Christina Romero v. Amanda Brown

Case: 18-20157 Document: 00515097312 Page: 1 Date Filed: 08/29/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-20157 FILED

August 29, 2019

Lyle W. Cayce

CHRISTINA ROMERO; GARY ADAN CRUZ, SR. Clerk

Plaintiffs - Appellant

v.

AMANDA BROWN; NICOLE MOUTON; ROLAND BENAVIDES; ROBERT

RUIZ; CITY OF HOUSTON; DOES ONE THROUGH TEN

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before KING, HIGGINSON, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Christina Romero and Gary Adan Cruz are the parents of seven children.

The Texas Department of Family and Protective Services received information

that Cruz was abusing Romero. It ordered Cruz to move away from the

apartment where Romero and their children lived. He complied. More than a

month later, a social worker and other officials seized all seven children from

Romero and put them in foster care homes. The seizures occurred in the

middle of the day without a court order. The next day a state court judge found

no justification for the removal and ordered the immediate return of the

children to both parents.

Case: 18-20157 Document: 00515097312 Page: 2 Date Filed: 08/29/2019

No. 18-20157

The parents allege violations of their due process rights. We conclude

that the complaint does not allege a violation of clearly established substantive

due process rights because there was an ongoing investigation into domestic

violence and the removal lasted only 24 hours. But the removal did violate

clearly established procedural due process rights because there was neither a

court order nor exigent circumstances to support the social worker’s taking the

children from their mother.

I.

A.

The following is what Plaintiffs say happened. At the pleading stage, we

only have their side of the story and must accept it as true. Bosarge v. Miss.

Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015).

Romero lived with Cruz and their seven children in a small apartment

in Houston. The first allegation that Cruz engaged in domestic violence

against Romero came in 2014. Then, in fall 2015, their six-year-old daughter

told her school counselor that Cruz punched and “body slammed” Romero.

Family and Protective Services opened an investigation and sent an

investigator to the apartment. The parents allege that the investigator could

“easily verify” the allegations were untrue, and the investigator did not contact

any law enforcement officials at that time. But early the next year, the agency

ordered Cruz to move out of the apartment and enroll in parenting, domestic

violence, and anger management classes. Cruz continued to contest the

allegations but complied with the agency’s requests.

Shortly after the investigator’s visit, the case was transferred to social

worker Amanda Brown. In March 2016, Brown conducted another home visit

to Romero’s apartment, apparently at the direction of her supervisor, Nicole

Mouton. From the start, Brown spoke “disparagingly” of Romero’s financial

condition and told Romero she needed to make more money. Romero tried to

2

Case: 18-20157 Document: 00515097312 Page: 3 Date Filed: 08/29/2019

No. 18-20157

explain that Cruz’s moving out worsened the family’s money troubles. Brown

replied, “That’s not my problem. That’s more your problem,” and suggested

Cruz may never be allowed to return. She also criticized Romero for sometimes

having her 15-year-old son babysit the younger children instead of sending

them to daycare. Romero explained that she worried about the quality of

daycare and that she could not afford it. Brown “sneered” at Romero, said

Family and Protective Services could help cover childcare costs, and “appeared

upset” that Romero questioned her recommendations.

Brown spent the remainder of the home visit sitting at the kitchen table

using her cellphone. This prompted Romero to say to her, “You are not doing

your job. You are just sitting here playing on your phone.” Romero told Brown

she wanted to file a complaint with Brown’s supervisor about that behavior.

Brown “became visibly enraged, and abruptly terminated the visit.” Romero

heard nothing from Brown the remainder of the day.

The next morning, around 11:00, Brown and two policer officers, Roland

Benavides and Robert Ruiz, surrounded Romero’s vehicle in the parking lot of

the apartment complex. Romero was returning to her apartment with her one-

month old baby and two toddlers. Brown and the officers seized all three

children. They did not have a court order. Brown threatened Romero with

arrest unless she signed a Notice of Removal.

