In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2104
D ANA A ULT,
Plaintiff-Appellant,
v.
L ESLIE S PEICHER,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:07-c-398—David R. Herndon, Chief Judge.
A RGUED D ECEMBER 6, 2010—D ECIDED M ARCH 3, 2011
Before B AUER and W ILLIAMS, Circuit Judges, and
M C C USKEY, District Judge.
M C C USKEY, District Judge. Plaintiff-Appellant Dana
Ault (Plaintiff) sued Defendant-Appellee Leslie Speicher
(Defendant), an Illinois Department of Children and
The Honorable Michael P. McCuskey, United States District
Court for the Central District of Illinois, sitting by designation.
2 No. 09-2104
Family Services (DCFS) Child Welfare Specialist, for
violating her rights to familial association under the
First, Ninth, and Fourteenth Amendments to the
United States Constitution.
Plaintiff claims that Defendant interfered with her
parental rights during a DCFS investigation in 2004-2005.
The district court granted Defendant’s motion for sum-
mary judgment. The court found that Defendant did not
infringe on Plaintiff’s right to familial association
because Plaintiff had the option of disagreeing with the
service plan prepared by DCFS and could challenge
Defendant’s authority in state court. The district court
concluded that summary judgment was proper because
Defendant was entitled to qualified immunity.
Plaintiff has appealed, arguing (1) the district court
misconstrued evidentiary facts; (2) there are material
facts in dispute regarding Defendant’s restrictions on
Plaintiff’s relationship with her children; and (3) the
district court improperly granted summary judgment on
qualified immunity. Because we find that the district
court properly granted summary judgment based on
qualified immunity, the judgment of the district court
is affirmed.
BACKGROUND
Plaintiff is the mother of four children (SY and KY from
her first marriage, and TM and CM from her second
marriage). Defendant is employed by the DCFS as a Child
Welfare Specialist, serving as a caseworker assigned to
No. 09-2104 3
coordinate and provide services for families in need. At
the time of the incident Plaintiff was divorced and in a
relationship with Eric Ogle (whom she later married).
On September 1, 2004, DCFS received a hotline tip of
suspected physical abuse of Plaintiff’s 4-year old, TM, at
the hands of Ogle. DCFS commenced an investiga-
tion, and Plaintiff chose to have all four children reside
with her mother and stepfather, Teresa and Tommy
Samsil, rather than risk having her children placed in
foster care. The next day DCFS created a “safety plan,”
to which Plaintiff agreed, that set as conditions an ar-
rangement for her children to continue residing with
the Samsils. The plan expired on September 16, 2004.
DCFS’s investigation “indicated” Ogle for physical
abuse of TM. The case was an “intact family case”
meaning that the family unit remained intact and DCFS
did not have any legal relationship with Plaintiff’s chil-
dren. Once the investigation was completed Defendant
was assigned as a caseworker for Plaintiff’s family
because Ogle was indicated for abusing TM and Plaintiff
continued to maintain a relationship with him. Defendant
developed the first service plan with Plaintiff and Ogle
on October 21, 2004, which Plaintiff voluntarily signed.
The first service plan included the following pro-
visions: (1) the children would continue to reside with
the Samsils at least through the 2004-2005 school year;
(2) they would continue to reside with the Samsils at
least until such time that all counselors involved
agreed that it would not be detrimental to the children’s
safety for the family to reunite; (3) Plaintiff and Ogle
4 No. 09-2104
would attend counseling and parenting classes; (4) Ogle
would attend substance abuse counseling; (5) Ogle’s
contact with Plaintiff’s children would be supervised;
and (6) Plaintiff’s two oldest children (SY and KY) would
attend counseling.
The plan included information regarding the service
appeal process if Plaintiff did not agree with any of the
provisions. Plaintiff could write down her disagree-
ments and send it to Defendant’s supervisor. Plaintiff
believed that if she did not sign the DCFS service plans,
DCFS could come with the police and take away her
children.
In December 2004 domestic battery charges were filed
against Ogle in the circuit court based on the same allega-
tions of injuries to TM from the September 1, 2004, DCFS
hotline tip. In March 2005 the court entered a no
contact order under which Ogle was not to have any
contact with Plaintiff’s four children. The felony
domestic battery charge against Ogle was dismissed
in May 2005. Shortly afterward, the state filed a misde-
meanor domestic battery charge based on the same al-
legations. That charge was dismissed in August 2005 on
the state’s motion, and the no-contact order expired at
that time.
