DOE BY NELSON v. Milwaukee County

• Decision Date: 23 May 1989
• Docket Number: Civ. A. No. 86-C-659.
• Citation: 712 F. Supp. 1370
• Parties: S. DOE, a minor, and M. Doe, a minor, both by Craig W. NELSON, their guardian ad litem, M.A. Doe, V. Doe, and E. Doe, Plaintiffs, v. MILWAUKEE COUNTY; Milwaukee County Department of Social Services; and Thomas Brophy, Ed Konkol, Kenneth Richter, Marge Coffey, Peg McCarthy, King Taylor, and John Roe and Jane Roe, individually and in their capacities as employees and officers of Milwaukee County and the Milwaukee County Department of Social Services, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

712 F. Supp. 1370

S. DOE, a minor, and M. Doe, a minor, both by Craig W. NELSON, their guardian ad litem, M.A. Doe, V. Doe, and E. Doe, Plaintiffs, v. MILWAUKEE COUNTY; Milwaukee County Department of Social Services; and Thomas Brophy, Ed Konkol, Kenneth Richter, Marge Coffey, Peg McCarthy, King Taylor, and John Roe and Jane Roe, individually and in their capacities as employees and officers of Milwaukee County and the Milwaukee County Department of Social Services, Defendants.

Civ. A. No. 86-C-659.

United States District Court, E.D. Wisconsin.

May 23, 1989.

Craig W. Nelson, Piette, Nelson, Zimmerman & Dries, S.C., Milwaukee, Wis., for plaintiffs.

Robert Andrews, Milwaukee County Corp. Counsel, Milwaukee, Wis., for defendants.

DECISION and ORDER

TERENCE T. EVANS, District Judge.

Joshua DeShaney will never know it, unfortunately, but he has had a dramatic impact on constitutional law. The case that grew out of his tragedy—decided last February by the Supreme Court—is already affecting law suits across the country. Compare DeShaney v. Winnebago County Department of Social Services, 489 U.S. ___, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (Wisconsin officials who had reason to know that a child was being abused by his father did not violate the child's due process rights in failing to protect him from beatings that caused severe brain damage) with Burgos v. Camareno, 708 F.Supp. 25 (D.P.R.1989) (citing DeShaney, court dismisses claim that officials violated due process by failing to protect plaintiffs' buildings from burglaries). By way of local example, I recently cited the DeShaney case in dismissing a complaint brought against city officials who allegedly failed to detect the hazards in a house that later burned down, killing several children. Baugh v. City of Milwaukee, Civil Action No. 88-C-1230 (E.D.Wis. Mar. 8, 1989).

This case, too, has been touched by DeShaney. Like Joshua, the minor plaintiffs in this case are children who were abused by adults. As in Joshua's case, social workers were tipped off to the abuse. And here, like there, they did not protect the children from additional abuse. In fact, the defendants in this case did not even conduct an investigation upon receiving the tip—something that was done, albeit ineptly, in DeShaney.

Nevertheless, I am afraid that the plaintiffs in the case before me, like Joshua, can find no relief in constitutional law or federal court. Though these plaintiffs come very close to stating a claim for the deprivation of an entitlement without due process —an issue that was not addressed in DeShaney—their arguments ultimately fall short. For better or worse, then, their remedies, if any, must lie in tort law and state court. DeShaney so holds. The complaint will be dismissed.

FACTS

The facts have been drawn from the pleadings as well as from exhibits and deposition testimony supplied by the parties.

S. Doe and M. Doe¹, now eleven, were six years old in early 1985. They are the daughter and son of father M.A. Doe and mother D. Doe. V. Doe and E. Doe are M.A. Doe's parents—that is, the children's grandparents. During the relevant period, the individual defendants were employees of the Milwaukee County Department of Social Services (DSS).

In January 1985, M.A. Doe and D. Doe were separated and involved in a divorce proceeding. The mother, who was living with a male companion, had temporary custody of the children. The father was entitled to visitation, and much of his visiting occurred at the home of the grandparents.

On January 1, 1985, D. Doe and her boyfriend ordered Kathy, a live-in babysitter, to move out of their home. Kathy sought out M.A. Doe and told him she was concerned about the safety of the children. The children were being beaten and forced to participate in "Satan worship," Kathy told M.A. Doe (he recalled during his deposition). At about the same time, grandmother E. Doe noticed while bathing S. Doe that the girl's genital area was red and raw. The girl said it hurt, but would not say what had happened.

