Berman, Norman v. Young, Jackie

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3905

NORMAN BERMAN, et al.,

Plaintiffs-Appellants,

v.

JACKIE YOUNG, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 1850--William T. Hart, Judge.

Argued June 7, 2001--Decided May 31, 2002

Before Coffey, Easterbrook, and Rovner,

Circuit Judges.

Rovner, Circuit Judge. After reports of

possible child abuse, the Calumet City

Police Department (CCPD) removed Amanda

Hebein from her home, and the Illinois

Department of Children and Family

Services (DCFS) placed her with her

maternal grandparents. Amanda remained

with her grandparents for eight months

until a state court ordered her returned

to her mother and stepfather, Pilar and

Norman Berman. Amanda, along with Pilar

and Norman, filed this lawsuit under 42

U.S.C. sec. 1983 against employees of the

CCPD, DCFS, and her maternal grandparents

seeking damages for the wrongful

separation of Amanda from her parents.

The district court granted summary

judgment in favor of the defendants.

Amanda and her parents appeal, and we

affirm.

Background

Amanda, born in December 1992, suffers

from cerebral palsy which affects, among

other things, her speech and motor

control. Relevant to this case, we note

that Amanda had a "moderately severe"

speech delay which significantly hindered

her ability to carry on a conversation.

Additionally, Amanda frequently fell and

sometimes had seizures that would result

in injury.

Prior to the incident that precipitated

this lawsuit, Amanda lived with her

mother, Pilar, and stepfather, Norman.

Although Norman did not formally adopt

Amanda, he had been involved with her

care and upbringing since mid-1995. Pilar

and Norman married in 1996, and they

resided in a house owned by Pilar’s

parents, Reno and Anita Boe. Anita cared

for Amanda during the day when Pilar was

at work and occasionally watched Amanda

on the weekends. Following a disagreement

with the Boes about Amanda’s care,

however, Pilar enrolled her daughter in

Tiny Town Day Care Center in April 1996.

Neither the Boes nor the employees at

Tiny Town thought highly of Norman. On

two separate occasions in 1996, both the

Boes and Tiny Town had reported

suspicions that Norman was abusing

Amanda. Both times, however, DCFS

determined the reports to be unfounded

and, in the Boes’ case, "harassing."

The series of events underlying this

lawsuit began during the afternoon of

October 11, 1996, when Amanda began

crying after she wet herself at Tiny

Town. Her caretaker, a woman called Lali,

proceeded to comfort Amanda, but the

child began crying, apologizing, and

saying "no," "don’t hit," and "no,

Norman." While cleaning Amanda in the

bathroom, Lali noticed four bruises,

approximately two inches wide, on

Amanda’s back and bottom. Lali inferred,

from Amanda’s limited conversational

skills, that Norman had inflicted the

bruises on Amanda with a belt.

The Boes were scheduled to pick up

Amanda at the end of the day, and when

they arrived at Tiny Town, Lali showed

Anita the bruises. The Boes took Amanda

to the Bermans’ residence as previously

planned so they could wait for Pilar and

Norman to return home.

In the meantime, Lali telephoned the

DCFS Hotline to report the bruises she

observed on Amanda and her suspicion that

Norman caused the injuries. Because there

were not enough DCFS investigators

available that evening, the employee who

answered the hotline call asked the CCPD

to investigate, a proper procedure under

DCFS rules.

Around 7:00 p.m. on the evening of

October 11, two CCPD officers arrived at

the Bermans’ residence to investigate the

report of possible child abuse. When they

arrived, Anita was still babysitting

Amanda, who was watching television.

