PJ Ex Rel. Jensen v. Wagner

FILED

United States Court of Appeals

Tenth Circuit

May 5, 2010

PUBLISH Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PJ, a minor, by and through his

parents and natural guardians Barbara

and Daren Jensen; DAREN JENSEN,

individually; BARBARA JENSEN,

individually,

Plaintiffs - Appellants/

Cross - Appellees,

v. No. 08-4197, 08-4206

LARS M. WAGNER, in his individual

capacity; KAREN H. ALBRITTON, in

her individual capacity,

Defendants - Appellees/

Cross - Appellants,

and

KARI CUNNINGHAM, in her

individual capacity; RICHARD

ANDERSON, in his individual and

official capacities; SUSAN

EISENMAN, in her individual

capacity,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D. Ct. No. 2:05-CV-00739-TS)

Karra J. Porter (Roger P. Christensen and Sarah E. Spencer, with her on the

briefs), Christensen & Jensen, P.C., Salt Lake City, Utah, appearing for

Appellants/Cross-Appellees.

Andrew M. Morse (David G. Williams and R. Scott Young, with him on the

briefs), Snow, Christensen & Martineau, Salt Lake City, Utah, appearing for

Appellees/Cross-Appellants Wagner and Albritton.

Bridget K. Romano, Assistant Attorney General (Mark L. Shurtleff, Utah

Attorney General, with her on the brief), Office of the Attorney General for the

State of Utah, Salt Lake City, Utah, appearing for Appellees Cunningham,

Anderson, and Eisenman.

Before TACHA, ALARCÓN, * and TYMKOVICH, Circuit Judges.

TACHA, Circuit Judge.

There is perhaps no more delicate constitutional barrier protecting

individual freedom from governmental interference than that which protects

against state interference with parental autonomy. The Supreme Court has long

recognized that “[t]he child is not the mere creature of the state,” Pierce v.

Society of Sisters, 268 U.S. 510, 535 (1925), and that “the custody, care and

nurture of the child reside first in the parents, whose primary function and

freedom include preparation for obligations the state can neither supply nor

hinder.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). It is also well-

*

Honorable Arthur L. Alarcón, Senior Circuit Judge, United States Court of

Appeals for the Ninth Circuit, sitting by designation.

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settled, however, that “[a] democratic society rests for its continuance upon the

healthy, well-rounded growth of young people into full maturity,” and that states

“may secure this against impeding restraints and dangers within a broad range of

selection.” Id. at 168. Because of the importance of parental rights and the

concomitant interest of the state in the health and safety of minor children within

its borders, the intersection of individual freedom and state authority is always

difficult to traverse when a child’s life is at stake. This case arises at this

difficult constitutional intersection and involves both parents and state actors who

genuinely sought to do what they believed was best for a child who was tragically

stricken with a life-threatening illness. We have jurisdiction under 28 U.S.C.

§ 1291, and for the reasons discussed below we REVERSE in part and AFFIRM

in part the decision of the district court.

I. BACKGROUND

This 42 U.S.C. § 1983 case was initiated by P.J., a minor child, and his

parents Daren and Barbara Jensen. 1 The defendants are five state actors who were

involved in the legal dispute in a Utah juvenile court over P.J.’s custody and

medical care. Those state actors include: (1) Susan Eisenman, the Assistant Utah

Attorney General who prosecuted the juvenile case on behalf of the state; (2) Dr.

Karen Albritton, the state’s expert medical witness throughout the juvenile court

1

Although P.J. is a named party, the Jensens do not assert any claims on

appeal that implicate his independent rights. Accordingly, we only address Mr.

and Mrs. Jensen’s rights in this appeal.

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proceedings; (3) Dr. Lars Wagner, the doctor at Primary Children’s Medical

Center (“PCMC”) who initially diagnosed P.J.’s illness and who referred P.J.’s

case to the state; (4) Kari Cunningham, the Utah Division of Child and Family

Services (“DCFS”) social worker who initiated the custody petition on behalf of

the state; and (5) Richard Anderson, the DCFS director who, late in the

proceedings, attempted to negotiate a resolution to P.J.’s case. 2

On April 30, 2003, an oral surgeon removed a small growth from the floor

of P.J.’s mouth. After laboratory testing revealed that the growth was malignant,

the surgeon referred the Jensens to PCMC where they ultimately met with Dr.

Wagner in the hospital’s oncology department. On May 20, 2003, Dr. Amy

Lowichik completed a pathology report on the growth removed from P.J.’s mouth.

Dr. Cheryl Coffin, another pathologist, concurred in the report. The report

diagnosed the growth as Ewing’s sarcoma, a rare form of cancer, based on a

testing procedure known as immunohistochemical staining and on the morphology

of the tumor cells. Dr. Wagner discussed the pathology report with Dr. Coffin,

who expressed confidence in the diagnosis and explained that no further testing

was necessary to confirm it, even though other tests such as cytogenetic or

molecular testing were available.

On May 21, 2003, Dr. Wagner met with the Jensens to explain P.J.’s

2

The Jensens named additional defendants in their complaint, but they are

no longer parties at this point in the litigation.

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diagnosis. During this consultation, Dr. Wagner explained that P.J.’s disease was

life threatening and expressed his belief that immediate chemotherapy treatment

was necessary to save P.J.’s life. When the Jensens asked if any further tests

could be performed to confirm the diagnosis, Dr. Wagner said no. The Jensens

requested that Dr. Wagner send P.J.’s tissue sample to the Dana-Farber Cancer

Institute at Harvard University for a second opinion. Dr. Wagner complied with

this request; however, the Jensens ultimately canceled the Dana-Farber review.

On May 29, 2003, the Jensens returned to PCMC to meet with Dr. Wagner.

During this meeting, the Jensens requested that Dr. Wagner perform a Positron

Emission Tomography (“PET”) scan to confirm the Ewing’s diagnosis. Dr.

