Preslie Hardwick v. Marcia Vreeken

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PRESLIE HARDWICK, No. 15-55563

Plaintiff-Appellee,

D.C. No.

v. 8:13-cv-01390-JLS-AN

COUNTY OF ORANGE,

Defendant, OPINION

and

MARCIA VREEKEN; ELAINE

WILKINS; THE ESTATE OF

HELEN DWOJAK,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Argued and Submitted October 7, 2016

Pasadena, California

Filed January 3, 2017

Before: Stephen S. Trott, John B. Owens,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Trott

2 HARDWICK V. VREEKEN

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial, on summary

judgment, of absolute and qualified immunity to social

workers who plaintiff alleged maliciously used perjured

testimony and fabricated evidence to secure plaintiff’s

removal from her mother, and that this abuse of state power

violated her Fourth and Fourteenth Amendment constitutional

rights to her familial relationship with her mother.

The panel held that the social workers were not entitled to

absolute immunity from claims that they maliciously used

perjured testimony and fabricated evidence to secure

plaintiff’s removal. The panel held that plaintiff’s complaint

targeted conduct well outside of the social workers’

legitimate role as quasi-prosecutorial advocates in presenting

the case.

The panel held that defendants’ case for qualified

immunity was not supported by the law or the record. The

panel determined that plaintiff produced more than sufficient

admissible evidence to create a genuine dispute as to whether

her removal from her mother’s custody violated her

constitutional rights. The panel further stated that it could not

conceive of circumstances in which social workers would not

know and understand that they could not use criminal

behavior in any court setting to interfere with a person’s

fundamental constitutional liberty interest.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HARDWICK V. VREEKEN 3

COUNSEL

Pancy Lin (argued) and Norman J. Watkins, Lynberg &

Watkins, Orange, California, for Defendants-Appellants.

Dennis Ingols (argued) and Robert R. Powell, Law Offices of

Robert R. Powell, San Jose, California, for Plaintiff-Appellee.

OPINION

TROTT, Senior Circuit Judge:

I

Exposition

Pursuant to an order of the Superior Court of Orange

County California, arising from acrimonious juvenile

dependency proceedings, Deanna Fogerty-Hardwick lost

custody of her minor children, Preslie and Kendall. In this

subsequent civil rights action brought under 42 U.S.C.

§ 1983, Preslie Hardwick sued the County and employees of

its Social Services Agency (“SSA”). She contends that the

social worker employees acting under color of state law

maliciously used perjured testimony and fabricated evidence

to secure her removal from her mother, and that this abuse of

state power violated her Fourth and Fourteenth Amendment

constitutional rights to her familial relationship with her

mother.

In a motion for summary judgment, the individual

defendants unsuccessfully raised absolute and qualified

immunity as shields against this action. They appeal,

4 HARDWICK V. VREEKEN

claiming, among other things, that the law Preslie accuses

them of violating was not “clearly established” at the time

their allegedly wrongful conduct occurred. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982).

We have jurisdiction over this timely interlocutory appeal

pursuant to 28 U.S.C. § 1291, Nixon v. Fitzgerald, 457 U.S.

731, 742–43 (1982) (absolute immunity), and Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985) (qualified immunity). We

affirm.

II

Background

This lawsuit is not the first stemming from the implosion

of Preslie’s family. Her mother, Deanna, successfully sued

some of the social workers in state court for the same conduct

and pursuant to the same legal theory, and she recovered a

sizable sum in damages plus attorneys’ fees. See Fogarty-

Harwick v. County of Orange, No. G039045, 2010 WL

2354383, at *1 (Cal. Ct. App. June 14, 2010) (remanding to

trial court with directions to strike injunctive relief from the

judgment and affirming judgment in all other respects). To

quote the California Court of Appeal,

In this case, the jury specifically concluded

that Vreeken and Dwojak lied, falsified

evidence and suppressed exculpatory

evidence–all of which was material to the

dependency court’s decision to deprive

Fogarty-Hardwick of custody–and that they

did so with malice. These findings are clearly

sufficient to satisfy the Supreme Court’s

HARDWICK V. VREEKEN 5

definition of circumstances in which

‘qualified immunity would not be available.’

