dissenting.
From the pleadings and from the decision of the Tennessee courts in the underlying habeas corpus case, we know that Travis Rippy was unlawfully detained by the Tennessee Department of Human Services, in violation of his and his parents’ constitutional rights to due process. Under Tennessee law, an adjudicatory hearing should have been held within thirty days of the time that he was brought into the custody of the department. Instead, he was detained for more than eighteen months, and released only when his parents obtained a writ of habeas corpus. The question that remains is: Whose fault was this state of affairs, and what kind of immunity do any possible perpetrators have?
I agree with the majority that there is no basis for liability for any of the actions undertaken by the courts and the social workers, with one possible exception. I part company from the court on the question of whether there is a possible claim based on the actions of the social workers in detaining Travis for eighteen months without a hearing. It is the state’s position, endorsed by the court’s opinion, that the social workers either have no liability or have qualified or absolute immunity.
The plaintiffs’ claims were dismissed on a Rule 12(b)(6) motion because the district court held that the state officials were either absolutely or qualifiedly immune under any conceivable set of facts arising from this complaint. I disagree, with regard to social workers Bryant and Bartlett. Based on the complaint, plaintiffs could conceivably prove that the social workers deliberately violated the parents’ constitutional rights by preventing them from getting a hearing to try to recover the child who had been taken from them. This detention of their child without a hearing was, as the Tennessee courts have already found, in violation of the parents’ constitutional rights to due process.
Under these circumstances, I would permit the case to go forward, with at least enough discovery so that a court could ascertain whether genuine issues of material fact remain — an inquiry that is appropriate at the summary judgment stage, but not at the stage of a dismissal under Rule 12(b)(6). I therefore respectfully dissent.
To defeat qualified immunity, a plaintiff must show that the defendant violated clearly established rights of which any reasonable official would be aware.
The facts might be sufficient to defeat qualified immunity, because a reasonable official would know that it violates constitutional rights to prevent for 18 months a hearing that should have happened in 30 days.
On this record, the Rippys might be able to prove that social workers Bryant and Bartlett knew that the parents had a right to an adjudicatory hearing. The Rippys might also be able to prove that Bryant and Bartlett actively (and successfully) sought to prevent such a hearing, by various dilatory and obfuscatory tactics. These may have included preparing draft plans of care that imposed on the parents onerous obligations that they would refuse, such as admitting falsely to being sex offenders. While the court is correct that actually filing in court such a draft plan would be protected by absolute immunity, the administrative action of using such drafts as a tactic to defeat the parents’ right to a hearing would not be so protect*429ed. Willful failure to prepare a reasonable plan of care may be one of the things that prevented the parents from getting a hearing for over a year and a half.
This would meet the standard for violation of rights.
The central question is therefore whether there exists any set of facts that, if proven by the plaintiff, would state a claim against the defendants. The answer is indubitably yes.
I note, as example, that the United States District Court for the Eastern District of Pennsylvania has recently held that attorneys appointed by the State Department, as well as the federal employees who hired and directed them, do not necessarily have either qualified or absolute immunity when they interfere with a father’s right to a hearing on custody of his child. Egervary v. Young, 159 F.Supp.2d 132 (E.D.Pa.2001).
In Egervary, the defendants were federal employees in the State Department, and the attorneys appointed by the federal employees. Id. at 159 F.Supp.2d at 142. The attorneys, with support from the federal defendants, obtained an order from a federal district judge ordering the immediate removal of a child from his father in Pennsylvania and his return to Hungary without a hearing. Id. 159 F.Supp.2d at 143. There was considerable evidence that the federal employees and the attorneys caused the judge in the case to fail to schedule a pre- or post-deprivation hearing. Ibid. Judge Thomas O’Neill found that these actions would, if proven, constitute a violation of a clearly established constitutional right, and that summary judgment in favor of defendants was inappropriate. Id. 159 F.Supp.2d at 184.
In order to dispose of this case on a 12(b)(6) motion, an even higher standard must be met — that plaintiffs can prove no set of facts that would support a claim. As Egervary shows, such a set of facts could be proven. If the defendant social workers did in fact intentionally interfere with and prevent a constitutionally required pre-deprivation hearing, they would be liable. Rule 12(b)(6) disposition of this case is therefore inappropriate.
In this case, the department obtained physical custody of Travis Rippy on February 9, 1996. It is undisputed that, pursuant to Tennessee Rule of Juvenile Procedure 17, when a child has been taken away from his parents, there must be an adjudicatory hearing within thirty days of the date the child is taken into custody. The complaint specifically alleges (what is also reasonable to assume) that Bryant and Bartlett were aware of this rule and its mandatory nature. The complaint also alleges, which seems more subject to dispute, that the social workers “had the authority and ability to insist on the required adjudicatory hearing” and “failed to schedule the constitutionally required hearings.” However, under Rule 12(b)(6) the issue is not what we believe as to the probable factual outcome. Instead, a motion to dismiss under Rule 12(b)(6) should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Based on the allegations in the complaint, it seems possible that the parents could prove that the social workers deliberately acted to prevent the holding of an adjudicatory hearing, despite well knowing that such a hearing was constitutionally required. Further, it is possible that plaintiffs could prove that the social workers deliberately attempted to create a plan of care that included false admissions of misconduct and that this was done “by *430holding ... Travis hostage.” (Amended Complaint, ¶ 19)
Our recent en banc holding in Holloway v. Brush clearly indicates that not every action taken by a social worker that has some connection to court proceedings is cloaked with absolute prosecutorial immunity. 220 F.3d 767 (6th Cir.2000). At the 12(b)(6) stage, we must take it as possible that the ultimate facts will show that the defendant social workers knew that the parents were constitutionally entitled to absolute or an adjudicatory hearing, and took steps to impede the holding of such a hearing. In my opinion, such actions would not be entitled to absolute or qualified immunity, under our holding in Holloway. Id. at 773-80.
As Egervary also shows, actions much closer to the courtroom door than those in our case have been denied qualified and absolute immunity. See Egervary, 159 F.Supp.2d at 184 (denying claim that representations by a federal agent in an ex parte hearing before a judge are protected by immunity).
Of course, it may well be that on summary judgment, or on full trial, such facts cannot be supported. But at the Rule 12(b)(6) stage, we are not free to make such a judgment, and I therefore respectfully dissent.