Doe v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RoBERT ANI) CARLA I)oE, er aL, )
Plaintiffs, g
v. § civ. No. 05-1060 (TFH)
DISTRICT oF COLUMB!A, ezaz., § I L E D
Defendants. g (] 1
) °‘z;':'..::ii:§;zz::::t:"d
MEMoRANDUM oPlNloN
This case involves the one-day removal of two young children from an abusive home by
an agency specifically tasked with protecting abused children. This removal is the locus of
Plaintiffs’ myriad constitutional and common law claims and the following motions currently
pending before this Court: Defendants’ Motion for judgment on the Pleadings and Motion for
Summary judgment (collectively, "Defendants’ Motions for Judgment" or "Defs.’ Mots. for j .")
[Docket No. l86], Defendants’ Motion to Strike Portions of the Declaration of Delores Williams
[Docket No. 201], Defendants’ Motion to Strike Plaintiffs’ Supplemental Memorandum in
Response to Questions Raised in Oral Argument [Docket No. 206] and Plaintiffs’ Motion for
Summary judgment [Docket No. 182].
After considering the parties’ arguments, submissions, and the entire record herein, the
Court finds that, for the reasons below, Defendants’ Motion for judgment on the Pleadings and
Motion for Summary judgment are granted, Plaintiffs’ Motion for Summary judgment is
denied, and Defendants’ Motion to Strike Portions of the Declaration of Delores Williams and
Motion to Strike Plaintiffs’ Supplemental Memorandum in Response to Questions Raised in Oral
Argument are denied as moot.
I. BACKGROUND
A. Factual Background
Plaintiffs Robert and Carla Doe (collectively, "the Does"), individually and as parents
and guardians of their minor children, brought this suit against Defendants District of Columbia,
former Mayor Fenty, and individually named employees and former employees of the District of
Columbia Child and Family Services Agency ("CFSA"): Brenda Donald, Sarah Maxwell, Sandra
j ackson, Heather Stowe, Terri Thompson Mallet, Rebekah Philippart, and Daphne King. The
Does’ claims arise out of their interactions with CFSA and the agency’s removal of their adopted
children from their home. These interactions are described in detail below.
The Does are the adoptive parents of Ann and Oliver Doe and have one biological child,
Emma Doe. In 200], Robert and Carla adopted Wayne and Sara Doe (collectively, "Twins")
after serving as their foster parents. Pls.’ Statement of Material Facts as to Which There is No
Genuine Issue 11 l [Docket No. 182-2].' A District of Columbia contractor, Board of Child Care
("BCC"), handled the adoption. See Dep. of Carla Doe at 36:8-] 6 [Docket No. ]91]. Prior to
adopting the Twins, Carla Doe knew several unfortunate details about the Twins’ lives from
"birth to about five years of age." See id. at 57:l 8. For example, she knew that the Twins did not
l Pursuant to Rule 7(h) of the Civil Rules of the United States District Court for the District of
Columbia, the parties in their motions for summary judgment filed separate statements of
material facts as to which they contend there is no genuine issue. In their opposition motions,
each party filed a statement of genuine issues. F acts that were not controverted by the parties are
deemed conceded. ``
live in a stable home, were hungry and homeless for some time, did not receive appropriate
medical care, had a drug-abusing mother, had been in weekly therapy "for years," and were put
by their mother in "inappropriate situations, unsafe and unhealthy environments for children,"
including "drug environments." Id. at 57:5-59:3, 53:8-12. She also knew that at the Twins’
previous foster home ("the Daileys"), their birth mother acted inappropriately with the Twins
during visits. Id. at 49:21-50:2.
When the Twins moved into the Doe home, they began to sexually abuse both Ann and
Oliver Doe. Ann stated that the abuse began when she was three. See Dep. of Ann Doe [Docket
No. l9l-l] at 7:22-8:18. According to Oliver, the abuse began about a month after the Twins
arrived and only ended when the Twins left the house. See Dep. of Oliver Doe [Docket No. 191-
2] at 25:1-12. The Does did not learn of the abuse until Sara told Carla Doe that she had
inappropriately touched Oliver at some point a few days before September 27, 2004. See Dep. of
Carla Doe at 86:20-22 [Docket No. l9l]; Letter Dated Sept. 27, 2004 at 3 [Docket No. 188-2].2
On September 27, 2004, the Does sent a letter to CFSA Director, Brenda Donald, and
Adoption Services Program Manager, Sharon Knight, informing CFSA that the Twins had been
abusing Ann and Oliver and requesting support services. See Letter Dated Sept. 27, 2004. The
letter stated that Sara was still residing in the Doe home at the time, though at some point she
moved out of the home to live with her maternal grandrnother. See id. at 3. Wayne had already
been moved out of the home in August or September into a therapeutic respite home with a
provider named Deborah Bobbitt to deal with his anger and other issues. See id.; Dep. of Robert
Doe at 88:9-89:16 [Docket No. l9l-4].
2 Unless the document cited is a deposition, ECF page numbers are used in citations.
3
Robert Doe met with several CFSA representatives on October l, 2004, including
Defendant Sandra Jackson, the CFSA Administrator of Permanency and Family Resources
Administration, Dr. Tracey Campfield, a CFSA psychologist in the Office of Clinical Practice,
and Sharon Knight, the Program Manager for Adoption Services. ]d. at l02:l8-l 04:4. Also
present in the meeting were two therapists from Adoption Attachment Partners who provided
therapy for the Doe children and family. See id.
F our days later, on October 5, 2004, CFSA received a follow-up letter from Robert Doe.
See Letter Dated Oct. 4, 2004 [Docket No. 191-7]. That letter stated that the Does could not
afford to keep Wayne in his out-of-home placement and Sara’s maternal grandmother could not
house her much longer. Id.
On October 6, 2004, Dr. Campfield called the CFSA hotline to officially report the abuse
in the Doe home. See CFSA Referral Report [Docket No. 191-8] at 2. Around October 7,’ 2004,
CFSA discussed with Robert Doe their plan for services for the Does, including voluntary
placement of Wayne and Sara in therapeutic foster care, as well as CFSA’s investigation. See
jackson Timeline$ at 2 [Docket No. 191-5]; Dep. of Robert Doe at 112:2-16 [Docket No. l9l-4];
Letter Dated Oct. 14, 2004 [Docket No. 191-11]. CFSA agreed to pay for therapeutic foster care
but did not agree to provide transportation and payment for Wayne’s therapy with the specific
provider he was then seeing because the provider was not an approved service provider. See
Letter Dated Oct. l4, 2004; Dep. of Sandra jackson at 68:8-13 [Docket No. 191-6]. According
3 Plaintiffs challenge the admissibility of the timeline, alleging that it is hearsay. lt may,
however, be admitted as a recorded recollection. Defendant jackson stated during her deposition
that she created the document as a record of the events that took place with the Does case to
assist her in reporting to the agency director. See Dep. of Sandra jackson at ll:4-l2:4 [Docket
No. 191-6]. The timeline was also entered in record evidence as an exhibit to the Deposition, see
id. at l l:4-9. Moreover, nearly all of the facts contained in the timeline are supported by other
undisputed evidence proffered by both Plaintiffs and Defendants.
4
to CFSA, post-adoption services support was typically available only within the first six months
or a year following adoption. See Dep. of Brenda Donald at 35:8-18 [Docket No. 191-12].
On October 7, 2004, CFSA Social Worker Delores Williams began her investigation of
the Doe home and spoke with Robert, Carla, Ann, and Oliver, following the official hotline
report. See CFSA Referral Report at 2. On October 8, 2004, Williams participated in a forensic
interview with Ann and Oscar at Safe Shores, the District of Columbia Child Advocacy Center,
during which Ann and Oliver stated they were both abused by Wayne and Sara, and that Oliver
participated in victimizing his younger sister. See id. at l2.
Based on her two days of investigation, Williams reported that there were "one or more
signs of present danger" to Ann and Oliver Doe and that their risk level was "moderate." Id. at 7.
However, she did not assess them to be in "immediate danger" because Wayne and Sara were
then living outside the home, the Does had installed an alarm system on Ann and Oliver’s doors,
and the Does had increased supervision of Ann and Oliver. See id.
On October 14, 2004, CFSA received another letter from the Does regarding CFSA’s
offers of assistance. The letter recalled CFSA’s offer to place Sara and Wayne in therapeutic
foster care and raised several concerns about this offer. See Letter Dated Oct. 14, 2004 at 2. The
Does requested the agency provide additional services to the Doe family, reminding CFSA that it
maintained obligations under the LaShawn decree and that it bore responsibility for failing to
fully investigate the history of abuse the Twins suffered prior to adoption. See id. at 2. The
Does proposed that CFSA pay for Sara to attend the Phillips School, a private school that the
Does selected, as well as therapy; pay for Wayne to continue to stay with Ms. Bobbit; pay for
both Twins’ transportation; and pay for family therapy. See ia’.
On October l9, 2004, CFSA called Mr. Doe and informed him that they had safety
concerns regarding Ann, Oliver, Sara and Wayne and that he needed to cooperate in placing the
children into voluntary care pending further investigation. See Dep. of Sandra jackson at 1621 l-
l6. Mr. Doe agreed to call CFSA back. See Dep. of Robert Doe at l36:6-l5. The Does’ then
attorney, Harvey Schweitzer, called CFSA back and proposed alternative plans for Ann and
Oliver. See jackson Timeline at 3. Schweitzer also informed Defendant Mallet that CFSA
needed a court order to remove the children. See Aff. of Harvey Schweitzer 1[ 10 [Docket No.
188-8].
On October 20, 2004, Defendant Brenda Donald, Director of CFSA, determined that
Ann, Oliver, and Sara were in immediate danger and needed to be removed from the Doe home.
See Dep. of Brenda Donald at 60:1 1-6l :l0 [Docket No. 191-12]. The following concerns held
by the CFSA team motivated this decision:
v The Does’ "failure to protect" their children during the four or more years the children
abused each other in the Doe home. As a result, CFSA was also concerned that the Does
would be unable to properly protect Ann and Oliver even with the safety plan. See Dep.
of Sandra jackson at 23:2-3; Dep. of Brenda Donald at 43:1-11; Dep. of Michele jones-
Brigrnan at 56:4-19 [Docket No. l9l-9]; CFSA Referral Forrn at 12 [Docket No. 191-8].
