Costanich v. DEPT. OF SOCIAL AND HEALTH SERVICES

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KATHIE COSTANICH, 
Plaintiff-Appellant,
v.
DEPARTMENT OF SOCIAL AND HEALTH
SERVICES FOR THE STATE OF No. 08-35217
WASHINGTON; SANDRA DURON; JOHN
DOE DURON; CAROL SCHMIDT; JOHN  D.C. No.
DOE SCHMIDT; BEVERLY PAYNE; 2:05-cv-00090-MJP
JOHN DOE PAYNE; JAMES BULZOMI;
JANE DOE BULZOMI; ROBERT STUTZ;
INGRID MCKENNY; JOHN DOE
MCKENNY; JANE DOE STUTZ,
Defendants-Appellees.


KATHIE COSTANICH, 
Plaintiff-Appellee-Cross-Appellant,
v.
DEPARTMENT OF SOCIAL AND HEALTH
SERVICES FOR THE STATE OF No. 08-35287
WASHINGTON; SANDRA DURON; JOHN
DOE DURON; CAROL SCHMIDT; JOHN  D.C. No.
2:05-cv-00090-MJP
DOE SCHMIDT; BEVERLY PAYNE;
JOHN DOE PAYNE; JAMES BULZOMI; OPINION
JANE DOE BULZOMI; ROBERT STUTZ;
INGRID MCKENNY; JOHN DOE
MCKENNY; JANE DOE STUTZ,
Defendants-Appellants-Cross-
Appellees.


19163
19164 COSTANICH v. DSHS
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding

Argued and Submitted
May 6, 2009—Seattle, Washington

Filed December 3, 2010

Before: Kim McLane Wardlaw, Richard A. Paez, and
N. Randy Smith, Circuit Judges.

Opinion by Judge Wardlaw
19168 COSTANICH v. DSHS
COUNSEL

Carol Farr, Law Office of Leonard W. Moen, Renton, Wash-
ington, for appellant Kathie Costanich.

Pamela H. Anderson, Assistant Attorney General, Olympia,
Washington, for appellees State of Washington, et al.

OPINION

WARDLAW, Circuit Judge:

Washington state revoked Kathie Costanich’s foster care
license and instituted guardianship termination proceedings
against her following an investigation by a Department of
Social and Health Services (“DSHS”) social worker, Sandy
Duron, which purportedly revealed “emotional abuse” of the
children in Costanich’s care. Finding fundamental inaccura-
cies in the investigation, an administrative law judge (“ALJ”)
reversed the license revocation. The Court of Appeals of
Washington ultimately upheld the ALJ’s determination.
Costanich v. Wash. State Dep’t of Soc. & Health Servs., 138
Wash. App. 547, 156 P.3d 232 (App. Ct. 2007).

This appeal arises from Costanich’s § 1983 claim against
Duron, DSHS,1 and other DSHS officials for deprivation of
her due process rights to her foster care license and guardian-
ship of her dependents. Costanich appeals the grant of sum-
mary judgment in favor of all DSHS personnel on the basis
of absolute and qualified immunity. We must decide whether
the DSHS officials are entitled to absolute or qualified immu-
nity for the separate acts of the investigation, the declaration
1
The district court previously dismissed Costanich’s claim against
DSHS, holding that the agency is not a “person” subject to § 1983 liabil-
ity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Costanich does not appeal this dismissal.
 COSTANICH v. DSHS 19169
filed in support of the guardianship termination, and the revo-
cation of Costanich’s foster care license. We affirm the judg-
ment for all DSHS officials, including for conduct related to
the revocation of Costanich’s foster care license.

I. FACTUAL AND PROCEDURAL BACKGROUND

Costanich and her husband have been foster parents since
1983 “for some of the neediest and most difficult foster chil-
dren in the system.” Costanich, 156 P.3d at 234. As the Court
of Appeals of Washington noted,

All of these children had been victims of abuse or
neglect and many had severe behavioral, develop-
mental, and medical problems. [Kathie] specialized
in violent, sexually aggressive youth (SAY) and
medically fragile infants. Costanich was also the
president of Foster Parents of Washington State
(FPAWS) and a trainer for DSHS. Before the abuse
allegations, the most recent state evaluation
described the Costanich foster home as a “unique
and valuable resource . . . unsurpassed by any foster
home in the State.”

Id. As of July 2001, the Costanich house was home to six
children—three male foster children, K. (age 15), J. (age 12),
and P. (age 10); one male under dependency guardianship,2 F.
(age 17); and two sisters also under dependency guardianship,
E. (age 8) and B. (age 4).3 E. and B. had resided in the
Costanich home since their infancy.
2
A “dependency guardian” is a person who is “appointed by the court
. . . for the limited purpose of assisting the court in the supervision of the
dependency,” Wash. Rev. Code § 13.34.030(5), whereas a legal “guard-
ian” is a person who “has the legal right to custody of the child pursuant
to [an] appointment,” id. § 13.34.030(8).
3
We reference the children only by their first initials to protect their pri-
vacy.
19170 COSTANICH v. DSHS
During a session with his therapist in July 2001, K. alleged
that Costanich was physically and emotionally abusing the
children. Sandy Duron, a social worker for the Child Protec-
tive Services (“CPS”) section of DSHS, initiated an investiga-
tion based upon the therapist’s referral. She interviewed all of
the children, aides who worked in the Costanich home, some
of the children’s therapists, family and friends, and Costanich
herself.4 Duron reported that all of the children claimed
Costanich used profanity regularly, and all but one claimed
that she directed profanity at the children and used physical
violence. All of the adult interviewees also admitted that
Costanich used profanity, but they differed on whether it was
directed at the children and whether Costanich used physical
violence.