Wagner refused to order the PET scan, explained that such a test would not be

useful, and stated that even a negative scan would not change his opinion that P.J.

need immediate chemotherapy. The Jensens asked Dr. Wagner again if further

testing could be performed to confirm P.J.’s diagnosis, and Dr. Wagner again said

no. Additionally, the Jensens asked Dr. Wagner to consider an alternative

treatment to chemotherapy called Insulin Potentiation Therapy (“IPT”). Dr.

Wagner stated that he was unfamiliar with IPT but that he would examine it as an

alternative treatment method. After consulting with other doctors and performing

independent research on IPT, Dr. Wagner concluded that there was insufficient

data available about the treatment’s safety and effectiveness, and it therefore was

not a viable treatment option for P.J.

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On June 5, 2003, Dr. Wagner reported his conclusions about IPT to the

Jensens and reiterated his belief that immediate chemotherapy treatment was

necessary to save P.J.’s life. During this communication, Dr. Wagner also

informed the Jensens of his legal and ethical duty to report P.J.’s case to DCFS if

P.J.’s best medical interests were not being addressed. Because it appeared that

Dr. Wagner and the Jensens had reached an impasse regarding the best course of

treatment for P.J., a meeting among Dr. Wagner, the Jensens, and other PCMC

staff was scheduled for June 9, 2003 at PCMC. During the June 9 meeting, Dr.

Wagner again expressed his belief that immediate chemotherapy was necessary to

save P.J.’s life, and the head of PCMC’s quality assurance department informed

the Jensens that it may be necessary to refer P.J.’s case to DCFS. Nevertheless,

the Jensens refused to consent to chemotherapy and told the PCMC

representatives that they were fired.

On June 16, 2003, Dr. Wagner formally referred P.J.’s case to DCFS. Ms.

Cunningham was assigned to the case. Ms. Cunningham believed, based on the

information provided to her by Dr. Wagner and another PCMC doctor, that P.J.’s

situation presented a medical emergency that had to be addressed immediately.

Accordingly, she did not contact the Jensens or perform any investigation; rather,

she filed a Verified Petition and Motion to Transfer Custody and Guardianship

(“verified petition”) in the Utah juvenile court based entirely on the information

she received from the doctors. The juvenile court set the first hearing on the

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verified petition for June 20, 2003.

Upon receiving notice of the verified petition, the Jensens obtained an

attorney and had more tissue removed from P.J.’s mouth for independent testing.

That tissue was sent to a pathologist at the University of Washington, who

ultimately diagnosed it as Ewing’s sarcoma. Additionally, the Jensens contacted

Dr. John Thomson, a radiation oncologist at LDS Hospital in Salt Lake City,

Utah, who completed a written report on June 19, 2003, confirming the original

diagnosis. The report stated, “It is my opinion that [P.J.] has a Stage 1 or Group

1 nonosseous Ewing sarcoma with a favorable prognosis when treated to the

standard of care with poly chemotherapy . . . [and I] doubt that further pathologic

evaluation would alter recommended therapy. . . .”

On June 20, 2003, the Jensens made their first appearance in the juvenile

court. At the initial hearing, the Jensens explained to the court that they were

seeking further tests. In addition, the Jensens and the state indicated that it might

be possible to reach a stipulation regarding P.J.’s treatment. Accordingly, the

juvenile court continued the hearing until July 10, 2003.

Around the time of the initial hearing, the Jensens contacted Dr. Jeorg

Birkmayer, who practiced in Vienna, Austria. Dr. Birkmayer indicated that he

was not “totally convinced” that P.J. had Ewing’s sarcoma and suggested that he

was not sure that chemotherapy was necessary. When Ms. Eisenman learned of

the Jensens’ contact with Dr. Birkmayer and their desire to have him supervise

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P.J.’s treatment, she sent Dr. Birkmayer an e-mail in which she inquired about his

qualifications and whether Austria had a similar standard of care to that in the

United States. According to the Jensens, they ultimately abandoned their plan to

retain Dr. Birkmayer because DCFS insisted that P.J.’s medical care be provided

by a board-certified pediatric oncologist, which Dr. Birkmayer apparently was

not.

At the July 10, 2003 hearing, the juvenile court sustained an objection

made by the Jensens’ attorney which prevented DCFS from presenting evidence

supporting its verified petition because the hearing had been set for a pre-trial

conference and not an evidentiary hearing. The Jensens questioned whether P.J.

actually had Ewing’s sarcoma, but a stipulation was reached under which the

Jensens would have P.J. examined at the Children’s Hospital of Los Angeles

(“CHLA”) and would abide by that hospital’s treatment recommendations. Based

on this stipulation, the juvenile court again continued the case until July 28, 2003.

On July 21, 2003, the Jensens met with Dr. David Tishler at CHLA.

During the consultation, Dr. Tishler informed the Jensens that he would wait to

give his final recommendation until independent CHLA tests had been performed

but that he was initially recommending chemotherapy treatment based on the tests

that had already been completed. The Jensens were dissatisfied with Dr. Tishler’s

recommendation and, in violation of their stipulated agreement, they never

returned to CHLA. Instead, the Jensens sought care from Dr. Charles Simone, a

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New Jersey doctor who ultimately refused to be involved in P.J.’s case because he

did not want to become embroiled in a legal battle.

At the July 28, 2003 hearing, the juvenile court received testimony from

Dr. Tishler. He stated that CHLA testing was not yet complete but that there was

no question P.J. had a malignant tumor which required immediate chemotherapy.

Dr. Tishler also testified that the specific tests being performed by CHLA would

only serve to clarify the specific type of chemotherapy that would be best for P.J.

The Jensens’ attorney argued that not all testing had been completed and

advocated for the Jensens’ desire to conduct additional tests. The Jensens also

expressed their preference that Dr. Simone serve as P.J.’s primary physician.

DCFS’s expert medical witness, Dr. Albritton, however, explained to the juvenile

court that Dr. Simone should not be P.J.’s primary physician because he was not a

board-certified pediatric oncologist. Dr. Tishler agreed and testified that

“[t]here’s no other physician that could lead the care and provide the care.”

