Wilkinson vs. Balsam, Russell, and Adams*
Louis Kiefer and Harold Stevens*
ABSTRACT: In this Opinion and Order from a civil suit against the
treating psychiatrist and two members of social services, the plaintiff
was falsely accused of sexually abusing his young son and subsequently
sued for negligence, malpractice, and deprivation of civil rights.
The defendants moved for summary dismissal on several bases. The
judge's Opinion and Order denying these defense motions presents a
cogent analysis of the issues and demonstrates that, depending upon the
facts of the case, it may be possible to prevail notwithstanding the defenses
that make such cases difficult to bring to trial.
While there are various civil tort remedies for persons falsely
accused of child abuse, each tort has certain defenses which, depending
on the facts specific to an individual case, may make it difficult to
prevail. As a result, it is not uncommon to have many or all of
the causes of action dismissed, early in the litigation, by the use of a
device called "Motion to Dismiss."
The Motion to Dismiss basically states that, even if the alleged
facts are true, as a matter of law, the plaintiff may not prevail.
Each party may also move for Summary Judgment which claims that, based
upon affidavits, admissions, and uncontroverted
evidence, the court should determine liability in favor of the
If one sues the independent psychiatrist who did the evaluation, no
matter how poorly or negligently, the defense is made that, since the
falsely accused was not the patient of the doctor's, the doctor had no
duty to anyone other than the patient. Until recently, one had to
establish a patient-physician relationship in order to sue a physician
If one sues the independent psychiatrist who also is a mandated
reporter, the claim is made that the provision of the law provide
immunity to someone who, in good faith, makes a claim even if the
claim turns out to be false.
If one sues the person who complained, or the therapist, for libel
(if written) or slander (if oral), there are two claims: one, which is
more easily proved, is "qualified privilege." That is to
say that the person, if acting in good faith, is permitted to make
statements to others if there is a community of purpose or interest.
Also, there is the defense of truth, although this is harder to prove
yes, before a jury the defendant would have to prove that the person was
Finally, where there is a state agent, such a. Protective Services,
SS, or DSS, there is often governmental or judicial immunity which will
prevent recovery against a state agency. Indeed, judicial immunity
often protects the Guardian ad Litem, the attorney for the child, as
well as prosecutors and judges. General governmental immunity
often protects state employees acting within their capacity.
Depending upon the facts of a case, it may be possible to prevail
notwithstanding the above named defenses.
The following Opinion and Order from Judge Fred I. Parker, clearly
states the issues, given the fact situation in the Wilkinson case.
Judge's Opinion and Order
Thomas Wilkinson claims that he was falsely accused of sexually
abusing his young son, B Wilkinson, and stepson, J Wiegand. He
brought this action in state court on his own and B's behalf, against
Steven C. Balsam, M.D., a psychiatrist who treated B, J and their
mother, Linda Wiegand, and against two employees of the Vermont
Department of Social and Rehabilitation Services (SRS), Carolyn S.
Russell and James Adams. The case was removed to this court on the
ground that the complaint contains a federal civil rights claim in
addition to several state tort claims.
Specifically, the complaint is predicated on the following legal
theories, against individual defendants as stated: (1) slander, against
Balsam; (2) negligence in the evaluation and diagnosis of B, against
Balsam; (3) malpractice in the treatment of B, against Balsam; (4)
"family malpractice," against Balsam; (5) deprivation of civil
rights, against Adams; (6) "ultra vires substantiation,"
against Russell; (7) conspiracy, against all three defendants; and (8)
infliction of emotional distress, against all defendants.
Several motions are now pending, most notably motions for summary
judgment filed by the defendants. To analyze the motions for
summary judgment, it is necessary to review in detail the facts adduced
by the plaintiffs.
The following facts are either not in dispute or, if they are in
dispute, are supported by the affidavits and accompanying evidentiary
material submitted by the plaintiffs, as required by Fed. R. Civ. P.
After a separation of a few months, Wilkinson commenced a divorce
proceeding against Wiegand in Connecticut in September 1992, seeking
joint custody of their child B, who was born on January 8, 1989.
Wiegand opposed joint custody and sought sole custody of B.
Wiegand subsequently moved to Stowe, Vermont, with B and her son from a
prior marriage, J, born January 3, 1986. J had a history of
emotional difficulty. Throughout 1992, Wilkinson exercised regular
visitation with the two children.
In late 1992, Wiegand was referred by her physician, Gordon Ahlers,
to Dr. Balsam, a licensed psychiatrist then practicing in
Burlington. During her second visit with Balsam, she discussed
concerns about her children acting out sexually, specifically mentioning
her concern that Wilkinson might have sexually abused them. Balsam
saw the children first on January 6, 1993 and concluded after the one
session that Wilkinson had sexually abused the boys, perhaps in the
context of Devil worship.
Balsam met with the boys again on January 14, when they showed him
drawings depicting sexual contact between Wilkinson and B, including
anal and oral intercourse. There was no physical evidence for such
abuse: Dr. Ahlers examined the children on January 14 and found no signs
of abuse. After seeing the boys, Balsam told Wiegand that B had
been sexually abused by his father and urged her to report the abuse to
SRS. Balsam also related his conclusions to Dr. Ahlers. At
about this time, Wiegand's mother, Carol Morrisey, spoke to Balsam and
told him it was her belief that Wiegand might be sexually abusing
the two children. He told her not to report her suspicion to SRS.