0 The inability of the Does’ safety plan to adequately protect the younger children. Dep. of
Brenda Donald at 60:2l-61 :l0. Specifieally, CFSA was concerned that the plan allowed
for the possibility that Ann and Oliver would come back into contact with Sara during
unsupervised visits at the grandmother’s house. See ia’. at 43:1-44:2.
¢ CFSA’s inability to enforce the plan and ensure that it effectively protected the children.
See Dep. of Michele j ones-Brigman at 56:4-1 5.
v The possibility that Sara or Wayne may have to return to live in the Doe home given the
financial and practical constraints the Does faced in keeping the Twins outside the home.
See Dep. of Sandra jackson at 32:20-33:19; Letter Dated Oct. 4, 2004 [Docket No. l9l-
7].
¢ The uncertainty regarding what the Does "knew or didn’t know" regarding the abuse, the
extent of the Does’ involvement in the abuse, and the necessity to separate the children to
gather information about this matter. See Dep. of Miehele jones-Brigman at 54:5-55:9.
CFSA then spoke with Robert Doe, and the Does agreed that CFSA social workers, rather than
police, would remove Ann, Oliver, and Sara for temporary placement. Dep. of Carla Doe at
l70:2-l7l 222 [Docket No. l9l]; Dep. of Robert Doe at 155:18-22 [Docket No. 191-4].
On the evening of October 20, 2004, Defendants King and Philippart, CFSA social
workers, were assigned to pick up Ann and Oliver. Dep. of Rebekah Philippart at 12:7-13 13
[Docket No. 191 -13]. Neither social worker had been involved in the case previously. Both
were solely assigned to transport Ann and Oliver and notify the Does of a court hearing the next
day. ld. at 12:7-14, l5:12-l9. Defendants King and Philippart went to the Doe home, picked up
the children, and provided notice of a District of Columbia Superior Court Family Court hearing
scheduled for the next day. See Dep. of Robert Doe at 165:3-9.
Ann and Oliver were taken to a hospital to receive a physical exam. See Dep. of Oliver
Doe [Docket No. 191-2] at 16:13-17:16; Dep. ofAnn Doe at 13:15-14:7; Dep. ofRebekah
Philippart [Docket No. 191-13] at 22:l l-l6. Fo1lowing the examination, Ann was taken to her
maternal grandmother’s home, a licensed foster home, and Sara and Oliver were taken to
temporary foster homes. See Dep. of Ann Doe at 15:14-17; Dep. of Oliver Doe at 17:7-12.
On October 21 , 2004, the District decided to "no paper" the neglect charges against
Robert and Carla Doe. See Dep. of Carla Doe [Docket No. 191] at 183:13-184:7. Ann and
Oliver returned home,4 and the Does agreed to a voluntary placement with CFSA for Sara. See
Dep. of Robert Doe at 171 :15-21. Sara and Wayne were charged with child abuse and taken into
custody. See Defs.’ Resp. to Pls.’ Statement of Material F acts as to Which there is No Genuine
Issue. [Docket No. l94] at 43. The Twins’ were placed on probation and in therapeutic foster
4 Ann went to live with her maternal grandmother and Oliver was returned to his parents. CFSA
Referral Fomr [Docket No. 191-8] at 13.
homes. See z``a’. From roughly November 2005 to April 2007, the Twins were under the care of
the Department of Youth Rehabilitation Services. See id. at 45.
Ultimately, in May 2007, Robert and Carla Doe relinquished parental rights to the Twins
because, according to Carla Doe, they could not "safely have them in our home" and did not
have "any money for any care of any kind." Dep. of Carla Doe at 216:6-15; see also
Relinquishment of Parental Rights Forms [Docket No. 189-15].
B. Procedural History
On December 14, 2007, the Does filed a 24-count amended complaint against the
defendants, in which they alleged violations of District of Columbia law and the U.S.
Constitution, pursuant to 42 U.S.C. § 1983. On March 7, 2008, this Court narrowed the claims
against the Defendants, dismissing seven counts entirely, parts of four counts, and one plaintiff,
Emma Doe. See Order on Defs.’ Mot. to Dismiss [Docket No. 37] at 1. The following claims
survived:
v Count II, III, and VII: Procedural Due Process Under the Fifth Amendment Alleging
Defendants Threatened to Remove and Removed Ann, Oliver, and Sara Doe from their
Homes
» Count IV: First Amendment Constitutional Violation Against Defendants Walker, Mallet,
j ackson, Stowe and the District for Alleged Retaliation After Robert and Carla Doe
Petitioned Defendant District for Assistance
¢ Count V: First Amendment Constitutional Violation Against Defendants Walker, Mallet,
Jackson, Stowe and the District for Alleged Retaliation After Robert and Carla Doe
Raised Concerns Regarding CFSA’s Failure to Properly Assess the Twins Prior to their
Adoption, and For the Need for Comprehensive Post-Adoption Services and Support
¢ Count VI: Fourth Amendment Constitutional Violation Against All Defendants for
Allegedly Threatening to Remove and Then Removing Ann, Oliver, and Sara Doe from
their Homes
Count X: First Amendment Constitutional Violation Against All Defendants for
Allegedly Threatening to Remove and then Removing Ann, Oliver, and Sara Doe from
their Homes
Count XIII: Assault Against All Defendants as to Ann and Oliver Doe
CountX1V: Battery Against All Defendants as to Ann and Oliver Doe
Count XV: Intentional Infliction of Emotional Distress Against All Defendants as to All
Plaintiffs
Count XVI: Negligence Against All Defendants as to All Plaintiffs
Count XVII: Misrepresentation Against All Defendants as to Robert and Carla Doe
Count XVl11: Malicious Prosecution and Abuse of Process Against All Defendants as to
Robert and Carla Doe
Count XlX: Selective Prosecution of the Twins Against All Defendants as to Robert and
Carla Doe
Count XX: Defamation Against All Defendants As to Robert and Carla Doe
Count XXI; invasion of Privacy
Count XXII: Negligent Hin``ng and/or Supervision Against the District as to All Plaintiffs
Count XXIlI: Violation of Federal and District Laws in F ailing to Provide Timely and
Adequate Post-Adoption Services Against Defendant District As to All Plaintiffs
Count XXIV: Punitive Damages Against All Individually Named Defendants.$
After lengthy discovery, on November 8, 201 2, Plaintiffs moved for summary judgment
and Defendants moved for summary judgment and judgment on the pleadings. Pls.’ Mot. for
Summ. j. at 1; Defs.’ Mots. for j. at 1.6
5 Because this Court awards judgment to Defendants on all counts, it need not address the issue
of punitive damages, Count XXIV of the Amended Complaint.
6 Following Plaintiffs’ reply to Defendants’ brief in opposition to Plaintiffs’ motion for summary
judgment, Defendants moved to strike portions of Exhibit 1 to Plaintiffs’ Reply, z``.e., the
declaration of Delores Wil1iams. Defs.’ Mot. to Strike Portions of the Decl. of Delores Williams
that Pls.’ Have Used in Supp. of their Reply Br. at l. Following oral arguments on these
9
II. STANDARD OF REVIEW
A. judgment on the Pleadings
Pursuant to Fed. R. Civ. P. 12(c), "[a]fter the pleadings are closed - but early enough not
to delay trial - a party may move for judgment on the pleadings." The standard of review for
evaluating such a motion is essentially the same as that for a motion to dismiss under Rule
12(b)(6). Cloonan v. Holder, 768 F. Supp. 2d 154, 160 (D.D.C. 2011). The Court must "accept
as true all of the factual allegations contained in the complaint," Atherton v. District of
Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), and allow the plaintiff "the benefit of all
inferences that can be derived from the facts alleged." Kowal v. MCI Commc ’ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994). However, the Court may not "accept inferences drawn by plaintiffs
if such inferences are unsupported by the facts set out in the complaint." Ia’. That is, the
plaintiffs must "plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Ashcrofz‘ v. Iqbal, 556 U.S. 662, 678 (2009).
B. Summary Judgmcnt
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is proper "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." The moving party bears the initial burden of showing that there exist no genuine
motions, Plaintiffs filed on April 4, 2013 a "supplemental memorandum in response to questions
raised in oral argument." Pls.’ Supp. Mem. in Resp. to Questions Raised in Oral Arg. at 1. On
April 10, 2013, Defendants moved to strike this memorandum pursuant to Fed. R. Civ. P. 7(b).
Defs.’ Mot. to Strike Pls.’ Supp. Mem. in Resp. to Questions Raised in Oral Arg. at l.
10
issue of material fact, after which the non-moving party must in opposition "set forth specific
facts showing that there is a genuine issue for trial." Celotex Corp. v_ Catrett, 477 U.S. 317, 323
(1986). To defeat a motion for summary judgment, mere "scintilla of evidence" and
"conclusory, speculative, or not significantly probative" evidence is insufficient. Ana’erson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-252 (1986). As the D.C. Circuit has explained:
The mere existence of some alleged factual dispute between the parties" will not defeat
summary judgment;" the requirement is that there be no genuine issue of material fact."
A fact is "materia " if a dispute over it might affect the outcome of a suit under governing
law; factual disputes that are "irrelevant or unnecessary" do not affect the summary
judgment deterrnination. An issue is "genuine" if "the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." lf there are no genuine issues of
material fact, the moving party is entitled to judgment as a matter of law if the
nonmoving party "fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of
proof at trial.
Holcomb v. P0well, 433 F.3d 889, 895 (D.C. Cir 2006) (intemal citations omitted).
III. ANALYSIS
A. Plaintiffs’ Fourth Amendment Claim (Count VI)
Plaintiffs contend that CFSA’s threats to remove and its removal of Ann, Oliver, and Sara
Doe, without "reasonable grounds to believe the children were in danger [and] the removal of the
children . . . was necessary" violated their Fourth Amendment right to be free from unreasonable
government intrusions and seizures. See Pls.’ Mot. for Summ. j . at 18. This Court disagrees and
awards judgment to Defendants7 on the Fourth Amendment claim.
