United States Court of Appeals
For the First Circuit
No. 06-2539
JOY CARTER, individually and Parent and next friend of Caleb O.
and Cassidy C.; THOMAS CARTER, individually and as Parent and
next friend of Cassidy C.,
Plaintiffs, Appellants,
v.
JAY LINDGREN, individually and in his capacity as Director of The
Rhode Island Department of Children, Youth & Families; STATE OF
RHODE ISLAND; CANDACE SALVO, individually and in her official
capacity; EDWARD O’DONNELL, individually and in his official
capacity; MARTA BRANSTROM SKELDING, individually and in her
official capacity; CHERYL CSISAR, individually and in her
official capacity; MAUREEN EGAN, individually and in her official
capacity,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Dyk*, Circuit Judges.
Thomas M. Dickinson, for appellants.
Richard B. Woolley, Assistant Attorney General, for appellees.
September 7, 2007
*
Of the Federal Circuit, sitting by designation.
DYK, Circuit Judge. Plaintiffs Joy and Thomas Carter
(collectively, “plaintiffs”) brought suit against several officers
of the Rhode Island Department of Children, Youth and Families
(“DCYF”) (collectively, “defendants”). Plaintiffs alleged that the
DCYF officers were liable under 42 U.S.C. § 1983 for infringing on
their right to familial integrity under the United States
Constitution. They also sought damages under Rhode Island law,
alleging infringement of their rights under the Rhode Island
Constitution. The district court granted summary judgment in favor
of defendants, finding that the doctrine of qualified immunity
protected the DCYF officers. We affirm.
I.
A.
On September 15, 1999, the Charlestown Police Department
responded to a 911 call at the home of Thomas Carter (“Carter”) and
Joy O’Leary (“O’Leary”). O’Leary is the mother of Caleb O’Leary
(“Caleb”), who was then one year old. When responding to the call,
the police found no one at the residence. They observed that the
front door was shattered and the rear door was open. O’Leary
later gave conflicting statements about where Caleb had been at the
time.
The police received a second 911 call the next day,
September 16. When officers responded to the second 911 call,
Carter and O’Leary told the police that O’Leary had attempted to
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swallow a large amount of pills in a suicide attempt and that
Carter had threatened suicide. The police arrested Carter and
O’Leary on charges not specified in the record, but they were
apparently released the same day or shortly thereafter.
On the same day, DCYF received a report from the
Charlestown Police Department concerning the safety of Caleb. A
DCYF agent was assigned to investigate, and learned of the suicide
attempt and threats. The agent also learned from DCYF records that
Carter had a criminal history that included a 1988 conviction for
assault with intent to commit sexual assault, as well as
convictions for domestic violence and violating a no contact order
against his former wife.1 So far as the record reveals, the
officers were not aware of the particular circumstances of these
convictions, nor the dates of the convictions (other than the 1988
date of the assault conviction).
On September 21, 1999, the Charlestown Police Department
again contacted DCYF to report that Caleb was almost dropped two
days earlier during an argument between Carter and his ex-wife,
while O’Leary was in the hospital. The DCYF officers were advised
that Carter had grabbed his eleven year-old daughter Samantha, who
was carrying Caleb at the time. Carter was attempting to prevent
1
One DCYF officer’s affidavit also makes note of “Mr.
Carter’s BCI record,” which mentions, in addition to convictions
noted in text, assault, assault with a deadly weapon, harassing
phone calls, and disorderly conduct.
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Samantha from following her mother (Carter’s ex-wife) out of the
room. At that point, Samantha “almost fell down with Caleb.” A
physician who later examined Caleb reported a “suggestion of near
dropping” and found no evidence of injury to Caleb.
Based on these facts, DCYF determined that Caleb should
be removed from the custody of O’Leary; Caleb was removed on
September 22, 1999, and brought to Westerly Hospital. There, a
physician examined Caleb and placed him on a seventy-two-hour hold
pursuant to R.I. Gen. Laws § 40-11-5(a).2 DCYF petitioned the
Family Court for temporary custody, stating that Caleb was
“neglected” and that he was “without proper parental care and
supervision.” The court granted temporary custody of Caleb to DCYF
on September 29, 1999.
