Terry, John v. Richardson, Cherry

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-1883

JOHN TERRY, individually and as the

natural father and next friend of

Jaidah Terry, a minor,

Plaintiff-Appellee,

v.

CHERRY RICHARDSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 97 C 1198—John A. Gorman, Magistrate Judge.

____________

ARGUED APRIL 15, 2003—DECIDED OCTOBER 10, 2003

____________

Before FLAUM, Chief Judge, RIPPLE, and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. Cherry Richardson, an in-

vestigator with the Illinois Department of Children and

Family Services (“DCFS”), told John Terry not to visit his

three-year-old daughter, Jaidah, during an investigation

into charges that John sexually abused Jaidah. John con-

tends that Richardson acted without appropriate notice or

a hearing and without enough evidence and that these

shortcomings violated his and Jaidah’s Fourteenth Amend-

ment rights to procedural and substantive due process. A

2 No. 02-1883

jury found for John and Jaidah (whose claims we can treat

as one for purposes of our analysis), and Richardson ap-

peals, arguing that the defense of qualified immunity enti-

tles her to judgment as a matter of law. Because there was

no constitutional violation in the first place, we agree that

Richardson should prevail and reverse.

I. BACKGROUND

John and Richelle Terry married in 1990 and divorced

three years later. Under their divorce decree, Richelle re-

ceived sole custody of Jaidah, the couple’s only child. John

was awarded reasonable visitation, which included his

birthday and Father’s Day as well as two consecutive days

every other week (to be determined by his work schedule),

ten consecutive days in the summer, and various other

occasions (including Jaidah’s birthday) on which he and

Richelle alternated visitation.

By 1995, Richelle was living with her boyfriend and his

three children, and John had moved in with his mother and

stepfather while he went to school. At some point Richelle

noticed that when Jaidah returned from visits with John

she appeared “withdrawn.” She also observed that Jaidah

resisted visiting her father, generally feared adult men (in-

cluding Richelle’s own boyfriend), and had begun wetting

her bed.

Suspecting that John may have abused Jaidah, Richelle,

on April 30, 1995, asked her daughter whether she had

any “secrets.” According to Richelle, Jaidah eventually re-

sponded that John hurt her, kissed her “pee-pee,” forced her

to swallow a necklace, tried to make her kiss his “noodle,”

and jammed crayons and a pen into her anus. Upon hearing

this information, Richelle promptly contacted Jaidah’s pe-

diatrician and on the doctor’s advice called DCFS’s child-

abuse hotline.

No. 02-1883 3

The next morning DCFS assigned Richardson to investi-

gate, and she began by informing the state police that to

assure Jaidah’s safety, her plan (known as a “safety plan”)

was to eliminate contact with John during the investi-

gation. Richardson then telephoned Richelle, who repeated

the allegations that she had made the night before and sup-

plied additional details. She explained that according to

Jaidah her father had threatened to kill her if she revealed

the abuse and that Jaidah had disclosed the “bad secret”

only because she thought that she would not have to see

John again. Richelle also relayed that John had admitted to

sharing a bed with Jaidah at his mother’s house, that his

mother and stepfather recently had been away traveling,

and that she believed the abuse occurred at their home.

Richelle finally told Richardson that the following day was

Jaidah’s fourth birthday and that she did not want John to

see her.

Richardson next called John and left a message on his

answering machine with her name and telephone number.

According to John, she also said, “Your child has been in-

dicated in an abuse situation. You are to cease all visitation

and contact with her.” After leaving this message, Richard-

son and another investigator visited Richelle’s home and

scheduled a formal interview later in the week with Jaidah.

Richelle at this time stressed that she was concerned about

John seeing Jaidah for her birthday, to which Richardson

replied that she should “try to defer him.” Richelle then told

John that Jaidah was too ill to see him.

The following day, May 2, John returned Richardson’s

call. He asked to know the nature of the charges, and

Richardson responded that she could not tell him over the

telephone. John then explained that he could not meet with

Richardson for at least a week because he had final exams;

he also said that he had not seen Jaidah very much recently

due to his work and school schedule. Richardson repeated

that he was not to contact Jaidah, to which John replied,

4 No. 02-1883

“okay” or “I understand.” According to Richardson, she un-

derstood from John’s response that he intended to comply

with her safety plan, so she did not pursue other options for

preventing contact with Jaidah.

Later that morning, Richardson spoke with Jaidah’s pedi-

atrician, Dr. Lynn Greeley, who had examined Jaidah the

day before for signs of sexual abuse. Dr. Greeley said that

Jaidah’s genitalia were abnormal, that her anus was “lax

and easily opened,” that her hymen possibly was scarred,

and that she complained of pain around her fourchette.

