Qualified Immunity in Foster-Placement Decisions: No Clearly Established Substantive Due Process Right for Foster Parents’ Children

I. Introduction

In C.L.G. v. South Carolina Department of Social Services (4th Cir. June 2, 2026) (unpublished), the United States Court of Appeals for the Fourth Circuit affirmed summary judgment on qualified immunity grounds for Kerry Register, an employee of the South Carolina Department of Social Services (SCDSS). The suit was brought under 42 U.S.C. § 1983 by A.G. on behalf of her two minor sons (C.L.G. and C.N.G.), who were the biological/legal-custody children of foster parents (not children in state custody).

The plaintiffs alleged that Register violated their Fourteenth Amendment substantive due process rights by knowingly placing a sixteen-year-old foster child (J.F.)—with a history of sexual misconduct against other children—into their home without disclosing key risk information. After placement, J.F. allegedly exposed the plaintiffs to pornography and engaged in sexually inappropriate conduct in their presence.

The central appellate issue was narrow but consequential: whether it was clearly established that “children of foster parents” have a constitutional right to be free from harm caused by a state official’s placement decision involving a foster child with a known history of sexual misconduct toward other children.

II. Summary of the Opinion

The Fourth Circuit affirmed the district court’s grant of summary judgment to Register, holding that she was entitled to qualified immunity. The court concluded that—even viewing facts in the plaintiffs’ favor—the asserted constitutional right was not clearly established at the time of the placement.

Critically, the panel did not decide whether Register’s alleged conduct actually violated substantive due process. Instead, applying the qualified-immunity framework, it resolved the appeal on the “clearly established” prong and held that existing precedent did not give reasonable officials fair notice that such a placement would violate the constitutional rights of foster parents’ children (who are not in state custody).

III. Analysis

A. Precedents Cited

1. Standards of review and Rule 56 posture

  • Aleman v. City of Charlotte, 80 F.4th 264 (4th Cir. 2023): Cited for the proposition that, on summary judgment, facts are viewed in the light most favorable to the nonmoving party, and for the Rule 56(a) standard (“no genuine dispute as to any material fact”). This framing mattered because the court assumed (for purposes of qualified immunity) the plaintiffs’ version of Register’s knowledge and nondisclosure.
  • Caraway v. City of Pineville, 111 F.4th 369 (4th Cir. 2024): Cited for de novo review of summary judgment on qualified immunity and for the characterization of qualified immunity as “immunity from suit itself,” not merely a defense to liability. This reinforces that courts address qualified immunity early and resolve it where possible without trial.

2. Section 1983 framing

  • deWet v. Rollyson, 157 F.4th 344 (4th Cir. 2025): Used to restate that § 1983 provides a cause of action against persons acting under color of state law who abridge federal rights, and to reiterate the scope of qualified immunity.

3. The “clearly established” requirement

  • Lewis v. Caraballo, 98 F.4th 521 (4th Cir. 2024): Cited for the operative definition: qualified immunity shields officials unless they violated a right that was “clearly established” at the time, and a right is clearly established when its contours are sufficiently clear that a reasonable official would understand the conduct violates that right. The court used this to test whether foster parents’ children were within any previously recognized due-process protection tied to foster placement decisions.
  • Betton v. Belue, 942 F.3d 184 (4th Cir. 2019), and Wilson v. Prince George's Cnty., 893 F.3d 213 (4th Cir. 2018): Cited for the sources of “clearly established” law in this context—Supreme Court, Fourth Circuit, or the highest court of South Carolina.
  • Ray v. Roane, 948 F.3d 222 (4th Cir. 2020): Cited for the idea that, absent direct controlling authority, a right may still be clearly established by general constitutional principles or a “consensus of persuasive authority.” The court invoked this but found no such consensus for the right asserted here.
  • Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892 (4th Cir. 2016): Cited for the two-prong qualified-immunity inquiry and for the court’s discretion to decide the prongs in either order. The panel expressly relied on this sequencing to avoid the first prong (actual constitutional violation) and decide solely that the law was not clearly established.

4. The plaintiffs’ principal analogy: foster child in state custody

  • Doe ex rel. Johnson v. South Carolina Department of Social Services, 597 F.3d 163 (4th Cir. 2010): This was the plaintiffs’ cornerstone precedent. In Doe, the Fourth Circuit recognized that when the state places a child in foster care (creating a “special relationship” through custody), the state has a duty not to make placements with “deliberate indifference” to the foster child’s right to personal safety and security. But the C.L.G. panel held that Doe did not clearly establish a right for other children in the foster home who were not in state custody.

    Importantly, the C.L.G. court emphasized the categorical distinction: Doe concerned “the duty owed by the state to a child in its custody,” not duties owed to foster parents’ children or others residing in the home.

5. “Obviousness” and the limits of novel applications

  • Dean ex rel. Harkness v. McKinney, 976 F.3d 407 (4th Cir. 2020): Cited for the principle that, in rare cases, officials may be on notice even without factually identical precedent. However, Dean also underscores that the law must still provide “some warning” that the conduct violates an established constitutional right—not merely that it is wrongful or ill-advised. The court used this to reject the plaintiffs’ claim that the violation was “obvious” absent precedent.
  • DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989): The foundational Supreme Court case limiting affirmative due-process duties to protect individuals from private violence. The panel cited DeShaney to stress that, absent custody or restraint of liberty, the Due Process Clause generally does not impose a constitutional duty on the state to protect against private harm. This was pivotal because the plaintiffs were not in state custody; they were harmed by the actions of a privately acting foster child placed in their home.

