Lelah Jerger v. Shannon Blaize

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-3011

LELAH JERGER, et al.,

Plaintiffs-Appellants,

v.

SHANNON BLAIZE, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Evansville Division.

No. 3:18-cv-00030 — Richard L. Young, Judge.

____________________

ARGUED JUNE 1, 2022 — DECIDED JULY 26, 2022

____________________

Before EASTERBROOK, WOOD, and SCUDDER, Circuit Judges.

SCUDDER, Circuit Judge. Before us is a messy set of facts

arising out of a child welfare investigation. The Indiana De-

partment of Child Services learned from a social worker that

Lelah and Jade Jerger may not have been providing their in-

fant daughter, J.J., medication prescribed to control epileptic

seizures. A blood draw, the DCS case workers knew, would

clarify whether that was so, and a series of urgent back-and-

forths with the Jergers resulted in their taking J.J. to the

2 No. 21-3011

hospital for the test. The results showed that J.J. had started

the prescription a few days earlier. But that was not the end

of it. Litigation ensued, with the Jergers alleging violations of

J.J.’s Fourth Amendment rights and their own Fourteenth

Amendment due process rights to make medical decisions for

their child. The district court decided that qualified immunity

protected the DCS case workers and entered summary judg-

ment in their favor. We vacate and remand, as the facts are too

murky and contested to allow us to reach any legal conclu-

sions with confidence.

I

A

Drawing on the summary judgment record, we set forth

the facts in the light most favorable to the Jergers. See Turner

v. City of Champaign, 979 F.3d 563, 565 (7th Cir. 2020). At just

15 months old, J.J. had experienced many seizures. After a

series of tests in early 2017, doctors at Riley Hospital in

Indianapolis diagnosed her with epilepsy. To help control the

seizures—at least one of which resulted in J.J. turning blue

and losing consciousness for about 15 seconds—doctors

prescribed Keppra, an anticonvulsant. Lelah and Jade,

however, worried about Keppra’s side effects. So they

delayed filling the prescription until they could get a second

opinion. In the meantime, they treated J.J.’s seizures with

CBD oil prescribed by a chiropractic neurologist.

Months later, the Jergers remained at a standstill over

whether J.J. should take Keppra. On September 20, 2017, a

concerned social worker at Riley Hospital, aware of the

Jergers’ decisions, called the Indiana Department of Child

Services to report medical neglect of J.J. by Lelah and Jade.

No. 21-3011 3

The social worker described not only how several doctors had

recommended Keppra to manage J.J.’s seizures, but also how

the Jergers refused to give their daughter the medication be-

cause of its potential side effects. The social worker expressed

concern that J.J. not taking the prescribed Keppra risked re-

curring seizures, long-term disability, and even death.

Allicyn Garrett was the DCS case worker assigned to learn

more about the situation. On September 21, the day after re-

ceiving the report of parental neglect, she visited the Jergers’

home to conduct a preliminary investigation. During that

visit, Lelah acknowledged her initial reservations with put-

ting J.J. on Keppra but also explained that only a few days

earlier, after receiving a second medical opinion, she and her

husband began giving their daughter the medication. But de-

spite hearing this account, and after speaking with her super-

visor Shannon Blaize, Garrett told the Jergers that they must

sign a form agreeing to take certain actions. The form was a

“Family Support/Community Services/Safety Plan,” which

required the Jergers, among other things, to agree to adminis-

ter the prescribed Keppra to J.J. and to take the child that same

day for a blood test to confirm the medication was in her sys-

tem.

The Jergers declined to sign the Safety Plan but did take

J.J. for the blood draw the next day, September 22. The results

confirmed that J.J. had started taking Keppra, and so DCS

dropped its investigation into Lelah and Jade. But what hap-

pened in between Garrett’s presentation of the Safety Plan

and the eventual blood test gave rise to this litigation and re-

mains the subject of serious debate.

From the Jergers’ perspective—the view we must credit at

this stage of the proceedings—Lelah and Jade submitted J.J.

4 No. 21-3011

to the blood draw only because of a threat leveled by Garrett.

From Lelah and Jade’s understanding, noncompliance with

the case workers’ demand would lead to J.J. becoming a

“Child in Need of Services” (or CHINS for short) and them

losing the right to make medical decisions on her behalf. This

threat, they thought, amounted to coercion and left them no

choice but to take J.J. for the blood draw.

