Everhart v. CYFD

Appellate Case: 20-2078 Document: 010110631019 Date Filed: 01/12/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 12, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
DONNA EVERHART; HARLEY
EVERHART, individually and as next of
friend for S. E. and S. E., minor children,

Plaintiffs - Appellants,

v. No. 20-2078
(D.C. No. 2:17-CV-01134-RB-CG)
NEW MEXICO CHILDREN YOUTH (D. N.M.)
AND FAMILY SERVICES; DANA
BECKER, employee and supervisor for
Children, Youth and Families Department;
EVGENIA VALDERAZ, in her official
capacity and individual capacity,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before McHUGH, MURPHY, and ROSSMAN, Circuit Judges.
_________________________________

After approximately ten years of legal proceedings, a New Mexico court

awarded custody over Donna and Harley Everhart’s youngest child, S.E. Girl, to an

adoptive family. The proceedings started after the Everharts’ six-year-old son,

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
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S.E. Boy, began acting out sexually in school and reported that his older brother,

H.E. Boy, had shared pornography with him and later raped him. Seven years into the

state court proceedings, the Everharts filed an action in federal court, alleging, in

part, that the Children Youth and Family Department (“CYFD”), CYFD supervisor

Dana Becker, and CYFD case worker Evgenia Valderaz had violated their Fourteenth

Amendment rights to familial association and due process. These defendants moved

for summary judgment; meanwhile, the Everharts moved for issue preclusion on

factual matters allegedly resolved during the state court proceedings. A federal

magistrate judge recommended denying the Motion for Issue Preclusion and granting

the Motion for Summary Judgment. The Everharts filed an objection to the

magistrate judge’s recommendations, which addressed some but not all of the

reasoning advanced by the magistrate judge. The district court adopted the magistrate

judge’s recommendations, denying the Motion for Issue Preclusion and granting the

Motion for Summary Judgment.

For several reasons, we affirm. First, as to the Motion for Issue Preclusion, the

Everharts failed to adequately object to the magistrate judge’s conclusion that there

was not privity between parties in the state and federal proceedings and, even if the

Everharts had raised a proper objection, they could not have demonstrated privity

relative to Ms. Becker and Ms. Valderaz. Second, the Everharts failed to raise any

objection to the grant of summary judgment as to Ms. Valderaz. Third, the Everharts

failed to advance facts capable of supporting a constitutional violation by Ms. Becker

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or CYFD. Fourth, where the Everharts have not advanced facts supporting a

constitutional violation, they cannot proceed on a policy-based claim against CYFD.

I. BACKGROUND

Although there was an overlap between the conclusion of the state court

proceedings and the commencement of the federal court proceedings, we first outline

the state court proceedings in their entirety, including the allegations giving rise to

those proceedings. Then we discuss the federal court proceedings.

A. State Court Proceedings

As of fall 2009, the Everharts had three minor children in their household:

(1) H.E. Boy, age seventeen; (2) S.E. Boy, age six and in first grade; and

(3) S.E. Girl, age one. S.E. Boy began acting out sexually at school, including kissing

and touching female classmates. The school principal met with Ms. Everhart, who

admitted knowing that when the Everharts were not home, H.E. Boy was sharing

pornography, including “incestuous pornography,” with S.E. Boy. ROA Vol. II at 32.

When the school principal suggested the Everharts restrict H.E. Boy’s access to

pornography by taking the computer keyboard away when H.E. Boy was supervising

S.E. Boy, Ms. Everhart responded “why would we do that.” Id.

In spring 2010, S.E. Boy reported to his principal that H.E. Boy “puts his pee-

pee in my butthole.” Id. at 33. Police and CYFD investigated the allegation.

Mr. Everhart attributed S.E. Boy’s allegation to a dispute at home over an iPod and

declined to take steps to prevent H.E. Boy from having direct, unsupervised contact

with S.E. Boy and S.E. Girl. H.E. Boy, however, confessed to police that he had

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“sexually penetrat[ed]” S.E. Boy.1 ROA Vol. I at 275. A sexual assault nurse

performed a sexual assault examination on S.E. Boy, at which Ms. Everhart was

present. During the examination, S.E. Boy engaged in a series of sexual behaviors.

