707 F.2d 288 (7th Cir. 1983), 82-2197, Lossman v. Pekarske

Docket Nº82-2197.
Citation707 F.2d 288
Party NameThomas C. LOSSMAN, et al., Plaintiffs-Appellants, v. Mary H. PEKARSKE, et al., Defendants-Appellees.
Case DateMay 16, 1983
CourtUnited States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 288

707 F.2d 288 (7th Cir. 1983)

Thomas C. LOSSMAN, et al., Plaintiffs-Appellants,

v.

Mary H. PEKARSKE, et al., Defendants-Appellees.

No. 82-2197.

United States Court of Appeals, Seventh Circuit

May 16, 1983

Argued Jan. 10, 1983.

Page 289

W. Dan Bell, Jr., Bell Law Office, S.C., Madison, Wis., for plaintiffs-appellants.

Maris Rushevics, Anderson, Fisher, Shannon, O'Brien & Rice, Stevens Point, Wis., Daniel W. Hildebrand, Ross & Stevens, P.C., Madison, Wis., for defendants-appellees.

Before CUMMINGS, Chief Judge, and POSNER and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

This suit by Thomas Lossman and his three children charges that the defendants--county welfare and law-enforcement officers in Wisconsin--deprived the plaintiffs of liberty without due process of law, in violation of the Fourteenth Amendment, by removing the children from Lossman's custody without good cause. They seek damages under 42 U.S.C. Sec. 1983.

Lossman was divorced from the mother of his three children but had legal custody of them, and had remarried but was in the process of getting another divorce. He owned a bar, and lived in the back of it with the children, who ranged in age from 9 to 12. On the morning of March 28, 1980, Lossman's wife (the children's stepmother) complained to a county social worker that Lossman was beating the children. A police officer interviewed the stepmother and also the children's natural mother. Both women stated to him that Lossman was constantly drunk, beat and kicked the children brutally, threatened to kill them, kept loaded guns around the house, made one of the children tend bar, and fed them inadequately. The guns made the police decide it would be prudent to remove the children from school rather than wait till they came home after school, and the police did this, pursuant to Wis.Stat. Sec. 48.19(1)(d)(5), which provides, "A child may be taken into custody under ... circumstances in which a law enforcement officer believes on reasonable grounds that ... the child ... is in immediate danger from his or her surroundings and removal from those surroundings is necessary...." The children were interviewed at the police station, corroborated the women's statements, and were forthwith placed in a licensed foster home.

That same afternoon the county prosecutor obtained from the local juvenile court an ex parte order confirming the foster home's temporary custody. The order was pursuant to Wis.Stat. Sec. 48.19(1)(c), which authorizes taking a child into custody on a judge's order based "on a satisfactory showing to the judge that the welfare of the child demands that the child be immediately

Page 290

removed from his or her present custody." The order also directed the prosecutor to petition by April 1 for an adversary hearing on charges of child abuse and neglect. This part of the order was based on Wis.Stat. Sec. 48.21(1)(b), which requires that such a petition be filed within 48 hours of the child's being taken into custody under court order. Lossman claims that no effort was made to notify him that the children had been removed from his custody until after the court order had been obtained, contrary to the requirement of Wis.Stat. Sec. 48.19(2) that a social worker who takes a child into custody "shall immediately attempt to notify the parent." Although there is a question whether there really was any delay in notifying Lossman, for purposes of reviewing the district court's grant of summary judgment we must accept his claim that there was.

A hearing was held on April 9 (it would have been held earlier if Lossman had not requested additional time for preparation), at which he appeared with counsel. Several witnesses were examined and cross-examined. At the conclusion of the hearing the court ordered the children continued in the custody of the foster home, but gave Lossman visitation rights. On May 7 another, similar hearing was held, at which the court approved an agreement between Lossman's attorney and the county prosecutor whereby the children would be returned to Lossman's physical custody (though legal custody would remain with the county welfare department for six months) under certain restrictions--that he refrain from unreasonably disciplining the children, not let them tend bar, allow their mother to visit them, and undergo psychiatric counseling for his alcoholism. Pursuant to the agreement the charges of child abuse and neglect were dropped. The children were restored to Lossman's legal custody on November 6.