About an hour later, a Family and Protective Services employee seized

Romero’s other four children at school. There was no court order to take these

children either. All seven children were placed in foster care homes and spent

the night away from their mother.

The following day, a state court hearing was held to determine if the

warrantless removal was justified. See TEX. FAMILY CODE §§ 262.104, 106

(2017) (requiring such a hearing for a removal without court order). The judge

found no evidence of physical abuse, malnourishment, or medical neglect. The

3

Case: 18-20157 Document: 00515097312 Page: 4 Date Filed: 08/29/2019

No. 18-20157

judge rebuked Brown for “remov[ing the] children without a Court Order in

the middle of the day” even though there was enough time to obtain a court

order. The court ordered the children returned home and allowed Cruz to

return home as well. The children were reunited with their parents that day.

B.

The parents filed suit alleging that Brown, Mouton, the police officers,

and the City of Houston violated their Fourteenth Amendment due process

rights. All defendants moved for dismissal, which the district court granted.

The court held that a violation of the right to family integrity was not clearly

established in the context of a social worker investigation, entitling both Brown

and Mouton to qualified immunity. And it found no authority to support the

claim against the police officers. The court also dismissed all claims against

the city for failure to sufficiently allege municipal liability under section 1983.

II.

We review a dismissal on the pleadings de novo. In re ATP Oil & Gas

Corp., 888 F.3d 122, 125–26 (5th Cir. 2018) (quotation omitted). Allegations

against defendants who enjoy qualified immunity must overcome that

protection, which “gives government officials breathing room to make

reasonable but mistaken judgments about open legal questions.” Ashcroft v.

al-Kidd, 563 U.S. 731, 743 (2011). Qualified immunity at the pleading stage

raises two questions. First, does the complaint allege a constitutional

violation? If so, was the violation clearly established so that the government

official would have known she was violating the law? Turner v. Lieutenant

Driver, 848 F.3d 678, 685 (5th Cir. 2017). Because the complaint focuses on

social worker Brown, we will first address whether Plaintiffs have alleged that

she violated the parents’ clearly established due process rights.

4

Case: 18-20157 Document: 00515097312 Page: 5 Date Filed: 08/29/2019

No. 18-20157

A.

“The rights to conceive and to raise one’s children have been deemed

essential, basic civil rights of man, and rights far more precious than property

rights.” Stanley v. Illinois, 405 U.S. 645, 651 (1972) (cleaned up). Indeed, a

parents’ right to “care, custody, and control of their children” is “perhaps the

oldest of the fundamental liberty interests recognized by [the Supreme] Court.”

Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion); see also Pierce v.

Society of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S.

390, 400–01 (1923).

Because a parent’s custody and control of her children is a fundamental

liberty interest, the government may violate substantive due process when it

takes away that right. See Moore v. City of East Cleveland, 431 U.S. 494, 498–

500, 503 (1977); Troxel, 530 U.S. at 65, 72–73; Morris v. Dearborne, 181 F.3d

657, 665 (5th Cir. 1999). Yet as strong as the “right of the family to remain

together without the coercive interference of the awesome power of the state”

is, the state also has a strong interest in preventing child abuse. Hodorowski

v. Ray, 844 F.2d 1210, 1216 (5th Cir. 1988) (quoting Duchesne v. Sugarman,

566 F.2d 817, 825 (2d Cir. 1977)). So in a substantive due process analysis,

“[t]he right to family integrity must be balanced against the state’s interests

in protecting the health, safety, and welfare of children.” Wooley v. Baton

Rouge, 211 F.3d 913, 924 (5th Cir. 2000).

