In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3905

NORMAN BERMAN, et al.,

Plaintiffs-Appellants,

v.

JACKIE YOUNG, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 1850--William T. Hart, Judge.

Argued June 7, 2001--Decided May 31, 2002


  Before Coffey, Easterbrook, and Rovner,
Circuit Judges.

  Rovner, Circuit Judge. After reports of
possible child abuse, the Calumet City
Police Department (CCPD) removed Amanda
Hebein from her home, and the Illinois
Department of Children and Family
Services (DCFS) placed her with her
maternal grandparents. Amanda remained
with her grandparents for eight months
until a state court ordered her returned
to her mother and stepfather, Pilar and
Norman Berman. Amanda, along with Pilar
and Norman, filed this lawsuit under 42
U.S.C. sec. 1983 against employees of the
CCPD, DCFS, and her maternal grandparents
seeking damages for the wrongful
separation of Amanda from her parents.
The district court granted summary
judgment in favor of the defendants.
Amanda and her parents appeal, and we
affirm.

Background

  Amanda, born in December 1992, suffers
from cerebral palsy which affects, among
other things, her speech and motor
control. Relevant to this case, we note
that Amanda had a "moderately severe"
speech delay which significantly hindered
her ability to carry on a conversation.
Additionally, Amanda frequently fell and
sometimes had seizures that would result
in injury.
  Prior to the incident that precipitated
this lawsuit, Amanda lived with her
mother, Pilar, and stepfather, Norman.
Although Norman did not formally adopt
Amanda, he had been involved with her
care and upbringing since mid-1995. Pilar
and Norman married in 1996, and they
resided in a house owned by Pilar’s
parents, Reno and Anita Boe. Anita cared
for Amanda during the day when Pilar was
at work and occasionally watched Amanda
on the weekends. Following a disagreement
with the Boes about Amanda’s care,
however, Pilar enrolled her daughter in
Tiny Town Day Care Center in April 1996.

  Neither the Boes nor the employees at
Tiny Town thought highly of Norman. On
two separate occasions in 1996, both the
Boes and Tiny Town had reported
suspicions that Norman was abusing
Amanda. Both times, however, DCFS
determined the reports to be unfounded
and, in the Boes’ case, "harassing."

  The series of events underlying this
lawsuit began during the afternoon of
October 11, 1996, when Amanda began
crying after she wet herself at Tiny
Town. Her caretaker, a woman called Lali,
proceeded to comfort Amanda, but the
child began crying, apologizing, and
saying "no," "don’t hit," and "no,
Norman." While cleaning Amanda in the
bathroom, Lali noticed four bruises,
approximately two inches wide, on
Amanda’s back and bottom. Lali inferred,
from Amanda’s limited conversational
skills, that Norman had inflicted the
bruises on Amanda with a belt.

  The Boes were scheduled to pick up
Amanda at the end of the day, and when
they arrived at Tiny Town, Lali showed
Anita the bruises. The Boes took Amanda
to the Bermans’ residence as previously
planned so they could wait for Pilar and
Norman to return home.
  In the meantime, Lali telephoned the
DCFS Hotline to report the bruises she
observed on Amanda and her suspicion that
Norman caused the injuries. Because there
were not enough DCFS investigators
available that evening, the employee who
answered the hotline call asked the CCPD
to investigate, a proper procedure under
DCFS rules.

  Around 7:00 p.m. on the evening of
October 11, two CCPD officers arrived at
the Bermans’ residence to investigate the
report of possible child abuse. When they
arrived, Anita was still babysitting
Amanda, who was watching television.
Amanda did not appear to be in any pain
and had not received any medical
treatment for the bruises. The officers
asked Amanda questions about Norman
abusing her, to which Amanda responded
affirmatively. Within ten minutes, the
officers decided to take Amanda into
protective custody based on the
information from the hotline call, their
observation of the bruises, and their
conversation with Amanda. At the police
station, additional officers, including a
youth officer, questioned Amanda, and one
officer spoke with Reno who mentioned
that he previously had suspected and
reported that Norman abused Amanda. No
one made any effort to gather other
corroborating information by contacting
the Tiny Town employees, having Amanda
examined by a doctor, or investigating
Amanda’s family or medical history.

