B.S. Ex Rel. T.S. v. Somerset County

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________

No. 11-1833
__________

B.S., and B.S. as guardian and parent of
T.S., G.S., and N.S.,
Appellants

v.

SOMERSET COUNTY; SOMERSET COUNTY
CHILDREN AND YOUTH SERVICES;
JESSICA ELLER; JULIE BARTH
__________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 3-08-cv-00030)
District Judge: Hon. Kim R. Gibson

Argued
January 10, 2012

BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit
Judges.
 (Filed: January 8, 2013 )
_______________

Edward A. Olds, Esq. [ARGUED]
1007 Mount Royal Boulevard
Pittsburgh, PA 15223
Counsel for Appellant

Marie M. Jones, Esq. [ARGUED]
Jones Passodelis
707 Grant Street
Suite 3510, Gulf Tower
Pittsburgh, PA 15219
Counsel for Appellee
__________

OPINION OF THE COURT
__________

JORDAN, Circuit Judge

Appellant B.S. (“Mother”) is the natural mother of
M.N. (“Daughter”), a minor child. Mother had primary legal
custody of Daughter until Daughter was removed from
Mother’s care in accordance with a court order that
transferred custody to the child’s natural father, E.N.
(“Father”). Mother claims that Somerset County (the
“County”), along with Somerset County Children and Youth

2
Services and two of its employees, Julie Barth and Jessica
Eller, (collectively, “Appellees”) violated her constitutional
rights to substantive and procedural due process in securing
and effectuating the transfer and related orders. She seeks to
redress those alleged constitutional violations under 42
U.S.C. § 1983, and she is now appealing an order of the
United States District Court for the Western District of
Pennsylvania that rejected her claims and entered summary
judgment in Appellees’ favor.

We agree with Mother that her procedural due process
rights were violated by the Appellees, though the individual
defendants are protected by absolute immunity. As to the
substantive due process claims, we conclude that the District
Court’s grant of summary judgment for the Appellees was
correct, though for somewhat different reasons than those
expressed by that Court. We will therefore affirm in part and
reverse in part the District Court’s order and will remand the
case for a trial against the County on the damages Mother
sustained when her procedural due process rights were
violated.

I. Background 1

Daughter was born in June 2004 and suffered a variety
of medical problems that stunted her growth. In October
2005, Mother took Daughter to a pediatric gastroenterologist

1
Although our standard of review directs us to view
the facts in the light most favorable to the party against whom
summary judgment is sought, see infra Part II, we proceed at
this point by reciting the undisputed facts.

3
named Dr. Douglas Lindblad, who diagnosed Daughter with
failure to thrive. 2 After running various tests to determine the
cause of her condition, Dr. Lindblad referred Daughter for
inpatient treatment at the Children’s Institute of Pittsburgh
(the “Children’s Institute”).

She was treated there from March 20, 2006 to March
26, 2006, and gained 50 grams per day during that time. That
weight gain was normal for a child of Daughter’s age in
Daughter’s condition, reflecting what “[she] would have been
expected to gain plus additional weight which would get …
[her] to the point … where [she] should [have] be[en] in
terms of growth.” (Joint App. at 668; see id. at 669.)
Daughter had not experienced normal growth before that
time, having previously gained only 8 to 11 grams per day.
Sadly, after concluding her inpatient treatment and returning
to Mother’s care, Daughter gained only 4 grams per day, at
least initially.

A. Dr. Lindblad’s Child Abuse Report

The “fact that [Daughter’s] weight gain when she was
an inpatient … far exceeded her rate of weight gain at home”
concerned Dr. Lindblad (id. at 139), and led him to attribute
Daughter’s failure to thrive to how Mother was caring for her.

2
Failure to thrive is a diagnosis that may be “based
upon an objective finding that a child’s weight falls below the
third percentile of weight of children of like age.”
(Appellant’s Opening Br. at 15; see MedlinePlus Medical
Encyclopedia, Failure to Thrive,
http://www.nlm.nih.gov/medlineplus/ency/article/000991.htm
(last visited Nov. 6, 2012).)

4
Specifically, after examining Daughter on April 18, 2006, Dr.
Lindblad concluded that Daughter’s failure to thrive was
psychosocial, as opposed to physical, in origin. Psychosocial
failure to thrive occurs when a “child’s failure to thrive is due
to some factors in the home that lead the child not to grow
well,” and is “usually associated with inadequate caloric
intake.” (Id. at 670.) Although psychosocial failure to thrive
is not necessarily associated with neglect, Dr. Lindblad feared
that Daughter was being neglected by Mother, and he further
opined in his progress notes that he was “concerned about
Munchausen by proxy.” 3 (Id. at 433.)

As a result, Dr. Lindblad believed Daughter was in
physical danger that justified reporting to state authorities his
fear that Mother was neglecting Daughter, or worse. But
while Dr. Lindblad believed that action was warranted after
seeing Daughter on April 18, 2006, he did not immediately
make a report to “ChildLine,” the Pennsylvania state entity
responsible for receiving reports of neglect and abuse. 4

3
Munchausen by proxy “is a form of child abuse in
which a parent induces real or apparent symptoms of a
disease in a child.” MedlinePlus Medical Encyclopedia,
Munchausen Syndrome by Proxy,
http://www.nlm.nih.gov/medlineplus/ency/
article/001555.htm (last visited Nov. 6, 2012).
4
As detailed in Part I.C, infra, Pennsylvania provides
a specific protocol for reporting and investigating child abuse.
Under that statutory and regulatory framework, certain
persons are required to report suspected abuse. See 23 Pa.
Cons. Stat. Ann. § 6313(a) (“Reports from persons required
to report … shall be made immediately by telephone and in
writing within 48 hours after the oral report.”). ChildLine is

5
Instead, his first contact with state authorities about
Daughter’s case occurred on May 4, 2006, when he spoke
with Jessica Eller. Eller, a child welfare caseworker for
Somerset County Children and Youth Services, 5 was already

the state entity that accepts such calls. See Pennsylvania
Department of Public Welfare, Child Line Abuse Registry,
http://www.dpw.state.pa.us/provider/childwelfareservices
/childlineandabuseregistry/index.htm (last visited Nov. 6,
2012) (“The Mission of ChildLine is to accept calls … 24
hours per day, seven days per week. … The Intake Unit … is
available … to receive reports of suspected child abuse.”).
5
Appellees acknowledge that Somerset County
Children and Youth Services acts on behalf of Somerset
County with respect to child protective services (see Joint
App. at 77 (stating that Somerset County Children and Youth
Services “perform[s] certain functions as permitted under
state law regarding the protection of children in Somerset
County”)), and have treated the liability of those two entities
as being coextensive throughout the litigation in this case.
See, e.g., W.D. Pa. ECF no. 08-30, doc. no. 50, at 2; 12-15
(arguing that judgment should be entered “as to [Mother’s]
claims against Somerset County and Somerset County CYS
because there is no evidence of record of any unconstitutional
custom, policy or practice,” and focusing exclusively on
Somerset Children and Youth Services’ conduct in
developing that contention). We thus treat them as the same
for purposes of our discussion and will generally refer to
Somerset County and Somerset County Children and Youth
Services collectively as “the County” throughout this opinion.

6
investigating Daughter’s case and had previously contacted
Dr. Lindblad in connection with her investigation. 6

Dr. Lindblad told Eller of the discrepancy between
Daughter’s inpatient weight gain and her weight gain when
under Mother’s care, explained his conclusion that
Daughter’s failure to thrive was psychosocial in origin, and
described his concern about Munchausen by proxy. During
that conversation, Eller “instructed Dr. Lindblad to [file] a
ChildLine report” (id. at 311), which he did shortly thereafter.

B. Eller’s Child Abuse Report

At some point, Eller also made her own ChildLine
7
report. A description of Eller’s ChildLine report stated that
6
Given the path this case has followed, there is some
irony in how it began. The County was initially contacted by
Mother, who reported in December 2005 that she believed
Father was not properly feeding Daughter when Daughter
stayed at Father’s home. Eller was assigned to the case, and
met with Father in relation to her investigation. During that
meeting, Father described the difference between Daughter’s
inpatient weight gain and her weight gain at home, which
evidently prompted Eller to investigate whether Mother was
being neglectful or abusive.
7
The parties dispute whose report came first. Mother
implies that Eller’s ChildLine call was made on May 4, 2006
while Dr. Lindblad waited until May 5, 2006 to make his
ChildLine call. Appellees, by contrast, state that Dr. Lindblad
made his ChildLine report on the evening of May 4, 2006
whereas Eller’s call was made on May 5, 2006. The
difference is immaterial to our decision.

7
she had opted to make the report after speaking with a referral
source and consulting her supervisor, Julie Barth, and the
report relayed much of the information Dr. Lindblad had told
Eller. 8 After making her initial ChildLine report, Eller
prepared a summary of her findings in Daughter’s case to
present to a judge for the purpose of removing Daughter from
Mother’s home. Her summary, dated May 5, 2006, stated:

[The County] received a referral on May 5,
2006 alleging serious physical neglect of
[Daughter] by … [Mother] … . Childline [sic]
contacted [the County] and an investigation has
been initiated. Allegations of the neglect are
psycho-social failure to thrive. [Daughter] is
nearly 2 years old and is currently 19 pounds.
She was gaining 8-10 grams of weight per day
while being fed by her mother, until she entered
the Children’s Institute due to concerns of low
weight on March 20, 2006. While at the
Children’s Institute, [Daughter] gained 50
grams of weight per day while still being fed by
her mother under the supervision of the Institute
staff. Since her discharge on March 26, 2006
[Daughter] is now gaining 4-5 grams of weight
per day.

[The County] believes that it would be
contrary to the welfare of the child … to
continue to reside with and have unsupervised

8
The written summary of the ChildLine report did not,
however, describe Dr. Lindblad’s Munchausen by proxy
concern or attribute the reported information to Dr. Lindblad.

8
 contact with … [Mother] until the outcome of
the investigation is determined. Therefore, the
Agency is requesting that all visitation and
contact between [Mother] and [Daughter] [be]
supervised by the Agency pending the outcome
of the investigation.

(Joint App. at 467.) Eller also prepared a corresponding court
order to suspend Mother’s contact with Daughter and transfer
the child to Father’s custody. 9

According to Appellees, the information relayed in
Eller’s summary “was based upon [a] good faith recall and
reading of” Daughter’s medical records. (Id. at 380.)
However, the summary’s reference to Daughter’s weight
being 19 pounds was mistaken, in light of her most recent
weigh-ins. 10 Whether Eller was aware of any error in the
summary is a matter of dispute, but, in any event, she took her
prepared summary and court order to Judge Cascio of the
Court of Common Pleas of Somerset County, and presented
them to him ex parte on May 5, 2006. Judge Cascio reviewed
Eller’s summary, and signed the proposed order, which
provided as follows:

9
Notwithstanding the prior allegations that Mother
lodged against Father, see supra note 6, Mother does not now
contest that he was fit to be a custodial parent.
10
When Dr. Lindblad examined Daughter on April 18,
2006, he recorded her weight as 9.2 kilograms, which is
equivalent to 20.2 pounds. In late April, Daughter was
weighed by two other physicians, and her weight was
recorded as being between 20 pounds and 21 pounds.

9
 [D]ue to allegations of serious physical neglect
which are under investigation by [the County],
it is hereby ordered that all contact and
visitation between … [Daughter] and …
[Mother] … be supervised by [the County]
pending the outcome of the investigation. It is
also ordered that [Daughter] shall reside with …
[Father] … until the completion of the
investigation and [Mother] shall conduct herself
appropriately in all visitations with [Daughter],
including no badgering or harassing the agency
staff, belittleling [sic] any service providers or
… [Father].

(Id. at 468.) Judge Cascio’s order and Eller’s summary were
each filed under case number 20-B Juvenile 2006.

C. Daughter’s Removal from Mother’s Home

Armed with Judge Cascio’s order, Eller, along with a
police officer, went to Mother’s home that same day and took
Daughter from Mother. Pennsylvania’s Child Protective
Services Law (the “CPSL”) ordinarily requires that a follow-
up hearing be held within 72 hours of a child’s removal from
a parent’s custody. 11 According to Appellees, however, they

11
Aimed at “encourag[ing] more complete reporting of
suspected child abuse” and at protecting children from further
abuse, 23 Pa. Cons. Stat. Ann. § 6302(b), the CPSL requires
child abuse reports to be investigated and permits children to
be taken into protective custody by the state, see id. § 6315.
The statute provides, however, that any protective custody
may not “be maintained longer than 72 hours without an

10
were not required to schedule such a hearing because,
although Daughter was removed from Mother, she was
transferred to Father’s custody and not to the state’s custody.
Indeed, as Eller explained it, although a post-removal hearing
would normally be required within 72 hours after executing
an order taking a child into the state’s custody, no hearing is
required to comply with state law if the County merely
“transfers custody” to another parent, because the County
would not have “take[n] custody.” (Joint App. at 292.)

