KATHIE COSTANICH v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES FOR THE STATE OF WASHINGTON; SANDRA DURON; JOHN DOE DURON; CAROL SCHMIDT; JOHN DOE SCHMIDT; BEVERLY PAYNE; JOHN DOE PAYNE; JAMES BULZOMI; JANE DOE BULZOMI; ROBERT STUTZ; INGRID MCKENNY; JOHN DOE MCKENNY; JANE DOE STUTZ
No. 08-35217
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed December 3, 2010
D.C. No. 2:05-cv-00090-MJP; Argued and Submitted May 6, 2009—Seattle, Washington
OPINION
Before: Kim McLane Wardlaw, Richard A. Paez, and N. Randy Smith, Circuit Judges.
Opinion by Judge Wardlaw
Carol Farr, Law Office of Leonard W. Moen, Renton, Washington, for appellant Kathie Costanich.
Pamela H. Anderson, Assistant Attorney General, Olympia, Washington, for appellees State of Washington, et al.
OPINION
WARDLAW, Circuit Judge:
Washington state revoked Kathie Costanich‘s foster care license and instituted guardianship termination proceedings against her following an investigation by a Department of Social and Health Services (“DSHS“) social worker, Sandy Duron, which purportedly revealed “emotional abuse” of the children in Costanich‘s care. Finding fundamental inaccuracies in the investigation, an administrative law judge (“ALJ“) reversed the license revocation. The Court of Appeals of Washington ultimately upheld the ALJ‘s determination. Costanich v. Wash. State Dep‘t of Soc. & Health Servs., 138 Wash. App. 547, 156 P.3d 232 (App. Ct. 2007).
This appeal arises from Costanich‘s
I. FACTUAL AND PROCEDURAL BACKGROUND
Costanich and her husband have been foster parents since 1983 “for some of the neediest and most difficult foster children in the system.” Costanich, 156 P.3d at 234. As the Court of Appeals of Washington noted,
All of these children had been victims of abuse or neglect and many had severe behavioral, developmental, and medical problems. [Kathie] specialized in violent, sexually aggressive youth (SAY) and medically fragile infants. Costanich was also the president of Foster Parents of Washington State (FPAWS) and a trainer for DSHS. Before the abuse allegations, the most recent state evaluation described the Costanich foster home as a “unique and valuable resource . . . unsurpassed by any foster home in the State.”
Id. As of July 2001, the Costanich house was home to six children—three male foster children, K. (age 15), J. (age 12), and P. (age 10); one male under dependency guardianship,2 F. (age 17); and two sisters also under dependency guardianship, E. (age 8) and B. (age 4).3 E. and B. had resided in the Costanich home since their infancy.
Duron also reported that K. specifically told his therapist about an incident that allegedly took place while the family was vacationing at a cabin on Lake Cavanaugh. According to Duron, K. said that Costanich observed an altercation between F. and a sixteen-year-old female aide, restrained F. by putting her hands around F.‘s neck and choking him, and said “I‘ll kill you, bastard.” Duron reported that F.‘s account of the incident was basically the same, and that a friend of the family who witnessed the incident and Costanich herself reported that Costanich physically restrained F., though their accounts varied as to the severity of the restraint. According to Duron, K. also told his therapist that Costanich got mad at P. and told him to move his “black ass”5 and clean his room. K. also heard Costanich call E. a “cunt” and saw her grab E.‘s hair.
Dr. Cartwright, a clinical psychologist who reviewed the DSHS records but did not interview the children, opined that swearing at children may lead to or exacerbate behavioral problems. DSHS held meetings in which the Costanich case was discussed. Based upon the meetings, interviews, and consultations, Duron concluded that the allegation of emotional abuse was “founded” and that the allegation of physical abuse was “inconclusive.”
