Opinion

Kindra O'Bryant v. DCP&P

Court: Court of Appeals for the Third Circuit
Filed: Sep 16, 2026
Status: Published
Cited by: 0 cases

The opinion

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Nos. 23-1950, 23-1951, & 23-1952

KINDRA O’BRYANT;

BRIAN FLANDERS;

ARTIE PEOPLES

NEW JERSEY DIVISION OF CHILD PROTECTION AND

PERMANENCY,

FKA Division of Youth and Family Services; LISA VON

PIER;

ALLISON BLAKE; LISA CAPONE; CONCHITA VARGA;

BRYANT ROLLS;

ET AL.

ARTIE PEOPLES,

Appellant in 23-1950

BRIAN FLANDERS,

Appellant in 23-1951

KINDRA O’BRYANT,

Appellant in 23-1952

_____________________________

On Appeal from the U.S. District Court, D.N.J.

Judge Noel L. Hillman, No. 1:17-cv-07752

Before: HARDIMAN, FREEMAN, AND CHUNG, Circuit Judges

Argued: Oct. 21, 2025; Filed: Sept. 16, 2026

_____________________________

OPINION OF THE COURT

CHUNG, Circuit Judge. Plaintiffs brought claims alleging

that caseworkers with New Jersey’s Division of Child

Protection and Permanency (“DCPP”) violated the Fourth

Amendment by entering their residence without a warrant and

violated their due process rights by removing children from

their parental custody without court authorization when the

children did not face a risk of imminent harm. The District

Court dismissed the Complaint based on qualified immunity.

We will affirm the dismissal in most respects. However,

because we conclude that some Plaintiffs pled plausible

violations of clearly established Fourth Amendment law, we

will reverse the dismissal of the Fourth Amendment claim and

remand for further proceedings on that claim.

I. BACKGROUND 1

Plaintiff Kindra O’Bryant is the mother of three children

who were removed from her custody without court

authorization. She is also the owner and resident of the home

that was subject to warrantless entry. Plaintiff Brian Flanders

is a resident of the same home and the father of the youngest

The facts set forth in this section are taken from the

Complaint and deemed to be true for purposes of reviewing the

District Court’s dismissal. In re Allergan Erisa Litig., 975 F.3d

348, 353 n.9 (3d Cir. 2020). We construe the Complaint in the

light most favorable to Plaintiffs. Jordan v. Fox, Rothschild,

O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

of O’Bryant’s children, and Plaintiff Artie Peoples is

O’Bryant’s father and the grandfather of all three children.

A. The Home Entry

On June 6, 2017, Flanders came to pick up O’Bryant’s

children, K.E. and K.Y., from school. Although the school told

him not to leave because DCPP 2 was on its way to retrieve the

children, Flanders left with the children and took them back to

the home he shared with O’Bryant.

Later that same day, Defendant Alicia Ash, a caseworker

with the DCPP, appeared unannounced at O’Bryant’s home

with an unnamed colleague. Ash identified herself as a DCF

employee and stated that she needed to enter the home

“[n]ow!” JA66. O’Bryant was not home at the time. When

Flanders pressed Ash to explain why she needed to enter the

home, she stated that she was there to investigate the abuse of

K.Y. and K.E., and that she had received a phone call from

“someone” who reported that Flanders “was upset and agitated

when he” dropped the two children off at school that morning.

JA66–67. Flanders denied her entry, but Ash replied that “he

had to let her in ‘right now’ and that he ‘could not refuse’ her

entry.” JA67. Faced with these demands, Flanders “under

duress and the coercive threats of Ash acting under color of

state law, then proceeded to allow Ash into Ms. O’Bryant’s

home against his will [and] involuntarily.” Id. Once Ash

entered, she stated that she wanted to see the children, and was

DCPP is a division within New Jersey’s Division of

Children and Families (“DCF”). (The Complaint refers to this

division by its former name, the Division of Youth & Family

Services.)

permitted to do so. She then stated that she wanted to inspect

the home and where the children slept. Flanders told her she

could not do so without O’Bryant’s permission. Ash and her

colleague left without inspecting O’Bryant’s home.

B. The Family Agreement and Conditions Related to

O’Bryant and Her Home

Also on June 6, O’Bryant, who was pregnant, attended a

pre-natal care appointment and presented with symptoms of

depression. She was admitted to Cooper Hospital later that

day. While there, Ash and another DCPP caseworker

approached O’Bryant and asked her about her relationship with

Flanders. O’Bryant said that Flanders is the father of the child

O’Bryant was expecting, and that while they sometimes argue,

they never have physical fights and the children are not afraid

of him. Ash also asked O’Bryant about her “cutting history”

and asked to see “the new cut on [her] arm.” JA69.

The next day, Ash called O’Bryant and told her that she

could not be discharged until Ash and her colleague arrived to

talk with her. When Ash arrived, she presented O’Bryant with

a family plan agreement (the “Family Agreement”). Under the

terms of the Family Agreement as described in the Complaint,

Flanders would be required to leave O’Bryant’s home due to

his “history of violence and hurting his child,” and would not

be permitted to “be a caregiver to” O’Bryant’s children. JA70.

O’Bryant explained to Ash that this “history” entailed an

incident of Flanders “disciplin[ing]” his son from another

relationship, that his related DCPP case had been closed

several months before, and that Flanders had since seen his

son. Id. O’Bryant reiterated that Flanders had never been

violent to her or her children “in any way.” Id. Ash responded

that if O’Bryant “did not sign [the Family Agreement] her

children were going to be taken away from her.” JA71.

“[U]nder duress and the coercive threats of Ash acting under

color of state law,” O’Bryant “signed the … Family Agreement

involuntarily.” Id.

Ash and her colleague then took O’Bryant home. They

took a tour of the home and observed that the house had a roach

and bed bug problem, the stove was broken, and the house

needed other repairs. Ash promised that the DCPP would help

ameliorate these issues, and O’Bryant accepted the promise of

these services. O’Bryant also advised the caseworkers that the

children were about to go to Ohio for the summer to be with

their father.

Thereafter, O’Bryant tried contacting Ash multiple times to

explain that the Family Agreement was not working for her

because living alone made her depressed. Weeks later, Ash

returned to O’Bryant’s home and presented her with an

updated family plan agreement (the “Amended Family

Agreement”), which O’Bryant signed. JA73. The Amended

Family Agreement “does not mention anything about

[Flanders] not being able to live in the house,” and only states

that “he cannot be a caregiver alone with the children.” JA76.

As to the conditions at O’Bryant’s home, the DCPP failed

to act on their promise to help.

C. The Removal of the Children

On August 12, 2017, K.E. and K.Y. returned from Ohio and

were brought to O’Bryant’s home. On August 15, O’Bryant

gave birth to her and Flanders’s child at a hospital. The next

day, Defendants Bryant Rolls and Conchita Vargas, both

DCPP caseworkers, entered O’Bryant’s hospital room.

Flanders was not present at that time. Rolls called Peoples and

told him that he had to come to the hospital to pick up K.E. and

K.Y. When Peoples arrived, Rolls and Vargas explained that

they were there to talk with Flanders regarding his presence

around the newborn, K.E., and K.Y. Rolls left his contact

information and said that Flanders must call him when he

returned to the hospital.

Flanders called as instructed, and Rolls and Vargas

returned. Rolls advised that he was the caseworker newly

assigned to the case. He further advised that under the terms

of the Family Agreement, Flanders was not permitted to be at

the hospital if O’Bryant’s children were present and could not

live at O’Bryant’s home with the children until he completed a

domestic violence program. Flanders responded that his case

involving his son was closed and he was permitted to interact

with him, but the caseworkers emphasized the terms of the

Family Agreement. O’Bryant noted that the Amended Family

Agreement “does not mention anything about [Flanders] not

being able to live in the house, it states he cannot be a caregiver

alone with the children.” JA76.

A short while later, Peoples arrived at the hospital and the

exchange continued. A hospital security guard and deputies of

the Camden County Sheriff’s Office, led by Deputy T. Nichols,

responded. Vargas told Deputy Nichols that Flanders was

previously charged with endangering the welfare of a child,

aggravated assault on a police officer, and an offense related to

weapons, and that he had pending warrants for his arrest.

Deputy Nichols ran a check for warrants and found none

outstanding.

Vargas then stated that she wanted to talk with K.E. and

K.Y. alone. Peoples replied that she needed a warrant to do so.

Vargas then presented “Dodd” removal papers to Deputy

Nichols and Peoples and said that the papers authorize the

DCPP “to talk with” O’Bryant’s children. 3 JA84. Although

Vargas never showed the papers to O’Bryant or Flanders,

Deputy Nichols brought K.E. and K.Y. across the street to the

DCPP building, joined by Vargas, Rolls, Peoples, and

Flanders. Flanders and Peoples were directed to wait outside

while the children were brought inside. About two hours later,

Deputy Nichols returned with an arrest warrant for Flanders

and arrested him, removing him from the property. Three

hours thereafter, Peoples was still waiting outside for his

grandchildren. A security guard exited and advised Peoples

that no one was going to come talk to him and that he could

call the DCPP office the next day to inquire about the children.

The Complaint alleges that “yellow papers” were issued

pursuant to N.J. Rev. Stat. § 9:6-8.29 to effect a “Dodd”

removal of the children. The statute permits the state to

“remove a child from the place where the child is residing …

and without the consent of the parent or guardian … if the child

is in such condition that the child’s continuance in the place or

residence or in the care and custody of the parent … presents

an imminent danger to the child’s life, safety, or health, and

there is insufficient time to apply for a court order[.]” N.J. Rev.

Stat. § 9:6-8.29. It could be that the children were formally

removed at this point in time. However, the Complaint

includes some indication that K.E. and K.Y. might be released

to Peoples who waited outside for them. In any case, the exact

timing of their removal on this date does not matter for

purposes of our decision.

The next day, August 17, Defendant Jonathan Garrett, a

DCPP caseworker, arrived unannounced at O’Bryant’s

hospital room to tell her she was to appear at a Superior Court

hearing the next day and that he was there to seize her newborn

child. Garrett said that his supervisor was Lisa Capone and

provided her phone number to O’Bryant and Peoples. They

called Capone and asked her how she had the jurisdiction to

seize the children. She responded that she “kn[ew] the law”

and would be in their lives forever. JA89. The newborn was

not seized at this time.

O’Bryant could not attend the hearing on August 18

because of medical concerns that kept her in the hospital.

Flanders, still in Sheriff’s custody, was produced by that office.

The court postponed the hearing given O’Bryant’s inability to

appear. Later that day, Garrett returned to the hospital to seize

O’Bryant’s and Flanders’s newborn. He did not present a

warrant or court order. On August 21, both O’Bryant and

Flanders appeared for a hearing in family court.

D. Procedural History

On October 10, 2017, Plaintiffs filed a pro se complaint (the

“Complaint”) in the United States District Court for the District

of New Jersey, alleging claims under 42 U.S.C. §§ 1983 and

1985. On September 6, 2018, the District Court granted

Defendants’ motion to dismiss the Complaint. On June 16,

2020, we vacated the dismissal in part, 4 concluding that the

We affirmed the dismissal of Plaintiffs’ claims for money

damages against the DCPP and its employees in their official

District Court improperly applied the domestic relations

exception to subject matter jurisdiction and Younger

abstention, and remanded. See O’Bryant v. N.J. Div. of Child

Prot. & Permanency, 818 F. App’x 143, 147 (3d Cir. June 16,

2020). On July 20, 2020, the DCPP Defendants 5 filed a

renewed motion to dismiss the Complaint, which the District

Court granted on February 22, 2021, concluding that they were

entitled to qualified immunity. On June 12, 2021, the Sheriff

Defendants 6 filed their own renewed motion to dismiss, which

capacity. O’Bryant v. N.J. Div. of Child Prot. & Permanency,

818 F. App’x. 143, 147 (3d Cir. June 16, 2020).

The “DCPP Defendants” are: (1) the DCPP; (2) Allison

Blake, who was the Commissioner of DCF; (3) Lisa Von Pier,

who was the Director of DCPP; and (4) DCPP employees

Conchita Vargas, Bryant Rolls, Alicia Ash, Jonathan Garrett,

and Lisa Capone.

