Rogers v. County of San Joaquin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS ROGERS; NICOLE ROGERS, 

an individual; STEVEN KAHNCOCK,

Guardian ad litem for minors

Thomas R. Rogers and Shelby

Rogers,

Plaintiffs-Appellants,

v.

COUNTY OF SAN JOAQUIN;

CHARLOTTA ROYAL, individually No. 05-16071

and in her official capacity as

social worker for the County of  D.C. No.

CV-02-01961-DFL

San Joaquin Human Services

OPINION

Agency; DENISE WEST, individually

and in her official capacity as

social worker for the County of

San Joaquin Human Services

Agency; CITY OF LODI; DENNIS

LEWIS, individually and in his

capacity as police officer for the

City of Lodi,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

David F. Levi, District Judge, Presiding

Argued and Submitted

April 16, 2007—San Francisco, California

Filed May 29, 2007

Before: Warren J. Ferguson, Stephen Reinhardt, and

Milan D. Smith, Jr., Circuit Judges.

6313

6314 ROGERS v. COUNTY OF SAN JOAQUIN

Opinion by Judge Reinhardt

6316 ROGERS v. COUNTY OF SAN JOAQUIN

COUNSEL

David J. Beauvais, Oakland, California, for the plaintiffs-

appellants.

Daniel C. Cederborg, Office of the County Counsel, County

of San Joaquin, Stockton, California, for the defendants-

appellees.

ROGERS v. COUNTY OF SAN JOAQUIN 6317

OPINION

REINHARDT, Circuit Judge:

The Rogers family brought this action under 42 U.S.C.

§ 1983, alleging that the conduct of social worker Charlotta

Royal in removing the Rogers children from their home with-

out a warrant violated their Fourth and Fourteenth Amend-

ment rights. Both parties filed motions for summary

judgment, although the Rogerses’ was as to liability only. The

district court granted Royal’s motion on the basis of qualified

immunity. Because we hold that it was clearly established that

warrantless removal of children is permissible only in cases

of exigency, and that it would have been apparent to a reason-

able social worker that no exigency existed in this case, we

reverse both the grant of summary judgment to Royal and the

denial of partial summary judgment to the Rogerses.

FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 2001, San Joaquin County Child Protective

Services received a report of child neglect in the Rogers

home. The caller stated that three-year-old Shelby Rogers

(“Shelby”) and five-year-old Thomas Rogers, Jr. (“Tommy”)

were not toilet-trained, were locked in their rooms at night

and in a room at their parents’ business during the day, were

not receiving medical or dental care, that Tommy had lost his

teeth due to bottle rot, that Shelby was still being fed with a

bottle, that their home was dirty and maggot-infested, and that

there were unsecured guns in the home. The intake unit did

not view this report as requiring an emergency response, but

rather classified it as warranting a response within ten days.1

Three days later, before any action had been taken to investi-

1

Royal testified that the criteria that separate an emergency response

from a ten-day response case varies, but examples of emergency response

situations would be physical abuse or sexual abuse when the perpetrator

is in the home, or the absence of food from the home.

6318 ROGERS v. COUNTY OF SAN JOAQUIN

gate the report, Child Protective Services received a second,

similar report regarding the Rogers children and likewise clas-

sified it as requiring a ten-day response.

On August 31, Royal, a social worker with Child Protective

Services, visited the Rogers home, but, finding no one there,

departed without leaving a message or a note. She returned a

week later, on September 7 at 8:30 a.m. Observing that the

family was home, Royal called for the assistance of Lodi

Police and waited for the officers to arrive before making con-

tact with the family. Officer Dennis Lewis and at least one

other police officer responded.

The family was just getting up when Royal and the officers

entered their home.2 Royal claimed that following her entry

she heard Shelby knocking and asking for her mother from

inside a bedroom. The mother, Nicole Rogers (“Nicole”),

claims, however, that Shelby was neither knocking nor calling

for her.