In February 2018 the Jergers filed a complaint under 42

U.S.C. § 1983, alleging that Garrett and Blaize’s investigation

and demand for a blood test amounted to constitutional vio-

lations of both their rights as parents under the Fourteenth

Amendment’s Due Process Clause and J.J.’s own rights under

the Fourth Amendment.

Following discovery, each party moved for summary

judgment. In framing their respective positions, both sides

agreed that the Jergers’ claims—the Fourth Amendment

claim that Lelah and Jade brought on behalf of J.J. and their

own Fourteenth Amendment claim as J.J.’s parents—turned

on consent. If the Jergers agreed to submit J.J. to the blood

draw, the DCS case workers would prevail, but if the opposite

was true, and the decision was the product of coercion, then

the district court should enter judgment in Lelah and Jade’s

favor. Overlaying the resolution of the consent issue was

qualified immunity, to which Garrett and Blaize claimed they

were entitled because they reasonably believed the Jergers

agreed to the blood draw.

B

The district court entered summary judgment for the DCS

defendants on the basis of qualified immunity. On the district

court’s view of the facts, Garrett and Blaize did not violate any

No. 21-3011 5

constitutional rights in persuading the Jergers to take J.J. for

the blood draw. The reports from Riley Hospital supplied

Blaize and Garrett with reasonable suspicion of child neglect

and therefore the requisite “lawful authority [under the Indi-

ana law] to threaten filing a motion to compel and opening a

CHINS proceeding.” From there, the district court acknowl-

edged Garrett’s alleged statement to the Jergers that, unless

they promptly agreed to the blood draw, “J.J. would become

a Child in Need of Service[s].” But the court was quick to add

that Garrett also told the Jergers there would be a court hear-

ing at which they could present their own perspective. In the

end, the district court saw the DCS case workers’ degree of

influence as “close to the line” of coercion but not stepping

over it.

Regardless, even if the Jergers had demonstrated potential

constitutional violations, the district court determined that

Garrett and Blaize were entitled to qualified immunity. The

Jergers, the court explained, could not point to any case that

would have put the DCS case workers on notice that their con-

duct in procuring consent by threat was problematic when

evaluated in the totality of the difficult circumstances they

confronted. Instead, all the Jergers relied on were cases sup-

porting general propositions relating to the constitutionality

of searches in the child welfare context. Because that showing

did not suffice, the district court concluded that qualified im-

munity protected both defendants from having to defend

themselves at trial.

The Jergers now appeal.

6 No. 21-3011

II

To our eye, both the summary judgment briefs submitted

in the district court and now the competing arguments

pressed on appeal expose material disagreement on the issue

of consent—whether the Jergers chose of their own volition to

take J.J. for the blood draw or whether that decision was the

product of coercion. The disagreement played out in oral ar-

gument too, with both parties urging us to accept inferences

aligned with their perspective on that question.

As a court of review, however, our obligation is to take our

own independent look at the record and ask whether the facts,

when viewed in the light most favorable to the Jergers, permit

judgment for the DCS defendants. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). The same perspective on

the facts must guide our review of the award of qualified im-

munity at summary judgment. If the facts, as represented by

the Jergers, portray a clearly established constitutional viola-

tion, the district court’s decision cannot stand. See Taylor v.

City of Milford, 10 F.4th 800, 806, 812 (7th Cir. 2021) (reversing

qualified immunity when the plaintiff’s version of the facts, in

contrast to those alleged by the defendant, “ma[d]e out a dep-

rivation of a constitutional right”).

We have hard time aligning the district court’s conclusions

with these principles. A few illustrations prove our point.

Each of these examples comes from the summary judgment

record and we set them forth, as we must, as the Jergers pre-

sent them.

Example #1: Threat about CHINS Proceeding Outcome:

According to Lelah Jerger’s deposition testimony, during the

September 21 investigatory visit, when she asked what would

No. 21-3011 7

happen if her and her husband refused to sign the DCS Safety

Plan, Garrett responded by saying that DCS “would file a mo-

tion to compel and that J.J. would become a Child in Need of

Services.” In that same testimony, Lelah explained that she

understood this statement to mean DCS would be “able to

make medical decisions for J.J., instead of us, through the

court.”

