Carter Ex Rel. Caleb O. v. Lindgren

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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