In the fall of 2001 and spring of 2002, J.‘s, K.‘s, E.‘s, and B.‘s therapists wrote to DSHS, reporting that the children were doing very well in the Costanich home and strongly recommending against removal.6 Specifically, J.‘s therapists, Dr. Cowles and Dr. Adler, prepared a sworn letter describing in detail J.‘s disabilities, his substantial improvements in the Costanich home, their strong disagreement with the decision to remove J. from the Costanich home, and “not[ing] that DCFS did not, in a reasonable manner, consult with his providers on how this removal from the foster home was to be conducted even though this was court-ordered.” E.‘s and B.‘s therapist, Dr. Vincent, prepared a sworn letter describing the loving and nurturing relationship between the girls and Costanich and noting the vast “emotional damage that remov-
The record also reflects that at least six adult witnesses wrote to DSHS, stating that Duron was a hostile interviewer who twisted their words and attributed to them statements they did not make. For example, Tori McLaughlin, a family friend, wrote that Duron asked her the same questions repeatedly when she did not receive the answer she wanted. Diane Isley, a Court Appointed Special Advocate (“CASA“) who has worked with Costanich for a decade, prepared a sworn letter stating that Duron attributed to her a false statement about a child running from the Costanich home.
These letters did not cause DSHS to alter its conclusion of “founded” emotional abuse. DSHS informed Costanich of this finding in a meeting in November 2001. According to the testimony of several officials, DSHS also told her that if she would not appeal the finding of emotional abuse and would agree to participate in a corrective management plan, DSHS would not seek termination of her guardianship of E. and B.7 It is unclear from the record whether DSHS ever made a formal offer and, if so, whether Costanich considered it.
DSHS made its formal finding of emotional abuse in a December 18, 2001, letter addressed to Costanich and signed
In the fall of 2002 and winter of 2003, the ALJ held nineteen days of evidentiary hearings. Forty-nine witnesses testified, including P., J., Duron, Costanich, various DSHS officials, therapists, and Costanich‘s aides. The ALJ reversed DSHS‘s license revocation determination, concluding that the finding of emotional abuse was not supported by substantial evidence. Based on live witness testimony, the ALJ found that Costanich used profanity around the children, but did not direct it at them, though she did ask P. to move his “black ass.” The ALJ found K.‘s statements to his therapist and Duron‘s statements and reports not credible due to the unaddressed inconsistencies.
Costanich appealed the Board‘s decision to the King County Superior Court, which reversed, finding that the review judge exceeded his authority by making new and inconsistent findings of fact. The Court of Appeals of Washington affirmed, reinstating the ALJ‘s conclusion that the finding of emotional abuse was not founded. Costanich, 156 P.3d at 240. The court of appeals held that “[b]ecause the review judge based his additional, contradictory factual findings solely on hearsay evidence the ALJ rejected as lacking credibility, the review judge acted outside the scope [of] his authority.” Id. at 238. It also awarded Costanich attorney‘s fees under Washington‘s Equal Access to Justice Act,
While her appeal of the Board‘s decision was pending in superior court, Costanich filed a civil rights action in Washington state court, asserting claims under
II. JURISDICTION AND STANDARDS OF REVIEW
The district court had original jurisdiction under
The district court‘s grant of summary judgment on the ground of qualified immunity is reviewed de novo. See Motley v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004). “Our jurisdiction is limited to questions of law, and does not extend to qualified immunity claims involving disputed issues of material fact. Where disputed facts exist, we assume that the version of the material facts asserted by Plaintiffs, as the non-moving party, is correct.” KRL v. Estate of Moore, 512 F.3d 1184, 1188-89 (9th Cir. 2008) (citation omitted).
The type of immunity to which a public official is entitled is a question of law, which is reviewed de novo. See Mabe v. San Bernardino County, Dep‘t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001). Federal law controls the question
A district court‘s determination regarding collateral estoppel is reviewed de novo. See Littlejohn v. United States, 321 F.3d 915, 919 (9th Cir. 2003).
We review for abuse of discretion a district court‘s refusal to exercise supplemental jurisdiction over state law claims after all federal claims were dismissed. In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1233 n.3 (9th Cir. 2008).