Amanda did not appear to be in any pain

and had not received any medical

treatment for the bruises. The officers

asked Amanda questions about Norman

abusing her, to which Amanda responded

affirmatively. Within ten minutes, the

officers decided to take Amanda into

protective custody based on the

information from the hotline call, their

observation of the bruises, and their

conversation with Amanda. At the police

station, additional officers, including a

youth officer, questioned Amanda, and one

officer spoke with Reno who mentioned

that he previously had suspected and

reported that Norman abused Amanda. No

one made any effort to gather other

corroborating information by contacting

the Tiny Town employees, having Amanda

examined by a doctor, or investigating

Amanda’s family or medical history.

DCFS authorized the CCPD officers to

place Amanda temporarily with the Boes,

and in turn the officers instructed Anita

not to let Pilar take Amanda home. The

Bermans returned home around 10:00 or

11:00 p.m. that evening and learned that

Amanda was to remain at the Boes’

residence because of accusations that

Norman had abused her. The CCPD arrested

Norman that evening and charged him with

domestic abuse. He was arraigned the

following day and released with a

protective order prohibiting contact with

Amanda.

Defendant Jackie Young,/1 an

investigator in DCFS’s Division of Child

Protection, was assigned to perform an

initial investigation of the case. He met

with Pilar on October 12, although Pilar

was still unaware of Amanda’s bruises.

Young was then off duty for several days,

but on October 16 was assigned to conduct

the formal investigation. Young

interviewed a doctor and members of

Amanda’s extended family, but he did not

meet with Amanda until 19 days after the

abuse allegations, contrary to DCFS

regulations requiring a visit within 24

hours. Young also failed to complete the

required assessment of the

appropriateness and safety of Amanda’s

placement with the Boes. Despite having

been told by Pilar that Reno was violent,

Young failed to uncover a prior criminal

complaint that Reno had attacked Anita.

Further, DCFS files regarding the prior

allegations of abuse contained

information that Reno was a potential

danger to Amanda. In mid-November, Young

announced that he possessed credible

evidence supporting a finding of abuse by

Norman.

Defendant Sandy Threatt worked as a lead

investigator for DCFS and served as

Young’s immediate supervisor. Threatt was

aware of the delay in Young’s meeting

with Amanda, and she specifically ordered

Young to see the child. During the

investigation, Young informed Threatt of

his belief that Norman posed a danger to

Amanda and that she would be safe with

the Boes. Ultimately, Threatt concurred

in Young’s assessment of abuse.

On December 23, 1996, a state juvenile

court held a hearing at which Pilar,

Young, and Amanda’s guardian ad litem

testified, and the court concluded that

there was probable cause to believe that

Norman had abused Amanda. The court also

found that an "[i]mmediate and

urgentnecessity does exist to support

removal of the minor from the home." The

court provided Norman and Pilar

supervised visitation with Amanda and

instructed them to attend parenting

classes.

A few days after the court hearing,

defendant Roy Hall, a DCFS social worker,

was assigned to perform follow-up work on

Amanda’s case, including interviewing the

parties, preparing a service plan with

the ultimate goal of reuniting Amanda and

her parents, and assessing the delivery

of services. Although DCFS requires that

service plans be developed within 30

days, Hall did not meet with the Bermans

to begin follow-up until mid-February.

At that point, Hall scheduled parenting

classes for the Bermans and explained the

necessary steps to regain custody of

Amanda. Although he encouraged visitation

with Amanda, he was unresponsive to

Pilar’s complaints that the Boes

prevented the court-ordered visitation.

After an unannounced visit to the Boes’

home during which Hall observed Amanda

speaking quite comfortably with Norman

over the telephone, Hall began

questioning Reno’s insistence that Amanda

was afraid of Norman. Hall ordered an

additional psychological assessment of

Amanda, the Bermans, and the Boes, but it

did not begin until April 1997.

The assessment of the family revealed

that the Boes were indoctrinating Amanda

against her parents. Reno would accuse

Norman, in graphic detail and in Amanda’s

presence, of sexually abusing Amanda.

Moreover, he appeared to be highly

disturbed, with paranoid thoughts and

bizarre behavior. The evaluation also

documented that Anita was depressed and

that she told Amanda that Pilar did not

love her.

