
USCA1 Opinion

	




          February 9, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1224                              VALERIE WATTERSON, ET AL.,                               Plaintiffs, Appellants,                                          v.                                 EILEEN PAGE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Charles E.  Dibble with whom Charles  E. Dibble, P.C. was on brief            __________________           ________________________        for appellants.            Mark H. Gardner with  whom Craig F. Evans and Evans & Hermann were            _______________            ______________     _______________        on brief for appellees Janet Seymour and Roland Smith.                                 ____________________                                   February 9, 1993                                 ____________________                      CAMPBELL,  Senior  Circuit Judge.   The  mother and                                 _____________________            grandparents of two minor children brought this action in the            district court under 42 U.S.C.   1983 and state law against a            social worker and two psychologists who were involved in  the            State of New Hampshire's  investigation into reports that the            children  had been  sexually abused.   The  two psychologists            moved to  dismiss the  complaint against themselves,  and the            court  allowed their motion.  It ruled that they had absolute            immunity from suit under 42 U.S.C.   1983 and state statutory            immunity  from  the pendent  state  law claims.    We affirm,            although on  somewhat  different grounds  as  to the     1983            claims.                                          I.                                          I.                      In considering  a motion  to dismiss, a  court must            take the allegations in  the complaint as true and  must make            all  reasonable  inferences  in  favor  of   the  plaintiffs.            Monahan v.  Dorchester Counseling  Ctr., Inc., 961  F.2d 987,            _______     _________________________________            988 (1st Cir. 1992).  Here the district court also took  into            account certain facts set  out in public documents plaintiffs            attached to  an  opposition  they  filed  to  the  motion  to            dismiss.    Ordinarily,  of   course,  any  consideration  of            documents  not attached  to the  complaint, or  not expressly            incorporated therein, is forbidden, unless the  proceeding is            properly converted  into one for summary  judgment under Rule            56.  See Fed. R. Civ. P. 12(b)(6).  However, courts have made                 ___                                         -2-            narrow exceptions for documents the authenticity of which are            not disputed by the parties; for official public records; for            documents  central to  plaintiffs'  claim; or  for  documents            sufficiently referred to in the complaint.  See, e.g., Romani                                                        ___  ____  ______            v.  Shearson Lehman Hutton, 929  F.2d 875, 879  n.3 (1st Cir.                ______________________            1991) (considering offering documents submitted by defendants            with  motion to dismiss claim  of securities fraud); Fudge v.                                                                 _____            Penthouse  Int'l, Ltd.,  840  F.2d 1012,  1014-15 (1st  Cir.)            ______________________            (considering   allegedly   libelous   article  submitted   by            defendants with  motion to  dismiss), cert. denied,  488 U.S.                                                  ____________            821 (1988); Mack v.  South Bay Beer Distrib., Inc.,  798 F.2d                        ____     _____________________________            1279, 1282 (9th Cir. 1986) ("[O]n a motion to dismiss a court            may properly  look beyond the complaint to  matters of public            record and doing so  does not convert a Rule  12(b)(6) motion            to one for summary judgment."); see also In re Wade, 969 F.2d                                            ________ __________            241, 249 & n.12 (7th Cir. 1992).                      Here, all  or most of  the above-mentioned elements            are  present.  Plaintiffs, moreover, introduced the documents            themselves,  in  order  to  bolster  their  argument  against            defendants' motions to  dismiss.  See Cortec Indus.,  Inc. v.                                              ___ ____________________            Sum  Holding L.P.,  949 F.2d  42, 48  (2d Cir.  1991) ("[T]he            _________________            problem  that  arises   when  a   court  reviews   statements            extraneous  to a complaint generally is the lack of notice to            the plaintiff . . . . Where plaintiff has actual notice . . .            and has relied  upon these documents in framing the complaint                                         -3-            the necessity of translating a Rule  12(b)(6) motion into one            under  Rule 56 is largely dissipated."), cert. denied, 112 S.                                                     ____________            Ct.  1561 (1992); Berk v. Ascott Inv. Corp., 759 F.Supp. 245,                              ____    _________________            249  (E.D. Pa.  1991) ("[W]hen a  plaintiff has  admitted the            authenticity of a document . .  ., a court may consider  that            document  in ruling  on  a  motion  under  Fed.  R.  Civ.  P.            12(b)(6).").                      Like  the  court  below,  therefore, we  treat  the            documents submitted  by plaintiffs     the Abuse  and Neglect            Petitions,  the Pittsfield  District Court  orders, defendant            Seymour's written  report to  defendant  Page, and  Seymour's            affidavit    as part of the pleadings.  The facts that emerge            are as follows:                      Plaintiff-appellant   Valerie   Watterson  is   the            natural  mother  of two  minor girls  born  in 1979  and 1984            respectively  ("the  older  child"  and  "the  young  child";            collectively  "the children"  or  "the girls").    Plaintiff-            appellant Violet  Bruillard is the natural  mother of Valerie            and grandmother  of the  children.  Plaintiff-appellant  Paul            Bruillard  is Violet's  husband, and  stepgrandfather to  the            children.  The  girls lived  with all three  appellants in  a            house belonging to  Violet and  Paul in New  Hampshire.   The            girls' natural father, who separated from Valerie in 1981, is            not a party to this action.                      Since birth,  the older child has  had only partial                                         -4-            hearing  and partial  speech abilities.   Beginning  in 1985,            when  she was  six years  old, the  child attended  the Green            Acres  School in  Manchester,  New Hampshire,  as  part of  a            program for the  hearing impaired.   In January 1986,  school            officials reported unusual  behavior by the child  to the New            Hampshire Division  for Children  and Youth  Services (DCYS),            including  symptoms of  neglect  and  possible sexual  abuse.            DCYS  officials  investigated  the  case   and  identified  a            fourteen-year-old  boy  who rode  to  school  on the  child's            school  bus  as the  probable abuser.    Steps were  taken to            remedy the situation and the case was closed.                      In  March  1987,  however, school  officials  again            wrote to DCYS to report continuing symptoms of sexual  abuse.            Defendant  Eileen Page  (who  is not  an  appellee), a  state            social  worker assigned to the case by DCYS, filed a Petition            for Neglect in  the Pittsfield District  Court, State of  New            Hampshire, on  May 18, 1987.  See N.H. Rev. Stat. Ann.   169-                                          ___            C:7.  The petition  alleged that the older child  was subject            to neglect by  Valerie Watterson, citing  the reports of  the            Green Acres  School officials  that the child  was describing            sexual matters in  detail to other children  and her teacher,            fondling herself and  other children,  and complaining  about            pains  in her stomach and  lower abdomen.   The petition also            alleged that  the child wore  dirty clothing  to school,  was            unkempt and unwashed, and appeared to be making her own lunch                                         -5-            of mayonnaise sandwiches.                      On May  28,  1987, the  Pittsfield  District  Court            conducted a  preliminary hearing and ordered  that the child,            then eight years of age, be referred to Concord Psychological            Associates  for counseling.  See N.H. Rev. Stat. Ann.    169-                                         ___            C:15,  16.  The court  also granted legal  supervision of the            child  to  DCYS, left  placement  of the  child  with Valerie            Watterson,  and  ordered DCYS  to  facilitate  the counseling            sessions  and  "to   conduct  an  appropriate  investigation,            including,  but  not  limited  to  home  environment  study."            Beginning June 11, 1987, the child attended weekly counseling            sessions at Concord  Psychological Associates with defendant-            appellee  Janet  Seymour,  a  psychologist who  was  not  yet            certified.    Seymour  was  supervised  by defendant-appellee            Roland Smith, a board-certified psychologist  and director of            Concord Psychological Associates.                      On  June 22,  in lieu  of a  scheduled adjudicatory            hearing and  without a finding of neglect, DCYS and appellant            Valerie  Watterson entered  an  agreement for  issuance of  a            consent  order.  See  N.H. Rev. Stat.  Ann.    169-C:17.  The                             ___            consent  order mandated  that,  "[The  child] shall  continue            counselling  at  Concord  Psychological  Associates,  with  a            report from Concord Psychological Associates filed  with this            court  not later than forty-five  days from the  date of this            agreement."   The order  also stated  that DCYS would  assist                                         -6-            Valerie in transporting the child to the counseling sessions,            that  Valerie would submit  to psychological evaluation, that            DCYS would complete a  home study with Valerie's cooperation,            and that the court retained jurisdiction over the case.                        Seymour with the aid of a sign-language interpreter            conducted a  total of  seven psychotherapy sessions  with the            child   from  June  11  to  July  22,  1987.    