C.M. v. Commissioner of the Department of Children and Families

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18-P-715 Appeals Court
C.M. vs. COMMISSIONER OF THE DEPARTMENT OF CHILDREN AND
FAMILIES & others.1
No. 18-P-715.
Suffolk. June 13, 2019. - April 22, 2020.
Present: Meade, Agnes, & Henry, JJ.
Department of Children & Families. Minor, Care and protection.
Parent and Child, Care and protection of minor. Due
Process of Law, Care and protection of minor. Civil
Rights, Immunity of public official. Immunity from suit.
Constitutional Law, Conduct of government agents.
Practice, Civil, Care and protection proceeding, Civil
rights, Judgment on the pleadings, Summary judgment,
Affidavit. Federal Civil Rights Act.
Civil action commenced in the Superior Court Department on
September 16, 2014.
The case was heard by Rosemary Connolly, J., on a motion
for summary judgment and a motion for judgment on the pleadings,
and entry of separate and final judgment was ordered by Paul D.
Wilson, J.
Eric B. Tennen for the plaintiff.
Jesse M. Boodoo, Assistant Attorney General (Abigail Fee,
Assistant Attorney General, also present) for the defendants.
1 Candice Gemski and Marcie Plouffe.
2
HENRY, J. This case presents the question of the degree of
immunity accorded a defendant social worker in a damages action
under 42 U.S.C. § 19832 when it is alleged that the social worker
"knowingly and willingly misled" the Juvenile Court in order to
allow the Department of Children and Families (DCF) to obtain
temporary custody of a child. Here, a mother, C.M., alleges
that DCF improperly obtained custody of her then seven year old
child by filing an ex parte care and protection petition
supported by an affidavit that contained knowingly false
statements and by testifying falsely during the hearing on that
petition. DCF obtained and maintained physical custody of the
child for fifty-one days, until a Juvenile Court judge ordered
DCF to return the child to her mother's care. DCF kept legal
custody of the child for another five months until May 2012,
when a Juvenile Court judge ordered the care and protection case
dismissed.
The mother brought this action in Superior Court against
the commissioner of DCF and two DCF employees, Marcie Plouffe
and Candice Gemski. The mother sought injunctive relief against
DCF and monetary damages against Plouffe and Gemski for
2 "The text of [§ 1983] purports to create a damages remedy
against every state official for the violation of any person's
federal constitutional or statutory rights." Kalina v.
Fletcher, 522 U.S. 118, 123 (1997).
3
violations of § 1983. While discovery was ongoing, DCF moved
for summary judgment, and Plouffe and Gemski moved for judgment
on the pleadings. Both motions were allowed and a separate and
final judgment pursuant to Mass. R. Civ. P. 54 (b), 365 Mass.
820 (1974), entered in their favor.3 The mother appeals. We
affirm in part, vacate in part, and remand for further
proceedings.
Background. In reviewing the ruling on the motion for
judgment on the pleadings, we are required to take the
allegations of the complaint as true. See Jones v. Brockton
Pub. Mkts., Inc., 369 Mass. 387, 388 (1975). In considering the
ruling on DCF's motion for summary judgment, we are required to
review the facts in the light most favorable to the nonmoving
party, the mother. See Augat, Inc. v. Liberty Mut. Ins. Co.,
410 Mass. 117, 120 (1991).
The child was born in 2003. DCF's involvement with the
mother and her daughter dates back to 2004, when DCF received a
report that the child's father was a level three sex offender.
The child's father did not live with the child, but had frequent
visitation.4 DCF investigated the report and closed the case
3 The child is another plaintiff in the matter, but she does
not assert claims against the defendants in this appeal.
4 At the time of the motion for summary judgment, the father
was registered as a level two sex offender. The mother asserts
that the father has not committed any offenses in over twenty
4
after the parents voluntarily entered into their first safety
plan with DCF. This plan provided that the father would not be
left alone with the child "except for short intervals such as
mother's going to the bathroom, doing chores around the house,
etc."