III. DISCUSSION
Costanich claims that Duron and the other DSHS officials violated her Fourteenth Amendment due process rights by depriving her of liberty and property interests in her foster care license and dependency guardianship of E. and B.10 The
findings on Duron‘s reports. Costanich, 156 P.3d at 238. By contrast, the question in Costanich‘s
[1] It is well established that a defendant‘s immunity from a
1. License Revocation Proceedings
[2] The district court properly concluded that Duron, McKinney, and Bulzomi were absolutely immune from suit for their involvement in Costanich‘s foster care license revocation proceedings. We have long held that “social workers have absolute immunity when they make ‘discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents.‘” Beltran v. Santa Clara County, 514 F.3d 906, 908 (9th Cir. 2008) (en banc) (quoting Miller, 335 F.3d at 898); see also Meyers v. Contra Costa County Dep‘t of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir. 1987). We have noted that, like a prosecutor, “[t]he social worker must make a quick decision based on perhaps incomplete information as to whether to commence investigations and initiate proceedings against parents who may have abused their children.” Meyers, 812 F.2d at 1157; see also id. (“The social worker‘s independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-
2. Investigation and Filing of Declaration in Support of Termination Proceedings
Adhering to our en banc decision in Beltran, the district court also correctly concluded that Duron is not entitled to absolute immunity for investigating charges against Costanich or for filing the declaration in support of the guardianship termination proceedings.
[3] In Beltran, we held that social workers are “not entitled to absolute immunity from claims that they fabricated evidence during an investigation or made false statements in a dependency petition affidavit that they signed under penalty of perjury, because such actions aren‘t similar to discretionary decisions about whether to prosecute.” 514 F.3d at 908. We analogized the social worker to “[a] prosecutor [who] doesn‘t have absolute immunity if he fabricates evidence during a preliminary investigation, before he could properly claim to be acting as an advocate, or makes false statements in a sworn affidavit in support of an application for an arrest warrant.” Id. (citing Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993); Kalina, 522 U.S. at 129-30). “[A]s prosecutors and others investigating criminal matters have no absolute immunity for their investigatory conduct, a fortiori, social workers conducting investigations have no such immunity.” Beltran, 514 F.3d at 908-09. Duron‘s argument that in filing the declaration, she acted as a witness, and therefore deserves absolute immunity under Burns v. County of King, 883 F.2d 819, 822-23 (9th Cir. 1989), is unpersuasive in light of Beltran‘s clearly controlling
B. Qualified Immunity
[4] In determining whether Duron is entitled to qualified immunity for the investigation and declaration, we apply the two-step the analysis set forth in Saucier v. Katz, 533 U.S. 194 (2001), under which we inquire, in sequence, (1) whether “the facts alleged show the [official]‘s conduct violated a constitutional right,” and (2) “whether the right was clearly established.” Id at 201.12 The district court concluded that Costanich failed to establish that her constitutional rights were violated or that any of the rights she asserted was well established. We disagree with the district court‘s conclusion that Costanich failed to establish that Duron violated Costanich‘s constitutional rights; however, we agree with the district court that no such constitutional rights were clearly established.
1. Whether Duron Violated Costanich‘s Constitutional Rights
“[T]o establish a substantive due process claim a plaintiff must . . . show a government deprivation of life, liberty, or property.” Nunez v. City of Los Angeles, 147 F.3d 867, 871
[5] As a general rule, we do “not consider an issue not passed upon below.” Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir. 1995) (internal quotation marks and citation omitted). “It is immaterial whether the issue was not tried in the district court because it was not raised or because it was raised but conceded by the party seeking to revive it on appeal.” United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978). The DSHS officials’ “page constraints” argument is unpersuasive, as they filed three merits briefs on summary judgment totaling sixty pages. They certainly could have devoted space to this issue if they seriously contested it. In any case, following our decision in Joshua v. Newell, 871 F.2d 884, 886 (9th Cir. 1989), where we “assume[d] without deciding that the [foster parents] had a protected property interest in their license,” and the Supreme Court‘s decision in Smith v. Organization of Foster Families for Equality & Reform (OFFER), 431 U.S. 816 (1977), which was decided “on the assumption that [foster parents] have a protected ‘lib-
[6] “Substantive due process protects individuals from arbitrary deprivation of their liberty by government.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006). “The Court has repeatedly ‘spoken of the cognizable level of executive abuse of power as that which shocks the conscience.‘” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). Costanich‘s claim is that Duron falsified evidence in her investigation and used that false evidence as support for her declaration, which led to the termination proceedings and the revocation of Costanich‘s foster care license. To sustain a deliberate fabrication of evidence claim, we have held that a plaintiff must,
at a minimum, point to evidence that supports at least one of the following two propositions: (1) Defendants continued their investigation of [plaintiff] despite the fact that they knew or should have known that he was innocent; or (2) Defendants used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information.
