Lord v. Murphy

CLIFFORD, Justice,

with whom WATHEN, Justice, joins, concurring.

I agree with the court that the Superior Court’s decision is appealable and that the Superior Court improperly relied on the doctrine of the law of the case in denying summary judgment. I would remand to the Superior Court, however, for the granting of summary judgment in favor of the defendants on all but one of the plaintiffs’ claims.

Defendants, as social workers, are protected by, at the very least, a qualified immunity. Myers v. Contra Costa County Dep’t of Social Servs., 812 F.2d 1154, 1158 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 98 , 98 L.Ed.2d 59 (1987); Malachowski v. City of Keene, 787 F.2d 704, 713 (1st Cir.1986), cert. denied, 479 U.S. 828 , 107 S.Ct. 107 , 93 L.Ed.2d 56 (1986). Such qualified immunity protects them from suit under 42 U.S.C. § 1983 unless there is a bad faith violation of a “clearly established” right under the United States Constitution or a federal statute “of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982).

After reviewing the record, I would conclude that all but one of the plaintiffs’ claims do not as a matter of law form a basis for the defendants’ liability under section 1983. First, the court has correctly determined that plaintiffs have not shown that the defendants have violated any federal statute. Second, although there may be a constitutional liberty interest in family integrity, it is far from absolute and not *1018 free from state interference. These social worker defendants, who took action with regard to the Lord children and invoked the jurisdiction of the District Court to protect them, did not violate any “clearly established” constitutional family integrity right of plaintiffs in doing so. Myers, 812 F.2d at 1158 . Lastly, based on the efforts made by the defendants, and the notice indisputably received by David Lord, I would conclude on this record that plaintiffs have not demonstrated any deprivation of a clearly established constitutional right arising from lack of notice to David Lord of the child protective proceedings in the Maine District Court.

On the present state of the record, the only issue that does not now merit a summary judgment in favor of the defendants is the plaintiffs’ claim that the defendants may be held liable under the due process clause for failing to protect the children from alleged abuse in the homes of their foster parents and mother after custody was awarded to the Department of Human Services. See DeShaney v. Winnebago County Dep’t of Social Servs., — U.S. -, 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989). That claim may provide the basis of a recovery only if plaintiffs prove that the defendants acted in bad faith and that bad faith led to abuse so substantial that it can be labeled a violation of a clearly established right under the United States Constitution “of which a reasonable person would have known.” Harlow, 457 U.S. at 818 , 102 S.Ct. at 2738 .