The Plaintiffs do not appeal the dismissal of the DCPP.

While they apparently appeal the dismissal of their due process

claims as to Von Pier and Blake, the Complaint does not plead

any allegations as to these two defendants, so we will affirm

the order dismissing claims as to those defendants. When we

use the term “DCPP Defendants,” we exclude the DCPP, Von

Pier, and Blake.

The Sheriff Defendants are: (1) Gilbert “Whip Wilson,”

who was Sheriff of Camden County, N.J. and (2) Camden

County, N.J. Deputy Sheriffs T. Nichols and Gurkin.

Plaintiffs stated at oral argument that they are challenging

the order dismissing the Sheriff Defendants, but failed to

develop any argument to that effect in their Opening Brief and

so have forfeited this challenge. Barna v. Bd. of Sch. Dirs. of

Panther Valley Sch. Dist., 877 F.3d 136, 145–46 (3d Cir.

the District Court granted on August 11, 2022, also on the basis

of qualified immunity. This timely appeal followed. 7

After filing their opening brief, Plaintiffs moved for the

appointment of pro bono counsel. We granted their motion and

set a new briefing schedule. Plaintiffs, through appointed

2017). Consequently, we will affirm the dismissal of the

Sheriff Defendants.

Plaintiffs do not meaningfully challenge the District

Court’s dismissal of Counts One, Two, and Five, so we will

affirm dismissal of those Counts. See Barna, 877 F.3d at 145–

46. With regard to Count Four, they only present arguments

regarding defendant Ash.

Flanders clarified at Oral Argument that he only asserts a

right to the care, custody, and management of his own

biological child, and that his claim does not relate to the

removal of K.E. and K.Y. from O’Bryant’s custody.

Therefore, to the extent that the District Court dismissed

Flanders’ claims related to the two older children, we will

affirm.

We also affirm the District Court’s order dismissing all

counts asserted by Peoples on the independent basis that he

lacks Article III standing. The Complaint does not allege that

Peoples had any privacy interest in O’Bryant’s home, nor does

it plausibly allege he has a cognizable constitutional interest in

the care, custody, and management of his grandchildren. He

has therefore not shown the “invasion of a legally protected

interest.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992).

counsel, 8 filed a corrected brief (the “Opening Brief”) and

appendix, which did not adopt the pro se brief or appendix

originally filed pro se. In their Response Brief, Defendants

assert a number of additional facts by citing a complaint of

child abuse included in the pro se appendix.

II. DISCUSSION 9

We review de novo a district court’s dismissal of a

complaint under Federal Rule of Civil Procedure 12(b)(6). In

re Allergan Erisa Litig., 975 F.3d 348, 353 n.9 (3d Cir. 2020).

“‘In conducting such a review, we take as true all the factual

allegations of the ... Complaint and the reasonable inferences

that can be drawn from them, but we disregard legal

conclusions and recitals of the elements of a cause of action,

supported by mere conclusory statements.’” Id. (quoting

Santiago v. Warminster Township., 629 F.3d 121, 128 (3d Cir.

2010)). “To survive a motion to dismiss, ‘a complaint must

contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.’” Sheridan v. NGK

Metals Corp., 609 F.3d 239, 262 n.27 (2010) (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial

plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (quoting

Iqbal, 556 U.S. at 678). We confine our review to the

The attorneys representing Appellants appeared pro bono.

We thank them for taking this case on a pro bono basis and for

the very able and professional way in which they handled the

representation and argument before the Court.

The District Court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291.

complaint and the exhibits attached thereto without reference

to other materials, with limited exceptions not applicable here,

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010), and we

construe pro se complaints liberally, Erickson v. Pardus, 551

U.S. 89, 94 (2007).

Plaintiffs appeal the District Court’s order dismissing on

qualified immunity grounds (1) Count Four, their § 1983 claim

that Ash violated their Fourth Amendment right to be free from

unreasonable searches, and (2) Count Three, their § 1983 claim

that the DCPP Defendants violated their substantive and

procedural due process rights in the care, custody, and

management of their children.

In considering whether an official sued under § 1983 is

entitled to qualified immunity, we determine if (1) the facts in

the Complaint state a claim that the official violated a

constitutional right that was (2) clearly established at the time

of their alleged misconduct. Stringer v. County of Bucks, 141

F.4th 76, 85 (3d Cir. 2025). If the specific right was not clearly

established, the official is entitled to qualified immunity. Id.

A. Defendants’ Reliance Upon the Pro Se Appendix is

Misplaced, and the District Court Improperly

Considered Facts Outside of the Complaint in its

Opinion

1. Defendants May Not Rely Upon the Child Abuse

Complaint

The DCPP Defendants rely upon factual allegations

contained in a child abuse complaint included in the pro se

appendix to argue that the District Court’s order should be

affirmed. The DCPP Defendants posit that because Plaintiffs

filed the child abuse complaint in this Court, we can and should

consider the document and the allegations therein. Our

dissenting colleague agrees and also asserts that we should take

judicial notice of the child abuse complaint as a public record. 10

We may judicially notice a fact that “is not subject to

reasonable dispute.” Werner v. Werner, 267 F.3d 288, 295 (3d

Cir. 2001); cf. Fed. R. Evid. 201(b). Yet many of the

allegations in the child abuse complaint are disputed by the

Plaintiffs, and some are based on multiple layers of hearsay.

The dissent reasons that we may consider these documents

because Plaintiffs filed them when they acted pro se, Dissent

at 7–8, but Plaintiffs merely acknowledged the existence of

these documents.

Reliance on these documents is particularly misplaced here

because they are inconsistent with facts asserted by Plaintiffs

in their Complaint and those inconsistencies are relevant to our

legal analysis. For instance, the child abuse complaint asserts

that removal is appropriate because O’Bryant violated the

Family Agreement by allowing Flanders to be around the

children. 11 Plaintiffs allege in their Complaint, though, that

Our dissenting colleague would also take judicial notice of

DCPP’s 2017 determination regarding Flanders’s case and

state records regarding Flanders’s charges. As we explain

below, see infra n.14, Defendants have not requested that we

take notice of these documents, and we decline to do so.

The DCPP Defendants now disavow that basis for the

children’s removal, despite otherwise relying on the child

abuse complaint.

O’Bryant was coerced into signing the Agreement. Moreover,

the Complaint in this case asserts that the Family Agreement

was amended so as to permit Flanders to live in the home with

the children, while the child abuse complaint makes no

mention of the Amended Family Agreement. These

inconsistencies matter because they impact how we define the

constitutional right for qualified immunity purposes. 12

We decline to take judicial notice of the Family Court

documents in light of these inconsistencies. Werner, 267 F.3d

at 295; Fed. R. Evid. 201(b).

2. The District Court Improperly Considered Factual

Allegations Outside the Complaint

In concluding that the Defendants are entitled to qualified

immunity, the District Court erroneously relied upon factual

allegations external to the Complaint, construed the

Complaint’s silence on some issues against the Plaintiffs, or

accepted as true statements made by various DCPP Defendants

or third parties that the Complaint merely recounted. 13 We do

For instance, Plaintiffs assert that their substantive due

process rights were violated because the children were

removed based upon O’Bryant’s failure to adhere to a Family

Agreement she signed under coercion and that was later

amended. See Opening Br. at 38–39; Croft, 103 F.3d at 1127.

“If, on a motion under Rule 12(b)(6) or 12(c), matters

outside the pleadings are presented to and not excluded by the

court, the motion must be treated as one for summary judgment

under Rule 56.” See Fed. R. Civ. P. 12(d). “When a District

Court decides to convert a motion to dismiss into a motion for

none of those things at this stage, though, because when

evaluating a grant of dismissal made pursuant to Rule 12(b)(6),

we construe the Complaint in the light most favorable to

Plaintiffs.

For example, the District Court stated that the “DCPP

discovered that Flanders … had a documented history of child

abuse and a violent criminal record, which included

endangering the welfare of a child, weapons, and aggravated

assault on a police officer.” JA25. However, the Complaint

presents a different narrative. It states that Flanders’s case

involving his son had been closed for months and does not state

that the allegations were sustained. It also states that Flanders

is permitted to interact with his son. 14 Similarly, the Complaint

summary judgment, it must provide the parties ‘reasonable

opportunity’ to present all material relevant to a summary

judgment motion.” In re Rockefeller Cntr Props., Inc. Secs.

Litig., 184 F.3d 280, 287–88 (3d Cir. 1999) (quoting Fed. R.

Civ. P. 12(d)). The parties must have “notice of the

conversion,” and that notice must be “unambiguous.” Ross v.

Bartle, 871 F.2d 331, 340–42 (3d Cir. 1989). We note this not

as the basis for reversal, which was not argued by Plaintiffs,

but to flag that the external factual allegations cited by the

District Court are disputed in the Complaint.

Our dissenting colleague would take judicial notice of a

letter sent to Flanders reflecting that DCF and DCPP made an

administrative finding regarding a prior child abuse allegation

against Flanders. The DCPP Defendants have not asked us to

take judicial notice of this document, nor was it before the

District Court. Moreover, while the document states that

DCPP found the allegation was “Established,” it also explained

states that a DCPP Defendant alleged that Flanders had charges

for certain crimes, without averring that Flanders in fact faced

such charges, or that he was convicted of them. While we

accept as a reasonable inference that Flanders had a charge or

conviction of some kind, given the Complaint’s allegation that

he wore an ankle monitor, we cannot construe the Complaint’s

silence, coupled with its inclusion of a hearsay statement,

against Plaintiffs to conclude that Flanders was convicted of a

violent offense.

The District Court additionally wrote that the “DCPP

discovered O’Bryant had either self-mutilated or attempted

suicide while pregnant due to severe depression.” JA25. Yet

the Complaint is silent as to these alleged facts and contains

only a hearsay statement by a DCPP Defendant asking about

O’Bryant’s “cutting history.” JA69. Likewise, the District

Court found that, under the Family Agreement, Flanders

needed to complete certain parenting and domestic violence

programing as a condition of his return to O’Bryant’s home.

Neither the Complaint, nor the child abuse complaint, states

that the domestic violence program was a term of the Family

Agreement, just that Flanders was informed at the hospital that

that Flanders’s conduct did “not warrant a finding of

Substantiated.” The letter does not state what conduct Flanders

engaged in to “establish” child abuse, nor does it set forth the

difference between an “established” and a “substantiated”

allegation. Id. The parties likewise do not brief what

significance, if any, the distinction would have here. Hence,

even if we were to take notice that the finding was Established

as of a certain date, we could afford that finding little weight

since we lack critical information to understand what it

reflects.

he needed to complete programs before he could be with the

children. See JA75-80; ECF 15, ex.2 at 5. Furthermore, the

Complaint alleges that the Amended Family Agreement

superseded the Family Agreement and allowed Flanders to be

in the home so long as he was not acting as “a caregiver alone

with the children.” JA76.

Against this backdrop, we now turn to the legal analysis of

Plaintiffs’ claims. 15

B. The District Court Erred in Dismissing the Fourth

Amendment Claim

1. The Complaint States a Plausible Violation of the

Fourth Amendment

Discovery may, of course, resolve disputes about the

existence of an Amended Family Agreement or indicators of

danger that Flanders may have posed. We merely remand so

that such discovery can be conducted, particularly given that

the Plaintiffs sought discovery, and had no opportunity to

respond with additional evidence to facts external to their

Complaint.

It is unsurprising that our dissenting colleague reaches

different conclusions as he considers an entirely different set

of facts, akin to those which might be revealed by limited

discovery for qualified immunity purposes. See Stringer, 141

F.4th at 86–87. As our opinion draws only upon those facts set

forth in the Complaint taken as true, it should not be read as

taking any position with regard to the legal conclusions

contained in the Dissent.

