Hovick v. Patterson

• Decision Date: 16 June 2022
• Docket Number: 21-2493
• Citation: 37 F.4th 511
• Parties: Billie Jo HOVICK; Larry Jon Hovick, Plaintiffs - Appellants v. Darci PATTERSON; Halicia Brown; Kristin Walker, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

37 F.4th 511

Billie Jo HOVICK; Larry Jon Hovick, Plaintiffs - Appellants

v.Darci PATTERSON; Halicia Brown; Kristin Walker, Defendants - Appellees

No. 21-2493

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2022

Filed: June 16, 2022

Jeffrey M. Lipman, Lipman Law Firm, West Des Moines, for Plaintiffs-Appellants.

Michelle Rae Becker, Assistant Attorney General, Attorney General's Office, Des Moines, IA, Gretchen Witte Kraemer, Des Moines, IA, for Defendants-Appellees.

Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.

SMITH, Chief Judge.

Billie Jo and Larry Hovick appeal the district court's¹ grant of summary judgment on the basis of qualified immunity to Iowa Department of Human Service (DHS) employees Darci Patterson, Halicia Brown, and Kristin Walker (collectively, "defendants") on the Hovicks’ claim for damages under 42 U.S.C. § 1983 for violation of their right to due process. Specifically, the Hovicks alleged that the defendants failed to afford them an opportunity to be heard on child abuse allegations prior to issuing a founded child abuse report and placement on the Iowa Child Abuse Registry (Registry). We affirm.

I. Background

The Hovicks were licensed foster parents. On April 14, 2017, DHS placed eight-year-old twins—a boy and a girl—in their care at their residence in Jefferson, Greene County, Iowa. DHS removed the children from the Hovicks’ home on November 3, 2017, and placed them in a foster home in Polk County, Iowa. Following their removal, the children alleged that while they were in the Hovicks’ care, the Hovicks deprived them of adequate food and locked them in their rooms for indefinite periods of time. The boy reported being spanked with a metal spatula. DHS learned of the children's complaints on November 16, 2017. DHS initiated a "child abuse assessment," or investigation, into the Hovicks’ alleged "denial of critical care" in not providing adequate food and supervision. Hovick v. Patterson , No. 4:19-CV-00030-RAW, 2021 WL 2879622, at *1 (S.D. Iowa June 29, 2021) (citation omitted). Patterson, a DHS supervisor, assigned Brown, a Child Protective Assessment Worker (CPW) to investigate the children's allegations against the Hovicks.

On November 21, 2017, Brown interviewed the children separately at their school. The children's statements "were inconsistent internally and with each other." Id. at *2. Brown's notes reflect the boy's report of "being spanked with a spatula, [being] forced to stay in his room for two days or longer without food compelling him to relieve himself in the closet, and being locked in his room as punishment if he went into his sister's bedroom at night." Id. The girl reported that her brother's door had an alarm on it and that "if it went off he was spanked [and that] he was not allowed to come out of his room for days at a time during which he would be fed in his room." Id. She also reported "that they both could not use the bathroom though sometimes could, if they were really bad were deprived of food, and when she had to go to her room she was locked in." Id.

The State of Iowa prescribes that child abuse investigations include a child abuse assessment. Under Iowa law, such assessment must include

[a]n interview of the person alleged to have committed the child abuse .... The offer of an interview shall be made to the person prior to any consideration or determination being made that the person committed the alleged abuse . The person shall be informed of the complaint or allegation made regarding the person. The person shall be informed in a manner that protects the confidentiality rights of the individual who reported the child abuse or provided information as part of the assessment process. The purpose of the interview shall be to provide the person with the opportunity to explain or rebut the allegations of the child abuse report or other allegations made during the assessment. The court may waive the requirement to offer the interview only for good cause. The person offered an interview, or the person's attorney on the person's behalf, may decline the offer of an interview of the person.

Iowa Code § 232.71B(4)(b)(4) (emphasis added).

Iowa law also requires that "upon completion of the child abuse assessment ..., [DHS] shall make a written report of the assessment ... within twenty business days of the receipt of the child abuse report." Id. § 232.71B(13)(a)(2). Under its administrative rules, DHS is also required to complete an addendum to the assessment within 20 days when:

1. New information becomes available that would alter the finding, conclusion, or recommendation of the report.

2. Substantive information that supports the finding becomes available.

3. A subject who was not previously interviewed requests an interview to address the allegations of the report.

4. A review or a final appeal decision modifies the report.

Iowa Admin. Code 441-175.26(1)(a)(8).