And, according to the nurse, when S.E. Boy began masturbating, Ms. Everhart

“nodded her head with approval” and commented about the size of S.E. Boy’s penis,

stating “isn’t he hung.”2 ROA Vol. II at 36. S.E. Boy also told the sexual assault

nurse that “we have taken pictures of privates, and we print them off upstairs,”

seemingly a reference to the Everharts taking nude pictures of at least S.E. Boy. ROA

Vol. I at 276; see also ROA Vol. II at 38 (S.E. Boy later telling a social worker that

his mother and father took pictures of him naked).

On June 11, 2010, the City of Hobbs Police Department executed a search

warrant at the Everharts’ home, finding Ms. Everhart, H.E. Boy, S.E. Boy, and

S.E. Girl in the home and seizing a computer from the Everharts’ residence. CYFD

removed S.E. Boy and S.E. Girl from the Everharts’ home. CYFD filed an abuse and

neglect petition against the Everharts, alleging the Everharts failed to supervise and

protect their children. The Everharts admitted the allegations in the petition and

1
Subsequent to CYFD commencing the state court proceedings against the
Everharts, H.E. Boy pleaded guilty to criminal charges related to his sexual offenses
against S.E. Boy and was sentenced as a juvenile offender.
2
In the state court proceeding, Ms. Everhart denied that she had this response
and made this statement. Recognizing this denial creates a dispute of fact regarding
Ms. Everhart’s response but not regarding what the nurse reported, we include this
information not for its truth but to outline the evidence before Ms. Becker and CYFD
during the state court proceedings.
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pleaded no contest. The state trial court ordered S.E. Boy and S.E. Girl placed in the

legal and physical custody of CYFD. CYFD initially presented a permanency plan of

reunification and the Everharts were permitted to have supervised visits with S.E.

Boy and S.E. Girl.

A search of the computer seized from the Everharts’ residence, however,

revealed additional disturbing evidence regarding the Everharts’ parental suitability.

Specifically, a forensic analysis of the computer showed the computer contained over

1,000 pornographic images, including several images authorities identified as

suspected child pornography.3 Further, although authorities could not positively

conclude who had accessed the suspected child pornography images, authorities

connected the computer log-in account containing the images to Mr. Everhart, as the

account also contained Mr. Everhart’s work files. In light of this discovery, the state

trial court terminated the Everharts’ supervised visits. Further, a social worker

interviewed S.E. Boy, during which S.E. Boy revealed (1) “he has watched sex on

T.V., and on the computer with his mother and father”; (2) he learned “‘it’s okay for

kids to have sex with adults as long as they (the kids) say yes’”; and (3) he “‘put [his]

private on [S.E. Girl’s] butt’” and wanted to “‘teach his sister about sex.’” ROA Vol.

II at 38, 71–72 (quoting S.E. Boy). S.E. Boy also reiterated his allegation that “his

mother and father took pictures of him naked.” Id. at 38.

3
The images were identified as suspected or possible child pornography and
not as identifiable images of child pornography because the images on the computer
did not match any of the images of child pornography in the New Mexico Center for
Missing and Exploited Children database.
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Accounting for this new information, from July 2011 through December 2013,

CYFD’s permanency plan for S.E. Boy and S.E. Girl fluctuated between reunification

and adoption with the termination of the Everharts’ parental rights. In December

2013, CYFD settled on a permanency plan of adoption with the termination of the

Everharts’ parental rights. In 2015, the state trial court issued an order terminating

the Everharts’ parental rights as to S.E. Girl. The state trial court based its

termination decision on a finding of “presumptive abandonment.” New Mexico ex rel.

Children, Youth & Families Dep’t v. Donna E., 406 P.3d 1033, 1035 (N.M. Ct. App.

2017). On appeal, the New Mexico Court of Appeals vacated the state trial court’s

termination of the Everharts’ parental rights as to S.E. Girl, concluding there was not

adequate record support for the conclusion the Everharts had presumptively

abandoned S.E. Girl. Id. at 1044–47.

