Lossman v. Pekarske

• Decision Date: 16 May 1983
• Docket Number: No. 82-2197,82-2197
• Citation: 707 F.2d 288
• Parties: Thomas C. LOSSMAN, et al., Plaintiffs-Appellants, v. Mary H. PEKARSKE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 288

707 F.2d 288

Thomas C. LOSSMAN, et al., Plaintiffs-Appellants, v. Mary H. PEKARSKE, et al., Defendants-Appellees.

No. 82-2197.

United States Court of Appeals Seventh Circuit.

Argued Jan. 10, 1983.

Decided May 16, 1983.

W. Dan Bell, Jr., Bell Law Office, S.C., Madison, Wis., for plaintiffs-appellants.

Maris Rushevics, Anderson, Fisher, Shannon, O'Brien & Rice, Stevens Point, Wis., Daniel W. Hildebrand, Ross & Stevens, P.C., Madison, Wis., for defendants-appellees.

Before CUMMINGS, Chief Judge, and POSNER and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

This suit by Thomas Lossman and his three children charges that the defendants--county welfare and law-enforcement officers in Wisconsin--deprived the plaintiffs of liberty without due process of law, in violation of the Fourteenth Amendment, by removing the children from Lossman's custody without good cause. They seek damages under 42 U.S.C. Sec. 1983.

Lossman was divorced from the mother of his three children but had legal custody of them, and had remarried but was in the process of getting another divorce. He owned a bar, and lived in the back of it with the children, who ranged in age from 9 to 12. On the morning of March 28, 1980, Lossman's wife (the children's stepmother) complained to a county social worker that Lossman was beating the children. A police officer interviewed the stepmother and also the children's natural mother. Both women stated to him that Lossman was constantly drunk, beat and kicked the children brutally, threatened to kill them, kept loaded guns around the house, made one of the children tend bar, and fed them inadequately. The guns made the police decide it would be prudent to remove the children from school rather than wait till they came home after school, and the police did this, pursuant to Wis.Stat. Sec. 48.19(1)(d)(5), which provides, "A child may be taken into custody under ... circumstances in which a law enforcement officer believes on reasonable grounds that ... the child ... is in immediate danger from his or her surroundings and removal from those surroundings is necessary...." The children were interviewed at the police station, corroborated the women's statements, and were forthwith placed in a licensed foster home.

That same afternoon the county prosecutor obtained from the local juvenile court an ex parte order confirming the foster home's temporary custody. The order was pursuant to Wis.Stat. Sec. 48.19(1)(c), which authorizes taking a child into custody on a judge's order based "on a satisfactory showing to the judge that the welfare of the child demands that the child be immediately removed from his or her present custody." The order also directed the prosecutor to petition by April 1 for an adversary hearing on charges of child abuse and neglect. This part of the order was based on Wis.Stat. Sec. 48.21(1)(b), which requires that such a petition be filed within 48 hours of the child's being taken into custody under court order. Lossman claims that no effort was made to notify him that the children had been removed from his custody until after the court order had been obtained, contrary to the requirement of Wis.Stat. Sec. 48.19(2) that a social worker who takes a child into custody "shall immediately attempt to notify the parent." Although there is a question whether there really was any delay in notifying Lossman, for purposes of reviewing the district court's grant of summary judgment we must accept his claim that there was.

A hearing was held on April 9 (it would have been held earlier if Lossman had not requested additional time for preparation), at which he appeared with counsel. Several witnesses were examined and cross-examined. At the conclusion of the hearing the court ordered the children continued in the custody of the foster home, but gave Lossman visitation rights. On May 7 another, similar hearing was held, at which the court approved an agreement between Lossman's attorney and the county prosecutor whereby the children would be returned to Lossman's physical custody (though legal custody would remain with the county welfare department for six months) under certain restrictions--that he refrain from unreasonably disciplining the children, not let them tend bar, allow their mother to visit them, and undergo psychiatric counseling for his alcoholism. Pursuant to the agreement the charges of child abuse and neglect were dropped. The children were restored to Lossman's legal custody on November 6.

The Fourteenth Amendment forbids a state to deprive a person of his liberty without due process of law. Lossman's liberty unquestionably includes the custody that state law gave him of his minor children, Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S.Ct. 1208, 1215-16, 31 L.Ed.2d 551 (1972), so he has satisfied the threshold requirement of showing a deprivation of liberty. But he is not the only plaintiff; and the concept of a child's "liberty" is a little more problematic, since even in a permissive era children remain to a considerable degree under parental control. Also problematic is the claim that transferring the children from their father's custody to that of the state was a deprivation of their liberty--it was in a sense a transfer from one form of bondage to another, regardless of the actual conditions under which Lossman kept the children, which is anyway a matter in dispute. But under Wisconsin law a child can bring a tort action for false imprisonment if he is wrongfully removed from his parents' custody, see Drabek v. Sabley, 31 Wis.2d 184, 142 N.W.2d 798 (1966), and maybe that implies a sufficient interest on the part of the child in remaining in that custody to count as a Fourteenth Amendment liberty of which he is deprived if he is removed from that custody. See Ellis v. Hamilton, 669 F.2d 510, 514 (7th Cir.1982). But, as will become clear, this issue need not be definitively resolved in this case.

The next question in logical sequence is whether Lossman and his children were denied due process--but it is doubtful whether we need reach that question either. Section 1983 plaintiffs sometimes forget that a damage suit under that statute is a tort damage action even though the duty the defendant is charged with having violated is created by the Constitution rather than by common law or a safety statute or regulation. A plaintiff seeking tort damages cannot withstand summary judgment if he has sustained no actual damage, e.g., Cenco Inc. v. Seidman & Seidman, 686 F.2d 449, 453 (7th Cir.1982), and it is virtually certain that the plaintiffs in this case have not. They got an adversary hearing, which we do not understand them to be arguing failed to satisfy the requirements of due process, on April 9; yet the court decided not to return the children to their father's custody. If an identical hearing had been held on March 28, the same result presumably would have been reached--a decision that the children should be separated (at least temporarily) from their father. Since, whether or not he received due process on March 28, Lossman would in all probability have lost custody of the children on that day, the alleged denial of due...