On  Seymour's            initiative,  the younger  child, then  three years  old, also            attended  one of  the sessions.   On  July 24,  1987, Seymour            reported  her  findings in  writing  to  social worker  Page,            stating that the older child revealed during therapy that her            grandmother  and  mother  (appellants  Violet  Bruillard  and            Valerie Watterson)  repeatedly took  the girls  against their            will to a  house where the older child was  required to sleep            in  close  proximity with  boys  and a  grown  man.   On  one            occasion, one male  allegedly fondled the  older child.   The            younger child was allegedly threatened with a large knife and            subjected  to fondling by a  young boy while  Valerie and the            older child watched.   The  older child  also reported  being            paid for visiting  the house,  being told not  to reveal  the            visits to anyone, and eventually being informed by her mother            in July  1987 (during the period of  the counseling sessions)            that she would no longer take the girls to the house.                        On the  basis of these  findings, Seymour concluded            that  the   girls'  grandmother,   Violet,   may  have   been                                         -7-            "prostituting  [the  older  child]  and probably  [the  young            child]  to a  group of people,  likely a sex  ring."  Seymour            stated that Valerie, the mother,  was only partially aware of            the  events at the house  but failed to  protect the children            from the abuse.  Seymour concluded her report by recommending            that  DCYS  initially  confront Valerie  Watterson  with  the            accusations  and then,  if necessary,  remove the  girls from            appellants' home.                      The same day Seymour issued her report, Page sought            and obtained an ex  parte order from the  Pittsfield District                            __  _____            Court  for  the  immediate  removal  of  both  children  from            appellants' home, citing the information gathered by Seymour.            See  N.H.  Rev.  Stat. Ann.     169-C:6.    That evening  law            ___            enforcement  officials took  the two  girls from  appellants'            home and  placed them in separate foster  homes.  On July 27,            1987, Page filed  new Abuse and Neglect Petitions with regard            to the  two  children, alleging  that  they were  subject  to            sexual abuse  by Valerie Watterson and Violet Bruillard.  See                                                                      ___            N.H. Rev. Stat. Ann.   169-C:7.                      On  September  24,  1987, in  connection  with  the            proceedings,  Seymour swore  out an  affidavit detailing  her            findings  regarding  the two  children.    In her  affidavit,            Seymour  attested  that she  believed,  based  on her  weekly            psychotherapy sessions  with the  older child and  the single            session  with  the  young   child,  that  the  children  were                                         -8-            subjected to some sort of  child prostitution/satanic worship            activity  (involving "the killing  of animals  and children,"            "ugly  hats (perhaps  headdresses) with  horns," and  "men in            robes"),  at  a location  identified  by the  girls  as "Mike            Chickering's house."  Seymour's affidavit was apparently used            by  the Merrimack County Sheriff's office  to obtain a search            warrant for the  Chickering house, where the only evidence of            child prostitution and satanic worship found by  police was a            catalog for pornographic films and an ordinary letter opener.                      On May 25, 1988, after eight days of testimony, the            Pittsfield  District Court  ruled that no  evidence supported            the  allegations  of ritual  sexual  abuse  occurring at  the            Chickering   residence  and  so  dismissed  those  particular            charges.  See N.H. Rev. Stat. Ann.    169-C:18, 19.  However,                      ___            the court stated that  it was "obvious" that the  older child            had been sexually  abused and that  the young child  suffered            some traumatic  incident that  could be classified  as abuse.            Valerie  Watterson and  Violet Bruillard appealed  the latter            findings  to the superior court,  see N.H. Rev.  Stat. Ann.                                                ___            169-C:28, but DCYS voluntarily withdrew the Abuse and Neglect            Petitions before further proceedings were conducted.1                                            ____________________            1.   The record does not  indicate reasons for the withdrawal            of  the abuse petitions.  Nor does any document state whether            and when the children were returned to appellants, indicating            that there may have been subsequent proceedings regarding the            children not  at issue here.   Appellants' brief  states only            that the younger child  remained in foster homes for  a total            of two-and-one-half years, and that the older child currently                                         -9-                      Appellants brought this  civil action  on July  12,            1990, in the United States District Court for the District of            New Hampshire  against DCYS social worker  Page and appellees            Seymour   and  Smith  of  Concord  Psychological  Associates.            