  DCFS authorized the CCPD officers to
place Amanda temporarily with the Boes,
and in turn the officers instructed Anita
not to let Pilar take Amanda home. The
Bermans returned home around 10:00 or
11:00 p.m. that evening and learned that
Amanda was to remain at the Boes’
residence because of accusations that
Norman had abused her. The CCPD arrested
Norman that evening and charged him with
domestic abuse. He was arraigned the
following day and released with a
protective order prohibiting contact with
Amanda.

  Defendant Jackie Young,/1 an
investigator in DCFS’s Division of Child
Protection, was assigned to perform an
initial investigation of the case. He met
with Pilar on October 12, although Pilar
was still unaware of Amanda’s bruises.
Young was then off duty for several days,
but on October 16 was assigned to conduct
the formal investigation. Young
interviewed a doctor and members of
Amanda’s extended family, but he did not
meet with Amanda until 19 days after the
abuse allegations, contrary to DCFS
regulations requiring a visit within 24
hours. Young also failed to complete the
required assessment of the
appropriateness and safety of Amanda’s
placement with the Boes. Despite having
been told by Pilar that Reno was violent,
Young failed to uncover a prior criminal
complaint that Reno had attacked Anita.
Further, DCFS files regarding the prior
allegations of abuse contained
information that Reno was a potential
danger to Amanda. In mid-November, Young
announced that he possessed credible
evidence supporting a finding of abuse by
Norman.

  Defendant Sandy Threatt worked as a lead
investigator for DCFS and served as
Young’s immediate supervisor. Threatt was
aware of the delay in Young’s meeting
with Amanda, and she specifically ordered
Young to see the child. During the
investigation, Young informed Threatt of
his belief that Norman posed a danger to
Amanda and that she would be safe with
the Boes. Ultimately, Threatt concurred
in Young’s assessment of abuse.

  On December 23, 1996, a state juvenile
court held a hearing at which Pilar,
Young, and Amanda’s guardian ad litem
testified, and the court concluded that
there was probable cause to believe that
Norman had abused Amanda. The court also
found that an "[i]mmediate and
urgentnecessity does exist to support
removal of the minor from the home." The
court provided Norman and Pilar
supervised visitation with Amanda and
instructed them to attend parenting
classes.

  A few days after the court hearing,
defendant Roy Hall, a DCFS social worker,
was assigned to perform follow-up work on
Amanda’s case, including interviewing the
parties, preparing a service plan with
the ultimate goal of reuniting Amanda and
her parents, and assessing the delivery
of services. Although DCFS requires that
service plans be developed within 30
days, Hall did not meet with the Bermans
to begin follow-up until mid-February.

  At that point, Hall scheduled parenting
classes for the Bermans and explained the
necessary steps to regain custody of
Amanda. Although he encouraged visitation
with Amanda, he was unresponsive to
Pilar’s complaints that the Boes
prevented the court-ordered visitation.
After an unannounced visit to the Boes’
home during which Hall observed Amanda
speaking quite comfortably with Norman
over the telephone, Hall began
questioning Reno’s insistence that Amanda
was afraid of Norman. Hall ordered an
additional psychological assessment of
Amanda, the Bermans, and the Boes, but it
did not begin until April 1997.

  The assessment of the family revealed
that the Boes were indoctrinating Amanda
against her parents. Reno would accuse
Norman, in graphic detail and in Amanda’s
presence, of sexually abusing Amanda.
Moreover, he appeared to be highly
disturbed, with paranoid thoughts and
bizarre behavior. The evaluation also
documented that Anita was depressed and
that she told Amanda that Pilar did not
love her.

