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Bird v. State of Hawai'i

United States Court of Appeals, Ninth Circuit

August 23, 2019

Courtney Bird, Plaintiff-Appellant,
State of Hawai'i; Department of Human Services; DHS, Social Services Division, Child Welfare Services Branch; Pankaj Bhanot, Department of Human Services Director; Jeffrey R. Woodland; Does, Defendants-Appellees.

          Argued and Submitted February 12, 2019

          Submission Vacated February 26, 2019

          Resubmitted August 23, 2019 University of Hawai'i Manoa

          Appeal from the United States District Court for the District of Hawai'i D.C. No. 1:15-cv-00304-DKW-KJM Derrick Kahala Watson, District Judge, Presiding.

          Margery S. Bronster (argued), Robert M. Hatch, and Kelly A. Higa, Bronster Fujichaku Robbins, Honolulu, Hawai'i; John Y. U. Choi, Honolulu, Hawai'i; for Plaintiff-Appellant.

          Ryan M. Akamine (argued) and Caron M. Inagaki, Deputy Attorneys General; Department of the Attorney General, Honolulu, Hawai'i; for Defendants-Appellees.

          Before: Richard C. Tallman, Jay S. Bybee, and N. Randy Smith, Circuit Judges.


         Civil Rights

         The panel affirmed the district court's dismissal, on statute of limitations grounds, of a complaint brought pursuant to 42 U.S.C. § 1983 alleging that the Hawai'i Department of Human Services violated plaintiff's right to due process when it listed her, without notice, on the State's Child Protective Services Central Registry.

         Plaintiff and her then-husband were placed on the State's Registry after their 7-week-old baby died of cardiac arrest in 2007. Bird's husband later confessed to killing the infant and a criminal investigation concluded that plaintiff was not a suspect. The Department of Health Services did not, however, remove plaintiff's name from the Registry, nor did it notify her that her name was listed. In 2013, plaintiff discovered, during a background check, that her name was on the Registry. Plaintiff's attorney communicated with the Department and threatened to sue when plaintiff's name was not removed, but did not file suit until more than two years later.

         Applying Hawai'i's two-year statute of limitations, the panel held that plaintiff's complaint was not subject to any exceptions from the normal discovery rule of accrual. The panel held that plaintiff had knowledge of the injury giving rise to her claim by May 2013 when she threatened to sue the Department if she was not removed from the Registry. Accordingly, her suit, filed in July 2015, was time-barred.

         The panel rejected plaintiff's assertion that a claim seeking injunctive relief to invalidate an ongoing unconstitutional statutory and regulatory scheme does not accrue until the statute is repealed. The panel held that the traditional interests of protecting defendants and facilitating the administration of claims was applicable to a due process claim and justified enforcing a limitations period through the discovery rule of accrual. The panel further rejected plaintiff's claim that her complaint alleged a continuing violation. The panel held that because the violation plaintiff alleged was the placement of her name on the Registry without constitutionally required due process, she had brought only an individualized claim. As such, the systematic branch of the continuing violations doctrine was inapplicable, and the discovery rule of accrual applied.

         Concurring in the per curiam opinion, Judge Bybee stated that plaintiff had assuredly stated a plausible due process claim and that the Department of Health Services should not interpret the panel's decision, which was based on statute of limitations grounds, as in any way condoning the blatantly insufficient procedures by which the Department maintains plaintiff's name in its Central Child Abuse Registry.


          PER CURIAM.

         On March 28, 2007, plaintiff-appellant Courtney Bird returned home from a dentist appointment to find her then-husband administering CPR to their seven-week-old baby, who later died at the hospital of cardiac arrest. As a result of the infant's death, the Hawai'i Department of Human Services ("DHS") listed both Bird and her husband on the state's Central Child Abuse Registry ("CCAR"). Bird's husband later confessed to killing their infant baby and the criminal investigation concluded that Bird was not a suspect. DHS, however, did not remove Bird's name from the CCAR. Throughout this time, DHS never told Bird that she was listed on the registry.

         Bird did not learn that she had been listed on the CCAR until June 2012-more than five years later-when the report turned up on a background check. When a request for a hearing and various communications with DHS failed to result in Bird's removal from the CCAR, Bird's attorney threatened DHS in May 2013 with suit in federal court. Bird did not file suit, however, until July 20, 2015-more than two years after her extensive communications with DHS and previous threat to sue. The district court determined that Bird's claims brought under 42 U.S.C. § 1983 were untimely and granted summary judgment in favor of the State.

