Costanich v. DEPT. OF SOCIAL AND HEALTH SERVICES

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHIE COSTANICH, 

Plaintiff-Appellant,

v.

DEPARTMENT OF SOCIAL AND HEALTH

SERVICES FOR THE STATE OF No. 08-35217

WASHINGTON; SANDRA DURON; JOHN

DOE DURON; CAROL SCHMIDT; JOHN  D.C. No.

DOE SCHMIDT; BEVERLY PAYNE; 2:05-cv-00090-MJP

JOHN DOE PAYNE; JAMES BULZOMI;

JANE DOE BULZOMI; ROBERT STUTZ;

INGRID MCKENNY; JOHN DOE

MCKENNY; JANE DOE STUTZ,

Defendants-Appellees.



KATHIE COSTANICH, 

Plaintiff-Appellee-Cross-Appellant,

v.

DEPARTMENT OF SOCIAL AND HEALTH

SERVICES FOR THE STATE OF No. 08-35287

WASHINGTON; SANDRA DURON; JOHN

DOE DURON; CAROL SCHMIDT; JOHN  D.C. No.

2:05-cv-00090-MJP

DOE SCHMIDT; BEVERLY PAYNE;

JOHN DOE PAYNE; JAMES BULZOMI; OPINION

JANE DOE BULZOMI; ROBERT STUTZ;

INGRID MCKENNY; JOHN DOE

MCKENNY; JANE DOE STUTZ,

Defendants-Appellants-Cross-

Appellees.



19163

19164 COSTANICH v. DSHS

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

May 6, 2009—Seattle, Washington

Filed December 3, 2010

Before: Kim McLane Wardlaw, Richard A. Paez, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Wardlaw

19168 COSTANICH v. DSHS

COUNSEL

Carol Farr, Law Office of Leonard W. Moen, Renton, Wash-

ington, for appellant Kathie Costanich.

Pamela H. Anderson, Assistant Attorney General, Olympia,

Washington, for appellees State of Washington, et al.

OPINION

WARDLAW, Circuit Judge:

Washington state revoked Kathie Costanich’s foster care

license and instituted guardianship termination proceedings

against her following an investigation by a Department of

Social and Health Services (“DSHS”) social worker, Sandy

Duron, which purportedly revealed “emotional abuse” of the

children in Costanich’s care. Finding fundamental inaccura-

cies in the investigation, an administrative law judge (“ALJ”)

reversed the license revocation. The Court of Appeals of

Washington ultimately upheld the ALJ’s determination.

Costanich v. Wash. State Dep’t of Soc. & Health Servs., 138

Wash. App. 547, 156 P.3d 232 (App. Ct. 2007).

This appeal arises from Costanich’s § 1983 claim against

Duron, DSHS,1 and other DSHS officials for deprivation of

her due process rights to her foster care license and guardian-

ship of her dependents. Costanich appeals the grant of sum-

mary judgment in favor of all DSHS personnel on the basis

of absolute and qualified immunity. We must decide whether

the DSHS officials are entitled to absolute or qualified immu-

nity for the separate acts of the investigation, the declaration

1

The district court previously dismissed Costanich’s claim against

DSHS, holding that the agency is not a “person” subject to § 1983 liabil-

ity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

Costanich does not appeal this dismissal.

COSTANICH v. DSHS 19169

filed in support of the guardianship termination, and the revo-

cation of Costanich’s foster care license. We affirm the judg-

ment for all DSHS officials, including for conduct related to

the revocation of Costanich’s foster care license.

I. FACTUAL AND PROCEDURAL BACKGROUND

Costanich and her husband have been foster parents since

1983 “for some of the neediest and most difficult foster chil-

dren in the system.” Costanich, 156 P.3d at 234. As the Court

of Appeals of Washington noted,

All of these children had been victims of abuse or

neglect and many had severe behavioral, develop-

mental, and medical problems. [Kathie] specialized

in violent, sexually aggressive youth (SAY) and

medically fragile infants. Costanich was also the

president of Foster Parents of Washington State

(FPAWS) and a trainer for DSHS. Before the abuse

allegations, the most recent state evaluation

described the Costanich foster home as a “unique

and valuable resource . . . unsurpassed by any foster

home in the State.”

Id. As of July 2001, the Costanich house was home to six

children—three male foster children, K. (age 15), J. (age 12),

and P. (age 10); one male under dependency guardianship,2 F.

(age 17); and two sisters also under dependency guardianship,

E. (age 8) and B. (age 4).3 E. and B. had resided in the

Costanich home since their infancy.

2

A “dependency guardian” is a person who is “appointed by the court

. . . for the limited purpose of assisting the court in the supervision of the

dependency,” Wash. Rev. Code § 13.34.030(5), whereas a legal “guard-

ian” is a person who “has the legal right to custody of the child pursuant

to [an] appointment,” id. § 13.34.030(8).

3

We reference the children only by their first initials to protect their pri-

vacy.

19170 COSTANICH v. DSHS

During a session with his therapist in July 2001, K. alleged

that Costanich was physically and emotionally abusing the

children. Sandy Duron, a social worker for the Child Protec-

tive Services (“CPS”) section of DSHS, initiated an investiga-

tion based upon the therapist’s referral. She interviewed all of

the children, aides who worked in the Costanich home, some

of the children’s therapists, family and friends, and Costanich

herself.4 Duron reported that all of the children claimed

Costanich used profanity regularly, and all but one claimed

that she directed profanity at the children and used physical

violence. All of the adult interviewees also admitted that

Costanich used profanity, but they differed on whether it was

directed at the children and whether Costanich used physical

violence.

Duron also reported that K. specifically told his therapist

about an incident that allegedly took place while the family

was vacationing at a cabin on Lake Cavanaugh. According to

Duron, K. said that Costanich observed an altercation between

F. and a sixteen-year-old female aide, restrained F. by putting

her hands around F.’s neck and choking him, and said “I’ll

kill you, bastard.” Duron reported that F.’s account of the

incident was basically the same, and that a friend of the fam-

ily who witnessed the incident and Costanich herself reported

that Costanich physically restrained F., though their accounts

varied as to the severity of the restraint. According to Duron,

K. also told his therapist that Costanich got mad at P. and told

him to move his “black ass”5 and clean his room. K. also

heard Costanich call E. a “cunt” and saw her grab E.’s hair.