Plaintiffs first challenge the District Court’s order

dismissing their Fourth Amendment claim as to Defendant

Ash. 16

The Fourth Amendment provides that “[t]he right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

violated.” U.S. CONST. amend. IV. “It is a ‘basic principle of

Fourth Amendment law’ … that searches and seizures inside a

home without a warrant are presumptively unreasonable.”

Payton v. New York, 445 U.S. 573, 586 (1980) (quoting

Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971)).

Indeed, “physical entry of the home is the chief evil against

which the … Fourth Amendment is directed.” United States v.

U.S. Dist. Ct. for E. Dist. of Mich., 407 U.S. 297, 313 (1972);

see also Florida v. Jardines, 569 U.S. 1, 6 (2013) (“[W]hen it

The District Court did not analyze the Fourth Amendment

claim in its opinion. This is unsurprising as Ash’s brief

supporting the motion to dismiss failed to develop any

argument related to the Fourth Amendment claim. While this

constitutes forfeiture, DirecTV, Inc. v. Seijas, 508 F.3d 123,

125 n.1 (3d Cir. 2007), “[w]e may decide a question not

addressed by the District Court when ‘the record has been

sufficiently developed for us to resolve the legal issue,’”

Chehazeh v. Att’y Gen., 666 F.3d 118, 140 (3d Cir. 2012)

(quoting In re Ben Franklin Hotel Assocs., 186 F.3d 301, 306

(3d Cir. 1999)). Furthermore, at oral argument, Plaintiffs

urged us to resolve the matter, and Defendants did not argue

otherwise. Given the adequacy of the record before us, the fact

that this case has already been considered on remand once, and

its long pendency, we will assess the merits of Plaintiffs’

challenge to the dismissal of their Fourth Amendment claim.

comes to the Fourth Amendment, the home is first among

equals.”). This warrant requirement, however, is subject to

exceptions because “the ultimate touchstone of the Fourth

Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547

U.S. 398, 403 (2006).

The Complaint alleges that Defendant Ash “and another

woman” appeared in their capacity as state officials at

O’Bryant’s home, after receiving a phone call from an

unidentified source who reported that Flanders “was upset and

agitated” when he dropped off the children at school. JA66–

67. Ash did not have a warrant and was refused entry by

Flanders. After she repeatedly insisted on entering and stated

that Flanders “could not refuse” her request, Flanders relented

and let her inside. JA67.

To determine whether the Complaint plausibly alleges that

the search was unreasonable, we look at “‘all of the

circumstances surrounding the search … and the nature of the

search … itself,’” Skinner v. Ry. Lab. Execs. Ass’n, 489 U.S.

602, 619 (1989) (quoting United States v. Montoya de

Hernandez, 473 U.S. 531, 537 (1985)), “assessing on the one

hand, the degree to which it intrudes upon an individual’s

privacy and, on the other, the degree to which it is needed for

the promotion of legitimate governmental interests,” United

States v. Knights, 534 U.S. 112, 118–19 (2001). Because this

case involves the search of a home, we start with the principle

that warrantless searches of a home “are presumptively

unreasonable,” Payton, 445 U.S. at 586, and assess whether

there is a legitimate government interest to overcome this

presumption, Knights, 534 U.S. at 118–19. For example, a

warrantless search of a home may be justified where officers

need to render “emergency aid.” Kentucky v. King, 563 U.S.

452, 460 (2011).

Ash contends that her entry was necessary to protect

O’Bryant’s children, which we construe to be an assertion that

the imminent danger exception to the warrant requirement

applies. See Good v. Dauphin Cnty. Soc. Servs. for Child. &

Youth, 891 F.2d 1087, 1093 (3d Cir. 1989); Brigham City, 547

U.S. at 403. This exception only applies at this stage when it

is plain from the Complaint that (1) entry into a home was

made to protect children within from imminent danger of abuse

and (2) it was objectively reasonable to believe that the

intrusion was necessary to avert that imminent harm to the

children. See Croft v. Westmoreland Cnty. Child. & Youth

Servs., 103 F.3d 1123, 1126 (3d Cir. 1997); Michigan v.

Fisher, 558 U.S. 45, 49 (2009). The Complaint alleges that

Ash was in receipt of a report made by an unknown person that

Flanders was “upset and agitated” when he dropped the

children off at school that morning. JA67. That report is

plainly insufficient to allow us to conclude that the children

were in imminent danger of abuse or other harm, and no other

facts are alleged in the Complaint as to the information Ash

relied upon at the time of her search.

Ash also argues that the warrantless entry was reasonable

pursuant to the “special needs doctrine.” We disagree. That

doctrine allows for warrantless searches unsupported by

individualized suspicion, like searches at border checkpoints

or drug testing of certain categories of employees. See City of

Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (collecting

cases). It applies in “instances when a search furthers a ‘special

governmental need’ beyond that of normal law enforcement

such that the search, although not supported by the typical

quantum of individualized suspicion, can nonetheless still be

found constitutionally ‘reasonable.’” Neumeyer v. Beard, 421

F.3d 210, 213–14 (3d Cir. 2005). The doctrine has been

applied when a policy routinely allows for warrantless searches

if certain circumstances are present, without further assessment

of individualized suspicion, and when such factors reflect

reasonableness and a valid state interest in the search apart

from law enforcement needs. 17 Because the search here was

not conducted pursuant to such a policy, and instead was

expressly based on individualized suspicion, the special needs

doctrine is not implicated.

For the foregoing reasons, Plaintiffs have plausibly alleged

a violation of the Fourth Amendment with respect to Ash’s

warrantless entry.

2. Ash Is Not Entitled to Qualified Immunity on the Fourth

Amendment Claim

Though Plaintiffs have plausibly alleged a Fourth

Amendment violation, we must consider if Ash is entitled to

qualified immunity. Government officials are entitled to

qualified immunity when their actions, even if

See Skinner, 489 U.S. at 624 (drug and alcohol testing for

employees upon the occurrence of a train accident); Nat. Treas.

Emps. Union, 489 U.S. at 667–68 (drug testing of employees

as a condition of placement or employment for positions that

met certain criteria, such as a job requirement to carry a

firearm); Veronica Sch. Dist. 47J v. Acton, 515 U.S. 646, 664–

65 (1995) (random drug testing for student athletes);

Neumeyer, 421 F.3d at 213–14 (requiring that prison visitors

consent to searches of their vehicles as a precondition for

entry).

unconstitutional, do not violate clearly established law.

Pearson v. Callahan, 555 U.S. 223, 243 (2009). The inquiry

“turns on the ‘objective legal reasonableness of the action,

addressed in light of the legal rules that were clearly

established at the time it was taken.’” Id. (quoting Wilson v.

Layne, 526 U.S. 603, 614 (1999)). This means that “[t]he

contours of the right [are] sufficiently clear that a reasonable

official would understand that what he is doing violates that

right. This is not to say that an official action is protected by

qualified immunity unless the very action in question has

previously been held unlawful, but it is to say that in the light

of pre-existing law the unlawfulness must be apparent.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). In these

cases, “a plaintiff can demonstrate that the right was clearly

established by presenting a closely analogous case that

establishes that the Defendants’ conduct was unconstitutional

or by presenting evidence that the Defendant’s conduct was so

patently violative of the constitutional right that reasonable

officials would know without guidance from a court.’’ Id.

(internal quotations and citation omitted).

“‘[Q]ualified immunity will be upheld on a 12(b)(6) motion

only when the immunity is established on the face of the

complaint.’” Thomas v. Independence Township, 463 F.3d

285, 300 (3d Cir. 2006) (quoting Leveto v. Lapina, 258 F.3d

156, 161 (3d Cir. 2001)). Being that defendants have no hand

in drafting complaints and are unable to insert facts that may

weigh in favor of finding qualified immunity, we have noted

that it may be difficult for defendants to successfully claim

qualified immunity on the pleadings. See Stringer, 141 F.4th

at 86.

We begin by defining “the right ‘in light of the specific

context of the case,’ with all reasonable inferences drawn in

the nonmovant’s favor.” Mack v. Yost, 63 F.4th 211, 228 (3d

Cir. 2023) (quoting Peroza-Benitez v. Smith, 994 F.3d 157,

165–66 (3d Cir. 2021)) (internal quotations omitted). Here, the

right at issue is freedom from warrantless entry of a home by

state child welfare workers conducting a child safety

investigation upon a report from an unidentified source that

one of the children’s caregivers appeared upset and agitated

earlier that day.

Next, we must determine if that right was sufficiently clear

such that a reasonable official would have understood that their

conduct violated that right. Peroza-Benitez, 994 F.3d at 165.

It was. Good v. Dauphin County Social Services for Children

& Youth provided “fair warning” to Ash that the entry of

O’Bryant’s home was unconstitutional absent corroborating

evidence that the children were in imminent danger. There, we

addressed a similar set of facts and explained that, as of at least

the incident’s occurrence in 1987, “the decided case law made

it clear that the state may not, consistent with the prohibition

of unreasonable searches and seizures found in the Fourth and

Fourteenth amendments, conduct a search of a home or strip

search of a person’s body in the absence of consent, a valid

search warrant, or exigent circumstances.” 891 F.2d at 1092. 18

Supreme Court authority from before Good makes clear

that it must be “objectively legally reasonable to conclude that

a given search was supported by . . . exigent circumstances.”

Anderson, 483 U.S. at 641; see Mincey v. Arizona, 437 U.S.

385, 393 (1978) (“[W]arrants are generally required to search

a person’s home or his person unless ‘the exigencies of the

situation’ make the needs of law enforcement so compelling

In Good, state social services received a report that a seven-

year-old child said certain bruises on her body were caused by

a fight with her mother. Id. at 1089. According to the state

officers, the child was not in school the next morning and a

caseworker unsuccessfully tried contacting her mother by

phone. Id. As a result, a caseworker entered the family’s home

without a warrant and performed a non-consensual strip search

of the child. Id. We held that the entry and the strip search

were unconstitutional because the caseworker lacked reason to

believe the child “was in imminent danger of serious bodily

injury and that the[] intrusions were reasonably necessary to

avert that injury.” Id. at 1095.

Good and the present case are “closely analogous” because

both involve warrantless searches based on a single

uncorroborated statement about a child’s welfare. Schneyder,

653 F.3d at 330. And any inference of imminent danger that

DCPP officials here could have drawn from the facts was

weaker than in Good because the uncorroborated statement

from the unidentified source here does not even suggest that

Flanders physically injured the children. It therefore “would

have been apparent to a reasonable official” that Ash’s conduct

was unlawful. Williams v. Bitner, 455 F.3d 186, 192 (3d Cir.

2006).

Ash contends Good is distinguishable, and so did not

provide her fair warning, because she and her colleague were

that the warrantless search is objectively reasonable under the

Fourth Amendment.”). This body of law put Ash on notice that

she needed an objectively reasonable basis for concluding that

exigent circumstances justified her warrantless entry into

O’Bryant’s home.

not accompanied by a law enforcement officer, as the social

worker was in Good. However, in Good we said it had been

clearly established since at latest 1987 that the state may not

enter a home without consent, a valid warrant, or exigency.

891 F.2d at 1092. That clearly established law was not limited

to police officers. 19

For these reasons, Ash is not entitled to qualified immunity,

and we will reverse the District Court’s order dismissing the

Fourth Amendment claim.

C. The District Court Correctly Dismissed Plaintiffs’

Substantive Due Process and Procedural Due Process

Claims

In Count Three of the Complaint, Plaintiffs allege that the

DCPP Defendants violated their substantive and procedural

due process rights under the Fourteenth Amendment by

removing the children from their custody without court

authorization. The District Court dismissed the claim based on

qualified immunity. In doing so, it did not address whether the

Complaint plausibly alleged a substantive due process

violation and focused only on whether the right asserted was

clearly established at the time. The District Court did not

specifically analyze the procedural due process portion of the

We do not address the special needs doctrine in our

qualified immunity analysis because Ash argues that she

entered the home based on her belief the children were in

danger—not because of any policy supporting suspicionless

entry. See supra Section II.B.1. Thus, we need not consider

whether she had adequate notice that she could not rely on the

special needs doctrine in entering O’Bryant’s home.

due process claim. We will conduct both steps of the qualified

immunity analysis for each of the asserted violations of due

process.