On January 18 or 19, 1993, Wiegand reported to SRS that Wilkinson had
abused B. Balsam too called SRS and confirmed the report, stating
that he was certain of its truth. He indicated that Wilkinson may
have abused J as well, but did not mention Morrisey's belief that
Wiegand herself may have abused the children. SRS assigned the
matter to defendant Adams, a social worker at SRS's Morrisville office,
On January 21, Adams and Stowe police officer Bruce Merriam
interviewed Wiegand, B, and J. A transcript of the taped interview
with B has been filed with the court. During the interview, B,
just 4 years old, says that his father committed various sexual acts
upon him, but he also says that he made things up and that his mother
made him say things. For example, after B affirmatively answers
Adams's query whether "daddy put his penis in your mouth," B
says, "I made it up." Adams asks, "You made it
up?" Answer: "Yeah. She makes me say it. I
did it for mom." At another point, B, showing a picture he
drew, says, "Dad put his tongue in my butt." He then
says, "Someone told me to make it up." The interviewers
frequently ask leading questions and suggest the answers they wish to
hear. For example, after B is asked whether his father put his
penis in B's "butt," B's response is at first unclear.
Adams pursues, "Did he ever do that, yes or no?"
Again, B's answer is unclear. Adams: "Did someone tell you
to say that or did it really happen?" B: "It really
happened." Adams responds: "It really happened.
Okay. That's what we need to know" (emphasis
added). Later, Adams asks whether B "like[s] to sing Devil
songs with Daddy." B says "Uhhuh."
Upon concluding these interviews, SRS
substantiated the report of abuse against Wilkinson.1
On the same day, Detective Merriam contacted Balsam, who confirmed his
views of the matter, including his belief that the abuse occurred as
part of a devil worship ritual. Merriam swore out an affidavit of
probable cause, and on January 25, Wilkinson was arrested and charged
with sexually abusing his son. He denied the charges. He
pled not guilty and was released on bail with the condition that he have
no contact with B.
On January 27, 1993, Adams was informed that Wiegand's nephew had
complained to his father, Craig Martin, that Wiegand had sexually abused
him. Adams shared this information with Balsam, but not with
Wilkinson. During this period, and for about six months
thereafter, Balsam continued to treat the two boys as victims of sexual
abuse perpetrated by Wilkinson.
On February 9, 1993, Adams and his supervisor, Gerald Jeffords,
notified Wilkinson in writing that SRS had substantiated the report of
child abuse involving B. Prior to this time, no one at SRS had
contacted or notified Wilkinson about the investigation. Wilkinson
thereupon began the appeal process to the Human Services Board,
explaining that he believed Wiegand had coached her sons to make the
allegations of sexual abuse in retaliation for his seeking joint custody
of B. He reported his belief that such coaching placed the
children in substantial risk of harm and asked SRS to investigate.
Jeffords responded by letter on February 25, stating: "I have
decided to not accept your letter as a report of abuse or neglect.
This situation has already been investigated and the case is
closed." Wilkinson attended an informal hearing on March 14
with Adams, Jeffords, and Russell, the SRS District Director in
Morrisville. By letter the following week, Russell explained that
after reviewing the record, including documents submitted by Wilkinson,
and after speaking with Balsam, she had determined to uphold the
On May 3, 1993, Wilkinson and SRS entered into a written consent
agreement to stay the appeal to the Human Services Board pending the
outcome of the criminal and divorce litigation. The agreement
provided further: "In the interim, SRS will remove Thomas
Wilkinson's name from its registry as well as its substantiation of
sexual abuse against him." On May 12, Adams informed
Wilkinson that SRS had initiated an investigation of allegations that
Wilkinson had abused J, noting that this matter too was "on
hold" and that SRS would "stay" a decision to
substantiate the abuse of J.
At about this time, the Connecticut family court appointed Wilkinson'
sister, Karen Wilkinson, as B's guardian. Wiegand disappeared with
On July 15, 1993, notwithstanding the consent agreement, Russell
wrote to the Connecticut Department of Children and Families. She
stated that SRS "made a substantiation of sexual abuse perpetrated
on B by Thomas Wilkinson" and "made a determination that
sexual abuse was perpetrated on J by Tom Wilkinson," and provided
details of the allegations. She opined that "[i]f either of
the boys were to be ordered in [Karen Wilkinson's] custody this could
place them at great risk of harm and further abuse by Mr.
In July 1993, the State of Vermont withdrew the criminal complaint
against Wilkinson, because of insufficient evidence and indications that
Wiegand had lied about other matters.
The Connecticut family court appointed Dr. Kenneth Robson to evaluate
the family; he met with Wilkinson, Wiegand (who had reappeared), both
children, and Karen Wilkinson, and spoke with Balsam and Lee Dow, Esq.,
the assistant state's attorney in the criminal case. He also
reviewed the transcripts of Adams's interviews with the children,
medical and psychological records, the children's drawings, depositions
from the criminal case, and other written material. Robson
completed his report in December 1993. It contains a severe
critique of the methods used by Balsam and SRS, and contradicts their
conclusions finding the allegations of sexual abuse by Wilkinson to be
After the report was filed with the Connecticut Family court, the
court revisited the custody issue and awarded Wilkinson custody and
guardianship of both children. Wiegand again disappeared with the
children. Attempts to locate them have failed.
Because Dr. Robson's observations are vital to the plaintiffs' case
and to resolving the summary judgment motions, they are discussed here
in some detail.
