J.H.H. v. O'Hara, 88-2224
| Decision Date | 23 June 1989 |
| Docket Number | No. 88-2224,88-2224 |
| Citation | 878 F.2d 240 |
| Parties | J.H.H. and S.C.H., Appellants, v. Joseph J. O'HARA; Wilma Allen; Dorothy Heltibrand; Virginia Allen; Dwain M. Hovis; Gary Stangler; Jeannie Oney; Ann Gulick; Gary Thurman; Dorothy Lavington; Rosalind Conner, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ross H. Briggs, St. Louis, Mo., for appellants.
William E. Cornwell, Jefferson City, Mo., for appellees.
Before JOHN R. GIBSON and MAGILL, Circuit Judges, and WATERS, * Chief District Judge.
Plaintiffs J.H.H. and S.C.H. are a white couple licensed by the State of Missouri to provide foster care. Plaintiffs filed suit under 42 U.S.C. Sec. 1983 against eleven officials and employees of the Missouri Division of Family Services (the Division), claiming their right to equal protection was violated because a decision not to return two black foster children to the plaintiffs' home was based solely on race. The district court 1 dismissed plaintiffs' claims for money damages against the Division employees on grounds of qualified immunity. Because we find that plaintiffs' claim is not based on a clearly established constitutional right, we affirm.
Plaintiffs have been licensed foster parents since 1969. In 1984, they held a provisional Foster Family Group Home license. In August 1984, plaintiffs' household included two natural children, two adopted children, and eight foster children placed by the Division. On August 13, two of the foster children in their care (siblings J.B. and T.B.) visited their natural mother. On that date, officials received a "hot line" report that J.B. had been physically abused. Pending an investigation of the alleged abuse, J.B. and T.B. were not returned to plaintiffs' custody. On August 17, two other foster children, siblings C.R. and L.R., were moved to a different foster home, apparently in accord with the Division's long-term placement plan for the two children. On August 23, at the direction of Joseph O'Hara, director of the Division, the four remaining foster children, R.T., A.T., J.W. and M.W., were removed from the plaintiffs' home. R.T. and A.T. were placed in the foster care of the J.'s, a black couple.
A juvenile officer of the St. Louis County Juvenile Court investigated the allegation of abuse, and found reason to suspect that physical abuse had occurred. The investigation never identified the perpetrator of the abuse.
On September 17, plaintiffs, through their attorney, voluntarily surrendered the Group Home license, and proposed that they be allowed to retain a Foster Home license. Plaintiffs also requested that R.T., A.T., J.W. and M.W. be returned to their care as early as possible and expressed their interest in adopting the four children.
On September 19, O'Hara approved the surrender of the Family Group Home license and the provisional retention of a Foster Family license permitting placement of two children in plaintiffs' home. O'Hara also wrote that J.W. and M.W., who were white, "will be returned to the [plaintiffs'] home for continued placement with a plan for adoption," and that R.T. and A.T. "will not be returned because a more appropriate placement has been located." The plaintiffs requested the Division to reconsider its placement plans for R.T. and A.T., and on October 19, O'Hara reiterated the Division's decision on the grounds that placement of R.T. and A.T. with plaintiffs was "not appropriate." O'Hara reported that the decision was based on the Division's conclusion that the incident of reported child abuse was "the result of stress due to heavy continuous child care responsibilities" in plaintiffs' home, and that "child abuse or neglect would likely reoccur if all the children were to remain in the home."
Thereafter, plaintiffs appealed the decision not to return A.T. and R.T. to their home through the Division's five-step foster parent grievance process.
After a step-one conference between the plaintiffs and defendants Wilma Allen and Dorothy Lavington (both social service supervisors with the Division), Allen denied plaintiffs' request based on (1) the investigation of the August 13, 1984 child abuse report, which found "reason to suspect" that the allegations of child abuse were true; (2) the placement of J.W. and M.W. in plaintiffs' home in October 1984, under the provisional license for two children; and (3) the "agency's plan for [R.T. and A.T.] for them to remain in their present foster home."