In June 2005 Defendant suggested to Plaintiff’s mother
Teresa Samsil that she and Plaintiff discuss trans-
ferring legal custody of the children to Teresa because
Defendant was concerned about Plaintiff’s stability,
poor relationship choices, failure to complete parenting
classes or counseling, and uncertain employment situa-
No. 09-2104 5
tion. Defendant believed Plaintiff’s mother’s home was
a more stable environment. Plaintiff claims she was
terrified that DCFS would take her children away if she
did not comply with Defendant.
Relations between Defendant and Plaintiff continued
to deteriorate in July 2005. Plaintiff and Ogle had fixed
up a trailer and the Defendant did not believe the
trailer had suitable living conditions for the children,
and thought it best that the children continue to
reside with Plaintiff’s mother. Plaintiff and Defendant
met and Defendant expressed her concerns. Defendant
told Plaintiff that if she attempted to take the children
from the Samsil house and did not sign over custody to
her mother, Defendant would go to court to file for cus-
tody.
On July 13, 2005, Defendant wrote Teresa Samsil a letter
summarizing her meeting with Plaintiff, and saying she
made it clear to Plaintiff that if Plaintiff took the kids
from the Samsil home, Defendant would go to the State’s
Attorney regarding guardianship. Defendant recom-
mended to Teresa that she not allow Plaintiff to take the
children from the Samsil home. A second letter to
Teresa on July 19, 2005, reiterated the point, that the
children should remain in Teresa’s “custody.” Teresa
understood this to mean that she did not have legal
custody of the children, but rather that they were to
remain living with her and Plaintiff was not to take the
children for private visits without supervision. Plaintiff
also understood that she remained physically and
legally the parent for her children, but felt that if she
6 No. 09-2104
did not comply, DCFS could come at any time and take
her children. Plaintiff claims that Defendant told her,
“on many occasions,” that Defendant, and not a court
or judge, would “come and take my children if I did not
obey orders.”
After receiving Defendant’s letters, Teresa told
Plaintiff that she could visit the children all she liked, but
the visits had to be supervised. Plaintiff contacted De-
fendant to ask why she could not take her children
with her and Defendant said it was because she did not
feel the children were safe with Plaintiff.
In March 2005 a second service plan was developed
containing identical provisions to the first. This was
done because charges were still pending against Ogle
and Plaintiff continued to maintain a relationship with
him. Plaintiff signed the second plan.
A third service plan was created on September 21, 2005,
but Plaintiff, on the advice of counsel, refused to sign,
as she felt the more she agreed to Defendant’s demands,
the more Defendant requested of her. Concurrently, on
September 18, 2005, the State’s Attorney of Clark County
filed a Petition for Adjudication of Wardship regarding
Plaintiff’s children. In an amended petition filed on
September 22, 2005, it was alleged that Plaintiff was
homeless and unwilling to provide supervision for her
four children, and that she failed to take appropriate
action to protect TM after he was a victim of physical
abuse. On May 5, 2006, the court found the state had
failed to prove neglect as to Plaintiff and denied the
petition. Three of Plaintiff’s children were returned to
her, but the oldest decided to remain with the Samsils.
No. 09-2104 7
Plaintiff filed suit in the district court pursuant to
42 U.S.C. § 1983, alleging a violation of her due process
rights to her “freedom of choice and privacy concerning
the care, companionship, upbringing, and nurture of
her four minor children” all in violation of the First,
Ninth and Fourteenth Amendments of the U.S. Constitu-
tion. On March 25, 2009, the district court granted De-
fendant’s motion for summary judgment and denied
the summary judgment motion of the Plaintiff. The
court concluded that Defendant’s actions did not
infringe on Plaintiff’s right to familial integrity and, even
it had found Defendant’s actions unconstitutional, the
doctrine of qualified immunity would apply to shield
Defendant from liability.
ANALYSIS
Plaintiff raises three issues on appeal: (1) whether
the district court misconstrued evidentiary facts,
resulting in an improper grant of summary judgment
in favor of Defendant; (2) whether there are material
facts in dispute regarding Defendant’s unlawful restric-
tions on Plaintiff’s relationship with her children, which
precluded summary judgment; and (3) whether Defen-
dant’s knowing violation of state law and DCFS regula-
tions resulted in a violation of Plaintiff’s constitutional
rights, precluding qualified immunity.
