Defendants and Chandler Grafner. As a result, Defendants are entitled to summary
judgment on these claims as well.” (Id.) This is the extent of their argument; there is no
citation to any case law or statute.
Plaintiffs respond that because Defendants “have failed to develop any

any report of a known or suspected incident of intrafamilial abuse
or neglect to assess the abuse involved and the appropriate
response to the report. The assessment shall be in accordance
with rules adopted by the state board of social services to
determine the risk of harm to such child and the appropriate
response to such risks. Appropriate responses shall include, but
are not limited to, screening reports that do not require further
investigation, providing appropriate intervention services, pursuing
reports that require further investigation, and conducting
immediate investigations. The immediate concern of any
assessment or investigation shall be the protection of the child,
and, where possible, the preservation of the family unit.

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argument, provide any legal analysis, or cite to any case law in support of their position
on Plaintiffs’ state law claims,” the Court should deny summary judgment on the state
law claims. (ECF No. 392 at 39–40.) Additionally, Plaintiffs emphasize that section 193-308(1)(a) “is not prefaced on whether a special relationship exists” and “disputed
issues of material fact as to whether the DDHS responded immediately to the report of
abuse.” (Id. at 40.) They underscore that “DDHS workers did not make contact with
C.G. within 24 hours of suspected abuse in the January 17, 2007 Holm referral.” (Id.)
Having reviewed both parties’ arguments regarding the state law claims, the
Court finds that Defendants have failed to meaningfully develop their argument such
that the Court can assess its merits. See United States v. Hunter, 739 F.3d 492, 495
(10th Cir. 2013) (cursory argument not meaningfully developed by any analysis or
citation is deemed waived). While it is not clear to the Court at this juncture precisely
when Defendants responded to the report of abuse or whether the law requires them to
respond within 24 hours (as Plaintiffs contend), Plaintiffs are correct that genuine
disputed issues of material fact exist concerning whether Defendants responded
“immediately” within the meaning of section 19-3-308(1)(a). Therefore, the Court denies
summary judgment on the state law claims of negligence and negligence per se against
Defendants.
2.

Whether the Court Retains Supplemental Jurisdiction

Because the Court has granted summary judgment in Defendants’ favor on
Plaintiffs’ federal claims, the Court must consider whether to retain supplemental
jurisdiction over the two remaining state law claims.
Where a district court has dismissed all claims over which it
has original jurisdiction, 28 U.S.C.A. § 1367(c)(3) expressly
authorizes the court to decline to exercise supplemental
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jurisdiction over the remaining state-law claims. 28 U.S.C.A.
§ 1367(c)(3). Whether to exercise supplemental jurisdiction
under such circumstances lies within the discretion of the
court. Medina v. City of Osawatomie, 992 F.Supp. 1269,
1279 (D. Kan. 1998). “Discretion to try state law claims in
the absence of any federal claims should only be exercised
in those cases in which, given the nature and extent of
pretrial proceedings, judicial economy, convenience, and
fairness would be served by retaining jurisdiction. Id. (citing
Thatcher Enter. v. Cache [County] Corp., 902 F.2d 1472,
1478 [10th Cir. 1990]). As a general rule, the balance of
factors to be considered will point towards declining to
exercise jurisdiction over state-law claims when the federal
claims have been eliminated prior to trial. Carnegie–Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n.
7, 98 L.Ed.2d 720 (1988). Notions of comity and federalism
demand that a state court try its own lawsuits, absent
compelling reasons to the contrary.” Thatcher Enter., 902
F.2d at 1478.
Dahlberg v. Avis Rent A Car Sys., Inc., 92 F. Supp. 2d 1091, 1110–11 (D. Colo. 2000)
(alterations in original).
The Court has given serious consideration to the wisdom of retaining jurisdiction
over the state law claims and determines that it should do so, despite notions of “comity
and federalism.” Id. As the Court described at length above, see supra, Part III, this
case has: been in litigation for approximately 15 years, gone through interlocutory
appeals in state and federal courts, and been briefed (and now decided) on summary
judgment before this Court. The Court also notes the tragic nature of this case and the
need for closure for all involved parties. The undersigned is well-versed in the relevant
facts and issues at hand and concludes that given the extensive pretrial proceedings,
judicial economy, convenience, and fairness are best served by this Court retaining
jurisdiction over the state law claims in this action.

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V. CONCLUSION
Accordingly, for the reasons stated above, the Court ORDERS as follows:
1.

Defendants’ Motion (ECF No. 390) is GRANTED IN PART AND DENIED IN
PART, as set forth above;

2.

The stay (ECF No. 374) is LIFTED; and

3.

The parties are DIRECTED to jointly contact the chambers of U.S. Magistrate
Judge Maritza Dominguez Braswell by no later than July 29, 2024 for the
purpose of setting a status conference, or such other proceeding as Judge
Dominguez Braswell deems appropriate, to facilitate moving this case forward.
Dated this 25th day of July, 2024.
BY THE COURT:

______________________
William J. Martínez
Senior United States District Judge

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