Based on Dr. Albritton’s and Dr. Tishler’s testimony, the juvenile court

ordered that P.J. begin receiving chemotherapy treatment by August 8, 2003,

regardless of the results of the CHLA testing. Furthermore, the juvenile court

ordered that P.J.’s primary physician be a board-certified pediatric oncologist but

that Dr. Simone could work with P.J. in conjunction with his other approved

doctors. Finally, the juvenile court ordered an evidentiary hearing on the verified

petition for August 20, 2003, in the event that P.J.’s case was not yet resolved by

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then.

On August 7, 2003, one day before P.J. was ordered to commence

chemotherapy treatment, the Jensens obtained an appointment to meet with

doctors at the Burzynski Clinic in Houston, Texas, on August 12. On August 8,

the Jensens violated the juvenile court’s order by taking P.J. out of Utah to a

friend’s lake house in Idaho rather than beginning the court-ordered

chemotherapy treatment. When Ms. Eisenman did not receive confirmation that

P.J. had commenced chemotherapy treatment, she sought an immediate hearing

with the juvenile court for the purpose of obtaining authorization to take P.J. into

protective custody. Ms. Eisenman, Ms. Cunningham, Dr. Albritton, P.J.’s

guardian ad litem, and the Jensens’ attorney participated in that hearing, which

took place on August 8. At the hearing, the Jensens’ attorney informed the

juvenile court that P.J. was not receiving chemotherapy treatment, that the

Jensens did not want P.J. to receive chemotherapy treatment, and that the Jensens

were going to have P.J. evaluated at the Burzynski Clinic. Dr. Albritton indicated

that the Burzynski Clinic was not a suitable facility for P.J. because: Dr.

Burzynski was not a board-certified pediatric oncologist; Dr. Albritton was not

aware of any board-certified pediatric oncologists on staff at the Burzynski

Clinic; and the Burzynski Clinic was not an appropriate treatment facility for

newly-diagnosed cancer patients who had not exhausted standard treatment

options.

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At the conclusion of the hearing, Ms. Eisenman filed an application to take

P.J. into protective custody that was supported by affidavits from Dr. Wagner and

Ms. Cunningham. The juvenile court ordered the custody transfer, and Ms.

Eisenman contacted the Sandy City Police Department to execute the warrant.

The Sandy City Police were unable to serve the warrant, however, because the

Jensens had already left the state. When the Jensens’ attorney informed them that

the juvenile court had ordered that P.J. be taken into state custody to begin

chemotherapy treatment, the Jensens ignored the order and allegedly decided to

continue with their plans to have P.J. evaluated at the Burzynski Clinic on August

12.

On August 13, 2003, P.J.’s guardian ad litem filed a motion for an order to

show cause in the juvenile court which ultimately resulted in that court’s issuance

of a bench warrant for the Jensens’ arrest and an order requiring the Jensens to

appear and present P.J. Ms. Eisenman informed the Jensens’ attorney and P.J.’s

guardian ad litem that if the Jensens did not comply with the order she would

contact local and federal law enforcement authorities. On August 15, 2003, the

Salt Lake County District Attorney’s Office agreed to screen P.J.’s case at Ms.

Eisenman’s request and ultimately filed criminal charges of misdemeanor

custodial interference and felony kidnaping against both Mr. and Mrs. Jensen.

Although the Jensens claim they left Utah on August 7 only to have a brief

family vacation before taking P.J. to the Burzynski Clinic on August 12, the

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Jensens and P.J. were at Mrs. Jensen’s parents’ Idaho home on August 16, 2003,

and had not yet been to the Burzynski Clinic. On that day, Mrs. Jensen allowed

P.J. to drive the family car down her parents’ long driveway to retrieve the mail.

P.J. wrecked the vehicle, and neighbors who saw the accident called the police.

Mrs. Jensen then fled her parents’ home with P.J. in an effort to hide him from

the authorities. When police arrived, Mr. Jensen falsely reported that P.J.’s

brother had been driving the vehicle when the accident occurred. When officers

realized there was a warrant for his arrest, they took Mr. Jensen into custody and

he was released on bail four days later. Meanwhile, Mrs. Jensen attempted to

take P.J. to the Burzynski Clinic in Houston, but she was turned away because of

the Utah custody order.

On August 20, 2003, the juvenile court held a hearing at which the Jensens’

attorney read a letter by Mr. Jensen and explained the Jensens’ desire to present

evidence. The juvenile court set an evidentiary hearing, but refused to lift the

warrants it had issued for the Jensens’ arrest. Shortly after the August 20 hearing,

Ms. Eisenman assumed a new position in the Utah Attorney General’s Office and

did not further participate in P.J.’s case. Around this time, Mr. Anderson was

asked by a representative from the Utah governor’s office to attempt to negotiate

a resolution with the Jensens. Accordingly, Mr. Anderson traveled to Idaho on

August 27, 2003, where he met with the Jensens for several days.

On September 5, 2003, the parties entered into a stipulated agreement under

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which the Jensens would submit P.J. to the care of Dr. Martin Johnston, a board-

certified pediatric oncologist in Boise, Idaho. The Jensens further agreed that

they would abide by Dr. Johnston’s treatment recommendations, even if he

recommended chemotherapy. Based on these assurances, the juvenile court

approved the stipulated agreement and returned full custody of P.J. to the Jensens.

After evaluating P.J., Dr. Johnston informed the Jensens of his diagnosis

and recommended treatment. In a letter to the Jensens, Dr. Johnston stated,

“There has never been any question but that the tumor is a high-grade sarcoma,

most compatible with a Ewing’s sarcoma. After full review, I have arrived at the

same conclusion.” Dr. Johnston’s letter also recommended chemotherapy

treatment. In violation of the September 5 stipulation, however, the Jensens

refused to submit P.J. to chemotherapy treatment and claimed that Dr. Johnston

was merely rubber-stamping previous doctors’ diagnoses. Additionally, Mr.

