Cordatos v . Skerry CV-95-214-M 09/26/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Peter Cordatos and Jennie Cordatos, Plaintiffs, v. Civil N o . 95-214-M

David Skerry, Bennington Police Department, and Town of Bennington, Defendants.

O R D E R

Peter and Jennie Cordatos bring this action pursuant to

, to redress alleged violations of their Fourth and

Fifth Amendments rights. They also seek compensation from

defendants for alleged violations of the New Hampshire

Constitution, The New Hampshire Child Protection Act (N.H. Rev.

Stat. Ann. ("RSA") ch. 169-C), and New Hampshire common law.

Presently before the court is defendants' motion for summary

judgment.

Standard of Review

Summary judgment is proper "if pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c). A material

fact "is one `that might affect the outcome of the suit under the

governing law.'" United States v . One Parcel of Real Property

with Bldgs.,

0 0 , 204 (1st Cir. 1992) (quoting Anderson

v . Liberty Lobby, Inc.,

4 2 , 248 (1986)). The moving

party has the burden of demonstrating the absence of a genuine

issue of material fact for trial. Anderson, 477 U.S. at 256.

The party opposing the motion must set forth specific facts

showing that there remains a genuine issue for trial,

demonstrating "some factual disagreement sufficient to deflect

brevis disposition." Mesnick v . General Electric Co.,

(1st Cir. 1991), cert. denied,

(1992).

That burden is discharged only if the cited disagreement relates

to a genuine issue of material fact. Wynne v . Tufts University

School of Medicine,

9 1 , 794 (1st Cir. 1992), cert.

denied,

(1993).

Facts

In March of 1992, Dianne McClintock, the nurse at ConVal

High School, received an anonymous telephone call from a woman

expressing concern for Julie Cordatos, plaintiffs' 16 year-old

2 daughter and a student at ConVal. Upon learning of that report,

Ronald Crowe, a guidance counsellor at ConVal High School, spoke

with Julie and suggested that she consider receiving counseling.

Julie agreed and met with Crowe and Connie Lester, another

employee of ConVal High School.

On Saturday, March 2 8 , 1992, Lester contacted Crowe and said that she was concerned for Julie's safety. She explained that Julie was depressed and recently attempted to cut her wrists; Julie had twice tried to kill herself, first on February 14 and again on March 2 6 . Lester told Crowe that it was imperative that someone intervene on Julie's behalf. Crowe immediately contacted Bennington Police Officer David Skerry and explained the situation. Skerry said that he would go to Julie's house to investigate.

When Officer Skerry arrived at the Cordatos' home, he spoke

with plaintiff, Peter Cordatos. Skerry explained that

representatives of ConVal High School had contacted him and

expressed concern about Julie. Skerry explained that Julie had

tried to hurt herself on two occasions by cutting her wrists.

Julie admitted to her father that she had cut her wrists and

3 showed him and Skerry the scars. Officer Skerry then asked if he

could speak with Julie privately outside. M r . Cordatos agreed.

Julie and Officer Skerry spoke in his police cruiser. Julie said that she was afraid and did not want to go back into the house. She explained that when she was younger, a man (her step- grandfather, Ted Holbrook) had sexually abused her. She told Skerry that her parents were again permitting Holbrook to visit their home and she was concerned that he might abuse her again. Julie also explained that one of her parents' friends, Larry Ogden, had been making sexual advances toward her and her parents had done nothing to stop i t . Apparently, Ogden had been indicted for sexual abuse of a child and plaintiffs provided his bail and were permitting him to reside with their family while he awaited trial.

Skerry went back to tell M r . Cordatos that he wanted to take

Julie to the police station to speak with her. Again, Cordatos

agreed.

When Skerry and Julie arrived at the police station, Skerry

contacted the Help Line, an after-hours emergency placement

4 service available to law enforcement officers when

representatives from the New Hampshire Division for Youth,

Children and Families ("DCYF") are unavailable. Skerry asked if

Julie could be put into an emergency placement. He learned,

however, that the two homes providing such services in the area

were full. Skerry then spoke with M s . Lester, who suggested that

Julie might stay with her friend and employer, Milicent H o .

Julie also asked Skerry if she might stay with M s . H o . Accordingly, Skerry made arrangements with M s . H o , drove Julie to her home, and returned to explain the situation to plaintiffs. He stated that Julie had been temporarily placed until Monday, March 30th, at which time DCYF could provide assistance. He told plaintiffs that he would do his best to keep them informed of the situation.