That view was also expressed by Natalie Hunt, the
Assistant Director of Somerset County Children and Youth
Services. Explaining that the kind of transfer in custody that
occurred in this case is employed when there is a fit parent
who can take custody of the child, Hunt testified that “the 72-
hour-hearing requirement is [not] necessary” unless the
County files a dependency petition to take custody of a minor.
(Id. at 331.) Caseworker supervisor, Douglas Walters,
echoed Hunt’s testimony, stating that, for as long as he could
remember, the County would simply contact a judge when it
felt it “needed to get an order, obtain an order to stop contact
until [the County] could investigate” (id. at 339-40), and that,
in such circumstances, the “agency doesn’t schedule a
hearing” (id. at 342). 12 He said that, on average, the County

informal [court] hearing” as provided in the Juvenile Act. Id.
§ 6315(d). Pennsylvania’s Juvenile Act requires an “informal
hearing [to] be held promptly by the court or master and not
later than 72 hours after the child is placed in detention or
shelter care to determine whether his detention or shelter care
is required.” 42 Pa. Cons. Stat. Ann. § 6332(a).
12
In light of the CPSL’s requirements for follow-up
hearings in cases in which protective custody is taken, we

11
asks a judge to restrict contact between a parent and a child in
that manner five to ten times per year.

Thus, because Appellees thought it unnecessary to
hold the hearing that Pennsylvania law would require were
Daughter taken into state custody, no follow-up hearing was
scheduled and Mother received no explanation of how to
arrange for a hearing. Instead, Eller simply presented Mother
with Judge Cascio’s order and left with Daughter.

D. Daughter’s Subsequent Weigh-Ins and Eller’s
Investigation

Immediately after picking Daughter up on May 5th,
Eller took her to a pediatrician at what the parties refer to as
“Berlin Pediatrics.” 13 During that visit, Daughter’s weight
was recorded as being 22 pounds, 2 ounces. Daughter
returned to Berlin Pediatrics with Father three days later, on
May 8, 2006, and her weight was again recorded as 22
pounds, 2 ounces. The results of those two weigh-ins are

understand Walters to have been referring to orders stopping
contact between the parent and the child in which the state
does not take custody of the child.
13
Although the record is not entirely clear, we
understand the references to “Berlin Pediatrics” to be a
shorthand for the Somerset Pediatric and Adolescent Health
Center in Berlin, Pennsylvania. (See Joint App. at 710
(Daughter’s “Berlin Pediatrics” growth chart with a stamp for
the “Somerset Pediatric and Adolescent Health Center” in
Berlin, Pennsylvania).) We will employ that shorthand
throughout this opinion.

12
highly significant because, as Dr. Lindblad explained during
his deposition, they placed Daughter around the fifth
percentile on the growth chart and would “not support a
diagnosis of failure to thrive,” if the trend in growth they
showed were to continue. 14 (Id. at 366-67.) It did not. When
Daughter was weighed at Berlin Pediatrics on May 16, 2006,
she was 20 pounds, 11 ounces.

Eller, in the meantime, continued investigating
Mother. The result of her investigation was a June 19, 2006
Child Protective Services Investigation report that found the
allegations of neglect against Mother to be supported by
substantial evidence. 15 Eller’s conclusion was based on her

14
Based on the results of those weigh-ins, a physician
retained by Mother opined that Daughter should not have
been removed from Mother on May 5, 2006. (See Joint App.
at 695 (“It is unclear to me why the child was removed on a
day when she showed significant weight gain for the first
time while under the mother’s care.”).) Dr. Lindblad offered
similar testimony, stating he would likely not have called
ChildLine if he was aware of Daughter’s May 5, 2006 weight.
(See id. at 369 (Dr. Lindblad’s testimony that he likely
“would have waited until another opportunity to examine the
child for weight before calling the ChildLine,” if he had been
aware of the May 5 weight of “22 pounds, 2 ounces”).) As
discussed in greater detail herein, the importance of
Daughter’s May 5 and May 8 weights is contested because
Appellees take the position that Daughter was, unlike on
other occasions, wearing clothes when weighed. See infra
note 34.
15
Under Pennsylvania state law, Eller was required to
send “one copy of” that report form, known as “CY-48,” to

13
finding that Daughter had gained only 4 to 5 grams of weight
per day while under Mother’s care following her discharge
from inpatient treatment, compared to the 50 grams per day
she gained while at the Children’s Institute and to the average
of 40.5 grams per day she gained from May 16, 2006 to May
30, 2006, while under Father’s care.

Those findings were misleading, however, because
they implied that Daughter’s first weigh-in under Father’s
care occurred on May 16, 2006 and that Daughter weighed
only 19 pounds, 10 ounces when she was initially placed in
Father’s care on May 5, 2006. 16 Eller’s report did not
mention Daughter’s May 5 and May 8, 2006 weigh-ins at
Berlin Pediatrics, because Eller treated them as invalid
measurements. She asserted that those weights are unreliable

ChildLine “within 30 days of the receipt of an oral report of
suspected abuse.” (Joint App. at 455; see 55 Pa. Code
§ 3490.67(a) (“The county agency shall send the Child
Protective Service Investigation Report form (CY-48) to
ChildLine within 30-calendar days of the receipt of the report
of suspected child abuse.”).)
16
Specifically, Eller’s report stated that “[s]ince
[Daughter’s] first weigh-in on May 16, 2006 [Daughter] has
gained 481 grams of weight or on average of [sic] 18 grams
of weight per day.” (Joint App. at 456.) Daughter’s May 16,
2006 weight of 20 pounds, 11 ounces is equivalent to 331
ounces or 9383.692 grams. Thus, Eller’s assertion that
Daughter had gained 481 grams implied that she had initially
weighed in at 8902.692 grams, which is equivalent to 19
pounds, 10.03 ounces.

14
because Daughter had been dressed when they were taken. 17
By ignoring those data points, Eller was not forced to
consider that Daughter may have gained significant weight
while under Mother’s care before Daughter was removed on
May 5, 2006, and that Daughter’s weight seemed to drop
when she was first placed with Father.

E. Mother’s Habeas Corpus Petition, and Judge
Cascio’s Orders in Connection With Eller’s
Report

Before Eller’s June 19, 2006 Child Protective Services
Investigation report was submitted to the state, Mother filed a
habeas corpus petition in the Court of Common Pleas of
Somerset County, arguing that the County had violated state
law by not providing a hearing after removing Daughter from
Mother’s custody. Mother’s petition was filed under the
same case number as the May 5, 2006 order removing
Daughter from Mother’s custody, and a hearing was held
before Judge Cascio on June 14, 2006. At the hearing, which
occurred 40 days after Daughter was removed from Mother’s
custody, the County contested Mother’s petition by arguing

17
Eller wrote “dress” next to the May 5 and May 8
results on a copy of a growth chart prepared by Berlin
Pediatrics. She stated in her deposition that she observed that
Daughter’s clothes were not removed when Daughter was
weighed on May 5, and that Father informed her that
Daughter was dressed for the weigh-in that occurred on May
8. Daughter’s pediatrician stated in his deposition, however,
that the “standard practice” at Berlin Pediatrics was to weigh
children such as Daughter “without their clothes.” (Joint
App. at 371.)

15
that it had no obligation to conduct a post-removal hearing
because it had not taken custody of Daughter. The hearing
concluded with Judge Cascio’s taking Mother’s petition under
advisement.

Eller, as noted, completed and filed her Child
Protective Services Investigation report five days later, on
June 19, 2006. 18 Four days after that, on June 23, 2006, she
met ex parte with Judge Cascio to present another summary
to him that relayed her findings. It stated:

[The County] has completed the Child
Protective Services investigation regarding
serious physical neglect of [Daughter]. The
[report] was filed on June 19, 2006 with
Childline and substantiated [Mother] … as the
perpetrator. Due to the indicated status of the
report [the County] is recommending that visits
continue to be supervised between [Mother] and
[Daughter] until further hearings on this matter
are scheduled by either parent.

(Id. at 712.) As she had done before, Eller offered a proposed
order to Judge Cascio, along with her summary. After that

18
Mother was ultimately advised by letter of the
conclusion reached in Eller’s June 19, 2006 report. The letter
advised that Mother had the right to request that the report be
amended or destroyed if she believed it was inaccurate. She
initiated proceedings to do that, but her request to expunge
the report was denied. Although Mother had the opportunity
to appeal that decision and she initially sought to do so, she
ultimately withdrew her appeal.

16
meeting, the Judge entered the following order which, with
Eller’s summary, was filed on June 23, 2006 under the same
case number as Mother’s habeas petition and the initial
removal order had been:

[D]ue to the indicated report of serious physical
neglect whereby [Mother] is the perpetrator, it
is hereby ordered that all visitation between
[Mother] and [Daughter] continue to be
supervised until further hearings on this matter
are scheduled by either parent.

(Id. at 713.)

A few days later, on June 26, 2006, Judge Cascio
entered an order denying Mother’s habeas corpus petition
saying, among other things, that “[t]he child was not taken
into protective custody so as to trigger the provisions and
protections of the” CPSL; and that “[p]lacement of the child
with her Father is necessary and appropriate considering the
serious and continuing medical evidence of failure of the
child to thrive while in Mother’s care.” (Id. at 714-15.)

Mother and Father subsequently embarked upon
contentious custody proceedings, eventually receiving shared
custody of Daughter.

F. Procedural History

On February 5, 2008, Mother initiated this lawsuit.
She later filed an amended complaint asserting claims against
Appellees for violating her substantive due process rights, as
well as claims for violating her right to procedural due

17
process by transferring Daughter to Father’s custody without
timely notice or an opportunity to be heard. 19 After the
completion of discovery, Appellees filed a motion for
summary judgment. Mother opposed that motion and moved
for summary judgment on her procedural due process claim.
Holding that the individual defendants were shielded by
absolute or qualified immunity and that the County’s actions
did not violate Mother’s constitutional rights, the District
Court granted Appellees’ motion and denied Mother’s. It
entered judgment in Appellees’ favor the same day.

This timely appeal followed.

II. Jurisdiction and Standard of Review

Because Mother challenges the process she received
with respect to state court orders issued by Judge Cascio, we
asked the parties to prepare letter-briefs on whether the
Rooker-Feldman doctrine affects our subject matter
jurisdiction in this case. See Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 283 (2005) (explaining that
“federal courts of first instance” lack jurisdiction to “review
and reverse unfavorable state-court judgments” (citing
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court
of Appeals v. Feldman, 460 U.S. 462 (1983))). Appellees
responded by arguing that the Rooker-Feldman doctrine bars
Mother’s constitutional claims. Mother, of course, argues
that the doctrine “has absolutely no application” to any of her
claims. (Appellant’s Letter Mem. at 1.)

19
Mother’s complaint also pleaded a First Amendment
claim and a civil conspiracy claim, which she has abandoned
on appeal.

18
 In Great Western Mining & Mineral Company v. Fox
Rothschild LLP, 615 F.3d 159 (3d. Cir. 2010), we surveyed
recent caselaw and concluded that “there are four
requirements that must be met for the Rooker-Feldman
doctrine to apply,” id. at 166, namely that “(1) the federal
plaintiff lost in state court; (2) the plaintiff complain[s] of
injuries caused by [the] state-court judgments; (3) those
judgments were rendered before the federal suit was filed;
and (4) the plaintiff is inviting the district court to review and
reject the state judgments,” id. (alterations in original)
(citation and internal quotation marks omitted). We
concluded that a federal claim alleging that the defendants
conspired to engineer the plaintiff’s loss in state court
proceedings was not barred by Rooker-Feldman because it
did not “assert injury caused by state-court judgments and
seek review and rejection of those judgments[.]” Id. at 171.
Because the injury Mother claims is likewise traceable to
Appellees’ actions, as opposed to the state court orders those
actions allegedly caused, we reject Appellees’ contention that
the Rooker-Feldman doctrine precludes federal subject matter
jurisdiction in this case. Cf. id. at 166-67 (a father’s suit “for
the return of his son on grounds that the state judgment
violates his federal substantive due-process rights as a parent”
is barred by Rooker-Feldman (quoting Hoblock v. Albany
Cnty. Bd. of Elections, 422 F.3d 77, 87 (2d Cir. 2005))).

