finding that "[r]emoving [a child] from his home and parents and taking him into protective custody qualifies as a seizure" and that "[i]n the context of removing a child from his home and family, a seizure is reasonable if it is pursuant to a court order, if it is supported by probable cause, or if it is justified by exigent circumstances"
How later courts described this case
- finding that "[r]emoving [a child] from his home and parents and taking him into protective custody qualifies as a seizure" and that "[i]n the context of removing a child from his home and family, a seizure is reasonable if it is pursuant to a court order, if it is supported by probable cause, or if it is justified by exigent circumstances"
- reasoning that “[fifteen-month-old child’s] claim arising from his initial removal [from his house] is properly *865 analyzed under the Fourth Amendment because it is premised on his seizure and does not coincide with sufficiently separate conduct involving his relationship with his parents.”
- holding that “it is improper to obtain consent to a safety plan through du- ress or other illegal means” including when a case worker threatens “to take an action that she has no legal authority to take”
- explaining that in this context, the seized child has a Fourth Amendment claim, while his or her parents have a substantive due process claim for interference with familial relationship
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1364
JAYMZ H ERNANDEZ, by his parents and
next friends Crystelle Hernandez and
Joshua Hernandez, et al.,
Plaintiffs-Appellants,
v.
L AKESHA F OSTER, DCFS investigator,
in her individual capacity, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-02461—Suzanne B. Conlon, Judge.
A RGUED F EBRUARY 8, 2011—D ECIDED A UGUST 26, 2011
Before SYKES, T INDER, and H AMILTON, Circuit Judges.
T INDER, Circuit Judge. The Illinois Department of Chil-
dren and Family Services (“DCFS”) took fifteen-month-old
Jaymz Hernandez away from his home and parents
and into temporary protective custody. Jaymz and his
parents, Crystelle and Joshua Hernandez, later sued the
2 No. 10-1364
defendants-appellees, Lakesha Foster, a DCFS investigator;
her supervisor, Pamela Foster-Stith; and Michael Ruppe,
DCFS Assistant Regional Manager, alleging violations
of their constitutional rights. The district court granted
summary judgment to the defendants on qualified im-
munity grounds, and the plaintiffs appealed. We affirm
in part and vacate in part.
I. Background
A. September 8, 2008
In the morning of September 8, 2008, Crystelle and
Joshua Hernandez took their fifteen-month-old son,
Jaymz Hernandez, to Sherman Hospital, stating that
they thought he had fallen out of his crib, a distance of
approximately three to four feet to the tiled floor. Nurse
Lisa Luebke noted that she asked the parents if Jaymz
was walking or climbing, and Crystelle said that he “is
not walking or climbing, but [she] doesn’t know how
he fell out of [his] crib,” which had its side rails up and
was locked. The parents also told the treating physician,
Dr. Natalie Kostinsky, that Jaymz was not walking or
climbing. X-rays were taken, and the radiologist diag-
nosed a torus fracture of the distal right radius and
ulna. This type of fracture is not a complete fracture and
is also referred to as a buckle fracture. It is a common
injury in children and can be sustained by a fall of a
few feet onto a tiled floor. Dr. Kostinsky concurred with
the diagnosis.
Nurse Luebke noted in the hospital record that the
parents’ “story doesn’t sound correct.” Around 12:00 p.m.,
No. 10-1364 3
she called the DCFS hotline, reporting that Jaymz had
a right forearm fracture and a “story inconsisten[cy].”
Nurse Luebke advised that Jaymz was not yet walking or
climbing, but the parents claimed he fell out of his crib,
although the crib railing was up and locked and neither
parent saw him fall. (The mattress was not in its lowest
position, but the record does not disclose that the
nurse was aware of this fact.) The record of the initial
report indicates that Nurse Luebke stated that the par-
ents’ “story d[id] not fit Jaymz’s fracture.” She also re-
ported that Jaymz had old bruises above his left
eyelid and it was unknown how he got them. DCFS
advised Dr. Kostinsky to release Jaymz to his parents.
Dr. Kostinsky testified that she felt Jaymz was not in
immediate danger, but the case needed to be investi-
gated. After Nurse Luebke notified Crystelle and Joshua
that a report had been made to DCFS, Crystelle claimed,
“Oh, [Jaymz] can walk,” but denied that he could climb.
DCFS assigned an investigation into the hotline
call’s allegations to the team of defendant Pamela Foster-
Stith, a DCFS supervisor. Foster-Stith promptly inter-
viewed Nurse Luebke and Dr. Kostinsky by telephone.
Nurse Luebke reported that Jaymz’s radius and ulna
were broken and he had bruising above his left eyelid.
Foster-Stith’s note of the interview stated that Nurse
Luebke said “the story the family gave didn’t match
the injury.” Nurse Luebke stated that the mother said
the railing was up and locked and no one witnessed
the incident. The nurse also reported that the father
originally said he was called home from work, and then
changed and said he was home when the incident oc-
4 No. 10-1364
curred. Dr. Kostinsky reported that both parents said
Jaymz fell out of the crib and was alone in the room.
She said that she noted some bruising above Jaymz’s
eye from a prior injury, but the parents did not report
how it occurred. Dr. Kostinsky told DCFS that the
parents stated there was nothing in the crib that Jaymz
could have used to climb out of the crib. Dr. Kostinksy
reported that she was suspicious of abuse because
both parents told her that they were at home at the time
of the incident, but told Nurse Luebke that the mother
was home alone. The doctor added that the age and size
of the child and his ability to climb up the railing and
fall out of the crib also made her suspicious.
Foster-Stith prepared a plan of action and early that
afternoon contacted Foster about the matter. The plan
stated that the source said “Crystelle’s and Joshua’s story
d[id] not fit Jaymz’s fracture” and Jaymz also had older
bruises above his left eyelid, but it was unknown how
he got them. It said that the child needed to be seen
at home and instructed Foster to “[r]ule out Protective
custody and/or Safety Plan” and “assess for safety and
risk.” Shortly after preparing the action plan, Foster-
Stith met with DCFS Assistant Regional Manager, defen-
dant Mike Ruppe, to discuss the case, including the
medical providers’ concerns. Ruppe advised her on how
to proceed, including that they needed to rule out pro-
tective custody, which we understand as meaning to
eliminate this as a requirement to ensure Jaymz’s safety.
Foster-Stith next contacted Nurse Luebke and
Dr. Kostinsky about the exact type of fracture Jaymz
No. 10-1364 5
had, and they reported that he had a “buckle” fracture.
Foster-Stith could not recall the significance of a
buckle fracture: whether this type of fracture indicated
a more serious situation or an accidental injury.
At about 4:00 p.m., Foster visited the Hernandez home.
She observed Jaymz walking and climbing, playing
with toys, and interacting with his mother and grand-
father. She noted that his right arm was in a partial
cast and he had a light scratch above his left eyelid.
Foster interviewed Crystelle who reported that she,
Joshua, and her father were upstairs while Jaymz was
downstairs in his crib taking a nap. She said that the
video baby monitor had been on, but she didn’t sit and
watch it the entire time. She heard Jaymz crying in
an unusual manner and found him standing in front of
his crib. He wouldn’t calm down and frowned when
he tried to use his right hand. After returning home
from the hospital, she lowered the crib mattress to the
lowest position.
Foster observed the Hernandez’s home, including the
basement where the crib was located. It was a regular-
sized crib with a blanket, sippy cup, and pillow inside.
A throw carpet was in front of the crib on the tiled
floor. Foster also observed a video baby monitor
mounted on the wall and several age-appropriate toys
for Jaymz. She completed a home safety checklist and
screenings for substance abuse and domestic violence,
finding no evidence of either issue.
Around 4:30 p.m., Foster called Foster-Stith and re-
ported that Jaymz was able to walk and climb and was
6 No. 10-1364
actively engaged in the home. According to Crystelle,
Foster stated that “everything looks fine; there’s nothing
that seems suspicious or anything like that,” and the
supervisor responded that Foster needed to treat it just
like every other protective custody case. Foster also
reported that the crib was in the basement area on a
tiled floor with a throw rug under it. She advised Foster-
Stith that the parents really didn’t know what hap-
pened and that Jaymz must have climbed up and fallen
out of his crib. Foster did not comment on whether
she believed the parents’ explanation. Foster-Stith
testified that she asked Foster to talk to the family about
implementing a safety plan based on Jaymz’s age, his
injury, and the fact that two medical professionals said
that the parents’ explanation “wasn’t consistent” with the
injury. Foster-Stith added that she and Foster discussed
implementing a safety plan with the family, and the
family was resistant to a safety plan at that time.
