James v. Rowlands

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL JAMES, 

Plaintiff-Appellant, No. 08-16642

v.

 D.C. No.

2:06-CV-00967-

BOBBIE ROWLANDS; STEVEN TRIPP;

VIVIAN VAUGHT, GEB-DAD

Defendants-Appellees.



DANIEL JAMES,  No. 08-16643

Plaintiff-Appellee,

D.C. No.

v.

 2:06-CV-00967-

BOBBIE ROWLANDS; STEVEN TRIPP; GEB-DAD

VIVIAN VAUGHT,

OPINION

Defendants-Appellants.



Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Argued and Submitted

October 5, 2009—San Francisco, California

Filed May 26, 2010

Before: Procter Hug, Jr. and Richard A. Paez,

Circuit Judges, and George H. Wu,* District Judge.

*The Honorable George H. Wu, United States District Judge for the

Central District of California, sitting by designation.

7509

7510 JAMES v. ROWLANDS

Opinion by Judge Paez

JAMES v. ROWLANDS 7513

COUNSEL

Anthony T. Caso, Sacramento, California, for plaintiff-

appellant-cross-appellee Daniel James.

Robert Shulman, County Counsel, and Michael S. Jamison,

Deputy, Office of the Nevada County Counsel, Nevada City,

California, for defendants-appellees-cross-appellants Bobby

Rowlands, Steven Tripp, and Vivian Vaught.

OPINION

PAEZ, Circuit Judge:

The Fourteenth Amendment protects parents’ fundamental

right to participate in the care, custody, and management of

their children. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18,

27 (1981). This right extends to parents who, like the plaintiff

here, have shared legal custody but lack physical custody of

their children. See Brittain v. Hansen, 451 F.3d 982, 992 (9th

Cir. 2006). In this case, we are asked to determine the circum-

stances under which the Fourteenth Amendment requires pub-

lic officials to inform a parent with only joint legal custody

about actions they take involving the parent’s child.

Plaintiff Daniel James brought this action under 42 U.S.C.

§ 1983 alleging that the defendants—two social workers from

7514 JAMES v. ROWLANDS

the Nevada County Child Protective Services Agency

(“CPS”) and a deputy sheriff—violated his substantive and

procedural due process rights under the Fourteenth Amend-

ment by failing to notify him of their investigation into allega-

tions that his daughter, C.J., had been molested and that

someone had coerced her to change her testimony in the trial

that followed. In addition, James contends that the two social

worker defendants violated his rights by failing to inform him

of events stemming from the molestation investigation: (1) a

decision to detain C.J. temporarily and to take her into protec-

tive custody, and (2) a voluntary agreement with C.J.’s

mother, who had physical custody, to place C.J. with her

maternal grandmother for the duration of the molestation trial.

We conclude that the defendants are entitled to qualified

immunity on these claims and accordingly affirm the grant of

summary judgment.

First, we decline to decide whether James had a constitu-

tional right to be informed of the molestation investigation or

of the attempts to coerce C.J. to change her testimony. We

conclude that, even if such rights existed, they were not

clearly established. We therefore affirm the grant of qualified

immunity on these two claims. Second, we hold that the CPS

officials violated James’s substantive due process right to par-

ticipate in the care, custody, and management of his daughter

by failing to notify him of her detention and placement in

temporary protective custody and of the subsequent agree-

ment transferring her physical custody for the duration of the

molestation trial. We conclude, however, that James’s right to

this information was not clearly established and that the offi-

cials are therefore entitled to qualified immunity on these

claims. Finally, we hold that the CPS officials did not violate

James’s procedural due process rights and accordingly affirm

the grant of qualified immunity on that claim.

