Vosburg v. Department of Social Services, 88-2632

• Decision Date: 29 August 1989
• Docket Number: No. 88-2632,88-2632
• Parties: Gloria VOSBURG; Eva Marie Vosburg, Plaintiffs-Appellants, v. DEPARTMENT OF SOCIAL SERVICES; Christina Robertson; Billie Jo Powell; Linda Russell; Virginia Burks, Defendants-Appellees, Vocal Virginia, Inc., Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 133

884 F.2d 133

58 USLW 2149

Gloria VOSBURG; Eva Marie Vosburg, Plaintiffs-Appellants, v. DEPARTMENT OF SOCIAL SERVICES; Christina Robertson; Billie

Jo Powell; Linda Russell; Virginia Burks,

Defendants-Appellees,

Vocal Virginia, Inc., Amicus Curiae.

No. 88-2632.

United States Court of Appeals, Fourth Circuit.

Argued May 10, 1989.

Decided Aug. 29, 1989.

John M. DiJoseph (Sattler & DiJoseph, on brief), Arlington, Va., for plaintiffs-appellants.

Kathleen P. O'Brien, Falls Church, Va., (Carolyn S. Motes, Motes, Fite & O'Brien, on brief), McLean, Va., for defendants-appellees.

(Vocal-Virginia, on brief), for amicus curiae.

Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

ERVIN, Chief Judge:

Gloria Vosburg appeals from the district court's grant of summary judgment against her on the Sec. 1983 action she brought on behalf of her daughter, Eva Vosburg, and herself against the Virginia Department of Social Services and four state social workers. Finding that the state social workers are absolutely immune from liability arising from their role in filing a removal petition, we affirm the decision of the district court.

I.

The circumstances which gave rise to the instant lawsuit arose out of a dispute concerning the visitation rights of Eva's father. As a result of Ms. Vosburg's violation of several court orders entered with respect to that dispute, defendant-appellee Christina Robertson, an employee of the Amherst County, Virginia Department of Social Services ("DSS"), filed a petition for a Preliminary Removal Order. This petition was filed in the juvenile court of Amherst County pursuant to Virginia Code Sec. 16.1-252. ¹ Specifically, the social workers' decision to file the removal petition resulted from the following actions of Ms. Vosburg: (1) her refusal to cooperate with the social workers to provide visitation with Eva's father, despite a court order to do so; (2) her taking Eva out of the jurisdiction on December 3, 1987, and failing to keep the social workers informed of the child's location; (3) her failure to appear at a December 21, 1987 hearing, in violation of another court order. In the removal petition the social workers alleged that Ms. Vosburg lacked "child management skills," and that she was refusing to cooperate with them. In their depositions the workers testified that they never believed Eva was in "imminent danger" of any kind, and that they do not believe Ms. Vosburg is an "unfit parent."

At a hearing held the same day that the petition was filed, the juvenile court entered the Preliminary Removal Order authorizing the appropriate law enforcement agency to seize the child and turn her over to the Amherst County Department of Social Services.

On January 4, 1988, Eva was removed from a relative's home by an officer of the Manassas City Police Department and custody was transferred to DSS. A hearing was held January 6, at which time appellant requested and received a continuance so she could retain her own attorney.

Also on January 6, the child was placed in foster care and the mother was permitted one hour of visitation per week at the DSS office. During the first mother-child meeting, defendant Billie Jo Powell, who was supervising the visit, heard Ms. Vosburg ask Eva, "Did anybody hurt you?" Fearing that this line of questioning might upset the child, Powell asked appellant not to pursue the issue. Later on, in response to Eva's request to go home with her mother, Ms. Vosburg told her daughter, "These mean people won't let you!" Powell cautioned plaintiff against making statements which would tend to upset or alarm Eva, while at the same time reassuring appellant that these guidelines did not mean she could not ask her daughter how she was. On February 26, 1988 the mother's visitation was temporarily suspended because Ms. Vosburg was continuing to make remarks that the social workers felt were upsetting Eva.

Ms. Vosburg regained physical custody of her child on May 8, 1988 in accordance with a consent order dated February 17, 1988 which provided that custody be returned to plaintiff when indicated by the DSS approved counselor.