Officer Lewis asked to see the whole family. Nicole went

to Shelby’s bedroom and unfastened a latch-type lock to open

the door. Shelby emerged from the room dressed in a diaper

that, according to Royal, appeared to be soiled. Nicole then

retrieved Tommy from his bedroom. Tommy emerged wear-

ing pajamas and a pull-up diaper. Royal saw a thumb lock

similar to those used in bathroom doors on the outside of

Tommy’s bedroom door. Royal believed that both children

had been locked in their bedrooms, but Nicole testified that

Tommy’s bedroom door was not locked. The father, Thomas

Rogers (“Thomas”), also got out of bed to talk with Royal and

Officer Lewis.

Royal asked why the children had locks on their bedroom

2

The parties debate whether the Rogerses consented to the entry, but

that issue is not before us on appeal. Thus, our decision does not apply to

that question, to the extent that it may still be viable in the district court.

ROGERS v. COUNTY OF SAN JOAQUIN 6319

doors. Nicole testified that she told Royal that they had never

locked Tommy’s door, that his room had a lock on the door

when they moved into the house, and that they had simply

never removed it. According to her testimony, she also stated

that they locked Shelby in her room at night because other-

wise she would roam the house and get into things while the

rest of the family was sleeping. However, Royal testified that

Nicole first stated that she locked the children in their rooms

only when she showered, and that only after Royal pointed

out that Nicole had not been showering when they arrived did

she say that she locked Shelby in at night. Royal testified that

she believed Nicole had tried to lie to her and that this con-

cerned her. She said that she was also concerned about the

children being locked in their bedrooms because it could

result in injury due to lack of supervision or as a result of a

fire, and could restrict their access to the bathroom. Royal told

the Rogerses that they would have to remove the locks.

Nicole testified that she agreed to do so, but Royal contended

that the Rogerses did not respond to her statement.

Royal asked why the children were still in diapers. The

Rogerses testified that they replied that they were “working

with” Tommy, and that while they put a pull-up diaper on him

at night, he was “doing good during the day.” They said that

Shelby was not yet toilet-trained. Royal testified, however,

that Nicole told her that “she hadn’t had time” to toilet-train

the children.

Royal and Officer Lewis inspected Tommy’s mouth.

Tommy suffered from severe bottle rot. Several of his teeth

were missing and his remaining teeth were yellow and

showed signs of decay. His mother acknowledged during her

deposition that Tommy’s mouth had looked “horrible.” Nicole

told Royal that Tommy had never complained of pain. She

said that a dentist had told her that Tommy needed surgery,

and she had scheduled an appointment but cancelled it out of

fear that Tommy would be harmed, after she and her husband

saw a television program about a child dying while under gen-

6320 ROGERS v. COUNTY OF SAN JOAQUIN

eral anaesthesia. Royal testified that she believed that this

meant the Rogerses were unwilling to take Tommy to the den-

tist.

Royal asked if the family had medical insurance. Accord-

ing to Nicole, she answered that they did not have medical

insurance at the moment but that she was waiting for an appli-

cation, at which point Royal asked for proof that she had ever

had insurance and Nicole showed her old membership cards

for Kaiser. Nicole testified that Royal then asked her if the

cards were active and she replied that they were not. Royal,

however, stated that Nicole first told her that they had medical

insurance and then attempted to deceive her by showing her

inactive cards when she asked for proof. This, according to

Royal, caused her further to doubt Nicole’s honesty.

Royal observed that the children had multiple circular

bruises on their legs. Nicole stated that the children were

always falling down. Royal also observed that Shelby had a

large scratch on the side of her face. Nicole and Thomas told

Royal that Shelby sustained the scratch when she fell off a

chair at their workplace. They explained that they worked in

an auto shop in San Leandro and that they took the children

with them to work every day. Royal testified that she did not

think that the children were being physically abused. She was

concerned, however, that, because the children were taken to

their parents’ place of business every day, they were isolated

and would not be seen by pre-school teachers or others who

would be required to report suspected abuse.

Royal also observed that Shelby had unkempt hair that

appeared to be thin and missing in some areas and that both

children were very pale. She believed that the thinning hair

could indicate malnutrition and the pale skin could be due to

a vitamin deficiency or lack of sunlight. She observed, how-

ever, that the refrigerator and kitchen cabinets were well

stocked with food and that the bathroom had the necessary

toiletries. She told the Rogerses that the children looked very

ROGERS v. COUNTY OF SAN JOAQUIN 6321

pale and sickly, and that they could be suffering from a vita-

min deficiency or from lack of sunlight. Nicole responded that

their pale complexion and Shelby’s thin hair were due to the

fact that their father has pale skin and fine hair.

