Starkey Ex Rel. AB v. BOULDER COUNTY SOC. SERV.

FILED

United States Court of Appeals

Tenth Circuit

June 29, 2009

PUBLISH

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEPHEN STARKEY, and BEDRA

STARKEY, on behalf of themselves

and on behalf of A.B., C.D., and

E.F.*,

Plaintiffs - Appellants,

v. No. 08-1013

BOULDER COUNTY SOCIAL

SERVICES; DOREEN MILLER;

BRIAN RUSSELL; HOLLY SMITH;

BARBARA PARK; JULIE

KINTZING; ANN BALDWIN, in their

individual and official capacities,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 1:06-CV-00659-LTB-KLM)

Samuel Ventola, Ventola & Staggs P.C., Denver, Colorado, for Plaintiffs -

Appellants.

Madeline J. Meacham, Deputy County Attorney, (Shelly Stratton Bailey,

Assistant County Attorney, with her on the brief), Boulder, Colorado, for

Defendants - Appellees.

____________________

*We use fictitious initials rather than names to protect the identities of the

children.

Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.

HARTZ, Circuit Judge.

Stephen Starkey, his wife Bedra Starkey, and his three children, A.B., C.D.,

and E.F., brought this action in federal court under 42 U.S.C. § 1983 against the

Boulder County Department of Social Services (BCDSS) and six BCDSS

employees—Doreen Miller, Brian Russell, Holly Smith, Barbara Park, Julie

Kintzing, and Ann Baldwin—sued in their official and personal capacities

(collectively, Defendants). The Starkeys claimed that Defendants deprived

Mr. and Mrs. Starkey of custody and contact with A.B., C.D., and E.F. because of

their disapproval of the Starkeys’ religious beliefs, and that Defendants failed to

place the children in a reasonably safe and secure environment while in the

custody of BCDSS. They contended that this conduct violated their Fourteenth

Amendment substantive-due-process rights to family integrity, their First

Amendment rights to the free exercise of religion, and the children’s Fourteenth

Amendment substantive-due-process rights to reasonably safe and secure

placement while in government custody. They also raised claims under Colorado

law. They sought injunctive relief and damages.

The United States District Court for the District of Colorado dismissed on

Eleventh Amendment sovereign-immunity grounds all claims for damages against

BCDSS and the individual Defendants in their official capacities. The court also

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denied injunctive relief against all Defendants. It later granted summary

judgment against the Starkeys on their § 1983 claims against the individual

Defendants in their personal capacities. With no remaining federal claims before

it, the court chose not to retain jurisdiction over the state-law claims.

On appeal the Starkeys contend (1) that BCDSS and the individual

Defendants in their official capacities were not entitled to sovereign immunity

because BCDSS is not an arm of the state of Colorado, (2) that the district court

improperly struck portions of the Starkeys’ affidavits submitted with their

response to Defendants’ summary-judgment motion, and (3) that the district court

erred by granting summary judgment to the individual Defendants on the First and

Fourteenth Amendment claims because there were genuine issues of material fact

as to whether all six individual Defendants violated their constitutional rights.

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

We affirm the district court’s ruling striking portions of the Starkeys’

affidavits, and we hold that the Starkeys have failed to present sufficient evidence

to raise a genuine issue that their constitutional rights were violated. Thus, we

affirm summary judgment for the individual Defendants in their personal

capacities. Because there was no underlying constitutional violation, the

Starkeys’ claims against BCDSS and the individual Defendants in their official

capacities must also fail. For subtle reasons that will be discussed more fully

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below, we need not address the jurisdictional issue of Eleventh Amendment

sovereign immunity.

I. BACKGROUND

We summarize the pertinent evidence presented to the district court with

respect to Defendants’ summary-judgment motion, viewing it in the light most

favorable to the Starkeys. 1 See Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d

1213, 1216 (10th Cir. 2008). A.B. (born in 1991), C.D. (born in 1993), and E.F.

(born in 1995) are the children of Mr. Starkey and his former wife, Susan

Kozlowski. Mr. Starkey is now married to Bedra Starkey, and Ms. Kozlowski to

Robert Kozlowski.

On August 20, 2004, the children contacted BCDSS, alleging abuse by

Mr. Starkey and stating that they were planning to run away from home. The

children said that Mr. Starkey had punished them by imposing time-outs for

several hours, withholding food, forcing them to lie on the floor with their faces

down for hours, spanking them, and hitting E.F. on the head. After interviewing

Mr. Starkey and the children, Tamara Tacha, a caseworker at BCDSS but not a

Defendant, filed a Petition in Dependency or Neglect (D&N Petition) in Boulder

County District Court. In addition, the police filed criminal charges of child

1

The Starkeys repeatedly make the baffling claim, without any elaboration,

that Defendants presented no evidence to the district court. But the documents

that Defendants submitted to the court included transcripts of testimony, sworn

interrogatory answers, and extensive agency records (whose admissibility as

business records has not been challenged by the Starkeys).

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abuse against Mr. Starkey; he pleaded no contest and was sentenced to 18

months’ probation.

On August 25 a hearing on the D&N Petition was held in state court. The

children’s guardian ad litem said that he believed that the children needed to be in

foster care. The judge agreed, finding it in the best interests of the children to be

placed in the temporary custody of BCDSS. The judge ordered (1) that legal

custody of the children be placed with BCDSS, (2) that Mr. Starkey and

Ms. Kozlowski have supervised visits with the children, and (3) that Mr. Starkey

and Ms. Kozlowski complete psychological evaluations and interactional

evaluations with the children.

On September 13 the case was transferred from Tacha to Defendant Miller.

Ten days later the state court held another hearing. Mr. Starkey admitted that

“[the children] lack proper parental care through the actions or omissions of their

parent, guardian, or legal custodian,” Aplee. Supp. App. at 756, and that “[t]here

was conflict in the home,” Aplt. App. Vol. II at 200. The court adjudicated the

children “dependent or neglected,” id., and ordered that there be no contact

between Mr. Starkey and the children until the children were psychologically

evaluated.

On October 29 Dr. Suzanne Pinto, a licensed psychologist, reported her

evaluation of Mr. Starkey. The report expressed concerns about his psychological

state and its effect on the children. It noted that he “ha[d] tried to raise [them] in

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isolation of a cult of one,” and that only after the children had been removed from

Mr. Starkey and placed “in a situation of perceived safety” were they willing to

speak of their “considerable distress.” Id. at 234. “While [Mr. Starkey] does not

show all of the characteristics of paranoid schizophrenia,” it noted, “this indeed

may be possible. He does show a strong delusional system regarding both his

relationship with God and in terms of his paranoia regarding others. This has led

him to be an abusive individual, both physically, emotionally and spiritually.” Id.

The report further observed that “it is difficult for [Mr. Starkey] to recognize his

own foibles and the impact of his behavior on the children.” Id. at 233. Dr. Pinto

concluded her report by recommending that the children not be returned to

Mr. Starkey’s care at that time.

At the next court hearing, on November 4, 2004, BCDSS submitted a

proposed treatment plan for the Starkey family. The judge approved the plan with

minor changes. The judge’s order reiterated that it was in the best interests of the

children to remain in the custody of BCDSS.