On January 10, 1985, M.A. Doe, the grandparents, Kathy, and a friend who is a registered nurse went to the Milwaukee DSS to report the suspected abuse. They were interviewed by caseworker Patricia Ryan, who is not a defendant. Based on the interview, Ryan prepared an "Access Referral" form that contained the following information. (The quotes are from her report.)

* The boyfriend had recently been released from federal prison, where he served time for bank robbery. At 6'3" and 200 pounds, he "has a violent temper, & claims to have killed at least 4 people." He scared the children with voodoo and black magic.

* Kathy was in the home "until recently" and observed "rough treatment" of the children. "He grabs them roughly & the children have frequent bruises." The mother let him take over disciplining the kids.

* The mother and boyfriend smoked marijuana and drank heavily. The children observed them having sexual intercourse.

* The grandmother noticed that S. Doe's genital area was red and raw, but the girl would not say why. The girl had also become "quiet and uncommunicative recently & has been doing poorly in school."

* The children "begged to stay w/the grandparents," and the reporting adults "fear that boyfriend will harm children."

Ryan later testified in a deposition that she believed that the complainants' concerns were legitimate.

In the normal course of things, one of two DSS offices would handle such a report —either the protective services unit, headed by defendant King Taylor, or the child sexual abuse team, headed by defendant Margaret (Peg) McCarthy. McCarthy read the Ryan report and decided that it did not contain enough information to warrant an investigation by her staff. McCarthy and Taylor then discussed the report with their supervisor, defendant Kenneth Richter. They concluded that the matter did not call for further inquiry. The report was marked "IO"—for "information only" —and was not assigned to a caseworker for investigation.

According to McCarthy, DSS supervisors follow an unwritten policy of routinely putting an IO notation on those reports in which the information provided to the worker "does not cover things as specified in the child abuse statute"—when there is "not sufficient information to say that there probably was abuse or neglect or sexual abuse occurring to send a worker out." She added during her deposition:

The procedure in the department is to notify, if we know who the reporter is, of our decision to not investigate, explain usually the reasons why, what other kinds of things they can do to get additional information, what they should do if they get additional information, who to call.

In the case of the Doe children, McCarthy testified that she thought IO was an appropriate response because (1) S. Doe would not say why her genital area hurt, (2) an alleged abuser's criminal record is "not reasonable cause to suspect that he's done anything to a child unless there's additional information," (3) a person's religious beliefs "cannot be construed as a form of maltreatment," (4) S. Doe's withdrawal alone did not "meet the statutory burden of the definition" of "emotional damage" in § 48.13(11), Wis.Stat., which governs when courts can order protective services for children, and (5) "we can't capriciously go out and investigate any family without reasonable cause to suspect that the children have been abused or neglected."

King Taylor contacted the grandmother and told her how the adults could gather additional information to support their suspicion. He instructed her to have M.A. Doe contact his attorney to change the children's custody arrangements. The reporting plaintiffs made a second complaint one week later, and DSS then took action to protect the children. But before they could be protected, the children were subjected to additional abuse by the boyfriend. The boyfriend was eventually charged with sexual abuse, but he and the children's mother died before any trial. They died within two months of the adult plaintiffs' first report to DSS.

In Wisconsin, the reporting and investigation of child abuse and neglect are governed by section 48.981 of the Wisconsin Statutes. Because this statute will figure prominently in my decision, the pertinent provisions of the 1985 law are reprinted here in full:

(2) PERSONS REQUIRED TO REPORT. A physician, coroner, medical examiner, nurse, dentist, chiropractor, optometrist, other medical or mental health professional, social or public assistance worker, school teacher, administrator or counselor, child care worker in a day care center or child caring institution, day care provider, alcohol or other drug abuse counselor, member of the treatment staff employed by or working under contract with a county department under s. 46.23, 51.42 or 51.437, physical therapist, occupational therapist, speech therapist, emergency medical technician—advanced (paramedic), ambulance attendant or police or law enforcement officer having reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected or having reason to believe that a child seen in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur shall report as provided in sub. (3). Any other person, including an attorney, having reason to suspect that a child has been abused or neglected or reason to believe that a child has been threatened with abuse or neglect and that abuse or neglect of the child will occur may make such a report. No person making a report under this subsection may be discharged from employment for so doing.

(3) REPORTS; INVESTIGATION. (a) Referral of report. A person required to report under sub. (2) shall immediately inform, by telephone or personally, the county department or the sheriff or city police department and, in the case of American Indian children, the tribal government

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