     This memorandum opinion was not selected for publication in the New Mexico Appellate
     Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished
     memorandum opinions. Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court
     of Appeals and does not include the filing date.



 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 MARIA VALDEZ and VICENTE VALDEZ,
 3 Individually and as Parents and Next Friends
 4 of K.V., a minor,

 5          Plaintiffs-Appellants,

 6 v.                                                                  NO. A-1-CA-35363

 7   RICHARD ESTRADA, Individually and in
 8   his Official Capacity, and NEW MEXICO
 9   CHILDREN, YOUTH & FAMILIES
10   DEPARTMENT,

11          Defendants-Appellees,

12 and

13   CARLSBAD MEDICAL CENTER, L.L.C.,
14   and JANE and JOHN DOES, Unidentified
15   Employees of Carlsbad Medical Center and
16   New Mexico Children, Youth & Families
17   Department,

18          Defendants.

19 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
20 David K. Thomson and Jennifer L. Attrep, District Judges

21 Mark J. Klecan
22 Albuqueruqe, NM
                                                                                           


 1 for Appellants

 2   Montgomery & Andrews, P.A.
 3   Walter S. Melendres
 4   Seth C. McMillan
 5   Kari E. Olson
 6   Santa Fe, NM

 7 for Appellees

 8                            MEMORANDUM OPINION

 9 VARGAS, Judge.

10   {1}   Maria and Vicente Valdez (collectively, Plaintiffs) challenge the district

11 court’s order dismissing their 42 U.S.C. § 1983 (2012) claims on qualified

12 immunity grounds. Because the conduct that is the subject of this suit was

13 objectively reasonable under the circumstances at the time, we conclude the district

14 court properly concluded that qualified immunity precluded Plaintiffs’ claims

15 brought pursuant to 42 U.S.C. § 1983. This determination being dispositive of the

16 remaining issues in this appeal, we affirm.

17 BACKGROUND

18   {2}   Plaintiffs filed a lawsuit when their newborn child (Child) was removed

19 from their custody because Maria’s routine urinalysis tested positive for

20 amphetamines and barbiturates, but a subsequent test revealed that result was

21 likely a false positive. In their complaint, Plaintiffs brought nine claims against the

22 hospital, the New Mexico Children, Youth and Families Department (CYFD),


                                              2 
      
                                                                                             


 1 Richard Estrada in his individual and official capacity as a CYFD employee

 2 (collectively, Defendants), as well as other unidentified hospital employees. Only

 3 five of the claims are relevant to this appeal: two claims under 42 U.S.C. § 1983,

 4 one for a violation of due process rights (Count 1) and the other for unreasonable

 5 seizure (Count 2); a claim alleging a violation of the New Mexico Inspection of

 6 Public Records Act (IPRA), NMSA 1978 §§ 14-2-1 to -12 (1941, as amended

 7 through 2018) (Count 7); a claim for direct and vicarious liability for punitive

 8 damages (Count 8); and a claim for prima facie tort (Count 9).

 9   {3}   CYFD and Estrada filed motions to dismiss Counts 8 and 9 in April 2014,

10 which the district court granted, dismissing those counts with prejudice. In June

11 2015, CYFD and Estrada filed another motion to dismiss, this time seeking

12 dismissal of Counts 1, 2, and 7. The district court granted the motion with respect

13 to Counts 1 and 2, dismissing them with prejudice, and denied the motion as to

14 Count 7. Plaintiffs appeal the district court’s orders dismissing Counts 1, 2, 8, and

15 9.

16 DISCUSSION

17   {4}   Plaintiffs argue that the district court erred in dismissing Counts 1 and 2 on

18 qualified immunity grounds and that the district court applied the incorrect

19 standard in reaching its decision on that issue. In considering Plaintiffs’ arguments,

20 we note that 42 U.S.C. § 1983 does not itself create or establish specific rights, but


                                              3 
      
                                                                                             


 1 instead provides a cause of action for monetary damages against a state official in

 2 his individual capacity in circumstances where the official has violated a plaintiff’s

 3 constitutional rights. Starko, Inc. v. Gallegos, 2006-NMCA-085, ¶ 10, 140 N.M.

