Billado v. Appel

• Decision Date: 11 October 1996
• Docket Number: No. 94-631,94-631
• Citation: 165 Vt. 482,687 A.2d 84
• Court: Vermont Supreme Court
• Parties: Jeffrey BILLADO, et al. v. Janis APPEL, et al.

Page 84

687 A.2d 84

165 Vt. 482

Jeffrey BILLADO, et al. v. Janis APPEL, et al.

No. 94-631.

Supreme Court of Vermont.

Oct. 11, 1996.

Robert K. Andres, Burlington, and Gordon Nicholson (on the brief), Highgate Springs, for plaintiffs-appellants.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane, Assistant Attorney General, Waterbury, for defendants-appellees.

Before GIBSON, DOOLEY and JOHNSON, JJ., and BURGESS, District Judge, Specially Assigned. ¹

DOOLEY, Justice.

Plaintiffs Jeffrey Billado and his minor children brought this tort and civil rights action against Vermont Department of Social and Rehabilitation Services (SRS) workers Janis Appel, Kelly Keefer Woodward, and Janet Dunigan, claiming that their actions with respect to the children caused plaintiffs' injuries. Summary judgment for defendants was granted by the Franklin Superior Court based on a finding that each was immune from suit with respect to the actions alleged. Plaintiffs have appealed this decision with respect to their civil rights claims, brought under 42 U.S.C. § 1983. We affirm.

The facts are derived from the complaint and the affidavits and documents submitted in connection with the motion for summary judgment. Most of the facts are undisputed.

Jeff and Melanie Billado were married on February 25, 1984. They had three children, Brandi, Courtney, and Jeffrey, Jr., between 1984 and 1987. The marriage was unstable, with recurring domestic violence, and the parties separated on many occasions for short periods of time. In August 1989, Melanie permanently moved out of Jeff's home to move in with her boyfriend, Joe Vincelette, taking the three children with her; she eventually went to Florida. In September, she reported to Florida authorities and to SRS that her husband had sexually abused the children.

Melanie's actions resulted in both parents filing abuse prevention petitions on September 7, 1989. At one point, temporary custody of the children was awarded to Melanie, and at another point it was awarded to Jeff. Jeff also filed for divorce. A hearing was held on September 27th, resulting in an order that "children are placed in the protective custody of SRS to determine proper placement." There is no indication that SRS was a party to the abuse prevention proceedings or sought this order. Apparently, SRS took custody of the children pursuant to the abuse prevention order.

Meanwhile defendant Woodward investigated the charge that Jeff had sexually abused the children, and after interviewing Melanie, Jeff and the children, concluded that the charge was substantiated with respect to Brandi. To the extent it can be determined from the documents, the conclusion is based primarily on a statement of Brandi. Woodward was also concerned about the presence of Vincelette in Melanie's home because earlier in the year he had been convicted of committing a lewd act on the body of a fourteen-year-old child who was residing temporarily with him. On Woodward's request and based on her affidavit, the Franklin County States Attorney brought a CHINS petition with respect to the children and sought and obtained an ex parte detention order on September 29, 1989, two days after the abuse prevention order. The children were placed in foster care.

In November 1989, the CHINS petition was dismissed, and another round of abuse prevention petitions was filed. These resulted in a final relief-from-abuse order, to last for one year, that provided in pertinent part: (1) Melanie was to have custody of the children; (2) Jeff was to be given visitation rights; (3) Melanie could not allow contact between the children and Joe Vincelette; and (4) both Melanie and Jeff were not to consume alcohol or regulated drugs. While this order was in effect, Jeff complained on several occasions to SRS that Melanie was allowing contact between the children and Vincelette and was consuming alcohol. An SRS worker, who is not a defendant in this action, wrote to the Franklin Family Court in February 1990 that she had observed Vincelette at Melanie's home. In March, Jeff brought a contempt motion and sought an order giving him custody of the children. Defendants Dunigan and Appel appeared in court with Melanie, and Melanie's lawyer argued that SRS supported the presence of Vincelette in the home.

