In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2701
M ARK S ILIVEN, et al.,
Plaintiffs-Appellants,
v.
INDIANA D EPARTMENT OF C HILD S ERVICES, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cv-1192-WTL-DML—William T. Lawrence, Judge.
A RGUED JANUARY 21, 2011—D ECIDED M ARCH 16, 2011
Before F LAUM, M ANION, and E VANS, Circuit Judges.
F LAUM , Circuit Judge. In January 2008, Teresa Siliven
discovered bruises on her then-two-year-old son C.S.’s
arm a few hours after picking him up from daycare at
the home of Ashley Woods. Teresa’s husband Mark told
her that he did not know how C.S. had gotten the
bruises. The Silivens filed a child abuse report with the
police. The case was referred to the Indiana Department
of Child Services (“DCS”), and assigned to case manager
2 No. 10-2701
Amber Luedike. Towards the end of an eight-day inves-
tigation into both Woods and the Silivens, Luedike dis-
covered a DCS file indicating that Mark had been
accused of child abuse by his then-fifteen-year-old step-
daughter in 2003. The day after Luedike discovered the
report, she and Terry Suttle, the director of the Wayne
County DCS, decided to remove C.S. from the Siliven
home. They did not obtain a court order as it was
Friday afternoon, and they did not believe there was
adequate time to do so. Instead of putting C.S. in foster
care, Luedike and Suttle ultimately arranged to have
Teresa take C.S. to his grandmother’s house in Ohio. A
detention hearing was held the following Monday, after
which the court concluded that no probable cause
existed at that time to believe that C.S.’s physical
health was seriously endangered. The Silivens were
permitted to take C.S. home. Soon thereafter, the investi-
gation was closed.
The Silivens filed suit against Luedike, Suttle, and the
Indiana DCS, alleging constitutional and state law viola-
tions. The district court concluded that Suttle and
Luedike (the only defendants at issue on appeal) were
entitled to summary judgment on the federal claims on
qualified immunity grounds, finding that the constitu-
tional rights allegedly violated were not clearly estab-
lished in January 2008. For the following reasons, we
affirm the judgment of the district court.
I. Background
The Silivens began taking their son C.S. to a daycare
run by Ashley Woods in early 2007. By January 2008,
No. 10-2701 3
Woods and her husband had begun having some
difficulty with C.S., and C.S. would cry when Teresa
dropped him off in the morning. However, the Silivens
had not seriously considered finding another daycare.
When Teresa picked up C.S. from daycare on January 16,
2008, Woods told her that C.S. had acted up in the after-
noon and had to be put in “time out.” While Teresa was
undressing C.S. that night she noticed bruises on his
arm. C.S. said that the bruises did not hurt, and that he
did not know how he had gotten them. The Silivens took
C.S. to the Richmond Police Department (“RPD”)
that night and filed a child abuse report.
The report of abuse was referred to the DCS. On
January 18, 2008, DCS case manager Luedike visited
the Siliven home. At the time, Mark was at home with
C.S. Mark told Luedike that he was not currently
working due to a disability, and that he would be caring
for C.S. at home until the matter was settled. Mark ex-
plained the incident to Luedike, who, after observing C.S.,
noted that the child appeared happy and healthy. Later
that day, Luedike called Teresa, who also explained
the incident. Luedike asked Teresa to take C.S. to the
hospital to have the bruises examined. That evening,
the Silivens took C.S. to the emergency room at Reid
Hospital.
Luedike obtained a copy of the emergency room
doctor’s medical report on January 23. The report
did not reach any conclusion as to the cause of the
bruises. Also on that day, Luedike e-mailed photo-
graphs of C.S.’s bruises taken by the police and the Reid
4 No. 10-2701
Hospital medical report to Dr. Toni Laskey at the child
abuse clinic at Riley Hospital in Indianapolis. The fol-
lowing day, Dr. Laskey responded, opining that the
bruises were consistent with an adult forcibly grabbing
C.S.’s arm.
Luedike and the police officer assigned to the
case, Detective Michael Britt, interviewed Woods on
January 23. Woods told them that she did not grab
C.S.’s arm, and did not know how he had gotten the
bruises. Woods had no criminal history or complaints
against her previously. During the interview, Woods
provided Luedike with the names and phone numbers
of the parents of other children in her daycare. On
January 25, Luedike spoke with one of those
parents, who stated that Woods took good care of her
child and that she had never had any problems with
Woods in the nine years that she had known her.
