Elizabeth Sebesta v. Andrea Davis

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16-1355

ELIZABETH SEBESTA, individually, and as parent and next

friend to ELIZABETH MARIE SEBESTA, a minor,

Plaintiff-Appellant,

v.

ANDREA DAVIS, in her individual capacity, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 7834 — Gary Feinerman, Judge.

____________________

ARGUED SEPTEMBER 14, 2017 — DECIDED DECEMBER 21, 2017

____________________

Before WOOD, Chief Judge, and RIPPLE and HAMILTON, Cir-

cuit Judges.

WOOD, Chief Judge. A parent has a fundamental right, pro-

tected by the Constitution, to “direct the upbringing” of her

child. See Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925);

Meyer v. Nebraska, 262 U.S. 390, 399 (1923). But like many con-

stitutional rights, this one does not exist in a vacuum. The

2 No. 16-1355

state has a strong interest in its most vulnerable citizens, in-

cluding its children. In order to protect their welfare, states

have agencies devoted to the task of child and family protec-

tion. Those agencies are staffed by people who must investi-

gate possible abuse of children yet at the same time respect

parents’ rights. The present appeal raises the question

whether certain Illinois state actors impermissibly infringed

on a mother’s rights as they endeavored to protect her child.

In September 2010, a hospital social worker harbored con-

cerns about Elizabeth Sebesta’s ability to care properly for her

newborn daughter. The social worker contacted the Illinois

Department of Children and Family Services (“DCFS”),

which conducted an investigation. Although DCFS employ-

ees pressured Sebesta to accept certain at-home services, they

never removed Sebesta’s daughter from her custody. We con-

clude, as the district court did, that neither the hospital

worker nor the DCFS employees stepped over any constitu-

tional line. They reasonably dealt with a sensitive situation in

which they had to decide what would serve the child’s best

interest. We affirm the district court’s grant of summary judg-

ment in their favor.

I

A

Our account of the facts is somewhat truncated because a

number of the supporting documents have been maintained

under seal for a variety of reasons. But we can offer enough to

explain our decision. Sebesta had not been doing well a few

weeks before she was due to deliver her baby. On September

1, 2010, she sought medical treatment for a physical problem

at Swedish Covenant Hospital. It soon was clear that more

No. 16-1355 3

than the physical condition was at stake. Sebesta reported that

she recently had “trashed” her parents’ home and that she had

been accused of being suicidal. That report, along with other

tests, prompted the hospital to order a psychiatric referral.

The psychiatrist provided a diagnosis and recommended that

Sebesta be admitted to the inpatient psychiatric unit at the

University of Illinois Medical Center (“UIMC”).

Sebesta acquiesced in this course of action and had herself

admitted to UIMC. While at the hospital, medical staff

observed that she was paranoid and angry, exhibited

delusions of grandeur, and lacked insight into her illness.

Sebesta’s history of psychiatric care, including a prior

hospitalization, was recorded. After a few days of treatment,

she was discharged on September 7. She declined further

counseling. On September 26, Sebesta returned to UIMC

because she was experiencing labor pains. The next day, she

gave birth to her daughter, Elizabeth Marie.

The pediatric team wrote a note to Andrea Davis, a

licensed social worker at UIMC, and asked her to look into

Sebesta’s case. Davis did so, beginning on September 28 with

a review of the medical chart, which mentioned Sebesta’s

mental health diagnosis and a psychotic break earlier in the

month. Davis then met with Sebesta and her mother,

Soonduck. Davis observed, among other things, that Sebesta

was hostile and easily angered; exhibited a lack of insight into

her psychiatric needs; fought with her mother; and had

refused a toxicology screen of her daughter. Davis

recommended that Sebesta seek outpatient psychiatric

treatment, but Sebesta rebuffed the suggestion.

Davis became concerned that Elizabeth Marie was at risk

of neglect. Under Illinois’s Abused and Neglected Child

4 No. 16-1355

Reporting Act (“ANCRA”), 325 ILCS 5/4, Davis is in the class

of persons required to report if they have “reasonable cause

to believe a child known to them in their professional or

official capacity may be an abused child or a neglected child.”