On October 5, 1999, DCYF assigned an agent to investigate
allegations that Carter had sexually molested another son from a
2
R.I. Gen. Laws § 40-11-5(a) provides:
Any physician or duly certified registered nurse
practitioner treating a child who has suffered
physical injury that appears to have been caused by
other than accidental means or a child suffering
from malnutrition or sexual molestation shall have
the right to keep the child in the custody of a
hospital or any licensed child care center or
facility for no longer than seventy-two (72) hours,
with or without the consent of the child's parents
or guardian, pending the filing of an ex-parte
petition to the family court. The expense for that
temporary care shall be paid by the parents or
legal guardian of the child or, if they are unable
to pay, by the department.
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previous marriage. These allegations had previously had been
investigated and found meritless, but DCYF reopened the case when
Carter’s then fifteen-year-old son was found by a juvenile court to
have sexually abused a nine-year-old boy. The DCYF investigation
led to a criminal investigation, and Carter was indicted on May 9,
2000, for First and Second Degree Child Molestation. A trial was
scheduled for February 2001.
On January 17, 2001, O’Leary gave birth to Cassidy,
daughter of Carter. Based in large part on the pending sexual
molestation charges against Carter, DCYF removed Cassidy from her
home on January 23, 2001. The DCYF agent stated that Cassidy was
healthy and that there was no evidence of neglect or abuse. The
Family Court granted DCYF temporary custody on January 24, 2001.
Carter was found not guilty of the charges of sexual
molestation on March 8, 2001. On or about June 7, 2001, the Family
Court ordered reunification of Carter and O’Leary with both Caleb
and Cassidy, subject to continued monitoring, unannounced visits,
and counseling.
B.
Plaintiffs filed this action on January 15, 2004,
alleging three counts. First, plaintiffs alleged that defendants
were liable for damages pursuant to 42 U.S.C. § 1983 for infringing
on their constitutional right to familial integrity. In the second
count plaintiffs sought damages for violations of their rights
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under the Rhode Island Constitution. A third count sought
injunctive relief.3
Defendants filed for summary judgment on the theory that
the defense of qualified immunity protected their actions, based on
affidavits and transcripts of depositions of DCYF officers and
their answers to interrogatories. Plaintiffs filed an opposition
to the motion for summary judgment, relying on an affidavit of
Thomas Carter, the Family Court decision ordering reunification of
the children, and a guardian’s report stating that Cassidy had in
no way been neglected while in the custody of Carter and O’Leary.
The district court granted defendants’ motion for summary
judgment as to all of these claims. The district court refused to
consider the affidavit of Thomas Carter, reasoning that it did not
comply with the requirement of Fed. R. Civ. P. 56 that “affidavits
shall be made on personal knowledge, [and] shall set forth such
facts as would be admissible in evidence.”
Plaintiffs timely filed this appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review the district
court’s judgment without deference, drawing all reasonable
inferences from the record in plaintiffs’ favor. Iverson v. City
of Boston, 452 F.3d 94, 98 (1st Cir. 2006). Summary judgment is
3
Plaintiffs also sued the state of Rhode Island and
its officers in their official capacities. The district court
declined to consider these claims. Plaintiffs do not challenge the
district court’s determination on appeal.
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appropriate only when the record “show[s] that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
II.
On appeal the dispute centers on whether the defense of
qualified immunity shields the DCYF officers from liability for
their actions. Under 42 U.S.C. § 1983, persons acting under color
of state law may be liable if their actions create a “deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983. Nonetheless, the well-
established defense of qualified immunity shields government
officers from liability “as long as their actions could reasonably
have been thought consistent with the rights they are alleged to
have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987).
In evaluating claims of qualified immunity, this court
employs a three-part framework. Suboh v. Dist. Attorney's Office
of the Suffolk Dist., 298 F.3d 81, 90 (1st. Cir. 2002); Hatch v.
Dep't for Children, Youth & Their Families, 274 F.3d 12, 20 (1st
Cir. 2001); see also Wilson v. Layne, 526 U.S. 603, 609 (1999).
