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Court clears county of liability in teen abuse case
Tuesday, August 2, 2005

An Indian man who was abused as a teenager while in foster care cannot sue a Wisconsin county for damages, a federal appeals court ruled on Monday.

At age 15, Nahquaseh Waubanascum was taken from his grandparents on the Menominee Reservation and placed under the care of Menominee County. Wisconsin is a Public Law 280 state, so civil matters like child welfare fall under state jurisdiction. The reservation is located entirely within county boundaries.

The county then gave its approval to place Waubanascum in the home of Mark Fry, the well-known principal of the public high school on the Menominee Reservation. But since Fry lived in nearby Shawano County, a "courtesy" foster care license was issued to him by Shawano County at the request of Menominee County.

Around the same time, an Indian teen at the high school lodged allegations of sexual abuse against Fry. Social workers in Menominee County considered removing Waubanascum from the home but decided against it, believing he wasn't at risk.

Within months, however, Waubanascum reported that he was sexually abused. Only then did authorities discover that Fry had been the subject of similar allegations in Illinois, where he had been convicted of misdemeanor disorderly conduct for inappropriate behavior with students.

"Following these events [in Illinois], Fry moved to Wisconsin, where, amazingly, he was licensed as a teacher and hired as a high school principal in Menominee County," the 7th Circuit Court of Appeals said in a 20-page decision yesterday.

Authorities failed to discover Fry's troubled past for a number of reasons, the court observed. Although the Wisconsin Department of Justice conducted a background check on Fry, it limited the inquiry to criminal activities within the state, not elsewhere.

"This oversight, combined with the other unfortunate occurrences recounted above, resulted in Waubanascum being placed in Fry's home," the court noted.

The oversight prompted Waubanascum to file suit against Menominee County and Shawano County in January 2001 for violating his civil rights. Waubanascum eventually settled with Menominee County in February 2004 for undisclosed terms. A trial proceeded against Shawano County and Waubanascum was eventually awarded $175,000, plus almost $70,000 in costs and fees.

But in a unanimous decision, the 7th Circuit threw out the verdict. A three-judge panel held that Shawano County can't be sued for the oversight because it never had jurisdiction over Waubanascum and his child welfare proceedings.

"As ample evidence indicates, and as Waubanascum concedes, Menominee County, not Shawano County, had custody over Waubanascum," Judge Michael Stephen Kanne wrote for the majority.

The court rejected Waubanascum's other attempts to hold the Shawano County responsible for his abuse. He argued the county should have done something once the first allegations of sexual abuse came up.

But in agreeing to the "courtesy" foster care license, Shawano County never knew Waubanascum was going to be placed in Fry's home, the court said. The county's "failure to act" does not create a constitutional duty owed to Waubanascum that would give rise to money damages, the court concluded.

The controversy over Fry made national news at the time. The Menominee Nation banished him in April 1996. Four years later, he was sentenced to 10 years and nine months in state prison for abusing Waubanascum and another teen.

"It's disturbing that this kind of thing is moving to rural America and our community," Apesanahkwat, the tribe's former chairman, said at the time, according to an Associated Press story. "We let our guard down, but we won't let it happen again."

In December 1999, Dateline NBC ran a story about the case. Tribal leaders, school officials, colleagues and students said they grew to trust him as a non-Indian on the reservation.

The tribe and other officials never knew about Fry's history in Illinois because officials at his old school agreed not to stop him from seeking future employment in the education field. The Illinois school district even gave him two positive letters of recommendation, Dateline NBC reported.

"After meeting Mr. Fry he actually meets the expectations of those letters," the former Menominee school superintendent said.

Get the Decision:
Waubanascum v. Shawano County (August 1, 2005)

Relevant Links:
Menominee Nation - http://www.menominee-nsn.gov
Menominee High School - http://www.menominee.k12.mi.us/High_School/default.htm
Menominee Indian School District - http://www.misd.k12.wi.us