Sometime between the November 4 hearing and January 27, 2005, BCDSS

moved A.B. to a separate foster home from her brother and sister. During this

period all three children had weekly visits with Ms. Kozlowski (and their

stepfather) and weekly visits with Mrs. Starkey. They did not have visits with

Mr. Starkey.

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On January 27, 2005, a permanency hearing was held in state court.

Defendant Miller could not attend because of illness, but Defendant Russell, who

had assisted her, testified. Russell said that “[t]he children have expressed a great

deal of fear of their father and they’ve said they do not want to visit with him

although at times they vacillate, you know, wondering what it would be like and

are dealing with those issues in therapy.” Id. at 248. The judge concluded that

the return of the children to Mr. Starkey and Ms. Kozlowski was not yet

appropriate.

In February 2005 the case was transferred from Defendant Miller to Dusti

Moats, who is not a defendant in this case. In April, Mr. and Mrs. Starkey began

having supervised visits with the children. About a month later A.B. reported to

Moats that the children’s initial allegations against their father in August 2004

had been exaggerated. She also said that she wanted to have unsupervised visits

with her father and that she ultimately wanted to live with him part-time. C.D.

confirmed that the allegations had been exaggerated and that she also wanted to

live part-time with her father. E.F. continued to allege that his father hit him on

the head, although he, too, wished for unsupervised visits and potentially part-

time residence with Mr. Starkey.

On June 15 the case was transferred from Moats to Defendant Kintzing

(and to Kintzing’s supervisor, Defendant Park, in Kintzing’s absence). On the

same day, A.B. was returned to the custody of Ms. Kozlowski. C.D. and E.F.

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were returned to Ms. Kozlowski on June 30. Mr. Starkey and Ms. Kozlowski

were apparently given equally divided custody beginning on August 1.

On Wednesday, August 31, 2005, Mr. Starkey picked up the children for

his scheduled parenting time. Four days later Mr. Starkey dropped C.D. and E.F.

off with Ms. Kozlowski, but A.B. remained with him. On Wednesday,

September 7, Mr. Starkey received a call from A.B.’s school because A.B. was

having an anxiety attack. He picked her up from school and drove her to the

hospital. On the way, A.B. calmed down and told Mr. Starkey that she did not

want to go into the hospital for treatment.

That evening Mr. and Mrs. Starkey took A.B. to Victory Church, where she

had recently joined a youth group. A religious service at the church was

scheduled for 7:00 p.m. to 9:00 p.m. Mr. Starkey returned to the church at

9:00 p.m. to pick up A.B., but he saw that she was praying with two of the youth

leaders at the church. One of the two leaders told Mr. Starkey that they could

give A.B. a ride home, so Mr. Starkey left A.B. at the church. The leaders

brought A.B. home around 1:00 a.m. The next day Mr. Starkey took A.B. to

school, but he had to take her home because she was having another anxiety

attack. Late that afternoon, Mr. Starkey returned A.B. to Ms. Kozlowski. Two

hours later Ms. Kozlowski took A.B. to the emergency department at Exempla

Lutheran Hospital because she continued to suffer from an anxiety attack.

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About 10 a.m. the next morning, Friday, September 9, Defendant Kintzing

received a call from Ms. Kozlowski. Ms. Kozlowski informed Kintzing that A.B.

had been admitted to the hospital the night before with an anxiety attack.

Kintzing then spoke to Joe O’Cleary, the therapist for the Starkey family, who

told her that he had received a call from Mr. Starkey the day before. Mr. Starkey

had reported to O’Cleary that A.B. was going through “a conversion ritual

reaction” related to having “found [C]hrist,” not an “anxiety attack.” Id. Vol. I at

80. Later that afternoon, Kintzing spoke with Joel Jezek, the West Pines

counselor who had evaluated A.B. upon her admission to the hospital the night

before. (West Pines is a behavioral health center associated with Exempla

Lutheran Hospital.) Kintzing made the following notes on her conversation with

Jezek:

He stated that it took him an hour to get any questions answered and

4 hours to finish the evaluation because of the severe state that she

was in physically and mentally. . . . She spoke briefly about being

saved, but then wouldn’t discuss it. This occurred about 40 times

during the interview. Ms. Kozlowski told them that Mr. Starkey had

a church in his home, and that [A.B.] was prayed over for 2-3 hours

on the 7th of September. [A.B.] had also told him this. . . . . When

asked about a comment that Ms. Kozlowski had made to me about

Mr. Starkey religiously brain abusing them, he stated that he

wouldn’t be surprised. He felt that [A.B.] “has a brainwashing

dynamic goin[g] on that interfaces with her need for approval and

recognition.[”] He stated that her reactions and affect were “the

strangest I have ever seen”, in all of his years of doing psyche evals.

Seemed worse than some of his psychotic patients.

Id. at 83.

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Also on September 9, apparently after Kintzing filed a petition for

protective orders, the state court placed the children in the temporary custody of

Ms. Kozlowski, allowing Mr. Starkey only supervised contact. The next day,

A.B. was admitted to the Colorado Mental Health Institute at Ft. Logan

(Ft. Logan) on a 72-hour mental-health hold. A.B. remained at Ft. Logan until

she was discharged 11 days later.

In the meantime, on Monday, September 12, the state court held a hearing

to consider the protective orders entered on September 9. BCDSS sought

placement of the children in the temporary custody of Ms. Kozlowski with only

supervised contact for Mr. and Mrs. Starkey. The crux of BCDSS’s argument was

that two of the three children had recently suffered anxiety attacks or emotional

breakdowns after their contact with Mr. Starkey. In support of this argument,

BCDSS presented the testimony of two experts, Dr. Michael Stackpool and

Dr. Elisabeth Konlos-Hrobsky.

Dr. Stackpool, the attending physician at Exempla Lutheran’s emergency

department on the night of September 8, testified that he had treated A.B. upon

her admission to the hospital. A.B. had been brought in by her mother for what

A.B. described as a “five-day anxiety attack.” Id. Vol. III at 312. A West Pines

counselor also evaluated A.B. outside Dr. Stackpool’s presence. Dr. Stackpool

was told by the counselor that A.B. had recently returned to her mother’s home

from her first unsupervised visit with her father in ten months, during which she

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had been subjected to a “spiritual cleansing” by Mr. Starkey. Id. at 319.

Dr. Stackpool did not know the source of the counselor’s information but assumed

that he had gotten it from A.B. or Ms. Kozlowski. Dr. Stackpool described A.B.

at the hospital as “tearful,” id. at 315, “babb[ling],” id. at 313, and unable “to talk

about anything other than the reason that she was there was that there were people

dying in New Orleans because of [Hurricane Katrina],” id. at 317. He explained:

She had long, overly-dramatic pauses. Lots of gulping of air, lots of

hyperventilating. Could not get—could not give me any reason for

those behaviors. There was no—and I—and I really believe there

was no way she was gonna be able to talk about anything other than

the Gulf Coast hurricane.

Id. at 317. After evaluating A.B., Dr. Stackpool wrote in his notes: “I feel

strongly that this patient should be involved in counseling and after discussing the

family situation more with the West Pines counselor, I think probably the father

should go back to having supervised visits with his daughter and we have made

this recommendation to Social Services.” Id. at 314 (internal quotation marks

omitted).