Because we find qualified immunity to be dispositive,
we will address that issue first and need not address
the other issues raised in Plaintiff’s appeal.
8 No. 09-2104
An appellate court reviews a district court’s grant of
summary judgment de novo. Carmichael v. Village of
Palatine, Ill.,
605 F.3d 451, 456 (7th Cir. 2010). The district
court must “grant summary judgment if the movant
shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” FED. R. C IV. P. 56(a). The facts are
viewed in the light most favorable to the non-moving
party and all reasonable inferences are drawn in her
favor. Carmichael,
605 F.3d at 456. However, “[i]n a § 1983
claim, the plaintiff bears the burden of proof on the
constitutional deprivation that underlies the claim, and
thus must come forward with sufficient evidence to
create genuine issues of material fact to avoid summary
judgment.” McAllister v. Price,
615 F.3d 877, 881 (7th
Cir. 2010).
“The doctrine of qualified immunity protects govern-
ment officials from liability for civil damages when their
conduct does not clearly violate established statutory
or constitutional rights of which a reasonable person
would have known.” McAllister,
615 F.3d at 881, citing
Pearson v. Callahan,
555 U.S. 223,
129 S.Ct. 808, 815,
172
L.Ed.2d 565 (2009). On a qualified immunity claim the
court confronts two questions: (1) whether the plain-
tiff’s allegations make out a deprivation of a constitu-
tional right; and (2) whether that right was clearly estab-
lished at the time of the defendant’s alleged misconduct.
McAllister,
615 F.3d at 881. The court may address the
prongs in whichever order it believes best suited to the
circumstances of the particular case at hand. McAllister,
615 F.3d at 881.
No. 09-2104 9
Plaintiff argues the district court was in error in its
finding of qualified immunity, because earlier in the
opinion the court had written:
“Therefore, the court finds, technically, Defendant
had no legal authority as a DCFS caseworker to
require Plaintiff’s children to reside or remain
residing with the Samsils as a condition of the
service plans, because the children were not actually
‘placed’ by DCFS prior to the development of any
of the service plans. Nor does it appear that De-
fendant maintained legal authority to subsequently
require Plaintiff be allowed only supervised visita-
tion with her children.”
Plaintiff claims Defendant knew she was acting unlaw-
fully, but did it anyway, and violated state laws and
DCFS regulations, resulting in a constitutional depriva-
tion. We find Plaintiff’s argument unavailing because
we find qualified immunity shields Defendant from
liability for civil damages in this case.
In order to carry her burden of proving that the con-
stitutional right she claims Defendant violated was
clearly established, Plaintiff must either (1) present case
law that has articulated both the right at issue and
applied it to a factual circumstance similar to the one
at hand or (2) demonstrate that the “contours of the
right are so established as to make the unconstitu-
tionality obvious.” Boyd v. Owen,
481 F.3d 520, 526-27
(7th Cir. 2007).
Addressing the first prong, Plaintiff has not cited, and
the court has not found, any relevant case law from 2006
or earlier that articulates the right at issue of familial
10 No. 09-2104
integrity and applies it to factually similar circum-
stances. Rather, Plaintiff contends that an Illinois DCFS
caseworker in Defendant’s position should have known
she was violating Illinois law, which, Plaintiff argues, is
a violation of her clearly established rights to familial
association. However, the cases cited by Plaintiff simply
stand for the broad proposition that parents have con-
stitutional rights in family choice matters under the
Fourteenth Amendment and that interference with
those rights by the state must be governed by fair
judicial procedures. See In re J.J.,
776 N.E.2d 138, 144 (Ill.
2002) (The case concerned whether the State provided
clear and convincing evidence of a parent’s habitual
drunkenness in the year prior to the filing of the termina-
tion petition. Plaintiff cited only to broad statements
about protection of parental rights in custody cases.).