7 The Court notes that the defendants had varying levels of involvement in the decision to
remove the children. Only Defendant Donald made the final decision. See Dep. of Brenda
Donald [Docket No. 191-12] at 60:l 1-61:10. Defendants King and Philippart, CFSA social
workers who actually removed the children from their home, were not involved in the removal
ll
The question of whether the seizure of the Doe children was reasonable is an inquiry that
must be context specific. Graham v. Connor, 490 U.S. 386, 396 (1989) ("The test of
reasonableness under the Fourth Amendment is not capable of precise definition or mechanical
application," and "its proper application requires careful attention to the facts and circumstances
of each particular case."). "ln the context of removing a child from his home and family, a
seizure is reasonable if it is pursuant to a court order, if it is supported by probable cause, or if it
is justified by exigent circumstances, meaning that state officers have reason to believe that life
or limb is in immediate jeopardy." Brokaw v. Mercer Counzy, 235 F.3d 1000, 1010 (7th Cir.
2000). See also Tenenbaum v. Williams, 193 F.3d 581, 605 (2d Cir. 1999) ("ln emergency
circumstances, a child may be taken into custody by a responsible State official without court
authorization or parental consent.") (internal citations and quotation marks omitted). In the
instant case, Defendants did not obtain a court order prior to removing the children. Defendants
instead argue that they had reason to believe that that the children were in immediate danger -
that is, exigent circumstances were present and justified the children’s removal. See Defs.’
Reply to Pls.’ Opp. to Defs.’ Mots. for j. at 3.
The D.C. Circuit has not articulated the requirements of finding "exigent circumstances"
in the context of a child’s removal from her home. Other circuits, however, have found exigent
circumstances to exist when there is "reason to believe that life or limb is in immediate jeopardy
and that the intrusion is reasonably necessary to alleviate the threat." Good v. Duaphin County
Soc. Servs. for Children and Yoath, 891 F.2d 1087, 1094 (3d Cir. 1989). See also Wallis v.
Spencer, 202 F.3d 1126, 1140 (9th Cir. 2000) (Requiring "specific, articulable evidence that
provides a reasonable cause to believe the child is in imminent danger of abuse" and that
decision and were solely assigned to transport Ann and Oliver and notify the Does of a court
hearing the next day. Dep. of Rebekah Philippart [Docket No. 191 -13] at 12:7-14, 15:12-19
12
"reasonable avenues of investigation have been pursued"); Mabe v. San Bernardino Cnty. Dep ’t
ofPub. Soc. Servs., 237 F.3d 1101, 1108 (9th Cir. 2001). Both parties here also cite to D.C.
Code § 16-2309, which provides that a "child may be taken into custody . . . by any employee of
the Agency authorized to do so, or a law enforcement officer, when he or she has reasonable
grounds to believe that the child is in immediate danger from his or her surroundings and that the
removal of the child from his or her surroundings is necessary." D.C. Code § 16-2309.
The undisputed facts show that Defendants had a number of reasons to believe that the
Doe children were in immediate danger in their homes and removing them was necessary.
Foremost among these concerns was the fact that four of the Doe children had been sexually
abusing each other for at least four years inside the Doe home and the Does’ failed to protect
against such abuse during this time. Defs.’ Opp. To Pls.’ Mot. for Summ. j . at 15; CFSA
Referral Form [Docket No. 191-8] at 12. Against this background, the CFSA team reasonably
questioned the information the Does knew about the abuse as well as the Does’ ability to
properly protect Ann and Oliver even with the safety plan the Does developed.g Dep. of Michele
jones-Brigrnan at 54:5-55:9; Dep. of Sandra jackson at 23:2-3; Dep. of Brenda Donald at 43: 1-
11; Dep. of Michele j ones-Brigman; CFSA Referral Forrn at 12. The CFSA team was also
concerned that Sara or Wayne may return to live in the Doe home given the financial and
practical constraints the Does faced in keeping the Twins outside the home. Dep. of Sandra
jackson at 32:20-33:19; Letter Dated Oct. 4, 2004. CFSA Referral Forrn at 12; CFSA Referral
Form at 12-13.
g The tenn "safety plan" refers to the Does’ putting alarms on the younger children’s doors at
night, increasing supervision, and securing outside placements for the Twins, as referred to in
Delores Williams’ investigative report. See CFSA Referral Report [Docket No. 191-8] at 7.
13
Plaintiffs argue that Defendants did not have reason to be1ieve, at the time of the removal,
that the children were in immediate danger and removal was necessary. They rely on the
following facts: that investigative Social Worker Delores Williams’ investigation found the
safety plan of the Does adequate to protect the children, that the Twins’ were outside the home at
the time of removal, and that the removal was conducted twenty-two days following the initial
letter informing CFSA of the sexual abuse occurring among the children. See Pls.’ Reply to
Defs.’ Opp. To Pls.’ Mot. for Summ. j . at 6-7.
Plaintiffs’ evidence is insufficient to allow a reasonable jury to find that Defendants
indeed lacked reasonable belief that the children were immediate harm and removal was
necessary. First, while Delores Williams’ investigative report did not find the children in
"immediate danger," her report did find "one or more signs of present danger" to Ann and Oliver
Doe and that their risk level was “moderate." CFSA Referral Report at 7. Her report also
revealed that Ann and Oliver were both abused by Wayne and Sara, that Oliver participated in
victimizing his younger sister, and that the parents were unaware of this conduct. Id. at 9.
Moreover, this report was only one piece of the three weeks of meetings, discussion, letter
exchanges, and investigation that occurred among Defendants and between Defendants and the
Does. See jackson Timeline; see also Arreclondo v. Lockyer, 462 F.3d 1292, 1300 (10th Cir.
2006) (finding that a child’s removal without a pre-deprivation hearing did not violate the
parents’ due process rights despite one social worker’s belief that the child was not in imminent
danger). Defendants clearly had other safety concerns for the children beyond Williams’ report.
See supra. Williams’ report is therefore insufficient on its own to allow a jury to find for
Plaintiffs.
14
Second, while it was undisputed that the Twins were outside of the home at the time of
the removal, the Defendants nonetheless had legitimate concerns regarding the children’s safety.
For example, Defendants were concerned that the plan allowed for the possibility that Ann and
Oliver would come back into contact with Sara during unsupervised visits at the grandmother’s
house. Dep. of Brenda Donald at 43:l-44:2. ln addition, the Does’ October 4, 2004 letter
suggested a real possibility that the Twins may have to return to live in the Doe home given the
financial and practical constraints the Does faced in keeping the Twins outside the home. Dep.
of Sandra jackson at 32:20-33:19; Letter Dated Oct. 4, 2004. CFSA Referral Forrn at 12; CFSA
Referral Form at 12-13. Williams’ investigative report also revealed that Oliver was a
participant in the abuse of his younger sister, which in light of the four years of abuse the
children perpetrated and endured within the Doe home unbeknownst to their parents raised
concerns that the Does would be unable to properly protect Ann and Oliver even with the safety
plan. Dep. of Sandra jackson at 23:2-3; Dep. of Brenda Donald at 43:1-11; Dep. of Michele
jones-Brigrnan; CFSA Referral Forrn at 12.
Finally, Plaintiffs argue that there was no reason to believe that the children were in
immediate danger since Defendants had known of the abuse in the Doe home for twenty-two
days prior to initiating removal. Pls.’ Reply to Defs.’ Opp. To Pls.’ Mot. for Summ. j . [Docket
No. 199] at 7. F or the purposes of Plaintiffs’ Fourth Amendment claim, this argument is
unsound The Does cannot demand that CFSA consider various placement options, consult with
parents, and carefully deliberate the children’s circumstances while also faulting CFSA for not
conducting their removal immediately enough when it does conclude from investigation and
discussion that the children are in immediate danger. See Tenenbaum, 193 F.3d at 595 ("[T]he
fact that a state official did not act immediately upon a report of abuse, standing alone, proves
15
nothing."); Ward v. Murphy, 330 F. Supp. 2d 83, 92 (D. Conn. 2004) ("a delay between the
report of imminent harm and the actual removal does not deprive the removal of emergent status,
provided that it was objectively reasonable for the case workers to believe that an emergency
existed at the time of removal"). Indeed, prior to the removal of a child in "immediate or
imminent danger," CFSA policy requires the consideration of "a broad range of safety-oriented
responses" as well as "consultation" among various CFSA members. CFSA Procedure U
[Docket No. 189-25] at 1. Examining this evidence as a whole, this Court concludes that no
reasonable jury could find that Defendants lacked reasonable belief that the Doe children were in
immediate danger. Furtherrnore, even if Defendants erred in their decision or act of removing -
temporarily - the children from their home, the defendants are entitled to qualified immunity, as
discussed fiirther infra. This Court therefore awards judgment to Defendants on the Fourth
Amendment claim.
B. Plaintiffs’ Fifth Amendment Claim (Counts II, III, and VII)
Plaintiffs allege that Defendants violated their Fifth Amendment procedural due process
rights by removing Ann, Oliver, and Sara from their home without following the statutory or
administrative procedures required. See Am. Compl. Counts ll, III, Vll [Docket No. 30]; Pls.’
Mot. for Summ. j . [Docket No. 182-1] at 22. However, Plaintiffs fail to offer evidence that
could allow a reasonable jury to find that Defendants violated their procedural due process
rights. judgment is therefore awarded to Defendants on the Fifth Amendment claim.
To establish a Fifth Amendment violation of procedural due process, an individual must
show: 1) the deprivation by the government 2) of a protected interest in life, liberty, or property
16
3) without due process of law. Chamness v. McHugh, 814 F. Supp. 2d 7, 11 (D.D.C. 2011).
