Bird v. Hawai'i

• Decision Date: 23 August 2019
• Docket Number: No. 17-16076,17-16076
• Citation: 935 F.3d 738
• Parties: Courtney BIRD, Plaintiff-Appellant, v. State of Hawai‘i; DEPARTMENT OF HUMAN SERVICES; DHS, Social Services Division, Child Welfare Services Branch; Pankaj Bhanot, Department of Human Services Director; Jeffrey R. Woodland; Does, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

935 F.3d 738

Courtney BIRD, Plaintiff-Appellant,

v.State of Hawai‘i; DEPARTMENT OF HUMAN SERVICES; DHS, Social Services Division, Child Welfare Services Branch; Pankaj Bhanot, Department of Human Services Director; Jeffrey R. Woodland; Does, Defendants-Appellees.

No. 17-16076

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2019

Submission Vacated February 26, 2019

Filed August 23, 2019

PER CURIAM:

On March 28, 2007, plaintiff-appellant Courtney Bird returned home from a dentist appointment to find her then-husband administering CPR to their seven-week-old baby, who later died at the hospital of cardiac arrest

. As a result of the infant’s death, the Hawai‘i Department of Human Services ("DHS") listed both Bird and her husband on the state’s Central Child Abuse Registry ("CCAR"). Bird’s husband later confessed to killing their infant baby and the criminal investigation concluded that Bird was not a suspect. DHS, however, did not remove Bird’s name from the CCAR. Throughout this time, DHS never told Bird that she was listed on the registry.

Bird did not learn that she had been listed on the CCAR until June 2012—more than five years later—when the report turned up on a background check. When a request for a hearing and various communications with DHS failed to result in Bird’s removal from the CCAR, Bird’s attorney threatened DHS in May 2013 with suit in federal court. Bird did not file suit, however, until July 20, 2015—more than two years after her extensive communications with DHS and previous threat to sue. The district court determined that Bird’s claims brought under 42 U.S.C. § 1983 were untimely and granted summary judgment in favor of the State.

Because Bird’s complaint is not subject to any exception from the normal discovery rule of accrual, we agree that Bird’s claim accrued no later than May 2013, when Bird threatened to sue DHS if she was not removed from the CCAR. We affirm.

I. FACTS AND PROCEEDINGS BELOW

A. Statutory Background

Like most states, Hawai‘i law requires DHS to maintain a central registry for reports of child abuse or neglect. See Haw. Rev. Stat. § 350-2(d) ("The department shall maintain a central registry of reported child abuse or neglect cases ...."). "Central registry reports are typically used to aid agencies in the investigation, treatment, and prevention of child abuse cases .... Central registry records also are used to screen persons who will be entrusted with the care of children," such as "individuals [who] apply[ ] to be foster or adoptive parents or child or youth care providers." Establishment and Maintenance of Central Registrations for Child Abuse or Neglect Reports at 2, Child Welfare Information Gateway: U.S. Dep’t of Health & Human Serv., Children’s Bureau (2018).

At times relevant to this suit, § 350-2 further provided that reports maintained in the central registry "shall [be] promptly expunge[d] ... if: (1) The department has found the reports to be unsubstantiated; or (2) The petition arising from the report has been dismissed by order of the family court after an adjudicatory hearing on the merits." Act of May 18, 2017, sec. 3, § 350-2(d), 2017 Haw. Sess. Laws 60, 61–62.¹ The statute stated that "a report is unsubstantiated only when the department has found the allegations to be frivolous or to have been made in bad faith." Id. The statute provided, and continues to provide, however, no procedures by which DHS should investigate, record, or expunge reports in the CCAR. Such procedures are left to "the department’s rules." Haw. Rev. Stat. § 350-2(a).

The Hawai‘i Administrative Rules require DHS to record accused individuals in the CCAR whenever it receives a report of serious child abuse. Haw. Admin. R. § 17-1610-18. DHS is simultaneously required to commence an investigation. Id. At the conclusion of its investigation, DHS will declare the report "confirmed," "not confirmed," or "unsubstantiated." Id. § 17-1610-19(a)(1)–(3). Only a report declared "unsubstantiated" will be expunged from the CCAR. Id. § 17-1610-19(a)(1). In cases where the report is declared "confirmed" or "not confirmed," the individuals subject to the allegations remain on the CCAR. See id. § 17-1610-19(a)(2), (4).² The regulations specify that DHS "shall comply with requests from other states to check its central registry for the purpose of conducting background checks in foster or adoptive placement cases." Id. § 17-1610-19(a)(5).