Plaintiff also cites to In re C.L. and T.L. and In re M.K.
and K.K., but the portion of those cases Plaintiff cites
simply stand for the broad propositions that Illinois
courts must act with care when interfering with
parental rights and must have good cause to place
children with a third party. The actual factual circum-
stances of those cases were distinguishable from the
circumstances at issue here. See In re C.L. and T.L.,
894
N.E.2d 949 (Ill. App. Ct. 2008) (Case concerned
whether the trial court erred by finding the mother
dispositionally unfit and granting guardianship to the
father after finding him fit.); In re M.K. and K.K.,
694 N.E.2d
74 (Ill. App. Ct. 1995) (Case concerned whether trial
court abused its discretion in finding abuse and neglect
and that it was in the best interests of the children to
terminate wardship proceedings.)
No. 09-2104 11
The cases Plaintiff has cited do not address circum-
stances similar to those at issue here and would not
have put Defendant on notice she was violating a
clearly established constitutional right when she ad-
vised Teresa Samsil not to let Plaintiff see her children
without supervision. It should also be remembered that,
as of July 2005, Plaintiff had already signed two
service plans with DCFS and agreed to let the children
reside physically with her mother. The Illinois cases
cited by Plaintiff, which stand for broad or “high level”
propositions concerning familial integrity, would not,
under the specific factual circumstances present here,
have put Defendant on notice that she was violating
any clearly established constitutional right of Plaintiff’s.
See Purvis v. Oest,
614 F.3d 713, 721 (7th Cir. 2010) (high-
level observations can be insufficiently precise for the
specific circumstances present in a qualified immunity
analysis).
Moreover, we agree with Defendant and the district
court that, even if Plaintiff could show that Defendant
violated Illinois law, failure to comply with state proce-
dures does not demonstrate the violation of Plaintiff’s
clearly established constitutional due process rights. See
Boyd,
481 F.3d at 524. In Boyd, a plaintiff sued a DCFS
investigator and supervisor under § 1983 for violating
his due process rights in finding an indication of abuse
against him. The district court refused to grant qualified
immunity to the defendants because defendants vio-
lated DCFS’s own rules and regulations. This court re-
versed, writing that “[t]he Supreme Court has made
clear the requirement of due process is not defined by
12 No. 09-2104
state rules and regulations, but is an independent deter-
mination. (Citations omitted.) Accordingly, the district
court erred in determining that the failure to comply
with DCFS regulations demonstrated a violation of a
clearly established constitutional right.” Boyd,
481 F.3d
at 524. Here, as in Boyd, Plaintiff has not shown that
a failure to comply with DCFS regulations has demon-
strated the violation of a clearly established constitu-
tional right.
We find that the rights at issue in this case were not
so clearly established as to make the “unconstitutional-
ity” of Defendant’s actions obvious. In summer 2005
Plaintiff was still in a relationship with Ogle and was
living in conditions Defendant believed to be substan-
dard. Based on the circumstances of Plaintiff’s living
arrangements, and Plaintiff’s assent to the first two
service plans, we do not find it objectively obvious for
Defendant to believe that her actions were unlawful
or unconstitutional.
Plaintiff cites to Hope v. Pelzer,
536 U.S. 730 (2002) and
Gregory v. City of Evanston,
2006 WL 3718044 (N.D. Ill.
2006) to support her argument that Defendant should
have known she was violating an established right.
Those cases are distinguishable. In Hope, prison guards
handcuffed an inmate to a hitching post for seven
hours without water or bathroom breaks. Hope,
536 U.S.
at 733-34. In Gregory, police officers arrested two minors
for disorderly conduct and took them to separate inter-
rogation rooms at the police station and refused to let
them see their parents, despite repeated requests from
No. 09-2104 13
both the minors and parents, until the parents signed
documents prohibiting their children from being in
downtown Evanston for seven days. Gregory,
2006 WL
3718044, at *1-2. In those cases the examples were of
particularly egregious and obvious violations of law and
authority. The rulings of those courts were limited to
the particularized facts of the case before them. Hope,
536 U.S. at 745 (the Supreme Court referred to the “obvious
cruelty” inherent in the defendants’ actions); Gregory,
2006 WL 3718044, at *6-7. Plaintiff’s cases represent ex-
treme situations that would put reasonable state actors
on obvious notice of a clearly established constitutional
right. The situation in the case at hand is not similar
and is clearly distinguishable.
Because we affirm the district court’s granting of sum-
mary judgment on the basis of qualified immunity, we
need not address the other issues raised by Plaintiff on
appeal. Accordingly, the district court’s opinion granting
summary judgment for Defendant is affirmed.
A FFIRMED.
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