UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-11090
_____________________
CHARLES KISER, JR., and
CODY KISER,
Plaintiffs-Appellants,
versus
PAM GARRETT, ET AL.,
Defendants,
PAM GARRETT, ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
October 19, 1995
Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This action arises out of a child being temporarily removed
from his home during an investigation of possible child abuse; at
issue is a summary judgment dismissing substantive and procedural
due process claims, springing from a claimed liberty interest in
living peaceably in a family, against several members of the Texas
Department of Human Services (DHS).1 Because the claimed
1
The appellees are: case workers Pam Garrett and Teri Green,
DHS supervisor Nora Stinson, DHS investigator Arthur Bussey, and
DHS Director of Child Protective Services Otis Dalton. In
September 1993, the child protective services functions of DHS were
constitutional rights were not clearly established at the time in
issue, the appellees are shielded by qualified immunity.
Therefore, we AFFIRM.
I.
Before 7:00 a.m. on November 14, 1991, Charles Kiser, Jr.,
(Kiser) took his ten-week-old son, Cody, to the child's regular
sitter, Esperanza Bravo, who operated a DHS registered day-care
facility; Cody had been in day-care there for about a month.2
Later that morning, at approximately 10:45, Kiser picked up Cody
from the Bravo home for a scheduled medical appointment, arriving
at Dr. Herbert's office approximately 15 minutes later. Dr.
Herbert examined Cody and prescribed medication for an ear
infection, but noted no distress or other evidence of injury.3
Kiser then returned Cody to the Bravo home (around noon).
At approximately 2:00 p.m. that day, Cody's mother picked him
up from the Bravo home. When they reached home about ten minutes
later, Cody seemed upset; his mother discovered that his right arm
was swollen. She took Cody to Dr. Schultz, who diagnosed a fresh
transferred to the Texas Department of Protective and Regulatory
Services.
2
Bravo's facility had been registered with DHS at least since
1982, and was listed in a public registry of such facilities which
DHS made available to parents seeking such facilities for their
children. Kiser alleged in the complaint and response to the
summary judgment motion that, in reliance on the DHS registry, the
Bravo home had been selected.
3
The appellees note that the doctor's failure to observe signs
of distress or injury does not mean necessarily that Cody was not
injured at that time, because Dr. Herbert held Cody by his clothing
during the examination.
- 2 -
fracture of Cody's right forearm. Cody was admitted to the
hospital for evaluation and treatment; x-rays revealed evidence of
a partially healed prior fracture of his left arm, and an injury to
his left leg.4
On November 15, as required by Texas law, Dr. Schultz
reported, to DHS, Cody's unexplained injuries, which suggested the
possibility of abuse. Appellee Stinson assigned appellee Garrett
to conduct an investigation. Garrett interviewed Dr. Schultz, who,
according to Garrett's affidavit, stated that the cause of the
fracture was consistent with a severe blow, rather than as a result
of someone pulling on Cody's arm.5
Garrett interviewed the Kisers at the hospital, and advised
them that an ex parte court hearing was scheduled later that
afternoon regarding temporary custody. After the hearing, Garrett
took physical custody of Cody pursuant to a court order granting
DHS temporary protective custody pending an investigation into the
causes of Cody's injuries. Cody was placed in a foster home after
his release from the hospital.6
4
Kiser was an enlisted member of the Air Force. The Air Force
investigative report, submitted by Kiser in response to the summary
judgment motion, states that Cody's x-rays were reviewed by three
specialists, who discovered two more injuries, and who opined that
the injuries were the result of physical abuse.
5
Kiser's affidavit states that Garrett interviewed Mrs. Kiser
and her two children on November 15, and that Mrs. Kiser's
daughter, using a doll, showed Garrett how Mrs. Bravo picked Cody
up by one arm. Kiser states further that, at a court hearing on
December 10, Dr. Herbert demonstrated to the judge how a child's
arm could be broken by lifting the child by one arm.