The parties dispute the condition of the Rogers home.

Royal and Officer Lewis stated that they observed piles of

dirty dishes and an overflowing garbage receptacle in the

kitchen, as well as piles of dirty clothing scattered about the

kitchen, living room and bedrooms. Thomas testified, how-

ever, that the garbage receptacles were only partly full. He

also testified that the reason for the piles of clothing was that

the washer and dryer were broken.

Royal stated that she observed that the children had dirty

bedding and mattresses without frames. In Shelby’s room, she

saw clothing that she believed was dirty scattered on the floor.

The Rogerses do not dispute that the children did not have

bedframes, but testified that the clothing and bedding were

clean. Thomas also testified that Shelby’s clothes were on the

floor because she had a habit of pulling them out of her

dresser to play dress-up. In Tommy’s room, Royal observed

a brown substance that she believed to be feces smeared on

the wall and a substance that she thought was rat droppings

on the floor. Officer Lewis observed what he thought was

vomit in the bottom drawer of a night stand. Tommy told

Royal that the substance on the wall was a smashed graham

cracker. The Rogerses testified that the alleged rat droppings

on the floor actually consisted of small grains of filling that

came out of a broken hacky sack ball, and the purported

vomit, like the smears on the wall, was the remains of broken

graham crackers.

There were five guns in the Rogerses’ bedroom, four of

which were unloaded and stored in the closet, and one of

which was loaded and kept in the dresser next to the Rog-

erses’ bed. Thomas testified that ammunition for the guns

remained in the closet in a childproof container. Nicole testi-

6322 ROGERS v. COUNTY OF SAN JOAQUIN

fied that the gun in the dresser had a trigger lock with a key,

and the key was located in a jewelry box mounted on the wall.

Royal stated that after her conversation with the Rogerses

and her observations of the condition of the home, she

believed that the Rogers children had been neglected for some

time and that there was an imminent risk to their physical

health and safety. Based on this opinion, Royal chose to

remove them from their home immediately and place them in

the custody of Child Protective Services.3 Royal did not offer

the Rogerses alternative accommodations, medical referrals

for the children, or services from the agency whereby the chil-

dren could remain at home. Royal also did not obtain a war-

rant.

Royal called for a car seat and, when it arrived, transported

the children to Lodi Memorial Hospital. She testified that

Tommy complained of mouth pain while at the hospital. She

also testified that an attending nurse stated that the children

appeared to be malnourished and suffering from a vitamin

deficiency. The doctor who saw the children stated in his

evaluation that both were “alert” and “playful,” but had “poor

hygiene.” The doctor wrote that Tommy had “many teeth

missing” and that Shelby’s hair was “sparse, brittle.” The doc-

tor also wrote that the purpose of the visit was “medical clear-

ance prior to [Child Protective Services] placement” and

classified the visit as routine rather than emergency.

After the medical clearance the children were placed in a

shelter. Tommy did not receive any dental care that day or at

any time while in the County’s custody. The children were

returned to their parents on September 20, 2001, after the

3

Royal and Officer Lewis dispute who made the decision to remove the

children, with both claiming that the other did so. Royal concedes, how-

ever, that this factual dispute is not relevant to the outcome of this appeal

because she was ultimately responsible for the decision and could have

countermanded it if she had disagreed.

ROGERS v. COUNTY OF SAN JOAQUIN 6323

Rogerses made changes to their home and lifestyle as required

by Child Protective Services, obtained medical insurance, and

arranged for Tommy to have oral surgery. As a result of their

time in custody, according to their mother, the children

became concerned about being separated from their parents.

Nicole further testified that Tommy, in particular, “lost trust

in people in general” because of the experience.

The Rogerses appealed the grant of summary judgment to

Royal as well as the denial of their own motion for partial

summary judgment as to Royal.

