Billado v. Appel

Billado v. Appel  (94-631); 165 Vt 482; 687 A.2d 84

[Opinion Filed 11-Oct-1996]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-631


Jeffrey Billado, et al.                           Supreme Court

                                                  On Appeal from
    v.                                            Franklin Superior Court

Janis Appel, et al.                               October Term, 1995


Linda Levitt, J.

       Robert K. Andres, Burlington, and Gordon Nicholson (On the Brief),
  Highgate Springs, for plaintiffs-appellants

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O.
  Duane, Assistant Attorney General, Waterbury, for defendants-appellees


PRESENT:  Gibson, Dooley and Johnson, JJ., and Burgess, D.J.,
          Specially Assigned (FN1)



       DOOLEY, J.   Plaintiffs Jeffrey Billado and his minor children brought
  this tort and civil rights action against Vermont Department of Social and
  Rehabilitation Services (SRS) workers Janis Appel, Kelly Keefer Woodward,
  and Janet Dunigan, claiming that their actions with respect to the children
  caused plaintiffs' injuries.  Summary judgment for defendants was granted
  by the Franklin Superior Court based on a finding that each was immune from
  suit with respect to the actions alleged.  Plaintiffs have appealed this
  decision with respect to their civil rights claims, brought under 42 U.S.C.
  § 1983.  We affirm.

       The facts are derived from the complaint and the affidavits and
  documents submitted in connection with the motion for summary judgment. 
  Most of the facts are undisputed.

       Jeff and Melanie Billado were married on February 25, 1984.  They had
  three children, Brandi, Courtney, and Jeffrey, Jr., between 1984 and 1987. 
  The marriage was unstable, with recurring domestic violence, and the
  parties separated on many occasions for short periods of

 

  time.  In August 1989, Melanie permanently moved out of Jeff's home to move
  in with her boyfriend, Joe Vincelette, taking the three children with her;
  she eventually went to Florida. In September, she reported to Florida
  authorities and to SRS that her husband had sexually abused the children.

       Melanie's actions resulted in both parents filing abuse prevention
  petitions on September 7, 1989.  At one point, temporary custody of the
  children was awarded to Melanie, and at another point it was awarded to
  Jeff.  Jeff also filed for divorce.  A hearing was held on September 27th,
  resulting in an order that "children are placed in the protective custody
  of SRS to determine proper placement."  There is no indication that SRS was
  a party to the abuse prevention proceedings or sought this order. 
  Apparently, SRS took custody of the children pursuant to the abuse
  prevention order.

       Meanwhile defendant Woodward investigated the charge that Jeff had
  sexually abused the children, and after interviewing Melanie, Jeff and the
  children, concluded that the charge was substantiated with respect to
  Brandi.  To the extent it can be determined from the documents, the
  conclusion is based primarily on a statement of Brandi.  Woodward was also
  concerned about the presence of Vincelette in Melanie's home because
  earlier in the year he had been convicted of committing a lewd act on the
  body of a fourteen-year-old child who was residing temporarily with him. 
  On Woodward's request and based on her affidavit, the Franklin County
  States Attorney brought a CHINS petition with respect to the children and
  sought and obtained an ex parte detention order on September 29, 1989, two
  days after the abuse prevention order.  The children were placed in foster
  care.

       In November 1989, the CHINS petition was dismissed, and another round
  of abuse prevention petitions was filed.  These resulted in a final
  relief-from-abuse order, to last for one year, that provided in pertinent
  part: (1) Melanie was to have custody of the children; (2) Jeff was to be
  given visitation rights; (3) Melanie could not allow contact between the
  children and Joe Vincelette; and (4) both Melanie and Jeff were not to
  consume alcohol or regulated drugs. While this order was in effect, Jeff
  complained on several occasions to SRS that Melanie was

 

  allowing contact between the children and Vincelette and was consuming
  alcohol.  An SRS worker, who is not a defendant in this action, wrote to
  the Franklin Family Court in February 1990 that she had observed Vincelette
  at Melanie's home.  In March, Jeff brought a contempt motion and sought an
  order giving him custody of the children.  Defendants Dunigan and Appel
  appeared in court with Melanie, and Melanie's lawyer argued that SRS
  supported the presence of Vincelette in the home.

       Melanie's situation deteriorated, and on May 11, 1990 she was taken to
  a detox center for alcohol abuse.  By June, it became clear that she could
  not continue to care for her children. At the contempt hearing, the court
  gave Melanie the option of giving SRS custody of the children or granting
  custody to Jeff.  Melanie agreed to place the children in the custody of
  SRS under a voluntary care agreement.  The children were placed by SRS with
  foster parents.  The court order, issued June 5, 1990, allowed Jeff
  visitation at the foster home, prohibited contact between the children and
  Vincelette, and required Melanie to attend Alcoholics Anonymous meetings.