6
It appears that Cody was released from the hospital in mid-
November 1991.
- 3 -
Appellee Bussey was assigned to investigate the Bravo facility
with respect to whether Cody's injuries could have been caused
while he was there.7 On November 18, Bussey visited the Bravo
household and interviewed Mrs. Bravo, her husband, and their
daughter. Bussey also interviewed a child in Mrs. Bravo's care and
several parents of other children in her care; none of the parents
reported any suspicion of mistreatment of their children at the
Bravo home.8 Also on November 18, Bussey and Davis interviewed
7
Bussey's investigation was conducted jointly with David Davis,
an Air Force investigative agent.
8
Bussey's affidavit states that Mr. and Mrs. Bravo had no
knowledge of how Cody was injured; they were spontaneous and
unwavering that Cody was not hurt in their home; and, when he asked
them what should happen to someone who abuses a small child, they
responded without hesitation that "they should go to jail".
Bussey's affidavit states further that the Bravos' teenaged
daughter admitted that she had tapped children on the hand and told
them "no" when they misbehaved, but claimed that she was unaware of
how Cody was injured and was certain it did not happen at her home;
she also told him that anyone who hurt a child like Cody should be
punished. Bussey also stated in his affidavit that he spoke with
Air Force investigator Davis on December 9, and that Davis told him
that Mrs. Bravo had taken a polygraph examination and "passed with
flying colors". Although Kiser asserts in his brief that DHS
effectively closed its investigation of the Bravo family after a
brief visit on November 18, Bussey's affidavit reflects that his
investigation continued until at least mid-December.
In response to the summary judgment motion, Kiser submitted an
affidavit of a private investigator he hired to investigate the
Bravo facility, in which the investigator stated that Mr. Bravo had
been arrested at least 12 times between September 1982 and
September 1991; and that Mrs. Bravo told him that Mr. Bravo had a
drinking problem and was physically abusive, that she had been
beaten, kicked, and threatened by her husband on numerous occasions
and was very afraid of him, that she had filed family violence
complaints against him in August 1990, August 1991, and twice in
September 1991, and that he was at home all day on the day Cody's
arm was broken. Kiser's investigator stated also that he had
interviewed another parent who had used the Bravo day-care facility
until her five-month-old child was injured there in March 1990; the
parent stated that DHS investigators believed Mrs. Bravo's
- 4 -
Kiser;9 and, on November 26, he took a polygraph examination, which
yielded inconclusive results. On the advice of his attorney, Kiser
refused to submit to another.
On December 10, the state court ordered Kiser to move out of
his home and permitted Cody to return there with his mother. But,
three days later, Cody was removed from his home again, and placed
in foster care. On March 19, 1992, the state court granted Cody's
paternal grandmother's request to be appointed temporary possessory
conservator, and ordered that the Kisers have unlimited supervised
visitation. Cody was placed in his grandmother's custody on March
22, where he remained until he returned to his home (that May).
Earlier, in January 1992, on the recommendation of Dr.
Herbert, the Kisers obtained court authorization to have tests
conducted on Cody to determine whether he suffered from
osteogenesis imperfecta, a genetic defect. The tests were
completed in May 1992, ruling out that possibility. Thereafter, on
explanation that the child had fallen on a toy, but that a four-
year-old who was in care at the Bravo facility had told her that
her baby got "pow-wowed" (hit in the face).
Kiser also submitted Bussey's May 14, 1992, deposition taken
in the state court custody proceeding in which Bussey testified
that DHS received a complaint that a child was injured in the Bravo
facility in March 1990, and that, after an investigation, DHS
determined that the child bruised her cheek when she fell onto an
article in a playpen; Mrs. Bravo was cited for not adequately
supervising the children.
9
Bussey's affidavit states that Kiser denied knowledge of how
Cody was injured, minimized the seriousness of physical abuse of
children, and made statements to the effect that someone who would
do such a thing to a child should get treatment in therapy.