JURISDICTION

The grant of summary judgment is a final order and thereby

gives us jurisdiction over both the grant of summary judgment

to Royal and the denial of partial summary judgment to the

Rogerses. See Jones-Hamilton Co. v. Beazer Materials &

Servs., Inc., 973 F.2d 688, 694 (9th Cir. 1992). We have

declined to exercise our jurisdiction over denials of summary

judgment when reviewing orders granting summary judgment

where the record has not been fully developed. Id. at 694 n.2.

Such is not the case here. Moreover, both sides agree that the

denial of the Rogerses’ motion is properly before us on

appeal.

QUALIFIED IMMUNITY

I. Constitutional violation:

[1] In assessing a claim of qualified immunity, we must

first decide whether “the [official’s] conduct violated a consti-

tutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001).

“Parents and children have a well-elaborated constitutional

right to live together without governmental interference.”

Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000). “The

Fourteenth Amendment guarantees that parents will not be

separated from their children without due process of law

6324 ROGERS v. COUNTY OF SAN JOAQUIN

except in emergencies.” Mabe v. San Bernardino County,

Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir.

2001). Officials violate this right if they remove a child from

the home absent “information at the time of the seizure that

establishes ‘reasonable cause to believe that the child is in

imminent danger of serious bodily injury and that the scope

of the intrusion is reasonably necessary to avert that specific

injury.’ ” Id. at 1106 (quoting Wallis, 202 F.3d at 1138). The

Fourth Amendment also protects children from removal from

their homes absent such a showing. Doe v. Lebbos, 348 F.3d

820, 827 n.9 (9th Cir. 2003). Officials, including social work-

ers, who remove a child from its home without a warrant must

have reasonable cause to believe that the child is likely to

experience serious bodily harm in the time that would be

required to obtain a warrant. Mabe, 237 F.3d at 1108.

[2] Serious allegations of abuse that have been investigated

and corroborated usually give rise to a “reasonable inference

of imminent danger sufficient to justify taking children into

temporary custody” if they might again be beaten or molested

during the time it would take to get a warrant. Ram v. Rubin,

118 F.3d 1306, 1311 (9th Cir. 1997). However, an official’s

prior willingness to leave the children in their home militates

against a finding of exigency, as does information that the

abuse occurs only on certain dates or at certain times of day.

Mabe, 237 F.3d at 1108; Wallis, 202 F.3d at 1140.

[3] Under this standard, the district court correctly con-

cluded that Tommy’s bottle rot, the children’s malnourish-

ment, and the disorderly conditions in the home did not

present an imminent risk of serious bodily harm. This is so

whether the disputed factual questions are resolved in favor of

appellants or defendants.

[4] At oral argument, Royal conceded that she could have

obtained a warrant within hours. There is no indication in the

record that so short a delay could have resulted in a signifi-

cant worsening of the children’s physical conditions or an

ROGERS v. COUNTY OF SAN JOAQUIN 6325

increase in the prospects of long-term harm. Royal testified

that she thought, after seeing Tommy’s mouth, that he could

have an abscess and that he almost certainly had an infection.

However, she does not assert that she believed that his condi-

tion would worsen if she delayed taking him into custody in

order to obtain a warrant. Tommy’s teeth may have hurt, but,

if so, he had likely been experiencing such pain for a consid-

erable period of time and the “pain” was not so serious that

he ceased to be “playful” and “alert.” Under such circum-

stances, any pain Tommy may have experienced cannot jus-

tify a failure to obtain a warrant or the peremptory removal

of the children from their parents’ custody. Similarly, Royal’s

testimony, even viewed in the light most favorable to her,

does not suggest that the malnourishment in this case was suf-

ficiently serious to justify the children’s immediate removal

as both were alert and active, and there was no indication of

imminent danger. It is worth noting in this respect that when

the children eventually reached the hospital, the doctor did not

suggest any immediate treatment for Tommy’s bottle rot or

Shelby’s malnutrition.4

[5] Nor do the other circumstances cited by Royal support

a finding of exigency, even if her version of all the disputed

facts is accepted as true, and even if all of the conditions

observed by her are considered collectively. There was no

imminent danger of serious bodily harm as a result of Shelby

being locked in her room, as this occurred only at night. Cf.