       The court also ordered a family evaluation, and it was performed in
  July and August by Champlain Valley Psychiatric Services.  Three
  professionals interviewed all the persons in or involved with the family
  and conducted home studies.  The report, filed at the end of August,
  disclosed that Melanie lived with Vincelette and that Brandi charged she
  had been sexually abused by Vincelette at some point in the past.  The
  allegation of sexual abuse by Vincelette was communicated to SRS in July
  and investigated by Woodward.  She interviewed Vincelette, Brandi,
  Courtney, Jeff, Melanie, the foster parents, Melanie's aunt, and the doctor
  who had heard the charge in her interview with Brandi.  Woodward determined
  that the charge was not substantiated.

       On learning in July that Vincelette was present when the children
  visited Melanie from the foster home, defendant Appel directed that all
  visitation by Melanie be supervised to ensure Vincelette was not present. 
  Apparently, that direction was carried out.

       Melanie provided defendant Appel a copy of the Champlain Valley
  Psychiatric Services

 

  report when it was issued.  The June order was continued on August 31, with
  a direction that the voluntary care agreement continue to October 5th. 
  Visitation for Melanie was provided "subject to the supervision and/or
  approval of SRS."    Melanie again was ordered not to permit contact
  between Vincelette and the children.

       On the expiration of the voluntary care agreement, with Melanie
  demanding that the children be returned to her, the Franklin County States
  Attorney filed another CHINS petition and obtained an emergency detention
  order to keep the children in foster care.  The supporting affidavit from
  defendant Dunigan itemized the history, including the concern about the
  presence of Vincelette in Melanie's home, and sought continued SRS custody
  to prevent sole custody going to either parent.  On October 29th, the
  petition was dismissed and the detention ended.

       Dueling abuse prevention orders again ensued.  Under one order, Jeff
  was given custody on October 29th.  Four hours later a different judge
  issued another order giving custody to Melanie.  On November 7, 1990, after
  hearing, the family court temporarily awarded custody to Melanie, with
  weekend visitation by Jeff, and again ordered no contact with Vincelette. 
  In July 1991, the order was amended to grant custody to Jeff.  The final
  divorce order, issued in December 1991, granted custody to Jeff.

       On May 5, 1992, Jeff, on behalf of himself and the children as their
  next friend, brought this action against defendants Woodward, Appel and
  Dunigan.  The complaint has forty-one counts and alleges defendants
  committed torts and violated 42 U.S.C. § 1983, as discussed below.  It was
  brought against defendants in their individual and official capacities.  On
  motion of defendants, the court dismissed the § 1983 counts against
  defendants in their official capacities.  That order has not been appealed. 
  Other motions to dismiss were denied.  On June 14, 1993, plaintiff filed an
  amended complaint that provided that most of the actions were taken by
  defendants along with the State of Vermont.  The State was not named as a
  party.  In January of 1994, defendants filed a motion for summary judgment
  primarily on the ground that defendants were immune from suit against the
  actions itemized in the complaint.  The superior court granted the motion
  with respect to all counts on September 16, 1994.  This appeal involves

 

  only the counts alleging that defendants violated the Civil Rights Act, 42
  U.S.C. § 1983.

       At the outset, we restate the familiar standard for review of a
  summary judgment decision.  Summary judgment should be granted when, taking
  all allegations by the nonmoving party as true, there are no genuine issues
  of material fact and the movant is entitled to judgment as a matter of law. 
  Madden v. Omega Optical, Inc., 7 Vt. L.W. 187, 187 (July 12, 1996). This
  court applies the same standard as the trial court.  Id.  As discussed
  below, the issue before us is one of law, and none of the parties contend
  that it was inappropriate to resolve it on summary judgment.

       Plaintiffs' position is that, absent immunity, their allegations made
  out a case for liability under § 1983; that absolute immunity does not
  apply; and that the elements of qualified immunity are not present. 
  Plaintiffs also argue that they should have been allowed to engage in
  discovery before responding to the motion for summary judgment.  Defendants
  contest whether plaintiffs' allegations would, if proven, establish
  liability under § 1983; argue that absolute immunity applies to some of
  defendants' alleged actions; and further argue that if qualified immunity
  applies, it covers all of defendants' alleged actions.  As they did below,
  defendants resist any discovery before the immunity issue is decided.

