Opinion
No. CV03 040 17 70 S
May 5, 2008
MEMORANDUM OF DECISION
FACTS
This action began as a ten (10) count complaint, filed by the plaintiffs, Michele Sienkiewicz and Craig Sienkiewicz, individually, and on behalf of their two minor sons, Kevin (DOB: January 4, 2000) and Justin (DOB: May 7, 1996).
Named as defendants are Kristine Ragaglia, Commissioner of the Connecticut Department of Children and Families (DCF), Robert Murphy, a DCF investigator, and Christine Lupke, Aleta Markham and Deana Velazquez, all of whom are employed by DCF.
Christine Lupke and Ileana Velazquez are employed in a supervisory capacity.
Counts one through six of the original complaint were brought on behalf of Michele and Craig Sienkiewicz, individually, while counts seven through ten involved the minor children.
Count One claimed intentional infliction of emotional distress, while counts two and three claimed vexatious litigation at common law, and pursuant to statute. In count four it was claimed that the actions of the defendants violated the plaintiffs' civil rights, pursuant to 42 U.S.C., § 1983, while count five was pled pursuant to the Constitution of the State of Connecticut, and count six alleged defamation.
Counts seven and eight alleged vexatious litigation claims on behalf of the minor children, count nine involved claimed violations under § 1983, and count ten stated a claim under the Connecticut Constitution.
On April 3, 2007, in response to a motion to dismiss filed on behalf of all of the defendants, the court (Matasavage, J.) granted the motion to dismiss as to all counts except those seeking redress pursuant to CT Page 7382 42 U.S.C., § 1983, counts four and nine.
The defendants now move to strike the remaining counts.
An examination of the facts reveals that the plaintiffs Michele and Craig Sienkiewicz survived a nightmare, during which both of their children were suddenly, and without warning, taken from them by employees and agents of the State of Connecticut. That they discovered the financial and emotional resources to regain custody of both children, after contested court proceedings in the Superior Court for Juvenile Matters, seems insufficient to erase the emotional trauma to which they were subjected.
Kevin Sienkiewicz was born on January 4, 2000, through a C-section delivery.
On February 20, 2000, Michele Sienkiewicz telephoned the family's pediatrician, Dr. Claire Bailey, and reported that Kevin appeared to be congested.
The next day, she brought the infant to Dr. Bailey's office, where Kevin was examined. After spending three hours in the physician's office, she was told to take Kevin to Danbury Hospital so that x-rays could be taken, and pneumonia could be ruled out.
The x-rays revealed rib fractures, and Dr. Bailey reported that case to DCF as a case of suspected child abuse. Both parents were interviewed by DCF, and denied any knowledge of how the fractures to the rib area had been sustained.
The Newtown Police Department also interviewed both parents, although the police investigation was closed, without any criminal charges being filed against either parent.
On February 21, as Kevin was being admitted to Danbury Hospital for observation, a DCF hotline social worker issued a 96-hour hold, pursuant to statute, for Kevin Sienkiewicz. Although he was a healthy five-year-old, without any history of trauma, or any inkling of abuse, Justin Sienkiewicz was also removed from his home on February 21, and was placed with an aunt. The aunt, Alicia Hunniford, resided 27 miles from the Sienkiewicz home in Newtown.
Upon being discharged from the hospital, Kevin was placed in a DCF licensed foster home.
During Kevin's hospital stay, a battery of x-rays were performed, and extensive tests were conducted. Kevin was described as "alert," and "without any bruises of skin lesions," by Danbury Hospital Pediatric Physician's Assistant, Patrick Killeen.
All family members who were interviewed, including Alicia Hunniford and the maternal grandmother, Cathy Chick, stated that they had never seen any evidence of child abuse in the Sienkiewicz home.
On February 25, four days after Michele Sienkiewicz first sought Dr. Bailey's assistance, DCF applied for, and was granted an order of temporary custody (OTC) as to both of the Sienkiewicz children.