1. Plaintiffs Plausibly Allege a Substantive Due Process

Violation

The Fourteenth Amendment’s Due Process Clause

provides that “[n]o State shall … deprive any person of life,

liberty or property, without due process of law.” U.S. CONST.

amend. XIV, § 1. To establish a substantive due process claim,

a plaintiff must identify a fundamental liberty interest

protected under the Due Process Clause and show how “the

government’s deprivation of that protected interest shocks the

conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir.

2008).

The first factor is met here. The Supreme Court has long

recognized that parents have a fundamental liberty interest

under the Fourteenth Amendment “in the care, custody, and

management of their child.” Santosky v. Kramer, 455 U.S.

745, 754 (1982). This interest, however, “is not absolute,” and

“is limited by the compelling government interest in the

protection of children—particularly where the children need to

be protected from their own parents.” Croft, 103 F.3d at 1125.

We thus consider whether there was a deprivation that

shocks the conscience. In Croft, we held that “a state has no

interest in protecting children from their parents unless it has

some reasonable and articulable evidence giving rise to a

reasonable suspicion that a child has been abused or is in

imminent danger of abuse.” Id. at 1126. In that case, an

anonymous tipster reported that Croft was sexually abusing his

daughter; that the daughter slept with her parents; and that she

had recently been out of the house naked, walked to a

neighbor’s house, and told the neighbors she was “sleeping

with mommy and daddy.” Id. at 1124. We concluded that it

was improper to grant summary judgment because the

uncorroborated allegations did not provide the social worker

“objective evidence of sexual abuse.” Id. at 1127. We also

made clear that reasonable suspicion is an objective standard.

Id. at 1126 (standard is met when “the information available to

the defendants at the time would have created an objectively

reasonable suspicion of abuse[.]”).

The question here then is whether the Complaint plausibly

alleges that the DCPP Defendants’ conduct shocked the

conscience because, under the facts pled therein, the DCPP

Defendants lacked reasonable suspicion that the children were

in imminent danger of abuse at the time of their removals on

August 16 and 18, 2017. 20 We conclude that the Complaint

does for several reasons.

First, as to the newborn, Flanders had been in custody for

Our dissenting colleague says we “undermine[] our

precedent by declining even to assess whether the DCPP

Defendants had reasonable suspicion of past abuse.” Dissent

at 15 (emphasis added). The DCPP Defendants do not argue

that they removed the children from the home based on

suspicion of past abuse. They simply cite the “reasonable

suspicion that a child has been abused or is in imminent danger

of abuse” standard, which all agree applies here. We

accordingly limit our discussion to “only questions presented

by the parties.” United States v. Sineneng-Smith, 590 U.S. 371,

376 (2020).

two full days when she was removed on August 18, and the

Complaint does not allege that Flanders was to be released

forthwith. These circumstances belie any objectively

reasonable belief that Flanders posed an imminent risk. Cf.

Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996)

(concluding there was no reasonable basis to believe a child

was in imminent danger from his father where the father was

in jail).

As for the removals of K.E. and K.Y., as we explain above,

the District Court looked to facts outside the record and found

that Flanders posed an imminent danger to the children based

on his “violent criminal record” and his “documented history

of child abuse.” JA24–25. Defendants similarly argue that the

facts in the Complaint support a reasonable inference of

imminent harm to the children because of Flanders’s child

endangerment case and criminal charges. Based on the

Complaint alone, we consider only that Flanders had a DCPP

endangerment case for disciplining his son that was closed

months earlier, that he was permitted to be around his son

without further restrictions, that he was charged with or

convicted of an unknown crime, and that he wore an ankle

monitor. Viewing the allegations about the child

endangerment case in the light most favorable to the Plaintiffs,

DCPP determined that Flanders did not pose a danger to his

son. As for Flanders’s criminal matter, because the timing,

offense, and other facts which might reflect imminent danger

are unknown, the criminal matter itself is insufficient to

support an objectively reasonable belief that Flanders was a

danger to the children.

In sum, the Complaint asserts facts that, when considered

in the light most favorable to Plaintiffs, plausibly allege that

the DCPP Defendants did not have an objectively reasonable

belief that Flanders posed an imminent risk to the children.

The DCPP Defendants argue that, even resolving questions

about Flanders in favor of the Plaintiffs, Mammaro v. New

Jersey Division of Child Protection & Permanency, 814 F.3d

164 (3d Cir. 2016) and Mulholland v. Government County of

Berks, 706 F.3d 227 (3d Cir. 2013) support a conclusion that

there was reasonable suspicion that Flanders posed an

imminent danger of abuse to the children. These cases are

inapposite. Unlike the defendants in Mulholland, the DCPP

Defendants here did not have judicial authorization for the

emergency removal. 706 F.3d at 233. And in Mammaro, we

assumed, for purposes of considering whether the right was

clearly established, that there was a violation. 814 F.3d at 170.

In any case, Mammaro involved detailed, corroborated

allegations, where the mother was accused of neglect based on

drug use and twice tested positive for drugs, and removal only

occurred after that corroboration and after the mother and child

left supervised housing without DCPP approval. Id. at 167–

68.

We next consider whether the Complaint plausibly alleges

that the DCPP Defendants acted without an objectively

reasonable belief that imminent harm was posed by conditions

related to O’Bryant’s mental health and the conditions at her

home. The District Court dismissed the Complaint in part

based upon its view that O’Bryant suffered “severe

depression,” and “self-mutilated” or “attempted suicide.”

JA24–25. The DCPP Defendants similarly contend that the

conditions at O’Bryant’s home and O’Bryant’s mental status,

including her history of self-harm, gave rise to a reasonable

suspicion that the children were in imminent danger at the time

of their removals. The Complaint does not state the status of

the pest problem and other home conditions at the time the

children were removed, though, only the conditions at

O’Bryant’s home two months prior and that DCPP did not

ameliorate them. Regardless, even assuming the home

conditions were unchanged from two months prior, K.E. and

K.Y. were home for four days before they were removed, and

the Complaint does not suggest that they suffered any harm

from the home’s conditions during that time. There is also

nothing that suggests the bug problem, broken stove, and other

conditions are more severe than those faced by many. Thus,

concluding that such conditions permit emergency removal

would make the process-less removal available in too wide a

swarth of fairly common circumstances. Accordingly, we

cannot agree that the facts in the Complaint support an

objectively reasonable belief that home conditions posed an

imminent danger to the children. Finally, the Complaint does

not allege that O’Bryant suffered “severe depression” or

suicidal ideation in the days leading up to the children’s

removal in August, so it is not reasonable to conclude that her

mental health posed an imminent danger to the children when

they were removed. In any case, as with the home conditions,

to conclude that depression of unknown severity and impact is

grounds for emergency removal would permit the exception to

swallow the rule requiring pre-removal process.

For the above reasons, Plaintiffs have plausibly alleged a

violation of substantive due process arising from the temporary

removals of the children.

2. Defendants Are Entitled to Qualified Immunity as to the

Substantive Due Process Portion of their Claim

Having concluded that the Complaint plausibly alleges a

substantive due process violation, we now assess whether the

specific substantive due process right at issue was clearly

established at the time of the alleged violation. The right at

issue here is a parental right to be free from the state’s

emergency removal (i.e., without court authorization) of their

children when the purported imminent danger to the children

is based upon (1) one parent/caregiver who is in law

enforcement custody at the time of the removals and who has

an unknown criminal charge or conviction, a prior allegation

of child abuse that was resolved in a manner that permitted him

to continue seeing the subject child, and who is the subject of

a single two-month-old report that he was upset and agitated

while dropping the children off at school; (2) the other parent’s

past symptoms of depression; and (3) a bed bug and roach

problem, a broken stove, and a lack of bedding as of two

months prior at the home where the children live. For the

reasons set forth below, it was not clearly established that

emergency removal of children violated a substantive due

process right under these circumstances.

Under our Circuit’s caselaw, a substantive due process right

is violated when a child “is removed without ‘an objectively

reasonable suspicion of abuse,’ based on the information

available at the time.” Mulholland, 706 F.3d at 241 (quoting

Croft, 103 F.3d at 1126). Reasonable suspicion is lacking

when a child welfare agency has “consciously disregarded a

great risk that there had been no abuse.” Id. (quoting Ziccardi

v. City of Philadelphia, 288 F.3d 57, 66 (3d Cir. 2002)). That

occurred in Croft, where the defendants’ conduct was deemed

“completely without reasonable evidentiary support” and

therefore “arbitrary.” Ziccardi, 288 F.3d at 66 (3d Cir. 2002)

(quoting Miller v. City of Philadelphia, 174 F.3d 368, 374 (3d

Cir. 1999)); see Croft, 103 F.3d at 1126 (state must have “some

reasonable and articulable evidence giving rise to a reasonable

suspicion that a child has been abused”).

Beginning with the potential harm posed by Flanders to his

infant daughter, our decision in Parkhurst v. Trapp would have

given some notice to the DCPP Defendants that removing the

infant, while Flanders was in police custody without a

projected release, would not support a reasonable suspicion of

imminent risk of harm. 77 F.3d at 711. That case is not

sufficiently analogous, however, as it involved a different

constitutional right. Anderson, 483 U.S. at 640 (a plaintiff can

demonstrate that the right was clearly established by presenting

a closely analogous case that establishes that the Defendants’

conduct was unconstitutional).

With regard to the other bases for imminent harm, we have

held that “a state has no interest in protecting children from

their parents unless it has some reasonable and articulable

evidence giving rise to a reasonable suspicion that a child has

been abused or is in imminent danger of abuse.” Croft, 103

F.3d at 1126. Here, the DCPP Defendants relied upon a

criminal case and an allegation of child abuse. Per the factual

allegations in the Complaint and as further discussed above,

the DCPP Defendants lacked critical detail about these matters

such that “reasonable and articulable evidence” of imminent

harm was absent. We have not addressed when a criminal

charge or child abuse case provides insufficient indicia of

reliability for emergency removal. Although we rely upon

Croft to conclude that a constitutional violation occurred here,

that case involved only an anonymous tip, id. at 1124–25, and

is not sufficiently analogous to this case to have provided the

DCPP Defendants with notice that their actions were unlawful.

Anderson, 483 U.S. at 640.

Likewise, although we hold that the report of Flanders’s

agitation, the conditions in the home, and O’Bryant’s

depression two months prior to the removal are insufficient to

justify emergency removal, the DCPP Defendants were not on

notice that their actions were unconstitutional. We have not

previously stated that when common conditions are the basis

for emergency removal, they must be accompanied by details

which establish that the conditions are not just non-ideal,

undesirable, or poor, but are of such quality that they

objectively pose a risk of imminent harm. 21 We do so now.

Because the law was not clearly established that the

conduct at issue violated substantive due process, the DCPP

Defendants are entitled to qualified immunity. Accordingly,

we will affirm the District Court’s order dismissing Plaintiff’s

substantive due process claim.

3. Plaintiffs Plausibly Allege a Procedural Due Process

Violation

Lastly, Plaintiffs challenge the order dismissing the

procedural due process portion of their Fourteenth Amendment

claim. “To state a claim under § 1983 for deprivation of

procedural due process rights, a plaintiff must allege that (1) he

We would reach the same conclusion even if the Complaint

alleged that O’Bryant’s depression and the home conditions

remained the same in August as they were in June, because

regardless of when the conditions were present, there was no

reasonable basis for believing that they posed an imminent

danger to the children.

was deprived of an individual interest that is encompassed

within the Fourteenth Amendment’s protection of ‘life, liberty,

or property,’ and (2) the procedures available to him did not

provide ‘due process of law.’” Hill v. Borough of Kurtztown,

455 F.3d 225, 233–34 (3d Cir. 2006) (quoting Alvin v. Suzuki,

227 F.3d 107, 116 (3d Cir. 2000)). “Procedural due process

imposes constraints on governmental decisions which deprive

individuals of ‘liberty’ or ‘property’ interests within the

meaning of the Due Process Clause of the Fifth or Fourteenth

Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

We have observed that “[a]t a minimum, due process requires

notice and a hearing[.]” Wilson v. MVM, Inc., 475 F.3d 166,

178 (3d Cir. 2007) (citing Mathews, 424 U.S. at 334–35).