         Because Bird's complaint is not subject to any exception from the normal discovery rule of accrual, we agree that Bird's claim accrued no later than May 2013, when Bird threatened to sue DHS if she was not removed from the CCAR. We affirm.


         A. Statutory Background

         Like most states, Hawai'i law requires DHS to maintain a central registry for reports of child abuse or neglect. See Haw. Rev. Stat. § 350-2(d) ("The department shall maintain a central registry of reported child abuse or neglect cases . . . ."). "Central registry reports are typically used to aid agencies in the investigation, treatment, and prevention of child abuse cases . . . . Central registry records also are used to screen persons who will be entrusted with the care of children," such as "individuals [who] apply[] to be foster or adoptive parents or child or youth care providers." Establishment and Maintenance of Central Registrations for Child Abuse or Neglect Reports at 2, Child Welfare Information Gateway: U.S. Dep't of Health & Human Serv., Children's Bureau (2018).

         At times relevant to this suit, § 350-2 further provided that reports maintained in the central registry "shall [be] promptly expunge[d] . . . if: (1) The department has found the reports to be unsubstantiated; or (2) The petition arising from the report has been dismissed by order of the family court after an adjudicatory hearing on the merits." Act of May 18, 2017, sec. 3, § 350-2(d), 2017 Haw. Sess. Laws 60, 61-62.[1]The statute stated that "a report is unsubstantiated only when the department has found the allegations to be frivolous or to have been made in bad faith." Id. The statute provided, and continues to provide, however, no procedures by which DHS should investigate, record, or expunge reports in the CCAR. Such procedures are left to "the department's rules." Haw. Rev. Stat. § 350-2(a).

         The Hawai'i Administrative Rules require DHS to record accused individuals in the CCAR whenever it receives a report of serious child abuse. Haw. Admin. R. § 17-1610-18. DHS is simultaneously required to commence an investigation. Id. At the conclusion of its investigation, DHS will declare the report "confirmed," "not confirmed," or "unsubstantiated." Id. § 17-1610-19(a)(1)-(3). Only a report declared "unsubstantiated" will be expunged from the CCAR. Id. § 17-1610-19(a)(1). In cases where the report is declared "confirmed" or "not confirmed," the individuals subject to the allegations remain on the CCAR. See id. § 17-1610-19(a)(2), (4).[2] The regulations specify that DHS "shall comply with requests from other states to check its central registry for the purpose of conducting background checks in foster or adoptive placement cases." Id. § 17-1610-19(a)(5).

         Once DHS has completed its investigation and determined that an accused individual should remain on the CCAR, state regulations require DHS to give written notice to the "identified perpetrator or maltreater." Id. § 17-1610-11(c). Anyone "dissatisfied with the disposition of the department's assessment or action taken by the department" has two routes for challenging his or her inclusion in the CCAR. Id. § 17-1610-12(b). First, if DHS has not yet commenced any proceeding against the listed individual in family court, he or she may file an administrative appeal. Id. At the appeal, however, the listed individual remains subject to the requirements for expungement laid out in Hawai'i Revised Statutes § 350-2, which at all relevant times in this case required the listed individual to prove that the report was "unsubstantiated," in other words, that it was "frivolous or . . . made in bad faith." Act of May 18, 2017, sec. 3, § 350-2(d), 2017 Haw. Sess. Laws 60, 61-62. If the listed individual was unable to meet this exacting standard, he or she remained on the registry.

         Alternatively, if DHS has petitioned the family court for custody of the listed individual's child(ren), the listed individual is not permitted to seek administrative review. Haw. Admin. R. § 17-1610-12(c). Instead, the listed individual's exclusive means by which to expunge his or her listing in the CCAR is to prevail at an adjudicatory hearing before the family court. Haw. Rev. Stat. § 350-2(d)(2). At the adjudicatory hearing, the family court will determine "[w]hether the child's physical or psychological health or welfare has been harmed or is subject to threatened harm by the acts or omissions of the [listed individual]." Haw. Rev. Stat. § 587A-28(d)(1). Significantly, if DHS returns custody of the child and settles the family court proceeding before it reaches the adjudicatory phase, the statutory scheme leaves listed individuals who are wrongfully listed in the CCAR with no recourse for expunging their names. See id.

         B. Factual Background

         In 2003, Bird married Frank Fontana and two years later gave birth to a daughter, T.F. Fontana, who worked for the Navy, was subsequently transferred to Hawai'i. Bird and their ...

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