Duron also reported that K. specifically told his therapist
about an incident that allegedly took place while the family
was vacationing at a cabin on Lake Cavanaugh. According to
Duron, K. said that Costanich observed an altercation between
F. and a sixteen-year-old female aide, restrained F. by putting
her hands around F.’s neck and choking him, and said “I’ll
kill you, bastard.” Duron reported that F.’s account of the
incident was basically the same, and that a friend of the fam-
ily who witnessed the incident and Costanich herself reported
that Costanich physically restrained F., though their accounts
varied as to the severity of the restraint. According to Duron,
K. also told his therapist that Costanich got mad at P. and told
him to move his “black ass”5 and clean his room. K. also
heard Costanich call E. a “cunt” and saw her grab E.’s hair.
4
None of the interviews was recorded and all but one were conducted
without a third person present. Moreover, Duron did not produce her
handwritten notes of the meetings. In addition to her final report of the
investigation, Duron produced only “service episode reports”—electronic
summaries prepared by Duron from her handwritten notes.
5
Costanich admitted that she told P., the only African American child
in the house, to “move his black ass,” explaining that she was told by an
African American friend of hers that that is how his biological mother
would speak to him.
 COSTANICH v. DSHS 19171
Duron also reported that J. told her that he saw Costanich rub
urine-soaked sheets in P.’s face.

Dr. Cartwright, a clinical psychologist who reviewed the
DSHS records but did not interview the children, opined that
swearing at children may lead to or exacerbate behavioral
problems. DSHS held meetings in which the Costanich case
was discussed. Based upon the meetings, interviews, and con-
sultations, Duron concluded that the allegation of emotional
abuse was “founded” and that the allegation of physical abuse
was “inconclusive.”

In the fall of 2001 and spring of 2002, J.’s, K.’s, E.’s, and
B.’s therapists wrote to DSHS, reporting that the children
were doing very well in the Costanich home and strongly rec-
ommending against removal.6 Specifically, J.’s therapists, Dr.
Cowles and Dr. Adler, prepared a sworn letter describing in
detail J.’s disabilities, his substantial improvements in the
Costanich home, their strong disagreement with the decision
to remove J. from the Costanich home, and “not[ing] that
DCFS did not, in a reasonable manner, consult with his pro-
viders on how this removal from the foster home was to be
conducted even though this was court-ordered.” E.’s and B.’s
therapist, Dr. Vincent, prepared a sworn letter describing the
loving and nurturing relationship between the girls and
Costanich and noting the vast “emotional damage that remov-
6
Along with certain letters from witnesses, several of the therapists’ let-
ters were the subject of defendants’ motion to strike on the ground that let-
ters not signed under penalty of perjury should be excluded under Federal
Rule of Civil Procedure 56(e). The district court admitted the unsworn, but
dated, letters, not for the truth of the matter asserted, but “to show what
evidence DSHS had before it.” The court excluded the undated, unsworn
letters. DSHS officials challenge the limited admission of the unsworn, but
dated, letters for the first time in their cross-reply brief. Because the argu-
ment was not made in the opening cross-appeal brief, we consider it
waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
In any event, the district court did not abuse its discretion in admitting the
evidence.
19172 COSTANICH v. DSHS
ing them will cause the children.” K.’s therapist, Dr. Crabbe,
wrote of the stability of the Costanich home and the progress
that K. had made there, and noted that “[a] change in place-
ment . . . would be detrimental to K.’s emotional and mental
health.”

The record also reflects that at least six adult witnesses
wrote to DSHS, stating that Duron was a hostile interviewer
who twisted their words and attributed to them statements
they did not make. For example, Tori McLaughlin, a family
friend, wrote that Duron asked her the same questions repeat-
edly when she did not receive the answer she wanted. Diane
Isley, a Court Appointed Special Advocate (“CASA”) who
has worked with Costanich for a decade, prepared a sworn let-
ter stating that Duron attributed to her a false statement about
a child running from the Costanich home.

These letters did not cause DSHS to alter its conclusion of
“founded” emotional abuse. DSHS informed Costanich of this
finding in a meeting in November 2001. According to the tes-
timony of several officials, DSHS also told her that if she
would not appeal the finding of emotional abuse and would
agree to participate in a corrective management plan, DSHS
would not seek termination of her guardianship of E. and B.7
It is unclear from the record whether DSHS ever made a for-
mal offer and, if so, whether Costanich considered it.

DSHS made its formal finding of emotional abuse in a
December 18, 2001, letter addressed to Costanich and signed
7
Defendants moved to strike this evidence on the ground that the pro-
posal constituted an inadmissible settlement offer. See Federal Rule of
Evidence 408(a)(1). The district court ruled that the evidence was not
offered as proof of liability “but to show that DSHS inappropriately pres-
sured [Costanich] to accept its abuse finding.” DSHS waived its challenge
to the district court’s ruling by failing to raise it in the opening brief. See
Martinez-Serrano, 94 F.3d at 1259. Again, even if DSHS had properly
preserved this challenge, we would conclude that the district court did not
abuse its discretion in admitting the evidence.
 COSTANICH v. DSHS 19173
by defendant CPS Investigations Supervisor Beverly Payne. A
CPS Section Manager, Kyle Smith, upheld the finding on
March 14, 2002, even though his office had contacted several
of the witnesses who told CPS of their complaints as to
Duron’s investigation. Costanich requested an administrative
hearing on March 24, 2002. On March 28, 2002, the State
filed a petition to terminate Costanich’s guardianship of E.
and B. The petition was supported by Duron’s declaration that
Costanich “uses profanity, name-calling, and derogatory
racial terms as means to discipline and intimidate the chil-
dren.” Before the state court could issue a decision, the Kalis-
pel Tribe of Indians, of which E. and B. are members,
intervened and assumed jurisdiction of their cases. The Tribe
placed the girls with relatives for the summer of 2002, and
then returned the girls to Costanich.8 In August 2002, DSHS,
acting through defendant licensor Ingrid McKinney, revoked
Costanich’s foster license. Defendant James Bulzomi
reviewed the revocation decision and signed the revocation
letter. Costanich’s other foster children, except for F., who
was also under a dependency guardianship, were removed.

