Terry, John v. Richardson, Cherry ( 2003 )


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  •                          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    she appeared “withdrawn.”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