Id. ¶ 1; see also ILL. DEP’T OF CHILDREN & FAMILY SERVS.,

MANUAL FOR MANDATED REPORTERS (May 2015 rev. ed.),

https://www.illinois.gov/dcfs/safekids/reporting/Documents/

cfs_1050-21_mandated_reporter_manual.pdf. Davis believed

that she was facing just such a situation, and so, at the

conclusion of her examination and before Sebesta took her

daughter home, Davis contacted DCFS.

DCFS responded promptly by sending investigator Elysia

Childs to the hospital the next day. Childs interviewed

Sebesta, Soonduck, Davis, and other UIMC staff members,

and she reviewed Sebesta’s medical records. Sebesta denied

having any psychiatric history, including prior psychiatric

hospitalizations, other than her recent stay at UIMC.

Soonduck also denied that her daughter had any mental

health problems. A pediatric resident told Childs that Sebesta

lacked insight and was defensive. Childs learned that Sebesta

was refusing medication and counseling. On the positive side,

one physician reported that Sebesta seemed to have a good

attachment to Elizabeth Marie, and another UIMC provider

opined that Sebesta was not a danger to herself or to her baby.

After meeting the next day with her supervisor, Gloria

Bean, Childs informed Sebesta that removal proceedings

would be initiated if Sebesta did not agree to intact family ser-

vices, which involved in-home counseling and child-welfare

services. Feeling backed into a corner, Sebesta agreed to ac-

cept the services. She left the hospital with Elizabeth Marie on

October 1. This was a few days later than Sebesta’s discharge

No. 16-1355 5

date, because the baby needed to regain weight she had lost

post-delivery.

DCFS continued its investigation into Sebesta’s parenting.

On November 25, DCFS notified Sebesta that she had been

“indicated” for a “Substantial Risk of Physical

Injury/Environment Injurious to Health and Welfare by

Neglect.” In English, this signaled that DCFS’s investigation

had turned up credible evidence of neglect. See ILL. ADMIN.

CODE tit. 89, § 300.20. At that point, Catholic Charities took on

the task of providing an array of intact family services for

Sebesta. Nearly five months later, on April 22, 2011, DCFS

“unfounded” the indication against Sebesta—meaning that it

was satisfied that no credible evidence of neglect existed. Id.

Sebesta continued to receive services until May 2011.

B

Believing that she had been wronged by these

interferences with her parental rights, Sebesta brought this

suit under 42 U.S.C. § 1983 and state common law in 2012

against Davis and the Board of Trustees of the University of

Illinois (the University defendants), as well as Childs and

Bean (the DCFS defendants). She primarily accused the

defendants of violating her federal substantive due process

right to familial integrity, by their acts of reporting,

investigating, and “indicating” her. She also raised

supplemental Illinois tort claims for invasion of privacy and

intentional infliction of emotional distress.

In an order issued on January 20, 2016, the district court

granted summary judgment for all defendants. It held that

Davis was immune from Sebesta’s tort claims under Illinois

law and did not violate Sebesta’s substantive due process

6 No. 16-1355

right by calling DCFS. It also found that Childs and Bean were

entitled to qualified immunity from Sebesta’s section 1983 ac-

tion. It said little about the liability of the University defend-

ants, but as we must take a de novo look at the case, we will

address that also. See Estate of Simpson v. Gorbett, 863 F.3d 740,

745 (7th Cir. 2017).

Normally, we would look at both parties’ versions of the

facts to see if any genuine dispute exists. But there is a wrinkle

here. After both sets of defendants moved for summary

judgment, the district court set a briefing schedule. Sebesta’s

attorney requested and received a one-month extension to file

her response. The revised due date, October 15, 2015, came

and went without a response from Sebesta. It was not until

December 2, nearly seven weeks later, that Sebesta’s counsel

attempted to file a response instanter. Acting well within its

discretion, the district court rejected the attorney’s

justification (her busyness) and denied the motion. See Keeton

v. Morningstar, Inc., 667 F.3d 877, 883–84 (7th Cir. 2012). As a

result, Sebesta never filed any response to the defendants’

motions—no legal argument, no statement of facts under

Local Rule 56.1(b)(3). In that situation, we continue to

approach the facts in the light most favorable to Sebesta, but

the only facts before us are the ones alleged in the defendants’

Local Rule 56.1(a)(3) statements and the submitted record. See

Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015).

