F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
September 12, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JACINTO ARREDONDO and
M ARISELA OLIVAS,
Plaintiffs-Appellants,
v.
NAO M I LOCKLEAR, REBECCA No. 05-2237
BERR ERA-GARC IA, M IKE PITTS,
and RUD Y A RR EY ,
Defendants-Appellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D.C. NO . CIV-03-156 KBM /LC S)
M ichael Newell of Heidel Samberson, Newell, Cox & M cM ahon, Lovington, New
M exico, for Plaintiffs-Appellants.
Sean Olivas (Lynn E. M ostoller with him on the brief) of Keleher and M cLeod,
PA, Albuquerque, New M exico, for D efendant-Appellee Naomi Locklear.
Richard E. Olson, Joel M . Carson, and Derek L. Brooks of Hinkle, Hensley,
Shanor & M artin, LLP, Roswell, New M exico, and Barney James Reeves of
Reeves & Reeves, PA , Las Cruces, NM , for Defendants-Appellees Rebecca
Berrera-Garcia, M ike Pitts, and Rudy Arrey.
Before H E N RY, L UC ER O, and M cCO NNELL, Circuit Judges.
M cCO NNELL, Circuit Judge.
Few decisions by state officials are as wrenching as the decision to remove
a child from a home based on suspicion of parental abuse. The competing
constitutional interests are so powerful that courts have struggled to find adequate
superlatives. On one hand, the state’s interest in shielding children from abuse is
“transcendent,” M aryland v. Craig, 497 U.S. 836, 855 (1990) (internal quotation
marks omitted), “compelling,” Globe Newspaper Co. v. Super. Ct. for Norfolk
County, 457 U.S. 596, 607 (1984), “of the highest order,” Palmore v. Sidoti, 466
U.S. 429, 433 (1984),“of surpassing importance,” New York v. Ferber, 458 U.S.
747, 757 (1982). On the other hand, parents’ interest in raising their children free
from government interference is “essential,” M eyer v. Nebraska, 262 U.S. 390,
399 (1923), “cardinal,” Prince v. M assachusetts, 321 U.S. 158, 166 (1944), “an
enduring American tradition,” Wisconsin v. Yoder, 406 U.S. 205, 232
(1972),“perhaps the oldest of the fundamental liberty interests recognized by [the
Supreme] Court,” Troxel v. G ranville, 530 U.S. 57, 65 (2000).
The state’s failure to act on reasonable suspicion of abuse can have
unthinkable consequences for the children: physical injury, emotional scarring, a
lifetime of recovery, disease, dysfunction, or death. But false positives can carry
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grave and irreversible consequences as w ell: anguish for the family, public
humiliation, developmental setbacks for the children, distrust, or divorce.
In this case, we revisit the constitutional standard for determining whether
state officials may remove children from a home, consistent with procedural due
process, without affording the parents advance notice or a hearing. Based on our
recent decision in Gomes v. Wood, 451 F.3d 1122 (10th Cir. 2006), we hold that
police and social workers in this case had “‘reasonable and articulable suspicion
that the child[ren] ha[d] been abused or [were] in imminent peril of abuse.’” Id. at
1129 (quoting Hatch v. Dep’t for Children, Youth & Their Families, 274 F.3d 12,
20 (1st Cir. 2001)). W e therefore affirm the decision of the district court granting
summary judgment to the Defendants.
I. Factual and Procedural Background
The Plaintiffs, Jacinto Arredondo and M arisela Olivas, have two children,
Ashley and Jasmine. On February 14, 2001, M s. Olivas brought Jasmine, then
eleven months old, to the emergency room at Artesia General Hospital in Artesia,
New M exico. M s. Olivas reported that Jasmine was having difficulty crawling,
and X-rays revealed a single fracture in her left arm. W hen asked how the injury
occurred, M s. Olivas offered two different explanations: that Jasmine had been
“trying to crawl and the arm buckled,” App. 27, and that Jasmine “had a fall from
the bed the day before,” App. 41. The physician assistant who first saw Jasmine,
Gary Boone, found her injury “inconsistent with this explanation” because “[t]he
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fracture [was] too high up” and “[i]f she had fallen and tried to catch herself then
she w ould have more than likely broken both bones in her arm.” A pp. 42. Dr.