In April 2018, the state trial court held a remand hearing regarding what was in

the best interest of S.E. Girl. In August 2018, the state trial court issued an order

concluding that, based on the Everharts’ course of conduct, moral delinquency, and

inability to provide care and protection for S.E. Girl, it was in S.E. Girl’s best interest

to award custody of S.E. Girl to an adoptive family with whom S.E. Girl had bonded.

This time, in December 2019, the New Mexico Court of Appeals affirmed the state

trial court’s order as to S.E. Girl. The Everharts filed a petition for a writ of certiorari

with the Supreme Court of the State of New Mexico, which that court denied on

March 31, 2020, thus bringing the state court proceedings to a close.

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B. Federal Court Proceedings

In November 2017, following the New Mexico Court of Appeals’s initial

vacatur of the termination of their parental rights over S.E. Girl, but before the

remand hearing, the Everharts commenced this federal action. Through a Second

Amended Complaint, the Everharts advanced claims under 42 U.S.C. § 1983 for

deprivation of the Fourteenth Amendment rights to familial association and

procedural due process against (1) CYFD; (2) Ms. Becker, the CYFD supervisor

assigned to the Everharts’ case; and (3) Ms. Valderaz, a CYFD case worker.4 CYFD,

Ms. Becker, and Ms. Valderaz filed an answer to the Everharts’ Second Amended

Complaint.

At the motion practice stage, the Everharts filed a Motion for Issue Preclusion;

meanwhile, CYFD, Ms. Becker, and Ms. Valderaz filed a Motion for Summary

Judgment. The district judge referred the motions to a magistrate judge for proposed

findings of facts and recommended dispositions. The magistrate judge recommended

denying the Everharts’ Motion for Issue Preclusion and granting CYFD’s,

Ms. Becker’s, and Ms. Valderaz’s Motion for Summary Judgment. The Everharts

objected to the magistrate judge’s findings and recommendations, contesting some,

but not all, of the magistrate judge’s reasoning. The district court adopted the

magistrate judge’s findings and recommendations.

4
The Everharts’ initial complaint also named two police detectives, the City of
Hobbs, and the City of Hobbs Police Department as defendants. The Everharts
reached a settlement agreement with these defendants.

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The Everharts filed a notice of appeal from the district court’s order. At the

time of the notice of appeal, the Everharts had reached a settlement with the City of

Hobbs, but the district court had not entered a final judgment as to the City of Hobbs.

This court alerted the parties of a potential jurisdictional defect as a result of the

pending claim against the City of Hobbs. The Everharts returned to district court, and

the district court entered a final order resolving the claims against the City of Hobbs.

The Everharts did not, thereafter, file a new notice of appeal.

II. JURISDICTION

Two jurisdictional matters warrant brief discussion. First, “[a]s a general

matter, the courts of appeal have jurisdiction only to review the ‘final decisions’ of

district courts.” Miller v. Basic Research, LLC, 750 F.3d 1173, 1175 (10th Cir. 2014)

(quoting 28 U.S.C. § 1291). “A final judgment is one that terminates all matters as to

all parties and causes of action.” Utah v. Norton, 396 F.3d 1281, 1286 (10th Cir.

2005) (internal quotation marks omitted). Because the Everharts’ claims against the

City of Hobbs remained pending when the district court entered its order denying

their Motion for Issue Preclusion and granting summary judgment to CYFD,

Ms. Becker, and Ms. Valderaz, the order appealed was not a final judgment.

However, “an otherwise nonfinal decision becomes final and appealable if the

district court adjudicates all remaining claims against all remaining parties before the

appellate court acts to dismiss the appeal . . . for lack of jurisdiction.” Harbert v.

Healthcare Servs. Grp., Inc., 391 F.3d 1140, 1146 (10th Cir. 2004). Thus, upon the

district court entering its order as to the City of Hobbs, its earlier order denying the

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Motion for Issue Preclusion and granting summary judgment became an appealable

order. And our case law holds that an appellant need not file a new notice of appeal

once finality occurs so long as the original, premature appeal remains pending. See

id. (“The district court’s nonfinal decision therefore became final as a result of the

post-appeal proceedings in the district court. We hold that the notice of appeal filed

in this case was effective to confer appellate jurisdiction over the district

court’s . . . Order.”). Therefore, the absence of a new notice of appeal filed following

the final resolution of the Everharts’ action as against the City of Hobbs does not

deprive this court of jurisdiction over the appeal.

