B.S. Ex Rel. T.S. v. Somerset County

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 11-1833

__________

B.S., and B.S. as guardian and parent of

T.S., G.S., and N.S.,

Appellants

v.

SOMERSET COUNTY; SOMERSET COUNTY

CHILDREN AND YOUTH SERVICES;

JESSICA ELLER; JULIE BARTH

__________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 3-08-cv-00030)

District Judge: Hon. Kim R. Gibson

Argued

January 10, 2012

BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit

Judges.

(Filed: January 8, 2013 )

_______________

Edward A. Olds, Esq. [ARGUED]

1007 Mount Royal Boulevard

Pittsburgh, PA 15223

Counsel for Appellant

Marie M. Jones, Esq. [ARGUED]

Jones Passodelis

707 Grant Street

Suite 3510, Gulf Tower

Pittsburgh, PA 15219

Counsel for Appellee

__________

OPINION OF THE COURT

__________

JORDAN, Circuit Judge

Appellant B.S. (“Mother”) is the natural mother of

M.N. (“Daughter”), a minor child. Mother had primary legal

custody of Daughter until Daughter was removed from

Mother’s care in accordance with a court order that

transferred custody to the child’s natural father, E.N.

(“Father”). Mother claims that Somerset County (the

“County”), along with Somerset County Children and Youth

2

Services and two of its employees, Julie Barth and Jessica

Eller, (collectively, “Appellees”) violated her constitutional

rights to substantive and procedural due process in securing

and effectuating the transfer and related orders. She seeks to

redress those alleged constitutional violations under 42

U.S.C. § 1983, and she is now appealing an order of the

United States District Court for the Western District of

Pennsylvania that rejected her claims and entered summary

judgment in Appellees’ favor.

We agree with Mother that her procedural due process

rights were violated by the Appellees, though the individual

defendants are protected by absolute immunity. As to the

substantive due process claims, we conclude that the District

Court’s grant of summary judgment for the Appellees was

correct, though for somewhat different reasons than those

expressed by that Court. We will therefore affirm in part and

reverse in part the District Court’s order and will remand the

case for a trial against the County on the damages Mother

sustained when her procedural due process rights were

violated.

I. Background 1

Daughter was born in June 2004 and suffered a variety

of medical problems that stunted her growth. In October

2005, Mother took Daughter to a pediatric gastroenterologist

1

Although our standard of review directs us to view

the facts in the light most favorable to the party against whom

summary judgment is sought, see infra Part II, we proceed at

this point by reciting the undisputed facts.

3

named Dr. Douglas Lindblad, who diagnosed Daughter with

failure to thrive. 2 After running various tests to determine the

cause of her condition, Dr. Lindblad referred Daughter for

inpatient treatment at the Children’s Institute of Pittsburgh

(the “Children’s Institute”).

She was treated there from March 20, 2006 to March

26, 2006, and gained 50 grams per day during that time. That

weight gain was normal for a child of Daughter’s age in

Daughter’s condition, reflecting what “[she] would have been

expected to gain plus additional weight which would get …

[her] to the point … where [she] should [have] be[en] in

terms of growth.” (Joint App. at 668; see id. at 669.)

Daughter had not experienced normal growth before that

time, having previously gained only 8 to 11 grams per day.

Sadly, after concluding her inpatient treatment and returning

to Mother’s care, Daughter gained only 4 grams per day, at

least initially.

A. Dr. Lindblad’s Child Abuse Report

The “fact that [Daughter’s] weight gain when she was

an inpatient … far exceeded her rate of weight gain at home”

concerned Dr. Lindblad (id. at 139), and led him to attribute

Daughter’s failure to thrive to how Mother was caring for her.

2

Failure to thrive is a diagnosis that may be “based

upon an objective finding that a child’s weight falls below the

third percentile of weight of children of like age.”

(Appellant’s Opening Br. at 15; see MedlinePlus Medical

Encyclopedia, Failure to Thrive,

http://www.nlm.nih.gov/medlineplus/ency/article/000991.htm

(last visited Nov. 6, 2012).)

4

Specifically, after examining Daughter on April 18, 2006, Dr.

Lindblad concluded that Daughter’s failure to thrive was

psychosocial, as opposed to physical, in origin. Psychosocial

failure to thrive occurs when a “child’s failure to thrive is due

to some factors in the home that lead the child not to grow

well,” and is “usually associated with inadequate caloric

intake.” (Id. at 670.) Although psychosocial failure to thrive

is not necessarily associated with neglect, Dr. Lindblad feared

that Daughter was being neglected by Mother, and he further

opined in his progress notes that he was “concerned about

Munchausen by proxy.” 3 (Id. at 433.)

As a result, Dr. Lindblad believed Daughter was in

physical danger that justified reporting to state authorities his

fear that Mother was neglecting Daughter, or worse. But

while Dr. Lindblad believed that action was warranted after

seeing Daughter on April 18, 2006, he did not immediately

make a report to “ChildLine,” the Pennsylvania state entity

responsible for receiving reports of neglect and abuse. 4

3

Munchausen by proxy “is a form of child abuse in

which a parent induces real or apparent symptoms of a

disease in a child.” MedlinePlus Medical Encyclopedia,

Munchausen Syndrome by Proxy,

http://www.nlm.nih.gov/medlineplus/ency/

article/001555.htm (last visited Nov. 6, 2012).

4

As detailed in Part I.C, infra, Pennsylvania provides

a specific protocol for reporting and investigating child abuse.

Under that statutory and regulatory framework, certain

persons are required to report suspected abuse. See 23 Pa.

Cons. Stat. Ann. § 6313(a) (“Reports from persons required

to report … shall be made immediately by telephone and in

writing within 48 hours after the oral report.”). ChildLine is

5

Instead, his first contact with state authorities about

Daughter’s case occurred on May 4, 2006, when he spoke

with Jessica Eller. Eller, a child welfare caseworker for

Somerset County Children and Youth Services, 5 was already

the state entity that accepts such calls. See Pennsylvania

Department of Public Welfare, Child Line Abuse Registry,

http://www.dpw.state.pa.us/provider/childwelfareservices

/childlineandabuseregistry/index.htm (last visited Nov. 6,

2012) (“The Mission of ChildLine is to accept calls … 24

hours per day, seven days per week. … The Intake Unit … is

available … to receive reports of suspected child abuse.”).

5

Appellees acknowledge that Somerset County

Children and Youth Services acts on behalf of Somerset

County with respect to child protective services (see Joint

App. at 77 (stating that Somerset County Children and Youth

Services “perform[s] certain functions as permitted under

state law regarding the protection of children in Somerset

County”)), and have treated the liability of those two entities

as being coextensive throughout the litigation in this case.

See, e.g., W.D. Pa. ECF no. 08-30, doc. no. 50, at 2; 12-15

(arguing that judgment should be entered “as to [Mother’s]

claims against Somerset County and Somerset County CYS

because there is no evidence of record of any unconstitutional

custom, policy or practice,” and focusing exclusively on

Somerset Children and Youth Services’ conduct in

developing that contention). We thus treat them as the same

for purposes of our discussion and will generally refer to

Somerset County and Somerset County Children and Youth

Services collectively as “the County” throughout this opinion.

6

investigating Daughter’s case and had previously contacted

Dr. Lindblad in connection with her investigation. 6

Dr. Lindblad told Eller of the discrepancy between

Daughter’s inpatient weight gain and her weight gain when

under Mother’s care, explained his conclusion that

Daughter’s failure to thrive was psychosocial in origin, and

described his concern about Munchausen by proxy. During

that conversation, Eller “instructed Dr. Lindblad to [file] a

ChildLine report” (id. at 311), which he did shortly thereafter.

B. Eller’s Child Abuse Report

At some point, Eller also made her own ChildLine

7

report. A description of Eller’s ChildLine report stated that

6

Given the path this case has followed, there is some

irony in how it began. The County was initially contacted by

Mother, who reported in December 2005 that she believed

Father was not properly feeding Daughter when Daughter

stayed at Father’s home. Eller was assigned to the case, and

met with Father in relation to her investigation. During that

meeting, Father described the difference between Daughter’s

inpatient weight gain and her weight gain at home, which

evidently prompted Eller to investigate whether Mother was

being neglectful or abusive.

7

The parties dispute whose report came first. Mother

implies that Eller’s ChildLine call was made on May 4, 2006

while Dr. Lindblad waited until May 5, 2006 to make his

ChildLine call. Appellees, by contrast, state that Dr. Lindblad

made his ChildLine report on the evening of May 4, 2006

whereas Eller’s call was made on May 5, 2006. The

difference is immaterial to our decision.

7

she had opted to make the report after speaking with a referral

source and consulting her supervisor, Julie Barth, and the

report relayed much of the information Dr. Lindblad had told

Eller. 8 After making her initial ChildLine report, Eller

prepared a summary of her findings in Daughter’s case to

present to a judge for the purpose of removing Daughter from

Mother’s home. Her summary, dated May 5, 2006, stated:

[The County] received a referral on May 5,

2006 alleging serious physical neglect of

[Daughter] by … [Mother] … . Childline [sic]

contacted [the County] and an investigation has

been initiated. Allegations of the neglect are

psycho-social failure to thrive. [Daughter] is

nearly 2 years old and is currently 19 pounds.

She was gaining 8-10 grams of weight per day

while being fed by her mother, until she entered

the Children’s Institute due to concerns of low

weight on March 20, 2006. While at the

Children’s Institute, [Daughter] gained 50

grams of weight per day while still being fed by

her mother under the supervision of the Institute

staff. Since her discharge on March 26, 2006

[Daughter] is now gaining 4-5 grams of weight

per day.

[The County] believes that it would be

contrary to the welfare of the child … to

continue to reside with and have unsupervised

8

The written summary of the ChildLine report did not,

however, describe Dr. Lindblad’s Munchausen by proxy

concern or attribute the reported information to Dr. Lindblad.

8

contact with … [Mother] until the outcome of

the investigation is determined. Therefore, the

Agency is requesting that all visitation and

contact between [Mother] and [Daughter] [be]

supervised by the Agency pending the outcome

of the investigation.

(Joint App. at 467.) Eller also prepared a corresponding court

order to suspend Mother’s contact with Daughter and transfer

the child to Father’s custody. 9

According to Appellees, the information relayed in

Eller’s summary “was based upon [a] good faith recall and

reading of” Daughter’s medical records. (Id. at 380.)

However, the summary’s reference to Daughter’s weight

being 19 pounds was mistaken, in light of her most recent

weigh-ins. 10 Whether Eller was aware of any error in the

summary is a matter of dispute, but, in any event, she took her

prepared summary and court order to Judge Cascio of the

Court of Common Pleas of Somerset County, and presented

them to him ex parte on May 5, 2006. Judge Cascio reviewed

Eller’s summary, and signed the proposed order, which

provided as follows:

9

Notwithstanding the prior allegations that Mother

lodged against Father, see supra note 6, Mother does not now

contest that he was fit to be a custodial parent.

10

When Dr. Lindblad examined Daughter on April 18,

2006, he recorded her weight as 9.2 kilograms, which is

equivalent to 20.2 pounds. In late April, Daughter was

weighed by two other physicians, and her weight was

recorded as being between 20 pounds and 21 pounds.

9

[D]ue to allegations of serious physical neglect

which are under investigation by [the County],

it is hereby ordered that all contact and

visitation between … [Daughter] and …

[Mother] … be supervised by [the County]

pending the outcome of the investigation. It is

also ordered that [Daughter] shall reside with …

[Father] … until the completion of the

investigation and [Mother] shall conduct herself

appropriately in all visitations with [Daughter],

including no badgering or harassing the agency

staff, belittleling [sic] any service providers or

… [Father].

(Id. at 468.) Judge Cascio’s order and Eller’s summary were

each filed under case number 20-B Juvenile 2006.

C. Daughter’s Removal from Mother’s Home

Armed with Judge Cascio’s order, Eller, along with a

police officer, went to Mother’s home that same day and took

Daughter from Mother. Pennsylvania’s Child Protective

Services Law (the “CPSL”) ordinarily requires that a follow-

up hearing be held within 72 hours of a child’s removal from

a parent’s custody. 11 According to Appellees, however, they

11

Aimed at “encourag[ing] more complete reporting of

suspected child abuse” and at protecting children from further

abuse, 23 Pa. Cons. Stat. Ann. § 6302(b), the CPSL requires

child abuse reports to be investigated and permits children to

be taken into protective custody by the state, see id. § 6315.

The statute provides, however, that any protective custody

may not “be maintained longer than 72 hours without an

10

were not required to schedule such a hearing because,

although Daughter was removed from Mother, she was

transferred to Father’s custody and not to the state’s custody.