Foster could not remember if she discussed a safety
plan with the Hernandezes during this visit, and her
notes do not document whether or not she did.
At about 4:45 p.m., Foster-Stith met with Ruppe to
discuss the case. Ruppe has no recollection of their con-
versation and no contemporaneous notes were taken.
Foster-Stith testified that she advised Ruppe the parents
had no explanation for how Jaymz actually fractured
his arm or for the bruising above his eye and the family
was not willing to enter into a safety plan at that
time. Ruppe concluded that Jaymz was unsafe without
either a safety plan or protective custody because there
was conflicting information about his mobility and
No. 10-1364 7
who was home at the time of the injury. Ruppe ex-
plained that protective custody had to be taken be-
cause the parents would not agree to a safety plan. The
“driving force” behind his decision to take protective
custody was the “allegation of [a] bone fracture” to a
fifteen-month-old child with “no significant or suf-
ficient [or consistent] explanation of how that injury
occurred.” Ruppe approved of Foster-Stith’s decision to
take protective custody of Jaymz.
Right after the conversation with Ruppe, Foster-
Stith contacted Foster, who was still at the Hernandez
home, by phone and directed her to take protective cus-
tody of Jaymz and determine whether he could go
stay with a family member. Foster-Stith explained to
Foster that protective custody was needed because
Jaymz had been injured in the home and no one could
tell a story consistent with his injury.
At about 5:45 or 6:00 p.m., Foster took Jaymz into pro-
tective custody. She advised Crystelle (Joshua was not
home) that Jaymz had to be taken into protective
custody for forty-eight hours, during which time
Crystelle and Joshua could not see him. Foster explained
what protective custody was. She also explained that
if the state’s attorney were to file a petition, there would
be a court hearing; but if the state’s attorney did not
file a petition, protective custody would lapse and they
would be contacted. Foster stated that Crystelle and
Joshua could have no contact with Jaymz while he was in
protective custody and out of the home. She provided
Crystelle with a notification of the investigation and an
8 No. 10-1364
investigations brochure, explaining the investigation
process. At Crystelle’s request and with Foster-Stith’s
approval, DCFS placed Jaymz in relative foster care with
his great-grandparents. Foster first took Jaymz to be
examined by a physician (standard procedure when a
child is taken into protective custody) and then to his
great-grandparents’ home, accompanied by Crystelle’s
stepmother, who stayed there for “[a] couple of days.”
B. September 9, 2008
Early the next day on September 9, Foster contacted
Nurse Luebke who again reported that Crystelle said
Jaymz could not walk or climb and that he fell out of
his crib. The nurse said that the two assertions were
inconsistent. She also stated that Crystelle said there
was nothing in the crib for Jaymz to climb up on, “which
again does not match” the claim that Jaymz fell out of
his crib.
Later that morning, Jaymz was seen by an orthopedist,
Dr. Arnold Herbstman, who determined that he needed
a cast on his arm for three weeks. DCFS allowed Crystelle
and Joshua to accompany him to this appointment.
Dr. Herbstman informed Foster that the injury “did not
look like any abuse or neglect . . . this type of fracture is
a torus type (a little buckle) not from a twisting of the
arm, it is consistent with the history of child falling from
a crib, it is sustain[ed] from direct contact and there
were no finger marks on his arm.”
At Foster’s request, Jaymz was examined later that day
by an emergency medicine physician, Dr. Marcy Zirlin.
No. 10-1364 9
The doctor noted the wrist fracture; the physical exam
was otherwise normal. She ordered a skeletal survey,
which is an X-ray of all the bones in a child’s body that
can be used to detect bone fractures. Dr. Zirlin indicated
that there were no clinical or radiographic signs of
abuse. The radiologist did not disagree. In mid-afternoon,
Foster informed a detective that the doctors who per-
formed the full skeletal X-ray saw no reason to believe
that Jaymz had been abused and believed the fracture
was consistent with a fall from a crib.
Early that afternoon, Foster spoke with an assistant
state’s attorney, Julia Almeida, who told her that “there
is not enough to file a petition.” Almeida advised that
they had “to prove immediate and urgent [need to
remove a child] and I do not see that we have that.” Foster
understood at that time that Almeida would not be
going to court on the case. Foster apparently shared
this information with Foster-Stith. A short time later,
Foster-Stith emailed Ruppe that Almeida didn’t think
there was enough for shelter care (a court hearing on
protective custody). After Foster’s conversation with
Almeida, DCFS had no further contact with the state’s
attorney’s office regarding the Hernandez matter.
At about 1:00 or 2:00 p.m., Foster contacted the
Hernandezes by phone. Foster testified that she told
Crystelle that protective custody lapsed and there
would be no court hearing in the case. Crystelle stated
that Foster said there was not enough evidence to take it
to court. Crystelle asked Foster whether that meant
Jaymz could come home, and Foster said, “No, we still
10 No. 10-1364
have to do investigating.” So Crystelle asked when
Jaymz could come home, and Foster said she did not
know; she had to talk to her supervisor. According to
Crystelle, she asked if she could go see Jaymz, and Foster
said everything had to stay the same because the forty-
eight-hour period wasn’t up yet. Foster testified that
she asked Crystelle whether there was a possibility
of doing a safety plan until they got further into the
investigation, and Crystelle was willing to discuss it.
Foster requested a second opinion about the cause of
Jaymz’s injury from the Multidisciplinary Pediatric Edu-
cation and Evaluation Consortium (MPEEC), a DCFS-
funded consortium of pediatricians who specialize in
child abuse. DCFS uses MPEEC to resolve conflicting
medical opinions about abuse.
C. September 10, 2008
Early on September 10, Foster-Stith and Ruppe agreed
to allow protective custody to lapse and decided to try
to implement a safety plan under which Jaymz would
remain with his great-grandparents and the parents
would have supervised contact with him. At approxi-
mately 10:00 a.m., Foster visited the Hernandez home
and presented the safety plan to Crystelle and Joshua.
Under the terms of the safety plan, “Crystelle and
Joshua Hernandez will not have any unsupervised
contact with Jaymz Hernandez. Jaymz Hernandez will
remain with maternal great-grandparents Yvonne and
Paul Lublink.” Foster told Crystelle and Joshua that once
they signed it, they could see Jaymz, but they could not
No. 10-1364 11
be alone with him or take him anywhere. She said that
they could stay at Crystelle’s grandmother’s house but
could not have unsupervised contact with Jaymz.
Foster also informed them that Crystelle’s grandmother
still had custody over Jaymz and they did not have
their parental rights. Crystelle testified that Foster said
if they “didn’t sign it, [they] couldn’t see him. So we
were signing it.” Crystelle did not ask Foster any ques-
tions about the safety plan, explaining, “I heard her say
I can go see my kid, so I really didn’t care.” Joshua
did not read the safety plan and signed it because
Crystelle did. Foster also obtained Jaymz’s great-grand-
mother’s signature on the safety plan.
D. The Safety Plan Period
Immediately after signing the safety plan, Crystelle
went to her grandmother’s house to stay with Jaymz. She
stayed there overnight for the eight days that the safety
plan remained in effect. Joshua stayed there when he
wasn’t working.
On September 11, Foster spoke to MPEEC physician
Dr. Rosado who had reviewed the medical notes and
advised that a torus fracture “is a rare fracture in
abuse [but he was] not saying it does not happen in
abuse.” On September 16, Crystelle met with a lawyer
and told him what happened with Jaymz and that
DCFS would not give him back unless she went through
a lot of hoops. The lawyer called DCFS and left a
message, which “raised hell” and challenged the deci-
sion not to release Jaymz to his parents.
12 No. 10-1364
On September 17, Foster and Foster-Stith discussed
the case, noting that the safety plan needed to be up-
dated. Foster informed Foster-Stith that the family
was somewhat resistant to the safety plan and had hired
an attorney. They decided that Foster would contact
the attorney and explain the situation. So Foster
spoke with the attorney that day and advised him
that Jaymz’s X-rays had been sent to a forensic
physician for a determination of whether there was
evidence of prior breaks and a history of abuse. The
attorney reported back to Crystelle that the investigation
was progressing and hopefully she would get Jaymz
back right away. That evening, Foster visited Jaymz at
his great-grandmother’s house to monitor the safety
plan and had the great-grandmother sign a new
safety plan, which contained terms strikingly similar to
the first.