Robson notes the conflicting roles performed by Dr. Balsam: "As
is appropriate for a therapist, he developed a strong and positive
relationship and position of advocacy for Ms. Wiegand from the
beginning. As her therapist and that of the boys, it would be
virtually impossible and clinically inadvisable for him to
simultaneously conduct an impartial evaluation of allegations of sexual
abuse" (emphasis in original). Robson notes further:
Not only was this differentiation not made by Dr. Balsam, but he
went forward with the treatment of both boys with the conviction that
sexual abuse had occurred. He reached that conviction early in
his contacts with the boys and seems not to have utilized a
substantial amount of information that is always essential in
assessing the credibility of such allegations. Such information
would include detailed family histories of both parents, marital
histories, developmental histories of both boys, psychiatric histories
of both parents and their families, current practices within the home
that would expose the children to overstimulation or explicit sexual
materials, and observations of both children with the alleging parent
and unless absolutely contraindicated, the alleged perpetrator....
[T]he context of these allegations and their timing in relation
to an intensifying custody dispute should alert any clinician as to
cautious assessment of these allegations (emphasis in original).
Robson opines that Balsam "reached a definitive conviction that
these allegations were true after only brief clinical contact that disregarded
the usual standards by which such complex allegations are evaluated
and in the absence of much supporting data which could have been
available to him" (emphasis added). He states further:
Not only did [Balsam] fail to differentiate the evaluative versus
the therapeutic roles, but his evaluation was technically flawed in
serious ways. Linda Wiegand was already his patient and by
extension the children as well; his advocacy was on their behalf even
though he made every effort to be evenhanded. It does not appear
that he gathered significant background information on either parent,
including a history of the marital relationship and the custody
conflict that was at the center of it as it began to dissolve.
He did not conduct interviews that systemically observed the
interaction between Linda Wiegand and each of the children alone and
together with her which would have been revelatory of the kinds of
data I observed several months later. The exclusion of the
alleged perpetrator from the evaluation was absolute and kept Dr.
Balsam from access to clinical observations that might have altered
his point of view regarding the credibility of the allegations
In his report Dr. Robson also assesses Adams's and Merriam's
interview with the boys on January 21, 1993. That interview begins
with a "definite bias." Robson notes B's recantations
and the indications of maternal coaching in the interview ("I made
it up, "she makes me say it," and other examples) and opines:
"It seems to me extremely important that he [Adams] does not
follow-up this recantation or inquire about it at that time"
(emphasis in original). Robson states his "impression that
there is an increasing need on the interviewer's part to document the
allegations despite the confusion and nonconfirmatory information being
provided to him." Robson discusses other infirmities, such as
Adams's improper, leading use of anatomically correct dolls.
This interview is particularly worrisome to me. It appears
biased from the beginning. There are numerous examples of
leading throughout its content. There are spontaneous
communications from B that at least seriously raise the question of
coaching on his mother's part that are neglected by the
interviewer. And there is confusing information that is far from
explicit when the interviewer attempts to document a particular time,
place, and interaction.
And later in the report:
The interview of both boys by James Adams and Officer Merriam was
seriously flawed. There are numerous episodes of leading in
these interviews. The boys' uncertainty as to the allegations,
and their allusions to maternal influence are ignored by the
interviewer. There is little or no effort to establish a
relationship with either child prior to actively discussing the
allegations of abuse. My impression is of a presumption on the
part of the interviewers that abuse had occurred and ignoring of other
cues and sources of information that might contribute to a more
neutral and objective clinical assessment (emphasis in original).
Robson also notes that "Ms. Wiegand's eagerness and enthusiasm
to gather information, whether it was pictures, documents, teddy bears,
etc., throughout the process of the allegations is more compatible with
the behavior of adults in situations involving false allegations of
Robson considers aspects of the children's allegations themselves
which bear on credibility, noting that they lack specificity as to time,
place and setting, and have a "canned" quality, that they
"became preposterous and impossible" (e.g., J, lying in his
upper bunk, seeing Wilkinson's penis "in B's butt"), and that
J showed uncertainty and confusion following B's recantations, among
other indications of incredibility. Further, "[t]he fact that
there were normal physical findings in the examination performed by Dr.
Ahlers, despite allegations of repeated anal penetration, is more
supportive of the lack of credibility of these allegations."
Plaintiffs have also submitted affidavits by Douglas Dennett, M.D.,
and Roger Kessler. Dr. Dennett, an expert in child psychiatry,
having reviewed much of the written evidence, opines that both Balsam
and Adams were grossly negligent in a number of respects in this case
and that they, along with Russell and Jeffords, had no "objective,
reasonable basis to continue their substantiation of the
abuse." Kessler, a psychologist who knows and has worked with
Adams, Russell, and Jeffords at the Morrisville SRS office, opines that
those individuals were aware of a parent's constitutionally protected
interest in the companionship of their children.
Plaintiffs also allege, although this point does not appear to be
supported by evidence, that Balsam, Adams, and Russell aided and abetted
Wiegand in secreting herself and the children.
Balsam's Motion for Summary Judgment
Summary judgment may be granted only where there is no genuine issue
as to any material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P 56(c); Celotex Corp. v. Catrett,
477 U.S.317, 322-23 (1986). In considering the motion, "the
judge's function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). "The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his
favor." Id. at 255.
