John Doe, Jane Doe v. Kathleen A. Kearney

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 02-13874 MAY 08, 2003

________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 00-00184-CV-8-T-26TG

JOHN DOE, JANE DOE, individually

and on behalf of their minor children,D.M.,

N.O., and B.O., and on behalf of a class of

similarly situated persons in the State of Florida,

Plaintiffs-Appellants,

versus

KATHLEEN A. KEARNEY, Secretary

of Florida Department of Children

and Family Services, DON DIXON, District

Administrator for District 6 of Florida

Department of Children and Family Services,

in their official capacities, DEBORAH O’BRIEN,

in her personal capacity,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 8, 2003)

Before DUBINA and BLACK, Circuit Judges, and RYSKAMP*, District Judge.

BLACK, Circuit Judge:

Appellants John Doe and Jane Doe,1 individually and on behalf of their

three minor children, D.M., N.O., and B.O, appeal the district court’s dismissal of

their action against Appellee Deborah O’Brien.2 Their claims arise out of an

incident in which O’Brien, an authorized agent of the Florida Department of

Children and Family Services (DCF), effected an “emergency” removal of

Appellants’ children without Appellants’ permission and without a court order.

Appellants brought this action seeking a declaration that Fla. Stat. § 39.401(1),

which purportedly authorized the removal of the children, is unconstitutional both

facially and as applied to them. They also asserted a 42 U.S.C. § 1983 claim for

money damages against O’Brien in her individual capacity, alleging that she

violated their constitutional rights by taking their children without judicial

authorization and in the absence of a true emergency. For the reasons explained

*

Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District of

Florida, sitting by designation.

1

Appellants are referred to herein pseudonymously.

2

Appellants filed this action as a class action, but the district court denied class

certification and struck all class action allegations. The district court also dismissed claims for

damages against state officials in their official capacities on the basis of Eleventh Amendment

immunity. These rulings have not been appealed.

2

herein, we conclude § 39.401(1) is not unconstitutional, and Appellants have not

demonstrated a violation of their constitutional rights. Furthermore, in the absence

of any constitutional violation, Appellants cannot prevail on their § 1983 claim

against O’Brien. Therefore, we affirm.

I.

On January 18, 2000, DCF officials in St. Augustine, Florida, were

informed that T.O., John Doe’s nine-year-old niece, had recently reported being

abused by John Doe approximately four years earlier, when T.O. was five. T.O.,

who is deaf, reportedly accused John Doe of making her touch his penis and

perform oral sex. DCF officials in St. Augustine investigated the report and

discovered that John Doe was residing in Hillsborough County, Florida, with his

wife, Jane Doe, and their three minor children, D.M. (age 13), N.O. (age 9), and

B.O. (age 6).3 On January 21, 2000, the St. Augustine office forwarded the report

to DCF’s Hillsborough County office, where the case was assigned to O’Brien at

approximately 12:30 P.M.

Soon after receiving the report, O’Brien commenced an investigation and

discovered that John Doe had previously been investigated by DCF in 1995. In

3

D.M. is Jane Doe’s daughter from a previous marriage. N.O. and B.O. are Appellants’

children from their marriage.

3

the 1995 case, John Doe had been accused of placing his penis in the rectum of a

three-year old boy whom Jane Doe was babysitting. According to O’Brien, DCF

believed the allegation to be true but had not pressed charges due to lack of

cooperation from the victim. 4

O’Brien also discovered during her investigation that John Doe had a

criminal record involving crimes of a sexual nature.5 According to a report she

received from the Florida Department of Law Enforcement (FDLE), John Doe was

convicted in 1989 of two counts of lewd and lascivious behavior stemming from

an incident in which he exposed and fondled himself in front of children at a

school bus stop.6 The report also indicated that John Doe had previously been

charged with solicitation of prostitution and had been accused of, but not charged

with, rape.

At approximately 2:10 P.M., O’Brien met with her supervisor, Wanda Rios.

Rios recommended sheltering all three of Appellants’ children, but advised

4

Appellants contend there is no evidence such a determination was ever made.

