Kauch v. Department for Children, Youth & Their Families

United States Court of Appeals
For the First Circuit

No. 02-1488

BRIAN S. KAUCH,

Plaintiff, Appellant,

v.

DEPARTMENT FOR CHILDREN, YOUTH
AND THEIR FAMILIES, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Joseph R. Palumbo, Jr., for appellant.
Linn F. Freedman, Deputy Chief, Civil Division, with whom
Sheldon Whitehouse, Attorney General, were on brief, for appellees.

February 14, 2003
 TORRUELLA, Circuit Judge. Plaintiff-appellant Brian S.

Kauch was married to Joan Berrigan until 1996. The couple has two

children: a son born in 1987 and a daughter born in 1990. This

family's story, as revealed during the course of this litigation,

is a sad one, and includes alleged abuse of both children by the

parents. The allegations spurred investigations by Rhode Island's

Department for Children, Youth and Their Families ("Department") on

several occasions. The present case asks us to determine whether

defendant-appellee Linda Benjamin, an agent of the Department,

violated Kauch's constitutional rights when, during the course of

an investigation in 2000, she considered records of a 1994

investigation that had been "expunged" by the Department. We find

that her actions were reasonable and therefore affirm the district

court’s grant of summary judgment for Benjamin.

I. Facts

We briefly identify the several allegations of abuse that

shape this case. In 1994, Berrigan reported to the police and the

Department that Kauch had sexually abused his daughter. Kauch, who

has always maintained his innocence, was arrested and charged with

first degree sexual assault; the Department also investigated the

charge. In 1996, all criminal charges were dropped, and the

records in connection with this matter were ordered expunged by the

Superior Court. In 1999, following Kauch’s appeal to the

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Department, a hearing officer ordered the Department’s file on the

matter expunged.

In 1998, the Department investigated charges of abuse

against Berrigan and Kauch. Both allegations were later determined

to be unfounded.1 In each report, the Department noted Kauch’s

1994 alleged sexual abuse of his daughter. Those allegations were

properly noted because they had not yet been ordered expunged.

On April 30, 2000, Kauch allegedly used excessive

discipline against his son. Berrigan reported the allegation to

the police and the Department. Mary Lou Votto, a social worker who

treated Kauch’s daughter, also reported the incident to the

Department. Benjamin, assigned by the Department to investigate

the complaint, interviewed Kauch’s children and Berrigan about the

incident and listened to a recorded call made by Kauch’s son after

the alleged incident. Benjamin "indicated" the case against Kauch

for excessive inappropriate discipline.

During the course of her investigation, Benjamin checked

the Department's records and discovered the records of the 1998

investigations, each noting that Kauch had been investigated for

sexually abusing his daughter in 1994. Benjamin searched in the

computer for the 1994 report and discovered that the case had been

1
The Department deems a case "unfounded" when there is no
evidence of abuse, and it "indicates" a case against a person when
the investigation leads the case worker to believe that some form
of abuse has occurred.

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"overturned," meaning the case had been appealed and ordered

expunged. Although the case had been overturned, Benjamin was able

to obtain the 1994 file alleging sexual abuse against Kauch. She

reviewed the file; she had also learned of the allegations of

sexual abuse from Votto and Berrigan.

In June 2000, Benjamin filed two dependency petitions

with the Family Court against Kauch, one with respect to each

child. Both petitions alleged "substantial risks" of harm to the

children. In support of these petitions, Benjamin submitted a

letter which alluded to the expunged sexual molestation charges

against Kauch. She referred to Kauch as "an indicated sexual

perpetrator," although she also noted that the investigation had

been overturned. Benjamin urged the Family Court to suspend

Kauch's visitation with both his son and daughter.

As a result of Benjamin's investigation, the Rhode Island

Family Court monitored the family and ordered all Kauch's visits

with his children to be supervised. However, Kauch's visitation

rights were never interrupted.

In mid-May 2000, Berrigan made another complaint to the

Department, alleging that Kauch had sexually molested his daughter.