Testifying next was Dr. Konlos-Hrobsky, a therapist with a Ph.D. in child

psychology who worked at the Boulder County Mental Health Center. She had

evaluated E.F. the month before at a previously scheduled intake appointment.

She said that when she came out to greet E.F. and Ms. Kozlowski in the waiting

area, “[E.F.] was curled up on one of the chairs.” Id. at 327. Ms. Kozlowski

explained that Mr. Starkey had shown E.F. an Internet site about fatalities caused

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by medication used to treat attention deficit disorder and that E.F. was afraid that

the doctor was going to give him medication that could kill him. Ms. Kozlowski

said that “[E.F.] had been up all night and he had been vomiting and that he was

very anxious about coming to the appointment.” Id. at 327. E.F. confirmed to

Dr. Konlos-Hrobsky that Mr. Starkey had shown him the Internet site that caused

his anxiety.

Mr. Starkey then presented his case. He showed that the West Pines

counselor had provided Dr. Stackpool with at least two items of erroneous

information: First, A.B.’s visit with her father before returning to her mother’s

home had not been her first unsupervised visit with her father in ten months; joint

custody had begun several weeks earlier. Second, any spiritual cleansing to

which A.B. had been subjected while in the custody of her father actually took

place at Victory Church; Mr. Starkey was not directly involved. Pastor Doug

Walker, the youth pastor at Victory Church, testified at the hearing that A.B. had

attended a youth service on the evening of Wednesday, September 7. After the

service he observed two of his youth leaders praying with and ministering to A.B.

He believed that what had happened to A.B. at the church could be described as a

“spiritual cleansing.” Id. at 352.

Counsel for BCDSS asked the court to order that the children remain in the

sole custody of Ms. Kozlowski. In counsel’s view, “whether this thing that

happened on Wednesday the 7th was a spiritual cleansing or not [was] completely

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irrelevant.” Id. at 434. What was important, she said, was “that [A.B.’s] having

this panic attack for what she tells the doctor to [sic] the last five days and she

was with her father for the last five days.” Id. In addition, Mr. Starkey had

frightened E.F. about his medication and “what the end result was, was a child in

the fetal position not even wanting to speak to the evaluator.” Id. at 435. She

argued that removing the children from Mr. Starkey’s custody and allowing only

supervised contact was therefore necessary because “two out of three children

[were] having panic attacks because of contact with their father.” Id. at 435. The

children’s guardian ad litem voiced similar concerns about Mr. Starkey’s effect

on the children.

The judge concluded that it would be in the best interests of the children to

remain in the custody of Ms. Kozlowski. The judge expressed concern about

A.B.’s mental state and E.F.’s behavior. Although little mention of C.D. had been

made at the hearing, the judge concluded that it would be in the best interests of

the children to stay together.

After the judge announced this ruling, the parties discussed a provision in

the petition for protective orders that had sought a prohibition on religious

discussion between Mr. Starkey and the children. BCDSS’s attorney explained:

I think the specific—what we were trying to specifically say was in

the context of doing it in a therapeutic setting with a therapist, that’s

fine. But in a supervised visit when it’s just the dad and the kids

when we don’t really know what’s going on and all of that, to try to

keep the visits a little lighter and focused more on how are you and

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seeing them and letting the more intense issues be dealt with in a

therapeutic setting.

Id. at 452. She later elaborated that there would be no objection to Mr. Starkey’s

responding to religious questions from the children, so long as he did not initiate

the discussion. Mr. Starkey’s attorney objected to any such prohibition as a

violation of the Starkeys’ First Amendment rights.

The judge’s written order specified (1) that temporary custody of the

children be with Ms. Kozlowski, and (2) that Mr. and Mrs. Starkey have

supervised visits with the children. The order did not include any provision

restricting the religious speech of Mr. or Mrs. Starkey with the children. In a

minute order issued the following day, the judge clarified the initial order on this

point:

Mr. Starkey and Mrs. Starkey are allowed a minimum of two

supervised visits a week. During these visits, they are to be sensitive

to the needs of the children and respond to the questions the children

have, the requests the children have, and to re-direct the children

when appropriate. If the children bring up a request to spend time

together in prayer or other religious event, then Mr. and Mrs. Starkey

should respond appropriately—supporting their children's needs and

encouraging their children. The Court is not concerned if anything

religious occurs during visits, the Court is only concerned that the

children leave those visits feeling cared for, supported, and

encouraged by the time spent with the Starkeys.

Aplee. Supp. App. at 777.

On September 21, 2005, A.B. was discharged from Ft. Logan. A.B.’s

discharge report, signed by Nurse Practitioner Mary Hamilton and Dr. Robert

Hernandez, included the statement: “At the time of admission, the patient’s

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social worker expressed deep concern that during the patient’s stay at her father’s,

that she had been ‘brain washed’ religiously by her father who apparently started

his own church a number of years ago and is very heavily into religion.” Aplt.

App. Vol. I at 46. The report recommended that “the family all get help with

these varying problems before the patient would be able to return home.” Id. at

47–48.

On the day of A.B.’s discharge from Ft. Logan, another hearing was held in

state court to determine her placement. BCDSS sought to have A.B. removed

from the custody of both parents and temporarily placed in its custody.

Ms. Kozlowski agreed, but Mr. Starkey sought custody of A.B. The only witness

to testify at the hearing was Mary Hamilton, the psychiatric nurse practitioner

who had treated A.B. at Ft. Logan. She had met daily with A.B. during her stay.

Hamilton expressed concerns about A.B.’s returning to the custody of

either Ms. Kozlowski or Mr. Starkey. According to Hamilton, A.B. “felt like

there was a lot of chaos in the family,” and this had been “overwhelming” to her.

Id. Vol. IV at 481. She explained that A.B. “tries to take responsibility and

emotionally care-take both of her parents.” Id. at 481. Hamilton noted that A.B.

had expressed fear of her father, and that during the ten days of her treatment at

Ft. Logan, she had vacillated between wanting to return to her mother’s home, her

father’s home, or to a foster home. On cross-examination by the Starkeys’

lawyer, Hamilton said that she had received “secondhand information” from a

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“caseworker” that it was Mr. Starkey’s fault that A.B. ended up in the hospital.

Id. at 488–89. But she was not asked to expand on this point. Regardless,

Hamilton’s recommendation that A.B. be placed in a foster home did not rest on

the information that she heard from the caseworker. She expressed her opinion

that if A.B. were to return home to either parent, “she would get right back into

not taking care of herself emotionally and trying to take care of both of her

parents and I think when she does that, her level of stress goes up and she

becomes very overwhelmed.” Id. at 484. The children’s guardian ad litem

accepted Hamilton’s assessment and agreed with the conclusion that placement in

foster care would be in A.B.’s best interests.

The judge agreed, finding it in A.B.’s best interests to be placed in the

custody of BCDSS. The judge found that A.B. needed to be placed in a safe and

stable environment, away from the chaos surrounding her family, in order to take

care of herself. After her discharge from Ft. Logan, A.B. was placed in a group

foster home. Both parents were allowed supervised contact with A.B. E.F. and

C.D. remained in the temporary custody of Ms. Kozlowski.

