James v. Rowlands

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DANIEL JAMES, 
Plaintiff-Appellant, No. 08-16642
v.
 D.C. No.
2:06-CV-00967-
BOBBIE ROWLANDS; STEVEN TRIPP;
VIVIAN VAUGHT, GEB-DAD
Defendants-Appellees.


DANIEL JAMES,  No. 08-16643
Plaintiff-Appellee,
D.C. No.
v.
 2:06-CV-00967-
BOBBIE ROWLANDS; STEVEN TRIPP; GEB-DAD
VIVIAN VAUGHT,
OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding

Argued and Submitted
October 5, 2009—San Francisco, California

Filed May 26, 2010

Before: Procter Hug, Jr. and Richard A. Paez,
Circuit Judges, and George H. Wu,* District Judge.

*The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.

7509
7510 JAMES v. ROWLANDS
Opinion by Judge Paez
 JAMES v. ROWLANDS 7513

COUNSEL

Anthony T. Caso, Sacramento, California, for plaintiff-
appellant-cross-appellee Daniel James.

Robert Shulman, County Counsel, and Michael S. Jamison,
Deputy, Office of the Nevada County Counsel, Nevada City,
California, for defendants-appellees-cross-appellants Bobby
Rowlands, Steven Tripp, and Vivian Vaught.

OPINION

PAEZ, Circuit Judge:

The Fourteenth Amendment protects parents’ fundamental
right to participate in the care, custody, and management of
their children. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18,
27 (1981). This right extends to parents who, like the plaintiff
here, have shared legal custody but lack physical custody of
their children. See Brittain v. Hansen, 451 F.3d 982, 992 (9th
Cir. 2006). In this case, we are asked to determine the circum-
stances under which the Fourteenth Amendment requires pub-
lic officials to inform a parent with only joint legal custody
about actions they take involving the parent’s child.

Plaintiff Daniel James brought this action under 42 U.S.C.
§ 1983 alleging that the defendants—two social workers from
7514 JAMES v. ROWLANDS
the Nevada County Child Protective Services Agency
(“CPS”) and a deputy sheriff—violated his substantive and
procedural due process rights under the Fourteenth Amend-
ment by failing to notify him of their investigation into allega-
tions that his daughter, C.J., had been molested and that
someone had coerced her to change her testimony in the trial
that followed. In addition, James contends that the two social
worker defendants violated his rights by failing to inform him
of events stemming from the molestation investigation: (1) a
decision to detain C.J. temporarily and to take her into protec-
tive custody, and (2) a voluntary agreement with C.J.’s
mother, who had physical custody, to place C.J. with her
maternal grandmother for the duration of the molestation trial.
We conclude that the defendants are entitled to qualified
immunity on these claims and accordingly affirm the grant of
summary judgment.

First, we decline to decide whether James had a constitu-
tional right to be informed of the molestation investigation or
of the attempts to coerce C.J. to change her testimony. We
conclude that, even if such rights existed, they were not
clearly established. We therefore affirm the grant of qualified
immunity on these two claims. Second, we hold that the CPS
officials violated James’s substantive due process right to par-
ticipate in the care, custody, and management of his daughter
by failing to notify him of her detention and placement in
temporary protective custody and of the subsequent agree-
ment transferring her physical custody for the duration of the
molestation trial. We conclude, however, that James’s right to
this information was not clearly established and that the offi-
cials are therefore entitled to qualified immunity on these
claims. Finally, we hold that the CPS officials did not violate
James’s procedural due process rights and accordingly affirm
the grant of qualified immunity on that claim.

I. Background

Daniel James and Gail Sherman are the biological parents
of C.J., who was a minor at the time of the events relevant to
 JAMES v. ROWLANDS 7515
this case. James and Sherman, who were never married,
shared joint legal custody of C.J., but Sherman had sole phys-
ical custody. C.J. lived with Sherman and Sherman’s live-in
boyfriend, Shawn Blair, and James had visitation rights two
weekends per month. In late February 2003, C.J. told her
maternal grandmother, Nancy Proano, that Blair’s father had
sexually molested her. Proano reported this to CPS, which, in
turn, reported the allegations to the Nevada County Sheriff’s
Office.