The Department assigned Arlene Frazier to investigate the

allegation. Berrigan and Votto again told the case worker of the

1994 alleged sexual abuse. Kauch denied the allegations and stated

that Berrigan was coercing the children into making allegations

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against him. Based upon her investigation, Frazier "indicated" the

case against Kauch for "Other Neglect" of Kauch’s daughter, meaning

Kauch posed a risk to the child. She also found the allegations of

"Sexual Molestation and Lack of Supervision / Caretaker" to be

without basis. After Frazier's investigation, Benjamin gave her

the Department file containing detailed documentation of the 1994

expunged sexual molestation allegations, which Frazier reviewed.

In December 2000, all Family Court petitions against

Kauch were withdrawn and the Department's involvement in the case

ended. Currently, Kauch has unsupervised visits with his daughter

and custody of his son.

Kauch brought a civil suit under 42 U.S.C. § 1983,

claiming that the Department and Benjamin, in her official and

individual capacities, violated his constitutional right to

familial integrity. Both defendants filed motions for summary

judgment. The district court granted summary judgment for both

defendants on March 26, 2002, holding that the Department, a state

agency, is not a "person" as defined in § 1983, and therefore may

not be sued. See Will v. Michigan, 491 U.S. 58, 66 (1989). The

court also held that a state official may not be sued under § 1983

in her official capacity. See id. at 71. Finally, regarding the

claim against Benjamin in her individual capacity, the court held

that Benjamin's conduct did not rise to the level of a

constitutional violation, and, even if it was a violation, Benjamin

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was entitled to qualified immunity. Kauch only appeals the grant

of summary judgment against Benjamin in her individual capacity,

asserting that her investigation, including her use of the 1994

expunged material, violated his constitutional right to familial

integrity.

II. Discussion

We review the district court's summary judgment decision

de novo, taking the facts in the light most favorable to the

nonmoving party. Kelley v. Laforce, 288 F.3d 1, 4 (1st Cir. 2002).

Persons acting under color of law are liable under 42

U.S.C. § 1983 for infringing upon the constitutional or statutory

rights of private parties. Watterson v. Page, 987 F.2d 1, 7 (1st

Cir. 1993). It is undisputed that Benjamin, an employee of the

Department, was performing functions that were "inherently

governmental in nature" when she investigated charges of abuse by

Kauch. Frazier v. Bailey, 957 F.2d 920, 928 (1st Cir. 1992). As

such, she is amenable to suit under § 1983 and entitled to raise

qualified immunity as a defense. Id. The doctrine of qualified

immunity "provides a safe harbor for a wide range of mistaken

judgments." Hatch v. Dep't for Children, Youth and Their Families,

274 F.3d 12, 19 (1st Cir. 2001). Qualified immunity is "'an

entitlement not to stand trial or face the other burdens of

litigation,'" and, as such, it must be considered early in the

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litigation. Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

A three-part test is used to determine if an official is

entitled to qualified immunity. First, a court considers whether

"the plaintiff's allegations, if true, establish a constitutional

violation." Suboh v. Dist. Atty's Office, 298 F.3d 81, 90 (1st

Cir. 2002). Second, we determine whether the right was clearly

established at the time of the alleged violation. Id. Finally, we

determine "whether a reasonable officer, similarly situated, would

understand that the challenged conduct violated that established

right." Id. The answer to each inquiry must be positive to

overcome a defense of qualified immunity. Hatch, 274 F.3d at 20.

The first inquiry, whether or not the alleged facts

establish a constitutional violation, is a question of law. Id.

In seeking to overcome a qualified immunity defense, it is

insufficient for a plaintiff to merely allege a violation of

"familial integrity"; rather, he must specify the rights that have

been interfered with. Frazier, 957 F.2d at 930. Here, Kauch

claims that Benjamin violated his substantive due process rights in

the care, custody, companionship, and management of his children.

This right, "among the most venerable of the liberty interests

embedded in the Constitution," is protected by the Due Process

Clause. Hatch, 274 F.3d at 20. The question, therefore, is

whether Benjamin's actions establish a constitutional violation.