Having rejected Appellees’ invocation of the Rooker-
Feldman doctrine, it is clear that the District Court had
jurisdiction under 28 U.S.C. § 1331. We, in turn, have
jurisdiction under 28 U.S.C. § 1291, and exercise “plenary
review of [the] district court’s grant of summary judgment.”
Funk v. CIGNA Grp. Life Ins., 648 F.3d 182, 190 (3d Cir.
2011). Accordingly, we view the facts in Mother’s favor to

19
determine whether the District Court correctly held that
“there [was] no genuine dispute as to any material fact and
[that Appellees were] entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Because Mother challenges the
District Court’s decision to deny her summary judgment on
her procedural due process claim, we must also view the facts
in the light most favorable to Appellees to determine whether
the District Court correctly determined that Mother was not
entitled to summary judgment on that claim.

III. Discussion

The Fourteenth Amendment’s Due Process Clause
prohibits states from “depriv[ing] any person of life, liberty,
or property, without due process of law,” U.S. Const. amend.
XIV. “As [the] concept [of due process] has developed, it has
come to have both substantive and procedural components.”
Evans v. Sec’y Pa. Dep’t of Corr., 645 F.3d 650, 658 (3d Cir.
2011). Mother contends that Appellees violated both
components when they removed Daughter from her home and
transferred the child to Father’s custody, and she thus seeks
redress pursuant to 42 U.S.C. § 1983. 20 According to Mother,
the District Court erred by entering judgment in Appellees’
favor on the substantive due process claim, and by failing to

20
Section 1983 permits a cause of action against
“[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws [of the United States] … .” 42 U.S.C. § 1983.

20
enter a judgment recognizing that Appellees violated her
procedural due process rights. She asks, therefore, that we
vacate the District Court’s order and remand the case for
entry of judgment on her procedural due process claim, and
for a trial on her substantive due process claim and on the
damages attendant to her procedural due process claim.

Appellees respond that the District Court appropriately
entered judgment in their favor because their actions did not
violate Mother’s due process rights. They further contend
that, in any event, Eller and Barth cannot be liable because
they are entitled to absolute or qualified immunity for all
claims against them. In addition, although Appellees have
not pressed the issue in their briefing before us, they argued
to the District Court that the County cannot be liable because
it is a municipal entity and not culpable for the acts of its
agents, and, if true, that would be a basis for affirming the
District Court’s judgment as to the claims against the
County. 21 Cf. Ridley Sch. Dist. v. M.R., 680 F.3d 260, 282
(3d Cir. 2012) (“[W]e can affirm based on any grounds

21
As discussed at greater length herein, liability under
§ 1983 “attaches to a municipality only when execution of a
government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury.” Andrews v.
City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (citation
omitted); see Good v. Dauphin Cnty. Social Servs. For
Children & Youth, 891 F.2d 1087, 1096 (3d Cir. 1989) (“The
defendants … now argue that summary judgment should be
affirmed on the ground that plaintiffs failed to state a cause of
action against them under section 1983, because municipal
liability cannot be based upon respondeat superior … .”).

21
supported by the record.”). We consider first whether Eller
and Barth are liable to Mother for any procedural or
substantive due process violations, and then we address the
County’s liability for those claims.

A. Due Process Claims Against Eller and Barth

1. Absolute Immunity in the Child Welfare
Context 22

Although the Supreme Court has made clear that
“[m]ost public officials are entitled only to qualified
immunity,” it has recognized that “public officials who
perform ‘special functions,’” such as prosecutors, are
sometimes entitled to absolute immunity. Yarris v. Cnty. of
Del., 465 F.3d 129, 135 (3d Cir. 2006) (quoting Butz v.
Economou, 438 U.S. 478, 508 (1978)). The purpose of
according absolute immunity to such officials is to ensure that
they “can perform their respective functions without

22
Unlike a qualified immunity analysis, which often
involves an initial inquiry into whether the facts alleged show
a violation of a constitutional right, see Pearson v. Callahan,
555 U.S. 223, 232-36 (2009) (concluding that it is often
appropriate, although not mandatory, for a court to first
consider whether the facts alleged show a violation of a
constitutional right before reaching the qualified immunity
issue), the question of absolute immunity can be addressed as
a threshold issue. See Mitchell v. Forsyth, 472 U.S. 511, 520
(1985) (concluding first that the Attorney General was not
entitled to absolute immunity for his conduct before turning
to the question of whether a constitutional right had been
violated).

22
harassment or intimidation.” Butz, 438 U.S. at 512.
Although conferring absolute immunity obliges courts to
sometimes deny relief to those “with valid claims against
dishonest or malicious government officials,” Snell v.
Tunnell, 920 F.2d 673, 687 (10th Cir. 1990), the underlying
logic is that it is ultimately “better to leave unredressed the
wrongs done by dishonest officers than to subject those who
try to do their duty to the constant dread of retaliation,”
Yarris, 465 F.3d at 135 (citation and internal quotation marks
omitted).

Still, absolute immunity is “strong medicine, justified
only when the danger of [officials’ being] deflect[ed from the
effective performance of their duties] is very great.”
Forrester v. White, 484 U.S. 219, 230 (1988) (alterations in
original) (citation and internal quotation marks omitted).
Moreover, officials who “seek exemption from personal
liability” on that basis bear “the burden of showing that such
an exemption is justified by overriding considerations of
public policy.” Id. at 224. Thus, “[i]n light of the Supreme
Court’s ‘quite sparing’ recognition of absolute immunity …,
we begin with [a] presumption that qualified rather than
absolute immunity is appropriate,” unless the official
invoking absolute immunity meets a “heavy burden of
establishing entitlement” to it. Odd v. Malone, 538 F.3d 202,
207-08 (3d Cir. 2008) (citation omitted).

Appellees contend that they have met that burden here
because Eller and Barth performed “actions … closely
analogous to those of prosecutors.” (Appellees’ Br. at 39.)
As Appellees correctly point out, we have recognized that the
justifications for according absolute immunity to prosecutors
sometimes apply to child welfare employees. Specifically, in

23
Ernst v. Child & Youth Services of Chester County, 108 F.3d
486 (3d Cir. 1997), we joined several of our sister circuits in
deeming “child welfare workers and attorneys who prosecute
dependency proceedings on behalf of the state … absolute[ly]
immun[e] from suit for all of their actions in preparing for
and prosecuting such dependency proceedings.” Id. at 488-
89. The plaintiff in that case was the grandmother of a minor
child for whom she was the sole legal guardian. Id. at 489.
After receiving a report that the child had an extreme and
unhealthy attachment to the grandmother, an employee of a
state child welfare agency initiated emergency dependency
proceedings to remove the child from the grandmother’s
custody and commit her to the custody of the state. Id. An
immediate detention hearing was held, at which a state judge
ordered that the child be placed in a psychiatric institution for
a complete evaluation. Id. The state child welfare agency
assumed custody of the child, and a legal battle between the
agency and the plaintiff ensued. Id.

The plaintiff eventually filed suit under § 1983
alleging, inter alia, due process claims against various agency
caseworkers and a private attorney who had represented the
agency throughout the dependency proceedings. On appeal,
we considered whether those defendants were “entitled to
absolute immunity for their actions in petitioning and in
formulating and making recommendations to the state court.”
Id. at 493. We began our analysis by noting that § 1983 “did
not abolish long-standing common law immunities from civil
suits,” id., including those against individuals who hold
offices that did not exist at common law but who perform
tasks “analogous to functions performed by those who were
immune at common law,” id. at 494. Drawing on the
Supreme Court’s extension of absolute immunity to

24
prosecutors, we held that absolute immunity cloaked state
child welfare caseworkers from liability with respect to “their
actions on behalf of the state in preparing for, initiating, and
prosecuting dependency proceedings.” Id. at 495. We
clarified that such immunity was broad enough “to include
the formulation and presentation of recommendations to the
court in the course of such proceedings” id., but we also said
that “we would be unwilling to accord absolute immunity to
‘investigative or administrative’ actions taken … outside the
context of a judicial proceeding,” id. at 497 n.7.

Our holding, as we explained it, was premised on three
parallels between child welfare employees and prosecutors:

(1) the functions performed by [state child
welfare caseworkers] in dependency
proceedings are closely analogous to the
functions performed by prosecutors in criminal
proceedings; (2) the public policy
considerations that countenance immunity for
prosecutors are applicable to child welfare
workers performing these functions; and (3)
dependency proceedings incorporate important
safeguards that protect citizens from
unconstitutional actions by child welfare
workers.

Id. at 495. As to the first point, we observed that, like
prosecutors, “social worker[s] must make a quick decision
based on perhaps incomplete information as to whether to
commence investigations and initiate proceedings against
parents who may have abused their children.” Id. at 496
(quoting Meyers v. Contra Costa Cnty. Dep’t of Soc. Servs.,

25
812 F.2d 1154, 1157 (9th Cir. 1987) (internal quotation marks
omitted)). Regarding the applicable public policy
considerations, we noted that, much like prosecutors, child
welfare workers “acting in a quasi-prosecutorial capacity in
dependency proceedings” are forced to “exercise independent
judgment” that should not be compromised by exposing them
to the potentially chilling effect of § 1983 liability. Id. at 496.
Finally, we gave two reasons why § 1983 liability was not the
only mechanism available to protect the public against
unconstitutional conduct:

First, the judicial process itself provides
significant protection. Child welfare workers
must seek an adjudication of dependency from a
neutral judge whose decisions are guided by the
“best interests of the child” and subject to
appellate review. Second, although child
welfare workers are not subject to the
comprehensive system of professional
responsibility applicable to prosecutors, they are
under the supervision of the agency that
employs them. The agency has an incentive to
ensure that its employees do not violate
constitutional rights because it is not immune
from suit for abuses committed by employees
with policy-making authority or acting pursuant
to agency policy or custom.

Id. at 497 (citation omitted). Because the plaintiff’s claims
against the state child welfare workers arose “in connection
with the formulation and presentation of recommendations to
the state court regarding [the child’s] dependency status and

26
disposition,” we deemed those workers entitled to absolute
immunity. Id.

We likewise extended that immunity to the private
attorney who had represented the agency, because the
attorney had – like the agency’s employees – taken action “on
behalf of the State that [was] integrally related to the judicial
process.” Id. at 502; see also id. at 504. Notably, we did so
even though the attorney’s allegedly unlawful actions
occurred after the attorney had been ordered removed from
serving on the agency’s behalf and had been undertaken with
a subjectively malicious intent. Id. at 503; see also id. (“It is
true that Ernst alleged, and the court found, that [the attorney]
… filed this petition because of hostility to Ernst rather than
for the purpose of serving the best interest of [the child].”).
Reasoning that the immunity analysis was to be undertaken
“without reference to the official’s subjective state of mind,”
id. at 502, we concluded that absolute immunity could protect
the attorney from liability flowing from prosecutorial actions,
as long as the challenged acts were not those that “a
reasonable [person] would recognize as being clearly outside
his jurisdiction,” id. at 502 (citation and internal quotation
marks omitted). Because “a reasonable attorney in [the
attorney]’s position could have concluded that she owed a
duty to her client,” since a new lawyer had not been
appointed to replace her at the time of the challenged conduct,
we held that she “did not act in a clear absence of authority”
and was therefore entitled to absolute immunity. Id. at 504.

Appellees claim that the requests for orders pertaining
to Mother’s custodial rights are entitled to absolute immunity
under Ernst because they constitute protected advocacy. (See
Appellees’ Br. at 42 (“Requesting … an order is ‘petitioning’

27
the court, and providing any testimony constitutes ‘making
recommendations to the state court’ and/or ‘acting as an
advocate in judicial proceedings’ … .”).) The District Court
accepted that argument, understanding our precedent in Ernst
to mean that “there must be a judicial court order before …
social workers … [may] receive absolute immunity.” (Joint
App. at 24.) The District Court was satisfied that, in this
case, that prerequisite was effectively satisfied because “the
acts [Eller and Barth] performed in seeking a judicial order
transferring custody from the Natural Mother to the Natural
Father were closely associated with the judicial process.” (Id.
at 25.)

Mother argues that the District Court ignored that, in
this case, unlike in Ernst, dependency proceedings were never
initiated; the County instead requested that the Court issue an
order in response to a caseworker’s summary 23 and, in so
doing, avoided affording Mother automatic process under
state law. 24 Thus, she argues, the checks on unconstitutional
conduct that were part of the justification for extending

23
Appellees refer to this process as a “Summary and
Order procedure.” (See, e.g., Appellees’ Br. at 23.)
24
There is a “heads-I-win, tails-you-lose” quality to
the Appellees’ assertion that, on the one hand, the lack of
dependency proceedings means there was no obligation to
afford Mother a prompt post-removal hearing, see supra Part
I.C, while, on the other hand, the alleged similarity between
the County’s Summary and Order procedure and dependency
proceedings means that Eller and Barth should be absolutely
immune. We reach our holding in spite of and not because of
that somewhat inconsistent line of argument.

