ROBERT KING v OLMSTED CTY.
United States Court of Appeals
for the eighth circuit
___________
No. 96-3107
___________
Robert W. King; Linda Bandel *
King,individually and on behalf *
of Nathaniel King and Jacob *
King; and Wesley J.King and *
Paul W. King, individually, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Olmsted County; Olmsted County *
Social Services Department; Mark*
Barta,individually and in his *
official capacity as a case *
worker for the Defendant *
County; Joan Kindem, *
individually and *
in her capacity as a case *
manager for the Defendant *
County, *
*
Appellees. *
___________
Submitted: March 14, 1997
Filed: June 26, 1997
___________
Before WOLLMAN and BEAM, Circuit Judges, and REASONER,(1) District
Judge.
___________
WOLLMAN, Circuit Judge.
Robert W. King and his wife, Linda Bandel King, individually
and on behalf of their sons Nathaniel and Jacob King, together with
their sons Wesley and Paul, appeal from the district court's(2) grant
of summary judgment in favor of Olmsted County, the Olmsted County
Social Services Department (Social Services), and Mark Barta and
Joan Kindem, individually and in their capacities as Olmsted County
social workers (collectively, the defendants). We affirm.
I.
Between October of 1992 and March of 1993, Mrs. King contacted
Social Services several times to request help with her son Paul.
Paul was then sixteen years old and had been diagnosed with
Attention Deficit Hyperactive Disorder (ADHD). Paul was skipping
school, leaving home for hours, refusing to take medication for his
ADHD, physically harming himself, and making suicidal statements.
Mr. Barta met with Paul once in November of 1992, but no
significant action was taken until March 22, 1993, when Mr. and
Mrs. King met with Barta and again requested assistance with Paul.
At that meeting, Mr. and Mrs. King agreed with Barta that Paul
would be admitted to the Von Wald shelter in Rochester, Minnesota,
a short-term residential facility for troubled adolescents. Mr.
and Mrs. King signed a voluntary placement form and releases
authorizing Social Services to obtain Paul's medical, psychiatric,
and educational records.
Mr. and Mrs. King and Barta subsequently disagreed regarding
the proper course of treatment for Paul upon his leaving the Von
Wald shelter. Mr. and Mrs. King
wanted Paul to receive evaluation and treatment in a hospital
setting, whereas Barta thought foster placement would be more
appropriate.
On April 5, Barta filed a Child in Need of Protection or
Services (CHIPS) petition in state court, pursuant to Minn. Stat.
260.015, seeking temporary custody of Paul to facilitate his
placement in foster care. That same day, a state district court
judge ruled that there was probable cause to support the CHIPS
petition. A CHIPS hearing was held on April 7, and Mr. and Mrs.
King, who were represented by counsel, agreed with Social Services
that Paul would be placed in a foster home, with Mr. and Mrs. King
retaining legal custody.(3) The matter was continued for 30 days.
Paul, who had been staying at the Von Wald shelter, was placed in
a foster home on April 13. Ms. Kindem assumed primary
responsibility for Paul's case on April 14. A follow-up hearing
was held on May 10, and the court continued the April 7 order that
Paul remain in foster care, with his parents retaining legal
custody. On May 14, Paul King entered the Wilson Center in
Faribault, Minnesota, on his own volition for medical and
psychiatric treatment.
Following a May 21 hearing, the court ordered that Paul would
remain at the Wilson Center or any other place agreed upon by the
parties. Paul was discharged from the Wilson Center and returned
home on June 18. The county attorney's motion to dismiss the CHIPS
petition was granted on July 27.
The Kings then filed suit under 42 U.S.C. 1983, alleging
that Social Services had violated their constitutional right to
familial relations. They also asserted various state claims. As
a basis for their suit, the Kings alleged that sometime in April of
1993, Barta threatened that unless Mr. and Mrs. King relinquished
custody of Paul, Social
Services would take custody of Nathaniel and Jacob. Wesley King
stated in an affidavit that Barta called the King home during the
time Paul was at the Von Wald shelter and made a similar threat.
The Kings also allege that Barta attempted to influence Paul while
he was at the Von Wald Shelter with promises of an apartment, a
car, clothes, and a new school. The Kings allege that in early
May, Barta again threatened Wesley that Social Services would
remove Nathaniel and Jacob if Mr. and Mrs. King did not cooperate
with Social Services and relinquish legal custody of Paul. They
also allege that Kindem made a similar threat when she met with
Mrs. King and Wesley at a restaurant on or about May 7. Wesley
King stated in an affidavit that around 4:30 p.m. on March 14,
Kindem called the King home, demanded to know where Paul was, and
threatened to take Nathaniel and Jacob unless Mr. and Mrs. King
cooperated with Social Services, presumably by relinquishing legal
custody of Paul.
The district court granted summary judgment for the defendants
on the section 1983 claim and declined to exercise supplemental
jurisdiction over the state claims.
II.
We have recognized a right to familial relations, which
includes the liberty interest of parents in the custody, care, and
management of their children. See Thomason v. SCAN Volunteer
Servs., Inc., 85 F.3d 1365, 1370-71 (8th Cir. 1996) (quoting
Manzano v. South Dakota Dep't of Soc. Servs., 60 F.3d 505, 509-11
(8th Cir. 1995)). The Kings do not claim (indeed, could not
claim) that Social Services wrongly became involved in their lives,
for Social Services intervened only at Mr. and Mrs. Kings' behest.