On March 18, 2003, defendant Bobbie Rowlands, a CPS
social worker, interviewed C.J. at the Nevada County Sher-
iff’s Office. Defendant Steve Tripp, a Nevada County deputy
sheriff who was investigating the matter for the Sheriff’s
Office, monitored the interview from another room. After the
interview, Rowlands told Sherman she had to prevent Blair’s
father from having any further contact with C.J. Because
Sherman agreed to prevent further contact, and because
Blair’s father did not live in C.J.’s household, CPS did not file
a juvenile dependency action to protect C.J. The Nevada
County District Attorney later filed criminal charges against
Blair’s father.

In late July, on the same day as the preliminary examina-
tion in Blair’s father’s criminal case, C.J. told her tutor that
Blair had struck her and her mother. C.J.’s step-grandfather,
Robert Proano, reported this to Rowlands, who informed
Tripp. At Tripp’s request, Rowlands referred the matter to the
Grass Valley Police Department for investigation because the
alleged assault occurred in its jurisdiction. The next day, a
Grass Valley police officer who is not a party in this suit
interviewed C.J. and her mother about this allegation. C.J.
confirmed that Blair had hit her but denied that he had pres-
sured her to change her testimony against his father.

On September 10, 2003, Rowlands learned that C.J. had
told her tutor that Blair was pressuring C.J. to change her tes-
timony. The next day, Rowlands interviewed C.J. at her
7516 JAMES v. ROWLANDS
school, and C.J. reported that Blair had told her to change her
testimony. At Rowlands’s urging, Sherman agreed to let C.J.
stay with Proano that night. The next day, a Grass Valley
police officer talked to C.J. at school, and she again con-
firmed that Blair was pressuring her to change her testimony.
The officer detained C.J. at school, and a supervising social
worker, defendant Vivian Vaught, instructed another social
worker to take C.J. into protective custody and to bring her to
Proano’s home. The social worker told Sherman that CPS had
taken C.J. into custody and placed her with Proano.

Three days later, on September 15, 2003, Rowlands met
with Sherman and gave her five options for ensuring C.J.’s
safety during the molestation trial: make Blair leave the home
so that C.J. could remain there; allow C.J. to live with Proano
without any CPS involvement; sign a voluntary agreement
with CPS to place C.J. with Proano; sign a voluntary agree-
ment to place C.J. in a foster home; or let C.J. live with her
father, James. After Sherman refused all options, Vaught
intervened. Sherman ultimately agreed to sign a voluntary
agreement with CPS transferring C.J.’s physical custody to
Proano until the molestation trial was over. CPS did not inter-
rupt James’s visitation during this period.

In early December 2003, C.J. told James that Blair’s father
had molested her. In response, James filed a motion in the
Placer County Superior Court seeking physical custody of
C.J. On December 12, 2003, in an ex parte proceeding, the
court awarded temporary physical custody to James pending
a custody hearing. After the custody hearing, in May 2005,
the court awarded sole legal and physical custody to Proano.

In February 2005, on the basis of these events, James filed
a pro se complaint in the district court against Rowlands,
Vaught, and other defendants not named in this case. After
James failed to explicitly assert grounds for federal jurisdic-
tion in his response to an order to show cause, the district
court dismissed his suit for lack of subject matter jurisdiction.
 JAMES v. ROWLANDS 7517
James then hired an attorney who filed this action in May
2006 against Rowlands, Vaught, and Tripp in the Eastern Dis-
trict of California, seeking damages under § 1983 for viola-
tions of his Fourteenth Amendment rights to substantive and
procedural due process and to equal protection. The complaint
alleged that the defendants violated James’s rights by failing
to inform him of the molestation investigation. His subse-
quent filings made clear that he challenged not only the fail-
ure to inform him of the investigation, but also the failure to
notify him of the reported attempts to coerce C.J. to change
her testimony and of the changes in C.J.’s physical custody.
The defendants moved for summary judgement on the
grounds of qualified immunity and James’s alleged failure to
comply with the statute of limitations.