 4 136, 140 P.3d 1085. Qualified immunity is both a defense to liability and

 5 entitlement not to stand trial, Chavez v. Bd. of Cty. Comm’rs of Curry Cty., 2001-

 6 NMCA-065, ¶ 10, 130 N.M. 753, 31 P.3d 1027, is intended to protect “all but the

 7 plainly incompetent or those who knowingly violate the law[,]” and is withheld

 8 only in exceptional cases. Cockrell v. Bd. of Regents of N.M. State Univ., 1999-

 9 NMCA-073, ¶ 8, 127 N.M. 478, 983 P.2d 427 (internal quotation marks and

10 citation omitted). “The applicability of qualified immunity is a question of law that

11 we review de novo.” Starko, Inc., 2006-NMCA-085, ¶ 11.

12   {5}   In evaluating a claim of qualified immunity, we begin by examining whether

13 a violation of a constitutional right was alleged. Id. ¶ 13. If it was, we then consider

14 “whether the relevant law was clearly established at the time of the alleged

15 violation of the constitutional right.” Chavez, 2001-NMCA-065, ¶ 15. “To be

16 clearly established, the contours of the right must be sufficiently clear that a

17 reasonable official understands that what he is doing violates that right.” Kennedy

18 v. Dexter Consol. Sch., 2000-NMSC-025, ¶ 10, 129 N.M. 436, 10 P.3d 115

19 (alteration, internal quotation marks, and citation omitted). This prong of our

20 analysis is straightforward, as Plaintiffs’ complaint alleges the removal of Child


                                              4 
      
                                                                                            


 1 from their custody violated their Fourth and Fourteenth Amendment rights, and our

 2 case law recognizes “a clearly established right to familial integrity . . . embodied

 3 in the Fourteenth Amendment[.]” Oldfield v. Benavidez, 1994-NMSC-006, ¶ 14,

 4 116 N.M. 785, 867 P.2d 1167.

 5   {6}   Having confirmed that Plaintiffs alleged a violation of a constitutional right

 6 that was clearly established at the time of the challenged conduct, we consider

 7 “whether the official’s conduct was objectively reasonable in light of the law at the

 8 time of the challenged conduct.” Chavez, 2001-NMCA-065, ¶ 15. In other words,

 9 we must determine whether a reasonable person in Estrada’s position would have

10 known his or her conduct violated Plaintiffs’ right to familial integrity. This

11 reasonableness inquiry is objective, see Romero v. Sanchez, 1995-NMSC-028, ¶¶

12 4, 24, 119 N.M. 690, 895 P.2d 212, and we consider Defendants’ actions in light of

13 the law at the time of the alleged conduct, Chavez, 2001-NMCA-065, ¶ 15, not

14 with hindsight, but “in the context of circumstances with which Defendants were

15 confronted.” Oldfield, 1994-NMSC-006, ¶ 17 (internal quotation marks and

16 citation omitted).

17   {7}   Although it is beyond dispute that the general right to familial integrity is

18 clearly established, that right is not absolute. See id. ¶¶ 15-16 (acknowledging that

19 “the parameters of the right have never been clearly established” and noting that

20 liberty interest in family relations is limited by government interest in protecting


                                              5 
      
                                                                                                


 1 minor children). Instead, the right to familial integrity involves a weighing of the

 2 parents’ rights against the interest of the child and the state. Id. ¶ 15. “The state has

 3 a right—indeed, duty—to protect minor children” that encompasses protecting

 4 children from abuse and situations where abuse might occur, as well as promoting

 5 the health, education, and welfare of children. Id. ¶¶ 15-16. Because of these

 6 countervailing interests and the balancing that accompanies familial relationship

 7 liberty interests, “it is difficult, if not impossible, for officials to know when they

 8 have violated clearly established law.” Id. ¶ 15 (internal quotation marks and

 9 citation omitted). This is particularly true in light of the state’s ability to investigate

10 and terminate the parent-child relationship subject to certain constitutionally

11 mandated procedures and precedent recognizing that, even without parental

12 consent or prior court order, officials may still temporarily deprive a parent of

13 custody in emergency circumstances. Id. ¶ 16; cf. Chavez, 2001-NMCA-065, ¶ 24

14 (recognizing rule that Fourth Amendment’s exigent circumstances exception to the

15 warrant requirement applies to situations in which an officer has reasonable

16 grounds to believe that immediate action is necessary to safeguard a child from

17 imminent harm or injury). Thus, where the facts of the case render an official’s

18 conduct objectively reasonable under the circumstances, the conduct does not

19 violate clearly established law for purposes of our qualified immunity analysis. Cf.