We begin with whether the Plaintiffs have asserted a

cognizable liberty interest protected by the Due Process

Clause. They have. A parent’s right to the “custody, care, and

management of their children”—the same right implicated in

their substantive due process claim—is one we recognize as

protected by the Fourteenth Amendment. See Croft, 103 F.3d

at 1125; supra Section II.B.

The next step is assessing whether the process Plaintiffs

received in this case—a Dodd warrant and post-deprivation

hearing following the emergency temporary removals of the

three children—is sufficient to comport with procedural due

process under the circumstances here. We have held that “[t]he

procedural component of parental due process rights …

requires rigorous adherence to procedural safeguards anytime

the state seeks to alter, terminate, or suspend a parent’s right to

the custody of his minor children.” McCurdy v. Dodd, 352

F.3d 820, 827 (3d Cir. 2003). While we have not explicitly

stated that those procedural safeguards are the same as those

afforded by substantive due process, we do so now. The

temporary removal of children from their parents can occur

without a pre-deprivation hearing only when swift action is

necessary for securing the children’s safety. 22 In those

emergency situations, where the child is in imminent danger of

abuse, a post-deprivation hearing satisfies procedural due

process. This framework is in line with the process required

by many of our sister circuits. 23 Therefore, for the same

We realize that this is essentially the same standard for a

violation of substantive due process discussed earlier in the

opinion. See supra pp. 25–26 (emergency removal of children

shocks the conscience when not premised upon a reasonable

suspicion that children are in danger of imminent harm).

However, our Court has held that separation of parent and

child, without court process, violates substantive due process

unless circumstances are present that give rise to an objectively

reasonable belief of imminent danger to the children. Croft,

103 F.3d at 1126. Other circuits have taken a different

approach. See, e.g., Tenenbaum v. Williams, 193 F.3d 581,

593–94, 600–01 (2d Cir. 1999) (procedural due process

violation occurs when state interest in protecting child does not

outweigh parent interest in notice and process; substantive due

process violation occurs when, even with process, parental

interest cannot be infringed); Weller v. Dep’t of Soc. Servs. for

City of Baltimore, 901 F.2d 387, 391 n.6 (4th Cir. 1990) (claim

that child was unconstitutionally removed due to lack of

hearing was better characterized as a procedural, not

substantive, due process claim).

See Lossman v. Pekarske, 707 F.2d 288, 291–92 (7th Cir.

1983) (holding that adversarial, post-deprivation hearing

satisfies due process only when there is justification for the

delay, such as “[w]hen a child’s safety is threatened”); Weller,

901 F.2d 387, 393 (4th Cir. 1990) (post-deprivation process

satisfies due process “where emergency action may be needed

to protect a child”); Hollingsworth v. Hill, 110 F.3d 733 (10th

Cir. 1997) (“Removal of children from the custody of their

parents requires predeprivation notice and a hearing except for

extraordinary situations where some valid governmental

interest is at stake that justifies postponing the hearing until

after the event.” (cleaned up)); Tenenbaum, 193 F.3d at 596

(2d Cir. 1999) (“[I]t is unconstitutional for state officials to

effect a child’s removal on an ‘emergency’ basis where there

is reasonable time safely to obtain judicial authorization

consistent with the child’s safety[.]”);Wallis v. Spencer, 202

F.3d 1126, 1138 (9th Cir. 2000) (requiring prior judicial

authorization to remove a child unless an official has

“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.”); Hatch v. Dep’t for Child., Youth, & their Fams., 274

F.3d 12, 21 (1st Cir. 2001) (“[T]he Constitution allows a case

worker to take temporary custody of a child, without a hearing,

when the case worker has a reasonable suspicion that child

abuse has occurred (or, alternatively, that a threat of abuse is

imminent).”); Doe v. Kearney, 329 F.3d 1286, 1295 (11th Cir.

2003) (courts should assess whether “an objectively imminent

danger justified the state’s removal of a child without prior

judicial authorization”); Gates v. Tex. Dep’t of Protective &

Regul. Servs., 537 F.3d 404, 434-35 (5th Cir. 2008)

(concluding that the requirements of procedural due process in

the child welfare context mirrors the requirements of a

constitutional search or seizure under the Fourth Amendment,

and noting that three other circuits have the same view).

reasons that we concluded that Plaintiffs’ substantive due

process rights were violated, see supra Section II, their

procedural due process rights were as well.

The DCPP Defendants contend that they provided

constitutionally sufficient process because they complied with

the process set forth in New Jersey’s “Dodd” statute. The

minimum process required, however, to deprive individuals of

their cognizable liberty interests—like the right to the care,

custody, and management of one’s children—is established by

the Fourteenth Amendment, not state law. Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 540–41 (1985).

4. The Defendants Are Entitled to Qualified Immunity on

the Procedural Due Process Claim

Defendants are nonetheless entitled to dismissal if they did

not violate a clearly established right.

The right at issue here is parents’ right to be free from the

state’s emergency removal of their children pursuant to a

state’s statutory procedures when the purported imminent

danger to the children is based upon (1) one parent/caregiver

who is in law enforcement custody at the time of the removals

and who has an unknown criminal charge or conviction, a prior

allegation of child abuse that was resolved in a manner that

permitted him to continue seeing the subject child, and who is

the subject of a single two-month-old report that he was upset

and agitated while dropping the children off at school; (2) the

other parent’s past symptoms of depression; and (3) a bed bug

and roach problem, a broken stove, and a lack of bedding as of

two months prior at the home where the children live.

We confirm explicitly for the first time today that, absent

any evidence of imminent harm, procedural due process is

violated by the temporary removal of a child without

pre-removal judicial authorization. For this reason, and for the

same reasons that the DCPP Defendants are entitled to

qualified immunity on the substantive due process claim, the

DCPP Defendants lacked “fair warning” that their conduct was

unconstitutional at the time of the removals. Hope v. Pelzer,

536 U.S. 730, 741 (2002).

We also conclude that the DCPP Defendants did not have

“fair warning” that following the Dodd statute procedures

would not satisfy the requirements of procedural due process.

The DCPP Defendants argue that they reasonably believed that

the children were in “imminent danger” as required by the

Dodd statute and reasonably believed that in satisfying that

requirement, they also satisfied the Fourteenth Amendment.

The constitutional standard requires that swift action be

necessary to secure a child’s safety because of “an imminent

danger” before effecting an emergency removal without pre-

deprivation process. See supra Section II.C.3. The Dodd

statute similarly requires “an imminent danger” to the child to

conduct a removal without a court order. N.J. Rev. Stat. § 9:6-

8.29. The DCPP Defendants did not identify, nor have we

identified, any New Jersey case law establishing that the

statutory definition of “imminent danger[s],” id., is

coextensive with the meaning of that term under the Fourteenth

Amendment. We now make clear that compliance with the

Dodd statute satisfies procedural due process only when the

constitutional standard of imminent harm is met. Nonetheless,

the DCPP Defendants lacked “fair notice” that they could not

assume that the Dodd statute set forth the same requirements

as the Constitution and that statutory compliance thereby

satisfied procedural due process. We will thus affirm the

District Court’s order dismissing Plaintiffs’ procedural due

process claim.

*****

For the reasons set forth above, we will AFFIRM the District

Court’s order in part and REVERSE it in part. We will AFFIRM

in full the dismissal of all counts as to all defendants except

that we will REVERSE the dismissal of Count Four as to

Defendant Ash. We will REMAND this case for further

proceedings consistent with this Opinion.

Kindra O’Bryant et al. v. New Jersey Division of Child

Protection and Permanency et al., Nos. 23-1950, 23-1951,

23-1952

HARDIMAN, Circuit Judge, concurring in part and dissenting

in part.

Qualified immunity “shield[s] officials from

harassment, distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231

(2009). So a state actor can be liable only when “existing law

[] clearly establish[es] that what this officer did in these

circumstances violated the plaintiff’s rights.” Urda v. Sokso,

146 F.4th 311, 314 (3d Cir. 2025). Because the District Court

correctly held that Plaintiffs did not overcome the high bar for

qualified immunity on any of their claims, I respectfully concur

in part and dissent in part. 1

I concur in the majority’s affirmance of the dismissal of all

claims against the Sheriff Defendants, the DCPP, Lisa Von

Pier, and Allison Blake. I also agree that: Plaintiff Artie

Peoples lacks standing to bring any claim; Counts One, Two,

and Five were properly dismissed; and the District Court

correctly dismissed Plaintiff Brian Flanders’s claims as they

relate to O’Bryant’s two older children. Lastly, I agree that the

DCPP Defendants are entitled to qualified immunity on

Plaintiffs’ substantive and procedural due process claims. I

reach that conclusion for slightly different reasons than the

majority, though, as I explain in Section II.

I begin with a fundamental question: can a federal court

consider official state records, copies of which are also filed in

federal court? Of course it can.

We construe the complaint in the light most favorable

to Plaintiffs, taking their pro se status into account. Montanez

v. Price, 154 F.4th 127, 140 (3d Cir. 2025). But that

construction must rest on reasonable inferences, informed by

“judicial experience and common sense.” Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009). Those reasonable inferences require

a complete reading of the record, including essential facts that

paint a different picture than the one drawn by the majority

opinion.

On June 6, 2017, Brian Flanders dropped his girlfriend

Kindra O’Bryant’s two children off at school. Someone from

the school was concerned enough to call the New Jersey

Division of Child Protection and Permanency (DCPP) to report

that Flanders appeared “upset and agitated.” App. 67. Flanders

was known to DCPP because he was investigated just a few

months earlier for child abuse after he struck his son from

another relationship. The investigation ended in an

administrative determination by DCPP that child abuse was

“Established.” Pro Se App. 15.

Responding to the report that Flanders was “upset and

agitated,” DCPP caseworker Alicia Ash and a colleague visited

the Flanders-O’Bryant home. Flanders answered the door and

asked “why they were there.” App. 66. Ash identified herself

as a DCPP caseworker, stated that “she had to come into the

O’Bryant family home ‘Now!’” and then “tried to force her

way into the house.” Id. After Flanders barred her entry, Ash

said “she was there to investigate abuse of” O’Bryant’s two

older children. Id. Ash also explained that DCPP had received

a call from a concerned member of the school community.

When Flanders “told Ash that she could not come into the []

family home[] without Ms. O’Bryant’s permission,” Ash

“emphatically assert[ed] that he had to let her in ‘right now’

and he ‘could not refuse’ her entry.” App. 67. Flanders then let

Ash in “against his will involuntarily.” Id. Ash later reported

that the house was infested with roaches and bed bugs, the

stove was broken, and the house needed repairs.

June 6, 2017 was a difficult day for O’Bryant as well.

She was at a routine prenatal appointment when Ash

encountered Flanders at her home. Pregnant with Flanders’s

child, O’Bryant was referred for “crisis management” and

taken by ambulance to Kennedy Hospital. App. 65. She was

later transferred to Cooper Hospital and “detain[ed] for a psych

evaluation” after reporting that she was depressed. App. 68.

After Ash left the home, she and a colleague arrived at

Cooper Hospital to see O’Bryant. They asked O’Bryant

questions about Flanders, the safety of her children, and her

history of self-harm. They returned to the hospital the next day

before O’Bryant was discharged. There, O’Bryant signed a

Family Agreement promising that Flanders would neither

reside in her home nor serve as caregiver to her children until

he completed domestic violence and parenting programs.

O’Bryant alleged that, in the weeks that followed, she “tried

contacting Ash multiple times to explain that the Family

Agreement was not working for her because living alone made

her depressed.” Maj. Op. 5. So Ash eventually returned with

an Amended Family Agreement that O’Bryant alleged did not

prevent Flanders from living in the house, though it still

forbade him from being the sole caregiver to the children.