On November 16, 2005, E.F. and C.D. were placed in the joint physical

custody of both parents, but a week later they were placed in Mr. Starkey’s

custody by agreement of the parties. On December 12 Mr. Starkey submitted to

the district court an evaluation from a treating therapist and an affidavit from the

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therapist in support of A.B.’s placement in his custody. On December 23 the

district court entered an order placing custody of A.B. with Mr. Starkey.

II. DISCUSSION

The Starkeys claim violations of three constitutional rights: their

Fourteenth Amendment substantive-due-process rights to family integrity, their

First Amendment rights to the free exercise of religion, and the children’s

Fourteenth Amendment substantive-due-process rights to a reasonably safe and

secure environment while in government custody. The district court held that the

claims against BCDSS and the individual Defendants in their official capacities

were barred by Eleventh Amendment sovereign immunity because BCDSS is an

arm of the state. It also granted summary judgment to the individual Defendants

in their personal capacities. As to Defendants Smith, Park, Baldwin, and Russell,

the court ruled that the Starkeys had not provided evidence that any of them had

violated the Starkeys’ constitutional rights. The court made the same ruling with

respect to Defendant Miller, but also relied on the issue-preclusive effect of the

state court’s findings relating to the period of time that Miller worked on the

Starkeys’ case. Finally, the court concluded that Defendant Kintzing was

protected by qualified immunity because the uncontradicted evidence showed that

her conduct was “objectively reasonable in light of the information she possessed

at the time.” Aplt. App. Vol. V at 745. On appeal the Starkeys contend (1) that

Eleventh Amendment sovereign immunity is not applicable because BCDSS is an

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arm of local goverment and (2) that the district court erred in granting summary

judgment to the individual Defendants in their personal capacities. They also

challenge the district court’s ruling that struck portions of affidavits that they

submitted in support of their claims.

First, we affirm the district court’s ruling on the affidavits. We then affirm

the summary judgments entered in favor of the individual Defendants in their

personal capacities because the evidence on which the Starkeys rely does not

support the allegations that their constitutional rights were violated. In the

absence of a constitutional violation, neither BCDSS nor the individual

Defendants in their official capacities can be held liable, so we can affirm

judgment in their favor without deciding whether they are entitled to Eleventh

Amendment sovereign immunity.

A. Affidavits

Mr. Starkey, Mrs. Starkey, and A.B. submitted affidavits with their

response to Defendants’ summary-judgment motion. Defendants moved to strike

the affidavits on various grounds. In ruling on the motion the district court first

noted “that the affidavits do not appear to be sworn before someone who is

authorized to administer an oath and may be stricken sua sponte on that basis

alone.” Id. Vol. V at 732. But because Defendants had not objected to the

affidavits on this ground, the court proceeded through the affidavits line by line,

striking portions that (1) were not based on personal knowledge, (2) were mere

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speculation, (3) were inadmissible hearsay, or (4) were conclusions of law or

ultimate fact. The Starkeys challenge the court’s decision to strike portions of the

affidavits.

The Starkeys’ challenge, however, is inadequate. The only ground for

striking that they confront is lack of personal knowledge; they contend that the

affidavits “clearly demonstrate personal knowledge.” Aplt. Br. at 19. But every

statement in the affidavits that was stricken for lack of personal knowledge was

also stricken for one or more other reasons. The Starkeys’ briefs on appeal do not

address these other reasons. When an appellant does not challenge a district

court’s alternate ground for its ruling, we may affirm the ruling. See Bones v.

Honeywell Int’l, Inc., 366 F.3d 869, 877 (10th Cir. 2004) (affirming on district

court’s alternate ground for judgment that was not addressed in appellant’s brief

on appeal); Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152,

1175 (10th Cir. 2002) (we do not address issues not adequately briefed). We

therefore reject the Starkeys’ challenge to striking portions of the affidavits.

B. 42 U.S.C. § 1983 Claims Against BCDSS Employees In Their

Personal Capacities

We review the district court’s grant of summary judgment de novo. See

Pignanelli, 540 F.3d at 1216. Summary judgment “should be rendered if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

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1. Family-Integrity Claim

The Starkeys contend that Defendants violated their substantive-due-

process rights to family integrity by depriving Mr. and Mrs. Starkey of custody

and contact with the children. “[T]he Due Process Clause of the Fourteenth

Amendment protects the fundamental right of parents to make decisions

concerning the care, custody, and control of their children.” Troxel v. Granville,

530 U.S. 57, 66 (2000). See J.B. v. Washington County, 127 F.3d 919, 927 (10th

Cir. 1997) (“[The] right of familial association [of plaintiffs, a mother and child,]

is included in the substantive due process right of freedom of intimate

association . . . .”). But this right to family integrity “has never been deemed

absolute or unqualified.” Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir.

1994). “Courts have recognized that the constitutional right to familial integrity

is amorphous and always must be balanced against the governmental interest

involved.” Id.

We need not resolve the dispute between the parties regarding whether the

government’s interest in the welfare of the children outweighed the Starkeys’

rights to family integrity. We are persuaded by Defendants’ alternative defense

that if there was any interference with the Starkeys’ constitutional rights,

Defendants did not cause it. They correctly assert that “[t]he [state] court made

every significant decision about custody, visitation and treatment.” Aplee. Br. at

21. The Starkeys do not contest that the evidence presented to the state court was

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sufficient to justify the court orders removing custody and limiting contact.

Rather, they contend that the “orders were entered based upon the knowingly

false statements made by Defendants to caregivers, which were then repeated as

hearsay to the court.” Aplt. Br. at 17. In other words, they claim that the court

orders were fraudulently induced by Defendants.

We will assume for purposes of this appeal that it would be a constitutional

violation for Defendants to have obtained the state-court orders through the

presentation of fabricated evidence. Cf. Malik v. Arapahoe County Dept. of Soc.

Servs., 191 F.3d 1306, 1316 (10th Cir. 1999) (government officials’ procurement

of court order to seize a child “‘through distortion, misrepresentation, and

omission’” was a violation of the Fourth Amendment). The evidence relied upon

by the Starkeys, however, does not create a genuine issue that the state court’s

decisions were based on evidence knowingly falsified by Defendants.

Four separate court proceedings are at issue: (1) on August 25, 2004, the

state court ordered that legal custody of the children be placed with BCDSS and

that Mr. Starkey have only supervised contact with the children; (2) a year later,

on September 9, 2005, the state court ordered that temporary custody of the

children be placed with Ms. Kozlowski and that Mr. Starkey have only supervised

contact with the children; (3) on September 12, 2005, the state court affirmed its

order placing the children in the temporary custody of Ms. Kozlowski and limited

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the contact of both Mr. and Mrs. Starkey; and (4) on September 21, 2005, the

state court ordered that custody of A.B. be placed with BCDSS.

It is not clear from the Starkeys’ briefing whether they allege that

Defendants obtained the first order, in August 2004, through fraudulent means.

They do allege that Defendants knew that the children’s allegations about their

father were false. But there is no evidence that Defendants had received any

information that the children had made false allegations about their father until

the children recanted some of their allegations in May 2005, nine months after the

first order. The Starkeys have directed us to no evidence in the record that

Defendants fabricated evidence to obtain this first order.