Kiser's affidavit states that he told the investigators that the
authorities "should find out what happened and deal with it" if
someone deliberately hurts a baby.
- 5 -
May 19, the custody proceedings were dismissed; and, as noted, Cody
was allowed to return home. A criminal investigation of Kiser was
concluded in October 1992. The appellees made no final
determination as to who was responsible for causing Cody's
injuries.
In late 1993, Kiser filed suit against the appellees and
others under 42 U.S.C. § 1983, claiming violation of a Fourteenth
Amendment due process right not to be deprived of a liberty
interest in living peaceably in a family.10 The appellees moved to
dismiss, asserting, inter alia, qualified immunity. But, the
district court entered an order the next day, requiring that any
motion to dismiss or for summary judgment on qualified immunity be
filed within 30 days. The appellees then moved for summary
judgment, again asserting qualified immunity.
The early motion to dismiss was denied without explanation;
the district court later denied the appellees' motion for
clarification of whether the order had denied their qualified
immunity defenses. During the pendency of the appellees'
interlocutory appeal of that order, however, the district court
granted their summary judgment motion. The court acknowledged that
the appellees had asserted qualified immunity defenses, but
10
The complaint and amendments do not specify whether Kiser
asserted procedural or substantive due process violations. The §
1983 claims against Davis, District Attorney Smith, and Assistant
District Attorney Roberts were dismissed prior to the summary
judgment; and the dismissal of those claims is not before us. The
district court declined to exercise supplemental jurisdiction over
a state law negligence claim against Mrs. Bravo, and dismissed that
claim without prejudice. At oral argument, Kiser acknowledged that
the claim had been abandoned.
- 6 -
declined to consider them, holding instead that, as a matter of
law, a right to due process was not violated because Kiser received
notice and a hearing before the appellees removed Cody from the
Kisers' home, and other hearings were conducted while Cody was
temporarily out of the home.
II.
Kiser contends that the district court erred both by failing
to address the substantive due process claims and by granting
summary judgment against the procedural due process claims. Kiser
stresses that he does not challenge the appellees' actions in
removing Cody from his home, but asserts, instead, that the
appellees, by continuing their investigation of Kiser long after
they were in possession of information that conclusively showed
that he could not have been responsible for Cody's injuries,
violated the substantive due process right to family integrity.
The procedural due process claim is based on the appellees' alleged
withholding of exculpatory evidence. The appellees counter that,
inter alia, the summary judgment should be affirmed on qualified
immunity grounds.
After the summary judgment, our court, on the appellees'
motion, dismissed their interlocutory appeal from the denial of
their motion to dismiss. Kiser contends that the appellees waived
their qualified immunity defenses when they dismissed that appeal.
We disagree. Qualified immunity is not waived when a defendant
fails to take an interlocutory appeal and, instead, subjects
himself to discovery and trial. Matherne v. Wilson, 851 F.2d 752,
- 7 -
756 (5th Cir. 1988). It would be anomalous to conclude that a
defendant waives a qualified immunity defense by dismissing as moot
an interlocutory appeal that the defendant was not required to take
in the first place.
In any event, in addition to raising qualified immunity in
their motion to dismiss, the appellees raised it in their summary
judgment motion. Although the district court did not rely on
qualified immunity in granting summary judgment, it is more than
well-settled that an appellee generally may urge in support of a
judgment any matter appearing in the record. E.g., City of Safety
Harbor v. Birchfield, 529 F.2d 1251, 1254 n.4 (5th Cir. 1976).
Likewise, we may affirm a summary judgment on issues raised in the
district court, even if not relied on by it. See, e.g., Chevron
U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1146 (5th Cir.
1993).11
In considering qualified immunity claims, we apply a well-
established two-part analysis; this appeal involves only the first
part. "We must first determine whether the plaintiff[s] ha[ve]
`allege[d] the violation of a clearly established constitutional
right'". Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993)
(quoting Siegert v. Gilley, 500 U.S. 226, 111 S. Ct. 1789, 1973
(1991)). Because "many general constitutional rights ... are
11
It goes without saying that our review of a summary judgment
is plenary; that we apply the same standard applied by the district
court, e.g., F.D.I.C. v. Ernst & Young, 967 F.2d 166, 169 (5th Cir.