Indeed, as Eller explained it, although a post-removal hearing

would normally be required within 72 hours after executing

an order taking a child into the state’s custody, no hearing is

required to comply with state law if the County merely

“transfers custody” to another parent, because the County

would not have “take[n] custody.” (Joint App. at 292.)

That view was also expressed by Natalie Hunt, the

Assistant Director of Somerset County Children and Youth

Services. Explaining that the kind of transfer in custody that

occurred in this case is employed when there is a fit parent

who can take custody of the child, Hunt testified that “the 72-

hour-hearing requirement is [not] necessary” unless the

County files a dependency petition to take custody of a minor.

(Id. at 331.) Caseworker supervisor, Douglas Walters,

echoed Hunt’s testimony, stating that, for as long as he could

remember, the County would simply contact a judge when it

felt it “needed to get an order, obtain an order to stop contact

until [the County] could investigate” (id. at 339-40), and that,

in such circumstances, the “agency doesn’t schedule a

hearing” (id. at 342). 12 He said that, on average, the County

informal [court] hearing” as provided in the Juvenile Act. Id.

§ 6315(d). Pennsylvania’s Juvenile Act requires an “informal

hearing [to] be held promptly by the court or master and not

later than 72 hours after the child is placed in detention or

shelter care to determine whether his detention or shelter care

is required.” 42 Pa. Cons. Stat. Ann. § 6332(a).

12

In light of the CPSL’s requirements for follow-up

hearings in cases in which protective custody is taken, we

11

asks a judge to restrict contact between a parent and a child in

that manner five to ten times per year.

Thus, because Appellees thought it unnecessary to

hold the hearing that Pennsylvania law would require were

Daughter taken into state custody, no follow-up hearing was

scheduled and Mother received no explanation of how to

arrange for a hearing. Instead, Eller simply presented Mother

with Judge Cascio’s order and left with Daughter.

D. Daughter’s Subsequent Weigh-Ins and Eller’s

Investigation

Immediately after picking Daughter up on May 5th,

Eller took her to a pediatrician at what the parties refer to as

“Berlin Pediatrics.” 13 During that visit, Daughter’s weight

was recorded as being 22 pounds, 2 ounces. Daughter

returned to Berlin Pediatrics with Father three days later, on

May 8, 2006, and her weight was again recorded as 22

pounds, 2 ounces. The results of those two weigh-ins are

understand Walters to have been referring to orders stopping

contact between the parent and the child in which the state

does not take custody of the child.

13

Although the record is not entirely clear, we

understand the references to “Berlin Pediatrics” to be a

shorthand for the Somerset Pediatric and Adolescent Health

Center in Berlin, Pennsylvania. (See Joint App. at 710

(Daughter’s “Berlin Pediatrics” growth chart with a stamp for

the “Somerset Pediatric and Adolescent Health Center” in

Berlin, Pennsylvania).) We will employ that shorthand

throughout this opinion.

12

highly significant because, as Dr. Lindblad explained during

his deposition, they placed Daughter around the fifth

percentile on the growth chart and would “not support a

diagnosis of failure to thrive,” if the trend in growth they

showed were to continue. 14 (Id. at 366-67.) It did not. When

Daughter was weighed at Berlin Pediatrics on May 16, 2006,

she was 20 pounds, 11 ounces.

Eller, in the meantime, continued investigating

Mother. The result of her investigation was a June 19, 2006

Child Protective Services Investigation report that found the

allegations of neglect against Mother to be supported by

substantial evidence. 15 Eller’s conclusion was based on her

14

Based on the results of those weigh-ins, a physician

retained by Mother opined that Daughter should not have

been removed from Mother on May 5, 2006. (See Joint App.

at 695 (“It is unclear to me why the child was removed on a

day when she showed significant weight gain for the first

time while under the mother’s care.”).) Dr. Lindblad offered

similar testimony, stating he would likely not have called

ChildLine if he was aware of Daughter’s May 5, 2006 weight.

(See id. at 369 (Dr. Lindblad’s testimony that he likely

“would have waited until another opportunity to examine the

child for weight before calling the ChildLine,” if he had been

aware of the May 5 weight of “22 pounds, 2 ounces”).) As

discussed in greater detail herein, the importance of

Daughter’s May 5 and May 8 weights is contested because

Appellees take the position that Daughter was, unlike on

other occasions, wearing clothes when weighed. See infra

note 34.

15

Under Pennsylvania state law, Eller was required to

send “one copy of” that report form, known as “CY-48,” to

13

finding that Daughter had gained only 4 to 5 grams of weight

per day while under Mother’s care following her discharge

from inpatient treatment, compared to the 50 grams per day

she gained while at the Children’s Institute and to the average

of 40.5 grams per day she gained from May 16, 2006 to May

30, 2006, while under Father’s care.

Those findings were misleading, however, because

they implied that Daughter’s first weigh-in under Father’s

care occurred on May 16, 2006 and that Daughter weighed

only 19 pounds, 10 ounces when she was initially placed in

Father’s care on May 5, 2006. 16 Eller’s report did not

mention Daughter’s May 5 and May 8, 2006 weigh-ins at

Berlin Pediatrics, because Eller treated them as invalid

measurements. She asserted that those weights are unreliable

ChildLine “within 30 days of the receipt of an oral report of

suspected abuse.” (Joint App. at 455; see 55 Pa. Code

§ 3490.67(a) (“The county agency shall send the Child

Protective Service Investigation Report form (CY-48) to

ChildLine within 30-calendar days of the receipt of the report

of suspected child abuse.”).)

16

Specifically, Eller’s report stated that “[s]ince

[Daughter’s] first weigh-in on May 16, 2006 [Daughter] has

gained 481 grams of weight or on average of [sic] 18 grams

of weight per day.” (Joint App. at 456.) Daughter’s May 16,

2006 weight of 20 pounds, 11 ounces is equivalent to 331

ounces or 9383.692 grams. Thus, Eller’s assertion that

Daughter had gained 481 grams implied that she had initially

weighed in at 8902.692 grams, which is equivalent to 19

pounds, 10.03 ounces.

14

because Daughter had been dressed when they were taken. 17

By ignoring those data points, Eller was not forced to

consider that Daughter may have gained significant weight

while under Mother’s care before Daughter was removed on

May 5, 2006, and that Daughter’s weight seemed to drop

when she was first placed with Father.

E. Mother’s Habeas Corpus Petition, and Judge

Cascio’s Orders in Connection With Eller’s

Report

Before Eller’s June 19, 2006 Child Protective Services

Investigation report was submitted to the state, Mother filed a

habeas corpus petition in the Court of Common Pleas of

Somerset County, arguing that the County had violated state

law by not providing a hearing after removing Daughter from

Mother’s custody. Mother’s petition was filed under the

same case number as the May 5, 2006 order removing

Daughter from Mother’s custody, and a hearing was held

before Judge Cascio on June 14, 2006. At the hearing, which

occurred 40 days after Daughter was removed from Mother’s

custody, the County contested Mother’s petition by arguing

17

Eller wrote “dress” next to the May 5 and May 8

results on a copy of a growth chart prepared by Berlin

Pediatrics. She stated in her deposition that she observed that

Daughter’s clothes were not removed when Daughter was

weighed on May 5, and that Father informed her that

Daughter was dressed for the weigh-in that occurred on May

8. Daughter’s pediatrician stated in his deposition, however,

that the “standard practice” at Berlin Pediatrics was to weigh

children such as Daughter “without their clothes.” (Joint

App. at 371.)

15

that it had no obligation to conduct a post-removal hearing

because it had not taken custody of Daughter. The hearing

concluded with Judge Cascio’s taking Mother’s petition under

advisement.

Eller, as noted, completed and filed her Child

Protective Services Investigation report five days later, on

June 19, 2006. 18 Four days after that, on June 23, 2006, she

met ex parte with Judge Cascio to present another summary

to him that relayed her findings. It stated:

[The County] has completed the Child

Protective Services investigation regarding

serious physical neglect of [Daughter]. The

[report] was filed on June 19, 2006 with

Childline and substantiated [Mother] … as the

perpetrator. Due to the indicated status of the

report [the County] is recommending that visits

continue to be supervised between [Mother] and

[Daughter] until further hearings on this matter

are scheduled by either parent.

(Id. at 712.) As she had done before, Eller offered a proposed

order to Judge Cascio, along with her summary. After that

18

Mother was ultimately advised by letter of the

conclusion reached in Eller’s June 19, 2006 report. The letter

advised that Mother had the right to request that the report be

amended or destroyed if she believed it was inaccurate. She

initiated proceedings to do that, but her request to expunge

the report was denied. Although Mother had the opportunity

to appeal that decision and she initially sought to do so, she

ultimately withdrew her appeal.

16

meeting, the Judge entered the following order which, with

Eller’s summary, was filed on June 23, 2006 under the same

case number as Mother’s habeas petition and the initial

removal order had been:

[D]ue to the indicated report of serious physical

neglect whereby [Mother] is the perpetrator, it

is hereby ordered that all visitation between

[Mother] and [Daughter] continue to be

supervised until further hearings on this matter

are scheduled by either parent.

(Id. at 713.)

A few days later, on June 26, 2006, Judge Cascio

entered an order denying Mother’s habeas corpus petition

saying, among other things, that “[t]he child was not taken

into protective custody so as to trigger the provisions and

protections of the” CPSL; and that “[p]lacement of the child

with her Father is necessary and appropriate considering the

serious and continuing medical evidence of failure of the

child to thrive while in Mother’s care.” (Id. at 714-15.)

Mother and Father subsequently embarked upon

contentious custody proceedings, eventually receiving shared

custody of Daughter.

F. Procedural History

On February 5, 2008, Mother initiated this lawsuit.

She later filed an amended complaint asserting claims against

Appellees for violating her substantive due process rights, as

well as claims for violating her right to procedural due

17

process by transferring Daughter to Father’s custody without

timely notice or an opportunity to be heard. 19 After the

completion of discovery, Appellees filed a motion for

summary judgment. Mother opposed that motion and moved

for summary judgment on her procedural due process claim.

Holding that the individual defendants were shielded by

absolute or qualified immunity and that the County’s actions

did not violate Mother’s constitutional rights, the District

Court granted Appellees’ motion and denied Mother’s. It

entered judgment in Appellees’ favor the same day.

This timely appeal followed.

II. Jurisdiction and Standard of Review

Because Mother challenges the process she received

with respect to state court orders issued by Judge Cascio, we

asked the parties to prepare letter-briefs on whether the

Rooker-Feldman doctrine affects our subject matter

jurisdiction in this case. See Exxon Mobil Corp. v. Saudi

Basic Indus. Corp., 544 U.S. 280, 283 (2005) (explaining that

“federal courts of first instance” lack jurisdiction to “review

and reverse unfavorable state-court judgments” (citing

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court

of Appeals v. Feldman, 460 U.S. 462 (1983))). Appellees

responded by arguing that the Rooker-Feldman doctrine bars

Mother’s constitutional claims. Mother, of course, argues

that the doctrine “has absolutely no application” to any of her

claims. (Appellant’s Letter Mem. at 1.)

19

Mother’s complaint also pleaded a First Amendment

claim and a civil conspiracy claim, which she has abandoned

on appeal.

18

In Great Western Mining & Mineral Company v. Fox

Rothschild LLP, 615 F.3d 159 (3d. Cir. 2010), we surveyed

recent caselaw and concluded that “there are four

requirements that must be met for the Rooker-Feldman

doctrine to apply,” id. at 166, namely that “(1) the federal

plaintiff lost in state court; (2) the plaintiff complain[s] of

injuries caused by [the] state-court judgments; (3) those

judgments were rendered before the federal suit was filed;

and (4) the plaintiff is inviting the district court to review and

reject the state judgments,” id. (alterations in original)

(citation and internal quotation marks omitted). We

concluded that a federal claim alleging that the defendants

conspired to engineer the plaintiff’s loss in state court

proceedings was not barred by Rooker-Feldman because it

did not “assert injury caused by state-court judgments and

seek review and rejection of those judgments[.]” Id. at 171.

Because the injury Mother claims is likewise traceable to

Appellees’ actions, as opposed to the state court orders those

actions allegedly caused, we reject Appellees’ contention that

the Rooker-Feldman doctrine precludes federal subject matter

jurisdiction in this case. Cf. id. at 166-67 (a father’s suit “for

the return of his son on grounds that the state judgment

violates his federal substantive due-process rights as a parent”

is barred by Rooker-Feldman (quoting Hoblock v. Albany

Cnty. Bd. of Elections, 422 F.3d 77, 87 (2d Cir. 2005))).