Balsam moves for summary judgment on all claims against him raised by
Wilkinson (Counts I, II, III, IV, VII and VIII of the initial complaint)
and for partial summary judgment as to the conspiracy and intentional
infliction of emotional distress claims (Counts VII and VIII) made
against him by B. He raises several distinct issues, discussed
below in turn.
a. Statutory Immunity
Vermont law requires a physician who reasonably suspects child abuse
to report to SRS. 33 V.S.A. § 4913(a) provides:
Any physician ... who has reasonable cause to believe that any
child has been abused or neglected shall report or cause a report to
be made in accordance with the provisions of section 4914 of this
title [providing that such report is to be made to SRS] within 24
One who files a report in accordance with this provision is entitled
to good faith immunity:
Any person enumerated in subsections (a) or (b) of this section,
other than a person suspected of child abuse, who in good faith makes
a report to the department of social and rehabilitation services shall
be immune from any civil or criminal liability which might otherwise
be incurred or imposed as a result of making a report (33 V.S.A. §
Balsam contends that he is immune, by virtue of § 4913, from any
liability he might otherwise have incurred as a result of his having
filed, or caused to have filed, a report of abuse with SRS.
Plaintiffs respond to this contention by arguing, first, that the
immunity of § 4913(c) covers only a person who has made a report within
24 hours of suspecting abuse, and that Balsam waited more than 24 hours
before reporting. This argument is unpersuasive. The statute
indeed requires reports to be made within 24 hours, but the immunity
provision is not limited to those who timely report. To the
contrary, § 4913(c) gives immunity to any person enumerated in
the preceding sections (such as a physician) who in good faith makes a
report to SRS.
More problematic for Balsam, however, is the limitation of the grant
of immunity to those who report "in good faith." A
genuine issue of fact exists as to whether Balsam acted in good faith in
reporting his beliefs, and continuing to validate the allegations after
the initial report. For example, Wiegand's mother, Carol Morrisey,
stated in her deposition that when she learned Wiegand had taken the
boys to see Dr. Balsam, she called him on January 19, 1993 to discuss
her concerns that Wiegand herself may be abusing or neglecting the
children. She told Balsam that she intended to call SRS with this
information. Balsam urged her not to call SRS, as it would
"hurt" Wiegand's case. Given Balsam's involvement in the
matter as Wiegand's therapist and, perhaps, advocate, the evidence
provided by Morrisey (credited as true, for purposes of the summary
judgment motion) suggests that Balsam was deceitful in short,
that his actions were undertaken without good faith.
Further, the statute grants good faith immunity only with respect to
liability incurred "as a result of making a report."
Balsam's actions in this case were not limited to making a report.
He rendered a diagnosis that B is a victim of his father's sexual abuse,
and offered his opinions to Wiegand, the Stowe police and others.
There is evidence that his diagnosis is the result of gross
negligence. To the extent the plaintiffs' damages flow from the
flawed diagnosis, independent of the SRS report, Balsam cannot benefit
from the immunity granted by § 4913(c).
Balsam argues that any statements he made to Stowe police officers in
the course of their criminal investigation are protected by an absolute
privilege, thereby defeating the slander count (as well as the
conspiracy and emotional distress counts to the extent they are
predicated on statements to the police).
Although it does not appear that Vermont courts have spoken on this
question, there is authority for Balsam's claim of privilege. See
Restatement (Second) of Torts § 588 (1977) (witness absolutely
privileged to publish defamatory matter in communications preliminary to
a proposed judicial proceeding"); Frazier v. Bailey, 957
F.2d 920, 932 (1st Cir. 1992). It seems likely the Vermont Supreme
Court, if faced with the issue, would adopt the Restatement
principle. See Crump v. P & C Food Markets, Inc., 154
Vt. 284, 292 (1990) (following Restatement in related context).
Balsam's statements to Merriam, once a criminal investigation had
commenced, arguably fit within the privilege.
Nevertheless, the privilege is of little avail to Balsam.
Detective Merriam had participated in the interviews with the boys and
Wiegand prior to his telephone conversation with Balsam. Thus, the
criminal investigation (and the consequent injury to Wilkinson) ensued
at least in part because of Balsam's report to SRS, not only because of
his direct communications with Merriam. More broadly, the
defamation and related counts are not limited to harm caused by Balsam's
statements to police officers; Balsam spoke to other individuals as
c. Duty to Wilkinson
Balsam next contends that, as he treated only B, J, and Wiegand, he
owed no duty as a matter of law to Wilkinson, who was never his patient,
and therefore he is entitled to summary judgment as to the claims of
professional negligence and malpractice (Counts II, III and IV) brought
"The first prerequisite in any negligence proceeding must be to
establish the existence of a legally cognizable duty." Smith v.
Day, 148 Vt. 595, 597 (1987). "'Duty' may be viewed as
'an expression of the sum total of those considerations of policy which
lead the law to say that the plaintiff is entitled to protection.'"
Denis Bail Bonds Inc. v. State of Vermont, 159 Vt. 481, 487
(1993) [quoting W. Prosser & W. Keeton, The Law of Torts § 53, at
358 (5th ed. 1984)].
Balsam asserts that the mental health professional's duty is owed
only to the patient. This is certainly not always the case.
For example, in Peck v. Counseling Service of Addison County Inc.,
146 Vt. 61, 65 (1985), the Vermont Supreme Court recognized that under
certain circumstances a therapist owes a duty of care to potential
victims of the therapist's patient. "Once a therapist
determines, or, based on the standards of the mental health professional
community, should have determined that his or her patient poses a
serious risk of danger to another, then he or she has the duty to take
whatever steps are reasonably necessary to protect the foreseeable
victim of that danger." Id. at 66-67 (emphasis added).