  As a result of the information gleaned
from this evaluation, the state juvenile
court entered a protective order
prohibiting Reno from having contact with
Amanda. Reno moved out of the house, but
Amanda remained with Anita because the
court, on the advice of Hall and Amanda’s
guardian ad litem, believed that it would
be upsetting to return her to Pilar at
that time.

  On June 17, 1997, the state court held
another hearing and ultimately returned
Amanda to the custody of Pilar and Norman
under court supervision. Later, in
November, the court terminated its
supervision on Hall’s recommendation and
assessment that Amanda would be safe with
the Bermans. Finally, in February 1998,
DCFS voluntarily entered an order
providing that the abuse report against
the Bermans was unfounded because it was
unclear who was responsible for Amanda’s
bruises.

  On March 25, 1998, Amanda and her
parents filed a complaint against four
CCPD police officers, four DCFS workers,
and Reno and Anita Boe. Their later
amended complaint raised nine claims for
relief, including a Fourth Amendment
claim, several due process claims, and
five state-law tort claims against the
Boes. The district court entered judgment
in favor of all defendants, and Amanda
and the Bermans appeal.

Analysis

  On appeal only three due process claims
against three of the DCFS defendants are
at issue: a substantive due process claim
against Young, Threatt, and Hall for
placing Amanda in a dangerous
environment; a substantive due process
claim against Young and Threatt based on
the violation of Amanda and Pilar’s
family association and autonomy rights;
and a procedural due process claim
against Young and Threatt focusing on the
delay in the DCFS proceedings. We review
the district court’s judgment de novo,
drawing all inferences in favor of
Amanda, Pilar, and Norman. Lesch v. Crown
Cork & Seal Co., 282 F.3d 467, 471 (7th
Cir. 2002).

  1. Dangerous Placement Claim

  Amanda asserts that Hall, Young, and
Threatt violated her substantive due
process rights by placing her with the
Boes, an environment the defendants
should have known was dangerous, and by
failing to investigate Reno’s history of
violence. The complaint further alleges
that, as a result of her placement with
the Boes, Amanda suffered emotional
disturbance, developed extensive tooth
decay, became obese, and received
inadequate medical care that exacerbated
her cerebral palsy.

  Relying on the Rooker-Feldman doctrine,
the district court dismissed this claim
on jurisdictional grounds as to Hall. The
Rooker-Feldman doctrine precludes a lower
federal court from exercising
jurisdiction over a claim that would
require it to review a final judgment of
a state court. Rooker v. Fidelity Trust
Co., 263 U.S. 413 (1923); District of
Columbia Ct. of App. v. Feldman, 460 U.S.
462 (1983). The state juvenile court, at
its December 1996 hearing, found probable
cause to support a finding of abuse and
removal of Amanda from the home. The
district court concluded that this
judgment implicitly approved the
placement of Amanda with the Boes, and
that as to this claim a finding against
Hall, who became involved in Amanda’s
case only after the hearing, would
necessarily imply that the state-court
ruling was incorrect.

  The district court concluded, however,
that the Rooker-Feldman analysis did not
apply to Young and Threatt because their
responsibility for Amanda’s well-being
predated the state-court hearing.
Instead, the district court granted
summary judgment to Young and Threatt
because there was insufficient evidence
that Amanda’s developmental delays and
emotional troubles were reasonably
foreseeable to Young and Threatt based on
information they had or should have
discovered.

  On appeal Amanda argues that the
district court’s Rooker-Feldman analysis
regarding Hall was erroneous because
Amanda’s injuries were not caused by the
state-court decision but rather were
prior injuries that the state court
failed to remedy. With respect to Young
and Threatt, Amanda asserts that the
likelihood of injury was reasonably
foreseeable based on information the DCFS
employees possessed, even if the specific
injuries she suffered could not have been
predicted. We conclude that Amanda cannot
prevail on this claim because she failed
to establish causation.