II

We begin with some straightforward observations about

Sebesta’s effort to sue the University of Illinois’s Board of

Trustees under 42 U.S.C. § 1983. To the extent that this is an

effort to sue the University, it cannot proceed. The University

is an arm of the state, and states are not among the “persons”

No. 16-1355 7

covered by the statute. Will v. Mich. Dep’t of State Police, 491

U.S. 58, 71 (1989); Levenstein v. Salafsky, 414 F.3d 767, 772 (7th

Cir. 2005) (stating that the University of Illinois “is

functionally the State of Illinois for purposes of § 1983”). The

University’s amenability to suit under state law is another

matter, but Sebesta’s discussion of the University defendants

does not develop any independent theory supporting the

University’s liability, and we regard this aspect of the case as

forfeited. To the extent she was trying to sue the individual

members of the Board for damages (the only possible relief at

this point), she has failed to show the necessary personal

involvement on their part. See Ashcroft v. Iqbal, 556 U.S. 662,

676 (2009).

III

A

The next question is whether Davis, who was sued in her

individual capacity solely because she reported her concerns

to DCFS, enjoys qualified immunity from suit. In DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189

(1989), the Supreme Court held that state actors have no con-

stitutional duty affirmatively to protect a child from abuse. Id.

at 201. But the Court left the door open for states, “through

[their] courts and legislatures, [to] impose such affirmative

duties of care and protection … .” Id. at 202. Illinois has done

just this in ANCRA, 325 ILCS 5/1 et seq. ANCRA requires a

long list of professionals to report to DCFS when they have

“reasonable cause” to suspect child abuse or neglect. 325 ILCS

5/4. Presumably to encourage reporting and avoid the chilling

effect of possible liability, ANCRA provides civil and criminal

immunity to persons who report their concerns to DCFS in

8 No. 16-1355

good faith. 325 ILCS 5/9. For the identified mandatory report-

ers, good faith is presumed. Id.

Our analysis is somewhat different for the state claims and

the federal claim. We begin with Sebesta’s state claims,

because they rise (and as it happens, fall) on the provisions of

ANCRA. As we just noted, the statute itself provides a

presumption of good faith for mandatory reporters. It is thus

the plaintiff’s burden, in opposing summary judgment, to

point to evidence that would rebut that presumption. See

Franciski v. Univ. of Chi. Hosps., 338 F.3d 765, 770–71 (7th Cir.

2003); Lehman v. Stephens, 499 N.E.2d 103, 112–13 (Ill. App. Ct.

1986).

ANCRA deputizes social workers to report to DCFS when

they have “reasonable cause” to suspect a child is being

abused or neglected. 325 ILCS 5/4. Davis is a social worker,

and so that presumption protects her from Sebesta’s state tort

claims unless Sebesta can overcome it. Evidence of mere neg-

ligence will not do the job. Doe v. Winny, 764 N.E.2d 143, 154

(Ill. App. Ct. 2002). Rather “[t]o raise a question of fact, the

plaintiff must show that the reporter has acted maliciously,

dishonestly, or for some improper purpose.” Id. None of the

facts properly before us comes close to meeting that standard.

Sebesta argues that Davis’s report to DCFS was improper

because the totality of the information available to her did not

warrant a reasonable concern of neglect. She also objects that

the district court relied on information that Davis did not

know at the time of her report. Neither of these arguments

amounts to an accusation of malicious or dishonest intent.