Several years later, in 2009, DCF received a report
indicating that the father was a level three sex offender, the
child had been telling others that her vagina hurt, and the
child was "touching herself." After investigating, DCF made a
finding of neglect and again closed the case after the parents
agreed to a second safety plan. The second safety plan provided
that at all times that the father was with the child and not at
a public venue, he would be supervised by the mother or his
girlfriend and that in case of an emergency, "all reasonable
efforts will be made to provide alternative supervision." When
an alternative could not be found, the father would care for the
child "until such alternative care can be found." Emergency was
defined as including "[d]eath in the immediate family";
"[i]llness/emergency care for [the child]"; and "[the mother's]
illness or hospitalization."
years, during which time he also has been sober. A psychologist
who specializes in sex offender treatment examined the father
and concluded that the father is unlikely to reoffend, and is
extremely unlikely to offend against his daughter.
5
That brings us to the events that led to the removal of the
child from the mother's care and custody. In May 2011, when the
child was seven years old, DCF received a G. L. c. 119, § 51A,
report that the child might be having unsupervised contact with
the father. The report identified -- and the mother admitted --
two sets of circumstances in which the child had been left
unsupervised with the father. First, the mother left the child
with the father at an urgent care doctor's appointment while the
mother went to a previously scheduled dentist appointment for
replacement of a crown. The child's doctor ordered her to have
X-rays. The father transported her to the hospital for X-rays
and then home, where the mother met them immediately. Second,
when the doctor ordered the mother to keep the child home until
she had completed five days of medication, the mother left the
child home alone with the father for two days because the mother
could not take time off from work or find alternate care. A DCF
investigator interviewed the child, who was able to tell the
difference between a good and bad touch and stated that her
father had never touched her inappropriately.
DCF again found the mother to be in neglect for allowing
the child to have unsupervised contact with the father. The
mother contends that no circumstance mentioned above should have
supported the finding of neglect because the contacts involved
6
emergencies.5 Following the finding of neglect, Plouffe, a DCF
case worker, began working with the family.
Plouffe's relationship with the mother often was
acrimonious. As alleged in the mother's amended complaint,
Plouffe did not work to "strengthen and encourage family life,"
and instead "simply identified perceived deficits in, and
problems with," the mother's support system. Plouffe did not
identify supports to help the mother with day-to-day issues.
The mother further alleged that Plouffe faulted the mother for
her behavior, first criticizing her for being too upset and then
criticizing her for being too calm.
As alleged in the first amended complaint, in August 2011,
the parents agreed to the father having no unsupervised contact
with the child "for the time being." The mother alleges that at
an August 30, 2011, meeting, Gemski, a DCF area program manager
and Plouffe's supervisor, incorrectly maintained that the mother
was allowing the father to have ongoing contact with the child
and was not following DCF's safety plan.
On October 5, 2011, DCF proposed a third safety plan. "All
the parties agreed on the provisions prohibiting unsupervised
5 In addition, the father took the child on a camping trip,
during which the father's girlfriend, who was approved by DCF to
supervise visitation, was also present. Given that the father
was supervised by the girlfriend, the mother contends that this
was not a violation of the second safety plan.
7
contact between [the child] and her father." The plan, however,
contained many provisions the mother had not agreed to,
including requirements that the mother and the child attend
therapy, that the mother sign "open releases of . . . private
health information to DCF," and that the father leave the house
if the mother was showering. When the mother expressed concerns
regarding these additional provisions, Plouffe ended the
conversation.
On October 31, 2011, without any further conversation
regarding the third safety plan, Plouffe informed the mother
that DCF would be seeking temporary custody of the child. On
November 1, 2011, DCF filed a care and protection petition in
the Juvenile Court seeking temporary custody of the child. The
mother alleges that the reasons Plouffe stated in her affidavit
in support of the petition that the removal was necessary -- the
mother "refusing to sign the October 5, 2011 draft of a revised
[s]afety [p]lan, the refusal to agree to forcing [the child's]
father to leave the home if [the mother] took a shower, and
refusal to force [the child] into sexual abuse therapy -- were
wholly unsupported by any evidentiary basis for seeking them."
