Opposition Brief — Michaels ex rel. Michaels v. Prodigy Child Development Centers, Inc.

—

Case No. 93-1160

IN THE

SUPREME COURT OF T°{E UNITED STATES

OCTOBER TLRM, 1993

BRANDON PATRICK MICHAELS,

TERRI VOGEL MICHAELS,

Individually and as Next Friend of

CLARK JORDAN MICHAELS and

ALEXANDER MICHAELS,

Petitioners

VS

PRODIGY CHILD DEVELOPMENT

CENTERS, INC.,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

BRIEF FOR RESPONDENT

JOHN ALLEN HOWARD

ATTORNEY FOR RESPONDENT

SMITH, HOWARD & AJAX

3333 PEACHTREE ROAD, NE

300 ATLANTA FINANCIAL CENTER

ATLANTA, GEORGIA 30326

(404) 239-1900

TABLE OF CONTENTS

Table of

a a os Vinee a ee ty Fa® Paring eat a a Pa ce ae

I Or Do 56 oS nls 0 60 60 00 ose ees

Summary of the Argument ..........25e0e00.%

Argument and Citation of Authority ...........

Petitioners Did Not Preserve the

EE a

Petitioners’ Claim Has No Merit .........

el ee we we

a ae ar a ee a ee ne ore

oie

TABLE OF AUTHORITIES

Pages

ni u

Bankers Life & Cas. Co. v. Crenshaw,

S06 U4. Ti Ce 6 ne eee eee 11

Pennsylvania v. Ritchie,

SOD U8. FP CIS?) nbn ha oe ae 13, 14, 15, 17, 18

U.S. v. Zolin,

1 U.S. SOG (IE) ik bk ea eee 15

Federal Cases

In Re Grand Jury Matter of Catania,

G62 F268 Ot Ge Ce, Tee is os ee er ee 15

In re John Doe Corp.,

yee mw fo iy ie Ae: ewes eer rere 17

Neustein v. Orbach,

732 F. Sapp. 333 GDN.Y. TRF ccc ee een een 16

United States v. Gallagher,

S76 F.28 Wee GE Ue. Pree ke eee ee tae 16

-ii-

Pages

State Cases

Ray v. Dept. of Human Resources,

155 Ga. App. 81 (270 S.E.2d 303) (1980) ........ 12

Statutes

Official Code of Georgia Annotated

a Re

Official Code of Georgia Annotated

SE 1,6

Official Code of Georgia Annotated

ME eck we cece ecnwcnn. 1, 10

Official Code of Georgia Annotated

Section 49-5-41 .........00.., 7, 10, 11, 12, 13, 17

-iii-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

BRANDON PATRICK MICHAELS,

TERRI VOGEL MICHAELS,

Individually and as Next Friend of

CLARK JORDAN MICHAELS and

ALEXANDER MICHAELS,

Petitioners

vs

PRODIGY CHILD DEVELOPMENT

CENTERS, INC.,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

BRIEF FOR RESPONDENT

Prodigy Child Development Centers, Inc., the

respondent herein, respectfully prays that the Petition for Writ

of Certiorari be denied.

I.

STATEMENT OF THE CASE

The Respondent, Prodigy Child Development Centers,

Inc. ("Prodigy"), is a licensed daycare center as defined by

O0.C.G.A. § 49-5-12. Licensed daycare centers are statutorily

required to report suspected child abuse to the Department of

Family and Children Services (DFCS). O.C.G.A. §19-7-

5(c)(1)(K). It is a criminal offense for mandated reporters to

fail to report suspected child abuse. O.C.G.A. § 19-7-S(h).

Furthermore, Georgia law not only deems all reports of

suspected child abuse to be confidential and privileged for the

protection of mandated reporters, but also ensures immunity

from civil and criminal liability for all mandated reporters

who report incidents of suspected child abuse in good faith.

(O.C.G.A. § §49-5-40(b) and 19-7-5(f)).

The explanatory directives issued by the Georgia

Council of Child Abuse instruct mandated reporters to report

suspected child abuse whenever the mandated reporter has

2

"reasonable cause to believe that such abuse has occurred."

These directives provide:

The standard of ’reasonable cause to believe’

that abuse has occurred implies the reporter is

not to obtain proof abuse has occurred.