Parents have a constitutionally protected liberty interest in the care, custody and management of
their children. See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). "As a general rule,
therefore, before parents may be deprived of the care, custody, or management of their children
without their consent, due process-ordinarily a court proceeding resulting in an order
permitting removal-must be accorded to them." Tenenbaum, 193 F.3d at 593 (2d Cir. 1999)
(citing Sl‘anley v. Illinois, 405 U.S. 645, 649 (1972)); see also Malik v. Arapahoe Cnty. Dept. of
Soc. Servs., 191 F.3d 1306, 1315 (10th Cir. 1999) (holding that a parent has a liberty interest in
familial association and privacy that, absent extraordinary circumstances, cannot be violated
without adequate pre-deprivation procedures).
Ordinarily, due process requires that the state provide parents with "predeprivation notice
and a hearing" - that is, notice and an opportunity to be heard before state officials remove
children from the home. Hollingsworth v. Hill, 110 F.3d 733, 739 (10th Cir. 1997). Given the
state’s powerful countervailing interest in protecting children from abuse and neglect, however,
we have long recognized tha "‘extraordinary cireumstances"’ may justify the state in
"‘postponing the hearing until after the event."’ Spielman v. Hildebrana', 873 F.2d 1377, 1385
(10th Cir. 1989) (quoting Smz``th v. Org. of Foster Families for Equal. and Reform, 431 U.S. 816,
848 (1977)). See also Hollingsworzh, 110 F.3d at 739 ("Removal of children from the custody of
their parents requires pre-deprivation notice and a hearing except for extraordinary situations
where some valid governmental interest is at stake that justified postponing the hearing until
after the event"). Such extraordinary circumstances, as described supra, include when children
are faced with imminent harrn. Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983) ("When
a child’s safety is threatened, that is justification . . . for action first and hearing afterward."); see
17
also Mabe, 237 F.3d at 1106; Brokaw v. Mercer Cnty., 235 F.3d 1000, 1020 (7th Cir.2000);
Tenenbaum, 193 F.3d at 593-94; Hollingsworth 110 F.3d at 739; Jordan by Jora’an v. Jackson,
15 F.3d 333, 346 (4th Cir.1994). By limiting warrantless removals to true emergencies, the law
"seeks to strike a balance among the rights and interests of parents, children, and the State."
Tenenbaum, 193 F.3d at 594.
There is no doubt that the Doe children were repeatedly sexually molested in the Doe
household without their parents’ knowledge for at least four years. lt is also undisputed that
CFSA has duty to investigate reports of child abuse. District of Columbia v. Harris, 770 A.2d 82(D.C. 2001) ("When abused and neglected children have been individually identified to the
govemment agency charged with their protection, then a duty, although narrow and specific, is
created by statute to benefit the individually identified persons."). CFSA was expressly created
to receive and respond to reports of child abuse, remove children from their homes if necessary,
investigate child abuse cases, and protect children who have been abused "from further
experiences and conditions detrimental to their healthy growth and development." D.C. Code §
4-l303.0la(b)(3), (4), (5), and (8). See also D.C. Code § 4-1301.04(a) (providing that "[t]he
Agency shall conduct a thorough investigation of a report of suspected child abuse or neglect to
protect the health and safety of the child or child.").
In light of this background, the question before this Court is whether Defendants were
faced with "exigent circumstances" that would excuse them from obtaining a court order or pre-
deprivation hearing prior to the removal of the children. As discussed supra in the context of
Plaintiffs’ Fourth Amendment claim, Defendants had several reasons to believe that the children
were in immediate danger, all of which were reasonable for an agency charged explicitly with
the protection of abused children. As a result, this Court concludes that no reasonable jury could
18
find that these Defendants lacked reasonable belief that children were in immediate danger at the
time of the removal. As such, Defendants’ failure to provide a court order for the removal of the
children or arrange a pre-deprivation hearing does not constitute a Fifth Amendment violation.
Defendants provided Plaintiffs with a Notice to Appear in D.C. Superior Court regarding the
charges of neglect against them, thereby providing both notice and a post-deprivation remedy.
See Mar‘hews v. Ela'ridge, 424 U.S. 319, 333 (1976) ("[t]he fundamental requirement of due
process is [notice and] the opportunity to be heard at a meaningful time and in a meaningful
manner, before the govemment deprives an individual of property" (internal citations omitted);
Hua'son v. Palmer, 468 U.S. 5l7, 532-33 (1984) ("[U]nauthorized intentional deprivation of
property by a state employee does not constitute a violation of [due process] if a meaningful
post-deprivation remedy for the loss is available.").
Plaintiffs mistakenly argue that "D.C. law requires a CFSA official to have a court order
to take children into custody, unless she has reasonable grounds to believe the child is in
immediate danger and no other safety-oriented responses are viable" at the time of the removal.
See Pls.’ Opp. [Docket No. 193] at 3. The provision that Plaintiffs cite, D.C. Code § 16-
23 09(a)(3), actually states: "A child may be taken into custody . . . by a law enforcement officer
when he or she has reasonable grounds to believe that the child is in immediate danger from his
or her surroundings and that the removal of the child from his or her surrounds is necessary."
D.C. Code § 16-2309(a)(3). D.C. law does not require that CFSA officials exhaust viable safety-
oriented responses before removing a child in immediate danger without a court order, Rather, it
is CFSA policy that states that "the investigations Worker shall consider a broad range of safety-
oriented responses" prior to removal. CFSA Procedure U at 1 (emphasis added). Regardless, the
undisputed facts in this case demonstrate that Defendants did consider altematives to removal,
19
holding meetings and phone calls with the Does to discuss such altematives, and asking the Does
to voluntarily place the children in foster care prior to the removal to better assist them, See
CFSA Referral Report at 12 ("There had been many discussions with the family suggesting that
in order for the agency to assit [sic] the family and provide the needed services, that the parents
needed to voluntarily place the children in care under a 21 day voluntary placement
agreement."). The Court also notes that the total length of time the children were removed from
their home was under twenty-four hours. Id. at 13. The day after the removal, Ann and Oliver
returned to their matemal grandmother and parents, respectively, while the Does agreed to have
Sara placed in temporary foster care. Id.g
Since Plaintiffs have failed to offer evidence that could allow a reasonable jury to find
that Defendants, in this process, lacked reasonable belief that the children were in immediate
harm and removal was necessary, judgment is awarded to Defendants on the Fifth Amendment
claim.l°
c. Plaintiffs’ First Amendment claims (Counts rv, v, and x)“
Plaintiffs contend that Defendants violated their First Amendment rights by retaliating
against them for petitioning the CFSA and DYRS for assistance, and for raising concerns about
the CFSA’s failure to assess the Twins prior to adoption and the CFSA’s obligations under
9 The Court also concludes that the prosecutor’s decision to "no-paper" the case does not render
Defendants’ decision to temporarily remove the children unreasonable at the time it was made.
See, e.g., Doe v. Kearney, 329 F.3d 1286, 1299 (l1th Cir. 2003) (finding a social worker’s
temporary removal of children did not violate the Constitution after she received documented
reports of sexual abuse within the family, even though a state judge found no probable cause to
keep the children from their parents and ordered their immediate return the following day).
10 Defendants are also awarded judgment on qualified immunity grounds, discussed z'nfra.
11 Plaintiffs’ Count X includes a right to privacy claim under the First Amendment that will be
analyzed with their common law right to privacy claim (Count XXI), infra
20
District and federal law and this Court’s orders in LaShawn (Counts iV and V). This alleged
retaliation took the form of CFSA threatening to remove the children, CFSA removing the
children, and CFSA and DYRS forcing the Does to relinquish parental rights to Sara and Wayne.
in order to prove a claim for retaliation, a plaintiff must establish the following elements:
(1) the plaintiff was engaged in conduct protected under the First Amendment, (2) the defendant
took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff s
position from speaking again; and (3) a causal link between exercising a constitutional right and
the adverse action taken against him. Arefv. Holder, 774 F. Supp. 2d 147 , 169 (D.D.C. 2011).
Plaintiffs contend they engaged in the following protected activities: (1) requesting
assistance from CFSA, (2) raising concems about CFSA’s evaluation and care of Wayne and
Sara, (3) demanding that agency officials provide adequate services for their children, (4)
objecting to offers of inadequate services or assistance, (5) objecting to the interview process at
the Children’s Advocacy Center, and (6) raising concems about the planning, security, and care
of their children at DYRS. See Pls.’ Mot. for Summ. j . at 25-28; Am. Compl. 1111 165-l70.
Defendants contest that Plaintiffs’ activities were not protected under the First Amendment
because they were private requests for assistance and did not touch on a matter of public
concern. See Defs.’ Mots. for j. at 19.
Regarding the second and third elements of retaliation claim, Plaintiffs contend that
defendants committed several retaliatory actions, including (1) threatening to remove and
removing the children from the Doe home, (2) falsely charging Robert and Carla Doe with
sexually abusing their children, (3) initiating juvenile charges against the Twins, (4) removing
DYRS services and CFSA support, and (5) forcing Robert and Carla Doe to relinquish their
parental rights to Wayne and Sara. See Pls.’ Mot. for Summ. j . at 24-27.
21
it is unnecessary for this Court to determine whether the Does’ activities were
"protected" under the First Amendment and whether Defendants’ actions "would likely chill a
person of ordinary firmness from continuing to engage in [protected] activity," Jenkins, 513 F.3d
at 587, because Plaintiffs fail to establish the third element of a retaliation claim, i.e., Plaintiffs
cannot show a nexus between their protected activities and these allegedly retaliatory actions.