28
absolute immunity in that case simply do not exist here. See
Ernst, 108 F.3d at 497 (“Finally, as with prosecutors, there
are alternative mechanisms other than the threat of § 1983
liability that protect the public against unconstitutional
conduct by child welfare workers.”).

That argument is not without logical force. The
availability of “alternatives to damages suits against the
official as [a] means of redressing wrongful conduct” is a
factor that we must consider when assessing whether a
government official is entitled to absolute immunity.
Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992); see
id. (“Three factors determine whether a government official
should be given absolute immunity for a particular function:
1) whether there is a historical or common law basis for the
immunity in question; 2) whether performance of the function
poses a risk of harassment or vexatious litigation against the
official; and 3) whether there exist alternatives to damage
suits against the official as means of redressing wrongful
conduct.” (citation and internal quotation marks omitted)); cf.
Butz, 438 U.S. at 512 (“Because the[] features of the judicial
process tend to enhance the reliability of information and the
impartiality of the decisionmaking process, there is a less
pressing need for individual suits to correct constitutional
error.”).

Ultimately, however, Mother’s contention is
overstated. As a careful comparison of this case to Ernst
reveals, the same sorts of protection we identified there
actually do apply here with respect to the caseworkers’
function of seeking judicial orders related to custody of
Daughter. First, as is true of dependency proceedings, “the
judicial process itself” provided some check against wrongful

29
conduct under the procedure the County employed in
removing Daughter from Mother’s home. Ernst, 108 F.3d at
497. Although the County’s protocol did not include the
post-removal hearing that dependency proceedings include,
Daughter’s removal was nevertheless effectuated only after
Eller presented her findings to “a neutral judge whose
decisions [were] guided by [Daughter’s] best interests.” Id.
(internal quotation marks omitted). Second, even without
following the protocols for removing a child in dependency
proceedings, the agency in this case had the incentive we
described in Ernst “to ensure that its employees do not violate
constitutional rights because it is not immune from suit for
abuses committed by employees with policy-making
authority or acting pursuant to agency policy or custom.” Id.
Thus, although Ernst is certainly distinguishable in that
absolute immunity was available to child welfare workers
“for their actions on behalf of the state in preparing for,
initiating, and prosecuting dependency proceedings,” id. at
495 (emphasis added), that distinction is not dispositive as far
as the availability of “important safeguards that protect
citizens from unconstitutional actions” goes. Id.

Nor is Mother’s argument persuasive as to the
“functions performed” or the “public policy considerations”
we identified in Ernst. Id. Like caseworkers who present
their findings during dependency proceedings, the
caseworkers here were forced to act quickly to protect a child
from perceived neglect or abuse and had to exercise
independent judgment in doing so. See id. at 496-97. After
speaking with Dr. Lindblad, Eller discussed the matter with
Barth and decided it was necessary to initiate a ChildLine
report so as to “report allegations of serious physical neglect”
(Joint App. at 463), that would enable her to promptly secure

30
a court order to have Daughter removed from Mother’s care
and to protect Daughter from further abuse. The specter of
§ 1983 liability in future cases could well impede the ability
of Eller and others in her position to take action in an
emergency. We therefore believe that Ernst’s absolute
immunity for child welfare employees is appropriate when
the employee in question “formulat[es] and present[s] …
recommendations to the court” with respect to a child’s
custody determination, even if those recommendations are
made outside the context of a dependency proceeding. 25
Ernst, 108 F.3d at 495.

Having determined that the absence of dependency
proceedings is not, in itself, a basis for resolving the absolute
immunity question, we must now consider whether Eller and
Barth were, in fact, formulating and presenting
recommendations to a court when they undertook the conduct
of which Mother complains. In other words, we need to
ascertain whether Eller and Barth “function[ed] as the state’s
advocate when performing the action(s)” that gave rise to the
due process violations Mother seeks to redress, or whether
those claims instead arose from unprotected “administrative
or investigatory actions.” Odd, 538 F.3d at 208; see Ernst,
108 F.3d at 495, 497 n.7 (noting immunity for caseworkers

25
The dissent contends that the absence of dependency
proceedings requires that we deny absolute immunity. That,
however, would unnecessarily convert what is a feature of
some immunity cases into a prerequisite for immunity in all
child welfare cases. Our focus should be, instead, on whether
the function of the child welfare worker, while engaged in the
challenged act, was prosecutorial. See Ernst, 108 F.3d at 495
(emphasizing the import of the function performed).

31
includes “the formulation and presentation of
recommendations to the court” but that we would not “accord
absolute immunity to ‘investigative or administrative’ actions
taken … outside the context of a judicial proceeding”). The
question is “what function … th[eir] act[s] served,”
Schneyder v. Smith, 653 F.3d 313, 332 (3d Cir. 2011). We
address that question first with regard to the acts underlying
the alleged procedural due process violations, and then turn to
the substantive due process claims.

2. Procedural Due Process

The procedural due process claims arose when Eller
and Barth, with the County’s approbation, removed Daughter
from Mother’s custody by presenting ex parte conclusions
about Daughter’s welfare to Judge Cascio on May 5, 2006,
and perpetuated that removal through a second ex parte
meeting on June 23, 2006. 26 In each of those meetings, Eller,
on behalf of the County and under Barth’s supervision,
recommended that the court issue an order depriving Mother
of custody of Daughter. Such actions are “intimately
associated with the judicial process in much the same way as
are a prosecutor’s actions in representing the state in criminal
prosecutions.” Ernst, 108 F.3d at 496 (internal quotation
marks omitted). Inasmuch as their acts were fundamentally
prosecutorial, in the manner described in Ernst, we conclude
that Eller and Barth are absolutely immune from liability with

26
We address the procedural due process claims
against the County infra Part III.B. Here, for purposes of the
absolute immunity determination, we address only those
claims against Eller and Barth.

32
respect to the procedural due process claims. 27 See id. at 495
(according immunity for “the formulation and presentation of
recommendations to the court”).

27
Our dissenting colleague argues that there can be no
absolute immunity for the procedural due process claims
because the caseworkers lacked “statutory authorization to
approach the judge to request” the orders. (Dissent at 4; see
id. at 16 (discussing the second ex parte meeting).) That
authorization was lacking, he claims, because the caseworkers
“merely initiat[ed] a custody process between parents,” a
process not included in the statutorily permitted
circumstances under which caseworkers can seek a removal
order. (Id. at 7.) It is certainly true that absolute immunity
does not protect acts in a “complete and clear absence of
authority.” Snell, 920 F.2d at 694. The question of whether
an act can be so characterized, however, is assessed from the
perspective of the objectively reasonable caseworker,
“without reference to the official’s subjective state of mind.”
Ernst, 108 F.3d at 502. We disagree with the suggestion in
the dissent that the caseworkers here could not have
reasonably believed their actions were in furtherance of their
authority. In Ernst, we determined that the lawyer who had
been removed from serving on the agency’s behalf “did not
act in a clear absence of authority” because she could have
reasonably “concluded that she owed a duty to her client”
under the circumstances. Id. at 504. So too here. There can
be no question that it was proper for the caseworkers to
endeavor to protect Daughter, see 55 Pa. Code § 3490.53(b)
(“The county agency shall protect the safety of the subject
child and other children in the home … and shall provide or
arrange appropriate services when necessary during the
investigation period.”), and the purpose of both the May 5

33
 3. The Substantive Due Process Claim

That, however, does not definitively settle the absolute
immunity question in this case, because the substantive due
process claim with respect to Eller remains to be addressed. 28

and June 23 orders was to do just that. Even if Pennsylvania
law requires that purpose to be effectuated by other means
than the procedure undertaken here, it cannot be persuasively
said that a reasonable caseworker would believe that she had
acted “in a clear absence of authority” in procuring the May 5
and June 23 orders. Ernst, 108 F.3d at 504.
28
Although Mother brings this claim against all of the
Appellees, she fails to identify any action by Barth that
amounts to a substantive due process violation, instead
focusing entirely on Eller’s conduct. (See Appellant’s
Opening Br. at 58 (“[A] jury could conclude that Eller was
deliberately indifferent … and … acted in a grossly negligent
manner.” (emphasis added)); id. at 61 (“[A] jury could find
that Eller’s conduct shocks the conscience … .” (emphasis
added)).) We conclude, therefore, that Mother has waived
any challenge to the District Court’s ruling that Barth is
entitled to summary judgment on the substantive due process
claim. See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d
193, 202-03 (3d Cir. 2004) (“We have held on numerous
occasions that [a]n issue is waived unless a party raises it in
its opening brief, and for those purposes a passing reference
to an issue will not suffice to bring that issue before this
court.” (alteration in original) (citation and internal quotation
marks omitted)). We address the County’s substantive due
process liability infra Part III.B, and thus address only Eller’s
substantive due process liability here.

34
Mother contends that that claim arose when Eller removed
Daughter on May 5, 2006, based on misrepresented medical
evidence (see Appellant’s Opening Br. at 52 (arguing that
Eller “concoct[ed] facts to convince Judge Cascio that he
should permit the separation of Daughter from Mother
coupled with the absence of information, which would justify
removal”)), and when Eller subsequently “manipulat[ed] [the]
evidence associated with the ChildLine report investigation”
and presented that report’s conclusions to Judge Cascio on
June 23, 2006, as the basis for her recommendation that
Mother not regain custody of Daughter (id.). As the
immunity analysis hinges on the specific function served by
Eller’s actions, we address each of those actions in turn.

a. Daughter’s Initial Removal

Mother contends that Eller’s initial removal of
Daughter on May 5, 2006 constitutes a substantive due
process violation because Eller improperly relied on a report
from Dr. Lindblad and misrepresented Daughter’s weight on
the summary she prepared for Judge Cascio. That claim
presents a difficult immunity issue. Although Eller
eventually presented her recommendations to a court, and is
entitled to absolute immunity for that under Ernst, her
solicitation of information from Dr. Lindblad and the
compilation of her findings into an abuse report occurred
prior to the initiation of judicial proceedings. See Ernst, 108
F.3d at 497 (holding that “formulation and presentation of
recommendations to the state” is entitled to absolute
immunity, but declining to accord immunity to “investigative
or administrative” actions (citation omitted)). Mother’s claim
thus raises the question of precisely where to draw the line
between a child welfare employee’s investigative and

35
prosecutorial functions, an issue that is not clearly addressed
by our holding in Ernst.

But we do not need to answer that question today
because, even if we were to conclude that Eller was not
entitled to absolute immunity, no rational jury could find that
her initial removal of Daughter violated Mother’s substantive
due process rights. In Miller v. City of Philadelphia, 174 F.3d
368 (3d Cir. 1999), we held that a substantive due process
claim requires “decision-making by a social worker that is so
clearly arbitrary … [that it] can properly be said to ‘shock the
conscience.’” Id. at 376; see also Croft v. Westmoreland
Cnty. Children & Youth Servs., 103 F.3d 1123, 1124–26 (3d
Cir. 1997). In so holding, we observed that “[t]he exact
degree of wrongfulness necessary to reach the ‘conscience-
shocking’ level depends upon the circumstances of a
particular case,” because a “higher fault standard is proper
when a government official is acting instantaneously and
making pressured decisions without the ability to fully
consider their risks.” Miller, 174 F.3d at 375. In such
situations, the “standard of culpability” necessary for a child
welfare employee’s actions to shock the conscience must
generally “exceed both negligence and deliberate
indifference.” Id.

Eller’s actions on May 5 may not be free from fault,
but they cannot be said to shock the conscience. When Eller
removed Daughter on May 5, she acted quickly upon
information from a physician who had been treating Daughter
over the course of several months. Dr. Lindblad told Eller of
medical evidence that indicated serious neglect. Although he
had not seen Daughter for approximately two-and-a-half
weeks, Dr. Lindblad knew enough about her case to cogently

36
describe the discrepancy between her growth during her
inpatient care at the Children’s Institute as compared with her
growth under Mother’s care. Based on Eller’s discussion
with Dr. Lindblad, it was reasonable to take the steps she did
to protect Daughter from Mother until there had been time to
investigate further. Considered in that context, Eller’s
misstatement that Daughter weighed 19 pounds, see supra
note 16 and accompanying text, cannot be viewed as more
than mere negligence, especially because the material facts
relayed by Dr. Lindblad that led Eller to act were all
accurately stated in her summary to Judge Cascio. We
conclude, therefore, that no rational jury could find that
Eller’s actions leading to the May 5 removal of Daughter
infringed upon Mother’s substantive due process rights.

b. Eller’s Subsequent Actions

Mother next argues that the way Eller handled her
subsequent investigation and report could support a jury
verdict in Mother’s favor on the substantive due process
claim. Specifically, Mother argues that Eller excluded from
her analysis the May 5 and May 8 weigh-ins, which suggested
that Daughter had improved under Mother’s care. According
to Mother, that omission demonstrates that Eller acted either
with a desire to manipulate the evidence or with deliberate
indifference to the truth, either of which would be sufficient
to support a jury verdict in her favor on the substantive due
process claim.