Having rejected Appellees’ invocation of the Rooker-

Feldman doctrine, it is clear that the District Court had

jurisdiction under 28 U.S.C. § 1331. We, in turn, have

jurisdiction under 28 U.S.C. § 1291, and exercise “plenary

review of [the] district court’s grant of summary judgment.”

Funk v. CIGNA Grp. Life Ins., 648 F.3d 182, 190 (3d Cir.

2011). Accordingly, we view the facts in Mother’s favor to

19

determine whether the District Court correctly held that

“there [was] no genuine dispute as to any material fact and

[that Appellees were] entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). Because Mother challenges the

District Court’s decision to deny her summary judgment on

her procedural due process claim, we must also view the facts

in the light most favorable to Appellees to determine whether

the District Court correctly determined that Mother was not

entitled to summary judgment on that claim.

III. Discussion

The Fourteenth Amendment’s Due Process Clause

prohibits states from “depriv[ing] any person of life, liberty,

or property, without due process of law,” U.S. Const. amend.

XIV. “As [the] concept [of due process] has developed, it has

come to have both substantive and procedural components.”

Evans v. Sec’y Pa. Dep’t of Corr., 645 F.3d 650, 658 (3d Cir.

2011). Mother contends that Appellees violated both

components when they removed Daughter from her home and

transferred the child to Father’s custody, and she thus seeks

redress pursuant to 42 U.S.C. § 1983. 20 According to Mother,

the District Court erred by entering judgment in Appellees’

favor on the substantive due process claim, and by failing to

20

Section 1983 permits a cause of action against

“[e]very person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws [of the United States] … .” 42 U.S.C. § 1983.

20

enter a judgment recognizing that Appellees violated her

procedural due process rights. She asks, therefore, that we

vacate the District Court’s order and remand the case for

entry of judgment on her procedural due process claim, and

for a trial on her substantive due process claim and on the

damages attendant to her procedural due process claim.

Appellees respond that the District Court appropriately

entered judgment in their favor because their actions did not

violate Mother’s due process rights. They further contend

that, in any event, Eller and Barth cannot be liable because

they are entitled to absolute or qualified immunity for all

claims against them. In addition, although Appellees have

not pressed the issue in their briefing before us, they argued

to the District Court that the County cannot be liable because

it is a municipal entity and not culpable for the acts of its

agents, and, if true, that would be a basis for affirming the

District Court’s judgment as to the claims against the

County. 21 Cf. Ridley Sch. Dist. v. M.R., 680 F.3d 260, 282

(3d Cir. 2012) (“[W]e can affirm based on any grounds

21

As discussed at greater length herein, liability under

§ 1983 “attaches to a municipality only when execution of a

government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said

to represent official policy, inflicts the injury.” Andrews v.

City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (citation

omitted); see Good v. Dauphin Cnty. Social Servs. For

Children & Youth, 891 F.2d 1087, 1096 (3d Cir. 1989) (“The

defendants … now argue that summary judgment should be

affirmed on the ground that plaintiffs failed to state a cause of

action against them under section 1983, because municipal

liability cannot be based upon respondeat superior … .”).

21

supported by the record.”). We consider first whether Eller

and Barth are liable to Mother for any procedural or

substantive due process violations, and then we address the

County’s liability for those claims.

A. Due Process Claims Against Eller and Barth

1. Absolute Immunity in the Child Welfare

Context 22

Although the Supreme Court has made clear that

“[m]ost public officials are entitled only to qualified

immunity,” it has recognized that “public officials who

perform ‘special functions,’” such as prosecutors, are

sometimes entitled to absolute immunity. Yarris v. Cnty. of

Del., 465 F.3d 129, 135 (3d Cir. 2006) (quoting Butz v.

Economou, 438 U.S. 478, 508 (1978)). The purpose of

according absolute immunity to such officials is to ensure that

they “can perform their respective functions without

22

Unlike a qualified immunity analysis, which often

involves an initial inquiry into whether the facts alleged show

a violation of a constitutional right, see Pearson v. Callahan,

555 U.S. 223, 232-36 (2009) (concluding that it is often

appropriate, although not mandatory, for a court to first

consider whether the facts alleged show a violation of a

constitutional right before reaching the qualified immunity

issue), the question of absolute immunity can be addressed as

a threshold issue. See Mitchell v. Forsyth, 472 U.S. 511, 520

(1985) (concluding first that the Attorney General was not

entitled to absolute immunity for his conduct before turning

to the question of whether a constitutional right had been

violated).

22

harassment or intimidation.” Butz, 438 U.S. at 512.

Although conferring absolute immunity obliges courts to

sometimes deny relief to those “with valid claims against

dishonest or malicious government officials,” Snell v.

Tunnell, 920 F.2d 673, 687 (10th Cir. 1990), the underlying

logic is that it is ultimately “better to leave unredressed the

wrongs done by dishonest officers than to subject those who

try to do their duty to the constant dread of retaliation,”

Yarris, 465 F.3d at 135 (citation and internal quotation marks

omitted).

Still, absolute immunity is “strong medicine, justified

only when the danger of [officials’ being] deflect[ed from the

effective performance of their duties] is very great.”

Forrester v. White, 484 U.S. 219, 230 (1988) (alterations in

original) (citation and internal quotation marks omitted).

Moreover, officials who “seek exemption from personal

liability” on that basis bear “the burden of showing that such

an exemption is justified by overriding considerations of

public policy.” Id. at 224. Thus, “[i]n light of the Supreme

Court’s ‘quite sparing’ recognition of absolute immunity …,

we begin with [a] presumption that qualified rather than

absolute immunity is appropriate,” unless the official

invoking absolute immunity meets a “heavy burden of

establishing entitlement” to it. Odd v. Malone, 538 F.3d 202,

207-08 (3d Cir. 2008) (citation omitted).

Appellees contend that they have met that burden here

because Eller and Barth performed “actions … closely

analogous to those of prosecutors.” (Appellees’ Br. at 39.)

As Appellees correctly point out, we have recognized that the

justifications for according absolute immunity to prosecutors

sometimes apply to child welfare employees. Specifically, in

23

Ernst v. Child & Youth Services of Chester County, 108 F.3d

486 (3d Cir. 1997), we joined several of our sister circuits in

deeming “child welfare workers and attorneys who prosecute

dependency proceedings on behalf of the state … absolute[ly]

immun[e] from suit for all of their actions in preparing for

and prosecuting such dependency proceedings.” Id. at 488-

89. The plaintiff in that case was the grandmother of a minor

child for whom she was the sole legal guardian. Id. at 489.

After receiving a report that the child had an extreme and

unhealthy attachment to the grandmother, an employee of a

state child welfare agency initiated emergency dependency

proceedings to remove the child from the grandmother’s

custody and commit her to the custody of the state. Id. An

immediate detention hearing was held, at which a state judge

ordered that the child be placed in a psychiatric institution for

a complete evaluation. Id. The state child welfare agency

assumed custody of the child, and a legal battle between the

agency and the plaintiff ensued. Id.

The plaintiff eventually filed suit under § 1983

alleging, inter alia, due process claims against various agency

caseworkers and a private attorney who had represented the

agency throughout the dependency proceedings. On appeal,

we considered whether those defendants were “entitled to

absolute immunity for their actions in petitioning and in

formulating and making recommendations to the state court.”

Id. at 493. We began our analysis by noting that § 1983 “did

not abolish long-standing common law immunities from civil

suits,” id., including those against individuals who hold

offices that did not exist at common law but who perform

tasks “analogous to functions performed by those who were

immune at common law,” id. at 494. Drawing on the

Supreme Court’s extension of absolute immunity to

24

prosecutors, we held that absolute immunity cloaked state

child welfare caseworkers from liability with respect to “their

actions on behalf of the state in preparing for, initiating, and

prosecuting dependency proceedings.” Id. at 495. We

clarified that such immunity was broad enough “to include

the formulation and presentation of recommendations to the

court in the course of such proceedings” id., but we also said

that “we would be unwilling to accord absolute immunity to

‘investigative or administrative’ actions taken … outside the

context of a judicial proceeding,” id. at 497 n.7.

Our holding, as we explained it, was premised on three

parallels between child welfare employees and prosecutors:

(1) the functions performed by [state child

welfare caseworkers] in dependency

proceedings are closely analogous to the

functions performed by prosecutors in criminal

proceedings; (2) the public policy

considerations that countenance immunity for

prosecutors are applicable to child welfare

workers performing these functions; and (3)

dependency proceedings incorporate important

safeguards that protect citizens from

unconstitutional actions by child welfare

workers.

Id. at 495. As to the first point, we observed that, like

prosecutors, “social worker[s] must make a quick decision

based on perhaps incomplete information as to whether to

commence investigations and initiate proceedings against

parents who may have abused their children.” Id. at 496

(quoting Meyers v. Contra Costa Cnty. Dep’t of Soc. Servs.,

25

812 F.2d 1154, 1157 (9th Cir. 1987) (internal quotation marks

omitted)). Regarding the applicable public policy

considerations, we noted that, much like prosecutors, child

welfare workers “acting in a quasi-prosecutorial capacity in

dependency proceedings” are forced to “exercise independent

judgment” that should not be compromised by exposing them

to the potentially chilling effect of § 1983 liability. Id. at 496.

Finally, we gave two reasons why § 1983 liability was not the

only mechanism available to protect the public against

unconstitutional conduct:

First, the judicial process itself provides

significant protection. Child welfare workers

must seek an adjudication of dependency from a

neutral judge whose decisions are guided by the

“best interests of the child” and subject to

appellate review. Second, although child

welfare workers are not subject to the

comprehensive system of professional

responsibility applicable to prosecutors, they are

under the supervision of the agency that

employs them. The agency has an incentive to

ensure that its employees do not violate

constitutional rights because it is not immune

from suit for abuses committed by employees

with policy-making authority or acting pursuant

to agency policy or custom.

Id. at 497 (citation omitted). Because the plaintiff’s claims

against the state child welfare workers arose “in connection

with the formulation and presentation of recommendations to

the state court regarding [the child’s] dependency status and

26

disposition,” we deemed those workers entitled to absolute

immunity. Id.

We likewise extended that immunity to the private

attorney who had represented the agency, because the

attorney had – like the agency’s employees – taken action “on

behalf of the State that [was] integrally related to the judicial

process.” Id. at 502; see also id. at 504. Notably, we did so

even though the attorney’s allegedly unlawful actions

occurred after the attorney had been ordered removed from

serving on the agency’s behalf and had been undertaken with

a subjectively malicious intent. Id. at 503; see also id. (“It is

true that Ernst alleged, and the court found, that [the attorney]

… filed this petition because of hostility to Ernst rather than

for the purpose of serving the best interest of [the child].”).

Reasoning that the immunity analysis was to be undertaken

“without reference to the official’s subjective state of mind,”

id. at 502, we concluded that absolute immunity could protect

the attorney from liability flowing from prosecutorial actions,

as long as the challenged acts were not those that “a

reasonable [person] would recognize as being clearly outside

his jurisdiction,” id. at 502 (citation and internal quotation

marks omitted). Because “a reasonable attorney in [the

attorney]’s position could have concluded that she owed a

duty to her client,” since a new lawyer had not been

appointed to replace her at the time of the challenged conduct,

we held that she “did not act in a clear absence of authority”

and was therefore entitled to absolute immunity. Id. at 504.

Appellees claim that the requests for orders pertaining

to Mother’s custodial rights are entitled to absolute immunity

under Ernst because they constitute protected advocacy. (See

Appellees’ Br. at 42 (“Requesting … an order is ‘petitioning’

27

the court, and providing any testimony constitutes ‘making

recommendations to the state court’ and/or ‘acting as an

advocate in judicial proceedings’ … .”).) The District Court

accepted that argument, understanding our precedent in Ernst

to mean that “there must be a judicial court order before …

social workers … [may] receive absolute immunity.” (Joint

App. at 24.) The District Court was satisfied that, in this

case, that prerequisite was effectively satisfied because “the

acts [Eller and Barth] performed in seeking a judicial order

transferring custody from the Natural Mother to the Natural

Father were closely associated with the judicial process.” (Id.

at 25.)

Mother argues that the District Court ignored that, in

this case, unlike in Ernst, dependency proceedings were never

initiated; the County instead requested that the Court issue an

order in response to a caseworker’s summary 23 and, in so

doing, avoided affording Mother automatic process under

state law. 24 Thus, she argues, the checks on unconstitutional

conduct that were part of the justification for extending

23

Appellees refer to this process as a “Summary and

Order procedure.” (See, e.g., Appellees’ Br. at 23.)