The district court granted summary judgment to the defen-
dants on all claims. The district court concluded that the
defendants’ failure to inform James of the investigation and
C.J.’s temporary placement with Proano violated his substan-
tive due process right “to make decisions about the care, cus-
tody and control of his daughter.” The district court further
determined that James’s rights were clearly established “on
the basis of common sense,” but that the defendants were
nonetheless entitled to qualified immunity because they made
a reasonable mistake about what the law required. In addition,
the district court held that the defendants did not violate
James’s right to procedural due process, and that James did
not present enough evidence to raise a triable issue of fact on
his equal protection claim. Because the district court granted
summary judgment to the defendants on the merits, it did not
address whether James’s suit was barred by the statute of lim-
itations. James timely appealed, and the defendants cross-
appealed on the statute of limitations issue. Because James
did not brief his equal protection claim on appeal, we deem
it waived and decline to consider it here. See Greene v. Cam-
reta, 588 F.3d 1011, 1020 n.4 (9th Cir. 2009).
7518 JAMES v. ROWLANDS
II. Standard of Review

We review de novo the grant of summary judgment on the
ground of qualified immunity. McSherry v. City of Long
Beach, 584 F.3d 1129, 1134 (9th Cir. 2009). We view the evi-
dence in the light most favorable to the non-moving party,
James. Id. at 1135.

III. Discussion

An official is entitled to summary judgment on the ground
of qualified immunity where his or her “conduct does not vio-
late clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Until recently, courts
considering an official claim of qualified immunity followed
the two-step protocol established in Saucier v. Katz, 533 U.S.
194 (2001), which required us first to determine whether the
defendant violated a constitutional right and then to determine
whether that right was clearly established. See Pearson v.
Callahan, 555 U.S. ___, 129 S. Ct. 808, 818 (2009) (overturn-
ing Saucier in part). In Pearson v. Callahan, the Supreme
Court reversed this earlier rule and gave courts discretion to
grant qualified immunity on the basis of the “clearly estab-
lished” prong alone, without deciding in the first instance
whether any right had been violated. Id. Thus, we may grant
qualified immunity if “the facts that a plaintiff has alleged or
shown [do not] make out a violation of a constitutional right”
or if “the right at issue was [not] ‘clearly established’ at the
time of defendant’s alleged misconduct.” Id. at 816, 818
(internal citations omitted).

The defendants contend that they are entitled to qualified
immunity on James’s substantive and procedural due process
claims both because they did not violate his rights and
because those rights, if violated, were not clearly established.
We address James’s substantive and procedural due process
claims in turn.
 JAMES v. ROWLANDS 7519
A. Substantive Due Process

[1] The Fourteenth Amendment’s Due Process Clause pro-
tects parents’ well-established liberty interest in the “compan-
ionship, care, custody, and management of [their] children.”
Lassiter, 452 U.S. at 27 (noting that the importance of this
right is “plain beyond the need for multiple citation”) (quoting
Stanley v. Illinois, 405 U.S. 645, 651 (1972)); accord Troxel
v. Granville, 530 U.S. 57, 65 (2000) (describing this liberty
interest as “perhaps the oldest of the fundamental liberty
interests recognized by this Court”). This right is not reserved
for parents with full legal and physical custody. To the con-
trary, we have recognized that parents with even fewer cus-
tody rights than James—parents with no legal or physical
custody, but merely visitation rights—have “a liberty interest
in the companionship, care, custody, and management of their
children,” even though such a parent’s right is “unambigu-
ously lesser in magnitude than that of a parent with full legal
custody.” Brittain, 451 F.3d at 992. James therefore has a pro-
tected liberty interest in participating in C.J.’s “care, custody,
and management.”