First, we ask “whether the plaintiff has alleged the violation of
a constitutional right.” Hatch, 274 F.3d at 20. If so, we then
ask “whether the right was clearly established” at the time of the
violation. Suboh, 298 F.3d at 90. Finally, if violation of a
clearly established constitutional right has been alleged, we turn
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to the facts of the case and ask whether an objectively reasonable
officer would have believed that the action taken violated that
right. Hatch, 274 F.3d at 20, 24. We need not address the latter
two aspects of the Hatch test because we conclude that plaintiffs
have not established a constitutional violation.
In Hatch, this court held that the right to familial
integrity “is plainly of constitutional dimension,” and “[t]he
interest of parents in the care, custody, and control of their
children is among the most venerable of the liberty interests
embedded in the Constitution.” 274 F.3d at 20 (citing Troxel v.
Granville, 530 U.S. 57, 65 (2000) (reviewing Supreme Court cases
that have recognized the right and stating that “the interest of
parents in the care, custody, and control of their children...is
perhaps the oldest of the fundamental liberty interests recognized
by this Court”)). This court has recognized that the deprivation
of this right would constitute a violation of due process, in
violation of the Fourteenth Amendment to the Constitution. Tower
v. Leslie-Brown, 326 F.3d 290, 298 (1st Cir. 2003); see also
Troxel, 530 U.S. at 65-66 (“[I]t cannot now be doubted that the Due
Process Clause of the Fourteenth Amendment protects the fundamental
right of parents to make decisions concerning the care, custody,
and control of their children.”).
As also recognized in Hatch, however, the right of the
parents is not absolute. The right to familial integrity must be
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balanced against the right of the state to investigate allegations
that the child is in danger, and in appropriate circumstances to
terminate the relationship between parent and child. Hatch, 274
F.3d at 20 (citing Santosky v. Kramer, 455 U.S. 745, 747-48
(1982)). Hatch focused on allegations of abuse. The court noted
the “difficult choices” faced by case workers investigating
allegations of abuse, who “operate under enormous pressure” and
must make “on-the-spot judgments on the basis of limited and often
conflicting information.” Hatch, 274 F.3d at 22. This court
concluded that “a case worker must have a fair amount of leeway to
act in the interest of an imperilled child” to take temporary
custody, subject to the required prompt court proceedings to
determine whether the officers’ actions were justified. Id. at 22;
see id. at 21, n.3; see also Santosky, 455 U.S. 745. Accordingly
Hatch adopted the test espoused by the majority of circuits to
balance the two interests, holding that “the Constitution allows a
case worker to take temporary custody of a child, without a
hearing, when the case worker has a reasonable suspicion that child
abuse has occurred (or, alternatively, that a threat of abuse is
imminent).” 274 F.3d at 22.
We first consider whether DCYF officers had an
objectively reasonable suspicion that child abuse had occurred, or,
alternatively, that a threat of abuse was imminent. With respect
to Cassidy, we believe that it clearly follows from Hatch that the
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decision of the DCYF officers was justified. The DCYF officers’
taking of Cassidy was based on the fact that her father was then
under indictment for child molestation and scheduled to stand
trial, and the officers were aware of these facts. We agree with
the district court that these facts, standing alone, justify the
action taken by the DCYF officers. As the district court stated,
Carter’s ultimate acquittal of the charges is irrelevant to
determining whether the DCYF officers’ suspicions were reasonable
at the time they took Cassidy, before the trial had begun.
The situation with respect to Caleb is more difficult.
Carter had not yet been indicted for molestation at the time Caleb
was taken, and a prior investigation had found allegations of
molestation by Carter to be meritless. There was no evidence that
Caleb had been abused. We are skeptical that the information in
possession of the officers at the time was sufficient to establish
an imminent threat of abuse. So far as the record reveals, the
officers knew that Caleb had been almost dropped when Carter
grabbed his eleven-year old daughter (who was holding Caleb) during
an argument with his ex-wife. They also knew that Carter had
previously been convicted of crimes related to domestic violence,
although there was no evidence that those convictions were recent
or even involved the same spouse or child. Under these
circumstances it is doubtful that there was sufficient evidence of
imminent abuse of Caleb at the time he was removed from the
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household.