5

John Doe was also previously convicted of four counts of burglary, for which he served

approximately nine years in prison.

6

O’Brien appears to have mistakenly read the FDLE report as reflecting a conviction for

“child fondling.” In actuality, John Doe was convicted of lewd and lascivious behavior for

fondling himself in front of children. It appears from the police report that John Doe was

masturbating in his vehicle in close proximity to two young girls standing at a school bus stop.

He claimed he was unaware that the girls were nearby.

4

O’Brien to first contact DCF’s legal department. Following Rios’

recommendation, O’Brien consulted with DCF legal counsel at approximately

2:45 P.M., and was advised to take the children into custody.

At approximately 3:30 P.M., O’Brien proceeded to D.M.’s school. She

interviewed the child and explained that she was going to talk to D.M.’s parents

and siblings and “make sure everybody was okay.” O’Brien then arranged for

D.M. to be taken into custody, and attempted to summon a deputy sheriff to

accompany her to Appellants’ residence. For reasons unexplained, however, the

deputy never arrived and, after waiting approximately one hour, O’Brien

proceeded to Appellants’ residence alone. She arrived there at approximately 5:20

P.M. and, after explaining that she was there to investigate a report of child abuse,

was invited inside by Appellants. O’Brien then proceeded to interview John Doe,

Jane Doe, N.O, and B.O.

At approximately 6:00 P.M., after she had interviewed each member of the

Doe family, O’Brien concluded the children were in danger of abuse from John

Doe. She also concluded that Jane Doe was incapable of protecting the children

and that the children would need to be temporarily removed for their safety. 7 The

7

O’Brien testified she arrived at this conclusion only after interviewing the Does and in

light of the evidence she had gathered up to that point, including T.O.’s allegation of abuse, the

1995 DCF report of abuse, and John Doe’s criminal past. O’Brien’s conclusion that Jane Doe

5

children were subsequently taken to their maternal grandparents’ home, where

they remained for the night. The following morning, a state judge concluded there

was a lack of probable cause to keep the children apart from their parents, and

ordered that all three children be immediately returned to Appellants. Appellants

subsequently commenced this action.

II.

A.

Section 39.401(1) governs the state’s emergency removal of children who are

believed to be in danger of child abuse. It provides in pertinent part:

(1) A child may only be taken into custody:

...

(b) By a law enforcement officer, or an authorized agent of the

[DCF], if the officer or authorized agent has probable cause to support

a finding:

1. That the child has been abused, neglected, or abandoned, or is

suffering from or is in imminent danger of illness or injury as a result of

abuse, neglect, or abandonment[.]

could not adequately protect the children may have been influenced by the 1995 report of abuse

indicating that John Doe had abused a three-year old boy whom Jane Doe was babysitting.

O’Brien also testified that she was concerned by Appellants’ refusal to make any statements

concerning allegations of child abuse, and that she found Jane Doe to be “very protective of her

husband.”

6

Fla. Stat. § 39.401(1).8

Consistent with § 39.401(1), DCF’s policy is to remove a child from a

parent or legal guardian without prior judicial authorization when there is probable

cause to believe the child has been abused or is in imminent danger of abuse.

Appellants maintain that DCF routinely removes children believed to be in danger

of abuse without first attempting to determine whether there is time to obtain a

court order before effecting the removal without exacerbating the risk to the child.

O’Brien acknowledges that she did not attempt to determine whether there was

time to obtain a court order before she removed the Doe children from their

parents.

B.

Appellants asserted in their complaint that § 39.401(1) violates the Due

Process Clause of the Fourteenth Amendment and violates the Fourth Amendment

(as made applicable to the states through the Fourteenth) by authorizing the

warrantless removal of their children. They also asserted that O’Brien violated

their constitutional rights when she took their children into custody without prior

judicial authorization.

8

In the event the state determines a child needs to be sheltered, a hearing must be held no

more than 24 hours after the removal. Fla. Stat. § 39.401(3).