  In general, a state’s failure to protect
an individual from private injury does
not violate the mandate of due process.
DeShaney v. Winnebago County Dept. of
Soc. Servs., 489 U.S. 189, 196-97 (1989).
In situations where the state has
established a special relationship to the
victim, however, the state does have an
affirmative duty to protect the
individual. Id. at 198-99. This exception
is grounded in the restrictions that the
state places on the individual by
restraining personal liberty in some
manner. Kitzman-Kelley v. Warner, 203
F.3d 454, 457-58 (7th Cir. 2000).
Recognizing the "special relationship"
exception to the general DeShaney rule,
we have held that once a state removes a
child from her parents’ custody, it has
sufficiently restrained the liberty of
the child and therefore assumes a duty of
safekeeping. K.H. v. Morgan, 914 F.2d
846, 849 (7th Cir. 1990). As such, state
actors may be held liable for damages
"when they place a child in a foster home
knowing or having reason to know that the
child is likely to suffer harm there."
Camp v. Gregory, 67 F.3d 1286, 1293 (7th
Cir. 1995) (collecting cases from other
circuits).

  To have survived summary judgment on her
claim for damages resulting from her
placement with the Boes, Amanda was
required to produce evidence that she
sustained actual injury and that her
injuries had a causal connection with the
alleged due process violation. Smith v.
City of Chicago, 913 F.2d 469, 472 (7th
Cir. 1990); Lossman v. Pekarske, 707 F.2d
288, 290-91 (7th Cir. 1983). Amanda
theorizes that the DCFS defendants failed
to address Pilar’s accusation that Reno
was violent and had once been
investigated for allegedly attacking
Anita. As the district court noted, DCFS
files regarding prior abuse allegations
contained information suggesting that
Reno might pose a danger to Amanda.
Indeed, Amanda maintains that she
suffered injury at the hands of the Boes
as evidence by her orthopedist’s opinion
that a lack of treatment while she stayed
with them worsened her condition.
Additionally, the psychotherapist who
evaluated Amanda and her family testified
that Amanda suffered post-traumatic
stress from her time with the Boes.

  But what is missing is causation. The
emotional troubles and developmental
delays Amanda suffered are unrelated to
the hidden criminal history she claims
DCFS ought to have discovered. There is
no suggestion, for example, that her
orthopedic condition would not have
declined and she would not have suffered
stress and anxiety from the separation
from her mother had the DCFS agents
uncovered the prior criminal complaint
against Reno. Neither did Amanda offer
any evidence before the district court
that placement with someone other than
the Boes would have prevented the
injuries she alleged. Accordingly, she
has not established a causal connection
between the alleged inadequate
investigation by Young, Threatt, or Hall
and the damages she is asserting in this
sec. 1983 claim. See, e.g., Camp, 67 F.3d
at 1297.

  2. Familial Rights Claim

  Amanda and Pilar raised a sec. 1983
claim for "violation of substantive due
process rights to family association,
family autonomy, family integrity, and
family privacy." They assert that Young
and Threatt lacked a rational and
reasonable basis to continue Amanda and
Pilar’s separation for over eight months.
Specifically, Amanda and Pilar challenge
Young’s failure to see Amanda until 19
days after she was removed from her home,
his delayed investigation, and the lack
of corroboration of abuse.
  The district court disagreed with the
plaintiffs and held that Young had an
adequate basis for his suspicion that
Norman abused Amanda: Young received
descriptions of the bruises and of
Amanda’s limited conversation in response
to questions from the Tiny Town workers
and CCPD officers; he knew that criminal
charges had been filed against Norman for
the alleged abuse; and when he did
observe Amanda, he found marks consistent
with prior abuse. Further, although Young
had no information that Pilar posed a
danger to Amanda, he also knew that Pilar
was still living with Norman. He
therefore recommended that Amanda remain
outside her home, but he did not prevent
Pilar from visiting Amanda. The district
court assumed that Threatt, as Young’s
supervisor, shared Young’s knowledge and
participated jointly in the decision-
making process, and so it applied the
same analysis to the claim against
Threatt.

