Kelson v. City of Springfield

Decision Date02 August 1985
Docket NumberNo. 84-4403,No. 19,19,84-4403
Citation767 F.2d 651
Parties26 Ed. Law Rep. 182 Duane Vernon KELSON and Eleanor T. Kelson, Plaintiffs-Appellants. v. The CITY OF SPRINGFIELD; Jerry Smith, an individual; Springfield School District; and Ronald Schiessel, an individual, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Charles O. Porter, Eugene, Or., for plaintiffs-appellants.

Donald A. Loomis, Loomis, Tomlinson & Kurtz, Richard W. Butler, Atherly, Butler & Burgott, Eugene, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING and ALARCON, Circuit Judges, and WILKINS, * District Judge.

ALARCON, Circuit Judge:

Duane and Eleanor Kelson (the Kelsons) appeal from the district court's dismissal of their complaint alleging a violation of 42 U.S.C. Sec. 1983 and a pendent state cause of action for negligence arising out of the suicide of their fourteen year-old son, Brian Kelson. This appeal requires us to resolve the narrow question whether parents possess a constitutionally protected liberty interest in the companionship and society of their child, deprivation of which is actionable under section 1983. Because we conclude that a cognizable liberty interest does exist in the circumstances of this case, we reverse.

I PERTINENT FACTS AND PROCEDURAL HISTORY

On the morning of March 15, 1982, Brian confronted a teacher in his classroom, brandishing a .38 caliber revolver and demanding that the teacher place the coins in his desk drawer on the desk top. The Meanwhile, school officials called the Springfield Police Department. The police in turn called the Kelsons to notify them of the situation. As Brian and Schiessel left the empty room on their way to the vice principal's office, they were confronted by Officer Jerry Smith (Smith). Smith informed Brian that he was "in trouble with the law." Five minutes later Brian left Schiessel, entered the boys' restroom and shot himself. Brian died later that morning.

teacher complied, and then persuaded Brian to accompany him to an empty room where the vice principal, Ronald Schiessel (Schiessel), was waiting. Brian showed Schiessel a suicide note. During this time, Brian kept the handgun in the waistband of his trousers. Although Brian asked to talk to his favorite teacher, he was not permitted to do so.

The Kelsons filed a complaint under 42 U.S.C. Sec. 1983 alleging violations of their fundamental parental rights guaranteed by the Ninth Amendment without the due process required by the Fifth and Fourteenth Amendments, and violations of their right to association with their son guaranteed by the First Amendment without the due process to which they were entitled under the Fourteenth Amendment. 1 The complaint also contains a pendent state cause of action for negligence arising out of the same facts.

The City of Springfield (the City) and Smith moved to dismiss the Kelsons' complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Magistrate Hogan recommended granting the motion and suggested that the court on its own motion dismiss the action against Springfield School District (the School District) and Schiessel. Hogan concluded that parents have no constitutionally protected right to the companionship and society of their children and that even if such a right does exist, the defendants' alleged actions did not deprive the Kelsons of their parental rights. After a de novo review of the file, the district court adopted the Magistrate's Findings and Recommendations and dismissed the complaint as to all defendants.

II

EXISTENCE OF A FUNDAMENTAL PARENTAL RIGHT TO THE

COMPANIONSHIP AND SOCIETY OF A CHILD

A dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is a ruling on a question of law and is subject to de novo review. Guillory v. County of Orange, 731 F.2d 1379, 1381 (9th Cir.1984). In reviewing such a dismissal, we must accept all material allegations in the complaint as true and construe them in the light most favorable to the appellant. North Star International v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir.1983). Dismissal for failure to state a claim is proper only if it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts that could be proved. Las Vegas v. Clark County, 755 F.2d 697, 701 (9th Cir.1985).