As a result of the information gleaned

from this evaluation, the state juvenile

court entered a protective order

prohibiting Reno from having contact with

Amanda. Reno moved out of the house, but

Amanda remained with Anita because the

court, on the advice of Hall and Amanda’s

guardian ad litem, believed that it would

be upsetting to return her to Pilar at

that time.

On June 17, 1997, the state court held

another hearing and ultimately returned

Amanda to the custody of Pilar and Norman

under court supervision. Later, in

November, the court terminated its

supervision on Hall’s recommendation and

assessment that Amanda would be safe with

the Bermans. Finally, in February 1998,

DCFS voluntarily entered an order

providing that the abuse report against

the Bermans was unfounded because it was

unclear who was responsible for Amanda’s

bruises.

On March 25, 1998, Amanda and her

parents filed a complaint against four

CCPD police officers, four DCFS workers,

and Reno and Anita Boe. Their later

amended complaint raised nine claims for

relief, including a Fourth Amendment

claim, several due process claims, and

five state-law tort claims against the

Boes. The district court entered judgment

in favor of all defendants, and Amanda

and the Bermans appeal.

Analysis

On appeal only three due process claims

against three of the DCFS defendants are

at issue: a substantive due process claim

against Young, Threatt, and Hall for

placing Amanda in a dangerous

environment; a substantive due process

claim against Young and Threatt based on

the violation of Amanda and Pilar’s

family association and autonomy rights;

and a procedural due process claim

against Young and Threatt focusing on the

delay in the DCFS proceedings. We review

the district court’s judgment de novo,

drawing all inferences in favor of

Amanda, Pilar, and Norman. Lesch v. Crown

Cork & Seal Co., 282 F.3d 467, 471 (7th

Cir. 2002).

1. Dangerous Placement Claim

Amanda asserts that Hall, Young, and

Threatt violated her substantive due

process rights by placing her with the

Boes, an environment the defendants

should have known was dangerous, and by

failing to investigate Reno’s history of

violence. The complaint further alleges

that, as a result of her placement with

the Boes, Amanda suffered emotional

disturbance, developed extensive tooth

decay, became obese, and received

inadequate medical care that exacerbated

her cerebral palsy.

Relying on the Rooker-Feldman doctrine,

the district court dismissed this claim

on jurisdictional grounds as to Hall. The

Rooker-Feldman doctrine precludes a lower

federal court from exercising

jurisdiction over a claim that would

require it to review a final judgment of

a state court. Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923); District of

Columbia Ct. of App. v. Feldman, 460 U.S.

462 (1983). The state juvenile court, at

its December 1996 hearing, found probable

cause to support a finding of abuse and

removal of Amanda from the home. The

district court concluded that this

judgment implicitly approved the

placement of Amanda with the Boes, and

that as to this claim a finding against

Hall, who became involved in Amanda’s

case only after the hearing, would

necessarily imply that the state-court

ruling was incorrect.

The district court concluded, however,

that the Rooker-Feldman analysis did not

apply to Young and Threatt because their

responsibility for Amanda’s well-being

predated the state-court hearing.

Instead, the district court granted

summary judgment to Young and Threatt

because there was insufficient evidence

that Amanda’s developmental delays and

emotional troubles were reasonably

foreseeable to Young and Threatt based on

information they had or should have

discovered.

On appeal Amanda argues that the

district court’s Rooker-Feldman analysis

regarding Hall was erroneous because

Amanda’s injuries were not caused by the

state-court decision but rather were

prior injuries that the state court

failed to remedy. With respect to Young

and Threatt, Amanda asserts that the

likelihood of injury was reasonably

foreseeable based on information the DCFS

employees possessed, even if the specific

injuries she suffered could not have been

predicted. We conclude that Amanda cannot

prevail on this claim because she failed

to establish causation.

In general, a state’s failure to protect

an individual from private injury does

not violate the mandate of due process.

