Doe By and Through G.S. v. Johnson

• Decision Date: 18 April 1995
• Docket Number: No. 94-1536,94-1536
• Citation: 52 F.3d 1448
• Parties: Jane DOE, a Minor, By and Through her Guardians and Next Friends, G.S. and M.S., Plaintiffs-Appellants, v. Gordon JOHNSON, Gary T. Morgan, Illinois Department of Children and Family Services, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1448

52 F.3d 1448

31 Fed.R.Serv.3d 1040

Jane DOE, a Minor, By and Through her Guardians and Next Friends, G.S. and M.S., Plaintiffs-Appellants, v. Gordon JOHNSON, Gary T. Morgan, Illinois Department of Children and Family Services, et al., Defendants-Appellees.

No. 94-1536.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 1994.

Decided April 18, 1995.

Roy P. Amatore (argued), John L. Malevitis, Nevoral & Associates, Chicago, IL, for Jane Doe, a Minor, By and Through her Guardians and Next Friends, G.S., M.S.

Paula Giroux, Asst. Atty. Gen., Chicago, IL, for Gordon Johnson, Gary T. Morgan, Illinois Dept. of Children and Family Services, Zettie Wesley.

Thomas F. Lucas (argued), Peterson & Ross, Chicago, IL, for Tag, Inc.

Steven C. Wolf, Patrick M. Ouimet, Kim Giobbia, Wolf & Ouimet, Chicago, IL, for Susan Clement.

Edward S. Richman, Chicago, IL, for Robin Swaziek, David Swaziek.

Before POSNER, Chief Judge, REAVLEY ^* and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The plaintiffs filed claims on behalf of their minor daughter, Jane Doe, against Tag, a foster care agency, and Robin and David Swaziek, Doe's former foster parents. Their complaint charged that her former foster parents inflicted intentional emotional distress when they abused Doe both sexually and physically and that Tag, the agency responsible for Doe's placement, and its employees were grossly negligence with respect to their supervision of her placement. The plaintiffs sought to recover the expenses of psychological treatment Doe received as a result of the alleged abuse.

This suit was filed in the Northern District of Illinois in conjunction with the plaintiffs' federal claims against the Illinois Department of Children and Family Services (DCFS). DCFS was charged with violating the Due Process Clause of the United States Constitution, violating Doe's civil rights, 42 U.S.C. Sec. 1983, and with violating the Social Security Act. 42 U.S.C. Sec. 301 et seq. The district court dismissed the federal claims against DCFS but retained supplemental jurisdiction over the remaining state common law claims against the agency and foster parents. 28 U.S.C. Sec. 1367. The parties and the court agreed that Illinois substantive law applied to the remaining claims. After a jury trial, the defendants prevailed and Doe appeals. We AFFIRM.

FACTUAL BACKGROUND

In January, 1983, Jane Doe, a three-year old infant, was removed from her parents' custody because of her mother's severe mental problems, her father's alcoholism, and their overall neglect of the infant Doe. After a court hearing, the Illinois DCFS was granted legal custody of Doe and it assigned her case to the private agency Tag, now known as Child Serv, ¹ in order that Tag could place Doe in a foster home. Betty Vining, a Tag case worker, accepted the referral on behalf of the agency and after she met with the infant Doe, called a potential foster mother, Robin Swaziek, to discuss placing Doe in her home. The Swazieks had been previously licensed as foster parents and had undergone a background investigation including a home inspection, a reference check, an employment verification, interviews and a criminal investigation. Vining personally supervised the Swazieks' foster parent training and believed that the Swazieks were qualified foster parents and would be able to give Doe the attention she needed for they had only one child, who was older than Doe, and no other foster children.

Shortly after Doe began living with the Swazieks, she underwent a complete physical examination in which the doctor detected no abnormalities in her health. At the same time, it was reported that Doe displayed difficulty interacting with her foster father, David Swaziek, and acted extremely fearful of her natural father ² during supervised visits with her biological parents and the foster care worker. Vining reported Doe's inability to relate to her biological and foster fathers to the DCFS and recommended that Doe be evaluated by a specialist. In June of 1983 In July, 1983, another Tag case worker, Susan Clement, took over supervision of Doe's case. In 1984, after Doe's annual physical, the Swazieks told Clement that Doe's examination revealed that she was small for her age. Clement made arrangements for Doe to see a pediatric endocrinologist, Dr. Ira Rosenthal. After more than a year of observation and testing, beginning in May, 1984 and continuing through July, 1985, Dr. Rosenthal determined that Doe's lack of proper growth was probably caused from maternal deprivation syndrome, a condition in which the child is deprived of maternal nurturing by his or her biological mother. Dr. Rosenthal based his medical opinion on his observations during the visits he had with Doe as well as the numerous tests he performed to rule out other medical problems that might be contributing to Doe's short stature.