W illiam B aggs, an orthopedic surgeon who treated Jasmine that day, also found
M s. Olivas’s story “slightly confusing” and a “red flag.” Id. at 27–28. A
complete “babygram” (a set of X-rays from head to toe) revealed no other
fractures, however, and neither P.A. Boone nor Dr. Baggs made a report to the
New M exico Children, Youth and Families Department (CYFD).
Four days later, on the night of February 18, 2001, M s. Olivas again
brought Jasmine to the emergency room, this time because Jasmine could not put
weight on her left leg. Dr. Baggs also examined Jasmine on the morning of
February 19. An X-ray revealed “some fuzziness” and a “periosteal reaction
consistent with a healing injury.” Id. at 28. M s. Olivas attributed the injury to
the same fall from the bed. (“M om said this occurred at the same time.”) Id.
Based on M s. Olivas’s “conflicting stories” and the fact that Jasmine had suffered
two injuries requiring emergency care within four days, nurse-practitioner Joann
Vandergriff and Dr. Baggs each made referrals to CYFD on February 19. Id. at
23, 26. The CYFD intake report for M s. Vandergriff’s referral states that she
“suspect[ed] possible PA [physical abuse] and/or PN [physical neglect] of child.”
Id. at 118. Dr. Baggs’s notes reflect the same concerns: “two injuries in this 11
month old raises the question of child abuse.” Id. at 28. His report also “stat[ed]
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that the left femur was broken,” id. at 144, although the hospital’s X-rays showed
no fracture, id. at 289.
CYFD coded the case “P-1,” a non-emergency designation requiring action
within twenty-four hours, and two social workers were assigned to the
investigation. Defendant Naomi Locklear was given overall responsibility for
Jasmine’s case, but due to her absence on February 19, Defendant Rebecca
Barrera-Garcia was charged with initiating action. Shortly before the twenty-four
hour deadline expired on February 20, M s. Barrera-Garcia contacted another
Defendant, Detective Rudy Arrey of the Artesia Police Department, for
assistance.
Together they visited the hospital. Nurse Vandergriff was not available,
but they spoke w ith physician assistant Boone, who had seen Jasmine on February
14. He recounted his reasons for suspicion regarding the fractured arm, adding
that “[i]t look[ed] as if she were grabbed and pulled,” id. at 42, using a “torquing
motion,” id. at 52. He also reiterated that, contrary to Dr. Baggs’s report, X-rays
taken at the hospital had detected “no injury . . . around the left hip or upper
thigh.” Id. at 144. Next they proceeded to the Plaintiffs’ home. At first, M s.
Olivas refused to speak with Detective Arrey, citing concern about her probation
on a fraud conviction for “playing with counterfeit money,” but after speaking
with her parole officer she allowed them inside. Id. at 42. M s. Barrera-Garcia
and Detective Arrey examined the bed from which Jasmine reportedly had fallen.
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It was only “2 ½ to 3 feet off the floor,” and the floor beneath was covered in
“thick maroon carpet.” Id. at 144.
Detective Arrey decided to remove Jasmine from her parents’ custody
immediately. He based his decision on the two injuries, M s. Olivas’s conflicting
explanations, and the implausibility of M s. Olivas’s story that a short fall onto a
carpeted floor caused both a broken arm and a broken leg. Understandably, M s.
Olivas became “angry and upset.” Id. She was “a good mother,” she said, and if
she was a child abuser, “why didn’t Jasmine have bruise[s] all over her”? Id. She
begged them not to take Jasmine away, and told him “they were falsely accusing
me of something that was not true.” Id. at 152. He told her to “calm down.” Id.
at 144.
Detective Arrey decided to remove A shley, who was then five years old, at
the same time. He had learned, at a training class sponsored by CYFD, that “if
one of the children is in harm, then when it’s taken out of the home, then the
abuse goes to the other child or children.” Id. at 139. In his experience, it was
“common practice that all the children have to be taken” when there is a risk that
any child in a home has suffered abuse. Id. M s. Barrera-Garcia disagreed. Based
on her own conversation with Ashley, during which Ashley showed no signs of
injury and “reported no abuse,” she concluded that Ashley “was fine.” Id. at 277.