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). We noted that “mere allegations that Defendants used interviewing techniques that were in some sense improper, or that violated state regulations, without more, cannot serve as the basis for a claim under
The district court concluded that, under Devereaux, Costanich has not demonstrated that Duron deliberately fabricated evidence. It held that Costanich failed to show that Duron or any other DSHS official continued the investigation despite knowing of Costanich‘s innocence or used coercive techniques that were known to produce false information. Concluding that the recognized problems with Duron‘s inves-
[7] The district court read the Devereaux standard too narrowly. Costanich alleges, and has produced evidence supporting her claim, that Duron deliberately misquoted and misrepresented witness statements, i.e., deliberately falsified statements in her investigative report and declaration. The Devereaux test envisions an investigator whose unlawful motivation is illustrated by her state of mind regarding the alleged perpetrator‘s innocence, or one who surreptitiously fabricates evidence by using coercive investigative methods. These are circumstantial methods of proving deliberate falsification. Here, Costanich argues that the record directly reflects Duron‘s false statements. If, under Devereaux, an interviewer who uses coercive interviewing techniques that are known to yield false evidence commits a constitutional violation, then an interviewer who deliberately mischaracterizes witness statements in her investigative report also commits a constitutional violation. Similarly, an investigator who purposefully reports that she has interviewed witnesses, when she has actually only attempted to make contact with them, deliberately fabricates evidence.
[8] We have previously held that when genuine issues of material fact arise regarding fabrication of evidence in a child abuse investigative report, a police officer is not entitled to qualified immunity because “[c]redibility is an issue for the
[9] Other witnesses pointed out that the report contained evidence or statements they never made. For example, according to Duron‘s report of her interview with Diane Isley, the guardian ad litem for F., Isley stated that Costanich, in reference to a child that might try to run away, said she would “chain the little shit to the bed.” Isley declared in a sworn letter, however, that she never made this statement and that she never talked to Duron about such a child. Duron also reported that another aide, Crystal Hill, said that Costanich was “always calling E. a ‘fucking cunt, and bitch.‘” In a sworn letter,
[Q]uotation marks around a passage indicate to the reader that the passage reproduces the speaker‘s words verbatim. They inform the reader that he or she is reading the statement of the speaker, not a paraphrase or other indirect interpretation by an author. By providing this information, quotations add authority to the statement and credibility to the author‘s work. Quotations allow the reader to form his or her own conclusions and to assess the conclusions of the author, instead of relying entirely upon the author‘s characterization of her subject.
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511 (1991) (holding that a jury may find knowledge or reckless disregard of falsity when a publication attributes to the plaintiff quoted statements that the plaintiff never actually made). Moreover, contrary to Duron‘s report, all of the witnesses’ sworn letters express positive descriptions of the Costanich foster home. Finally, the ALJ, who had the benefit of live witness testimony, found that “a number of [the] witnesses . . . specifically dispute the reported evidence in the form of the Service Episode Reports (SERs) which Ms. Duron utilized in memorializing the information she received.”
[10] The district court‘s description of the errors in the investigation as “recording errors and misstatements” is untenable in light of the principle that, on summary judgment, we must draw all factual inferences in favor of the nonmoving party. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). It is true that, despite Costanich‘s claims
It is also true that, in the course of her investigation, Duron could have believed that Costanich was guilty of emotional abuse. Under Washington law, foster parents are prohibited from the use of “cruel, unusual, frightening, unsafe or humiliating discipline practices,” which include “[n]ame calling, using derogatory comments; [t]hreatening the child with physical harm; [and t]hreatening or intimidating the child.”
[11] We therefore conclude that Costanich had a Fourteenth Amendment due process right to be free from deliberately fabricated evidence in a civil child abuse proceeding, and that, because genuine issues of material fact exist as to whether Duron deliberately fabricated evidence, which led to the termination proceedings and license revocation, the district court erroneously concluded that “Plaintiff has not provided evidence showing that Defendants deliberately made false statements and fabricated evidence to make a false finding of abuse.”
