The Joplin Globe, Joplin, MO

December 1, 2008

Mother of dead foster child loses lawsuit against state

By Jeff Lehr

A federal appeals court on Monday remanded to a lower court a lawsuit filed on behalf of the mother of an 8-year-old boy who was fatally shot three years ago while in foster care in Alba.

The order carried instructions that the Missouri Department of Social Services and two state social workers be removed as co-defendants in the case.

Braxton Wooden Jr. was shot in the head by Mark and Treva Gordon’s 14-year-old biological son on June 2, 2005, during a game of “cops and robbers” with a handgun taken from a bedroom closet of the Gordons’ home.

The 8th U.S. Circuit Court of Appeals in St. Louis decided that because there was no evidence that the social worker and her supervisor had any knowledge of the presence of unsecured firearms in the home, the case did not rise to the standard of “conscience-shocking conduct” required to override a qualified immunity from lawsuits under which the Department of Social Services and state social workers operate.

The court remanded the case to U.S. District Court in Springfield with instructions that a summary judgment be granted the department, state social worker Mickey Morgan and Morgan’s supervisor, John McGinnis. The appeals court decided that the district court erred in denying the defendants qualified immunity from the lawsuit brought by the boy’s biological mother, Brandie McLean.

The Gordons, who also were named as co-defendants in the case, settled with McLean and her attorneys in 2006 for $100,000. McLean received $34,801 of the settlement, and about $23,200 went to a representative of four surviving siblings of the slain boy. The remainder went to McLean’s attorneys.

All five of McLean’s children were removed from her care in September 2004 after her 2-year-old son, Chandler, was spotted on the roof of their Webb City home while she was sleeping. Three of the children, including the eldest, Braxton Wooden Jr., eventually were placed in the Gordons’ care.

The shooting took place while neither foster parent was at home. Treva Gordon had left the children there to check on matters at her workplace.

Ethan Gordon initially told investigators with the JasCo Metropolitan Police Department that the boy had shot himself. He later admitted shooting him, but said he did not know that the .38-caliber handgun was loaded when he put it to the boy’s head and pulled the trigger.

The Gordon boy was adjudicated in juvenile court on a charge of involuntary manslaughter. He was committed to the custody of the Division of Youth Services before the completion of an investigation by the State Technical Assistance Team of the Department of Social Services and a state child-abuse hot-line investigator.

The findings of that investigation eventually called into question the Gordon boy’s story that he had loaded the gun with a single bullet almost a year earlier when he found it in the family’s garage, and then had forgotten that it was loaded.

Other foster children in the home told the state’s investigators that he had chased them around the house on prior occasions with one or more of three different handguns that were in the home. They claimed to have seen him in possession of bullets, and one claimed to have seen him load and unload the gun on a prior occasion.

McLean, who has had multiple arrests on criminal offenses, has never regained custody of any of her children, and terminated her parental rights to the two youngest. She could not be reached for comment Monday.

The lawsuit claimed that Morgan, McGinnis and the state department acted negligently and recklessly under the state’s wrongful-death law in failing to properly evaluate and supervise the Gordons, including making sure that adequate supervision was available and that there were no weapons accessible to children in the home. McLean also claimed gross negligence and indifference on the part of the defendants in failing to follow the state’s own policies and practices aimed at protection of foster-care children.

The federal court in Springfield had granted summary judgment to the Department of Social Services on McLean’s claim under the state’s wrongful-death statute but denied it with respect to the claim under another section of law granting a qualified immunity from lawsuits. The district court had held that the department waived its 11th Amendment immunity when it moved the litigation from state to federal court.

The federal appeals court said that holding was in error because the state and arms of the state are not people, and as such are not subject to lawsuits in state or federal courts.

No charges

The foster parents were never charged by the Jasper County prosecutor’s office with any criminal offense.