Spielman v. Hildebrand

• Decision Date: 03 May 1989
• Docket Number: No. 87-1098,87-1098
• Citation: 873 F.2d 1377
• Parties: Larry and Karen SPIELMAN, Plaintiffs-Appellants, v. Sara C. HILDEBRAND and Don Madsen, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1377

873 F.2d 1377

Larry and Karen SPIELMAN, Plaintiffs-Appellants, v. Sara C. HILDEBRAND and Don Madsen, Defendants-Appellees.

No. 87-1098.

United States Court of Appeals, Tenth Circuit.

May 3, 1989.

Eric Kjorlie (Ralph E. Skoog, Topeka, Kan., with him on the brief), for plaintiffs-appellants.

David D. Plinsky (Robert T. Stephan, Atty. Gen. for the State of Kan., Litigation Div., with him on the brief), Asst. Atty. Gen. for the State of Kan., for defendants-appellees.

Before McKAY, TACHA and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

This appeal is from a grant of summary judgment in favor of the defendants in a case arising out of the defendants' actions as employees of the Kansas Department of Social and Rehabilitation Services. The issues on appeal are whether the plaintiffs have alleged a deprivation of federal rights sufficient to state a claim under 42 U.S.C. Sec. 1983 and, if so, whether such rights were clearly established at the time of the deprivation, thereby divesting the defendants of qualified immunity from suit for their actions in this matter. We affirm.

I.

"We may affirm the granting of summary judgment if any proper ground exist[s] to support the ruling." Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1124 (10th Cir.), cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979). "In reviewing a summary judgment order, the appellate court applies the same standard employed by the trial court under Rule 56(c) of the Federal Rules of Civil Procedure." Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Rule 56(c) requires that summary judgment be rendered if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "The moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment, and the court must review the record in the light most favorable to the opposing party." Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987).

The material facts in this case, construed in a light most favorable to the plaintiffs, are as follows. On March 9, 1981, the Kansas Department of Social and Rehabilitation Services (SRS) placed two children, a brother and sister, in the home of the plaintiffs, Larry and Karen Spielman (the Spielmans). The initial placement in the Spielman home was technically a foster care placement. The unavailability of funds to subsidize adoption apparently prevented the Spielmans from entering into a formal preadoption agreement at that time. SRS nevertheless instructed the Spielmans to treat the children as their own and considered them to be in preadoptive status. The Spielmans were aware, however, that before a formal adoption could be finalized, a trial period of several months was necessary to determine whether the children would adjust to their home.

On June 29, 1981, the Spielmans entered into formal agreements with SRS establishing a preadoptive relationship between them and each of the children. These agreements required a minimum ten month supervisory period before a consent to formal adoption would be issued. Each agreement also gave notice that "[SRS] reserves the right to cancel the agreement and to remove said child from the home ... whenever, in the opinion of [SRS]," the Spielmans failed to fulfill any of the covenants or stipulations of the agreement. Most relevant here is the stipulation that each child was to remain in their home "as long as the best interests of the child are served."

The girl bonded to the Spielmans as her parents, and also bonded to the Spielmans' natural daughter as her sister. The boy, however, had many problems adjusting to the family. Despite efforts to provide a secure environment for the boy, he did not accept the Spielmans as his adoptive parents.

In April 1982 three members of the SRS staff, including the defendant Sara Hildebrand, met with the Spielmans to review the placement of the children and to determine whether to recommend formal adoption. Although the Spielmans indicated that they were ready to adopt the girl, they were not ready to adopt the boy because of problems with his adjustment to the family. The Spielmans declined to formalize the adoption of either child at that time because of their concern for the feelings of the boy if his sister was adopted but he was rejected.

SRS therefore extended the preadoption period, leaving the children in the care of the Spielmans on the condition that they would seek family counseling to assist them in resolving the boy's difficulties. The Spielmans agreed, although they indicated that they could not participate in counseling immediately because of the time demands associated with visiting Larry Spielman's brother in the hospital and the occupational demands of farming during the spring season.

