15 F.3d 333 (4th Cir. 1994), 93-1656, Jordan by Jordan v. Jackson

Docket Nº:93-1656.
Citation:15 F.3d 333
Party Name:Christopher JORDAN, by his parents and next friends, Philip and Betty Sue JORDAN, individually and on behalf of all others similarly situated; Betty Sue Jordan, individually and on behalf of all others similarly situated; Philip Jordan, individually and on behalf of all others similarly situated; Sarah Jordan, by her parents and next friends, Phili
Case Date:January 31, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 333

15 F.3d 333 (4th Cir. 1994)

Christopher JORDAN, by his parents and next friends, Philip

and Betty Sue JORDAN, individually and on behalf of all

others similarly situated; Betty Sue Jordan, individually

and on behalf of all others similarly situated; Philip

Jordan, individually and on behalf of all others similarly

situated; Sarah Jordan, by her parents and next friends,

Philip and Betty Sue Jordan, individually and on behalf of

all others similarly situated; Amber Jordan, by her parents

and next friends, Philip and Betty Sue Jordan, individually

and on behalf of all others similarly situated, Plaintiff-Appellants,

v.

Larry D. JACKSON, in his official capacity as Commissioner

of the Virginia Department of Social Services; Rita L.

Katzman, in her official capacity as Manager of the Child

Protective Services Program of the Virginia Department of

Social Services; Prince William County; Prince William

County Department of Social Services, Defendants-Appellees.

No. 93-1656.

United States Court of Appeals, Fourth Circuit

January 31, 1994

Argued Oct. 26, 1993.

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[Copyrighted Material Omitted]

Page 335

ARGUED: Stephen Winston Bricker, Stephen W. Bricker & Associates, P.C., Richmond, VA, for Appellants. Donald G. Powers, Office of the Attorney General of Virginia, Verona, VA; Sharon E. Pandak, County Atty., County Attorney's Office, Prince William, VA, for Appellees.

ON BRIEF: Victor M. Glasberg, Jeanne Goldberg, Victor Glasberg & Associates, Alexandria, VA; Stephen B. Pershing, Legal Director, American Civil Liberties Union Foundation of Virginia, Richmond, VA, for Appellants. Jane D. Hickey, Craig M. Burshem, Office of the Attorney General of Virginia, Richmond, VA, for Appellees.

Before WILKINSON and LUTTIG, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.

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OPINION

LUTTIG, Circuit Judge:

We address in this appeal the awesome and, regrettably, sometimes necessary, power of the state to take custody of children from their parents in order to protect the children from irreparable injury or death. We confront herein allegations against the state in connection with its exercise of that power that, if true, are disturbing, and that we hope are exceptional. As always, however, our only responsibility is to interpret the law. Confining ourselves to that charge, we conclude that the state statute challenged by appellants, pursuant to which judicial review of the child's removal from his home was delayed, is constitutional both facially and as applied in the circumstances of this case. For reasons set forth below, though, we believe that appellants have adequately pleaded a separate claim against the appellees under 42 U.S.C. Sec. 1983 for violation of their constitutional rights as a consequence of the initial removal of their child from his home by state authorities. We therefore remand the case for such further proceedings on that claim as may be necessary.

I.

The facts alleged in the Jordans' amended complaint, which we accept as true, see, e.g., Berkovitz v. United States, 486 U.S. 531, 540, 108 S.Ct. 1954, 1960-61, 100 L.Ed.2d 531 (1988), are as follows. Philip and Betty Sue Jordan both worked fulltime. Their young daughters, ages three and six, were with babysitters or in day care when not in school. Their ten year-old son, Christopher, however, took care of himself after school on weekdays, usually for about an hour and a half, until his parents returned home from work. Christopher had enrolled in and completed a program offered at his school called "Strong Families: Competent Kids" designed to train children to care for themselves for short periods. Christopher also had been instructed by his parents in how to care for himself. His parents required him, upon arriving home from school, to call one of them. He frequently called both of them.