A report of February 25, 2000 was completed by Dr. Stuart L .Roberts, a Radiologist. While acknowledging that he had not examined Kevin Sienkiewicz, and had not spoken with either parent, based upon conversations with Dr. Joan Magner, a partner of Dr. Bailey, and Patrick Killeen, and his review of the films, he "felt" that Kevin's injuries were the result of "a non-accidental, severe physical abuse and/or serious bodily injury."
In addition to testing and examining the infant, a skeletal survey was performed on Justin Sienkiewicz. The survey revealed no fractures, past or present.
In seeking the order of temporary custody concerning Kevin Sienkiewicz, DCF alleged that he was suffering from "serious physical injury," and was "in immediate danger from surroundings and that immediate removal from such surroundings is necessary to insure the safety of the child."
As to Justin Sienkiewicz, DCF alleged that he was "in immediate physical danger from surroundings and that immediate removal from such surroundings is necessary."
Not content with seeking an order of temporary custody, on February 25, 2000, DCF also field co-terminus petitions seeking an adjudication of neglect as well as the termination of the parental rights of Michele and Craig Sienkiewicz, as to both of their children.
As grounds for the termination of parental rights and a finding of neglect concerning Kevin, it was alleged: "Kevin Sienkiewicz has been abused in that the infant has been diagnosed with twenty rib fractures and two knee/leg fractures. The parents, Craig and Michele Sienkiewicz, have been unable to explain how the infant was injured."
It was further claimed, as of February 25, 2000, that the parents "are unable or unwilling to benefit from reunification efforts," and that Kevin had been denied proper care and attention, through acts of commission.
In the neglect petition filed concerning Justin, DCF alleged: "Justin Sienkiewicz is neglected in that he is being permitted to live under conditions, circumstances and associations injurious to his well-being. Justin's younger sibling, six-week-old Kevin Sienkiewicz, was diagnosed on 2/22/00 with twenty rib fractures and two knee fractures. The parents, Michele and Craig Sienkiewicz, have no plausible explanation as to how the infant sibling sustained the injuries."
As grounds for the termination of the parental rights, as to Justin, DCF maintained that the parents of the five-year-old child "are unable or unwilling to benefit from reunification efforts." The state further sought termination of the parents' rights, in that they had ". . . committed an assault, through deliberate non-accidental acts that resulted in a serious bodily injury to another child of the parent."
At no time was it alleged that the five-year-old had ever been assaulted by either parent. Justin Sienkiewicz had never been the subject of an order of temporary custody or a petition for neglect or termination of parental rights, prior to February of 2000.
According to the complaint, it was during this period that the defendant Murphy allegedly told the parents that it would be "at least a year" before they would be reunited with their children.
The "Motion/Order of Temporary Custody" was granted on February 25 by order of the court (Eveleigh, J.), and a hearing was scheduled for March 1, 2000. A hearing on the petition for neglect, and termination of parental rights was scheduled for March 28, 2000.
The hearing did not go forward on March 1, and a plethora of motions were filed during March.
Counsel for the minor child filed a motion for a psychological evaluation of Justin Sienkiewicz on March 8, which was granted by Judge Eveleigh on March 29, 2000.
Motions seeking psychological evaluations of the paternal grandparents (who were given intervenor status in the case), the maternal aunt and uncle, and other individuals were filed on March 24, and were granted by Judge Eveleigh on March 29. Motions seeking psychiatric and psychological evaluations of both parents were also filed, and granted by the court on April 10, 2000.
This occurred after the contested hearing had begun before Judge Eveleigh on March 29, 2000.
Prior to the beginning of the hearing, the state sought to amend the termination of parental rights petition as to Justin. DCF alleged on March 28, 2000, on the eve of the hearing, that Justin "has been denied by reason of acts of commission or omission, including, but not limited to sexual molestation or explanation, severe physical abuse on pattern of abuse by the mother Michele Sienkiewicz and the father Craig Sienkiewicz, the care guidance or control necessary for his physical, educational, moral or emotional well being."
The petition claimed: "Mr. and Mrs. Sienkiewicz have repeatedly stated that they think the injuries suffered by Kevin are the fault of Justin. In addition to this Kevin may have been present during the repeated episodes of abuse of his younger sibling. Both of these actions and circumstances are extremely detrimental to the emotional being of Justin."