Mabe, 237 F.3d at 1108 (concluding that the sexual abuse

alleged in that case occurred only at night, so there was time

to get a warrant before the child would be in imminent dan-

ger). The allegations that the children were also locked up

during the day at their parents’ workplace, even if true, do not

4

Although only the information that Royal had at the time that she made

the challenged decision is relevant to the qualified immunity inquiry, the

doctor’s response is relevant to the question of how serious the children’s

conditions would have appeared to the reasonable social worker. Baker v.

Racansky, 887 F.2d 183, 185 n.1 (9th Cir. 1989).

6326 ROGERS v. COUNTY OF SAN JOAQUIN

support a finding of imminent risk of serious bodily harm.

The chances of accidental injury or of a fire breaking out at

the Rogerses’ workplace during the few hours that it would

take Royal to obtain a warrant were very low. So remote a

risk does not establish reasonable cause to believe that the

children were in immediate danger.

[6] Similarly, the conditions of the home, even if as unsani-

tary as Royal asserts, fail to indicate any imminent risk of

serious bodily harm. Like the bottle rot, the mess in the Rog-

ers living quarters, to the extent that it may have existed, was

a chronic, ongoing problem. The presence of disorderliness

and a small amount of droppings, feces, and other matter may

increase the risk of eventual illness, but there is no indication

in the record of any particular risk that the Rogers children

would become seriously ill during the few hours that it would

take Royal to obtain a warrant. Likewise, it would have pres-

ented no risk to the children to delay the commencement of

their toilet-training for a few hours while Royal followed the

requisite legal procedures.

[7] Royal also relies on the family’s lack of medical insur-

ance and daycare. These conditions present no imminent dan-

ger of harm, and Royal does not argue otherwise. Thus, they,

too, provide no support for the warrantless removal. It would

certainly be preferable for all children to have medical insur-

ance and quality daycare; given the absence of universal pro-

vision of such services, however, reliance on factors so

closely related to economic status as a justification for

removal would border on the unconstitutional.

[8] Royal also argues that the cumulative effect of all of the

problems in the Rogers household placed the children in

imminent danger. However, her argument falls far short of the

mark. Even viewing the factors cumulatively, we have no

doubt that there was no imminent danger to either or both of

the Rogers children.

ROGERS v. COUNTY OF SAN JOAQUIN 6327

[9] Our conclusion that no exigency existed here is also

supported by the fact that the Child Protective Services

delayed in investigating the case and in removing the chil-

dren. See Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir.

1999) (holding that a 14-day delay by social workers in enter-

ing the family home to investigate a report of abuse is evi-

dence of lack of exigency). Here, the concerned officials

classified the case as a ten-day response, indicating that they

did not think that any exigency existed. In fact, Royal waited

until eleven days after the first referral to visit the house for

the first time, and an additional seven days, following the first

aborted visit, before returning, for a total delay of eighteen

days, four days longer than the delay in Calabretta. That nei-

ther Royal nor the other staff members thought that the allega-

tions required immediate action militates against a finding of

exigency. When Royal finally returned to the Rogers home,

the evidence she observed may, at most, have supported the

anonymous tips received by the Services; it is evident, how-

ever, that it provided no basis for concern regarding any addi-

tional cause of imminent injuries. Royal’s actions after seeing

the children also tend to support the view that the circum-

stances were not exigent. Instead of taking prompt action to

obtain medical care as we would have expected her to do if

she believed that the children faced imminent danger of seri-

ous harm to their health, Royal spent close to two hours talk-

ing with the family before deciding to remove the children

from the parental home. She further delayed in order to wait

for someone to bring a car seat rather than calling for an

ambulance or other emergency transport. Although Royal did

take the children to the hospital when she finally decided to

place them in custody, the visit was treated by hospital staff

as a routine screening visit, not as an emergency call.

[10] In sum, whether we accept the version of the facts

offered by the Rogerses or by Royal, there is no support at all

in the record for the conclusion that the Rogers children were

likely in imminent danger of serious bodily harm. Thus, we

hold that, under any view of the facts, the Rogerses’ Fourth

6328 ROGERS v. COUNTY OF SAN JOAQUIN

and Fourteenth Amendment rights were violated when Royal

removed the children without a warrant.