4

None of the interviews was recorded and all but one were conducted

without a third person present. Moreover, Duron did not produce her

handwritten notes of the meetings. In addition to her final report of the

investigation, Duron produced only “service episode reports”—electronic

summaries prepared by Duron from her handwritten notes.

5

Costanich admitted that she told P., the only African American child

in the house, to “move his black ass,” explaining that she was told by an

African American friend of hers that that is how his biological mother

would speak to him.

COSTANICH v. DSHS 19171

Duron also reported that J. told her that he saw Costanich rub

urine-soaked sheets in P.’s face.

Dr. Cartwright, a clinical psychologist who reviewed the

DSHS records but did not interview the children, opined that

swearing at children may lead to or exacerbate behavioral

problems. DSHS held meetings in which the Costanich case

was discussed. Based upon the meetings, interviews, and con-

sultations, Duron concluded that the allegation of emotional

abuse was “founded” and that the allegation of physical abuse

was “inconclusive.”

In the fall of 2001 and spring of 2002, J.’s, K.’s, E.’s, and

B.’s therapists wrote to DSHS, reporting that the children

were doing very well in the Costanich home and strongly rec-

ommending against removal.6 Specifically, J.’s therapists, Dr.

Cowles and Dr. Adler, prepared a sworn letter describing in

detail J.’s disabilities, his substantial improvements in the

Costanich home, their strong disagreement with the decision

to remove J. from the Costanich home, and “not[ing] that

DCFS did not, in a reasonable manner, consult with his pro-

viders on how this removal from the foster home was to be

conducted even though this was court-ordered.” E.’s and B.’s

therapist, Dr. Vincent, prepared a sworn letter describing the

loving and nurturing relationship between the girls and

Costanich and noting the vast “emotional damage that remov-

6

Along with certain letters from witnesses, several of the therapists’ let-

ters were the subject of defendants’ motion to strike on the ground that let-

ters not signed under penalty of perjury should be excluded under Federal

Rule of Civil Procedure 56(e). The district court admitted the unsworn, but

dated, letters, not for the truth of the matter asserted, but “to show what

evidence DSHS had before it.” The court excluded the undated, unsworn

letters. DSHS officials challenge the limited admission of the unsworn, but

dated, letters for the first time in their cross-reply brief. Because the argu-

ment was not made in the opening cross-appeal brief, we consider it

waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

In any event, the district court did not abuse its discretion in admitting the

evidence.

19172 COSTANICH v. DSHS

ing them will cause the children.” K.’s therapist, Dr. Crabbe,

wrote of the stability of the Costanich home and the progress

that K. had made there, and noted that “[a] change in place-

ment . . . would be detrimental to K.’s emotional and mental

health.”

The record also reflects that at least six adult witnesses

wrote to DSHS, stating that Duron was a hostile interviewer

who twisted their words and attributed to them statements

they did not make. For example, Tori McLaughlin, a family

friend, wrote that Duron asked her the same questions repeat-

edly when she did not receive the answer she wanted. Diane

Isley, a Court Appointed Special Advocate (“CASA”) who

has worked with Costanich for a decade, prepared a sworn let-

ter stating that Duron attributed to her a false statement about

a child running from the Costanich home.

These letters did not cause DSHS to alter its conclusion of

“founded” emotional abuse. DSHS informed Costanich of this

finding in a meeting in November 2001. According to the tes-

timony of several officials, DSHS also told her that if she

would not appeal the finding of emotional abuse and would

agree to participate in a corrective management plan, DSHS

would not seek termination of her guardianship of E. and B.7

It is unclear from the record whether DSHS ever made a for-

mal offer and, if so, whether Costanich considered it.

DSHS made its formal finding of emotional abuse in a

December 18, 2001, letter addressed to Costanich and signed

7

Defendants moved to strike this evidence on the ground that the pro-

posal constituted an inadmissible settlement offer. See Federal Rule of

Evidence 408(a)(1). The district court ruled that the evidence was not

offered as proof of liability “but to show that DSHS inappropriately pres-

sured [Costanich] to accept its abuse finding.” DSHS waived its challenge

to the district court’s ruling by failing to raise it in the opening brief. See

Martinez-Serrano, 94 F.3d at 1259. Again, even if DSHS had properly

preserved this challenge, we would conclude that the district court did not

abuse its discretion in admitting the evidence.

COSTANICH v. DSHS 19173

by defendant CPS Investigations Supervisor Beverly Payne. A

CPS Section Manager, Kyle Smith, upheld the finding on

March 14, 2002, even though his office had contacted several

of the witnesses who told CPS of their complaints as to

Duron’s investigation. Costanich requested an administrative

hearing on March 24, 2002. On March 28, 2002, the State

filed a petition to terminate Costanich’s guardianship of E.

and B. The petition was supported by Duron’s declaration that

Costanich “uses profanity, name-calling, and derogatory

racial terms as means to discipline and intimidate the chil-

dren.” Before the state court could issue a decision, the Kalis-

pel Tribe of Indians, of which E. and B. are members,

intervened and assumed jurisdiction of their cases. The Tribe

placed the girls with relatives for the summer of 2002, and

then returned the girls to Costanich.8 In August 2002, DSHS,

acting through defendant licensor Ingrid McKinney, revoked

Costanich’s foster license. Defendant James Bulzomi

reviewed the revocation decision and signed the revocation

letter. Costanich’s other foster children, except for F., who

was also under a dependency guardianship, were removed.

In the fall of 2002 and winter of 2003, the ALJ held nine-

teen days of evidentiary hearings. Forty-nine witnesses testi-

fied, including P., J., Duron, Costanich, various DSHS

officials, therapists, and Costanich’s aides. The ALJ reversed

DSHS’s license revocation determination, concluding that the

finding of emotional abuse was not supported by substantial

evidence. Based on live witness testimony, the ALJ found that

Costanich used profanity around the children, but did not

direct it at them, though she did ask P. to move his “black

ass.” The ALJ found K.’s statements to his therapist and

Duron’s statements and reports not credible due to the unad-

dressed inconsistencies.