The Fourteenth Amendment forbids a state to deprive a person of his liberty without due process of law. Lossman's liberty unquestionably includes the custody that state law gave him of his minor children, Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S.Ct. 1208, 1215-16, 31 L.Ed.2d 551 (1972), so he has satisfied the threshold requirement of showing a deprivation of liberty. But...

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99 practice notes
  • 977 F.2d 299 (7th Cir. 1992), 91-3469, Hessel v. O'Hearn
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (7th Circuit)
    • October 6, 1992
    ...right to notice and a hearing, Carey v. Piphus, 435 U.S. 247, 262-64, 98 S.Ct. 1042, 1051-52, 55 L.Ed.2d 252 (1978); Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.1983), they may be recoverable when substantive constitutional rights, such as the right to freedom of speech, or the right to......
  • 37 F.Supp.2d 1035 (N.D.Ill. 1998), 98 C 1850, Hebein ex rel. Berman v. Young
    • United States
    • Federal Cases United States District Courts 7th Circuit United States District Court (Northern District of Illinois)
    • September 25, 1998
    ...ceased on October 11 and Hall did not become involved until after court proceedings were initiated. Defendants cite Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983), for the proposition that a threat to a child's safety is justification for action first and a hearing afterward. Such a......
  • 973 F.2d 526 (7th Cir. 1992), 91-1534, Niehus v. Liberio
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (7th Circuit)
    • August 20, 1992
    ...Morrison Knudsen Corp., 863 F.2d 546, 550 (7th Cir.1988), and this is as true of constitutional as of ordinary torts, Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.1983); Garza v. Henderson, 779 F.2d 390, 395 (7th Cir.1985); Williams v. Boles, 841 F.2d 181, 183 (7th Cir.1988). So an inter......
  • AGO 96-48.
    • United States
    • Attorney General Opinions South Carolina
    • March 13, 1996
    ...where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence, Lossman v. Pekarske, 707 F.2d 288, 291-92 (7th Cir. 1983). 927 F.2d at 80. In the Robison case, cited above, the Court recognized that it was, and remains......
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98 cases
  • 977 F.2d 299 (7th Cir. 1992), 91-3469, Hessel v. O'Hearn
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (7th Circuit)
    • October 6, 1992
    ...right to notice and a hearing, Carey v. Piphus, 435 U.S. 247, 262-64, 98 S.Ct. 1042, 1051-52, 55 L.Ed.2d 252 (1978); Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.1983), they may be recoverable when substantive constitutional rights, such as the right to freedom of speech, or the right to......
  • 37 F.Supp.2d 1035 (N.D.Ill. 1998), 98 C 1850, Hebein ex rel. Berman v. Young
    • United States
    • Federal Cases United States District Courts 7th Circuit United States District Court (Northern District of Illinois)
    • September 25, 1998
    ...ceased on October 11 and Hall did not become involved until after court proceedings were initiated. Defendants cite Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983), for the proposition that a threat to a child's safety is justification for action first and a hearing afterward. Such a......
  • 973 F.2d 526 (7th Cir. 1992), 91-1534, Niehus v. Liberio
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (7th Circuit)
    • August 20, 1992
    ...Morrison Knudsen Corp., 863 F.2d 546, 550 (7th Cir.1988), and this is as true of constitutional as of ordinary torts, Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.1983); Garza v. Henderson, 779 F.2d 390, 395 (7th Cir.1985); Williams v. Boles, 841 F.2d 181, 183 (7th Cir.1988). So an inter......
  • 429 N.W.2d 501 (Wis.App. 1988), 87-1831, Schramek v. Bohren
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • July 12, 1988
    ...constitutional error in not being allowed to contest the validity of a TRO before it is issued. We disagree. In Lossman v. Pekarske, 707 F.2d 288 (7th Cir.1983), a father and his children alleged in a civil rights action that county welfare and law enforcement officers in Wisconsin had depr......
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