                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               JUL 06 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


JANETTE DUNKLE,                                  No.   17-35525

              Plaintiff-Appellant,               D.C. No. 3:14-cv-00005-RRB

 v.
                                                 MEMORANDUM*
JENNIFER DALE, in her individual
capacity; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Alaska
                   Ralph R. Beistline, District Judge, Presiding

                          Submitted June 12, 2018**
                     Anchorage Old Federal Building, Alaska

Before: THOMAS, Chief Judge, and CALLAHAN and BEA, Circuit Judges.

      The Alaska Office of Children’s Services took custody of A.F. within days

of her birth without first obtaining a warrant because her mother, Janette Dunkle,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
had a long history of substance abuse, and opiates were found in A.F. when A.F.

was born. Dunkle filed this action alleging that her constitutional rights were

violated when A.F. was removed from her custody. After a remand from the Ninth

Circuit, the district court granted summary judgment in favor of the defendants,

certain Alaska social workers, and an Alaska State Trooper all of whom were

involved in the removal of A.F from Dunkle’s custody. Dunkle appeals arguing

that the district court erred (1) in granting the defendants qualified immunity

pursuant to our opinion in Kirkpatrick v. City of Washoe, 843 F.3d 784 (9th Cir.

2016) (en banc); and (2) in ruling that the Jennifer Dale, a social worker, was

entitled to summary judgment on Dunkle’s claim that Dale had given false

evidence in the state proceedings that led to the termination of Dunkle’s parental

rights to A.F.1

      1. In 2016, in Kirkpatrick, 843 F.3d 784, we held that it violated a mother’s

constitutional rights to take custody of a newborn baby in a hospital because the

baby tested positive for illegal drugs without first obtaining a warrant. However,

we further held that at that time, “[n]o matter how carefully a social worker had

read our case law, she could not have known that seizing [the baby] would violate



      1
              Because the parties are familiar with the factual and procedural
history of the case, we need not recount it here.
                                          2
federal constitutional law,” and thus, “[w]ithout that fair notice, the social workers

in this case are entitled to qualified immunity.” Id. at 793.

      In our case, the defendants took custody of A.F. in 2012, four years before

our decision in Kirkpatrick. We are bound by our opinion in Kirkpatrick that

social workers would not have known prior to our decision that taking a newborn

baby who tested positive for illegal drugs without a judicial warrant violated the

mother’s constitutional rights. Accordingly, we affirm the district court’s grant of

qualified immunity in favor of the defendants. See Kennedy v. City of Ridgefield,

439 F.3d 1055, 1065 (9th Cir. 2006) (“Our task is to determine whether the

preexisting law provided the defendants with ‘fair warning’ that their conduct was

unlawful.”).

      2. The district court recognized that a prima facie showing that Dale made

deliberate falsehoods to the Alaska court would deprive her of the shield of

qualified immunity. Chism v. Washington State, 661 F.3d 380, 393 (9th Cir.

2011). However, Dunkle had the burden of making a substantial showing that

Dale deliberately lied or recklessly disregarded the truth, and that, but for her

dishonesty, the state courts would not have terminated Dunkle’s parental rights.

Id. at 386.




                                           3
      The evidence in the record rebuts Dunkle’s assertion that Dale deliberately

lied. The most that Dunkle has shown is that Dale’s statements may have reflected

a misunderstanding or have been based on an incomplete record. Furthermore, the

decisions by the Alaska courts show that Dunkle’s parental rights were terminated

based on Dunkle’s history of drug use and failure to seek adequate treatment, her

history of entering into destructive and abusive relationships, and her failure to

visit A.F. after A.F. was approximately a month old. Findings, Conclusions, and

Order Terminating Parental Rights and Responsibilities, Disposition, and

Permanency Findings, In re A.F., No. 3PA-12-3CN (Alaska Super. Ct., Oct. 22,

2012). Dunkle’s relationship history, her drug use, and her failure to visit A.F.

soon after A.F. was born are undisputed facts. Thus, Dale’s representations to the

state courts, even if misleading, were not material to the state courts’ decisions.

We affirm the district court’s dismissal of Dunkle’s claims against Dale.

AFFIRMED.2




      2
             Appellees’ motion to supplement the record for judicial notice and to
file the document is granted. The proffered transcript is ordered filed under seal.
Appellant’s motion to strike appellees’ supplemental except of record is denied.
                                           4