Foreseeability is central to the analysis. "'The existence
of a duty is primarily a question of law, and dependent upon a variety
of relevant factors, of which foreseeability of the risk is a primary
consideration...." Langle v. Kurkul, 146 Vt. 513, 519 (1989)
(quoting Coulter v. Superior Court, 21 Cal.3d 144, 152, 577 P 2d 669,
674, 145 Cal. Rptr. 534, 539 (1978) (internal quotation omitted)).
For example, in Smith v. Day, the Vermont Supreme Court held that
a university owed no duty of care to third persons harmed by the
criminal acts of the university's students, noting that the university
"had absolutely no reasonably foreseeable notice" of the
student's acts. 148 Vt. at 598.
In this case, the issue is not harm to a third party perpetrated by a
patient of the psychiatrist, but harm to the third party arising directly
from the psychiatrist's negligent evaluation and treatment of his
patient. But the analysis proceeds as in Peck, Langle and Smith.
The question remains whether there are sufficient facts in evidence in
the particular case to warrant the conclusion that the psychiatrist's
conduct will foreseeably harm the third party; if so, the psychiatrist
owes a duty of care to the third party.
Here, plaintiffs have adduced sufficient facts to create a genuine
issue as to whether Balsam ought reasonably to have foreseen that his
negligent evaluation, diagnosis, and treatment of B and J, and his
decisions to report his own conclusions but to dissuade Morrisey from
reporting hers, would cause injury to Wilkinson. If the factfinder
determines that harm to Wilkinson was foreseeable in the circumstances,
then Balsam owed a legal duty to Wilkinson to conform his conduct to the
appropriate standard of care. Balsam is not entitled to summary
judgment on the issue.
d. Intentional Infliction of Emotional Distress
To prove the tort of intentional infliction of emotional distress in
Vermont, the plaintiff must demonstrate "outrageous conduct, done
intentionally or with reckless disregard of the probability of causing
emotional distress, resulting in the suffering of extreme emotional
distress, actually or proximately caused by the outrageous conduct"
Crump v. P & C Food Markets Inc., 154 Vt. at 296 (internal
Disputed facts exist as to each of the elements of this tort.
If plaintiffs' evidence is credited, Dr. Balsam reached and reported a
false conclusion that Wilkinson had sexually abused B had
subjected B to anal and oral intercourse during satanic ritual on
flimsy evidence and in a grossly negligent manner, ignoring his own
conflict of interest as Wiegand's therapist and advocate, knowing that
his verdict would probably occasion a criminal prosecution of Wilkinson,
the most profound abhorrence among his fellows, and the forced
alienation of his son. And he continued to validate the claims of
abuse and continued to treat the children as victims of Wilkinson's
depredations even in the face of evident maternal coaching and Wiegand's
nephew's complaint that Wiegand had sexually abused him.
The court has little difficulty in concluding that such conduct is
"outrageous." And it should go without saying that in
our culture these charges cause deep pain and humiliation extreme
Balsam's motion for summary judgment is accordingly DENIED.
Russell's and Adams's Motion for Summary Judgment
Russell and Adams also move for summary judgment, but on different
issues than those raised in Balsam's motion. As employees of a state
agency acting within the scope of their employment, Russell and Adams
contend they are immune from suit under the doctrine of qualified
official immunity. The scope of this doctrine depends on whether a
claim arises under federal or state law, and hence the federal and state
claims are discussed separately below. Russell and Adams also
argue that Counts VI ("ultra vires substantiation") and VII
("conspiracy") fail to state causes of action under state law.
As to the latter point, in their amended complaint, plaintiffs have
recast Counts VI (now denominated "denial of due process") and
VII to make clear that both are intended to state federal causes of
action under 42 U.S.C. § 1983. Defendants' request to dismiss
these counts for failure to state causes of action under state law is
a. Federal Qualified Immunity
"Qualified immunity strikes a balance between compensating those
who have been injured by official conduct and protecting government's
ability to perform its traditional functions." Wyatt v. Cole,
112 S.Ct. 1827, 1833 (1992). The doctrine is now well established
"that government officials performing discretionary functions are
shielded from 'liability for civil damages insofar as their conduct
[did] not violate clearly established statutory or constitutional rights
of which a reasonable person would have known."' Id. at 1832
[quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)].
In Zahra v. Town of Southold, No.93-9067, slip op. at 29-30
(2d Cir. Feb.21, 1995), the Second Circuit Court of Appeals reviewed the
doctrine as follows:
Whether a defendant actually violated a plaintiff's rights is not
the central issue: "Even defendants who violate constitutional
rights enjoy a qualified immunity that protects them from liability
for damages unless it is further demonstrated that their conduct was
unreasonable under the applicable standard." Davis v. Scherer,
468 U.S. 183, 190 (1984); see also Kaminsky v. Rosenblum, 929
F.2d 922, 925 (2d Cir. 1991) ("[Q]ualified immunity is generally
considered separate and apart from the merits of the case, even though
plaintiff's factual allegations must be examined ... in resolving the
immunity issue."); Collins v. Marina-Martinez, 894 F.2d
474, 478 (1st Cir. 1990) ("Because qualified immunity does not
address the substantive viability of a section 1983 claim, but rather
the objective reasonableness of a defendant's actions, a plaintiff who
is entitled to prevail on the merits is not necessarily entitled to
prevail on the issue of qualified immunity.").