O’Bryant’s children then went to stay with their father

in Ohio for the summer “so she could get rid of the [bug-

infested] beds.” App 72. The children did not return until

August 12, 2017. Three days later, on August 15, O’Bryant

gave birth to her and Flanders’s child. The next day,

O’Bryant’s two older children visited their mother in the

hospital. Two DCPP caseworkers arrived and O’Bryant’s

father, Artie Peoples, arrived later. Following a heated

exchange with DCPP caseworkers about what the Family

Agreement required (the caseworkers maintained that Flanders

could not be around the children until he completed the

programs he had agreed to), Peoples tried to leave with his

grandchildren. A caseworker stopped Peoples and informed

him that security had been called.

A security officer and deputies of the Camden County

Sheriff’s Office responded to the scene at the hospital. DCPP

told one of the deputies that Flanders had previously been

charged with endangering the welfare of a child, weapons

violations, and aggravated assault on a police officer. DCPP

also suggested that there were outstanding warrants for

Flanders’s arrest, but a deputy found none.

The deputies brought the two older children to a nearby

DCPP office. Meanwhile, caseworkers produced a notice

under New Jersey’s Dodd Act, which authorizes the state to

remove children from the home without a court order. N.J. Stat.

Ann. § 9:6-8.29(a). The Dodd Act permits an emergency

removal when there is “an imminent danger to the child’s life,

safety, or health, and there is insufficient time to apply for a

court order.” Id. Within two days of the emergency removal,

the state must file a complaint, and a court hearing must be

held. § 9:6-8.30(a), (b). The Act also provides state-law

immunity to “[a]ny person . . . acting in good faith in the

removal or keeping of a child pursuant to” an emergent

removal. § 9:6-8.29(c).

The children remained in DCPP custody for several

hours on August 16 while Flanders and Peoples waited outside

the DCPP office. A deputy returned a few hours later with a

warrant and arrested Flanders. Peoples was informed that the

children would not be released that night and that he could call

the DCPP office in the morning. The next day, August 17,

another DCPP caseworker visited O’Bryant in the hospital to

tell her that her newborn child would be seized and that she

would have a hearing in Superior Court the next day. DCPP

took custody of the newborn the next day, August 18.

New Jersey filed a formal child abuse complaint against

O’Bryant and Flanders. Hearings were held on August 18 and

August 21, 2017. Two months later, O’Bryant, Flanders, and

Peoples sued under 42 U.S.C. §§ 1983 and 1985, seeking

$10,000,000 in compensatory damages and $50,000,000 in

punitive damages.

The majority opinion ignores DCPP’s prior child abuse

investigation of Flanders, the administrative finding against

him, and the child abuse complaint filed against him and

O’Bryant. And it does so even though Plaintiffs included those

pertinent state records in the appendix they filed on the public

docket in 2023. We may take judicial notice of state records in

these circumstances. See Grp. Against Smog & Pollution, Inc.

v. Shenango Inc., 810 F.3d 116, 127 (3d Cir. 2016) (courts may

take judicial notice of public records, including “letter

decisions of government agencies” (citation omitted)); see also

Dixon v. von Blackensee, 994 F.3d 95, 104 (2d Cir. 2021)

(exercising discretion to take judicial notice of a state court

transcript and order that “flatly contradict[ed] the assertion in

[the plaintiff’s] complaint”). Consistent with these authorities,

I would take judicial notice of the state records, including New

Jersey DCPP’s March 2017 determination that “child abuse

was Established” in Brian Flanders’s previous case and the

child abuse complaint DCPP filed in state court related to this

case. Pro Se App. 15 (emphasis omitted); see Pro Se App. 4–

13; Fed. R. Evid. 201(c)(1) (“The court[] may take judicial

notice on its own.”).

It matters not that the state court child abuse complaint

and DCPP’s prior child abuse finding were not attached to the

Complaint or incorporated by reference therein. First, as state

records, each document carries the indicia of authenticity and

reliability that we typically look for when determining whether

to take judicial notice of a document. See City of Pittsburgh v.

W. Penn Power Co., 147 F.3d 256, 259 & n.3 (3d Cir. 1998)

(taking judicial notice where the documents’ authenticity was

undisputed and they were included in the joint appendix).

(Plus, federal courts may take judicial notice of state court

records in related proceedings, like the state court complaint.

See Dixon, 994 F.3d at 102–03.) Second, both of those

documents became matters of public record in this case at the

very least when Plaintiffs themselves submitted a copy of each

on our public docket. See Shrader v. Dist. Att’y of York Cnty.,

74 F.4th 120, 127 (3d Cir. 2023) (strength of privacy interest

in protecting child abuse information from disclosure “fades

once information already appears on the public record”

(citation modified)); see also N.J. Stat. Ann. § 9:6-8.10a(b)(6)

(authorizing the release of child abuse reports to courts when

“such records may be necessary for determination of an issue

before it”).

That leads me to my next point. Before this Court

appointed pro bono counsel, Plaintiffs submitted an appendix

that included copies of Flanders’s prior child abuse

determination and the child abuse complaint arising from this

removal. The majority opinion fails to take judicial notice of

these documents and suggests that it would be improper to

consider the pro se appendix containing them. I would consider

the documents Plaintiffs provided to this Court (and to the

District Court as well, see Dist. Ct. Dkt. No. 75-1). See, e.g.,

Dixon, 994 F.3d at 102 (judicially noticing a state court

transcript included in the joint appendix by the appellant); cf.

Johnson v. City of Atlanta, 107 F.4th 1292, 1294–95 (11th Cir.

2024) (concluding that a district court could look to video

evidence of a police encounter at the motion-to-dismiss stage

because it showed the events central to the plaintiff’s claims

and its authenticity was not challenged); Esco v. City of

Chicago, 107 F.4th 673, 676 (7th Cir. 2024) (same).

In short, the majority’s refusal to consider an important

part of the record has led it astray. As its opinion

acknowledges, “[w]e may judicially notice a fact that ‘is not

subject to reasonable dispute.’” Maj. Op. 13 (quoting Werner

v. Werner, 267 F.3d 288, 295 (3d Cir. 2001)). It is not in

reasonable dispute that a child abuse complaint related to these

events was filed against O’Bryant and Flanders in state court

in August 2017 (and proceedings ensued for several more

years). Nor is there any dispute that DCPP had, just months

before the removals at issue here, found that Flanders abused

another child. Plaintiffs do not dispute any of those facts.

Instead, they submitted key supporting documentation for our

review. 2 When the record is considered in its entirety, the

caseworkers’ reasonable view of the situation (and thus the

One brief point of clarification is in order. Contrary to the

majority opinion’s assertion, I do not suggest we should look

to the judicially noticed documents for the truth of the matters

asserted therein. The records’ existence tells us that: (1) DCPP

made an administrative finding that child abuse was

established in Brian Flanders’s prior case; and (2) a child abuse

complaint related to these events was filed. Because the

existence of these documents and the allegations they contain

“can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned,” we should take

judicial notice of them. Fed. R. Evid. 201(b)(2). That

conclusion does not mean we should accept statements in those

documents for the truth of the matter asserted (e.g., relying on

mere allegations in the state court complaint to resolve whether

there was in fact an amended Family Agreement).

Take our recent decision in Handal v. Innovative

Industrial Properties, Inc., 157 F.4th 279 (3d Cir. 2025).

There, we took “judicial notice of properly authenticated

public disclosure documents filed with the SEC,” because the

corporation’s “representations in [its] filings were different

from [the complaint’s] allegations in two important ways.” Id.

at 294 (citation modified). In other words, we asked what the

documents said, not whether those statements were true. Cf.

Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 666 (3d Cir.

2002). (conflicting statements were not admitted for the truth

of the matter asserted because the question was merely whether

the statements conflicted, not which of the conflicting

statements was true). Here too we should recognize (as

Plaintiffs—who urge reversal of the District Court’s orders—

do) that the administrative finding and child abuse complaint

correctness of the District Court’s qualified immunity

conclusions) becomes even more apparent.

In addition to my disagreement with the majority

opinion’s incomplete rendition of the facts, I also have quarrels

with its exposition of the controlling law. I respectfully

disagree with my colleagues’ decision to revive the Fourth

Amendment claim against DCPP Defendant Ash. The majority

opinion does correctly conclude that the DCPP Defendants are

entitled to qualified immunity on Plaintiffs’ substantive and

procedural due process claim, but for somewhat different

reasons than I do.

Qualified immunity will shield defendants from liability

unless plaintiffs plead facts showing that the defendants

violated a clearly established constitutional or statutory right.

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2009). We must define

the right at issue “in light of the specific context of the case,

not as a broad general proposition.” Mammaro v. New Jersey

Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir.

existed. The existence of these allegations and administrative

findings help us understand what information may have

contributed to the caseworkers’ reasonable suspicion in the

summer of 2017. Put differently, it helps us understand what

the caseworkers were operating off at the time of the removals

and how that information, whether completely accurate or not,

impacted their reasonable assessment of the likelihood of child

abuse. Even if I were to accept the majority opinion’s rendition

of the facts, though, the DCPP Defendants would still be

entitled to qualified immunity in this case, as the majority

opinion itself eventually concludes on the due process claims.

2016) (citation omitted). Although this Court has expressed its

preference for resolving qualified immunity defenses at the

summary judgment stage, see Stringer v. County of Bucks, 141

F.4th 76, 87 (3d Cir. 2025), the Supreme Court has repeatedly

reminded us that “qualified immunity is an immunity from suit

rather than a mere defense to liability” and that “immunity

questions [must be resolved] at the earliest possible stage in

litigation,” Pearson, 555 U.S. at 231–32 (citation modified). I

address each of the claims in turn, keeping in mind that

qualified immunity is supposed to protect “all but the plainly

incompetent or those who knowingly violate the law,”

including those who make reasonable—even erroneous—

decisions. al-Kidd, 563 U.S. at 735.

Begin with the Fourth Amendment claim. Defendant

Ash conceded that Plaintiffs pleaded a Fourth Amendment

claim against her, see App. 121 n.6, so I proceed to the clearly

established prong of the qualified immunity analysis.

For a right to be clearly established, the “precedent must

be clear enough that every reasonable official would interpret

it to establish the particular rule the plaintiff seeks to apply”

and that it “clearly prohibit[s] the officer’s conduct in the

particular circumstances.” District of Columbia v. Wesby, 583

U.S. 48, 63 (2018) (citation modified) (emphasis added). The

Supreme Court has recently cautioned that “[p]rinciples stated

generally, such as that ‘an officer may not use unreasonable

and excessive force,’ do not suffice.” Zorn v. Linton, 146 S. Ct.

926, 930 (2026) (per curiam) (quoting Kisela v. Hughes, 584

U.S. 100, 105 (2018) (per curiam)).

Contrary to these imperatives, the majority opinion

concludes that the right here was clearly established by relying

on broad propositions in Good v. Dauphin County Social

Services for Children & Youth, 891 F.2d 1087 (3d Cir. 1989).

According to the majority opinion, “in Good we said it had

been clearly established since at latest 1987 that the state may

not enter a home without consent, a valid warrant, or an

exigency,” so Plaintiffs’ right here was clearly established.

Maj. Op. 25. Such general propositions are precisely what the

Supreme Court has instructed us to avoid. In fact, last year we

admonished a district court for defining a Fourth Amendment

right at a similar level of abstraction: the right to be free from

“arrest[] or prosecut[ion] without probable cause.” Urda, 146

F.4th at 314. We suggested that our prior precedent declaring

that such a broad right was clearly established was erroneous

because it “conflict[ed] with a landslide of Supreme Court

precedent” requiring fact-based specificity. Id. at 315.