DeShaney v. Winnebago County Dept. of

Soc. Servs., 489 U.S. 189, 196-97 (1989).

In situations where the state has

established a special relationship to the

victim, however, the state does have an

affirmative duty to protect the

individual. Id. at 198-99. This exception

is grounded in the restrictions that the

state places on the individual by

restraining personal liberty in some

manner. Kitzman-Kelley v. Warner, 203

F.3d 454, 457-58 (7th Cir. 2000).

Recognizing the "special relationship"

exception to the general DeShaney rule,

we have held that once a state removes a

child from her parents’ custody, it has

sufficiently restrained the liberty of

the child and therefore assumes a duty of

safekeeping. K.H. v. Morgan, 914 F.2d

846, 849 (7th Cir. 1990). As such, state

actors may be held liable for damages

"when they place a child in a foster home

knowing or having reason to know that the

child is likely to suffer harm there."

Camp v. Gregory, 67 F.3d 1286, 1293 (7th

Cir. 1995) (collecting cases from other

circuits).

To have survived summary judgment on her

claim for damages resulting from her

placement with the Boes, Amanda was

required to produce evidence that she

sustained actual injury and that her

injuries had a causal connection with the

alleged due process violation. Smith v.

City of Chicago, 913 F.2d 469, 472 (7th

Cir. 1990); Lossman v. Pekarske, 707 F.2d

288, 290-91 (7th Cir. 1983). Amanda

theorizes that the DCFS defendants failed

to address Pilar’s accusation that Reno

was violent and had once been

investigated for allegedly attacking

Anita. As the district court noted, DCFS

files regarding prior abuse allegations

contained information suggesting that

Reno might pose a danger to Amanda.

Indeed, Amanda maintains that she

suffered injury at the hands of the Boes

as evidence by her orthopedist’s opinion

that a lack of treatment while she stayed

with them worsened her condition.

Additionally, the psychotherapist who

evaluated Amanda and her family testified

that Amanda suffered post-traumatic

stress from her time with the Boes.

But what is missing is causation. The

emotional troubles and developmental

delays Amanda suffered are unrelated to

the hidden criminal history she claims

DCFS ought to have discovered. There is

no suggestion, for example, that her

orthopedic condition would not have

declined and she would not have suffered

stress and anxiety from the separation

from her mother had the DCFS agents

uncovered the prior criminal complaint

against Reno. Neither did Amanda offer

any evidence before the district court

that placement with someone other than

the Boes would have prevented the

injuries she alleged. Accordingly, she

has not established a causal connection

between the alleged inadequate

investigation by Young, Threatt, or Hall

and the damages she is asserting in this

sec. 1983 claim. See, e.g., Camp, 67 F.3d

at 1297.

2. Familial Rights Claim

Amanda and Pilar raised a sec. 1983

claim for "violation of substantive due

process rights to family association,

family autonomy, family integrity, and

family privacy." They assert that Young

and Threatt lacked a rational and

reasonable basis to continue Amanda and

Pilar’s separation for over eight months.

Specifically, Amanda and Pilar challenge

Young’s failure to see Amanda until 19

days after she was removed from her home,

his delayed investigation, and the lack

of corroboration of abuse.

The district court disagreed with the

plaintiffs and held that Young had an

adequate basis for his suspicion that

Norman abused Amanda: Young received

descriptions of the bruises and of

Amanda’s limited conversation in response

to questions from the Tiny Town workers

and CCPD officers; he knew that criminal

charges had been filed against Norman for

the alleged abuse; and when he did

observe Amanda, he found marks consistent

with prior abuse. Further, although Young

had no information that Pilar posed a

danger to Amanda, he also knew that Pilar

was still living with Norman. He

therefore recommended that Amanda remain

outside her home, but he did not prevent

Pilar from visiting Amanda. The district

court assumed that Threatt, as Young’s

supervisor, shared Young’s knowledge and

participated jointly in the decision-

making process, and so it applied the

same analysis to the claim against

Threatt.