To resolve whether Eller is absolutely immune from
liability with respect to that claim, we turn to the question of
“what function (prosecutorial, administrative, investigative,
or something else entirely)” the acts of preparing the report

37
and presenting its conclusion to Judge Cascio served. 29
Schneyder, 653 F.3d at 332. That mode of analysis does not
lend itself to easy resolution in this case. Although Eller
“present[ed]” her “formulat[ed]” conclusions to Judge Cascio,
which could entitle her to absolute immunity, Ernst, 108 F.3d
at 495, the conclusions she reported were derived from the
abuse report she prepared for the state which, on its own,
plainly would not, see id. at 497 n.7 (“[W]e would be
unwilling to accord absolute immunity to investigative …
actions taken … outside the context of a judicial proceeding”
(emphases added) (internal quotation marks omitted)). There
would, in fact, be no serious basis for Eller to posit that she
acted as a quasi-prosecutor had she never secured a temporary
removal order from Judge Cascio or presented her report’s
conclusions to Judge Cascio after filing the report with the
state, because her function in investigating potential child
abuse and preparing a report required under state law does not
approximate legal advocacy. See Holloway v. Brush, 220
F.3d 767, 775 (6th Cir. 2000) (“[S]ocial workers are

29
We reach this issue with regard to this claim, unlike
with the claim arising from Eller’s May 5 conduct, because
Mother has a much stronger case that her substantive due
process rights were violated by Eller’s subsequent actions.
Eller’s failure to mention the May 5 and May 8 weigh-ins in
her report, combined with evidence in the record that she had
a contentious relationship with Mother (see Joint App. at 310
(describing how Eller found Mother “very offensive from the
beginning of [their] relationship”)), could potentially, upon
further analysis, support a determination that a rational jury
might conclude that her behavior shocked the conscience.
Thus, we must address whether Eller’s conduct is protected
by absolute immunity.

38
absolutely immune only when they are acting in their capacity
as legal advocates – initiating court actions or testifying
under oath – not when they are performing administrative,
investigative, or other functions.”).

But the presence of an investigative component to
Eller’s conduct does not bar the application of absolute
immunity when the function of her actions is still
fundamentally prosecutorial in nature. In Ernst, we noted that
“[t]he Supreme Court has explicitly rejected the idea that
absolute prosecutorial immunity extends only to the act of
initiation itself and to conduct occurring in the courtroom.”
Ernst, 108 F.3d at 497 (citation and internal quotation marks
omitted). Rather, absolute immunity can protect acts
undertaken “in prepar[ation] for the initiation of judicial
proceedings,” so long as they fall within a prosecutor’s “role
as an advocate for the state.” Id. at 497–98 (citation omitted).
Extending that reasoning to apply to child welfare employees,
we concluded in Ernst that absolute immunity protects not
only caseworkers’ presentations of their recommendations to
a court, but also their “gathering and evaluation of
information” to formulate those recommendations and to
prepare for judicial proceedings. Id. at 498. To hold
otherwise, we explained, would expose caseworkers to
liability “for the observations and judgments that were the
necessary predicate” for their protected recommendations,
which would “eviscerate the immunity they did receive and
undermine the purposes sought to be advanced by the grant of
absolute immunity.” Id.

Here, the further investigation that Eller undertook
after Judge Cascio’s initial order, and the subsequent
ChildLine report that Eller filed, were part of an ongoing

39
judicial proceeding throughout which she served as an
advocate for the state. As described above, see supra Part
III.A.2, Eller assumed a fundamentally prosecutorial role
during the May 5 hearing, arguing on behalf of the County for
Daughter’s removal from Mother’s care. Following that
initial removal, Eller undertook her investigation with the
understanding that her conclusions would be considered in a
subsequent custody determination. Judge Cascio’s May 5
order placed Daughter in Father’s custody only “until the
completion of the investigation,” indicating that a second
determination would be made “pending [its] result.” (Joint
App. at 468.) During the June 23 hearing, when that second
determination was made, Eller again represented the County
in recommending that the temporary change of custody be
made permanent. Her investigation was thus conducted in the
context of an open judicial proceeding, throughout which her
overall role was analogous to that of a prosecutor. See Ernst,
108 F.3d at 496 (establishing that caseworkers’ actions are
protected to the extent that they are “intimately associated
with the judicial process in much the same way as are a
prosecutor’s actions in representing the state in criminal
prosecutions” (internal quotation marks omitted)).

In addition to serving in a prosecutorial capacity,
Eller’s specific actions were akin to a prosecutor’s
preparations for trial. Cf. Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993) (“[T]he actions of a prosecutor are not
absolutely immune merely because they are performed by a
prosecutor.”). During her investigation, Eller was “gathering
and evaluat[ing] information” in preparation for an upcoming
judicial proceeding, see Ernst at 498 (extending absolute
immunity to such preparations), and the observations and
judgments compiled in her ChildLine report served as the

40
basis for her recommendations to Judge Cascio on June 23,
2006. In Ernst, we expressed concern that excluding such
“observations and judgments” from immunity when they
form the “necessary predicate” for protected
recommendations would “undermine the purposes sought to
be advanced by the grant of absolute immunity.” Id. That
concern is similarly implicated here. If we protect Eller when
she presents her recommendations to a judge, but allow her to
be sued for preparing the report that she intends to present,
absolute immunity has offered her no real protection; she will
still have to defend in court the basis for her decision to
recommend removal. Cf. Yarris, 465 F.3d at 135 (concluding
that it is “better to leave unredressed the wrongs done by
dishonest officers than to subject those who try to do their
duty to the constant dread of retaliation” (citation and internal
quotation marks omitted)).

We therefore conclude that Eller’s actions are
protected by absolute immunity with respect to Mother’s
substantive due process claim. We emphasize, however, as
we did in Ernst, that this holding does not insulate from
liability all actions taken by child welfare caseworkers. See
id. at 497 n.7 (“[W]e would be unwilling to accord absolute
immunity to investigative or administrative actions taken by
child welfare workers outside the context of a judicial
proceeding.” (citation and internal quotation marks omitted)).
Investigations conducted outside of the context of judicial
proceedings may still be susceptible to due process claims.
Nor can caseworkers shield their investigatory work from
review merely by seeking a court order at some point. See
Buckley, 509 U.S. at 276 (“[A] prosecutor may not shield his
investigative work with the aegis of absolute immunity
merely because … that work may be retrospectively

41
described as ‘preparation’ … .” (citation omitted)). The key
to the absolute immunity determination is not the timing of
the investigation relative to a judicial proceeding, but rather
the underlying function that the investigation serves and the
role the caseworker occupies in carrying it out. See
Schneyder, 653 F.3d at 332 (“The court must ascertain …
what conduct forms the basis for the plaintiff’s cause of
action, and … then determine what function … that act
served.”). Here, Eller advocated on behalf of the County in
the May 5 meeting and continued in that role through the June
23 custody determination. Because the underlying function
of her actions throughout that judicial proceeding – including
during the investigation and composition of the report – was
fundamentally prosecutorial in nature, she is entitled to
absolute immunity for this claim.

B. Due Process Claims Against the County

Having concluded that none of the claims against Eller
and Barth are viable, we turn now to Mother’s due process
claims against the County. Mother contends that the County
violated her procedural due process rights by failing to afford
her a prompt post-removal hearing after Daughter was
removed from her custody on May 5, 2006, and through
Eller’s actions in meeting ex parte with Judge Cascio on June
23, 2006, and providing him with what Mother alleges is false
information about her treatment of Daughter. She also argues
that the County violated her substantive due process rights
because Daughter’s removal was based on Eller’s
“concoct[ed] facts” and “manipulate[ed] … evidence.”
(Appellant’s Opening Br. at 52.)

42
 1. Failure to Provide a Post-Removal
Hearing

Due process is implicated when protected interests
such as a parent’s liberty interest “in the custody, care and
management of [his or her] children” are subjected to
intrusion by the state. Croft, 103 F.3d at 1125. An individual
must ordinarily be afforded “the opportunity to be heard ‘at a
meaningful time and in a meaningful manner’” before any
such intrusion. Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). The extent of that obligation is, as the Supreme
Court has instructed, a flexible one, based upon a balance of
several factors:

First, the private interest that will be affected by
the official action; second, the risk of an
erroneous deprivation of such interest through
the procedures used, and the probable value, if
any, of additional or substitute procedural
safeguards; and finally, the Government’s
interest, including the function involved and the
fiscal and administrative burdens that the
additional or substitute procedural requirement
would entail.

Id. at 335. Thus, when a parent complains of state action
intruding on the “parent-child relationship,” the parent’s
interest must “be balanced against the state’s interest in
protecting children suspected of being abused.” Miller, 174
F.3d at 373. While the question of what constitutes due
process is necessarily rooted in the circumstances of a given
case, it is axiomatic that at least some process is required

43
when a “state seeks to alter, terminate, or suspend a parent’s
right to the custody of [her] minor children.” McCurdy v.
Dodd, 352 F.3d 820, 827 (3d Cir. 2003).

Mother, as noted, argues that her procedural due
process rights were violated here because she was afforded no
hearing when Daughter was removed through the County’s
practice of transferring custody to another guardian. See
supra Part I.C. Indeed, Mother’s first opportunity to protest
her Daughter’s removal was when she appeared before Judge
Cascio 40 days later in connection with the habeas corpus
proceedings that she herself had initiated.

Adopting the arguments of the Appellees, the District
Court concluded that Mother’s procedural due process rights
were not violated. It reasoned that the May 5, 2006 order
“did not terminate all parental custody rights” but instead
“transferred primary custody from the Natural Mother to the
Natural Father and provided for supervised visitation of the
Natural Mother with the Minor Child.” (Joint App. at 36.)
The Court further concluded that Mother was “receiving and
has received due process” because she had the opportunity to
schedule a hearing and because “[t]he period of forty-five
days during which [the County] concluded its [abuse]
investigation was not an overly lengthy deprivation of the
Natural Mother’s status as primary custodian pending the
completion of the investigation.” (Id. at 36-37.) While the
District Court was right to consider the degree to which the
order intruded upon Mother’s rights in ascertaining what
process was due under the circumstances, see Mathews, 424
U.S. at 335 (instructing courts to consider “the private interest
that will be affected by the official action”), we cannot agree
with its conclusion that Mother received due process.

44
 Even if Mathews’s flexible standard permitted less
process here than in a case where the state takes custody of a
child – and that is a question on which we express no opinion
at this time – that would not mean that no hearing was needed
to address the deprivation effected by the removal of
Daughter from Mother’s custody. The deprivation of a
parent’s custodial relationship with a child is among the most
drastic actions that a state can take against an individual’s
liberty interest, with profound ramifications for the integrity
of the family unit and for each member of it. From the
parent’s perspective, there may be little meaningful difference
between instances in which the state removes a child and
takes her into state custody and those in which the state shifts
custody from one parent to another, as occurred here. In
either case, the government has implicated a fundamental
liberty interest of the parent who loses custody. The state has
caused a deprivation and risks having done so wrongly. See
id. (noting “the risk of an erroneous deprivation” must be
considered). Therefore, assuming the “fiscal and
administrative burdens,” id., of affording such parents a
prompt post-removal hearing do not outweigh the need for
one – and it is hard to imagine when they would – such a
hearing ought to be held. 30 Cf. Berman v. Young, 291 F.3d
976, 985 (7th Cir. 2002) (“When the state removes a child

30
It seems plain that requiring a prompt post-removal
hearing would not impose a substantial administrative or
financial burden upon the government in this case, primarily
because such a hearing is already required whenever a county
agency petitions the court for a finding of dependency. See
supra note 11 and accompanying text.

45
from her parents, due process guarantees prompt and fair
post-deprivation judicial review.” (emphasis added)).