       A brief review of immunity law in § 1983 cases is helpful to put these
  arguments in context, before we address the specific allegations of
  plaintiffs' complaint.  Immunity is a defense to § 1983 actions for damages
  against persons in their individual capacity.  Those acting in a
  legislative, judicial or prosecutorial capacity are absolutely immune,
  irrespective of whether they act in good faith.  See generally 2 S. Nahmod,
  Civil Rights and Civil Liberties Litigation § 7.01 (3d ed. 1991).  Other
  public officials and employees have qualified immunity that protects them
  if they act in good faith.  Under the objective test of good faith adopted
  by the Supreme Court, government officials performing discretionary
  functions are immune "insofar as their conduct does not violate clearly
  established statutory or constitutional rights of which a reasonable person
  would have known."  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
  Qualified immunity protects "all but the plainly incompetent or those who
  knowingly violate the

 

  law."  Malley v. Briggs, 475 U.S. 335, 341 (1986).

       Defendants assert that some of the actions alleged to have violated
  plaintiffs' rights are prosecutorial or judicial in nature and absolute
  immunity applies to those actions.  There is a split of authority on
  whether child welfare workers perform functions akin to prosecutors and on
  the larger question of whether the protection of children against abuse is
  so important that absolute immunity is required for those who do it. 
  Compare Robison v. Via, 821 F.2d 913, 918-20 (2d Cir. 1987) (official
  conducting child abuse investigation and removing child from parents is
  protected only by qualified immunity) with Meyers v. Contra Costa County
  Dep't of Social Servs., 812 F.2d 1154, 1157 (9th Cir. 1987) (child
  protection worker who initiates and pursues child dependency proceeding is
  entitled to absolute immunity).  Because we hold that qualified immunity is
  sufficient to cover defendants' actions, we decline to reach the question
  of whether absolute immunity should apply.

       In order to determine whether defendants' conduct has violated a
  clearly established right of plaintiffs, we must know what that right is. 
  Moreover, the definition of the right must be specific to the
  circumstances, and "sufficiently clear that a reasonable official would
  understand that what he is doing violates that right."  Anderson v.
  Creighton, 483 U.S. 635, 640 (1987). In order to complete this analytical
  step, a number of courts have required civil rights plaintiffs to plead
  with particularity the constitutional right alleged to have been violated. 
  See Frazier v. Bailey, 957 F.2d 920, 929 (1st Cir. 1992); Stem v. Ahearn,
  908 F.2d 1, 6 (5th Cir. 1990).

       Although we have attempted to discern what rights plaintiffs believe
  were violated, we emphasize that the complaint here fails all but the most
  liberal of pleading tests.  The complaint allegations involving § 1983
  stated as follows for each defendant:

     During the period from . . . until . . ., defendant [. . .]'s conduct
     deprived Plaintiffs directly and indirectly, of equal protection
     under the law and due process under the laws and for the purpose
     of preventing and hindering Plaintiff's constitutional rights in
     violation of 42 U.S.C. Section 1983.

     The wrongful actions of defendant . . . were made under color of
     the statutes, ordinances, regulations, customs and usages of the
     State of Vermont and has subjected the Plaintiffs to the deprivation



      of rights, privileges and immunities secured by the Constitution
      and Laws of the United States of America, including but not
      limited to the First, Fourth, Fifth, Ninth, Tenth and Fourteenth
      Amendments to the United States Constitution, all contrary to 42
      U.S.C. Section 1983.

  These counts incorporate by reference all the other counts of a long,
  scattergun complaint, apparently on the theory that we will figure out how
  and when defendants' tortious conduct is also unconstitutional.(FN2)

       Ordinarily, we might require plaintiffs to specify their specific
  constitutional theories, and how they were so clearly established that
  defendants must be charged with knowledge of them, but six years have
  already elapsed since many of the events occurred, and finality is
  important.  We also doubt that much specificity can or will be provided. 
  Thus, we are left with muddling through a long, free-swinging and vague
  complaint to understand, as best we can, what constitutional rights might
  be involved and whether defendants should have been aware of these rights. 
  We do not find this process an adequate substitute for informed, skilled
  and vigorous legal advocacy.

       The complaint, and the legal rights involved, can best be analyzed by
  grouping counts by the nature of the asserted wrongs.

                                I.

          Defendants Accuse Jeffrey Billado of Sexually Abusing Brandi

       In counts I through III, plaintiff Jeffrey Billado complains that
  defendant Woodward failed to conduct a reasonable investigation of the
  allegation that he had sexually abused his children, reported that he had
  sexually abused and physically abused his children and ignored all evidence
  to the contrary.  In counts XXII through XXIV, plaintiff alleges that
  defendant Dunigan filed a petition with the Franklin Family Court alleging
  he abused his daughter Brandi and his son Jeffrey, even though she knew
  that the allegations had "previously been adjudicated

 

  unfavorably to SRS."  Thus, she "knew that her affidavit and the requested
  petition was without merit."  Apparently, plaintiffs allege that
  defendants' actions interfere with their constitutional right of family
  integrity.