Appellants alleged  in their complaint, as  amended, that all            three defendants were liable pursuant to 42 U.S.C.   1983 for            depriving appellants  of their  liberty and  property without            due  process of law.   The complaint  contained pendent state            law  claims against Seymour and Smith for failing to act with            due care with regard to professional  standards.  The amended            complaint  also  brought   state  law  claims   of  malicious            prosecution and abuse of  process against defendant Page, who            is not a party to this appeal.2                      Seymour  and  Smith  moved to  dismiss  all  claims            against them under Fed.R.Civ.P. 12(b)(6) on grounds that they            are immune from  civil liability.  The district court granted            these  motions  on  August  12, 1991,  holding  that  the two            psychologists had absolute quasi-judicial immunity from the              1983 claims as court-appointed  psychologists, and had  state            statutory immunity from liability  under the state law claims                                            ____________________            lives apart from appellants  in a residential learning center            for deaf children in Massachusetts.            2.   The district court assumed  that the claims of malicious            prosecution and  abuse of  process also applied  to appellees            Seymour  and Smith and held that  they had statutory immunity            from  those claims.   However,  appellants clarify  on appeal            that those two state law claims apply only to defendant Page.                                         -10-            pursuant to the New Hampshire Child Protection Act.  See N.H.                                                                 ___            Rev. Stat. Ann.   169-C:31.  Appellants appeal from the final            judgment dismissing  the complaint against  Seymour and Smith            issued pursuant to Fed. R. Civ. P. 54(b) on February 7, 1992.                                         II.                                         II.                 A.  Section 1983 Claims                 A.  Section 1983 Claims                     ___________________                      We  need  not  decide whether  the  district  court            correctly   held  that  a   court-appointed  psychologist  is            entitled to absolute immunity  from claims in connection with            her duties as  a quasi-judicial  officer.   Compare Myers  v.                                                        _______ _____            Morris,  810  F.2d 1437,  1466-67  (8th  Cir.) (holding  that            ______            court-appointed psychologists have absolute  immunity), cert.                                                                    _____            denied,  484 U.S. 828 (1987) with Hodorowski v. Ray, 844 F.2d            ______                       ____ __________    ___            1210, 1215-16  (5th Cir.  1988) (refusing to  extend absolute            immunity to  child protective service  workers).   This is  a            difficult  and, in  this  circuit, novel  question, on  which            there is no conclusive authority.  See Frazier v. Bailey, 957                                               ___ _______    ______            F.2d  920,  931  n.12 (1st  Cir.  1992);  see  also Snell  v.                                                      _________ _____            Tunnell,  920 F.2d  673, 686-89  (10th Cir.  1990) (reviewing            _______            various court positions on  absolute immunity for child abuse            investigation participants),  cert. denied,  111 S.  Ct. 1622                                          ____________            (1991).   In  Burns  v. Reed,  111 S.  Ct.  1934 (1991),  the                          _____     ____            Supreme  Court  cautioned  that  the  "presumption   is  that            qualified  rather than  absolute  immunity is  sufficient  to            protect   government  officials  in  the  exercise  of  their                                         -11-            duties."   Id. at 1939.  The Court went on to say that it had                       ___            been  "'quite  sparing'  in  [its]  recognition  of  absolute            immunity, and  [had] refused to  extend it any  'further than            its  justification would warrant.'"  Id. (citations omitted).                                                 ___            We  do not suggest that absolute immunity could not exist for            these psychologists in the  present circumstances.  But since            for more conventional reasons  appellees are clearly entitled            to  prevail,  we  rest  our  decision  exclusively  on  those            reasons.                      Except perhaps for the allegation that Seymour gave            false testimony in court, appellants have alluded to no facts            that seem even remotely sufficient to show a violation of the            federal  constitution by  the  two psychologists.   And  even            assuming  Seymour testified  falsely, and  even assuming  her            false  testimony might  otherwise  give rise  to  a claim  of            constitutional dimensions,  she  would still  be immune  from            suit under   1983 because  of the absolute immunity  afforded            to witnesses  for their testimony  in the course  of judicial            proceedings.  