In fact, wholly apart from the statutory presumption, the

record supports a finding of good faith. Davis testified in her

No. 16-1355 9

deposition that she thought she was legally required to report

the risk of child neglect. Red flags abounded: by the time

Davis decided to file her report with DCFS, she had learned

of Sebesta’s “lack of a support system, her discordant

relationship with her mother, her recent psychiatric

hospitalization, the potential for exacerbation of psychiatric

conditions in the period immediately after giving birth, and

the vulnerability of newborn infants … .” Sebesta v. Davis, No.

12 C 7834, 2016 WL 232380, at *5 (N.D. Ill. Jan. 20, 2016).

Nothing in this record points even to negligence, much less

maliciousness or ill will. With respect to Sebesta’s state tort

claims, Davis is entitled to the immunity provided by

ANCRA “from any liability, civil, criminal or that otherwise

might result by reason of [a report].” 325 ILCS 5/9.

B

Naturally, ANCRA is not the final word for Sebesta’s

federal constitutional claim against Davis (for her reporting)

or Childs and Bean (for DCFS’s follow-up). Sebesta argues

that each of them violated her due process right to familial

integrity. The Supreme Court has long recognized that the

Fourteenth Amendment’s protection of liberty applies not

only to “freedom from bodily restraint” but also to other

fundamental liberty interests such as the right to “establish a

home and bring up children.” Meyer, 262 U.S. at 399. In Meyer

and later cases, the Court has recognized a constitutionally

protected right to freedom from undue state interference with

family relations.

In Meyer, the Court struck down a statute that prohibited

schools from teaching in any language other than English or

teaching other languages prior to eighth grade; it relied in

part on the parents’ “natural duty” to direct their children’s

10 No. 16-1355

education. Id. at 400, 403. The Court returned to this problem

in Pierce v. Society of Sisters, supra, in which it invalidated an

Oregon law mandating compulsory public schooling because

the statute “unreasonably interfere[d] with the liberty of par-

ents and guardians to direct the upbringing and education of

children under their control.” 268 U.S. at 534–35. Years later,

in Moore v. City of East Cleveland, 431 U.S. 494 (1977), the Court

struck down a law limiting occupancy to a single family, nar-

rowly defined, as a violation of the Fourteenth Amendment.

Id. at 506; see also Troxel v. Granville, 530 U.S. 57, 66 (2000) (list-

ing Supreme Court cases “recogniz[ing] the fundamental

right of parents to make decisions concerning the care, cus-

tody, and control of their children”).

We have recognized both the existence of, and limitations

on, the right to familial integrity in the context of action by

child protective services. E.g., Siliven v. Ind. Dep’t of Child

Servs., 635 F.3d 921, 928 (7th Cir. 2011). In Brokaw v. Mercer

County, 235 F.3d 1000 (7th Cir. 2000), we acknowledged that

parental interests in familial integrity must be weighed

against the state’s interest in protecting children from harm.

Id. at 1019. In order for their actions to be lawful, child

protective service workers must have “some definite and

articulable evidence giving rise to a reasonable suspicion that

a child has been abused or is in imminent danger of abuse.”

Id. This “reasonable suspicion” standard is an objective one.

Terry v. Richardson, 346 F.3d 781, 787 (7th Cir. 2003).

C

Balancing is notoriously difficult, when (as here) the fac-

tors on each side of the balance do not lend themselves to easy

measurement. Rather than jumping directly into that process,

No. 16-1355 11

we consider first whether Sebesta’s suit can surmount a dif-

ferent hurdle: qualified immunity. The qualified immunity

doctrine provides defendants immunity from suit, not just a

defense to liability. Pearson v. Callahan, 555 U.S. 223, 231 (2009).

Though it is an affirmative defense for pleading purposes, the

plaintiff carries the burden of showing that defendants are not

immune. Archer v. Chisolm, 870 F.3d 603, 613 (7th Cir. 2017).

She can defeat immunity if she can demonstrate that (1) the

defendant violated a constitutional right; and (2) the right was

clearly established at the time, so that a reasonable state actor

would know her conduct was unlawful. Id. We may address

these issues in whatever order seems best for the case at hand.

Id. (citing Pearson, 555 U.S. at 236).