She therefore refused to take custody of Ashley. Detective Array was “frustrated
and angry” with that decision because, in his view, both children were “at risk of
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being abused by their caretakers.” Id. at 217. That day, CYFD removed only
Jasmine from the Plaintiffs’ home, giving custody to M s. Olivas’s sister, Yolanda
Dueñez.
The next morning, February 21, M s. Locklear returned to work and
expanded the investigation. She contacted Dr. Baggs, who described Jasmine’s
injury as “suspicious for a healing fracture” and “a red flag.” Id. at 216. She
then conducted a lengthy phone interview with M s. Olivas, who described the
events surrounding Jasmine’s fall from the bed. She also learned from Detective
Arrey that M r. A rredondo had a felony conviction for cocaine trafficking.
Around noon, M s. Locklear held a staff meeting, joined by M s. Barrera-Garcia,
their supervisor, and a CY FD attorney. They agreed that Jasmine faced “an
immediate risk of harm,” id. at 211, and decided to place her in foster care
immediately, out of concern that M s. Olivas’s sister would not do enough to
prevent the Plaintiffs from visiting and physically abusing Jasmine.
The staff also agreed to remove Ashley on a “targeted child” or “scapegoat”
theory. According to M s. Locklear, it is “very common” for abusive families to
“target[] one child” who “gets the brunt of the abuse.” Id. at 310. W hen the
targeted child is removed, leaving “no one else in the home for them to abuse,”
the abuse shifts to other children. Id. It was agreed at the staff meeting that
Jasmine was “the most needy, the most demanding” child in the Plaintiffs’ home,
and that if she were removed, “Ashley could . . . become the scapegoat.” Id. The
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staff also relied upon computer software called “structure [sic] decision making
(SD M ),” which, according to the Defendants, “objectively assessed and confirmed
M s. Locklear’s belief as to the level of risk faced by Jasmine and Ashley.”
Locklear Response Br. 9. Although M s. Barrera-Garcia continued to believe that
there was no “emergency situation,” App. 401, and that there was no reason “on
either the 20th or the 21st why a court order could not have been obtained,” id. at
345, she apparently did not voice her dissent at the meeting.
Early that afternoon, M s. Barrera-Garcia and a fourth Defendant,
Administrative Sergeant M ike Pitts, went to A shley’s school. They found M s.
Olivas there, and provided her with two documents: (1) a “Statement of
Reasonable Grounds,” informing her that Sergeant Pitts was taking Jasmine and
Ashley into custody because he had “reasonable grounds” to believe that they
were “suffering from an illness or injury as a result of alleged abuse or neglect . .
. and/or . . . [were] in danger from [their] surroundings,” id. at 402; and (2) a
“Notice to Parents of Physical Custody,” informing her that Jasmine and Ashley
had been taken into custody “as alleged neglected or abused . . . children” and
requiring CYFD to file a petition alleging neglect or abuse by February 23 or
release them, id. at 184. They took custody of Ashley and placed her in foster
care.
On February 23, a state district court issued an ex parte order finding
probable cause to believe that both Jasmine and Ashley were “abused or
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neglected” under N ew M exico law. Id. at 234. Six days later, on M arch 1, the
Plaintiffs and their attorney attended a custody hearing before the same judge.
Again the court upheld CYFD ’s custody, finding probable cause to believe that
“the children will be subject to injury by others if not placed in the custody of the
Department.” Id. at 241.
On M arch 6, Dr. Baggs contacted CYFD and reported that he had
misdiagnosed Jasmine’s leg injury. Rather than a fracture, she had suffered a
septic hip, a serious bacterial infection that requires immediate surgery to avoid
permanent damage to the hip joint. He told CYFD that he feared malpractice
liability because Jasmine “might walk with a limp and have life-long
complications.” Id. at 230. He also recanted his earlier report to CYFD , making
clear that “he had no concerns regarding suspected child abuse or neglect.” Id.
Initially CYFD was unimpressed. Based on M s. Olivas’s unsatisfactory
explanation for the first injury, as well as other “concerns with M s. Olivas’
parenting skills,” M s. Locklear decided to retain custody of both children
indefinitely. Id. For reasons that are unclear, however, CYFD reversed course
tw o weeks later, and released both children to their parents’ custody on M arch 21.