On the morning of September 18, Foster obtained the
Hernandezes’ agreement to the new safety plan which,
like the terminated safety plan, provided that “Crystelle
and Joshua Hernandez will not have any unsupervised
contact with Jaymz Hernandez. Jaymz Hernandez will
remain with maternal great-grandparents.” That after-
noon, Foster discussed the case with DCFS supervisor
Joseph Becerra, including whether the safety plan
should be extended or terminated. Foster advised him
that Jaymz had seen three physicians who reported his
injury was consistent with an accident and the family
had hired an attorney who believed there was no longer
a need for a safety plan. Foster and Becerra agreed
that the safety plan could be terminated. Foster also
No. 10-1364 13
consulted with Foster-Stith, noting the findings of
Dr. Rosado, Dr. Zirlin, and Dr. Herbstman that sup-
ported the conclusion that Jaymz’s injury was not due
to abuse and was consistent with a history of a fall out
of a crib. Foster-Stith agreed to terminate the safety
plan. That evening, Foster obtained Joshua’s signature
on a safety plan termination agreement, thus terminating
the safety plan that the Hernandezes had signed earlier
that same day.
DCFS’s investigation continued and ultimately con-
cluded on November 7, 2008, with a declaration that
the allegation of child abuse was unfounded—there was
no credible evidence of abuse or neglect.
E. District Court Proceedings
The plaintiffs, Jaymz, Crystelle, and Joshua Hernandez,
filed a complaint under 42 U.S.C. § 1983 against Foster,
Foster-Stith, and Ruppe (along with another DCFS em-
ployee Andrew Polovin, not a part of this appeal), alleging
violations of their rights under the Fourth and Fourteenth
Amendments. The defendants moved to dismiss for
failure to state a claim, or alternatively, on qualified
immunity grounds. The motion was granted with respect
to Polovin only. The defendants moved for summary
judgment on qualified immunity grounds, and the
district court granted their motion. The court determined
that child welfare workers could have reasonably
believed that taking temporary protective custody of
Jaymz was supported by probable cause and that Jaymz’s
seizure did not violate a clearly established right. It
14 No. 10-1364
concluded that the Fourth Amendment rather than sub-
stantive due process governed Jaymz’s initial removal
and that with respect to the conditions imposed be-
tween the initial removal and the implementation of the
safety plan, the plaintiffs failed to show a clearly estab-
lished substantive due process right.
The court also determined that Foster’s alleged state-
ments to Crystelle in obtaining the safety plan could not
reasonably be construed as threats or coercion and
even if the statements were construed as coercion,
DCFS was merely threatening to enforce its legal rights.
Further, the court found that the plaintiffs failed to
show that the safety plan affected their clearly estab-
lished substantive due process rights. With regard to
procedural due process, the court determined that
given the reasonable suspicion of abuse, a reasonable
child welfare worker could have believed that taking
Jaymz into temporary protective custody, specifically
placing him with other family members and limiting
the parents to supervised contact while the investigation
continued, did not require an immediate court hearing
and order. It also ruled that the plaintiffs failed to
show that the implementation of the safety plan vio-
lated their clearly established procedural due process
rights. The Hernandezes appealed.
II. Analysis
We review the grant of summary judgment de novo,
viewing the facts in the light most favorable to the
nonmovants and drawing all reasonable inference in
No. 10-1364 15
their favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir.
2011). Summary judgment is proper when there is no
genuine issue of material fact and the moving parties
are entitled to judgment as a matter of law. Id. We
review a qualified immunity determination de novo.
Siliven v. Ind. Dep’t of Child Servs., 635 F.3d 921, 925 (7th
Cir. 2011).
Before addressing the merits, we note the defendants’
request that we strike the plaintiffs’ statement of facts
section of their appellate brief for noncompliance with
Circuit Rule 28(c). We can discern argument from fact
and limit our consideration to those facts that are sup-
ported in the record. The defendants’ request is denied.
A. Qualified Immunity
Qualified immunity shields “government actors from
liability for civil damages where their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have been
aware.” Siliven, 635 F.3d at 925 (citing Pearson v. Callahan,
555 U.S. 223, ___, 129 S. Ct. 808, 815 (2009)). When making
a qualified immunity determination, a court considers
(1) whether the plaintiff’s allegations show that the de-
fendant violated a constitutional right, and (2) whether
that right was “clearly established” at the time of the
defendant’s conduct. Id. at 925-26 (citing Pearson, 129 S. Ct.
at 815); see also Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080
(2011). A court has discretion “ ‘in deciding which of the
two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the
16 No. 10-1364
particular case at hand.’ ” Siliven, 635 F.3d at 926 (quoting
Pearson, 129 S. Ct. at 818).
The plaintiffs bear the burden of proving that the con-
stitutional right was clearly established. Estate of Escobedo
v. Bender, 600 F.3d 770, 779 (7th Cir.), cert. denied sub nom.
Martin v. Hanic, 131 S. Ct. 463 (2010). A right is clearly
established “when, at the time of the challenged
conduct, ‘[t]he contours of [a] right [are] sufficiently
clear’ that every ‘reasonable official would have under-
stood that what he is doing violates that right.’ ” al-Kidd,
131 S. Ct. at 2083 (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). The plaintiffs need not identify “a
case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond
debate.” Id.; see also Estate of Escobedo, 600 F.3d at 780
(stating that a party can demonstrate a right was clearly
established by identifying “a closely analogous case” or
presenting evidence that the defendant’s conduct was
“patently violative of the constitutional right”).
B. Fourth Amendment and Substantive Due Process
Claims
Jaymz brings a Fourth Amendment claim against
Foster, Foster-Stith, and Ruppe, alleging that they
violated his right to be free from unreasonable seizures
when they removed him from the care and custody of
his parents. All three plaintiffs bring a substantive due
process claim premised on (1) Jaymz’s seizure or initial
removal, (2) the continued withholding of Jaymz in
No. 10-1364 17
temporary protective custody after probable cause had
dissipated (the “continued withholding” claim), and
(3) conditioning the parents’ contact with him on the
acceptance of restrictions on their familial rights and
coercing their agreement to the safety plan (the “coerced
safety plan” claim). The plaintiffs do not challenge the
district court’s determination that Jaymz’s claim prem-
ised on his initial removal should be analyzed under
the Fourth Amendment. However, they argue that the
court erred in granting summary judgment on these
other claims.
The district court correctly decided that Jaymz could
not maintain a substantive due process claim premised
on his initial removal. “[S]ubstantive due process may
not be called upon when a specific constitutional pro-
vision (here, the Fourth Amendment) protects the right
allegedly infringed upon.” Doe v. Heck, 327 F.3d 492,
518 n.23 (7th Cir. 2003) (concluding that a child’s con-
stitutional claim premised on his seizure is analyzed
under the Fourth Amendment rather than substantive
due process unless it is alleged that the seizure “co-
incided with other conduct amounting to an interference
with the parent-child relationship”); see also Brokaw v.
Mercer Cnty., 235 F.3d 1000, 1017-18 (7th Cir. 2000) (con-
cluding that child’s substantive due process claim
could not succeed to the extent it was premised on his
removal from his home because the Fourth Amendment
addressed that seizure). Jaymz’s claim arising from his
initial removal is properly analyzed under the Fourth
Amendment because it is premised on his seizure and
does not coincide with sufficiently separate conduct
18 No. 10-1364
involving his relationship with his parents. However, the
court seems to have overlooked that Crystelle and
Joshua also assert substantive due process claims prem-
ised on Jaymz’s initial removal. They were not seized;
thus, their claims are properly analyzed under substan-
tive due process.
1. Jaymz’s Initial Removal
“In the context of removing a child from his home
and family, a seizure is reasonable if it is pursuant to
a court order, if it is supported by probable cause, or if it
is justified by exigent circumstances, meaning that state
officers ‘have reason to believe that life or limb is in
immediate jeopardy.’ ” Brokaw, 235 F.3d at 1010 (quoting
Tenenbaum v. Williams, 193 F.3d 581, 605 (2d Cir. 1999)); see
also Siliven, 635 F.3d at 926 (quoting Brokaw). Removing
Jaymz from his home and parents and taking him into
protective custody qualifies as a seizure. See Brokaw, 235
F.3d at 1010. Since Jaymz’s seizure was not pursuant to
a court order and the defendants do not assert that it
was justified by exigent circumstances, the seizure must
have been supported by probable cause to have been
reasonable.
The probable cause analysis is an objective inquiry.
Siliven, 635 F.3d at 927. The “focus is on the facts and
circumstances known to defendants at the time they
decided to remove [the child], and whether a prudent
caseworker (meaning one of reasonable caution) could
have believed that [the child] faced an immediate threat
of abuse based on those facts.” Id. We need not decide
No. 10-1364 19
whether Jaymz’s removal was supported by probable
cause, however; we can decide the claim on qualified
immunity grounds. As long as a reasonable DCFS in-
vestigator, supervisor, and manager “ ‘could have
believed [Jaymz’s removal] to be lawful, in light of
clearly established law and the information [they] pos-
sessed,’ ” the defendants are entitled to qualified immu-
nity. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting
Anderson, 483 U.S. at 641).