A balancing test is difficult terrain for a party having to prove a clear

violation of the law. Id. at 671; see also Hodorowski v. Ray, 844 F.2d 1210,

1217 (5th Cir. 1988) (recognizing the “unsuitability of such a general right [to

family integrity] to fix liability in particularized circumstances”). We analyze

whether a claim alleges a clearly established violation of the right to familial

association by “placing [the claim], on a case by case basis, along a continuum

between the state’s clear interest in protecting children and a family’s clear

5

Case: 18-20157 Document: 00515097312 Page: 6 Date Filed: 08/29/2019

No. 18-20157

interest in privacy.” Morris, 181 F.3d at 671. If the facts of the case “place it

in the center of the continuum,” meaning the state’s and family’s interests

overlap, the right to family integrity is considered too “nebulous” to find a

clearly established violation. Id. If, on the other hand, the case is “squarely

on the end of the continuum where the state’s interest is negligible and where

the family privacy right is well developed in jurisprudence from this circuit and

the Supreme Court,” qualified immunity is not a defense. Id.

Defeating immunity for a family integrity claim thus “hinges, in large

part, upon the degree of fit between the facts of this case” and our prior

opinions. Id.; see also Hodorowski, 844 F.2d at 1217 (recognizing the

“unsuitability of such a general right [to family integrity] to fix liability in

particularized circumstances”). That fit is lacking here. Two features of this

case are absent from any of our child removal cases finding a substantive due

process violation: a pending investigation into domestic violence and a removal

lasting only one day.

Because the substantive due process inquiry becomes a clash of two vital

interests when the state removes a child as part of a domestic violence

investigation, it is not surprising that we have never found a clearly

established violation of the right to family integrity in that context. In fact, we

have never found such a violation in any case against a child welfare worker.

See, e.g., Kiser v. Garrett, 67 F.3d 1166, 1173 (5th Cir. 1995); Hodorowski, 844

F.2d at 1217 (both rejecting liability for social workers involved in the

temporary removal of children when there was an ongoing investigation); Hall

v. Dixon, No. H-09-2611, 2010 WL 3909515 (S.D. Tex. Sept. 30, 2010)

(Rosenthal, J.) (observing that the Fifth Circuit “has found violations of clearly

established law only when state employees who are not social workers have

acted to separate children from their families without evidence of harm to the

child”). In finding violations of clearly established law when a teacher or police

6

Case: 18-20157 Document: 00515097312 Page: 7 Date Filed: 08/29/2019

No. 18-20157

officer played a role in the removal of a child, we distinguished their relatively

smaller role in “ferret[ing] out possible instances of abuse” from that of child

welfare officials for whom that is the paramount concern. Morris v. Dearborne,

181 F.3d 657, 671 (5th Cir. 1999) (denying qualified immunity to teacher who

reported alleged abuse); see also Wooley, 211 F.3d at 924 (denying qualified

immunity to police officers who removed a child without a court order).

To be sure, the interest in preventing child abuse was attenuated in this

case despite the pending investigation. No one had alleged that Cruz had

assaulted the children, and he was no longer residing in the apartment. See

Wooley, 211 F.3d at 924 (noting that “cases in which the state’s interest has

blurred the existence of a family’s rights uniformly have involved removal of

children by social workers . . . where there were allegations of abuse”). That

means the state’s interest was much less than it was in cases with allegations

of ongoing abuse of children. Still, the state’s interest in protecting Romero’s

children was not eliminated. The child’s allegation against Cruz relayed

extremely violent conduct. Spousal abuse is an indicator of child abuse. See

CHILD ABUSE & NEGLECT: RISK AND PROTECTIVE FACTORS, CTR. FOR DISEASE

CONTROL & PREVENTION (listing “intimate partner violence” as a risk factor for

child abuse and neglect). So the open investigation into domestic violence

factors into the substantive due process balancing.

One other aspect of this case confirms that it ends up in the nebulous

zone of the substantive due process continuum. Foundational family integrity

cases “involved the state’s attempt to sever permanently the parent-child

relationship.” Hodorowoski, 844 F.2d at 1217 (emphasis in original) (citing

Santosky v. Kramer, 455 U.S. 745 (1982); Stanley v. Illinois, 405 U.S. 645

(1972)). Cases since have found clear violations of substantive due process only

when the removal measured in months or years. See Wooley, 211 F.3d at 918

(finding violation when mother lost custody of her child for approximately

7

Case: 18-20157 Document: 00515097312 Page: 8 Date Filed: 08/29/2019

No. 18-20157

three months); Morris, 181 F.3d at 671 (finding violation when child was placed

in foster care for three years and cut off from all contact with her father during