It is no adequate response to say, as the District Court
did and as the County continues to argue, that Mother was
given an opportunity to be heard because she filed a habeas
petition on her own and received a hearing in connection with
that. Some courthouse somewhere may be open to someone
aggressive and knowledgeable enough to initiate legal action,
but that does not meet the state’s burden of providing an
“opportunity to be heard at a meaningful time and in a
meaningful manner” to a parent deprived of custody,
Mathews, 424 U.S. at 333 (citation and internal quotation
marks omitted), particularly when, as here, no notice was ever
given as to how a hearing could be scheduled and the hearing
occurred 40 days after Daughter’s removal. 31 Cf. Berman,
291 F.3d at 985 (referring to “prompt and fair post-
deprivation judicial review”). Nor is it sufficient that
Mother’s custodial rights were eventually addressed after
Eller’s abuse investigation was concluded. The constitutional
deprivation at issue at this point is Daughter’s initial removal
from Mother’s home, so being heard much later, after the
deprivation, fails to address the harm.

31
Because it is uncontested that Appellees failed to
initiate a post-removal hearing in this case, we need not, and
do not, opine on the precise contours of the process that
Mother was due. Speaking generally, however, it should be
obvious that a hearing 40 days later is not sufficiently prompt.
The delay should ordinarily be measured in hours or days, not
weeks.

46
 Of course, “[t]he right to familial integrity … does not
include a right to remain free from child abuse
investigations.” Croft, 103 F.3d at 1125. However, in view
of the extremely important liberty interests at stake here, due
process required the County to offer Mother a chance to be
promptly heard after they took Daughter from her home,
regardless of whether or not state law independently imposed
that obligation. See Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 541 (1985) (the question of “what process is
due” is a matter of constitutional law, not state law (citation
and internal quotation marks)). And because there is no
dispute about the historical fact that Mother was not offered
the post-removal hearing to which she was constitutionally
entitled, we agree with Mother that the District Court should
have determined that the County violated her right to
procedural due process. 32

32
Had the County acted pursuant to a “protective
custody order,” rather than via an order transferring custody
between parents, its failure to provide a prompt hearing may
have also violated Pennsylvania law. See 42 Pa. Cons. Stat.
Ann. § 6324(1) (permitting the state to take a child into
custody pursuant to “a protective custody order removing a
child from the home of the parent, guardian, or custodian” if
the courts determines “that to allow the child to remain in the
home is contrary to the welfare of the child”). As described
above, see supra note 11, Pennsylvania law requires that an
informal hearing be held if protective custody is maintained
for longer than 72 hours. 23 Pa. Cons. Stat. Ann. § 6315(d).
Here, however, the County never claimed to be taking
Daughter into protective custody, and it transferred Daughter
to Father’s care well before 72 hours had elapsed.

47
 That, however, does not end our inquiry, because we
must also determine whether that due process irregularity
resulted in some damage. See Carey v. Piphus, 435 U.S. 247,
264 (1978) (holding that a plaintiff asserting a procedural due
process claim under § 1983 must introduce proof of damages
arising from the alleged due process violation in order to
recover actual damages). The County argues that it did not,
claiming that regardless of “the sufficiency of the process
granted … plaintiffs [cannot] demonstrate that such process
would have borne a different result.” (Appellees’ Br. at 29.)
Thus, the County says, the District Court appropriately
entered judgment in its favor. That is mistaken.

If nothing else, the violation of Mother’s right to
procedural due process would be a basis for awarding
nominal damages. See Carey, 435 U.S. at 266 (“[W]e believe
that the denial of procedural due process should be actionable
for nominal damages without proof of actual injury.”);
Simmons v. Uintah Health Care Special Dist., 506 F.3d 1281,
1286 (10th Cir. 2007) (“Even when one does not prove any
compensable damages from a due process violation, under
Section 1983 a cause of action and nominal damages remain
available.”). More importantly, however, there could be a
finding of actual damages.

The County is blind to that prospect. It asks us to hold
that no rational jury could conclude that a post-removal
hearing would have made a difference, because, as the
County sees it, no one could think the underlying facts are the
least ambiguous: Mother was starving Daughter, and that’s
that. But Daughter was weighed on May 5 and May 8,
immediately after having been in Mother’s care, and those
weights demonstrated a noteworthy improvement in her

48
condition. For that very reason, Dr. Lindblad testified that he
likely “would have waited until another opportunity to
examine [Daughter] before calling the ChildLine,” if he had
been aware of the May 5, 2006 weight of “22 pounds, 2
ounces.” (Joint App. at 369.) Another expert wondered why
Daughter was removed, since she had shown meaningful
improvement while in Mother’s then-recent custody. (See id.
at 695 (“It is unclear to me why the child was removed on a
day when she showed significant weight gain for the first
time while under the mother’s care.”).) Daughter’s May 5
and May 8 weights could have come to light if a post-removal
hearing had been conducted, 33 and, given the significance of
those weights, a reviewing judge may have ordered Daughter
to be returned to Mother’s custody if the judge accepted
Mother’s account of how the weigh-ins were conducted. 34 In

33
Appellees have not directed us to any evidence that
the May 5 and May 8 weights were brought to Judge Cascio’s
attention at the hearing on Mother’s habeas corpus petition,
and we have found none in the appellate record. Even if the
new weights were discussed at that hearing, we would not
necessarily reject Mother’s claim to damages, as the primary
issue at that hearing was not whether Daughter’s removal was
appropriate but, rather, whether the state had an obligation to
conduct a post-removal hearing under the CPSL, given that
Daughter had not been taken into state custody.
34
There are serious questions as to whether the May 5
and May 8 weights were valid results. Our dissenting
colleague indicates that Daughter must have been clothed
when she weighed in at 22 pounds, 2 ounces because Eller
made that first-hand observation on May 5. (see Dissent at 13
(arguing that Daughter “was clothed during [the May 5]
weigh-in”).) So do Appellees, relying on Eller’s testimony

49
short, it is not obvious that the custody determinations would
have been the same, had the information regarding the May 5
and May 8 weights been fully aired.

The only remaining question, then, is whether the
County is accountable to Mother for whatever damages a jury
finds she sustained as a result of that constitutional

that Daughter was clothed when she was weighed on May 5
and May 8. If a jury accepts that testimony, as the dissent
does, it may find that Mother suffered no damages in
connection with the procedural due process violation
committed here. However, despite any suggestion to the
contrary, that testimony is not uncontroverted; Daughter’s
medical record from Berlin Pediatrics lists those weights, and
the only indication that Daughter was clothed was added by
Eller herself. See supra note 17. That Berlin Pediatrics
recorded Daughter’s weights as having increased is
undisputed. Eller’s notation and testimony are disputed,
however, as a physician from that practice testified that it was
the “standard practice” to weigh a child such as Daughter
“without … clothes.” (Joint App. at 371.) Although that
physician did not observe Daughter being weighed on May 5
or May 8, we disagree with the dissent’s implicit conclusion
that the physician’s testimony about the way the clinic
conducted weigh-ins could not be accepted by a rational jury
and lead the jury to then question Eller’s account of how the
May 5 and May 8 weights were taken. (See Dissent at 13
(noting that the doctor “never challenged Eller’s testimony
that, in essence, his protocol was not followed on that
occasion”).) We do not imply how this factual dispute ought
to be resolved; we only note that the dispute exists.

50
violation. 35 With respect to municipalities such as the
County, that inquiry turns on whether the due process
violation was a result of the County’s “policy or custom,
whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy.” Monell v.
Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 694
(1978). A policy is a decision of a municipality’s “duly
constituted legislative body” or of “officials whose acts may
fairly be said to be those of the municipality.” Bd. of the
Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403-
04 (1997). A custom is a practice that, although “not …
formally approved by an appropriate decisionmaker … is so
widespread as to have the force of law.” Id. at 404. “In either
of these cases, it is incumbent upon a plaintiff to show that a
policymaker is responsible either for the policy or, through
acquiescence, for the custom.” Andrews v. City of Phila., 895
F.2d 1469, 1480 (3d Cir. 1990); see Chambers ex rel.
Chambers v. Sch. Dist. of Phila Bd. of Educ., 587 F.3d 176,
193 (3d Cir. 2009) (same).

Although the record does not support a conclusion that
the County has a formal policy against providing hearings for
parents such as Mother, the evidence does demonstrate, as the
County essentially admits in its briefing (see Appellees’ Br. at
23 (referring to the County’s “Summary and Order
procedure”)), that, amidst abuse allegations, the County has a
custom of removing children from a parent’s home without
conducting a prompt post-removal hearing if another parent

35
As discussed above, see supra Part III.A, we
conclude that Eller and Barth are absolutely immune from
liability relating to the failure to afford Mother a prompt post-
removal hearing.

51
can take custody. Hunt, the Assistant Director of Somerset
County Children and Youth Services, testified that the
procedure employed to remove Daughter from Mother’s
custody without a hearing is utilized in circumstances in
which there is a “fit-and-willing parent” to be “given the right
by the court to care for the child.” (Joint App. at 330.)
Douglas Walters, a caseworker supervisor at Somerset
County Children and Youth Services, elaborated that the
process is used several times each year, explaining that
caseworkers at the agency would know they could “obtain an
order to stop contact until [the agency] could investigate” in a
case such as Mother’s (id. at 339-340), because they would be
informed of that option “through discussions and meetings,
ongoing meetings, … with the[ir] supervisors,” (id. at 340).

Thus, while the relevant policymaker is not readily
apparent, 36 the evidence shows conclusively that, when a non-

36
“The question of who is a ‘policymaker’ is a
question of state law,” to be addressed by a court, not a jury,
in “determin[ing] which official has final, unreviewable
discretion to make a decision or take an action.” Andrews,
895 F.2d at 1481. Here, the District Court never determined
who the relevant policymaker was, since it simply determined
that Mother’s constitutional rights were not violated.
Although we think it likely that Hunt would qualify as a
policymaker for Monell purposes, the record and briefing is
not sufficient to enable us to definitively answer that question
in the first instance. We need not direct the District Court to
consider that issue afresh on remand, however, because while
“the identification of those officials whose decisions represent
the official policy of the local governmental unit is itself a
legal question to be resolved by the trial judge,” Jett v. Dallas

52
custodial parent is available to take a child, it is customary for
the County to temporarily suspend the other parent’s custody
rights without a hearing, when abuse is suspected. That
custom was utilized with official approbation in this case.
And, because there is no question that what the County calls
its “Summary and Order procedure” (Appellees’ Br. at 23)
violated Mother’s right to a prompt post-removal hearing, we
conclude that the County is liable under § 1983 for whatever
damages a jury may deem appropriate to redress that
violation. See Andrews, 895 F.2d at 1480 (stating that
liability attaches “only when execution of a government’s
policy or custom … inflicts the injury” (citation omitted)).

2. Other Due Process Claims Against the
County

We now briefly turn to Mother’s second procedural
due process claim against the County, which arises from
Eller’s ex parte report of the child abuse investigation to
Judge Cascio on June 23, 2006, and to her substantive due
process claim. There is no evidence supporting § 1983
liability against the County for either claim. Mother does not
allege that the June 23, 2006 meeting with Judge Cascio was

Indep. Sch. Dist., 491 U.S. 701, 737 (1989), Appellees’
effective admission of a custom obviates any need to have a
court “determine, by reference to local law, which … officials
had final policymaking authority,” Simmons v. City of Phila.,
947 F.2d 1042, 1065 (3d Cir. 1991) (Becker, J., concurring);
cf. id. at 1089 n.1 (Sloviter, J., concurring) (“I do agree …
with Judge Becker’s conclusion … that the City waived its
claim that plaintiff failed to identify the responsible
[policymaker] … .”).

53
made pursuant to any policy or custom. Lacking such
evidence, we must conclude that the District Court was
correct in holding that the County is not liable under § 1983
for any alleged constitutional harm arising from that meeting.
See Monell, 436 U.S. at 694 (“[I]t is when execution of a
government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.”).
Similarly, Mother’s substantive due process claim focuses
entirely on Eller’s conduct, alleging that her “concoct[ion]
[of] facts” and “manipulation of evidence” to effectuate
Daughter’s removal was so egregious that it “shocks the
conscience.” (Appellant’s Opening Br. at 52-53.) Because
Mother provides no evidence that the County had a policy or
custom endorsing such behavior, if it occurred, we agree with
the District Court that the County is entitled to summary
judgment on the substantive due process claim as well.

IV. Conclusion

For the foregoing reasons, we affirm in part and
reverse in part the District Court’s order. We affirm the
District Court’s order to the extent it awarded judgment in
favor of Eller and Barth on the procedural due process claims;
awarded judgment to all Appellees on the substantive due
process claims; and awarded judgment to the County on the
procedural due process claim as it relates to the June 23
meeting. We reverse the District Court’s denial of summary
judgment to Appellant on her procedural due process claim
against the County for its violation of her right to a post-
removal hearing, and we remand this case for a trial on the
damages associated with that violation.