Just this year in Zorn v. Linton, the Supreme Court

summarily reversed the Second Circuit’s order denying

qualified immunity in a Fourth Amendment case because it

relied too heavily on broad propositions about excessive force

in one of its precedents. 146 S. Ct. at 930. In that case, a

protestor participated in a “sit-in” at the Vermont state capitol

and remained in the building after it closed. Id. at 928. After

repeatedly warning the protester that she would be removed by

force if she did not stand up, a police officer used a rear

wristlock and then another “pain compliance” maneuver to get

her to comply. Id. at 929. She sued under § 1983, claiming the

officer used excessive force in violation of the Fourth

Amendment. Id. The Second Circuit held that the officer was

not entitled to qualified immunity. Id. It reasoned that its

twenty-year-old opinion in Amnesty America v. Town of West

Hartford, 361 F.3d 113 (2d Cir. 2004), in which officers had

used rear-wristlocks and other, harsher forms of pain

compliance to disrupt a similar sit-in demonstration—clearly

established that “the gratuitous use of pain compliance

techniques—such as a rear-wristlock—on a protestor who is

passively resisting arrest constitutes excessive force.” Linton v.

Zorn, 135 F.4th 19, 35 (2d Cir. 2025). The Supreme Court

disagreed. Zorn, 146 S. Ct. at 931. It concluded that “the

Second Circuit contravened [qualified immunity] principles”

by reading one prior case “to establish [a] general principle.”

Id. at 930–31. That broad principle “lack[ed] the ‘high degree

of specificity’ needed to make it ‘clear’ to officers which

actions violate the law” because “it fail[ed] to specify which

circumstances make the use of force ‘gratuitous.’” Id. at 931

(quoting Wesby, 583 U.S. at 63). So it did “not ‘obviously

resolve’ whether using a rear wristlock to move a

noncompliant protestor after repeated warnings violate[d] the

Fourth Amendment.” Id. (quoting Wesby, 583 U.S. at 64).

The majority opinion commits a similar error here by

relying on broad propositions from our opinion in Good. Had

caseworker Ash “read the relevant precedent beforehand” she

would not have “known that it proscribed [her] specific

conduct.” Id. at 930. True, she would have known that “the

state may not . . . conduct a search” unless there is “consent, a

valid search warrant, or exigent circumstances.” Good, 891

F.2d at 1092. But she would not have known how those general

principles play out here: whether these circumstances were

exigent. In Good—unlike this case—the social worker was

accompanied by a police officer. Id. at 1089. They arrived at

the Good family home late at night after receiving an

anonymous tip that a seven-year-old child was being abused.

Id. After causing a “commotion [] so extreme that it startled”

the child awake, they “demanded entry” without a warrant, and

told Good that “she must let them enter.” Id. at 1090. When she

refused, the police officer “used a hand-held radio she was

carrying to notify someone that she’d been ‘flagged down’” by

the social worker and “that they were going into” the Good

family home. Id. Good told them they could come in but said

that “she did so only because she understood that she was being

compelled.” Id. The social worker “chased the terrified child

down [a] hallway” and the police officer then strip-searched

the child, “ostensibly for marks or injuries.” Id. We held that

the social worker and police officer’s actions were not

protected by qualified immunity. Id. at 1091.

Good cannot clearly establish Plaintiffs’ right to be free

from an insistent social worker, unaccompanied by law

enforcement, demanding entry to a home occupied by a man

with a record of child abuse who had been reported to DCPP

by a concerned member of the school community. Though

Good broadly discusses how the Fourth Amendment protects

citizens from state intrusion, it does not speak to whether the

specific circumstances caseworker Ash faced constituted an

exigency or otherwise satisfied an exception to the warrant

requirement. Because the language in Good is too general and

its facts are meaningfully different from this case, the “rule’s

contours” were not “so well defined” that it would be clear to

every reasonable caseworker in Ash’s shoes that her actions

were “unlawful in the situation [she] confronted.” Id. (citation

modified).

Good does suggest that social workers are subject to the

same Fourth Amendment standard as police officers (at least

when in their company). But I am not persuaded that it placed

“beyond debate” whether social workers are subject to a

different standard when acting alone. al-Kidd, 563 U.S. at 741.

The fact that the majority opinion explains why the special

needs doctrine was not implicated by Ash’s home entry, rather

than simply stating that the argument is foreclosed by Good, is

strong evidence that the right has not been clearly established.

See also Gates v. Texas Dep’t of Prot. & Regul. Servs., 537

F.3d 404, 429 (5th Cir. 2008) (concluding that the Fourth

Amendment standard for social workers’ warrantless home

entries had not been clearly established); Andrews v. Hickman

Cnty., Tenn., 700 F.3d 845, 863 (6th Cir. 2012) (“[I]t was not

evident under clearly established law whether the [social

workers] were even required to comply with the strictures of

the Fourth Amendment”); Wildauer v. Frederick Cnty., 993

F.2d 369, 372 (4th Cir. 1993) (suggesting that a lower Fourth

Amendment standard applies to the “non-criminal nature” of

social workers’ home searches).

In sum, the Fourth Amendment question presented by

this case is unresolved. And if a knowledgeable officer had to

choose, the Supreme Court’s expansion of the special needs

doctrine since our 1989 decision in Good suggests that social

workers, when acting alone, might not be subject to the same

Fourth Amendment standard as law enforcement officers. See,

e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653–54

(1995) (explaining the various Fourth Amendment exceptions

that fall within that doctrine); see also Kovacic v. Cuyahoga

Cnty. Dep’t of Child. & Fam. Servs., 724 F.3d 687, 707–08

(6th Cir. 2013) (Sutton, J., dissenting) (observing all the areas

of law in which the Supreme Court has “calibrate[d] the

[constitutional] protections” differently “to account for the

protection of children.”). Especially given those developments,

it was not unreasonable for Ash to believe “her conduct

complie[d] with the law,” even if it did not. Pearson, 555 U.S.

at 244.

“[I]f officers of reasonable competence could disagree

on [the] issue, [qualified] immunity should be recognized.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). Because Good is

distinguishable and the Fourth Amendment’s application in

this factual context would not have been clear to every

reasonable social worker, I would affirm the District Court’s

order dismissing the complaint as to Plaintiffs’ Fourth

Amendment claim against Ash.

I turn next to the majority opinion’s substantive due

process analysis. It brushes past our longstanding legal

standard in the child welfare context to explain that Plaintiffs

plausibly alleged a violation of their substantive due process

rights. That move, in my view, is errant. But I agree with the

majority’s conclusion that the substantive due process right

was not clearly established so the DCPP Defendants get

qualified immunity.

State actors violate individuals’ substantive due process

rights when they take actions that are “arbitrary or conscience

shocking, in a constitutional sense.” County of Sacramento v.

Lewis, 523 U.S. 833, 847 (1998). Before a child can be

removed from the family, our precedents require “some

reasonable and articulable evidence giving rise to a reasonable

suspicion that a child has been abused or is in imminent danger

of abuse.” Croft v. Westmoreland Cnty. Child & Youth Servs.,

103 F.3d 1123, 1126 (3d Cir. 1997) (emphasis added). The

standard considers past abuse because substantive due process

is about whether state actors act arbitrarily, i.e., without reason.

See Mulholland v. Gov’t Cnty. of Berks, Pa., 706 F.3d 227, 241

(3d Cir. 2013). Reasonable suspicion of past abuse provides

caseworkers a sufficient, non-arbitrary reason to justify an

intrusion on family life. Croft, 103 F.3d at 1126.

The majority opinion undermines our precedent by

declining even to assess whether the DCPP Defendants had

reasonable suspicion of past abuse. It claims that the “DCPP

Defendants do not argue that they removed the children from

the home based on suspicion of past abuse.” Maj. Op. 27 n.20.

That claim misrepresents DCPP’s brief, which quoted our

precedent’s language about past abuse and stated that the

“DCPP Defendants had specific evidence and reasonable

suspicion to remove the O’Bryant children.” DCPP Br. 12. The

brief then went on to detail at length the reasons why

caseworkers had reasonable suspicion of child abuse such that

the children’s removal was not an “arbitrary abuse of

government power that shocks the conscience.” DCPP Br. 23

(quoting Mammaro, 814 F.3d at 164). So I do not agree with

the majority opinion’s conclusion that the DCPP Defendants

failed to develop that argument. To the contrary, the bulk of

their brief is spent developing it. Besides, we may affirm for

any basis supported by the record. See, e.g., Shark River

Cleanup Coal. v. Twp. of Wall, 47 F.4th 126, 136 (3d Cir.

2022). The majority opinion’s failure to address half of the

governing substantive due process standard is troubling.

The majority opinion concludes that the caseworkers

did not have reasonable suspicion to believe the children were

in imminent danger. But even if that imminence conclusion is

correct, the majority opinion’s analysis still deviates from our

precedent, which makes clear that “imminent danger” is only

one side of a disjunctive inquiry. Croft, 103 F.3d at 1126. We

ask whether caseworkers had objectively reasonable suspicion

of past abuse or imminent danger to justify state action as non-

arbitrary. Id. We have settled on that standard because

caseworkers’ “failure to act quickly and decisively in these

situations [might] have devastating consequences for

vulnerable children.” Mammaro, 814 F.3d at 171. The

caseworkers here could have reasonably concluded that:

(1) Flanders was physically abusing O’Bryant’s children like

the agency had recently determined he abused his own child;

(2) O’Bryant was experiencing severe mental health

challenges and was perhaps neglectful; and (3) the home

conditions were unsafe for young children and a newborn. For

these reasons, I disagree with the majority’s conclusion that

Plaintiffs have plausibly alleged arbitrary state action that

shocks the conscience.

After determining that Plaintiffs have alleged

substantive due process violations, the majority opinion

proceeds to the “clearly established” prong of the qualified

immunity analysis. Neither the Supreme Court nor this Court

has ever recognized “a substantive due process violation when

state agencies temporarily remove a child, whatever the

circumstances of the removal.” Mammaro, 814 F.3d at 170. I

agree with the majority opinion’s bottom line: Plaintiffs’

substantive due process rights were not clearly established so

the DCPP Defendants get qualified immunity. I come to that

conclusion for reasons that differ slightly from my colleagues,

however.

Two of our precedents are particularly instructive. In

Croft, an anonymous caller, relying on several levels of

hearsay, informed social workers that Croft was sexually

abusing his daughter. 103 F.3d at 1124. The caller reported that

the child had recently been out of “the house naked, walked to

a neighbor’s house, knocked on the door, and told the

neighbors that she was sleeping with mommy and daddy.” Id.

Social workers went to the house and, despite Croft’s denials

of the allegations and explanations for the child’s behavior,

gave Croft an ultimatum. Id. He could either leave his home

until the investigation was complete, or his daughter would be

removed from his custody, so he complied. Id. Emphasizing

the unreliability of one anonymous hearsay-riddled tip and the

social worker’s admission that she had “no opinion one way or

the other whether sexual abuse had occurred,” we explained

that the social worker lacked an objectively reasonable

suspicion that abuse had occurred or would soon occur. Id. at

1127. As we recognized in later cases, “Croft assessed liability

when a social worker acted to separate parent and child without

any valid basis for doing so.” Miller v. City of Philadelphia,

174 F.3d 368, 376 (3d Cir. 1999) (emphasis added).

A year before the events in this case, we addressed

another alleged substantive due process violation when New

Jersey removed a child from her mother’s custody. Mammaro,

814 F.3d at 168. Mammaro was a victim of domestic violence

who had tested positive for marijuana use twice. Id. at 166–67.

Caseworkers petitioned for guardianship of her child and

moved her into a safe house for victims of domestic violence.

Id. at 167. Mammaro could not remain in the safe house after

caseworkers did not help her get an extension for her stay there.

Id. When she moved into a private home against the

caseworkers’ wishes, the caseworkers seized the child. Id. at

168. Because “there was no consensus of authority that

temporarily removing a child after the parent takes the child

from approved housing violates substantive due process,” the

caseworkers had qualified immunity. Id. at 170.

O’Bryant’s case is far more like Mammaro than Croft.

The substantive due process violation in Croft presented an

extreme situation where a father with no prior engagement with

child-welfare services was ordered removed from his own

home in the middle of the night and separated from his child

based only on uncorroborated anonymous hearsay. Croft, 103

F.3d at 1127. The social worker there did not even have an

opinion on whether the sexual abuse allegations were credible.