2. Whether the Right Is Clearly Established
The district court held that Costanich “failed to identify a clearly established right that Defendants violated” because her right to due process is “too nebulous to be ‘clearly established.‘” It reasoned that “the constitutional right ‘not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government,‘” based on Devereaux, was inapplicable here because Costanich was not subjected to criminal charges, but only to civil license revocation and guardianship termination proceedings. According to the district court, the distinction between the alleged deprivation of liberty here and the deprivation in Dev-
[12] A right is “clearly established” when “the contours of the right were already delineated with sufficient clarity to make a reasonable offic[ial] in the defendant‘s circumstances aware that what he was doing violated the right.” Devereaux, 263 F.3d at 1074; see also Saucier, 533 U.S. at 202 (“If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.“). In Pyle v. Kansas, 317 U.S. 213, 215-16 (1942), the Supreme Court held that the prosecution‘s knowing use of perjured testimony to obtain a criminal conviction violates the Constitution. In Devereaux, we considered a
[13] Under Devereaux, charging an individual with criminal child abuse based on false information violates the Constitution. Devereaux, 263 F.3d at 1075. Although Devereaux does not specifically address civil child abuse proceedings, the right not to be accused based upon deliberately fabricated evidence is sufficiently obvious, and Devereaux is sufficiently analogous to the facts here, that government officials are on notice that deliberately falsifying information during civil investigations which result in the deprivation of protected liberty or property interests may subject them to
[14] However, given the distinctions between criminal prosecutions and civil foster care proceedings, we cannot say that this right was clearly established as of 2001, when the conduct at issue in this case occurred. The special duties of prosecutors and the unique interests at stake in a criminal action do not parallel the duties and interests at stake in a civil child custody proceeding. Washington‘s “paramount concern” for safeguarding and protecting the health and safety of foster children, for example, places a special duty on DSHS officials to vigorously investigate allegations of child abuse. See, e.g.,
and without “objectively reasonable grounds“). They have also denied qualified immunity to social workers investigating child abuse who fabricated evidence to support a search warrant in violation of the Fourth Amendment. See, e.g., Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir. 1990) (holding that social workers’ false “sworn representations as to the existence of probable cause would be perjury and perjury is not objectively reasonable conduct“). Though these cases do not specifically discuss the due process right not to be subject to child abuse allegations on the basis of deliberately falsified evidence, they nonetheless reflect the prevailing principle that social workers who deliberately falsify evidence in child abuse investigations cannot claim the benefit of qualified immunity.
[15] Because we conclude that the right not to be accused based on deliberately falsified evidence during civil investigations which could result in the deprivation of protected liberty or property interests was not clearly established when the conduct at issue in this case occurred, we affirm the district court‘s grant of summary judgment on the basis of qualified immunity.15
C. Remaining Claims Against DSHS Officials
The district court does not specify for which acts the other DSHS officials were granted qualified immunity. Though Costanich‘s briefs focus principally on Duron, she also alleges that other DSHS officials, including Payne and Stutz, knew about and failed to correct the errors in Duron‘s investigation and relied on the investigation to go forward with the termination petition. More specifically, she claims that Payne directed another CPS employee to make a referral against Costanich, that Schmidt lied about making a CPS referral, that McKinney admitted to entering false records regarding Costanich, and that Bulzomi and Stutz threatened her with loss of her daughters if she disputed the abuse finding. These claims are not supported by the record. No evidence supports the claim that Schmidt lied about a referral. McKinney did not admit to a falsification of evidence but only to a mistake.
Several of the DSHS employee claims also do not rise to the level of a constitutional violation. Costanich does not
To the extent that Costanich maintains her procedural due process claims on appeal, they were properly dismissed by the district court. As the district court concluded, Costanich benefitted from multiple layers of administrative and state court review and, therefore, cannot allege that she is a victim of “lack of process.” Costanich also raises on appeal a
IV. CONCLUSION
We affirm the district court‘s judgment in favor of Duron, McKinney, and Bulzomi on the basis of absolute immunity for the revocation of Costanich‘s foster care license. We also affirm the judgment in favor of Schmidt, Payne, Bulzomi, Stutz, and McKinney on qualified immunity grounds for various actions taken by them with regard to Costanich. Finally, we affirm the judgment in favor of Duron on qualified immunity grounds for her investigation and the declaration in support of the guardian termination proceedings because, although genuine issues of material fact exist as to whether Duron deliberately fabricated evidence, Duron did not deprive Costanich of a clearly established constitutional right.
AFFIRMED.