       Numerous courts have considered Civil Rights Act claims arising out of
  actions by state and local child welfare workers in investigating bona fide
  complaints of child abuse, particularly child sexual abuse, and moving
  through proper court proceedings to protect children, often by taking
  custody of them to prevent further abuse.  Almost without exception, courts
  have found such actions to be protected by qualified immunity because there
  is no controlling constitutional right of family integrity or because the
  right is so amorphous and conditional that no worker could know that his or
  her actions were in violation of the right.  See Doe v. Louisiana, 2 F.3d 1412, 1416-18 (5th Cir. 1993); Frazier v. Bailey, 957 F.2d  at 931; Van
  Emrik v. Chemung County Dep't of Social Servs., 911 F.2d 863, 866 (2d Cir.
  1990); Baker v. Racansky, 887 F.2d 183, 187-90 (9th Cir. 1989); Lux v.
  Hansen, 886 F.2d 1064, 1067 (8th Cir. 1989); Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir. 1988).  We adopted a similar rule of qualified
  immunity from state tort claims in Murray v. White, 155 Vt. 621, 632, 587 A.2d 975, 981 (1991) (law surrounding child sexual abuse investigations is
  not "so clearly established that defendant reasonably should have known
  that her acts violated plaintiff's rights").  We agree with the analysis
  from the above federal cases.

       Plaintiffs attempt to distinguish this case, in part, by arguing that
  defendants violated certain SRS regulations governing the processing of
  child abuse complaints.  For purposes of Civil Rights Act liability, this
  is a distinction without a relevant difference.  The Act enforces federal
  law, not state law.  Violations of state laws or regulations do not state a
  claim under § 1983.  See Ebmeier v. Stump, 70 F.3d 1012, 1013 (8th Cir.
  1995) ("Section 1983 guards and vindicates federal rights alone"); Doe v.
  Connecticut Dep't of Child and Youth Servs., 911 F.2d 868, 869 (2d Cir.
  1990) (allegation that defendant social worker violated state law in
  conducting child abuse investigation "is irrelevant").

       To the extent that plaintiffs allege that defendants had improper
  motives in investigating

 

  the allegations that Jeff abused his children and reporting the findings,
  the summary judgment record does not support these allegations.  On
  receiving the complaint of abuse from Melanie, Woodward interviewed all the
  relevant persons, including the children.  Brandi said her father sexually
  abused her, and Jeffrey, Jr. said his father physically abused him. 
  Woodward was free to believe these statements over Jeff's denials. 
  Plaintiffs have no constitutional right to ensure that defendant correctly
  exercises her discretion at all times.  See Napolitano v. Flynn, 949 F.2d 617, 623 (2d Cir. 1991).

       The allegations against Dunigan apparently relate to her affidavit in
  support of an emergency detention order in October 1990 after the voluntary
  care agreement had expired. That affidavit reports the results of
  Woodward's 1989 interviews and that the report that Jeff had sexually
  abused Brandi had been substantiated by SRS.  Contrary to the complaint
  allegation, there never had been an adjudication that Jeff had not sexually
  abused Brandi, and there was no reason not to report that history in
  support of the request to retain the children in foster care rather than
  returning them to the custody of either parent.

                                II.

        Defendants Encouraged Contact Between Vincelette and the Children
                As a Result, Vincelette Sexually Abused Brandi

       In counts IV through VI, plaintiff Jeffrey Billado complains that
  defendant Woodward failed to investigate and report sexual abuse of his
  minor children by Joseph Vincelette.  In counts VII through IX, plaintiff
  Brandi Billado, through Jeffrey Billado, complains that defendant Woodward
  failed to investigate her complaint of sexual abuse by Vincelette.  Counts
  X through XXI are based on the allegation that defendant Appel encouraged
  Melanie Billado to reside with Joseph Vincelette and allowed contact
  between him and the children.  This contact is alleged to have resulted in
  extreme mental anguish and acute mental distress for Jeffrey, Jeffrey, Jr.,
  and Courtney Billado.  With respect to Brandi Billado, the complaint
  alleges that Vincelette sexually abused her as a direct result of
  defendants' conduct.

       These counts share with those above the allegation that the
  investigation of a sexual abuse

 

  complaint was inadequate, although with a different result.  Here, the
  result was lack of substantiation of abuse, whereas the result with respect
  to Jeffrey was allegedly an improper accusation of sexual abuse.  To the
  extent the asserted wrong was failure to investigate properly a report of
  sexual abuse, we conclude that qualified immunity protected defendant
  Woodward's actions.  Plaintiffs had no constitutional right to a proper
  investigation or any right involved was so amorphous or conditional that
  defendant could not have known that her actions were in violation of
  plaintiffs' constitutional right.  In reaching this conclusion, we
  emphasize that there is no allegation that, as a result of Woodward's
  failure to investigate properly, Brandi was a victim of continuing sexual
  abuse.