Responsibility for investigating and proving

abuse is with the Department of Family and

Children Services or the criminal justice

system, depending on the nature of the case.

The child abuse report should be understood as

a request for an investigation by DFCS. _(R.

997).

[In compliance with O.C.G.A. § 19-7-5 and the

Georgia Council of Child Abuse directives, Prodigy reported

to DFCS that one of its students, Clark Jordan Michaels

(C.J.), exhibited certain behavior which is symptomatic of

child abuse. The Petitioners are the parents of C.J.

The Petitioners’ statement of the case misrepresents

and omits certain material facts. The Petitioners incorrectly

suggest that the deprivation of their children was the result of

some tortious act on the part of Prodigy. The Petitioners

suggest that Prodigy was guilty of perjury, fraud, and breach

3

of contract, even thoush Prodigy denied all of these

allegations and obtained summary judgment in the trial court.

The Petitioners’ statement of the case also fails to disclose that

the Petitioner’s experts admitted that the behavior which

Prodigy reported to DFCS is symptomatic of child abuse.

The Petitioners’ experts further admitted that this behavior

should have been reported to DFCS.'

Petitioners’ statement of the case also fails to disclose

that DFCS did not decide to temporarily remove C.J. and his

brother from the home of Petitioners until after C.J. was no

longer enrolled at Prodigy. Furthermore, Petitioners did not

reveal to this Court that DFCS’ decision was not based upon

any report of suspected child abuse which was made by

' Barrie Alexander, the Petitioners’ primary defense

witness, admitted that Prodigy should have reported the

behavior to DFCS and that the behavior should have been

investigated by DFCS. R-2588 (Alexander Depo. pp. 27, 28).

Dr. James D. Larson, the Petitioners’ other expert, admitted

that DFCS should have investigated whether C.J. had been

sexually abused by his father, based upon certain statements

which C.J. made while enrolled at Children’s World. R-2586,

2587 (Larson Depo., pp. 26, 39, 40).

:

4

Prodigy. Rather, DFCS’ decision was based upon statements

made by C.J. to DFCS during an interview at Childrens’

World, an unrelated daycare center. (R-135], Juv. Ct. T.,

Vol II, p. 4). While he was enrolled at Childrens’ World,

C.J. reportedly told DFCS: . . . daddy touches me on my

penis (R-2603, Magis. Ct. T. p. 11) . . . daddy told me 1

couldn't tell anyone where he touched me. (R-2601, Magis.

Ct. T. p. 9).

On the day following the initial deprivation, DFCS

interviewed C.J. at Children’s World a second time. The

investigating officer described the interview as follows:

A: The next time we interviewed the child was the

following day; we interviewed him at the

children’s shelter, and he described - - again,

it was the same type of interview. He was real

hesitant to talk about dad. He was afraid that

dad was going to whip him. He cried about

dad whipping him. He said dad gets real mad.

And he continued to say that dad did touch

him. In describing how dad touched him, he

had a toothbrush, he put his hand on the

toothbrush and went in an up and down

motion. (indicating) (R-2603, Magis. Ct. T.

p. 11).

5

The Petitioners further failed to disclose that Prodigy

was not present at the interview which resulted in the

deprivation, and that Prodigy was not involved in the DFCS

decision to remove the children from _ Petitioners.

Furthermore, Prodigy was not involved in the emergency

preliminary deprivation hearing which resulted in the actual

temporary removal of the children. (R-902, 905, 906,

McHugh Depo., pp. 111, 114).

The record reveals that DFCS retained a qualified

psychologist to evaluate C.J. after the initial deprivation. This

psychologist conducted extensive testing and concluded that

C.J. had been sexually abused by his father. Based upon the

psychologist’s report, DFCS decided that it was in the best

interest of the children to proceed with the prosecution of the

deprivation hearing. (R-1064, 106¢, Juv. Ct., Vol. I, p. 8).

At the hearing the psychologist related to the Court C.J.’s

response to the question "What would you like to tell the

Judge?" C.J.’s response was “my daddy did do it, but he

6

won’t do it no more." (R-/070, Juv. Ct. T. Vol. I, p. 16).

After this hearing, the charges against Mr. Michaels were

dropped and the children were returned to their parents.