Infra.  We, therefore, sustain the dismissal of                          _____            the   1983 claims.3                                            ____________________            3.  In  moving to  dismiss,  appellees relied  exclusively on            their argument  that  the court-appointed  psychologists  had            quasi-judicial  immunity for all their challenged activities,            although  they reserved  the  right to  raise other  defenses            including the failure  to state  a claim for  relief.   While            issues not pursued in the district  court ordinarily will not            be  considered on appeal, Brown v.  Trustees of Boston Univ.,                                      _____     ________________________            891 F.2d 337, 352 (1st Cir. 1989), cert. denied, 496 U.S. 937                                               ____________            (1990), we are free to affirm on any independently sufficient                                         -12-                      To bring an action  under   1983, a  plaintiff must            show  both  the  existence  of a  federal  constitutional  or            statutory  right, and  some deprivation  of that  right as  a            result  of  defendants' actions  under  color  of state  law.            Willhauck  v. Halpin,  953  F.2d 689,  703  (1st Cir.  1991).            _________     ______            Appellants claim that Seymour and Smith acted under  color of            state law to deprive  them of their  right to due process  of            law  in violation of the Fifth and Fourteenth Amendments.  We            shall  assume that  the Pittsfield  District Court  order for            counseling  and reporting by Concord Psychological Associates            provided a  sufficient basis for these  private defendants to            be acting under color of state law.  See Frazier, 957 F.2d at                                                 ___ _______            928;  Rodriques v.  Furtado, 950 F.2d  805, 813-14  (1st Cir.                  _________     _______                                            ____________________            ground, Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 6 (1st                    ___________    __________________            Cir. 1992).   This is especially  so where  our review is  de                                                                       __            novo.    Willhauck v.  Halpin, 953  F.2d  689, 704  (1st Cir.            ____     _________     ______            1991).                   We  conclude  that  in  these circumstances  it  is  not            improper  for us to uphold  the dismissal on  the ground that            appellants failed  to make out any claim  for the deprivation            of  a   federal  constitutional   right,  even   though  this            particular  issue was  not explored  below.   Appellants have            explained their theory of  the case in the course  of arguing            against  absolute immunity  for appellees,  and  described at            oral  argument   the   basis  for   their   federal   claims.            Furthermore, we  take all of appellants'  allegations as true            and make  our determination solely  as a matter of  law.  Cf.                                                                      ___            Brown  v. St. Louis Police  Dept., 691 F.2d  393, 396-97 (8th            _____     _______________________            Cir.  1982), cert.  denied, 461  U.S. 908  (1983) (discussing                         _____________            "special  circumstances" that  could  make it  "fundamentally            unfair" to consider alternative grounds  on appeal).  To send            the  matter back to  the lower court would  be an exercise in            futility,   especially  given   the  additional   defense  of            qualified immunity which, although not discussed here, stands            as a further, seemingly insurmountable barrier to recovery.                                         -13-            1991).    A  likely  alternative  ground  for  affirming  the            district court  is qualified immunity.   However, before even            reaching  qualified   immunity,  a  court   of  appeals  must            ascertain whether the appellants have asserted a violation of            a constitutional right at all.  Siegert v. Gilley, 111 S. Ct.                                            _______    ______            1789, 1793 (1991).                      Appellants   do  not  allege  that  the  procedures            provided under New Hampshire law for child  neglect and abuse            petitions,   concededly   followed    in   this   case,   are            constitutionally inadequate.  See N.H. Rev. Stat. Ann.   169-                                          ___            C:1  et seq..  Instead,  they make a  substantive due process                 _______            claim,  viz., that  by means  of Seymour's  report, appellees            deprived  them  of   a  constitutionally  protected   liberty                                                                  _______            interest in family integrity, including the care, custody and            supervision of  the  children.4    Seymour is  said  to  have                                            ____________________            4.   