The Starkeys allege that the remaining three orders, which were entered in

September 2005, were obtained only because Defendants “invented” a claim that

Mr. Starkey had subjected A.B. to a “coercive ‘spiritual cleansing’” that resulted

in her hospitalization. Aplt. Br. at 3–4. According to the Starkeys, Defendants

provided this false information to the children’s caretakers, who then repeated it

through their testimony to the court. In support of these allegations, the Starkeys

direct us to (1) Dr. Stackpool’s September 12 testimony (as described by the

Starkeys) that A.B. “had a history of emotional abuse by her father, that she had

just returned [to his home] after a ten-month hiatus, and [that] she had just been

subjected to a ‘spiritual cleansing’ [by her father],” id. at 4; (2) a notation in

A.B.’s discharge report from Ft. Logan that states: “At the time of admission, the

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patient’s social worker expressed deep concern that during the patient’s stay at

her father’s, that she had been ‘brain washed’ religiously by her father who

apparently started his own church a number of years ago and is very heavily into

religion,” Aplt. App. Vol. I at 46; and (3) Hamilton’s testimony at the

September 21 hearing that she had received “secondhand information” from a

“caseworker” that it was Mr. Starkey’s fault that A.B. ended up in the hospital, id.

Vol. IV at 488–89. 2

The statements upon which the Starkeys rely contain seven factual

assertions: (1) that Mr. Starkey had a history of emotionally abusing the children;

(2) that A.B.’s hospitalization occurred immediately after her first unsupervised

visit with Mr. Starkey in ten months; (3) that A.B. had been subjected to a

spiritual cleansing by Mr. Starkey; (4) that A.B. had been brainwashed by

Mr. Starkey; (5) that Mr. Starkey started his own church; (6) that Mr. Starkey was

heavily into religion; and (7) that A.B.’s hospitalization was caused by

Mr. Starkey. For one of these assertions to support the Starkeys’ claim that the

court’s orders were caused by Defendants’ concoction of false evidence, the

Starkeys would have to prove (1) that the assertion was false, (2) that Defendants

were the source of the assertion, (3) that Defendants knew the assertion to be

2

The Starkeys also contend that Defendant Kintzing suggested to A.B. that

Mr. Starkey had raped her and told her not to defend her father. They fail,

however, to tie that allegation to any constitutional claim; indeed, they recite no

harmful consequences from the alleged statement. Therefore, we need not

address it further.

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false, and (4) that the state court relied on the assertion in rendering one of its

orders. As we now proceed to show, none of the assertions satisfies all four

conditions.

Two of the seven assertions (numbers 5 and 6) are not contestable, or at

least not contested by the Starkeys. That Mr. Starkey was “heavily into religion,”

id. Vol. I at 46, is established by the Starkeys’ briefs on appeal, as well as by the

record. As for the assertion that Mr. Starkey “started his own church a number of

years ago,” id., Mr. Starkey testified on direct examination during the September

12 hearing that he and Mrs. Starkey had “worship service[s]” in their home. Id.

Vol. III at 376. The children’s guardian ad litem pursued the matter in the

following exchange:

Q: Mr. Starkey, I want to talk about the religious

environment in your home. In fact, there’s a church in

your basement; is that correct?

A: I have no basement.

Q: Okay. Where you have service at your house?

A: Yes.

Q: And when the children are there, they participate in the

service, correct?

A: No.

Q: They do not?

A: Nope.

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Q: How many mem—how many individuals do you have in

the congregation?

A: I no longer have any members in my congregation. In

the—

Q: You indicated—

A: —past—

Q: —earlier in your testimony that you do not speak as a

pastor, that Bedra speaks?

A: Yes, I have been preaching outside of my home for the

past year in other men’s churches.

Court: I’m sorry, in other what?

A: Other men’s churches. I’m a back-up—I’m a back-up

pastor and preacher to the Denver Rescue Mission.

Court: Oh.

Q: So who does Bedra speak to?

A: Since we haven’t had any members for quite some time,

she preaches to me.

Q: Outside of the presence of the children?

A: The children haven’t been home. For the last five

weeks, they have not participated because they are not

there on Sunday nights. So they—they have only

been—well, it’s been over a year.

Id. at 410–11. Mr. Starkey has not specifically denied that he started his own

church, and his testimony certainly suggests that he did so.

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As for assertions 1 and 4, the Starkeys have failed to present evidence that

Defendants concocted the allegations that Mr. Starkey had a history of

emotionally abusing the children or that he had brainwashed them. The children

reported physical and emotional abuse to BCDSS in August 2004. Although the

children later claimed that their initial allegations against their father had been

exaggerated, they did not fully recant. Moreover, Mr. Starkey pleaded no contest

to criminal charges of child abuse stemming from the children’s allegations in

2004. And Dr. Pinto’s evaluation in October 2004 stated that Mr. Starkey was

“an abusive individual, both physically, emotionally and spiritually.” Aplt. App.

Vol. II at 234. Perhaps Mr. Starkey did not emotionally abuse his children, but

the evidence in the record could not support a finding that any Defendant

knowingly made a false charge of such abuse.

The same can be said with respect to the brainwashing assertion. The only

evidence that any Defendant alleged that Mr. Starkey had brainwashed the

children appears in A.B.’s discharge report from Ft. Logan on September 21,

2005. But before A.B.’s admission to Ft. Logan, Kintzing had substantial

information that would support such an allegation: Ms. Kozlowski told Kintzing

that Mr. Starkey had “religiously brain abu[sed]” the children in the past, id. Vol.

I at 83. Also, the West Pines counselor reported to Kintzing that Ms. Kozlowski

had told him that “Mr. Starkey had a church in his home, and that A.B. was

prayed over for 2-3 hours on the 7th of September,” id., and that he was

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concerned that A.B. had “a brainwashing dynamic goin[g] on,” id. This record

cannot support the Starkeys’ assertion that Defendants fabricated the allegation

that A.B. had been brainwashed by her father.

Turning to assertions 2 and 3, the Starkeys have presented no evidence that

Defendants were the source of the (inaccurate) statements that A.B. had her first

unsupervised visit with her father immediately before her hospitalization and that

Mr. Starkey had subjected her to a spiritual cleansing. These inaccurate

statements were made by Dr. Stackpool in his testimony on September 12, 2005.

The Starkeys contend that Dr. Stackpool testified that he “did not know the source

of [these] allegations, but that they would not have come from the child’s birth

mother.” Aplt. Br. at 4. The record is to the contrary. Dr. Stackpool testified

that he treated A.B. upon her admission to the emergency department, that a West

Pines counselor evaluated her outside his presence, and that he learned from that

counselor that A.B. had just had her first unsupervised visit with Mr. Starkey in

ten months, during which she had been subjected to a “spiritual cleansing” by her

father. Aplt. App. Vol. III at 319. Dr. Stackpool said that he did not know the

source of the counselor’s information, but he assumed that the counselor obtained

it from A.B. or Ms. Kozlowski. Kintzing did not learn of A.B.’s hospitalization

until Ms. Kozlowski called her the following morning. Nothing suggests that any

Defendant was the source of Dr. Stackpool’s misinformation, directly or

indirectly. (We also note that the factual errors in Dr. Stackpool’s testimony were

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corrected during the Starkeys’ later presentation of their case at the same hearing.

Mr. Starkey testified that joint custody had begun several weeks before A.B.’s

hospitalization; and Pastor Walker testified that the “spiritual cleansing” had

occurred at Victory Church, id. at 352, and that Mr. Starkey was not directly

involved.)