Dr. Greeley’s findings were corroborated a week later by

a second pediatrician, Dr. Kay Saving, who reported that

Jaidah had a dilated anus and fourchette scarring. Because

these findings were “very compatible with a history of sexu-

al abuse,” Dr. Saving recommended immediate counseling.

Richardson, accompanied by another DCFS investiga-

tor and a state police investigator, interviewed Jaidah on

May 3. In response to Richardson’s questions—which John’s

expert characterized at trial as unduly suggestive— Jaidah

said that her father had made her have bad dreams, choked

her, called her stupid, and put beads in her mouth. After

the police investigator left the room, telling Jaidah on his

way out that it was “okay to tell,” Richelle joined the inter-

view and held Jaidah on her lap. Jaidah replied “no” when

Richardson asked if her father rubbed “his noodle on her

pee-pee,” but when her mother repeated the question,

Jaidah said “yes it hurt.”

Richardson interviewed John at his attorney’s office on

May 16—two weeks after their initial conversation. She

identified the allegations against him and provided a DCFS

brochure describing the investigation process. John denied

inappropriate contact with Jaidah and said that Richelle

had previously made unfounded charges of child abuse

against her own father. He also said that Richelle was man-

ic-depressive and twice had attempted suicide.

No. 02-1883 5

At the end of the interview, Richardson again told John

not to contact Jaidah during the investigation, which she

explained could last up to 90 days. Neither John nor his

attorney asked Richardson whether his compliance was

required or questioned her authority to interfere with his

visitation. According to John, he refrained from contacting

Jaidah because he had learned from “news reports and

things” that ignoring DCFS instructions could lead to ter-

mination of his parental rights or Jaidah’s placement in a

foster home.

Richardson closed her investigation on June 16 and filed

a final report “indicating” John for sexual penetration, ex-

ploitation, and molestation. Richardson left a message for

John, in which she explained her findings and asked him to

call with any questions. According to John, he never re-

ceived this message and did not learn that the investigation

had ended until he received a letter from DCFS telling him

that he had 60 days to appeal the indicated finding (a pro-

cess that he began but later abandoned).

On June 16, the same day that Richardson closed her

investigation, Richelle obtained an ex parte order that

prohibited John from taking custody of Jaidah. At a hear-

ing held three weeks later, John agreed to the terms of the

interim order, and Richelle then petitioned to terminate his

visitation entirely. The court, after more than a year of pro-

ceedings, found that Jaidah had been sexually abused, but

not by John, and denied the petition. Within a week John

began seeing Jaidah again.

John then brought this action under 42 U.S.C. § 1983

against Richardson (and a number of other defendants not

relevant to the appeal) on behalf of himself and Jaidah.

After a magistrate judge denied cross motions for summary

judgment, the case was tried on John’s procedural and sub-

stantive due process theories. The jury awarded $2,062 to

John and $7,210 to Jaidah, and after denying Richardson’s

6 No. 02-1883

motions for judgment as a matter of law and a new trial,

the court awarded attorneys’ fees.

II. ANALYSIS

On appeal, Richardson’s principal contention is that she

is entitled to judgment as a matter of law because qualified

immunity blocks John’s claims. In evaluating this defense,

the first question is whether Richardson violated a constitu-

tionally protected right; if so, we turn to whether this right

was clearly established at the time of the violation. Saucier

v. Katz, 533 U.S. 194, 201 (2001); Payne v. Pauley, 337 F.3d

767, 775-76 (7th Cir. 2003). Given the jury’s verdict, the

facts are viewed as favorably as possible to John. But be-

cause juries are not authorized to determine the substance

of the Constitution, the legal question whether a constitu-

tional violation occurred is reviewed de novo. McNair v.

Coffey, 279 F.3d 463, 466 (7th Cir. 2002); see also Bell v.

Irwin, 321 F.3d 637, 640-41 (7th Cir. 2003).

A. Interference With a Protected Interest

Like the parties, we assume that noncustodial parents,

such as John, have a constitutionally protected interest in

visiting their children. All agree that this interest is an

aspect of parents’ right to “care, custody, and control” of

their offspring. Troxel v. Granville, 530 U.S. 57, 66 (2000)

(collecting cases). The disagreement concerns whether

Richardson’s conduct interfered with this interest.

According to Richardson, no interference occurred because

reasonable people in John’s position would have understood

that they did not need to follow her instruction not to visit

Jaidah. No one has suggested that Richardson could

unilaterally alter the terms of John’s divorce decree or that

she could force him to comply with her safety plan. Indeed,

No. 02-1883 7

DCFS’s deputy director, Edward Cotton, testified without

contradiction that absent a court order, cooperation is es-

sential to separate parents suspected of abuse from their

children.