The mother alleged that Gemski approved Plouffe's actions.
The mother also alleged that at a hearing on the petition,
Plouffe falsely testified on two points: (1) that the mother
"is allowing . . . the father, a level three sex offender, [to
8
have] unsupervised contact with the child"; and (2) that the
mother "has refused to sign the safety plan." As alleged in the
mother's complaint, these statements were false, were approved
by Gemski, and were knowingly and willingly made to mislead the
Juvenile Court.6
Following the hearing, the Juvenile Court ordered temporary
custody of the child to DCF. The case then proceeded to a
seventy-two hour hearing after which the child remained in DCF's
physical and legal custody. The child was placed in foster care
and a new school. The mother alleges that Plouffe and Gemski
did everything in their power to keep the child away from the
mother even if she agreed to no contact with the father during
the pendency of the care and protection proceeding.
On December 19, 2011, the Juvenile Court ordered the child
returned to the mother pending final disposition of the matter.
In April 2012, a court appointed investigator submitted a
written report to the Juvenile Court recommending that the care
and protection proceeding be dismissed contingent upon the
6 DCF's brief suggests that we "could reject as implausible
the contention that there was anything false in Plouffe's
statements." We disagree, as this is a question of fact that
would be inappropriately decided on a motion for judgment on the
pleadings. At argument, DCF rightly acknowledged that its
absolute immunity argument assumes, for the sake of argument,
the falsity in Plouffe's testimony. Plouffe similarly agreed at
the hearing on the motion for judgment on the pleadings that for
the sake of argument, the judge should assume Plouffe lied to
the Juvenile Court judge when seeking emergency removal.
9
family's agreement to a new safety plan drafted by an
independent psychologist. The mother asserts that the parties
adopted this safety plan (the 2012 plan), which called for a DCF
case manager/coordinator to evaluate the family's progress after
six months to a year. The parties do not agree whether this
2012 plan or any safety plan is currently in place, and if it
is, whether DCF is a party to it. DCF contends that to the
extent the mother considers herself subject to a current safety
plan, it does not involve DCF; rather, it involves the
independent psychologist. The Juvenile Court dismissed the care
and protection petition on May 14, 2012. DCF closed the case in
July 2012.
In a careful decision, the motion judge ruled that Plouffe
and Gemski are absolutely immune from liability for the mother's
allegations pursuant to § 1983 for the functions of
investigating and prosecuting the removal proceeding. The judge
rightly noted that the mother's allegations, if true, should be
of grave concern to DCF and the citizens of the Commonwealth.
The judge also recognized the public interest in safeguarding
children from abuse and neglect by their parents and the risk
that a DCF worker who suspects a child is in danger could be
inhibited from acting by fear of being sued and personal
financial ruin. The judge allowed summary judgment to DCF on
the mother's claims for injunctive relief.
10
Discussion. We first address Plouffe's and Gemski's motion
for judgment on the pleadings, which raises questions of
immunity. Then we address the mother's request for injunctive
relief against DCF.
1. Absolute and qualified immunity generally. Plouffe and
Gemski argue that they are entitled to absolute immunity from
the mother's substantive due process claim. They allege that
their actions fell within the scope of their quasi prosecutorial
function in initiating care and protection proceedings and that
they therefore are protected by absolute social worker immunity
and absolute witness immunity. Before turning to their specific
arguments, we briefly review the law concerning absolute and
qualified prosecutorial immunity.7
7 Qualified immunity is an affirmative defense and the
defendants have the burden of proof. Cristo v. Evangelidis, 90
Mass. App. Ct. 585, 590 (2016). "[T]he relevant inquiry on
summary judgment as to the defense of qualified immunity is
whether a reasonable official could have believed his actions
were lawful, in light of clearly established law and the
information possessed by the official at the time he acted."
