Forrester v. Bass

• Decision Date: 07 February 2005
• Docket Number: No. 04-1923.,04-1923.
• Citation: 397 F.3d 1047
• Parties: D. Scott FORRESTER, Conservator of the Estate of Jerry Bass; Jerry Bass, Appellees, v. Mary BASS; Tony Dixon, Defendants, Kimberly Rosa; Melissa Johnson, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

397 F.3d 1047

D. Scott FORRESTER, Conservator of the Estate of Jerry Bass; Jerry Bass, Appellees, v. Mary BASS; Tony Dixon, Defendants Kimberly Rosa; Melissa Johnson, Appellants.

No. 04-1923.

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2004.

Filed: February 7, 2005.

COPYRIGHT MATERIAL OMITTED

Joel E. Anderson, argued, Asst. Atty. Gen., Jefferson City, MO (John Mollenkamp, on the brief), for appellant.

Christopher P. Sweeney, argued, Kansas City, MO (John E. Turner, on the brief), for appellee.

Before RILEY, McMILLIAN, and GRUENDER, Circuit Judges.

RILEY, Circuit Judge.

Mary Bass (Bass), with her live-in partner, cruelly tortured and starved her five minor children. Two eight-year old sons, Larry and Gary, died from the abuse. D. Scott Forrester (Forrester), as personal representative of the estates of Larry and Gary Bass and as conservator of the estate of Jerry Bass, the surviving triplet, and Jerry Bass (Jerry), individually, filed this civil rights and wrongful death action against Kimberly Rosa (Rosa) and Melissa Johnson (Johnson), two social workers employed by the Missouri Department of Social Services (MDSS) Division of Family Services (DFS). Forrester pled federal due process and state law claims, seeking damages resulting from Rosa's and Johnson's alleged violations of Missouri's child welfare statutes.

Rosa and Johnson moved for summary judgment, asserting the affirmative defenses of the public duty doctrine, official immunity, and qualified immunity. The district court determined the public duty doctrine did not apply, but granted summary judgment to Rosa and Johnson on the state law claims because Rosa and Johnson had acted in their discretionary roles and, consequently, are officially immune from suit. The district court denied Rosa and Johnson qualified immunity on the federal due process claims. Rosa and Johnson appeal the denial of qualified immunity. Concluding Forrester failed to plead viable federal due process claims, we reverse.

I. BACKGROUND

A. Factual Summary

In March 1995, DFS received the first of many hot line calls alleging Bass was battering and starving her five children, Rodney, Catina, and triplets, Larry, Gary, and Jerry. DFS investigated various abuse and neglect reports and visited the Bass home; however, DFS never deemed the hot line reports warranted local law enforcement notification or removal of the children from the home. On August 16, 1999, DFS received a hot line call in Jefferson City, Missouri. The caller reported: (1) scratches were seen on Larry's chest; (2) Bass was starving her children as punishment; (3) Bass had locked Rodney in the basement; (4) the children were searching through trash cans for food; (5) all five children appeared dehydrated and malnourished with sunken eyes and protruding ribs; and (6) the children were so weak they could not drink from a glass without assistance. The hot line information was faxed immediately to Kansas City, Missouri, where a DFS employee screened the information according to MDSS protocol and determined a family assessment and services approach,¹ rather than an investigation,² was warranted.

Johnson was assigned to perform a family assessment that day on the Bass family. Johnson went to the Bass home, where she met Bass's live-in boyfriend, Tony Dixon (Dixon) at the front gate. Dixon told Johnson Bass was working and the children were not at home. Johnson told Dixon to have Bass call her. The following day Bass called Johnson at work, and Johnson returned to the Bass home to perform a family assessment. During her visit, Johnson talked to Bass, and interviewed three of the children, Ronald, Catina, and Jerry. Johnson did not see or interview Larry and Gary. Bass told Johnson that, due to their behavioral problems, Larry and Gary lived with their natural father. The children also told Johnson that Larry and Gary were living with their father. Dixon, however, told Johnson that Larry and Gary were out of town visiting their grandparents. Johnson recognized the discrepancy and recorded Dixon's seemingly contradictory statement on the family assessment form. Johnson also noted Bass "was to contact [Johnson] if Larry + Gary returned home." At no time did Johnson verify Larry's and Gary's whereabouts.