In the fall of 2002 and winter of 2003, the ALJ held nine-
teen days of evidentiary hearings. Forty-nine witnesses testi-
fied, including P., J., Duron, Costanich, various DSHS
officials, therapists, and Costanich’s aides. The ALJ reversed
DSHS’s license revocation determination, concluding that the
finding of emotional abuse was not supported by substantial
evidence. Based on live witness testimony, the ALJ found that
Costanich used profanity around the children, but did not
direct it at them, though she did ask P. to move his “black
ass.” The ALJ found K.’s statements to his therapist and
Duron’s statements and reports not credible due to the unad-
dressed inconsistencies.
8
E. and B. have remained with Costanich since then. Because the Tribe
does not allow adoptions of its members, it granted Costanich guardian-
ship of E. and B. in November 2005.
19174 COSTANICH v. DSHS
DSHS appealed the ALJ decision to the DSHS Board of
Appeals, which reversed. Relying primarily on Duron’s report
and on her claim that she recorded her interviews with the
children “near-verbatim,” the Board of Appeals review judge
determined that substantial evidence supported the conclusion
that Costanich directed profanity at the children, including
calling E. a “bitch” and a “cunt,” that she threatened to kill F.,
and that she told P. to “move his black ass,” all of which con-
stituted emotional abuse. While the review judge did
acknowledge that Duron’s investigation suffered from several
errors, he declined to find her report and notes inherently
unreliable.

Costanich appealed the Board’s decision to the King
County Superior Court, which reversed, finding that the
review judge exceeded his authority by making new and
inconsistent findings of fact. The Court of Appeals of Wash-
ington affirmed, reinstating the ALJ’s conclusion that the
finding of emotional abuse was not founded. Costanich, 156
P.3d at 240. The court of appeals held that “[b]ecause the
review judge based his additional, contradictory factual find-
ings solely on hearsay evidence the ALJ rejected as lacking
credibility, . . . the review judge acted outside the scope [of]
his authority.” Id. at 238. It also awarded Costanich attorney’s
fees under Washington’s Equal Access to Justice Act, Wash.
Rev. Code § 4.84.350, finding that “DSHS was not substan-
tially justified in revoking [Costanich’s] license once it
became aware of the problems with Duron’s investigation.”
Costanich, 156 P.3d at 240.

While her appeal of the Board’s decision was pending in
superior court, Costanich filed a civil rights action in Wash-
ington state court, asserting claims under § 1983 and state tort
law9 against the State of Washington, DSHS, Sandy Duron,
9
Costanich asserted causes of action for intentional and negligent inflic-
tion of emotional distress, negligent investigation, malicious prosecution,
and abuse of process.
 COSTANICH v. DSHS 19175
and DSHS officials Carol Schmidt, Beverly Payne, James
Bulzomi, Robert Stutz, and Ingrid McKinney. DSHS removed
the action to federal court, where it was held in abeyance
pending the state court appeal. The individual defendants then
moved for summary judgment, claiming absolute immunity
for the investigation, the allegedly false declaration in support
of guardianship termination, and the revocation of
Costanich’s foster care license. They also asserted qualified
immunity for claims arising from their remaining actions.
Costanich moved for partial summary judgment on her § 1983
claim against Duron, arguing that Duron’s fabrication of evi-
dence in her report and declaration deprived Costanich of her
right to due process. The district court granted defendants’
cross-motion for summary judgment on all federal claims and
declined to exercise supplemental jurisdiction over the state
court causes of action. Costanich and the DSHS officials
timely cross-appeal.

II. JURISDICTION AND STANDARDS OF REVIEW

The district court had original jurisdiction under 28 U.S.C.
§ 1331 and supplemental jurisdiction under 28 U.S.C. § 1367.
We have jurisdiction under 28 U.S.C. § 1291.

The district court’s grant of summary judgment on the
ground of qualified immunity is reviewed de novo. See Mot-
ley v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004). “Our juris-
diction is limited to questions of law, and does not extend to
qualified immunity claims involving disputed issues of mate-
rial fact. Where disputed facts exist, we assume that the ver-
sion of the material facts asserted by Plaintiffs, as the non-
moving party, is correct.” KRL v. Estate of Moore, 512 F.3d
1184, 1188-89 (9th Cir. 2008) (citation omitted).

The type of immunity to which a public official is entitled
is a question of law, which is reviewed de novo. See Mabe v.
San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d
1101, 1106 (9th Cir. 2001). Federal law controls the question
19176 COSTANICH v. DSHS
of immunity in § 1983 cases. Martinez v. California, 444 U.S.
277, 284 & n.8 (1980).

A district court’s determination regarding collateral estop-
pel is reviewed de novo. See Littlejohn v. United States, 321
F.3d 915, 919 (9th Cir. 2003).

We review for abuse of discretion a district court’s refusal
to exercise supplemental jurisdiction over state law claims
after all federal claims were dismissed. In re Digimarc Corp.
Derivative Litig., 549 F.3d 1223, 1233 n.3 (9th Cir. 2008).

III. DISCUSSION

Costanich claims that Duron and the other DSHS officials
violated her Fourteenth Amendment due process rights by
depriving her of liberty and property interests in her foster
care license and dependency guardianship of E. and B.10 The
10
The district court correctly held that the doctrine of collateral estoppel
is inapplicable because the issues considered by the state courts and the
administrative agency were not identical to those presented in this federal
action. In assessing the preclusive effect of state court decisions, we are
required to apply the collateral estoppel principles of the state in which the
decision was rendered. See Allen v. McCurry, 449 U.S. 90, 96 (1980)
(“[T]hough the federal courts may look to the common law or to the poli-
cies supporting res judicata and collateral estoppel in assessing the preclu-
sive effect of decisions of other federal courts, Congress has specifically
required all federal courts to give preclusive effect to state-court judg-
ments whenever the courts of the State from which the judgments emerged
would do so . . . .”); Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466
(1982) (“Section 1738 requires federal courts to give the same preclusive
effect to state court judgments that those judgments would be given in the
courts of the State from which the judgments emerged.”). Under Washing-
ton law, “[c]ollateral estoppel, or issue preclusion, requires . . . identical
issues . . . .” City of Arlington v. Cent. Puget Sound Growth Mgmt. Hear-
ings Bd., 193 P.3d 1077, 1089 (Wash. 2008) (internal quotation marks
omitted). The issue decided by the ALJ was whether substantial evidence
supported the license revocation, while the issue decided by the state court
was whether the review judge exceeded his authority in basing his factual
 COSTANICH v. DSHS 19177
district court correctly concluded that Duron is not entitled to
absolute immunity for the investigation and submission of the
declaration in support of the guardianship termination peti-
tion, while holding that all other DSHS officials were abso-
lutely immune from suit as to the license revocation and
enjoyed qualified immunity on all remaining claims. We
agree with the district court that Duron is entitled to qualified
immunity for her investigation and submission of the declara-
tion in support of the guardianship termination proceedings,
but for somewhat different reasons: We conclude that deliber-
ately fabricating evidence in civil child abuse proceedings
violates the Due Process clause of the Fourteenth Amendment
when a liberty or property interest is at stake,11 and that genu-
ine issues of material fact exist on the question of deliberate
fabrication. We further conclude, however, that, because it
was not clear at the time these events took place that this right
applied in the context of proceedings adjudicating a foster
care license and termination of guardianship, Duron did not
deprive Costanich of a constitutional right that was “clearly
established.” Accordingly, Duron is entitled to qualified
immunity for the alleged evidence fabrication and declaration
in support of the guardianship termination proceedings.