James contends that the defendants deprived him of this
protected liberty interest, and thus violated his substantive due
process rights, by failing to inform him of (1) the molestation
investigation, (2) Blair’s attempt to coerce C.J. into changing
her testimony, (3) C.J.’s detention and placement in protective
custody, and (4) the voluntary agreement temporarily transfer-
ring C.J.’s physical custody to Proano.1 The defendants con-
1
James alleges that the defendants not only failed to inform him of these
events, but also affirmatively concealed them by instructing Proano not to
tell him anything. The record, however, does not contain any evidence
from which a reasonable jury could conclude that any defendant instructed
Proano to keep the investigation and related events secret from James. The
declaration by Proano that James points to in support of his allegation
states only that Proano decided not to tell James about the abuse allega-
tions “after consultation with the Nevada County Child Protective Ser-
7520 JAMES v. ROWLANDS
tend that their failure to notify James of these events did not
violate his rights and that, even if it did, they are nonetheless
entitled to qualified immunity because those rights were not
clearly established. We address each claimed violation in turn.

1. Failure to notify James about the molestation
investigation

[2] First, James contends that the defendants’ failure to
notify him of the molestation investigation violated his consti-
tutional rights. In support of this claim, James points to no
authority establishing that any parent—even a parent with full
legal and physical custody—has a constitutional right to be
informed when officials investigate allegations that his or her
child has been molested. Instead, James argues only that,
without such information, a parent’s liberty interest in partici-
pating in a child’s care and management would be “little more
than a hollow promise.” Exercising our discretion under Pear-
son, we decline to decide here whether parents have such a
right, and whether officials have a correlative constitutional
duty to notify a minor’s parent when they investigate allega-
tions that the minor has been molested.2 Instead, we affirm the

vices who felt that it was not necessary to advise Mr. James . . . .” Telling
Proano that it was “not necessary” to tell James is not tantamount to
instructing her not to tell him. James also bases his allegation of affirma-
tive concealment on a declaration by C.J.’s attorney, which recounts con-
versations she had with Proano and her husband. This declaration,
however, establishes only that the Proanos offered two explanations for
not telling James: the defendants told them that advising James was “not
necessary,” and they feared a violent reaction from him. These statements,
of course, do not show that the defendants instructed anyone to withhold
information from James. Because James has presented insufficient evi-
dence that any defendant instructed anyone to conceal information from
him, we address only the claim that the officials’ failure to notify him of
these events violated his constitutional rights.
2
We note, however, that officials do have a duty to notify parents when
an abuse investigation involves a medical examination. See Greene, 588
 JAMES v. ROWLANDS 7521
grant of summary judgment for the defendants on the ground
that such a right, if it exists, was not clearly established at the
time of the events in question.

A right is clearly established if the “contours of the right
[are] sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right.” Saucier, 533
U.S. at 202 (quoting Anderson v. Creighton, 483 US. 635, 640
(1987)). Although a parent’s right to participate in his child’s
care, custody, and management is clearly established “as a
broad general proposition,” what that right means “in light of
the specific context” here is not clearly established. Id. at 201.
Indeed, we are aware of no case with even loosely analogous
facts that might suggest that officials investigating allegations
of child abuse have a constitutional duty to inform the alleged
victim’s parents.

[3] Contrary to the district court’s conclusion, we hold that
any right that James may have was not clearly established on
the basis of “common sense.” A right can be clearly estab-
lished by “common sense” only where “conduct is so patently
violative of the constitutional right that reasonable officials
would know without guidance from the courts that the action
was unconstitutional.” DeBoer v. Pennington, 206 F.3d 857,
864-65 (9th Cir. 2000), vacated on other grounds by Belling-
ham v. DeBoer, 532 U.S. 992 (2001) (internal quotation
marks and citation omitted). Failing to inform a parent of an
investigation into possible abuse of his or her child does not