8

E. and B. have remained with Costanich since then. Because the Tribe

does not allow adoptions of its members, it granted Costanich guardian-

ship of E. and B. in November 2005.

19174 COSTANICH v. DSHS

DSHS appealed the ALJ decision to the DSHS Board of

Appeals, which reversed. Relying primarily on Duron’s report

and on her claim that she recorded her interviews with the

children “near-verbatim,” the Board of Appeals review judge

determined that substantial evidence supported the conclusion

that Costanich directed profanity at the children, including

calling E. a “bitch” and a “cunt,” that she threatened to kill F.,

and that she told P. to “move his black ass,” all of which con-

stituted emotional abuse. While the review judge did

acknowledge that Duron’s investigation suffered from several

errors, he declined to find her report and notes inherently

unreliable.

Costanich appealed the Board’s decision to the King

County Superior Court, which reversed, finding that the

review judge exceeded his authority by making new and

inconsistent findings of fact. The Court of Appeals of Wash-

ington affirmed, reinstating the ALJ’s conclusion that the

finding of emotional abuse was not founded. Costanich, 156

P.3d at 240. The court of appeals held that “[b]ecause the

review judge based his additional, contradictory factual find-

ings solely on hearsay evidence the ALJ rejected as lacking

credibility, . . . the review judge acted outside the scope [of]

his authority.” Id. at 238. It also awarded Costanich attorney’s

fees under Washington’s Equal Access to Justice Act, Wash.

Rev. Code § 4.84.350, finding that “DSHS was not substan-

tially justified in revoking [Costanich’s] license once it

became aware of the problems with Duron’s investigation.”

Costanich, 156 P.3d at 240.

While her appeal of the Board’s decision was pending in

superior court, Costanich filed a civil rights action in Wash-

ington state court, asserting claims under § 1983 and state tort

law9 against the State of Washington, DSHS, Sandy Duron,

9

Costanich asserted causes of action for intentional and negligent inflic-

tion of emotional distress, negligent investigation, malicious prosecution,

and abuse of process.

COSTANICH v. DSHS 19175

and DSHS officials Carol Schmidt, Beverly Payne, James

Bulzomi, Robert Stutz, and Ingrid McKinney. DSHS removed

the action to federal court, where it was held in abeyance

pending the state court appeal. The individual defendants then

moved for summary judgment, claiming absolute immunity

for the investigation, the allegedly false declaration in support

of guardianship termination, and the revocation of

Costanich’s foster care license. They also asserted qualified

immunity for claims arising from their remaining actions.

Costanich moved for partial summary judgment on her § 1983

claim against Duron, arguing that Duron’s fabrication of evi-

dence in her report and declaration deprived Costanich of her

right to due process. The district court granted defendants’

cross-motion for summary judgment on all federal claims and

declined to exercise supplemental jurisdiction over the state

court causes of action. Costanich and the DSHS officials

timely cross-appeal.

II. JURISDICTION AND STANDARDS OF REVIEW

The district court had original jurisdiction under 28 U.S.C.

§ 1331 and supplemental jurisdiction under 28 U.S.C. § 1367.

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

The district court’s grant of summary judgment on the

ground of qualified immunity is reviewed de novo. See Mot-

ley v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004). “Our juris-

diction is limited to questions of law, and does not extend to

qualified immunity claims involving disputed issues of mate-

rial fact. Where disputed facts exist, we assume that the ver-

sion of the material facts asserted by Plaintiffs, as the non-

moving party, is correct.” KRL v. Estate of Moore, 512 F.3d

1184, 1188-89 (9th Cir. 2008) (citation omitted).

The type of immunity to which a public official is entitled

is a question of law, which is reviewed de novo. See Mabe v.

San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d

1101, 1106 (9th Cir. 2001). Federal law controls the question

19176 COSTANICH v. DSHS

of immunity in § 1983 cases. Martinez v. California, 444 U.S.

277, 284 & n.8 (1980).

A district court’s determination regarding collateral estop-

pel is reviewed de novo. See Littlejohn v. United States, 321

F.3d 915, 919 (9th Cir. 2003).

We review for abuse of discretion a district court’s refusal

to exercise supplemental jurisdiction over state law claims

after all federal claims were dismissed. In re Digimarc Corp.

Derivative Litig., 549 F.3d 1223, 1233 n.3 (9th Cir. 2008).

III. DISCUSSION

Costanich claims that Duron and the other DSHS officials

violated her Fourteenth Amendment due process rights by

depriving her of liberty and property interests in her foster

care license and dependency guardianship of E. and B.10 The

10

The district court correctly held that the doctrine of collateral estoppel

is inapplicable because the issues considered by the state courts and the

administrative agency were not identical to those presented in this federal

action. In assessing the preclusive effect of state court decisions, we are

required to apply the collateral estoppel principles of the state in which the

decision was rendered. See Allen v. McCurry, 449 U.S. 90, 96 (1980)