Jensen threatened Dr. Johnston, stating that if P.J. ever received chemotherapy

treatment at Dr. Johnston’s hospital, “I’m going to make sure it’s a hellish

experience for everybody involved. I’m going to shut down this clinic, I’m going

to shut down this hospital, and I’m going to fight you tooth and nail the whole

way.”

On October 2, 2003, the Jensens entered into a plea agreement which

resolved their criminal charges. Under the agreement, the Jensens pleaded guilty

to the misdemeanor custodial interference charge in exchange for the state’s

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promise to drop the felony kidnaping charge. The state dropped the felony charge

and the Utah district court accepted the Jensens’ guilty plea in abeyance on the

misdemeanor charge.

On October 8, 2003, Dr. Johnston informed the juvenile court that he had

diagnosed P.J. with Ewing’s sarcoma, that he had recommended chemotherapy

treatment, and that the Jensens had refused to commence his recommended

treatment. Assistant Attorney General Mark May, who had taken the case over

from Ms. Eisenman, informed the juvenile court that the parties would attempt to

reach a settlement. Then, on October 22, 2003, DCFS filed a motion to dismiss

the verified petition. In its motion, DCFS indicated that although it was confident

that without chemotherapy treatment P.J.’s chance of survival would fall

dramatically, the state had concluded that forcing P.J. to undergo chemotherapy

treatment had become unworkable because of the Jensens’ refusal to obtain such

treatment under any circumstances. Furthermore, DCFS indicated that the state’s

interest in the case had shifted such that attempting to force chemotherapy

treatment and placing the Jensens in jail would no longer be in P.J.’s best interest

and indeed may “impede [his] medical treatment.” Accordingly, the juvenile

court dismissed P.J.’s case and terminated its jurisdiction over the matter.

In July 2005, the Jensens filed this § 1983 civil suit for damages in state

court against eight state actors involved in P.J.’s case. After the case was

removed to federal court and several defendants were dismissed, the Jensens’

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present claims against the five current defendants remained. The Jensens alleged

that each of the five defendants remaining in this case violated their: (1)

substantive due process right to direct P.J.’s medical care; (2) substantive due

process right to familial association; (3) procedural due process rights; and (4)

Fourth Amendment right to be free from unreasonable seizure based on the

alleged malicious prosecution of the Jensens. All five defendants filed motions

for summary judgment based on claims of absolute or qualified immunity, and Dr.

Albritton and Dr. Wagner argued that the entire case should be dismissed for lack

of jurisdiction pursuant to the Rooker-Feldman doctrine. See Rooker v. Fid.

Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462

(1983). The district court rejected the doctors’ Rooker-Feldman argument,

concluded that Ms. Eisenman and Dr. Albritton were absolutely immune from

suit, concluded that the Jensens failed to overcome the remaining defendants’

claims of qualified immunity, and ultimately granted all five defendants’ motions

for summary judgment. The Jensens appeal from the district court’s summary

judgment order, and Dr. Albritton and Dr. Wagner cross-appeal from the district

court’s denial of summary judgment based on their jurisdictional argument.

II. DISCUSSION

We review de novo the district court’s decision to grant each defendant

summary judgment, viewing the facts in the light most favorable to the non-

moving party. Turner v. Public Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th

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Cir. 2009). Summary judgment is appropriate when the record demonstrates “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)(2). Once the movant shows

the absence of a genuine issue of material fact, the non-moving party “must bring

forward specific facts showing a genuine issue for trial as to those dispositive

matters for which he or she carries the burden of proof.” Garrison v. Gambro,

Inc., 428 F.3d 933, 935 (10th Cir. 2005). This requires the non-moving party to

present sufficient facts that a reasonable jury could find in his or her favor. Id.

A. Jurisdictional Issues—The Rooker-Feldman Doctrine

Because it implicates our subject matter jurisdiction, we address the cross-

appellants’ claim that the Rooker-Feldman doctrine bars this entire § 1983 suit

before turning to the merits of the case. See Crutchfield v. Countrywide Home

Loans, 389 F.3d 1144, 1147 (10th Cir. 2004) (addressing Rooker-Feldman

argument before considering the merits and explaining that the issue is integral to

subject matter jurisdiction). Generally, the Rooker-Feldman doctrine precludes

lower federal courts “from effectively exercising appellate jurisdiction over

claims actually decided by a state court and claims inextricably intertwined with a

prior state-court judgment.” Mo’s Express, LLC v. Sopkin, 441 F.3d 1229, 1233

(10th Cir. 2006) (quotations omitted). The Supreme Court recently clarified the

narrow scope of the Rooker-Feldman doctrine, stating that it is “confined to cases

of the kind from which the doctrine acquired its name: cases brought by state-

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court losers complaining of injuries caused by state-court judgments rendered

before the district court proceedings commenced and inviting district court review

and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280, 284 (2005).

In light of Exxon, we have concluded that “the type of judicial action

barred by Rooker-Feldman [] consists of a review of the proceedings already

conducted by the ‘lower’ tribunal to determine whether it reached its result in

accordance with law.” Bolden v. City of Topeka, 441 F.3d 1129, 1143 (10th Cir.

2006). In this way, we have explained that “Rooker-Feldman does not bar

federal-court claims that would be identical even had there been no state-court

judgment; that is, claims that do not rest on any allegation concerning the state-

court proceedings or judgment.” Id. at 1145.

Additionally, our recent Rooker-Feldman jurisprudence has emphasized the

relief sought by federal-court plaintiffs. See Mo’s Express, LLC, 441 F.3d at

1237 (“[W]e approach the [Rooker-Feldman] question by asking whether the

state-court judgment caused, actually and proximately, the injury for which the

federal-court plaintiff seeks redress.”). In Mo’s Express, LLC, we concluded that

federal-court plaintiffs who only sought prospective injunctive and declaratory

relief were not barred by the Rooker-Feldman doctrine because “their federal suit

would not reverse or otherwise ‘undo’ the relief granted by the [state court] . . . .”