As discussed supra in the context of Fourth and Fifth Amendment claims, Plaintiffs fail
to provide evidence that would allow a reasonable jury to find that the removal of the children
was unreasonable and therefore unlawf11l. Moreover, the undisputed facts show that CFSA did
not remove the children (or engage in any allegedly retaliatory action) until after Plaintiffs
informed CFSA that the Twins had sexually abused Ann and Oliver and after CFSA found that
the abuse had been going on for years. There is also no evidence that the juvenile charges
against the Twins or DYRS’ decision to terminate services were retaliatory, that any of the
individual Defendants were involved in DYRS’ decision, or that Defendants "forced" the Does
to relinquish custody of Sara and Wayne in May 2007. Plaintiffs’ evidence of alleged retaliation
consists only of the deposition testimony of Mary Phillips, DYRS Special Assistant, and a letter
from then-DYRS Director Vincent Schiraldi, neither of which provides a retaliatory explanation
for Defendants’ actions. Ms. Phillips’s deposition testimony in fact outlines a completely non-
retaliatory reason for why DYRS’s services were terminated'z and Mr. Schiraldi’s letter does not
discuss Plaintiffs’ request for services or why services were terminated, instead focusing on the
12 Special Assistant Phillips explained that she decided to close the Twins’ juvenile cases and
terminate DYRS services:
[b]ecause we had provided the services and because the children were not appropriately
committed to us. And the only reason that they were committed was that we were
basically bankrolling their housing because the parents wouldn’t allow them to come
home. They had actually been on probation, were succeeding on probation, and under
normal circumstances, never would have been committed.
Dep. of Mary Phillips [Docket No. 182-15] at 8-16.
22
preparation for the Twins’ placement following "the anticipated relinquishment of parental
rights." Letter from Vincent Schiraldi to judge Saddler [Docket No. 189-28] at 1. Without
evidence showing that Defendants’ actions were retaliatory or even causally linked to Plaintiffs’
protected actions, judgment must be rendered to Defendants on Counts IV and V.
D. Plaintiffs’ Assault and Battery Claims (Counts Xlll and XIV)U
Plaintiffs allege that all Defendants assaulted and battered Ann and Oliver when
Defendants "intentionally and unlawfully caused [Ann and Oliver to] apprehen[d] imminent
physical harm" and "intentionally and unlawfully touched and restrained Ann and Oliver without
their parents [sic] consent." See Am. Compl. 1111 194, 196. Plaintiffs, however, do not proffer
evidence to satisfy the elements of assault and battery. An assault is "an intentional and
unlawful attempt or threat, either by words or by acts, to do physical harm to the victim."
Etheredge v. District of Columbia, 635 A.2d 908, 916 (1993) (intemal citations omitted). That is
to say, an "[a]ssault results from apprehension of imminent harmful or offensive contact, in
contrast to contact itself." Ia’. in contrast, "[a] battery is harmful or offensive contact with a
person, resulting from an act intended to cause [that person] . . . to suffer such a contact."
Pearson v. Children ’s Hosp. Nat’l Med. Ctr., 562 A.2d 648, 650 (D.C. 1989). Plaintiffs fail to
offer sufficient evidence to prove either.
Plaintiffs allege in their Opposition Brief that the assault and battery took place when
Defendants Philippart and King physically removed the children (allegedly against their parents’
wishes) and took them for medical examinations. Pls.’ Opp. to Defs.’ Mots. for j . [Docket No.
13 The Court finds that most of Plaintiffs’ remaining claims are thinly supported. it seems that
Plaintiffs have adopted the "see what sticks" approach that is becoming sadly typical of litigation
today by including all conceivable arguments regardless of their strength, yet weakening their
overall case as a result.
23
193] at 25-26. Plaintiffs offer no evidence to suggest that any of the remaining Defendants
attempted to do physical harm or physically contacted Ann and Oliver Doe in any way. With
regards to Defendants Philippart and King, who removed the Doe children, Plaintiffs do not offer
proof that these particular defendants in fact intentionally caused the children to apprehend
imminent harm or made intentionally harmful or offensive contact with the children. in fact,
Plaintiffs’ Complaint fails to describe how the assault and battery occurred. See Am. Compl. 1111
194, 196. Defendants Philippart and King were acting in within their lawful authority, believing
that their superiors had found the children to be in immediate harm and had decided to remove
the children as CFSA was authorized to do, see §§ 4-l30l.04(b), 4-1303.01 a, and 4-1301 .06.
Defendants Philippart and King thus removed the children as instructed. See Dep. of Rebekah
Philippart at 23:18-24:18. They played no part in the investigation or removal decision, see ia'.,
and are also protected by qualified immunity See infra discussion on qualified immunity.“
Since Plaintiffs do not plead sufficient facts to allow a jury to reasonably find in their favor,
judgment is granted in favor of Defendants on the assault and battery claims. See Ashcroft v.
rqbal, 556 u.s. 662, 678 (2009).
14 Further, there is absolutely no evidence - nor do Plaintiffs allege - that Defendants Philippart
and King (or any of the other Defendants) used unreasonable force to remove the children. See,
e.g., Magwood v. Gia’dings, 672 A.2d 1083, 1086 (1996) ("if a person detains another with the
authority of law he cannot be liable in tort for the reasonable exercise of that authority.").
Additionally, CFSA policy required, as part of the removal process, a medical examination of the
children. See CFSA Procedure U at 1. Plaintiffs offer no proof that any of the named Defendants
conducted the routine medical examinations on the children following their removal. Plaintiffs
also offer no facts to support that the routine medical examinations that Ann and Oliver
underwent constituted intentionally harmful or offensive contact or intentionally caused the
children apprehension of imminent harm. See Am. Compl. 1111 193-196.
24
E. Plaintiffs’ intentional infliction of Emotion Distress Claim (Count XV)
Plaintiffs also fall well short of adequately pleading their claim of intentional infliction of
Emotional Distress ("iiED"). To succeed on the claim of intentional infliction of Emotional
Distress ("IIED"), a plaintiff must show "(1) extreme and outrageous conduct on the part of the
defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress."
Sere v. Grp. Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982) (intemal citations omitted); see
also District of Columbia v. Tulin, 994 A.2d 788, 800 (D.C. 2010). Plaintiffs allege that the acts
of all defendants "werc extreme, outrageous, and intentional, and/or undertaken in reckless
disregard and deliberate indifference to the consequences and impacts those acts would have on
the Plaintiffs." Am. Compl. at 11 198. While Plaintiffs’ complaint contains no specific
information about what these acts actually were and how they satisfy the elements of an liED
claim, Plaintiffs specify in their Motion for Summary judgment the following acts as "extreme
and outrageous conduct" on the part of Defendants:
(1) took action to try and disrupt their legal representation; (2) threatened Carla and
Robert with arrest if they didn’t allow the Defendants to take their children; (3)
fraudulently claimed there was some immediate danger that required the Doe children to
be removed; (4) filed false complaints stating that Carla and Robert had been involved in
sexually abusing their children; (5) charged the Twins as criminals instead of providing
them with comprehensive services; (6) cut off the modest services that were provided; (7)
retaliated against the Does when they raised concerns about the timing or adequacy of
services for the Twins; (8) further retaliated by cutting off services for the Twins and
forcing the Does to relinquish their parental rights resulting in the Twins returning to the
custody of CFSA,
Pls.’ Mot. for Summ. j . at 28. While Plaintiffs repeatedly make the conclusory statement that
these actions rise to the level of "extreme and outrageous" under District of Columbia law, see
id. at 27-29, they offer no legal support for this assertion The only case Plaintiffs cite is Park v.
Hyatt Corp., in which the court concluded "repeated acts of discrimination and racially
25
motivated sabotage" could amount to extreme and outrageous conduct. See 436 F. Supp. 2d 60,
65 (D.D.C. 2006). As Plaintiffs’ liED claim is not grounded on any racially motivated
discrimination by Defendants, Park offers no support for their claim.
Rather, as the D.C. Court of Appeals has made clear, "to be actionable, the conduct must
be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bound of
deeency, and to be regarded as atrocious, and utterly intolerable in a civilized community."’
Tulin, 994 A.2d at 800. A reasonable jury could not find that Defendants’ alleged conduct rose
to the level of "extreme and outrageous." As described in more detail supra,15 Defendants were
statutorily obliged to investigate and respond to reports of sexual abuse. See D.C. Code § 4-
1301 .04(a)(1 ). Once Defendants received information that the Doe children had been abusing
each other for nearly four years within the Doe home, they were required to act to protect the
children. Moreover, Defendants had several reasonable concerns for the safety of the children
that motivated the temporary removal of the children, who were retumed within twenty-four
hours. Such conduct certainly does not rise to the level of "outrageous." Homan v. Goyal, 711
A.2d 812, 818 (D.C. 1998) (holding that liability for liED will not attach to "mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.")."’ As such, judgment is
awarded to Defendants on the IIED claim.
15 See discussion on Fourth and Fifth Amendment claims supra.
16 Plaintiffs also fail to offer proof that they meet the level of "severe emotional distress"
required for an liED claim. To meet this requirement, "the defendant’s actions must proximately
cause the plaintiff emotional distress ‘of so acute a nature that harmful physical consequences
might be not unlikely to result."’ Kotsch v. District of Columbia, 924 A.2d 1040, 1046 (D.C.
2009) (internal quotation marks omitted). "[M]ental anguish" and "stress" are
insufficient. Futrell v. Dep’t ofLabor Fea', Crea’z``t Uni0n, 816 A.2d 793, 808 (D.C. 2003); see
also Kitt v. Capital Concerts, 742 A.2d 856, 861-62 (D.C. 1999) ("angst, sleeplessness, and
humiliation" is not "greater [discomfort] than a reasonable person could be expected to
tolerate"). Here, Plaintiffs allege that they suffered and will suffer "anxiety, pain, post-traumatic
26
F. Plaintiffs’ Negligence and Negligent Hiring and Supervision Claims (Counts
XVI and XXII)
Plaintiffs seek to hold the individually named Defendants liable for negligence and the
District liable for negligent hiring and supervision. Plaintiffs claim that Defendants were
negligent in their assessment of the Twins when they were placed in foster care, during the
investigation of abuse among the Doe children, and in their response to Plaintiffs’ requests for
services. See Am. Compl. '|130; Pls.’ Opp. to Defs.’ Mots. for j. [Docket No. 193] at 29-31. To
prove negligence, Plaintiffs must show three elements: (1) "a duty of care owed by the defendant
to the plaintiff," (2) "a breach of that duty by the defendant," and (3) "damage to the interests of
the plaintiff, proximately caused by the breach." District ofColumbia v. Cooper, 483 A.2d 317,
321 (D.C. 1984); Pannell v. District of Columbia, 829 A.2d 474, 479 (D.C. 2003). This Court
award Defendants summary judgment on Counts XVI and XXii because there is "an absence of
proof on one or more essential elements" of Plaintiffs’ negligence claims. Mz``xon v. Wash.