       Plaintiffs argue for the first time in this Court that although
  Woodward may be immune from damages on a family integrity theory, she is
  not immune from a claim that she denied plaintiffs access to the juvenile
  court, in violation of their due process rights.(FN3)  This claim is based on
  the decision of the Fifth Circuit Court of Appeals in Chrissy F. v.
  Mississippi Department of Public Welfare, 925 F.2d 844, (5th Cir. 1991). 
  Because this theory is more clearly raised with respect to defendant Appel,
  we consider it below.

       The remainder of the allegations in these counts charge that defendant
  Appel failed to protect the children, and Brandi in particular, by allowing
  and encouraging contact between them and a known sexual abuser.  Defendant
  argues that pursuant to the decision of the United States Supreme Court in
  DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189
  (1989), her actions were protected by qualified immunity because there was
  no clear constitutional right to the protection plaintiffs allege was
  absent.

       DeShaney involved a failure of county social workers to investigate
  and take action on continuous reports that a father physically abused his
  four-year-old child.  In the last incident, the father beat the child so
  severely that the child fell into a life-threatening coma and suffered

 

  severe brain damage.  The child sued the workers claiming they had a
  constitutional duty to render assistance.

       The Supreme Court dismissed the suit holding that a State's failure to
  protect an individual against private violence does not violate the due
  process clause of the Fourteenth Amendment.  Id. at 197.  The Court further
  held that the general rule was not modified by the State's knowledge of the
  individual's circumstances or by expressions of intent to help.  Id. at
  200.  For example, the Court held that the fact that the State once took
  temporary custody of the plaintiff, in response to an earlier report of
  abuse, does not impose constitutional liability on the State or its workers
  after they returned the child to the father.  Id. at 201.

       The Court distinguished situations where the State has created or
  assumed a special relationship with the injured individual.  Such
  circumstances arise only where "the State takes a person into its custody
  and holds him there against his will," because the State has rendered the
  person unable to care for himself.  Id. at 199-200.

       Although defendant Appel argues that DeShaney holds that no
  constitutional right is violated by her alleged conduct, the real issue
  before us is whether defendant is charged with violating a clearly
  established constitutional right of which a reasonable person would have
  notice.  DeShaney was decided February 22, 1989, shortly before Melanie
  moved out of her home with Jeff, which triggered the action and inaction on
  which the complaint is based. Unless a later controlling precedent created
  the clearly established constitutional right we must find to overcome
  qualified immunity, we must use the DeShaney standard.  We find no such
  later controlling precedent in the short period between DeShaney and
  defendant's acts.

       In applying DeShaney, we have looked carefully at plaintiffs'
  allegations.  Although the complaint broadly charges that between September
  1989 and June 1991 defendant encouraged and allowed contact between
  Vincelette and the children and this conduct led to Vincelette's sexual
  abuse of Brandi, the allegations are narrowed in plaintiffs' arguments to
  this Court. Plaintiffs' arguments make clear that the alleged abuse,
  reports of abuse, and encouragement of contact occurred when SRS did not
  have custody of the children between November 1989 and

 

  June 1990.  Thus, plaintiffs describe the claim in their brief:

     The Defendants had custody, then returned the children to their
     mother, at a time [when] the mother was living with Mr.
     Vincelette, someone SRS knew to be an abuser.  The Defendants
     later received reports of abuse by Mr. Billado and failed to remove
     the children.

  Their argument, stressed repeatedly, is that defendants knew Melanie, and
  therefore the children, were living with Vincelette, the contact between
  Vincelette and the children was in direct violation of the abuse prevention
  order, defendants failed to enforce the abuse prevention order or inform
  the court of the violation, defendants failed to protect the children from
  Vincelette, and the sexual abuse of Brandi resulted.  There is no statement
  in the complaint, or any of the papers submitted to this Court or the
  superior court, that the children were in SRS custody when the abuse by
  Vincelette allegedly occurred.

       This factual narrowing is important because a number of post-DeShaney
  decisions have found clearly established constitutional rights to be
  involved where children in the custody of a state or local social services
  agency are abused, particularly if the abuse is perpetrated by foster
  parents.  See Norfleet v. Arkansas Dep't of Human Servs., 989 F.2d 289,
  292-93 (8th Cir. 1993); Yvonne L. v. New Mexico Dep't of Human Servs., 959 F.2d 883, 893 (10th Cir. 1992); K.H. v. Morgan, 914 F.2d 846, 853-54 (7th
  Cir. 1990).  But see Camp v. Gregory, 67 F.3d 1286, 1298 (7th Cir. 1995)
  (although state child protection agency was guardian of juvenile, child
  protection worker was entitled to qualified immunity when juvenile was
  killed because juvenile was placed with a relative and theory of liability
  was inadequate supervision and intervention, not abuse by caretaker).  This
  is not such a case.