I. Background

Daniel James and Gail Sherman are the biological parents

of C.J., who was a minor at the time of the events relevant to

JAMES v. ROWLANDS 7515

this case. James and Sherman, who were never married,

shared joint legal custody of C.J., but Sherman had sole phys-

ical custody. C.J. lived with Sherman and Sherman’s live-in

boyfriend, Shawn Blair, and James had visitation rights two

weekends per month. In late February 2003, C.J. told her

maternal grandmother, Nancy Proano, that Blair’s father had

sexually molested her. Proano reported this to CPS, which, in

turn, reported the allegations to the Nevada County Sheriff’s

Office.

On March 18, 2003, defendant Bobbie Rowlands, a CPS

social worker, interviewed C.J. at the Nevada County Sher-

iff’s Office. Defendant Steve Tripp, a Nevada County deputy

sheriff who was investigating the matter for the Sheriff’s

Office, monitored the interview from another room. After the

interview, Rowlands told Sherman she had to prevent Blair’s

father from having any further contact with C.J. Because

Sherman agreed to prevent further contact, and because

Blair’s father did not live in C.J.’s household, CPS did not file

a juvenile dependency action to protect C.J. The Nevada

County District Attorney later filed criminal charges against

Blair’s father.

In late July, on the same day as the preliminary examina-

tion in Blair’s father’s criminal case, C.J. told her tutor that

Blair had struck her and her mother. C.J.’s step-grandfather,

Robert Proano, reported this to Rowlands, who informed

Tripp. At Tripp’s request, Rowlands referred the matter to the

Grass Valley Police Department for investigation because the

alleged assault occurred in its jurisdiction. The next day, a

Grass Valley police officer who is not a party in this suit

interviewed C.J. and her mother about this allegation. C.J.

confirmed that Blair had hit her but denied that he had pres-

sured her to change her testimony against his father.

On September 10, 2003, Rowlands learned that C.J. had

told her tutor that Blair was pressuring C.J. to change her tes-

timony. The next day, Rowlands interviewed C.J. at her

7516 JAMES v. ROWLANDS

school, and C.J. reported that Blair had told her to change her

testimony. At Rowlands’s urging, Sherman agreed to let C.J.

stay with Proano that night. The next day, a Grass Valley

police officer talked to C.J. at school, and she again con-

firmed that Blair was pressuring her to change her testimony.

The officer detained C.J. at school, and a supervising social

worker, defendant Vivian Vaught, instructed another social

worker to take C.J. into protective custody and to bring her to

Proano’s home. The social worker told Sherman that CPS had

taken C.J. into custody and placed her with Proano.

Three days later, on September 15, 2003, Rowlands met

with Sherman and gave her five options for ensuring C.J.’s

safety during the molestation trial: make Blair leave the home

so that C.J. could remain there; allow C.J. to live with Proano

without any CPS involvement; sign a voluntary agreement

with CPS to place C.J. with Proano; sign a voluntary agree-

ment to place C.J. in a foster home; or let C.J. live with her

father, James. After Sherman refused all options, Vaught

intervened. Sherman ultimately agreed to sign a voluntary

agreement with CPS transferring C.J.’s physical custody to

Proano until the molestation trial was over. CPS did not inter-

rupt James’s visitation during this period.

In early December 2003, C.J. told James that Blair’s father

had molested her. In response, James filed a motion in the

Placer County Superior Court seeking physical custody of

C.J. On December 12, 2003, in an ex parte proceeding, the

court awarded temporary physical custody to James pending

a custody hearing. After the custody hearing, in May 2005,

the court awarded sole legal and physical custody to Proano.

In February 2005, on the basis of these events, James filed

a pro se complaint in the district court against Rowlands,

Vaught, and other defendants not named in this case. After

James failed to explicitly assert grounds for federal jurisdic-

tion in his response to an order to show cause, the district

court dismissed his suit for lack of subject matter jurisdiction.

JAMES v. ROWLANDS 7517

James then hired an attorney who filed this action in May

2006 against Rowlands, Vaught, and Tripp in the Eastern Dis-

trict of California, seeking damages under § 1983 for viola-

tions of his Fourteenth Amendment rights to substantive and

procedural due process and to equal protection. The complaint

alleged that the defendants violated James’s rights by failing

to inform him of the molestation investigation. His subse-

quent filings made clear that he challenged not only the fail-

ure to inform him of the investigation, but also the failure to

notify him of the reported attempts to coerce C.J. to change

her testimony and of the changes in C.J.’s physical custody.