(“[T]hough the federal courts may look to the common law or to the poli-

cies supporting res judicata and collateral estoppel in assessing the preclu-

sive effect of decisions of other federal courts, Congress has specifically

required all federal courts to give preclusive effect to state-court judg-

ments whenever the courts of the State from which the judgments emerged

would do so . . . .”); Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466

(1982) (“Section 1738 requires federal courts to give the same preclusive

effect to state court judgments that those judgments would be given in the

courts of the State from which the judgments emerged.”). Under Washing-

ton law, “[c]ollateral estoppel, or issue preclusion, requires . . . identical

issues . . . .” City of Arlington v. Cent. Puget Sound Growth Mgmt. Hear-

ings Bd., 193 P.3d 1077, 1089 (Wash. 2008) (internal quotation marks

omitted). The issue decided by the ALJ was whether substantial evidence

supported the license revocation, while the issue decided by the state court

was whether the review judge exceeded his authority in basing his factual

COSTANICH v. DSHS 19177

district court correctly concluded that Duron is not entitled to

absolute immunity for the investigation and submission of the

declaration in support of the guardianship termination peti-

tion, while holding that all other DSHS officials were abso-

lutely immune from suit as to the license revocation and

enjoyed qualified immunity on all remaining claims. We

agree with the district court that Duron is entitled to qualified

immunity for her investigation and submission of the declara-

tion in support of the guardianship termination proceedings,

but for somewhat different reasons: We conclude that deliber-

ately fabricating evidence in civil child abuse proceedings

violates the Due Process clause of the Fourteenth Amendment

when a liberty or property interest is at stake,11 and that genu-

ine issues of material fact exist on the question of deliberate

fabrication. We further conclude, however, that, because it

was not clear at the time these events took place that this right

applied in the context of proceedings adjudicating a foster

care license and termination of guardianship, Duron did not

deprive Costanich of a constitutional right that was “clearly

established.” Accordingly, Duron is entitled to qualified

immunity for the alleged evidence fabrication and declaration

in support of the guardianship termination proceedings.

findings on Duron’s reports. Costanich, 156 P.3d at 238. By contrast, the

question in Costanich’s § 1983 suit is whether Duron deliberately fabri-

cated evidence in her investigation. Even if the state court or the adminis-

trative agency addressed the truthfulness of Duron’s reports, neither

decided whether Duron deliberately fabricated the evidence.

11

The Washington State Supreme Court has also recently concluded that

“the deprivation of liberty based on fabricated evidence is a violation of

a person’s constitutional right to due process” in the criminal context, and

that this principle “applies with equal force in a civil proceeding” adjudi-

cating a pharmacist’s license, reasoning that a pharmacist’s professional

and business licenses are property interests protected by the due process

clause. Jones v. State, ___ P.3d ___, 2010 WL 4352199 at *5 (Wash.

Nov. 4, 2010).

19178 COSTANICH v. DSHS

A. Absolute Immunity

[1] It is well established that a defendant’s immunity from

a § 1983 suit is dependent on the common law immunities

existing at the time of § 1983’s enactment. Imbler v. Pacht-

man, 424 U.S. 409, 427 (1976) (granting a prosecutor “the

same absolute immunity under § 1983 that the prosecutor

enjoys at common law”). Interpreting the Supreme Court’s

decision in Kalina v. Fletcher, 522 U.S. 118, 127-29 (1997),

we recently reaffirmed that “it is only the specific function

performed, and not the role or title of the official, that is the

touchstone of absolute immunity.” Miller v. Gammie, 335

F.3d 889, 897 (9th Cir. 2003) (en banc) (per curiam). Two

principal functions are at issue here: (1) the institution of

license revocation proceedings by Duron, McKinney, and

Bulzomi, and (2) the investigation and the submission of a

declaration in support of guardianship termination by Duron.

1. License Revocation Proceedings

[2] The district court properly concluded that Duron, McK-

inney, and Bulzomi were absolutely immune from suit for

their involvement in Costanich’s foster care license revoca-

tion proceedings. We have long held that “social workers

have absolute immunity when they make ‘discretionary,

quasi-prosecutorial decisions to institute court dependency

proceedings to take custody away from parents.’ ” Beltran v.

Santa Clara County, 514 F.3d 906, 908 (9th Cir. 2008) (en

banc) (quoting Miller, 335 F.3d at 898); see also Meyers v.

Contra Costa County Dep’t of Soc. Servs., 812 F.2d 1154,

1157 (9th Cir. 1987). We have noted that, like a prosecutor,

“[t]he social worker must make a quick decision based on per-

haps incomplete information as to whether to commence

investigations and initiate proceedings against parents who

may have abused their children.” Meyers, 812 F.2d at 1157;

see also id. (“The social worker’s independence, like that of

a prosecutor, would be compromised were the social worker

constantly in fear that a mistake could result in a time-

COSTANICH v. DSHS 19179

consuming and financially devastating civil suit.”). Thus, “the

critical decision to institute proceedings to make a child a

ward of the state is functionally similar to the prosecutorial

institution of a criminal proceeding,” and, therefore, deserves

absolute immunity. Miller, 335 F.3d at 898. The institution of

a license revocation proceeding is sufficiently analogous to a

decision to institute a custody termination proceeding to

deserve absolute immunity.

2. Investigation and Filing of Declaration in Support of

Termination Proceedings

Adhering to our en banc decision in Beltran, the district

court also correctly concluded that Duron is not entitled to

absolute immunity for investigating charges against Costanich

or for filing the declaration in support of the guardianship ter-

mination proceedings.

[3] In Beltran, we held that social workers are “not entitled

to absolute immunity from claims that they fabricated evi-

dence during an investigation or made false statements in a

dependency petition affidavit that they signed under penalty

of perjury, because such actions aren’t similar to discretionary

decisions about whether to prosecute.” 514 F.3d at 908. We

analogized the social worker to “[a] prosecutor [who] doesn’t

have absolute immunity if he fabricates evidence during a

preliminary investigation, before he could properly claim to

be acting as an advocate, or makes false statements in a sworn

affidavit in support of an application for an arrest warrant.”

Id. (citing Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993);

Kalina, 522 U.S. at 129-30). “[A]s prosecutors and others

investigating criminal matters have no absolute immunity for

their investigatory conduct, a fortiori, social workers conduct-

ing investigations have no such immunity.” Beltran, 514 F.3d

at 908-09. Duron’s argument that in filing the declaration, she

acted as a witness, and therefore deserves absolute immunity

under Burns v. County of King, 883 F.2d 819, 822-23 (9th Cir.

1989), is unpersuasive in light of Beltran’s clearly controlling

19180 COSTANICH v. DSHS

conclusion to the contrary. Thus, Duron is not entitled to

absolute immunity from the claims that she deliberately fabri-

cated evidence in her investigation and made false statements

in the sworn declaration submitted in support of the guardian-

ship termination proceedings.

B. Qualified Immunity

[4] In determining whether Duron is entitled to qualified

immunity for the investigation and declaration, we apply the

two-step the analysis set forth in Saucier v. Katz, 533 U.S.