On January 24, Luedike obtained a copy of a 2003
DCS file describing a “substantiated” report of child
abuse involving Mark and his then-fifteen-year-old step-
daughter. The DCS uses the term “substantiated” in
reference to a child abuse report to mean that the investi-
gation uncovered facts that “provide a preponderance
of evidence that child abuse . . . has occurred.” Ind. Code
§ 31-9-2-123. That file contained pictures showing sig-
nificant bruising to the girl’s face, neck, and back.
On January 24 or 25, Luedike contacted Teresa at work
to ask whether she and Mark would be willing to
take polygraph tests. Teresa agreed to submit to a poly-
graph, and said she would ask Mark if he would as
No. 10-2701 5
well. Later that day, Mark left a message for Luedike
in which he agreed to a polygraph, on the condition
that Woods and her husband also be tested. According
to Luedike, in the message, Mark sounded “very angry
and almost threatening.”
That afternoon, Luedike met with Suttle, Helen Shultz
(Luedike’s supervisor), and Aaron Lawson (the staff
attorney for the Wayne County DCS) to discuss her
investigation. Luedike explained that C.S. had (likely)
been injured by an adult and that, because the parents
had not been ruled out as having caused the injuries, she
could not say that C.S. was safe at home. Luedike recom-
mended that C.S. be removed from the home, and the
others agreed. Suttle determined that there was not
enough time to obtain a court order before the weekend,
and authorized Luedike to remove C.S. from the home
pursuant to an emergency detention.
Luedike contacted the Wayne County Sheriff’s Depart-
ment, and three or four Wayne County sheriffs’ deputies
accompanied her to the Silivens’ home. Mark was
home with C.S. Luedike told Mark that DCS was going
to take C.S. into protective custody. Mark refused to
let Luedike into the home or to allow her to take C.S.
He called Teresa, who was on her way home from
work. Eventually, Teresa spoke with Suttle, who agreed
to allow Teresa to take C.S. to his grandmother’s house
in Ohio in lieu of putting C.S. in foster care. Luedike
wrote up a safety plan detailing the arrangement, which
the Silivens signed. Teresa and C.S. then drove to
Ohio, where they stayed for the weekend.
6 No. 10-2701
On Monday, January 28, 2008, a detention hearing was
held, after which the judge concluded that no probable
cause existed at that time to believe that C.S.’s physical
health was seriously endangered, as the applicable
statute requires. See Ind. Code §§ 31-34-1-2(a), 31-34-2-
3(a)(1) (authorizing caseworkers to take children into
custody where there is probable cause to believe the
child’s physical or mental condition will be seriously
impaired or seriously endangered if the child is not
immediately taken into custody). Therefore, the Silivens
were permitted to take C.S. home with them. The investi-
gation was closed on March 18, 2008, and no charges
were brought.
The Silivens filed suit against Luedike, Suttle, and the
Indiana DCS in Indiana state court, alleging constitu-
tional and state law violations. After defendants
removed the action to federal court, the district court
granted summary judgment in favor of defendants as
to the federal claims. The court also denied the Silivens’
cross-motion for summary judgment. With respect to the
Indiana DCS, the court granted summary judgment on
the ground that the DCS is not a “person” as defined by
§ 1983, such that the Silivens’ claims failed as a matter
of law. The Silivens do not appeal that ruling. The
court found that Suttle and Luedike were entitled to
summary judgment on the federal claims on qualified
immunity grounds. The district court elected to bypass
the first prong of the two-part qualified immunity
analysis set forth in Saucier v. Katz, 533 U.S. 194 (2001),
as is permissible under Pearson v. Callahan, 555 U.S. 223
(2009). Therefore, the court did not decide whether de-
No. 10-2701 7
fendants’ conduct violated the Silivens’ constitutional
rights. Instead, the court went directly to the second
prong and concluded that the constitutional rights al-
legedly violated were not “clearly established” in
January 2008. Finally, the district court declined to
exercise supplemental jurisdiction over the Silivens’
remaining state law claims, which it remanded to state
court. Subsequently, the Silivens filed a motion to alter
or amend judgment; the district court denied that mo-
tion. This timely appeal followed.
II. Discussion
We review a district court’s decision on cross-motions
for summary judgment de novo, construing all inferences
in favor of the party against whom the motion under
consideration is made. Tegtmeier v. Midwest Operating
Eng’rs Pension Trust Fund, 390 F.3d 1040, 1045 (7th Cir.
2004). Summary judgment is proper when there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255
(1986). We similarly review a district court’s qualified
immunity determination de novo. Sparing v. Village of
Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001).