The defendants moved for summary judgement on the

grounds of qualified immunity and James’s alleged failure to

comply with the statute of limitations.

The district court granted summary judgment to the defen-

dants on all claims. The district court concluded that the

defendants’ failure to inform James of the investigation and

C.J.’s temporary placement with Proano violated his substan-

tive due process right “to make decisions about the care, cus-

tody and control of his daughter.” The district court further

determined that James’s rights were clearly established “on

the basis of common sense,” but that the defendants were

nonetheless entitled to qualified immunity because they made

a reasonable mistake about what the law required. In addition,

the district court held that the defendants did not violate

James’s right to procedural due process, and that James did

not present enough evidence to raise a triable issue of fact on

his equal protection claim. Because the district court granted

summary judgment to the defendants on the merits, it did not

address whether James’s suit was barred by the statute of lim-

itations. James timely appealed, and the defendants cross-

appealed on the statute of limitations issue. Because James

did not brief his equal protection claim on appeal, we deem

it waived and decline to consider it here. See Greene v. Cam-

reta, 588 F.3d 1011, 1020 n.4 (9th Cir. 2009).

7518 JAMES v. ROWLANDS

II. Standard of Review

We review de novo the grant of summary judgment on the

ground of qualified immunity. McSherry v. City of Long

Beach, 584 F.3d 1129, 1134 (9th Cir. 2009). We view the evi-

dence in the light most favorable to the non-moving party,

James. Id. at 1135.

III. Discussion

An official is entitled to summary judgment on the ground

of qualified immunity where his or her “conduct does not vio-

late clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Until recently, courts

considering an official claim of qualified immunity followed

the two-step protocol established in Saucier v. Katz, 533 U.S.

194 (2001), which required us first to determine whether the

defendant violated a constitutional right and then to determine

whether that right was clearly established. See Pearson v.

Callahan, 555 U.S. ___, 129 S. Ct. 808, 818 (2009) (overturn-

ing Saucier in part). In Pearson v. Callahan, the Supreme

Court reversed this earlier rule and gave courts discretion to

grant qualified immunity on the basis of the “clearly estab-

lished” prong alone, without deciding in the first instance

whether any right had been violated. Id. Thus, we may grant

qualified immunity if “the facts that a plaintiff has alleged or

shown [do not] make out a violation of a constitutional right”

or if “the right at issue was [not] ‘clearly established’ at the

time of defendant’s alleged misconduct.” Id. at 816, 818

(internal citations omitted).

The defendants contend that they are entitled to qualified

immunity on James’s substantive and procedural due process

claims both because they did not violate his rights and

because those rights, if violated, were not clearly established.

We address James’s substantive and procedural due process

claims in turn.

JAMES v. ROWLANDS 7519

A. Substantive Due Process

[1] The Fourteenth Amendment’s Due Process Clause pro-

tects parents’ well-established liberty interest in the “compan-

ionship, care, custody, and management of [their] children.”

Lassiter, 452 U.S. at 27 (noting that the importance of this

right is “plain beyond the need for multiple citation”) (quoting

Stanley v. Illinois, 405 U.S. 645, 651 (1972)); accord Troxel

v. Granville, 530 U.S. 57, 65 (2000) (describing this liberty

interest as “perhaps the oldest of the fundamental liberty

interests recognized by this Court”). This right is not reserved

for parents with full legal and physical custody. To the con-

trary, we have recognized that parents with even fewer cus-

tody rights than James—parents with no legal or physical

custody, but merely visitation rights—have “a liberty interest

in the companionship, care, custody, and management of their

children,” even though such a parent’s right is “unambigu-

ously lesser in magnitude than that of a parent with full legal

custody.” Brittain, 451 F.3d at 992. James therefore has a pro-

tected liberty interest in participating in C.J.’s “care, custody,

and management.”