  On appeal Amanda and Pilar maintain that
Young and Threatt’s continuation of the
family separation was unconstitutional
because Young conducted very little
investigation, and certainly not enough,
they claim, to support a reasonable
suspicion of abuse. Additionally, Amanda
and Pilar argue that the scope of the
DCFS intervention was overbroad given the
circumstances. Young and Threatt seek to
support the district court’s grant of
summary judgment by relying on qualified
immunity.

  Qualified immunity shields from
liability government actors performing
discretionary functions so long as they
do not violate "clearly established
statutory or constitutional rights of
which a reasonable person would have
known." Harlow v. Fitzgerald, 456 U.S.
800, 818 (1982); Kelley v. Myler, 149
F.3d 641, 648 (7th Cir. 1998). The
Supreme Court has counseled that the best
framework for analyzing a qualified
immunity defense is to first determine if
there has been a constitutional violation
and then to consider whether the
constitutional right at issue was clearly
established at the time of the violation.
Conn v. Gabbert, 526 U.S. 286, 290
(1999); County of Sacramento v. Lewis,
523 U.S. 833, 841 n.5 (1998). See also
Kitzman-Kelley, 203 F.3d at 457.
  The constitutional violation alleged is
an infringement on due process rights to
family association and privacy. Parents
have a fundamental due process right to
care for and raise their children, and
children enjoy the corresponding familial
right to be raised and nurtured by their
parents. Troxel v. Ganville, 530 U.S. 57,
65-66 (2000); Brokaw v. Mercer County,
235 F.3d 1000, 1018-19 (7th Cir. 2000)
(citing cases and tracing the development
of the familial rights). However, these
rights to family integrity are not
absolute. Brokaw, 235 F.3d at 1019;
Wilkinson v. Russell, 182 F.3d 89, 103-04
(2d Cir. 1999). The family’s due process
interests must be balanced against the
government’s interest in protecting
children from abuse when it has "some
definite and articulable evidence giving
rise to a reasonable suspicion that a
child has been abused or is in imminent
danger of abuse." Brokaw, 235 F.3d at
1019; Croft v. Westmoreland County
Children and Youth Servs., 103 F.3d 1123,
1126 (3d Cir. 1997).

  Based on our review of the record,
Amanda and Pilar failed to produce
evidence creating a genuine issue of fact
as to the reasonableness of Young and
Threatt’s suspicions of abuse. The
district court was correct in determining
that Young and Threatt had a reasonable
basis for their belief that Amanda was
being abused and needed to be removed
from her home. Young and Threatt
reasonably relied on reports from Tiny
Town workers about the bruises and on the
comments Amanda made in response to ques
tioning concerning the bruises. The CCPD
officers also documented their
observations of the bruises and Amanda’s
answers to their questions about Norman.
Although details in the descriptions of
the bruises differed, all of the Tiny
Town employees and the CCPD officers
involved agreed that the bruises were
consistent with abuse. Moreover, Young
and Threatt were aware that criminal
charges had been filed against Norman.
Finally, on October 30, Young personally
observed marks on Amanda that could be
consistent with prior abuse. Given this
background, it was reasonable for Young
and Threatt to suspect abuse.

  Even assuming a constitutional
violation, however, the second phase of
our analysis--determining whether the
constitutional right was clearly
established--requires us to conclude that
Young and Threatt are entitled to
qualified immunity. Amanda and Pilar
assert that Young and Threatt failed to
conduct an adequate investigation and
that their decision to remove Amanda from
her home was overbroad given the
accusations that only Norman (and not
Pilar) abused Amanda. To the extent that
Young and Threatt’s investigations ought
to have been more detailed or they ought
to have considered more limited measures
than removing Amanda from the home,
neither the extent of their obligations,
nor the extent of the right to family
integrity and association, were so well-
developed as to place them on notice that
their actions were unlawful. See Brokaw,
235 F.3d at 1023 ("[B]ecause the balance
between a child’s liberty interest in
familial relations and a state’s interest
in protecting the child is nebulous at
best, social workers and other state
actors who cause a child’s removal are
entitled to qualified immunity because
the alleged constitutional violation will
rarely--if ever--be clearly
established.").