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 There is no constitutional right to be free from child

abuse investigations. Hatch, 274 F.3d at 20. Case workers must

walk a fine line between respecting the rights of parents and

protecting children, and often are required to make decisions on

the basis of limited and conflicting information. See id. at 22.

We have held that a case worker may take temporary custody of a

child without a hearing, "when the case worker has a reasonable

suspicion that child abuse has occurred (or, alternatively, [has a

reasonable suspicion] that a threat of abuse is imminent)." Id. at

22. We extend that reasoning to hold that a case worker, when

faced with a reasonable suspicion of abuse, may make a

recommendation to the Family Court requesting that the family be

monitored.

The imposition of supervised visitation occurred only

after Benjamin determined, based on interviews and the 1998

Department files, that it was in the children's best interests for

the Family Court to monitor Kauch's relationship with both

children. The children told Benjamin that Kauch had pushed his son

to the floor and then dragged him several feet;2 Kauch’s daughter

also stated that she was afraid of her father. Benjamin had

difficulty interviewing Kauch regarding the matter. This raised a

reasonable suspicion that the children were at risk in their

2
Kauch’s son later recanted his story, stating that his mother
told him to invent the story of abuse.

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father's care. Although Benjamin obtained the expunged files

detailing the 1994 allegations of sexual abuse, there is no

evidence that she relied heavily on this information in presenting

her petition to the family court. After all, the details of the

sexual abuse allegations were available to her from other sources.

The petitions also note that the allegations were overturned.

Benjamin had a reasonable suspicion that child abuse had occurred

when she filed the petitions that led to the requirement of

supervised visitation. On the facts of this case, the six month

supervised visitation requirement did not violate Kauch's

substantive due process rights.

Kauch argues that Benjamin had only been assigned to

investigate the allegation of abuse of his son, and therefore acted

recklessly in pursuing the information she learned about his

daughter. We are unwilling to hold that a case worker, acting on

information that one child in a family has been abused, should not

be allowed to follow up on tips that other children in the family

have been abused. Benjamin was alerted to the possible sexual

abuse of Kauch’s daughter by Berrigan and Votto, as well as from

the Department’s records. Public policy encourages a case worker,

"[w]hen presented with evidence of apparent child abuse," to "act

in the interest of an imperilled child -- and it is better to err

on the side of caution than to do nothing and await

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incontrovertible proof." Hatch, 274 F.3d at 22. Benjamin acted

properly in investigating possible abuse of Kauch’s daughter.3

The sensitive nature of this case has not been lost on

us. Benjamin, charged with the duty of protecting children from

abuse, investigated Kauch's family aggressively. In the course of

her investigation, Benjamin came across an expunged record alleging

that Kauch sexually abused his daughter. Obtaining and using this

expunged record was against the Department's policy, and although

we have held that Kauch's constitutional rights were not violated

under the facts present here, we strongly admonish the Department

for permitting these records to be obtained by case workers.

Unfounded allegations of sexual abuse can have devastating

consequences on a parent. Here, Kauch succeeded in appealing the

decision and having the record overturned. The Department has

never adequately explained why the 1994 file was still in existence

or how Benjamin obtained it. We urge the Department to be more

3
Finally, Kauch argues that Benjamin acted recklessly in giving
the expunged material to Frazier. Frazier received the expunged
material after her investigation and maintains that she did not
rely on it when she "indicated" Kauch for neglect; furthermore, her
report stayed within the Department, and there is no evidence that
it was ever presented to the Family Court. The constitutional harm
Kauch claims he suffered resulted from the imposition of supervised
visitation by the Family Court, and that decision was based solely
on Benjamin's investigation and dependency petition. While we do
not endorse Benjamin's sharing of the expunged material, because
there is no evidence that it influenced the Family Court's decision
to require supervised visitation, it does not alter our analysis.

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conscientious in the future in ensuring that such expunged

materials are truly removed from the system.

III. Conclusion

Even if Kauch’s allegations were established, we find

that no constitutional right would have been violated. Therefore,

our inquiry ends. See Saucier, 533 U.S. at 201. Kauch's claim for

violation of familial integrity fails. The decision of the

district court is affirmed.

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