F.3d at 1036; Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000). The
officials did not refer C.J. for any such examination here, however. In
addition, officials must in some circumstances notify parents when they
detain a suspected child abuse victim for questioning. We have previously
held that seizing and interrogating a suspected child abuse victim without
parental consent violates the child’s Fourth Amendment rights unless the
seizure is authorized by a warrant or court order or justified by exigent cir-
cumstances. Greene, 588 F.3d at 1030. No Fourth Amendment claim is
presented in this case.
7522 JAMES v. ROWLANDS
rise to this level. Because any right that James may have had
to be informed of the investigation into C.J.’s molestation was
not clearly established, the defendants are entitled to qualified
immunity on this claim.

2. Failure to notify James about attempts to coerce C.J. to
change her testimony

Second, James contends that the defendants violated his
rights by failing to notify him of the investigation into Blair’s
alleged attempts to coerce C.J. to change her testimony.
Again, James points to no authority suggesting that state
actors such as the defendants here have a constitutional duty
to inform a minor’s parent of such allegations, or more gener-
ally of allegations that someone is mistreating the child. We
decline to decide here whether or under what circumstances
parents have a right to such information. Instead, we affirm
the grant of qualified immunity to the defendants on this
claim because such a right, if it exists, was not clearly estab-
lished.

3. Failure to notify James of C.J.’s detention and placement
in protective custody

Third, James contends that the CPS officials’ failure to
inform him that they temporarily detained C.J. and then
placed her in protective custody deprived him of his right to
participate in C.J.’s care and management. In September
2003, a police officer detained C.J. at school, and CPS
assumed temporary custody of her and placed her with Proano
over the weekend.3 Viewing the evidence in the light most
3
We note that James does not allege that defendant Tripp in any way
participated in the decision to detain C.J. or to take her into protective cus-
tody. We therefore construe James’s claim to allege only that the CPS
defendants, Rowlands and Vaught, violated his right to notification of this
decision. Of course, § 1983 imposes liability on a defendant only if he or
she personally participated in or directed a violation. Taylor v. List, 880
 JAMES v. ROWLANDS 7523
favorable to James, a reasonable jury could find that taking
these actions without informing James violated his constitu-
tional rights.

[4] We have recognized that the Fourteenth Amendment’s
protection of parental rights prohibits the state from separat-
ing parents from their children “without due process of law
except in an emergency.” Wallis, 202 F.3d at 1136. We have
accordingly held that:

Officials may remove a child from the custody of its
parent without prior judicial authorization only if the
information they possess at the time of the seizure is
such as provides reasonable cause to believe that the
child is in imminent danger of serious bodily injury
and that the scope of the intrusion is reasonably nec-
essary to avert that specific injury.

Id. at 1138. Recently, in Burke v. County of Alameda, we
extended this rule to protect not only parents with full cus-
tody, but also parents like James who have only joint legal
custody and no physical custody. 586 F.3d 725, 733 (9th Cir.
2009).

[5] In Burke, officials took a child into protective custody
and did not inform the father, who had only joint legal cus-
tody, for two days. Id. We held that the officials had reason-
able cause to believe that the child was in imminent danger,
but that the officials may have violated the father’s rights
because the “scope of the intrusion” may have been greater
than necessary to avert the danger to the child. Id. at 732-33.

F.2d 1040, 1045 (9th Cir. 1989). The record here is unclear as to whether
both Rowlands and Vaught participated in the decision to detain C.J. and
to take her into protective custody. However, because we conclude that the
CPS officials are entitled to qualified immunity on this claim, we do not
attempt to determine which official participated in—and therefore could
face liability for—this alleged violation.
7524 JAMES v. ROWLANDS
Specifically, although the need to protect the child justified
taking some action, it may not have justified failing to inform
the father or to “explore the possibility of putting [the child]
in his care” instead. Id. at 733. Thus, we held that a jury
would have to decide whether “the scope of [this] intrusion on
[the father’s] rights” was reasonable. Id. In other words,
unless the danger to the child made it reasonably necessary to
take the child into state custody without giving the father the
opportunity to take the child, the officials violated the father’s
rights by not giving him that opportunity.

