E.r.l., by and through her next friend, John Doe v. Adoption Advocacy, Inc.; June Bond; Joe Haynes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1980
E.R.L., by and through her next friend, John Doe,
Plaintiff - Appellant,
v.
ADOPTION ADVOCACY, INC.; JUNE BOND; JOE HAYNES,
Defendants - Appellees,
and
AMY CARR,
Defendant.
Appeal from the United States District Court for the District of South Carolina, at Beaufort.
Richard M. Gergel, District Judge. (9:21-cv-00479-RMG)
Argued: October 27, 2022 Decided: February 14, 2023
Before AGEE and HARRIS, Circuit Judges, and Lydia K. GRIGGSBY, United States
District Judge for the District of Maryland, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Robert James Butcher, CAMDEN LAW FIRM, PA, Camden, South Carolina,
for Appellant. Steven Chase Parker, LEWIS BRISBOIS BISGAARD & SMITH LLP,
Savannah, Georgia, for Appellees. ON BRIEF: Deborah J. Butcher, CAMDEN LAW

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FIRM, PA, Camden, South Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
E.R.L. is a minor child who suffered severe abuse at the hands of her adoptive
parents. She alleges that Adoption Advocacy, Inc., a private agency that contracted with
state officials to arrange her adoptive placement, violated her constitutional rights by
placing her with known abusers in deliberate indifference to her personal safety and
security. The district court dismissed E.R.L.’s complaint, reasoning that Adoption
Advocacy and its employees, as private actors, did not owe E.R.L. any constitutional duty.
But in certain circumstances, a private party that assumes a state’s affirmative
constitutional obligations may act under color of law for purposes of 42 U.S.C. § 1983.
See West v. Atkins, 487 U.S. 42, 56 (1988). Because the district court did not address this
theory of state action, we vacate its judgment and remand for the court to conduct this
analysis in the first instance.
I.
E.R.L. was born in Franklin County, Ohio, in 2011. When E.R.L. was young, the
state of Ohio terminated her biological parents’ rights and placed her in the custody of
Franklin County Children Services (“FCCS”). She remained a ward of the state until 2015,
when FCCS arranged for her permanent adoptive placement in South Carolina.
FCCS did not itself undertake to identify a suitable home for E.R.L. Instead, Ohio
officials contracted with Adoption Advocacy, Inc., a private “child placing agency”
registered in South Carolina and licensed by the South Carolina Department of Social
Services (“SCDSS”). Under South Carolina law, child placing agencies must follow

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rigorous procedures when selecting a prospective adoptive family. See S.C. Code § 63-9-
520; S.C. Code Regs. § 114-4980. These include a pre-placement screening, multiple
interviews and home visits, and a comprehensive investigation of the family’s background
and fitness to care for the child. S.C. Code § 63-9-520(A)(1)(a); S.C. Code Regs. § 114-
4980(E)(3). The agency must then monitor the child’s pre-adoptive placement, prepare a
final report, and present its findings to the family court before an adoption decree may
issue. S.C. Code § 63-9-520(A)(2).
These procedures, to the extent they were followed here, proved woefully
inadequate to protect E.R.L. from harm. From the moment Adoption Advocacy placed
E.R.L. in the prospective home of Herbert and Yulanda Mitchell, she suffered severe
emotional and physical abuse.1 The Mitchells beat E.R.L. with whips, belts, and hangers.
They deprived her of food and water while forcing her to watch them eat complete meals.
During her pre-adoptive placement, E.R.L. – then a four-year-old girl – lost one and a half
pounds. But Adoption Advocacy failed to identify these signs of abuse and instead filed a
post-placement report recommending E.R.L.’s adoption. On October 15, 2015, a Beauford
County family court granted a final adoptive decree for E.R.L. to the Mitchells based on
this recommendation.
1 Because the district court dismissed this action under Federal Rule of Civil
Procedure 12(b)(6), “we recount the facts as alleged by [E.R.L.], accepting them as true
for purposes of this appeal.” Jackson v. Lightsey, 775 F.3d 170, 173 (4th Cir. 2014). We
note, however, that the Mitchells’ subsequent criminal convictions of unlawful conduct
toward a child, S.C. Code § 63-5-70(A)(1), confirm the essential nature of their abuse.

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The Mitchells’ pattern of blatant child abuse – and Adoption Advocacy’s role in
enabling that abuse – preceded E.R.L.’s 2015 placement. Sometime before 2010, a family
court found that Yulanda Mitchell physically abused a foster child; as a result, SCDSS
listed her on its Registry of Abuse and Neglect. Nonetheless, between 2010 and 2015,
Adoption Advocacy placed four children with the Mitchells for adoption. Each child, like
E.R.L., was repeatedly starved and beaten. The children were locked in their rooms, forced
to sleep on the floor without blankets, and made to eat feces as punishment. At school, the
children were observed eating from trash cans and drinking from toilets. All but one of the
children fell far below the first percentile for height and weight, and each was subsequently
diagnosed with severe failure to thrive. On many occasions, school and medical officials
reported these clear signs of abuse and malnutrition to SCDSS. But Adoption Advocacy
still chose to place E.R.L. with the Mitchells.
Finally, in November 2015 – just weeks after E.R.L.’s adoption was finalized –
SCDSS intervened. After one of the children reported the Mitchells’ abuse to his teacher,
South Carolina officials placed the children in emergency protective custody. The state
then terminated the Mitchells’ parental rights and initiated criminal proceedings. Yulanda
and Herbert Mitchell ultimately pled guilty to multiple counts of unlawful conduct toward
a child, S.C. Code § 63-5-70(A)(1), and were sentenced to ten and four years’
incarceration, respectively.