Judge Eveleigh granted the motion to amend on April 4, 2000.
Prior to the start of the hearing with Judge Eveleigh, DCF filed a motion to transfer the case to the Child Protection Session of the Superior Court in Middletown. This motion was filed on March 17.
While a transfer to Middletown might have been advantageous to DCF, its witnesses and its attorneys, it was definitely inconvenient for the plaintiffs, members of their family, or their Danbury-based attorneys. Judge Eveleigh denied the motion to transfer.
The contested hearing was conducted before Judge Eveleigh between March 29, 2000 and May 3, 2000, on fifteen days. Both the plaintiffs and DCF presented expert medical testimony concerning the injuries sustained by Kevin.
On May 3, Judge Eveleigh rendered his decision, dismissing the petitions as to both children, and ordering that they be returned to the custody of their parents.
In his decision, which was read into the record, Judge Eveleigh summarily dismissed the petition as to five-year-old Justin Sienkiewicz.
He found that there was no evidence that Justin had ever sustained any physical injury, and no evidence that he suffered from any serious physical illness.
He stated that in order to find that Justin had ever been in any physical danger from his surroundings, he would have had to impute any abuse to Kevin, to Justin.
This doctrine of "presumptive neglect," holding that if one child was abused there is reason to assume that another child was abused, Judge Eveleigh declined to apply.
As he pointed out, the "presumptive neglect" argument is a two-edged sword, which can also be wielded against the State of Connecticut and its DCF agents. Judge Eveleigh noted: "The contrary may also be proven. If one child has never abused, and that child is much older than . . . the younger child, it can reasonably argue that the older child will never suffer from the abuse."
Furthermore, a court should be permitted to find that the failure to demonstrate any abuse of any older child is evidence to be weighed in determining whether a younger child has been abused, where there is no direct evidence of the abuse.
Concerning the infant, Kevin, after reviewing all of the testimony, expert and lay, Judge Eveleigh concluded that the state had failed to meet its burden of proof and ordered the baby returned to its parents, one day shy of his four-month birthday. The state's request for a stay pending appeal was denied.
Notwithstanding Judge Eveleigh's fact-based decision, arrived at following fifteen days of testimony, DCF sought to appeal the decision to the Appellate Court. Not until October 5, 2000, when the appeal was withdrawn, was the "Sword of Damocles" formally removed from over the heads of Craig and Michele Sienkiewicz.
The defendants, in support of their motion to strike the claims brought pursuant to 42 U.S.C.A., § 1983, claim that the plaintiffs have failed to state a claim for any right protected by the United States Constitution.
In the alternative, they argue that the complaint fails to plead sufficient allegations of personal involvement by any of the defendants, to state a cognizable claim.
Finally, they maintain that all of the defendants are entitled to qualified immunity in the event of an award of damages.
STANDARD OF CARE
The purpose of a motion to strike is to test the legal sufficiency of the allegations contained in a complaint. Faulkner v. United Technologies, 240 Conn. 576, 580 (1997); Ferryman v. Groton, 212 Conn. 138, 142 (1989); Practice Book § 39. The motion assumes all well pleaded facts, and if facts, as deemed provable in a complaint, would support a cause of action, then the motion to strike must be denied. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003); Waters v. Autuori, 236 Conn. 820, 825-26 (1996).
All facts alleged in the complaint must be construed in the manner most favorable to the non-moving party, in this case the plaintiffs Michele and Craig Sienkiewicz. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992). However, although all facts contained in the complaint are deemed proven, conclusions of law are not admitted. Maloney v. Conroy, 208 Conn. 392, 394 (1988).
The court's inquiry is limited by the facts alleged in the complaint. Cavallo v Derby Savings Bank, 188 Conn. 281, 285-86 (1982).
