                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                    File Name: 08a0124p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                        X
                                                         -
 MELODY SMITH; DAVID SMITH; MARI KATLYN
                                                         -
 SMITH, By Next Friends and Parents of Melody and
                                                         -
 David Smith; MALAKE DANCER, By Next Friends
                                                         -
                                                             No. 06-4638
 and Custodians Melody and David Smith; DAVID
                                                         ,
 SMITH II, By Next Friends and Parents Melody and         >
 David Smith,                                            -
                                Plaintiffs-Appellants, -
                                                         -
                                                         -
                                                         -
            v.
                                                         -
                                                         -
 JUDY WILLIAMS-ASH, Hamilton County Job &
 Family Services,                                        -
                                 Defendant-Appellee. -
                                                         -
                                                        N
                         Appeal from the United States District Court
                        for the Southern District of Ohio at Cincinnati.
                       No. 04-00234—S. Arthur Spiegel, District Judge.
                                 Argued: December 6, 2007
                            Decided and Filed: March 26, 2008
               Before: DAUGHTREY, GILMAN, and COOK, Circuit Judges.
                                    _________________
                                         COUNSEL
ARGUED: Stephen R. Felson, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, for Appellants.
Michael G. Florez, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for
Appellee. ON BRIEF: Stephen R. Felson, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA,
Cincinnati, Ohio, for Appellants. Michael G. Florez, HAMILTON COUNTY PROSECUTOR’S
OFFICE, Cincinnati, Ohio, for Appellee.
         COOK, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. GILMAN,
J. (pp. 6-8), delivered a separate dissenting opinion.




                                              1
No. 06-4638          Smith et al. v. Williams-Ash                                              Page 2


                                       _________________
                                           OPINION
                                       _________________
        COOK, Circuit Judge. David and Melody Smith filed this 42 U.S.C. § 1983 action against
Judy Williams-Ash—a social worker employed by the Hamilton County Department of Jobs and
Family Services (“Children’s Services”)—claiming violation of their due process right to a hearing
before the temporary removal of their children from their home. The district court granted summary
judgment in favor of Williams-Ash, holding that the Smiths were not entitled to a hearing because
they consented to the removal of their children pursuant to a voluntary “safety plan.” We agree and
affirm.
                                                 I
        David and Melody Smith are the parents of two minors and the legal custodians of another
minor, Malake Dancer. The Smiths have custody of Malake—a nine-year-old who suffers from
cerebral palsy and other disabilities—through a “kinship program” administered by Children’s
Services. Pursuant to this program, Richard Montifore, a Children’s Services employee, inspected
the Smith home in 2004. He found a home so “filthy” that he felt uncomfortable leaving Malake
and the other children in the house. Lori Patton—another social worker—viewed the residence and
also concluded that the children needed to leave. Patton found dog feces under one child’s bed and
so much “clutter” in the house that, in her opinion, the children could not evacuate in the event of
a fire.
        These unsanitary and dangerous conditions spurred Montifore to call the police (the Smiths
were later charged with and convicted of misdemeanor child endangerment). The next day,
Children’s Services assigned Williams-Ash to the case. She persuaded the Smiths to consent to a
safety plan that removed the children from the Smiths’ home and placed them with friends in the
neighborhood. With the children in nearby homes, the Smiths maintained close contact—they
visited, arranged outings, and drove the children to and from school.
       The safety plan informed the Smiths, “[Y]our decision to sign this safety plan is voluntary,”
and read:
       1.      This safety plan is a specific agreement to help ensure your child(ren)’s
               safety.
       2.      The custody of your child(ren) does not change under this safety plan.
       3.      Children’s Services is here to help you protect your child(ren) when you may
               not be able to do it on your own.
       4.      If you cannot or will not be able to continue following the plan, Children’s
               Services may have to take other action(s) to keep your child(ren) safe.
       5.      The safety plan will end when you are able to protect your child(ren) without
               help from Children’s Services.
       6.      This safety plan may be changed if new or different services are necessary.
       7.      You must contact your caseworker immediately if you decide that you cannot
               or will not be able to continue following the plan.
No. 06-4638              Smith et al. v. Williams-Ash                                                     Page 3