M r. Arredondo and M s. Olivas filed suit under 42 U.S.C. § 1983, alleging
that the removal of their children without notice and a hearing violated their
procedural due process rights. On cross-motions for summary judgment, the
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Defendants argued not only that their actions were justified by “‘emergency
circumstances which pose an immediate threat to the safety of the child,’” Roska
ex rel. Roska v. Peterson, 328 F.3d 1230, 1245 (10th Cir. 2003) (quoting
Hollingsworth v. Hill, 110 F.3d 733, 739 (10th Cir. 1997)), but that they were
entitled to qualified immunity. The district court agreed on both counts, holding
that the Plaintiffs had failed to show any genuine issues of material fact as to the
existence of a constitutional violation, and that in any case the law was not
“clearly established” such that the Defendants had fair warning that their conduct
was unlawful. M em. Op. 38.
W hen a defendant raises the defense of qualified immunity, we must
consider two questions: “(1) whether the alleged conduct violated a constitutional
right, and if so, (2) whether the law was clearly established at the time of the
defendant’s actions.” Shrum v. City of Coweta, 449 F.3d 1132, 1138 (10th Cir.
2006) (quoting Saucier v. Katz, 533 U.S. 194, 121 (2001)). W e must first resolve
whether a constitutional violation occurred because, “‘in the course of
determining whether a constitutional right was violated on the premises alleged, a
court might find it necessary to set forth principles which will become the basis
for a holding that a right is clearly established.’” Harman v. Pollock, 446 F.3d
1069, 1077 (10th Cir. 2006) (quoting Saucier, 533 U.S. at 201). W e review the
district court’s grant of summary judgment on the basis of qualified immunity de
novo, and affirm only if the record reveals no genuine issue of material fact, such
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that the moving party is entitled to judgment as a matter of law. Johnson ex rel.
Estate of Cano v. Holmes, 455 F.3d 1133, 1142 (10th Cir. 2006).
II. Discussion
The Supreme Court has held that under the Fourteenth Amendment, parents
enjoy a protected liberty interest “in the care, custody, and control of their
children.” Troxel, 530 U.S. at 65. State officials therefore may neither
permanently terminate parental rights, Santosky v. Kramer, 455 U.S. 745, 753–54
(1982), nor temporarily remove children from a home, Roska, 328 F.3d at 1245,
without affording the parents due process of law.
Ordinarily, due process requires that the state provide parents w ith
“predeprivation notice and a hearing”— that is, notice and an opportunity to be
heard before state officials remove children from the home. Hollingsworth v.
Hill, 110 F.3d 733, 739 (10th Cir. 1997). Given the state’s powerful
countervailing interest in protecting children from abuse and neglect, however,
we have long recognized that “‘extraordinary circumstances’” may justify the
state in “‘postponing the hearing until after the event.’” Spielman v. Hildebrand,
873 F.2d 1377, 1385 (10th Cir. 1989) (quoting Smith v. Org. of Foster Families
for Equality and Reform, 431 U.S. 816, 848 (1977)). Faced with “emergency
circumstances w hich pose an immediate threat to the safety of a child,” the state
may “temporarily deprive a parent of custody without parental consent or a court
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order.” Hollingsworth, 110 F.3d at 739. For such a procedure to comport with
due process, of course, the state must provide a prompt postdeprivation hearing.
Following the order of operations set forth in Saucier, we first consider
whether there are genuine issues of material fact as to the existence of a
constitutional violation, and then consider whether the law was clearly established
at the time of the Defendants’ actions.
A. Constitutional Violation
In Gomes v. Wood, 451 F.3d 1122, 1129 (10th Cir. 2006), this Court
adopted a “reasonable suspicion” standard for determining whether emergency
circumstances justify the removal of a child from a home w ithout notice and a
hearing. Under that standard, state officials must have “‘evidence giving rise to a
reasonable and articulable suspicion that the child has been abused or is in
imminent peril of abuse.’” Id. (quoting Hatch v. Dep’t for Children, Youth &
Their Families, 274 F.3d 12, 20 (1st Cir. 2001)). Although we give some
consideration to “whether state officials might obtain judicial authorization of the
removal without additional risk to the child,” id. at 1130-31, we take care not to
make this factor the “‘single focus’ of the inquiry,” id. at 1130 (quoting Doe v.