[6] Similarly, here, a reasonable jury could find that the
CPS officials violated James’s rights by taking C.J. into pro-
tective custody and placing her with her grandmother without
notifying him or giving him the opportunity to take C.J. into
his care. Even if C.J.’s reports that Blair had hit her and that
he was pressuring her to change her testimony gave the CPS
officials reasonable cause to believe that C.J. was in imminent
danger, it is not clear that “the scope of the intrusion [was]
reasonably necessary to avert” the possible injury to C.J. Id.
at 731 (quoting Wallis, 202 F.3d at 1138). On the factual
record, a jury could conclude that the CPS officials’ failure to
notify James that they were taking C.J. into protective custody
was not “reasonably necessary” to avert any danger to C.J.
and that the CPS officials therefore violated James’s rights.
To be sure, the officials may have had good reason not to tell
James: C.J. had expressed fear of him, and there had been an
earlier substantiated report that James had physically abused
her. But it would be for a jury to decide whether these facts
justified placing C.J. with Proano without notifying James or
giving him the opportunity to assume care of C.J. Thus,
James’s allegations, taken as true, establish that the CPS offi-
cials violated his constitutional rights.

[7] Nonetheless, the defendants are entitled to qualified
immunity on this claim. Burke extended for the first time
Wallis’s rule to protect parents without physical custody. Id.
at 734. Burke recognized that, before it addressed the issue,
 JAMES v. ROWLANDS 7525
it was not clearly established that detaining a child without
notifying a parent who had only shared legal custody would
violate that parent’s constitutional rights. Id. Because James’s
rights were therefore not clearly established in 2003, the time
of the relevant events here, the defendants are entitled to qual-
ified immunity on this claim.

4. Failure to notify James of the temporary transfer of C.J.’s
physical custody pursuant to a voluntary agreement

Finally, James contends that the CPS officials’ failure to
inform him that they had entered into a voluntary agreement
with Sherman to temporarily transfer C.J.’s physical custody
to Proano also deprived him of his parental rights under the
Fourteenth Amendment.4 We agree.

[8] In Burke, we recognized that interfering with a child’s
physical custody can violate the rights of a parent with shared
legal custody, even if that parent has no physical custody. See
Burke, 586 F.3d at 733. We see no reason to distinguish the
situation in Burke, where officials unilaterally assumed tem-
porary protective custody of a child, from a situation like that
here, where CPS officials encourage and facilitate a tempo-
rary transfer of a child’s physical custody pursuant to a volun-
tary agreement with one parent. In both cases, officials take
part in changing a child’s physical custody. It is the change
in custody itself, not the manner in which the change occurs,
that interferes with the parent’s right to participate in his
child’s care and management. Without notice of such a
change in custody, a parent has no opportunity to exercise that
right.5
4
Again, because James does not allege that Tripp participated in this
agreement in any way, we construe this claim to allege violations only by
the CPS defendants, Rowlands and Vaught.
5
We do not mean to suggest that, under Burke, officials must give a par-
ent with shared legal custody the opportunity to assume the care of a child
whenever they participate in transferring a child’s physical custody.
7526 JAMES v. ROWLANDS
[9] The defendants suggest that notice would not actually
give a parent like James the opportunity to exercise his paren-
tal rights because he could not veto the temporary change in
custody. This, however, ignores the fact that such a parent
could exercise his right to participate in his child’s care and
management in other ways, such as by talking to the child
about the move or petitioning a court for physical custody.
Thus, failing to notify a parent of a change in his child’s phys-
ical custody meaningfully impairs his right to participate in
the child’s care and management.