that time) Although the state’s taking children for any amount of time is a

serious encroachment on a parent’s fundamental right, the one-day removal of

Romero’s children is a much less substantial interference with the right to

control a child’s upbringing than these far lengthier removals. See

Hodorowski, 844 F.2d at 1217 (finding that the “temporary” nature of a

removal was “alone [] sufficient to prevent us from concluding that appellants’

conduct violated clearly established law”). Combine that with the role of a

child welfare officer who had a pending investigation into domestic violence,

and there is not a similar case finding substantive due process liability. As a

result, qualified immunity protects Brown from the substantive due process

claim.

B.

The Due Process Clause does not just provide parents with substantive

protection from interference with their liberty interest in the care, custody, and

management of their children. It also requires that the state follow certain

procedures before encroaching on those parental rights. Santosky v. Kramer;

455 U.S. 745, 753–54 (1982); Stanley v. Illinois, 405 U.S. 645, 658 (1972); Gates

v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir.

2008). And importantly for the qualified immunity analysis, unlike the fuzzy

continuum that governs substantive due process in this area, there are bright

lines when it comes to the procedural safeguards.

The rule is this: A child cannot be removed “without a court order or

exigent circumstances.” Gates, 537 F.3d at 434. This is the same standard

that governs a child’s Fourth Amendment claim for being removed from the

family. Id. at 345. Gates followed other circuits that had “equated the

procedures required under the Fourteenth Amendment with those required

8

Case: 18-20157 Document: 00515097312 Page: 9 Date Filed: 08/29/2019

No. 18-20157

under the Fourth Amendment for searches and seizures related to child abuse

investigations.” Id. at 435 (citing Doe v. Kearney, 329 F.3d 1286 (11th Cir.

2003); Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000); Tenenbaum v.

Williams, 193 F.3d 581 (2d Cir. 1999)). With Gates on the books, we later held

that a procedural due process claim overcame qualified immunity at the

summary judgment stage because evidence would allow a jury to find that

children were seized without court approval or an emergency. Wernecke v.

Garcia, 591 F.3d 386, 391 n.7 (5th Cir. 2009). 1 It is thus clearly established

that a court order or exigency is the predeprivation process that is due when

social workers remove a child. 2 Gates, 537 F.3d at 434; Wernecke, 591 F.3d at

391 n.7.

The complaint alleges that neither a court order nor exigent

circumstances existed when Brown seized Plaintiffs’ seven children. It is

undisputed that Brown did not obtain a court order. Nor was there reason to

believe that the children were “in imminent danger of physical or sexual abuse”

if they were not immediately removed. Gates, 537 F.3d at 429. Cruz had been

accused only of spousal abuse, had left the apartment weeks earlier, and there

were no reports that he had attempted to return. Indeed, Defendants do not

even try to argue that there was an emergency related to the children’s safety.

1 Brown contends that Wernecke’s decision not to “conduct a separate analysis of the

Werneckes’ Fourteenth Amendment claims” means that it was rejecting the possibility of the

parents’ procedural due process claim. That ignores what the court did: It remanded to allow

the due process claim, just like the children’s Fourth Amendment claim, to continue past the

summary judgment stage. 591 F.3d at 391 n.7. There was no need to conduct a separate due

process analysis because under Gates the standard was the same as that governing the

Fourth Amendment claim. Id.

2 When an exigency is the basis for the removal, a prompt postdeprivation hearing is

required. Gates, 537 F.3d at 435 (finding no due process violation because exigent

circumstances supported the removal of the children and a hearing was held the day after

the seizure); Martin v. Tex. Dep’t of Protective & Regulatory Servs., 405 F. Supp. 2d 775, 790

(S.D. Tex. 2005) (finding no procedural due process violation because the child was removed

based on allegations of sexual abuse and parents received a hearing within 24 hours).