Clancy v. McCabe, 441 Mass. 311, 322 (2004). We apply a three-
part test, which asks "(1) whether the facts taken in the light
most favorable to the plaintiff demonstrate that there was a
violation of the plaintiff's . . . constitutional or statutory
rights; (2) if so, whether at the time of the violation those
rights were clearly established; and (3) whether a reasonable
person in the defendant's position would understand that his
conduct violated those clearly established rights" (footnote
omitted). Cristo, supra at 590. The parties have not briefed
this question and we do not decide it.
11
"Implicit in the idea that officials have some immunity --
absolute or qualified -- for their acts, is a recognition that
they may err. The concept of immunity assumes this, and goes on
to assume that it is better to risk some error and possible
injury from such error than not to decide or act at all."
Scheuer v. Rhodes, 416 U.S. 232, 242 (1974), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183, 191 (1984). Absolute
prosecutorial immunity, unlike qualified immunity, "applies
however erroneous the act may have been, and however injurious
in its consequences it may have proved to the plaintiff"
(quotation omitted). Cleavinger v. Saxner, 474 U.S. 193, 199-
200 (1985). See Dinsdale v. Commonwealth, 424 Mass. 176, 179-
182 (1997) (assistant attorneys general entitled to absolute
immunity in civil litigation); Reid v. New Hampshire, 56 F.3d
332, 337 (1st Cir. 1995) (prosecutors entitled to absolute
immunity for repeatedly misleading court). See also Meade, The
Necessity and Reach of Prosecutorial Protections from Suit, 90
Mass. L. Rev. 106 (2006). The concern is to protect the
function of the office by protecting the prosecutor from
harassing litigation so that the prosecutor may exercise
independent judgment in deciding which actions to bring. See
Kalina v. Fletcher, 522 U.S. 118, 125 (1997); Dinsdale, 424
Mass. at 181.
12
The United States Supreme Court has "been quite sparing in
[its] recognition of absolute immunity, and [has] refused to
extend it any further than its justification would warrant"
(quotations and citation omitted). Burns v. Reed, 500 U.S. 478,
487 (1991). "The presumption is that qualified rather than
absolute immunity is sufficient to protect government officials
in the exercise of their duties." Id. at 486-487.
In determining questions of qualified and absolute immunity
under § 1983, the Supreme Court reads the statute "in harmony
with general principles of tort immunities and defenses rather
than in derogation of them." Imbler v. Pachtman, 424 U.S. 409,
418 (1976). As explained in Malley v. Briggs, 475 U.S. 335,
339-340 (1986):
"[The] initial inquiry is whether an official claiming
immunity under § 1983 can point to a common-law counterpart
to the privilege he asserts. If an official was accorded
immunity from tort actions at common law when the Civil
Rights Act was enacted in 1871, the [next inquiry is]
whether § 1983's history or purposes nonetheless counsel
against recognizing the same immunity in § 1983 actions"
(quotation and citation omitted).
The Supreme Court has made clear that this is a functional
approach, and that it is "the nature of the function performed,
not the identity of the actor who performed it," that informs
our immunity analysis. Kalina, 522 U.S. at 127.
Applying these principles, the Supreme Court has concluded
that prosecutors are absolutely immune from civil suits for
13
damages under § 1983 for their actions in "initiating a
prosecution and in presenting the State's case." Imbler, 424
U.S. at 431. The Supreme Court has since recognized specific
functions that are integral to the absolute prosecutorial
immunity recognized in Imbler that are thus also accorded
absolute immunity. These functions include appearing "in court
in support of an application for a search warrant and the
presentation of evidence at that hearing," Burns, 500 U.S. at
492, and "prepar[ing] and filing . . . [a criminal] information
and [a] motion for an arrest warrant," Kalina, 522 U.S. at 129.