DHS did not offer the Hovicks an interview within 20 days of the abuse report.

Local law enforcement's involvement affected the interview scheduling. DHS had alerted local law enforcement that the matter involved potential criminal activity. But DHS and law enforcement could not arrange a timely interview. "Patterson testified that with the 20-day period expiring on December 18, 2017, the alleged child abuse was found ‘not confirmed’ and the case was ‘placed on addendum’ to allow time for interviews with the Hovicks." Hovick , 2021 WL 2879622, at *2 (citation omitted). DHS had another 20 business days from December 18, 2017, to complete the addendum.

As this new 20-day period began for the addendum, DHS in Polk County, where the investigation originated, requested assistance from DHS in Greene County, where the Hovicks resided, to arrange a "courtesy interview" of the Hovicks in Jefferson. Id. (citation omitted). Because the holidays were approaching, DHS decided to wait until after the holidays to contact the Hovicks.

On January 3, 2018, after contacting the Jefferson, Iowa police about arranging a joint interview of the Hovicks at the police station, DHS CPW Stacy Roller contacted Mrs. Hovick. "This was the first time the Hovicks learned the twins had complained of abuse in the Hovick household ...." Id. Mrs. Hovick informed Roller that the Hovicks wanted to speak with their attorney. Mrs. Hovick contacted their attorney, Kyle Pederson, the same day. Also that day, Pederson contacted Roller. He asked for information about the allegations and offered his office for the interview. Roller advised Pederson that law enforcement would be present during the interview. Pederson responded that law enforcement's presence might limit the Hovicks’ responses. Roller then asked Brown for instructions. Brown told Roller to set up the interview to include law enforcement's presence.

The next day, Roller relayed this information to Pederson. He said that he would arrange a date with the Hovicks. He did not. Almost two weeks later, on January 16, 2018, Roller followed up with Pederson. Pederson advised that "he would try to set up the interview in the next day or so and apologized because his schedule ‘had gotten mixed up.’ " Id. (citation omitted).

The 20-day addendum period elapsed on January 18, 2018. On that date, Patterson and Brown discussed the case with Patterson's supervisor, Tracy White. White decided that the "case will be founded as the Hovicks have been offered an interview and have not made themselves available." Id. at *3 (citation omitted). White's decision "was based entirely on the children's allegations." Id. DHS did not inform the Hovicks "of any deadline for the interview." Id. "On January 18[, 2018,] a founded report was placed on the Registry." Id. DHS's investigation into the allegations against the Hovicks continued. According to Patterson, " ‘[t]he case was put on an addendum again immediately after the founded report’ in order to complete the interviews with the Hovicks." Id. (alteration in original) (citation omitted).

Roller interviewed the Hovicks at Pederson's office on January 24, 2018. The Jefferson police had agreed to send an officer to attend; however, the officer did not show up. During the interview, the Hovicks refuted the children's allegations. Observations that Roller made while in the home helped support their denials. The interview was the first time that the Hovicks learned of the founded report.

"On January 23, 2018, [the day before the DHS interview,] Mrs. Hovick had signed a DHS authorization for the release of child abuse information." Id. After learning of the founded report during the January 24 interview, Mrs. Hovick notified her employer, Boys Town of Iowa (Boys Town), that same day. Boys Town employed Mrs. Hovick as an in-house family consultant. Boys Town had a contract with DHS to provide child welfare services for DHS. "Specifically, the contract required Boys Town to provide FSRP services—‘Family Safety, Risk, and Permanency ... Services.’ Such services were ‘designed to achieve safety and Permanency for Child(ren) ....’ Mrs. Hovick's position with Boys Town was as an ‘FSRP’ provider." Id. (alterations in original) (citations omitted). Hovick notified Boys Town because "[s]he knew Boys Town would soon independently find out." Id. (citation omitted). "Boys Town conducted required annual background checks to ascertain if an employee was listed on the Registry." Id.

The next day, on January 25, 2018, DHS responded to Boys Town's request for information about Mrs. Hovick and reported that she was listed on the Registry. Boys Town's policy was to terminate employees who were on the Registry. Per its policy, Boys Town terminated Mrs. Hovick on February 5, 2018.

"By addendum to the assessment report dated February 7, 2018, the alleged denial of critical care which prompted the assessment was determined to be unfounded. The January 18 founded report was removed from the Registry. Mrs. Hovick was rehired by Boys Town on February 18, 2018." Id. (citations...