Two days later, on Monday, March 3 0 , 1992, Help Line staff

member Kim Hemeon contacted DCYF to report Officer Skerry's

contact with Help Line over the weekend. The Bennington Police

Department also reported Julie's case to DCYF. DCYF then

prepared an Intake Report. Based upon information provided by

Officer Skerry, including the fact that Julie had already been

removed from plaintiffs' home, DCYF assessed Julie's situation as

5 presenting a "mild" risk. After reviewing the Intake Report,

Cheryl Myers, a DCYF Supervisor, assigned Child Protective

Service Worker Betsy Wilder to Julie's case.

Later that day, M s . Ho brought Julie to meet with M s . Wilder. As before, plaintiffs were informed of how defendants

and DCYF planned to proceed. And, once again, they agreed to the

proposed plan. Specifically, M s . Cordatos gave written

permission for Julie to participate in an emergency psychological

evaluation by Monadnock Family Services. See Letter of Jennie

Cordatos dated March 3 0 , 1992. Betsy Wilder immediately arranged

the emergency evaluation. Nancy Rappaport of Monadnock Family

Services reported that Julie appeared to be suffering from post

traumatic stress disorder. She told M s . Wilder that, in her

professional opinion, if Julie were returned to her home, it was

very likely that she would again attempt suicide. Affidavit of

Betsy Wilder, at paras. 1-4.

On Tuesday, March 3 1 , 1992, M s . Wilder met with Julie and

her half-sister, Sheri Paquette (who no longer lived with

plaintiffs), at the Bennington police station. Both girls stated

that when they were younger they had been sexually abused by

6 Sheri's grandfather, Ted Holbrook. They also said that Holbrook

had recently begun visiting their home again. The girls also

spoke of Ogden's presence at plaintiffs' home and Julie said that

he had been making sexual advances toward her. Julie told M s .

Wilder that she could not deal with the situation and asked that

she not be forced to return home.

After her meeting with the girls, M s . Wilder contacted

Hillsborough District Court Judge Hatfield and explained her

concern. Judge Hatfield said that he would accept an ex parte

petition (presumably under RSA 169-C) if Julie's parents refused

to permit Julie's placement with a neutral party until Monadnock

Family Services could complete its evaluation of Julie. See RSA

169-C:6, V .

M s . Wilder then met with plaintiffs and attempted to explain

the results of Julie's initial evaluation. Wilder reported that

plaintiffs "made statements that led [her] to believe that they

[did] not believe that Julie [had] a problem." Wilder affidavit,

at para. 8 . M s . Wilder then explained her conversation with

Judge Hatfield and suggested that Julie be temporarily placed

with a neutral party. Again, plaintiffs agreed and permitted

7 Julie to be temporarily placed with her maternal grandmother.

Because plaintiffs agreed to Julie's temporary placement outside

of their home, neither DCYF nor the defendants sought a

protective custody hearing pursuant to RSA 169-C:6.

On April 2 3 , 1992, DCYF filed a Petition for Abuse or

Neglect on Julie's behalf. See RSA 169-C:7. Plaintiffs were

notified o f , and participated in proceedings in the Hillsborough

District Court and Henniker District Court. District Court Judge

Ellen Arnold ultimately held that Julie was a neglected child.

Additionally, Judge Arnold decreed that Julie live with Milicent

Ho and her husband, who had obtained a temporary foster care

license and were taking the necessary steps to obtain a permanent

license.

On December 1 0 , 1992, plaintiffs appealed Judge Arnold's

neglect finding to the Merrimack County Superior Court. However,

about two months earlier, Julie turned 1 8 . And, after speaking

with representatives of DCYF, Julie decided that she did not want

to pursue the matter any further, primarily because she no longer

lived with her parents and did not want to have to testify again

about the abuse she had suffered. In response to Julie's

8 request, DCYF withdrew the Abuse or Neglect Petition which it had

filed on her behalf.

Julie presently lives with M r . and Mrs. H o . She has assumed

the Ho's last name and severed all ties with her family.

Discussion

Although plaintiffs generally invoke the Fourth and Fifth

Amendments to the Constitution, the precise nature of their

claims is far from clear. What is clear is that they believe

that Officer Skerry's "warrantless seizure" of Julie from their

home violated their constitutionally protected right to "family

integrity."

In light of the uncontested facts of record, plaintiffs'

complaint lacks merit. First, and perhaps most fundamentally,

the undisputed facts do not support plaintiffs assertion that an

unlawful "seizure" occurred. At each step of the process,

beginning with Officer Skerry's initial interview of Julie,

plaintiffs were consulted and consented to the proposed conduct.