1992); and that it is appropriate if the record discloses "that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law". FED.
R. CIV. P. 56(c).
- 8 -
clearly established and yet so general that it often will be
unclear whether particular conduct violates the right[,] ... the
right the official is alleged to have violated must have been
`clearly established' in a more particularized, and hence more
relevant, sense: The contours of the right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right". Hodorowski v. Ray, 844 F.2d 1210,
1216-17 (5th Cir. 1988). "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 light of pre-existing law the unlawfulness must be
apparent". Anderson v. Creighton, 483 U.S. 635, 640 (1987).12
A.
Kiser acknowledges that the State had a compelling interest in
taking custody of Cody when his unexplained injuries were
discovered. He maintains, however, that the appellees soon became
aware through their investigation that he could not have caused
Cody's injuries, and that the injuries were most likely to have
occurred while Cody was in the physical control of Mrs. Bravo.13
12
Only if there was violation of a constitutional right that was
clearly established do "we then decide whether the defendant[s']
conduct was objectively reasonable". Spann v. Rainey, 987 F.2d at
1114 (citing Salas v. Carpenter, 980 F.2d 299, 305-06 (5th Cir.
1992)). "[T]he objective reasonableness of an official's conduct
must be measured with reference to the law as it existed at the
time of the conduct in question." Pfannstiel v. City of Marion,
918 F.2d 1178, 1185 (5th Cir. 1990). As stated, we do not reach
this part of the two-part analysis.
13
In support of the assertion that the investigation should have
made the appellees aware of the unlikelihood that Kiser was
responsible for Cody's injuries, and that the injuries were likely
- 9 -
Kiser contends that the appellees, by continuing their
investigation of Kiser and maintaining custody of Cody after their
investigation revealed exculpatory evidence exonerating Kiser,
violated the substantive due process right to be free of temporary
to have occurred in the Bravo home, Kiser asserts that: (1) Cody's
stepsister told investigators on November 15 that Mrs. Bravo
frequently lifted Cody in a manner likely to have caused the
injuries; (2) investigators claimed to have screened police arrest
and conviction records in their investigation of the Bravo day-care
facility, but later claimed not to have discovered that Mrs.
Bravo's husband had multiple arrests and convictions for assault,
crimes involving alcohol, and domestic violence; (3) the
investigators acknowledged being aware of past reports of child
abuse in the Bravo home, but discounted the significance of those
reports; and (4) investigators failed to inspect safety conditions
in the Bravo home and failed to attempt to verify statements made
by Mrs. Bravo on her applications for registration, some of which
later proved to be false.
The appellees dispute Kiser's characterization of what they
learned from their investigation. According to them, their
investigation did not exonerate Kiser, and they were never able to
determine who was responsible for Cody's injuries. The appellees'
summary judgment evidence includes the affidavits of Stinson,
Garrett, and Green (the DHS case worker who was assigned to replace
Garrett in the Kiser investigation in January 1992), in which they
state that they observed Cody crying uncontrollably during visits
with his parents, causing them to suspect that Cody might have a
reason to fear his parents. The appellees state that none of the
information obtained in the investigation of the Bravo home,
including polygraph test results on Mrs. Bravo and Kiser,
observations of the Bravos and the Kisers, and interviews with
other individuals whose children were placed in Mrs. Bravo's care,
led them to conclude that Kiser was not a possible cause of his
son's injuries. The appellees note that they were unaware of Mr.
Bravo's 1990 arrest until informed of it by the Kisers, and state
that the alleged prior child abuse at the Bravo home was actually
a reported injury which was investigated and found not to involve
abuse.