James contends that the defendants deprived him of this

protected liberty interest, and thus violated his substantive due

process rights, by failing to inform him of (1) the molestation

investigation, (2) Blair’s attempt to coerce C.J. into changing

her testimony, (3) C.J.’s detention and placement in protective

custody, and (4) the voluntary agreement temporarily transfer-

ring C.J.’s physical custody to Proano.1 The defendants con-

1

James alleges that the defendants not only failed to inform him of these

events, but also affirmatively concealed them by instructing Proano not to

tell him anything. The record, however, does not contain any evidence

from which a reasonable jury could conclude that any defendant instructed

Proano to keep the investigation and related events secret from James. The

declaration by Proano that James points to in support of his allegation

states only that Proano decided not to tell James about the abuse allega-

tions “after consultation with the Nevada County Child Protective Ser-

7520 JAMES v. ROWLANDS

tend that their failure to notify James of these events did not

violate his rights and that, even if it did, they are nonetheless

entitled to qualified immunity because those rights were not

clearly established. We address each claimed violation in turn.

1. Failure to notify James about the molestation

investigation

[2] First, James contends that the defendants’ failure to

notify him of the molestation investigation violated his consti-

tutional rights. In support of this claim, James points to no

authority establishing that any parent—even a parent with full

legal and physical custody—has a constitutional right to be

informed when officials investigate allegations that his or her

child has been molested. Instead, James argues only that,

without such information, a parent’s liberty interest in partici-

pating in a child’s care and management would be “little more

than a hollow promise.” Exercising our discretion under Pear-

son, we decline to decide here whether parents have such a

right, and whether officials have a correlative constitutional

duty to notify a minor’s parent when they investigate allega-

tions that the minor has been molested.2 Instead, we affirm the

vices who felt that it was not necessary to advise Mr. James . . . .” Telling

Proano that it was “not necessary” to tell James is not tantamount to

instructing her not to tell him. James also bases his allegation of affirma-

tive concealment on a declaration by C.J.’s attorney, which recounts con-

versations she had with Proano and her husband. This declaration,

however, establishes only that the Proanos offered two explanations for

not telling James: the defendants told them that advising James was “not

necessary,” and they feared a violent reaction from him. These statements,

of course, do not show that the defendants instructed anyone to withhold

information from James. Because James has presented insufficient evi-

dence that any defendant instructed anyone to conceal information from

him, we address only the claim that the officials’ failure to notify him of

these events violated his constitutional rights.

2

We note, however, that officials do have a duty to notify parents when

an abuse investigation involves a medical examination. See Greene, 588

JAMES v. ROWLANDS 7521

grant of summary judgment for the defendants on the ground

that such a right, if it exists, was not clearly established at the

time of the events in question.

A right is clearly established if the “contours of the right

[are] sufficiently clear that a reasonable official would under-

stand that what he is doing violates that right.” Saucier, 533

U.S. at 202 (quoting Anderson v. Creighton, 483 US. 635, 640

(1987)). Although a parent’s right to participate in his child’s

care, custody, and management is clearly established “as a

broad general proposition,” what that right means “in light of

the specific context” here is not clearly established. Id. at 201.

Indeed, we are aware of no case with even loosely analogous

facts that might suggest that officials investigating allegations

of child abuse have a constitutional duty to inform the alleged

victim’s parents.