20 Romero, 1995-NMSC-028, ¶ 22.


                                                6 
    
                                                                                            


 1   {8}   The facts of this case, according to Plaintiffs’ complaint, are that Maria

 2 Valdez was administered a routine urinalysis upon admission to the hospital, that

 3 the urinalysis test rendered a positive result for amphetamines and barbiturates, and

 4 that CYFD, acting through Estrada, removed Child from Plaintiffs’ custody as a

 5 result of that positive drug test without first providing Plaintiffs with a hearing or

 6 seeking additional testing. See generally Mendoza v. Tamaya Enters., 2011-

 7 NMSC-030, ¶ 5, 150 N.M. 258, 258 P.3d 1050 (stating that when reviewing a Rule

 8 1-012(B)(6) NMRA motion to dismiss, the court must accept all facts in the

 9 complaint as true to determine whether the plaintiff may prevail under any state of

10 the facts alleged). The positive urinalysis results made it objectively reasonable for

11 Estrada to believe that Maria Valdez had ingested a controlled substance while

12 pregnant. Given the safety concerns associated with a child born to a mother

13 ingesting a controlled substance, it was also reasonable for Estrada to act under a

14 belief that intervention was necessary to the child’s safety. Cf. NMSA 1978, §

15 32A-4-3(C) (2005) (requiring that the investigation into report of abused or

16 neglected child “shall ensure that immediate steps are taken to protect the health or

17 welfare of the alleged abused or neglected child); NMSA 1978, § 32A-4-2(B)(4)

18 (2009, amended 2018) (defining an “abused child” as one “whose parent . . . has

19 knowingly, intentionally or negligently placed the child in a situation that may

20 endanger the child’s life or health” (emphasis added)); see also NMSA 1978, §


                                             7 
      
                                                                                            


 1 32A-4-6(A)(1) (2009, amended 2015) (authorizing law enforcement to take child

 2 into custody where there is “evidence giving rise to reasonable grounds to believe

 3 that the child is abused . . . and that there is an immediate threat to the child’s

 4 safety”). We view Estrada’s conduct through the lens of facts known at the time.

 5 The knowledge, gained through hindsight, that the urinalysis results were a false

 6 positive, does not bear on our analysis. See Oldfield, 1994-NMSC-006, ¶ 17.

 7   {9}   Plaintiffs argue the district court erred in the application of the Abuse and

 8 Neglect Act, NMSA 1978, §§ 32A-4-1 to -35 (1993, as amended through 2018).

 9 We interpret Plaintiffs’ argument regarding the Abuse and Neglect Act as an

10 attempt to point out Estrada’s failure to follow statutorily delineated procedures.

11 Although Plaintiffs complain of a failure to satisfy Section 32A-4-4(D)’s two-day

12 post-removal hearing requirement, that statutory subsection refers only to CYFD’s

13 obligation to file an abuse and neglect petition within two days of taking a child

14 into custody. It is unclear from the briefing or record whether CYFD complied, and

15 Plaintiffs do not specifically raise that as an issue—rather, they lament the lack of

16 process generally. Given our analysis of qualified immunity, however, the lack of

17 procedure was objectively reasonable conduct, for which Estrada is entitled to

18 qualified immunity. We need not discuss this issue further in light of Plaintiffs’

19 failure to cite to the record or develop an intelligible argument. See Headley v.




                                             8 
      
                                                                                              


 1 Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076

 2 (stating that this Court does not consider unclear or undeveloped arguments).

 3   {10}   Plaintiffs also argue the district court incorrectly applied a summary

 4 judgment standard to its analysis of the qualified immunity issue. We disagree. The

 5 district court’s order sets forth a detailed statement of the correct legal standard to

 6 be applied to a motion to dismiss, and there is nothing in the record or in Plaintiffs’

 7 briefing to indicate the district court applied a summary judgment standard in

 8 reaching its decision on qualified immunity. Further, Plaintiffs have not explained

 9 how a consideration of Defendants’ motions under the summary judgment standard

10 would have harmed their case. See Murken v. Solv-Ex Corp., 2006-NMCA-064, ¶

11 6, 139 N.M. 625, 136 P.3d 1035 (stating that this Court will not address

12 contentions not supported by argument and authority). Indeed, even if the district

13 court had applied a summary judgment standard, it would not have altered the

14 outcome. Although both standards utilize different verbiage, both require the court

15 to view the evidence in a manner favorable to Plaintiffs. Compare Freeman v.