We see no other  constitutionally protected interest  or            right  at  stake.    Damage  to  reputation  alone  does  not            constitute a  violation of  a substantive due  process right.            Paul v. Davis, 424 U.S. 693, 713 (1976).  But cf. Petition of            ____    _____                             _______ ___________            Bagley, 128  N.H. 275, 284-85,  513 A.2d 331  (1986) (holding            ______            that officials'  determination that  child  abuse report  had            foundation  in  fact  and  recordation  in  central  registry            implicated plaintiffs' due process liberty interest under New            Hampshire constitution).                   In  addition, there  are no  allegations in  the amended            complaint  to support  the  conclusory claim  that appellants            were deprived  of  some constitutionally  protected  property                                                                 ________            interest, so we find the complaint fails to state a claim for            unconstitutional deprivation  of property.  See  Fed. R. Civ.                                                        ___            P. 12(b)(6).   The  only property  interest affected  was, we            infer  from the  complaint's  allegations, the  loss of  some            money and wages to attend the abuse proceedings and to pay an            attorney  to represent  them,  neither of  which constitutes,            standing alone, an unconstitutional deprivation of property.                                         -14-            conspired with Page to conduct  an unauthorized investigation            of  the  family's affairs  while  also  counseling the  older            child.   Seymour was  allegedly negligent in  her counseling,            and  this negligent  counseling and  investigating supposedly            led to incorrect conclusions about the involvement of Valerie            and  Violet in  the  sexual  abuse  of  the  girls.5    These            incorrect conclusions, contained in Seymour's report, enabled            DCYS to obtain court approval for the removal of the children            from appellants' home, thereby depriving appellants  of their            constitutionally   protected   liberty  interest   in  family            integrity.6    Appellee  Smith's  purported  liability  stems            solely from his allegedly  inadequate supervision of  Seymour            at Concord Psychological Associates.                      Taking all  of plaintiffs' allegations as  true, we            see  only three possible bases  for the    1983 claim against            Seymour: first,  she  "conspired" with  Page  to  investigate                                            ____________________            5.  Appellants  do  not allege  the  absence  of grounds  for            suspecting abuse by someone.  They admit that, during  visits            to  her father,  the  older child  witnessed repeated  sexual            abuse of another child  in a manner nearly identical  to that            described  by  the  older child  to  Seymour.   In  addition,            appellants admit that the older child was molested at age six            by a fellow student during bus rides to school.            6.   While the  scope and level  of constitutional protection            for the  liberty interests  of grandparents  probably differs            from that for  parents' interests, compare  Moore v. City  of                                               _______  _____    ________            East Cleveland, 431 U.S.  494, 500-06 (1977) with Stanley  v.            ______________                               ____ _______            Illinois, 405 U.S. 645,  651-52 (1972), appellants Violet and            ________            Paul Bruillard,  as grandparents who resided  with the girls,            have  interests at  least  sufficient to  avoid dismissal  of            their    1983 claims on grounds they have no constitutionally            protected right at stake.                                         -15-            appellants'   family  without  express  court  authority  and            direction  to do  so; second,  she negligently  counseled and            interviewed  the children;  and  third, she  presented  false            testimony and withheld information from the court.  The first            two  theories fall  short,  however, of  stating any  federal            constitutional claim.  While the Supreme Court has recognized            an   abstract   fundamental  liberty   interest   in  "family            integrity,"  the Court has  never found  that interest  to be            absolute or unqualified.   Frazier, 957 F.2d at 929-30.   The                                       _______            government  has  a  compelling  interest in  the  welfare  of            children, and  the relationship between parent  and child may            be  investigated  and  terminated   by  the  state   provided            constitutionally  adequate procedures are followed.  Santosky                                                                 ________            v.  Kramer, 455  U.S. 745,  766, 769  (1982).   The right  to                ______            family integrity clearly  does not  include a  constitutional            right to  be  free  from child  abuse  investigations.    