[3] Contrary to the district court’s conclusion, we hold that

any right that James may have was not clearly established on

the basis of “common sense.” A right can be clearly estab-

lished by “common sense” only where “conduct is so patently

violative of the constitutional right that reasonable officials

would know without guidance from the courts that the action

was unconstitutional.” DeBoer v. Pennington, 206 F.3d 857,

864-65 (9th Cir. 2000), vacated on other grounds by Belling-

ham v. DeBoer, 532 U.S. 992 (2001) (internal quotation

marks and citation omitted). Failing to inform a parent of an

investigation into possible abuse of his or her child does not

F.3d at 1036; Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000). The

officials did not refer C.J. for any such examination here, however. In

addition, officials must in some circumstances notify parents when they

detain a suspected child abuse victim for questioning. We have previously

held that seizing and interrogating a suspected child abuse victim without

parental consent violates the child’s Fourth Amendment rights unless the

seizure is authorized by a warrant or court order or justified by exigent cir-

cumstances. Greene, 588 F.3d at 1030. No Fourth Amendment claim is

presented in this case.

7522 JAMES v. ROWLANDS

rise to this level. Because any right that James may have had

to be informed of the investigation into C.J.’s molestation was

not clearly established, the defendants are entitled to qualified

immunity on this claim.

2. Failure to notify James about attempts to coerce C.J. to

change her testimony

Second, James contends that the defendants violated his

rights by failing to notify him of the investigation into Blair’s

alleged attempts to coerce C.J. to change her testimony.

Again, James points to no authority suggesting that state

actors such as the defendants here have a constitutional duty

to inform a minor’s parent of such allegations, or more gener-

ally of allegations that someone is mistreating the child. We

decline to decide here whether or under what circumstances

parents have a right to such information. Instead, we affirm

the grant of qualified immunity to the defendants on this

claim because such a right, if it exists, was not clearly estab-

lished.

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

in protective custody

Third, James contends that the CPS officials’ failure to

inform him that they temporarily detained C.J. and then

placed her in protective custody deprived him of his right to

participate in C.J.’s care and management. In September

2003, a police officer detained C.J. at school, and CPS

assumed temporary custody of her and placed her with Proano

over the weekend.3 Viewing the evidence in the light most

3

We note that James does not allege that defendant Tripp in any way

participated in the decision to detain C.J. or to take her into protective cus-

tody. We therefore construe James’s claim to allege only that the CPS

defendants, Rowlands and Vaught, violated his right to notification of this

decision. Of course, § 1983 imposes liability on a defendant only if he or

she personally participated in or directed a violation. Taylor v. List, 880

JAMES v. ROWLANDS 7523

favorable to James, a reasonable jury could find that taking

these actions without informing James violated his constitu-

tional rights.

[4] We have recognized that the Fourteenth Amendment’s

protection of parental rights prohibits the state from separat-

ing parents from their children “without due process of law

except in an emergency.” Wallis, 202 F.3d at 1136. We have

accordingly held that:

Officials may remove a child from the custody of its

parent without prior judicial authorization only if the

information they possess at the time of the seizure is

such as provides reasonable cause to believe that the

child is in imminent danger of serious bodily injury

and that the scope of the intrusion is reasonably nec-

essary to avert that specific injury.

Id. at 1138. Recently, in Burke v. County of Alameda, we

extended this rule to protect not only parents with full cus-

tody, but also parents like James who have only joint legal

custody and no physical custody. 586 F.3d 725, 733 (9th Cir.

2009).

[5] In Burke, officials took a child into protective custody

and did not inform the father, who had only joint legal cus-

tody, for two days. Id. We held that the officials had reason-

able cause to believe that the child was in imminent danger,

but that the officials may have violated the father’s rights

because the “scope of the intrusion” may have been greater

than necessary to avert the danger to the child. Id. at 732-33.

F.2d 1040, 1045 (9th Cir. 1989). The record here is unclear as to whether

both Rowlands and Vaught participated in the decision to detain C.J. and

to take her into protective custody. However, because we conclude that the

CPS officials are entitled to qualified immunity on this claim, we do not

attempt to determine which official participated in—and therefore could

face liability for—this alleged violation.

7524 JAMES v. ROWLANDS

Specifically, although the need to protect the child justified

taking some action, it may not have justified failing to inform

the father or to “explore the possibility of putting [the child]

in his care” instead. Id. at 733. Thus, we held that a jury

would have to decide whether “the scope of [this] intrusion on

[the father’s] rights” was reasonable. Id. In other words,

unless the danger to the child made it reasonably necessary to

take the child into state custody without giving the father the

opportunity to take the child, the officials violated the father’s

rights by not giving him that opportunity.