Kiser's affidavit states that Cody seemed "happy" and "normal"
during the first few parental visits after he was in DHS custody,
but that, during a visit on December 2, Cody became upset after
Garrett got mad and threw a notebook across the room; he states
that Cody "got fussy" after about half an hour during a visit two
days later.
- 10 -
interference by the State in a parent-child relationship. Kiser
contends further that the appellees acted oppressively by
withholding exculpatory evidence and giving false testimony in the
state court.14
Kiser acknowledges that our court has not recognized
definitively the substantive due process right now asserted, but
maintains that relevant case law can be extrapolated to recognize
such a right. He cites Santosky v. Kramer, 455 U.S. 745 (1982),
and Lassiter v. Department of Social Services, 452 U.S. 18 (1981),
in support of the assertion that the Supreme Court has long
recognized that, for Fourteenth Amendment purposes, a freedom of
personal choice in matters of family life is a fundamental right
implicit in the concept of ordered liberty and worthy of protection
under the substantive component of the due process clause.
In Lassiter, the county social services agency petitioned the
state court to terminate permanently the parental rights of a
mother who had left her child in foster care for more than two
years and had been convicted for second-degree murder and sentenced
to 25-40 years imprisonment. 452 U.S. at 20-21. The Court
acknowledged that "a parent's desire for and right to `the
14
Kiser asserts that, despite Cody's treating physicians' desire
to test for osteogenesis imperfecta, and their continuing
uncertainty as to whether the disease may have caused the injuries,
appellee Garrett testified falsely at a hearing on November 27,
1991, that the physicians had ruled out non-traumatic causes; and
that on December 10, Garrett again testified falsely that
osteogenesis imperfecta had been ruled out as a cause of the
injuries. He asserts further that, despite Garrett's admission to
members of the Kiser family on November 22 that DHS had no evidence
implicating Kiser, she testified on November 27 that Cody would be
in danger of further injury if returned to his home.
- 11 -
companionship, care, custody and management of his or her children'
is an important interest that `undeniably warrants deference and,
absent a powerful countervailing interest, protection'", id. at 27,
but concluded that, under the circumstances of that case, the state
court did not deny the mother due process of law when it failed to
appoint counsel to represent her in the parental termination
proceeding. Id. at 32-33.
In Santosky, child care workers sought to terminate
permanently the parents' custody of their children. Citing
Lassiter, the Court noted its historical recognition that freedom
of personal choice in matters of family life is a fundamental
liberty interest protected by the Fourteenth Amendment. Id. at
753. In light of the nature of the private interest threatened and
the permanency of the threatened loss, id. at 758, it held that a
state could not sever permanently the parent-child relationship
without providing the parents with "fundamentally fair procedures",
id. at 754, including supporting its allegations of neglect with
"clear and convincing evidence". Id. at 747-48.
As Kiser acknowledges, both Lassiter and Santosky were
procedural due process cases, and thus did not address the nature
of substantive protections available in the family integrity
context. Moreover, both are distinguishable, because they involved
attempts to terminate permanently the parent-child relationship.
Kiser acknowledges also that in Hodorowski v. Ray, 844 F.2d
1210 (5th Cir. 1988), and Doe v. Louisiana, 2 F.3d 1412 (5th Cir.
1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1189 (1994), our
- 12 -
court found no clearly-established right to family integrity when
a state seeks to interfere temporarily with custody. His attempt
to distinguish those cases on the ground that they dealt with
qualified immunity is unavailing in light of our rejection of his
contention that the appellees waived their qualified immunity
defenses.
In Hodorowski, child protective services workers removed two
seven-year-old girls from their parents' home without a prior court
order, after receiving information that the children were being
abused by their father. 844 F.2d at 1212. The parents claimed
interference with family integrity in violation of the Fourteenth
Amendment. Hodorowski recognized that "the right of the family to
remain together without the coercive interference of the awesome
power of the state" is "the most essential and basic aspect of
familial privacy", id. at 1216, but held that the defendants were
entitled to qualified immunity because the right to family
integrity had been defined in such general terms that reasonable
officials would not have understood that their conduct violated
that right.