"Essentially, if it is objectively reasonable for an official to
believe that he or she is acting within constitutional and statutory
bounds, the official will be insulated from liability stemming from
his or her conduct." Natale v. Town of Ridgefield, 927
F.2d 101, 104-05 (2d Cir. 1991).
Both the state of constitutional law at the time of the challenged
conduct and the reasonableness of the official's belief as to the
lawfulness of that conduct are relevant to the inquiry. "The
defense of qualified immunity shields governmental officials from civil
liability if the official's conduct did not violate constitutional
rights that were clearly established at the pertinent time or if it was
objectively reasonable for the official to believe that the conduct did
not violate such rights." Cecere v. City of New York, 967
F.2d 826, 829 (2d Cit. 1992); accord van Emrik v. Chemung County
Dept. of Social Services, 911 F. 2d 863, 865-66 (2d Cit. 1990).
Moreover, the doctrine provides for immunity not just from liability
but from suit, and is therefore often appropriate for disposition upon a
motion for summary judgment. See Mitchell v. Forsyth, 472
U.S. 511, 526 (1985). But this is not always the case. In Zahra,
for example, the immunity defense was "properly before the court at
the close of the evidence." Slip op. at 30 n.7. "When a
qualified immunity is asserted in a motion for summary judgment ... the
facts material to the claim of qualified immunity must not be genuinely
disputed." Cecere 967 F.2d at 829. The record prior to
trial may simply be inadequate to determine whether an official can
claim the protection of qualified immunity. Hill v. City of New
York, 45 E3d 653, 663 (2d Cit. 1995). "To some extent the
availability of qualified immunity turns on inquiries into specific
That is the case here. For the reasons set forth below, I am
satisfied that the evidence submitted by the plaintiffs, if proved,
is sufficient to support a finding that Russell and Adams violated the
clearly established constitutional rights of the plaintiffs and that
they did not have an objectively reasonable basis to believe that their
conduct did not violate such rights.
In Santosky v. Kramer, 455 U.S. 745, 753 (1982), the Supreme
Court noted its "historical recognition that freedom of personal
choice in matters of family life is a fundamental liberty interest
protected by the Fourteenth Amendment." Earlier, in Stanley
v. Illinois, 405 U.S. 645,651(1972), the Court wrote:
The Court has frequently emphasized the importance of the family.
The rights to conceive and to raise one's children have been deemed
"essential," Meyer v. Nebraska, 262 U.S. 390, 399
(1923), "basic civil rights of man," Skinner v. Oklahoma,
316 U.S. 535, 541(1942), and "[r]ights far more precious ... than
property rights," May v. Anderson, 345 U.S. 528, 533
Moreover, "[t]he fundamental liberty interest of natural parents
in the care, custody, and management of their child does not evaporate
simply because they have not been model parents." Santosky,
455 U.S. at 753.
The right of family integrity is not absolute of course, nor are its
dimensions sharply defined. Courts have emphasized "the
amorphous nature of a liberty interest in familial relationships." Frazier
v. Bailey, 957 F.2d at 931 (social workers entitled to qualified
immunity where plaintiff failed to show that their actions in responding
to allegations of sexual abuse violated right of family integrity;
"the dimensions of this right have yet to be clearly
established"); see Anderson v. Creighton, 483 U.S. 635, 640
(1987) ("The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing violates
However, not every interference with the right of family integrity is
insulated from legal challenge merely because that right is amorphous
and its outer dimensions have yet to be clearly established.
Particular aspects of the broad right are clearly established. The
state, for example, must prove by clear and convincing evidence that a
parent is unfit before terminating parental rights. Santosky, 455
U.S. at 769. Moreover, parents are always constitutionally
entitled to be free of the state's arbitrary interference in familial
relationships. This is but an instance of a general principle of
substantive due process under the Fourteenth Amendment. See, e.g.,
Washington v. Harper, 494 U.S. 210, 221-22 (1990) (prison inmate
with mental illness has liberty interest under due process clause in
being free from arbitrary administration of antipsychotic drugs against
his will); Regents of University of Michigan v. Ewing, 474 U.S.
214, 225(1985) (university did not violate substantive due process right
of student who was dismissed from academic program where its actions
were not arbitrary and record demonstrated that "the faculty's
decision was made conscientiously and with careful deliberation, based
on an evaluation of the entirety of [the student's] academic
career"); Youngberg v. Romeo, 457 U.S. 307, 321(1982) (in
reviewing challenge by involuntarily committed mentally retarded persons
to their conditions of confinement, substantive due process
"requires that the courts make certain that professional judgment
in fact was exercised"); Parham v. J.R., 442 U.S. 584,
606-615 (1979) (state's procedure for institutionalizing children for
mental health care upheld where decision represents independent judgment
of what child requires and is not arbitrary); Schware v. Board of Bar
Examiners, 353 U.S. 232, 239 (1957) (under Fourteenth Amendment
"officers of a State cannot exclude an applicant [to the bar] when
there is no basis for their finding that he fails to meet [permissible]
standards"). Under these precedents and principles, a state
official's deprivation of a parent's right in the custody of his or her
children, premised on fabricated or wholly unsubstantiated grounds,
violates a clearly established constitutional right.