7

On January 22, 2001, Appellants filed a motion for partial summary

judgment seeking: (1) a declaration that § 39.401(1) is unconstitutional; (2) a

determination that O’Brien violated their Fourteenth and Fourth Amendment

rights; and (3) a determination that O’Brien was not entitled to qualified immunity.

On April 9, 2001, the district court issued an order denying Appellants’ motion for

partial summary judgment. In its order, the court concluded § 39.401(1) comports

with due process requirements and comports with the Fourth Amendment.9 As to

the § 1983 claim against O’Brien, the court concluded the central issue was

whether there were emergency circumstances warranting her removal of the

children without prior judicial approval, and that genuine issues of material fact

existed as to that issue. On June 19, 2001, the case proceeded to trial on the

§ 1983 claim against O’Brien. At the conclusion of Appellants’ case in chief, the

district court granted O’Brien’s motion for judgment as a matter of law on the

basis of qualified immunity.

9

Appellants appealed the district court’s April 9, 2001, order denying their motion for

partial summary judgment. On April 4, 2002, this Court dismissed the appeal for lack of

jurisdiction because the district court had not actually resolved the claims for injunctive relief.

See 28 U.S.C. § 1291. Subsequently, on June 26, 2002, the district court entered an amended

order concluding § 39.401(1) is facially constitutional and that O’Brien did not apply the statute

in an unconstitutional manner when she removed the Doe children. Appellants then commenced

the instant appeal.

8

Appellants challenge the district court’s dismissal of their constitutional

claims and the court’s judgment as a matter of law in favor of O’Brien on the issue

of qualified immunity.

III.

Before turning to the substantive issues raised on appeal, we first consider

whether Appellants have standing to challenge § 39.401(1). The district court

determined Appellants had standing to sue, notwithstanding the fact that their

children had been returned to them prior to the commencement of this lawsuit.

We review that determination de novo. See Maiz v. Virani, 253 F.3d 641, 654

(11th Cir. 2001).

Article III standing requirements preclude claims in which the plaintiff has

failed to make out a case or controversy between himself and the defendant.

Lynch v. Baxley, 744 F.2d 1452, 1455-56 (11th Cir. 1984). A plaintiff will

generally have standing where three criteria are met: (1) the plaintiff has

experienced injury in fact; (2) the injury is fairly traceable to the defendant’s

conduct; and (3) the plaintiff’s harm is likely to be redressed should the court

order relief. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct.

2130, 2136 (1992). Appellants’ claims in this case easily satisfy the first two

criteria. Parents have a fundamental right to the custody of their children, and the

9

deprivation of that right effects a cognizable injury. See Santosky v. Kramer, 455

U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982). Furthermore, the injury in this

case is clearly traceable to Florida’s enactment and enforcement of § 39.401(1).

The third criterion—redressability—presents a greater hurdle for

Appellants. The alleged injury—Florida’s temporary removal of their

children—has already occurred and will not necessarily occur again. See Los

Angeles v. Lyons, 461 U.S. 95, 105-06, 103 S. Ct. 1660, 1667 (1983) (no

redressability in the absence of “a real and immediate threat” that challenged state

action will re-occur). Nevertheless, the redressability requirement will usually be

satisfied where there is evidence that the plaintiff is likely to encounter the same

injurious conduct in the future. See City of Houston v. Hill, 482 U.S. 451, 459 n.7,

107 S. Ct. 2502, 2508 n.7 (1987); see also Lynch, 744 F.2d at 1456-57

(recognizing that “[p]ast wrongs do constitute evidence bearing on whether there

is a real and immediate threat of repeated injury which could be averted by the

issuing of an injunction”).