Richardson’s argument proceeds by analogy to the law

governing seizures of criminal suspects. As Richardson

rightly observes, a seizure does not occur when the police

approach people on the street and pose questions, ask for

identification, or request consent to search their belong-

ings—provided that cooperation is not induced by coercive

means. United States v. Drayton, 536 U.S. 194, 200-01

(2002); United States v. Childs, 277 F.3d 947, 950 (7th Cir.

2002) (en banc). Fourth Amendment protections arise only

when a reasonable person would not feel free to leave the

police presence, or if leaving is impractical, when a rea-

sonable person would not feel free to “decline the officers’

requests or otherwise terminate the encounter.” Florida v.

Bostick, 501 U.S. 429, 436 (1991); United States v. Jerez,

108 F.3d 684, 689 (7th Cir. 1997).

John does not argue that these rules form an inappropri-

ate framework for analyzing claims of official interference

with noncustodial parents’ visitation with their children.

The treatment indeed is sensible because interference

with the parental right to “care, custody, and control” ordi-

narily is measured through the objective lens of the Fourth

Amendment. E.g., Doe v. Heck, 327 F.3d 492, 520 (7th Cir.

2003); Brokaw v. Mercer County, 235 F.3d 1000, 1019 (7th

Cir. 2000); Darryl H. v. Coler, 801 F.2d 893, 901 n.7 (7th

Cir. 1986). Nor does John contend that his proffered ex-

planation for obeying Richardson—his having heard on

television that disobeying DCFS caseworkers could spell the

end of his parental rights or lead to foster care for

Jaidah—was reasonable. John argues instead that regard-

less of whether he knew that Richardson could not prevent

him from visiting his daughter, he was required to obey her

commands. Just as motorists must halt immediately when

8 No. 02-1883

the police order them to stop, see McNair, 279 F.3d at 465,

John insists that he could not ignore Richardson’s instruc-

tions.

In one respect, John has a point. On May 1—when

Richardson first called John—he had no information other

than what was furnished in the message left on his answer-

ing machine. Based on that message, a reasonable person

might not have realized immediately that Richardson could

not override his divorce decree or force him to submit to her

safety plan.

But just one day later, John had an opportunity to speak

with Richardson and ask about the scope of her authority.

And within two weeks of that conversation, John had en-

listed an attorney and met with Richardson—a meeting

that was delayed by a week because of his final exams. By

then, a reasonable person with the resources available to

John, would not have left Richardson’s authority unques-

tioned, just as reasonable motorists (to borrow John’s anal-

ogy) do not remain stopped on the roadside for weeks after

the officer who ticketed them drives off. John’s contention

that Richardson prevented him from seeing Jaidah after she

wrapped up her investigation on June 16 thus is doubly

unpersuasive: Richardson only a month earlier said not to

see Jaidah during the investigation, and she never sug-

gested that she would have an ongoing role in the case.

Given that the May 16 meeting at the attorney’s office

was postponed by a week at John’s request and that his

divorce decree entitled him only to biweekly visitation,

Richardson’s conduct deprived John of association with

Jaidah at most for one day—her May 2 birthday. We say “at

most” because the record could support a finding that

Richardson was not even responsible for this missed visit.

Jaidah’s mother after all was the one who told John that

Jaidah was too sick to see him on her birthday. But given

the jury’s verdict, we assume that John acted on account of

No. 02-1883 9

Richardson’s instruction instead of Richelle’s lie, meaning

that the case comes down to whether this one-day interfer-

ence is enough to sustain John’s procedural and substantive

due process claims.

B. Procedural Due Process

We start with procedural due process. John contends that

he was entitled to notice and a hearing either before or

immediately after Richardson instructed him not to visit

Jaidah. John observes that noncustodial parents must be

notified and offered a hearing before their parental rights

are terminated, see Santosky v. Kramer, 455 U.S. 745, 758-

70 (1982), and likewise that predeprivation process—except

in emergencies—is required before the state removes chil-

dren from their custodial parents’ care, e.g., Brokaw, 235

F.3d at 1020; Batten v. Gomez, 324 F.3d 288, 295 (4th Cir.

2003). But these decisions add nothing because Richardson

did not try to sever John’s parental rights or take Jaidah

from his custody. Losing a single day of visitation differs

in kind and duration from the deprivations cited by John,

which is significant because the gravity of his loss de-

termines the process to which he is entitled. Mathews v.

Eldridge, 424 U.S. 319, 335 (1976); Morrell v. Mock, 270

F.3d 1090, 1095 (7th Cir. 2001); Gottlieb v. County of

Orange, 84 F.3d 511, 521-22 (2d Cir. 1996).

Here John’s interest—one day of visitation with Jaidah—

is slight, as illustrated by the fact that work and school

often kept him from seeing Jaidah before the investiga-

tion began. In at least two circuits, this loss might be so

tiny that it simply does not amount to a deprivation of

liberty. See Zakrzewski v. Fox, 87 F.3d 1011, 1014 (8th Cir.