Id. at *14.

The Court of Appeal also acknowledged the defendants’

collective admission on appeal that the evidence was

sufficient “to demonstrate the social workers committed

egregious acts of misconduct in the dependency case.” Id. at

*10. The court said, “As the County concedes, ‘[Fogarty-

Hardwick] demonstrated (if the testimony is to be believed)

that in this one instance, social workers lied and fabricated

evidence in connection with the dependency proceedings

relating to [her] children.’” Id. at *10, n.4 (alteration in

original).

III

Scope and Standard of Review

This matter comes to us as an interlocutory appeal

involving only legal issues regarding the employees’ claims

of an entitlement to immunity from this lawsuit. We do not

comment on or express any opinions about the merits of the

case. Those are ultimately for the district court to resolve. In

this context, however, and because they are supported by the

record as a whole, we construe the facts Preslie offers in

support of her allegations in the light most favorable to her.

Scott v. Harris, 550 U.S. 372, 380 n.8 (2007). Accordingly,

we proceed to review de novo the legal issues that are before

us. White v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007)

(grant of partial summary judgment reviewed de novo).

6 HARDWICK V. VREEKEN

IV

Absolute Immunity

Absolute immunity from private lawsuits covers the

official activities of social workers only when they perform

quasi-prosecutorial or quasi-judicial functions in juvenile

dependency court. Miller v. Gammie, 335 F.3d 889, 898 (9th

Cir. 2003) (en banc). The factor that determines whether

absolute immunity covers a social worker’s activity or

“function” under scrutiny is whether it was investigative or

administrative, on one hand, or part and parcel of presenting

the state’s case as a generic advocate on the other. Absolute

immunity is available only if the function falls into the latter

category. See id. at 896.

Here, Preslie tells us that the social workers’ malicious

activities about which she complains are as follows:

1) The allegedly false statements and omissions made in

defendants’ court reports continuously submitted by them

from February 17, 2000, through the termination of the

dependency proceedings;

2) The statements made by the defendant social workers

during an “off the record” discussion on February 17,

2000, and during an “on the record” discussion that same

day where the social workers allegedly lied (but not while

under oath) to the commissioner overseeing the

dependency proceeding, triggering Preslie’s seizure;

3) The alleged fabrication of evidence throughout the

dependency proceedings and repeated suppression of

HARDWICK V. VREEKEN 7

exculpatory evidence in defendants’ written court reports;

and

4) Defendants’ corrupt recommendations that Preslie

continue to be detained even though defendants allegedly

knew they were lying to the court about the basis for the

initial seizure and subsequent detention.

To be specific, the defendants’ actions Preslie intends to

prove as false and fabricated include (1) telling the

dependency court on February 17, 2000, that Deanna had

caused her daughters to skip a mandatory visit with their

father, when in fact the problem was caused by a visitation

monitor, Hector Delgadillo; (2) advising the court that

Deanna was responsible for turning her children against the

monitor; and (3) telling the court that Deanna had told her

children that their father was trying to take them away from

her when in reality it was defendant Vreeken who had made

inappropriate comments to the children, including the threat

that if they did not visit their father, they would be put “in a

home.”

On the basis of this alleged misinformation, the

dependency court concluded that Deanna was “using” her

children. Accordingly, the court immediately removed the

girls from her custody and turned them over to the SSA and

the defendants. Preslie and her sister were sent to the

Orangewood Children’s Home. On February 23, 2000, the

court authorized the return of the girls to their mother’s

custody, but the social workers refused and placed them

instead in foster care where they remained until May 2000.

Preslie’s complaint targets conduct well outside of the

social workers’ legitimate role as quasi-prosecutorial

8 HARDWICK V. VREEKEN

advocates in presenting the case. Our opinion in Beltran v.

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

(per curiam) disposes of this issue. We held in Beltran that

social workers may well have absolute immunity when

discharging functions that are “‘critical to the judicial process

itself,’ . . . [b]ut they are not entitled to absolute immunity

from claims that they fabricated evidence 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 (quoting

Miller, 335 F.3d at 896). Accordingly, we affirm the district

court’s denial to these defendants of absolute immunity.