Melanie's situation deteriorated, and on May 11, 1990 she was taken to a detox center for alcohol abuse. By June, it became clear that she could not continue to care for her children. At the contempt hearing, the court gave Melanie the option of giving SRS custody of the children or granting custody to Jeff. Melanie agreed to place the children in the custody of SRS under a voluntary care agreement. The children were placed by SRS with foster parents. The court order, issued June 5, 1990, allowed Jeff visitation at the foster home, prohibited contact between the children and Vincelette, and required Melanie to attend Alcoholics Anonymous meetings.

The court also ordered a family evaluation, and it was performed in July and August by Champlain Valley Psychiatric Services. Three professionals interviewed all the persons in or involved with the family and conducted home studies. The report, filed at the end of August, disclosed that Melanie lived with Vincelette and that Brandi charged she had been sexually abused by Vincelette at some point in the past. The allegation of sexual abuse by Vincelette was communicated to SRS in July and investigated by Woodward. She interviewed Vincelette, Brandi, Courtney, Jeff, Melanie, the foster parents, Melanie's aunt, and the doctor who had heard the charge in her interview with Brandi. Woodward determined that the charge was not substantiated.

On learning in July that Vincelette was present when the children visited Melanie from the foster home, defendant Appel directed that all visitation by Melanie be supervised to ensure Vincelette was not present. Apparently, that direction was carried out.

Melanie provided defendant Appel a copy of the Champlain Valley Psychiatric Services report when it was issued. The June order was continued on August 31, with a direction that the voluntary care agreement continue to October 5th. Visitation for Melanie was provided "subject to the supervision and/or approval of SRS." Melanie again was ordered not to permit contact between Vincelette and the children.

On the expiration of the voluntary care agreement, with Melanie demanding that the children be returned to her, the Franklin County States Attorney filed another CHINS petition and obtained an emergency detention order to keep the children in foster care. The supporting affidavit from defendant Dunigan itemized the history, including the concern about the presence of Vincelette in Melanie's home, and sought continued SRS custody to prevent sole custody going to either parent. On October 29th, the petition was dismissed and the detention ended.

Dueling abuse prevention orders again ensued. Under one order, Jeff was given custody on October 29th. Four hours later a different judge issued another order giving custody to Melanie. On November 7, 1990, after hearing, the family court temporarily awarded custody to Melanie, with weekend visitation by Jeff, and again ordered no contact with Vincelette. In July 1991, the order was amended to grant custody to Jeff. The final divorce order, issued in December 1991, granted custody to Jeff.

On May 5, 1992, Jeff, on behalf of himself and the children as their next friend, brought this action against defendants Woodward, Appel and Dunigan. The complaint has forty-one counts and alleges defendants committed torts and violated 42 U.S.C. § 1983, as discussed below. It was brought against defendants in their individual and official capacities. On motion of defendants, the court dismissed the § 1983 counts against defendants in their official capacities. That order has not been appealed. Other motions to dismiss were denied. On June 14, 1993, plaintiff filed an amended complaint that provided that most of the actions were taken by defendants along with the State of Vermont. The State was not named as a party. In January of 1994, defendants filed a motion for summary judgment primarily on the ground that defendants were immune from suit against the actions itemized in the complaint. The superior court granted the motion with respect to all counts on September 16, 1994. This appeal involves only the counts alleging that defendants violated the Civil Rights Act, 42 U.S.C. § 1983.

At the outset, we restate the familiar standard for review of a summary judgment decision. Summary judgment should be granted when, taking all allegations by the nonmoving party as true, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Madden v. Omega Optical, Inc., --- Vt. ----, ----, 683 A.2d 386, 389 (1996). This Court applies the same standard as the trial court. Id. As discussed below, the issue before us is one of law, and none of the parties contend that it was inappropriate to resolve it on summary judgment.

Plaintiffs' position is that, absent immunity, their allegations made out a case for liability under § 1983; that absolute immunity does not apply; and that the elements of qualified immunity are not present. Plaintiffs also argue that they should have been allowed to engage in discovery before responding to the motion for summary judgment. Defendants contest whether plaintiffs' allegations would, if proven, establish liability under § 1983; argue that absolute immunity applies to some of defendants' alleged actions; and further argue that if qualified immunity applies, it covers all of defendants' alleged actions. As they did below, defendants resist any discovery before the immunity issue is decided.

A brief review of immunity law in § 1983 cases is helpful to put these arguments in context, before we address the specific allegations of plaintiffs'...