The district court's conclusion that parents do not possess a constitutionally protected interest in the companionship and society of their children is erroneous. 2 At this preliminary stage of the proceedings, we cannot say that [plaintiff] has failed to state a claim for relief based upon her constitutionally secured rights to procedural due process of law and her substantive familial rights that have long been considered the 'basic civil rights of man.' 'The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment'.

This court has previously held that such a liberty interest exists and is cognizable under section 1983. In Morrison v. Jones, 607 F.2d 1269 (9th Cir.1979), cert. denied, 445 U.S. 962, 100 S.Ct. 1648, 64 L.Ed.2d 237 (1980), county officials transported the California plaintiff's son, a German alien and ward of the state, to Germany on the grounds that the plaintiff was incapable of providing the special care which her mentally ill son required. Plaintiff brought a section 1983 action alleging a deprivation of her parental rights without due process of law. The district court granted summary judgment for the County. We reversed, holding that the parent-child relationship is constitutionally protected and that governmental interference with it gives rise to a section 1983 action for damages. Id. at 1275. We stated:

Id. at 1275-76 (citations omitted).

The Supreme Court has repeatedly reaffirmed the existence of a constitutional right to the maintenance of a parent-child relationship. In Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), the Court held that an indigent defendant in a paternity proceeding brought by the State has a Fourteenth Amendment due process right to receive blood grouping tests. Id. at 17, 101 S.Ct. 2211. The Court stressed the importance of familial bonds and reasoned that their imposition by the state (via a paternity suit) demands procedural fairness. Id. at 13, 101 S.Ct. at 2209. In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the Court held that due process must be afforded to a parent prior to state termination of her parental status on grounds of unfitness. Id. at 27, 101 S.Ct. at 2159. The Court stated:

This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to 'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection.'.... Here the State has sought not simply to infringe upon that interest, but to end it. If the State prevails, it will have worked a unique kind of deprivation.... A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.

Id. (footnote omitted) (citations omitted).

Finally, in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Court held that natural parents have a constitutionally protected liberty interest in the care, custody and management of their child which entitles them to due process at a state-initiated parental rights termination proceeding. Id. at 752-57, 102 S.Ct. at 1394-97. The Court noted that its decisions in Lassiter and Streater, among others, rendered beyond dispute the proposition that parents have a fundamental liberty interest in maintaining a relationship with their children which is protected by the Fourteenth Amendment. Id. at 753, 102 S.Ct. at 1394.

Several federal appellate courts have recognized this right in the context of a killing of a child by a state agent. See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205, 1242-45 (7th Cir.1984) (parents have constitutionally protected liberty interest in continued association with their children and may recover Appellees contend that parents have no constitutionally protected rights to the companionship and protection of their children, relying upon two cases from the District of Colorado, White v. Talboys, 573 F.Supp. 49 (D.Colo.1983) (parents' section 1983 claim to recover damages for shooting of their son by police officer dismissed because right to continued life of offspring is not guaranteed by Constitution) and Jackson v. Marsh, 551 F.Supp. 1091 (D.Colo.1982) (same), and a Tenth Circuit case, Dohaish v. Tooley, 670 F.2d 934 (10th Cir.1982) (father has no recognized right to continued life of his son; therefore, he cannot maintain section 1983 claim in his own behalf for refusal to prosecute his son's killer), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1980). 3 These cases hold that there is no constitutionally protected parental right to be free from governmental interference in the parent-child relationship. White, 573 F.Supp. at 51; Jackson, 551 F.Supp. at 1094; Dohaish, 670 F.2d at 937. Because the reasoning in these cases conflicts with both Supreme Court precedent and this court's holding in Morrison, we decline to accept appellees' invitation to follow them. 4

under section 1983 for killing of their son by police officer); Mattis v. Schnarr, 502 F.2d 588, 593-95 (8th Cir.1976) (father whose son was shot and killed while attempting to escape arrest had a constitutionally protected liberty interest under the due process clause of Fourteenth Amendment which was cognizable under section 1983).

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