V

Qualified Immunity

A.

Collateral Estoppel

Preslie claims collateral estoppel, or issue preclusion,

against these defendants on the ground that qualified

immunity was conclusively litigated to a final decision in

California courts, in which they did not prevail. However,

because we come to the same conclusion as the state courts,

we need not decide whether offensive collateral estoppel bars

these defendants from raising qualified immunity in their

defense. See Jordan v. City of Lake Oswego, 734 F.2d 1374,

1377 (9th Cir. 1984); Rayner v. NLRB, 665 F.2d 970, 976 n.7

(9th Cir. 1982).

HARDWICK V. VREEKEN 9

B.

Preslie’s Constitutional Rights

“Parents and children have a well-elaborated

constitutional right to live together without governmental

interference. That right is an essential liberty interest

protected by the Fourteenth Amendment’s guarantee that

parents and children will not be separated by the state without

due process of law except in an emergency.” Wallis v.

Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) (citations

omitted).

Over the years, the Supreme Court has recognized this

fundamental right in many cases. For example, in Cleveland

Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974), the

Court said, “This Court has long recognized that freedom of

personal choice in matters of marriage and family life is one

of the liberties protected by the Due Process Clause of the

Fourteenth Amendment.” The Court reiterated this theme

three years later in Moore v. City of East Cleveland, 431 U.S.

494, 503–04 (1977): “Our decisions establish that the

Constitution protects the sanctity of the family precisely

because the institution of the family is deeply rooted in this

Nation’s history and tradition. It is through the family that

we inculcate and pass down many of our most cherished

values, moral and cultural.”

The defendants do not contend – nor could they – that

Preslie did not have a constitutional Due Process right or a

Fourth Amendment right protecting her against deliberate

government use of perjured testimony and fabricated

evidence in the dependency court proceeding designed to

rupture her familial relationship with her mother. This right

10 HARDWICK V. VREEKEN

is beyond debate. What they do claim is that the specific

granular right to be free from deliberately fabricated evidence

in civil child dependency proceedings where a parent’s or

child’s protected familial liberty interest is at stake had not

yet been “clearly established” prior to the dependency

proceeding at issue. They concede that the rights Preslie

relies upon had been clearly established in criminal

proceedings against parents, but not yet in a civil proceeding

context. We disagree.

C.

“Clearly Established”

An official “cannot be said to have violated a clearly

established right unless the right’s contours were sufficiently

definite that any reasonable official in [his or her] shoes

would have understood that he [or she] was violating it.”

Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). “This

exacting standard gives government officials breathing room

to make reasonable but mistaken judgments by protect[ing]

all but the plainly incompetent or those who knowingly

violate the law.” City and County of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1774 (2015) (internal quotation

marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,

743 (2011). “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.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(quotation marks omitted) (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)). Furthermore, “general statements

of the law are not inherently incapable of giving fair and clear

warning, and in [some] instances a general constitutional rule

HARDWICK V. VREEKEN 11

already identified in the decisional law may apply with

obvious clarity to the specific conduct in question, even

though ‘the very action in question has [not] previously been

held unlawful.’” Id. at 741 (quoting United States v. Lanier,

520 U.S. 259, 271 (1997) (quoting Anderson, 483 U.S. at

640)). Thus, the “salient question” we must answer is

“whether the state of the law [as of February, 2000, when the

conduct at issue allegedly occurred] gave [these social

workers] fair warning” that their alleged use of perjured

testimony and fabricated evidence in court in order to sever

Preslie’s familial bond with her mother was unconstitutional.

Hope, 536 U.S. at 741.

The Supreme Court did not confine its inquiry in Hope to

published judicial opinions. The Court also referred to the

“obvious cruelty” inherent in the disputed practice that

“should have provided respondents with some notice that

their alleged conduct violated [the plaintiff’s constitutional

protection].” Hope, 536 U.S. at 745.