The plaintiffs argue that the district court ignored
evidence of the totality of the circumstances including
facts known to the defendants at the time of Jaymz’s
removal that refuted the suspicion of abuse. They cite
the following: Dr. Kostinsky was a “mandated reporter”
and could have taken protective custody of Jaymz
without parental consent if she believed that his life or
health was in imminent danger; Foster-Stith contacted
the hospital and learned that Jaymz had suffered a torus
or buckle fracture, a common injury in children; and
Foster saw that Jaymz could walk and climb and re-
ported this to Foster-Stith.
Under the Illinois Abused and Neglected Child Re-
porting Abuse Act, Dr. Kostinsky and Nurse Luebke
were “mandated reporters,” meaning that if they had
“reasonable cause to believe” that a child in their care
may have suffered abuse, they had a legal duty to report
it to the DCFS. 325 Ill. Comp. Stat. 5/4. And they did
notify DCFS about their suspicions of abuse but did
not take Jaymz into temporary protective custody, ap-
parently because they did not believe that he was in
20 No. 10-1364
imminent danger. In fact, DCFS advised Dr. Kostinsky
to release Jaymz to his parents, and the defendants
have not asserted that exigent circumstances justified
Jaymz’s later removal. As for the type of fracture
that Jaymz sustained, Foster-Stith did not recall the
significance of a buckle fracture, and the plaintiffs do
not point to any evidence to establish that Foster or
Ruppe appreciated the significance of a buckle fracture
in terms of suspected abuse. Foster did observe that
Jaymz could walk and climb and reported this to Foster-
Stith, and this observation corroborates the parents’
suspicion that Jaymz had fallen out of his crib. But it
does not explain why the parents initially denied that
he could walk and climb. Their seemingly inconsistent
statements as to Jaymz’s abilities may support a rea-
sonable belief that further investigation is necessary. Cf.
Hanson v. Dane Cnty., Wis., 608 F.3d 335, 338 (7th Cir.
2010) (“obviously false statements” supported a decision
by the police to continue an investigation). We do not
intend to imply that Crystelle and Joshua gave inten-
tionally false statements. It is enough that their state-
ments about Jaymz’s abilities were reasonably under-
stood to be inconsistent.
The plaintiffs assert that a telephone call to Dr. Kostinsky
explaining that Jaymz could walk and climb may have
cleared up the concern that prompted the initial call to
DCFS. BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986), cited as
support, is distinguishable. There, parents were arrested
for child neglect, and the arresting officer knew about
the children’s condition which “weakly supported an
inference” of neglect, but he did not question the
No. 10-1364 21
parents, the medical personnel who had seen one of the
children, or the babysitter who was watching them. Id. at
126-27. The officer acted unreasonably in not asking
questions; with “[a] few questions” he would have
learned that the parents were not guilty of child neglect.
Id. at 127. We concluded that the officer did not have
probable cause to arrest the parents: “A police officer
may not close her or his eyes to facts that would help
clarify the circumstances of [a seizure]. Reasonable
avenues of investigation must be pursued especially
when . . . it is unclear whether a crime had even taken
place.” Id. at 128. And the officer was not entitled to
immunity because no reasonably well-trained officer
would have believed there was probable cause to arrest
the parents. Id. at 128-29.
Here, in contrast, Foster did conduct an investigation
before taking Jaymz into protective custody. She talked
to Dr. Kostinksy and Nurse Luebke and visited the
Hernandez home where she made her own personal
observations and interviewed Crystelle. Foster’s home
visit led her to report to Foster-Stith that “everything
looks fine” and “nothing . . . seems suspicious.” None-
theless, the home visit did not explain away every
cause for concern about abuse. Even if Foster’s observa-
tions of Jaymz cleared up the inconsistency between
his reported abilities and the parents’ explanation of
how he was injured, that was not the only cause for
concern. Because Crystelle and Joshua initially reported
that Jaymz could not walk or climb when it appeared
that he could, a reasonable investigator may have sus-
pected that the parents were trying to hide something
22 No. 10-1364
or protect someone by reporting erroneous information.
Moreover, that inconsistency was not the only concern
that prompted the hotline call. The parents also gave
conflicting reports to Dr. Kostinksy and Nurse Luebke
about who was home at the time of the incident. Both of
these unexplained inconsistencies, together with the
seriousness of Jaymz’s injury; the older, unexplained
bruising above his eyelid; the initial medical screening
in the hospital raised reg flags about possible abuse;
and the parents’ lack of certainty regarding how the
injury occurred, could give a reasonable DCFS inves-
tigator, supervisor, and manager pause.
The plaintiffs identify three cases to establish that a
reasonable official would know that seizing Jaymz
under the circumstances violated their clearly estab-
lished rights: Doe v. Heck, Michael C. v. Gresbach, 526 F.3d
1008 (7th Cir. 2008), and Brokaw. In Heck, we stated that
“it is patently unconstitutional for governmental
officials to . . . seize a child attending [a private or paro-
chial] school without a warrant or court order, probable
cause, consent, or exigent circumstances.” 327 F.3d at 517.
Gresbach stands for another broad proposition: “a search
of a child’s body under his clothes, on private property”
in the absence of consent or any other exception to the
warrant requirement violates the child’s Fourth Amend-
ment rights. 526 F.3d at 1017. Neither case addresses
circumstances like those presented here. Nor would
they have put a reasonable official on notice that re-
moving Jaymz from the care and custody of his parents
given the above circumstances violated a clearly estab-
lished constitutional right. See Ault, 634 F.3d at 946-
No. 10-1364 23
47 (cases standing for broad propositions concerning
familial integrity would not have put defendant on
notice that she was violating any clearly established
constitutional right).
Brokaw comes a bit closer, but still falls short. In that
case, the plaintiff alleged that he was removed from
his home when he was a child without a court order.
His relatives had made allegations of child neglect to
DCFS and the sheriff’s office but no investigation into
the allegations—not even a home visit or a conversa-
tion with the child—took place. We could not conclude
that the unspecified allegations of child neglect estab-
lished exigent circumstances or probable cause justifying
the child’s removal. Consequently, we concluded that
the plaintiff stated a claim under the Fourth Amend-
ment. Brokaw, 235 F.3d at 1011. In this case, the plaintiffs
argue based on Brokaw that a reasonable investigator
would have known that she could not seize a child
based solely on a hotline call. They also argue that the
defendants acknowledged “they never had more than
a hotline call to support the taking of protective cus-
tody.” The defendants acknowledged that they could
not take protective custody based solely on a hotline
call—false reports can be made and reports of abuse
should be investigated. But they did not agree that their
only evidence was the hotline call. And Foster did not
remove Jaymz based only on the hotline call. She con-
ducted an investigation into the suspected abuse, inter-
viewing Dr. Kostinsky, Dr. Luebke, and Crystelle and
observing Jaymz at home. And some of the bases for
suspicions of abuse persisted despite Foster’s observa-
tions during her home visit.
24 No. 10-1364
Similarly, the plaintiffs argue that the district court
ignored Foster and Foster-Stith’s testimony that before
Foster arrived at the Hernandez home, they did not
have enough evidence to take Jaymz into protective
custody. That is beside the point: Jaymz was taken
into protective custody after Foster visited the home. “The
probable cause analysis is an objective one.” Siliven, 635
F.3d at 927. The “focus is on the facts and circumstances
known to defendants at the time they decided to remove
[the child.]” Id. Whether Foster and Foster-Stith
believed they had probable cause to take Jaymz into
temporary protective custody before the home visit
has little bearing on whether there was probable cause
after the visit.
Although this is a close question, we conclude that a
reasonable DCFS investigator, supervisor, and manager
could have believed that removing Jaymz from his
home and family was supported by probable cause
given the following facts: (1) fifteen-month-old Jaymz
suffered a fractured arm; (2) no one actually observed
how he was injured and Jaymz could not verbalize
what had happened; (3) Jaymz had an unexplained, older
bruise above his left eyelid; (4) Dr. Kostinsky and Nurse
Luebke suspected abuse because Jaymz’s injury didn’t
fit with the parents’ statements that he could not climb
and there was nothing in his crib to climb on; (5) the
parents gave conflicting reports about who was home
at the time of the incident to Dr. Kostinsky and Nurse
Luebke, and one could expect that they would be
accurate in reporting what happened to the medical
professionals; (6) Crystelle first denied that Jaymz could
No. 10-1364 25
walk or climb, but when she was told that DCFS had
been contacted, she claimed he could walk but could not
climb; (7) Jaymz was observed later that same day to
have the ability to walk and climb; and (8) the parents
denied that anything was in the crib, but Foster observed
objects in the crib. This was enough that under the cir-
cumstances a reasonable DCFS official would not have
understood that taking Jaymz into temporary protec-
tive custody violated his Fourth Amendment rights.