findings on Duron’s reports. Costanich, 156 P.3d at 238. By contrast, the
question in Costanich’s § 1983 suit is whether Duron deliberately fabri-
cated evidence in her investigation. Even if the state court or the adminis-
trative agency addressed the truthfulness of Duron’s reports, neither
decided whether Duron deliberately fabricated the evidence.
11
The Washington State Supreme Court has also recently concluded that
“the deprivation of liberty based on fabricated evidence is a violation of
a person’s constitutional right to due process” in the criminal context, and
that this principle “applies with equal force in a civil proceeding” adjudi-
cating a pharmacist’s license, reasoning that a pharmacist’s professional
and business licenses are property interests protected by the due process
clause. Jones v. State, ___ P.3d ___, 2010 WL 4352199 at *5 (Wash.
Nov. 4, 2010).
19178 COSTANICH v. DSHS
A. Absolute Immunity

[1] It is well established that a defendant’s immunity from
a § 1983 suit is dependent on the common law immunities
existing at the time of § 1983’s enactment. Imbler v. Pacht-
man, 424 U.S. 409, 427 (1976) (granting a prosecutor “the
same absolute immunity under § 1983 that the prosecutor
enjoys at common law”). Interpreting the Supreme Court’s
decision in Kalina v. Fletcher, 522 U.S. 118, 127-29 (1997),
we recently reaffirmed that “it is only the specific function
performed, and not the role or title of the official, that is the
touchstone of absolute immunity.” Miller v. Gammie, 335
F.3d 889, 897 (9th Cir. 2003) (en banc) (per curiam). Two
principal functions are at issue here: (1) the institution of
license revocation proceedings by Duron, McKinney, and
Bulzomi, and (2) the investigation and the submission of a
declaration in support of guardianship termination by Duron.

1. License Revocation Proceedings

[2] The district court properly concluded that Duron, McK-
inney, and Bulzomi were absolutely immune from suit for
their involvement in Costanich’s foster care license revoca-
tion proceedings. We have long held that “social workers
have absolute immunity when they make ‘discretionary,
quasi-prosecutorial decisions to institute court dependency
proceedings to take custody away from parents.’ ” Beltran v.
Santa Clara County, 514 F.3d 906, 908 (9th Cir. 2008) (en
banc) (quoting Miller, 335 F.3d at 898); see also Meyers v.
Contra Costa County Dep’t of Soc. Servs., 812 F.2d 1154,
1157 (9th Cir. 1987). We have noted that, like a prosecutor,
“[t]he social worker must make a quick decision based on per-
haps incomplete information as to whether to commence
investigations and initiate proceedings against parents who
may have abused their children.” Meyers, 812 F.2d at 1157;
see also id. (“The social worker’s independence, like that of
a prosecutor, would be compromised were the social worker
constantly in fear that a mistake could result in a time-
 COSTANICH v. DSHS 19179
consuming and financially devastating civil suit.”). Thus, “the
critical decision to institute proceedings to make a child a
ward of the state is functionally similar to the prosecutorial
institution of a criminal proceeding,” and, therefore, deserves
absolute immunity. Miller, 335 F.3d at 898. The institution of
a license revocation proceeding is sufficiently analogous to a
decision to institute a custody termination proceeding to
deserve absolute immunity.

2. Investigation and Filing of Declaration in Support of
Termination Proceedings

Adhering to our en banc decision in Beltran, the district
court also correctly concluded that Duron is not entitled to
absolute immunity for investigating charges against Costanich
or for filing the declaration in support of the guardianship ter-
mination proceedings.

[3] In Beltran, we held that social workers are “not entitled
to absolute immunity from claims that they fabricated evi-
dence during an investigation or made false statements in a
dependency petition affidavit that they signed under penalty
of perjury, because such actions aren’t similar to discretionary
decisions about whether to prosecute.” 514 F.3d at 908. We
analogized the social worker to “[a] prosecutor [who] doesn’t
have absolute immunity if he fabricates evidence during a
preliminary investigation, before he could properly claim to
be acting as an advocate, or makes false statements in a sworn
affidavit in support of an application for an arrest warrant.”
Id. (citing Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993);
Kalina, 522 U.S. at 129-30). “[A]s prosecutors and others
investigating criminal matters have no absolute immunity for
their investigatory conduct, a fortiori, social workers conduct-
ing investigations have no such immunity.” Beltran, 514 F.3d
at 908-09. Duron’s argument that in filing the declaration, she
acted as a witness, and therefore deserves absolute immunity
under Burns v. County of King, 883 F.2d 819, 822-23 (9th Cir.
1989), is unpersuasive in light of Beltran’s clearly controlling
19180 COSTANICH v. DSHS
conclusion to the contrary. Thus, Duron is not entitled to
absolute immunity from the claims that she deliberately fabri-
cated evidence in her investigation and made false statements
in the sworn declaration submitted in support of the guardian-
ship termination proceedings.