However, the State argues that there was sufficient
evidence of a risk to the safety of the child because O’Leary, his
mother, actually attempted suicide (and was hospitalized for
treatment), while Carter threatened suicide. The possibility of
suicide created a real and imminent risk that Caleb, a one-year-old
child at the time, would not have a caretaker in the household to
provide for his immediate needs.4 Moreover, the police report
stated that Caleb was “on scene” when these events occurred, which
implicated a real possibility of psychological injury from
witnessing suicide attempts or threats by his parents.
To be sure, Hatch speaks of “child abuse” or an imminent
“threat of abuse.” 274 F.3d at 22. The line between abuse and
neglect is not always clear. Even if we view abuse as limited to
situations in which the parent affirmatively injures the child, we
believe that Hatch should not be read narrowly as being confined to
situations where actual or imminent child abuse is involved.
Rather, the interest of the state extends to all cases where there
is actual neglect or an imminent serious risk of neglect of the
child arising from any act or omission of the parent.
4
The fact that Caleb actually was removed from the
house of O’Leary’s parents (where he was staying temporarily while
O’Leary herself was receiving hospital treatment) is irrelevant.
Sexual abuse allegations also had been made against members of the
parents’ household, and there is no contention on appeal that the
grandparents were appropriately available to provide for Caleb.
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The Rhode Island statute pursuant to which Caleb was
taken does not require a finding of abuse, but rather explicitly
permits termination of parental rights in situations where the
parent “[f]ails to supply the child with adequate food, clothing,
shelter, or medical care” and where the parent “[f]ails to provide
the child with a minimum degree of care or proper supervision”
because of a mental condition or drug dependency. R.I. Gen. Laws
§ 40-11-2. This appears consistent with the general practice of
states to allow termination of parental rights in a broad array of
circumstances where there is an imminent serious risk of neglect of
the child arising from an act or omission of the parent. See 32
Am. Jur. Proof of Facts 3d 83 § 3 (2007) (noting that it is
normally only necessary to prove one of abuse, neglect,
abandonment, etc., to terminate parental relationship).5
Courts also have recognized that an imminent serious risk
of neglect justifies termination of the parental relationship. For
example, in Santosky v. Kramer, 455 U.S. 745 (1982), the Supreme
Court considered the standard of proof necessary to support a
finding that a child was “permanently neglected” under New York
law. The Supreme Court recognized that, although “[t]he
5
See also 43 C.J.S. Infants § 20 (2007) (“Under the
statutes which protect children who are found to be abandoned,
dependent, neglected, or the like, there may be a termination of
parental rights to such children.”); Jenina Mella, Termination of
Parental Rights Based on Abuse or Neglect, in 9 Causes of Action
483 (2d ed. 2006).
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fundamental liberty interest of natural parents in the care,
custody, and management of their child” is threatened by
proceedings to terminate parental rights, the state’s “urgent
interest” in “preserving and promoting the welfare of the child”
can override the parents’ rights. Id. at 753, 766 (internal
citation omitted). Similarly, in Stanley v. Illinois, 405 U.S. 645
(1972), the Supreme Court recognized that a finding of parental
neglect was sufficient to terminate parental rights. The Court in
Stanley struck down on equal protection grounds an Illinois statute
that provided that the children of unwed fathers automatically
became wards of the state upon their mother’s death. Id. at 658.
But the Court there too recognized the state’s strong interest in
the “moral, emotional, mental, and physical welfare of the minor,”
and stated that it “d[id] not question the assertion that
neglectful parents may be separated from their children.” Id. at
652 (internal citation omitted).