The plaintiffs argue that Foster-Stith is not entitled to
qualified immunity because she misrepresented critical
facts to Ruppe by stating that the parents had “no ex-
planation” for how Jaymz’s injury occurred. The
Hernandezes assert that they had an explanation—Jaymz
injured himself when he climbed out of his crib—and
their explanation was consistent with his injury.
Sornberger v. City of Knoxville, Ill., 434 F.3d 1006 (7th Cir.
2006), cited by plaintiffs in which we held that factual
issues precluded summary judgment in favor of arresting
officers on qualified immunity grounds, is inapposite.
The record in that case supported a finding that the
officers “realized the weakness of their case, and there-
fore manipulated the available evidence to mislead the
state prosecutor into authorizing” an arrest. Id. at 1016.
This raised factual issues about whether the officers
reasonably relied on the prosecutor’s advice that there
was probable cause. Id. Although the record does not
establish that Ruppe knew Jaymz could walk and climb,
it likewise does not support a finding that Foster-
Stith misrepresented critical facts to him. Foster-Stith
testified that she advised Ruppe that the parents had
26 No. 10-1364
no explanation for how Jaymz fractured his arm or for
the bruising above his eye. This is not a misrepresenta-
tion because it is true that Crystelle and Joshua did not
actually observe Jaymz fall out of his crib; they were
merely speculating as to how he became injured. And no
explanation for the older bruising above his left eyelid
was offered. Ruppe’s lack of recollection of his conver-
sation with Foster-Stith does not create a genuine issue
of fact as to whether Foster-Stith consulted Ruppe
given Foster-Stith’s testimony. See Tinder v. Pinkerton
Sec., 305 F.3d 728, 736 (7th Cir. 2002).
Based on our review of the record, the defendants
are entitled to qualified immunity on Jaymz’s Fourth
Amendment claim based on taking him into protective
custody. Thus, the district court did not err in granting
them summary judgment on this claim. In moving
for summary judgment, the defendants did not address
the parents’ substantive due process claims premised
on taking Jaymz into protective custody. Nonetheless,
these claims stand or fall with Jaymz’s Fourth Amend-
ment claim premised on his removal, and we may
affirm a grant of summary judgment on any ground
supported by the record. King v. Burlington N. & Santa
Fe Ry., 538 F.3d 814, 817 (7th Cir. 2008). Because sum-
mary judgment was appropriate with respect to Jaymz’s
Fourth Amendment claim premised on his initial
removal, the district court did not err in also granting
summary judgment on the parents’ substantive due
process claims based on his removal.
No. 10-1364 27
2. Continued Withholding of Jaymz
As noted, the plaintiffs assert substantive due process
claims, alleging violations of their right to familial rela-
tions. A family’s right “to remain together without the
coercive interference of the awesome power of the state”
is “the most essential and basic aspect of familial pri-
vacy.” Heck, 327 F.3d at 524 (quoting Duchesne v. Sugar-
man, 566 F.2d 817, 825 (2d Cir. 1977)). The fundamental
right to familial relations is an aspect of substantive due
process. E.g., Siliven, 635 F.3d at 928. This includes the
parents’ right “to bear and raise their children” and the
child’s right “to be raised and nurtured by his parents.”
Id. This right is not absolute, but “must be balanced
against the state’s interest in protecting children from
abuse.” Id. To achieve the proper balance, caseworkers
must have “some definite and articulable evidence
giving rise to a reasonable suspicion” of past or imminent
danger of abuse before they may take a child into pro-
tective custody. Brokaw, 235 F.3d at 1019; see also Siliven,
635 F.3d at 928. “ ‘A reasonable suspicion requires
more than a hunch but less than probable cause.’ ” Siliven,
635 F.3d at 928 (quoting United States v. Oglesby, 597 F.3d
891, 894 (7th Cir. 2010)). The defendants suggest that a
“shocks the conscience” standard, see County of Sacramento
v. Lewis, 523 U.S. 833, 846-47 (1998), is applicable in
the context of taking and holding a child in protective
custody. We have not used that standard in this context,
and our precedent set in Brokaw and followed in Heck
and quite recently in Siliven is otherwise.
The plaintiffs argue that the district court erred in
granting summary judgment on the substantive due
28 No. 10-1364
process claims arising from Jaymz’s continued with-
holding from the time he was taken into protective
custody until the morning of September 10 when the
defendants obtained the signed safety plan. The plain-
tiffs assert that even if the defendants had reason to
believe that probable cause existed to take protective
custody on September 8, probable cause dissipated
by September 9, but the defendants continued to hold
Jaymz and refused to release him to his parents.
The defendants respond by arguing that the plaintiffs
are challenging a single seizure, not two separate ones.
They further argue that the plaintiffs offer no authority
for the proposition that they can assert separate
“duration of custody” claims. The defendants over-
look Brokaw, 235 F.3d at 1018-19, which analyzed a
child’s claim based on a nearly four-month period of
government-forced separation from his parents under
substantive due process. Siliven offers additional
authority, despite our conclusion based on the facts
that the child’s removal and separation did not violate
the plaintiffs’ substantive due process rights. See Siliven,
635 F.3d at 928. Both the parents and the child in
Siliven asserted violations of their right to familial rela-
tions, a component of substantive due process.
We find additional guidance in BeVier, in which an
officer arrested parents for child neglect and later was
advised by an experienced DCFS investigator that his
description of the children’s situation did not appear
to establish child neglect. Nevertheless, the officer did
not release the parents from custody. BeVier, 806 F.2d
No. 10-1364 29
at 125. We held that he violated the parents’ constitutional
rights, stating that “[t]he continuation of even a lawful
arrest violates . . . [constitutional rights] when the
police discover additional facts dissipating their earlier
probable cause.” Id. at 128; see also Garcia v. City of
Chicago, Ill., 24 F.3d 966, 975 (7th Cir. 1994) (Cudahy, J.,
concurring in part and dissenting in part) (asserting that
if the evidence serving as the “sole basis for detention
has evaporated” the plaintiff has stated a due process
claim); Sivard v. Pulaski Cnty., 959 F.2d 662, 665 (7th Cir.
1992) (stating that an arrest based on probable cause
“does not preclude all § 1983 actions for wrongful
detentions”). That Jaymz’s initial removal and continued
holding in temporary protective custody formed one
seizure is of little moment. The issue is whether the
defendants could have believed that continuing to
hold Jaymz in protective custody was lawful. Resolu-
tion of this issue turns on the facts and circumstances
known to them at the relevant time. As they obtained
additional information that eroded any reasonable
basis for believing that Jaymz was abused or was in
imminent danger of abuse, keeping him in protective
custody became unreasonable.
Whether challenged under the Fourth Amendment or
substantive due process, the plaintiffs allege that holding
Jaymz in protective custody beyond the point that the
defendants knew they had no reason to do so violated
their constitutional rights. But are the plaintiffs’ claims
properly analyzed under the Fourth Amendment or
substantive due process? In Heck, we stated: “[I]f a plain-
tiff’s sole purpose in bringing a familial relations claim
30 No. 10-1364
is to recover damages for a physical seizure, then that
claim is more appropriately analyzed under the Fourth
Amendment. On the other hand, if, . . . a familial re-
lations claim specifically alleges that the govern-
ment’s physical seizure coincided with other conduct
amounting to an interference with the parent-child rela-
tionship,” the plaintiff may also maintain a substantive
due process claim. Heck, 327 F.3d at 518 n.23 (citation
omitted). Jaymz complains about his seizure, specifically
including the continued holding of him in protective
custody. Other than the passage of time, the harm he
complains of is no different than the harm he alleges
was caused by his initial removal. He does not assert
that any other conduct interfered with his right to
familial relations. Therefore, Jaymz’s continued with-
holding claim is analyzed under the Fourth Amend-
ment. Crystelle and Joshua were not seized; their contin-
ued withholding claims are properly analyzed under
substantive due process.
