Questions Certified to the Connecticut Supreme Court: June 13, 2003.
STRAUB, Circuit Judge.
Plaintiffs-Appellants, Teresa T. ("Teresa") and Zazsheen P. ("Zazsheen"), minor children who are presently in foster care, assert various constitutional claims against defendant employees of the Connecticut Department of Children and Families
The tragic facts of this case are set forth in detail in the District Court's decision, familiarity with which is presumed. See Teresa T., 154 F.Supp.2d at 294-97. In order to frame the issues on appeal, we briefly summarize plaintiffs' allegations.
Plaintiffs' family was first brought to the attention of the DCF in October 1996 when a teacher at Teresa's school reported signs of possible abuse, including marks on Teresa's neck and troubling weight loss. After an initial inquiry, a DCF investigation worker confirmed that Teresa — who was twelve years old at the time, autistic, and non-verbal — was in need of immediate DCF services given the unexplained bruises on her neck and her noticeable weight loss. According to the plaintiffs' allegations, which we must accept as true at the pleading stage, see Olmsted v. Pruco Life Ins. Co. of New Jersey, 283 F.3d 429, 432 (2d Cir.2002), during the three-month period between October 1996 and January 1997 when the DCF closed its case on the plaintiffs' family, defendants failed to conduct an adequate investigation into the initial reports of abuse and ignored multiple signs of obvious neglect and abuse.
The social-worker trainee assigned as the family's DCF caseworker visited plaintiffs' home several times and spoke with plaintiffs' mother, Ms. G. The caseworker learned that the plaintiffs' stepfather, Joseph P., lived with them occasionally, but plaintiffs' mother refused to answer any additional questions about the stepfather. After some difficulty, the caseworker managed to meet Joseph P., but he was loud, belligerent, and disruptive during the conversation, making it increasingly difficult for the caseworker to communicate freely with plaintiffs' mother.
Teresa's teacher also informed the caseworker that she was worried about Teresa's weight, especially Teresa's significant weight loss over Thanksgiving break. In addition, the teacher indicated that Teresa had been observed eating frantically and explained that the school had been feeding Teresa double portions of both breakfast and dinner.
During the investigation, the caseworker also learned that the Department of Mental Retardation had been working with the plaintiffs' family for over a year and that the plaintiffs' mother had been noncooperative. Moreover, after Ms. G was evaluated for substance abuse, the drug counselor reported that Ms. G was very angry during the interview and recommended further testing and psychological evaluation. The counselor also privately informed the caseworker that he had a "hot" case on his hands and that she was afraid that Ms. G had other problems besides potential drug abuse.
In December 1996, Teresa received a full medical examination at the Hill Health Center ("HHC") in New Haven. The HHC doctor indicated that Teresa was in "good physical condition" and that he had "no concerns regarding her health or weight loss." However, the DCF case-worker apparently did not credit the doctor's assessment and asked that Teresa be examined by another physician — an examination which never occurred.
Despite this warning, respite services began, but were soon terminated after the service provider assigned to the plaintiffs' family reported to Lowe that Joseph P. had called her at home, "street talked" her, and requested sexual favors. The service provider also informed Lowe that plaintiffs' home smelled of urine, was unclean and unsafe, and was otherwise inappropriate for children. The Benhaven agency subsequently cancelled respite services. Lowe again informed the DCF caseworker that the plaintiffs' family required more intensive services. Inexplicably, the caseworker responded by informing Lowe that he had closed the DCF file on the plaintiffs' family.
On January 26, 1997, plaintiffs' eight month old sister, Shedina P. ("Shedina"), was brought to the emergency room with severe head trauma and several rib fractures which the emergency room doctor found to be consistent with child abuse. As a result of her injuries, Shedina died three days later. Only at this time did the DCF place a 96-hour hold on plaintiffs due to the agency's assessment that the plaintiffs were at risk of imminent harm.
Plaintiffs brought this action in June 2000 by their next friend, asserting various claims pursuant to 42 U.S.C. § 1983 and under state law. Defendant DCF officials moved to dismiss under Fed.R.Civ.P. 12(b)(6). By written decision, the District Court granted the motion as to plaintiffs' procedural due process claims, concluding that the procedures set forth in Connecticut's child welfare statutes do not give rise to a legitimate claim of entitlement on which a procedural due process claim may be grounded.
We review the dismissal of plaintiffs' claims de novo, see Cicio v. Does, 321 F.3d 83, 89 (2d Cir.2003), and will affirm only if "it appears beyond doubt that the plaintiff[s] can prove no set of facts ... which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This rule "applies with particular force" in this case, as plaintiffs seek to vindicate their civil rights. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998).
In analyzing plaintiffs' procedural due process claims, we must first determine (1) whether plaintiffs possessed a protected liberty or property interest, and, if so, (2) what process plaintiffs were due before they could be deprived of that interest. See Ciambriello v. County of Nassau, 292 F.3d 307, 313 (2d Cir.2002). Because the District Court found that plaintiffs could not establish the existence of any interest entitled to due process protection, it never reached the second part of the inquiry. We too focus on this threshold question, but for the reasons explained below, seek further guidance from the Connecticut Supreme Court as to the content of the applicable state law.