Though a close issue, we conclude the redressability requirement is satisfied

in this case. DCF has classified John Doe as fitting a “pattern of sexual offenders”

and has now investigated him on two separate occasions. Given this classification

and history, it seems reasonably likely that Appellants could encounter future state

10

action under § 39.401(1). Moreover, the Supreme Court has recognized an

exception to the basic standing requirement in cases where a plaintiff’s claims are

“capable of repetition, yet evading review.” Gerstein v. Pugh, 420 U.S. 103, 110

n.11, 95 S. Ct. 854, 861 n.11 (1975); see also Lynch, 744 F.2d at 1457. Pretrial

detention falls into this category because it is “by nature temporary, and it is most

unlikely that any given individual could have his constitutional claim decided on

appeal before he is either released or convicted.” Gerstein, 420 U.S. at 110 n.11,

95 S. Ct. at 861 n.11. The removal of Appellants’ children—though not a criminal

detention as in Gerstein—is nevertheless a form of pretrial detention that will

typically have ended by the time a legal challenge can be mounted. See Fla. Stat.

§ 39.401(3) (requiring a hearing within 24 hours of state’s removal of children).

Consequently, any constitutional injury will likely be too fleeting to be redressed

and hence qualifies as being capable of repetition yet evading review.

We therefore conclude Appellants have standing to challenge § 39.401(1),

and we turn our attention to the merits of that challenge.

IV.

Appellants maintain that § 39.401(1), both facially and as applied, violates

their right to due process under the Fourteenth Amendment and their Fourth

Amendment right to be free from unlawful search and seizure. The

11

constitutionality of a statute is a question of law subject to de novo review. Ranch

House, Inc. v. Amerson, 238 F.3d 1273, 1277 (11th Cir. 2001).

A.

The Supreme Court has held that parents have a constitutionally protected

liberty interest in the care, custody and management of their children. See

Santosky, 102 S. Ct. at 1397. “As a general rule, therefore, before parents may be

deprived of the care, custody or management of their children without their

consent, due process—ordinarily a court proceeding resulting in an order

permitting removal—must be accorded to them.” Tenenbaum v. Williams, 193

F.3d 581, 593 (2d Cir. 1999) (citing Stanley v. Illinois, 405 U.S. 645, 649, 92 S.

Ct. 1208, 1212 (1972)). “At the same time, however, the State has a profound

interest in the welfare of the child, particularly his or her being sheltered from

abuse.” Id. at 593-94. Consequently, courts have recognized that a state may

constitutionally remove children threatened with imminent harm when it is

justified by emergency circumstances. See, e.g., Mabe v. San Bernardino County,

Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001); Brokaw v. Mercer

County, 235 F.3d 1000, 1020 (7th Cir. 2000); Tenenbaum, 193 F.3d at 593-94;

Hollingsworth v. Hill, 110 F.3d 733, 739 (10th Cir. 1997); Jordan by Jordan v.

Jackson, 15 F.3d 333, 346 (4th Cir. 1994); cf. United States v. Edmondson, 791

12

F.2d 1512, 1514 (11th Cir. 1986) (allowing warrantless search and seizure in

criminal cases where exigent circumstances exist). By limiting warrantless

removals to true emergencies, the law “seeks to strike a balance among the rights

and interests of parents, children, and the State.” Tenenbaum, 193 F.3d at 594.

1.

Appellants first contend that § 39.401(1) is facially unconstitutional. In

order to prevail on their facial challenge, Appellants must establish that there is no

set of circumstances under which § 39.401(1) may be constitutionally applied.

Williams v. Pryor, 240 F.3d 944, 953 (11th Cir. 2001). “This ‘heavy burden’

makes such an attack ‘the most difficult challenge to mount successfully’ against

an enactment.” Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1329 (11th

Cir. 2001) (citation omitted).

Section 39.401(1) authorizes state officials to remove a child without a prior

court order only where there is probable cause to believe the child has been

abused, neglected, or abandoned, or if there is probable cause to believe the child

is in imminent danger of abuse. Appellants complain that DCF routinely removes

children on an ostensibly emergency basis without a warrant and without first

considering the feasibility of obtaining judicial authorization. In other words, they

accuse DCF of treating almost all cases of suspected abuse as emergencies. The

13

effect of this practice, according to Appellants, is the de facto elimination of the

warrant requirement in derogation of due process.

The problem with this argument—as far as Appellants’ facial challenge is

concerned—is that it is aimed at DCF’s application of § 39.401(1).

