796 F.3d 96 (D.C. Cir. 2015), 13-7140, Doe v. District of Columbia

Docket Nº:13-7140
Citation:796 F.3d 96
Opinion Judge:Randolph, Senior Circuit Judge :
Party Name:CARLA DOE, ET AL., APPELLANTS v. DISTRICT OF COLUMBIA, ET AL., APPELLEES
Attorney:Mick G. Harrison argued the cause and filed the briefs for appellants. John M. Clifford entered an appearance. Stacy L. Anderson, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Irvin B. Nat...
Judge Panel:Before: GARLAND, Chief Judge, WILKINS, Circuit Judge, and RANDOLPH, Senior Circuit Judge. Concurring opinion filed by Circuit Judge WILKINS. Wilkins, Circuit Judge, concurring:
Case Date:August 11, 2015
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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796 F.3d 96 (D.C. Cir. 2015)

CARLA DOE, ET AL., APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL., APPELLEES

No. 13-7140

United States Court of Appeals, District of Columbia Circuit

August 11, 2015

Argued November 14, 2014.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia. (No. 1:05-cv-01060).

Mick G. Harrison argued the cause and filed the briefs for appellants. John M. Clifford entered an appearance.

Stacy L. Anderson, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

Before: GARLAND, Chief Judge, WILKINS, Circuit Judge, and RANDOLPH, Senior Circuit Judge. Concurring opinion filed by Circuit Judge WILKINS.

OPINION

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Randolph, Senior Circuit Judge :

The District of Columbia's Child and Family Services Agency temporarily removed two adopted children from their home. These two children and another child living there had endured sexual abuse for years. The children resided with their parents, Robert and Carla Doe. After the government acted, the Does brought a multi-count complaint seeking damages from the District of Columbia, the Family Services Agency, and District employees. The district judge, Hogan, J., ruled against them on all claims. The Does appeal.

For the reasons that follow, we vacate the dismissal of the Does' Fourth and Fifth Amendment claims against the District. We remand those claims to the district court to determine whether there is municipal liability under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We affirm the district court on the remaining claims.

I.

The evidence developed in discovery tended to show the following. Robert and Carla Doe are the adoptive parents of Oliver and Ann and the biological parents of Emma.1 Oliver (born 1995) and Ann (born 1997) became part of the family when they were infants. In 2000, twins Wayne and Sara joined the family. At the time, Emma was 10, the twins were 9, Oliver was 5, Ann 3. The Does finalized their adoption of the twins in 2001.

Before the twins came to the Does, Mrs. Doe knew that Wayne and Sara had not lived " in a stable home, were hungry and homeless for some time, did not receive appropriate medical care, had a drug-abusing mother, had been in weekly therapy for years, and were put by their mother in inappropriate situations, unsafe and unhealthy environments for children, including drug environments." Doe v. District of Columbia, 958 F.Supp.2d 178, 183 (D.D.C. 2013) (internal quotation marks and citation omitted). When the twins arrived, the Does began receiving monthly adoption stipends, funds for therapy from the Crime Victims' Compensation Fund, therapy services from a court clinic, and funds for a therapeutic summer camp for Wayne. See id. at 198.

The twins began sexually abusing Ann and Oliver shortly after they moved into the Doe household. See id. at 183. Four years later, in 2004, Carla and Robert Doe learned of the abuse. See id. On September 27th of that year, the Does wrote to Family Services Agency employees (Acting Director Brenda Donald Walker and Adoption Services Program Manager Sharon Knight) notifying them that the twins had been abusing Ann and Oliver " for years." The Does sought " emergency support to try and prevent the disruption of the adoption of two of [their] children" and requested " funding or other resources," because " [w]e have no funds of our own to even attempt to undertake what is necessary to determine if our family can be preserved." The Does reiterated that they had " fallen behind financially" and stated: " We are no longer able to continue parenting now four children with such significant needs." The Does' letter also stated that Wayne had moved to an " out-of-home, therapeutic respite home" with provider Deborah Bobbitt and that Sara remained at the Doe home. See Doe, 958 F.Supp.2d at 183. On October 1, 2004, Robert met with defendant Sandra Jackson, the Administrator of Permanency and Family Resources Administration, several other Agency employees,

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and two therapists who had provided therapy to the Doe family. See id. Robert explained that Sara and Wayne " couldn't safely reside in our home" and that he " had to have some other temporary place for them to reside while they were getting treatment."