The doctrine of qualified immunity insulates govern-
ment actors from liability for civil damages when their
conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have been aware. Pearson v. Callahan, 555 U.S.
223, 129 S.Ct. 808, 815 (2009). In other words, the
8 No. 10-2701
doctrine protects public officials “who act in ways they
reasonably believe to be lawful,” and thus leaves “ample
room for mistaken judgments.” Wheeler v. Lawson, 539
F.3d 629, 639 (7th Cir. 2008) (citations omitted).
Qualified immunity claims present two questions:
(1) whether the plaintiff’s allegations make out a dep-
rivation of a constitutional right, and (2) whether the
right at issue was clearly established at the time of the
defendant’s alleged misconduct. Pearson, 129 S.Ct. at 815.
Courts are free “to exercise their sound discretion in
deciding which of the two prongs of the qualified im-
munity analysis should be addressed first in light of
the circumstances in the particular case at hand.” Id. at
818. Unlike the district court, we begin with the first
prong, which we find to be dispositive as to each of the
Silivens’ constitutional claims. See Williams v. Fleming,
597 F.3d 820, 823 (7th Cir.2010) (we may affirm the judg-
ment of the district court on any ground supported in
the record).
A. Fourth Amendment Claim
The Silivens first claim that defendants violated C.S.’s
Fourth Amendment right to be free from unreasonable
seizures when they compelled Teresa to remove the boy
from his home. With respect to Fourth Amendment
claims asserted “[i]n the context of removing a child
from his home and family,” we have held that “a seizure
is reasonable if it is pursuant to a court order, if it is
supported by probable cause, or if it is justified by
exigent circumstances, meaning that state officers
No. 10-2701 9
‘have reason to believe that life or limb is in immediate
jeopardy.’ ” Brokaw v. Mercer County, 235 F.3d 1000, 1010
(7th Cir. 2000) (citations omitted).
As an initial matter, we must address whether C.S.
was seized for purposes of the Fourth Amendment.
Generally, a person has been seized for Fourth Amend-
ment purposes “only if, in view of all of the circum-
stances surrounding the incident, a reasonable person
would have believed that he was not free to leave.” Bentz
v. City of Kendallville, 577 F.3d 776, 779 (7th Cir. 2009)
(citations omitted). “Determining whether a seizure
has occurred is a highly fact-bound inquiry.” United States
v. Tyler, 512 F.3d 405, 410 (7th Cir. 2008). Among the
relevant factors to be considered is “coercive conduct on
the part of the police that indicates cooperation is re-
quired.” Id.
Defendants contend that no seizure took place because
C.S. was not placed in foster care. Rather, defendants
permitted his mother to take him to his grandmother’s
house and to remain there with him. That C.S. was
never out of his mother’s company certainly under-
mines the Fourth Amendment claim. That said, there is
evidence indicating that defendants coerced Teresa
into taking C.S. to Ohio by threatening to place him
in foster care if she did not cooperate. In the context
of Fourth Amendment seizures involving official
coercion, we have noted that “[a] threat becomes more
coercive as the cost of non-compliance increases relative
to the cost of compliance.” Kernats v. O’Sullivan, 35
F.3d 1171, 1179 (7th Cir. 1994). Here, it is difficult to
10 No. 10-2701
overstate the cost of non-compliance—losing custody of
one’s child, even temporarily. But we need not decide
whether C.S. was seized within the meaning of the
Fourth Amendment. During the January 28 detention
hearing, both the DCS and the presiding judge assumed
that the events of January 25 constituted an emergency
detention. Specifically, Luedike stated at the hearing
that C.S. was “detained Friday, January 2[5]th, approxi-
mately five p.m.,” and the judge noted that the hearing
was being held within 48 hours of the removal as
required by Indiana law. We too will proceed as if
there was an emergency detention, which constitutes a
seizure for purposes of the Fourth Amendment.
Assuming there was a seizure, the question is whether
defendants acted reasonably. Because defendants acted
without a court order, the removal of C.S. can be con-
sidered reasonable only if defendants had probable
cause or if exigent circumstances existed.1 We conclude
1
The Silivens argue that, after our decision in Michael C. v.
Gresbach, 526 F.3d 1008 (7th Cir. 2008), either a court order or
exigent circumstances are required, and that probable cause
is insufficient. We disagree. In Michael C., we stated that “[t]he
requirement that a child welfare worker obtain the equivalent
of a warrant before conducting a search (absent exigent cir-
cumstances) can effectively protect children, without having
to excuse workers from obtaining advance judicial approval
of searches and seizures. . . . Because Gresbach conducted a
search of each child on private property without consent, a
warrant or probable cause, or exigent circumstances, Ian and
(continued...)