The district court, recall, held that Childs and Bean were

entitled to qualified immunity because the constitutional in-

jury was not clearly established. It said nothing about quali-

fied immunity for Davis, even though she properly raised this

defense in her motion for summary judgment. She has not re-

asserted an immunity defense on appeal, which raises the

possibility of forfeiture. See Brumfield v. City of Chicago, 735

F.3d 619, 625 (7th Cir. 2013). Although we could deem that de-

fense forfeited for Davis, it is within our discretion to reach it

despite her omission. See Thayer v. Chiczewski, 705 F.3d 237,

247 (7th Cir. 2012) (considering an issue of qualified immunity

that defendants properly raised below but not in their appel-

lees’ brief); see also Singleton v. Wulff, 428 U.S. 106, 121 (1976)

(leaving it to the discretion of the courts of appeals whether

to consider a question not decided by the district court). Both

judicial economy and the merits persuade us not to stand on

forfeiture. We therefore turn to the question whether one or

more of the three individual defendants are entitled to quali-

fied immunity on Sebesta’s constitutional claim.

12 No. 16-1355

We are met at the starting gate with a different waiver or

forfeiture problem: Sebesta’s failure to respond to the defend-

ants’ motions for summary judgment. This means, among

other things, that she never addressed qualified immunity in

the district court. We would be within our rights to regard this

as a forfeiture of the point on appeal. See Nichols v. Mich. City

Plant Planning Dep’t, 755 F.3d 594, 600 (7th Cir. 2014).

Here, too, we think it best to reach the merits rather than

rest on forfeiture. There are no disputed issues of fact, and we

would like Sebesta to understand our reasoning. Our focus is

on the second part of the immunity test—whether the right

on which Sebesta relies was clearly established. As the

plaintiff, she bears the burden of showing that there is a case

“on point or closely analogous” that allows us to conclude

that a reasonable government employee would or should

know that her conduct is unlawful. Boyd v. Owen, 481 F.3d 520,

527 (7th Cir. 2007). Sebesta cites multiple cases to support her

position that the three individual defendants should have

known they were violating Sebesta’s right to familial integrity.

But, as is often the case, these cases fail to meet the specificity

criteria that the Supreme Court has established. See Ziglar v.

Abbasi, 137 S. Ct. 1843, 1866 (2017) (citing Anderson v.

Creighton, 483 U.S. 635, 639 (1987)). Though earlier decisions

need not be “directly on point,” see Ziglar, 137 S. Ct. at 1866–

67, a look at the four cases on which Sebesta relies

demonstrates that none would have alerted a reasonable

official to the possibility that her conduct in the situation she

confronted was unlawful.

Sebesta first points to Brokaw v. Mercer County, 235 F.3d

1000 (7th Cir. 2000), which articulated the standard for

balancing the right to familial integrity against the state’s

No. 16-1355 13

interest in protecting children from abuse. Id. at 1019. She next

invokes Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), which

established that unreasonable child-abuse investigations can

violate the right to familial relations. Id. at 524. She then turns

to Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006) (“Dupuy II”),

which has been interpreted to announce “that threatening to

take action that [one] had no legal authority to take is

improper and violates familial rights.” Hernandez ex rel.

Hernandez v. Foster, 657 F.3d 463, 484 (7th Cir. 2011) (citing

Dupuy II, 465 F.3d at 763). Though Sebesta also cites Hernandez

independently, that case was decided four months after DCFS

unfounded the indication against her and thus could not

clearly establish any right for the purposes of qualified

immunity.

Sebesta asserts that in light of these cases the defendants

could not have thought that they had the requisite reasonable

suspicion. Their “indication” of Sebesta was based on their

concern that her daughter would be in an injurious environ-

ment—a subject not specifically included within ANCRA’s

definition of neglect in 2010. See 325 ILCS 5/3 (2010). Subject-

ing a child to an environment injurious to her health, physical

well-being, or welfare did not enter the statutory definition

until 2012. 325 ILCS 5/3 (2012). On the other hand, in 2010 a

DCFS regulation did define “neglect” to include injurious en-

vironments. ILL. ADMIN. CODE tit. 89, § 300 app. B. The regu-

lation dropped out of the picture only after a later decision

from the Illinois Supreme Court, which held that the regula-

tion exceeded DCFS’s statutory authority. Julie Q. v. Dep’t of

Children & Family Servs., 995 N.E.2d 977, 985 (Ill. 2013).

