93 F.3d 861 (D.C. Cir. 1996), 95-7077, Doe by Fein v. District of Columbia

Docket Nº:95-7077.
Citation:93 F.3d 861
Party Name:Jane DOE, a minor child, by next friend, Leslie G. FEIN, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.
Case Date:August 27, 1996
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 861

93 F.3d 861 (D.C. Cir. 1996)

Jane DOE, a minor child, by next friend, Leslie G. FEIN, Appellant,

v.

DISTRICT OF COLUMBIA, et al., Appellees.

No. 95-7077.

United States Court of Appeals, District of Columbia Circuit

August 27, 1996

Argued May 6, 1996.

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[320 U.S.App.D.C. 199] Appeal from the United States District Court for the District of Columbia (93cv0092).

Richard Seligman, Washington, DC, argued the cause for appellant, with whom Jonathan S. Zucker was on the briefs.

Donna M. Murasky, Assistant Corporation Counsel, Washington, DC, argued the cause for appellees, with whom Charles F. Ruff, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief.

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[320 U.S.App.D.C. 200] Before: EDWARDS, Chief Judge, SILBERMAN and ROGERS, Circuit Judges.

Opinion for the court filed PER CURIAM.

Separate opinion filed by Circuit Judge ROGERS concurring in part and dissenting in part.

PER CURIAM:

Jane Doe, a minor, by her next friend, appeals the dismissal of her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Doe sued the District of Columbia government and two of its employees for damages for injuries she allegedly received as a result of appellees' failure to investigate and protect her from abuse and neglect. She contends that the district court erred in ruling that (1) she cannot enforce a provision of the federal Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C. § 5106a(b)(2) (1994), under 42 U.S.C. § 1983 (1994); (2) her claims under District of Columbia law are barred by her failure to provide notice of her claim pursuant to D.C.CODE ANN. § 12-309 (1995); and (3) her procedural due process claim failed because she did not have a liberty interest under the District of Columbia Prevention of Child Abuse and Neglect Act of 1977, D.C.CODE ANN. §§ 2-1351 to -1357 (1994), 6-2102 to-2127 (1995). We affirm the dismissal of the federal statutory claim and find no merit to Doe's due process contention. In view of the absence of controlling precedent, we certify to the District of Columbia Court of Appeals pursuant to D.C.CODE ANN. § 11-723 (1995) the issues relating to notice of claim under § 12-309 and accordingly, we reserve decision on the merits of Doe's claim under District of Columbia law.

I.

According to the complaint and record, 1 the District of Columbia government determined in August 1988 that Jane Doe's mother might be unable to house and feed her three minor children, who were living with her. Because the mother had not paid the rent on her apartment since January 1988, a social worker in the Department of Human Services (DHS) concluded after a home visit that the mother and her children were in imminent danger of being evicted and would need counseling and assistance in resettling. The social worker recommended that the family be referred to the Continuing Services Branch. Although the mother subsequently was evicted from her apartment, Doe alleges that "no further efforts were made by the Continuing Service[s] Branch to provide services necessary to protect [Jane Doe]."

In early January 1989, the mother left the three children in the care of a friend. The mother's friend lived in a public housing apartment with her four children, her sister, and her sister's three children; the apartment allegedly was infested with roaches and rodents and had substantial housing code violations, which endangered Doe's health and safety. On January 20, 1989, the children's maternal grandmother found two of the children abandoned on her front porch. Unable to care for them herself, she called the police and DHS placed both children in a shelter care facility. Jane Doe remained in the care of her mother's friend. Although DHS assigned a social worker to the neglect case involving all three children, the grandmother's complaints, from late February to early March 1989, to the social worker and her supervisor about the improper care that Jane Doe was receiving in the home of the mother's friend were unavailing; neither the worker nor the supervisor investigated Jane Doe's living conditions or responded to requests that she be removed from the friend's home. At the time, Jane Doe was two and one-half years old.