Id. at 1238. Conversely, we recently held that a federal-court plaintiff’s claims

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seeking monetary damages from government actors who complied with probate

court orders unfavorable to the plaintiff were barred by the Rooker-Feldman

doctrine because success on the claims “would require the district court to review

and reject [the probate court’s] judgments.” Mann v. Boatright, 477 F.3d 1140,

1147 (10th Cir. 2007).

Given this framework, we first identify the two state-court judgments

adverse to the Jensens that neither the federal district court nor this court may

review or undo in any way: (1) the juvenile court’s August 8 order granting the

state custody over P.J.; and (2) the state district court’s October 2 order accepting

the Jensens’ guilty pleas for misdemeanor custodial interference. The district

court concluded that none of the Jensens’ claims are barred by the Rooker-

Feldman doctrine because the “constitutional injury alleged by the Jensens is

separate and independent from any orders of the state courts . . . .”

On appeal, the Jensens base their substantive and procedural due process

claims on misrepresentations allegedly made by the defendants during the

juvenile court proceedings and with respect to P.J.’s medical treatment, and on

DCFS’s alleged failure to conduct an independent investigation of P.J.’s case

before filing the verified petition. Without addressing every underlying factual

allegation against each defendant here, we agree with the district court that each

of these claims “seek[s] relief independent from any judgment rendered by the

state courts.” Although the alleged misrepresentations and failure to investigate

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are closely connected to the juvenile court proceedings and the Jensens’ criminal

prosecution, they are sufficiently extricable from any state-court judgment for

Rooker-Feldman purposes. Indeed, the Jensens’ substantive and procedural due

process claims would be identical even if there were no state-court orders adverse

to the Jensens. Therefore, these claims do not allege “injuries caused by state-

court judgments,” Exxon, 544 U.S. at 284, and thus are not barred by the Rooker-

Feldman doctrine.

Conversely, the Jensens’ malicious prosecution claims necessarily invite

federal-court undoing of the two adverse state-court orders. To succeed on their §

1983 malicious prosecution claims, the Jensens must prove: (1) the defendants

caused their continued confinement or prosecution; (2) some original action

terminated in favor of the Jensens; (3) no probable cause supported the Jensens’

original arrest, continued confinement, or prosecution; (4) the defendants acted

with malice; and (5) the Jensens sustained damages. Wilkins v. DeReyes, 528

F.3d 790, 799 (10th Cir. 2008). Accordingly, to satisfy the third element of their

malicious prosecution claims, the Jensens must convince a lower federal court

that there was no probable cause for the prosecution of either the juvenile court

proceedings or the criminal proceedings. As discussed above, however, those

state-court proceedings resulted in adverse judgments for the Jensens. Therefore,

a lower federal court would necessarily have to review and reject those judgments

in order for the Jensens to succeed on their malicious prosecution claims.

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Furthermore, “[t]he Fourth Amendment in the context of a malicious

prosecution claim deals with judicial determinations of probable cause . . . .” Id.

at 802. And, the Jensens may only show the existence of a Fourth Amendment

violation if they can show that the legal process itself was wrongful. Id. at 798.

We fail to see how a federal court could conclude that the juvenile proceedings or

the Jensens’ criminal prosecution themselves were wrongful without reviewing

and, in essence, reversing the adverse state-court judgments that were the

products of those proceedings. Therefore, the Rooker-Feldman doctrine bars the

Jensens’ malicious prosecution claims.

B. Absolute Immunity—Ms. Eisenman and Dr. Albritton

Next, we address the Jensens’ claim that the district court erred by granting

Ms. Eisenman and Dr. Albritton absolute immunity from this § 1983 suit. 3 We

review de novo a district court’s conclusion that a defendant is entitled to

absolute immunity. Scott v. Hern, 216 F.3d 897, 908 (10th Cir. 2000).

“‘[A]bsolute immunity defeats a suit at the outset, so long as the official’s actions

were within the scope of the immunity.’” Spielman v. Hildebrand, 873 F.2d

1377, 1381 (10th Cir. 1989) (quoting Imbler v. Pachtman, 424 U.S. 409, 419 n.13

3

The district court also granted Ms. Cunningham absolute prosecutorial

immunity for her decision to file the verified petition in juvenile court, but denied

her absolute immunity for her other actions in this case. On appeal, the Jensens

do not object to this conclusion and Ms. Cunningham does not seek broader

absolute immunity protection than what the district court granted her.

Accordingly, we do not address the propriety of the district court’s decision in

this regard.

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(1976)). Under our functional approach to claims of absolute immunity, we

examine whether the particular actions of the defendant are within the scope of

the claimed immunity, not whether the status of the defendant or the office that

she holds entitles her to protection. See, e.g., Perez v. Ellington, 421 F.3d 1128,

1133 (10th Cir. 2005).

1. Ms. Eisenman

“State attorneys . . . who perform functions analogous to those of a

prosecutor in initiating and pursuing civil and administrative enforcement

proceedings are absolutely immune from suit under section 1983 concerning

activities intimately associated with the judicial process.” Scott, 216 F.3d at 908

(internal quotations omitted). Such government actors are not immune, however,

for actions “that are primarily investigative or administrative in nature.” Pfeiffer

v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991). To distinguish

between actions that are intimately associated with the judicial process and those

that are investigative or administrative in nature, we look to whether the actions

can rightly be considered advocacy “because that is the prosecutor’s main

function and the one most akin to his quasi-judicial role.” Id. Furthermore,

“absolute immunity may attach even to . . . administrative or investigative

activities ‘when these functions are necessary so that a prosecutor may fulfill his

function as an officer of the court.’” Id. (quoting Snell v. Tunnell, 920 F.2d 673,

693 (10th Cir. 1990)).

