Robbins v. Hamburger Home for Girls

Opinion

The then fifteen-year-old daughter of plaintiffs Nelson and Sharon Robbins left home for three days and stayed at a private nonprofit shelter for abused and troubled teenage girls, claiming that she did not want to go home because she was fighting with her parents and her father had physically abused her on three recent occasions. The suspected child abuse was reported to the authorities, who advised the shelter not to disclose the girl’s whereabouts. Within that three-day period, the authorities apparently determined to take no action, and plaintiffs then came to the shelter and took their daughter home. Subsequently, plaintiffs filed this action on their own behalf against the shelter and its counselors, alleging federal civil rights violations and various state law causes of action, asserting that the defendants interfered with parental rights of custody and inflicted emotional distress on plaintiffs. The trial court granted summary judgment in favor of defendants on all causes of action. Plaintiffs appeal. We affirm.

Factual Background

Stripped of mere conclusions and legal arguments in plaintiffs’ opposition to defendants’ motion for summary judgment, the pertinent undisputed and disputed facts supported by deposition testimony and declarations based on personal knowledge (Code Civ. Proc., § 437c, subd. (b)) are as follows.

Defendant and respondent Hamburger Home for Girls, doing business as Aviva Center, is a private nonprofit shelter for troubled girls aged 12 to 17. Its purpose is to provide a safe environment for troubled girls and, through individual and group counseling, to enable its temporary residents to work out their problems and return home. It is licensed by the state as a group home and has a contract with the City of Los Angeles to provide services as a residential care facility. It is not, however, a “holding facility” for any city, county, or state entity, nor do any governmental entities “place” minors there. Its temporary residents come there voluntarily and they are free to leave.

All the events concerning this case took place between December 8 and December 12, 1986. On the afternoon of December 8, plaintiffs’ 15-year-old daughter Tricia did not return home from high school. She instead went to defendant Aviva Center. She had reported to one of her high school teachers that day that she was having problems at home and did not want to return

and that he be allowed to speak to her. According to Robbins’s declaration, defendants refused to return Tricia, refused to let plaintiffs speak to her, and refused to divulge the location of Aviva Center. According to Greg Rose’s declaration, Rose told Mr. Robbins that “his daughter was safe, that she was in protective care, and that all other inquiries should be directed to the Department of Children[’s] Services.” Rose further declared that Tricia was free to telephone her parents and that plaintiffs were never advised they could not speak to Tricia. Mr. Robbins’s declaration states, however, that at no time did defendants advise him that Tricia was in protective care or that further inquiries should be directed to the department of children’s services. Both declarations agree that Mr. Robbins repeatedly telephoned over the next two days making similar demands and receiving similar responses.

Neither side introduced any evidence indicating what action, if any, the department of children’s services took in response to the child abuse reports. Mr. Robbins declared that, on December 11, Greg Rose telephoned plaintiffs and said they could come pick up Tricia, but when plaintiffs went to the address Rose gave them, it was not the Aviva Center but a closed commercial building.

Plaintiffs picked up Tricia at the Aviva Center on December 12. When Tricia was told her parents were coming, she did not want to go, she wanted to stay at the shelter indefinitely. Defendants told her there was no basis to hold her there and that she should go home with her parents. After a difficult meeting with plaintiffs and the counselors, Tricia went home with plaintiffs.

Procedural Background

Plaintiffs’ first amended complaint, filed in proprio persona, asserts seven causes of action against defendants (the Los Angeles Unified School District defendants are not before us; see Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313 [ 4 Cal.Rptr.2d 649 ]). The first is under the federal Civil Rights Act, title 42 United States Code section 1983, alleging that defendants wrongfully deprived plaintiffs of parental rights of child custody in violation of plaintiffs’ constitutional due process interests. The second alleges that defendants interfered in plaintiffs’ personal rights declared by Civil Code section 49, which states, “The rights of personal relations forbid: [1 (a) The abduction or enticement of a child from a parent. . . .” These constitute the gist of the action. The other causes of action flow from the

defendant Aviva Center and its defendant employees are “child care custodian[s]” required by the act to report suspected child abuse. Section 11165.7 defines child care custodian to include, inter alla, “an administrator or employee of a public or private organization whose duties require direct contact and supervision of children” and “an employee of a child care institution including, but not limited to, . . . group home personnel, and personnel of residential care facilities . . . .” Section 11166 requires that any child care custodian “who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her employment, whom he or she knows or reasonably suspects has been the victim of child abuse, shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible . . . .”