Metro. Area Transit Auth., 959 A.2d 55, 57 (D.C. 2008); see also Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986).
First, it is at best unclear what standard of care Defendants owed to Plaintiff``s.
Defendants correctly argue that expert testimony is necessary to determine the standard of care
owed because "the subject in question is so distinctly related to some science, profession or
occupation as to be beyond the ken of the average layperson." See District ofColurnbz'a v.
Peters, 527 A.2d 1269, 1273 (D.C. l982). Plaintiffs’ argument that D.C. Code § 16-307
establishes the appropriate standard of care and obviates the need for expert testimony, see Pls.’
stress, humiliation, fear, and other damages" and thus cannot sustain a claim for IIED. See Am.
Compl. 11 198.
27
Opp. [Docket No.l93] at 30, is misplaced. That statute governs adoption proceedings, which are
only one of Plaintiffs’ claims. With regards to the adoption proceedings, Plaintiffs do not
demonstrate what duty of care was owed to them by CFSA when the Board of Child Care, a
contractor, handled the adoption of the Twins. Indeed, according to Carla Doe, she did not speak
to anyone from CFSA during the adoption process, See Dep. of Carla Doe at 64:5-17. Plaintiffs
put forth an adoption status report from the Board of Child Care with a signature line for the
former Director of CFSA to show that CFSA was involved in the adoption of the Twins. See
BCC Status Report [Docket No. 189-24] at 5. This document does not show that any of the
named Defendants were involved in the adoption, much less the standard of care CFSA owed to
the Does during this process or that the Defendants violated the provisions of § 16-307.17
Second, though Plaintiffs aver that Defendants were negligent in how they responded to
the Does’ requests for services, Plaintiffs fail to offer proof that Defendants breached the duty of
care owed to Plaintiffs. Defendants rightly argue that the Plaintiffs’ negligence claims deal with
issues that are beyond the understanding and knowledge of the average juror. These issues
include what factors CFSA must consider when deciding what services to provide and in what
17 Moreover, even if Defendants were involved in the adoption process and there was a clear
standard of care governing this process, Plaintiffs offer insufficient proof that Defendants’
allegedly withholding information about the Twins’ history violated a duty of care. it is
undisputed that BCC handled the adoption. it is also undisputed that Plaintiffs knew several
aspects of the Twins’ history prior to their placement as foster children in the Doe home, e.g.,
that the Twins were often hungry and homeless, did not receive appropriate medical care, had a
drug-abusing mother, had been in weekly therapy "for years," and were put by their mother in
"inappropriate situations, unsafe and unhealthy environments for children," including "drug
environments." Ia'. at 5 7:5-59:3, 53:8-12. She also knew that at the Twins’ previous foster home
("the Daileys"), their birth mother acted inappropriately with the Twins during visits. Ia’. at
49:21-50:2. Given what Plaintiffs already knew about the Twins, it is unclear what material
facts the additional information would have provided and whether this would have altered the
Does’ decision to adopt the Twins. Plaintiffs therefore fail to show that not having the additional
information about the Twins’ history (which Defendants allegedly failed to disclose) proximately
caused them injury.
28
time frame and how to assess the reasonableness of a family’s requested services, particularly in
light of the numerous requests made by various families in need. Plaintiffs themselves
acknowledge that they have received numerous services from CFSA, including "(a) monthly
adoption stipends that vary in amount from year to year; (b) funds for therapy from the crime
victims fund; (c) therapy services from the Superior Court Child Guidance Clinic; (d) funds for a
therapeutic summer camp during one summer for Wayne Doc; and (c) various services provided
by District contractor First Home Care [and] a monthly adoption subsidy to offset some of the
costs of the children’s living expenses." See Pls.’ Ans. to the Defs.’ interrogatories Nos. 5 and 6
[Docket No. 191 ~17]. Yet Plaintiffs put forth no evidence showing that this level of services
deviates from the standard of care CFSA owes to them. Plaintiffs further fail to show that their
requests, including a private boarding school, transportation, and therapy with a non-agency
provider, are reasonable requests given the standard of care owed. See Letter Dated Oct. 14,
2004 [Docket No. 191-11] at 2-3.
Third, Plaintiffs have not presented any evidence to prove its negligent hiring and
supervision claim. "To invoke theory of liability based on negligent hiring or supervision, a
party must show that the employer knew or should have known that its employee behaved in
dangerous or otherwise incompetent manner, and that employer, armed with that actual or
constructive knowledge, failed to adequately supervise the employee." See Giles v. Shell Oil
Corp., 487 A.2d 610 (D.C. 1985). Plaintiffs offer no facts illustrating that the District failed to
properly make hiring decisions, that any employee behaved incompetently, that the District
failed to adequately supervised its staff, and that this negligence proximately caused them harrn.
See Am. Compl. j[jl 199-200. judgment is therefore awarded to Defendants on the negligence
and negligent supervision claims.
29
G. Plaintiffs’ Misrepresentation Claim (Count XVII)
Plaintiffs allege that Defendants made false statements or omissions of fact concerning
the overall health and family history of the Twins in violation of Defendants’ duty of reasonable
care. According to Plaintiffs, "these false statements or omissions were detrimentally relied
upon by Robert and Carla Doe when they adopted and sought therapy for the Twins." Am.
Compl. 11 202. Plaintiffs’ misrepresentation claim fails for three reasons.
First, Plaintiffs’ claim is procedurally barred. it is undisputed that Plaintiffs Robert and
Carla Doe became foster parents of the Twins in 2000, and adopted the Twins in 2001. Yet, they
filed this cause of action against the Defendants on May 27, 2005, well over the three year
statute of limitations under D.C. law. See D.C. Code § 12-301(8) (prescribing three years for a
cause of action for which a limitation is not otherwise specifically prescribed). Plaintiffs concede
this point by not challenging it.18
Second, Plaintiffs present no evidence that any of the named Defendants or any District
employee was involved in the Twins’ adoption proceedings. it is undisputed that Plaintiffs
worked with the Board of Child Care during the adoption process. Indeed, according to Carla
18 Plaintiffs have also failed to comply with the mandatory notice requirement of D.C. Code §
12-309, which provides:
An action may not be maintained against the District of Columbia for unliquidated
damages to person or property unless, within six months after the injury or damage was
sustained, the claimant, his agent, or attomey has given notice in writing to the Mayor of
the District of Columbia of the approximate time, place, cause, and circumstances of the
injury or damage.
D.C. Code § 12-309. The District of Columbia Court of Appeals has held that this provision
must be narrowly construed against claimants. See, e.g., Snowder v. District of Columbia, 949
A.2d 590, 600 (D.C. 2008); District ofColumbia v. Dunrnore, 662 A.2d 1356, 1359 (D.C. 1995).
Since the alleged misrepresentation occurred in March 2000, more than six months prior to the
date of the letters of notice Plaintiffs sent to the District on February 22, 2005 and April 26,
2005, Plaintiffs failed to provide adequate notice for their misrepresentation claim.18
30
Doe, she did not speak to anyone from CFSA during the adoption process. See Dep. of Carla
Doe [Docket No. 191] at 64:5-17. Plaintiffs put forth an adoption status report from the Board of
Child Care with a signature line for the former Director of CFSA to show that CFSA was
involved in the adoption of the Twins. See BCC Status Report [Docket No. 189-24] at 5. This
document does not show that any of the named Defendants were involved in the adoption.
Third, even if Defendants were involved in the adoption process, Plaintiffs do not offer
sufficient evidence to establish a claim for negligent misrepresentation under D.C. law. To
establish such a claim, Plaintiffs must show that
(1) the defendant made a false statement or omission of a fact;
(2) the statement was in violation of a duty to exercise reasonable care;
(3) the false statement or omission involved a material issue;
(4) the plaintiff reasonably relied to his detriment on the false infonnation, and
(5) the defcndant’s challenged conduct proximately caused injury to the plaintiff
Burlz``ngton Ins. C0. v. Okie Dokz'e, Inc., 398 F. Supp. 2d 147, 154 (D.D.C. 2005). Plaintiffs do
not specify what information Defendants knew and failed to disclose regarding the Twins’
history. Plaintiffs allude to "false statement and omissions of facts" made prior to adoption and
to "records in [Defendant District’s] possession" but do not elaborate what these records include.
Pls.’ Opp. to Defs.’ Mots. for j . at 32. Plaintiffs also do not describe what duty Defendants owed
to Plaintiffs during the adoption proceedings or how this duty was violated. See generally ia’.
Even if Plaintiffs could establish the first four elements of a negligent misrepresentation
claim, they do not offer evidence that the allegedly false statements and omissions of fact
proximately caused them injury. While Plaintiffs claim that they would not have adopted the
Twins had they known the omitted information, see ia’. at 33, it is undisputed that Plaintiffs knew
31
several aspects of the Twins’ history prior to their placement as foster children in the Doe home.
See supra text accompanying note 16. Plaintiffs fail to demonstrate that the omitted infonnation
was materially different than the infonnation they already knew about the Twins and therefore
proximately caused Plaintiffs injury. As no reasonable juror could find for Plaintiffs on their
negligent misrepresentation claim, judgment is awarded to Defendants.
H. Plaintiffs’ Malicious Prosecution and Abuse of Process Claims as to Robert
and Carla Doe (Count XVIII)
Plaintiffs claim that Defendants acted "with malicious intent in planning and initiating" a
child abuse and neglect proceeding against Robert and Carla Doe. See Am. Compl. 11 204.
Plaintiffs have conceded Defendants’ arguments on the malicious prosecution claim by failing to
address them in their opposition brief. See generally Pls.’ Opp. [Docket No. 193]. See Hopkins
v. Women ’s Div., Gen. Ba'. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C.2003) ("lt is well
understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.") (citing FD1C v. Bena’er, 127 F.3d 58, 67-68 (D.C.
cir. 1997).‘°
19 Substantively, Plaintiffs cannot show that they suffered any "special injury" as a result of their
abuse and neglect proceeding. Tri-State Hosp. Supply Corp. v. United States, 2007 U.S. Dist.
