DeCosta v. Chabot

USCA1 Opinion









July 14, 1995
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 94-2131

STEPHEN DeCOSTA, ET AL.,

Plaintiffs, Appellants,

v.

PAULINE CHABOT, ET AL.,

Defendants, Appellees.

____________________



ERRATA SHEET ERRATA SHEET



The opinion of this court issued on July 11, 1995 is hereby
amended as follows:

On the cover sheet: "and Schwarzer,* Senior Circuit Judge." _____________________
should be changed to "and Schwarzer," Senior District Judge." _____________________







































UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 94-2131

STEPHEN DeCOSTA, ET AL.,

Plaintiffs, Appellants,

v.

PAULINE CHABOT, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge] ___________________

____________________

Before

Boudin, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Schwarzer,* Senior District Judge. _____________________

____________________

Thomas N. O'Connor with whom George P. Dickson and Dickson & ___________________ ___________________ _________
Associates, P.C. were on brief for appellants. ________________
Ann Fitzpatrick Larney, Assistant Attorney General, with whom ________________________
Jeffrey R. Howard, Attorney General, was on brief for appellees. _________________


____________________

July 11, 1995
____________________
___________________

* Of the Northern District of California, sitting by designation.

















Per Curiam. Stephen and Joann DeCosta filed suit under __________

42 U.S.C. 1983 against various state and local officials

claiming an unconstitutional interference with their family

affairs caused by an allegedly unfounded child abuse

investigation primarily conducted by the state authorities.

After dismissing the claims against three defendants, the

district court granted summary judgment for all remaining

defendants, concluding that the plaintiffs had not asserted a

constitutional deprivation and, in any event, that

defendants' actions were protected by qualified or absolute

immunity.

On appeal, the plaintiffs have abandoned most of the

claims and theories they pressed below. The central issue

remaining is whether the district court properly granted

summary judgment for those who directed or assisted in the

state's inquiry, most importantly Pauline Chabot, the social

worker who headed the DeCosta investigation for the New

Hampshire Division for Children and Youth Services ("the

division"). Although the DeCostas do not purport to limit

their appeal to particular defendants, they have chosen not

to brief other issues (e.g., improper searches, liability of ____

supervisors) necessary to impose liability on various other

defendants.

The district judge has written a thorough opinion on the

legal issues, and in view of our disposition, there is no



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need to discuss the facts at length. The gist of the

DeCostas' case is that Chabot initiated and pursued an

investigation of the DeCostas based solely on their liberal

but permissible use of corporal punishment in the rearing of

their children and that she pursued the case even after the

evidence allegedly showed that there was no substance to the

charge of abuse. As their constitutional violation, the

DeCostas contend that Chabot's actions deprived them of a

federal liberty interest in family integrity and a state-

created liberty interest to be free from unwarranted

governmental interference in family matters.

This court has held that there is no "constitutional

right to be free from child abuse investigations." Watterson _________

v. Page, 987 F.2d 1, 8 (1st Cir. 1993). And the DeCostas' ____

alternative attempt to base a federal constitutional claim on

a state-created liberty interest, see Hewitt v. Helms, 459 _____ ___ ______ _____

U.S. 460, 469 (1983), appears to find little support in the

New Hampshire statutes they cite. The Child Protection Act

primarily safeguards children, not parents, N.H.R.S.A., c.

169-C, and the statute authorizing limited use of corporal

punishment is primarily directed to creating a limited

defense to legal proceedings. N.H.R.S.A. 627:b. See ___

generally Bowser v. Vose, 968 F.2d 105, 106-09 (1st Cir. _________ ______ ____

1992).





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In all events, we have no reason to resolve any abstract

legal issues on this appeal. Even if the DeCostas have a

constitutional interest against unreasonable state oversight

or interference in family matters, it is quite evident from

the record that the inquiry conducted by Chabot and others

was both permissible and amply protected by qualified

immunity. The division received a complaint of child abuse

from a seemingly credible source, the children's grandmother.

The grandmother lived in an apartment in the DeCostas' house.

The grandmother spoke to her doctor, and the doctor reported

the matter to the state. The grandmother was interviewed

extensively, and provided a detailed account, before the

children were brought in for examination and questioning.

When questioned, the children's answers provided substantial

support for their grandmother's concerns.

Once the children were removed from the home, a prompt

judicial hearing was provided. Thereafter the case remained

continuously under the supervision of the state court.

During its supervision, the court ordered the DeCostas and

their children to undergo counseling, and when it was

satisfied that counseling had been successful, the court

gradually returned the children to the home. Ultimately, the

court decided its supervision was no longer necessary and

closed the case, without any definitive findings on whether

abuse had occurred. What is reasonable in relation to an



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investigation depends on reasonable belief; and that is as

true in a case of suspected child abuse, e.g., Donald v. Polk ____ ______ ____

County, 836 F.2d 376, 379-81 (7th Cir. 1988), as it is in ______

conventional police decisions involving probable cause, e.g., ____

Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992). The ______ ______

reports given to Chabot and others indicated that the

children had been severely beaten with belts, sticks and

other implements, had been bruised and occasionally bloodied,

and that this was a repeated and persistent pattern. Despite

the general statements to the contrary by DeCostas' counsel,

there is no indication that the investigators thereafter

received evidence that persuasively negated these charges.

It is true that on reading the DeCostas' brief, one has

the impression that a medical examination of the children

disproved the charges of abuse and that the DeCostas were

eventually vindicated by the state court. Neither impression

is accurate. While only one child still bore the marks of

injury at the time of the examination, nothing in the

examination disproved the grandmother's story that the

children were routinely beaten for trifles with great

severity. As for the state court's action, the court

returned the children to the DeCosta home only after

counseling over a substantial period had proved successful;

the court did not find that no abuse had occurred.





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This is not a close case. Although the matter was

decided on summary judgment, the facts as to what the

investigators were told by the grandmother and the children

are apparently not in dispute, and our conclusion that those

facts provided ample cause for investigation is a matter of

legal characterization. The DeCostas' opening brief--not

signed by counsel who argued the appeal--is open to criticism

for presenting a picture of the evidence given the

investigators and of what happened in the state court

proceedings that appears to us to be materially incomplete.

Affirmed. ________





























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