Such actions "occur in the course of [the prosecutor's] role as
an advocate for the State [and] are entitled to the protections
of absolute immunity." Id. at 126, quoting Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993).
The Supreme Court, however, has rejected claims to absolute
immunity for a prosecutor's advice to police during a criminal
investigation, Burns, 500 U.S. at 495-496, a prosecutor's
fabrication of evidence before the grand jury that led to an
indictment, Buckley, 509 U.S. at 275-276, and a prosecutor's
statements to the press in announcing an indictment, id. at 276-
278. Because such actions do not fall within the advocate's
role, "a prosecutor [who engages in these activities] is in no
different position than [any] other executive official[] [for
whom] qualified immunity is the norm." Id. at 278.
 14
The Supreme Court also has specifically addressed the
question of immunity for complaining witnesses. When § 1983 was
enacted, "the term 'complaining witness' was used to refer to a
party who procured an arrest and initiated a criminal
prosecution." Rehberg v. Paulk, 566 U.S. 356, 370 (2012).
Prosecutors act as complaining witnesses, not advocates, when
attesting to the facts in arrest warrant applications and
criminal complaints, and they are not absolutely immune from
civil suits for damages under § 1983 for those actions. Indeed,
the Supreme Court has rejected a claim of absolute immunity for
a prosecutor's false statements made in an affidavit that was
attached to an application for an arrest warrant. Kalina, 522
U.S. at 129-131. The Supreme Court recognized that the
prosecutor was functioning as an advocate and exercising her
professional judgment when she drafted the affidavit, when she
determined that the evidence justified a probable cause finding,
and when she presented the information and motion to the court.
However, "[t]estifying about facts is the function of the
witness, not of the lawyer." Id. at 130. Because the
prosecutor was functioning as a "complaining witness" and not as
"an advocate" for the State when she attested to the facts in
the affidavit, she was entitled to qualified, not absolute,
immunity. Id. at 131. It is true that the State law in that
case required that an application for an arrest warrant be sworn
15
or certified under penalty of perjury. Id. at 129. However,
any competent witness could perform that task; it was not
"necessary for the prosecutor to make that certification." Id.
120-130.
a. Social workers and immunity. i. Filing care and
protection petition. Plouffe was a DCF case worker and Gemski
was her supervisor.8 To the extent that the mother is
challenging the filing of the care and protection petition,
Plouffe and Gemski enjoy absolute immunity. See Kalina, 522
U.S. at 129; Imbler, 424 U.S. at 431. As the United States
Court of Appeals for the Ninth Circuit explained in Miller v.
Gammie, 335 F.3d 889, 896-898 (9th Cir. 2003), the initiation
and pursuit of child dependency proceedings are prosecutorial in
nature and therefore "likely entitled to absolute immunity."
Id. at 896-898. See Millspaugh v. County Dep't of Pub. Welfare
of Wabash County, 937 F.2d 1172, 1176-1177 (7th Cir. 1991)
(social worker entitled to absolute immunity in child custody
case when presenting case to court); Vosburg v. Department of
Social Servs., 884 F.2d 133, 135 (4th Cir. 1989) (in filing
removal petition, social worker was acting in prosecutorial
8 The mother also argues that Plouffe is not entitled to
absolute immunity because she was not a licensed social worker
at the time of her actions. This argument is unavailing, as we
look to the functions Plouffe was performing, not to her title
or license status. See Forrester v. White, 484 U.S. 219, 229
(1988).