LEXiS 48609 at *15 (D.D.C. 2007) (citing Weisrnan v. Mia'a'lelon, 390 A.2d 996, 1000 (D.C.
l978)) ("in order to prevail on a malicious prosecution claim, the plaintiff must prove special
injury, that is, some injury which would not necessarily occur in all suits prosecuted for similar
causes of action."). incurring substantial expense in defending against a lawsuit does not reach
the level of special injury, Ial. at *19. Plaintiffs have neither pled nor offered proof of any
special injury as a result of the abuse and neglect complaint filed against them, after which the
case was never called and the charges were no-papered. See Defs.’ Mots. for j . at 13; Pls.’ Mot.
for Summ. j. at 6.
32
Plaintiffs’ abuse of process claim also fails as a matter of law. "The essence of the tort of
abuse of process is the use of the legal system to accomplish some end which is without the
regular purview of the process, or which compels the party against whom it is used to do some
collateral thing which he could not legally and regularly be required to do." Scott v. District of
Columbia, 101 F.3d 748, 755 (D.C. Cir. 1996) (internal citations omitted). As the D.C. Circuit
has explained:
F or abuse of process to occur there must be use of the process for an immediate purpose
other than that for which it was designed and intendcd. The usual case of abuse of
process is one of some fonn of extortion, using the process to put pressure upon the other
to compel him to pay a different debt or to take some other action or refrain fi'om it. Ia'. at
755-56.
Plaintiffs have failed to offer any proof that the legal system was used to accomplish an
unintended end. Though they allege that Defendants used the legal process to "remove the Does’
adopted children from their care in order to retaliate against them," see Pls.’ Opp. Mot. at 34,
they offer little proof to substantiate this allegation. instead, Plaintiffs make several conclusory
statements about Defendants having "absolutely no basis" to remove the children and any
concems the Defendants had were "vague." Ia’. at 35. Other than their conclusory allegations,
Plaintiffs do not put forward evidence that could substantiate their abuse of process claim against
the Defendants.zo As such, judgment is awarded to Defendants on both the malicious
prosecution and abuse of process claims.
211 Plaintiffs make much of the complaint fonns listing Robert and Carla Does’ names under the
"alleged abuser" line of the abuse and neglect complaint form, but they fail to reconcile this with
the fact that the Does do not appear anywhere in the statement of facts section of the fonn (where
the sexual activity between the children is described as the reason for removal) and that the case
was no-papered and never called. See Defs.’ Mots. for j . at 13; Pls.’ Mot. for Summ. j . at 6.
33
I. Plaintiffs’ Defamation Claim (Count XX)
Plaintiffs claim that "the false charges of abuse and the removal of several of the children
from their home without cause or legal basis has placed [them] in a false light in the legal
community and with the public at large." Am. Compl. 11 208. However, Plaintiffs concede their
defamation claim since they fail to respond to Defendants’ arguments regarding this claim in
their opposition brief. See Pls.’ Opp. to Defs.’ Mots. for j . [Docket No. 193]. See Hopkz``ns, 284
F. Supp. 2d at 25 (D.D.C. 2003). Plaintiffs also fail to offer proof sufficient to establish a
defamation claim. The charges of abuse against the Does, which were eventually no-papered,
cannot support a defamation claim because they are statements incidental to judicial proceedings
and are therefore absolutely privileged. Manzanderan v. M€Granerjy, 490 A.2d 180, 181 (D.C.
1984) ("It is well-settled that defamatory statements published incidental to judicial proceedings
are absolutely privileged, providing the statements are relevant to the proceeding."). Further, the
removal of the Doe children from their home is not a "statement" that can sustain a defamation
claim. As such, judgment is awarded to Defendants on the defamation claim.
J. Plaintiffs’ Selective Prosecution of the Twins Claim (Count XIX)
Plaintiffs allege that Defendants selectively prosecuted the Twins, since "[o]ther similarly
situated children are not prosecuted for such offenses, particularly when the children are subjects
of open abuse or neglect cases." Am. Compl. at 39. Plaintiffs have conceded their selective
prosecution claim by failing to address Defendants’ arguments in their opposition brief. See Pls.’
Opp. See Hopkz``ns, 284 F. Supp. 2d at 25. Plaintiffs also lack standing to assert claims on the
behalf of Wayne and Sara Doe, over whom the Does forfeited parental rights in 2007 and who
are not plaintiffs in this litigation. See Am. Compl. at 11 6; see also King v. District of Columbia,
34
878 F. Supp. 2d 8 (D.D.C. 2012) ("[u]nder D.C. law [only] a custodial parent may bring a next
friend suit . . . , and plaintiffs have not produced any authority indicating that the non-custodial
parent may sue as next f``n``end."); see also Elk Grove, 542 U.S. at 17 (denying non-custodial
father right to bring suit on child’s behalf). Finally, selective prosecution claims are based on
constitutional equal protection standards, see, e.g., United States v. Armstrong, 517 U.S. 456,
465 (1996), and all equal protection claims were dismissed in this Court’s March 7, 2008 order.
See Order Granting in Part and Den. in Part Defs.’ Mot. to Dismiss [Docket No. 37]. Therefore,
this Court awards judgment to Defendants on the selective prosecution claim.
K. Plaintiffs’ invasion of Privacy (Count XXI)
Plaintiffs’ invasion of privacy claim also fails as a matter of law. Plaintiffs claim that
Defendants violated their right to privacy when Defendants entered their home to remove Ann
and Oliver on October 20, 2004. The D.C. Circuit has only "approve[d] the extension of the tort
of invasion of privacy to instances of intrusion, whether by physical trespass or not, into spheres
from which an ordinary man in a plaintiffs position could reasonably expect that the particular
defendant should be excluded." Pearson v. Doa’d, 410 F.2d 701 , 704 (D.C. Cir. 1969) (emphasis
added). The issue before the Court is thus whether an ordinary person in Plaintiffs’ position
could reasonably expect that Defendants should have been excluded from his or her home on
October 20, 2004. This Court finds the answer to this question to be no and awards Defendants
summary judgment on this issue.
35
As explained supra, Defendants had reasonable belief that the children were in immediate
danger.21 Duty bound to investigate reports of child abuse, see D.C. Code § 4-1301 .04(a)-(b),
Defendants had leamed that the Doe children had been sexually abusing each other for nearly
four years within the Doe home.zz Defendants had a series of concems that led to their
reasonable belief that the children were in immediate harrn. See supra discussion on Fourth
Amendment claim. Plaintiffs claim that Defendants’ concerns are "post hoc excuses" and
"shifting explanations" that were never shared with them. Pls. Opp. Mot. at 4. Yet Plaintiffs’
evidence to support these claims is slim. The Complaint Referral Fonn Plaintiffs’ cite reveals
that the children were removed in response to the prolonged period of sexual abuse that was
taking place among the children. See Removal Complaint Fonn [Docket No. 188-161 at 2. it is
also clear that Carla Doe knew that CFSA did find the children to be in imminent hann and thus
removed them. See Dep. of Carla Doe at 172:2-16 ("it was my understanding that CFSA thought
they were in imminent danger somehow, and that’s why they were coming.").
Against this background, an ordinary person in Plaintiffs’ position could not have
reasonably expected that Defendants should be excluded from their home. Georgia v. Rana’olph,
547 U.S. 103, 118-19 (2006) ("the question whether the police might lawfully enter over
21See discussion supra on Plaintiffs’ Fourth and Fifth Amendment claims. The Court also notes
that prior to the children’s removal, CFSA spoke with Robert Doe, and the Does agreed that
CFSA social workers, rather than police, would remove Ann, Oliver, and Sara for temporary
placement. Dep. of Carla Doe at 170:2-171:22; Dep. of Robert Doe at 155:18-22. While the
Does allege that they only agreed to the removal to prevent "the police being called" and acted
"under duress," Dep. of Carla Doe at 170:2-13, they did expect the arrival of the social workers
on the evening of October 20, 2004, for the purposes of removing the children from the Doe
home. Dep. of Carla Doe at 170:2-171;22; Dep. of Robert Doe at l55:18-22.
22 Not only did the Twins have sexual contact with each other and with their younger siblings,
but Oliver also admitted to abusing his younger sister. See CFSA Referral Report [Docket No.
191-s1 ar 12.
36
objection in order to provide any protection that might be reasonable is easily answered yes . . .
."). This Court therefore grants judgment in Defendants’ favor on the invasion of privacy claim.
L. Plaintiffs’ Claim that Defendants Violated Federal and District Laws in
Failing to Provide Timely and Adequate Post-Adoption Services (Count
XXIII)
Plaintiffs claim that Defendants violated District and federal laws by "fail[ing] to
properly respond to . . . Plaintiffs’ post-adoption needs." Am. Compl. 11 214. Plaintiffs allege
that they specifically sought, but were not provided with, various post-adoption services,
including an appropriate plan for addressing the Twins’ post-adoption needs through residential
or foster family placement and treatment, appropriate therapy for all Plaintiffs other than the
Twins, including family therapy, and transportation assistance. Ial. at 1111 215, 217. Plaintiffs,
however, have no cause of action under this Court’s decision in LaShawn A. v. Kelly, 887 F.
Supp. 297, 298 (D.D.C. 1995), or under District law to justify such relief.
Plaintiffs first seek to hold Defendants liable for violations of LaShawn, alleging that
Defendants’ failure to respond to their requests for post-adoption services constituted "a serious
violation of LaShawn, and the spirit and intent of the implementation Plan." Am. Compl. 11 216.
However, LaShawn on its own does not provide Plaintiffs with a private cause of action.