Kearney, 329 F.3d 1286, 1295 (11th Cir. 2003)). Among the standards proposed
by various courts of appeals, we concluded, this standard best “balances the
interests of the parents, the child, and the state.” Id.
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Because Gomes is our only case decided under the reasonable suspicion
standard, a brief review of its facts is in order. In April 2000, Shauna Gomes
took her nine-month-old daughter Rebekah to a pediatrician for diagnosis of a
head injury, and told the doctor that Rebekah had fallen from the bed the previous
day. Id. at 1124. X-rays revealed a skull fracture, but the shape of the fracture
“suggested to [the doctor] that it had been caused by a blunt trauma.” Id. He told
M s. Gomes that he was required to make a report to the state D ivision of Child
and Family Services, but sent her home with a prescription for M otrin. Id. In his
report to the agency, he said that M s. Gomes’s explanation of the injury was
“suspicious” but “possible,” noting that the fracture was “consistent with a fall on
a flat object.” Id. He was also concerned that M s. Gomes had waited until the
next day to seek medical attention. Id. The intake worker said that “because the
matter did not appear to be an emergency,” an investigator would call back the
next day. Id. at 1125. No one called— in fact, no one took any action— until M s.
Gomes returned for a follow-up visit with Rebekah and asked the doctor whether
he had contacted Child and Family Services yet. Id. That day the doctor finally
spoke with a social worker about Rebekah’s injuries. Based on the seriousness of
the injury, the doctor’s suspicions about the explanation, and the delay in seeking
medical attention, state officials decided to conduct a home visit. Id. W hen a
social worker and police officer finally observed the bed and floor, two days later,
they found M s. Gomes’s explanation implausible and immediately removed
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Rebekah from her parents’ custody, without notice or a hearing. Id. at 1126.
After four months in state custody, the agency decided that Rebekah should be
returned to her family. Id.
Based on those facts, we held that the record supported M s. Gomes’s claim
that state officials lacked “reasonable and articulable suspicion” that Rebekah
“ha[d] been abused or [was] in imminent peril of abuse.” Id. at 1135. The doctor
“never w as highly suspicious that Rebekah had been the victim of child abuse,”
and his report specifically stated that her fracture was “consistent with a fall on a
flat object.” Id. Both the doctor and the intake worker at the agency saw no
imminent peril of abuse, as the doctor felt “comfortable” sending the child home
and the agency took no action for two days. Id. M ost strikingly, it was M s.
Gomes herself who reminded the doctor about the need for consultation with
Child and Family Services, kickstarting an investigation that the state apparently
had abandoned. Her actions therefore were “arguably inconsistent with that of a
neglectful or abusive parent.” Id. Taking the evidence in the light most favorable
to the plaintiffs, we held that genuine issues of material fact existed as to whether
“the defendant officials removed Rebekah without ‘reasonable and articulable
suspicion.’” Id. (quoting Hatch, 274 F.3d at 20).
In this case, by contrast, we find that the evidence available to state
officials was sufficient to create reasonable suspicion that Jasmine had been
abused, and that Ashley was in imminent peril of abuse. Because that evidence
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differs with respect to each of the children, we separately discuss whether genuine
issues of material fact preclude summary judgment as to Jasmine and Ashley.
1. Jasm ine
The rationale for intervention in Jasmine’s case was much clearer than in
Ashley’s. The Defendants had ample evidence giving rise to a reasonable and
articulable suspicion that Jasmine had been abused or was in imminent danger of
abuse. In a period of four days, she had suffered two injuries requiring
emergency care, one of which appeared to have resulted from a sharp grab or
“torquing motion.” App. 52. M s. Olivas had offered conflicting stories about
how the injuries occurred, and Dr. Baggs and physician assistant Boone believed
that her explanation could not be squared with the X-rays of Jasmine’s arm.
Nurse Vandergriff and Dr. Baggs reported their concerns about child abuse to
CYFD independently, fulfilling a statutory duty to “report the matter
immediately” whenever they “know[] or ha[ve] a reasonable suspicion that a child
is an abused or neglected child.” N .M .S.A. § 32A-4-3(A). Unlike the doctor’s
report in Gomes, Dr. Baggs’s report unequivocally cited suspicions of child
abuse. Although the Defendants knew that one set of X-rays had found nothing
wrong with Jasmine’s leg, they had another report from Dr. Baggs that reached
the opposite conclusion, diagnosing the injury as a fracture and calling it
“suspicious” and “a red flag.” A pp. 216. The fact that his diagnosis ultimately
proved incorrect does not render the Defendants’ reliance on it unreasonable.