IN THEIR COMPLAINT, THE PLAINTIFFS HAVE NOT ALLEGED A VIABLE CAUSE OF ACTION PURSUANT TO U.S.C. § S. 1983
In counts four and nine of their complaint, the plaintiffs claim that they have been denied rights guaranteed under the Constitution of the United States, and enforceable pursuant to the provisions of 42 U.S.C. 1983. That section, which the plaintiffs invoke on their own behalf and that of their minor children reads.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States of other person within the jurisdiction thereof to be deprived of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
In their complaint the plaintiffs claim that the actions of officials and employees of the Department of Children and Families (DCF), violated their constitutional rights, and those of their minor children, as follows.
a. Said actions and treatment intruded and invaded into the integrity and privacy of their family.
b. Said actions and treatment violated their interest and companionship in the custody and care of their children.
c. Said actions and treatment significantly interfered with their family integrity and violated the right of their family to remain together without the coercive interference of the awesome power of the state in violation of their 14th Amendment right to substantive due process.
d. Said actions were wanton and malicious.
e. Said actions and treatment violated their Fourth Amendment right to procedural due process.
f. Said actions and treatment violated their Fourth Amendment right to be free from unreasonable search and seizure.
The defendants first claim that the use of the phrase "information and belief" in the operative complaint renders the allegations against all of the defendants insufficient as a matter of law, since allegations made upon "information and belief" are not factual allegations.
Although there is some authority for the proposition that allegations in a pleading following the phrase "information and belief" are not properly pled as factual allegations (see Royal Insurance Co. v. Prudential Residential Services, LP, 2003 Conn.Super.Lexis 372 (2003) [ 34 Conn. L. Rptr. 59]; First Federal Savings Loan v. Chappell, 1997 Conn.Super.Lexis 1118 (1997)); any such defect is easily cured through repleading, and could have been raised via a request to revise.
Therefore, in the absence of any Appellate authority, the court will treat allegations preceded by "information and belief" as properly alleged factual allegations, and will construe such allegations most favorably to the non-moving parties.
The defendants further claim that the complaint fails to allege any factual acts or omissions against any of the defendants, with the exception of the defendant Murphy. Therefore, they contend, the motion to strike must be granted as to those defendants.
The doctrine of respondeat superior is unavailable as a basis for imposing liability pursuant to 42 U.S.C. § 1983. There must be some showing of personal responsibility. Arroyo v. Schaefer, 548 F.2d 47, 51 (2nd Cir. 1977); Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973). However, liability concerning supervisory personnel may be predicated upon affirmative policy-making which cause misconduct, and a deprivation of constitutional rights. Burton v. Wilmington Parking Authority, 365 U.S. 715, 725 (1961).
The policy manual of the Department of Children and Families (DCF) sets forth the steps to be taken by staff when a child is to be removed from his or her home.
See Policy 34-10-2 (Alternatives to Removal); Policy 34-10-3 (Standards for Removal requiring the investigator and a supervisor to meet and discuss); Policy 34-10-7 (Placement considerations; stating "The investigator shall consult with his/her supervisor regarding the placement of a child into out of home placement, . . .").
Therefore, it can not be said, as a matter of law, that supervisory personnel can simply imitate Pontius Pilate, and wash their hands of any action taken by an investigator or other subordinates.
Construing all facts most favorably to the non-moving party, this claim does not form the basis for the granting of the motion to strike.
The defendants maintain that the motion to strike must be granted, because the allegations cannot give rise to a claim of a violation of substantive or procedural due process, or any violation of the Fourth Amendment's protection against unreasonable searches and seizures. They claim that there is no tangible connection between the acts of the defendants, and any interference with the plaintiffs' right to family integrity, a right which they acknowledge to be of constitutional dimension.
Parents have a constitutionally protected liberty interest in the care, custody and management of their children. Stanley v. Illinois, 405 U.S. 645, 649-52 (1972); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir. 1991). It is sometimes easy to forget or to conveniently ignore, in the zeal to protect children, that the care, custody and nurture of children resides first with their parents; Duschesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977), and that families have a right to remain together, without the coercive interference of the awesome power of the state. Therefore, due process requires a court proceeding. Tenebaum v. Williams, 193 F.3d 581, 593 (1999). The right to conceive and raise children is fundamental, and more precious than property rights. May v. Anderson, 345 U.S. 528, 533 (1953); Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
Here, the facts alleged, when construed most favorably to the parents, do not support any claim of a violation of procedural due process, or a violation of the Fourth Amendment's protection against unreasonable searches and seizures.