On appeal Amanda and Pilar maintain that

Young and Threatt’s continuation of the

family separation was unconstitutional

because Young conducted very little

investigation, and certainly not enough,

they claim, to support a reasonable

suspicion of abuse. Additionally, Amanda

and Pilar argue that the scope of the

DCFS intervention was overbroad given the

circumstances. Young and Threatt seek to

support the district court’s grant of

summary judgment by relying on qualified

immunity.

Qualified immunity shields from

liability government actors performing

discretionary functions so long as they

do not violate "clearly established

statutory or constitutional rights of

which a reasonable person would have

known." Harlow v. Fitzgerald, 456 U.S.

800, 818 (1982); Kelley v. Myler, 149

F.3d 641, 648 (7th Cir. 1998). The

Supreme Court has counseled that the best

framework for analyzing a qualified

immunity defense is to first determine if

there has been a constitutional violation

and then to consider whether the

constitutional right at issue was clearly

established at the time of the violation.

Conn v. Gabbert, 526 U.S. 286, 290

(1999); County of Sacramento v. Lewis,

523 U.S. 833, 841 n.5 (1998). See also

Kitzman-Kelley, 203 F.3d at 457.

The constitutional violation alleged is

an infringement on due process rights to

family association and privacy. Parents

have a fundamental due process right to

care for and raise their children, and

children enjoy the corresponding familial

right to be raised and nurtured by their

parents. Troxel v. Ganville, 530 U.S. 57,

65-66 (2000); Brokaw v. Mercer County,

235 F.3d 1000, 1018-19 (7th Cir. 2000)

(citing cases and tracing the development

of the familial rights). However, these

rights to family integrity are not

absolute. Brokaw, 235 F.3d at 1019;

Wilkinson v. Russell, 182 F.3d 89, 103-04

(2d Cir. 1999). The family’s due process

interests must be balanced against the

government’s interest in protecting

children from abuse when it has "some

definite and articulable evidence giving

rise to a reasonable suspicion that a

child has been abused or is in imminent

danger of abuse." Brokaw, 235 F.3d at

1019; Croft v. Westmoreland County

Children and Youth Servs., 103 F.3d 1123,

1126 (3d Cir. 1997).

Based on our review of the record,

Amanda and Pilar failed to produce

evidence creating a genuine issue of fact

as to the reasonableness of Young and

Threatt’s suspicions of abuse. The

district court was correct in determining

that Young and Threatt had a reasonable

basis for their belief that Amanda was

being abused and needed to be removed

from her home. Young and Threatt

reasonably relied on reports from Tiny

Town workers about the bruises and on the

comments Amanda made in response to ques

tioning concerning the bruises. The CCPD

officers also documented their

observations of the bruises and Amanda’s

answers to their questions about Norman.

Although details in the descriptions of

the bruises differed, all of the Tiny

Town employees and the CCPD officers

involved agreed that the bruises were

consistent with abuse. Moreover, Young

and Threatt were aware that criminal

charges had been filed against Norman.

Finally, on October 30, Young personally

observed marks on Amanda that could be

consistent with prior abuse. Given this

background, it was reasonable for Young

and Threatt to suspect abuse.

Even assuming a constitutional

violation, however, the second phase of

our analysis--determining whether the

constitutional right was clearly

established--requires us to conclude that

Young and Threatt are entitled to

qualified immunity. Amanda and Pilar

assert that Young and Threatt failed to

conduct an adequate investigation and

that their decision to remove Amanda from

her home was overbroad given the

accusations that only Norman (and not

Pilar) abused Amanda. To the extent that

Young and Threatt’s investigations ought

to have been more detailed or they ought

to have considered more limited measures

than removing Amanda from the home,

neither the extent of their obligations,

nor the extent of the right to family

integrity and association, were so well-

developed as to place them on notice that

their actions were unlawful. See Brokaw,

235 F.3d at 1023 ("[B]ecause the balance

between a child’s liberty interest in

familial relations and a state’s interest

in protecting the child is nebulous at

best, social workers and other state

actors who cause a child’s removal are

entitled to qualified immunity because

the alleged constitutional violation will

rarely--if ever--be clearly

established.").