To the extent that this matter is properly addressed in Fourth

Amendment terms, it is unclear how a consensual "seizure" of the

9 sort alleged could be deemed "unreasonable" within the meaning of

the Fourth Amendment.

Moreover, plaintiffs' standing to assert a Fourth Amendment

violation stemming from the alleged "seizure" of their 16 year- old daughter is doubtful. Importantly, plaintiffs alone bring

this action; Julie is not a plaintiff and, to the extent that any

of her rights may have been violated by her "seizure," plaintiffs

have not shown how, or why they should have standing to assert

her claims.

Nevertheless, even if the court assumes that plaintiffs have standing, and even if it assumes a Fourth Amendment violation for the purposes of this discussion, plaintiffs still would not be entitled to recover under

.

I. Qualified Immunity

Liberally construed in plaintiffs' favor, the complaint

alleges that Officer Skerry "seized" Julie from their home

without probable cause and, in the process violated their

constitutionally protected right to "family integrity." Based

10 upon the undisputed facts of record, however, Officer Skerry is

entitled to qualified immunity from suit and from liability.

Public officials performing discretionary functions are

entitled to qualified immunity from suit for violations of federal law "insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v . Fitzgerald,

0 0 , 818 (1982). The qualified immunity analysis in this

circuit has two components: (1) "whether the constitutional right

asserted by the plaintiff was `clearly established' at the time

of the alleged violation," and (2) "whether `a reasonable

official situated in the same circumstances should have

understood that the challenged conduct violated that established

right.'" S t . Hilaire v . City of Laconia,

0 , 24 (1st

Cir. 1995) (quoting Burns v . Loranger,

(1st

Cir. 1990)), cert. denied, 116 S . C t . 2548 (1996). To be clearly

established, the right asserted must be articulated at an

appropriate level of particularity so that "`[t]he contours of

the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right,'"

although the same action need not previously have been ruled

11 unconstitutional. S t . Hilaire, 71 F.3d at 24-25 (quoting

Anderson v . Creighton,

(1987)). "The ultimate

question of whether a defendant is entitled, on a given set of

facts, to the protection of qualified immunity is a question of

law for the court to decide." Wood v . Clemons,

2 2 , 927

(1st Cir. 1996).

Turning to the first element of the qualified immunity

analysis, it is apparent that the contours of plaintiffs' right

to family integrity were insufficiently defined to put Skerry on

notice that, by taking Julie under the facts presented in this

case, he was likely violating that right. To be sure, the

Supreme Court has recognized an amorphous constitutionally

protected right to "family integrity." See, e.g., Stanley v .

Illinois,

(1972). Plainly, however, that right is

not absolute. Watterson v . Page,

, 8 (1st Cir. 1993).

In fact, as plaintiffs themselves concede, the New Hampshire

Supreme Court has held that:

[T]he parental interest in raising children without State intervention is not without limitation. Rather, the parental right of family autonomy is subject to a corresponding duty on the part of parents to adequately care for their children, and child-rearing rights are secured by the law only to the extent that parents discharge their obligation. The State has a competing

12 interest in the welfare of children within its jurisdiction, and may, as parens patriae, intervene in the family milieu if a child's welfare is at stake. Accordingly, parental rights are not absolute, but are subordinate to the State's parens patriae power, and must yield to the welfare of the child.

Preston v . Mercieri,

6 , 40 (1990) (citations omitted). See also, Stanley v . Illinois,

("We do not

question the assertion that neglectful parents may be separated

from their children.").

S o , whatever the precise contours of the right to family

integrity may have been when Julie was removed from the

plaintiffs' home, it is clear that no parent enjoys a clearly

established constitutional right to be free from child abuse or

neglect investigations, or to maintain control over a child

within the family unit when the child's own welfare requires

removal. The foregoing is particularly true when, as here: (1)

an objectively reasonable police officer possessing the same

information Skerry had could have concluded that there was

probable cause to believe that a child was being neglected and/or

abused (as defined by state l a w ) ; and (2) that an objectively

reasonable police officer could have believed that, by failing to

13 intervene, the child would be exposed to a substantial risk of

harm (or in this case, possibly death by suicide).

Here, Skerry was acting under the provisions of RSA 169-C,

which provides, in pertinent part, that:

A police or juvenile services officer may take a child into protective custody without the consent of the parents or other person legally responsible for the child's care if the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life unless immediate action is taken and there is not enough time to petition for a court order.