To buttress its conclusion that a reasonable person would

have known of the unconstitutionality of the disputed

practice, the Court also relied on (1) a “relevant” shackling

regulation promulgated by the Alabama Department of

Corrections (“ADOC”), and (2) a United States Department

of Justice report warning the ADOC of the unconstitutionality

of the disputed practice. Id. at 743–45.

D.

Development

Although it did so in the context of discussing collateral

estoppel, the district court correctly identified the legal

12 HARDWICK V. VREEKEN

precedents that inform our analysis, beginning with Greene

v. Camreta, 588 F.3d 1011 (9th Cir. 2009), vacated in part on

other grounds by Camreta v. Greene, 563 U.S. 692 (2011).

As the district court said,

the plaintiff [in Greene] alleged her children

were removed from her custody ‘pursuant to

a Juvenile Court order triggered by an

intentional misrepresentation’ in an affidavit

by the defendant social worker. The Ninth

Circuit held that the plaintiff’s ‘right to be

free from deception in the presentation of

evidence during a protective custody

proceeding was clearly established at the time

[defendant] filed his affidavit [in 2003] with

the Juvenile Court.’

And, as the district court correctly observed, “Greene

reached this conclusion on the basis of previous case law

establishing the basic ‘constitutional right to be free from the

knowing presentation of false or perjured evidence.’” Id.

(quoting Greene, 588 F.3d at 1035).

Nevertheless, the defendants contend that Greene is

irrelevant because (1) the offending affidavit in that case was

filed in March of 2003, and (2) we did not publish our

opinion until 2009. True, but Greene relied in turn on cases

dealing with conduct that occurred well before the conduct

challenged in this case. For example, the Greene panel

pointed to Devereaux v. Perez, 218 F.3d 1045 (9th Cir. 2000),

reh’g en banc sub nom. Devereaux v. Abbey, 263 F.3d 1070

(9th Cir. 2001). The targeted conduct in Devereaux took

place during 1994 and 1995. In Greene, we said that “we

held in the context of a child abuse proceeding that ‘the

HARDWICK V. VREEKEN 13

constitutional right to be free from the knowing presentation

of false or perjured evidence’ is clearly established.”

588 F.3d at 1035 (citing and quoting Devereaux, 218 F.3d at

1055–56). We also said that “[e]ven earlier [than Devereaux]

we stated emphatically that ‘if an officer submitted an

affidavit that contained statements he knew to be false or

would have known were false had he not recklessly

disregarded the truth, . . . he cannot be said to have acted in

an objectively reasonable manner, and the shield of qualified

immunity is lost.’” Id. (describing and quoting Hervey v.

Estes, 65 F.3d 784, 788 (9th Cir. 1995)). Finally, we

supported our holding in Greene with a section 1983 case

decided in 1990 by the Tenth Circuit, Snell v. Tunnell,

920 F.2d 673 (10th Cir. 1990). We described that civil rights

case as “holding [that] social workers who deliberately

fabricated evidence of child sexual abuse to secure a removal

order [were] not entitled to qualified immunity.” Greene,

588 F.3d at 1035.

Contrary to the defendants’ assertion at oral argument that

Snell arose from criminal process, it did not. The alleged

offending social workers in Snell were employed by the

Oklahoma Department of Human Services. The disputed

court order they secured from a judge was a “pick-up”

removal order pertaining only to civil child dependency

concerns. Snell, 920 F.2d at 687–88. The child removal

order had no connection with a criminal investigation or

prosecution. In fact, the district attorney, the local police, and

the FBI all declined to initiate criminal process or

proceedings. Id. at 677, 681–83, 691.

No official with an IQ greater than room temperature in

Alaska could claim that he or she did not know that the

conduct at the center of this case violated both state and

14 HARDWICK V. VREEKEN

federal law. The social workers in this case are alleged to

have knowingly and maliciously violated the law in their

attempt to sever Preslie’s protected relationship with her

mother. Perjury is a crime under both federal and California

state law, as is the knowing submission of false evidence to

a court. 18 U.S.C. § 1621; Cal. Penal Code § 118. Both

crimes make no distinction between criminal and civil

proceedings. This malicious criminal behavior is hardly

conduct for which qualified immunity is either justified or

appropriate. The doctrine exists to protect mistaken but

reasonable decisions, not purposeful criminal conduct. As the

Supreme Court repeated in Sheehan, officials who knowingly

violate the law are not entitled to immunity. 135 S. Ct. at

1774 (quoting Ashcroft, 131 S. Ct. 2085).