No. 10-2701 11
that probable cause existed to remove C.S. from Mark’s
custody, such that there was no Fourth Amendment
violation.
The Indiana Code provides that a “child may be
taken into custody by a . . . caseworker acting with proba-
ble cause to believe the child is a child in need of
services if . . . it appears that the child’s physical or
mental condition will be seriously impaired or seriously
endangered if the child is not immediately taken into
custody.” Ind. Code § 31-34-2-3(a)(1). A child is con-
sidered to be “in need of services” if “the child’s
physical or mental health is seriously endangered due
to injury by the act or omission of the child’s parent,
guardian, or custodian.” Id. § 31-34-1-2(a). The pertinent
inquiry, then, is whether defendants had probable
cause to believe that C.S.’s physical health would be
seriously endangered if he was not immediately
removed from his father’s custody.
The probable cause analysis is an objective one. See
Whren v. United States, 517 U.S. 806, 813 (1996). Our focus
is on the facts and circumstances known to defendants
at the time they decided to remove C.S., and whether a
1
(...continued)
Alexis’s Fourth Amendment rights to be free from unrea-
sonable searches were violated.” 526 F.3d at 1016. While we
omitted mention of probable cause in the first quoted sen-
tence, we included it in the second. We cannot agree that
the initial omission implicitly overturned part of the holding
in Brokaw.
12 No. 10-2701
prudent caseworker (meaning one of reasonable cau-
tion) could have believed that C.S. faced an immediate
threat of abuse based on those facts. Wagner v. Washington
County, 493 F.3d 833, 836 (7th Cir. 2007) (describing
probable cause in the context of an arrest). The defen-
dants’ “subjective beliefs are largely irrelevant to the
probable cause inquiry.” United States v. Garcia-Garcia,
2011 WL 206153, at *3 (7th Cir. Jan. 25, 2011).
Here, defendants knew that there was physical
evidence of abuse (corroborated by Dr. Laskey’s opinion),
that Mark had access to C.S. during the timeframe in
which the injuries might have occurred, and that there
was a prior substantiated report of child abuse against
Mark. We conclude that those facts were sufficient to
warrant a prudent caseworker in believing that C.S. was
in danger. As the Silivens note, the evidence was far
from conclusive as to how C.S. was injured, and
whether Mark was involved. But, while probable cause
requires more than bare suspicion, it does not demand
probability, or “even a showing that the officer’s belief
is more likely true than false.” Woods v. City of Chicago,
234 F.3d 979, 996 (7th Cir. 2000) (internal citations omit-
ted). Moreover, probable cause “need not be based on
evidence sufficient to support a conviction.” Id. (citation
omitted).
We note that Luedike stated in her deposition that
she did not believe C.S. was in imminent danger. Rather,
she simply “couldn’t say that he was completely safe.”
Because probable cause is judged by an objective stand-
ard, Luedike’s “subjective belief as to the legal basis
No. 10-2701 13
for [the detention] is irrelevant.” Potts v. City of Lafayette,
Ind., 121 F.3d 1106, 1113 (7th Cir. 1997). A reasonable
caseworker in Luedike’s position could have concluded
that C.S. was in imminent danger. Therefore, we con-
clude that defendants’ actions were objectively rea-
sonable, and did not violate the Fourth Amendment.
Our determination of reasonableness is influenced, in
large part, by the fact that C.S. remained with his mother
at all relevant times. Reasonableness under the Fourth
Amendment is “measured in light of the totality of the
circumstances and determined by balancing the degree
to which a challenged action intrudes on an individual’s
privacy and the degree to which the action promotes
a legitimate government interest.” Green v. Butler, 420
F.3d 689, 694 (7th Cir. 2005); see also Bell v. Wolfish, 441
U.S. 520, 559 (1979) (in conducting the Fourth Amend-
ment balancing test, “[c]ourts must consider the scope
of the particular intrusion . . .”). Here, defendants opted
for a less intrusive interference with C.S.’s rights by
permitting him to remain with his mother, instead
of taking him into state custody. We do not intend to
characterize the degree of interference as minimal, far
from it. But we believe the state’s legitimate interest
in protecting children warranted that lesser degree of in-
trusion in this case.
B. Substantive Due Process Claim
The Silivens also present a substantive due process
claim. As we noted in Brokaw, “[t]he Supreme Court has
long recognized as a component of substantive due
14 No. 10-2701
process the right to familial relations.” 235 F.3d at 1018.