Section 39.401(1) authorizes the state’s warrantless removal of children in cases

where the child is believed to be in imminent danger of abuse. Although

Appellants contend that DCF has artificially inflated the meaning of “imminent

danger,” the face of the statute is silent as to what circumstances may reasonably

be considered to constitute “imminent danger.” As Appellants have themselves

acknowledged, it is possible to apply § 39.401(1) in a manner that does not offend

due process. By definition, then, § 39.401(1) is not facially unconstitutional.

2.

a.

Appellants’ as-applied challenge—like their facial challenge—hinges on

their argument that O’Brien’s warrantless removal of their children was not

actually supported by emergency circumstances and therefore violated due

process. The issue boils down to how we define an emergency.10 Appellants

10

The term “emergency” as used in this context is synonymous with “exigency” and

“imminent danger.” We have found that courts use them interchangeably. See, e.g., Mabe, 237

F.3d at 1106 (“Government officials are required to obtain prior judicial authorization before

14

assert an emergency must be defined by reference to the feasability of obtaining a

court order before effecting a removal. Stated differently, they argue that if there

is time to obtain a court order without exacerbating the risk to the child, then there

can never be an emergency and the state must obtain a court order no matter how

emergent the child’s circumstances otherwise appear. They would have us craft a

rule that reads something like this: Due process requires that a state official

obtain a court order prior to removing a suspected victim of child abuse from

parental custody, unless: (1) the official has probable cause to believe the child is

in imminent danger of abuse; and (2) the official reasonably determines that there

is insufficient time to obtain judicial permission before temporarily removing the

child.

We are not persuaded that due process demands such an inflexible rule.

Aside from our concerns about imposing a new and onerous burden on child

welfare agencies, many of which already operate under considerable strain, we do

not believe that the single focus of a due process analysis ought to be on the

intruding on a parent’s custody of her child unless they possess . . . reasonable cause to believe

that the child is in imminent danger . . . .”) (quotation omitted); Brokaw, 235 F.3d at 1020

(stating that due process requires “that government 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”); Tenenbaum, 193 F.3d at 594 (“In emergency circumstances a

child may be taken into custody by a responsible State official without court authorization or

parental consent.”) (quotation omitted).

15

court’s schedule. Due process is a flexible concept, and “what procedures due

process may require under any given set of circumstances must begin with a

determination of the precise nature of the government function involved as well as

of the private interest that has been affected by governmental action.” Stanley,

405 U.S. at 650-51, 92 S. Ct. at 1212 (quotation omitted). In order to properly

define the interests at stake and weigh their relative importance, courts should be

allowed to consider all relevant circumstances, including the state’s

reasonableness11 in responding to a perceived danger as well as the objective

nature, likelihood, and immediacy of danger to the child. Having considered all

relevant factors, courts may then decide whether an objectively imminent danger

justified the state’s removal of a child without prior judicial authorization.

None of the cases cited by Appellants—with one exception which we will

address— supports the proposition that a child welfare worker must specifically

determine whether there is time to obtain a court order before conducting an

emergency removal. To the contrary, these cases simply recognize—as we do—

that a state may not remove a child from parental custody without judicial

11

We recognize that it is important for courts to scrutinize officials’ conduct as well as the

objective danger to the child. Otherwise, child welfare workers could conceivably manufacture

an emergency by unreasonably failing to act until it became necessary to remove a child from

parental custody without prior court authorization. But officials’ conduct is only one of several

relevant factors that may be considered.

16

authorization unless there is probable cause to believe the child is threatened with

imminent harm. See, e.g., Roska v. Peterson, 304 F.3d 982, 993 (10th Cir. 2002)

(recognizing that while “the mere possibility of danger” does not justify a

warrantless removal, “emergency circumstances which pose an immediate threat to

the safety of a child” do); Brokaw, 235 F.3d at 1020 (observing that due process

requires “that governmental 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”); Wallis v. Spencer, 202 F.3d 1126, 1138

(9th Cir. 2000) (“Officials may remove a child from the custody of its parent

without prior judicial authorization only if the information they possess at the time

of the seizure is such as provides reasonable cause to believe that the child is in

imminent danger of serious bodily injury and that the scope of the intrusion is

reasonably necessary to avert that specific injury.”); Hollingsworth, 110 F.3d at

739 (“Removal of children from the custody of their parents requires pre-

deprivation notice and a hearing ‘except for extraordinary situations where some

valid governmental interest is at stake that justifies postponing the hearing until

after the event.’”) (citation omitted); Weller v. Dep’t of Soc. Servs. for City of

Baltimore, 901 F.2d 387, 393 (4th Cir. 1990) (“Due process does not mandate a

prior hearing in cases where emergency action may be needed to protect a child.”).