16
capacity and afforded absolute immunity from any liability
arising from this function); Minor v. State, 819 N.W.2d 383, 398
(Iowa 2012) (social worker who refers case to county attorney
for possible child in need of assistance petition "is performing
a function analogous to that of a prosecutor" and is afforded
absolute immunity).
ii. False statements in an affidavit supporting care and
protection petition. We next turn to the mother's allegation
that Plouffe, with Gemski's approval,9 made false statements in
an affidavit in support of the care and custody petition and
that those false statements were knowingly and willingly made to
mislead the Juvenile Court. In Massachusetts, a care and
protection proceeding is initiated by a person filing a care and
protection petition identifying the parties and affirming that a
child under the age of eighteen within the jurisdiction is in
need of care and protection within the meaning of the statutory
criteria set forth in G. L. c. 119, § 24. The petition is
typically filed by a DCF employee but it does not have to be and
is signed under the pains and penalties of perjury.10 It must
9 The parties do not dispute that Gemski's immunity for
approving Plouffe's actions is the same as Plouffe's immunity,
and we agree. See Van de Kamp v. Goldstein, 555 U.S. 335, 345
(2009).
10"The person filing a care and protection petition must
allege 'under oath' that a child: '(a) is without necessary and
proper physical or educational care and discipline; (b) is
17
allege facts satisfying the statutory criteria. See Care &
Protection of Lillian, 445 Mass. 333, 337 (2005).
The mother argues that Plouffe was functioning as a
complaining witness, similar to the prosecutor in Kalina, when
she submitted the affidavit in support of the petition and that
Plouffe and Gemski are thus not entitled to absolute immunity.
We agree. The same reasoning that applied to the prosecutor in
Kalina applies here, where a social worker files an affidavit in
support of a care and protection petition.
Numerous courts have analyzed the question of immunity in
the context of a care and protection petition and adopted this
approach. See Austin v. Borel, 830 F.2d 1356, 1361-1363 (5th
Cir. 1987) (child protection workers were not entitled to
absolute immunity for their conduct in filing allegedly false
verified complaint); Millspaugh, 937 F.2d at 1176 (social
worker's application for ex parte order to have children taken
into custody "was much like a police officer's affidavit seeking
a search warrant, which . . . falls outside the scope of
absolute immunity"); Miller, 335 F.3d 889, 896-898 (recognizing
growing up under conditions or circumstances damaging to the
child's sound character development; (c) lacks proper attention
of the parent, guardian with care and custody or custodian; or
(d) has a parent, guardian or custodian who is unwilling,
incompetent or unavailable to provide any such care, discipline
or attention . . . .'" Care & Protection of Lillian, 445 Mass.
at 337, quoting G. L. c. 119, § 24.
18
that Kalina requires narrow scope for absolute immunity and
parsing each action by social worker; only qualified immunity
protects prosecutor acting as complaining witness); Beltran v.
Santa Clara County, 514 F.3d 906, 908 (9th Cir. 2008) (social
workers "are not entitled to absolute immunity from claims that
they . . . made false statements in a dependency petition
affidavit"); Minor, 819 N.W.2d at 399 ("social worker who files
an affidavit along with a [child in need of assistance] petition
acts as a complaining witness" and is not afforded absolute
immunity).
Nonetheless, DCF's brief asserts that the United States
Circuit Courts of Appeal "have widely held that government
social workers are entitled to absolute immunity from claims
related to their initiation and prosecution of child custody
proceedings." DCF cites Millspaugh, 937 F.2d at 1176, in
support of the position that the United States Court of Appeals
for the Seventh Circuit is among those courts. Millspaugh,
however, holds that "[t]he application for the initial order [to
obtain custody of the children] was much like a police officer's
affidavit seeking a search warrant," which "falls outside the
scope of absolute immunity." DCF similarly misapprehends
Miller, 335 F.3d at 892, in which the Ninth Circuit acknowledged
that Kalina required the court "to clarify the narrow scope of
absolute immunity." Five years after Miller, the Ninth Circuit
19
held in Beltran, that social workers "are not entitled to
absolute immunity from claims that they . . . made false
statements in a dependency petition affidavit." Beltran, 514
F.3d at 908. See Thomas v. Kaven, 765 F.3d 1183, 1192-1193 &
n.7 (10th Cir. 2014) (does not directly address question but
notes doubt that doctors who treated child would be entitled to
absolute immunity for decision to seek judicial order to have
child involuntarily committed to residential treatment
facility).