A. State Created Interest
Although some due process protections stem independently from the Fourteenth Amendment, state law may also create liberty or property interests entitled to due process protection. See Paul v. Davis, 424 U.S. 693, 711 & n. 5, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In this case, plaintiffs do not contend that the state of Connecticut has a constitutional obligation to protect them from child abuse, see DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196-97, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (holding that states have no substantive due process obligation to protect children against private violence), instead they argue that Connecticut's comprehensive child welfare scheme, Conn. Gen.Stat. §§ 17a-90, et seq., creates an entitlement to protective services subject to Fourteenth Amendment scrutiny. This type of procedural due process claim was left undecided by the Supreme Court in DeShaney. DeShaney, 489 U.S. at 195 n. 2, 109 S.Ct. 998 (refusing to address petitioners' alternative argument that Wisconsin's child protection statutes created an entitlement to protective services in accordance with the terms of the statutes).
In evaluating whether a state has created a protected interest in the administrative context, we must determine whether the state statute or regulation at issue meaningfully channels official discretion by mandating a defined administrative outcome. As the Supreme Court has explained: "[A] State creates a protected liberty interest by placing substantive limitations on official discretion .... [generally] by establishing substantive predicates to govern official decision-making, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met." Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (internal quotations and citations omitted). Similarly, to claim a protected property interest in a particular administrative benefit or measure, an individual must have "a legitimate claim of entitlement" in receiving the benefit or measure, not merely "a unilateral expectation" in a desired administrative outcome. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Where the administrative scheme does not require a certain outcome, but merely authorizes particular actions and remedies, the scheme does not create "entitlements" that receive constitutional protection under the Fourteenth Amendment. See Kelly Kare, Ltd. v. O'Rourke, 930 F.2d 170, 175 (2d Cir.1991) ("If the statute, regulation, or contract in issue vests in the state significant discretion over the ... conferral of [a] benefit, it will be the rare case that the recipient will be able to establish an entitlement to that benefit.").
In support of their due process claims, plaintiffs rely on the statutorily expressed public policy of the state of Connecticut:
Conn Gen Stat. § 17a-101(a). However, this policy statement creates no discrete rights or reasonable expectations in any specific protective measures. See Savage v. Aronson, 214 Conn. 256, 279 n. 25, 571 A.2d 696
Plaintiffs also point to the detailed and comprehensive procedures for investigating potential child abuse mandated by state law. We emphasize that such procedures, standing alone, create no independent substantive entitlements, whose deprivation might trigger application of the Due Process Clause. See Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) ("The State may choose to require procedures ... but in making that choice the State does not create an independent substantive right."); Hewitt v. Helms, 459 U.S. 460, 471, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (explaining that the existence of "a careful procedural structure" does not give rise to a protected liberty interest).
B. Conn. Gen.Stat. § 17a-101g(c)
The child welfare statutes which plaintiffs rely upon set forth requirements for the immediate classification and evaluation of child abuse reports, the timely initiation of an investigation, and the conduct of the investigation. See Conn. Gen.Stat. §§ 17a-101g(a)-(b).
We can identify only one statutory provision which may require the DCF to take specific substantive action. Conn Gen. Stat. § 17a-101g(c) states:
This presents significant difficulties for this Court in analyzing plaintiffs' due process claims. Without a clear understanding of the underlying state law, we cannot determine in an informed manner whether plaintiffs have a legitimate entitlement to emergency removal potentially triggering Fourteenth Amendment protection. If § 17a-101g(c) makes removal mandatory, we cannot say at this preliminary stage of the litigation that plaintiffs have failed to allege the existence of a protected property or liberty interest.
Although similar due process claims have been rejected by other circuits, in none of these prior cases did the court actually reach the question of whether a child welfare statute required removal of a child from an unsafe environment, thus potentially imposing substantive as well as procedural requirements on state officials and creating a liberty or property interest sufficient to state a procedural due process claim. See Doe v. District of Columbia, 93 F.3d 861, 867-68 (D.C.Cir.1996) (per curiam) ("[B]y codifying procedures for investigating child abuse and neglect reports, D.C. has not assumed a constitutional obligation to protect children from such abuse and neglect."); Tony L. v. Childers, 71 F.3d 1182, 1186 (6th Cir.1995) ("[Plaintiffs'] claim of a state-created liberty interest fails, however, because no particular substantive outcome is mandated. The requirement that an investigation be initiated only gives plaintiffs an expectation of receiving a certain process."); Doe v. Milwaukee County, 903 F.2d 499, 503 (7th Cir.1990) (noting that particular statute cited by plaintiffs "is, in essence, a set
Under these circumstances, we believe that certification to the Connecticut Supreme Court is the most prudent path.
For the foregoing reasons, we respectfully certify to the Connecticut Supreme Court the following questions:
Although the ultimate question of whether § 17a-101g(c) creates a protected liberty or property interest is governed by federal law, we welcome any further guidance which the Connecticut Supreme Court may elect to offer with respect to related state law issues. Accordingly, the certified questions may be deemed expanded to cover any further pertinent question of Connecticut law that the Supreme Court finds appropriate to answer in connection with this appeal. This panel retains jurisdiction so that we may dispose of the appeal following the Connecticut Supreme Court's decision.
It is hereby ORDERED that the Clerk of this court transmit to the Clerk of the Connecticut Supreme Court a Certificate, as set forth below, together with a complete set of briefs and appendices filed in this court by the parties.
The foregoing is hereby certified to the Connecticut Supreme Court, pursuant to 2d Cir.R. § 0.27 and Conn. Gen.Stat. § 59-199b(d), as ordered by the United States Court of Appeals for the Second Circuit.