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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