At step two, defendant Dorothy Heltibrand, a "Social Service Supervisor III," denied the plaintiffs' grievance. Because their provisional Foster Family license permitted placement of no more than two children, and J.W. and M.W. were already placed in plaintiffs' home, Heltibrand concluded that "the replacement of the [T.] children in your home is not possible."
At step three, the Division conducted a hearing to review plaintiffs' grievance. By letter of February 27, 1985, defendant Virginia Allen, county director of the Division, summarized the hearing and delivered the Division's decision denying plaintiffs' grievance. Allen's letter reports agreement by all parties that A.T. and R.T. were removed from plaintiffs' home following the child abuse report, and that the perpetrator of the abuse was still unknown. Christine Schmitt, an adoption specialist with the Division, reported that plaintiffs were doing "an outstanding job" in handling the adoption of J.W. Christine Keefer, a juvenile court officer, opined that plaintiffs provided "an outstanding foster home" and that a return to their home with a plan for adoption would be in the best interests of R.T. and A.T. Lynn Phelps, a Division licensing worker, considered plaintiffs' home "an exceptional home and resource for children." Dorothy Lavington, the plaintiffs' foster case worker, described plaintiffs as "a warm, nurturing family," with "strong bonds" between A.T., R.T., and plaintiffs' family, and testified that when R.T. and A.T. were removed, it was the Division's intent to return them to the plaintiffs' home. At the time of the hearing, however, Lavington believed that the foster family with whom the T. children were placed after removal from the plaintiffs' home "will be better able to meet the children's needs as foster parents because they are of the same race." Three foster parents also testified, including two black foster mothers who stated that they had a close relationship with plaintiffs' family and provided support, especially in the area of race and culture, for the plaintiffs' foster children. Allen concluded her summary of the hearing by observing that "[a]ll of the other witnesses were unanimous in their overwhelming support and approval of the unique, warm, loving, positive, healthy parenting provided for all of the children in your home."
Allen indicated that plaintiffs' witnesses and the Division's workers and supervisors who testified "were unanimous in their praise for the excellent care you have provided to your own, adoptive and foster children through the years," and that the "agency's assessment of your capabilities as loving and responsible parents" was reflected in the fact that plaintiffs adopted children, had one child placed for adoption (J.W.), and had one foster child (M.W.) for whom the plan may be adoption. Nonetheless, the Division decided that continued placement in the J.s' home would best meet the future needs of A.T. and R.T. The Division's plan for the children--eventual reunification with the natural father--would best be met by continued placement with the J.s, as they were "able to provide both cultural and religious experiences to prepare the children for this event."
At step four, defendant Dwain Hovis, acting deputy director of the Division, denied plaintiffs' grievance. Hovis found that the decision to remove A.T. and R.T. from plaintiffs' home was based "upon substantial evidence that the best interests of the children would not be served if they remained in your care." Hovis indicated that since the removal of the children from plaintiffs' home, the Division's case plan for the children had changed from one of placement for adoption to eventual reunification with their natural father. Thus, the "racial and cultural needs of the children" became "a primary consideration" after the change in the placement plan and replacement in the plaintiffs' home would not be in the children's best interests.
On April 30, 1985, Gary Stangler, the Division's acting director, denied plaintiffs' grievance at the fifth and final step of the grievance procedure. 2 Stangler concluded that removal of A.T. and R.T. from the defendants' home was appropriate and in their best interest, and that "the children should be in a home that has a similar cultural and ethnic background to their own."
On January 27, 1987, plaintiffs filed suit for compensatory and punitive damages and injunctive and declaratory relief. Plaintiffs alleged that the Division's decision not to return A.T. and R.T. to their home was made pursuant to a Division policy mandating that minority children be placed with families of similar racial or ethnic characteristics. They alleged further that the individual defendant's actions taken pursuant to this policy violated their constitutional rights to equal protection.
After substantial discovery, defendants filed a motion for summary judgment. The district court ruled that plaintiffs failed to show that defendants acted in "bad faith" and thus defendants were entitled to qualified immunity on the claim for money damages. The district court found "good faith" on the part of the defendants in plaintiffs' admission that "defendants acted pursuant to Missouri Division of Family Services regulations." The district court granted defendants' motion for summary judgment, but...
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