9

Case: 18-20157 Document: 00515097312 Page: 10 Date Filed: 08/29/2019

No. 18-20157

They instead suggest that “the distressing state of Plaintiffs’ home” created

such an urgency that the children needed to be removed before a court order

could be obtained. But we have previously rejected the notion that a “merely

cluttered” home poses an imminent danger to children justifying a warrantless

removal. Wernecke, 591 F.3d at 400–01. And Plaintiffs have more than just

their own version of events to rely on. The ruling of the state judge, finding no

exigency to justify the removal and immediately returning the children to both

parents, lends further support to a procedural due process claim under the

clearly established Gates standard.

Defendants’ primary pushback on the procedural due process claim is to

argue that when there is a claim grounded in a specific constitutional provision

like the Fourth Amendment, the Due Process Clause should not offer separate

protection from the same conduct. See Albright v. Oliver, 510 U.S. 266 (1994).

But Albright refers to explicit textual sources of constitutional protection

displacing “the more generalized notion of ‘substantive due process.’” 3 Id. at

273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); cf. Morris, 181 F.3d

at 676 (Jolly, J., concurring) (arguing that, under Graham, “an analysis under

the procedural due process doctrine should preempt our consideration of the

plaintiffs’ claim under the doctrine of substantive due process”). Here the

apparent overlap is between the Fourth Amendment and procedural due

process. The larger point, however, is that there is no overlap. The ones who

are seized, the children, may assert a Fourth Amendment claim (brought on

3 This principle shows why another of Brown’s suggestions—that child removal claims

are only governed by substantive due process and not procedural due process—gets things

backwards. As Judge Higginson’s concurring opinion points out, if anything procedural due

process should be the primary source of protection. Concur. Op. (citing Morris, 181 F.3d at

676 (Jolly, J., concurring)). We nonetheless also address substantive due process because the

parties pressed that analysis and our cases have applied both substantive and procedural

due process analysis to child removal cases.

10

Case: 18-20157 Document: 00515097312 Page: 11 Date Filed: 08/29/2019

No. 18-20157

their behalf by the parents). Gates, 537 F.3d at 427. The parents who lose

control of their children may assert a due process right. Id. at 434. As a result,

in child removal cases we have repeatedly allowed parents to vindicate their

due process right to direct the upbringing of their children even when the same

conduct supports a child’s Fourth Amendment claim. Id; Wernecke, 591 F.3d

at 391 n.7; Wooley, 211 F.3d at 923–26. 4

For almost a decade before Brown took the seven children from their

mother, social workers in this circuit have been on notice that they violate

procedural due process when they remove children without a court order or

exigent circumstances. Gates, 537 F.3d at 434. Because the complaint

plausibly alleges that is what happened to Plaintiffs’ children, this claim

against Brown will proceed past the pleading stage.

III.

What about the other defendants? Plaintiffs do not appeal the district

court’s ruling that the complaint failed to sufficiently allege a policy or practice

that could hold the City of Houston liable for its police officers’ involvement in

the removal.

Although Plaintiffs do appeal the dismissal of Brown’s supervisor

(Mouton), reasoning similar to that warranting the city’s dismissal also

supports her dismissal. A supervisor is liable under section 1983 if: “(1) [s]he

affirmatively participates in the acts that cause the constitutional deprivation,

or (2) [s]he implements unconstitutional policies that causally result in the

4 Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395 (5th Cir. 2002), is

not to the contrary. It was not a child removal case. Id. at 412 (distinguishing “the family

association cases” in which “the social worker had removed the child from its family home”).

Instead, the case involved unlawful entry into the home and a body cavity search of the child,

and the parent could have refused consent to both actions. Id. at 411-12. Both the parent

and child thus had Fourth Amendment claims. Id.; see also Gates, 537 F.3d at 419

(considering parents’ Fourth Amendment claim based on social workers “entry into the home”

as the parents had a privacy interest in the home).