While most cases in our sister circuits have involved
abuse, and not neglect, other circuits have recognized that an
imminent risk that a child will be neglected can justify
termination of parental rights and give rise to a qualified
immunity defense. See Martin v. Saint Mary's Dep’t Of Soc. Servs.,
346 F.3d 502, 506 (4th Cir. 2003) (“A state has a legitimate
interest in protecting children from neglect and abuse and in
investigating situations that may give rise to such neglect and
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abuse.”) (emphasis added); Kia P. v. McIntyre, 235 F.3d 749, 759
(2d Cir. 2000) (noting “the state's compelling interest in
protecting children from abuse and neglect”) (emphasis added).6
Considering the “difficult choices” already confronting
case workers, who must make “on-the-spot judgments on the basis of
limited and often conflicting information,” we believe that a
plausible decision to remove a child because of actual abuse or
neglect or an imminent serious risk of abuse or neglect of the
child arising from any act or omission of the parent does not rise
to the level of a constitutional violation.
Here DCYF officers knew, at the time they decided to
remove Caleb, that his mother had attempted to commit suicide by
swallowing a large number of pills, and that Carter had also
threatened suicide. This presented a dual risk that Caleb’s daily
needs would not be provided for in the household and that, although
perhaps not independently sufficient, he would be psychologically
injured by his mere presence during these suicide attempts or
threats. Thus there was a serious risk of imminent neglect of
Caleb. The DCYF officers’ knowledge was sufficient to take Caleb,
6
See also United States v. Loy, 237 F.3d 251, 269
(3d Cir. 2001) (“It is well established that, although parents have
a fundamental right to raise their children, this right can be
overridden by the state's ‘compelling interest’ in ensuring
children's safety.”) (internal citation omitted); White ex rel.
White v. Chambliss, 112 F.3d 731, 735 (4th Cir. 1997) (“The
parent's right to custody is subject to the child's interest in his
personal health and safety and the state's interest as parens
patriae in protecting that interest.”)
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and consequently the plaintiffs have not established the existence
of a constitutional violation.
We recognize the importance of the right to family
integrity. But we also must recognize the serious adverse
consequences that would occur if child welfare officers, acting in
the best interests of the child, were subjected to section 1983
liability for reasonably taking temporary custody of children in
exigent situations. Such officers would refrain from acting in the
best interest of the child out of fear of litigation and potential
damages liability, and serious risks to children would go
unremedied. To be sure, such officers may sometimes make mistakes,
but the mandatory prompt state court review of their actions, the
political process, and public and media attention are likely to
provide a better remedy for erroneous but objectively reasonable
actions than would a damages action in federal court.
III.
We now consider two remaining arguments made by
plaintiffs. Plaintiffs argue that the district court erred in
excluding the affidavit of Thomas Carter.7 However, plaintiffs
7
Plaintiffs also challenge the district court’s
purported exclusion of plaintiffs’ verified statement of disputed
facts. However, it does not appear that the district court in fact
excluded that document. The district court stated that it would
not consider only Carter’s affidavit. The verified statement
raised no genuine issue of material fact, nor did the report of the
magistrate in stating that “there do not exist facts and
circumstances . . . that would justify a reasonable person to
suspect that a child is abused or neglected.” Those statements
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have failed to show that any error was not harmless. See Fed. R.
Civ. P. 61. Plaintiffs have not identified, nor do we find, any
statement in the affidavit that would raise a genuine issue as to
whether the DCYF officers’ actions were protected.8
Finally, plaintiffs assert that the DCYF officers
violated their rights under the Rhode Island Constitution. There
is no suggestion here that the right to familial integrity under
the Rhode Island Constitution is materially different than under
the United States Constitution. We agree with the district court
that the doctrine of qualified immunity shields defendants from
liability here as well. This court previously has acknowledged
“Rhode Island's recognition of a qualified immunity defense under
state law analogous to the federal doctrine established by the
United States Supreme Court.” Hatch v. Town of Middletown, 311
F.3d 83, 90 (1st Cir. 2002). Consequently, the decision of the
district court is
Affirmed.
were addressed to the situation that existed after Carter’s
acquittal rather than at the time Cassidy was taken.
8
In the affidavit, Carter denied allegations that
O’Leary intentionally crashed her vehicle, but the district court
did not base its decision on that fact, and we also have not
considered it in our decision. The affidavit’s conclusory
allegation that “[a]t no time did I or my wife Joy Carter in any
way abuse or neglect any of our children” was insufficient to
create a genuine issue of material fact.
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