On Thursday, January 31, 1991, someone informed the Prince William County Department of Social Services (DSS) that Christopher was home alone, both before and after school, and was fighting with other children at the bus stop. The DSS assigned the case to Judy Jordan (no relation to appellants). The next afternoon, on Friday, February 1, without having contacted Christopher's parents or otherwise sought information about Christopher from them, Jordan approached Christopher as he walked home from the school bus stop and attempted to question him. Christopher, frightened at being approached and addressed by a stranger, ran from Jordan and tried to hide. Jordan then seized Christopher under the authority of Virginia Code Sec. 63.1-248.9, 1 which provides

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for the assumption of custody of children in imminent danger, and took him to foster care. Jordan left a hand-written note on appellants' door advising them that Christopher would be in foster care for at least three days. Christopher's father was expected home from work approximately thirty minutes later.

Upon arriving home and finding their son missing, the Jordans called the local police, fearing Christopher had been kidnapped. The police confirmed that Christopher had been taken into foster care and informed the Jordans that under no circumstances would they be allowed to contact their son until Monday. On Monday, the DSS returned Christopher to his parents.

The Jordans--Christopher, his parents, and his two sisters--then brought this action under 42 U.S.C. Sec. 1983 against Prince William County, the County DSS, the Commissioner of the Virginia DSS, and the Manager of the Virginia Child Protective Services Program. For reasons that do not appear in the record, they did not name as a defendant Judy Jordan, the DSS worker who had removed Christopher. The Jordans advanced three claims. The first was that the initial removal of Christopher by the DSS violated their federal constitutional rights as well as Virginia law, since Christopher had never been in imminent danger of irremediable harm. The second and third were due process and equal protection challenges to the constitutionality of the statutory provisions allowing a delay of several days before obtaining judicial review of the emergency removal of a child by the state. The district court dismissed all of the Jordans' claims under Fed.R.Civ.P. 12(b)(6), and this appeal followed.

II.

The Jordans first claim that the initial removal of Christopher by the DSS violated the Fourteenth Amendment, as well as Virginia Code Sec. 63.1-248.9. Their complaint alleges that since Christopher had never been in imminent danger--indeed any danger at all--his summary removal violated the guarantees of due process by unjustifiably interfering with the integrity and privacy of their family. They further allege that the named defendants caused this deprivation of their rights by maintaining various municipal policies or customs that proximately caused Christopher's allegedly unlawful removal.

The district court dismissed this cause of action for failure to state a claim, on the ground that under Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the defendants could not be liable on a theory of respondeat superior. The court stated that the only person who could be liable under section 1983 if the seizure had been unconstitutional was the individual DSS worker, whom plaintiffs did not name as a defendant. J.A. at 78.

Appellees defend the district court's dismissal on the grounds that the Jordans' complaint did not adequately allege that the County and Commonwealth caused the constitutional deprivation allegedly inflicted by the County employee. They argue in particular that the averments of the Jordans' complaint were insufficient to state a claim for municipal liability because they failed to allege multiple incidents of misconduct in support of their contentions that municipal policy proximately caused their son's allegedly unconstitutional removal. This presents us with a question of first impression in this circuit, and it is a question apparently not addressed in any other circuit either since the Supreme Court's recent decision in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, --- U.S. ----, ----, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993).

As to this question, we disagree that appellants were required to allege more than one incident of misconduct in order to withstand a motion to dismiss under Rule 12(b)(6). In Monell, the Supreme Court construed section 1983 so as to allow municipalities to be held liable for constitutional violations committed by their employees where the municipality is itself responsible for causing the constitutional deprivation. 436 U.S. at 694, 98 S.Ct. at 2037. Although, as the district court recognized, the Court rejected contentions that municipal liability can be predicated

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on the principles of respondeat superior or vicarious liability, it held that liability could attach when the "execution of the government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Id.; see also Spell v. McDaniel, 824 F.2d 1380, 1385 (4th Cir.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988); Hughes v. Halifax County School Bd., 855 F.2d 183, 185 (4th Cir.1988), cert. denied, 488 U.S. 1042, 109 S.Ct. 867, 102 L.Ed.2d 991 (1989).

Section 1983 plaintiffs seeking to impose liability on a municipality must, therefore, adequately plead and prove the existence of an official policy or custom that is fairly attributable to the municipality and that proximately caused the deprivation of their rights. 2 See, e.g., Spell...

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