17

Contrary to Appellants’ position, none of these cases held that imminent danger

must be defined by reference to a court’s schedule.

Only the Second Circuit seems to have taken a position fully consistent with

Appellants’ argument. In Tenenbaum v. Williams, a two-to-one panel decision, the

court held a social worker could not temporarily remove a child from her parents’

custody without prior judicial authorization unless there was probable cause to

believe the child was in imminent danger of abuse and the social worker

reasonably determined there was insufficient time to obtain a court order before

removing the child from danger. 193 F.3d at 596.

In Tenenbaum, an employee of the New York City Child Welfare

Administration (CWA) removed five-year-old Sarah Tenenbaum from school

several days after Sarah’s teacher first reported noticing signs of abuse. CWA

officials, without consulting legal counsel, took Sarah into custody for the express

purpose of physically examining her to rule out the possibility of abuse. Id. at

590. After an examination uncovered no signs of abuse and Sarah was returned

home, her parents brought suit against the City and the individual CWA

employees responsible for Sarah’s removal. Id. at 591. Their suit alleged a

number of constitutional violations, including a violation of their procedural due

process rights based on the removal of their daughter without prior court

18

authorization. Id. at 592. The district court granted summary judgment for the

defendants on the procedural due process claim, finding Sarah’s removal was

justified by emergency circumstances. Id.

On appeal, the Second Circuit held the district court erred in failing to

specifically consider whether CWA workers had enough time obtain a court order

before they removed Sarah. Id. at 594-95. The court reasoned:

If the danger to the child is not so imminent that there is reasonably

sufficient time to seek prior judicial authorization, ex parte or otherwise,

for the child’s removal, then the circumstances are not emergent; there

is no reason to excuse the absence of the judiciary’s participation in

depriving the parents of the care, custody and management of their

child. If, irrespective of whether there is time to obtain a court order, all

interventions are effected on an “emergency” basis without judicial

process, pre-seizure procedural due process for the parents and their

child evaporates.

Id. at 594-95 (footnote omitted).

Consequently, the court held that “it is unconstitutional for state officials to

effect a child’s removal on an ‘emergency’ basis where there is reasonable time

safely to obtain judicial authorization consistent with the child’s safety.” Id. at

596.

Applying this standard to the facts of Tenenbaum, the Second Circuit

observed that CWA employees routinely failed to consider whether there was time

to obtain court authorization before taking children—and did not do so in Sarah’s

19

case. Id. at 591, 595. Thus, the court concluded the plaintiffs could demonstrate a

violation of their procedural due process rights.12 Id. at 595.

The dissenting member of the panel in Tenenbaum argued that the

unintended consequence of the majority’s rule would be to force child welfare

workers to always obtain a warrant, tipping the constitutional balance away from

the state’s paramount interest in protecting children. He explained:

Every time a child welfare worker has reason to suspect child abuse, she

will have to consider (i) whether there is reason to believe the child is

in imminent danger (which until now has been all that was required) and

(ii) whether there is time to get to court and obtain a court order (the

majority’s new requirement) as well as (iii) whether a court or jury will

second-guess that decision on the basis that more efficient decision-

making would have afforded sufficient time to obtain the court order.

In terms of litigation, individual liability and damages, an error on the

side of removal is risky, while an error on the other side is safe.

Id. at 611 (Jacobs, J., dissenting).

