Elizabeth Sebesta v. Andrea Davis ( 2017 )

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.