3. Delayed Hearing Claim

Amanda and Pilar raised a procedural due

process claim based on the failure of

Young and Threatt to initiate a post-

deprivation judicial hearing to determine

the legality of Amanda’s removal from the

home until December 23, 1996, over two

months after she was seized. In ruling on

the defendants’ earlier motion to

dismiss, the district court concluded

that the 72-day delay violated the

constitutional requirement of a prompt

judicial hearing. Hebein v. Young, 37 F.

Supp. 2d 1035, 1046-47 (N.D. Ill. 1998).

Ultimately, however, the district court

granted summary judgment to Young and

Threatt because the plaintiffs offered no

evidence that a prompt hearing would have

yielded a different outcome than the

December 23 hearing.

On appeal Amanda and Pilar assert that

a timely post-deprivation hearing would

have been accompanied by a

contemporaneous medical examination,

whereas the December 23 hearing lacked

any testimony from a medical

professional. The district court reasoned

that, although an earlier hearing would

have allowed for medical testimony

regarding Amanda’s bruises, there was

already testimony from witnesses that the

bruises were consistent with abuse and

one more person testifying to that same

conclusion would not have changed the

outcome of the hearing. Amanda and Pilar

challenge the district court’s inference

that a medical professional would

necessarily have concurred with the

assessment of the lay people who saw

Amanda’s bruises. Specifically, the

plaintiffs identify Dr. William Morris,

Amanda’s pediatrician, who examined

Amanda two weeks after the alleged abuse

and opined that her bruises could be

consistent with falling down, a

consequence of her cerebral palsy.

A procedural due process claim such as

this one is premised on Supreme Court

holdings that "[t]he fundamental

requirement of due process is the

opportunity to be heard at a meaningful

time and in a meaningful manner." Mathews

v. Eldridge, 42 U.S. 319, 333 (1976). The

amount of process due--that which

constitutes "meaningful"--varies

depending upon the particular

circumstances involved. Id. at 334. When

the state removes a child from her

parents, due process guarantees prompt

and fair post-deprivation judicial

review. Brokaw, 235 F.3d at 1021.

The district court determined that the

state court hearing, held on December 23,

1996, was not "prompt." Hebein, 37 F.

Supp. 2d at 1047. We agree that the delay

in the proceedings was rather outrageous.

In order for Amanda and Pilar to prevail

on this claim, however, they must

establish, "with some degree of

probability," that a timely hearing would

have prevented the extended infringement

on their familial rights. Lossman, 707

F.2d at 291. In other words, they must

demonstrate actual damages resulting from

the delay in the post-deprivation

hearing. Donald, 836 F.2d at 380;

Lossman, 707 F.2d at 291.

Our review of the evidence at summary

judgment compels us to conclude that

Amanda and Pilar cannot pass this hurdle.

Although they protest the lack of medical

testimony at the December 23 hearing,

they have offered no reason why they

failed to solicit a medical examination

shortly after the abuse allegations.

Moreover, it appears from the record that

Young testified at the hearing that Dr.

Morris found no evidence of abuse. Amanda

and Pilar cannot demonstrate any injury

resulting from the delayed hearing,

especially given that the state court

approved the removal of Amanda from her

home. Without actual damages, they cannot

prevail on this claim. See Lossman, 707

F.2d at 291.

Conclusion

For the foregoing reasons, we affirm the

judgment of the district court.

FOOTNOTE

/1 Jackie Young passed away after this suit was

filed. His estate remains a party by its repre-

sentative, Bruce A. Boyer.