B. Qualified Immunity

[4] In determining whether Duron is entitled to qualified
immunity for the investigation and declaration, we apply the
two-step the analysis set forth in Saucier v. Katz, 533 U.S.
194 (2001), under which we inquire, in sequence, (1) whether
“the facts alleged show the [official]’s conduct violated a con-
stitutional right,” and (2) “whether the right was clearly estab-
lished.” Id at 201.12 The district court concluded that
Costanich failed to establish that her constitutional rights were
violated or that any of the rights she asserted was well estab-
lished. We disagree with the district court’s conclusion that
Costanich failed to establish that Duron violated Costanich’s
constitutional rights; however, we agree with the district court
that no such constitutional rights were clearly established.

1. Whether Duron Violated Costanich’s Constitutional
Rights

“[T]o establish a substantive due process claim a plaintiff
must . . . show a government deprivation of life, liberty, or
property.” Nunez v. City of Los Angeles, 147 F.3d 867, 871
12
We note that, although we are no longer required to apply Saucier’s
two steps in turn, doing so is often appropriate and beneficial. See Pearson
v. Callahan, 129 S. Ct. 808, 818 (2009) (“On reconsidering the procedure
required in Saucier, we conclude that, while the sequence set forth there
is often appropriate, it should no longer be regarded as mandatory.”). We
proceed to apply the Saucier two steps in sequence because we have dis-
cretion to do so, and because we find such application to be beneficial. See
id. (“Although we now hold that the Saucier protocol should not be
regarded as mandatory in all cases, we continue to recognize that it is
often beneficial.”).
 COSTANICH v. DSHS 19181
(9th Cir. 1998). Therefore, before turning to the question of
whether Costanich’s due process rights were violated, we
must first determine whether there has been a deprivation of
life, liberty, or property. Costanich asserts that by deliberately
fabricating evidence during the investigation and making false
statements in the declaration supporting the guardianship ter-
mination proceedings, Duron deprived her of property and
liberty interests in her foster care license and in the care of E.
and B. as their dependency guardian. The district court found
that “Defendants do not dispute that Plaintiff has property and
liberty interests in her foster case license or that she has a lib-
erty interest in the care of E. and B.” On appeal, DSHS offi-
cials argue that the district court merely “assumed” the above
finding, but they admit in a footnote that “Defendants did not
address this issue in their summary judgment brief due to
page constraints.” Having failed to dispute this issue below,
the DSHS officials waive the argument on appeal that
Costanich lacks a liberty or property interest in her foster care
license and guardianship of E. and B.

[5] As a general rule, we do “not consider an issue not
passed upon below.” Dodd v. Hood River County, 59 F.3d
852, 863 (9th Cir. 1995) (internal quotation marks and cita-
tion omitted). “It is immaterial whether the issue was not tried
in the district court because it was not raised or because it was
raised but conceded by the party seeking to revive it on
appeal.” United States v. Patrin, 575 F.2d 708, 712 (9th Cir.
1978). The DSHS officials’ “page constraints” argument is
unpersuasive, as they filed three merits briefs on summary
judgment totaling sixty pages. They certainly could have
devoted space to this issue if they seriously contested it. In
any case, following our decision in Joshua v. Newell, 871
F.2d 884, 886 (9th Cir. 1989), where we “assume[d] without
deciding that the [foster parents] had a protected property
interest in their license,” and the Supreme Court’s decision in
Smith v. Organization of Foster Families for Equality &
Reform (OFFER), 431 U.S. 816 (1977), which was decided
“on the assumption that [foster parents] have a protected ‘lib-
19182 COSTANICH v. DSHS
erty interest,’ ” id. at 847, we may proceed to consider
whether Duron violated Costanich’s due process rights.

[6] “Substantive due process protects individuals from
arbitrary deprivation of their liberty by government.” Brittain
v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006). “The Court has
repeatedly ‘spoken of the cognizable level of executive abuse
of power as that which shocks the conscience.’ ” Id. (quoting
County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).
Costanich’s claim is that Duron falsified evidence in her
investigation and used that false evidence as support for her
declaration, which led to the termination proceedings and the
revocation of Costanich’s foster care license. To sustain a
deliberate fabrication of evidence claim, we have held that a
plaintiff must,

at a minimum, point to evidence that supports at least
one of the following two propositions: (1) Defen-
dants continued their investigation of [plaintiff]
despite the fact that they knew or should have known
that he was innocent; or (2) Defendants used investi-
gative techniques that were so coercive and abusive
that they knew or should have known that those
techniques would yield false information.

Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en
banc). We noted that “mere allegations that Defendants used
interviewing techniques that were in some sense improper, or
that violated state regulations, without more, cannot serve as
the basis for a claim under § 1983.” Id. at 1075.

The district court concluded that, under Devereaux,
Costanich has not demonstrated that Duron deliberately fabri-
cated evidence. It held that Costanich failed to show that
Duron or any other DSHS official continued the investigation
despite knowing of Costanich’s innocence or used coercive
techniques that were known to produce false information.
Concluding that the recognized problems with Duron’s inves-
 COSTANICH v. DSHS 19183
tigation were just “recording errors and misstatements,” it
held that “a careless or inaccurate investigation that does not
ensure an error-free result does not rise to the level of a con-
stitutional violation.” (citing Devereaux, 263 F.3d at
1076-77); see also Gausvik v. Perez, 345 F.3d 813, 817 (9th
Cir. 2003) (“[Inaccuracy] claims do not show [the state
employee] continued the investigation despite knowing [the
subject of a child abuse investigation] was innocent or that he
used investigative techniques that he knew would yield false
information. . . . While [the state employee’s] affidavit may
have been careless or inaccurate, it does not satisfy
Devereaux’s stringent test.”).

[7] The district court read the Devereaux standard too nar-
rowly. Costanich alleges, and has produced evidence support-
ing her claim, that Duron deliberately misquoted and
misrepresented witness statements, i.e., deliberately falsified
statements in her investigative report and declaration. The
Devereaux test envisions an investigator whose unlawful
motivation is illustrated by her state of mind regarding the
alleged perpetrator’s innocence, or one who surreptitiously
fabricates evidence by using coercive investigative methods.
These are circumstantial methods of proving deliberate falsifi-
cation. Here, Costanich argues that the record directly reflects
Duron’s false statements. If, under Devereaux, an interviewer
who uses coercive interviewing techniques that are known to
yield false evidence commits a constitutional violation, then
an interviewer who deliberately mischaracterizes witness
statements in her investigative report also commits a constitu-
tional violation. Similarly, an investigator who purposefully
reports that she has interviewed witnesses, when she has actu-
ally only attempted to make contact with them, deliberately
fabricates evidence.