Subsequently, notwithstanding the confidentiality of the

report and immunity afforded by O.C.G.A. § 49-5-12, the

Petitioners individually, and as next friend of their children,

filed the above-styled action against Prodigy, attempting to

hold the Respondent liable for the acts of DFCS.

During the course of the litigation against Prodigy the

Petitioners attempted, without success, to obtain confidential

files maintained by DFCS. Prodigy did not oppose these

efforts and had no interest in the decision of the trial court to

deny Petitioners’ access to these files. Pursuant to the

Petitioners’ request, the court conducted ‘- in camera

inspection of the DFCS files to ascertain whether any of the

information in the files was relevant to the underlying lawsuit.

As a result of this in camera inspection the trial court

determined that the material contained in those confidential

7

files was not relevant to any issue before it. Ultimately, the

trial court granted Prodigy’s Motion for Summary Judgment.

There is no question that Prodigy is entitled to the

immunity previded te jsiamiated reporters under O.C.G.A.

§ 19-7-5(f). Prodigy was required, under penalty of law, to

report C.J.’s behavior. Furthermore, Prodigy’s report was

obviously made in good faith, as evidenced by the admission

of the Petitioners’ expert that the reported behavior was

symptomatic of child abuse. Moreover, DFCS decision to

remove the children from Petitioners’ home was based upon

statements made by C.J. during an interview conducted at

Children’s World, an unrelated daycare center. Finally, the

Motion for Summary Judgment was based upon other theories

and evidence in the record, not the least of which included the

fact there was no evidence to support an alleged breach of

contract claim.

The Petitioners attack O.C.G.A. § 49-5-41(c) upon the

theory that it violates Article I, Section VIII; Article II,

8

Section II; Article II, Section III, and the Fourteenth

Amendment due process guarantees. The Petitioners’ access

to the DFCS files might arguably have been relevant in regard

to the deprivation hearing which resulted in the return of the

children to Petitioners. However, since the children were

returned to their parents at the conclusion of the deprivation

hearing, the issue of whether Petitioners should or should not

have been given access to the DFCS confidential files is now

moot. The trial court’s decision to grant summary judgment

to Prodigy was not dependent upon the contents of the

DFCS'’s files, nor did the DFCS files have any relevance to

the Petitioners’ lawsuit against Prodigy. Therefore, the

Petitioners’ claim that a Georgia statute controlling access to

DFCS files violates their right to due process in their lawsuit

against Prodigy is clearly without merit.

SUMMARY OF THE ARGUMENT

This Court should refuse to grant this Petition for Writ

of Certiorari because Petitioners are now attempting to raise

constitutional issues which were not raised and passed upon in

the State Court. Therefore, Petitioners’ claim was not

preserved and is now too stale for consideration by this Court.

Furthermore, pretermitting Petitioners’ failure to preserve

their claim, this Court should refuse to grant this Petition for

Writ of Certiorar: because Petitioners’ claim lacks merit.

Contrary to the Petitioners’ claim, O.C.G.A. § 49-5-41 does

not deny the Petitioners’ constitutional guarantee of due

process. Indeed, this —_ held in Pennsylvania v. Ritchie,

480 U.S. 39 (1987), that a substantially similar state statute

comports with the principles of due process. Based upon the

above, the Respondent respectfully requests this Court to deny

this Petition for Writ of Certiorari.

10

ITI.

ARGUMENT AND CITATION OF AUTHORITY

A. Petitioners Did Not Preserve The Due Process

Issues

Contrary to Petitioners’ assertion on page 5 of their

Petition for Writ of Certiorari, Petitioners did not raise any

Fourteenth Amendment due process issues in the trial court.

Indeed, neither the Motion to Compel nor the Motion for In

Camera Inspection include any mention of constitutional

issues. See Appendices E-6 and E-22 of the Petition for Writ

of Certiorari. Furthermore, Plaintiff's Motion for

Reconsideration in the Superior Court of Gwinnett County

raised only a vague “separation of powers" issue under both

the Georgia Constitution and the United States Constitution.

See Appendix E-1 of the Petition for Writ of Certiorari. As

Stated by this Court:

[A] vague appeal to constitutional principles

does not preserve . . . due process claims. A

party may not preserve a_ constitutional

challenge by generally invoking the

11

Constitution in the state court and awaiting

review in this Court to specify the

constitutional provision it is relying upon.