       We see no significant difference between this case and DeShaney such
  that a clearly established constitutional right was involved here.  Relying
  primarily on pre-DeShaney cases, plaintiffs argue that there was a special
  relationship between SRS and the children based on the fact that SRS did
  have custody during the fall of 1989.  The Court specifically rejected such
  a special relationship theory in DeShaney on similar facts, involving prior
  social services intervention and some monitoring of the family situation.

 

       Nor do we find the situation different because of the outstanding
  abuse prevention order prohibiting contact between Vincelette and the
  children.  The order was issued in a private proceeding between Melanie and
  Jeff, and SRS workers have no obligation to enforce the terms of that
  private order.  To the extent there is a public responsibility to enforce
  such orders, it lies by statute with prosecutors and law enforcement
  officers, including state and local police and sheriffs.  See 13 V.S.A. §
  1030 (commission of act prohibited by abuse prevention order is a crime);
  15 V.S.A. §§ 1107, 1108.  Defendant is not a prosecutor or law enforcement
  officer.

       As noted above, plaintiffs rely on a new theory of liability in this
  Court: that defendant Appel prevented plaintiffs' access to the juvenile
  court by failing to act on their abuse complaints in violation of their
  right to due process of law.  They find this theory in Chrissy F. v.
  Mississippi Department of Public Welfare, 925 F.2d 844, 852 (5th Cir.
  1991), where the court concluded that qualified immunity did not cover the
  actions of defendant social workers.  We agree that, broadly read, the
  initial decision in Chrissy F. appears to accept plaintiffs' theory and
  hold that the constitutional right involved -- i.e., access to the courts
  -- is so clearly accepted that qualified immunity does not apply.  The
  court held that the defendants' alleged actions of failing to investigate
  the plaintiff child's complaints of abuse and reporting them to the
  Mississippi Youth Court, as required by Mississippi statute, made out a
  constitutional claim of violation of meaningful access to the court.  925 F.2d  at 851.  The court further held that the right was clearly
  established, and qualified immunity did not apply.  Id. at 852.  Plaintiffs
  argue that Chrissy F. means that whenever child protection workers fail to
  do an adequate investigation of an abuse claim and, as a result, fail to
  file a CHINS petition to protect the child, they are liable for violating
  the child's right of access to the juvenile court and any resulting
  damages.

       This broad reading of Chrissy F. is belied by later actions in the
  same case.  On remand, the District Court held against the plaintiff on the
  access theory, with the following analysis:

     Consistent with [the DeShaney] . . . reading of the due
     process clause, the Court concludes that state actors have no
     general duty to affirmatively aid individuals in securing their
     fundamental right of access to courts.  While a state certainly may
     not act to impede an individuals [sic] exercise of this fundamental


 

     right, this Court can find no precedent in right of access cases or
     in due process analysis generally which suggests that state actors
     must affirmatively act to secure an individual's rights as
     guaranteed under the fourteenth amendment.  Accordingly, the
     Court concludes that, as to those claims asserting a deprivation of
     the right of access to courts based upon the failure of certain of the
     Defendants to take affirmative action on behalf of Chrissy,
     Plaintiff has failed to establish a right of recovery on that basis.

  Chrissy F. v. Mississippi Dep't of Pub. Welfare, 780 F. Supp. 1104, 1125
  (S.D. Miss. 1991). This holding was affirmed on appeal by the Fifth Circuit
  Court of Appeals.  Chrissy F. v. Mississippi Dep't of Pub. Welfare, 995 F.2d 595, 600 (5th Cir. 1993).

       We need not decide whether we would follow Chrissy F.(FN4)  The only
  violation of access to the courts plaintiffs allege is the failure to bring
  a CHINS petition to separate Vincelette from the children.  Plaintiffs have
  no constitutional right to insist that defendants intervene and provide
  that access by filing a CHINS petition.

                               III.

                     Defendants Seized the Children

       Counts XXV through XXVII accuse defendant Dunigan of abusing her
  authority as an SRS worker to prevent plaintiff Jeffrey Billado from
  obtaining custody of his children.  The time period alleged is June 1990
  through November 1991.  Counts XXVIII through XXX add that in that period
  defendant Dunigan "arrested, seized and took into custody the minor
  children . . . ."  Counts XXXII through XXXIV state that in November 1991
  defendants Dunigan and Appel seized the minor children, who are plaintiffs
  on these claims, and falsely imprisoned them.