The dissent also criticized Tenenbaum as representing a dramatic departure

from previous Second Circuit precedent:

The majority opinion announces a new and incompatible

principle: that there is no such emergency, notwithstanding the

exigency, if there is or may be time to obtain a court order. None of our

cases has held that the availability of the emergency-removal exception

depends on whether there is time to obtain judicial pre-authorization.

12

Despite finding evidence of a constitutional violation in Tenenbaum, the Second Circuit

upheld the dismissal of the claims against the individual defendants based on qualified immunity.

Tenenbaum, 193 F.3d at 596.

20

Each of our prior cases requires only that an emergency exist, a fact

that is determined by reference to the child’s peril, not the case worker’s

schedule or the court’s calendar. This is a sensible formulation, and

one that keeps the child welfare worker focused on what matters first in

these cases, the child’s precarious welfare. When a child’s safety is

threatened, that is justification enough for action first and hearing

afterward.

Id. at 608 (Jacobs, J., dissenting) (quotation omitted) (emphasis added).

We agree that the sole focus should not be whether there is time to obtain a

court order. The Second Circuit’s holding in Tenenbaum, which seems “so

measured and reasonable in the pages of a federal appellate opinion, will work

serious harm in an exceptionally sensitive area of state responsibility.” Id. at 610

(Jacobs, J., dissenting).13 As we have previously alluded to, due process is a

flexible concept—particularly where the well-being of children is concerned—and

deciding what process is due in any given case requires a careful balancing of the

interests at stake, including the interests of parents, children, and the state. Those

13

We also note some important factual distinctions between Tenenbaum and the instant

case. In Tenenbaum, child welfare workers admitted their motivation in removing Sarah was to

examine the child in order to rule out the possibility of abuse, rather than to protect her from any

imminent danger of abuse. 193 F.3d at 590. Moreover, there was an unexplained day-long delay

between the decision to remove Sarah from school and her actual removal. Id. Finally, child

welfare workers did not seek legal advice despite the availability of CWA lawyers. Id. Thus,

while we disagree with the Second Circuit in terms of how emergency circumstances should be

defined, we agree with that court’s conclusion that the circumstances in Tenenbaum did not

demonstrate an emergency sufficient to obviate the need for a warrant. In contrast, the record in

this case shows that O’Brien removed the Doe children in order to protect them from what she

believed to be imminent danger of abuse, consulted with legal counsel, and acted swiftly once the

decision was made to remove the children.

21

interests may be implicated to varying degrees depending on the facts of an

individual case, which will necessarily affect the degree of procedural due process

required. This kind of subtle balancing cannot be properly accomplished when

courts blunt the inquiry by simply asking whether there was time to get a warrant.

The only other case we are aware of that even arguably supports tying the

definition of emergency to a court’s calendar is the Ninth Circuit’s opinion in

Mabe. In Mabe, the court upheld a due process challenge to county officials’

warrantless removal of the plaintiff’s daughter. 237 F.3d at 1109. The court

observed, “Assuming that [a county social worker] could obtain a warrant the

same day as the case review committee recommended that MD be removed, it is

difficult to understand how the further delay of a few hours necessary to obtain the

warrant would have put MD in imminent danger of serious physical injury.” Id. at

1108 (footnote omitted). But Mabe did not indicate that county social workers

had to ascertain specifically whether there was time to get a warrant prior to

removing the child from imminent danger. Id. Instead, the court considered

several factors before concluding the removal in that case violated due process.

These included the county’s unexplained month-long delay in removing the child

once it became aware of the danger, its awareness that there had been no abuse for

at least a month, and the likelihood that the suspected abuse did not involve

22

violence or penetration. Id. Thus, Mabe, like the majority of other cases that have

considered the issue, actually examined all relevant circumstances before

concluding due process in that case demanded a pre-deprivation hearing.

b.