[10] We therefore hold that the Fourteenth Amendment’s
protection of parents’ rights requires officials to notify a par-
ent with shared legal custody of a transfer in a minor’s physi-
cal custody when the officials have encouraged and facilitated
that transfer. To be sure, this requirement is not without quali-
fication. As Wallis recognized, some circumstances may jus-
tify taking action without notifying a child’s parent. See
Wallis, 202 F.3d at 1138. In Wallis, we held that officials may
take a minor into protective custody without a court order
when “the information they possess at the time of the seizure
is such as provides reasonable cause to believe that the child
is in imminent danger of serious bodily injury and that the
scope of the intrusion is reasonably necessary to avert that
specific injury.” Id. Following Wallis’s example, we hold that
public officials may encourage and facilitate a transfer of a
minor’s physical custody without notifying a parent with
shared legal custody only if they have reasonable cause to
believe that such notification would put the child in imminent
danger of serious bodily injury.

Rather, Burke requires officials to offer such an opportunity only when the
officials make a unilateral decision, without a parent’s consent, to take the
child into protective custody. When the officials merely encourage and
facilitate a transfer of a child’s physical custody pursuant to a voluntary
agreement with the parent with physical and legal custody, the officials
need only inform the other parent of the transfer.
 JAMES v. ROWLANDS 7527
Here, Rowlands and Vaught encouraged and facilitated the
transfer of C.J.’s physical custody. They required Sherman to
choose one of several options for where to place C.J. for the
duration of the molestation trial. After some initial resistance,
Sherman chose to enter into a voluntary agreement with CPS
to place C.J. with Proano. Formally, this agreement autho-
rized CPS to assume temporary custody of C.J., and CPS
placed C.J. with Proano pursuant to this authority. Sherman
did not independently decide to place her daughter with
Proano. Nor did the CPS officials passively watch while Sher-
man temporarily placed her daughter with Proano. Rather,
they encouraged and endorsed the transfer of custody, and
indeed effectuated it.

[11] Because Rowlands and Vaught encouraged and facili-
tated the transfer of C.J.’s custody, the Fourteenth Amend-
ment required them to notify James of the transfer unless they
had reasonable cause to believe that notifying him would have
put C.J. in imminent danger of serious injury. Taking the evi-
dence in the light most favorable to James, there is no basis
to conclude that notifying James of the transfer would have
created any such risk. Accordingly, the factual submissions
establish that the CPS officials’ failure to notify James
deprived him of his right to participate in his daughter’s care,
custody, and management.

[12] The defendants are nonetheless entitled to qualified
immunity on this claim. As discussed above, Burke, decided
in 2009, was the first case in this circuit to establish that inter-
fering with a child’s physical custody can violate the rights of
a parent who does not have physical custody. Burke, 586 F.3d
at 734. Failing to contact James about the voluntary agree-
ment was therefore not clearly unlawful at the time, and the
CPS defendants are entitled to summary judgment on this
claim.

B. Procedural Due Process

James also alleges that the CPS officials violated his proce-
dural due process rights by failing to notify him when they
7528 JAMES v. ROWLANDS
took C.J. into temporary custody and when they entered into
the voluntary agreement to temporarily transfer C.J’s custody
to Proano. Specifically, James contends that California Wel-
fare and Institutions Code sections 307.4 and 11400 required
the CPS officials to notify him of these actions, and that the
failure to comply with these statutes violated his right to pro-
cedural due process.

[13] California Welfare and Institutions Code section
307.4 requires any official who takes a minor into temporary
custody to “immediately inform, through the most efficient
means available, the parent, guardian, or responsible relative,
that the minor has been taken into protective custody . . . .”
Cal. Welf. & Inst. Code § 307.4(a). According to James, this
requires notice to both parents, notwithstanding the use of the
singular form of “parent.” James also argues that California
Welfare and Institutions Code section 11400, which defines a
“voluntary placement agreement” as a “written agreement
between . . . the county welfare department . . . and the par-
ents or guardians of a child,” required the officials to notify
him of the placement agreement. Id. § 11400(p). We need not
decide whether these state laws in fact required notice to
James at any point. Even assuming that these statutes did
require the CPS officials to notify James, they did not create
a right protected by the Fourteenth Amendment’s Due Process
Clause that James can vindicate through a § 1983 civil rights
action.