In order to promote the purpose of the act to protect abused children, section 11172 provides that mandated reporters of child abuse are absolutely immune from liability. Section 11172, subdivision (a) provides, “No child care custodian . . . who reports a known or suspected instance of child abuse shall be civilly or criminally liable for any report required or authorized by this article.” (Thomas v. Chadwick (1990) 224 Cal.App.3d 813 , 820-822 [ 274 Cal.Rptr. 128 ].) This absolute immunity extends not only to the making of the initial report, but also to “conduct giving rise to the obligation to report, such as the collection of data, or the observation, examination, or treatment of the suspected victim” performed in a professional capacity (Krikorian v. Barry (1987) 196 Cal.App.3d 1211 , 1222-1223 [ 242 Cal.Rptr. 312 ]) and to subsequent communications between the reporter and the public authorities responsible for investigating or prosecuting child abuse. (Thomas v. Chadwick, supra, 224 Cal.App.3d at pp. 821-822 & fh. 10; Ferraro v. Chadwick (1990) 221 Cal.App.3d 86 , 94-95 [ 270 Cal.Rptr. 379 ]; see also Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869 , 883, fn. 4 [ 271 Cal.Rptr. 513 ].) Because Congress authorized the states to enact child abuse prevention legislation with statutory immunity for reporters of child abuse, the immunity in section 11172 is also generally a defense to an action based on the federal Civil Rights Act. (Thomas v. Chadwick, supra, 224 Cal.App.3d at pp. 823-826.)

Thus, to the extent plaintiffs’ action is based on defendants’ reporting suspected child abuse and defendants’ communications with the department of children’s services, defendants are immune from liability.

The gist of plaintiffs’ action, however, is not the reporting of child abuse but the subsequent concealment of Tricia while the authorities investigated. The statutory absolute immunity for reporting suspected child abuse follows from the mandate that defendants do so under criminal penalty.

(§§11166, subd. (a), 11172, subd. (e); Thomas v. Chadwick, supra, 224 Cal.App.3d at pp. 819-820 & fh. 8.) Although defendants followed advice of the department of children’s services to avoid disclosing Tricia’s whereabouts, they do not cite any statute requiring them to do so. In James W. v. Superior Court (1993) 17 Cal.App.4th 246 [ 21 Cal.Rptr.2d 169 ], cited by plaintiffs, a child who had been sexually molested by someone, and whose molestation had already been reported, was placed in a foster home. Allegedly the foster mother and a private family counselor, over the following two-and-one-half-year period, repeatedly pressured the child to name her father as the one who had molested her. The court held the foster mother and therapist were not protected by the absolute statutory immunity, because their conduct did not involve the reporting of abuse but rather a subsequent attempt to assume the role of the public investigating or prosecuting agencies. (Id. at pp. 256-257.)

Although the instant case is distinguishable from James W. because here defendants followed the advice, rather than usurped the function, of the department of children’s services, and the conduct lasted only a few days while the department determined whether to take action (see Kempster v. Child Protective Services (1987) 130 A.D.2d 623 [ 515 N.Y.S.2d 807 , 809, 810]), we assume that the statutory absolute immunity in section 11172 does not afford defendants absolute immunity for their conduct in refusing to disclose Tricia’s whereabouts while the department of children’s services investigated. We affirm the summary judgment in favor of defendants, however, because we conclude there is no evidence defendants violated Civil Code section 49 or plaintiffs’ federal constitutional rights of parenthood, and in any event defendants’ conduct was otherwise privileged under the circumstances.

