DeCosta v. Chabot

• Court: Court of Appeals for the First Circuit
• Decided: July 11, 1995
• Docket: 94-2131
• Status: Published

Opinion

USCA1 Opinion

July 14, 1995

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 94-2131



                               STEPHEN DeCOSTA, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                               PAULINE CHABOT, ET AL.,



                                Defendants, Appellees.



                                 ____________________


ERRATA SHEET
                                     ERRATA SHEET


The  opinion of  this court  issued  on July  11, 1995  is  hereby

        amended as follows:



            On the  cover  sheet:   "and  Schwarzer,*  Senior Circuit  Judge."
                                                       _____________________

        should be changed to "and Schwarzer," Senior District Judge."
                                              _____________________



UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 94-2131



                               STEPHEN DeCOSTA, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                               PAULINE CHABOT, ET AL.,



                                Defendants, Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Steven J. McAuliffe, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
                                        _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                        and Schwarzer,* Senior District Judge.
                                        _____________________



                                 ____________________



            Thomas  N. O'Connor  with whom  George  P.  Dickson and  Dickson &
            ___________________             ___________________      _________

        Associates, P.C. were on brief for appellants.
        ________________

            Ann  Fitzpatrick  Larney, Assistant  Attorney  General, with  whom
            ________________________

        Jeffrey R. Howard, Attorney General, was on brief for appellees.
        _________________


____________________



                                    July 11, 1995

                                 ____________________

        ___________________



        * Of the Northern District of California, sitting by designation.



Per Curiam.  Stephen and Joann  DeCosta filed suit under
                 __________



            42 U.S.C.    1983 against  various state and  local officials



            claiming an  unconstitutional interference with  their family



            affairs  caused  by   an  allegedly  unfounded   child  abuse



            investigation  primarily conducted by  the state authorities.



            After  dismissing the  claims against  three defendants,  the



            district  court granted  summary judgment  for all  remaining



            defendants, concluding that the plaintiffs had not asserted a



            constitutional   deprivation   and,   in  any   event,   that



            defendants' actions  were protected by  qualified or absolute



            immunity.



                 On  appeal, the  plaintiffs have  abandoned most  of the



            claims and theories  they pressed below.   The central  issue



            remaining  is whether  the  district  court properly  granted



            summary judgment  for those who  directed or assisted  in the



            state's inquiry, most importantly Pauline Chabot,  the social



            worker  who  headed the  DeCosta  investigation  for the  New



            Hampshire  Division  for Children  and  Youth Services  ("the



            division").  Although  the DeCostas do  not purport to  limit



            their appeal  to particular defendants, they  have chosen not



            to brief other issues  (e.g., improper searches, liability of
                                    ____



            supervisors) necessary to  impose liability on various  other



            defendants.  



                 The district judge has written a thorough opinion on the



            legal issues, and  in view  of our disposition,  there is  no


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need  to discuss  the  facts at  length.    The gist  of  the



            DeCostas'  case  is  that  Chabot initiated  and  pursued  an



            investigation of  the DeCostas based solely  on their liberal



            but permissible use of corporal punishment in the rearing  of



            their children and that  she pursued the case even  after the



            evidence allegedly showed that there was no substance  to the



            charge  of abuse.    As their  constitutional violation,  the



            DeCostas  contend that  Chabot's actions  deprived them  of a



            federal  liberty interest  in family  integrity and  a state-



            created  liberty   interest  to  be   free  from  unwarranted



            governmental interference in family matters.



                 This  court has  held that  there is  no "constitutional



            right to be free from child abuse investigations."  Watterson
                                                                _________



            v. Page,  987 F.2d 1, 8  (1st Cir. 1993).   And the DeCostas'
               ____



            alternative attempt to base a federal constitutional claim on



            a state-created  liberty interest,  see Hewitt v.  Helms, 459
              _____                             ___ ______     _____



            U.S. 460, 469 (1983),  appears to find little support  in the



            New Hampshire statutes they  cite.  The Child Protection  Act



            primarily  safeguards children,  not parents,  N.H.R.S.A., c.



