June 21, 2016
Appeals from the Superior Court of the District of Columbia
(2010-CAB-6550), Hon. John M. Mott, Trial Judge
Gregory S. Smith for appellants.
Joshua Podoll, with whom Kevin T. Baine was on the brief, for
L. AliKhan, Deputy Solicitor General at the time of argument,
with whom Karl A. Racine, Attorney General for the District
of Columbia, Todd S. Kim, Solicitor General at the time of
argument, and James C. McKay, Jr., Senior Assistant Attorney
General, were on the brief, for appellees.
Blackburne-Rigsby, Chief Judge, [*] and Glickman and McLeese,
2007, the District of Columbia filed a child abuse and neglect
complaint against the parents of twin eight-month-old infant
girls. The District of Columbia ("District"),
removed the twins, N.C. and Jo.C., from their parents'
home, based on a Children's National Medical Center
physician's report that one of the twins, N.C., may have
suffered from shaken baby syndrome. The children were
returned to their parents after approximately fourteen days.
The abuse and neglect case against the parents was ultimately
parents, J.C. (mother) and G.C. (father) ("the
C.s"), filed a civil suit against the District
contending that the District's removal of their children
violated their constitutional rights. In their civil suit,
the C.s allege 42 U.S.C. § 1983 (2006) claims and common
law tort claims against the District and against individual
District employees within the District of Columbia Office of
the Attorney General and the Child and Family Services Agency
("CFSA"). The trial court granted summary judgment
in favor of the District on all of the parents' claims,
concluding that the District was not subject to liability
because it was entitled to qualified immunity on the §
1983 claims and sovereign immunity on the common law tort
claims. The trial court also granted the District's
motion to dismiss the individual defendants. See
Super. Ct. Civ. R. 12 (b)(6). The C.s appeal those decisions.
with the C.s' appeal are intervenor WP Company LLC's
("Washington Post") appeals of the trial
court's decisions denying its motions seeking access to
(1) the summary judgment pleadings, which were sealed and not
made available to the public; and (2) an unredacted copy of
the trial court's summary judgment order. The trial court
ordered most of the record sealed because the case was
closely intertwined with the earlier child abuse and neglect
action, a confidential matter by statute. See D.C.
Code §§ 16-2331, -2332, and 4-1303.06 (2012 Repl.);
Super. Ct. Civ. R. 5-III (standard for sealing court
found this case to be of exceptional difficulty both
factually and legally, and we recognize the challenges that
the trial court faced in answering the questions present in
this case. Nevertheless, on the record before us, we are
unable to determine whether summary judgment in favor of the
District was appropriate. Specifically, the trial court did
not directly address whether any of the District's
actions actually violated the C.s' constitutional rights
in rejecting the C.s' § 1983 claims. Likewise, the
trial court did not adequately explain why the District and
the individual defendants were entitled to immunity from the
C.s' common law tort claims. Therefore, we remand for the
trial court to consider these issues in determining whether
to grant the District's motion for summary judgment and
in dismissing the individual defendants.
under this court's de novo standard of review, and the
record as it currently stands, we are able to make the
following legal conclusions. First, we hold that the District
had probable cause to believe that both N.C. and Jo.C. were
in imminent danger of child abuse based on Dr. Allison
Jackson's assessment that N.C. suffered from unexplained
symptoms consistent with shaken baby syndrome. Second, we
hold that the District did not violate the C.s' due
process rights by including them on the Child Protection
Register. Third, we also affirm infra some of the
ancillary constitutional claims that the C.s raise and
conclude that: (1) the District did not violate the C.s'
substantive due process rights; (2) the two-week separation
of N.C. and Jo.C. from their parents was not greater than
necessary; and (3) the C.s' equal protection rights were
remand for the trial court to address in the first instance
the following questions that we believe are crucial to
resolving the remainder of the C.s' appeal: (1) whether
there were exigent circumstances justifying the warrantless
seizure of Jo.C. from the parental home; (2) whether
probable cause to retain custody of N.C. and Jo.C. continued
to exist after Dr. Jackson issued her second medical report;
and (3) whether the undisputed facts demonstrate that both
the District and the individual defendants were entitled to
immunity on the common law tort claims.
regard to the Washington Post's appeals, we remand for
the the trial court to explain its decision to seal the
summary judgment pleadings in their entirety and its
reasoning for making its redactions to the summary judgment
Factual and Procedural Background
summarize, on August 31, 2007, Children's National
Medical Center ("Children's National")
contacted CFSA for suspected child abuse after the C.s
brought in then-eight-month-old N.C. for vomiting, retching,
and acting uncharacteristically irritable. N.C. was diagnosed
with old and new bleeding in the front left region of her
head (subdural hematoma), along with "retinal
hemorrhages" in both eyes. Dr. Allison Jackson,
consulting physician of Children's National's Child
and Adolescent Protection Center, found the retinal
hemorrhages suspicious and wrote that they were "most
consistent with inflicted head trauma with the most likely
mechanism being that of shaking with or without impact,"
i.e., injuries consistent with "shaken baby
syndrome." Dr. Jackson further noted that the
mother's explanation for N.C. 's injuries, that N.C.
fell while playing on the hardwood floor, "could not
explain the retinal hemorrhages."