Second, CYFD, Ms. Becker, and Ms. Valderaz argue we lack jurisdiction over

the district court’s denial of the Everharts’ Motion for Issue Preclusion. CYFD,

Ms. Becker, and Ms. Valderaz are correct to the extent they assert a ruling denying

issue preclusion does not resolve any claim against any party, no less all claims

against all parties. But what CYFD, Ms. Becker, and Ms. Valderaz disregard is that

once a final judgment enters, an appellate court may “review all stages of the

proceeding that effectively may be reviewed and corrected.” Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949). And we can effectively review the

district court’s denial of the Motion for Issue Preclusion. Assuming the Everharts

were correct that the district court erred in denying their motion, we could reverse the

denial of their motion, vacate the grant of summary judgment, and remand for the

district court to reconsider summary judgment after application of principles of issue

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preclusion. Accordingly, we have appellate jurisdiction to review the district court’s

denial of the Everharts’ Motion for Issue Preclusion

III. DISCUSSION

First, we discuss the requirement that a party advance objections to a

magistrate judge’s findings and recommendations or be bound by the firm waiver

rule. Second, we consider the denial of the Everharts’ Motion for Issue Preclusion.

Third, we analyze the grant of summary judgment to CYFD, Ms. Becker, and

Ms. Valderaz.

A. Firm Waiver Rule

We have “adopted a firm waiver rule under which a party who fails to make a

timely objection to the magistrate judge’s findings and recommendations waives

appellate review of both factual and legal questions.” Morales-Fernandez v. INS, 418

F.3d 1116, 1119 (10th Cir. 2005). “[A] party’s objections to the magistrate judge’s

report and recommendation must be both timely and specific to preserve an issue for

de novo review by the district court or for appellate review.” United States v. One

Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). Thus, where a litigant

objects to some findings or recommendations by a magistrate judge but fails to object

to other findings or recommendations, the litigant waives appellate review as to the

unobjected to findings and recommendations. Port City Props. v. Union Pac. R.R.

Co., 518 F.3d 1186, 1190 n.1 (10th Cir. 2008). Finally, the firm waiver rule applies

even where, despite the absence of a timely objection, a district court undertakes

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review of a finding or recommendation offered by a magistrate judge. Vega v.

Suthers, 195 F.3d 573, 579–80 (10th Cir. 1999).

B. Motion for Issue Preclusion

We review the “legal question of whether issue preclusion bars the relitigation

of [an] issue . . . de novo.” Bell v. Dillard Dep’t Stores, Inc., 85 F.3d 1451, 1453

(10th Cir. 1996); see also Guttman v. Khalsa, 669 F.3d 1101, 1109 (10th Cir. 2012)

(“We review de novo the district court’s application of the doctrine of collateral

estoppel, which is also known as issue preclusion.”). It has long been settled in the

§ 1983 context “that a federal court must give to a state-court judgment the same

preclusive effect as would be given that judgment under the law of the State in which

the judgment was rendered.” Migra v. Warrant City Sch. Dist. Bd. of Educ., 465 U.S.

75, 81 (1984). The Everharts seek to rely upon a New Mexico state court decision

such that New Mexico issue preclusion law governs.

Under New Mexico law, issue preclusion applies to foreclose relitigation if:

(1) the party to be estopped was a party to the prior proceeding, (2) the
cause of action in the case presently before the court is different from
the cause of action in the prior adjudication, (3) the issue was actually
litigated in the prior adjudication, and (4) the issue was necessarily
determined in the prior litigation

Ideal v Burlington Res. Oil & Gas Co. LP, 233 P.3d 362, 365–66 (N.M. 2010)

(quoting Shovelin v. Cent. N.M. Elec. Coop., Inc., 850 P.2d 996, 1000 (N.M. 1993)).5

5
New Mexico Court of Appeals’ decisions, prior to Ideal v. Burlington
Resources Oil & Gas Co. LP, 233 P.3d 362 (N.M. 2010), state the first element
slightly differently and indicate that the New Mexico Supreme Court adopted a more
flexible, “modern” approach that “dispens[ed] with the ‘same parties’ requirement”
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Relative to the first element, “the doctrine of offensive collateral estoppel may be

applied when a plaintiff seeks to foreclose the defendant from litigating an issue the

defendant has previously litigated unsuccessfully regardless of whether plaintiff was

privy to the prior action.” Silva v. State, 745 P.2d 380, 384 (N.M. 1987). However, a

party may use issue preclusion offensively only “when the court deems it

fundamentally fair to the parties.” Cherpelis v. Cherpelis, 914 P.2d 637, 641 (N.M.