194 (2001), under which we inquire, in sequence, (1) whether

“the facts alleged show the [official]’s conduct violated a con-

stitutional right,” and (2) “whether the right was clearly estab-

lished.” Id at 201.12 The district court concluded that

Costanich failed to establish that her constitutional rights were

violated or that any of the rights she asserted was well estab-

lished. We disagree with the district court’s conclusion that

Costanich failed to establish that Duron violated Costanich’s

constitutional rights; however, we agree with the district court

that no such constitutional rights were clearly established.

1. Whether Duron Violated Costanich’s Constitutional

Rights

“[T]o establish a substantive due process claim a plaintiff

must . . . show a government deprivation of life, liberty, or

property.” Nunez v. City of Los Angeles, 147 F.3d 867, 871

12

We note that, although we are no longer required to apply Saucier’s

two steps in turn, doing so is often appropriate and beneficial. See Pearson

v. Callahan, 129 S. Ct. 808, 818 (2009) (“On reconsidering the procedure

required in Saucier, we conclude that, while the sequence set forth there

is often appropriate, it should no longer be regarded as mandatory.”). We

proceed to apply the Saucier two steps in sequence because we have dis-

cretion to do so, and because we find such application to be beneficial. See

id. (“Although we now hold that the Saucier protocol should not be

regarded as mandatory in all cases, we continue to recognize that it is

often beneficial.”).

COSTANICH v. DSHS 19181

(9th Cir. 1998). Therefore, before turning to the question of

whether Costanich’s due process rights were violated, we

must first determine whether there has been a deprivation of

life, liberty, or property. Costanich asserts that by deliberately

fabricating evidence during the investigation and making false

statements in the declaration supporting the guardianship ter-

mination proceedings, Duron deprived her of property and

liberty interests in her foster care license and in the care of E.

and B. as their dependency guardian. The district court found

that “Defendants do not dispute that Plaintiff has property and

liberty interests in her foster case license or that she has a lib-

erty interest in the care of E. and B.” On appeal, DSHS offi-

cials argue that the district court merely “assumed” the above

finding, but they admit in a footnote that “Defendants did not

address this issue in their summary judgment brief due to

page constraints.” Having failed to dispute this issue below,

the DSHS officials waive the argument on appeal that

Costanich lacks a liberty or property interest in her foster care

license and guardianship of E. and B.

[5] As a general rule, we do “not consider an issue not

passed upon below.” Dodd v. Hood River County, 59 F.3d

852, 863 (9th Cir. 1995) (internal quotation marks and cita-

tion omitted). “It is immaterial whether the issue was not tried

in the district court because it was not raised or because it was

raised but conceded by the party seeking to revive it on

appeal.” United States v. Patrin, 575 F.2d 708, 712 (9th Cir.

1978). The DSHS officials’ “page constraints” argument is

unpersuasive, as they filed three merits briefs on summary

judgment totaling sixty pages. They certainly could have

devoted space to this issue if they seriously contested it. In

any case, following our decision in Joshua v. Newell, 871

F.2d 884, 886 (9th Cir. 1989), where we “assume[d] without

deciding that the [foster parents] had a protected property

interest in their license,” and the Supreme Court’s decision in

Smith v. Organization of Foster Families for Equality &

Reform (OFFER), 431 U.S. 816 (1977), which was decided

“on the assumption that [foster parents] have a protected ‘lib-

19182 COSTANICH v. DSHS

erty interest,’ ” id. at 847, we may proceed to consider

whether Duron violated Costanich’s due process rights.

[6] “Substantive due process protects individuals from

arbitrary deprivation of their liberty by government.” Brittain

v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006). “The Court has

repeatedly ‘spoken of the cognizable level of executive abuse

of power as that which shocks the conscience.’ ” Id. (quoting

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).

Costanich’s claim is that Duron falsified evidence in her

investigation and used that false evidence as support for her

declaration, which led to the termination proceedings and the

revocation of Costanich’s foster care license. To sustain a

deliberate fabrication of evidence claim, we have held that a

plaintiff must,

at a minimum, point to evidence that supports at least

one of the following two propositions: (1) Defen-

dants continued their investigation of [plaintiff]

despite the fact that they knew or should have known

that he was innocent; or (2) Defendants used investi-

gative techniques that were so coercive and abusive

that they knew or should have known that those

techniques would yield false information.

Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en

banc). We noted that “mere allegations that Defendants used

interviewing techniques that were in some sense improper, or

that violated state regulations, without more, cannot serve as

the basis for a claim under § 1983.” Id. at 1075.

The district court concluded that, under Devereaux,

Costanich has not demonstrated that Duron deliberately fabri-

cated evidence. It held that Costanich failed to show that

Duron or any other DSHS official continued the investigation

despite knowing of Costanich’s innocence or used coercive

techniques that were known to produce false information.

Concluding that the recognized problems with Duron’s inves-

COSTANICH v. DSHS 19183

tigation were just “recording errors and misstatements,” it

held that “a careless or inaccurate investigation that does not

ensure an error-free result does not rise to the level of a con-

stitutional violation.” (citing Devereaux, 263 F.3d at

1076-77); see also Gausvik v. Perez, 345 F.3d 813, 817 (9th

Cir. 2003) (“[Inaccuracy] claims do not show [the state

employee] continued the investigation despite knowing [the

subject of a child abuse investigation] was innocent or that he

used investigative techniques that he knew would yield false

information. . . . While [the state employee’s] affidavit may

have been careless or inaccurate, it does not satisfy

Devereaux’s stringent test.”).

[7] The district court read the Devereaux standard too nar-

rowly. Costanich alleges, and has produced evidence support-

ing her claim, that Duron deliberately misquoted and

misrepresented witness statements, i.e., deliberately falsified

statements in her investigative report and declaration. The

Devereaux test envisions an investigator whose unlawful

motivation is illustrated by her state of mind regarding the

alleged perpetrator’s innocence, or one who surreptitiously

fabricates evidence by using coercive investigative methods.