Russell and Adams rely heavily on the Second Circuit's decision in van
Emrik v. Chemung County Dept. of Social Services. That case involved
a suit against child protective services caseworkers who had caused a
suspected child abuse victim to be temporarily removed from her parents'
custody. 911 F.2d at 865. The court's discussion of the immunity defense
Though a decision to remove a child from parental custody
implicates the constitutional rights of the parents, it obliges
protective services caseworkers to choose between difficult
alternatives in the context of suspected child abuse. If they
err in interrupting parental custody, they may be accused of
infringing the parents' constitutional rights. If they err in
not removing the child, they risk injury to the child and may be
accused of infringing the child's rights. It is precisely the function
of qualified immunity to protect state officials in choosing between
such alternatives, provided that there is an objectively reasonable
basis for their decision, whichever way they make it. Such a
basis existed in this case. The defendants were confronted with
an infant who had suffered a broken leg, characterized by an attending
physician as "very suspicious" of child abuse. Quick
inquiry of the people possibly responsible, the parents and the
baby-sitter, failed to discover how the injury was sustained.
The defendants consulted with superiors, obtained a court order, and
executed it only after the parents refused to permit a temporary
Interruption of their custody. The issue is not whether it was
absolutely essential to remove the child or whether a more sensitive
course might have been to leave the child hospitalized pending further
investigation. The issue is whether it was objectively
reasonable for the defendants to make the decision they made, and no
rational jury could find that it was not. Id. at 866 (footnote
omitted) (emphasis added).
On the undisputed facts of van Emrik, it was objectively
reasonable for the state social workers to believe that their
interference in family integrity was within constitutional bounds.
See also Cecere v. City of New York, 967 F.2d 829 (child welfare
supervisor entitled to qualified immunity where interference with
parent's custody of child was supported by objectively reasonable belief
that emergency existed). In the present case, by contrast, the
relevant facts are disputed: the evidence submitted by the plaintiffs,
if believed, tends to show no objectively reasonable basis for the
decisions to substantiate and publish the charge of abuse against
Plaintiffs have submitted evidence that Adams conducted an
extraordinarily shoddy and unprofessional investigation of the report of
child sexual abuse received from Wiegand and Balsam, that the record
before him did not reasonably support the finding that Wilkinson had
abused his sons, that Russell knew or should have known that the abuse
finding was not reasonably supported, that both Adams and Russell
ignored and concealed exculpatory evidence, and that both Adams and
Russell substantiated and reported to others their finding (even after
the substantiation was withdrawn by stipulation), knowing that the
probable result would include the criminal prosecution of Wilkinson and
his loss of custody over the children. Taking this evidence as
true and drawing all justifiable inferences in favor of the plaintiffs,
as required for summary judgment purposes, see Anderson v. Liberty
Lobby Inc., 477 U.S. at 255, the evidence is sufficient to prove it
is more likely than not that Russell and Adams violated the clearly
established constitutional rights of the plaintiffs to be free of the
state's arbitrary interference in their familial relationships, and
further that it would not be objectively reasonable for the defendants
to believe their conduct was within constitutional bounds.
Accordingly, on this record, Russell and Adams are not entitled to
summary judgment on the federal counts.
b. State Law Qualified Immunity
Resolution of the claim that Russell and Adams are entitled to
summary judgment on the state law counts on qualified immunity grounds
follows rather easily from the above discussion. Vermont law
affords immunity from civil liability to state officials and employees:
the state's highest executive officers receive absolute immunity when
they are acting within their authority; lower-level state employees
(like Adams and Russell) are entitled to qualified immunity when they
are "'(1) acting during their employment and acting, or reasonably
believing they are acting, within the scope of their authority; (2)
acting in good faith; and (3) performing discretionary, as opposed to
ministerial acts."' LaShay v. Dept. of Social and Rehabilitation
Services, 160 Vt. 60, 65 (1993) [quoting Levinsky v. Diamond,
151 Vt. 178, 185 (1989)].2
"Good faith," the second element of the defense, is
measured by the "objective test" expressly adopted from
federal law as set forth in Harlow v. Fitzgerald, 457 U.S. 800
(1982). Levinsky v. Diamond, 151 Vt. 178, 190 (1989). Thus,
as under federal qualified immunity,
[g]ood faith exists where an official's acts did not violate
clearly established rights of which the official reasonably should
have known. This good faith inquiry does not ask whether
plaintiffs rights were violated, but rather whether the official
reasonably should have known that what she was doing violated
Murray v. White, 155 Vt. 621, 630 (1991) (footnote and
citation omitted). For purposes of state law qualified immunity,
however, the "clearly established rights" need not be federal
constitutional or statutory rights, as required in the application of
the federal qualified immunity defense; to overcome the state law
defense it is sufficient to show that the state employee's acts violated
clearly established state law of which the employee reasonably should
have known. Id. at 630 n.4. State law, of course, includes
the common law of negligence. "Qualified immunity from tort
liability will not be made to depend upon whether the tort has been
From the discussion in section (a) of this Opinion above, it follows a
fortiori that there are material facts in dispute precluding summary
judgment on qualified immunity grounds as to the plaintiffs' state tort
law claims. Plaintiffs' evidence tends to show that the conduct of
Russell and Adams was grossly negligent under state law and that it was
not objectively reasonable for Russell and Adams to believe
otherwise. See LaShay, 160 Vt. at 6667 (SRS supervisor not
entitled to summary judgment on qualified immunity grounds where
evidence showed he neither reported nor investigated allegations that
plaintiff's foster parent had previously requested sex with a minor).