Dr. Jean Pierre Bourginon, a psychologist and the administrator of Consultants in Developmental Behavioral Disfunction, a service used by the DCFS to evaluate the needs of children in its custody, met with and evaluated Doe. Dr. Bourginon told Vining that he felt that Doe's inability to interact with her foster father and her fear of her biological father would be resolved over time, once Doe was able to spend time in a healthy and loving family environment. Vining believed that Doe's behavioral problems could be traced to the physical and emotional abuse she had received from her biological father. She also noted that, as Dr. Bourginon had predicted, there was improvement in the interaction between Doe and David Swaziek over time.

In April, 1985, after a court hearing, Doe's biological parents' rights were terminated and she was freed for adoption. Dr. Bourginon evaluated Doe again, this time to determine if the Swazieks would be suitable parents for Doe and be able to provide a stable home for her. Although he determined that the Swazieks and Doe should begin family therapy, in order that Doe might continue to improve her relationship with her foster father, he felt that it would be appropriate for the Swazieks to adopt Doe. After several therapy sessions, Mary Karczewski, a family therapist, determined that the best home for Doe would be one in which she was either the only child or the youngest child. Because the Swazieks wanted to have more children of their own, they decided against adopting Doe.

In June, 1986, Clement met with another couple, Michael and Gayle Stosek, and advised them that Doe was a possible candidate for adoption. Clement also advised the Stoseks that Doe was small for her age, somewhat disruptive, did not have much of an appetite, and was having difficulty getting along with her foster father. Eight days later, when Doe moved into the Stoseks' home, she was six years of age, and according to the Stoseks, weighed only 30 pounds and looked like she was only two or three years of age. Within Doe's first three months with the Stoseks, she began to develop rapidly and gained twenty pounds.

Shortly thereafter, while living with the Stoseks, Doe began making allegations of physical, sexual, and satanic ritual abuse against the Swazieks. She also exhibited behavioral problems that included throwing temper tantrums, lying if she was caught misbehaving, massaging her breasts, attempting to touch her adopted brothers between their legs, touching herself between her legs, threatening to kill the Stoseks if she saw a certain type of knife, and claiming that she had three personalities. The Stoseks arranged for Doe to see Linda Alford, a psychotherapist, ³ who continued to treat Doe for a period in excess of five-years. Alford originally began seeing Doe to help her make a smooth transition to her adoptive home, but once Alford observed that there was a "tremendous amount of violence in [Doe's] play therapy," she felt that it was necessary to increase the therapy sessions to twice a week to help Doe overcome the abuse Alford was sure she suffered. Michael Stosek testified that after Doe completed therapy, her behavior improved and she ceased her outward manifestations of unusual sexual behavior.

The Stoseks and Doe brought suit against TAG, Clement, and the Swazieks in District Court, for intentional infliction of emotional distress, to recover the expenses incurred as a result of the psychological treatment that Doe received as a result of the alleged abuse by the Swazieks, and for Tag's negligence in placing Doe with the Swazieks. During the jury trial, the plaintiffs introduced the testimony of Dr. Kraut, a pediatric gastroenterologist, who treated James C., another foster child who resided with the Swazieks during the same period as Doe. Dr. Kraut testified that in February, 1984, he examined James C. when he was admitted to Lutheran General Hospital and concluded that his height and weight were in the lower fifth percentile as compared with other children of his age. Dr. Kraut further concluded that the cause of the deficiencies in James C.'s stature and weight was that he was receiving an insufficient amount of calories in his diet at home. ⁴

Prior to trial, the defendants filed a motion in limine seeking to preclude this testimony, arguing that it had no probative value because James C. had a history of abuse and neglect at the hands of his biological parents, suffered from Attention Deficit Hyperactivity Disorder (ADHD), and lived in five other foster homes that predated his placement with the Swazieks. In light of all these factors, the court agreed that the evidence had limited probative value, might be unduly prejudicial, and ruled that Dr. Kraut's testimony about James C. would be admitted solely for the purpose of evaluating Doe's credibility with respect to her allegations against the Swazieks. As a result, although Dr. Kraut was allowed to testify about his diagnosis concerning James C. on direct examination, during re-direct examination, the court barred any...