See                                                                      ___            Stanley v. Illinois, 405 U.S.  645, 649 (1972) (stating  that            _______    ________            the State has a  "right    indeed,  duty    to protect  minor            children through  a judicial determination of their interests            in  a neglect  proceeding"); Weller  v. Department  of Social                                         ______     _____________________            Servs., 901 F.2d 387,  391 (4th Cir. 1990);   Myers, 810 F.2d            ______                                        _____            at 1462.   If while  engaged in treating  the children  under            court  direction, Seymour, in  conjunction with  Page, looked            into  whether the  children  had been  abused by  appellants,            such a joint undertaking would not, without more, violate any                                         -16-            constitutional  right  of appellants.7    The  second factual            basis,  that  Seymour  performed  the  therapy  sessions  and            reported her findings with a lack of due care, at most states            a claim of negligence, which is insufficient to constitute  a            deprivation of  due process  of law.8   Daniels  v. Williams,                                                    _______     ________            474 U.S. 327, 332-34 (1986).                      Appellants'   third    allegation,   that   Seymour            conspired  with  Page  to  present  false  testimony  to  and            withhold material  evidence from the court  hearing the abuse            charges,  fails  for a  different  reason:  all witnesses  at            judicial proceedings have  an absolute immunity  from damages            liability based  on their testimony.   Briscoe v.  LaHue, 460                                                   _______     _____                                            ____________________            7.   Describing the  investigation by  Seymour and Page  as a            "conspiracy"  adds nothing  to  the  charge; mere  conclusory            allegations that  defendants "conspired" are not  enough in a            civil rights complaint to  turn otherwise lawful actions into            a valid claim of  unlawful conspiracy.  See Glaros  v. Perse,                                                    ___ ______     _____            628 F.2d 679, 685 (1st Cir. 1980).            8.   Appellants allege without further explanation or factual            support  in  their  complaint   that  Seymour  conducted  the            counseling sessions with reckless and callous indifference to            their constitutional rights.  While reckless indifference, as            opposed to mere  negligence, may be actionable  under   1983,            see Torres Ramirez v. Bermudez Garcia, 898 F.2d 224, 227 (1st            ___ ______________    _______________            Cir. 1990), no  set of  facts alleged in  this complaint,  or            reasonable  inferences therefrom, could  support a finding of            more than simple  lack of  due care.   It  was not  Seymour's            counseling  activities,  as   such,  moreover,  that  injured            appellants.  It was Seymour's  report to Page, conveying  the            story of possible abuse by appellants.  Yet appellants  admit            that  the  older  child had  been  sexually  abused  by other            unidentified persons, see supra note  5, and the only alleged                                  ___ _____            problems  with Seymour's report  were purported omissions and            misinterpretations  of  certain   facts.    Seymour  herself,            moreover,  recommended  that  DCYS  seek  the  cooperation of            Valerie Watterson before considering removal of the children.                                         -17-            U.S. 325, 326 (1983).   This immunity applies even  to public            officials  who knowingly give  false testimony.   Id. at 345.                                                              ___            Seymour thus  had absolute  immunity for her  testimony, even            assuming it was either false or incomplete.                      The   1983  claim against Smith is  based solely on            his  actions as  the supervisor  of Seymour's  counseling and            investigation.   Because  Seymour violated  no constitutional            rights of appellants in  her counseling and investigation, we            find  even   less  basis  for  recovery   against  Smith  for            supervising her.  See Frazier, 957 F.2d at 931-32.                                ___ _______                      For  these  reasons,  the     1983  claims  against            Seymour and Smith were properly dismissed.                 B.  State Law Claims                 B.  State Law Claims                     ________________                      The district court held that the two psychologists,            Seymour and  Smith, had immunity  from the  state law  claims            pursuant to a state statute, N.H. Rev. Stat. Ann.   169-C:31,            which immunizes persons who  report suspicions of child abuse            to the proper state  authorities in good faith.9   Appellants                                            ____________________            9.   N.H. Rev. Stat. Ann.   169-C:31 provides:                      Anyone participating in good faith in the                      making  of  a  report  pursuant  to  this                      chapter  is  immune  from any  liability,                      civil or criminal,  that might  otherwise                      be  incurred  or   imposed.    