Difficulties between the boy and the family continued. On May 21, 1982, Karen Spielman called Ray Applegarth, a social worker employed by SRS, and told him that the boy wanted to leave their home. The Spielmans had had discussions with the boy concerning his desire to leave their home and attempted to persuade him to stay. Recognizing, however, that "[their] house is a home and it's not a prison," and that the boy needed professional help that they could not provide, Karen Spielman told Mr. Applegarth that they would permit the boy to leave but they wanted to keep the girl.

After receiving the phone call from Karen Spielman, Mr. Applegarth contacted his supervisor, defendant Sara Hildebrand. After a brief discussion, Ms. Hildebrand decided that both children would be removed from the home because the children were placed as a sibling pair and should be kept together. Fifteen minutes after Karen Spielman had made the call, Mr. Applegarth called back to notify her that both children would be removed. Sara Hildebrand was responsible for the decision to remove the children; she made the decision without personal contact with the children or the Spielmans, and without conducting or requesting further investigation into the special needs of the children.

The Spielmans objected to the removal of both of the children and contacted Sara Hildebrand's supervisor, defendant Don Madsen, to request an administrative hearing. Such a hearing was not held, however, and on May 26, 1982, Mr. Applegarth visited the Spielmans' home to tell them that the children would be removed the next day. When Mr. Applegarth returned the next day to remove the children, he was unable to pick up the girl because she was not at home. Mr. Applegarth took the boy and his belongings and called to inform Sara Hildebrand that the Spielmans had retained the girl.

Sara Hildebrand contacted Judge Loffswold, the Crawford County district court judge having jurisdiction over the original placement. Ms. Hildebrand informed Judge Loffswold of the Spielmans' retention of the girl and also expressed concerns about continuation of the girl's placement. Her concerns were based, in part, on an allegedly abusive atmosphere in the home, uncooperative attitudes on the part of the Spielmans, and the agency's desire to keep natural siblings together. On the basis of these representations, Judge Loffswold issued an ex parte order to apprehend the girl and requested that Ms. Hildebrand produce a written summary of her statement of concerns regarding the placement, which she did.

Judge Loffswold's ex parte order was never enforced. ¹ Mr. Applegarth went with an undersheriff to the Spielmans' home to pick up the girl pursuant to the order. The plaintiffs, however, contacted the county attorney, who then came to the Spielmans' home, met with Applegarth and the undersheriff, and told them to do nothing until a hearing could be held regarding the girl's placement.

The hearing was held before Judge Loffswold on June 1, 1982. The Spielmans received notice of the hearing and attended with counsel. This hearing afforded a full opportunity for both parties to present evidence and to cross-examine witnesses. Sara Hildebrand testified at this hearing, and the court admitted into evidence the written summary of her statement of concerns to Judge Loffswold that formed the basis of the ex parte order. Although the Spielmans contend that Ms. Hildebrand's written summary contained material misrepresentations, this testimony was subjected to cross-examination by their counsel. The Spielmans also presented evidence on their behalf.

After the hearing, Judge Loffswold ordered SRS to take custody of the girl, and she was placed in temporary foster care. Although this was an appealable order, no appeal was filed. After approximately ten months of further evaluation of the children, the girl was returned to the Spielmans, and they adopted her. The boy was placed in an institutional setting for further care and was not adopted by the Spielmans.

In 1984 the Kansas Behavioral Science Regulatory Board held a hearing regarding Sara Hildebrand's conduct in the Spielman case. The Board found that Ms. Hildebrand's written statement prepared for Judge Loffswold contained untrue statements and that she had "[e]ngaged in fraudulent and/or deceitful conduct in connection with services rendered ... by her as a social worker" in connection with the Spielman case. Further, the Board found that her decision to remove the children from the Spielman home without personally contacting them and attempting to salvage the placement violated SRS policy. The Board therefore revoked Sara Hildebrand's social worker license pursuant to its authority under Kan.Stat.Ann. Sec. 75-5356 (1984). ² This decision was affirmed by the District Court of Shawnee County, Kansas.

The Spielmans brought this action under 42 U.S.C. Sec. 1983 alleging a deprivation of a putative liberty interest in their familial relationship with the girl in violation of the due process clause of the fourteenth amendment. This due process...