Terry, John v. Richardson, Cherry

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she appeared “withdrawn.”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. § 1983against 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