In this 2005 case the Seventh Circuit vacates a District Court jury decision against Shawano County in Wisconsin for its role in facilitating the sexual abuse of a troubled young man in foster care. The background check did not detect notable past “ninja” (stalker) behavior (in a different State), and though a jury found liability, this Appellate Court reversed.

NAHQUASEH B. WAUBANASCUM, Plaintiff-Appellee, v. SHAWANO COUNTY, Defendant-Appellant.
No. 04-3290

416 F.3d 658

Opinion by Judge Kanne, decided August 1, 2005:

Nahquaseh Waubanascum was placed into foster care in the Shawano County, Wisconsin, home of Mark Fry. Tragically, Waubanascum suffered sexual abuse at Fry’s hands. Waubanascum brought a 42 U.S.C. § 1983 claim against Shawano County, alleging that the county deprived him of substantive due process when it issued a “courtesy” foster care license to Fry. A jury returned a verdict in Waubanascum’s favor, and the district court entered judgment thereon against the county. We conclude, however, that Shawano County owed no constitutional duty to Waubanascum and thus is entitled to judgment as a matter of law. Accordingly, we vacate the judgment of the district court and direct that judgment be entered in Shawano County’s favor on remand.

Shawano County did issue a type of foster care license but it was relying on the request from the neighboring county, and “Menominee County kept legal custody over Waubanascum”. Continuing:

All was not well at the Fry home, however. In December 1995, Waubanascum began to have trouble sleeping and “dreamed” of Fry fondling him and masturbating in his presence as he attempted to sleep. Over the course of several months, these “dreams” progressed to more disturbing events during Waubanascum’s waking hours. Fry often contrived to sleep in the same bed with Waubanascum. Worse, Fry became increasingly and openly physical with Waubanascum, giving him “backrubs” that ultimately led to undisguised attempts to engage in various sex acts with Waubanascum. These encounters took place in Fry’s home and in various hotel rooms during several cross-country trips.

In February 1996, Waubanascum informed one of the Menominee County social workers about these acts of sexual abuse. That same day, Menominee County removed Waubanascum from Fry’s home. On April 30, 1996, Shawano County revoked Fry’s foster care license, and Fry was arrested and later convicted for his crimes.

It was only after the removal of Waubanascum from Fry’s home that Fry’s unsavory past came to light. Fry had been a history teacher for ten years in Illinois. In his off hours, however, Fry engaged in very disturbing behavior. In one bizarre instance, Fry was discovered at night on the roof of the home of one of his male students trying to peer into a window. Even more bizarre, Fry was dressed in black “ninja-style” attire, wearing a mask, and toting binoculars, a flashlight, and a canister of mace. Another student reported that he had spotted a similarly attired prowler in his backyard at night on more than ten occasions.

A person matching this description was also discovered attempting to enter the bedroom window of a sleeping student. After pursuing the person on foot, the student was able to identify the person as Mark Fry. These acts garnered considerable public attention in Northbrook, Illinois, where Fry lived. Local authorities eventually arrested Fry in 1991 and charged him with attempted burglary and disorderly conduct. He was later convicted of misdemeanor disorderly conduct. Following these events, Fry moved to Wisconsin, where, amazingly, he was licensed as a teacher and hired as a high school principal in Menominee County.

Unfortunately, Fry’s criminal past and history of bizarre behavior did not come to light when Menominee County processed Fry’s foster care application. It was later discovered that when the Wisconsin DOJ performed its criminal background check of Fry, it limited its inquiry to reported criminal activity within Wisconsin, not elsewhere. This oversight, combined with the other unfortunate occurrences recounted above, resulted in Waubanascum being placed in Fry’s home.

Menominee County and the school district settled out of court but the case against Shawano County proceeded to trial, “the court entered judgment in the amount of $ 175,000, plus almost $ 70,000 in costs and fees.” But this appellate court will not extend Constitutional duties of special relationship to this County and reverses as a matter of law.