That fundamental right encompasses “the right of a
man and woman to marry, and to bear and raise their
children,” as well as “the right of a child to be raised and
nurtured by his parents.” Doe v. Heck, 327 F.3d 492, 517-18
(7th Cir. 2003) (citations omitted). The constitutional
right to familial integrity is not absolute; rather, it must
be balanced against the state’s interest in protecting
children from abuse. Brokaw, 235 F.3d at 1019. To
maintain the appropriate balance, we require that case-
workers have “evidence to support a ‘reasonable sus-
picion’ of past or imminent abuse” before they may take
a child into protective custody. Terry v. Richardson, 346
F.3d 781, 787 (7th Cir. 2003). “A reasonable suspicion
requires more than a hunch but less than probable
cause.” United States v. Oglesby, 597 F.3d 891, 894 (7th Cir.
2010) (citations and internal quotation marks omitted).
Here, defendants’ suspicion of past and possible im-
minent abuse by Mark was based on definite and
articulable evidence—namely, Dr. Laskey’s opinion that
C.S.’s injuries were caused by an adult using enough
force to injure him, and the record of a past accusation
of abuse against Mark. Above, we concluded that that
evidence was sufficient to establish probable cause. It
follows that it must also be sufficient to satisfy the
less demanding reasonable suspicion standard. There-
fore, we can find no substantive due process violation.
Again, our analysis is influenced by the fact that C.S.
remained with his mother. In light of the facts known
to defendants, the use of state action to protect C.S.
No. 10-2701 15
from his father was reasonable. Therefore, defendants’
decision to temporarily remove C.S. from his father’s
custody was warranted by the state’s interest in
protecting children from abuse. Whether the state’s
interest would have justified a greater intrusion on the
Silivens’ right to familial integrity, such as placing C.S.
in foster care, is far from clear. But we need not
take that up at this time. Here, it was reasonable for
defendants to suspect possible abuse by Mark, and de-
fendants’ intrusion on the Silivens’ constitutional right
to familial integrity was no greater than was necessary
to address that danger. See Wallis v. Spencer, 202 F.3d
1126, 1140-41 (9th Cir. 2000) (in analyzing due process
claim arising out of child abuse investigation, noting
that reasonableness of “intrusion on a child’s protected
privacy and security interests” depends on whether
intrusion is “sufficiently . . . ‘circumscribed by the exigency
that justified’ the City’s intrusion into the children’s
lives”) (citation omitted).
C. Procedural Due Process Claim
Finally, the Silivens allege a procedural due process
claim, asserting that the removal of C.S. from the home
without a hearing violated the due process clause of the
Fourteenth Amendment. In this circuit, due process
requires, at a minimum, that governmental officials “not
remove a child from his home without an investigation
and pre-deprivation hearing resulting in a court order of
removal, absent exigent circumstances.” Brokaw, 235
F.3d at 1020.
16 No. 10-2701
In the context of the Fourth Amendment, the question
whether exigent circumstances justified a warrantless
search is an objective inquiry. See Brigham City, Utah v.
Stuart, 547 U.S. 398 (2006); United States v. Richardson,
208 F.3d 626, 629 (7th Cir. 2000). With respect to
warrantless searches, we have held that “the govern-
ment must establish that the circumstances as they ap-
peared at the moment of entry would lead a reasonable,
experienced law enforcement officer to believe that some-
one inside the house, apartment, or hotel room re-
quired immediate assistance.” Richardson, 208 F.3d at
629 (citation omitted). In the context of removing a
child from his home, defendants must show that, in
light of the facts and circumstances known to defendants
at the time of the removal decision, reasonable, experi-
enced caseworkers would have believed that the child
was in immediate physical danger in the home. As dis-
cussed above, we find that a reasonable caseworker
would have drawn that conclusion in this case based on
the physical evidence of abuse, combined with the prior
accusation of abuse against Mark. Moreover, the scope
of the removal was limited to the exigency that justified
it, in that C.S. was removed from his father’s custody only.
III. Conclusion
We are not unsympathetic to the Silivens. One can
only imagine their frustration when, after reporting
potential abuse of their child by a third party, the investi-
gation came to focus on them. However, for the reasons
stated above, we conclude that the particular inter-
No. 10-2701 17
ference with the Silivens’ constitutional rights that oc-
curred here was reasonable in view of the facts known
by defendants and the state’s strong interest in pro-
tecting children from abuse. For the foregoing reasons,
we A FFIRM .
3-16-11