16 Fairchild, 2018-NMSC-023, ¶ 14, 416 P.3d 264 (setting forth summary judgment

17 standard by stating that appellate courts must “view the facts in a light most

18 favorable to the party opposing summary judgment and draw all reasonable

19 inferences in support of a trial on the merits” (internal quotation marks and citation

20 omitted)), with Mendoza, 2011-NMSC-030, ¶ 5 (setting forth standard for review


                                              9 
      
                                                                                            


 1 of motion to dismiss pursuant to Rule 1-012(B)(6) and stating that “we accept as

 2 true all facts pleaded in the complaint”).

 3   {11}   To the extent that the district court’s order refers to a standard typically

 4 associated with summary judgment, it does so only in its denial of Defendants’

 5 motion to dismiss Count 7, Plaintiffs’ claims under IPRA. Plaintiffs acknowledge

 6 that Count 7 is still before the district court, and nothing in the record indicates the

 7 district court has addressed the merits of Plaintiffs’ IPRA claim. Indeed, the denial

 8 of a motion to dismiss for failure to state a claim generally gives rise to an

 9 interlocutory appeal, rather than a final determination that is immediately

10 appealable, and Defendants did not seek interlocutory review. See King v. Allstate

11 Ins. Co., 2007-NMCA-044, ¶ 8, 141 N.M. 612, 159 P.3d 261 (acknowledging that

12 denial of motion to dismiss is generally not an appealable, final order); Smoot v.

13 Physicians Life Ins. Co., 2004-NMCA-027, ¶¶ 5-6, 135 N.M. 265, 87 P.3d 545

14 (reviewing denial of motion to dismiss under Rule 1-012(B)(6) on interlocutory

15 appeal). Because Plaintiffs’ Count 7 remains apparently unresolved in the district

16 court, we need not address the merits of the claim or discuss the standard the

17 district court used in denying the motion to dismiss that claim. See Gutierrez v.

18 Gutierrez, 1993-NMCA-103, ¶ 3, 116 N.M. 86, 860 P.2d 216 (declining to address

19 issue on appeal due to lack of district court determination on the merits and

20 inapplicability of collateral order doctrine).


                                                10 
      
                                                                                               


 1   {12}   Plaintiffs also seek reversal of the district court’s dismissal of Counts 8 and

 2 9, but they have not presented any argument, citation to the record, or authority to

 3 support their request. See Rule 12-318(A)(4) NMRA (requiring that brief in chief

 4 contain “an argument which, with respect to each issue presented, shall contain a

 5 statement of the applicable standard of review, the contentions of the appellant,

 6 and a statement explaining how the issue was preserved in the court below, with

 7 citations to authorities, record proper, transcript of proceedings, or exhibits relied

 8 on[,]” as well as citation to applicable New Mexico decisions). Although Plaintiffs

 9 briefly discuss Counts 8 and 9 in the background section of their brief in chief,

10 they do not offer any legal argument on the merits of these claims, and as such,

11 have abandoned these issues on appeal. See Allred v. N.M. Dep’t of Transp., 2017-

12 NMCA-019, ¶ 68, 388 P.3d 998 (concluding that issues raised but not briefed with

13 legal argument are deemed abandoned); State ex rel. Children, Youth & Families

14 Dep’t v. Patricia N., 2000-NMCA-035, ¶ 19, 128 N.M. 813, 999 P.2d 1045

15 (deeming issue abandoned where party failed to present argument or authority in

16 briefing to appellate court). We therefore do not review the district court’s order

17 granting Defendants’ motion to dismiss Counts 8 and 9. See Murken, 2006-

18 NMCA-064, ¶ 6 (stating that this Court will not address contentions not supported

19 by argument and authority).

20 CONCLUSION


                                              11 
      
                                                                                 


1   {13}   We affirm the district court’s order.

2   {14}   IT IS SO ORDERED.



3                                           _________________________________
4                                           JULIE J. VARGAS, Judge




5 WE CONCUR:



6 _________________________________
7 J. MILES HANISEE, Judge



8 _________________________________
9 HENRY M. BOHNHOFF, Judge




                                              12 
     