One assertion (number 7) remains—that Mr. Starkey caused A.B.’s

hospitalization. The only “evidence” that any BCDSS employee made such an

assertion was elicited during the Starkeys’ cross-examination of Hamilton, the

psychiatric nurse who testified at the final hearing, on September 21, 2005. The

Starkeys’ attorney asked Hamilton whether A.B. had ever “told somebody else

something that would indicate that it was her father’s responsibility that she had

ended up in the hospital.” Id. at 488. Hamilton responded that she had heard

“secondhand information about that” from “her caseworker.” Id. at 488–49. The

Starkeys’ attorney did not have Hamilton expand on this point. Such vague

testimony cannot support a claim that a Defendant alleged that Mr. Starkey

caused her hospitalization.

Moreover, and perhaps more importantly, the Starkeys have failed to show

that any false information from Defendants influenced the state court in issuing

the various orders that interfered with the Starkeys’ family integrity. To begin

with, the Starkeys have utterly failed to show what evidence and argument, if any,

was presented to the state court on September 9, 2005, when the court ordered

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that temporary custody of the children be placed with Ms. Kozlowski and that

Mr. Starkey have only supervised contact with them. As for the September 12

order, which affirmed placement of the children in the temporary custody of

Ms. Kozlowski and limited their contact with Mr. and Mrs. Starkey, we have a

transcript of the proceedings, but nothing suggests that false information from

Defendants played a role. Dr. Stackpool’s opinion was based on his observations

of A.B. at the hospital—that she was tearful, babbling, and focused on Hurricane

Katrina—and on the information that he learned from the West Pines counselor

(none of which can be traced to a BCDSS employee). Furthermore, there is no

evidence that Dr. Stackpool’s opinion was anything other than his own,

independent conclusion. As for the factual errors in Dr. Stackpool’s testimony

(regarding when Mr. Starkey had begun having unsupervised visits and whether

he participated in the “spiritual cleansing”), they were corrected later in the

proceeding; it would be pure speculation to say that they affected the court. The

other expert who testified at the hearing, Dr. Konlos-Hrobsky, based her opinion

on her observations of E.F. a month before A.B.’s hospitalization. She testified

about E.F.’s disturbed emotional state after Mr. Starkey had shown him an

Internet site that mentioned fatalities caused by medication used to treat attention

deficit disorder. There is no evidence to support an inference that she was

influenced by an allegation or opinion stated by BCDSS personnel.

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Finally, the state-court order on September 21, placing A.B. in the custody

of BCDSS, was based on the expert testimony of Mary Hamilton, a psychiatric

nurse at Ft. Logan, who was the only witness to testify at the hearing. Her

opinion was clearly based on her daily meetings with A.B., not on reports by

BCDSS. And her opinions made no reference to the matters that are the source of

the Starkeys’ allegations. She testified that the “chaos” in A.B.’s family was

“overwhelming to [A.B.],” and that, over the course of ten days, A.B. had

expressed a desire to be placed with her mother, with her father, and in foster

care. Id. Vol. IV at 481. Hamilton noted that A.B.’s “disorganized thinking and

level of stress h[ad] decreased quite a bit” during her time at Ft. Logan, id. at 479,

but she concluded that “it would be most appropriate for her to go to foster

placement,” id. at 483. She doubted the wisdom of placing A.B. with either

parent:

My concern would be that she would get right back into not taking

care of herself emotionally and trying to take care of both of her

parents and I think when she does that, her level of stress goes up

and she becomes very overwhelmed. And I think right now that, you

know, we just got her stabilized and I think that if she was in a

neutral place for a period of time, that that would allow her to

become even more stable and kind of sort through some issues.

Id. at 484. The state court relied on Hamilton’s testimony when explaining its

decision. After noting that A.B. “had changed her mind three times about where

she wants to be” during her stay at Ft. Logan, id. at 516, the court concluded that

it would be in A.B.’s best interests to be placed in foster care:

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A.B. needs to take care of herself. She needs to get well. She needs

to be removed from the chaos. . . . She needs to get off of the roller

coaster ride. She needs to feel safe and stable so that she can work

on things that 14-year-old kids work on. Not on taking care of your

parents because they have a really high conflict divorce. She needs

to be 14 and we need to get her there.

Id. at 518. On this record, the Starkeys have not shown that anything a Defendant

may have reported had any effect on Hamilton’s testimony or on the state court’s

order.

In sum, the Starkeys have failed to raise a genuine issue that the state-court

orders were fraudulently induced by Defendants. Accordingly, we affirm the

summary judgment for the individual Defendants in their personal capacities on

the Starkeys’ family-integrity claim.

2. Free-Exercise Claim

The Starkeys also contend that Defendants violated their First Amendment

rights to the free exercise of religion. “The free exercise of religion means, first

and foremost, the right to believe and profess whatever religious doctrine one

desires.” Employment Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872,

877 (1990) (internal quotation marks omitted). Thus, the government may not

“impose special disabilities on the basis of religious views.” Id.

The Starkeys allege that Defendants conspired to deprive Mr. and

Mrs. Starkey of custody and contact with the children “because of their

disapproval of [the Starkeys’] Pentecostal or ‘fundamentalist’ religious beliefs.”

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Aplt. Br. 11. The Starkeys, however, point to very little record support for their

contention that Defendants’ conduct was motivated by religious bias. The only

evidence they cite in their briefs on appeal is the notation in A.B.’s discharge

report from Ft. Logan, which states: “At the time of admission, the patient’s

social worker expressed deep concern that during the patient’s stay at her father’s,

that she had been ‘brain washed’ religiously by her father who apparently started

his own church a number of years ago and is very heavily into religion.” Aplt.

App. Vol. I at 46. 3 Perhaps in isolation this statement might suggest Defendants’

bias. But here the statement was made as A.B. was being hospitalized in an

emotionally devastated state after suffering from what she described as a “five-

day anxiety attack,” id. Vol. III at 312, and being subjected to what her pastor

described as a “spiritual cleansing,” id. at 352. Moreover, Kintzing had been told

by two of A.B.’s caretakers—Ms. Kozlowski and the West Pines counselor—that

“Mr. Starkey had a church in his home,” “[A.B.] was prayed over for 2-3 hours on

the 7th of September,” A.B. may have had “a brainwashing dynamic goin[g] on,”

and “Mr. Starkey had ‘religiously brain abus[ed]” the children in the past. Id.

Vol. I at 83. In addition, Kintzing had learned from the Starkey family therapist

that Mr. Starkey had described A.B. as “going through a conversion ritual

3

The Starkeys’ opening brief refers to other alleged evidence of religious

bias, but the portions of the record that they cite do not contain the described

evidence. They also cite an assertion in Mrs. Starkey’s affidavit that Defendants

were motivated by religious bias. But the district court struck that assertion.

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reaction.” Id. at 80. In this context, particularly when the discharge report made

no comment about the nature of the Starkeys’ religious beliefs, an inference of

religious bias is a stretch.