[8] We have previously held that when genuine issues of
material fact arise regarding fabrication of evidence in a child
abuse investigative report, a police officer is not entitled to
qualified immunity because “[c]redibility is an issue for the
19184 COSTANICH v. DSHS
trier of fact.” McSherry v. City of Long Beach, 560 F.3d 1125,
1130 (9th Cir. 2009). Summary judgment on this issue was
inappropriate here because Costanich introduced sufficient
evidence to demonstrate genuine issues of material fact. For
example, Duron’s report indicated that she had interviewed
thirty-four people. She later admitted that she had made only
brief contact with eighteen of the individuals listed. The mis-
representations about interviewing the children’s doctors were
especially significant. The suggestion that she interviewed
three of the therapists and received reports from a fourth lent
credibility to her report, but, as Duron testified at the ALJ
hearing, she did not actually speak to “[m]edical profession-
als.” In addition, the investigative report suggests that Duron
interviewed K. and describes a conversation with Dr. Crabbe,
the therapist whose referral was the catalyst for Duron’s
investigation. Upon examination by the ALJ, however, Duron
admitted that during the “interview” with K. she was holding
a copy of Dr. Crabbe’s referral and K. only told her that
“[e]verything that’s on the referral is true,” even though she
never showed the referral to K. Further, she conceded that “K.
wouldn’t say much” but that she still “just kind of summa-
rized what he was saying.” Duron admitted that she never
actually interviewed Dr. Crabbe, despite the fact that Dr.
Crabbe made the initial referral and sent DSHS a letter on
December 18, 2001, “strongly recommend[ing] that K.
remain” with the Costaniches as he “has made a very positive
adjustment to the Costanich home.”

[9] Other witnesses pointed out that the report contained
evidence or statements they never made. For example, accord-
ing to Duron’s report of her interview with Diane Isley, the
guardian ad litem for F., Isley stated that Costanich, in refer-
ence to a child that might try to run away, said she would
“chain the little shit to the bed.” Isley declared in a sworn let-
ter, however, that she never made this statement and that she
never talked to Duron about such a child. Duron also reported
that another aide, Crystal Hill, said that Costanich was “al-
ways calling E. a ‘fucking cunt, and bitch.’ ” In a sworn letter,
 COSTANICH v. DSHS 19185
however, Hill stated: “I have never seen her directly swear
face to face at one of the children.” Further, that Duron pur-
posefully used quotation marks around many of the purported
witness statements in her investigative report—including the
Isley and Hill statements—could support a trier of fact’s con-
clusion that Duron deliberately fabricated evidence. In the
defamation context, the Supreme Court has said:

[Q]uotation marks around a passage indicate to the
reader that the passage reproduces the speaker’s
words verbatim. They inform the reader that he or
she is reading the statement of the speaker, not a
paraphrase or other indirect interpretation by an
author. By providing this information, quotations
add authority to the statement and credibility to the
author’s work. Quotations allow the reader to form
his or her own conclusions and to assess the conclu-
sions of the author, instead of relying entirely upon
the author’s characterization of her subject.

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511
(1991) (holding that a jury may find knowledge or reckless
disregard of falsity when a publication attributes to the plain-
tiff quoted statements that the plaintiff never actually made).
Moreover, contrary to Duron’s report, all of the witnesses’
sworn letters express positive descriptions of the Costanich
foster home. Finally, the ALJ, who had the benefit of live wit-
ness testimony, found that “a number of [the] witnesses . . .
specifically dispute the reported evidence in the form of the
Service Episode Reports (SERs) which Ms. Duron utilized in
memorializing the information she received.”

[10] The district court’s description of the errors in the
investigation as “recording errors and misstatements” is
untenable in light of the principle that, on summary judgment,
we must draw all factual inferences in favor of the nonmoving
party. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916,
922 (9th Cir. 2004). It is true that, despite Costanich’s claims
19186 COSTANICH v. DSHS
to the contrary, Duron never admitted to falsifying the record.
An admission by a defendant, however, is not required to sur-
vive summary judgment. Resolution of disputed material facts
is the special province of the factfinder. See Balint v. Carson
City, 180 F.3d 1047, 1054 (9th Cir. 1999). The errors in
Duron’s report are not questions of tone or characterization
but actual misrepresentations. In concluding otherwise, the
district court relied on Gausvik, where a police officer stated
in a probable cause affidavit that the defendant’s children
tested “positive” for child abuse, though the tests were only
“consistent” with child abuse. 345 F.3d at 817. The substitu-
tion of “consistent” for “positive,” however, reasonably may
be characterized as a misstatement. Reporting that a witness
said something she did not cannot be so characterized.

It is also true that, in the course of her investigation, Duron
could have believed that Costanich was guilty of emotional
abuse. Under Washington law, foster parents are prohibited
from the use of “cruel, unusual, frightening, unsafe or humili-
ating discipline practices,” which include “[n]ame calling,
using derogatory comments; [t]hreatening the child with
physical harm; [and t]hreatening or intimidating the child.”
Wash. Admin. Code § 388-148-0470(1)(f)-(h). At the time of
Duron’s investigation, Washington law defined abuse as “acts
which are cruel or inhumane regardless of observable injury,”
Wash. Admin. Code. § 388-15-130(3)(d) (repealed), and the
Court of Appeals of Washington had held that a foster moth-
er’s “use of profanity to address the children constitutes
humiliating discipline,” leading to the conclusion that the
combined “use of corporal punishment and profanity justified
the revocation of her foster care license,” Morgan v. Dep’t of
Soc. & Health Servs., 992 P.2d 1023, 1027 (Wash. Ct. App.
2000). If the only evidence of deliberate fabrication were
inferences from Duron’s investigative methods, under
Devereaux, Duron’s subjective and personal belief of
Costanich’s guilt might have explained why Duron continued
the investigation. 263 F.3d at 1076. That belief, however,
does not permit or excuse deliberate falsification of evidence.
 COSTANICH v. DSHS 19187
For the same reasons, genuine issues of material fact also
exist as to whether Duron’s statements in the declaration in
support of the termination proceedings violated Costanich’s
due process rights. In the declaration, Duron repeats substan-
tially the same facts as recited in her report and that are con-
tested on appeal—that she interviewed the children’s
therapists, that an aide said Costanich called E. a “fucking
cunt, and bitch,” and that a CASA, presumably Isley, said that
Costanich used profanity “toward” the children. Record evi-
dence in the form of sworn letters from these individuals
creates a material dispute as to these facts and as to the delib-
erateness of Duron’s inclusion of these facts in her declara-
tion.