These are circumstantial methods of proving deliberate falsifi-

cation. Here, Costanich argues that the record directly reflects

Duron’s false statements. If, under Devereaux, an interviewer

who uses coercive interviewing techniques that are known to

yield false evidence commits a constitutional violation, then

an interviewer who deliberately mischaracterizes witness

statements in her investigative report also commits a constitu-

tional violation. Similarly, an investigator who purposefully

reports that she has interviewed witnesses, when she has actu-

ally only attempted to make contact with them, deliberately

fabricates evidence.

[8] We have previously held that when genuine issues of

material fact arise regarding fabrication of evidence in a child

abuse investigative report, a police officer is not entitled to

qualified immunity because “[c]redibility is an issue for the

19184 COSTANICH v. DSHS

trier of fact.” McSherry v. City of Long Beach, 560 F.3d 1125,

1130 (9th Cir. 2009). Summary judgment on this issue was

inappropriate here because Costanich introduced sufficient

evidence to demonstrate genuine issues of material fact. For

example, Duron’s report indicated that she had interviewed

thirty-four people. She later admitted that she had made only

brief contact with eighteen of the individuals listed. The mis-

representations about interviewing the children’s doctors were

especially significant. The suggestion that she interviewed

three of the therapists and received reports from a fourth lent

credibility to her report, but, as Duron testified at the ALJ

hearing, she did not actually speak to “[m]edical profession-

als.” In addition, the investigative report suggests that Duron

interviewed K. and describes a conversation with Dr. Crabbe,

the therapist whose referral was the catalyst for Duron’s

investigation. Upon examination by the ALJ, however, Duron

admitted that during the “interview” with K. she was holding

a copy of Dr. Crabbe’s referral and K. only told her that

“[e]verything that’s on the referral is true,” even though she

never showed the referral to K. Further, she conceded that “K.

wouldn’t say much” but that she still “just kind of summa-

rized what he was saying.” Duron admitted that she never

actually interviewed Dr. Crabbe, despite the fact that Dr.

Crabbe made the initial referral and sent DSHS a letter on

December 18, 2001, “strongly recommend[ing] that K.

remain” with the Costaniches as he “has made a very positive

adjustment to the Costanich home.”

[9] Other witnesses pointed out that the report contained

evidence or statements they never made. For example, accord-

ing to Duron’s report of her interview with Diane Isley, the

guardian ad litem for F., Isley stated that Costanich, in refer-

ence to a child that might try to run away, said she would

“chain the little shit to the bed.” Isley declared in a sworn let-

ter, however, that she never made this statement and that she

never talked to Duron about such a child. Duron also reported

that another aide, Crystal Hill, said that Costanich was “al-

ways calling E. a ‘fucking cunt, and bitch.’ ” In a sworn letter,

COSTANICH v. DSHS 19185

however, Hill stated: “I have never seen her directly swear

face to face at one of the children.” Further, that Duron pur-

posefully used quotation marks around many of the purported

witness statements in her investigative report—including the

Isley and Hill statements—could support a trier of fact’s con-

clusion that Duron deliberately fabricated evidence. In the

defamation context, the Supreme Court has said:

[Q]uotation marks around a passage indicate to the

reader that the passage reproduces the speaker’s

words verbatim. They inform the reader that he or

she is reading the statement of the speaker, not a

paraphrase or other indirect interpretation by an

author. By providing this information, quotations

add authority to the statement and credibility to the

author’s work. Quotations allow the reader to form

his or her own conclusions and to assess the conclu-

sions of the author, instead of relying entirely upon

the author’s characterization of her subject.

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511

(1991) (holding that a jury may find knowledge or reckless

disregard of falsity when a publication attributes to the plain-

tiff quoted statements that the plaintiff never actually made).

Moreover, contrary to Duron’s report, all of the witnesses’

sworn letters express positive descriptions of the Costanich

foster home. Finally, the ALJ, who had the benefit of live wit-

ness testimony, found that “a number of [the] witnesses . . .

specifically dispute the reported evidence in the form of the

Service Episode Reports (SERs) which Ms. Duron utilized in

memorializing the information she received.”

[10] The district court’s description of the errors in the

investigation as “recording errors and misstatements” is

untenable in light of the principle that, on summary judgment,

we must draw all factual inferences in favor of the nonmoving

party. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916,

922 (9th Cir. 2004). It is true that, despite Costanich’s claims

19186 COSTANICH v. DSHS

to the contrary, Duron never admitted to falsifying the record.

An admission by a defendant, however, is not required to sur-

vive summary judgment. Resolution of disputed material facts

is the special province of the factfinder. See Balint v. Carson

City, 180 F.3d 1047, 1054 (9th Cir. 1999). The errors in

Duron’s report are not questions of tone or characterization

but actual misrepresentations. In concluding otherwise, the

district court relied on Gausvik, where a police officer stated

in a probable cause affidavit that the defendant’s children

tested “positive” for child abuse, though the tests were only

“consistent” with child abuse. 345 F.3d at 817. The substitu-

tion of “consistent” for “positive,” however, reasonably may

be characterized as a misstatement. Reporting that a witness

said something she did not cannot be so characterized.

It is also true that, in the course of her investigation, Duron

could have believed that Costanich was guilty of emotional

abuse. Under Washington law, foster parents are prohibited

from the use of “cruel, unusual, frightening, unsafe or humili-

ating discipline practices,” which include “[n]ame calling,

using derogatory comments; [t]hreatening the child with

physical harm; [and t]hreatening or intimidating the child.”

Wash. Admin. Code § 388-148-0470(1)(f)-(h). At the time of

Duron’s investigation, Washington law defined abuse as “acts

which are cruel or inhumane regardless of observable injury,”

Wash. Admin. Code. § 388-15-130(3)(d) (repealed), and the

Court of Appeals of Washington had held that a foster moth-

er’s “use of profanity to address the children constitutes

humiliating discipline,” leading to the conclusion that the

combined “use of corporal punishment and profanity justified

the revocation of her foster care license,” Morgan v. Dep’t of

Soc. & Health Servs., 992 P.2d 1023, 1027 (Wash. Ct. App.

2000). If the only evidence of deliberate fabrication were

inferences from Duron’s investigative methods, under

Devereaux, Duron’s subjective and personal belief of

Costanich’s guilt might have explained why Duron continued

the investigation. 263 F.3d at 1076. That belief, however,

does not permit or excuse deliberate falsification of evidence.