Example #2: No Time to Hire a Lawyer: Both Lelah and

Jade testified that Garrett, after leaving their home the morn-

ing of September 21, called later in the day to say they had to

take J.J. for a blood draw that same night. By Lelah’s account,

the Jergers asked if they could speak with an attorney first,

but Garrett told them that there was no time to get legal coun-

sel: “You have to be at the hospital today.”

Example #3: Police Presence at the Hospital: Both Lelah

and Jade also testified that upon arriving at the hospital, they

were met by police officers. Lelah explained that she believed

the officers were there “to make sure [they] did” the test. For

his part, Jade testified that he felt the police officers were there

“for intimidation purposes.”

A reasonable jury, crediting the Jergers’ perspective on

these three matters, could find that the DCS case workers em-

ployed coercion to get Lelah and Jade to go through with the

blood draw on September 22. Foremost, Lelah could have

heard Garrett’s admonition that J.J. “would become a Child in

Need of Services” as a statement informing her and her hus-

band of a certain outcome—that the impending CHINS court

proceeding, with which they were unfamiliar, was sure to re-

sult in them losing their right to make medical decisions for

their daughter. Garrett said nothing else to convey a different

message; nor did the summary judgment record supply any

8 No. 21-3011

reason to believe the Jergers understood much at all about

CHINS proceedings or their rights. See Nicole K. ex rel. Linda

R. v. Stigdon, 990 F.3d 534, 536–37 (7th Cir. 2021) (describing

in detail the complexity of CHINS proceedings); see also Ash-

ley W. v. Holcomb, 34 F.4th 588, 590–91, 593 (7th Cir. 2022) (ac-

knowledging the wide “scope and complexity of CHINS pro-

ceedings”).

On that understanding, the Jergers could have concluded

that they had no real choice but to take J.J. for the blood draw.

Lelah and Jade’s testimony that they had no time to seek legal

advice to better understand their rights and DCS’s authority

only adds to that conclusion, as does their perspective on why

the police were present at the hospital upon their arrival with

J.J.

Taking these facts together, the Jergers paint a picture of

coercion, not “freely and voluntarily given” consent. United

States v. Ahmad, 21 F.4th 475, 478 (7th Cir. 2021) (quoting

United States v. Duran, 957 F.2d 499, 502 (7th Cir. 1992)). And

lacking consent, a search or seizure pursuant to a child wel-

fare investigation is reasonable under the Fourth Amendment

only if supported by a court order, probable cause, or exigent

circumstances. See Brokaw v. Mercer County, 235 F.3d 1000,

1010 (7th Cir. 2000); but see Sebesta v. Davis, 878 F.3d 226, 233

(7th Cir. 2017) (explaining that reasonable suspicion, and not

probable cause, is the standard for evaluating the constitu-

tionality of child welfare investigations impinging on the

right to familial integrity under the Fourteenth Amendment

Due Process Clause).

Remember, too, that the only issue on appeal is consent.

Indeed, at oral argument, the defendants conceded that they

offer no other justification for the search—neither a warrant,

No. 21-3011 9

nor probable cause, nor exigent circumstances (with the latter

concession surprising us). Thus, without the consent Blaize

and Garrett rely on, and no other proffered justification for the

search, the Jergers have done enough to create a jury question

on whether the DCS defendants violated their and J.J.’s con-

stitutional rights.

Our law, too, is clear that some threats used to obtain com-

pliance with a child welfare investigation violate clearly es-

tablished constitutional rights. See, e.g., Hernandez ex rel. Her-

nandez v. Foster, 657 F.3d 463, 482 (7th Cir. 2011) (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”); Dupuy v. Samuels, 465 F.3d 757, 763 (7th Cir. 2006) (put-

ting case workers on notice that threatening to take an action

without having legal authority to take that action violates con-

stitutional rights); Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003)

(finding unconstitutional case workers’ threats to remove

children from their parents’ custody because the case workers

lacked lawful authority to do so). Of course, “specificity is im-

portant” in defining clearly established law, but there need

not be “a case presenting the exact same facts” for defendants

to be on notice that their behavior violates constitutional

rights. Taylor, 10 F.4th at 807.