Ct. App. 1996). Relative to the fourth element, an issue is “necessarily determined” if

it is resolved through a judgment that has become final. State ex rel. Martinez v.

Kerr-McGee Corp., 898 P.2d 1256, 1260 (N.M. Ct. App. 1995).

The Everharts moved to preclude relitigation on seventy-three items they

contended “[t]he Fifth Judicial District Court and the New Mexico Court of Appeals

in Cause [sic] Number D-506-JQ-2010-15-C ha[d] determined.” ROA Vol. I at 181.

In October 2019, when the Everharts moved for issue preclusion, the Everharts’

appeal of the state trial court’s order awarding custody over S.E. Girl to an adoptive

family pended before the New Mexico Court of Appeals. On March 10, 2020, three

weeks before the Supreme Court of the State of New Mexico denied the Everharts’

by allowing “privity” with a party from an earlier litigation to satisfy the first
element. Reeves v. Wimberly, 755 P.2d 75, 78 (N.M. Ct. App. 1988) (citing Silva v.
State, 745 P.2d 380, 384 (N.M. 1987)). While in Reeves the statement about privity
of parties satisfying the first element is consistent with recent decisions by the New
Mexico Court of Appeals, see e.g., Larsen v. Farmington Mun. Schs., 242 P.3d 493,
496 (N.M. Ct. App. 2010), Ideal is the most recent New Mexico Supreme Court case
we located that announces the elements of issue preclusion. Nonetheless, because the
Everharts have made no effort to satisfy the more flexible privity threshold, we
proceed under the assumption that privity of parties can satisfy the first element.
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petition for a writ of certiorari, the magistrate judge issued her findings and

recommendations. The magistrate judge recommended denying the Everharts’

Motion for Issue Preclusion because (1) the state court action was not final where the

writ of certiorari pended, and (2) the Everharts had not established that Ms. Becker

and Ms. Valderaz were parties to the state action or in privity with CYFD.

The Everharts’ objection to the magistrate judge’s finding contained a

boilerplate assertion that they satisfied the four elements for issue preclusion:

The Plaintiffs under New Mexico Law have demonstrated the four (4.)
elements of Issue Preclusion, (1.) that being the Parties in the current
action, were the same and in privity with the Parties in the current
action; (2.) The subject matter of the two (2.) actions are different;
(3.) the ultimate facts were actually litigated and; (4.) the facts were
determined by the Court.

Id. at 410. And the Everharts contended the ongoing state proceedings did not

deprive the state trial court’s ruling of finality because the ongoing proceedings “only

adresse[d] the issues of termination, and what is in the best interest of the minor

[c]hildren.” Id. But the Everharts neither explained how Ms. Becker and

Ms. Valderaz were in privity with CYFD, nor cited any case law for this proposition

regarding privity. Nor did they offer any support for the proposition that a judgment

could be final during the pendency of an appeal or alert the district court that the

Supreme Court of the State of New Mexico had denied their petition for certiorari.

See id. at 409–10.

The district court adopted the magistrate judge’s recommended denial of the

Motion for Issue Preclusion. The district court faulted the Everharts for not following

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the local rules and for not including record citations and citations to authority in

support of their motion or their objections to the magistrate judge’s findings and

recommendations. The district court next concluded the Everharts failed to

adequately object to the magistrate judge’s conclusion that Ms. Becker and

Ms. Valderaz were not in privity with CYFD. And, based on this deficiency, the

district court determined it was unnecessary to address the merits of the Everharts’

other objections.