In any event, the Starkeys cannot support a claim that any adverse

consequences resulted from this alleged bias. Their sole claim of injury from the

religious bias is the deprivation of Mr. and Mrs. Starkey’s custody of and contact

with the children. But, as we have already explained in rejecting the Starkeys’

family-integrity claim, they have pointed to no evidence that Defendants caused

these deprivations. Rather, the state court ordered the deprivations based on the

testimony of independent professionals who had treated the children and

concluded that restrictions on custody and contact would be in the children’s best

interests. As a result, the Starkeys’ claim must fail, and the district court properly

granted summary judgment to the individual Defendants in their personal

capacities.

3. Safe-And-Secure-Environment Claim

The Starkeys’ complaint alleged: “During the period from September 12,

2005 to December, 2005, Ms. Park, Ms. Kintzing and/or Ann Baldwin repeatedly

endeavored to force the children in foster care or their mother’s care, despite the

obvious physical and emotional dangers of such placement.” Id. at 14 ¶ 15. They

may have been attempting to state a claim that Defendants violated the children’s

substantive-due-process rights to placement in a reasonably safe and secure

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environment while in the custody of BCDSS. See Yvonne L. v. N.M. Dep’t of

Human Servs., 959 F.2d 883, 892–93 (10th Cir. 1992) (recognizing constitutional

right to reasonably safe conditions in foster care). And they appear to be

referring to such a claim when they assert in their opening brief on appeal that

“the children have been subjected to horrific living conditions, and [A.B.]. . . .

has been subjected to emotional and sexual abuse in foster care.” Aplt. Br. at 6.

That brief, however, cites no evidence in the record that would support such a

claim. The only cite in support is a portion of A.B.’s affidavit, but the district

court struck the relevant language from the affidavit, and we have affirmed the

court’s ruling. Accordingly, the Starkeys’ claim lacks evidentiary support, and

we must affirm the judgment in favor of the individual Defendants in their

personal capacities. See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th

Cir. 1995) (refusing to consider “unsubstantiated allegations” on appeal).

Although the Starkeys’ reply brief cites additional evidence in support of

their safe-environment claim, we decline to consider that evidence. “This court

does not ordinarily review issues raised for the first time in a reply brief.” Stump

v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). This rule protects us “from

publishing an erroneous opinion because we did not have the benefit of the

appellee’s response.” Id. The same rationale applies when the only evidence

supporting a claim is not cited until the reply brief. See Hrobowski v.

Worthington Steel Co., 358 F.3d 473, 478 (7th Cir. 2004) (reply brief’s citations

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to the record “[came] too late”); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.

1994) (designating specific portions of record (to support opposition to summary

judgment) for first time in reply brief “[came] far too late”).

C. 42 U.S.C. § 1983 Claims Against BCDSS And Employees In

Their Official Capacities

The district court dismissed the Starkeys’ § 1983 claims against BCDSS

and the six BCDSS employees in their official capacities on the ground that

BCDSS is an arm of the state of Colorado protected by Eleventh Amendment

sovereign immunity. See Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir.

2000) (“[T]he arm-of-the-state doctrine bestows [Eleventh Amendment sovereign]

immunity on entities created by state governments that operate as alter egos or

instrumentalities of the states.” (internal quotation marks omitted)); Watson v.

Univ. of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir. 1996) (employees of entity

that is found to be an arm of the state, who are sued in their official capacities,

also entitled to Eleventh Amendment sovereign immunity). BCDSS and its

employees urge us to affirm the dismissal on this ground.

Ordinarily, we would have to resolve the sovereign-immunity question

before addressing the merits of the claim, even if the sovereign-immunity

question were difficult and we could easily decide the merits in favor of the

defendants. See Martin v. Kansas, 190 F.3d 1120, 1126 (10th Cir. 1999) (state’s

assertion of sovereign immunity must be resolved before addressing merits of

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underlying claim), overruled on other grounds by Bd. of Trustees of Univ. of Ala.

v. Garrett, 531 U.S. 356 (2001). This requirement follows from the jurisdictional

nature of Eleventh Amendment sovereign immunity, see Brockman v. Wyo. Dep’t

of Family Servs., 342 F.3d 1159, 1163 (10th Cir. 2003) (Eleventh Amendment

sovereign immunity “is a threshold jurisdictional issue”), and a court’s lack of

authority to decide the merits of a claim unless it has jurisdiction to hear it. In

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), the Supreme

Court expressly barred the practice of exercising “hypothetical jurisdiction,” id. at

101, under which a court, without resolving whether it had jurisdiction, would

assume that it had jurisdiction and then dispose of the case by ruling that the

claim failed on its merits, see id. at 94. Such a ruling, said Steel Co., amounted to

a prohibited “advisory opinion.” Id. at 101.

Nevertheless, we need not decide the sovereign-immunity question before

us because Steel Co. recognized an exception to the general rule—that jurisdiction

must be established before turning to the merits—that applies here. Occasionally

a court may rule that a party loses on the merits without first establishing

jurisdiction because the merits have already been decided in the court’s resolution

of a claim over which it did have jurisdiction. In that circumstance, resolution of

the merits is “foreordained,” id. at 98, so the court is not producing an advisory

opinion. Rather, it is merely parroting a prior decision. Such parroting is not an

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improper aggrandisement of power by the court. The court is not overreaching to

decide an issue; after all, the issue has already been decided.

Steel Co. acknowledged that the Supreme Court had previously acted in

accordance with this “foreordained” exception. Id. at 98-100. Two cases, Norton

v. Mathews, 427 U.S. 524 (1976), and Secretary of Navy v. Avrech, 418 U.S. 676

(1974), are particularly instructive. In Norton the Supreme Court heard a direct

appeal from a three-judge district court. See 427 U.S. at 528. Although faced

with a jurisdictional question—whether the action was properly brought in the

three-judge district court rather than in an ordinary district court—the Court

found it unnecessary to resolve this “difficult and perhaps close” question. Id. at

530. The merits of Norton had been decided in a companion case, Mathews v.

Lucas, 427 U.S. 495 (1976). Thus, resolution of the jurisdictional question could

have no effect on the outcome. As the Supreme Court later explained:

If the three-judge court had been properly convened, we would have

affirmed, and if not, we would have vacated and remanded for a fresh

decree from which an appeal could be taken to the Court of Appeals,

the outcome of which was foreordained by Lucas.

Steel Co., 523 U.S. at 98. Steel Co. approved of this analysis because “Norton

did not use the pretermission of the jurisdictional question as a device for

reaching a question of law that otherwise would have gone unaddressed.” Id.

The question of law had already been decided in the companion case.

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Similarly, in Avrech the Court declined to address the jurisdictional issue

before it because “an intervening Supreme Court decision [had] definitively

answered the merits question.” Steel Co., 523 U.S. at 98–99. After oral argument

on the merits, the Court had directed the parties to submit supplemental briefing

on the jurisdictional issue. See Avrech, 418 U.S. at 677. Before resolving the

jurisdictional issue, however, it decided Parker v. Levy, 417 U.S. 733 (1974),

which had been argued on the same day as Avrech. Because Parker “would

require reversal of the Court of Appeals’ decision on the merits,” Avrech, 418

U.S. at 678, the Court recognized that it was not necessary to resolve the

jurisdictional issue before it. It observed that “even the most diligent and zealous

advocate could find his ardor somewhat dampened in arguing a jurisdictional

issue where the decision on the merits is thus foreordained.” Id.

