
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                                         -2-                                         -2-            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).                                         -3-                                         -3-                 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                                         -4-                                         -4-            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.                                         -5-                                         -5-                 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.                 ________                                         -6-                                         -6-