It is beyond dispute that many aspects of family
integrity possess constitutional stature. But
reasonable government officials, knowing only that
they must not infringe on family integrity, would
not necessarily know just what conduct was
prohibited. In particular, in the absence of any
more fact-specific authority, we do not think that
appellants in this case should have known that
their conduct in removing the Hodorowski children
from the home violated the nebulous right of family
integrity.
Id. at 1217.
- 13 -
The Hodorowski court acknowledged that it is "undeniable that
concern for family integrity figured prominently in the Court's
rationale", id., in both Santosky and Stanley v. Illinois, 405 U.S.
645, 649 (1972) (holding that due process requires a hearing before
a state can terminate permanently the parental rights of unmarried
fathers), but stated that "it would be a mistake to conclude that,
from Santosky and Stanley alone, the appellants should have known
that taking the Hodorowski children into temporary custody violated
a constitutional right". Id. Observing that both Santosky and
Stanley involved a state's attempt to sever permanently the parent-
child relationship, while Hodorowski concerned an attempt to obtain
only temporary custody, our court stated that "[t]his difference
alone is sufficient to prevent us from concluding that appellants'
conduct violated clearly established law". Id.15
Kiser attempts to distinguish Hodorowski on the basis that it
does not reflect that there were any allegations that DHS
investigators contrived or concealed evidence, misrepresented facts
to the court, or otherwise acted in bad faith. But, the absence of
15
Cf. Davis v. Page, 640 F.2d 599, 602 (5th Cir. 1981) (en
banc), vacated on other grounds, 458 U.S. 1118 (1982), in which our
court stated that a mother whose child had been taken into
temporary custody, without her being fully informed of the
possibility prior to a dependency hearing, had a liberty interest
at stake in the dependency hearing that was protected by the due
process clause of the Fourteenth Amendment. The court considered
that "the interest of a parent in the companionship, care, custody,
and management of his or her children come[s] to this Court with a
momentum for respect lacking when appeal is made to liberties which
derive merely from shifting economic arrangements". Id. at 603
(internal quotation marks and citation omitted). The court stated
that this interest demanded "the full procedural protection
necessary to avoid the erroneous deprivation of that interest".
Id.
- 14 -
such allegations in Hodorowski does not support a conclusion that
the nebulous, ill-defined right to family integrity is more clearly
established when evidence or allegations of such misconduct is
present.
Such allegations of misconduct were made in Doe v. Louisiana;
our court concluded nevertheless that the parent's claimed right to
a liberty interest in family integrity was not clearly established.
2 F.3d at 1417-18. There, state social workers conducted a four-
month investigation after a physician reported suspected sexual
abuse of a four-year-old girl. Id. at 1414. The father complied
with the social worker's demand that he have no contact with either
his daughter or his son during the investigation. Id. The state
court dismissed a civil "child-in-need-of-care" proceeding
following a hearing at which no evidence of physical abuse was
presented, and at which there was evidence that the social workers
had suppressed the results of reports indicating that no sexual
abuse had occurred, misrepresented the findings in those reports,
and given false information to the district attorney's office in an
effort to have the children taken from the temporary custody of
their paternal grandparents. Id. at 1414-15.
Suit was filed against the social workers, claiming that they
interfered with the father's fundamental liberty interest in the
care and custody of his children, violated his constitutional right
to be free from malicious prosecution, and violated the children's
privacy. Id. at 1415. Our court reversed the denial of the motion
to dismiss, holding that the social workers were entitled to
- 15 -
qualified immunity because preexisting law did not establish that
they "should have known that their conduct violated the nebulous
right of family integrity". Id. at 1418.
Doe cited with approval Frazier v. Bailey, 957 F.2d 920 (1st
Cir. 1992), which involved similar facts and allegations. There,
the plaintiff alleged that a social worker interfered with his
liberty interest in the care, custody, and management of his
children by ignoring exculpatory evidence and by programming his
children to falsely accuse him of sexual abuse. Id. at 925, 929.