Investigator Roberta Geheren placed a "medical
hold" on N.C. at Children's National pending further
testing and also ordered the emergency removal of the second
twin, Jo.C., from the C.s' home. At about 1:00 a.m. on
September 1st, Jo.C. was removed from the C.s' custody by
CFSA without a warrant, with help from the Metropolitan
Police Department ("MPD"). The record is unclear as
to how many hours passed between when CFSA placed N.C. in a
medical hold and when CFSA went to secure Jo.C. from the
C.s' home. On September 3rd, Judge Zoe Bush held an
initial emergency hearing and determined that CFSA had
probable cause to remove and hold both children based on Dr.
Jackson's report of her medical examination of N.C.
suggesting that the trauma was "most likely" the
result of "shaking."
September 4th, and following an MRI of N.C., Dr. Jackson
opined in a second medical-legal report that, while N.C.
's subdural hematoma injuries "may be consistent
with the explanation given by" J.C., J.C.'s
explanation did not explain N.C. 's retinal hemorrhages,
so "inflicted head trauma remains a possibility"
and that "[l]ab tests completed to date demonstrate no
other medical explanations for the retinal hemorrhage."
The District thereafter served the C.s with petitions
alleging abuse and neglect of N.C. and Jo.C., respectively,
signed by Investigator Geheren and Assistant Attorney General
Jason Lederstein, the prosecutor assigned to the case.
Judge Mary Grace Rook conducted a supplemental probable cause
hearing on September 10th, 11th, and 13th, and ruled on the
14th. Dr. Jackson testified on behalf of the District and
adhered to her opinion that the retinal hemorrhages were
injuries consistent with shaken baby syndrome and could not
be explained by what J.C. told the hospital. Dr. Ronald
Uscinski, the parents' expert witness, testified that
vomiting could, indeed, have caused the retinal hemorrhages
and opined further that it "would not be possible to
shake [ N.C. ] causing retinal hemorrhages without other
trauma." Magistrate Judge Rook concluded that both Dr.
Jackson and Dr. Uscinski were credible witnesses, but found
more credible Dr. Uscinski's explanation that the
"prolonged vomiting (four hours) could have . . . caused
the retinal hemorrhages." Accordingly, Magistrate Judge
Rook concluded that there was no probable cause to believe
that N.C. was abused. The children were returned to the
C.s' custody fourteen days after they were initially
removed. About one month later, on December 14, 2007, the C.s
were notified that their names had been automatically placed
onto the District of Columbia's Child Protection Register
because of the District's "inconclusive" report
regarding N.C. 's abuse allegations. The C.s filed an
administrative appeal of that decision and their case was
heard before a hearing examiner, who ordered the C.s'
names removed from the Register on July 22, 2008.
August 30, 2010, the C.s filed suit against the District and
the individual government employees involved in their child
abuse and neglect prosecution, asserting injuries resulting
from the alleged unlawful government seizure of their
children. They asserted violations of the Fourth and Fifth
Amendments pursuant to § 1983 by the District,
and common law tort claims against both the District and
individual defendants: negligence and gross negligence, abuse
of process, intentional infliction of emotional distress,
negligent infliction of emotional distress, and negligent
hiring, training, supervision and retention. Judge John M.
Mott dismissed the case against the individual defendants
pursuant to a Rule 12 (b)(6) motion. Judge Mott later granted
the District's motion for summary judgment. The C.s filed
an appeal from the trial court's decision to dismiss the
individual defendants under Rule 12 (b)(6) and to grant
summary judgment to the District on all counts.
trial court issued a protective order in this case. The
Washington Post filed a motion to intervene and for access to
the summary judgment pleadings, including the motion,
opposition, and exhibits. The trial court did not explicitly
rule on this motion before it issued its sealed summary
judgment order in favor of the District, whereupon the
Washington Post filed a second motion to intervene and for
access to the court's order. In a subsequent written
order, the trial court granted the Washington Post's
motion for access to a redacted version of the summary
judgment order. The trial court did not explain its rationale
for its redactions. The Washington Post has filed appeals
seeking disclosure of both the summary judgment pleadings by
the parties and an unredacted copy of the trial court's
summary judgment order.
Discussion of the C.s' Appeal