C.f., Taylor v. Illinois, 484 U.S. 400, 407, n.

9, 108 S.Ct. 648, 652, n. 9, 98 LED 2d 798

(1988) ("a generic reference to the Fourteenth

Amendment is not sufficient to preserve a

constitutional claim based on an unidentified

provision of the Bill of Rights. . .").

Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 77

(1988). This Court should refuse to grant this Petition for

Writ of Certiorari because Petitioners’ claim that O.C.G.A.

§ 49-5-41(c) denies Petitioners their constitutional guarantee

of due process was not raised and passed upon in the state

court. /d.

B. Petitioners’ Claim Has No Mertt

Petitioners claim that O.C.G.A. § 49-5-41 denies the

Petitioners due process because it fails to set forth guidelines,

criteria, or rules for disclosure of DFCS’ confidential records

lacks merit. In fact, this statute contains a procedure by

which a court may obtain DFCS’ records, and the Petitioners

12

availed themselves of that procedure. O.C.G.A. § 49-5-

41(a)(2). (See Appendix A-1).

The records which the Petitioner sought in the trial

court are confidential and access thereto is prohibited except

as provided by statute. O.C.G.A. § 49-5-40 ef. seq. The

proper procedure for obtaining access to such records is to

petition the trial court to subpoena the records and conduct an

in camera inspection as to whether the records are necessary

for determination of an issue before the court and are

otherwise admissible under the rules of evidence. O.C.G.A.

§ 49-5-41(a)(2); Ray v. Dept. of Human Resources, 155 Ga.

App. 81 (270 S.E.2d 303) (1980). These statutory guidelines

were followed in the present case. The Petitioners filed a

motion encouraging the trial court to conduct an in camera

inspection, and the trial court subsequently granted this

request and performed the in camera inspection. See Motion

for In Camera Inspection (Appendix E-22 of the Petition for

Writ of Certiorari. Following its review of the DFCS

13

records, the trial court ruled that the DFCS records could not

be produced because the plaintiffs’ "access to said records is

not necessary for the resolution for the issues in the above-

styled action and the records are not otherwise admissible

under the rules of evidence . . .". Order Denying Production

of Documents by Gwinnett County Department of Family and

Children Services (Appendix E-24 of the Petition for Writ of

Certiorari). Thus, contrary to Petitioners’ assertions,

O.C.G.A. § 49-5-41 not only provides "guidelines,

procedures, [and] criteria" by which the DFCS confidential

records might have been obtained, the Petitioners also availed

themselves of these procedures in the trial court.

Moreover, the procedures established by O.C.G.A.

§ 49-5-41 comport with the requirements of due process. See

Pennsylvania v. Ritchie, 480 U.S. 39 (1987). In Ritchie, this

Court addressed. the due process implications of a

Pennsylvania statute which is substantially the same as

14

O.C.G.A. § 49-5-41?. Similar to the present case, the

defendant in Ritchie had been charged with various sexual

offenses against his minor daughter. The matter was referred

to the Children and Youth Services (CYS), a protective

service agency established by Pennsylvania to investigate cases

of suspected child abuse. During pretrial discovery, the

defendant served CYS with a subpoena seeking access to

CYS’ confidential records. CYS refused to comply with the

subpoena, claiming that the records were privileged under a

Pennsylvania statute which mandates that all CYS records

must be kept confidential, subject to specified exceptions.

One of those specified exceptions allows CYS to disclose its

confidential reports to a court of competent jurisdiction

pursuant to a court order. /d. at 43-44. This Court held that

the defendant’s due process guarantees are fully protected by

a statutory procedure requiring that confidential child abuse

2All 50 states and the District of Columbia have statutes

that protect the confidentiality of their official records

concerning child abuse. Ritchie, 480 U.S. at 60, n. 17.

15

files be submitted only to the trial court for in camera review.

Id. at 60. In the present case, O.C.G.A. § 49-5-41(a)(2)

provides for the in camera procedure approved by this Court,

and the Petitioners availed themselves of this procedure.

Thus, neither the Petitioners nor their attorneys in the present

case have a constitutional right to conduct their own search of

DFCS’ files to determine the relevance of the contents of

those files, and Petitioners have not been denied due process.

Id. at 59.