For three reasons, we affirm the district court’s denial of the Everharts’

Motion for Issue Preclusion. First, specific to issue preclusion against Ms. Becker

and Ms. Valderaz, the Everharts failed to advance a sufficient and specific objection

to the magistrate judge’s conclusion that these two defendants were not in privity

with CYFD. Accordingly, the firm waiver rule precludes appellate review of the

denial of the Everharts’ Motion for Issue Preclusion as to Ms. Becker and

Ms. Valderaz. Second, on appeal, the Everharts do not address either of the district

court’s bases for denying their Motion for Issue Preclusion—that they did not follow

the local rules and did not adequately object to the magistrate’s reasoning regarding

the lack of privity. This omission on appeal is sufficient to affirm the district court’s

denial of the motion. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)

(“[T]he omission of an issue in an opening brief generally forfeits appellate

consideration of that issue.”). Third, relative to Ms. Becker and Ms. Valderaz in their

individual capacities, even if the Everharts had raised and properly pursued an

objection to the magistrate judge’s conclusion on privity, such an argument could not

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prevail. Ms. Becker and Ms. Valderaz were not parties to the state custody

proceedings. And “privity does not exist where an initial lawsuit is brought against an

employer and a second lawsuit is then brought against an employee acting in his or

her individual capacity.” Deflon v. Sawyers, 137 P.3d 577, 640 (N.M. 2006). For

these three reasons, we affirm the denial of the Everharts’ Motion for Issue

Preclusion.

C. Motion for Summary Judgment

We start by stating the applicable standard of review before turning to the

standard governing the qualified immunity defense advanced by Ms. Becker.6 Then

we analyze whether the Everharts advanced facts capable of supporting a

constitutional violation against CYFD or Ms. Becker and overcoming Ms. Becker’s

qualified immunity defense. Finally, we address the Everharts’ policy-based claim

against CYFD.

1. Standard of Review

We review the district court’s rulings on summary judgment de novo, applying

the same standard as the district court. See Universal Underwriters Ins. Co. v.

Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). Summary judgment is appropriate if

“there is no genuine dispute as to any material fact and the movant is entitled to

6
Ms. Valderaz also advanced a qualified immunity defense. However, as noted
by the district court, the Everharts did not raise any objection to the magistrate
judge’s recommended grant of summary judgment in Ms. Valderaz’s favor. Applying
the firm waiver rule, we affirm the district court’s grant of summary judgment in
favor of Ms. Valderaz in her individual capacity.
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judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

On appeal, we “examine the record and all reasonable inferences that might be drawn

from it in the light most favorable to the non-moving party.” Merrifield v. Bd. of

Cnty. Comm’rs, 654 F.3d 1073, 1077 (10th Cir. 2011) (quotation marks omitted).

2. Qualified Immunity Standard

To overcome a qualified immunity defense, “the onus is on the plaintiff to

demonstrate ‘(1) that the official violated a statutory or constitutional right, and

(2) that the right was clearly established at the time of the challenged conduct.’”

Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 735 (2011)). As the plaintiff must satisfy both prongs of this analysis,

a court may address the prongs in any order. Id. “In order for a constitutional right to

be clearly established, the contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Id. at

1004–05 (internal quotation marks omitted). “A plaintiff may satisfy this standard by

identifying an on-point Supreme Court or published Tenth Circuit decision;

alternatively, the clearly established weight of authority from other courts must have

found the law to be as the plaintiff maintains.” Id. at 1005 (internal quotation marks

omitted). While “the Supreme Court has ‘repeatedly told courts not to define clearly

established law at a high level of generality,’” it has also explained that “‘officials

can still be on notice that their conduct violates established law even in novel factual

circumstances.’” Id. (first quoting al-Kidd, 563 U.S. at 742, then quoting Cortez v.

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McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc)). Ultimately, though, this

court must assess whether “existing precedent [has] placed the statutory or

constitutional question beyond debate.” Id. (quoting al-Kidd, 563 U.S. at 741).

3. Fourteenth Amendment Deprivation of Right to Familial Association

Within the context of the Fourteenth Amendment, one of the “oldest of the

fundamental liberty interests recognized by [the Supreme] Court” is “the interest of

parents in the care, custody, and control of their children.” Troxel v. Granville, 530

U.S. 57, 65 (2000). This “includes the right of parents to ‘establish a home and bring

up children.’” Id. (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). In accord

with this, “[t]he government’s forced separation of parent from child, even for a short

time, represents a serious impingement on a parent’s right to familial association.”