[6] Similarly, here, a reasonable jury could find that the

CPS officials violated James’s rights by taking C.J. into pro-

tective custody and placing her with her grandmother without

notifying him or giving him the opportunity to take C.J. into

his care. Even if C.J.’s reports that Blair had hit her and that

he was pressuring her to change her testimony gave the CPS

officials reasonable cause to believe that C.J. was in imminent

danger, it is not clear that “the scope of the intrusion [was]

reasonably necessary to avert” the possible injury to C.J. Id.

at 731 (quoting Wallis, 202 F.3d at 1138). On the factual

record, a jury could conclude that the CPS officials’ failure to

notify James that they were taking C.J. into protective custody

was not “reasonably necessary” to avert any danger to C.J.

and that the CPS officials therefore violated James’s rights.

To be sure, the officials may have had good reason not to tell

James: C.J. had expressed fear of him, and there had been an

earlier substantiated report that James had physically abused

her. But it would be for a jury to decide whether these facts

justified placing C.J. with Proano without notifying James or

giving him the opportunity to assume care of C.J. Thus,

James’s allegations, taken as true, establish that the CPS offi-

cials violated his constitutional rights.

[7] Nonetheless, the defendants are entitled to qualified

immunity on this claim. Burke extended for the first time

Wallis’s rule to protect parents without physical custody. Id.

at 734. Burke recognized that, before it addressed the issue,

JAMES v. ROWLANDS 7525

it was not clearly established that detaining a child without

notifying a parent who had only shared legal custody would

violate that parent’s constitutional rights. Id. Because James’s

rights were therefore not clearly established in 2003, the time

of the relevant events here, the defendants are entitled to qual-

ified immunity on this claim.

4. Failure to notify James of the temporary transfer of C.J.’s

physical custody pursuant to a voluntary agreement

Finally, James contends that the CPS officials’ failure to

inform him that they had entered into a voluntary agreement

with Sherman to temporarily transfer C.J.’s physical custody

to Proano also deprived him of his parental rights under the

Fourteenth Amendment.4 We agree.

[8] In Burke, we recognized that interfering with a child’s

physical custody can violate the rights of a parent with shared

legal custody, even if that parent has no physical custody. See

Burke, 586 F.3d at 733. We see no reason to distinguish the

situation in Burke, where officials unilaterally assumed tem-

porary protective custody of a child, from a situation like that

here, where CPS officials encourage and facilitate a tempo-

rary transfer of a child’s physical custody pursuant to a volun-

tary agreement with one parent. In both cases, officials take

part in changing a child’s physical custody. It is the change

in custody itself, not the manner in which the change occurs,

that interferes with the parent’s right to participate in his

child’s care and management. Without notice of such a

change in custody, a parent has no opportunity to exercise that

right.5

4

Again, because James does not allege that Tripp participated in this

agreement in any way, we construe this claim to allege violations only by

the CPS defendants, Rowlands and Vaught.

5

We do not mean to suggest that, under Burke, officials must give a par-

ent with shared legal custody the opportunity to assume the care of a child

whenever they participate in transferring a child’s physical custody.

7526 JAMES v. ROWLANDS

[9] The defendants suggest that notice would not actually

give a parent like James the opportunity to exercise his paren-

tal rights because he could not veto the temporary change in

custody. This, however, ignores the fact that such a parent

could exercise his right to participate in his child’s care and

management in other ways, such as by talking to the child

about the move or petitioning a court for physical custody.

Thus, failing to notify a parent of a change in his child’s phys-

ical custody meaningfully impairs his right to participate in

the child’s care and management.