            169-C, and  the statute  authorizing limited use  of corporal



            punishment  is  primarily  directed  to  creating  a  limited



            defense  to  legal proceedings.    N.H.R.S.A.    627:b.   See
                                                                      ___



            generally  Bowser v.  Vose, 968  F.2d 105,  106-09 (1st  Cir.
            _________  ______     ____



            1992).


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In all events, we have no reason to resolve any abstract



            legal  issues on  this appeal.   Even if the  DeCostas have a



            constitutional interest against unreasonable  state oversight



            or interference  in family matters, it is  quite evident from



            the record  that the inquiry  conducted by Chabot  and others



            was  both  permissible  and   amply  protected  by  qualified



            immunity.   The division received  a complaint of child abuse



            from a seemingly credible source, the children's grandmother.



            The grandmother lived in an apartment in the DeCostas' house.



            The grandmother spoke to her doctor,  and the doctor reported



            the matter  to the  state.  The  grandmother was  interviewed



            extensively,  and  provided  a detailed  account,  before the



            children  were brought  in for  examination and  questioning.



            When questioned, the children's answers  provided substantial



            support for their grandmother's concerns.



                 Once  the children were removed  from the home, a prompt



            judicial hearing was provided.   Thereafter the case remained



            continuously  under  the  supervision  of  the  state  court.



            During its  supervision, the  court ordered the  DeCostas and



            their  children  to  undergo  counseling,  and  when  it  was



            satisfied  that counseling  had  been  successful, the  court



            gradually returned the children to the home.  Ultimately, the



            court  decided its  supervision was  no longer  necessary and



            closed the  case, without any definitive  findings on whether



            abuse had occurred.      What is reasonable in relation to an


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investigation depends  on reasonable  belief; and that  is as



            true in a case of suspected child abuse, e.g., Donald v. Polk
                                                     ____  ______    ____



            County, 836  F.2d 376, 379-81  (7th Cir.  1988), as it  is in
            ______



            conventional police decisions involving probable cause, e.g.,
                                                                    ____



            Rivera v.  Murphy, 979  F.2d 259, 263  (1st Cir. 1992).   The
            ______     ______



            reports  given  to  Chabot  and  others  indicated  that  the



            children  had been  severely  beaten with  belts, sticks  and



            other implements, had been bruised and occasionally bloodied,



            and that this was a repeated and persistent pattern.  Despite



            the general statements to  the contrary by DeCostas' counsel,



            there  is  no indication  that  the investigators  thereafter



            received evidence that persuasively negated these charges.



                 It  is true that on reading the DeCostas' brief, one has



            the  impression that  a medical  examination of  the children



            disproved the  charges of abuse  and that  the DeCostas  were



            eventually vindicated by the state court.  Neither impression



            is accurate.   While only one child  still bore the marks  of



            injury  at the  time  of  the  examination,  nothing  in  the



            examination   disproved  the  grandmother's  story  that  the



            children  were  routinely  beaten   for  trifles  with  great



            severity.    As  for  the state  court's  action,  the  court



            returned  the  children  to   the  DeCosta  home  only  after



            counseling  over a substantial  period had proved successful;



            the court did not find that no abuse had occurred.


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This  is  not a  close case.    Although the  matter was



            decided on  summary  judgment,  the  facts  as  to  what  the



            investigators were  told by the grandmother  and the children



            are apparently not in dispute, and our conclusion that  those



            facts provided ample  cause for investigation is  a matter of



            legal  characterization.   The  DeCostas' opening  brief--not



            signed by counsel who argued the appeal--is open to criticism



            for  presenting   a  picture   of  the  evidence   given  the



            investigators  and  of  what  happened  in  the  state  court



            proceedings that appears to us to be materially incomplete.



                 Affirmed.
                 ________


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