In light of the relevant circumstances in this case, we conclude there is no

question but that there was an objectively imminent danger to the Doe children so

as to justify O’Brien’s temporary removal of the children without prior court

authorization. O’Brien received two documented reports of severe sexual abuse

involving John Doe, one of which involved a disabled family member and both of

which involved extremely young children. She also received a report from the

FDLE documenting John Doe’s criminal past, including a conviction for lewd and

lascivious behavior around children.14

Furthermore, the record demonstrates that O’Brien responded reasonably

and swiftly as soon as she became aware of the possible danger to the Doe

children. This is not a case where a social worker manufactured an emergency in

order to circumvent judicial participation. Cf. Mabe, 237 F.3d at 1105, 1109

14

Although O’Brien may have misconstrued parts of the

FDLE report—including her apparently erroneous conclusion that John Doe had been convicted

of “child fondling”—it was not unreasonable for her to infer that John Doe had some dangerous

proclivities based on his undisputed criminal record.

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(failure to obtain court order could not be excused by emergency circumstances

where over one month elapsed between the report of child abuse and social

worker’s eventual removal of the child). Here, O’Brien investigated diligently and

acted almost immediately after the relevant facts came to her attention. At the

same time, she did not rush to judgment or react impulsively. Rather, she

consulted with both her supervisor and DCF legal counsel before taking steps

toward removing the Doe children. See Holllingsworth, 110 F.3d at 741

(suggesting that an emergency removal is more likely to be objectively reasonable

where defendant relied on advice of counsel); cf. Tenenbaum, 193 F.3d at 591

(noting defendant’s failure to consult with “readily available” legal counsel prior

to effecting emergency removal of Sarah Tenenbaum). Even then, O’Brien did not

remove the children until after she interviewed both the parents and children and

determined the children were unsafe. In short, while it is almost always possible

to criticize an official’s conduct in hindsight, we conclude O’Brien’s actions in

this case were nearly unassailable. We therefore hold O’Brien’s warrantless

removal of the children did not violate Appellants’ right to due process.

B.

Appellants also contend that § 39.401(1) and O’Brien’s application of it

violated their Fourth Amendment right to be free from unreasonable searches and

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seizures. Appellants acknowledge that their Fourth Amendment claims mirror

their procedural due process claims in that the seizure of the children was not

unconstitutional if supported by exigent circumstances.15 See Wallis, 202 F.3d at

1137 n.8; Tenenbaum, 193 F.3d at 605. For the same reasons that Appellants

cannot demonstrate a procedural due process violation, neither can they

demonstrate a Fourth Amendment violation.

V.

Appellants also challenge the district court’s determination that O’Brien

was immune from suit. In weighing a state official’s qualified immunity defense,

we conduct a two-part inquiry. First, we ask whether the official’s conduct

violated a constitutional right. Only if it did do we reach the second question of

whether the right was clearly established at the time the conduct occurred so as to

overcome the immunity defense. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.

Ct. 2151, 2156 (2001). We have determined that O’Brien did not violate

Appellants’ constitutional rights. We therefore need not engage in the second part

15

Additionally, insofar as Appellants may be challenging O’Brien’s warrantless entry into

their home, the record demonstrates that they gave her consent to enter. Under those

circumstances, a warrantless entry does not violate the Fourth Amendment. See Illinois v.

Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797 (1990). Even if Appellants had not given

O’Brien consent to enter their home, the warrantless entry was justified in this case by exigent

circumstances.

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of the qualified immunity analysis, and we affirm the district court’s judgment in

favor of O’Brien.

VI.

In conclusion, we hold Appellants have standing to challenge § 39.401(1)

because they are reasonably likely to suffer another removal under the statute, and

the conduct at issue is capable of repetition yet evading review. As to the merits

of that challenge, we hold that § 39.401(1) is not facially unconstitutional because

it permits the removal of children without a court order only in an emergency. Nor

was § 39.401(1) applied to Appellants in this case in an unconstitutional manner.

In light of all the relevant circumstances, O’Brien had probable cause to believe

the Doe children were in imminent danger of abuse. Therefore, she did not violate

the Constitution when she temporarily removed the children from their parents

without a court order. Moreover, where plaintiffs have failed to demonstrate a

violation of their constitutional rights, a defendant government official is entitled

to qualified immunity. Accordingly, we hold that the district court did not err in

granting O’Brien judgment as a matter of law.

AFFIRMED.

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