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II.
In February 2021, E.R.L. filed suit under 42 U.S.C. § 1983, alleging that her
placement with the Mitchells violated her Fourteenth Amendment rights. Due to state
confidentiality laws and E.R.L.’s youth at the time of her abuse, her counsel had no
knowledge of the individuals – presumed to be SCDSS employees – who arranged and
supervised her placement. The district court thus allowed E.R.L. to serve an expedited
subpoena on SCDSS in order to “properly identify the defendants in this action.” Order at
1, E.R.L. ex rel. Doe v. Adoption Advoc., Inc., No. 9:21-cv-479-RMG (D.S.C. Feb. 24,
2021), ECF No. 9. SCDSS, in turn, identified Adoption Advocacy as the sole entity
responsible for E.R.L.’s placement. E.R.L. then amended her complaint to bring claims
against Adoption Advocacy and its employees alone.
The defendants moved to dismiss the case, arguing that E.R.L.’s complaint failed to
allege that Adoption Advocacy’s employees acted under color of state law when they
placed E.R.L. with the Mitchells. The district court granted the motion, holding that the
private agency and its employees did not owe E.R.L. a constitutional duty. See E.R.L.,
2021 WL 3493179, at *3 (D.S.C. Aug. 9, 2021). The court recognized that private actors
may, under certain circumstances, engage in state action for purposes of § 1983. But it
construed E.R.L.’s complaint and briefing to raise only one such theory: that Adoption
Advocacy was engaged in a “traditionally exclusive public function.” Id. at *2. Because
“[t]he care of foster children is not traditionally the exclusive prerogative of the State,” the
court concluded, E.R.L. failed to allege that her adoptive placement implicated state action.

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Id. (quoting Milburn by Milburn v. Anne Arundel Cnty. Dep’t of Soc. Servs., 871 F.2d 474,
479 (4th Cir. 1989)).
Performing an “exclusive public function,” however, is only one way that a private
party may act on behalf of the state. See Peltier v. Charter Day Sch., Inc., 37 F.4th 104,
115 (4th Cir. 2022) (en banc) (“The Supreme Court has identified various circumstances
in which a private actor may be found to have engaged in state action.”). As relevant here,
a private party also “may, under certain circumstances, be deemed a state actor when the
government has outsourced one of its constitutional obligations to a private entity.”
Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1929 n.1 (2019) (citing West
v. Atkins, 487 U.S. 42, 56 (1988)).2
In West, the Supreme Court identified one such circumstance, holding that a private
physician providing medical services in state prison acted under color of law for purposes
of § 1983. Because the state “has a constitutional obligation, under the Eighth Amendment,
to provide adequate medical care to those whom it has incarcerated,” the Court reasoned,
contracting out that obligation “does not relieve the [s]tate of its constitutional duty to
provide adequate medical treatment to those in its custody, and it does not deprive the
2 We do not in any way fault the district court for failing to parse out these separate
theories of state action. Though West liability is analytically distinct from “exclusive
public function” liability – resting on a private party’s assumption of a state’s affirmative
constitutional duty, rather than a state’s traditional prerogative – courts at times conflate
the two. Moreover, the parties’ exceptionally voluminous filings in the district court did
little to clarify these distinct inquiries or otherwise provide guidance on the state action
question.

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[s]tate’s prisoners of the means to vindicate their Eighth Amendment rights.” 487 U.S. at
54–56.
Here, E.R.L. alleges that the state of Ohio terminated her birth parents’ rights and
placed her in the custody of state officials. She also alleges that until her adoption was
finalized, Ohio retained legal custody and control over her autonomy. See Ohio Rev. Code
§ 5103.23. And the Fourth Circuit has held that “when a state involuntarily removes a
child from her home, thereby taking the child into its custody and care, the state has taken
an affirmative act to restrain the child’s liberty, triggering the protections of the Due
Process Clause.” Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 175 (4th
Cir. 2010). “Such responsibility, in turn, includes a duty not to make a foster care
placement that is deliberately indifferent to the child’s right to personal safety and
security.” Id.
Under West, the state’s delegation of an affirmative constitutional duty to Adoption
Advocacy’s employees may give rise to liability under § 1983. The district court here did
not consider whether Doe imposed such an affirmative constitutional duty on the state with
respect to E.R.L.’s placement with the Mitchells. Nor did it consider whether the
delegation of any such duty to private adoption agency employees might suffice to establish
§ 1983 liability under West. We therefore vacate the court’s judgment and remand so that
the district court may address these questions in the first instance.3
3 Given this disposition, we need not resolve the somewhat perplexing discovery-
related arguments raised by each party on appeal. E.R.L. contends that the district court
“should have permitted limited discovery to allow [her] to defend the Motion to Dismiss”

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III.
For the reasons given above, we vacate the district court’s order granting the motion
to dismiss and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED
but identifies no such motion for limited discovery that was denied. In response, Adoption
Advocacy argues that the district court appropriately denied “pre-suit discovery” under
Federal Rule of Civil Procedure 27. But here, too, Adoption Advocacy identifies no such
pre-suit motion, and E.R.L. represents that there is none. To the extent there exists a live
discovery dispute between the parties, the district court can address it on remand. We also
decline to reach Adoption Advocacy’s alternative arguments of qualified immunity and
collateral estoppel at this juncture, leaving those, too, for the district court to address if
necessary.

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