1996); Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981).

Richardson has not relied on the approach taken by these

courts, so we need not decide whether John’s interest is too

insignificant to be actionable. See Hessel v. O’Hearn, 977

10 No. 02-1883

F.2d 299, 302-04 (7th Cir. 1992) (discussing de minimus

constitutional violations). It is enough to say that the

deprivation is minor compared with the state’s substantial

interest in protecting children like Jaidah from sexual

abuse. See Doe, 327 F.3d at 520; Berman v. Young, 291 F.3d

976, 983-84 (7th Cir. 2002); Brokaw, 235 F.3d at 1019.

This disparity affects what process is due. Where the loss

is small, due process does not require elaborate procedures

in advance, e.g., Wozniak v. Conry, 236 F.3d 888, 890 (7th

Cir. 2001)—assuming that predeprivation process is

required at all, Fitzgerald v. Williamson, 787 F.2d 403, 408

(8th Cir. 1986) (an opportunity to litigate in state court

after the fact suffices when noncustodial parents’ visitation

is reduced after their children enter foster care); cf.

Ingraham v. Wright, 430 U.S. 651, 676-82 (1977) (same re-

sult for corporeal punishment in public schools). Here John

could have contacted Richardson before Jaidah’s birthday

and explained that he had never abused his daughter. And

upon learning that Richardson had no authority to tell him

not to visit Jaidah, John could have brought suit in state

court for damages and declaratory relief. Cf. Hudson v.

Palmer, 468 U.S. 517, 533 (1984) (postdeprivation remedies

satisfy due process where the loss is caused by “random and

unauthorized” conduct); Parratt v. Taylor, 451 U.S. 527,

541-42 (1981) (same). Or he could have refused to comply

with Richardson’s instruction, which would have forced

judicial intervention to keep him away. See Ellis v. Hamil-

ton, 669 F.2d 510, 515 (7th Cir. 1982). Given the interests

at stake, the options available to John were enough to

guard against erroneous interference with his rights.

C. Substantive Due Process

That leaves John’s substantive due process claim. John

may maintain this claim despite receiving all the process

to which he was entitled, Zinermon v. Burch, 494 U.S. 113,

No. 02-1883 11

125 (1990); Daniels v. Williams, 474 U.S. 327, 331 (1986),

by showing that he was subjected to arbitrary government

action, Tenenbaum v. Williams, 193 F.3d 581, 600-01 (2d

Cir. 1999). During child-abuse investigations of parents who

have custody of their children, arbitrary abuses of gov-

ernment power are checked by requiring objective justi-

fication for steps taken during the investigation. Thus,

caseorkers who come between parents and their children—

for example, by taking protective custody of the children—

must have evidence to support a “reasonable suspicion” of

past or imminent abuse. Brokaw, 235 F.3d at 1019; Ber-

man, 291 F.3d at 983-84; see also Croft v. Westmoreland

County Children & Youth Servs., 103 F.3d 1123, 1126-27

(3d Cir. 1997).

Likewise, if Richardson had possessed the authority to

force John not to see Jaidah, she would have needed ade-

quate grounds for her action. Potentially, she would have

needed less justification than caseworkers who interfere in

custodial parents’ relationships with their children, but we

can bypass that question given the evidence available here.

Before calling John on May 1, Richardson had spoken to

Richelle on the telephone and confirmed the allegations

made in her hotline report the previous night. Richardson

also learned from Richelle that John had allegedly threat-

ened to kill Jaidah if she revealed the abuse, that John had

shared a bed with Jaidah when she visited him overnight,

that his parents had recently been away, and that he was

planning to see Jaidah the following day.

This information adds up to a reasonable suspicion of past

and imminent harm, which later developments did not

dispel. To the contrary, one day after John was told not to

see his daughter, Jaidah’s pediatrician reported findings

consistent with sexual abuse. Those results were confirmed

a week later by a second doctor, and throughout the inves-

tigation Jaidah never suggested that anyone other than

John had hurt her. In light of this evidence, John’s substan-

tive due process claim is foreclosed.

12 No. 02-1883

We recognize that the actual separation between John

and Jaidah lasted for more than a year and undoubtedly

was a source of significant difficulty for them both. But as

we explained at the outset, no reasonable person in John’s

position would have treated Richardson’s instruction as a

bar to visiting Jaidah for such a long period. Because there

was no constitutional violation, it is unnecessary to reach

the second step of the qualified immunity analysis, which

asks whether John’s rights were clearly established at the

time Richardson acted. Our resolution also makes it unnec-

essary to discuss Richardson’s other arguments, though we

note that the award of attorneys’ fees must be vacated since

she is now the prevailing party.

III. CONCLUSION

The judgment of the district court is REVERSED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-10-03