 


       The allegations of the complaint are difficult to reconcile with the
  undisputed facts.(FN5)  We infer that all these counts relate to the actions
  that occurred on October 29, 1990, after the second CHINS petition was
  dismissed.  Plaintiffs' version of the events of that day are contained in
  an affidavit of Jeffrey Billado submitted in response to defendants' motion
  for summary judgment:

     In September 1990 the protection service order was concluded.  I
     obtained a relief from abuse order again granting me custody to
     the children.  I went to the foster home with a sheriff.  The foster
     parents informed us that Melanie and the SRS worker had already
     picked up the children.

     We found Melanie's trailer in St. Albans and when the sheriff was
     serving Melanie with the relief from abuse order, Melanie told the
     sheriff she wasn't going to let me take my children and that she
     was calling SRS.  A short time later Janet Dunigan and Kelly
     [Woodward] arrived.

     . . . .

     Janet Dunigan and Kelly [Woodward] put the kids and Melanie in
     their car and drove to the State Police Barracks.  The sheriff drove
     me to the State Police Barracks where I was served with a
     temporary relief from abuse order giving Melanie custody of the
     children.

       Not surprisingly, defendants' versions are quite different.  Defendant
  Woodward, in her affidavit, denies having any involvement in the events of
  October 29th.  Defendant Dunigan, in her affidavit, states that (1) she
  accompanied Melanie to the foster home on October 29th and drove Melanie
  and the children to Melanie's home, (2) she saw no sheriff or law
  enforcement officer at Melanie's home, and (3) she left Melanie's home and
  thereafter was called to the state police barracks where Melanie and the
  children were present with an advocate to prepare a relief-from-abuse
  petition.  An affidavit of Melanie supports the statements of Dunigan and

 

  Woodward.

       It is not our place to resolve the factual disputes on summary
  judgment.  However, plaintiffs' arguments have not clarified what
  constitutional rights are alleged to have been violated by defendants'
  actions.  At most, plaintiffs have alleged that defendants improperly aided
  Melanie to defeat one abuse prevention order and obtain an inconsistent
  order in her favor, all subject to a full hearing the next day to resolve
  the custody dispute.  We cannot see how the facts, even as alleged by
  plaintiffs, make out an "arrest" or "seizure" of the children since they
  were at all times in the custody of Melanie.

       Even where child protection workers have intervened to take temporary
  custody of children without court order, most courts have held that their
  actions are protected by qualified immunity.  We find this case closer to
  Stem v. Ahearn, 908 F.2d 1 (5th Cir. 1990), where child protection workers
  investigated a mother's allegation that the father had sexually abused
  their minor children, found that such abuse had occurred, and helped the
  mother obtain custody in a proceeding between the parents.  In holding that
  the workers' actions violated no clearly established rights of the father,
  the court reasoned:

     [Plaintiff] ignores the fact that his parental rights were impinged
     only after a judicial hearing at which he was fully heard.  [The
     workers] never physically removed [plaintiff's] child from him or
     otherwise altered his parental rights under the law, although [one
     worker] did testify in court concerning his investigatory
     conclusions and did advise the mother to keep the daughter away
     from the plaintiff.  However, offering adverse judicial testimony
     at a child-custody hearing does not implicate due process concerns
     and, further, it constitutes witness testimony that is absolutely
     immune from section 1983 liability.

  Id. at 6.  Even under plaintiffs' version of the facts, defendants' actions
  were similar to those in Stem.  Having concluded that Jeffrey Billado had
  sexually abused Brandi, and Vincelette had not, defendants aided Melanie in
  retaining custody through an abuse prevention order issued by a family
  court judge.  The purpose and effect was to bring the matter before the
  family court for a contested hearing, which occurred the next day.  We see
  no clearly established constitutional right that was violated by
  defendants' actions.

 


                                     IV.

  Defendant Invaded Plaintiffs' Privacy by Using a Private Family Evaluation

       Count XXXI alleges that defendant Dunigan violated plaintiffs' right
  to privacy by obtaining and disseminating the private evaluation prepared
  by Champlain Valley Psychiatric Services although she had been denied
  access to the report by Jeffrey Billado.  Jeff's affidavit stated that
  defendant asked him for a copy of the report and a release and he refused.
  Thereafter, defendant used information from the report in her affidavit in
  support of the 1990 CHINS petition.  The affidavit contained
  misrepresentations about the report.

       Defendant's affidavit in support of summary judgment indicates she
  obtained the report from Melanie, and this is supported by Melanie's
  affidavit.  Defendant's affidavit that accompanied the CHINS petition noted
  the completion of the report and itemized Melanie's deficiencies,
  emphasizing the "great concern" of the report authors that Melanie
  disregarded the requirement prohibiting contact between the children and
  Vincelette and intended to continue to disregard it.  The affidavit stated
  that SRS was continuing to investigate a charge that Vincelette had
  sexually assaulted Brandi.  With respect to Jeff, it said that the report
  found "a psychological profile of a somewhat suspicious and guarded
  individual who can be overly hostile, resentful and argumentative, and
  tends to project blame onto others for his personal problems."  It
  concluded that the report authors "had reservations about both parents in
  regard to sole custody of the children."