COSTANICH v. DSHS 19187

For the same reasons, genuine issues of material fact also

exist as to whether Duron’s statements in the declaration in

support of the termination proceedings violated Costanich’s

due process rights. In the declaration, Duron repeats substan-

tially the same facts as recited in her report and that are con-

tested on appeal—that she interviewed the children’s

therapists, that an aide said Costanich called E. a “fucking

cunt, and bitch,” and that a CASA, presumably Isley, said that

Costanich used profanity “toward” the children. Record evi-

dence in the form of sworn letters from these individuals

creates a material dispute as to these facts and as to the delib-

erateness of Duron’s inclusion of these facts in her declara-

tion.

[11] We therefore conclude that Costanich had a Four-

teenth Amendment due process right to be free from deliber-

ately fabricated evidence in a civil child abuse proceeding,

and that, because genuine issues of material fact exist as to

whether Duron deliberately fabricated evidence, which led to

the termination proceedings and license revocation, the dis-

trict court erroneously concluded that “Plaintiff has not pro-

vided evidence showing that Defendants deliberately made

false statements and fabricated evidence to make a false find-

ing of abuse.”

2. Whether the Right Is Clearly Established

The district court held that Costanich “failed to identify a

clearly established right that Defendants violated” because her

right to due process is “too nebulous to be ‘clearly estab-

lished.’ ” It reasoned that “the constitutional right ‘not to be

subjected to criminal charges on the basis of false evidence

that was deliberately fabricated by the government,’ ” based

on Devereaux, was inapplicable here because Costanich was

not subjected to criminal charges, but only to civil license

revocation and guardianship termination proceedings.

According to the district court, the distinction between the

alleged deprivation of liberty here and the deprivation in Dev-

19188 COSTANICH v. DSHS

eraux is critical: the former involves the government’s delib-

erate fabrication of evidence in civil child abuse proceedings

while the latter involves the government’s deliberate fabrica-

tion of evidence in criminal child abuse proceedings. We

agree with the district court’s conclusion that Duron did not

violate Costanich’s “clearly established” rights. Although we

conclude that, going forward, officials who deliberately fabri-

cate evidence in civil child abuse proceedings which result in

the deprivation of a protected liberty or property interest are

not entitled to qualified immunity, this right had not previ-

ously been clearly established in the civil context.13

[12] A right is “clearly established” when “the contours of

the right were already delineated with sufficient clarity to

make a reasonable offic[ial] in the defendant’s circumstances

aware that what he was doing violated the right.” Devereaux,

263 F.3d at 1074; see also Saucier, 533 U.S. at 202 (“If the

law did not put the officer on notice that his conduct would

be clearly unlawful, summary judgment based on qualified

immunity is appropriate.”). In Pyle v. Kansas, 317 U.S. 213,

215-16 (1942), the Supreme Court held that the prosecution’s

knowing use of perjured testimony to obtain a criminal con-

viction violates the Constitution. In Devereaux, we considered

a § 1983 claim by a foster parent against police officers and

DSHS officials who investigated and prosecuted the parent

for criminal sexual abuse of his foster children. Relying upon

Pyle, we held “that there is a clearly established constitutional

due process right not to be subjected to criminal charges on

the basis of false evidence that was deliberately fabricated by

the government.” Devereaux, 263 F.3d at 1074-75. Though

we were “not aware of any prior cases that have expressly

13

The Washington State Supreme Court declined to grant qualified

immunity in Jones to the Board of Pharmacy inspectors because it was

clearly established Washington law that a pharmacist has a constitution-

ally protected property interest in his professional and business licenses.

We do not reach the question whether Costanich has a similarly protected

right to her foster care license. See 2010 WL 4352199 at *5, 8.

COSTANICH v. DSHS 19189

recognized this specific right,” we found that “the wrongful-

ness of charging someone on the basis of deliberately fabri-

cated evidence is sufficiently obvious, and Pyle is sufficiently

analogous, that the right to be free from such charges is a con-

stitutional right.” Id. at 1075; see also Anderson v. Creighton,

483 U.S. 635, 640 (1987) (“This is not to say that an official

action is protected by qualified immunity unless the very

action in question has previously been held unlawful, but it is

to say that in the light of pre-existing law the unlawfulness

must be apparent.” (citation omitted)).

[13] Under Devereaux, charging an individual with crimi-

nal child abuse based on false information violates the Consti-

tution. Devereaux, 263 F.3d at 1075. Although Devereaux

does not specifically address civil child abuse proceedings,

the right not to be accused based upon deliberately fabricated

evidence is sufficiently obvious, and Devereaux is sufficiently

analogous to the facts here, that government officials are on

notice that deliberately falsifying information during civil

investigations which result in the deprivation of protected lib-

erty or property interests may subject them to § 1983 liability.

As Devereaux stated, while “there is no constitutional due

process right to have child witnesses in a child sexual abuse

investigation interviewed in a particular manner, or to have

the investigation carried out in a particular way,” id, “inten-

tionally fabricating false evidence is quite another” matter, id.

at 1077. Further, because social workers, like prosecutors, are

entitled to absolute immunity for instituting child removal

proceedings, social workers, like prosecutors, must refrain

from deliberately falsifying evidence during investigations

and in sworn testimony or declarations to the court.14 See gen-

14

Our sister circuits have denied qualified immunity to social workers

who removed children from their families based on unreliable evidence in

violation of the due process right of family integrity. See, e.g., Croft v.

Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1127 (3d

Cir. 1997) (denying qualified immunity to a social worker who separated

a child from her parent on the basis of an uncorroborated anonymous tip

19190 COSTANICH v. DSHS

erally Beltran, 514 F.3d at 906. Thus, going forward, reason-

able government officials are on notice that deliberately

falsifying evidence in a child abuse investigation and includ-

ing false evidentiary statements in a supporting declaration

violates constitutional rights where it results in the deprivation

of liberty or property interests, be it in a criminal or civil pro-

ceeding.