After regaining custody of Eva, Ms. Vosburg filed the current Sec. 1983 action on behalf of Eva and herself in the United States District Court for the Eastern District of Virginia. The suit named as defendants the Amherst County Department of Social Services, and social workers Robertson, Powell, Russell and Burks. Ms. Vosburg alleged that by acting to remove Eva from her custody, the defendants violated her constitutional rights to parental autonomy, to free association with her child, and to free speech. She also alleged that the conduct in question constituted false imprisonment of Eva, in violation of the child's fourth amendment rights.

The district court granted summary judgment in favor of the social workers and the DSS after finding that the workers were absolutely immune from liability resulting from their conduct in preparing and filing the removal petition, as well as their conduct in caring for Eva once the court had awarded custody of the child to DSS. Judge Hilton reasoned that in filing the petition, the social workers were functioning as prosecutors, and that under the Supreme Court's decisions in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), they were entitled to absolute prosecutorial immunity. The district court also held that once Eva was in the custody of DSS pursuant to the removal order, the appellees were acting as officers of the court, and were entitled to absolute quasi-judicial immunity for their supervision of the child.

II.

The Vosburgs contest only that part of the district court's decision that found the social workers absolutely immune with respect to their conduct in preparing and filing the removal petition. ² They argue that the function of a social worker in this situation is more analogous to that of a police officer than that of a prosecutor. Therefore, they claim, under the Supreme Court's decision in Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the appellees are entitled to only a qualified, good faith immunity.

We find, however, that in filing the Removal Petition the social workers were acting in a prosecutorial, rather than an investigative or "policing" capacity. Under Imbler and Butz, therefore, these state agents must be afforded absolute immunity from any liability arising from this conduct.

Imbler held that prosecutors are absolutely immune from Sec. 1983 actions for conduct occurring within the scope of their duties in initiating and pursuing a criminal prosecution. In making this determination the court first reviewed the considerations underlying the grant of absolute immunity traditionally afforded prosecutors under the common law, and concluded that "the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under Sec. 1983." 424 U.S. at 424, 96 S.Ct. at 992, 47 L.Ed.2d at 140. Those public policy considerations included the fact that a prosecutor is "duty bound" to exercise his best judgment in deciding which suits to bring and in prosecuting them in court. "The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages." Id. The court speculated that such suits would not be infrequent, as defendants would likely channel their resentment at being prosecuted "into the ascription of improper and malicious actions to the State's advocate." 424 U.S. at 425, 96 S.Ct. at 992, 47 L.Ed.2d at 140.

Imbler also noted that "the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive and administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivations." Id. Because the accurate functioning of the criminal justice system requires that all advocates be afforded wide discretion in the conduct of the trial and the presentation of evidence, that accuracy could be adversely affected if prosecutors were afforded only qualified immunity. A prosecutor might well be reluctant to proceed with a case where there existed sharply conflicting evidence because "an acquittal likely would trigger a suit against him for damages." 424 U.S. at 426 n. 24, 96 S.Ct. at 993, n. 24, 47 L.Ed.2d at 141, n. 24.

Finally, the Supreme Court found that "[t]he ultimate fairness of the operation of the system itself could be weakened by subjecting prosecutors to Sec. 1983 liability." 424 U.S. at 427, 96 S.Ct. 993, 47 L.Ed.2d at 141. The focus of judges during appellate review and post conviction relief hearings potentially could be blurred by the knowledge "that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment." Id. Furthermore, the court observed, the possibility of personal liability could well dampen the prosecutor's exercise of his ethical duty "to bring to the attention of the court or of the proper officials [any newly discovered] evidence suggestive of innocence or mitigation, once he obtains his conviction." Id. at n. 25.

In Butz the Supreme Court extended absolute immunity to all federal officials whose "special functions required a full exemption from liability." 438 U.S. at 508, 98 S.Ct. at 2911, 57 L.Ed.2d at 917. Butz itself seemed to equate those "special functions" with "activities intimately associated with the judicial process"--i.e. activities that constitute the functional equivalent of those engaged...