6. Statutory “obviousness” rejected

  • South Carolina Code § 63-5 -70: The plaintiffs invoked this child-endangerment felony statute to argue “obvious” unconstitutionality. The court rejected the argument because the statute concerns reckless disregard of the safety/health of a child when the child is in the individual’s care or custody; the plaintiffs were not in Register’s or SCDSS’s care or custody. The ruling reinforces a key boundary: statutory duties or criminal prohibitions do not automatically translate into clearly established federal constitutional rights for qualified-immunity purposes.

B. Legal Reasoning

The court’s reasoning follows a structured qualified-immunity analysis:

  1. Precisely define the asserted right. The panel defined the alleged right as whether “children of foster parents” have a substantive due process right to be free from harm caused by a state official’s placement of a foster child with a known history of sexual misconduct toward other children. This careful framing matters because “clearly established” law must match the right at an appropriately specific level.
  2. Ask whether controlling precedent clearly established that right. The plaintiffs relied primarily on Doe ex rel. Johnson v. South Carolina Department of Social Services. The panel held that Doe could not clearly establish the right asserted because it addressed the state’s duty to the foster child in state custody, not to third parties in the foster home.
  3. Reject “obviousness” given the custody limitation of substantive due process. The court acknowledged the narrow pathway recognized in cases like Dean ex rel. Harkness v. McKinney (novel facts can still yield clearly established violations), but emphasized that this case sought to extend substantive due process protections to individuals “who never were in the state’s custody.” Invoking DeShaney, the panel treated the custody/non-custody boundary as a major doctrinal barrier to “obvious” liability.
  4. Conclude that no Supreme Court, Fourth Circuit, South Carolina high-court decision, or consensus of persuasive authority put the official on notice. The panel found no authority establishing that such a placement violates the constitutional rights of foster parents’ children. Therefore, Register was entitled to qualified immunity as a matter of law.

Notably, the court stated it “need not address” whether a jury could find Register “deliberately indifferent,” underscoring that qualified immunity can bar suit even where alleged conduct is severe—so long as the constitutional right was not clearly established at the relevant time.

C. Impact

Although unpublished and “not binding precedent,” the opinion is still practically significant in at least four ways:

  • Reinforces a custody-based boundary for substantive due process claims in the foster-care placement context. The decision sharply distinguishes between (a) duties owed to children in state custody (as in Doe) and (b) alleged duties owed to non-custodial third parties in a foster home. Future litigants bringing § 1983 claims on behalf of foster parents’ children will face a steep “clearly established” hurdle unless and until published precedent recognizes such a right.
  • Signals that analogies to foster-child rights do not automatically extend to household members. Plaintiffs often attempt to generalize from cases recognizing a “special relationship” duty to persons in custody. This opinion treats that generalization as non-obvious and insufficient for clearly established law.
  • Encourages channeling of similar disputes into state-law remedies and administrative safeguards. The court noted the remand of a South Carolina gross negligence claim (not at issue on appeal). Practically, this suggests that damages for harms to non-custodial household members may more reliably proceed via state tort theories, insurance, and statutory/regulatory reforms rather than federal constitutional litigation.
  • Elevates the importance of placement-disclosure policies, but outside constitutional adjudication. The alleged nondisclosure was central factually, but the court’s holding means failures to disclose risk information may remain primarily questions of state law, agency policy, licensing standards, and professional discipline—unless future precedent creates a clearly established federal right for non-custodial children in foster homes.

IV. Complex Concepts Simplified

1. Substantive due process (Fourteenth Amendment)

Substantive due process limits certain government actions regardless of procedure, protecting fundamental interests from arbitrary state interference. However, it generally does not impose a broad constitutional duty on the state to protect people from harm inflicted by private actors.

2. The “special relationship” / custody principle

Under DeShaney, a constitutional duty to protect is most commonly recognized when the state has restrained a person’s liberty—such as incarceration, involuntary commitment, or (as in Doe) foster care placement where the child is in the state’s legal custody. The key idea: custody can create heightened constitutional responsibilities.

3. Deliberate indifference

“Deliberate indifference” is a high fault standard—more than negligence. It generally means an official knew of and disregarded an excessive risk. The C.L.G. court did not decide whether Register was deliberately indifferent; it assumed the plaintiffs could argue that point but ruled the case on the separate “clearly established” requirement.

4. Qualified immunity and “clearly established” law

Qualified immunity protects officials unless existing law gave them fair notice that their conduct violated the Constitution. Courts look for controlling precedent (Supreme Court, the circuit, or relevant state high court) or a strong consensus of persuasive authority. Moral wrongfulness or even statutory violations do not, by themselves, establish a clearly defined constitutional right.

V. Conclusion

C.L.G. v. South Carolina Department of Social Services holds that, at least as of the events in question, it was not clearly established that the children of foster parents have a substantive due process right to be free from harms resulting from a state official’s placement of a foster child with a known history of sexual misconduct into their home. By distinguishing Doe ex rel. Johnson v. South Carolina Department of Social Services as a custody-based duty owed to children in state care, and by anchoring its analysis in DeShaney’s limitation on affirmative constitutional protection outside custody, the court affirmed qualified immunity without deciding the underlying merits of the alleged due process violation.

The broader significance lies in the opinion’s implicit roadmap: unless higher courts extend substantive due process protections to non-custodial household members affected by foster-care placements, federal constitutional damages claims in this niche will likely continue to be blocked at the “clearly established” stage, leaving reform and redress to state-law mechanisms and agency practice.