Ritchie is not the only example of judicial approval of

in camera inspection of privileged and confidential documents.

It is well established that the in camera inspection procedure

comports with the due process guarantees of the United States

Constitution. See U.S. v. Zolin, 491 U.S. 566, 569 (1989)

(“...this Court has approved the practice of requiring parties

who seek to avoid the disclosure of documents to make the

documents available for in-camera inspection...”); In Re

Grand Jury Matter of Catania, 682 F.2d 61 (3rd Cir. 1982)

anneal

16

(given the secrecy attached to grand jury transcripts and FBI

investigation materials, the district court’s decision to exclude

appellant and counsel from in camera examination of the

materials comported with due process and was not in error);

United States v. Gallagher, 576 F.2d 1028, 1040 (3rd Cir.

1978) (in camera questioning of witness in the absence of all

attorneys was consistent with Jenck’s Act and not in error);

Neustein v. Orbach, 732 F. Supp. 333 (E.D.N.Y. 1990) (in

camera interviews of children performed by family court did

not deprive parents of due process). Furthermore, as

explained by the United States Court of Appeals for the

Second Circuit:

While “[ij/n-camera_ proceedings are

extraordinary events in the constitutional

framework” because they generally deprive one

party to a proceeding a full opportunity to be

heard on an issue, Jn re Taylor, 567 F.2d

1183, 1187 (2d Cir. 1977), they are by no

means forbidden or without real usefulness in

particularized circumstances. For example,

they have been used to test claims of state

secrets, Halkin v. Helms, 598 F.2d 1 (D.C.Cir.

1978); to excise material protected by privilege

17

from that which is not, United States v. Nixon,

418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039

(1974); to examine statements claimed to be

irrelevant for purposes of the Jencks Act, 18

U.S.C. § 3500(b), Palermo v. United States,

360 U.S. 343, 354, 79 S.Ct. 1217, 1225, 3

L.Ed.2d 1287 (1959); United States v. Pacelli,

491 F.2d 1108 (2d Cir.), cert. denied, 419

U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 49 (1974);

and to determine which of several instances of

electronic surveillance might be challenged by

a particular defendant, Taglianetti v. United

States, 394 U.S. 316, 89 S.Ct. 1099, 22

L.Ed.2d 302 (1969).

In re John Doe Corp., 675 F.2d 482 (2d Cir. 1982).

Preserving the confidential and privileged nature of the child

abuse reports in the present case serves no less useful a

purpose than the exampies cited above. As explained by this

Court in Ritchie:

To allow full disclosure . . . in this type of

case would sacrifice unnecessarily the

Commonwealths’s compelling interest in

protecting its child abuse information. If the

CYS records were made available to

defendants, even through counsel, it could have

a seriously adverse effect on Pennsylvania’s

efforts to uncover and treat abuse. Child abuse

is one of the most difficult crimes to detect and

prosecute, in large part because there often are

meee

18

no witnesses except the victim. A child’s

feelings of vulnerability and guilt and his or her

unwillingness to come forward are particularly

acute when the abuser is a parent. It therefore

is essential that the child have a state-

designated person to whom he may turn, and to

do so with the assurance of confidentiality.

Relatives and neighbors who suspect abuse also

will be more willing to come forward if they

know that their identities will be protected.

Recognizing this, the Commonwealth--like all

other states--has made a commendable effort to

assure victims and witnesses that they may

speak to the CYS counselors without fear or

general disclosure. The commonwealth

purpose would be frustrated if this confidential

material had to be disclosed upon demand to a

defendant charged with criminal child abuse,

simply because a trial court may not recognize

exculpatory evidence. Neither precedent nor

common sense requires such a result.

Ritchie, 480 U.S. at 60-61. Therefore, O.C.G.A. § 49-5-41

does not violate the Petitioners’ constitutional guarantee of due

process, and their claim to the contrary clearly lack merit.

19

IV.

CONCLUSION

WHEREFORE, Respondent respectfully requests this

Court to deny the Petitioners’ Petition for Writ of Certiorari.

Respectfully submitted,

/

MeLld bet

ohn Allen Howard, Esquire

/ Attorney for Respondent

SMITH, HOWARD & AJAX

300 Atlanta Financial Center South

3333 Peachtree Road, N.E.

Atlanta, Georgia 30326

(404) 239-1900