Nor do the Kings claim they were actually deprived of familial
relations, for Nathaniel and Jacob were never taken from Mr. and
Mrs. Kings' custody or care. The Kings claim instead that Social
Services unconstitutionally interfered with their right to familial
relations by coercing and manipulating them with threats that
Social Services would take Nathaniel and Jacob unless the Kings
"cooperat[ed] with
what the government wanted to do to Paul," and by promising Paul an
apartment, a car, clothes, and a new school.
"Generally, mere verbal threats made by a state-actor do not
constitute a 1983 claim." Hopson v. Fredericksen, 961 F.2d 1374,
1378 (8th Cir. 1992). "The Constitution does not protect against
all intrusions on one's peace of mind. Fear or emotional injury
which results solely from verbal harassment or idle threats is
generally not sufficient to constitute an invasion of an identified
liberty interest." Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir.
1991) (police's threats to children that they would not see their
step-father again did not constitute violation of children's right
to familial relations); see Emmons v. McLaughlin, 874 F.2d 351,
353-54 (6th Cir. 1989); Lamar v. Steele, 698 F.2d 1286, 1286 (5th
Cir. 1983) (per curiam). We have held that a threat constitutes an
actionable constitutional violation only when the threat is so
brutal or wantonly cruel as to shock the conscience, see Hopson,
961 F.2d at 1378-79, or if the threat exerts coercive pressure on
the plaintiff and the plaintiff suffers the deprivation of a
constitutional right. See Bishop v. Tice, 622 F.2d 349, 354 (8th
Cir. 1980).
We conclude that the alleged threats made by Barta and Kindem,
although seemingly inappropriate, do not rise to the level of a
constitutional violation. Barta and Kindem did not exhibit any
conduct suggesting that they intended to take action on the alleged
threats. In addition, the Kings, who were represented by counsel,
had ample opportunity to challenge the alleged threats; they could
have consulted with counsel regarding the possibility that the
children would be taken, and they could have informed any of the
three judges reviewing their case of the statements. Even when
viewed in the light most favorable to the Kings, the alleged
threats can at worst be characterized as "verbal harassment or idle
threats" that are "not sufficient to constitute an invasion of an
identified liberty interest." Pittsley, 927 F.2d at 7.
Furthermore, the Kings have failed to show that they were
coerced by Social Services' statements. No threats were made prior
to the March 22 hearing, at which
Mr. and Mrs. King signed a voluntary placement form agreeing to
place Paul in the Von Wald shelter. Although two of the alleged
statements may have occurred before April 7 (the only time
subsequent to March 22 when Mr. and Mrs. King made a decision
regarding Paul's treatment), Mr. and Mrs. King gave no indication
at the April 7 hearing that their cooperation was being coerced.
Rather, the Kings' attorney stated at the May 10 hearing that Mr.
and Mrs. King had on April 7 "voluntarily agreed to place [Paul] at
a foster home."
Moreover, Mr. and Mrs. King retained legal custody of Paul at
all times. Social Services' only intrusive action was placing Paul
in foster care, an action which the state court found, and the
Kings do not contest, was supported by probable cause. Because
there is no showing that Mr. and Mrs. King were effectively
deprived of their free choice, they have failed to show that they
were unconstitutionally coerced. See Angarita v. St. Louis County,
981 F.2d 1537, 1544-45 (8th Cir. 1992) (county employees'
resignations were accomplished by unconstitutional coercion where
totality of circumstances revealed that employer's conduct deprived
employees of free choice); Cooper v. Dupnik, 963 F.2d 1220, 1248
(9th Cir. 1992) (en banc) (plaintiff states claim of
unconstitutional coercion where police conduct deprives plaintiff
of his "free and unconstrained will").(4)
Similarly, Mr. and Mrs. King have failed to show how Barta's
promises to Paul were unconstitutionally coercive. They neither
allege that these promises were communicated to them, nor do they
explain how these comments could have been an
attempt to manipulate or coerce them into cooperating with Social
Services. In sum, while Barta's and Kindem's alleged conduct, if
it in fact occurred, may have been unprofessional, the Kings have
failed to demonstrate that that conduct constituted a
constitutional violation. Compare Bishop, 622 F.2d at 354.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
The HONORABLE STEPHEN M. REASONER, Chief Judge, United States
District Court for the Eastern District of Arkansas, sitting by
designation.
(2)
The Honorable Paul A. Magnuson, Chief Judge, United States
District Court for the District of Minnesota.
(3)
Ms. Kindem erroneously states in her affidavit that "[d]uring
the time Paul King was in foster care and the Wilson Center,
Olmsted County had legal custody of Paul King pursuant to court
order."
(4)
The Kings rely heavily on Cooper. In Cooper, the defendants
argued that because a coerced statement was not used in court, the
defendants' coercive behavior did not constitute an actionable due
process violation. The Ninth Circuit, en banc, disagreed, holding
that "[a] due process violation caused by coercive behavior . . .
is complete with the coercive behavior itself." Id. at 1244-45.
Whatever our view of the holding in Cooper, the defendants'
behavior toward the Kings does not approach the overwhelming
coercion described in that case.