Abdouch v. Burger

• Decision Date: 20 October 2005
• Docket Number: No. 04-3966.,04-3966.
• Citation: 426 F.3d 982
• Parties: Melissa ABDOUCH, Plaintiff-Appellant, v. Vicki BURGER; Raina Boyum; Kathrin Betzing; Alison Downs, in their individual capacities and in their capacities as employees of the South Dakota Department of Social Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

426 F.3d 982

Melissa ABDOUCH, Plaintiff-Appellant, v. Vicki BURGER; Raina Boyum; Kathrin Betzing; Alison Downs, in their individual capacities and in their capacities as employees of the South Dakota Department of Social Services, Defendants-Appellees.

No. 04-3966.

United States Court of Appeals, Eighth Circuit.

Submitted: September 15, 2005.

Filed: October 20, 2005.

COPYRIGHT MATERIAL OMITTED

Michael D. Bornitz, argued, Sioux Falls, South Dakota, for appellant.

Matthew T. Tobin, argued, Sioux Falls, South Dakota (Shannon Falon, on the brief), for appellee.

Before MELLOY, BEAM, and BENTON, Circuit Judges.

MELLOY, Circuit Judge.

Melissa Abdouch brought this action under 42 U.S.C. § 1983 against the defendants, a group of South Dakota social workers. She alleged that after the defendants discovered her infant son had seventeen broken bones, they violated her constitutional rights by removing him from her care for a period of approximately seven months. The district court¹ found the defendants entitled to qualified immunity and granted summary judgment in their favor. We affirm.

I.

Melissa Abdouch and her husband, Michael Abdouch, lived with their three children: A.A., B.A., and C.A. On August 8, 2002, Melissa took the youngest child, eleven week-old C.A., to a cardiologist because of a heart murmur. The cardiologist took a chest x-ray that revealed multiple fractured ribs. The next day, August 9, the Abdouch's family physician informed Melissa that the x-ray had revealed "bone abnormalities." He asked her to bring C.A. to a hospital emergency room. A physical exam and x-rays taken at the emergency room revealed that C.A. had seventeen fractures including fractures of the ribs and clavicle and of the arms and legs, both above and below the joints. Despite the severity and extent of C.A.'s injuries, all doctors involved with the case later concurred that the injuries would not have been apparent to a lay person.

Two police detectives interviewed Melissa and Michael, starting at the hospital and continuing at a police station. The police quickly focused on Michael as the suspected abuser, although there was little evidence to suggest what role each parent might have played. Melissa and Michael denied harming C.A. and denied having knowledge of any abuse. When Michael was later deposed, however, he admitted that he had anger management issues and that Melissa had encouraged him to seek anger management help or counseling at about the time that the doctors discovered C.A.'s injuries.

Defendant Alison Downs was the Department's intake social worker assigned to the case. She was present at the police station. Downs permitted Melissa to take C.A. home on August 9 on the condition that Michael not stay at the family's home.

The following day, August 10, Melissa brought the older children to the hospital for evaluation. Although neither exhibited signs of abuse, Downs and her supervisor, defendant Raina Boyum, decided to remove all three children from the home and place them in a care center. Downs completed a "Child Placement Agreement and Case Plan" form for each child to authorize the care center to provide services. In addition to noting C.A.'s severe injuries, Downs noted on the forms that there was possible sexual abuse. Boyum initialed the forms. There was no evidence of sexual abuse.

Also on August 10, Downs told Melissa that there would be a temporary custody hearing the following day and that she would recommend the court send the three children home with Melissa. On August 11, at the hearing, Downs did not make the recommendation. After the hearing, Downs and Boyum released A.A. and B.A. to Michael's parents and placed C.A. in foster care. Michael returned home to live with Melissa. Melissa had urged that C.A. be placed with the children's grandparents, who were willing to take C.A. into their home and/or move to care for C.A. in a different location. Following C.A.'s placement in foster care, Melissa and Michael were each allowed one one-hour supervised visit per week.

On August 18, Downs completed an information collection form. She marked boxes to indicate that C.A. had suffered physical abuse in the "head, face, genitals, stomach or back area." She marked boxes to indicate that C.A. required "immediate medical attention," that there was "no evidence" of sexual abuse, and that there had been "frequent or increasingly harsh physical contact." She also marked boxes to indicate that Melissa was "emotionally handicapped" and had an "uncontrolled mental illness." Finally, without noting which caretaker she was referring to, Downs marked boxes to indicate that the caretaker had an "unrealistic expectation of [the] child's behavior" and did not "believe that there is a problem."