While DCF relies on cases from some United States Circuit
Courts of Appeal decisions that speak in broad terms about
social worker activities performed in preparing or initiating
proceedings, these cases were decided before Kalina and do not
address the narrower question we face concerning factual
affidavits furnished in support of a petition. For example,
Ernst v. Child & Youth Servs. of Chester County, 108 F.3d 486,
494-495 (3d Cir. 1997), cert. denied, 522 U.S. 850 (1997), held
that social workers "are entitled to absolute immunity for their
actions on behalf of the state in preparing for, initiating, and
prosecuting dependency proceedings." However, Ernst was decided
before Kalina. Moreover, Ernst did not address the question at
issue: the distinction between initiating the child protection
proceeding and a supporting factual affidavit. Indeed, in B.S.
v. Somerset County, 704 F.3d 250, 267-270 (3d Cir. 2013), the
20
United States Court of Appeals for the Third Circuit expressly
declined to answer the question of where to draw the line
between a child welfare employee's investigative and
prosecutorial functions.11
DCF's reliance on Vosburg, 884 F.2d at 135-137, is
similarly misplaced. Vosburg was decided before Kalina and did
not address the distinction between the petition initiating the
child removal action and a supporting factual affidavit.
Moreover, Vosburg recognized that social workers would not enjoy
absolute immunity for "conduct in investigating the possibility
that a removal petition should be filed." Id. at 138. See
Brent v. Wayne County Dep't of Human Servs., 901 F.3d 656, 684-
685 (6th Cir. 2018) (failing to cite Kalina);12 Abdouch v.
Burger, 426 F.3d 982, 989 (8th Cir. 2005) (addressing only
initiation of judicial proceedings, not false statement in
supporting affidavit).
iii. Statements during initial hearing. We next turn to
the mother's allegations regarding Plouffe's testimony during
11B.S., 704 F.3d at 270, recognizes that a child welfare
case worker's "[i]nvestigations conducted outside of the context
of judicial proceedings may still be susceptible to due process
claims."
12 Brent, 901 F.3d at 685, however, would grant only
qualified immunity to a social worker who "execute[s] a removal
order that would not have been issued but for known falsities
that the social worker provided to the court to secure the
order."
21
the initial hearing on the care and custody petition that there
had been speculation that the father had "affected" the child.
The mother again argues that Plouffe was functioning as a
complaining witness. We disagree. As noted above, a
complaining witness is one who procures an arrest or initiates a
criminal prosecution. See Rehberg, 566 U.S. at 370. However, a
complaining witness may then go on to testify at a hearing or
trial, at which point they are entitled to absolute immunity for
their testimony. Id. at 371, citing Briscoe v. LaHue, 460 U.S.
325, 326 (1983). See Aborn v. Lipson, 357 Mass. 71, 72-73
(1970) (testimony of witness in course of judicial proceeding is
absolutely privileged). This absolute immunity for trial
witnesses also extends to grand jury witnesses and witnesses who
testify during other pretrial proceedings. See Rehberg, 566
U.S. at 375; Williams v. Hepting, 844 F.2d 138, 141-143 (3d Cir.
1988) (witness immunity applies to testimony given at pretrial
hearings); Holt v. Castaneda, 832 F.2d 123, 125-126 (9th Cir.
1987) (same). Absolute privilege also extends to a witness's
statement to a police officer made in the course of a criminal
investigation. Correllas v. Viveiros, 410 Mass. 314, 319-320
(1991). Accordingly, we conclude that once Plouffe was
testifying in court, she was no longer functioning as a
22
complaining witness, but as a trial witness who was thus
entitled to absolute immunity.13
In sum, DCF workers are protected by absolute immunity in
their decisions to initiate care and protection proceedings and
in testifying at the subsequent hearings or trials on the
petitions. They are protected by qualified immunity, not
absolute immunity, (1) in investigations they conduct and (2)
regarding factual assertions they make on personal knowledge and
under oath when they are acting as a complaining witness by
executing an affidavit in support of a petition for care and
protection of a child.