Four days later, on October 5, the Agency received a follow-up letter from Robert. See Doe, 958 F.Supp.2d at 183. In it, he reemphasized that if the Agency could not provide further financial assistance to support Wayne's out-of-home care, " immediate plans will need to be made to transition him into a new residential placement." By then, Sara had moved to Carla Doe's mother's home. See Doe, 958 F.Supp.2d at 183. Carla Doe's mother, Robert wrote, would not be able to keep Sara " much longer" and " [a]s soon as possible this week, [Sara] needs to be transitioned into a residential placement."

On October 7, Agency officials, including Jackson and Agency General Counsel Terri Thompson Mallet, had a telephone conversation with Robert to discuss placement options for the twins. Doe, 958 F.Supp.2d at 183-84. The officials said the Agency would cover the cost of therapeutic foster care but would not provide transportation or pay for Wayne's therapy with Bobbitt, since she was not an approved provider. Id. at 184.

On the same day, October 7, the Agency began an investigation. The investigator, Delores Williams, looked into the " sexual abuse allegations as it relate[d] to sibling on sibling, whether the adoptive parents failed to provide adequate supervision and if there was failure to protect by the adoptive parents." Williams spoke with Robert and Carla Doe and Ann and Oliver at their home on the evening of October 7. In a " safety decision" dated the same day, Williams reported that while " [o]ne or more signs of present danger were identified," the children were not " in immediate danger of serious harm," in light of " the existence of protective capacities [that] offset the threat of serious harm for the children." She noted that Wayne had been placed in a therapeutic home in Virginia and that the Does had sent Sara to the grandmother's house. Williams also explained that, as part of Does' " safety plan," a portable monitoring system had been attached to the bedroom doors of the children who remained at home and that adult supervision had increased.

A day later, on October 8, Williams participated in an interview with Ann and Oliver at a child advocacy center. See

Doe, 958 F.Supp.2d at 184. During the interview, Ann and Oliver said they were both abused by Wayne and Sara, and, for the first time, Williams learned that Oliver participated in victimizing Ann. Id. At the time, Oliver was living in the Doe home with Ann.

On October 14, the Does sent another letter to the Agency. They raised several concerns about the Agency's offer to have them agree to place the twins temporarily in therapeutic foster care but not pay for Wayne's continued therapy with Bobbitt or the twins' transportation to and from therapy. See id. The Does criticized the Agency for not investigating the extent of the abuse the twins had endured with their birth mother and for placing them with an abusive foster family before they were placed with the Does. The Does also objected to keeping the twins together during a temporary placement. The Does proposed that the Agency pay for Sara to attend a private school in Virginia and for her therapy; pay for Wayne's therapy with Bobbitt; pay for both twins' transportation; and pay for family therapy. See id.

On October 19, after an internal meeting, the Agency called Robert and " informed him that they had safety concerns

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regarding Ann, Oliver, Sara, and Wayne and that he needed to cooperate in placing the children into voluntary care pending further investigation." See id. In a follow-up call to Agency General Counsel Mallet, the Does' attorney proposed alternative plans for Ann and Oliver and a voluntary placement arrangement for the twins, and he told the Agency it needed a court order to remove the children. See id.

On October 20, 2004, Agency officials, specifically Agency Director Brenda Donald Walker, concluded that Ann and Oliver were in immediate danger and needed to be removed from the Doe home. See id.; id. at 188 n.7. The same day, the Does' attorney negotiated with the Agency about the placement of Oliver and Ann with the Agency. See

id. at 184. The Does agreed that Agency social workers, not the police, would remove Ann and Oliver from the Doe home to temporary placements elsewhere. See

id. at 185.2 That evening -- a school night -- defendants Daphne King and Rebekah Philippart, both of whom were social workers, were assigned to pick up Ann and Oliver and notify the Does of a court hearing the next day; neither King nor Philippart had previously been involved in the case. See id. King and Philippart went to the Does' residence and, over the objections of Robert and Carla, removed Ann and Oliver. See id. They also provided the Does a notice of a hearing in District of Columbia Superior Family Court scheduled for October 21 to respond to unspecified child neglect allegations. See id. The notice stated that the children were seized pursuant to D.C. Code § 4-1301.07, which provides that if, in cases of alleged child neglect, " in the opinion of the Agency the available services or resources are insufficient to protect the child and there is...

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