54
 B. S., and B.S. as guardian and parent of T.S., G.S., and N.S.,
v. Somerset County; Somerset County Children and Youth
Services; Jessica Eller; Julie Barth, No. 11-1833.

Nygaard, Circuit Judge, concurring in part, dissenting in part.

I agree with the majority that the May 5, 2006
meeting between Eller and Judge Cascio violated procedural
due process, and that the County is liable for this violation. I
also agree that caseworkers Eller and Barth are immune from
liability on this issue. I write separately because I disagree
with the majority on the type of immunity that should be
extended to Eller and Barth, and because I differ on the scope
of the procedural due process remand.

As to the June 23, 2006 ex parte meeting, I conclude
that Eller violated procedural due process, and I would not
grant her any immunity on this claim. Nonetheless, I would
instruct the District Court to award only nominal damages.

Finally, I agree with the majority that B.S.’s
substantive due process claim regarding M.N.’s initial
removal from B.S.’s house does not have any merit.
However, I reach the same conclusion on all of B.S.’s
substantive due process claims. As a result, I do not find any
error in the District Court’s grant of summary judgment on
these claims.

May 5, 2006 Ex Parte Meeting

Absolute Immunity
 In light of our long tradition of reluctance to extend the
scope of immunity, I would not adopt the District Court’s
broad interpretation of Ernst as to the May 5, 2006 meeting
between Jessica Eller and Judge Cascio, applying absolute
immunity anytime a court order has been issued, regardless of
the context in which the order came about. I agree that a
functional analysis is appropriate to assess whether it is
proper to extend absolute immunity, but we must take care to
provide such immunity only where it is clear that it comports
with the larger concerns of procedural due process.

As the Supreme Court said:

Advocates are restrained not only
by their professional obligations,
but by the knowledge that their
assertions will be contested by
their adversaries in open court.
Jurors are carefully screened to
remove all possibility of bias.
Witnesses are, of course, subject
to the rigors of cross-examination
and the penalty of perjury.
Because these features of the
judicial process tend to enhance
the reliability of information and
the impartiality of the
decisionmaking process, there is a
less pressing need for individual
suits to correct constitutional
error.

2
Butz v. Economou, 438 U.S. 478, 512 (1978). When a child
welfare worker functions in the nature of a prosecutor in the
context of a judicial process that provides for cross-
examination and rebuttal (eliminating the need for collateral
litigation to challenge the caseworkers conduct), the full array
of considerations appropriate to absolute immunity are
addressed. That is the significance, in Ernst, of our grant of
absolute immunity to caseworkers in the context of
dependency proceedings, a limitation ensuring that the parties
and the court have ample opportunities to scrutinize the
caseworker’s conduct, decisions and recommendations.
Ernst, 108 F.3d at 497; see also Juvenile Act (42 Pa.C.S. §
6324(1)); see also Child Protective Services Act (23 Pa.C.S. §
6315(a)(1)).

For this reason, I cannot accept the majority’s
affirmation of the District Court’s formula for providing
absolute immunity—essentially applying anytime a court is
involved. It provides an overbroad standard that does not
comport with fundamental concerns underlying absolute
immunity. Although Eller’s and Barth’s conduct and
conclusions were placed before a judge in a summary
proceeding, their decisions and actions occurred within a
process structured to ensure that they were never going to be
subjected to cross examination or rebuttal. This is
fundamentally at odds with our long-standing concern to
extend absolute immunity only where procedural due process
is available. Yet, my difficulty with the majority’s conclusion
goes far deeper.

The Court of Appeals for the Ninth Circuit said:
“[S]tate law must authorize the prosecutorial or judicial
function to which absolute immunity attaches.” Chalkboard,

3
Inc. v. Brandt, 902 F.2d 1375, 1379 (9th Cir. 1989). I agree.
In Chalkboard, the Court denied absolute immunity to state
actors, ruling that the Arizona Department of Health Services
was not acting within the “role assigned to it by state law”
when it summarily closed a day care center. Id. The majority
broadly analogizes Eller’s and Barth’s decisions and actions
to those of a prosecutor both because they seem to fall in the
category of functioning as a state advocate, and also because
Eller interacted with the state court. But, even if we ignore
the pro forma and insular nature of the interaction between
Eller and Judge Cascio that call the prosecutorial analogy into
question, a closer analysis reveals that Eller did not have any
statutory authorization to approach the judge to request this
particular order.

The starting point for understanding the state’s
authority in child welfare cases is the dependency process.
“Before interfering with a parent's care and control of a child
and ordering the intervention of an agency of the state, a court
must first determine that the child is dependent.” In Interest
of Theresa E., 429 A.2d 1150, 1155 (Pa. Super. 1981), citing
42 Pa.C.S. § 6341. However, in an emergency, a dependency
determination is not necessary. 1 The Child Protective
Services Law states the following:

1
The Pennsylvania Superior Court said: “in a dependency
proceeding, a court may grant custody of an allegedly
dependent child to that child’s non-custodial parent without
first declaring the child dependent as long as sufficient
evidence of dependency exists.” In Interest of Justin S., 543
A.2d 1192, 1198 n.2 (1988). The Pennsylvania Supreme
Court went further, stating that “where a non-custodial parent
is ready, willing, and able to provide adequate care to a child,

4
 A child may be taken into
custody: (1) Pursuant to an order
of the court under this chapter.
Prior to entering a protective
custody order removing a child
from the home of the parent,
guardian or custodian, the court
must determine that to allow the
child to remain in the home is
contrary to the welfare of the
child. (2) Pursuant to the laws of
arrest. (3) By a law enforcement
officer or duly authorized officer
of the court if there are reasonable
grounds to believe that the child is
suffering from illness or injury or
is in imminent danger from his
surroundings, and that his
removal is necessary. (4) By a
law enforcement officer or duly
authorized officer of the court if
there are reasonable grounds to
believe that the child has run
away from his parents, guardian,
or other custodian. (5) By a law
enforcement officer or duly
authorized officer of the court if
there are reasonable grounds to
believe that the child has violated

a court may not adjudge that child dependent.” In re M.L.,
562 A.2D 46, 650 (2000).

5
 conditions of his probation.

42 Pa.C.S. § 6324 (emphasis added). A treating physician or
director of a hospital can take a child into protective custody
for up to 24 hours if they determine a child to be in immediate
danger. 23 Pa.C.S. §6315(1). After 24 hours, a county
agency must get an order to authorize an extension of the
protective custody. Id.

Somerset County, Eller and Barth say that they did not
take M.N. into protective custody, nor did they ask the court
to commence a dependency proceeding to determine the
status of the child. Instead, they say, they were merely
transferring custody between parents. As they were keen to
note throughout their argument, this distinction goes far
beyond mere semantics because by seeking this order—unlike
a protective custody order—they avoided all hearing
requirements.

The Child Protective Services Law states that “[i]n no
case shall protective custody under this chapter be maintained
longer than 72 hours without an informal hearing under 42
Pa.C.S. § 6332.” 23 Pa.C.S. § 6315. The hearing is held to
determine:

whether [the child’s] detention or
shelter care is required under
section 6325 (relating to detention
of child), whether to allow the
child to remain in the home would
be contrary to the welfare of the
child . . . [and] [i]f the child is
alleged to be a dependent child,

6
 the court or master shall also
determine whether reasonable
efforts were made to prevent such
placement or, in the case of an
emergency placement where
services were not offered and
could not have prevented the
necessity of placement, whether
this level of effort was reasonable
due to the emergency nature of
the situation, safety considerations
and circumstances of the family.

42 Pa.C.S. § 6332. I conclude from this that the state has
statutory authority to seek an order removing the child from a
parent under two circumstances: following a court’s
determination of dependency; and through the mechanism of
a protective custody order where the child is in imminent
danger of harm. Appellees did neither of the above,
removing the child under an order that merely transferred
custody between parents. Again, in this case, the difference
goes beyond mere semantics, since appellees viewed what
they were doing as fundamentally different from the process
established in the statutes. This, according to their own
argument, is why their conduct did not need to be subjected to
the same scrutiny that is dictated in the statutory processes.
They were not initiating a dependency process, nor were they
seeking a protective custody order. Rather, they were merely
initiating a custody process between parents. They were
functioning, therefore, in a different capacity. This is where
the problem arises.

7
 Pennsylvania law says the following regarding
standing to bring custody actions.

The following individuals may
file an action under this chapter
for any form of physical custody
or legal custody: (1) A parent of
the child. (2) A person who
stands in loco parentis to the
child. (3) A grandparent of the
child who is not in loco parentis
to the child: (i) whose relationship
with the child began either with
the consent of a parent of the
child or under a court order; (ii)
who assumes or is willing to
assume responsibility for the
child; and (iii) when one of the
following conditions is met: (A)
the child has been determined to
be a dependent child under 42
Pa.C.S. Ch. 63 (relating to
juvenile matters); (B) the child is
substantially at risk due to
parental abuse, neglect, drug or
alcohol abuse or incapacity; or
(C) the child has, for a period of
at least 12 consecutive months,
resided with the grandparent,
excluding brief temporary
absences of the child from the
home, and is removed from the
home by the parents, in which

8
 case the action must be filed
within six months after the
removal of the child from the
home.

23 Pa.C.S.A. § 5324. The state is not given standing to, sua
sponte, initiate court proceedings solely to alter the custody
between parents. The problem is that by seeking a custody
order rather than a protective custody order, they functioned
outside of the statutory structure of the Child Protective
Services Law and the Juvenile Act, and more important for
immunity analysis, outside of their statutory authority. 2 The
state has a broad mandate to protect children from abuse, but
it must secure their safety in a manner that is consistent with
their statutory authority. To receive the benefits of absolute
immunity, child welfare workers, like prosecutors, must act
within the confines of their legal authority. By stepping
beyond this boundary, even if they were functioning
prosecutorially, they crossed a bright line and placed
themselves outside of the protective umbrella of absolute
immunity.

2
Pennsylvania courts have been careful to distinguish
dependency proceedings from custody actions. “This Court
has stated strong disapproval of the use of a dependency
proceeding as a means of transferring custody of a child from
one parent to another.” In re A.E., 722 A.2d 213, 215 (Pa.
Super. Ct. 1998); citing Helsel v. Blair County Children and
Youth Services, 519 A.2d 456, 460 (Pa.Super.1986); In the
Matter of Mark T., 442 A.2d 1179, 1182 (Pa.Super.1982)
(Beck, J. concurring).

9
 Therefore, for all of the above reasons, I disagree with
the majority and conclude that it is not proper to extend
absolute immunity to Eller and Barth for B.S.’s procedural
due process claim arising from the May 5, 2006 ex parte
meeting. 3

Qualified Immunity for the May 5, 2006 Meeting

I would, instead, affirm the District Court’s alternative
ruling that Eller and Barth should receive qualified immunity.
The qualified immunity analysis is focused on the “‘objective
legal reasonableness of the action, assessed in light of the
legal rules that were clearly established at the time it was
taken.’” Montanez v. Thompson, 603 F.3d 243, 251 (3d Cir.
2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (3d
Cir. 2009). This ‘“gives ample room for mistaken judgments
by protecting all but the plainly incompetent or those who
knowingly violate the law.’” Id. (quoting Gilles v. Davis, 427
F.3d 197, 203 (3d Cir. 2005)). The analysis is objective, but
still requires that we take into account the context in which

3
This conclusion is further supported by the fact that the
caseworkers were not requesting the court to “prosecute”
anything: they were not seeking a court declaration regarding
the status of the child, nor were they asking the court to
adjudicate anything about B.S.’s conduct. Rather, they were
merely attempting to unilaterally change the custody
arrangement between the parents. Denying absolute
immunity here is consistent with our recognition that such
immunity requires “meticulous analysis” of a prosecutor’s
actions. Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008).

10
Eller and Barth acted. Therefore, we must consider a number
of factors.

First, Pennsylvania’s legal landscape is somewhat
confusing. As I noted above, the Pennsylvania Supreme
Court said the following:

[I]t is the duty of the trial court to
determine whether the non-
custodial parent is capable and
willing to render proper parental
control prior to adjudicating a
child dependent. If the court
determines that the custodial
parent is unable to provide proper
parental care and control “at this
moment” and that the non-
custodial parent is “immediately
available” to provide such care,
the child is not dependent under
the provisions of the Juvenile Act.
Consequently, the court must
grant custody of the allegedly
dependent child to the non-
custodial parent. Once custody is
granted to the non-custodial
parent, “the care, protection, and
wholesome mental and physical
development of the child” can
occur in a family environment as
the purpose of the Juvenile Act
directs. 42 Pa.C.S. § 6301(b).