Thomas v. Kaven, 765 F.3d 1183, 1195 (10th Cir. 2014) (internal quotation marks

omitted). But “[r]egardless of the intensity of a familial association claim, our cases

establish that the right is not absolute” and “must be weighed against the state’s

interest in protecting a child’s health and safety in order to determine whether the

state actors unduly burdened that right in a given case.” Id. at 1196 (emphasis added)

(citing Youngberg v. Romeo, 457 U.S. 307, 320–21 (1982)). Thus,

[t]o state a claim for the deprivation of the right of familial association,
[plaintiffs must demonstrate] that (1) defendants intended to deprive
them of their protected relationship with their [child] and that
(2) balancing [their] interest in their protected relationship with [their
child] against the state’s interest in [the child’s] health and safety,
defendants either unduly burdened plaintiffs’ protected relationship or
effected an unwarranted intrusion into that relationship.

Id. (citations omitted).

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Viewing the facts in the light most favorable to the Everharts, the Everharts

have not established a constitutional violation. The record is replete with evidence

that the Everharts’ continued custody over and involvement in the lives of their

children presented grave danger to the physical and mental wellbeing of S.E. Boy and

S.E. Girl. The Everharts displayed a disturbing and continual disinterest in regulating

the sexual proclivities of H.E. Boy toward S.E. Boy, allowing H.E. Boy’s actions to

escalate to the rape of S.E. Boy. Furthermore, the uncovering of possible images of

child pornography from a computer seized from the Everharts’ residence,

Ms. Everhart’s alleged behavior during the sexual assault examination, and

S.E. Boy’s allegations that the Everharts took nude pictures of him and exposed him

to sexually explicit materials provide a strong basis for Ms. Becker’s and CYFD’s

decision to seek the termination of parental rights.7 Overall, given the evidence

available to CYFD and Ms. Becker, the state’s interest in pursuing removal and

termination easily outweighed the Everharts’ interest in maintaining a relationship

with S.E. Boy and S.E. Girl.

However, even if the Everharts could establish a constitutional violation, none

of the cases identified by the Everharts would satisfy the “clearly established”

requirement for overcoming Ms. Becker’s qualified immunity defense. The Everharts

7
While the truth of these allegations may be in dispute, the existence of the
allegations and some evidence supporting the allegations is not. Thus, while it was
ultimately up to the state courts to adjudicate the truth of the allegations and the
Everharts’ parental fitness, the existence of some evidence substantiating these very
serious allegations supports the state’s interest in intervening and the actions taken by
CYFD and Ms. Becker.
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appear to cite four cases in their appellate brief. First, the Everharts cite Thomas.

Although Thomas involved a claim involving the interference with familial

association, it arose within the context of the commitment of a child for medical care

over a parent’s objection. Id. at 1196. The facts of Thomas, quite obviously, have

little relationship to the removal of children from a home in the face of the

allegations against the Everharts. Second, the Everharts cite PJ ex rel. Jensen v.

Wagner, 603 F.3d 1182 (10th Cir. 2010). Jensen, however, involved a child who was

never removed from the parents’ home, and this court held there was no

constitutional violation. Id. at 1199. Accordingly, Jensen was incapable of placing

Ms. Becker on notice of when a state official violates the right of familial

association. Third, the Everharts cite Graves v. Thomas, 450 F.3d 1215 (10th Cir.

2006). Graves is further afield than Jensen as it involved a § 1983 claim alleging a

Fourth Amendment violation based on an officer using excessive speed when

pursuing a fleeing suspect. Id. at 1217. Fourth, and finally, the Everharts cite Malik v.

Arapahoe County & Social Services, 191 F.3d 1306 (10th Cir. 1999). Although

mildly on point, Malik did not rest on facts sufficiently akin to those of this case so

as to satisfy the “clearly established” prong. To be sure, Malik involved a holding

that a state official violated a parent’s right to familial association. Id. at 1315–16.

But Malik arose from a state official making misrepresentations and omitting facts

when obtaining a court order removing the child from the parental home. Id. at 1316.