Any   such                      participant  has  the same  immunity with                      respect    to   participation    in   any                      investigation by the  bureau or  judicial                      proceeding resulting from such report.            N.H. Rev. Stat. Ann.   169-C:29 requires that certain persons                                         -18-            argue that the district court misapplied the immunity statute            because their  state law  claims against appellees  stem from                                            ____________________            report suspected child abuse.                      Any  physician,  surgeon, county  medical                      examiner, psychiatrist, resident, intern,                      dentist,      osteopath,     optometrist,                      chiropractor,   psychologist,  therapist,                      registered   nurse,  hospital   personnel                      (engaged in administration,  examination,                      care and treatment of persons), Christian                      Science  practitioner,   teacher,  school                      official, school nurse, school counselor,                      social worker, day care worker, any other                      child   or   foster   care  worker,   law                      enforcement  official,  priest, minister,                      or  rabbi  or  any  other  person  having                      reason to  suspect that a child  has been                      abused or neglected shall report the same                      in accordance with this chapter.            N.H. Rev. Stat.  Ann.   169-C:30  describes how such  reports            are to be made.                      An  oral report shall be made immediately                      by telephone or  otherwise, and  followed                      within 48 hours  by a report in  writing,                      if  so requested,  to the  bureau.   Such                      report shall, if  known, contain the name                      and address  of  the child  suspected  of                      being  neglected or abused and the person                      responsible for the child's  welfare, the                      specific  information indicating  neglect                      or the nature  and extent of the  child's                      injuries   (including  any   evidence  of                      previous injuries), the  identity of  the                      person  or  persons  suspected  of  being                      responsible  for  such neglect  or abuse,                      and  any other information  that might be                      helpful in establishing neglect  or abuse                      or that may be required by the bureau.            "Bureau" is defined as "the bureau  of children, division for            children and  youth services, department of  health and human            services."  N.H. Rev.  Stat. Ann.   169-C:3 IV.   This agency            is referred to herein as DCYS.                                         -19-            the  lack  of  due  care  in performance  of  the  counseling            services,  not from Seymour's  subsequent report of suspected            child abuse  (which, appellants concede, is  protected by the            immunity statute).                      We  reject  appellants'  argument.    The  injuries            alleged in their complaint  are separation from the children,            damage to  their reputations, and various  forms of emotional            distress.  No  harm to  the children as  the result of  their            being negligently counseled is  alleged, nor was suit brought            on  the   children's  behalf  to  complain   of  the  alleged            malpractice.    All  the  asserted harms  resulted  from  the            state's removal of the children.   Seymour's and Smith's sole            connection to that separation was Seymour's report to DCYS of            her  suspicions that  the girls  were being  sexually abused.            Clearly, Seymour's report  of suspected abuse falls  squarely            within  the meaning of "a report pursuant to this chapter" as            defined by N.H. Rev. Stat. Ann.    169-C:31.  See Petition of                                                          ___ ___________            Bagley, 128  N.H. 275, 280, 513 A.2d 331 (1986) (interpreting            ______            provisions  of  the  N.H.   Child  Protection  Act).    While            appellants contend that the  Abuse and Neglect Petition would            not have been filed but for the allegedly negligent manner in            which Seymour  conducted the counseling sessions,  we find no            support in New Hampshire law, nor was any cited, for removing            the immunity protection of N.H. Rev. Stat. Ann.   169-C:31 if            the   report  is  the  product  of  negligently  administered                                         -20-            psychotherapy.  See State  v. Howland, 125 N.H.  497, 500-02,                            ___ _____     _______            484  A.2d  1076,  1077-78  (1984) (discussing  the  scope  of            statutory immunity under N.H. Rev. Stat. Ann.   169-C:31).                                         III.                                         III.                      For  the   reasons  stated  above,  we  affirm  the            district court's  dismissal of appellants'  complaint against            appellees Seymour and Smith.                      Affirmed.  Costs to appellees.                      _________  __________________                                         -21-