24

There is a “heads-I-win, tails-you-lose” quality to

the Appellees’ assertion that, on the one hand, the lack of

dependency proceedings means there was no obligation to

afford Mother a prompt post-removal hearing, see supra Part

I.C, while, on the other hand, the alleged similarity between

the County’s Summary and Order procedure and dependency

proceedings means that Eller and Barth should be absolutely

immune. We reach our holding in spite of and not because of

that somewhat inconsistent line of argument.

28

absolute immunity in that case simply do not exist here. See

Ernst, 108 F.3d at 497 (“Finally, as with prosecutors, there

are alternative mechanisms other than the threat of § 1983

liability that protect the public against unconstitutional

conduct by child welfare workers.”).

That argument is not without logical force. The

availability of “alternatives to damages suits against the

official as [a] means of redressing wrongful conduct” is a

factor that we must consider when assessing whether a

government official is entitled to absolute immunity.

Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992); see

id. (“Three factors determine whether a government official

should be given absolute immunity for a particular function:

1) whether there is a historical or common law basis for the

immunity in question; 2) whether performance of the function

poses a risk of harassment or vexatious litigation against the

official; and 3) whether there exist alternatives to damage

suits against the official as means of redressing wrongful

conduct.” (citation and internal quotation marks omitted)); cf.

Butz, 438 U.S. at 512 (“Because the[] features of the judicial

process tend to enhance the reliability of information and the

impartiality of the decisionmaking process, there is a less

pressing need for individual suits to correct constitutional

error.”).

Ultimately, however, Mother’s contention is

overstated. As a careful comparison of this case to Ernst

reveals, the same sorts of protection we identified there

actually do apply here with respect to the caseworkers’

function of seeking judicial orders related to custody of

Daughter. First, as is true of dependency proceedings, “the

judicial process itself” provided some check against wrongful

29

conduct under the procedure the County employed in

removing Daughter from Mother’s home. Ernst, 108 F.3d at

497. Although the County’s protocol did not include the

post-removal hearing that dependency proceedings include,

Daughter’s removal was nevertheless effectuated only after

Eller presented her findings to “a neutral judge whose

decisions [were] guided by [Daughter’s] best interests.” Id.

(internal quotation marks omitted). Second, even without

following the protocols for removing a child in dependency

proceedings, the agency in this case had the incentive we

described in Ernst “to ensure that its employees do not violate

constitutional rights because it is not immune from suit for

abuses committed by employees with policy-making

authority or acting pursuant to agency policy or custom.” Id.

Thus, although Ernst is certainly distinguishable in that

absolute immunity was available to child welfare workers

“for their actions on behalf of the state in preparing for,

initiating, and prosecuting dependency proceedings,” id. at

495 (emphasis added), that distinction is not dispositive as far

as the availability of “important safeguards that protect

citizens from unconstitutional actions” goes. Id.

Nor is Mother’s argument persuasive as to the

“functions performed” or the “public policy considerations”

we identified in Ernst. Id. Like caseworkers who present

their findings during dependency proceedings, the

caseworkers here were forced to act quickly to protect a child

from perceived neglect or abuse and had to exercise

independent judgment in doing so. See id. at 496-97. After

speaking with Dr. Lindblad, Eller discussed the matter with

Barth and decided it was necessary to initiate a ChildLine

report so as to “report allegations of serious physical neglect”

(Joint App. at 463), that would enable her to promptly secure

30

a court order to have Daughter removed from Mother’s care

and to protect Daughter from further abuse. The specter of

§ 1983 liability in future cases could well impede the ability

of Eller and others in her position to take action in an

emergency. We therefore believe that Ernst’s absolute

immunity for child welfare employees is appropriate when

the employee in question “formulat[es] and present[s] …

recommendations to the court” with respect to a child’s

custody determination, even if those recommendations are

made outside the context of a dependency proceeding. 25

Ernst, 108 F.3d at 495.

Having determined that the absence of dependency

proceedings is not, in itself, a basis for resolving the absolute

immunity question, we must now consider whether Eller and

Barth were, in fact, formulating and presenting

recommendations to a court when they undertook the conduct

of which Mother complains. In other words, we need to

ascertain whether Eller and Barth “function[ed] as the state’s

advocate when performing the action(s)” that gave rise to the

due process violations Mother seeks to redress, or whether

those claims instead arose from unprotected “administrative

or investigatory actions.” Odd, 538 F.3d at 208; see Ernst,

108 F.3d at 495, 497 n.7 (noting immunity for caseworkers

25

The dissent contends that the absence of dependency

proceedings requires that we deny absolute immunity. That,

however, would unnecessarily convert what is a feature of

some immunity cases into a prerequisite for immunity in all

child welfare cases. Our focus should be, instead, on whether

the function of the child welfare worker, while engaged in the

challenged act, was prosecutorial. See Ernst, 108 F.3d at 495

(emphasizing the import of the function performed).

31

includes “the formulation and presentation of

recommendations to the court” but that we would not “accord

absolute immunity to ‘investigative or administrative’ actions

taken … outside the context of a judicial proceeding”). The

question is “what function … th[eir] act[s] served,”

Schneyder v. Smith, 653 F.3d 313, 332 (3d Cir. 2011). We

address that question first with regard to the acts underlying

the alleged procedural due process violations, and then turn to

the substantive due process claims.

2. Procedural Due Process

The procedural due process claims arose when Eller

and Barth, with the County’s approbation, removed Daughter

from Mother’s custody by presenting ex parte conclusions

about Daughter’s welfare to Judge Cascio on May 5, 2006,

and perpetuated that removal through a second ex parte

meeting on June 23, 2006. 26 In each of those meetings, Eller,

on behalf of the County and under Barth’s supervision,

recommended that the court issue an order depriving Mother

of custody of Daughter. Such actions are “intimately

associated with the judicial process in much the same way as

are a prosecutor’s actions in representing the state in criminal

prosecutions.” Ernst, 108 F.3d at 496 (internal quotation

marks omitted). Inasmuch as their acts were fundamentally

prosecutorial, in the manner described in Ernst, we conclude

that Eller and Barth are absolutely immune from liability with

26

We address the procedural due process claims

against the County infra Part III.B. Here, for purposes of the

absolute immunity determination, we address only those

claims against Eller and Barth.

32

respect to the procedural due process claims. 27 See id. at 495

(according immunity for “the formulation and presentation of

recommendations to the court”).

27

Our dissenting colleague argues that there can be no

absolute immunity for the procedural due process claims

because the caseworkers lacked “statutory authorization to

approach the judge to request” the orders. (Dissent at 4; see

id. at 16 (discussing the second ex parte meeting).) That

authorization was lacking, he claims, because the caseworkers

“merely initiat[ed] a custody process between parents,” a

process not included in the statutorily permitted

circumstances under which caseworkers can seek a removal

order. (Id. at 7.) It is certainly true that absolute immunity

does not protect acts in a “complete and clear absence of

authority.” Snell, 920 F.2d at 694. The question of whether

an act can be so characterized, however, is assessed from the

perspective of the objectively reasonable caseworker,

“without reference to the official’s subjective state of mind.”

Ernst, 108 F.3d at 502. We disagree with the suggestion in

the dissent that the caseworkers here could not have

reasonably believed their actions were in furtherance of their

authority. In Ernst, we determined that the lawyer who had

been removed from serving on the agency’s behalf “did not

act in a clear absence of authority” because she could have

reasonably “concluded that she owed a duty to her client”

under the circumstances. Id. at 504. So too here. There can

be no question that it was proper for the caseworkers to

endeavor to protect Daughter, see 55 Pa. Code § 3490.53(b)

(“The county agency shall protect the safety of the subject

child and other children in the home … and shall provide or

arrange appropriate services when necessary during the

investigation period.”), and the purpose of both the May 5

33

3. The Substantive Due Process Claim

That, however, does not definitively settle the absolute

immunity question in this case, because the substantive due

process claim with respect to Eller remains to be addressed. 28

and June 23 orders was to do just that. Even if Pennsylvania

law requires that purpose to be effectuated by other means

than the procedure undertaken here, it cannot be persuasively

said that a reasonable caseworker would believe that she had

acted “in a clear absence of authority” in procuring the May 5

and June 23 orders. Ernst, 108 F.3d at 504.

28

Although Mother brings this claim against all of the

Appellees, she fails to identify any action by Barth that

amounts to a substantive due process violation, instead

focusing entirely on Eller’s conduct. (See Appellant’s

Opening Br. at 58 (“[A] jury could conclude that Eller was

deliberately indifferent … and … acted in a grossly negligent

manner.” (emphasis added)); id. at 61 (“[A] jury could find

that Eller’s conduct shocks the conscience … .” (emphasis

added)).) We conclude, therefore, that Mother has waived

any challenge to the District Court’s ruling that Barth is

entitled to summary judgment on the substantive due process

claim. See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d

193, 202-03 (3d Cir. 2004) (“We have held on numerous

occasions that [a]n issue is waived unless a party raises it in

its opening brief, and for those purposes a passing reference

to an issue will not suffice to bring that issue before this

court.” (alteration in original) (citation and internal quotation

marks omitted)). We address the County’s substantive due

process liability infra Part III.B, and thus address only Eller’s

substantive due process liability here.

34

Mother contends that that claim arose when Eller removed

Daughter on May 5, 2006, based on misrepresented medical

evidence (see Appellant’s Opening Br. at 52 (arguing that

Eller “concoct[ed] facts to convince Judge Cascio that he

should permit the separation of Daughter from Mother

coupled with the absence of information, which would justify

removal”)), and when Eller subsequently “manipulat[ed] [the]

evidence associated with the ChildLine report investigation”

and presented that report’s conclusions to Judge Cascio on

June 23, 2006, as the basis for her recommendation that

Mother not regain custody of Daughter (id.). As the

immunity analysis hinges on the specific function served by

Eller’s actions, we address each of those actions in turn.

a. Daughter’s Initial Removal

Mother contends that Eller’s initial removal of

Daughter on May 5, 2006 constitutes a substantive due

process violation because Eller improperly relied on a report

from Dr. Lindblad and misrepresented Daughter’s weight on

the summary she prepared for Judge Cascio. That claim

presents a difficult immunity issue. Although Eller

eventually presented her recommendations to a court, and is

entitled to absolute immunity for that under Ernst, her

solicitation of information from Dr. Lindblad and the

compilation of her findings into an abuse report occurred

prior to the initiation of judicial proceedings. See Ernst, 108

F.3d at 497 (holding that “formulation and presentation of

recommendations to the state” is entitled to absolute

immunity, but declining to accord immunity to “investigative

or administrative” actions (citation omitted)). Mother’s claim

thus raises the question of precisely where to draw the line

between a child welfare employee’s investigative and

35

prosecutorial functions, an issue that is not clearly addressed

by our holding in Ernst.

But we do not need to answer that question today

because, even if we were to conclude that Eller was not

entitled to absolute immunity, no rational jury could find that

her initial removal of Daughter violated Mother’s substantive

due process rights. In Miller v. City of Philadelphia, 174 F.3d

368 (3d Cir. 1999), we held that a substantive due process

claim requires “decision-making by a social worker that is so

clearly arbitrary … [that it] can properly be said to ‘shock the

conscience.’” Id. at 376; see also Croft v. Westmoreland

Cnty. Children & Youth Servs., 103 F.3d 1123, 1124–26 (3d

Cir. 1997). In so holding, we observed that “[t]he exact

degree of wrongfulness necessary to reach the ‘conscience-

shocking’ level depends upon the circumstances of a

particular case,” because a “higher fault standard is proper

when a government official is acting instantaneously and

making pressured decisions without the ability to fully

consider their risks.” Miller, 174 F.3d at 375. In such

situations, the “standard of culpability” necessary for a child

welfare employee’s actions to shock the conscience must

generally “exceed both negligence and deliberate

indifference.” Id.