The facts before us are so disputed as to limit what we can

do on appeal. All we can say for sure is that a jury—accepting

Lelah and Jade’s version of events—could conclude that Gar-

rett and Blaize acted in violation of the Jergers’ clearly estab-

lished rights. A reasonable case worker would have known

that threatening expedited CHINS proceedings with a prede-

termined outcome—one that terminated Lelah and Jade’s

10 No. 21-3011

rights to make medical decisions for J.J.—and leaving no time

for the Jergers to seek legal advice went too far in procuring

the blood test.

Of course, the defendants disagree—and strongly so—

with the Jergers’ portrayal of the facts. But that is precisely our

point. Summary judgment is not available in the face of this

factual tug-of-war. Nor is qualified immunity where the par-

ties dispute facts material to the consent question. Everything

depends on whose version of the facts to credit, whose ac-

count is most credible, and whose perspective aligns best with

the totality of the difficult circumstances all parties found

themselves in as the underlying events played out over those

couple of days in September 2017. See Payne v. Pauley, 337 F.3d

767, 770 (7th Cir. 2003); see also Taylor, 10 F.4th at 809, 810–11

(7th Cir. 2021). In the final analysis, “it is for a jury, and not

for us, to weigh all the evidence and choose between compet-

ing inferences.” Abdullahi v. City of Madison, 423 F.3d 763, 770

(7th Cir. 2005).

To be sure, “[t]his is not the final word on qualified im-

munity for this case.” Smith v. Finkley, 10 F.4th 725, 749 (7th

Cir. 2021). The mess of facts concerning the Jergers’ consent

only “precludes a ruling on qualified immunity at this point.”

Id. at 750 (quoting Strand v. Minchuk, 910 F.3d 909, 918–19 (7th

Cir. 2018)) (emphasis added). The jury’s ultimate resolution

of the facts may allow the district court to grant qualified im-

munity to the DCS case workers at trial. See id. (collecting

cases); see also Ferguson v. McDonough, 13 F.4th 574, 584 (7th

Cir. 2021) (explaining that though factual issues made quali-

fied immunity at the summary judgment stage improper, “a

jury may resolve disputed facts in [the defendant’s] favor, and

No. 21-3011 11

the district court could then determine he is entitled to quali-

fied immunity as a matter of law”).

Until then, however, the record before us leaves no choice

but to vacate the entry of summary judgment for the defend-

ants.

III

This appeal presents a clear example of the important and

delicate circumstances child welfare case workers face every

day. Indeed, the law recognizes the “compelling governmen-

tal interest in the protection of children particularly where the

children need to be protected from their own parents.”

Brokaw, 235 F.3d at 1019 (quoting Croft v. Westmoreland County

Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997)).

Acting on that interest often requires balancing weighty and

sometimes competing considerations—of children, parents,

and the state—and making decisions on less-than-perfect in-

formation without the benefit of much time to deliberate.

Beyond our conclusion about the disputed facts at the cen-

ter of the issue presented on appeal, we cannot avoid a closing

observation. Having spent substantial time with the summary

judgment record, it seems that much of the disagreement be-

tween the parties—their sharply different perspectives on

what led the Jergers to take J.J. for the blood draw—might

have been avoided by the DCS case workers taking steps to

better inform the Jergers about the legal proceedings the state

intended to commence and what rights the Jergers would

have before and during those proceedings. For example, Gar-

rett might have explained to Lelah and Jade the purpose of a

CHINS proceeding and the relief DCS intended to request.

She could have also described how, even in the case of an

12 No. 21-3011

expedited proceeding, the Jergers could seek legal advice and

take an attorney with them to the CHINS hearing. Finally, the

DCS defendants might have done well to clarify that all deci-

sions would be made by an impartial judge and that the

Jergers would not lose any parental rights until the judge

evaluated the evidence and arguments presented by both par-

ties. And so too could a step be taken, whether in writing or

through an audio recording, to memorialize the information

conveyed to the Jergers and their responses.

In no way are we suggesting that the case workers shoul-

dered any affirmative obligation to advise the Jergers. But tap-

ping the brake pedal long enough to convey objective and ac-

curate information to the Jergers about DCS’s intentions and

their rights in any impending CHINS proceedings may have

kept this difficult situation from ever getting to a courthouse.

Of course, DCS is much better positioned than a federal court

to discern whether and how best to implement that observa-

tion in practice.

With these parting observations, we VACATE the district

court’s entry of summary judgment for the defendants and

REMAND for trial.