[10] We therefore hold that the Fourteenth Amendment’s

protection of parents’ rights requires officials to notify a par-

ent with shared legal custody of a transfer in a minor’s physi-

cal custody when the officials have encouraged and facilitated

that transfer. To be sure, this requirement is not without quali-

fication. As Wallis recognized, some circumstances may jus-

tify taking action without notifying a child’s parent. See

Wallis, 202 F.3d at 1138. In Wallis, we held that officials may

take a minor into protective custody without a court order

when “the information they possess at the time of the seizure

is such as provides reasonable cause to believe that the child

is in imminent danger of serious bodily injury and that the

scope of the intrusion is reasonably necessary to avert that

specific injury.” Id. Following Wallis’s example, we hold that

public officials may encourage and facilitate a transfer of a

minor’s physical custody without notifying a parent with

shared legal custody only if they have reasonable cause to

believe that such notification would put the child in imminent

danger of serious bodily injury.

Rather, Burke requires officials to offer such an opportunity only when the

officials make a unilateral decision, without a parent’s consent, to take the

child into protective custody. When the officials merely encourage and

facilitate a transfer of a child’s physical custody pursuant to a voluntary

agreement with the parent with physical and legal custody, the officials

need only inform the other parent of the transfer.

JAMES v. ROWLANDS 7527

Here, Rowlands and Vaught encouraged and facilitated the

transfer of C.J.’s physical custody. They required Sherman to

choose one of several options for where to place C.J. for the

duration of the molestation trial. After some initial resistance,

Sherman chose to enter into a voluntary agreement with CPS

to place C.J. with Proano. Formally, this agreement autho-

rized CPS to assume temporary custody of C.J., and CPS

placed C.J. with Proano pursuant to this authority. Sherman

did not independently decide to place her daughter with

Proano. Nor did the CPS officials passively watch while Sher-

man temporarily placed her daughter with Proano. Rather,

they encouraged and endorsed the transfer of custody, and

indeed effectuated it.

[11] Because Rowlands and Vaught encouraged and facili-

tated the transfer of C.J.’s custody, the Fourteenth Amend-

ment required them to notify James of the transfer unless they

had reasonable cause to believe that notifying him would have

put C.J. in imminent danger of serious injury. Taking the evi-

dence in the light most favorable to James, there is no basis

to conclude that notifying James of the transfer would have

created any such risk. Accordingly, the factual submissions

establish that the CPS officials’ failure to notify James

deprived him of his right to participate in his daughter’s care,

custody, and management.

[12] The defendants are nonetheless entitled to qualified

immunity on this claim. As discussed above, Burke, decided

in 2009, was the first case in this circuit to establish that inter-

fering with a child’s physical custody can violate the rights of

a parent who does not have physical custody. Burke, 586 F.3d

at 734. Failing to contact James about the voluntary agree-

ment was therefore not clearly unlawful at the time, and the

CPS defendants are entitled to summary judgment on this

claim.

B. Procedural Due Process

James also alleges that the CPS officials violated his proce-

dural due process rights by failing to notify him when they

7528 JAMES v. ROWLANDS

took C.J. into temporary custody and when they entered into

the voluntary agreement to temporarily transfer C.J’s custody

to Proano. Specifically, James contends that California Wel-

fare and Institutions Code sections 307.4 and 11400 required

the CPS officials to notify him of these actions, and that the

failure to comply with these statutes violated his right to pro-

cedural due process.

[13] California Welfare and Institutions Code section

307.4 requires any official who takes a minor into temporary

custody to “immediately inform, through the most efficient

means available, the parent, guardian, or responsible relative,

that the minor has been taken into protective custody . . . .”

Cal. Welf. & Inst. Code § 307.4(a). According to James, this

requires notice to both parents, notwithstanding the use of the

singular form of “parent.” James also argues that California

Welfare and Institutions Code section 11400, which defines a

“voluntary placement agreement” as a “written agreement

between . . . the county welfare department . . . and the par-

ents or guardians of a child,” required the officials to notify

him of the placement agreement. Id. § 11400(p). We need not

decide whether these state laws in fact required notice to

James at any point. Even assuming that these statutes did

require the CPS officials to notify James, they did not create

a right protected by the Fourteenth Amendment’s Due Process

Clause that James can vindicate through a § 1983 civil rights

action.