       Apparently, plaintiffs rely on some amorphous constitutional right to
  privacy as the basis for their § 1983 claim.  They have failed to define it
  in any of their filings, and we find it too general to allow realistic
  analysis.  See Hodge v. Jones, 31 F.3d 157, 167 (4th Cir. 1994). Moreover,
  we fail to see why Melanie's release of the report, even if it was
  otherwise confidential and privileged, did not give defendant the right to
  rely on it in a confidential juvenile proceeding.  Even if plaintiffs could
  make out a constitutional violation, defendant's actions were covered by
  qualified immunity.

 

                                     V.

                      Plaintiffs Were Denied Discovery

       With respect to all counts of their complaint, plaintiffs argue that
  they were improperly disadvantaged by the failure of the superior court to
  allow discovery before ruling on the summary judgment motion.  Qualified
  immunity is an immunity from suit rather than a mere defense to liability. 
  Murray v. White, 155 Vt. at 626, 587 A.2d  at 978.  Because of this purpose,
  discovery is not generally allowed until the immunity question is resolved. 
  See Siegert v. Gilley, 500 U.S. 226, 231-32 (1991); Harlow v. Fitzgerald,
  457 U.S.  at 818.  Thus, defendants must be protected from the costs
  associated with trial and "`the burdens of broad-reaching discovery.'" 
  Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (quoting Harlow v.
  Fitzgerald, 457 U.S. at 818).  Occasionally, discovery may be necessary to
  determine whether there is a bona-fide question of whether defendant's
  conduct violated clearly established law. See Anderson v. Creighton, 483 U.S.  at 646-47 n.6; Lewis v. City of Fort Collins, 903 F.2d 752, 754 (10th
  Cir. 1990).  We do not believe this is such a case.

       We have a full record of the various documents generated in the course
  of the interaction of plaintiffs and Melanie with SRS and the legal system. 
  These documents pin down and explain the relevant events and are
  supplemented with the affidavits of the parties.  Without resolving
  disputed questions that go to the merits of the § 1983 claims or the
  damages sought by plaintiffs -- for example, whether Brandi was ever
  sexually assaulted by Joe Vincelette -- we can resolve the qualified
  immunity claims.  We see no reason why these defendants should be put
  through the burden of depositions or other discovery.  We hold the denial
  of discovery was within the discretion of the trial court.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice


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                                  Footnotes


FN1.  Burgess, D.J. sat at oral argument but did not participate in
  the decision.

FN2.  Defendants argue that we should consider only counts XXXV
  through XXXVII because these are the only counts that are denominated as
  having been brought pursuant to § 1983. These are the counts in the form
  set out in the text.  These counts have no meaning unless they are taken as
  having included the allegations in the earlier counts.

FN3.  Defendants argue that this claim should not be considered
  because it was not raised below. We agree that plaintiffs did not itemize
  the claim below, but it falls within their general allegation that they
  were denied due process of law.  We have exercised our discretion to
  consider the claim.

FN4.  We note that there are significant differences between the
  posture of this case and Chrissy F., as well as differences in the
  governing state law.  Under Vermont law, CHINS petitions must be initiated
  by the state's attorney, and a number of different agencies can refer the
  case to the state's attorney.  See 33 V.S.A. § 5517(a).  Moreover, if SRS
  fails to act, "any person who has knowledge of the facts alleged" can refer
  the matter to the state's attorney, who is required to act on it.  Id. 
  There is no indication that plaintiffs ever went to the state's attorney.

       Plaintiffs in this case were already in the family court, and had an
  order that provided for the relief they requested.  As they eventually did,
  they could request the family court to enforce the order by contempt, if
  necessary.  Thus, it is difficult to see how any action or inaction of
  defendants deprived them of access to the courts.

FN5.  For example, we can find no reference in the record to any significant
  event that occurred in November 1991, and defendants' affidavits indicate
  that they had no involvement in the case at that time.  We assume that the
  date in the complaint is a mistake, and the acts were alleged to have
  occurred in October 1990.  Even this assumption does not clear up the
  mystery.  The complaint alleges the children were seized by defendants
  Dunigan and Appel.  The affidavit of Jeffrey Billado states that defendants
  Woodward and Dunigan placed the children and Melanie in their care and
  drove to the state police barracks.  All defendants deny driving Melanie
  and the children to the state police barracks.