dissenting.
Because I believe that there is a genuine issue of material fact as to whether the Smiths’ consent to the safety plan was voluntary, I respectfully dissent.
I. CONSENT
There is no question that “the parent-child relationship gives rise to a fundamental liberty interest that a parent may not be deprived of absent due process of law,” Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir.2006), and that “notice and an opportunity to be heard are necessary before parental rights can be terminated.” Anh v. Levi 586 F.2d 625, 632 (6th Cir.1978). Although Williams-Ash acknowledges that Children’s Services removed the three children in question without a hearing, she insists that she did not violate the Smiths’ due process rights because they voluntarily consented to the removal of their children when they signed the safety plan. The Smiths, on the other hand, argue that they have presented sufficient evidence to raise a genuine issue of material fact as to whether they voluntary consented to enter into the plan and whether their consent became involuntary during the course of the plan.
The majority contends that Dupuy v. Samuels, 465 F.3d 757 (7th Cir.2006), a case involving the constitutionality of voluntary safety plans, is decisive here. I respectfully disagree. The parents in Du-puy argued that the state agency had coerced their consent by threatening to formally remove their children from them. No fault was found in this threat, however, because the agency had the valid legal authority to remove the children. Id. at 762-63. Noting that “[i]t is not a forbidden means of ‘coercing’ a settlement to threaten merely to enforce one’s legal rights,” the court held that when a parent voluntarily enters into a safety plan, “no hearing of any kind is necessary [because] hearings are required for deprivations taken over objection, not for steps authorized by consent.” Id. at 761-62.
The Dupuy decision, however, is distinguishable from the present case. Dupuy rests on the premise that the threat of action made by the state agency was grounded in proper legal authority and, therefore, the consent given by the parents was not coerced. Id. at 762-63. The *602court in Dupuy specifically found that the agency threatened to enforce only its valid legal right to initiate a formal custody proceeding against the parents. Id. at 761-62. Dupuy acknowledged, however, that consent garnered through misrepresentations or other wrongful means would be involuntary if it was “not grounded in proper legal authority” or granted as the result of “duress or extortion.” Id. at 762-63.
In the present case, Melody Smith’s affidavit provided sworn testimony that Williams-Ash made a number of threats that Williams-Ash had no legal right to make. Melody Smith specifically stated that Williams-Ash told the Smiths that (1) if they did not participate in the safety plan, they would be put in jail, (2) if they did not follow her instructions, “the children [would not] come home, period,” (3) if the kids stepped foot in the Smiths’ house, the Smiths would be put in jail and they would never get the kids back, and (4) if the Smiths attempted to withdraw from the safety plan, such withdrawal would result not only in formal custody proceedings against them, but they would be sent to jail.
Because imprisonment is not a permissible consequence of the failure to participate in a voluntary safety plan, Williams-Ash had no legal basis to make such threats. If the Smiths’ allegations are true, then Williams-Ash’s threats go beyond simply warning the Smiths that Children’s Services would move forward to enforce a valid legal right. A jury could therefore conclude that the Smiths’ participation in the safety plan was the result of forbidden “duress or extortion.” Dupuy, 465 F.3d at 762; see also Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 n. 1 (3d Cir.1997) (finding the caseworker’s conduct “blatantly coercive” in securing a parent’s voluntary departure from the house by improperly threatening to place his four-year-old daughter in foster care).
Alternatively, the Smiths argue that, even if they are found to have originally agreed to the safety plan voluntarily, then-consent became involuntary during the course of the plan. They assert that they “were not allowed to recover their children after the Safety Plan had been initiated despite their best efforts to do so,” and that William-Ash “thwarted” their attempts to regain custody of their children. Specifically, the Smiths allege that Williams-Ash told them that if they did not obey the plan, she “would see to it that the children didn’t come home, period,” that she responded to their requests for the return of their children by telling them that they should just “enjoy their time alone without the kids,” and that she told them that any attempt to withdraw from the voluntary plan would result in formal custody proceeding, jail, and loss of custody of the children.
This court in Farley v. Farley, 225 F.3d 658, 2000 U.S.App. LEXIS 17580 (6th Cir. July 19, 2000) (unpublished), found that consent given as part of a voluntary safety plan may become involuntary during the course of the plan. The mother in Farley voluntarily agreed to a safety plan that allowed her two children to stay with then-father, but that left her with legal custody of the children during the course of the plan. Id. at *4. When the mother eventually sought the return of her children, the agency told her that it had 60 days to conduct the investigation and refused to return them. Id. at *5. Only after the mother sought the assistance of the district attorney were the children returned to her. Id. In considering whether the social worker was entitled to qualified immunity, the Farley court held that the mother’s due process rights were clearly *603violated because her consent “was not voluntary during the entire time period involved.” Id. at *14.
Like the mother in Farley, the Smiths claim that their consent became involuntary during the course of the plan. The district court declined to give their argument credence because, despite the Smiths’ many attempts to secure the return of their children, they did not explicitly state that they could not or would not continue following the plan. The terms for withdraw stated in the safety plan, however, were somewhat vague. The plan stated only: “You must contact your caseworker immediately if you decide that you cannot or will not be able to continue following the plan.”
The Smiths allege that they repeatedly contacted Williams-Ash as required by the terms of the safety plan, that they made repeated attempts to get specifics from Williams-Ash as to what they needed to do to recover their children, and assert that Williams-Ash threatened them with jail and permanent loss of custody if they withdrew from the plan. Their decision to hire an attorney to secure the return of their children also strongly suggests that their consent to the plan had become involuntary, and the fact that the children were returned to the Smiths two days after they filed a lawsuit, without any further investigation on the part of Children’s Services, suggests that the agency may not have had good reason for continuing to detain the children. I therefore conclude that the Smiths have raised a genuine issue of material fact as to whether they continued to consent to the safety plan, and that the district court erred in granting summary judgment to Williams-Ash on that ground.
II. IMMUNITY
Neither the majority opinion nor the district court reached the issue of whether Williams-Ash is entitled to absolute or qualified immunity. Because I believe that the Smiths’ procedural due process claim should survive summary judgment, I must address the question of immunity. I conclude that Williams-Ash is not entitled to absolute immunity, but I would remand to the district court the question of whether she is entitled to qualified immunity.
This circuit has strictly tied absolute immunity to either in-court conduct or conduct that was otherwise “intimately associated” with the judicial process. Holloway v. Brush, 220 F.3d 767, 774 (6th Cir.2000). Social workers are therefore “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.” Id. 220 F.3d at 775. Because all of Williams-Ash’s alleged conduct here occurred out of court, she functioned as a service provider and an investigator — not as an in-court advocate — and is therefore not entitled to absolute immunity.
As for qualified immunity, the Supreme Court requires the use of a two-step inquiry to decide whether a defendant is entitled to such immunity. Scott v. Harris, — U.S. -, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007); Hudson v. Hudson, 475 F.3d 741, 745 (6th Cir.2007). The court must first consider whether the defendant’s conduct violated a constitutional right of the plaintiff. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If a constitutional violation occurred, the court must then consider whether the violated right was clearly established at the time the violation occurred. Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). Because, as discussed above, the question of whether William-Ash’s conduct violated the Smiths’ constitutional rights *604hinges on the factual question of whether the Smiths voluntarily consented to the safety plan, this issue should be initially resolved by the district court.
III. CONCLUSION
I believe that a genuine issue of material fact exists as to whether the Smiths’ initial and continuing consent to the safety plan was voluntary. I would therefore reverse the judgment of the district court and remand the case for further proceedings.