Eller’s actions on May 5 may not be free from fault,

but they cannot be said to shock the conscience. When Eller

removed Daughter on May 5, she acted quickly upon

information from a physician who had been treating Daughter

over the course of several months. Dr. Lindblad told Eller of

medical evidence that indicated serious neglect. Although he

had not seen Daughter for approximately two-and-a-half

weeks, Dr. Lindblad knew enough about her case to cogently

36

describe the discrepancy between her growth during her

inpatient care at the Children’s Institute as compared with her

growth under Mother’s care. Based on Eller’s discussion

with Dr. Lindblad, it was reasonable to take the steps she did

to protect Daughter from Mother until there had been time to

investigate further. Considered in that context, Eller’s

misstatement that Daughter weighed 19 pounds, see supra

note 16 and accompanying text, cannot be viewed as more

than mere negligence, especially because the material facts

relayed by Dr. Lindblad that led Eller to act were all

accurately stated in her summary to Judge Cascio. We

conclude, therefore, that no rational jury could find that

Eller’s actions leading to the May 5 removal of Daughter

infringed upon Mother’s substantive due process rights.

b. Eller’s Subsequent Actions

Mother next argues that the way Eller handled her

subsequent investigation and report could support a jury

verdict in Mother’s favor on the substantive due process

claim. Specifically, Mother argues that Eller excluded from

her analysis the May 5 and May 8 weigh-ins, which suggested

that Daughter had improved under Mother’s care. According

to Mother, that omission demonstrates that Eller acted either

with a desire to manipulate the evidence or with deliberate

indifference to the truth, either of which would be sufficient

to support a jury verdict in her favor on the substantive due

process claim.

To resolve whether Eller is absolutely immune from

liability with respect to that claim, we turn to the question of

“what function (prosecutorial, administrative, investigative,

or something else entirely)” the acts of preparing the report

37

and presenting its conclusion to Judge Cascio served. 29

Schneyder, 653 F.3d at 332. That mode of analysis does not

lend itself to easy resolution in this case. Although Eller

“present[ed]” her “formulat[ed]” conclusions to Judge Cascio,

which could entitle her to absolute immunity, Ernst, 108 F.3d

at 495, the conclusions she reported were derived from the

abuse report she prepared for the state which, on its own,

plainly would not, see id. at 497 n.7 (“[W]e would be

unwilling to accord absolute immunity to investigative …

actions taken … outside the context of a judicial proceeding”

(emphases added) (internal quotation marks omitted)). There

would, in fact, be no serious basis for Eller to posit that she

acted as a quasi-prosecutor had she never secured a temporary

removal order from Judge Cascio or presented her report’s

conclusions to Judge Cascio after filing the report with the

state, because her function in investigating potential child

abuse and preparing a report required under state law does not

approximate legal advocacy. See Holloway v. Brush, 220

F.3d 767, 775 (6th Cir. 2000) (“[S]ocial workers are

29

We reach this issue with regard to this claim, unlike

with the claim arising from Eller’s May 5 conduct, because

Mother has a much stronger case that her substantive due

process rights were violated by Eller’s subsequent actions.

Eller’s failure to mention the May 5 and May 8 weigh-ins in

her report, combined with evidence in the record that she had

a contentious relationship with Mother (see Joint App. at 310

(describing how Eller found Mother “very offensive from the

beginning of [their] relationship”)), could potentially, upon

further analysis, support a determination that a rational jury

might conclude that her behavior shocked the conscience.

Thus, we must address whether Eller’s conduct is protected

by absolute immunity.

38

absolutely immune only when they are acting in their capacity

as legal advocates – initiating court actions or testifying

under oath – not when they are performing administrative,

investigative, or other functions.”).

But the presence of an investigative component to

Eller’s conduct does not bar the application of absolute

immunity when the function of her actions is still

fundamentally prosecutorial in nature. In Ernst, we noted that

“[t]he Supreme Court has explicitly rejected the idea that

absolute prosecutorial immunity extends only to the act of

initiation itself and to conduct occurring in the courtroom.”

Ernst, 108 F.3d at 497 (citation and internal quotation marks

omitted). Rather, absolute immunity can protect acts

undertaken “in prepar[ation] for the initiation of judicial

proceedings,” so long as they fall within a prosecutor’s “role

as an advocate for the state.” Id. at 497–98 (citation omitted).

Extending that reasoning to apply to child welfare employees,

we concluded in Ernst that absolute immunity protects not

only caseworkers’ presentations of their recommendations to

a court, but also their “gathering and evaluation of

information” to formulate those recommendations and to

prepare for judicial proceedings. Id. at 498. To hold

otherwise, we explained, would expose caseworkers to

liability “for the observations and judgments that were the

necessary predicate” for their protected recommendations,

which would “eviscerate the immunity they did receive and

undermine the purposes sought to be advanced by the grant of

absolute immunity.” Id.

Here, the further investigation that Eller undertook

after Judge Cascio’s initial order, and the subsequent

ChildLine report that Eller filed, were part of an ongoing

39

judicial proceeding throughout which she served as an

advocate for the state. As described above, see supra Part

III.A.2, Eller assumed a fundamentally prosecutorial role

during the May 5 hearing, arguing on behalf of the County for

Daughter’s removal from Mother’s care. Following that

initial removal, Eller undertook her investigation with the

understanding that her conclusions would be considered in a

subsequent custody determination. Judge Cascio’s May 5

order placed Daughter in Father’s custody only “until the

completion of the investigation,” indicating that a second

determination would be made “pending [its] result.” (Joint

App. at 468.) During the June 23 hearing, when that second

determination was made, Eller again represented the County

in recommending that the temporary change of custody be

made permanent. Her investigation was thus conducted in the

context of an open judicial proceeding, throughout which her

overall role was analogous to that of a prosecutor. See Ernst,

108 F.3d at 496 (establishing that caseworkers’ actions are

protected to the extent that they are “intimately associated

with the judicial process in much the same way as are a

prosecutor’s actions in representing the state in criminal

prosecutions” (internal quotation marks omitted)).

In addition to serving in a prosecutorial capacity,

Eller’s specific actions were akin to a prosecutor’s

preparations for trial. Cf. Buckley v. Fitzsimmons, 509 U.S.

259, 273 (1993) (“[T]he actions of a prosecutor are not

absolutely immune merely because they are performed by a

prosecutor.”). During her investigation, Eller was “gathering

and evaluat[ing] information” in preparation for an upcoming

judicial proceeding, see Ernst at 498 (extending absolute

immunity to such preparations), and the observations and

judgments compiled in her ChildLine report served as the

40

basis for her recommendations to Judge Cascio on June 23,

2006. In Ernst, we expressed concern that excluding such

“observations and judgments” from immunity when they

form the “necessary predicate” for protected

recommendations would “undermine the purposes sought to

be advanced by the grant of absolute immunity.” Id. That

concern is similarly implicated here. If we protect Eller when

she presents her recommendations to a judge, but allow her to

be sued for preparing the report that she intends to present,

absolute immunity has offered her no real protection; she will

still have to defend in court the basis for her decision to

recommend removal. Cf. Yarris, 465 F.3d at 135 (concluding

that it is “better to leave unredressed the wrongs done by

dishonest officers than to subject those who try to do their

duty to the constant dread of retaliation” (citation and internal

quotation marks omitted)).

We therefore conclude that Eller’s actions are

protected by absolute immunity with respect to Mother’s

substantive due process claim. We emphasize, however, as

we did in Ernst, that this holding does not insulate from

liability all actions taken by child welfare caseworkers. See

id. at 497 n.7 (“[W]e would be unwilling to accord absolute

immunity to investigative or administrative actions taken by

child welfare workers outside the context of a judicial

proceeding.” (citation and internal quotation marks omitted)).

Investigations conducted outside of the context of judicial

proceedings may still be susceptible to due process claims.

Nor can caseworkers shield their investigatory work from

review merely by seeking a court order at some point. See

Buckley, 509 U.S. at 276 (“[A] prosecutor may not shield his

investigative work with the aegis of absolute immunity

merely because … that work may be retrospectively

41

described as ‘preparation’ … .” (citation omitted)). The key

to the absolute immunity determination is not the timing of

the investigation relative to a judicial proceeding, but rather

the underlying function that the investigation serves and the

role the caseworker occupies in carrying it out. See

Schneyder, 653 F.3d at 332 (“The court must ascertain …

what conduct forms the basis for the plaintiff’s cause of

action, and … then determine what function … that act

served.”). Here, Eller advocated on behalf of the County in

the May 5 meeting and continued in that role through the June

23 custody determination. Because the underlying function

of her actions throughout that judicial proceeding – including

during the investigation and composition of the report – was

fundamentally prosecutorial in nature, she is entitled to

absolute immunity for this claim.

B. Due Process Claims Against the County

Having concluded that none of the claims against Eller

and Barth are viable, we turn now to Mother’s due process

claims against the County. Mother contends that the County

violated her procedural due process rights by failing to afford

her a prompt post-removal hearing after Daughter was

removed from her custody on May 5, 2006, and through

Eller’s actions in meeting ex parte with Judge Cascio on June

23, 2006, and providing him with what Mother alleges is false

information about her treatment of Daughter. She also argues

that the County violated her substantive due process rights

because Daughter’s removal was based on Eller’s

“concoct[ed] facts” and “manipulate[ed] … evidence.”

(Appellant’s Opening Br. at 52.)

42

1. Failure to Provide a Post-Removal

Hearing

Due process is implicated when protected interests

such as a parent’s liberty interest “in the custody, care and

management of [his or her] children” are subjected to

intrusion by the state. Croft, 103 F.3d at 1125. An individual

must ordinarily be afforded “the opportunity to be heard ‘at a

meaningful time and in a meaningful manner’” before any

such intrusion. Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)). The extent of that obligation is, as the Supreme

Court has instructed, a flexible one, based upon a balance of

several factors:

First, the private interest that will be affected by

the official action; second, the risk of an

erroneous deprivation of such interest through

the procedures used, and the probable value, if

any, of additional or substitute procedural

safeguards; and finally, the Government’s

interest, including the function involved and the

fiscal and administrative burdens that the

additional or substitute procedural requirement

would entail.

Id. at 335. Thus, when a parent complains of state action

intruding on the “parent-child relationship,” the parent’s

interest must “be balanced against the state’s interest in

protecting children suspected of being abused.” Miller, 174

F.3d at 373. While the question of what constitutes due

process is necessarily rooted in the circumstances of a given

case, it is axiomatic that at least some process is required

43

when a “state seeks to alter, terminate, or suspend a parent’s

right to the custody of [her] minor children.” McCurdy v.

Dodd, 352 F.3d 820, 827 (3d Cir. 2003).

Mother, as noted, argues that her procedural due

process rights were violated here because she was afforded no

hearing when Daughter was removed through the County’s

practice of transferring custody to another guardian. See

supra Part I.C. Indeed, Mother’s first opportunity to protest

her Daughter’s removal was when she appeared before Judge

Cascio 40 days later in connection with the habeas corpus

proceedings that she herself had initiated.

Adopting the arguments of the Appellees, the District

Court concluded that Mother’s procedural due process rights

were not violated. It reasoned that the May 5, 2006 order

“did not terminate all parental custody rights” but instead

“transferred primary custody from the Natural Mother to the

Natural Father and provided for supervised visitation of the

Natural Mother with the Minor Child.” (Joint App. at 36.)

The Court further concluded that Mother was “receiving and

has received due process” because she had the opportunity to

schedule a hearing and because “[t]he period of forty-five

days during which [the County] concluded its [abuse]

investigation was not an overly lengthy deprivation of the

Natural Mother’s status as primary custodian pending the

completion of the investigation.” (Id. at 36-37.) While the

District Court was right to consider the degree to which the

order intruded upon Mother’s rights in ascertaining what

process was due under the circumstances, see Mathews, 424

U.S. at 335 (instructing courts to consider “the private interest

that will be affected by the official action”), we cannot agree

with its conclusion that Mother received due process.

44

Even if Mathews’s flexible standard permitted less

process here than in a case where the state takes custody of a

child – and that is a question on which we express no opinion

at this time – that would not mean that no hearing was needed

to address the deprivation effected by the removal of

Daughter from Mother’s custody. The deprivation of a

parent’s custodial relationship with a child is among the most

drastic actions that a state can take against an individual’s

liberty interest, with profound ramifications for the integrity

of the family unit and for each member of it. From the

parent’s perspective, there may be little meaningful difference

between instances in which the state removes a child and

takes her into state custody and those in which the state shifts

custody from one parent to another, as occurred here. In

either case, the government has implicated a fundamental

liberty interest of the parent who loses custody. The state has

caused a deprivation and risks having done so wrongly. See

id. (noting “the risk of an erroneous deprivation” must be

considered). Therefore, assuming the “fiscal and

administrative burdens,” id., of affording such parents a

prompt post-removal hearing do not outweigh the need for

one – and it is hard to imagine when they would – such a

hearing ought to be held. 30 Cf. Berman v. Young, 291 F.3d

976, 985 (7th Cir. 2002) (“When the state removes a child

30

It seems plain that requiring a prompt post-removal

hearing would not impose a substantial administrative or

financial burden upon the government in this case, primarily

because such a hearing is already required whenever a county

agency petitions the court for a finding of dependency. See

supra note 11 and accompanying text.

45

from her parents, due process guarantees prompt and fair

post-deprivation judicial review.” (emphasis added)).