Once DHS has completed its investigation and determined that an accused individual should remain on the CCAR, state regulations require DHS to give written notice to the "identified perpetrator or maltreater." Id. § 17-1610-11(c). Anyone "dissatisfied with the disposition of the department’s assessment or action taken by the department" has two routes for challenging his or her inclusion in the CCAR. Id. § 17-1610-12(b). First, if DHS has not yet commenced any proceeding against the listed individual in family court, he or she may file an administrative appeal. Id . At the appeal, however, the listed individual remains subject to the requirements for expungement laid out in Hawai‘i Revised Statutes § 350-2, which at all relevant times in this case required the listed individual to prove that the report was "unsubstantiated," in other words, that it was "frivolous or ... made in bad faith." Act of May 18, 2017, sec. 3, § 350-2(d), 2017 Haw. Sess. Laws 60, 61–62. If the listed individual was unable to meet this exacting standard, he or she remained on the registry.

Alternatively, if DHS has petitioned the family court for custody of the listed individual’s child(ren), the listed individual is not permitted to seek administrative review. Haw. Admin. R. § 17-1610-12(c). Instead, the listed individual’s exclusive means by which to expunge his or her listing in the CCAR is to prevail at an adjudicatory hearing before the family court. Haw. Rev. Stat. § 350-2(d)(2). At the adjudicatory hearing, the family court will determine "[w]hether the child’s physical or psychological health or welfare has been harmed or is subject to threatened harm by the acts or omissions of the [listed individual]." Haw. Rev. Stat. § 587A-28(d)(1). Significantly, if DHS returns custody of the child and settles the family court proceeding before it reaches the adjudicatory phase, the statutory scheme leaves listed individuals who are wrongfully listed in the CCAR with no recourse for expunging their names. See id.

B. Factual Background

In 2003, Bird married Frank Fontana and two years later gave birth to a daughter, T.F. Fontana, who worked for the Navy, was subsequently transferred to Hawai‘i. Bird and their daughter accompanied him to Hawai‘i to live in base housing.

Shortly after their arrival, in February 2007, Bird gave birth to a second daughter, C.F. Over the next six weeks, between early February and March 20, C.F. was examined by over thirty healthcare personnel in multiple well-child checks, and as she was treated for jaundice

, wheezing, apnea induced by acid reflux, and a fever. Over the course of this treatment, C.F. underwent two chest x-rays, neither of which showed any injuries. None of the doctors and nurses that treated C.F. ever noted any signs of abuse or neglect.

On March 28, Bird returned home from a dentist appointment to find Fontana administering CPR to C.F. C.F. was transported by ambulance to Tripler Army Medical Center, where she died of cardiac arrest

. The doctors and nurses who examined C.F. noted multiple bruises on her body, evidence of a fractured rib, and evidence of possible fractures in her femurs. As a result, an emergency department nurse at the hospital called the Child Welfare Services branch ("CWS") of DHS to report a case of possible child abuse.

In accordance with its regulations, DHS listed both Bird and Fontana on the CCAR and initiated an investigation. On April 2, an investigative multidisciplinary team concluded that C.F.’s death was likely due to child maltreatment, and recommended that DHS seek custody of Bird and Fontana’s remaining daughter, T.F. On the basis of this report, CWS concluded on April 5 that the alleged physical abuse of C.F. by her parents, Fontana and Bird, was "confirmed." DHS then filed a Petition for Foster Custody of their remaining daughter, T.F., with the family court. DHS, however, failed to give Bird notice that she was now listed on the CCAR as a "perpetrator or maltreater."

At the same time, Naval Criminal Investigative Services ("NCIS") initiated an investigation into the death of C.F. In July 2007, Fontana "confessed [to Navy investigators] to harming [C.F.] with actions that caused [her] death." Fontana was charged with first degree murder and subsequently pled guilty to the crime. In November 2007, NCIS reported to DHS that "[Bird was] not a suspect" in their on-going investigation. Nevertheless, because DHS did not conclude that its initial assessment was "frivolous or in bad faith," DHS took no action and Bird remained on the CCAR as a "confirmed" child abuser.

Meanwhile, Bird was still engaged with the family court in an attempt to regain custody of T.F. "After months of home checks, supervised visits, and evaluations by various medical and social work professionals," Bird was granted physical custody of T.F. in November 2007. In December, the family court authorized Bird to leave Hawai‘i with T.F. and return to Tennessee where she could live with her father on the condition "that Tennessee DHS approves the ... placement, and Tennessee DHS puts in writing that services for [Bird] and [T.F.] will be in place when mother and daughter arrive in Tennessee, and both are received by the Court." In June 2008, the Hawai‘i family court terminated its jurisdiction and revoked the prior order of family supervision. Although the family court entered no findings with respect to Bird’s alleged mistreatment of C.F., it found that "[T.F.’s] family can provide a safe family home without the assistance of a service...