Steel Co. did not say that the peculiar circumstances of these cases were the

only ones in which the merits could be addressed without first finding

jurisdiction. In fact, two of the five members of the Steel Co. majority explained

that “the Court’s opinion should not be read as cataloging an exhaustive list of

circumstances under which federal courts may exercise judgment in reserving

difficult questions of jurisdiction when the case alternatively could be resolved on

the merits in favor of the same party.” Steel, 523 U.S. at 110–11 (O’Connor, J.,

concurring, joined by Kennedy, J.) (ellipses and internal quotation marks

omitted).

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Several circuit courts have applied the “foreordained” exception. In Center

for Reproductive Law & Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), the Second

Circuit found it unnecessary to determine whether a domestic nongovernmental

organization (NGO) and its staff attorneys had Article III standing to challenge

the constitutionality of a policy requiring foreign NGOs receiving U.S.

government funds “to agree not to perform or actively promote abortion as a

method of family planning,” id. at 188. The policy, established in 1984 by

President Ronald Reagan’s administration, had been suspended by the

administration of President Bill Clinton, only to be reinstated by the

administration of President George W. Bush in 2001. Id. at 187–88. In Planned

Parenthood Federation of America, Inc. v. Agency for International Development,

915 F.2d 59 (2d Cir. 1990), the Second Circuit had addressed an identical

constitutional challenge to the same policy when it was implemented by Reagan

and before it was rescinded by Clinton. Planned Parenthood had rejected the

challenge on the merits, and no Supreme Court decision handed down in the

interim would “alter[] its precedential value.” Bush, 304 F.3d at 190. Thus, the

outcome of Bush was “foreordained” by Planned Parenthood. Id. at 195 (internal

quotation marks omitted). The Second Circuit held “that where, as here, a

governmental provision is challenged as unconstitutional, and a controlling

decision of this Court has already entertained and rejected the same constitutional

challenge to the same provision, the Court may dispose of the case on the merits

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without addressing a novel question of jurisdiction.” Id. at 195. It observed that

“where the precise merits question has already been decided in another case by

the same court, it is adjudication of the standing issue that resembles an advisory

opinion.” Id.

In Seale v. INS, 323 F.3d 150 (1st Cir. 2003), the First Circuit also

bypassed a jurisdictional question because circuit precedent conclusively resolved

the merits issue. An alien had petitioned the district court for a writ of habeas

corpus under 28 U.S.C. § 2241, asserting that a deportation order based on his

1987 aggravated-felony conviction violated the Ex Post Facto and Double

Jeopardy Clauses. Id. at 151. The INS contended that the district court lacked

subject-matter jurisdiction to hear the alien’s petition and that his objections to

the order of removal failed on their merits. Id. The First Circuit chose not to

address the district court’s conclusion that it had jurisdiction to hear the petition

under 28 U.S.C. § 2241. Id. at 152. Instead, the appellate court concluded that

its decision in Sousa v. INS, 226 F.3d 28 (1st Cir. 2000), conclusively resolved

the merits. The court explained:

(1) the question of whether the district court has subject matter

jurisdiction is close and, for us, one of first impression; and (2)

precedent already existing in this circuit . . . conclusively resolves

against [the alien] his objections to the order of removal; our merits

ruling here is thus “foreordained” and does not create new precedent.

In such circumstances, the rule in Steel Co. requiring a definitive

jurisdictional assessment may be circumvented.

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Seale, 323 F.3d at 152. See also United States v. Skeffery, 283 F. App’x 75,

77–78 (3d Cir. 2008); 21st Century Teleses Joint Venture v. FCC, 318 F.3d 192,

202–03 (D.C. Cir. 2003) (Williams, J., concurring). But see 21st Century, 318

F.3d at 197 (majority opinion).

Finally, the case most similar to the one before us is a precedent from this

circuit, Carolina Casualty Insurance Co. v. Pinnacol Assurance, 425 F.3d 921

(10th Cir. 2005). The lawsuit arose out of a prior suit by Jeremy Dymowski, a

mentally disabled person who worked on a church clean-up crew for Rocky

Mountain Job Opportunity Brigade (RMJOB). See id. at 923. He sued RMJOB in

tort after being injured at work. See id. RMJOB’s general liability insurer,

Carolina Casualty, settled the claim, but only after RMJOB’s workers’

compensation carrier, Pinnacol Assurance, refused to participate in settlement

negotiations. See id. Contending that Pinnacol’s refusal violated the Americans

with Disabilities Act (ADA) and obligations under state law, Carolina Casualty

and Denver Fox, the president of RMJOB, sued Pinnacol. See id. at 925. The

district court granted summary judgment to Pinnacol. See id. On appeal Pinnacol

argued that it should prevail on the merits and that both plaintiffs lacked Article

III standing. See id. Both Carolina Casualty and Fox agreed that their claims

failed unless Pinnacol had a duty to provide coverage to RMJOB with respect to

Mr. Dymowski’s suit. See id. We held that Carolina Casualty had Article III

standing, see id. at 927, but that its claims failed because Pinnacol had no such

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duty, see id. at 932. As for Fox, we relied on the authority cited above and held

that we need not resolve whether he had Article III standing because our

resolution of the merits of Carolina Casualty’s claim—in which we ruled that

Pinnacol had no duty to provide coverage to Dymowski—“foreordain[ed]” that

Fox would lose on the merits. Id. at 927–28.

In short, in Carolina Casualty we had jurisdiction to resolve the merits of

the claim of one plaintiff, and our decision on that claim foreordained that the

claim of the other plaintiff would also fail. It was therefore unnecessary for us to

determine whether we had jurisdiction over the second claim.

In the present case we are not addressing claims by two different plaintiffs

against the same defendant, but rather claims by the same plaintiffs against two

different (sets of) defendants. The principle, however, is identical. We have

resolved that the individual Defendants in their personal capacities did not violate

any constitutional right of the Starkeys. But under the Starkeys’ complaint,

BCDSS and the individual Defendants in their official capacities could be held

liable only if there was an underlying constitutional violation—that is, only if at

least one of the Defendants in a personal capacity had violated at least one of the

Starkeys’ constitutional rights. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th

Cir. 2006) (“[M]unicipality may not be held liable where there was no underlying

constitutional violation by any of its officers.”). Therefore, the Starkeys are

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foreordained to lose on their remaining claims, 4 and we need not decide whether

the Eleventh Amendment deprives us of jurisdiction over those claims.

V. CONCLUSION

We AFFIRM the judgment of the district court.

4

We recognize that judgment in favor of the individual Defendants in their

personal capacities would not necessarily bar a claim against BCDSS (or the

individual defendants in their official capacities). Even if they had violated one

of the Starkeys’ constitutional rights (in which case BCDSS might be liable), they

would be protected by qualified immunity if the constitutional right had not been

clearly established at the time of their conduct. See Buck v. City of Albuquerque,

549 F.3d 1269, 1277 (10th Cir. 2008). Qualified immunity, however, is available

only in suits against officials sued in their personal capacities, not in suits against

governmental entities or officials sued in their official capacities. See Beedle v.

Wilson, 422 F.3d 1059, 1069 (10th Cir. 2005). Thus, it is essential to our analysis

that the ground for affirming judgment in favor of the individual Defendants in

their personal capacities was that there was no constitutional violation.

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