After Downs and Boyum completed their initial investigation and intake, case manager Kathrin Betzing and her supervisor, Vicki Burger, took over the case. According to Betzing and Burger, C.A. did not tolerate the supervised visits from Michael and Melissa well and screamed and refused to eat after the visits. During one of Michael's visits, Michael became frustrated and called C.A. a "little shit." Melissa contests the Department's claim that C.A. did not tolerate her visits well.

An Assistant Attorney General involved in the case, Anthony Sanchez, recommended that the Department terminate the supervised visits. Sanchez stated that Melissa was not cooperative in the abuse investigation and that he did not want her to have more visits until he knew "what part [Melissa] had in the child's injuries, whether she actually caused them or . . . knew [Michael] caused them." Betzing and Burger decided in September to terminate the visits. At about the same time, they decided to seek the termination of Michael's and Melissa's parental rights regarding C.A.

Melissa testified that she wanted to remain married to Michael and have her children at home. She initially appeared not to believe that Michael had abused C.A. She testified that she was told by the Department that she would not regain custody of her children if she remained married to Michael. She requested that C.A. be tested for a rare congenital disease that causes brittle bones, osteogenesis imperfecta. C.A. was tested in late September and found not to have the disorder. Melissa filed for divorce on October 5, 2000, one week after she received the test results. The divorce became final on January 20, 2001. The January divorce decree did not resolve any issues of child custody and visitation between Michael and Melissa. When asked, Melissa could not say whether she would have filed for divorce if the Department had not recommended that she do so.

Notwithstanding the fact that Melissa filed for divorce, Michael continued to live with Melissa until just before a state court adjudicatory hearing on October 18. At the hearing, a state court judge relied on the medical evidence of C.A.'s injuries to determine that C.A. was an abused or neglected child. After the hearing, C.A.'s placement in foster care continued, and the two older children returned to the family's home to live with Melissa.

Investigators who visited Melissa's home after Michael moved out reported that it appeared that a married couple still lived at the home. Further, in discussions with one of the social workers before Michael moved out, Melissa initially lied about Michael's living arrangements. Melissa first stated that Michael had already moved and that he was living with a friend. When pressed to give the friend's name, however, Melissa became flustered and admitted that Michael still lived at home. Based on this deception, Melissa's reluctance to believe that Michael had abused C.A., and her claimed ignorance that abuse had occurred, the defendants believed that Melissa had filed for divorce only as a pretext to regain custody of C.A.

A criminal investigation continued throughout this time. A prosecutor, Pam Tiede, filed an abuse and neglect petition. Michael eventually admitted that he had treated C.A. roughly, that he "lost his cool," and that he must have injured C.A., although he said he did not purposely injure C.A. In November, he agreed to plead guilty to simple assault. He entered a guilty plea on February 22, 2001.

Melissa's visits with C.A. resumed in December 2000. Melissa's visits were initially once per week and later twice per week. In January 2001, she was allowed to take C.A. on home visits. In February 2001, Melissa was permitted to begin taking C.A. on overnight visits. On March 15, 2001, C.A. was conditionally returned to Melissa on a full-time basis. Following a custody hearing on June 13, 2001, all conditions on Melissa's custody of C.A. were removed.

Notwithstanding the transitioning of C.A. back into Melissa's custody, Betzing and Burger continued to seek termination of Melissa's parental rights. Before the June 13 hearing, Prosecutor Tiede told Burger and Betzing that she didn't believe there was sufficient evidence to terminate Melissa's parental rights. At Burger's and Betzing's request, Assistant Attorney General Sanchez took the case from Tiede. Sanchez reviewed the case, and with Burger and Betzing, decided not to pursue the termination of rights. They did not notify Melissa of this decision until June 13, the day of the hearing. At the hearing, the Department sought termination of Michael's parental rights and sought continuation of the case against Melissa to permit continued monitoring of C.A. The court dismissed all proceedings as against Melissa and deferred the case as to Michael.

Melissa brought her claims in the present action under § 1983. She concedes that it initially was appropriate for the defendants to remove the children from her home. She alleges, however, that the defendants continued to seek the termination of her parental rights after it became clear that the defendants could not make the showing necessary to terminate her rights. She characterizes...