It is no adequate response to say, as the District Court

did and as the County continues to argue, that Mother was

given an opportunity to be heard because she filed a habeas

petition on her own and received a hearing in connection with

that. Some courthouse somewhere may be open to someone

aggressive and knowledgeable enough to initiate legal action,

but that does not meet the state’s burden of providing an

“opportunity to be heard at a meaningful time and in a

meaningful manner” to a parent deprived of custody,

Mathews, 424 U.S. at 333 (citation and internal quotation

marks omitted), particularly when, as here, no notice was ever

given as to how a hearing could be scheduled and the hearing

occurred 40 days after Daughter’s removal. 31 Cf. Berman,

291 F.3d at 985 (referring to “prompt and fair post-

deprivation judicial review”). Nor is it sufficient that

Mother’s custodial rights were eventually addressed after

Eller’s abuse investigation was concluded. The constitutional

deprivation at issue at this point is Daughter’s initial removal

from Mother’s home, so being heard much later, after the

deprivation, fails to address the harm.

31

Because it is uncontested that Appellees failed to

initiate a post-removal hearing in this case, we need not, and

do not, opine on the precise contours of the process that

Mother was due. Speaking generally, however, it should be

obvious that a hearing 40 days later is not sufficiently prompt.

The delay should ordinarily be measured in hours or days, not

weeks.

46

Of course, “[t]he right to familial integrity … does not

include a right to remain free from child abuse

investigations.” Croft, 103 F.3d at 1125. However, in view

of the extremely important liberty interests at stake here, due

process required the County to offer Mother a chance to be

promptly heard after they took Daughter from her home,

regardless of whether or not state law independently imposed

that obligation. See Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 541 (1985) (the question of “what process is

due” is a matter of constitutional law, not state law (citation

and internal quotation marks)). And because there is no

dispute about the historical fact that Mother was not offered

the post-removal hearing to which she was constitutionally

entitled, we agree with Mother that the District Court should

have determined that the County violated her right to

procedural due process. 32

32

Had the County acted pursuant to a “protective

custody order,” rather than via an order transferring custody

between parents, its failure to provide a prompt hearing may

have also violated Pennsylvania law. See 42 Pa. Cons. Stat.

Ann. § 6324(1) (permitting the state to take a child into

custody pursuant to “a protective custody order removing a

child from the home of the parent, guardian, or custodian” if

the courts determines “that to allow the child to remain in the

home is contrary to the welfare of the child”). As described

above, see supra note 11, Pennsylvania law requires that an

informal hearing be held if protective custody is maintained

for longer than 72 hours. 23 Pa. Cons. Stat. Ann. § 6315(d).

Here, however, the County never claimed to be taking

Daughter into protective custody, and it transferred Daughter

to Father’s care well before 72 hours had elapsed.

47

That, however, does not end our inquiry, because we

must also determine whether that due process irregularity

resulted in some damage. See Carey v. Piphus, 435 U.S. 247,

264 (1978) (holding that a plaintiff asserting a procedural due

process claim under § 1983 must introduce proof of damages

arising from the alleged due process violation in order to

recover actual damages). The County argues that it did not,

claiming that regardless of “the sufficiency of the process

granted … plaintiffs [cannot] demonstrate that such process

would have borne a different result.” (Appellees’ Br. at 29.)

Thus, the County says, the District Court appropriately

entered judgment in its favor. That is mistaken.

If nothing else, the violation of Mother’s right to

procedural due process would be a basis for awarding

nominal damages. See Carey, 435 U.S. at 266 (“[W]e believe

that the denial of procedural due process should be actionable

for nominal damages without proof of actual injury.”);

Simmons v. Uintah Health Care Special Dist., 506 F.3d 1281,

1286 (10th Cir. 2007) (“Even when one does not prove any

compensable damages from a due process violation, under

Section 1983 a cause of action and nominal damages remain

available.”). More importantly, however, there could be a

finding of actual damages.

The County is blind to that prospect. It asks us to hold

that no rational jury could conclude that a post-removal

hearing would have made a difference, because, as the

County sees it, no one could think the underlying facts are the

least ambiguous: Mother was starving Daughter, and that’s

that. But Daughter was weighed on May 5 and May 8,

immediately after having been in Mother’s care, and those

weights demonstrated a noteworthy improvement in her

48

condition. For that very reason, Dr. Lindblad testified that he

likely “would have waited until another opportunity to

examine [Daughter] before calling the ChildLine,” if he had

been aware of the May 5, 2006 weight of “22 pounds, 2

ounces.” (Joint App. at 369.) Another expert wondered why

Daughter was removed, since she had shown meaningful

improvement while in Mother’s then-recent custody. (See id.

at 695 (“It is unclear to me why the child was removed on a

day when she showed significant weight gain for the first

time while under the mother’s care.”).) Daughter’s May 5

and May 8 weights could have come to light if a post-removal

hearing had been conducted, 33 and, given the significance of

those weights, a reviewing judge may have ordered Daughter

to be returned to Mother’s custody if the judge accepted

Mother’s account of how the weigh-ins were conducted. 34 In

33

Appellees have not directed us to any evidence that

the May 5 and May 8 weights were brought to Judge Cascio’s

attention at the hearing on Mother’s habeas corpus petition,

and we have found none in the appellate record. Even if the

new weights were discussed at that hearing, we would not

necessarily reject Mother’s claim to damages, as the primary

issue at that hearing was not whether Daughter’s removal was

appropriate but, rather, whether the state had an obligation to

conduct a post-removal hearing under the CPSL, given that

Daughter had not been taken into state custody.

34

There are serious questions as to whether the May 5

and May 8 weights were valid results. Our dissenting

colleague indicates that Daughter must have been clothed

when she weighed in at 22 pounds, 2 ounces because Eller

made that first-hand observation on May 5. (see Dissent at 13

(arguing that Daughter “was clothed during [the May 5]

weigh-in”).) So do Appellees, relying on Eller’s testimony

49

short, it is not obvious that the custody determinations would

have been the same, had the information regarding the May 5

and May 8 weights been fully aired.

The only remaining question, then, is whether the

County is accountable to Mother for whatever damages a jury

finds she sustained as a result of that constitutional

that Daughter was clothed when she was weighed on May 5

and May 8. If a jury accepts that testimony, as the dissent

does, it may find that Mother suffered no damages in

connection with the procedural due process violation

committed here. However, despite any suggestion to the

contrary, that testimony is not uncontroverted; Daughter’s

medical record from Berlin Pediatrics lists those weights, and

the only indication that Daughter was clothed was added by

Eller herself. See supra note 17. That Berlin Pediatrics

recorded Daughter’s weights as having increased is

undisputed. Eller’s notation and testimony are disputed,

however, as a physician from that practice testified that it was

the “standard practice” to weigh a child such as Daughter

“without … clothes.” (Joint App. at 371.) Although that

physician did not observe Daughter being weighed on May 5

or May 8, we disagree with the dissent’s implicit conclusion

that the physician’s testimony about the way the clinic

conducted weigh-ins could not be accepted by a rational jury

and lead the jury to then question Eller’s account of how the

May 5 and May 8 weights were taken. (See Dissent at 13

(noting that the doctor “never challenged Eller’s testimony

that, in essence, his protocol was not followed on that

occasion”).) We do not imply how this factual dispute ought

to be resolved; we only note that the dispute exists.

50

violation. 35 With respect to municipalities such as the

County, that inquiry turns on whether the due process

violation was a result of the County’s “policy or custom,

whether made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy.” Monell v.

Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 694

(1978). A policy is a decision of a municipality’s “duly

constituted legislative body” or of “officials whose acts may

fairly be said to be those of the municipality.” Bd. of the

Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403-

04 (1997). A custom is a practice that, although “not …

formally approved by an appropriate decisionmaker … is so

widespread as to have the force of law.” Id. at 404. “In either

of these cases, it is incumbent upon a plaintiff to show that a

policymaker is responsible either for the policy or, through

acquiescence, for the custom.” Andrews v. City of Phila., 895

F.2d 1469, 1480 (3d Cir. 1990); see Chambers ex rel.

Chambers v. Sch. Dist. of Phila Bd. of Educ., 587 F.3d 176,

193 (3d Cir. 2009) (same).

Although the record does not support a conclusion that

the County has a formal policy against providing hearings for

parents such as Mother, the evidence does demonstrate, as the

County essentially admits in its briefing (see Appellees’ Br. at

23 (referring to the County’s “Summary and Order

procedure”)), that, amidst abuse allegations, the County has a

custom of removing children from a parent’s home without

conducting a prompt post-removal hearing if another parent

35

As discussed above, see supra Part III.A, we

conclude that Eller and Barth are absolutely immune from

liability relating to the failure to afford Mother a prompt post-

removal hearing.

51

can take custody. Hunt, the Assistant Director of Somerset

County Children and Youth Services, testified that the

procedure employed to remove Daughter from Mother’s

custody without a hearing is utilized in circumstances in

which there is a “fit-and-willing parent” to be “given the right

by the court to care for the child.” (Joint App. at 330.)

Douglas Walters, a caseworker supervisor at Somerset

County Children and Youth Services, elaborated that the

process is used several times each year, explaining that

caseworkers at the agency would know they could “obtain an

order to stop contact until [the agency] could investigate” in a

case such as Mother’s (id. at 339-340), because they would be

informed of that option “through discussions and meetings,

ongoing meetings, … with the[ir] supervisors,” (id. at 340).

Thus, while the relevant policymaker is not readily

apparent, 36 the evidence shows conclusively that, when a non-

36

“The question of who is a ‘policymaker’ is a

question of state law,” to be addressed by a court, not a jury,

in “determin[ing] which official has final, unreviewable

discretion to make a decision or take an action.” Andrews,

895 F.2d at 1481. Here, the District Court never determined

who the relevant policymaker was, since it simply determined

that Mother’s constitutional rights were not violated.

Although we think it likely that Hunt would qualify as a

policymaker for Monell purposes, the record and briefing is

not sufficient to enable us to definitively answer that question

in the first instance. We need not direct the District Court to

consider that issue afresh on remand, however, because while

“the identification of those officials whose decisions represent

the official policy of the local governmental unit is itself a

legal question to be resolved by the trial judge,” Jett v. Dallas

52

custodial parent is available to take a child, it is customary for

the County to temporarily suspend the other parent’s custody

rights without a hearing, when abuse is suspected. That

custom was utilized with official approbation in this case.

And, because there is no question that what the County calls

its “Summary and Order procedure” (Appellees’ Br. at 23)

violated Mother’s right to a prompt post-removal hearing, we

conclude that the County is liable under § 1983 for whatever

damages a jury may deem appropriate to redress that

violation. See Andrews, 895 F.2d at 1480 (stating that

liability attaches “only when execution of a government’s

policy or custom … inflicts the injury” (citation omitted)).

2. Other Due Process Claims Against the

County

We now briefly turn to Mother’s second procedural

due process claim against the County, which arises from

Eller’s ex parte report of the child abuse investigation to

Judge Cascio on June 23, 2006, and to her substantive due

process claim. There is no evidence supporting § 1983

liability against the County for either claim. Mother does not

allege that the June 23, 2006 meeting with Judge Cascio was

Indep. Sch. Dist., 491 U.S. 701, 737 (1989), Appellees’

effective admission of a custom obviates any need to have a

court “determine, by reference to local law, which … officials

had final policymaking authority,” Simmons v. City of Phila.,

947 F.2d 1042, 1065 (3d Cir. 1991) (Becker, J., concurring);

cf. id. at 1089 n.1 (Sloviter, J., concurring) (“I do agree …

with Judge Becker’s conclusion … that the City waived its

claim that plaintiff failed to identify the responsible

[policymaker] … .”).

53

made pursuant to any policy or custom. Lacking such

evidence, we must conclude that the District Court was

correct in holding that the County is not liable under § 1983

for any alleged constitutional harm arising from that meeting.

See Monell, 436 U.S. at 694 (“[I]t is when execution of a

government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said

to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.”).

Similarly, Mother’s substantive due process claim focuses

entirely on Eller’s conduct, alleging that her “concoct[ion]

[of] facts” and “manipulation of evidence” to effectuate

Daughter’s removal was so egregious that it “shocks the

conscience.” (Appellant’s Opening Br. at 52-53.) Because

Mother provides no evidence that the County had a policy or

custom endorsing such behavior, if it occurred, we agree with

the District Court that the County is entitled to summary

judgment on the substantive due process claim as well.