[14] State law can create a right that the Due Process
Clause will protect only if the state law contains “(1) substan-
tive predicates governing official decisionmaking, and (2)
explicitly mandatory language specifying the outcome that
must be reached if the substantive predicates have been met.”
Bonin v. Calderon, 59 F.3d 815, 842 (9th Cir. 1995) (internal
quotation marks and citation omitted). To create a right pro-
tected by the Due Process Clause, the state law “must provide
more than merely procedure; it must protect some substantive
end.” Id. (internal quotation marks and citation omitted);
 JAMES v. ROWLANDS 7529
accord Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983)
(“[A]n expectation of receiving process is not, without more,
a liberty interest protected by the Due Process Clause.”). The
California statutes that James contends required the officials
to notify him do not, even under James’s construction, estab-
lish any substantive predicates or mandate any outcomes. At
most, they simply require notice.

James contends that the failure to follow these purported
notification requirements nonetheless violated his procedural
due process rights because the requirements are designed to
protect parents’ constitutionally protected liberty interest in
participating in the care and management of their children.
This argument misapprehends how the Due Process Clause
interacts with state law. A state does not create new constitu-
tional rights by enacting laws designed to protect existing
constitutional rights. See Bonin, 59 F.3d at 842 (explaining
that a state law does not create a protected liberty interest
where it “merely creates a state procedural right which is
itself designed to facilitate the protection of more fundamental
substantive rights” arising from the Constitution, such as the
right to effective assistance of counsel). Thus, when a state
establishes procedures to protect a liberty interest that arises
from the Constitution itself—like a parent’s liberty interest
here—the state does not thereby create a new constitutional
right to those procedures themselves, and non-compliance
with those procedures does not necessarily violate the Due
Process Clause. See Walker v. Sumner, 14 F.3d 1415, 1420
(9th Cir. 1994) (“[I]f state procedures rise above the floor set
by the due process clause, a state could fail to follow its own
procedures yet still provide sufficient process to survive con-
stitutional scrutiny.” (quoting Rogers v. Okin, 738 F.2d 1, 8
(1st Cir. 1984))), overruled on other grounds by Sandin v.
Conner, 515 U.S. 472, 483-84 (1995). Rather, the Due Pro-
cess Clause itself determines what process is due before the
state may deprive someone of a protected liberty interest. See
Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (setting
7530 JAMES v. ROWLANDS
forth the factors used in determining whether procedural pro-
tections are adequate under the Due Process Clause).

[15] Because the state statutes that James identifies did not
create a constitutional right to notification, James’s procedural
due process claim fails. We accordingly affirm the grant of
summary judgment to the defendants on James’s procedural
due process claim.

IV. Conclusion

In sum, we decline to decide whether the defendants vio-
lated James’s substantive due process rights by failing to
inform him of the molestation investigation or the attempts to
coerce C.J. to change her testimony and conclude that, if any
such rights existed, they were not clearly established. We fur-
ther hold that, although the CPS officials violated James’s
parental rights under the Fourteenth Amendment by failing to
inform him of C.J.’s temporary detention and placement in
protective custody and of the voluntary agreement temporar-
ily transferring her physical custody, those rights were not
clearly established at the time. We therefore affirm the grant
of summary judgment for the defendants on James’s substan-
tive due process claims. Finally, we hold that no state law
conferred on James a procedural due process right to notifica-
tion of the changes in C.J.’s custody, and we accordingly
affirm the grant of summary judgment for the defendants on
James’s procedural due process claim. Because we affirm the
grant of summary judgment for the defendants, we dismiss as
moot the defendants’ cross-appeal on the statute of limitations
issue.

Appeal No. 08-16642: AFFIRMED.

Appeal No. 08-16643: DISMISSED.