B

Civil Code Section 49 and Common Law Privilege

Civil Code section 49 prohibits the “abduction” or “enticement” of a child. As Tricia’s deposition reveals, Tricia voluntarily went to Aviva Center of her own free choice, seeking a safe place to stay and a shelter from claimed potential abuse. As revealed by Tricia’s deposition and Greg Rose’s declaration, Tricia sought out defendants; she was free to leave the shelter or to contact her parents. There is absolutely no evidence of force, coercion, or inducement claimed by plaintiffs in their complaint.

Plaintiffs contend that because Tricia was a minor, below the legal age of consent, it is legally irrelevant whether Tricia voluntarily went to Aviva

C

Federal Civil Rights Act

Title 42, section 1983 of the United States Code provides, “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 or other person within the jurisdiction thereof to the deprivation 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. . . .”

“The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the ‘Constitution and laws’ of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right ‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.’ This second element requires that the plaintiff show that the defendant acted ‘under color of law.’ ” (Adickes v. Kress & Co. (1970) 398 U.S. 144 , 150 [ 26 L.Ed.2d 142 , 150, 90 S.Ct. 1598 ].)

As to this second element, private parties ordinarily are not subject to suit under title 42 United States Code section 1983, unless, sifting the circumstances of the particular case, the state has so significantly involved itself in the private conduct that the private parties may fairly be termed state actors. (Lowe v. Aldridge (11th Cir. 1992) 958 F.2d 1565 , 1572; Life Ins. Co. of North America v. Reichardt (9th Cir. 1979) 591 F.2d 499 , 501.) Among the factors considered are whether the state subsidized or heavily regulated the conduct, or compelled or encouraged the particular conduct, whether the private actor was performing a function which normally is performed exclusively by the state, and whether there was a symbiotic relationship rendering the conduct joint state action. (Rendell-Baker v. Kohn (1982) 457 U.S. 830 , 840-843 [ 73 L.Ed.2d 418 , 427-429 102 S.Ct. 2764 ].)

Here, defendant Aviva Center is a private nonprofit organization whose purpose is to provide a safe harbor for troubled and abused teenage girls. Tricia voluntarily came to the shelter as a private client. Tricia was not placed there by the department of children’s services; she was not in the custody of the department of children’s services. The department did not tell defendants to detain Tricia. Tricia was free to leave or return to her parents, in accordance with defendants’ purpose and policy as a voluntary shelter. The most that could be said for state action here is that the department

advised defendants not to disclose the shelter’s address to plaintiffs. This is not sufficient in light of all the other circumstances here indicating private conduct.

Defendants cite a case so closely in point we find it compelling. In Miriam P. v. City of New York (1990) 163 A.D.2d 39 [ 558 N.Y.S.2d 506 ], a six-year-old child was brought to defendant private hospital with a swollen left thigh and hip. X-rays disclosed a fractured left femur. The hospital reported suspected child abuse to the special services for children. After extensive treatment, the child was medically cleared to be discharged from the hospital on January 16, 1987, and the mother requested the child’s release. “However, since SSC had not yet completed its investigation, it provided the hospital with a new authorization number, continuing the child on a ‘special hold’ pending the completion of the investigation. After the child was discharged from the hospital on February 27, 1987, her mother instituted this action against St. Luke’s-Roosevelt Hospital alleging unlawful detention and false arrest, a civil rights violation under 42 U.S.C. § 1983 and the infliction of mental distress.” (Id. at p. 507.) The court held that “defendant was not acting under color of state law in caring for the child pending the completion of SSC’s investigation.” (Id. at p. 509.) “During the period of time in which the child was detained on a hold, the hospital was in effect, acting as a foster home or hotel designated by SSC pending the completion of the investigation. As such, the hospital was not acting under color of state law for § 1983 purposes.” (Id. at p. 508.) The court (ibid.) distinguished Perez v. Sugarman (2d Cir. 1974) 499 F.2d 761 . In Perez, which found the private institutions to be state actors, the state child welfare officials took custody of plaintiff’s two children and placed them for two years at private institutions in fulfillment of the state’s obligation to care for them.