11

Case: 18-20157 Document: 00515097312 Page: 12 Date Filed: 08/29/2019

No. 18-20157

constitutional injury.” Gates, 537 F.3d at 435. The latter policy-focused

inquiry is akin to the standard for municipal liability. Rios v. City of Del Rio,

Tex., 444 F.3d 417, 426 (5th Cir. 2006). That is, for a supervisor to act with

“deliberate indifference,” she must usually know about a “pattern of similar

violations.” Id. at 427 (quoting Johnson v. Deep East Texas Regional Narcotics,

379 F.3d 293, 309 (5th Cir. 2004)). There is no such allegation. Nor are there

other allegations sufficient to establish deliberate indifference. As for actual

involvement, there are only general allegations that Mouton “approved the

unlawful seizure” and worked with Brown “to execute a coordinated removal

of the children.” Such conclusory allegations are not enough. Iqbal, 556 U.S.

at 678.

That leaves the allegations against the two police officers who helped

Brown remove the three young children from Romero’s vehicle. Those

allegations do not establish that the officers violated clearly established law.

Officers assisting social workers in the removal of children may “reasonably

rely on [the child welfare agency’s] assessment of the situation.” Gates, 537

F.3d at 431. There is no general obligation of officers to “cross-examine” other

officials they are assisting about the justification for the law enforcement

action. Id. (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir.

1976)).

The officer’s reliance on Brown was not clearly unreasonable. Brown had

prepared a notice of removal, had visited the home the day before, and there

was a pending investigation into domestic violence. There is no indication that

the officers had reason to believe that Brown or her agency had “made

unconstitutional decisions to remove children in the past.” Id. These objective

bases for relying on Brown about the need to remove the children overcome the

conclusory, uncertain, and likely implausible allegation that Brown may have

told the officers that there was no emergency to justify the removal. Given all

12

Case: 18-20157 Document: 00515097312 Page: 13 Date Filed: 08/29/2019

No. 18-20157

the circumstances, we cannot say that all reasonable officers would have

viewed assisting Brown as an unlawful act. Officers Benavides and Ruiz are

entitled to qualified immunity.

***

The judgment of the district court is AFFIRMED IN PART and

REVERSED IN PART. The procedural due process claim against Brown is

REMANDED for further proceedings in which Brown will be able to tell her

side of the story.

13

Case: 18-20157 Document: 00515097312 Page: 14 Date Filed: 08/29/2019

No. 18-20157

STEPHEN A. HIGGINSON, Circuit Judge, concurring:

I concur fully in the majority opinion’s procedural due process analysis.

I write separately only to note that I would not address substantive due process

as a distinct cause of action here. See Morris v. Dearborne, 181 F.3d 657, 675

(5th Cir. 1999) (Jolly, J., concurring). In similar contexts, the Supreme Court

has recognized that the Fourteenth Amendment protects the fundamental

liberty interest of parents in the care and custody of their children and then

outlined the procedural due process required before depriving parents of that

right. See Santosky v. Kramer, 455 U.S. 745, 753–54 (1982); Stanley v. Illinois,

405 U.S. 645, 650–51 (1972). We followed this approach in Wooley v. Baton

Rouge, 211 F.3d 913, 923–24 (5th Cir. 2000), and Gates v. Tex. Dep’t of

Protective & Regulatory Servs., 537 F.3d 404, 434 (5th Cir. 2008).

In Wooley, we explained that “a child’s right to family integrity is

concomitant to that of a parent” and considered “the nature of the process due

[the child] before depriving him of that right.” 211 F.3d at 923–24. We held

that removing a child from the custody of his mother absent judicial

authorization or a threat to the child’s safety violated the “clearly established

right” of mother and child “to maintain their relationship free from

interference by state actors.” Id. at 924. We further clarified the constitutional

standard for child removals in Gates, 537 F.3d at 429, 434–35, and Wernecke

v. Garcia, 591 F.3d 386, 400–01 (5th Cir. 2009). Under Wooley, Gates, and

Wernecke, the plaintiffs have alleged a violation of their clearly established

Fourteenth Amendment rights.

14