Pursuant to statute, a 96-hour hold was placed on both of the minor children, followed by a judicial determination, granting the requested order of temporary custody.
A hearing was scheduled in a timely fashion, in accordance with the specified procedure, and Judge Eveleigh resisted an attempt by DCF to transfer the case, in what might be regarded as an attempt to forum shop, and make the parent's burden more difficult.
There is no allegation that any DCF employee falsified information which was provided to Judge Eveleigh, or did not provide to him exculpatory information which would have been critical in determining whether the order of temporary custody shall be entered.
Had DCF, acting though its employees and supervisors, behaved in this fashion, thus tainting the decision rendered by a detached judicial magistrate, a violation of the guarantees of procedural due process might be demonstrated. In Re Lindsey P., 49 Conn.Sup. 132 (2004) [ 38 Conn. L. Rptr. 40].
While the statements made by the defendant Murphy, if true, demonstrate insensitivity and terminal bureaucratic arrogance, based upon the allegations at issue, they do not constitute a violation of procedural due process, or implicate Fourth Amendment protections.
The facts alleged here are distinguished from those of Duschesne v. Sugarman, supra, where the state retained custody of the children without parental consent or a court order for 36 months following the emergency action of child protection officials. In that case, violations of statutory guarantees and procedures were demonstrated.
Here, the acts of the officials, while perhaps displaying an institutional bias, and contempt for the desires of the parents, were nevertheless in compliance with all statutory mandates. Unlike Duschesne v. Sugarman, there can be no allegations, based upon these facts, that any managerial directives or policies in violation of law, caused a deprivation of constitutional rights.
The claims of substantive due process violations, based upon the facts alleged, must also fail.
While the DCF actions, particularly as applied to Justin, may have unnecessarily separated the five-year-old from his parents, a belief strengthened following the hearing before Judge Eveleigh, that excess of caution cannot support a claim of a violation of substantive due process.
In order to demonstrate a violation of substantive due process, the conduct must be so shocking, so arbitrary and egregious that the due process clause would not condone it, even if accompanied by full procedural protections. Anthony v. New York City, 339 F. 2d. 129, 143 (2003).
While it is certainly possible to believe that DCF acted inappropriately, and overreacted by removing Justin from his parents in the absence of any evidence of abuse, the conduct is not so shocking or egregious, as to support a substantive due process violation claim.
Furthermore, based upon the allegations in the complaint, the defendants are shielded by the doctrine of qualified immunity.
The qualified immunity doctrine protects government officials from suits seeking to impose personal liability for money damages based upon unsettled rights or conduct that was not objectively unreasonable. Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998). Government officials are immune under this test if 1) their conduct did not violate clearly established rights of which a reasonable person would have known, or 2) it was objectively reasonable to believe that their acts did not violate these clearly established rights. Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998).
Assuming, arguendo, that the conduct of DCF violated the right to family integrity of any of the plaintiffs, their acts clearly met any test for objective reasonableness.
A different finding would be justified, if information was deliberately withheld from a detached magistrate, or exculpatory information was ignored, in the preparation of materials to be submitted in support of an order of temporary custody.
Once Dr. Bailey's report was received, and the x-ray results concerning Kevin were available, DCF was under a duty to act.
Finally, it must be noted that the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 671 does not create an enforceable right of action, based upon a claim that a state failed to use reasonable efforts to keep a child in the family home. Suter v. Artist M., 503 U.S. 347, 352 (1992).
The plaintiffs have not alleged a violation of the Adoption and Safe Families Act (ASFA) of 1997 as part of their claim pursuant to § 1983, and the court has discovered no basis for the assertion of an ASFA violation in a § 1983 action.
The motion to strike counts four and nine is GRANTED.