The evidence raises genuine issues of material fact as
to when a reasonable DCFS investigator, supervisor, or
manager would have known that the continued with-
holding of Jaymz violated clearly established constitu-
tional rights. The morning of September 9, orthopedist
Dr. Herbstman, who cast Jaymz’s arm, informed Foster
that the injury “did not look like any abuse or neglect” and
that “this type of fracture is a torus type (a little buckle)
not from a twisting of the arm . . . [and] is consistent
with” a fall from a crib. He also advised that this type
of fracture “is sustain[ed] from direct contact and there
were no finger marks on [Jaymz’s] arm.” Although
No. 10-1364 31
Dr. Herbstman did not further explain the significance
of this last fact, the context raises a reasonable infer-
ence that such marks would be expected if the
fracture was caused by abuse. Later that day, Jaymz
had a full skeletal survey and was examined by
Dr. Zirlin, who reported to Foster that other than the
fracture, Jaymz’s physical exam was normal and there
were no clinical or radiographic signs of abuse. The
radiologist did not disagree. Foster understood that
Dr. Zirlin saw no reason to believe that Jaymz had been
abused and, like Dr. Herbstman, believed the fracture
was consistent with a fall from a crib. Furthermore, the
assistant state’s attorney had told Foster that there
was not enough to file a petition; they did not have evi-
dence of an “immediate and urgent [need to remove a
child].” Foster apparently relayed at least the state’s
attorney’s opinion to Foster-Stith, who conveyed it to
Ruppe that afternoon. Finally, Foster advised Crystelle
that protective custody had lapsed and there would be
no court hearing because there was not enough evidence
of abuse.
The record raises a genuine issue as to when on Septem-
ber 9 probable cause dissipated and the defendants no
longer had a reasonable suspicion that Jaymz had been
abused or was in imminent danger of abuse. At that
time, the state had no interest in keeping him in protec-
tive custody and away from his parents. See Brokaw, 235
F.3d at 1019. Nonetheless, the defendants continued to
hold Jaymz in protective custody and he was not
released to his parents. And Foster told Crystelle that
everything had to stay the same just because the forty-
32 No. 10-1364
eight hours wasn’t up—she couldn’t even go see Jaymz.
The evidence raises a genuine dispute of fact about
whether a reasonable person in the defendants’ posi-
tions would have understood that continuing to hold
Jaymz in protective custody violated the plaintiffs’
clearly established constitutional rights.
The defendants argue that Illinois law authorizes them
to keep a child in temporary protective custody for a
full forty-eight hours. The federal Constitution is the
supreme law of the land; state law cannot trump federal
constitutional rights. U.S. Const. art. VI, cl. 2. Even if it
could, the Illinois Juvenile Court Act does not provide
the state with blanket authority to hold a child in pro-
tective custody regardless of the circumstances, specifically
where probable cause and reasonable suspicion have
dissipated. Rather, the Act requires that “[u]nless sooner
released, a minor . . . taken into temporary protective
custody must be brought before a judicial officer within
48 hours . . . for a temporary custody hearing . . . .” 705
Ill. Comp. Stat. 405/2-9(1). Thus, the Act contemplates
cases in which a minor may be released before he is
brought before a judicial officer, and before the expira-
tion of the forty-eight-hour period. Such cases would
include those in which the discovery of additional
facts dissipated the probable cause to hold a child in
temporary protective custody. That is precisely this case.
Probable cause is determined on the basis of the facts
and circumstances known to the defendants at the time
of the conduct in issue, see Siliven, 635 F.3d at 927,
whether it is the child’s removal or the decision to
continue holding a child in protective custody. The de-
No. 10-1364 33
fendants’ assertion that they could keep Jaymz in pro-
tective custody for up to forty-eight hours regardless
of what came to be known to them in the meantime
cannot be reconciled with the probable cause analysis.
And Gerstein v. Pugh, 420 U.S. 103 (1975), County of
Riverside v. McLaughlin, 500 U.S. 44 (1991), and Brokaw
do not authorize a child’s detention for at least forty-
eight hours just because a warrantless seizure of the
child was based on probable cause. Nor do they entitle
the defendants to qualified immunity on the continued
withholding claims. Gerstein and McLaughlin did not
involve a child’s removal and taking into protective
custody; they addressed the Fourth Amendment’s re-
quirement of a prompt judicial determination of probable
cause following an arrest without a warrant. McLaughlin,
500 U.S. at 53; Gerstein, 420 U.S. at 114. Neither case
stands for the proposition that a person who is seized
based on probable cause may be detained for up to forty-
eight hours, or any other period for that matter, notwith-
standing the dissipation of probable cause. Similarly,
Brokaw does not address a forty-eight-hour outer limit.
Nor does it suggest that the state may retain custody of
a child for up to forty-eight hours where probable
cause and even reasonable suspicion no longer exist.
Therefore, the district court erred in concluding that
the defendants were entitled to qualified immunity on
Jaymz’s Fourth Amendment continued withholding
claim and the parents’ substantive due process con-
tinued withholding claims.
34 No. 10-1364
3. Coerced Safety Plan
The plaintiffs also raise substantive due process claims
against all three defendants based on the safety plan. The
state may, instead of immediately removing a child
from his parents, offer the parents the option of agreeing
to a “safety plan,” which imposes certain restrictions
pending completion of the state’s investigation into
suspected abuse. For example, a safety plan may
require that a child be sent to live with other family
members. Dupuy v. Samuels, 465 F.3d 757, 760 (7th Cir.
2006). Although such restrictions on familial rights are
“less extreme than removing the child from parental
custody altogether, . . . they may be invasive enough to
count as deprivations of liberty, thus triggering the right
to a hearing.” Id. We have likened a safety plan to an
interim settlement agreement, stating that “the decision
to agree to a safety plan is optional with the parents.” Id.
at 761. In Dupuy, we concluded that there is no right to
a hearing before the parents are offered a safety plan. Id.
We reasoned:
Parents are entitled to a hearing if their parental
rights are impaired, but the offer of a settlement
[does not] impair[] those rights. . . .
....
. . . Because the safety plan is voluntary, no hearing
of any kind is necessary; hearings are required
for deprivations ordered over objection, not for
steps authorized by consent.
Id. at 761-62. We added that “[i]t is not a forbidden means
of ‘coercing’ a settlement to threaten merely to enforce
No. 10-1364 35
one’s legal [authority].” Id. at 762. However, it is improper
to obtain consent to a safety plan through duress or other
illegal means. See id. at 762-63. Exerting pressure “to
obtain a result to which the party applying the pressure
had no right” is an example of duress. Id. at 763.
In Dupuy, we distinguished Doe v. Heck, which held
that the state agency violated the family’s constitutional
right to familial relations by merely threatening parents
with removing their children from their custody. The
state agency had no lawful authority to make the threat
in Heck; in contrast, in Dupuy, there was no suggestion
that the agency offered a safety plan without a suspicion
of neglect or abuse. See id. at 762-63 (citing Heck, 327 F.3d
at 524-25). Dupuy also distinguished Croft v. Westmore-
land County Children & Youth Services, 103 F.3d 1123 (3d
Cir. 1997), in which a caseworker who suspected a father
of child abuse but had no objective evidence threatened
to place the child in foster care if the father did not
leave the home. See Croft, 103 F.3d at 1127. Thus, the
“threat was not grounded in proper legal authority.”
Dupuy, 465 F.3d at 763. Dupuy represents lawful threats,
whereas Heck and Croft exemplify threats not grounded
in proper legal authority. And as we know from Brokaw,
in the context of protecting a child from his parents,
“proper legal authority” means “some definite and
articulable evidence giving rise to a reasonable suspicion”
of past or imminent danger of abuse. Brokaw, 235 F.3d
at 1019.
Focusing on the particular facts in each of these cases,
the defendants overlook the broader propositions for
36 No. 10-1364
which they stand: where an official makes a threat to
take an action that she has no legal authority to take,
that is duress; and it is improper to obtain consent to a
safety plan through duress or other illegal means. Ac-
cording to Crystelle, Foster presented the safety plan to
them and said that once they signed it, they could see
Jaymz, but they “couldn’t be alone with him or take
him anywhere . . . can’t be unsupervised. My grammy
still has the custody over him; . . . I don’t have . . . my
parental rights.” Crystelle stated that Foster informed
them that “[i]f we didn’t sign it [the safety plan], we
couldn’t see him.” When Foster presented the safety
plan to Crystelle and Joshua the morning of September 10,
however, she could have had no reasonable suspicion
that Jaymz had been abused or was in imminent danger
of abuse. She therefore had no proper legal authority to
tell them that they could not see Jaymz or exercise
other parental custody rights unless they agreed to a
safety plan. See Dupuy, 465 F.3d at 763 (agency had no
right to threaten removing child from parents’ custody
where it did not suspect the parents of child abuse).