Id. The opposite occurred here. Flanders—a man known to

DCPP because of a prior finding of child abuse—was

reportedly “agitated” when he dropped O’Bryant’s children at

school. Meanwhile, O’Bryant was experiencing mental health

challenges serious enough to require a psychiatric evaluation.

And the house was in such disrepair that the children were not

sleeping in beds and the stove was inoperable. Significantly,

the children had just returned to this environment after

spending the summer with their father in Ohio. Moreover, the

DCPP caseworkers who removed the children understood

O’Bryant to have violated the Family Agreement, as the

complaint makes clear. See App. 76 (recounting the exchange

between O’Bryant and the DCPP caseworker immediately

before the removal of the older children, in which a DCPP

caseworker “state[d] he know[s] nothing about any second

agreement”). O’Bryant’s and Flanders’s perceived failures to

comply with DCPP’s conditions tracks closely Mammaro’s

failure to comply with the condition that she remain in the safe

house while the investigation was ongoing. See Mammaro, 814

F.3d at 168. The DCPP caseworkers’ actions were also

authorized by an unchallenged state statute upon which they

reasonably relied. In my view, Mammaro forecloses a

determination that the right at issue here was clearly

established.

The caseworkers took custody of the children under the

authority of a state statute after considering the totality of the

circumstances. Those circumstances included Flanders’s

history of child abuse, questions about the residence’s

habitability, O’Bryant’s mental instability, and, to their

knowledge, violations of a Family Agreement between

O’Bryant and DCPP. So they made a reasonable, even if

erroneous, choice on the ground nine years ago. Faced with

these same essential facts, the state court upheld the separation

of these children from O’Bryant and Flanders for years after

the emergency removals that provoked this litigation. The facts

here were not so obviously divorced from indicators of abuse

or neglect that we can say all reasonable officers would have

known that they could not intervene on an emergency basis to

protect the children. For all those reasons, Plaintiffs’

substantive due process rights were not clearly established.

* * *

Because Plaintiffs did not plausibly allege violations of

their substantive due process rights, and even if they had, those

rights were not clearly established in 2017, I join the majority

in affirming the District Court’s order dismissing the

substantive due process claims against the DCPP Defendants

in their individual capacities.

Finally, I turn to Plaintiffs’ procedural due process

claims. I agree with my colleagues that Plaintiffs did not

plausibly allege a violation of a clearly established procedural

due process right, but I disagree with the route the majority

opinion takes to get there.

Though our Court has applied the balancing test set

forth in Mathews v. Eldridge, 429 U.S. 319, 335 (1976) to

various procedural due process claims, we have never, until

today, articulated a precise standard for those claims when

children are temporarily removed from their parents’ custody.

Recognizing the absence of caselaw in this area, the majority

opinion announces for the first time an “imminent danger of

abuse” test: “[t]he temporary removal of children from their

parents can be effected without a pre-deprivation hearing only

when swift action is necessary for securing the children’s

safety.” Maj. Op. 35.

Whatever the merits of this new standard—and it might

make good sense in the context of our exigent circumstances

jurisprudence—the procedural due process rule the majority

opinion announces today was not clearly established nine years

ago. So even if Plaintiffs adequately alleged procedural due

process violations under the majority opinion’s rubric, 3 the

I do not determine whether Plaintiffs have plausibly alleged

violations of their procedural due process rights because those

rights, even as defined by the majority, were not clearly

established in 2017. But I add one observation. The majority

opinion emphasizes the fact that the June events (including

Ash’s visits to the residence and the hospital along with the

signing of the Family Agreement) occurred months before the

emergency removals of the children in August. That implies

that the summer of 2017 were peaceful days in the Flanders-

O’Bryant household, where the family was simply awaiting

assistance from DCPP that never came. But the children went

to Ohio for the summer to stay with their father. They had just

returned to the potentially unsafe environment days before the

removals. So I would put substantially greater weight on the

majority opinion is correct that the DCPP Defendants did not

have “‘fair warning’ that their conduct was unconstitutional at

the time of the removals.” Maj. Op. 38 (quoting Hope v. Pelzer,

536 U.S. 730, 741 (2002)).

The majority opinion reasons that, as alleged, the DCPP

Defendants’ compliance with the Dodd Act—in the absence of

any caselaw suggesting that the emergent removal under these

facts would violate it—means the right could not have been

clearly established. I largely agree. The Act, like the majority’s

new framework, requires “imminent danger to a child” and

“insufficient time to apply for a court order.” N.J. Stat. Ann.

§ 9:6-8.29(a). Here, it is undisputed that the DCPP Defendants

acted under the procedures authorized by New Jersey’s Dodd

Act and Plaintiffs received a prompt post-deprivation hearing.

See also Jordan by Jordan v. Jackson, 15 F.3d 333, 351 (4th

Cir. 1994) (concluding that “the 65-hour delay in judicial

review of [a child’s] emergency removal . . . which was

authorized by [a state statute] did not” violate the

Constitution); Gates, 537 F.3d at 435 (“adequate procedural

due process was given” when defendants followed Texas law,

which “call[ed] for a hearing as soon as possible after children

are removed without a court order”). Even if a federal appellate

court might question whether the danger was imminent and the

procedures adequate nine years later, qualified immunity

June events than the majority opinion does. The facts that put

members of the household on DCPP’s radar (for at least the

second time in one calendar year) were directly linked to the

August removals and helped form the basis for the

caseworkers’ reasonable suspicion.

“gives government officials breathing room to make

reasonable but mistaken judgments.” al-Kidd, 563 U.S. at 743.

So even if the DCPP Defendants’ conduct might violate

the Dodd Act under the majority’s new framework, not every

reasonable officer would have known that nine years ago. At

worst, the DCPP Defendants “reasonably misapprehend[ed]

the law governing the circumstances [they] confronted” by

failing to ascertain a lack of imminence (as the majority

opinion defines today) or, as the majority opinion explains, by

failing to expect that a federal court would hold that the Dodd

Act’s language is coextensive with federal constitutional

standards at the time they acted. Brosseau v. Haugen, 543 U.S.

194, 198 (2004) (per curiam). Their reasonable reliance on

state procedures (often used, approved, and perhaps even

encouraged by their supervisors) further supports that the right

here could not have been clearly established. Cf. United States

v. Leon, 468 U.S. 897 (1984) (holding that the exclusionary

rule does not apply when police officers reasonably rely on a

deficient warrant). Therefore, as the majority rightly

concludes, Defendants are entitled to qualified immunity in

their individual capacities on Plaintiffs’ procedural due process

claims.

In my view, however, there are more reasons why

Plaintiffs’ procedural due process right was not clearly

established in 2017. Several circuits have adopted some form

of an “imminence” analysis for emergency removals. But each

of those approaches is nuanced, and it’s not clear that all would

lead to the same result in this case. These important distinctions

are especially salient in the fact-driven clearly established

inquiry.

To justify emergent removals, the Second, Ninth, and

Tenth Circuits require—each with its own subtleties—that the

child be in immediate danger and there is no time to get a court

order. Tenenbaum v. Williams, 193 F.3d 581, 594 (2d Cir.

1999); Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294–

95 (9th Cir. 2007); Roska v. Peterson, 328 F.3d 1230, 1245–46

(10th Cir. 2003). The First Circuit, by contrast, applies a “past

abuse” standard. Hatch v. Dep’t for Child., Youth, & Their

Fams., 274 F.3d 12, 22 (1st Cir. 2001). It permits emergency

removal when social workers have a reasonable suspicion that

child abuse previously occurred or the threat of future abuse is

imminent, as we normally do in the substantive due process

context, without weighing whether social workers had time to

get a court order. Id. at 22; see id. (“[T]he Constitution allows

a case worker to take temporary custody of a child, without a

hearing, when the case worker has a reasonable suspicion that

child abuse has occurred.” (emphasis added)). And the Fifth

Circuit undertakes an even more flexible analysis for emergent

child-removal claims, looking to the totality of the

circumstances to assess whether the seized children faced an

imminent risk of physical or sexual abuse without a bright-line

rule that caseworkers must have insufficient time to get a court

order. See Gates v. Texas Dep’t of Prot. & Regul. Servs., 537

F.3d 404, 429 (5th Cir. 2008) (looking holistically at the nature

of the abuse, the strength of the evidence supporting the

allegations of abuse, the risk the parents will flee, the

possibility of less extreme solutions, and any harm to the child

that might result from the removal); accord Doe v. Kearney,

329 F.3d 1286, 1295, 1297–98 (11th Cir. 2003) (assessing the

totality of the circumstances because “[t]his kind of subtle

balancing cannot be properly accomplished when courts blunt

the inquiry by simply asking whether there was time to get a

warrant”).

The nuanced approaches courts take in this area of the

law, all heavily reliant on the facts of each case, underscore

that there is no robust consensus of authority. As the Eleventh

Circuit has observed, the due process “interests may be

implicated to varying degrees depending on the individual

case, which will necessarily affect the degree of procedural due

process required.” Id. at 1297. There are various ways to

determine what even qualifies as “imminent” (or “abuse”). The

majority opinion’s new standard, which at first glance seems

most similar to the Second, Ninth, and Tenth Circuits’

approach, is itself meaningfully different from those courts’

approaches. Under that approach, emergency removals can

occur “only when swift action is necessary for securing the

children’s safety,” which might encompass more conduct than

the immediate “danger” or “physical abuse” other courts

require. Maj. Op. 35.

So even if the Dodd Act did not move the needle,

Defendants were not on notice of which standard we would

apply, much less how we would apply our newly minted

standard to the facts. If anything, we have sent contrary signals

in the past. See Miller, 174 F.3d at 372 (“Initiating child

custody proceedings by ex parte orders is generally

constitutional if a prompt post-deprivation hearing is held.”).

At issue here is the due process right to be free from temporary

removal of children under the procedures authorized by a valid

state statute when caseworkers believe the express conditions

of a Family Agreement have been violated, the father figure in

the home has a recent child abuse record, the mother who just

gave birth has mental health challenges, the home has

habitability problems, and the children have, days earlier,

returned to this environment from out of state. Under these

specific facts—not just a vague consensus that “imminence” in

general is required—out-of-circuit authority did not put the

DCPP Defendants on notice that this emergent removal would

violate Plaintiffs’ rights.

On the procedural due process issue, I could not sum up

this case any better than Judge Sutton did in another case

involving child welfare: “in the face of our previous silence,

the Supreme Court’s continued silence and the conflicting

signals sent by other circuits, I doubt even the most

sophisticated social worker, accompanied by the most

sophisticated attorney, could have distilled one framework,”

much less the application of that framework to the nuanced

facts here, to determine whether their actions violated

Plaintiffs’ procedural due process rights. Kovacic, 724 F.3d at

708 (Sutton, J., dissenting). For all those reasons, the majority

opinion reaches the correct result on the procedural due process

issue: the DCPP Defendants are entitled to qualified immunity.

III

“Caseworkers investigating allegations of child abuse

often must make difficult decisions based on imperfect

information. Particularly when deciding whether to separate

parent and child, a caseworker must weigh the rights of the

parent against the rights of the child and the risk of abuse.”

Mammaro, 814 F.3d at 171. Today, by concluding that the

DCPP Defendants are entitled to qualified immunity on the due

process claims—albeit for slightly different reasons than I

do—the Court pays due respect to the reasonable decisions

made in service of that precarious balance. Still, I would affirm

the District Court’s orders in the entirety, including insofar as

they dismissed Plaintiffs’ Fourth Amendment claim against

Ash. For those reasons, I respectfully concur in part and dissent

in part.

Counsel for Appellant(s)

Cory J. Kopicki [ARGUED]

Stuart T. Steinberg

Dechert

Counsel for Appellee(s)

Howard L. Goldberg

Krista A. Schmid

Office of Camden County Counsel

Jae K. Shim

Joseph D. Sams

Office of Attorney General of New Jersey

Ashleigh B. Shelton [ARGUED]

Phoenix N. Meyers

Robert J. McGuire

Office of Attorney General of New Jersey

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.