[11] We therefore conclude that Costanich had a Four-
teenth Amendment due process right to be free from deliber-
ately fabricated evidence in a civil child abuse proceeding,
and that, because genuine issues of material fact exist as to
whether Duron deliberately fabricated evidence, which led to
the termination proceedings and license revocation, the dis-
trict court erroneously concluded that “Plaintiff has not pro-
vided evidence showing that Defendants deliberately made
false statements and fabricated evidence to make a false find-
ing of abuse.”

2. Whether the Right Is Clearly Established

The district court held that Costanich “failed to identify a
clearly established right that Defendants violated” because her
right to due process is “too nebulous to be ‘clearly estab-
lished.’ ” It reasoned that “the constitutional right ‘not to be
subjected to criminal charges on the basis of false evidence
that was deliberately fabricated by the government,’ ” based
on Devereaux, was inapplicable here because Costanich was
not subjected to criminal charges, but only to civil license
revocation and guardianship termination proceedings.
According to the district court, the distinction between the
alleged deprivation of liberty here and the deprivation in Dev-
19188 COSTANICH v. DSHS
eraux is critical: the former involves the government’s delib-
erate fabrication of evidence in civil child abuse proceedings
while the latter involves the government’s deliberate fabrica-
tion of evidence in criminal child abuse proceedings. We
agree with the district court’s conclusion that Duron did not
violate Costanich’s “clearly established” rights. Although we
conclude that, going forward, officials who deliberately fabri-
cate evidence in civil child abuse proceedings which result in
the deprivation of a protected liberty or property interest are
not entitled to qualified immunity, this right had not previ-
ously been clearly established in the civil context.13

[12] A right is “clearly established” when “the contours of
the right were already delineated with sufficient clarity to
make a reasonable offic[ial] in the defendant’s circumstances
aware that what he was doing violated the right.” Devereaux,
263 F.3d at 1074; see also Saucier, 533 U.S. at 202 (“If the
law did not put the officer on notice that his conduct would
be clearly unlawful, summary judgment based on qualified
immunity is appropriate.”). In Pyle v. Kansas, 317 U.S. 213,
215-16 (1942), the Supreme Court held that the prosecution’s
knowing use of perjured testimony to obtain a criminal con-
viction violates the Constitution. In Devereaux, we considered
a § 1983 claim by a foster parent against police officers and
DSHS officials who investigated and prosecuted the parent
for criminal sexual abuse of his foster children. Relying upon
Pyle, we held “that there is a clearly established constitutional
due process right not to be subjected to criminal charges on
the basis of false evidence that was deliberately fabricated by
the government.” Devereaux, 263 F.3d at 1074-75. Though
we were “not aware of any prior cases that have expressly
13
The Washington State Supreme Court declined to grant qualified
immunity in Jones to the Board of Pharmacy inspectors because it was
clearly established Washington law that a pharmacist has a constitution-
ally protected property interest in his professional and business licenses.
We do not reach the question whether Costanich has a similarly protected
right to her foster care license. See 2010 WL 4352199 at *5, 8.
 COSTANICH v. DSHS 19189
recognized this specific right,” we found that “the wrongful-
ness of charging someone on the basis of deliberately fabri-
cated evidence is sufficiently obvious, and Pyle is sufficiently
analogous, that the right to be free from such charges is a con-
stitutional right.” Id. at 1075; see also Anderson v. Creighton,
483 U.S. 635, 640 (1987) (“This is not to say that an official
action is protected by qualified immunity unless the very
action in question has previously been held unlawful, but it is
to say that in the light of pre-existing law the unlawfulness
must be apparent.” (citation omitted)).

[13] Under Devereaux, charging an individual with crimi-
nal child abuse based on false information violates the Consti-
tution. Devereaux, 263 F.3d at 1075. Although Devereaux
does not specifically address civil child abuse proceedings,
the right not to be accused based upon deliberately fabricated
evidence is sufficiently obvious, and Devereaux is sufficiently
analogous to the facts here, that government officials are on
notice that deliberately falsifying information during civil
investigations which result in the deprivation of protected lib-
erty or property interests may subject them to § 1983 liability.
As Devereaux stated, while “there is no constitutional due
process right to have child witnesses in a child sexual abuse
investigation interviewed in a particular manner, or to have
the investigation carried out in a particular way,” id, “inten-
tionally fabricating false evidence is quite another” matter, id.
at 1077. Further, because social workers, like prosecutors, are
entitled to absolute immunity for instituting child removal
proceedings, social workers, like prosecutors, must refrain
from deliberately falsifying evidence during investigations
and in sworn testimony or declarations to the court.14 See gen-
14
Our sister circuits have denied qualified immunity to social workers
who removed children from their families based on unreliable evidence in
violation of the due process right of family integrity. See, e.g., Croft v.
Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1127 (3d
Cir. 1997) (denying qualified immunity to a social worker who separated
a child from her parent on the basis of an uncorroborated anonymous tip
19190 COSTANICH v. DSHS
erally Beltran, 514 F.3d at 906. Thus, going forward, reason-
able government officials are on notice that deliberately
falsifying evidence in a child abuse investigation and includ-
ing false evidentiary statements in a supporting declaration
violates constitutional rights where it results in the deprivation
of liberty or property interests, be it in a criminal or civil pro-
ceeding.