Just as the hospital in Miriam P. was not acting under color of law despite detaining the small child on a “special hold” by the special services for children, defendants in the instant case were not acting under color of law in allowing Tricia voluntarily to stay at the shelter and following advice of the department of children’s services not to disclose the address of the shelter.

The other required element of a federal civil rights cause of action is that the right of which the plaintiff was deprived is one secured by the laws and Constitution of the United States. (Willard v. City of Myrtle Beach, SC (D.S.C. 1989) 728 F.Supp. 397 .) Plaintiffs contend this case involves a liberty interest, protected by the due process clause of the Fourteenth Amendment, in “ ‘preservation of family integrity.’ ” Plaintiffs’ cited cases, however, are ones in which parental rights were permanently terminated, or

in which state officials formally took custody away from a parent for a substantial period of time. (Santosky v. Kramer (1982) 455 U.S. 745 [ 71 L.Ed.2d 599 , 102 S.Ct. 1388 ] [permanent termination]; Duchesne v. Sugarman (2d Cir. 1977) 566 F.2d 817 [deprivation of custody since December 17, 1969, still continuing at time of decision in 1977]; In re Kelvin M. (1978) 77 Cal.App.3d 396 [ 143 Cal.Rptr. 561 ] [child declared ward of juvenile court based on mother’s disability, with no hearing on father’s claim that he was able to take custody].)

Here, the initial disruption of the family integrity is attributable to Tricia, who voluntarily left home and sought shelter from defendants. Tricia was not taken into custody by the department of children’s services. Tricia was not detained, abducted, or induced by defendants to remain away from home. The most defendants did was to decline to disclose Tricia’s whereabouts to plaintiffs; even this lasted only three days at most. In these circumstances, we find the brief nondisclosure of the shelter’s address while counseling Tricia and while the authorities investigated does not involve a violation of a fundamental interest of plaintiffs protected by the Fourteenth Amendment. Willard v. City of Myrtle Beach, SC, supra, 728 F.Supp. 397 is persuasive, on an analogous set of facts. There, city police arrested a 17-year-old boy for public intoxication and disorderly conduct and detained him in a jail cell for 4 hours, after which he was released to his mother. His parents thereafter brought a federal civil rights suit alleging that the defendants’ conduct violated their protected liberty interest in the companionship and association of their son. The court declined to recognize any broad-ranged constitutional liberty interest in parents arising from such temporary detention of their children. {Id. at p. 404.)

Finally, even assuming plaintiffs make out a triable issue of fact as to both of the necessary elements of a prima facie case, a federal civil rights action is subject to defenses of immunity and privilege (Tower v. Glover (1984) 467 U.S. 914 , 920 [ 81 L.Ed.2d 758 , 764, 104 S.Ct. 2820 ]; Imbler v. Pachtman (1976) 424 U.S. 409 , 417-418 [ 47 L.Ed.2d 128 , 135-137, 96 S.Ct. 984 ]), which sometimes appear as a matter of law on summary judgment. (E.g., Elene H. v. County of Los Angeles (1990) 220 Cal.App.3d 1445 , 1454 [ 269 Cal.Rptr. 783 ].)

As stated ante, page 679, to the extent plaintiffs’ action is based on conduct immunized by Penal Code section 11172, defendants have absolute immunity on the federal civil rights action as well. (Thomas v. Chadwick, supra, 224 Cal.App.3d 813 , 823-826.) To the extent their conduct is not within that absolute immunity, defendants, who are private parties, may assert a defense of good faith or probable cause (Wyatt v. Cole (1992) 504