LaShawn was a class action lawsuit brought on behalf of abused and neglected children in the
District of Columbia, both those in District custody and those known to the District but in private
custody. See ia’. in LaShawn, this Court found numerous and widespread problems in the
District’s child welfare system and finalized a consent decree directing the then-Department of
Human Services to develop policies in various areas related to child protection and family
preservation. Ia'. in 2003, following this Court’s creation and termination of a general
37
receivership to address repeated deficiencies in the child welfare system, this Court approved the
Court Monitor’s implementation Plan as a comprehensive outline for reform and to bring the
District into compliance with the Court’s 1993 Modified Final Order. See LaShawn A. v. Fenly,
701 F. Supp. 2d 84, 88 (D.D.C. 2010); LaShawn Modified Final Order 1DocketNo. 193-9].
Plaintiffs in the instant case argue that the LaShawn consent decree provides them with a cause
of action against Defendants for Defendants’ failure to provide adequate and timely post-
adoption services.
To enforce the LaShawn standards, it is insufficient for Plaintiffs to simply assert that
they are beneficiaries of "post-adoption services necessary to preserve families who have
adopted a child." implementation Plan at 42 [Docket No. 193-4]. As third parties to LaShawn,
Plaintiffs bear the burden of showing that they are intended beneficiaries of the LaShawn consent
decree. They have failed to do so. See SEC v. Prualential Secs. ]nc. 136 F.3d 153, 159 ("The test
is not . . . only whether the contracting parties intended to confer a benefit directly on the third
parties, but also whether the parties intended the third party to be able to sue to protect that
benefit."); see also Blue Chip Starnps v. Manor Drug Stores, 421 U.S. 723, 750 (1975) ("[A]
consent decree is not enforceable directly or in collateral proceedings by those who are not
parties to it even though they were intended to be benefited by it."). Plaintiffs mistakenly rely on
Beckett v. Air Line Pilots Ass ’n, 995 F.2d 280 (D.C. Cir. l993). in Beckett, the D.C. Circuit held
that nonunion pilots who were third-parties to a consent decree between a union and another
group of pilots could sue the union to enforce the tenns of the consent decree, but only because
the consent decree established a trust and named the plaintiff nonunion pilots as beneficiaries.
995 F.2d at 286-89. The Beckett plaintiffs were named, clearly-intended beneficiaries. Though
38
they rely on Beckett, Plaintiffs in the instant case have not offered proof that they were, in the
same way, intended beneficiaries of the LaShawn decree.
Similarly, Plaintiffs do not identify any statutory provision that provides them with an
explicit or implied cause of action against Defendants under District law. Plaintiffs cite D.C.
Code § 7-2108(d)(1), which falls under the Chapter goveming Youth Residential Facilities
Licensures. This provision allows an action against the District for compliance with District law
"relevant to the operation of the facility or the care of its residents." D.C. Code § 7-2l08(d)(l).
Yet Plaintiffs’ claims do not concem the operation of such a facility or the care of any resident,
i.e. "a District child residing in a youth residential facility." D.C. Code § 7-2101 (7). At the
time Defendants allegedly failed to offer post-adoption services, i.e. after 2004, the Doe children
were not residents of a youth residential facility. This provision therefore fails to explicitly
provide Plaintiffs with a right of action to proceed against Defendants for post-adoption services.
Plaintiffs also cite D.C. Code § 4-1303.01a(b)(1) and (7) and § 4-1303.03(b)(l), (4), and
(9), which outline the various duties of CFSA and its Director to provide supportive services.z$
See Pls.’ Opp. to Defs.’ Mots. for j . [Docket No. 1931 at 39. Nowhere in these provisions, or in
Chapter 4, which governs Child Abuse and Neglect, is there explicit text creating a right of
action.
23 D.C. Code provides that CFSA must "(l) Provid[e] services that prevent family dissolution or
breakdown, to avoid the need for protective services or out-of-home placements . . . (7) Offer[]
appropriate, adequate, and, when needed, highly specialized, diagnostic and treatment services
and resources to children and families when there has been a supported finding of abuse or
neglect." D.C. Code § 4-1303.0la(b)(1) and (7). CFSA and its contractors must also:
(1) When a child is at risk of being removed from his or her home because of child abuse
or neglect, provide family preservation services designed to help the child remain safely
with his or her family; . . . (4) Establish or attempt to secure priority access . . . to services
necessary for the preservation or reunification of families . . . (9) Develop and operate
programs of family preservation services, family support services, time-limited family
reunification services, and adoption promotion and support services; . . . .
D.C. Code § 4-1303.03(b)(1), (4) (9).
39
Further, Plaintiffs do not carry their burden of showing that they have an implied right of
action in District law. in determining whether a statute creates an implied right of action, a court
must look to three factors: "(1) whether the plaintiff is ‘one of the class for whose especial
benefit the statute was enacted’; (2) whether there is any indication of legislative intent, explicit
or implicit, either to create such a remedy or to deny one; and (3) whether it is consistent with the
underlying purposes of the legislative scheme to imply such a remedy for the plaintiff."
Baumann v. District of Columbia, 744 F. Supp. 2d 216, 226 (D.D.C. 2010) (quoting In re D.G.,
583 A.2d 160, 166 (D.C. 1990)). Plaintiffs offer no proof that the D.C. Council intended to
imply a right of action in § 4-1303.01(b)(l) and (7) and § 4-1303.03(1), (4), and (9), or that the
D.C. Council intended to extend the cause of action identified in § 7-2108(d)(1) to these
provisions. Such proof is essential. See id. ("The ultimate issue is whether the legislature
intended to create a particular cause of action, because unless such legislative intent can be
inferred from the language of the statute, the statutory structure, or some other source, the
Essential predicate for implication of a private remedy simply does not exist.") (intemal citations
omitted). Since Plaintiffs have not demonstrated that they have a right of action against
Defendants for failure to provide post adequate post-adoption services, this Court awards
judgment to Defendants.
M. Claims against Defendant Fenty
This Court also enters judgment in favor of Defendant Fenty. First, claims against former
Mayor Fenty in his official capacity are duplicative of the claims against the District, which is
already a Defendant in this case. See Kentucky v. Graham, 473 U.S. 159, 167 (1985) ("There is
no longer a need to bring official capacity actions against local govemment officials [since] local
40
govemment units can be seud directly for damages and injunctive or declaratory relief.”).
Second, Plaintiffs have not pled any facts showing that Defendant Fenty engaged in unlawful
conduct during the investigation and removal of the Doe children. Tlris Court therefore awards
judgment to Defendant Fenty.
N. Qualified immunity
Defendants are also entitled to qualified immunity for their actions. "The doctrine of
qualified immunity protects govemment officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known."’ Pearson v. Callahan, 555 U.S. 223, 231 (2009). A
court engaging in a qualified immunity inquiry "must first determine whether the plaintiff has
alleged the deprivation of an actual constitutional right." Wilson v. Layne, 526 U.S. 603, 609
(l 999) (quotation omitted). if the court establishes the violation of a constitutional right, it must
then "proceed to detennine whether that right was clearly established at the time of the alleged
violations." Id. (quotation omitted).
As described in detail in the analysis of Plaintiffs’ Fourth and Fif``th Amendment claims,
Plaintiffs have failed to put forth evidence establishing a violation of their constitutional or
statutory rights. Plaintiffs therefore fail to sustain their burden on the first prong of the qualified
immunity inquiry. Plaintiffs also do not meet their burden on the second prong. "The relevant,
dispositive inquiry in detennining whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he confronted."
Saucier v. Katz, 533 U.S. 194, 202 (2001). This Court cannot find that "in light of pre-existing
law the unlawfulness [of Defendants’ conduct is] apparent." Analerson v. Creighton, 483 U.S.
4163 5, 640 (1987). At the time of the removal, there was little established doctrine describing what
steps State officials may legally undertake in seeking to protect children from alleged abuse. The
D.C. Circuit has not yet definitively ruled on what constitutes "immediate hann" justifying the
removal of a child from his home and, even in 2004, other circuits had offered conflicting
standards in this regard. Compare Tenenbaum, 193 F.3d at 596 ("[N]ot until today have we
specifically held that where there is reasonable time consistent with the safety of the child to
obtain a judicial order, the ‘emergency’ removal of a child is unwarranted.") with Doe v,
Kearney, 329 F.3d 1286, 1297-1298 (l1th Cir. 2003) ("[T]he sole focus should not be whether
there is time to obtain a court order . . . . [D]ue process [requires] subtle balancing [that] cannot
be properly accomplished when courts blunt the inquiry by simply asking whether there was time
to get a warrant.").
This Court concludes that it would not have been clear to Defendants at the time that their
conduct was unlawful. Defendants had numerous reasons to conclude that the Doe children were
in immediate danger and removal was necessary. in light of the circumstances, a reasonable
officer in Defendant Donald’s position would not have believed that her decision to remove the
children from their home was unlawful. Similarly, Defendants Philippart and King were
assigned on October 20, 2004 the task of picking up both Ann and Oliver Doe from the Doe
household. This was their sole involvement in the case. When they accepted the assignment,
they in good faith believed that there had been a finding of immediate danger and the removal
was therefore lawful. Dep. of Rebekah Philippart at 12:7-14; 15: 12-19. Accordingly, both
Philippart and King are entitled to qualified immunity. The remaining individual defendants,
who neither made the finding of immediate danger nor directly removed the children, are
likewise entitled to qualified immunity.
42
IV. Conclusion
This Court has considered Plaintiffs’ remaining arguments and has found them without
merit. While CFSA could have been more clear and detailed in articulating to Plaintiffs and in
documenting in their fonns their reasons for removing the children, this Court concludes that no
reasonable juror could find Defendants’ conduct unlawful. Thus, for the reasons articulated in
this opinion, Defendants’ Motion for judgment on the Pleadings and Motion for Summary
judgment are granted, Plaintiffs’ Motion for Summary judgment is denied, and Defendants’
Motion to Strike Portions of the Declaration of Delores Williams and Motion to Strike Plaintiffs’
Supplemental Memorandum in Response to Questions Raised in Oral Argument are denied as
moot.
An appropriate order accompanies this memorandum opinion.
Juryze, 2013 l `` 7/;14‘“‘
Thomas F. Ho§n]i' 1
UNITED STATES DiS DGE
43