[14] However, given the distinctions between criminal

prosecutions and civil foster care proceedings, we cannot say

that this right was clearly established as of 2001, when the

conduct at issue in this case occurred. The special duties of

prosecutors and the unique interests at stake in a criminal

action do not parallel the duties and interests at stake in a civil

child custody proceeding. Washington’s “paramount concern”

for safeguarding and protecting the health and safety of foster

children, for example, places a special duty on DSHS officials

to vigorously investigate allegations of child abuse. See, e.g.,

Wash. Rev. Code §§ 13.34.020, 74.13.010, 74.13.031(3). Fur-

thermore, it is clear that Washington foster care licensees’ and

custodial guardians’ interests do not rise to the level of a

criminal defendant’s interests, which are clear and long-

established. While these factors do not excuse deliberate fab-

rication of evidence, there are sufficient distinctions between

criminal prosecutions and civil foster care proceedings that

and without “objectively reasonable grounds”). They have also denied

qualified immunity to social workers investigating child abuse who fabri-

cated evidence to support a search warrant in violation of the Fourth

Amendment. See, e.g., Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir.

1990) (holding that social workers’ false “sworn representations as to the

existence of probable cause would be perjury . . . and perjury is not objec-

tively reasonable conduct”). Though these cases do not specifically dis-

cuss the due process right not to be subject to child abuse allegations on

the basis of deliberately falsified evidence, they nonetheless reflect the

prevailing principle that social workers who deliberately falsify evidence

in child abuse investigations cannot claim the benefit of qualified immu-

nity.

COSTANICH v. DSHS 19191

the right had not yet been clearly established in the civil con-

text.

[15] Because we conclude that the right not to be accused

based on deliberately falsified evidence during civil investiga-

tions which could result in the deprivation of protected liberty

or property interests was not clearly established when the con-

duct at issue in this case occurred, we affirm the district

court’s grant of summary judgment on the basis of qualified

immunity.15

C. Remaining Claims Against DSHS Officials

The district court does not specify for which acts the other

DSHS officials were granted qualified immunity. Though

Costanich’s briefs focus principally on Duron, she also

alleges that other DSHS officials, including Payne and Stutz,

knew about and failed to correct the errors in Duron’s investi-

gation and relied on the investigation to go forward with the

termination petition. More specifically, she claims that Payne

directed another CPS employee to make a referral against

Costanich, that Schmidt lied about making a CPS referral, that

McKinney admitted to entering false records regarding

Costanich, and that Bulzomi and Stutz threatened her with

loss of her daughters if she disputed the abuse finding. These

claims are not supported by the record. No evidence supports

the claim that Schmidt lied about a referral. McKinney did not

admit to a falsification of evidence but only to a mistake.

Several of the DSHS employee claims also do not rise to

the level of a constitutional violation. Costanich does not

15

And, because the issue is not properly before us, we decline to decide

whether a Washington state foster parent in fact has a protected liberty

interest in a foster care license. As discussed, DSHS waived the argument

that Costanich does not have a protected liberty interest in her foster care

license. Accordingly, we need not reach this question. See Dodd, 59 F.3d

at 863.

19192 COSTANICH v. DSHS

explain how Payne’s direction to an employee to investigate

and file a referral regarding an incident involving one of the

foster children, or the Bulzomi/Stutz offer, or the fact that

Payne and Stutz knew of the letters by therapists who opposed

removing the foster children violate Costanich’s constitutional

rights. Costanich points to nothing in the record that supports

the conclusion that these officials deliberately fabricated evi-

dence. Some evidence may be read to suggest that someone

at DSHS was improperly motivated to terminate Costanich’s

guardianship of E. and B. For example, in March 2002, a new

social worker, Jackie Timentwa-Wilson, replaced E.’s and

B.’s previous social workers, E. Nelson and S. Hunter, after

both Nelson and Hunter recommended that the girls remain

with Costanich. Nelson testified that she was removed from

the case for not advocating removal, and Hunter testified that

she was removed from the case suddenly and told not to con-

tact the new social worker. It is reasonable, however, that the

DSHS officials believed their actions regarding the termina-

tion proceedings were justified based on Costanich’s undis-

puted use of profanity around the children, even if they had

reason to question some of the conclusions in Duron’s investi-

gation, and Costanich has adduced no evidence to the con-

trary. Costanich thus failed to establish a violation of a clearly

established constitutional right by the other DSHS officials.

Therefore, the district court correctly entered judgment in

their favor on the basis of qualified immunity.

To the extent that Costanich maintains her procedural due

process claims on appeal, they were properly dismissed by the

district court. As the district court concluded, Costanich bene-

fitted from multiple layers of administrative and state court

review and, therefore, cannot allege that she is a victim of

“lack of process.” Costanich also raises on appeal a § 1983

malicious prosecution claim. Because she failed to raise this

issue in the district court, she has waived this claim. See

Dodd, 59 F.3d at 863. Finally, Costanich raises a First

Amendment claim for the first time in her reply brief. She

argues that the DSHS officials violated her First Amendment

COSTANICH v. DSHS 19193

rights when they threatened the loss of her daughters if she

challenged their finding of abuse. She supports her claim with

a citation to Hartman v. Moore, 547 U.S. 250 (2006), which

sets forth the general proposition that the “First Amendment

prohibits government officials from subjecting an individual

to retaliatory actions . . . for speaking out.” Id. at 256.

Costanich waived this argument by failing to raise it at the

district court, Dodd, 59 F.3d at 863, and in her opening brief

on appeal, Martinez-Serrano, 94 F.3d at 1259.

IV. CONCLUSION

We affirm the district court’s judgment in favor of Duron,

McKinney, and Bulzomi on the basis of absolute immunity

for the revocation of Costanich’s foster care license. We also

affirm the judgment in favor of Schmidt, Payne, Bulzomi,

Stutz, and McKinney on qualified immunity grounds for vari-

ous actions taken by them with regard to Costanich. Finally,

we affirm the judgment in favor of Duron on qualified immu-

nity grounds for her investigation and the declaration in sup-

port of the guardian termination proceedings because,

although genuine issues of material fact exist as to whether

Duron deliberately fabricated evidence, Duron did not deprive

Costanich of a clearly established constitutional right.

AFFIRMED.