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Finally, during a visit to the home, two of the Defendants inspected the bed from
which Jasmine fell, and found it highly unlikely that a short drop onto thick
carpet could have caused such serious injuries. Under the circumstances, there is
no question that the Defendants had a reasonable and articulable basis for
suspicion of abuse with respect to Jasmine.
The Plaintiffs rely heavily on two statements by M s. Barrera-Garcia. First,
M s. Barrera-Garcia says that she did not believe— apparently at any time— that
Jasmine faced an “emergency situation.” Id. at 401. Yet M s. Barrera-Garcia was
only one member of the team of social workers that agreed on February 21 that
“Jasmine w as still in immediate danger of harm,” and she apparently did not share
her reservations with her colleagues, either before or after the staff meeting. Id.
at 211. Her statement is also difficult to reconcile with her actions: she found the
situation urgent enough, on the afternoon of February 20, to remove Jasmine from
the home immediately. In any case, M s. Barrera-Garcia’s subjective belief that
the situation was not an “emergency” does not change the fact that the Defendants
had an objectively reasonable basis to suspect that Jasmine had been abused or
faced imminent peril of abuse. Under Gomes, reasonable suspicion is enough.
Second, the plaintiffs quote M s. Barrera-Garcia as saying that there was no
reason “on either the 20th or the 21st why a court order could not have been
obtained.” App. 345. As we made clear in Gomes, “the question of whether state
officials had time to seek and obtain authorization for the removal without
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jeopardizing the safety of the child will be an important consideration” when
determining whether the circumstances justify the removal of a child without
notice and a hearing. Gomes, 451 F.3d at 1131. But as a practical matter, this
factor can be difficult to evaluate: “it may not be entirely clear either how long it
would take to obtain judicial approval or whether this period of delay would
jeopardize the safety of the child.” Id. at 1130. Accordingly, to facilitate the
“‘subtle balancing’” required in child-removal cases, we take care not to “‘blunt
the inquiry by simply asking whether there was time to get a warrant.’” Id.
(quoting Kearney, 329 F.3d at 1297-98). W e treat this factor as “an important
consideration,” but not our “‘sole focus.’” Id. at 1130–31 (quoting Kearney, 329
F.3d at 1295).
Although one member of the team investigating Jasmine’s situation, M s.
Barrera-Garcia, stated her opinion that there was no reason why a court order
could not have been obtained, she provided no information about (1) the amount
of time typically required to obtain a warrant, or (2) her reasons for believing that
the “immediate danger of harm” to Jasmine did not require “immediate” removal.
By contrast, M s. Locklear’s affidavit states that CYFD ’s “‘SD M ’ (or Structured
Decision M aking)” software concluded that the children “should be removed from
the home pending a 48-hour ex parte order.” App. 211. This demonstrates that
the decisionmaking process of the team as a whole evaluated the imminence of
harm to Jasmine against the benchmark of the time it would take to obtain an ex
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parte order, as it should, leading to the conclusion that immediate removal was
necessary. W here, as here, the child had sustained two serious injuries in four
days, without plausible explanation, the team w as justified in believing that delay
of even a brief duration could be calamitous. Taking into account “all relevant
circumstances,” one participant’s opinion that a court order could have been
obtained is insufficient to show that the decision to remove Jasmine from the
home immediately falls short of the “reasonable suspicion” standard. See Gomes,
451 F.3d at 1131.
2. Ashley
In Ashley’s case, the question of “reasonable suspicion” is much closer.
The only basis for removing Ashley from the home w as the “targeted child” or
“scapegoat” theory. The best description of this theory comes from the affidavit
of Dr. Karen Campbell, a doctor consulted by CYFD concerning Jasmine and
Ashley. She explains:
M y reported concern of risk towards Ashley, the older child, was
based on my training and experience. Studies show that siblings of
abused children have a higher abuse rate than in the general
population. Because studies show that abuse or serious concerns of
abuse exist in nearly half of the families in which another sibling had
been previously abused, I believe it was necessary and essential to
remove A shley from the home.