The Everharts do not point to any record evidence that Ms. Becker made intentional

misrepresentations during the state court proceedings. Accordingly, where none of

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the cases cited by the Everharts involve facts sufficiently similar to the facts of this

case and Ms. Becker’s conduct was not so obviously unconstitutional so as to place

its legality beyond debate, the Everharts also fail to sustain their burden under the

“clearly established” prong of the qualified immunity analysis. Therefore, we affirm

the district court’s grant of summary judgment on the Everharts’ familial association

claim.

4. Fourteenth Amendment Procedural Due Process

“An expectation of receiving process is not, without more, a liberty interest

protected by the Due Process Clause.” Elliott v. Martinez, 675 F.3d 1241, 1245 (10th

Cir. 2012) (quoting Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983)). “Process is

not an end in itself, . . . [i]ts constitutional purpose is to protect a substantive interest

to which the individual has a legitimate claim of entitlement.” Id. (quoting Olim, 461

U.S. at 250). “The core of due process is the right to notice and a meaningful

opportunity to be heard.” Id. (quoting LaChance v. Erickson, 522 U.S. 262, 266

(1998)). It is also clearly established that “a parent has a liberty interest in familial

association and privacy that cannot be violated without adequate pre-deprivation

procedures.” Malik, 191 F.3d at 1315.

For two reasons, the Everharts have not advanced evidence capable of

supporting a constitutional violation. First, the record makes clear that the New

Mexico courts provided them more than adequate notice and an opportunity to be

heard. The initial proceeding solidifying the removal of S.E. Boy and S.E. Girl

occurred through an abuse and neglect petition to which the Everharts admitted the

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facts and pleaded no contest. The state trial court held a plethora of hearings during

the course of the proceedings, including eleven hearings over the last three years of

the state proceedings. Further, the Everharts received the process of two appeals to

the New Mexico Court of Appeals and the opportunity to petition the Supreme Court

for the State of New Mexico for a writ of certiorari. Second, to the extent the

Everharts hinge their claim on CYFD and Ms. Becker needing to work with them on

a reunification plan, the Everharts cite no case law placing such a due process

requirement on a state agency or an individual supervisor within the agency. See Fed.

R. App. P. 28(a)(8)(A) (requiring “citations to the authorities” that support an

appellant’s contentions). Nor do we hold one exists where, under the facts of this

case as discussed relative to the familial association claim, the state’s interests in

protecting the welfare of minor children easily outweighed the Everharts’ familial

association interest. Accordingly, we affirm the district court’s grant of summary

judgment on the Everharts’ due process claim.

5. Policy-Based Claim against CYFD

In addition to naming CYFD as a defendant in the familial association and due

process claims, the Everharts contend in their opening brief to this court that CYFD

has adopted an unconstitutional policy that resulted in the removal of S.E. Boy and

S.E. Girl, as well as the continued impingement of their legal custody over these two

children. As an initial matter, we question whether the Everharts adequately alleged a

policy-based claim where the word “policy” does not appear anywhere in their

Second Amended Complaint. But, assuming the Everharts properly alleged a policy-

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based claim, to advance a § 1983 claim against a governmental entity based on the

entity’s policy, a plaintiff must prove (1) a governmental employee “committed a

constitutional violation,” and (2) the governmental “policy or custom was the moving

force behind the constitutional deprivation,” Myers v. Okla. Cnty. Bd. of Cnty.

Comm’rs, 151 F.3d 1313, 1316 (10th Cir. 1998). As a result of the first requirement,

a governmental entity “cannot be held liable under section 1983 for the acts of an

employee if . . . [the] employee committed no constitutional violation.” Id. (citing

City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)).

Based on our earlier conclusions that the Everharts failed to advance evidence

capable of supporting the proposition that Ms. Becker violated their constitutional

rights, the policy-based claim against CYFD necessarily fails. Accordingly, we

affirm the district court’s grant of summary judgment in favor of CYFD on any

policy-based claim raised by the Everharts.

IV. CONCLUSION

We AFFIRM the district court’s denial of the Everharts’ Motion for Issue

Preclusion and its grant of summary judgment in favor of CYFD, Ms. Becker, and

Ms. Valderaz.

Entered for the Court

Carolyn B. McHugh
Circuit Judge

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