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The Jensens base their claims against Ms. Eisenman on: (1)

misrepresentations she allegedly made to the juvenile court; (2) her research

regarding the American Academy of Pediatrics’s guidelines for clinicians who

render pediatric care and her resistance to the Jensens’ attempt to have P.J.

treated by doctors who were not qualified under those guidelines; and (3)

misrepresentations she allegedly made to the Salt Lake County District Attorney.

The undisputed evidence demonstrates that any statements Ms. Eisenman made to

the juvenile court were made in her role as an advocate for the state’s interest in

the custody dispute. Likewise, any research Ms. Eisenman performed regarding

the appropriate type of doctor for P.J. and any actions she took to ensure that P.J.

was treated by an appropriately credentialed doctor were intimately associated

with the judicial process and Ms. Eisenman’s role as an advocate for the state.

Therefore, those actions are clearly within the scope of Ms. Eisenman’s claimed

absolute immunity.

The protection afforded Ms. Eisenman’s statements to the Salt Lake County

District Attorney, however, is less clear. The Jensens argue that by making

misrepresentations to the Salt Lake County District Attorney which eventually led

to their criminal prosecution, Ms. Eisenman was acting as a complaining witness

rather than as a prosecutor. Furthermore, the Jensens correctly point out that a

complaining witness is not entitled to absolute immunity. See Malley v. Briggs,

475 U.S. 335, 340–41 (1986). Under the circumstances of this case, however, we

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agree with the district court that Ms. Eisenman’s presentation of facts to the Salt

Lake County District Attorney was intimately associated with the juvenile court

process and was done in Ms. Eisenman’s role as an advocate for the state. The

day Ms. Eisenman met with the Salt Lake County District Attorney, the juvenile

court had ordered the Jensens to present P.J. to the court for the purpose of

beginning chemotherapy treatment. The Jensens were aware of this juvenile court

order and had, in fact, stated their intention not to comply with it. Furthermore,

the Jensens admit they were attempting to hide P.J. from state authorities in order

to prevent the effectuation of the juvenile court order. Under these

circumstances, Ms. Eisenman’s presentation of evidence to the Salt Lake County

District Attorney was necessary to effectuate the juvenile court’s order and to

pursue the interest of the state in ensuring that P.J. receive treatment for his life-

threatening illness. Accordingly, these actions were necessary to fulfill both her

roles as officer of the court and advocate for the state, and are therefore protected

by absolute immunity.

2. Dr. Albritton

Like the absolute immunity afforded prosecutors who perform actions

intimately associated with the judicial process, “[t]he immunity of parties and

witnesses from subsequent damages liability for their testimony in judicial

proceedings is well established in the common law. . . .” Spielman, 873 F.2d at

1382. Testifying witness immunity is “supported by the public policy of

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preserving the truthfinding process from distortions caused by fear of suit.” Id.

The Jensens’ claims against Dr. Albritton center on her testimony before the

juvenile court; the Jensens allege that her testimony contained various

misrepresentations and “had more the flavor of someone working to perpetuate

proceedings (i.e., a complaining witness), than merely providing objective

information.” This contention reflects a fundamental misunderstanding of the

well-established immunity for testifying witnesses. A witness is absolutely

immune from civil liability based on any testimony the witness provides during a

judicial proceeding “even if the witness knew the statements were false and made

them with malice.” Briscoe v. LaHue, 460 U.S. 325, 332 (1983). Thus, even if

Dr. Albritton’s testimony was aimed at perpetuating the custody proceedings

against the Jensens, she is protected by absolute immunity. Accordingly, Dr.

Albritton is absolutely immune from any claims against her in this § 1983 suit.

C. Qualified Immunity—Dr. Wagner, Ms. Cunningham, and Mr. Anderson

Finally, we address the Jensens’ constitutional claims against Dr. Wagner,

Ms. Cunningham, and Mr. Anderson, who have all claimed a defense of qualified

immunity. “When a defendant pleads qualified immunity, the plaintiff has the

heavy burden of establishing: (1) that the defendant’s actions violated a federal

constitutional or statutory right; and (2) that the right violated was clearly

established at the time of the defendant’s actions.” Scott, 216 F.3d at 910

(quotations omitted). Federal courts may “exercise their sound discretion in

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deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.”

Pearson v. Callahan, – U.S. –, 129 S. Ct. 808, 818 (2009).

The “clearly established” prong of the qualified immunity analysis ensures

that governmental actors are given fair warning that their conduct is

unconstitutional before they are held liable for damages based on that conduct.

Harman v. Pollock, 586 F.3d 1254, 1260 (10th Cir. 2009). A right is clearly

established “when a Supreme Court or Tenth Circuit decision is on point, or if the

clearly established weight of authority from other courts shows that the right must

be as [the] plaintiff maintains.” Id. at 1261. That does not mean that we must

have previously decided a case that is materially factually similar or identical to

the present case; instead, “[t]he contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

1. The Jensens’ Substantive Due Process Right to Direct P.J.’s Medical

Care

The district court concluded that the Jensens failed to show that any

defendant violated their right to direct P.J.’s medical care. Because the district

court decided this issue under the first prong of the qualified immunity analysis, it

did not have occasion to consider whether the Jensens’ right to direct P.J.’s

medical care in the circumstances presented in this case was clearly established at

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the time of the alleged violations. Furthermore, on appeal, the Jensens confine

their argument to the first prong of the qualified immunity analysis and assume

that under the circumstances of this case their right to direct P.J.’s medical care is

clearly established. We reject this assumption and conclude that the Jensens’

right to direct P.J.’s medical care in this case—if any right indeed exists in such

circumstances—was not clearly established at the time the Jensens allege the right

was violated.

We begin by acknowledging that the Due Process Clause generally provides

constitutional protection for parental rights. Indeed, the Supreme Court has stated

that “the 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).