[14] State law can create a right that the Due Process

Clause will protect only if the state law contains “(1) substan-

tive predicates governing official decisionmaking, and (2)

explicitly mandatory language specifying the outcome that

must be reached if the substantive predicates have been met.”

Bonin v. Calderon, 59 F.3d 815, 842 (9th Cir. 1995) (internal

quotation marks and citation omitted). To create a right pro-

tected by the Due Process Clause, the state law “must provide

more than merely procedure; it must protect some substantive

end.” Id. (internal quotation marks and citation omitted);

JAMES v. ROWLANDS 7529

accord Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983)

(“[A]n expectation of receiving process is not, without more,

a liberty interest protected by the Due Process Clause.”). The

California statutes that James contends required the officials

to notify him do not, even under James’s construction, estab-

lish any substantive predicates or mandate any outcomes. At

most, they simply require notice.

James contends that the failure to follow these purported

notification requirements nonetheless violated his procedural

due process rights because the requirements are designed to

protect parents’ constitutionally protected liberty interest in

participating in the care and management of their children.

This argument misapprehends how the Due Process Clause

interacts with state law. A state does not create new constitu-

tional rights by enacting laws designed to protect existing

constitutional rights. See Bonin, 59 F.3d at 842 (explaining

that a state law does not create a protected liberty interest

where it “merely creates a state procedural right which is

itself designed to facilitate the protection of more fundamental

substantive rights” arising from the Constitution, such as the

right to effective assistance of counsel). Thus, when a state

establishes procedures to protect a liberty interest that arises

from the Constitution itself—like a parent’s liberty interest

here—the state does not thereby create a new constitutional

right to those procedures themselves, and non-compliance

with those procedures does not necessarily violate the Due

Process Clause. See Walker v. Sumner, 14 F.3d 1415, 1420

(9th Cir. 1994) (“[I]f state procedures rise above the floor set

by the due process clause, a state could fail to follow its own

procedures yet still provide sufficient process to survive con-

stitutional scrutiny.” (quoting Rogers v. Okin, 738 F.2d 1, 8

(1st Cir. 1984))), overruled on other grounds by Sandin v.

Conner, 515 U.S. 472, 483-84 (1995). Rather, the Due Pro-

cess Clause itself determines what process is due before the

state may deprive someone of a protected liberty interest. See

Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (setting

7530 JAMES v. ROWLANDS

forth the factors used in determining whether procedural pro-

tections are adequate under the Due Process Clause).

[15] Because the state statutes that James identifies did not

create a constitutional right to notification, James’s procedural

due process claim fails. We accordingly affirm the grant of

summary judgment to the defendants on James’s procedural

due process claim.

IV. Conclusion

In sum, we decline to decide whether the defendants vio-

lated James’s substantive due process rights by failing to

inform him of the molestation investigation or the attempts to

coerce C.J. to change her testimony and conclude that, if any

such rights existed, they were not clearly established. We fur-

ther hold that, although the CPS officials violated James’s

parental rights under the Fourteenth Amendment by failing to

inform him of C.J.’s temporary detention and placement in

protective custody and of the voluntary agreement temporar-

ily transferring her physical custody, those rights were not

clearly established at the time. We therefore affirm the grant

of summary judgment for the defendants on James’s substan-

tive due process claims. Finally, we hold that no state law

conferred on James a procedural due process right to notifica-

tion of the changes in C.J.’s custody, and we accordingly

affirm the grant of summary judgment for the defendants on

James’s procedural due process claim. Because we affirm the

grant of summary judgment for the defendants, we dismiss as

moot the defendants’ cross-appeal on the statute of limitations

issue.

Appeal No. 08-16642: AFFIRMED.

Appeal No. 08-16643: DISMISSED.