App. 245. M s. Locklear, Detective Arrey, and Sergeant Pitts each echoed that
description of the theory, adding that they based their decision on their own
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“training and experience.” According to M s. Locklear, the “targeted child”
scenario is “very common.” Id. at 310.
Despite its apparent prevalence in discussions of child abuse among these
state officials, the theory seldom has been invoked before the courts. Only one
federal court has considered whether a “targeted child” or “scapegoat” theory
justifies removal of children from a home without notice and a hearing. See
Taylor v. Evans, 72 F. Supp. 2d 298, 309 (S.D.N.Y. 1999) (finding it “not
unreasonable” for a social worker to remove all three children from a home w here
one child had sustained serious injuries, there was no “consistent explanation to
explain those injuries,” and the social w orker had received “an unbiased, specific
report citing fear of child abuse”). Also, at least one state court has incorporated
the theory into its substantive standard for determining whether children are
“abused.” See In re M arino S., 795 N.E.2d 21, 28 (N.Y. 2003) (authorizing lower
courts to make “derivative findings” of severe abuse under state law, “predicated
upon the common understanding that a parent whose judgment and impulse
control are so defective as to harm one child in his or her care is likely to harm
others as well”).
The “targeted child” theory has some intuitive appeal, but the parties have
provided us with precious little information about it. According to the studies
described by Dr. Campbell, “abuse or serious concerns of abuse exist in nearly
half of the families in which another sibling has been previously abused.” App.
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245. Three factors, however, might undermine the relevance of those studies.
First, we have no information about the immediacy of the threat identified by the
theory. If it typically took several weeks for abuse to transfer from one child to
another, for example, then the theory could not serve as the basis for reasonable
suspicion of an “imminent peril of abuse” as to the second child. Gomes, 451
F.3d at 1129 (internal quotation marks omitted). In that case, due process would
demand the usual predeprivation notice and a hearing. Second, we have limited
information about the relevance of the theory. From Dr. Campbell’s description,
studies have found a correlation between a known history of abuse for one child
and “abuse or serious concerns of abuse” in a sibling. App. 245. But correlation
and causation are two different things. That parents who abuse one child are
likely to also be abusing other children in the household does not necessarily
mean that parents who have abused only one of their children w ill start to abuse
the others when the first is removed. Third, we have no information about
exceptions to the theory. It may be, for example, that the age of the children
involved, birth order, prior medical history, gender, temperament, or other factors
strongly influence the likelihood that abuse will transfer between siblings. In this
case, for example, Ashley was the only child in the home for more than four
years, before Jasmine w as born. Yet M s. Barrera-Garcia saw no signs of abuse
during her discussions with Ashley, and CYFD uncovered no evidence that she
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ever had been “targeted.” App. 277. Depending on the details of the theory,
these facts might be especially important (or utterly irrelevant).
W e need not make any general pronouncements about the reliability of the
“targeted child” theory, however, because in this case the Plaintiffs effectively
have conceded the point. The Defendants submitted a half-dozen uncontested
affidavits and deposition excerpts explaining that, based on their training and
experience, state officials routinely remove all of the children from a home w hen
they harbor reasonable suspicions of abuse of any one child. Further, the
Defendants reached their “targeted child” decision only after careful
consideration of the facts of this case. During their staff meeting, CY FD
personnel noted that Jasmine was “the most needy, the most demanding” child in
the home, and therefore agreed upon specific, articulable reasons that Ashley
might become the next target. App. 310. The Plaintiffs, in response, have
presented no evidence calling the “targeted child” theory into question, and have
offered no reason to doubt the Defendants’ application of that theory to Jasmine
and Ashley. Based on the record before us, no genuine issue of material fact
exists as to the whether the Defendants had “reasonable and articulable suspicion”
that Ashley was in imminent peril of abuse.
B. Clearly Established Federal Law
Because we have determined that the Defendants’ actions did not violate
any constitutional right, we need not decide whether they violated clearly
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established law at the time they took place. Roska, 328 F.3d at 1239 (“Order is
important; we must decide first whether the plaintiff has alleged a constitutional
violation, and only then do we proceed to determine whether the law was clearly
established.”).
III. Conclusion
W e A FFIR M the decision of the district court granting summary judgment
for the D efendants.
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