11
In re M.L., 757 A.2d 849, 851 (Pa. 2000) (emphasis added)
(quoting In Interest of Justin S., 543 A.2d 1192, 1200 (Pa.
Super. 1988)). I read this provision as dictating a particular
result after a dependency action has been commenced. Yet,
fairly read, this holding creates the impression that, in
circumstances like that of B.S., a post-deprivation hearing
would be, at best, perfunctory.

Second, the County argued that In re ML and the
Pennsylvania statutes made the dependency process
inapplicable to their summary and order procedure. 4 As a
result, I query whether there existed a sufficiently confusing
environment that would cause a reasonable caseworker to
mistakenly conclude that a post-deprivation hearing was not
required here. I conclude that this is the case. See O'Brien v.
City of Grand Rapids, 23 F.3d 990, 1004 (6th Cir. 1994)
(“The policy, practice, or custom was taught by a national
authority on the management of critical incidents, a person
upon whom it was not unreasonable to rely. The officers’
response, which did not vary from the policy, practice, or
custom, entitles them to qualified immunity.”). Although the
right to a post-deprivation hearing is deeply embedded in our
society, we cannot expect caseworkers to parse state supreme
court precedent and interpret state law in a way that is
contrary to an accepted agency custom. In light of the
confusing legal landscape that exists, it was not unreasonable
for Barth and Eller to rely upon an established agency custom
to guide their handling of the case. For this reason I conclude
that the District Court properly determined that Eller and

4
I am also aware of the pervasive concern for acting in the
best interest of the child.

12
Barth have qualified immunity and are protected from section
1983 liability for the failure to provide B.S. with a post-
deprivation hearing.

Remand on Damages for the May 5, 2006 Meeting

I also disagree with the scope of the majority’s remand
regarding the County’s liability on the procedural due process
violation arising from the May 5, 2006 meeting. I concur
with their conclusion that nominal damages are substantiated,
but disagree that further damages may be appropriate. The
majority concluded that there was a factual dispute about
M.N.’s weight on the day that the County removed her from
B.S.’s custody. I see no such dispute.

My disagreement with the majority is focused upon a
single point of reference in the record: M.N.’s weight on
May 5, 2006, the day she was removed from B.S.’s house.
There is no dispute that the records specify M.N.’s weight on
that day as 22 pounds, 2 ounces. However, Eller, who was
present at the medical exam on that day, stated that M.N. was
clothed during this weigh-in. No one disputes this, nor do
they dispute the fact that prior weights were taken when the
child was not clothed.

M.N.’s pediatrician testified only that, in his practice,
children were usually weighed without clothes. Yet, he was
not present for M.N.’s weigh-in on May 5, 2006 and,
significantly, he never challenged Eller’s testimony that, in
essence, his protocol was not followed on that occasion. It is
axiomatic that, in the absence of any challenge to Eller’s
factual statement, B.S. failed to create a factual dispute.

13
 B.S.’s argument, therefore, is that the court would not
have ordered M.N.’s removal, or would have immediately
returned M.N. to her, if she had been able to present this
weight to the court—even though the weight was taken while
M.N. was clothed. In light of the Dr. Lindblad’s diagnosis
and report, 5 and other information before the court at that
time, I do not regard such an inference as reasonable. 6 For

5
At deposition, B.S. presented Dr. Lindblad with a
hypothetical in which M.N.’s weight was actually 22 pounds,
2 ounces on May 5. Under this hypothetical, Lindblad stated
that, while failure to thrive diagnoses are based upon a trend
of data rather than a discreet data point, he would have to take
this information into account before deciding on a failure to
thrive diagnosis. Yet, as with M.N.’s pediatrician, B.S. never
asked Dr. Lindblad to consider the actual data that included
the weight of M.N.’s clothes. Lindblad never commented on
the real data. (Interestingly, however, Linblad detected that
the hypothetical was flawed because he stated that such a
hypothetical weight would have been highly suspect to him
because it diverged so greatly from M.N.’s prior growth.)
The majority’s use of Lindblad’s testimony to suggest that he
retracted his diagnosis and ChildLine complaint diverges
from fact.
6
B.S. fails to raise a dispute of material fact about the
fundamental assertion made in Eller’s summary that she
presented to the court: Dr. Lindblad diagnosed M.N. with
psycho-social failure to thrive due to chronic low weight gain
that, from clinical observation of both M.N. and B.S., likely
was caused by B.S.’s conduct. The court’s decision to
remove M.N. from B.S.’s custody was ultimately based on
this observation and diagnosis. Nothing stated in any of the

14
this reason, I conclude that there is no basis to send the issue
of damages to a jury. I would, instead, remand with
instruction for the District Court to award nominal damages.

June 23, 2006 Ex Parte Meeting 7

reports of the doctors or caseworker specifically addresses,
much less refutes, any of this. Moreover, clarification of
Eller’s reference to 19 pounds would not have materially
changed anything. This is so because, even if B.S. could have
produced credible evidence of a different weight—the
weights taken, for instance, by either of the two physicians
who examined M.N. in late April—the evidence would still
have supported a conclusion that M.N. was severely
underweight while under the care of B.S.
7
In a footnote, B.S. generally states that Eller’s decisions
“had to have the approval of her supervisor and Agency
policy-makers before it could be extended.” Yet, as to the
June 23, 2006 meeting, B.S. failed to detail any specific
challenge to the grant of summary judgment in favor of Barth.
I am aware that, under section 1983, “a supervisor may be
personally liable under § 1983 if he or she participated in
violating the plaintiff’s rights, directed others to violate them,
or, as the person[s] in charge, had knowledge of and
acquiesced in [their] subordinates’ violations.” A.M. ex rel.
J.M.K. v. Luzerne County Juvenile Detention Center, 372
F.3d 572, 586 (3d Cir. 2004); see also Santiago v.
Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010). In this
case, however, B.S.’s failure to raise a specific challenge as to
Barth waives the issue of the District Court’s decision

15
 As to the June 23, 2006 meeting between Eller and
Judge Cascio, I disagree with the majority that there is any
basis to extend absolute immunity to Eller on the procedural
due process claim. Like the May 5 meeting, even if I agreed
that the conduct can be analogized as prosecutorial, Eller had
no authority to approach the court to propose another custody
order. As a result, there is no basis for absolute immunity.

Qualified Immunity

My disagreement with the majority on the June 23
meeting goes further in that I would not extend even qualified
immunity to Eller. As I noted in the discussion of the May 5,
2006 meeting, the constitutional protection against ex parte
meetings is well-established. I concluded that qualified
immunity was due in that instance, however, because of the
combination of a confusing legal landscape and a County
custom that misguided the caseworkers actions. Yet, for the
June 23, 2006 meeting, there was no applicable County
custom. This, to me, is decisive. Eller, acting in discernibly
non-emergency circumstances, made the decision to meet ex
parte with Judge Cascio on June 23. There is no evidence to
suggest that Eller did so at the behest of any County
authority, nor was she ordered to do so by the court.
Therefore, I must conclude that she acted on her own.
Accordingly, there is no basis to conclude that Eller made a
reasonable mistake by approaching Judge Cascio ex parte.

granting qualified immunity to Barth for liability arising from
the June 23, 2006 meeting with the court.

16
Nonetheless, as with the May 5, 2006 ex parte meeting, I
would award only nominal damages because there is no
reasonable basis to infer that the outcome of the meeting
would have been different if B.S. had been given the
opportunity to confront the evidence.

As with the May 5 meeting, the inquiry on the June 23
meeting focuses on whether B.S.’s inability to confront
information provided at the meeting prejudiced the outcome. 8
Yet, as I noted in my analysis of injury arising from B.S.’s

8
Eller gave the court the summary and proposed order,
neither of which provided any details about the investigation.
The summary stated only that upon completion of its
investigation regarding serious physical neglect, “[t]he CY-48
was filed on June 19, 2006 with Childline and substantiated
[B.S.], the natural mother, as the perpetrator.” The proposed
order stated only that “due to the indicated report of serious
physical neglect whereby B.S. is the perpetrator, it is hereby
ordered . . . .” Nonetheless, by the time of the second hearing
the County had completed its CY-48 investigation,
determining that Lindblad’s accusation of child neglect by
B.S. was “indicated.” B.S. plainly disputes the conclusion of
the summary given to the court and disagrees with the
custody recommendation, but the focus of her challenge is
with information that is contained in or left out of the CY-48.
For the sake of summary judgment—since the report was
filed before the hearing—I would assume that B.S. had an
opportunity to read it and formulate the objections that she
voices in this appeal. Moreover, I would presume that her
presence at the June 23 meeting would have provided her
with a forum to raise numerous issues with the investigation.

17
other procedural due process claim, I do not find any
reasonable basis for the District Court to have inferred that
the state court would have made a decision more favorable to
B.S. based upon the weight record from the May 5 doctor
appointment. The state court’s ignorance of this record was
of no moment. The same reasoning applies here. 9

As to the May 8 weight record, according to Eller, the
natural father reported the child was also clothed during this
weigh-in. However, even were we to disregard Eller’s
undisputed testimony here because she was not physically
present at the examination, I note that this weight was taken
after M.N had been in the custody and care of her natural
father for three days. As a result, it would not have been
reasonable for the District Court to construe this weight
record as evidence favorable to B.S.’s claims of constitutional
harm, since –objectively—it arose from the period of time in
which the natural father, not B.S., had custody of M.N.

We are required to make only reasonable inferences at
summary judgment.

Because B.S.’s issues with the CY-48 are predicated
on the May 5 and May 8 weights, weights that do not support
B.S.’s claims, I must conclude that all of the issues that B.S.
raises regarding the report are baseless. Therefore, lacking
any reasonable challenge to Eller’s recommendation, there is
no evidentiary support for actual prejudice arising from the

9
There is no evidence that this record was actually submitted
with the CY-48. For purposes of summary judgment, I
presume that it was.

18
June 23 meeting between Eller and the state court and,
therefore, no evidence of actual, compensable, harm. Yet, as
with the May 5, 2006 procedural due process violation, I
would remand to the District Court with instructions to award
nominal damages.

Substantive Due Process Claim 10

As to the substantive due process claim, I agree with
the majority that, as to B.S.’s substantive due process claims
arising from M.N.’s removal, no reasonable fact-finder could
rule that Eller’s actions shock the conscience. I differ from
both of my colleagues, however, in reaching the same
conclusion for all of B.S.’s substantive due process claims. I,
therefore, do not reach the issue of absolute immunity on this
issue.

Eller acted originally upon the report of one of M.N.’s
attending physicians, who had sustained contact with both
M.N. and B.S. over a period of time. Moreover, the
physician’s suspicions of serious neglect arose from
observations he made that were grounded in his field of
medical expertise. Eller’s subsequent investigation gathered
a large amount of data, which provided a very consistent
description of M.N. as one who was severely underweight
while under the care of B.S. and who gained weight
appropriately while under the care and supervision of others.
Finally, while the weight of 22 pounds, 2 ounces is,

10
I agree with the majority that that B.S. waived the
substantive due process issue as to Barth and the County.

19
technically, over the threshold for a failure to thrive
diagnosis, the margin by which it exceeds it is extremely
slight. Additionally, the weight from May 5 (and the May 8
weight) is a notable outlier when charted with all of M.N.’s
recorded weights. This is important in light of Lindblad’s
testimony that his assessment arose from long-term patterns
that he observed, rather than discrete data points. Viewed in
this larger context, even if I could have concluded that Eller
mishandled the May 5 or May 8 weight records, her
misstatement or misjudgments could hardly be regarded as
egregious or conscience shocking.

B.S. attempts to tie all of the alleged errors together by
claiming that Eller had an agenda throughout this time to
deprive her of custody in favor of the natural father. The
problem, however, is that B.S. did not substantiate this
theory. She pointed to one possibly uncommon statement in
the May 5 order requiring her to refrain from “badgering or
harassing the agency staff, belitteling [sic] any service
providers or the natural father.” She claims that this is
evidence that Eller had a negative view of her. Yet, B.S. fails
to produce any evidence from which the District Court could
have reasonably inferred such an agenda against her, much
less a causal link to the caseworker’s conduct. Without this,
her entire substantive due process claim fails.

Accordingly, I do not find any error in the District
Court’s decision to grant summary judgment in favor of Eller
regarding B.S.’s substantive due process claims.

20