[14] However, given the distinctions between criminal
prosecutions and civil foster care proceedings, we cannot say
that this right was clearly established as of 2001, when the
conduct at issue in this case occurred. The special duties of
prosecutors and the unique interests at stake in a criminal
action do not parallel the duties and interests at stake in a civil
child custody proceeding. Washington’s “paramount concern”
for safeguarding and protecting the health and safety of foster
children, for example, places a special duty on DSHS officials
to vigorously investigate allegations of child abuse. See, e.g.,
Wash. Rev. Code §§ 13.34.020, 74.13.010, 74.13.031(3). Fur-
thermore, it is clear that Washington foster care licensees’ and
custodial guardians’ interests do not rise to the level of a
criminal defendant’s interests, which are clear and long-
established. While these factors do not excuse deliberate fab-
rication of evidence, there are sufficient distinctions between
criminal prosecutions and civil foster care proceedings that

and without “objectively reasonable grounds”). They have also denied
qualified immunity to social workers investigating child abuse who fabri-
cated evidence to support a search warrant in violation of the Fourth
Amendment. See, e.g., Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir.
1990) (holding that social workers’ false “sworn representations as to the
existence of probable cause would be perjury . . . and perjury is not objec-
tively reasonable conduct”). Though these cases do not specifically dis-
cuss the due process right not to be subject to child abuse allegations on
the basis of deliberately falsified evidence, they nonetheless reflect the
prevailing principle that social workers who deliberately falsify evidence
in child abuse investigations cannot claim the benefit of qualified immu-
nity.
 COSTANICH v. DSHS 19191
the right had not yet been clearly established in the civil con-
text.

[15] Because we conclude that the right not to be accused
based on deliberately falsified evidence during civil investiga-
tions which could result in the deprivation of protected liberty
or property interests was not clearly established when the con-
duct at issue in this case occurred, we affirm the district
court’s grant of summary judgment on the basis of qualified
immunity.15

C. Remaining Claims Against DSHS Officials

The district court does not specify for which acts the other
DSHS officials were granted qualified immunity. Though
Costanich’s briefs focus principally on Duron, she also
alleges that other DSHS officials, including Payne and Stutz,
knew about and failed to correct the errors in Duron’s investi-
gation and relied on the investigation to go forward with the
termination petition. More specifically, she claims that Payne
directed another CPS employee to make a referral against
Costanich, that Schmidt lied about making a CPS referral, that
McKinney admitted to entering false records regarding
Costanich, and that Bulzomi and Stutz threatened her with
loss of her daughters if she disputed the abuse finding. These
claims are not supported by the record. No evidence supports
the claim that Schmidt lied about a referral. McKinney did not
admit to a falsification of evidence but only to a mistake.

Several of the DSHS employee claims also do not rise to
the level of a constitutional violation. Costanich does not
15
And, because the issue is not properly before us, we decline to decide
whether a Washington state foster parent in fact has a protected liberty
interest in a foster care license. As discussed, DSHS waived the argument
that Costanich does not have a protected liberty interest in her foster care
license. Accordingly, we need not reach this question. See Dodd, 59 F.3d
at 863.
19192 COSTANICH v. DSHS
explain how Payne’s direction to an employee to investigate
and file a referral regarding an incident involving one of the
foster children, or the Bulzomi/Stutz offer, or the fact that
Payne and Stutz knew of the letters by therapists who opposed
removing the foster children violate Costanich’s constitutional
rights. Costanich points to nothing in the record that supports
the conclusion that these officials deliberately fabricated evi-
dence. Some evidence may be read to suggest that someone
at DSHS was improperly motivated to terminate Costanich’s
guardianship of E. and B. For example, in March 2002, a new
social worker, Jackie Timentwa-Wilson, replaced E.’s and
B.’s previous social workers, E. Nelson and S. Hunter, after
both Nelson and Hunter recommended that the girls remain
with Costanich. Nelson testified that she was removed from
the case for not advocating removal, and Hunter testified that
she was removed from the case suddenly and told not to con-
tact the new social worker. It is reasonable, however, that the
DSHS officials believed their actions regarding the termina-
tion proceedings were justified based on Costanich’s undis-
puted use of profanity around the children, even if they had
reason to question some of the conclusions in Duron’s investi-
gation, and Costanich has adduced no evidence to the con-
trary. Costanich thus failed to establish a violation of a clearly
established constitutional right by the other DSHS officials.
Therefore, the district court correctly entered judgment in
their favor on the basis of qualified immunity.

To the extent that Costanich maintains her procedural due
process claims on appeal, they were properly dismissed by the
district court. As the district court concluded, Costanich bene-
fitted from multiple layers of administrative and state court
review and, therefore, cannot allege that she is a victim of
“lack of process.” Costanich also raises on appeal a § 1983
malicious prosecution claim. Because she failed to raise this
issue in the district court, she has waived this claim. See
Dodd, 59 F.3d at 863. Finally, Costanich raises a First
Amendment claim for the first time in her reply brief. She
argues that the DSHS officials violated her First Amendment
 COSTANICH v. DSHS 19193
rights when they threatened the loss of her daughters if she
challenged their finding of abuse. She supports her claim with
a citation to Hartman v. Moore, 547 U.S. 250 (2006), which
sets forth the general proposition that the “First Amendment
prohibits government officials from subjecting an individual
to retaliatory actions . . . for speaking out.” Id. at 256.
Costanich waived this argument by failing to raise it at the
district court, Dodd, 59 F.3d at 863, and in her opening brief
on appeal, Martinez-Serrano, 94 F.3d at 1259.

IV. CONCLUSION

We affirm the district court’s judgment in favor of Duron,
McKinney, and Bulzomi on the basis of absolute immunity
for the revocation of Costanich’s foster care license. We also
affirm the judgment in favor of Schmidt, Payne, Bulzomi,
Stutz, and McKinney on qualified immunity grounds for vari-
ous actions taken by them with regard to Costanich. Finally,
we affirm the judgment in favor of Duron on qualified immu-
nity grounds for her investigation and the declaration in sup-
port of the guardian termination proceedings because,
although genuine issues of material fact exist as to whether
Duron deliberately fabricated evidence, Duron did not deprive
Costanich of a clearly established constitutional right.

AFFIRMED.