When asked about these legal facts during oral argument,

the following colloquy occurred:

Judge Trott: Are you telling me that a

person in your client’s shoes

could not understand you

cannot commit perjury in a

court proceeding in order to

take somebody’s children

away?

Answer: Of course not.

Judge Owens: Was there anything you know

of that told social workers that

they should lie and they

should create false evidence in

a court proceeding?

HARDWICK V. VREEKEN 15

Answer: No . . . .

In Fourth Amendment excessive force cases, often the

disputed force used turns out under examination not to have

been excessive. In Eighth Amendment cruel and unusual

punishment cases, the same is true. A punishment imposed

may not be either cruel or unusual. But there is no such thing

as a minor amount of actionable perjury or of false evidence

that is somehow permissible. Why? Because government

perjury and the knowing use of false evidence are absolutely

and obviously irreconcilable with the Fourteenth

Amendment’s guarantee of Due Process in our courts.

Furthermore, the social workers’ alleged transgressions were

not made under pressing circumstances requiring prompt

action, or those providing ambiguous or conflicting guidance.

There are no circumstances in a dependency proceeding that

would permit government officials to bear false witness

against a parent.

But there is more to establish that these social workers

had “fair warning” of the unconstitutionality of their conduct.

The California Government Code has addressed the very acts

alleged in this case with a statute enacted in 1995. The Code

says,

(a) [T]he civil immunity of juvenile court

social workers, child protection workers, and

other public employees authorized to initiate

or conduct investigations or proceedings

pursuant to [the Cal. Welfare and Insts. Code]

shall not extend to any of the following, if

committed with malice: (1) Perjury.

(2) Fabrication of evidence. (3) Failure to

disclose known exculpatory evidence.

16 HARDWICK V. VREEKEN

(4) Obtaining testimony by duress . . . fraud

. . . or undue influence . . . .

(b) ‘[M]alice’ means conduct that is intended

. . . to cause injury to the plaintiff or

despicable conduct that is carried on . . . with

a willful and conscious disregard of the rights

or safety of others.

Cal. Gov’t Code § 820.21.

Section 820.21 did not come about because of someone’s

academic concern about possible wrongful conduct by social

workers in connection with dependency proceedings. The

Bill, Assemb. B. 1355, 1995–96 Reg. Sess. (Cal. 1995) (“AB

1355”) was the direct result of a notorious case, James W. v.

Super. Ct., 21 Cal. Rptr. 2d 169 (Cal. Ct. App. 1993), wherein

the trial court granted absolute immunity for egregious acts

resulting in the removal of a child from her family. Although

the trial court was reversed on appeal, the issue generated

statewide concern. AB 1355 was hotly debated and opposed

by the County Welfare Directors, the National Association of

Social Workers, the California State Association of Counties,

the California Independent Public Employees Legislative

Council, Inc., and the California State Council of the Service

Employees International Union. See Cal. B. Analysis,

1995–96 Reg. Sess., Assemb. B. 1355 (Sept. 8, 1995). We

find it utterly implausible that social workers in California

were not aware in 1999 of this recent change in the law.

Just as the Court in Hope used an ADOC regulation and

a DOJ report to support its conclusion that the officials were

on fair notice of the wrongfulness of their conduct, here, a

pertinent state statute warns defendants in unmistakable

HARDWICK V. VREEKEN 17

language of the personal consequences of lies, perjury, and

deception: the loss of immunity for such conduct.

Furthermore, the statute focuses on behavior designed

wrongfully to affect dependency proceedings in court, the

citadel of Due Process.

We believe this is the kind of case the Supreme Court had

in mind in Hope when it talked about conduct so clearly and

obviously wrong that the conduct itself unmistakably “should

have provided [defendants] with some notice” that their

alleged conduct violated their targets’ constitutional rights.