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[320 U.S.App.D.C. 201] On February 23, 1989, Jane Doe suffered severe burns, causing permanent disfigurement on more than one-third of her body, from scalding water in a tub in the mother's friend's home. When the grandmother saw the burns on March 2, 1989, she called an ambulance and Jane Doe was transported to the Children's Hospital National Medical Center. The police interviewed the mother's friend, who admitted that she had not obtained any medical treatment for Doe's severe injuries, and arrested her for mayhem, to which she subsequently pleaded guilty. The following day, March 3, Doe was placed in the shelter care custody of DHS; a neglect petition, signed by the social worker, was filed in the Superior Court of the District of Columbia, pursuant to D.C.CODE ANN. § 16-2301(9)(A), (B) & (F), indicating that Jane Doe remained in the legal custody of her mother.

Jane Doe remained in the hospital for more than five months, continuing in the physical custody of DHS's shelter care program. On August 11, 1989, the Superior Court authorized Doe's conditional release to her grandmother. On December 11, 1989, the Superior Court found, as a result of Doe's injuries, that she was an abused and neglected child.

On January 9, 1990, more than 10 months after Doe was injured but less than five months after she was released from the hospital, counsel representing Doe in the neglect proceedings wrote a letter to the Mayor of the District of Columbia purporting to give notice under D.C.Code § 12-309 of Jane Doe's intent to file the instant lawsuit. The letter adverted to the February 23, 1989, burns allegedly suffered when the mother's friend submerged Doe in scalding water, and alleged that prior to suffering her injuries, her grandmother and aunt had asked DHS to remove Doe from the mother's friend's home because it was an unfit place for children to reside. The letter referred to complaints made prior to Doe's injuries to the social worker, her supervisor, and the Police Department, and stated that DHS had breached a special duty owed to Doe by failing to investigate her living conditions in a timely manner and to take adequate steps to protect her.

In May 1991, the Superior Court committed Doe to the care and custody of the District of Columbia pursuant to D.C.CODE ANN. § 16-2320 (1989 & Supp.1994). Nearly one year later, in April 1992, the Superior Court appointed a guardian ad litem for Doe to investigate her legal claims. On January 13, 1993, Doe's guardian filed suit in federal district court, invoking 42 U.S.C. § 1983 and pendent jurisdiction over claims under District of Columbia law.

In the complaint, Doe alleged that if appellees had responded to her grandmother's reports of abuse and neglect and investigated her case, they would have removed Doe from the home of the mother's friend before she was injured. Her federal statutory claim rests on the contention that by receiving federal funding under CAPTA, 42 U.S.C. §§ 5101-5106h, the District government was obligated to investigate reports of abuse and neglect promptly, as well as to have procedures, personnel, and facilities to address effectively child abuse and neglect cases. 2 Her District of Columbia statutory claim was based on the deprivation of "a panoply of rights" conferred by the District of Columbia Prevention of Child Abuse and Neglect Act of 1977. Doe alleged that the District government's failure to provide adequate staff that was sufficiently trained and supervised to investigate and to have adequate information systems constituted negligence or gross negligence and violated not only her statutory rights but also her rights under the Due Process Clause of the Fifth Amendment of the Constitution.

The district court dismissed the complaint under Rule 12(b)(6). The court ruled that Doe's federal cause of action was foreclosed by Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), in which the Supreme Court held that generalized duties

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[320 U.S.App.D.C. 202] imposed on the states under the Adoption Act created neither a private right of action nor a right enforceable under § 1983. The district court concluded that CAPTA likewise imposed only generalized duties and envisioned that the Secretary of Health and Human Services, not individual beneficiaries, would enforce states' compliance. The district court also dismissed Doe's procedural due process claim, declining to rely solely on the District of Columbia Prevention of Child Abuse and Neglect Act as a source of liberty interests for a plaintiff who is not in the custody of the District of Columbia. Finally, the court ruled that Doe's claims under District of Columbia law were barred by D.C.Code § 12-309. The court concluded that the January 1990 letter from Doe's counsel did not satisfy the statute's mandatory six-month notice requirement and insufficiently identified the place where Doe was injured. The court further ruled that although the police reports of March 2 and 3, 1989, collectively described the place where the injuries occurred and the mother's abandonment of her children, two of whom were in foster care, as well as the doctor's opinion that Doe's injuries were consistent with intentional burning, the reports did not provide statutory notice because they failed to identify any conduct that suggested the District government was liable. In so ruling, however, the district court acknowledged the "extremely close" nature of the case and the novel issue of District...

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