IV. Conclusion

For the foregoing reasons, we affirm in part and

reverse in part the District Court’s order. We affirm the

District Court’s order to the extent it awarded judgment in

favor of Eller and Barth on the procedural due process claims;

awarded judgment to all Appellees on the substantive due

process claims; and awarded judgment to the County on the

procedural due process claim as it relates to the June 23

meeting. We reverse the District Court’s denial of summary

judgment to Appellant on her procedural due process claim

against the County for its violation of her right to a post-

removal hearing, and we remand this case for a trial on the

damages associated with that violation.

54

B. S., and B.S. as guardian and parent of T.S., G.S., and N.S.,

v. Somerset County; Somerset County Children and Youth

Services; Jessica Eller; Julie Barth, No. 11-1833.

Nygaard, Circuit Judge, concurring in part, dissenting in part.

I agree with the majority that the May 5, 2006

meeting between Eller and Judge Cascio violated procedural

due process, and that the County is liable for this violation. I

also agree that caseworkers Eller and Barth are immune from

liability on this issue. I write separately because I disagree

with the majority on the type of immunity that should be

extended to Eller and Barth, and because I differ on the scope

of the procedural due process remand.

As to the June 23, 2006 ex parte meeting, I conclude

that Eller violated procedural due process, and I would not

grant her any immunity on this claim. Nonetheless, I would

instruct the District Court to award only nominal damages.

Finally, I agree with the majority that B.S.’s

substantive due process claim regarding M.N.’s initial

removal from B.S.’s house does not have any merit.

However, I reach the same conclusion on all of B.S.’s

substantive due process claims. As a result, I do not find any

error in the District Court’s grant of summary judgment on

these claims.

May 5, 2006 Ex Parte Meeting

Absolute Immunity

In light of our long tradition of reluctance to extend the

scope of immunity, I would not adopt the District Court’s

broad interpretation of Ernst as to the May 5, 2006 meeting

between Jessica Eller and Judge Cascio, applying absolute

immunity anytime a court order has been issued, regardless of

the context in which the order came about. I agree that a

functional analysis is appropriate to assess whether it is

proper to extend absolute immunity, but we must take care to

provide such immunity only where it is clear that it comports

with the larger concerns of procedural due process.

As the Supreme Court said:

Advocates are restrained not only

by their professional obligations,

but by the knowledge that their

assertions will be contested by

their adversaries in open court.

Jurors are carefully screened to

remove all possibility of bias.

Witnesses are, of course, subject

to the rigors of cross-examination

and the penalty of perjury.

Because these features of the

judicial process tend to enhance

the reliability of information and

the impartiality of the

decisionmaking process, there is a

less pressing need for individual

suits to correct constitutional

error.

2

Butz v. Economou, 438 U.S. 478, 512 (1978). When a child

welfare worker functions in the nature of a prosecutor in the

context of a judicial process that provides for cross-

examination and rebuttal (eliminating the need for collateral

litigation to challenge the caseworkers conduct), the full array

of considerations appropriate to absolute immunity are

addressed. That is the significance, in Ernst, of our grant of

absolute immunity to caseworkers in the context of

dependency proceedings, a limitation ensuring that the parties

and the court have ample opportunities to scrutinize the

caseworker’s conduct, decisions and recommendations.

Ernst, 108 F.3d at 497; see also Juvenile Act (42 Pa.C.S. §

6324(1)); see also Child Protective Services Act (23 Pa.C.S. §

6315(a)(1)).

For this reason, I cannot accept the majority’s

affirmation of the District Court’s formula for providing

absolute immunity—essentially applying anytime a court is

involved. It provides an overbroad standard that does not

comport with fundamental concerns underlying absolute

immunity. Although Eller’s and Barth’s conduct and

conclusions were placed before a judge in a summary

proceeding, their decisions and actions occurred within a

process structured to ensure that they were never going to be

subjected to cross examination or rebuttal. This is

fundamentally at odds with our long-standing concern to

extend absolute immunity only where procedural due process

is available. Yet, my difficulty with the majority’s conclusion

goes far deeper.

The Court of Appeals for the Ninth Circuit said:

“[S]tate law must authorize the prosecutorial or judicial

function to which absolute immunity attaches.” Chalkboard,

3

Inc. v. Brandt, 902 F.2d 1375, 1379 (9th Cir. 1989). I agree.

In Chalkboard, the Court denied absolute immunity to state

actors, ruling that the Arizona Department of Health Services

was not acting within the “role assigned to it by state law”

when it summarily closed a day care center. Id. The majority

broadly analogizes Eller’s and Barth’s decisions and actions

to those of a prosecutor both because they seem to fall in the

category of functioning as a state advocate, and also because

Eller interacted with the state court. But, even if we ignore

the pro forma and insular nature of the interaction between

Eller and Judge Cascio that call the prosecutorial analogy into

question, a closer analysis reveals that Eller did not have any

statutory authorization to approach the judge to request this

particular order.

The starting point for understanding the state’s

authority in child welfare cases is the dependency process.

“Before interfering with a parent's care and control of a child

and ordering the intervention of an agency of the state, a court

must first determine that the child is dependent.” In Interest

of Theresa E., 429 A.2d 1150, 1155 (Pa. Super. 1981), citing

42 Pa.C.S. § 6341. However, in an emergency, a dependency

determination is not necessary. 1 The Child Protective

Services Law states the following:

1

The Pennsylvania Superior Court said: “in a dependency

proceeding, a court may grant custody of an allegedly

dependent child to that child’s non-custodial parent without

first declaring the child dependent as long as sufficient

evidence of dependency exists.” In Interest of Justin S., 543

A.2d 1192, 1198 n.2 (1988). The Pennsylvania Supreme

Court went further, stating that “where a non-custodial parent

is ready, willing, and able to provide adequate care to a child,

4

A child may be taken into

custody: (1) Pursuant to an order

of the court under this chapter.

Prior to entering a protective

custody order removing a child

from the home of the parent,

guardian or custodian, the court

must determine that to allow the

child to remain in the home is

contrary to the welfare of the

child. (2) Pursuant to the laws of

arrest. (3) By a law enforcement

officer or duly authorized officer

of the court if there are reasonable

grounds to believe that the child is

suffering from illness or injury or

is in imminent danger from his

surroundings, and that his

removal is necessary. (4) By a

law enforcement officer or duly

authorized officer of the court if

there are reasonable grounds to

believe that the child has run

away from his parents, guardian,

or other custodian. (5) By a law

enforcement officer or duly

authorized officer of the court if

there are reasonable grounds to

believe that the child has violated

a court may not adjudge that child dependent.” In re M.L.,

562 A.2D 46, 650 (2000).

5

conditions of his probation.

42 Pa.C.S. § 6324 (emphasis added). A treating physician or

director of a hospital can take a child into protective custody

for up to 24 hours if they determine a child to be in immediate

danger. 23 Pa.C.S. §6315(1). After 24 hours, a county

agency must get an order to authorize an extension of the

protective custody. Id.

Somerset County, Eller and Barth say that they did not

take M.N. into protective custody, nor did they ask the court

to commence a dependency proceeding to determine the

status of the child. Instead, they say, they were merely

transferring custody between parents. As they were keen to

note throughout their argument, this distinction goes far

beyond mere semantics because by seeking this order—unlike

a protective custody order—they avoided all hearing

requirements.

The Child Protective Services Law states that “[i]n no

case shall protective custody under this chapter be maintained

longer than 72 hours without an informal hearing under 42

Pa.C.S. § 6332.” 23 Pa.C.S. § 6315. The hearing is held to

determine:

whether [the child’s] detention or

shelter care is required under

section 6325 (relating to detention

of child), whether to allow the

child to remain in the home would

be contrary to the welfare of the

child . . . [and] [i]f the child is

alleged to be a dependent child,

6

the court or master shall also

determine whether reasonable

efforts were made to prevent such

placement or, in the case of an

emergency placement where

services were not offered and

could not have prevented the

necessity of placement, whether

this level of effort was reasonable

due to the emergency nature of

the situation, safety considerations

and circumstances of the family.

42 Pa.C.S. § 6332. I conclude from this that the state has

statutory authority to seek an order removing the child from a

parent under two circumstances: following a court’s

determination of dependency; and through the mechanism of

a protective custody order where the child is in imminent

danger of harm. Appellees did neither of the above,

removing the child under an order that merely transferred

custody between parents. Again, in this case, the difference

goes beyond mere semantics, since appellees viewed what

they were doing as fundamentally different from the process

established in the statutes. This, according to their own

argument, is why their conduct did not need to be subjected to

the same scrutiny that is dictated in the statutory processes.

They were not initiating a dependency process, nor were they

seeking a protective custody order. Rather, they were merely

initiating a custody process between parents. They were

functioning, therefore, in a different capacity. This is where

the problem arises.

7

Pennsylvania law says the following regarding

standing to bring custody actions.

The following individuals may

file an action under this chapter

for any form of physical custody

or legal custody: (1) A parent of

the child. (2) A person who

stands in loco parentis to the

child. (3) A grandparent of the

child who is not in loco parentis

to the child: (i) whose relationship

with the child began either with

the consent of a parent of the

child or under a court order; (ii)

who assumes or is willing to

assume responsibility for the

child; and (iii) when one of the

following conditions is met: (A)

the child has been determined to

be a dependent child under 42

Pa.C.S. Ch. 63 (relating to

juvenile matters); (B) the child is

substantially at risk due to

parental abuse, neglect, drug or

alcohol abuse or incapacity; or

(C) the child has, for a period of

at least 12 consecutive months,

resided with the grandparent,

excluding brief temporary

absences of the child from the

home, and is removed from the

home by the parents, in which

8

case the action must be filed

within six months after the

removal of the child from the

home.

23 Pa.C.S.A. § 5324. The state is not given standing to, sua

sponte, initiate court proceedings solely to alter the custody

between parents. The problem is that by seeking a custody

order rather than a protective custody order, they functioned

outside of the statutory structure of the Child Protective

Services Law and the Juvenile Act, and more important for

immunity analysis, outside of their statutory authority. 2 The

state has a broad mandate to protect children from abuse, but

it must secure their safety in a manner that is consistent with

their statutory authority. To receive the benefits of absolute

immunity, child welfare workers, like prosecutors, must act

within the confines of their legal authority. By stepping

beyond this boundary, even if they were functioning

prosecutorially, they crossed a bright line and placed

themselves outside of the protective umbrella of absolute

immunity.

2

Pennsylvania courts have been careful to distinguish

dependency proceedings from custody actions. “This Court

has stated strong disapproval of the use of a dependency

proceeding as a means of transferring custody of a child from

one parent to another.” In re A.E., 722 A.2d 213, 215 (Pa.

Super. Ct. 1998); citing Helsel v. Blair County Children and

Youth Services, 519 A.2d 456, 460 (Pa.Super.1986); In the

Matter of Mark T., 442 A.2d 1179, 1182 (Pa.Super.1982)

(Beck, J. concurring).

9

Therefore, for all of the above reasons, I disagree with

the majority and conclude that it is not proper to extend

absolute immunity to Eller and Barth for B.S.’s procedural

due process claim arising from the May 5, 2006 ex parte

meeting. 3

Qualified Immunity for the May 5, 2006 Meeting

I would, instead, affirm the District Court’s alternative

ruling that Eller and Barth should receive qualified immunity.

The qualified immunity analysis is focused on the “‘objective

legal reasonableness of the action, assessed in light of the

legal rules that were clearly established at the time it was

taken.’” Montanez v. Thompson, 603 F.3d 243, 251 (3d Cir.

2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (3d

Cir. 2009). This ‘“gives ample room for mistaken judgments

by protecting all but the plainly incompetent or those who

knowingly violate the law.’” Id. (quoting Gilles v. Davis, 427

F.3d 197, 203 (3d Cir. 2005)). The analysis is objective, but

still requires that we take into account the context in which

3

This conclusion is further supported by the fact that the

caseworkers were not requesting the court to “prosecute”

anything: they were not seeking a court declaration regarding

the status of the child, nor were they asking the court to

adjudicate anything about B.S.’s conduct. Rather, they were

merely attempting to unilaterally change the custody

arrangement between the parents. Denying absolute

immunity here is consistent with our recognition that such

immunity requires “meticulous analysis” of a prosecutor’s

actions. Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008).

10

Eller and Barth acted. Therefore, we must consider a number

of factors.

First, Pennsylvania’s legal landscape is somewhat

confusing. As I noted above, the Pennsylvania Supreme

Court said the following:

[I]t is the duty of the trial court to

determine whether the non-

custodial parent is capable and

willing to render proper parental

control prior to adjudicating a

child dependent. If the court

determines that the custodial

parent is unable to provide proper

parental care and control “at this

moment” and that the non-

custodial parent is “immediately

available” to provide such care,

the child is not dependent under

the provisions of the Juvenile Act.

