787 F.2d 403 (8th Cir. 1986), 85-1134, Fitzgerald v. Williamson

Docket Nº:85-1134.
Citation:787 F.2d 403
Party Name:Mary Ann FITZGERALD and Ernest Fitzgerald, Appellants, v. Louis WILLIAMSON, Michael Dye, Theodore T. Kellogg, Kim D. Edgar, Debra Mugel, Warren Swanson and James Moody, Appellees.
Case Date:March 26, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 403

787 F.2d 403 (8th Cir. 1986)

Mary Ann FITZGERALD and Ernest Fitzgerald, Appellants,


Louis WILLIAMSON, Michael Dye, Theodore T. Kellogg, Kim D.

Edgar, Debra Mugel, Warren Swanson and James

Moody, Appellees.

No. 85-1134.

United States Court of Appeals, Eighth Circuit

March 26, 1986

        Submitted Oct. 17, 1985.

Page 404

        Ross Harry Briggs, St. Louis, Mo., for appellants.

        Jerry L. Short, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

        Before ROSS, Circuit Judge, BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

        ROSS, Circuit Judge.

        Mary and Ernest Fitzgerald seek to recover monetary damages from seven employees of the Missouri Division of Family Services (DFS) under 42 U.S.C. Sec. 1983 and a pendent state law tort claim. They maintain that the defendants violated their due process rights by intentionally terminating the parental relationship between themselves and their daughter, Wisa Rowland, while Wisa was in the DFS's custody.

        The seven defendants were sued in their individual capacities. Four of the defendants, Michael Dye, Theodore Kellogg, Debra Mugel, and Kim Edgar, are caseworkers for the Dent County DFS, and one defendant, Warren Swanson, is a hearing officer for the DFS. The remaining two defendants, Louis Williamson and James Moody, are the directors of the Dent County DFS and the State of Missouri DFS, respectively.

        The district court, 601 F.Supp. 92, granted the defendants' motion for summary judgment on the basis that the defendants' conduct, as alleged in plaintiffs' complaint, did not violate the Fitzgeralds' due process rights. We agree with the district court's decision and, accordingly, affirm the court's judgment.


        The DFS is a state agency involved in family matters. It acquired legal custody over Wisa through Missouri's juvenile court system after Wisa ran away from the Fitzgeralds' home and accused Ernest (who is actually her stepfather) of physically assaulting her.

        The events leading to the DFS's acquisition of custody over Wisa began on November 19, 1980. On that date, Wisa ran away from the Fitzgeralds' home in Salem, Missouri, 2 at the age of fourteen. Later that same day, she appeared at the Salem Police Department and reported that Ernest had struck her with a tennis shoe on November 18th. In compliance with Missouri law, the police summoned Michael Dye, a caseworker

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for the Dent County DFS. 3 After conversing with Wisa and the police, Dye asked the juvenile court to initiate child protection proceedings.

        During the evening of November 19th, Dye met with the Fitzgeralds. They denied that Wisa had been spanked or punished on November 18th. In addition, Mary informed Dye that she believed that her daughter was emotionally unstable and possibly suicidal and asked Dye to obtain a psychological evaluation of Wisa. Complaint, p 16.

        Dye believed that the Fitzgeralds were lying. His conclusion was based upon his unproven suspicion that the Fitzgeralds had abused other children on prior occasions. He also assumed that the Fitzgeralds were deliberately refusing to tell the truth because they feared that the DFS would remove the Fitzgeralds' remaining three children from their home. Complaint, p 17.

        Two days later, on November 21, 1980, the juvenile court entered an ex parte order making Wisa a temporary ward of the court and placing legal custody with the Dent County DFS, "pending a hearing upon a petition to be filed, for the reason that said juvenile alleges her stepfather has physically abused her by pulling her hair and by hitting her on the back with a shoe and she is afraid to go home." In re Wisa A. Rowland, No. JU380-25J (Circuit Court of Dent County, Missouri, Juvenile Division, Nov. 21, 1980). Roger Barr, a juvenile officer of Dent County, had supplied the juvenile court with the above reasons for juvenile court intervention in Wisa's case. He filed a petition on November 25, 1980, setting forth the same reasons for exercising juvenile court jurisdiction over Wisa. The juvenile court, however, never held a hearing on this petition.

        Later, in December of 1980, Dye mailed the Fitzgeralds a document entitled "Written Service Agreement Between Ernest and Mary Fitzgerald and The Division of Family Services." Dye instructed the Fitzgeralds that the parties would have to reach a mutually acceptable agreement before Wisa could be returned home. The agreement stated, in relevant part, that the Fitzgeralds would: a) visit once a month with their caseworker, Michael Dye, b) visit monthly with Wisa at the Dent County DFS office, c) attend counseling as often as was prescribed by a DFS counselor, and d) refrain from punishing Wisa or any other children by using a foreign object. Complaint, p 21.

        A few days later, the Fitzgeralds met with Dye at his office and informed him that they would not sign the written service agreement. They feared that any allegation of a violation of a signed agreement would result in the removal of their remaining children from their home. However, they voluntarily agreed to attend counseling sessions with a DFS counselor and again asked Dye to have Wisa evaluated by a psychologist. Complaint, p 22.

        Dye complied with the Fitzgeralds' request for a psychological evaluation sometime in December of 1980 by arranging for Wisa to be evaluated by a Dr. William Cone. After the evaluation was completed, Dr. Cone reported that he believed Wisa was truthful in her allegations of child abuse, that he felt there was more abuse in the Fitzgerald family than reported, and that he did not consider it advisable to return Wisa home or to force her to visit the Fitzgeralds on a weekly basis. Complaint, p 24. After receiving Dr. Cone's report, Dye allowed the Fitzgeralds to visit Wisa only once a month, rather than on a weekly basis.

        In June of 1981, the Fitzgeralds retained counsel and filed a request for a detention hearing. This request was filed pursuant to MO.REV.STAT. Sec. 211.251(2), which provides that parents "of a child committed to the...

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