  3. Delayed Hearing Claim

  Amanda and Pilar raised a procedural due
process claim based on the failure of
Young and Threatt to initiate a post-
deprivation judicial hearing to determine
the legality of Amanda’s removal from the
home until December 23, 1996, over two
months after she was seized. In ruling on
the defendants’ earlier motion to
dismiss, the district court concluded
that the 72-day delay violated the
constitutional requirement of a prompt
judicial hearing. Hebein v. Young, 37 F.
Supp. 2d 1035, 1046-47 (N.D. Ill. 1998).
Ultimately, however, the district court
granted summary judgment to Young and
Threatt because the plaintiffs offered no
evidence that a prompt hearing would have
yielded a different outcome than the
December 23 hearing.

  On appeal Amanda and Pilar assert that
a timely post-deprivation hearing would
have been accompanied by a
contemporaneous medical examination,
whereas the December 23 hearing lacked
any testimony from a medical
professional. The district court reasoned
that, although an earlier hearing would
have allowed for medical testimony
regarding Amanda’s bruises, there was
already testimony from witnesses that the
bruises were consistent with abuse and
one more person testifying to that same
conclusion would not have changed the
outcome of the hearing. Amanda and Pilar
challenge the district court’s inference
that a medical professional would
necessarily have concurred with the
assessment of the lay people who saw
Amanda’s bruises. Specifically, the
plaintiffs identify Dr. William Morris,
Amanda’s pediatrician, who examined
Amanda two weeks after the alleged abuse
and opined that her bruises could be
consistent with falling down, a
consequence of her cerebral palsy.

  A procedural due process claim such as
this one is premised on Supreme Court
holdings that "[t]he fundamental
requirement of due process is the
opportunity to be heard at a meaningful
time and in a meaningful manner." Mathews
v. Eldridge, 42 U.S. 319, 333 (1976). The
amount of process due--that which
constitutes "meaningful"--varies
depending upon the particular
circumstances involved. Id. at 334. When
the state removes a child from her
parents, due process guarantees prompt
and fair post-deprivation judicial
review. Brokaw, 235 F.3d at 1021.

  The district court determined that the
state court hearing, held on December 23,
1996, was not "prompt." Hebein, 37 F.
Supp. 2d at 1047. We agree that the delay
in the proceedings was rather outrageous.
In order for Amanda and Pilar to prevail
on this claim, however, they must
establish, "with some degree of
probability," that a timely hearing would
have prevented the extended infringement
on their familial rights. Lossman, 707
F.2d at 291. In other words, they must
demonstrate actual damages resulting from
the delay in the post-deprivation
hearing. Donald, 836 F.2d at 380;
Lossman, 707 F.2d at 291.

  Our review of the evidence at summary
judgment compels us to conclude that
Amanda and Pilar cannot pass this hurdle.
Although they protest the lack of medical
testimony at the December 23 hearing,
they have offered no reason why they
failed to solicit a medical examination
shortly after the abuse allegations.
Moreover, it appears from the record that
Young testified at the hearing that Dr.
Morris found no evidence of abuse. Amanda
and Pilar cannot demonstrate any injury
resulting from the delayed hearing,
especially given that the state court
approved the removal of Amanda from her
home. Without actual damages, they cannot
prevail on this claim. See Lossman, 707
F.2d at 291.

Conclusion

  For the foregoing reasons, we affirm the
judgment of the district court.

FOOTNOTE

/1 Jackie Young passed away after this suit was
filed. His estate remains a party by its repre-
sentative, Bruce A. Boyer.