The district court determined that in context Foster’s
statements could not reasonably be construed as threats
or coercion. But a threat that parents cannot see their
child unless they agree to something is extremely co-
ercive. See, e.g., Siliven, 635 F.3d at 926 (evidence that
defendants coerced mother into taking her child to her
grandmother’s house by threatening to place him in
foster care if she didn’t cooperate with investigation);
Croft, 103 F.3d at 1125 n.1 (“The threat that unless Dr. Croft
left his home, the state would take his four-year-old
No. 10-1364 37
daughter and place her in foster care was blatantly coer-
cive.”). In the context of removing a child from his
home and family, we have observed that “ ‘[a] threat
becomes more coercive as the cost of non-compliance
increases relative to the cost of compliance.’ ” Siliven, 635
F.3d at 926 (quoting Kernats v. O’Sullivan, 35 F.3d 1171,
1179 (7th Cir. 1994)). Indeed, “it is difficult to overstate
the cost of non-compliance—losing custody of one’s
child, even temporarily.” Id. At oral argument, counsel
for defendants persisted in ignoring a material fact in
this case: Crystelle and Joshua did not have custody of
Jaymz when Foster “offered” the safety plan to them
and represented that if they didn’t sign the plan, they
couldn’t even see Jaymz. It is one thing for parents to
question a caseworker’s authority to impose a safety
plan when they have custody of their child; it is entirely
another when the parents don’t have custody. In the
former situation, the parents’ resistance may create the
risk that the child will be taken away from them, whereas
in the latter, the child has already been removed—the
risk is certain. Defense counsel failed to appreciate
this critical difference. In asserting that it was not rea-
sonable for the Hernandezes to sign the safety plan with-
out reading it or questioning Foster’s authority, despite
“knowing” that temporary custody would end within a
few hours and no court hearing would be held, the de-
fendants fail to view the facts and reasonable inferences
in favor of the plaintiffs, as we and the district court
must. The record raises a genuine issue of fact as to
whether Crystelle and Joshua were coerced into signing
the safety plan.
38 No. 10-1364
According to the defendants, Crystelle and Joshua had
an effective legal remedy—a hearing within forty-eight
hours of removal. But this ignores evidence that Foster
told Crystelle the day before that there would be no
hearing, no petition would be filed, and that protective
custody would be allowed to lapse. The defendants
seem to advocate a standard under which parents in the
Hernandezes’ position should mistrust what a DCFS
investigator says to them. That is an odd position to
take. In addition, the record does not suggest that
Foster’s statement that Crystelle and Joshua had to sign
the safety plan if they wanted to see Jaymz was
qualified in any manner. For example, nothing suggests
that Foster limited her statement that they had no
custody rights and could not see Jaymz “at this mo-
ment.” But even if that would have satisfied due process,
which it wouldn’t, no such qualification was provided
here.
In arguing that the parents were not coerced into agree-
ing to the safety plan, the defendants cite Terry v. Richard-
son, 346 F.3d 781 (7th Cir. 2003), where a noncustodial
father alleged that a DCFS investigator interfered with
his substantive due process rights by interfering with
his interest in visitation with his child. The father
was suspected of sexual abuse of his child, and a DCFS
investigator advised him that he was to cease all visita-
tion and contact with his child during the investigation.
See id. at 782-83. We determined that “a reasonable
person with the resources available to [the father],
would not have left [the investigator’s] authority unques-
tioned[.]” Id. at 785. Importantly, the father had a chance
to speak to the investigator about the scope of her author-
No. 10-1364 39
ity and within two weeks of their conversation, he had
met with an attorney. Id. This case, however, is quite
different. The plaintiffs have presented evidence that
Foster threatened Crystelle and Joshua that they could
not even see Jaymz if they did not sign the safety plan
after suspicions of abuse had dissipated. At the time,
the parents had not consulted a lawyer and Jaymz had
already been taken from their custody. Under these
circumstances, a reasonable person may not have risked
questioning Foster’s authority because their custodial
rights had already been taken from them.
Dupuy gave the defendants fair notice that threatening
to take action that they had no legal authority to take is
improper and violates familial rights. Dupuy, 465 F.3d
at 763. The plaintiffs have raised a genuine issue of mate-
rial fact as to whether a reasonable parent in Crystelle
and Joshua’s position would have questioned Foster’s
authority and whether their agreement to the safety plan
was coerced. And any reasonable DCFS investigator,
supervisor, or manager would know that threatening
Crystelle and Joshua, as they allege they were threatened,
without even a reasonable suspicion of abuse to get
them to agree to the safety plan violated the plaintiffs’
constitutional rights. Thus, the district court erred in
granting summary judgment on the substantive due
process claims related to the coerced safety plan.
C. Procedural Due Process
All plaintiffs in this case bring procedural due process
claims, alleging that the defendants violated their due
40 No. 10-1364
process rights by taking protective custody of Jaymz
in the absence of an emergency or pre-deprivation
hearing and coercing Crystelle and Joshua into
accepting the safety plan. The plaintiffs point out that
in moving for summary judgment, the defendants
did not challenge the procedural due process claims
premised on Jaymz’s initial removal. Although gen-
erally the district court should not base summary
judgment on grounds not raised by the moving party, see
Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th
Cir. 2006), “we may affirm on any ground supported in
the record, so long as it has been adequately presented
below.” Stockwell v. City of Harvey, 597 F.3d 895, 901 n.2
(7th Cir. 2010). The reason for this: “[I]f the issue is not
raised below, the nonmovant has no obligation to
present evidence on the point.” Id.
The defendants did not expressly seek summary judg-
ment on the procedural due process claims stemming
from Jaymz’s initial removal. (Their summary judgment
motion asserted that they were entitled to qualified
immunity on the claimed procedural due process viola-
tion. See Suppl. App. 179.) However, the plaintiffs’ opposi-
tion brief argued that they were denied procedural due
process in part because they were afforded no hearing
either before Jaymz’s removal or while he was in protec-
tive custody. See id. at 229. The plaintiffs also argued
that the defendants were not entitled to qualified immu-
nity as against the procedural due process violations. Id.
at 229-30. And the plaintiffs have not asserted that they
have any evidence pertaining to their procedural due
process claims that wasn’t presented in the district
court. Therefore, we consider whether the defendants are
No. 10-1364 41
entitled to summary judgment on the due process claims
premised on Jaymz’s initial removal.
“The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319,
333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). “The amount and timing of the process due . . .
varies with circumstances.” Chi. United Indus., Ltd. v.
City of Chicago, 445 F.3d 940, 944 (7th Cir. 2006) (citing
Mathews, 424 U.S. at 335)). We stated in Brokaw, long
before the events at issue in this case, that due process
“at a minimum . . . requires that government officials not
misrepresent the facts in order to obtain the removal of
a child from his parents” and “also means that govern-
mental officials will not remove a child from his home
without an investigation and pre-deprivation hearing
resulting in a court order of removal, absent exigent
circumstances.” Brokaw, 235 F.3d at 1020.
The plaintiffs assert that Brokaw placed any reasonable
DCFS investigator, supervisor, or manager on notice
that taking Jaymz into temporary custody without
a hearing, absent exigent circumstances, violated the
plaintiffs’ procedural due process rights.1 We disagree.
1
The Illinois Abused and Neglected Child Reporting Act and
Illinois administrative code provide notice that a hearing and
court order was necessary under state law. See 325 Ill. Comp.
Stat. 5/5; Ill. Admin. Code tit. 89, § 300.120. A violation of the
state law does not necessarily establish a federal due process
(continued...)
42 No. 10-1364
First, in Brokaw we concluded that “[b]ecause [the
plaintiff] claims that he was removed based on know-
ingly false statements of child neglect, and that the de-
fendants removed him from his home without an investi-
gation, a pre-deprivation hearing, or exigent circum-
stances, he has stated a procedural due process claim[.]”
235 F.3d at 1021. Thus, the conclusion that the plain-
tiff stated a due process claim was not based solely on
the absence of a predeprivation hearing and exigent
circumstances. It is a bit unclear whether the plaintiff
still would have stated a claim if he had not alleged that
he was removed based on misrepresentations.
Furthermore, our decisions contain conflicting language
regarding when a pre-deprivation hearing is required
before a child’s removal. For example, in Jensen v. Foley,
295 F.3d 745 (7th Cir. 2002), decided almost two years
after Brokaw, we stated:
So long as a post-deprivation hearing is held
within 2 business days of removal, DCFS agents
constitutionally may remove a child from
her home and family without a pre-deprivation
hearing if they are acting pursuant to a court
order, if the taking is supported by probable
cause to believe that the child would be subject to
1
(...continued)
claim. See, e.g., Waubanascum v. Shawano Cnty., 416 F.3d 658,
666 (7th Cir. 2005) (“State law does not create duties under
the federal constitution, and violations of state law are by
themselves insufficient to impose liability under § 1983.”).