The First Circuit noted that, "[b]ecause th[e] [liberty] interest
[in familial relationships] must always be balanced against the
governmental interest involved, it is difficult, if not impossible,
for officials to know when they have violated `clearly established'
law". Id. at 931. It held that the defendants were entitled to
qualified immunity, "[b]ecause the right to family integrity has
not been so particularized as to put defendants on notice that
their conduct was unlawful". Id.
As stated, Kiser asserts that because Doe was a qualified
immunity case, it should be distinguished in its application to the
present controversy, pursuant to his erroneous claim that immunity
was waived. But, as also stated, we have rejected that waiver
contention; we cannot distinguish Doe on that basis. Indeed, Doe
is indistinguishable; the amorphous right to family integrity was
no more clearly defined in late 1991 and the first half of 1992,
when DHS investigated Cody's injuries, than it was when the conduct
at issue in Doe took place in the latter part of 1990.
- 16 -
Kiser also urges us to re-examine our holding in Doe, in light
of Doe v. Taylor Independent School District, 15 F.3d 443 (5th
Cir.) (en banc), cert. denied, ___ U.S. ___, 115 S. Ct. 70 (1994).
Kiser maintains that Doe v. Louisiana's "stern approach" to the
substantive due process right asserted in that case is contradicted
by Taylor, because both cases involve equally appalling behavior by
state actors. Taylor held that "[t]he `contours' of a student's
substantive due process right to be free from sexual abuse and ...
bodily integrity" were clearly established in 1987, when a public
school teacher sexually abused the plaintiff, a 15-year-old
student. Id. at 455.
Contrary to Kiser's assertion, Taylor does not undermine the
validity of Doe v. Louisiana's conclusion that the right to family
integrity is not clearly established. And, there is no doubt that
it is clearly established in this circuit that "one panel may not
overrule the decision, right or wrong, of a prior panel in the
absence of en banc reconsideration or superseding decision of the
Supreme Court". E.g., Batts v. Tow-Motor Forklift Co., 978 F.2d
1386, 1393 & n.15 (5th Cir. 1992) (internal quotation marks and
citation omitted). We therefore decline to re-examine Doe v.
Louisiana.
Based on the foregoing, it is apparent that, although a
substantive due process right to family integrity has been
recognized, the contours of that right are not well-defined, and
continue to be nebulous, especially in the context of a state's
taking temporary custody of a child during an investigation of
- 17 -
possible parental abuse. Even assuming that such a right exists
under the circumstances involved here, it certainly was not clearly
established when the appellees engaged in the conduct at issue. We
hold, therefore, that the appellees were entitled to qualified
immunity.16
B.
The nature of the procedural due process claim is not entirely
clear; it appears to be based on assertions that the appellees
failed to disclose to the state court allegedly exculpatory
evidence regarding their investigation of Mrs. Bravo for suspected
abuse of a child in her care in 1990, and that the appellees failed
to disclose that Mrs. Bravo had made material false statements on
her application for registration. Kiser relies on cases concerning
the procedural due process due in criminal prosecutions, and urges
that a requirement of disclosure of exculpatory evidence should
apply as readily in a civil context as in the context of a criminal
proceeding, but cites no authority in which such a requirement has
been applied in a civil proceeding analogous to the one in which
the appellees obtained temporary custody of Cody.
We need not decide whether the procedural protections of the
due process clause of the Fourteenth Amendment require such
disclosure, because even if such a right exists, it was not clearly
established at the time of the state court custody proceedings.
16
As noted, in light of our conclusion that the law was not
clearly established when the conduct at issue took place, we need
not address whether the appellees' conduct was objectively
reasonable, or whether there are material fact issues as to the
reasonableness of their actions.
- 18 -
Therefore, the appellees are entitled also to qualified immunity
with respect to the Kisers' procedural due process claims.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
- 19 -