536 U.S. at 745. As the Supreme Court explained in Lanier,

520 U.S. at 271,

As Judge Daughtrey noted in her dissenting

opinion in this case: “The easiest cases don’t

even arise. There has never been . . . a section

1983 case accusing welfare officials of selling

foster children into slavery; it does not follow

that if such a case arose, the officials would be

immune from damages [or criminal] liability.”

(citations and internal quotation marks omitted) (alterations

in original). Try as we might, we cannot conceive of

circumstances in which social workers would not know and

understand that they could not use criminal behavior in any

court setting to interfere with a person’s fundamental

constitutional liberty interest. Their deportment as alleged by

Preslie could not have reasonably “been thought consistent

with the rights they are alleged to have violated.” Anderson,

483 U.S. at 638.

18 HARDWICK V. VREEKEN

E.

Costanich

The defendants insist that the law they are alleged to have

violated was not clearly established by February 2000. To

support this assertion, they rely on our opinion in Costanich

v. Dep’t of Soc. and Health Servs., 627 F.3d 1101 (9th Cir.

2010). Defendants contend that Costanich dealt with the

same familial association rights as the rights at issue here.

We disagree. The interest at issue in Costanich derived from

state statutes and was materially different from the

fundamental constitutional liberty interest in this case, and

different in a pellucid manner that directly affects what a

social worker would comprehend about that interest.

In Costanich, the social workers’ target was a person with

a foster care license, not a legal parent. Kathie Costanich had

custody of three foster children plus three under dependency

guardianships. The officials waived in the district court the

argument that Ms. Costanich lacked a protected interest, and

thus we assumed, without deciding, that she had such an

interest before proceeding to the question of whether the

officials violated her constitutional rights. 627 F.3d at 1110,

1114 n.13, 1116 n.15.

We concluded that “there are sufficient distinctions

between criminal prosecutions and civil foster care

proceedings that the right had not yet been clearly established

in the civil context.” Id. at 1116 (emphasis added). We

recognized that “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.”

Id. at 1115.

HARDWICK V. VREEKEN 19

Like the interests of criminal defendants, the fundamental

liberty interests of parents and their children in their familial

relationship has long been clearly established. See, e.g.,

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (explaining that

the Fourteenth Amendment protects the liberty to “ establish

a home and bring up children”); Pierce v. Society of Sisters,

268 U.S. 510, 534–35 (1925) (recognizing the right of parents

“to direct the upbringing and education of children under

their control”); Prince v. Massachusetts, 321 U.S. 158, 166

(1944) (acknowledging that “the custody, care and nurture of

the child reside first in the parents”); Stanley v. Illinois,

405 U.S. 645, 651 (1972) (observing that a parent has a

protected interest in the “companionship, care, custody, and

management of his or her children”).

A foster parent’s interest is derived from the state and

may differ according to state law and particular

circumstances. See Smith v. Org. of Foster Families for

Equal. and Reform, 431 U.S. 816, 845–46 (1977) (“[W]here

. . . the claimed interest derives from a knowingly assumed

contractual relation with the State, it is appropriate to

ascertain from state law the expectations and entitlements of

the parties.”). In contrast, the fundamental liberty interests of

a legal parent and her child do not depend on, nor are they

subject to, such individualized assessment. It stands to reason

that a social worker might not know whether a person with

only foster care and dependency guardianship custody of

children would have a constitutional right in that statutory

legal relationship. It does not stand to reason that a social

worker would be unaware of the fundamental liberty interests

at stake involving legal parents and their children, interests

protected in court by Due Process of law. Accordingly, we

conclude that Costanich is distinguishable and not

controlling.

20 HARDWICK V. VREEKEN

VI

Recapitulation

Preslie has produced more than sufficient admissible

evidence to create a genuine dispute as to whether her

removal from her mother’s custody violated her constitutional

rights. Also, the defendants’ case for qualified immunity

from these charges is not supported by the law or the record.

Accordingly, the matter shall proceed in the district court to

a final judgment.

AFFIRMED.