That debate over state law is not important for our pur-

poses. It is impossible to say that the UIMC or DCFS workers

14 No. 16-1355

were violating a clearly established rule when they acted in

accordance with a regulation whose validity demanded the

attention of the state supreme court. See Stevens v. Umsted, 131

F.3d 697, 707 (7th Cir. 1997) (noting that state laws “do not

clearly establish a violation of a constitutional right as re-

quired for a § 1983 action”); see also Davis v. Scherer, 468 U.S.

183, 194 n.12 (1984) (“Neither federal nor state officials lose

their immunity by violating the clear command of a statute or

regulation—of federal or of state law—unless that statute or

regulation provides the basis for the cause of action sued

upon.”). Furthermore, a decision from 2013 could not have

“clearly established” the invalidity of a regulation on which

the individual defendants relied in 2010.

Sebesta needed to show that “it would have been clear to

[Davis, Childs, and Bean] that the alleged conduct ‘was

unlawful in the situation [they] confronted.’” Ziglar, 137 S. Ct.

at 1867 (citation omitted). She has not done so. Brokaw, Doe,

and Dupuy II establish only that the state actors needed

evidence supporting a reasonable suspicion of abuse or neglect

in order to report, investigate, and “indicate” Sebesta.

Nothing in these cases would have put Davis, Childs, or Bean

on notice that their suspicions were unreasonable or their

actions unlawful. To the contrary, Davis, Childs, and Bean had

a significant amount of evidence supporting a reasonable

suspicion of future harm to the baby. They knew that Sebesta

had been hospitalized in the wake of what she calls in her

brief a “psychiatric break” just weeks before her delivery. On

multiple occasions before different providers, she was

agitated and displayed a lack of insight. She was observed

continually fighting with her mother, with whom she and the

baby were supposed to live. She had refused to have a

toxicology screen on her baby. They knew that she had denied

No. 16-1355 15

having any history of mental health issues and was resistant

to counseling. Far from lacking any evidence to support a

reasonable suspicion, Davis, Childs, and Bean objectively had

more than enough to support a reasonable concern.

Importantly, Sebesta never lost custody of her daughter.

At worst, Childs and Bean pressured her to accept intact fam-

ily services. The services she received from Catholic Charities

were in her home and interfered only minimally with her

family structure. After approximately six months, she was

able to eliminate them altogether.

Sebesta further argues that Childs and Bean ignored

clearly established precedent by failing to give sufficient

weight to mitigating evidence. See Dupuy v. Samuels, 397 F.3d

493, 505–06 (7th Cir. 2005) (“Dupuy I”). But Dupuy I merely

requires DCFS workers to consider exculpatory evidence—

not to treat it as dispositive. Sebesta has not identified any

point at which Childs and Bean failed to take mitigating evi-

dence into account.

Because Sebesta presents no cases clearly establishing that

Davis, Childs, and Bean knew that they were acting unlaw-

fully by reporting, investigating, and “indicating” her, we

need not consider whether there was any violation of her con-

stitutional right to familial integrity. The individual defend-

ants are entitled to qualified immunity on her claim under

section 1983.

IV

“[C]hild welfare caseworkers are often called upon to

make difficult decisions without the benefit of extended

deliberation.” Doe, 327 F.3d at 525. The state employees here

were navigating a sensitive situation, not arbitrarily abusing

16 No. 16-1355

their authority. Davis is entitled to ANCRA immunity on the

state law claims, and the individual defendants are entitled to

qualified immunity on the substantive due process claim.

Finally, the case cannot proceed against the Board or its

members. We therefore AFFIRM the judgment of the district

court.