II. Reasonable Official:

[11] In order to assess Royal’s claim of qualified immunity,

we must conduct a two-part analysis: “1) Was the law govern-

ing the official’s conduct clearly established? 2) Under that

law, could a reasonable [official] have believed the conduct

was lawful?” Ram, 118 F.3d at 1310 (quoting Carnell v.

Grimm, 74 F.3d 977, 978 (9th Cir. 1996)). The law was

clearly established at the time of the events in this case that

a child could not be removed from the home without prior

judicial authorization absent evidence of “imminent danger of

serious bodily injury and [unless] the scope of the intrusion is

reasonably necessary to avert that specific injury.” Mabe, 237

F.3d at 1106; Wallis, 202 F.3d at 1138; Ram, 118 F.3d at

1310.

[12] Notwithstanding this clearly established law, the dis-

trict court granted Royal qualified immunity, holding that the

application of the law to medical neglect was not clearly

established. However, it is not necessary that a case be on “all

fours” with the facts of the instant case. A right is clearly

established if “[t]he contours of the right [are] sufficiently

clear that a reasonable official would understand that what he

is doing violates that right.” Saucier, 533 US at 202 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Prior to

the events in question, we had repeatedly held that a family’s

rights were violated if the children were removed absent an

imminent risk of serious bodily harm. A reasonable social

worker would need nothing more to understand that she may

not remove a child from its home on the basis of a medical

condition that does not present such a risk.

[13] The district court appeared to be concerned that social

workers may have difficulty assessing the imminence of a

threat from a particular malady. On that basis, it concluded

ROGERS v. COUNTY OF SAN JOAQUIN 6329

that without a case specifically analyzing exigency in cases of

bottle rot and malnutrition social workers would not be able

to determine whether those conditions present an imminent

risk of serious bodily harm. Even if it might be difficult for

a social worker without medical training to assess the immi-

nence of the threat posed by some dangerous maladies, such

is not the case here. One need not be a licenced physician to

recognize that in the case of a child who is both alert and

active neither bottle rot nor malnutrition is the type of condi-

tion that will lead to serious injury if not corrected within a

matter of hours. A reasonable social worker could reach no

other conclusion. Even Royal stated during her deposition that

in her opinion bottle rot does not amount to exigency. Thus,

because a reasonable social worker would have understood

that the children faced no imminent risk of serious bodily

harm, as required by clearly established law, the district court

erred in granting qualified immunity to Royal and denying

partial summary judgment to the Rogerses.

CONCLUSION

Child abuse and neglect are very serious problems. We

applaud the efforts of social workers to address these matters

and to protect the vulnerable victims of these crimes. “No one

can doubt the importance of this goal.” Cf. Mincey v. Arizona,

437 U.S. 385, 393 (1978). However, the rights of families to

be free from governmental interference and arbitrary state

action are also important. Thus, we must balance, on the one

hand, the need to protect children from abuse and neglect and,

on the other, the preservation of the essential privacy and lib-

erty interests that families are guaranteed under both the

Fourth and Fourteenth Amendments of our Constitution.

Assuming Royal’s version of the facts, the Rogers children

were in a sorry state and suffering from neglect of a type that

could, if their parents’ conduct was not modified within a rea-

sonable period of time, lead to long-term harm. Still, the con-

ditions here did not present an imminent risk of serious bodily

6330 ROGERS v. COUNTY OF SAN JOAQUIN

harm. It would have taken Royal only a few hours to obtain

a warrant. In removing the Rogers children from their home

without obtaining judicial authorization, Royal violated the

Rogerses’ clearly established Fourth and Fourteenth Amend-

ment rights. The lack of exigency would have been apparent

to any reasonable social worker. Accordingly, we conclude

that the district court erred in granting qualified immunity to

Royal and in denying the Rogerses’ motion for partial sum-

mary judgment as to Royal.

We REVERSE the grant of summary judgment to Royal

and we likewise REVERSE the denial of the Rogerses’ partial

summary judgment motion with respect to her. We REMAND

with instructions to grant partial summary judgment to the

Rogerses and for further proceedings consistent with this

opinion.

REVERSED and REMANDED.