RSA 169-C:6, I . The statute defines "imminent danger" as

"circumstances or surroundings causing immediate peril or risk to

a child's health or life." RSA 169-C:3, XV. Even if plaintiffs

had not consented to Skerry's removal of Julie, any reasonable

police officer could (and in fact probably should) have concluded

that intervention was not only justified but mandated. Stated

somewhat differently, an objectively reasonable police officer in

Skerry's position could certainly conclude that, under RSA 169-C,

probable cause existed to remove Julie from Plaintiffs' home,

even absent parental consent, as was given here.

14 The court need not recount in detail the reliable information upon which Skerry could justifiably have based his decision to intervene. It is sufficient to point out that even before completing his investigation or receiving Julie's psychological report, he knew that: (1) ConVal had received an anonymous call from someone who stated that Julie was in danger; (2) a ConVal employee familiar with Julie's situation reported that Julie was in immediate danger and recommended that someone intervene as soon as possible; (3) Julie admitted to Skerry (and her father) that she had tried, quite recently, to kill herself on two occasions; (4) Julie told Skerry about the sexual abuse which she had experienced in the past and said that two adult males in her household (one of whom had abused her in the past) were making sexual advances toward her; and (5) Julie explained that she was afraid to return to her parents' home.

Plaintiffs claim that absent more substantial physical

evidence of Julie's suicide attempts, Skerry lacked probable

cause to believe she was in "imminent danger." That assertion is

frivolous. Skerry might well have been derelict in his duties

(or, at a minimum, morally blameworthy) had he not assisted Julie

in her efforts to escape from plaintiffs' home. No reasonable

15 person could possibly conclude that, based upon the information

available to him at the time, Skerry acted without probable cause

or in any way violated plaintiffs' clearly established

constitutional rights. Accordingly, Officer Skerry is entitled

to qualified immunity.

II. Municipal and "Official Capacity" Liability

A municipality cannot be held vicariously liable under

§ 1983 for the wrongful acts of its employees. Collins v . City

of Harker Heights,

(1992). A municipality may

be liable, however, when one of its employees acts pursuant to a

municipal custom or policy and, in so doing, violates someone's

constitutional rights.

Municipal liability attaches under

§ 1983 only when the "action that is alleged to be

unconstitutional implements or executes a policy statement,

ordinance, regulation or decision officially adopted and

promulgated by the body's officers." Monell v . New York City

Department of Social Services,

5 8 , 690 (1978). S o , in

order to prevail on their § 1983 claim against the Bennington

Police Department and the Town of Bennington, plaintiffs must

show a direct causal connection between municipal conduct and a

constitutional deprivation. See, e.g., Oklahoma City v . Tuttle,

16

0 8 , 824-25 n.8 (1985) (requiring an "affirmative link"

between the municipal policy and the alleged constitutional

deprivation.).

To avoid summary judgment, however, plaintiffs must support their claims with something more than mere subjective

characterizations or unsubstantiated conclusions. Plaintiffs

have failed to carry that burden. In the absence of some

indication of municipal direction via a policy, practice, or

custom, and given that a respondeat superior cause of action is

not cognizable under § 1983, the police department and the Town

are entitled to summary judgment.

Moreover, Officer Skerry is not liable in his official

capacity for any alleged constitutional deprivations. Because

"official capacity suits generally represent only another way of

pleading an action against an entity for which an officer is an

agent," Brandon v . Holt,

6 4 , 472 n.21 (1985), and

because plaintiffs have failed to show that their alleged

injuries are the product of any municipal custom or policy,

17 Officer Skerry is entitled to summary judgment in his official capacity.1

III. Plaintiffs' State Law Claims

Having held that Officer Skerry is entitled to qualified immunity and that plaintiffs have failed to state a viable claim

against the remaining defendants, the court declines to exercise

its supplemental jurisdiction over plaintiffs' state

constitutional, statutory, and common law claims.

Conclusion

For the foregoing reasons, defendants are entitled to summary judgment with regard to all of plaintiffs' federal claims. And, because the court declines to exercise its

supplemental jurisdiction over plaintiffs' state law claims, they are dismissed without prejudice. Defendants' motion for summary judgment (document n o . 11) is granted. The Clerk of the Court is instructed to enter judgment in favor of defendants in accordance with this order and close the case.

1 Plaintiffs do not allege that Officer Skerry possessed policy-making authority, nor do they claim that he acted as a municipal policy-maker when he removed Julie from their home. See generally, Penney v . Town of Middleton,

3 2 , 340- 41 (D.N.H. 1994). 18 SO ORDERED.

Steven J. McAuliffe United States District Judge September 2 6 , 1996 cc: Stephen F. Queeney, Esq. Michael Lenehan, Esq.

19