No. 10-1364 43
the danger of abuse if not removed, or if exigent
circumstances require them to do so.
Id. at 747 (citing Brokaw, 235 F.3d at 1010). It is true that
Jensen cites to Brokaw’s analysis of the Fourth Amendment
seizure claim, not the procedural due process claim,
and whether a seizure is substantively reasonable
under the Fourth Amendment is independent of the
question of what process is due. Compare Brokaw, 235
F.3d at 1010, with id. at 1020. But the language quoted
from Jensen appears in the context of addressing
both Fourth and Fourteenth Amendment rights and is
unaccompanied by any indication that it is limited to
one context or the other. Moreover, in Jensen we deter-
mined that the plaintiffs’ constitutional claims—without
any qualification and thus including the procedural
due process claims—“could succeed only if no probable
cause existed.” Jensen, 295 F.3d at 748.
When Jensen is understood in its factual context, how-
ever, it is consonant with Brokaw. In Jensen, the state
court found at a temporary custody hearing that there
was probable cause to believe that the removed child
was at risk of physical harm in her home and that
keeping her out of her father’s custody was “a matter of
immediate and urgent necessity.” Id. Thus, in essence
the state court found exigent circumstances, cf. Doe v.
Kearney, 329 F.3d 1286, 1294 n.10 (11th Cir. 2003) (treating
“emergency” as synonymous with “exigency” and “im-
minent danger”), which justified the child’s removal
without a pre-deprivation hearing.
44 No. 10-1364
Another decision containing ambiguous language
regarding a pre-removal hearing requirement is Lossman
v. Pekarske, 707 F.2d 288 (7th Cir. 1983). There, we consid-
ered whether a father and his children were denied
due process when the children were removed from the
father’s custody based on an ex parte order. We said that
“[w]hen a child’s safety is threatened, that is justifica-
tion enough for action first and hearing afterward.” Id.
at 291. This seems to be an implicit appeal to exigent
circumstances, but the language is broad and arguably
reaches situations in addition to those in which a child
is in imminent danger.
We think it asks too much of reasonable child protec-
tion workers to expect them to conduct nuanced legal
analysis of the situations they face in the field. Nor do
we expect reasonable child protection workers to parse
the language of our case law along such fine lines as we
have just done. The conflicting language in our deci-
sions may have left them with uncertainty about the
procedural due process consequences of the situation
confronted in our case.
When read together, our cases such as Brokaw and Jensen,
imply that government officials may remove a child
from his home without a pre-deprivation hearing and
court order if the official has probable cause to believe
that the child is in imminent danger of abuse. Our sister
circuits are in accord with this view. See, e.g., Gomes v.
Wood, 451 F.3d 1122, 1129 (10th Cir. 2006) (collecting cases);
Kearney, 329 F.3d at 1295-96 (same). It does not suffice
for the official to have probable cause merely to believe
No. 10-1364 45
that the child was abused or neglected, or is in a general
danger of future abuse or neglect. The danger must
be imminent, or put another way, the circumstances
must be exigent.
At the time of Jaymz’s removal, our case law did not
put a reasonable DCFS investigator, supervisor, or man-
ager on notice that removing Jaymz without a pre-depriva-
tion hearing violated the plaintiffs’ clearly established
procedural due process rights. Jensen had indicated that
the removal was lawful as long as there was probable
cause to believe that Jaymz would be subject to the
danger of abuse if not removed, and a post-deprivation
hearing was held within two business days. We have
concluded that a reasonable DCFS worker could have
believed there was probable cause to remove Jaymz. No
hearing was held in this case, but the defendants did not
know at the time of removal that there would be no
hearing. And the parents ultimately signed a safety plan
before the end of the second day. (We address the pro-
cedural due process concerns that arise from the safety
plan below.) As we have stated, “the amount of process
due varies with the particular situation[.]” Brokaw, 235
F.3d at 1020. It is not insignificant that Jaymz was
taken into temporary protective custody and placed with
family members, and his parents were allowed some
minimal contact with him, all of which lessened the
intrusion on the family’s rights. Therefore, the de-
fendants are entitled to qualified immunity on the due
process claim arising from Jaymz’s initial removal. But
the process due with respect to the allegedly coerced
safety plan is another matter.
46 No. 10-1364
Due process “requires that government officials not
misrepresent the facts in order to obtain the removal of
a child from his parents.” Brokaw, 235 F.3d at 1020. This
conclusion applies equally in the context of obtaining
parental consent to a restrictive safety plan. Under
Dupuy, the state may not threaten to infringe parental
custody rights when the state has no legal right to
carry through on the threat. See Dupuy, 465 F.3d at 761-63.
If Foster misrepresented the facts and Crystelle’s and
Joshua’s legal rights in order to obtain their consent to
the safety plan, their agreement to the safety plan was
not voluntary and they were illegally coerced into
signing the plan. Hence, they would have been denied
due process. Id. at 761-62 (“[H]earings are required for
deprivations ordered over objection . . . .”). The plain-
tiffs have created a triable issue as to whether a rea-
sonable parent in their situation would have felt free
to refuse to sign the safety plan. Therefore, they have
enough evidence to raise a genuine issue as to whether
they were coerced into agreeing to the safety plan.
Arguing that Crystelle and Joshua had no constitutional
right to a pre-safety plan hearing and that Illinois law
provided sufficient post-safety plan procedural safe-
guards, the defendants cite Terry v. Richardson, which
held that a DCFS investigator’s failure to give a father
notice and a hearing before or immediately after she
told him not to visit his child during a child abuse in-
vestigation did not violate procedural due process. Terry,
346 F.3d at 786-87. The deprivation in Terry was
very minor, resulting in a one-day interference with a
No. 10-1364 47
noncustodial parent’s right to visit his child. Id. at 786.
As we know, “the amount of process due varies with
the particular situation.” Brokaw, 235 F.3d at 1020; see also
Terry, 346 F.3d at 786 (“Where the loss is small, due
process does not require elaborate procedures in ad-
vance.”). The deprivation in Terry was different in kind
from the deprivations Crystelle and Joshua allege—that
they couldn’t see Jaymz and had no custody rights
unless they signed the safety plan. Due process demands
greater protections for them. That they did not request
a hearing is no defense to their claims. See K.D. v. County
of Crow Wing, 434 F.3d 1051, 1056 n.6 (8th Cir. 2006) (“Once
a child is removed from parental custody without a
court order, the state bears the burden to initiate
prompt judicial proceedings to provide a post depriva-
tion hearing.”).
D. Personal Liability
Each defendant is sued in his or her individual capacity
with respect to each count of the complaint. “ ‘[T]o estab-
lish personal liability in a § 1983 action, the plain-
tiff must show that the government officer caused the
deprivation of a federal right.’ ” Brokaw, 235 F.3d at 1012
(quoting Luck v. Rovenstine, 168 F.3d 323, 327 (7th Cir.
1999)). “An official causes a constitutional violation if he
sets in motion a series of events that defendant knew or
reasonably should have known would cause others to
deprive plaintiff of constitutional rights.” Id.
Foster removed Jaymz from his home, took him
into protective custody, and obtained the parents’ agree-
48 No. 10-1364
ment to the safety plans. Foster-Stith and Ruppe autho-
rized Jaymz’s removal and approved taking him into
protective custody. They also directed Foster to obtain
the parents’ agreement to the first safety plan and ap-
proved that plan. Foster-Stith and Foster discussed up-
dating that plan; Foster-Stith later approved the
second plan. However, Ruppe’s involvement, if any, in
the second safety plan is unclear.
The defendants argue that the plaintiffs have presented
no evidence that anyone other than Foster was per-
sonally involved in the threats allegedly made in con-
nection with the safety plan. The plaintiffs offer no reply.
But this argument was not raised until this appeal. The
defendants’ failure to raise this argument before the
district court waives the argument on appeal. See Hojnacki
v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002). We
leave the determination of whether Foster-Stith or
Ruppe may be held liable on the safety plan coercion
claims to the district court upon further development
of the record.
III. Conclusion
For the foregoing reasons, the grant of summary judg-
ment is A FFIRMED with respect to the Fourth Amendment,
substantive due process, and procedural due process
claims premised on Jaymz’s initial removal, and V ACATED
with respect to the Fourth Amendment and substantive
due process claims premised on the continued with-
holding of Jaymz as well as the substantive due process
No. 10-1364 49
and procedural due process claims premised on the
safety plan. This case is R EMANDED to the district court
for proceedings consistent with this opinion.
8-26-11