Johnson spent an hour in the Bass home. She confined her visit to the living room, which she observed to be very clean. Johnson smelled food cooking on the kitchen stove. Bass denied ever punishing her children by locking them in the basement or by withholding food from them. The children told Johnson that Bass took good care of them. The children denied Bass withheld food, locked them in the basement, or otherwise abused them. Bass attested that Johnson assured Bass she would follow-up with another visit in two weeks. The family assessment form does not indicate any intention to follow-up, nor did Johnson follow up with the family.

Following her home visit, Johnson determined no social services were needed, and she concluded the Bass children were safe, despite never seeing Larry and Gary. Johnson turned in her family assessment report without completing a mandatory safety assessment. By a form letter dated September 7, 1999, Johnson informed Bass DFS was not opening a case "because we agreed during our discussion that your family is not in need of services." Two weeks later, Johnson's supervisor, Rosa, reviewed the report and completed the safety assessment, thereby certifying the Bass home was safe, without ever being in the Bass home or seeing the Bass children.

Two months after DFS closed the Bass file, Bass forced Larry and Gary to submerge their feet and lower legs into scalding bath water, causing severe burns. On October 20, 1999, Kansas City police, fire, and emergency medical technicians responded to a 911 call made from the Bass home. State v. Bass, 81 S.W.3d 595, 599 (Mo.Ct.App.2002). Upon arrival, emergency personnel observed Bass kneeling on the living room floor near Larry, who was lifeless, emaciated, and naked except for a pair of socks. After paramedics declared Larry dead, they proceeded upstairs, where they discovered Gary, emaciated and lying on a vomit-stained mattress. En route to the emergency room, the paramedics removed Gary's socks and discovered third-degree burns on his feet and lower legs, several gangrene toes, and multiple abrasions on his back. Despite intensive medical treatment, Gary died two days later. Id. at 600.

To ascertain their causes of death, autopsies were performed on the boys. At death Larry measured 45 inches and weighed 31 pounds; Gary measured 47 inches and weighed 32 pounds. Id. The autopsies revealed the boys died from starvation and bacteria-infected thermal burns to their legs and feet. The autopsy reports classified both deaths as homicides. Id.

The State of Missouri indicted Bass with two counts of second-degree murder, four counts of armed criminal action, eight counts of child abuse, and two counts of first-degree endangerment. Id. at 601. The state also indicted Dixon, who pled guilty to child abuse and endangerment charges, and was sentenced to twenty years. A jury convicted Bass of two counts of second-degree murder, four counts of armed criminal action, and six counts of child abuse. The trial court sentenced Bass to eight consecutive life sentences and to four additional term-of-year sentences. Id. The Missouri Court of Appeals affirmed Bass's convictions. Id. at 616.

As a result of the prosecutions, authorities learned Bass and Dixon had deceived Johnson about Larry's and Gary's whereabouts. On August 17, 1999, Larry and Gary were not living with their natural father, nor were they visiting their grandparents. Instead, sometime before Johnson arrived, Bass and Dixon locked Larry and Gary in the basement, bound their hands and feet together with rope, and gagged their mouths with socks. Bass and Dixon threatened the other three children with starvation and beatings if they told Johnson the truth about their brothers' treatment or their whereabouts.

B. Procedural History

Following the criminal convictions, Forrester filed this lawsuit, contending Johnson's and Rosa's noncompliance with mandatory state-created procedures violated Larry's and Gary's federal due process rights as well as state law. Johnson and Rosa moved for summary judgment, arguing they are entitled to qualified immunity because Forrester cannot prove any violation of clearly established constitutional rights. Johnson and Rosa further claim they owed no duty to Larry and Gary because the boys were not in state custody.

The district court analyzed the plain language of sections 210.109³ and 210.145⁴ of the Missouri Revised Statutes and determined these statutes clearly establish certain rights for children and families who enter the Missouri social services system through reports of abuse or neglect. The district court identified these rights as being: "(1) The right to have reports of abuse investigated by division employees, when the report indicates a possible violation of certain criminal laws, or indicates that the child is in danger of physical harm or threat to life; (2) The right to have the appropriate law enforcement agency contacted and provided a description of the report, and to have division employees request the assistance of the local law enforcement agency; and (3) The right to preventive and protective services to prevent abuse or neglect." Additionally, the district court determined these statutory sections assign DFS employees the duties of updating the information system and maintaining records, and observing directly, within twenty-four hours, a child reported to be in danger of serious physical harm.

Flowing from these statutory duties, the district court reasoned the "plaintiffs had a property interest in the rights conferred by [sections] 210.109 and 210.145, specifically in the right to an investigation of the report that...