3. DCF. The mother also brought State and Federal
procedural due process claims against DCF based on DCF's failure
to provide her with some process by which to amend the safety
plans. The sole relief that the mother sought was injunctive
relief in the form of an order requiring DCF to provide her with
13We note that the mother also alleged that Plouffe and
Gemski acted unprofessionally prior to the filing of the
petition, misstated facts during a team meeting, and violated a
stipulation that the parties entered into after DCF received
temporary custody of the child in 2011. However, these claims
were dismissed for reasons other than absolute immunity, and the
mother does not make any arguments with respect to those other
reasons on appeal. As such, we do not address whether Plouffe
and Gemski are absolutely immune for those actions.
23
the requested process. The judge properly granted summary
judgment to DCF on these claims.14
What appears to underlie the mother's desire for injunctive
relief is her belief that DCF would not have made its 2009 and
2011 findings of neglect but for the existence of the first and
second safety plans, which DCF claims that the mother violated
by allowing the child to have unsupervised contact with the
father. The mother acknowledges in her amended complaint that
"DCF has no open matters pending against" the mother and "no
jurisdiction to enforce a service plan."15 DCF agrees that it
has no open case and in the absence of an open case, DCF has no
jurisdiction over the mother or the child.
The mother's proposition is that if in the future she
allows the father, a registered sex offender, unsupervised
access to their minor child, and if DCF is so informed, the
mother will be held to answer because it was a violation of a
14 Because we "treat[] the procedural due process
protections of the Massachusetts and United States Constitutions
identically," we do not address these claims separately.
Liability Investigative Fund Effort, Inc. v. Massachusetts Med.
Professional Ins. Ass'n, 418 Mass. 436, 443 (1994).
15 This is a dispute of DCF's own making in two ways.
First, by entering into the second safety plan in 2009 that
allowed the father unsupervised contact with the child in an
emergency, DCF created the impression that it would not be
neglect if the mother left the child in the unsupervised care of
the father. Second, Plouffe previously testified by affidavit
that DCF became "re-involved in June 2011 . . . due to concerns
that [the father] was allowed unsupervised contact with [the
child] in violation of the [second] safety plan."
24
voluntary safety plan that she has no mechanism to modify.
Leaving aside whether the mother can withdraw from a voluntary
safety plan or whether DCF is a party to the alleged 2012 safety
plan, DCF's authority to act is limited to the statutory
criteria set forth in G. L. c. 119, §§ 24-29. If, in the
future, the mother allows a registered sex offender unsupervised
access to the minor child, and if DCF is so informed, DCF's
charge would be to determine whether an incident of abuse or
neglect had occurred on the facts then presented, regardless of
the existence of a safety plan. See G. L. c. 119, § 24. See
also 110 Code Mass. Regs. § 4.32 (2009); 110 Code Mass. Regs.
§ 2.00 (2008).
Moreover, to the extent this issue arises in the future,
there are processes by which the mother may challenge any
finding of neglect. For example, the mother may challenge a
finding of neglect through DCF's hearing process, see 110 Code
Mass. Regs. § 10.06(11), and through judicial review of any
future care and protection petitions, if any. These processes
provide the mother with the due process that she seeks.
Conclusion. We thus affirm the judgment entered in DCF's
favor. We further affirm the judgment entered in Plouffe's and
Gemski's favor to the extent the mother alleged violations of 42
U.S.C. § 1983 based on Plouffe's court room testimony, and
Gemski's approval of that testimony. However, the judgment
25
entered in Plouffe's and Gemski's favor is vacated to the extent
that the mother alleged violations of § 1983 based on Plouffe's
conduct of allegedly making false factual assertions in support
of the care and protection petition and Gemski's alleged
approval of that conduct. The case is remanded for further
proceedings consistent with this opinion.
So ordered.