Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 13-1627

LOUIS A. PICCONE, ET AL.,

Plaintiffs, Appellants,

v.

ANGELO MCCLAIN, in his official capacity, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Lynch, Chief Judge,

Howard and Kayatta, Circuit Judges.

Louis A. Piccone on brief pro se.

Kerry D. Strayer, Assistant Attorney General and Martha

Coakley, Attorney General of Massachusetts, on brief for appellees,

Angelo McClain, Lynn Reber, Joan Mazzeo, Heather Nietsche, Irene

Woods, Lance LaPointe and Janet Rice.

Nancy Frankel Pelletier, David S. Lawless and Robinson

Donovan, P.C. on brief for appellees, John W. Bartels, Jr., John M.

Marley and Town of Dalton. 

Austin M. Joyce and Reardon, Joyce & Akerson, P.C., on brief

for appellee, Richard Smith on brief or appellees.

October 20, 2014
Per Curiam. Louis and Elena Piccone filed a civil rights

lawsuit against various state and local officials. The suit

claimed a number of constitutional and state tort violations

arising out of a child abuse investigation by the Massachusetts

Department of Children & Families ("DCF") and a subsequent criminal

action brought against the Piccones for parental kidnapping. The

district court dismissed the claims against some of the defendants

under Federal Rule of Civil Procedure 12(b)(6). Later, the

remaining claims brought by Mrs. Piccone were dismissed under Rules

41(b) and 37(b), and the remaining claims brought by Mr. Piccone

were dismissed under Rule 37(b).

The district court's Rule 12(b)(6) dismissal of claims

against the various DCF officials and employees (collectively "DCF

defendants") is reviewed de novo. MacDonald v. Town of Eastham,

745 F.3d 8, 11 (1st Cir. 2014). We are not bound by the lower

court's rationale, but may affirm on any ground supported by the

record. See Gonzalez-Cancel v. Partido Nuevo Progresista, 696 F.3d

115, 118-19 (1st Cir. 2012) (citation omitted). 

While we agree with the district court that defendants

Heather Nietsche, Irene Woods, Lance LaPointe, and Janet Rice are

entitled to qualified immunity as to the Piccones' § 1983 claims,

our reasoning differs somewhat. The § 1983 claim against these

defendants, as best as we have been able to discern from the

complaint and briefs, is that they violated the Piccones'

constitutionally protected interest in the care, custody, and
control of their children in several respects. First, it is

contended they involuntarily removed Mr. Piccone from the family

home while they investigated allegations that he abused one of the

children. Further, the juvenile court care and protection order

transferring custody to DCF allegedly prevented Mrs. Piccone from

returning to Massachusetts with the children for fear of losing

physical custody of them; it also separated Mr. Piccone from his

family for many months until the juvenile court proceedings ended

and he was financially able to move his family to Canada from

Russia. Finally, the DCF defendants instituted ex parte juvenile

court proceedings by way of an allegedly misleading custody

petition. 

As to Mr. Piccone's § 1983 claim based on his departure

from the family home, we do not decide whether the district court

correctly held that he experienced no interruption in physical

custody when he left home in response to the social worker's

insistence that he permit an unrecorded interview of his child or

agree to leave home for the weekend. Assuming that his decision to

leave home was not voluntary, see Croft v. Westmoreland Cnty.

Children and Youth Services, 103 F.3d 1123, 1125 n. 1 (3d Cir.

1997) ("explicitly reject[ing]" government's characterization of

father's decision to leave home as voluntary when CYS threatened to

take temporary physical custody of daughter if he did not leave

home during abuse investigation), the facts alleged in the

complaint still do not make out a plausible § 1983 claim, for
reasons that follow. 

We have held that the state may separate a child from his

parent, as an interim measure, based on reasonable suspicion that

child abuse has occurred or, alternatively, that a threat of abuse

is imminent. See Hatch v. Dep't for Children, Youth and Their

Families, 274 F.3d 12, 20-22 (1st Cir. 2001). Reasonable suspicion

depends on the content of the information possessed by the state

actors and its degree of reliability, considered in the totality of

the circumstances. Id. at 25 (quoting Alabama v. White, 496 U.S.

325, 330 (1990)); see also United States v. Cortez, 449 U.S. 411,

417-18 (1981) (reasonable suspicion focuses on what reasonable

state actor in same or similar circumstances would have thought). 

Here, it may reasonably be inferred from the facts

alleged in the complaint that the DCF defendants had reasonable

suspicion to separate father from children temporarily while they

investigated the abuse allegations. DCF was acting on the basis of

a report from a day care center employee that was seemingly

credible, the worker having reported the allegations both orally

and in writing, and DCF reasonably treated the situation as an

emergency. When the DCF social workers went to the Piccones' home,

they were able to view the child, but they were not permitted to

interview any of the children unless DCF agreed to videotape the

interviews. No Massachusetts law, regulation, or policy appears to

mandate videotaping interviews of children in abuse investigations,

and Massachusetts courts have not required that recordings be made.
See Commonwealth v. Howard, 446 Mass. 563, 565 n. 1 (2006);

Commonwealth v. Upton U., 59 Mass.App.Ct. 252, 255, review denied,

440 Mass. 1106 (2003). Simply viewing the child neither proved nor

disproved the abuse allegations. The social workers and their

managers needed time to sort everything out, but they could not

leave the child in the home where he could possibly be in danger.

Under these circumstances, one may reasonably conclude that the

child's interest in being in a safe and neutral environment

outweighed Mr. Piccone's private interest in the care, custody, and

control of his children. See Hatch, 274 F.3d at 21.

As to the claims based on the juvenile court custody

order, assuming, once again without deciding, that a parent's loss

of legal custody while maintaining physical custody can give rise

to a § 1983 claim, they were properly dismissed. DCF filed its ex

parte custody petition only after its efforts to interview the

children were thwarted by the Piccones' refusal to allow an

interview unless it was videorecorded, followed by Mrs. Piccone's

departure from the Commonwealth with the children. These

circumstances gave DCF sufficient reasonable suspicion of child

abuse or neglect to warrant protecting the children by instituting

care and custody proceedings and obtaining an order giving them

custody during the pendency of the proceedings while DCF conducted

its investigation. See United States v. Wright, 582 F.3d 199, 213

(1st Cir. 2009) (reasonable suspicion can arise from combination

and progression of facts), cert. denied, 559 U.S. 1021 (2010); see
also Hatch, 274 F.3d at 22. 

Finally, to the extent the Piccones may be alleging that

the juvenile court affidavit submitted by Nietsche and co-signed by

Rice contained misrepresentations and omissions, these defendants,

as witnesses at judicial proceedings, would be entitled to either

absolute or qualified immunity from § 1983 liability as to this

claim. See Watterson v. Page, 987 F.2d 1, 9 & n.8 (1st Cir. 1993).

For these reasons, the judgment dismissing the Piccones'

§ 1983 claims against defendants Nietsche, Woods, LaPointe, and

Rice was proper. As to the dismissal of the other claims against

the remaining defendants named in the complaint, we affirm,

essentially for the reasons stated by the district court in its

Memoranda and Orders dated July 2, 2010; March 22, 2013; and April

23, 2013.

Affirmed.