Furthermore, although we have never specifically recognized or defined the scope

of a parent’s right to direct her child’s medical care, see Roska v. Peterson, 328

F.3d 1230, 1247 n.14 (10th Cir. 2003) (“We express no opinion on whether such a

right [to direct a child’s medical care] might exist within the context of general

familial rights.”), we do not doubt that a parent’s general right to make decisions

concerning the care of her child includes, to some extent, a more specific right to

make decisions about the child’s medical care. See Dubbs v. Head Start, Inc.,

336 F.3d 1194, 1203 (10th Cir. 2003) (“It is not implausible to think that rights

invoked here—the right to refuse a medical exam and the parent’s right to control

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the upbringing, including the medical care, of a child—fall within [the Due

Process Clause’s] sphere of protected liberty.”).

The Supreme Court has similarly alluded to, but never specifically defined

the scope of a parent’s right to direct her child’s medical care. Indeed, the Court

has recognized that “[m]ost children, even in adolescence, simply are not able to

make sound judgments concerning . . . their need for medical care or treatment,”

Parham v. J.R., 442 U.S. 584, 603 (1979), and that our legal system presumes

“that natural bonds of affection lead parents to act in the best interests of their

children.” Id. at 602. Therefore, this precedent reasonably suggests that the Due

Process Clause provides some level of protection for parents’ decisions regarding

their children’s medical care.

The Supreme Court has long recognized, however, that parental rights,

including any right to direct a child’s medical care, are not absolute. See Prince

v. Massachusetts, 321 U.S. 158, 166 (1944) (“[N]either rights of religion nor

rights of parenthood are beyond limitation.”); see also Parham, 442 U.S. at 604

(“[P]arents cannot always have absolute and unreviewable discretion to decide

whether to [seek specific medical care for their children],” but they “retain

plenary authority to seek such care for their children, subject to a physician’s

independent examination and medical judgment.”). Indeed, states have a

compelling interest in and a solemn duty to protect the lives and health of the

children within their borders. See, e.g., Globe Newspaper Co. v. Superior Court

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for Norfolk County, 457 U.S. 596, 607 (1982) (“[S]afeguarding the physical and

psychological well-being of a minor . . . is a compelling [interest].”).

Accordingly, when a child’s life or health is endangered by her parents’

decisions, in some circumstances a state may intervene without violating the

parents’ constitutional rights. See Parham, 442 U.S. at 603 (“[W]e have

recognized that a state is not without constitutional control over parental

discretion in dealing with children when their physical or mental health is

jeopardized.”).

Under this constitutional framework, we conclude that the Jensens’ asserted

right to direct P.J.’s medical care in this case is not clearly established. The

record demonstrates that no less than seven qualified and competent doctors

evaluated P.J., diagnosed him with life-threatening cancer, and recommended that

he immediately undergo chemotherapy treatment in order to save his life. In this

particular situation, the Jensens did not have a clearly established constitutional

right to refuse the unanimous recommended treatment or to solicit additional

opinions until they found a doctor who disagreed that conventional treatment was

necessary. Indeed, the Jensens had a “‘high duty’ to recognize symptoms of

illness and to seek and follow medical advice.” Id. at 602.

Furthermore, when a child’s life is under immediate threat, a state’s interest

in protecting the child is at its zenith, and a state has broad authority to intervene

in parental decisionmaking that produces the threat to the child’s life. See Prince,

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321 U.S. at 167 (“[T]he state has a wide range of power for limiting parental

freedom and authority in things affecting the child’s welfare.”). Here, the state

was endowed with this broad authority, and the Jensens do not direct us to a

clearly established constitutional line that defines what a state can and cannot do

to protect a child whose life is compromised by his parents’ refusal to obtain

medical care. Certainly, the Jensens do not assert any factual allegation that is

substantially supported in the record which would constitute state action that is

clearly outside the state’s “wide range of power.” Accordingly, under the

circumstances of this case, the Jensens’ asserted right to direct P.J.’s medical care

was not clearly established at the time of the alleged violations; therefore, they

cannot overcome the defendants’ claims of qualified immunity.

2. The Jensens’ Substantive Due Process Right to Familial Association

In contrast to the Jensens’ purported right to direct P.J.’s medical care in

this case, we resolve their claims regarding their substantive due process right to

familial association and their procedural due process rights on the first prong of

the qualified immunity inquiry—namely, that the Jensens have not shown a

violation of their constitutional rights.

More than twenty-five years ago the Supreme Court recognized that

“[f]amily relationships, by their nature, involve deep attachments and

commitments to the necessarily few other individuals with whom one shares not

only a special community of thoughts, experiences, and beliefs but also

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distinctively personal aspects of one’s life.” Roberts v. U.S. Jaycees, 468 U.S.

609, 619–620 (1984). Shortly thereafter, this court first recognized the existence

of a right to familial association within the substantive rights protected by the

Due Process Clause. See Griffin v. Strong, 983 F.2d 1544, 1546–47 (10th Cir.

1993) (discussing the development of the right of familial association in the Tenth

Circuit). In numerous decisions since the right was first recognized, we have

applied a balancing test to determine whether the plaintiff’s right to familial

association has been infringed. See, e.g., id. at 1547–49; J.B. v. Washington

County, 127 F.3d 919, 927 (10th Cir. 1997); Lowery v. County of Riley, 522 F.3d

1086, 1092 (10th Cir. 2008). Under this test, “we balance ‘the individual’s

interest in liberty against the State’s asserted reasons for restraining individual

liberty.’” Lowery, 522 F.3d at 1092 (quoting Youngberg v. Romeo, 457 U.S. 307,

320 (1982)). The purpose of the balancing test is to ascertain whether a

defendant’s conduct constitutes an undue burden on the plaintiff’s associational

rights. Griffin, 983 F.2d at 1547.

Because the Jensens’ opening brief fails to articulate a particularized

factual allegation that any defendant violated their associational rights, we

address their general claims under the balancing test discussed above. First, the

Jensens’ interest in associating with P.J. is unquestionably of paramount

importance. See id. at 1548 (“The right to associate with one’s family is a very

substantial right.”); see also U.S. Jaycees, 468 U.S. at 618 (“[F]reedom of

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association receives protection as a fundamental element of personal liberty.”).

