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
-2-
-2-
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).
-3-
-3-
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
-4-
-4-
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.
-5-
-5-
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.
-6-
-6-