Russell and Adams rely principally on Murray v. White, a
decision of the Vermont Supreme Court holding that an SRS caseworker was
entitled to summary judgment on qualified immunity grounds. 155 Vt. at
629. The case only underscores, however, why summary judgment is
not appropriate in the present context.
The plaintiff in Murray was accused of molesting two
neighborhood girls, ages seven and ten. Id. at 623. The
defendant SRS caseworker interviewed the girls and their parents and
prepared them for testifying against the plaintiff before the Parole
Board. The Board later found insufficient evidence to support the
charge. Id. at 624. In his suit, the plaintiff alleged that
the caseworker's investigation was one-sided and insufficiently
thorough, and that she had manipulated the interviews with the children
in a biased and misleading way. Id. The trial court denied
the caseworker's motion for summary judgment as to the plaintiff's state
law claims. Id. at 624-25.
The Supreme Court reversed, holding that the plaintiff "failed
to show that defendant should reasonably have known that her acts
violated plaintiff's rights." Id. at 630. In
accordance with statutory requirements, the caseworker had immediately
undertaken an investigation upon receiving the report of abuse, and the
manner and extent of her investigation was consistent with the statute
(33 V.S.A. § 4915) and the SRS policy manual. Id. at
631-32. The Court also noted it was "undisputed that both of
the alleged victims in their statements indicated that they had been
sexually molested by plaintiff." Id. at 632. Under the
[d]efendant should not have reasonably known that she was obligated
to investigate any further than she did. In addition, defendant
should not have reasonably known that the manner of her investigation
violated plaintiff's rights. Id.
These are essential points, which highlight where Murray
diverges from the present case. Here, the powerful evidence of
maternal coaching and attempts by B to recant the allegations (evidence
apparently absent in Murray) make it at least a matter of dispute
for resolution by a factfinder whether Adams should reasonably have
known that he was obligated to investigate further than he did prior to
substantiating the charge against Wilkinson. Similarly, the
technical shortcomings evident in the transcribed interview with B
create a factual issue whether Adams should reasonably have known that
his investigation was so professionally deficient as to violate the
plaintiffs' state law rights. These matters simply cannot be
decided by summary judgment.
Russell's and Adams's motion for summary judgment is accordingly
Russell's and Adams's Motion for Summary Judgment with Respect to
Intentional Infliction of Emotional Distress
Russell and Adams brought this motion after receiving clarification
as to Count VIII of the original complaint. They seek dismissal on
the grounds that they are entitled to qualified immunity and that
plaintiffs have failed to state a cause of action for intentional
infliction of emotional distress. As to the former, summary
judgment on the basis of qualified immunity is unwarranted on this
record for the reasons set forth in the preceding section of this
Opinion. As to the latter, plaintiffs have adequately alleged and
supported the elements of this tort as explained above in this Opinion.
The motion is accordingly DENIED.
Balsam's Motion for Sanctions
Balsam filed a motion for sanctions against B because he failed to
appear for a scheduled deposition on July 14, 1994. In light of
Wilkinson's representations that Wiegand has disappeared with B, the
motion is DENIED.
Russell's and Adams's Objections to Plaintiffs' Interrogatories
and Requests to Produce
Objections were raised to plaintiffs' discovery requests served on or
about July k, 1994, on the ground that discovery should be stayed until
the threshold immunity issue is resolved. Subsequently, on August
22, 1994, this court granted an application to enlarge the discovery
period, ordering that the discovery schedule need not be filed pending
disposition of the summary judgment motions. The objections are
moot in light of the August 22, 1994 order.
As all pending motions are resolved herein, and upon the filing of
responsive pleadings by SRS and Jeffords, the parties are directed to
file a joint discovery schedule in accordance with Local Rule No.4.
The following orders are hereby entered:
- Defendant Balsam's motion for summary judgment is DENIED.
- Defendants Russell's and Adams's motion for summary judgment is
- Defendants Russell's and Adams's second motion for summary
judgment is DENIED.
- Defendant's motion for sanctions is DENIED.
Kiefer, Esq. represented Mr. Wilkinson in the Connecticut
divorce proceedings. He has contributed articles to Issues
in Child Abuse Accusations in the past. His office is
in Hartford, Connecticut.
Harold Stevens, Esq. represented Mr. Wilkinson in the Vermont
Criminal Proceedings and the Protective Services matters. He
brought this action for civil damages. Attorney Stevens
maintains an office in Stowe, Vermont. [Back]
* Judge's Opinion and
Order Wilkinson, et al. vs. Balsam, et al 885 Fed.Supp.
651, D.Vt. 1995. [Back]
report' means that the commissioner [of SRS] or the
commissioner's designee has determined after investigation that
a report is based upon accurate and reliable information that
would lead a reasonable person to believe that the child has
been abused or neglected." 33 V.S.A. § 3412(10). [Back]
2 It may be noted that
actions challenging official misconduct in Vermont typically
must be brought against the state itself, pursuant to 12 V.S.A.
§ 5602 (a), which provides:
When the act or omission of an employee of the state acting
within the scope of employment is believed to have caused
damage to property, injury to persons, or death, the exclusive
tight of action shall lie against the state of Vermont; and no
such action may be maintained against the employee or the
estate of the employee.
Section 5602(b), however, exempts "gross negligence or
willful misconduct" from the above exclusivity rule.
Plaintiffs allege, at least in part, that Adams and Russell were
grossly negligent and willful, thus avoiding dismissal under §