Second, as discussed above, the state’s interest in protecting and safeguarding

P.J.’s life is also significant. Finally, given these countervailing interests, the

record demonstrates that the actual burden on the Jensens’ right to associate with

P.J. was minimal in this case. The Jensens correctly point out that “the forced

separation of parent from child, even for a short time, represents a serious

impingement.” J.B., 127 F.3d at 925 (alteration omitted). In this case, however,

P.J. was never physically removed from the Jensens’ custody and the state

afforded the Jensens numerous opportunities to obtain treatment for P.J. before it

even sought to remove him from their custody. Under these circumstances, the

Jensens fail to show that any defendant imposed an undue burden on their

relationship with P.J. and therefore fail to show a violation of their associational

rights.

3. The Jensens’ Procedural Due Process Rights

“[P]rocedural due process does not prevent the state from depriving an

individual of liberty or property. It only requires that a fair procedure be

provided for the deprivation.” Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1569

(10th Cir. 1993). As a threshold matter, a plaintiff must show that he possesses a

constitutionally cognizable liberty or property interest before he can allege an

unconstitutional deprivation of that interest. Id. To be constitutionally

cognizable, “the interest must rise to more than an abstract need or desire and

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must be based on more than a unilateral hope.” Ky. Dep’t of Corr. v. Thompson,

490 U.S. 454, 460 (1989) (internal quotations and citations omitted). Indeed, to

satisfy the threshold requirement, a plaintiff must demonstrate a legitimate claim

of entitlement to the asserted interest which may arise either from the Due

Process Clause itself or state law. Id.

“‘A state creates a protected liberty interest by placing substantive

limitations on official discretion.’” Doyle, 998 F.2d at 1569 (quoting Olim v.

Wakinekona, 461 U.S. 238, 249 (1983)) (alteration omitted). State law, however,

does not generally create a constitutionally cognizable liberty interest simply “by

establishing substantive predicates to govern official decision-making”; rather,

the state must also “mandat[e] the outcome to be reached upon a finding that the

relevant criteria have been met.” Thompson, 490 U.S. at 462 (quotations and

citations omitted). If state law establishes a substantive predicate without

mandating an outcome, the law creates nothing more than a right to process which

is not a constitutionally cognizable liberty interest. See Doyle, 998 F.2d at 1570

(“The mere expectation of receiving a state afforded process does not itself create

an independent liberty interest protected by the Due Process Clause.”).

Once a procedural due process plaintiff establishes a constitutionally

cognizable liberty or property interest of which she has been deprived by the

state, we “examine[] whether the procedures attendant upon that deprivation were

constitutionally sufficient.” Thompson, 490 U.S. at 460. Although the exact

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procedures required by the Constitution depend on the circumstances of a given

case, “[t]he fundamental requirement of due process is the opportunity to be heard

at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424

U.S. 319, 333 (1976) (internal quotations omitted).

The Jensens allege procedural due process claims only against Dr. Wagner

and Ms. Cunningham. 4 They base their claim against Dr. Wagner on

misrepresentations he allegedly made to the juvenile court and to others involved

with the custody dispute. The Jensens appear to argue that these

misrepresentations infected the juvenile proceedings to the point that they did not

afford the Jensens the opportunity to be heard “in a meaningful manner.”

Although we can conceive of circumstances in which false testimony may infect a

judicial proceeding to the point that the proceeding itself becomes constitutionally

deficient, c.f. United States v. Vaziri, 164 F.3d 556, 563 (10th Cir. 1999)

(concluding that a criminal conviction obtained by perjured testimony violates

due process under certain circumstances), the Jensens have not demonstrated that

any statements by Dr. Wagner had such a degenerative effect on the juvenile

court proceedings in this case. Accordingly, the Jensens have not met their

burden of showing that Dr. Wagner violated their procedural due process rights.

4

The Jensens cursorily allege that all defendants made misrepresentations

that violated their procedural due process rights; however, they make no specific

factual allegations against Mr. Anderson. Accordingly, we do not read the

Jensens’ opening brief as asserting a procedural due process claim against Mr.

Anderson.

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The Jensens base their procedural due process claim against Ms.

Cunningham on her failure to independently investigate the medical neglect

allegations made by Dr. Wagner before filing the verified petition in the juvenile

court. Specifically, the Jensens argue that Utah statutes required Ms.

Cunningham to interview the Jensens and obtain an independent medical

examination of P.J. before filing the verified petition. Thus, the Jensens claim a

constitutionally cognizable liberty interest in an independent investigation by

DCFS. As discussed above, however, a right to process under state law is not

itself a liberty interest protected by the Due Process Clause; rather, state law must

also mandate a specific outcome upon a finding that certain criteria are met.

Doyle, 998 F.2d at 1570. The Jensens do not point to any Utah statutes that

mandate a specific outcome upon completion of the required DCFS investigation

and a finding that certain criteria are met during that investigation. Accordingly,

the Jensens fail to establish any constitutionally cognizable liberty interest and

thus fail to meet the threshold requirement for a procedural due process claim

against Ms. Cunningham.

III. CONCLUSION

Because parental autonomy is fundamental to our democracy and culture

and a state’s interest in protecting the health and safety of minor children is

compelling, state actors who are responsible for intervening in parental

relationships must always make difficult decisions that may have constitutional

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implications. Accordingly, such state actors operate on one of the most delicate

constitutional barriers in our legal system and their good faith actions to protect

children must also be protected by our laws. In this case, the Jensens fail to show

that any defendant violated their clearly established constitutional rights.

Moreover, we conclude that we lack jurisdiction under the Rooker-Feldman

doctrine to consider their claim premised on malicious prosecution. Therefore,

for the foregoing reasons, the decision of the district court is REVERSED in part

and AFFIRMED in part. The defendants’ requests for attorneys fees and costs are

denied.

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