Consequently, the court must

grant custody of the allegedly

dependent child to the non-

custodial parent. Once custody is

granted to the non-custodial

parent, “the care, protection, and

wholesome mental and physical

development of the child” can

occur in a family environment as

the purpose of the Juvenile Act

directs. 42 Pa.C.S. § 6301(b).

11

In re M.L., 757 A.2d 849, 851 (Pa. 2000) (emphasis added)

(quoting In Interest of Justin S., 543 A.2d 1192, 1200 (Pa.

Super. 1988)). I read this provision as dictating a particular

result after a dependency action has been commenced. Yet,

fairly read, this holding creates the impression that, in

circumstances like that of B.S., a post-deprivation hearing

would be, at best, perfunctory.

Second, the County argued that In re ML and the

Pennsylvania statutes made the dependency process

inapplicable to their summary and order procedure. 4 As a

result, I query whether there existed a sufficiently confusing

environment that would cause a reasonable caseworker to

mistakenly conclude that a post-deprivation hearing was not

required here. I conclude that this is the case. See O'Brien v.

City of Grand Rapids, 23 F.3d 990, 1004 (6th Cir. 1994)

(“The policy, practice, or custom was taught by a national

authority on the management of critical incidents, a person

upon whom it was not unreasonable to rely. The officers’

response, which did not vary from the policy, practice, or

custom, entitles them to qualified immunity.”). Although the

right to a post-deprivation hearing is deeply embedded in our

society, we cannot expect caseworkers to parse state supreme

court precedent and interpret state law in a way that is

contrary to an accepted agency custom. In light of the

confusing legal landscape that exists, it was not unreasonable

for Barth and Eller to rely upon an established agency custom

to guide their handling of the case. For this reason I conclude

that the District Court properly determined that Eller and

4

I am also aware of the pervasive concern for acting in the

best interest of the child.

12

Barth have qualified immunity and are protected from section

1983 liability for the failure to provide B.S. with a post-

deprivation hearing.

Remand on Damages for the May 5, 2006 Meeting

I also disagree with the scope of the majority’s remand

regarding the County’s liability on the procedural due process

violation arising from the May 5, 2006 meeting. I concur

with their conclusion that nominal damages are substantiated,

but disagree that further damages may be appropriate. The

majority concluded that there was a factual dispute about

M.N.’s weight on the day that the County removed her from

B.S.’s custody. I see no such dispute.

My disagreement with the majority is focused upon a

single point of reference in the record: M.N.’s weight on

May 5, 2006, the day she was removed from B.S.’s house.

There is no dispute that the records specify M.N.’s weight on

that day as 22 pounds, 2 ounces. However, Eller, who was

present at the medical exam on that day, stated that M.N. was

clothed during this weigh-in. No one disputes this, nor do

they dispute the fact that prior weights were taken when the

child was not clothed.

M.N.’s pediatrician testified only that, in his practice,

children were usually weighed without clothes. Yet, he was

not present for M.N.’s weigh-in on May 5, 2006 and,

significantly, he never challenged Eller’s testimony that, in

essence, his protocol was not followed on that occasion. It is

axiomatic that, in the absence of any challenge to Eller’s

factual statement, B.S. failed to create a factual dispute.

13

B.S.’s argument, therefore, is that the court would not

have ordered M.N.’s removal, or would have immediately

returned M.N. to her, if she had been able to present this

weight to the court—even though the weight was taken while

M.N. was clothed. In light of the Dr. Lindblad’s diagnosis

and report, 5 and other information before the court at that

time, I do not regard such an inference as reasonable. 6 For

5

At deposition, B.S. presented Dr. Lindblad with a

hypothetical in which M.N.’s weight was actually 22 pounds,

2 ounces on May 5. Under this hypothetical, Lindblad stated

that, while failure to thrive diagnoses are based upon a trend

of data rather than a discreet data point, he would have to take

this information into account before deciding on a failure to

thrive diagnosis. Yet, as with M.N.’s pediatrician, B.S. never

asked Dr. Lindblad to consider the actual data that included

the weight of M.N.’s clothes. Lindblad never commented on

the real data. (Interestingly, however, Linblad detected that

the hypothetical was flawed because he stated that such a

hypothetical weight would have been highly suspect to him

because it diverged so greatly from M.N.’s prior growth.)

The majority’s use of Lindblad’s testimony to suggest that he

retracted his diagnosis and ChildLine complaint diverges

from fact.

6

B.S. fails to raise a dispute of material fact about the

fundamental assertion made in Eller’s summary that she

presented to the court: Dr. Lindblad diagnosed M.N. with

psycho-social failure to thrive due to chronic low weight gain

that, from clinical observation of both M.N. and B.S., likely

was caused by B.S.’s conduct. The court’s decision to

remove M.N. from B.S.’s custody was ultimately based on

this observation and diagnosis. Nothing stated in any of the

14

this reason, I conclude that there is no basis to send the issue

of damages to a jury. I would, instead, remand with

instruction for the District Court to award nominal damages.

June 23, 2006 Ex Parte Meeting 7

reports of the doctors or caseworker specifically addresses,

much less refutes, any of this. Moreover, clarification of

Eller’s reference to 19 pounds would not have materially

changed anything. This is so because, even if B.S. could have

produced credible evidence of a different weight—the

weights taken, for instance, by either of the two physicians

who examined M.N. in late April—the evidence would still

have supported a conclusion that M.N. was severely

underweight while under the care of B.S.

7

In a footnote, B.S. generally states that Eller’s decisions

“had to have the approval of her supervisor and Agency

policy-makers before it could be extended.” Yet, as to the

June 23, 2006 meeting, B.S. failed to detail any specific

challenge to the grant of summary judgment in favor of Barth.

I am aware that, under section 1983, “a supervisor may be

personally liable under § 1983 if he or she participated in

violating the plaintiff’s rights, directed others to violate them,

or, as the person[s] in charge, had knowledge of and

acquiesced in [their] subordinates’ violations.” A.M. ex rel.

J.M.K. v. Luzerne County Juvenile Detention Center, 372

F.3d 572, 586 (3d Cir. 2004); see also Santiago v.

Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010). In this

case, however, B.S.’s failure to raise a specific challenge as to

Barth waives the issue of the District Court’s decision

15

As to the June 23, 2006 meeting between Eller and

Judge Cascio, I disagree with the majority that there is any

basis to extend absolute immunity to Eller on the procedural

due process claim. Like the May 5 meeting, even if I agreed

that the conduct can be analogized as prosecutorial, Eller had

no authority to approach the court to propose another custody

order. As a result, there is no basis for absolute immunity.

Qualified Immunity

My disagreement with the majority on the June 23

meeting goes further in that I would not extend even qualified

immunity to Eller. As I noted in the discussion of the May 5,

2006 meeting, the constitutional protection against ex parte

meetings is well-established. I concluded that qualified

immunity was due in that instance, however, because of the

combination of a confusing legal landscape and a County

custom that misguided the caseworkers actions. Yet, for the

June 23, 2006 meeting, there was no applicable County

custom. This, to me, is decisive. Eller, acting in discernibly

non-emergency circumstances, made the decision to meet ex

parte with Judge Cascio on June 23. There is no evidence to

suggest that Eller did so at the behest of any County

authority, nor was she ordered to do so by the court.

Therefore, I must conclude that she acted on her own.

Accordingly, there is no basis to conclude that Eller made a

reasonable mistake by approaching Judge Cascio ex parte.

granting qualified immunity to Barth for liability arising from

the June 23, 2006 meeting with the court.

16

Nonetheless, as with the May 5, 2006 ex parte meeting, I

would award only nominal damages because there is no

reasonable basis to infer that the outcome of the meeting

would have been different if B.S. had been given the

opportunity to confront the evidence.

As with the May 5 meeting, the inquiry on the June 23

meeting focuses on whether B.S.’s inability to confront

information provided at the meeting prejudiced the outcome. 8

Yet, as I noted in my analysis of injury arising from B.S.’s

8

Eller gave the court the summary and proposed order,

neither of which provided any details about the investigation.

The summary stated only that upon completion of its

investigation regarding serious physical neglect, “[t]he CY-48

was filed on June 19, 2006 with Childline and substantiated

[B.S.], the natural mother, as the perpetrator.” The proposed

order stated only that “due to the indicated report of serious

physical neglect whereby B.S. is the perpetrator, it is hereby

ordered . . . .” Nonetheless, by the time of the second hearing

the County had completed its CY-48 investigation,

determining that Lindblad’s accusation of child neglect by

B.S. was “indicated.” B.S. plainly disputes the conclusion of

the summary given to the court and disagrees with the

custody recommendation, but the focus of her challenge is

with information that is contained in or left out of the CY-48.

For the sake of summary judgment—since the report was

filed before the hearing—I would assume that B.S. had an

opportunity to read it and formulate the objections that she

voices in this appeal. Moreover, I would presume that her

presence at the June 23 meeting would have provided her

with a forum to raise numerous issues with the investigation.

17

other procedural due process claim, I do not find any

reasonable basis for the District Court to have inferred that

the state court would have made a decision more favorable to

B.S. based upon the weight record from the May 5 doctor

appointment. The state court’s ignorance of this record was

of no moment. The same reasoning applies here. 9

As to the May 8 weight record, according to Eller, the

natural father reported the child was also clothed during this

weigh-in. However, even were we to disregard Eller’s

undisputed testimony here because she was not physically

present at the examination, I note that this weight was taken

after M.N had been in the custody and care of her natural

father for three days. As a result, it would not have been

reasonable for the District Court to construe this weight

record as evidence favorable to B.S.’s claims of constitutional

harm, since –objectively—it arose from the period of time in

which the natural father, not B.S., had custody of M.N.

We are required to make only reasonable inferences at

summary judgment.

Because B.S.’s issues with the CY-48 are predicated

on the May 5 and May 8 weights, weights that do not support

B.S.’s claims, I must conclude that all of the issues that B.S.

raises regarding the report are baseless. Therefore, lacking

any reasonable challenge to Eller’s recommendation, there is

no evidentiary support for actual prejudice arising from the

9

There is no evidence that this record was actually submitted

with the CY-48. For purposes of summary judgment, I

presume that it was.

18

June 23 meeting between Eller and the state court and,

therefore, no evidence of actual, compensable, harm. Yet, as

with the May 5, 2006 procedural due process violation, I

would remand to the District Court with instructions to award

nominal damages.

Substantive Due Process Claim 10

As to the substantive due process claim, I agree with

the majority that, as to B.S.’s substantive due process claims

arising from M.N.’s removal, no reasonable fact-finder could

rule that Eller’s actions shock the conscience. I differ from

both of my colleagues, however, in reaching the same

conclusion for all of B.S.’s substantive due process claims. I,

therefore, do not reach the issue of absolute immunity on this

issue.

Eller acted originally upon the report of one of M.N.’s

attending physicians, who had sustained contact with both

M.N. and B.S. over a period of time. Moreover, the

physician’s suspicions of serious neglect arose from

observations he made that were grounded in his field of

medical expertise. Eller’s subsequent investigation gathered

a large amount of data, which provided a very consistent

description of M.N. as one who was severely underweight

while under the care of B.S. and who gained weight

appropriately while under the care and supervision of others.

Finally, while the weight of 22 pounds, 2 ounces is,

10

I agree with the majority that that B.S. waived the

substantive due process issue as to Barth and the County.

19

technically, over the threshold for a failure to thrive

diagnosis, the margin by which it exceeds it is extremely

slight. Additionally, the weight from May 5 (and the May 8

weight) is a notable outlier when charted with all of M.N.’s

recorded weights. This is important in light of Lindblad’s

testimony that his assessment arose from long-term patterns

that he observed, rather than discrete data points. Viewed in

this larger context, even if I could have concluded that Eller

mishandled the May 5 or May 8 weight records, her

misstatement or misjudgments could hardly be regarded as

egregious or conscience shocking.

B.S. attempts to tie all of the alleged errors together by

claiming that Eller had an agenda throughout this time to

deprive her of custody in favor of the natural father. The

problem, however, is that B.S. did not substantiate this

theory. She pointed to one possibly uncommon statement in

the May 5 order requiring her to refrain from “badgering or

harassing the agency staff, belitteling [sic] any service

providers or the natural father.” She claims that this is

evidence that Eller had a negative view of her. Yet, B.S. fails

to produce any evidence from which the District Court could

have reasonably inferred such an agenda against her, much

less a causal link to the caseworker’s conduct. Without this,

her entire substantive due process claim fails.

Accordingly, I do not find any error in the District

Court’s decision to grant summary judgment in favor of Eller

regarding B.S.’s substantive due process claims.

20