As a part of ensuring the children’s safety, the plan prohibited the Smiths from bringing the children
to their home.
       Once the parties agreed to the plan and placed the children in safe homes, Williams-Ash
launched an investigation into the Smiths’ long-term ability to care for the minors. Over the next
two weeks, Williams-Ash interviewed the Smiths, the children, the children’s doctors, the temporary
caregivers, and the Smiths’ therapist. She also re-inspected the Smiths’ home.
        The Smiths allege that during this time they cleaned their house and repeatedly asked
Williams-Ash what else they needed to do to allow the children to return. They allege that
Williams-Ash ignored their requests for information and threatened to permanently remove their
children if they stopped cooperating. Though the record before the district court includes Williams-
Ash’s response regarding additional requirements necessary to permit the children’s return,
including doctors’ reports about the state of the children’s health, we take the Smiths’ allegations
to be true for purposes of summary judgment.
        After two weeks, the Smiths filed this action against Williams-Ash in her individual capacity
for violating their substantive and procedural due process rights.1 Children’s Services terminated
the safety plan two days later and returned the children—seventeen days after they were removed.
        Williams-Ash moved the district court to dismiss, citing her right to qualified immunity. The
denial of that motion precipitated the first appeal of this case. It resulted in a dismissal of the
Smiths’ substantive due process claims, and an affirmance of the denial of qualified immunity,
because judging the Complaint only, it set up a violation of the Smiths’ clearly established right to
procedural due process. Smith v. Williams-Ash, 173 F. App’x 363, 366–67 (6th Cir. 2005) (per
curiam). Although Williams-Ash argued in her first appeal that the safety plan was voluntary, the
panel assumed that Children’s Services acted without the Smiths’ consent because Williams-Ash
failed to enter the plan into the record. Id. at 366. The court invited Williams-Ash to reassert her
qualified immunity defense “based upon a more complete record.” Id. at 367 n.1.
                                                        II
       This court reviews the grant of a motion for summary judgement de novo, Westfield Ins. Co.
v. Tech Dry Inc., 336 F.3d 503, 506 (6th Cir. 2003), and will neither “make credibility
determinations [nor] weigh the evidence,” Adams v. Metiva, 31 F.3d 375, 384 (6th Cir. 1994) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Instead, we “view the evidence and
draw all reasonable inferences therefrom in the light most favorable to the non-moving party.”
Baker v. City of Hamilton, 471 F.3d 601, 603 (6th Cir. 2006) (quoting Little v. BP Exploration &
Oil Co., 265 F.3d 357, 361 (6th Cir. 2001)).
                                                        III
       To state a viable 42 U.S.C. § 1983 claim, the Smiths must demonstrate that (1) they were
deprived of a right, privilege, or immunity secured by the Constitution or laws of the United States
and (2) the deprivation was caused by a person acting under color of state law. Flagg Bros. v.
Brooks, 436 U.S. 149, 155 (1978); Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). Here,
no one disputes that Williams-Ash acted under the color of state law, only whether she deprived the
Smiths of their right to procedural due process.
        “[U]nder the [Fourteenth Amendment], the parent-child relation gives rise to a liberty interest
that a parent may not be deprived of absent due process of law.” Kottmyer v. Mass, 436 F.3d 684,

       1
           The Complaint also named Richard Montifore but the Smiths later dismissed the claim against him.
No. 06-4638            Smith et al. v. Williams-Ash                                                 Page 4


689 (6th Cir. 2006). “Notice and an opportunity to be heard are necessary before parental rights can
be terminated.” Ahn v. Levi, 586 F.2d 625, 632 (6th Cir. 1978).
       Williams-Ash acknowledges that Children’s Services removed the Smith children from their
home without affording the Smiths a hearing. She insists, however, that she did not violate the
Smiths’ due process rights because she removed the children with the Smiths’ consent.
       We agree, adopting the reasoning set forth by Judge Posner in Dupuy v. Samuels, 465 F.3d
757 (7th Cir. 2006). In Dupuy, an appeal challenging a preliminary injunction issued in a suit
against Illinois’s child welfare agency, the Seventh Circuit reviewed the constitutionality of
voluntary safety plans similar to the one at issue here. The court held that when a parent voluntarily
consents to a safety plan, “no hearing of any kind is necessary; hearings are required for deprivations
taken over objection, not for steps authorized by consent.” Id. at 761–62.
        Although the parents in Dupuy argued that safety plans are inherently coercive when
agencies force parents to sign the plan or face the threat of formal removal proceedings, the court
found no fault in this strategy. “It is not a forbidden means of ‘coercing’ a settlement,” Judge Posner
stated, “to threaten merely to enforce one’s legal rights.” Id. at 762. He analogized the agency’s
threat to a plaintiff’s legitimate threat to press a case to trial in order to induce a defendant to settle.
Id. The defendant’s choice between accepting a settlement or risking a harsher outcome at trial “is
a dilemma implicit in any settlement process. If there weren’t a downside to refusing to settle, there
would be no settlements.” Id. at 761.
        In this case, the Smiths remained in the safety plan voluntarily at all times. Although our
dissenting colleague questions whether the Smiths were coerced into the plan, not even the Smiths
argue that they involuntarily consented to enter into the plan. Rather, they only argue that they
“were not allowed to recover their children after the Safety Plan had been initiated despite their best
efforts,” Appellants’ Br. at 17 (emphasis in original), invoking the principle announced in Farley
v. Farley that the consent given as part of a voluntary safety plan may become involuntary during
the course of the plan. 225 F.3d 658, Nos. 98-6114/6115, 2000 U.S. App. LEXIS 17580, at *5 (6th
Cir. July 19, 2000) (unpublished). But here, in light of the Smiths’ admitted failure to utilize the
safety plan’s clear, simple mechanism for rescinding the plan, they fail to raise a genuine issue of
material fact with respect to their continuing consent to the plan.
        In addition to informing the Smiths that their agreement with Children’s Services relied on
their voluntary participation (“[Y]our decision to sign this safety plan is voluntary”), the safety plan
instructed the Smiths to inform Williams-Ash if they no longer wanted to participate (“You must
contact your caseworker immediately if you decide that you cannot or will not be able to continue
following the plan.”). As the district court correctly concluded, the Smiths never alleged that they
attempted to contact Williams-Ash—or anyone else at Children’s Services—to revoke their consent.
Rather than take this intuitive step, the Smiths retained counsel and sued for damages.
Unsurprisingly, after Children’s Services first received notice (through the lawsuit) that the Smiths
renounced the safety plan, it promptly terminated the plan and returned the children to the Smiths’
home.
        The Smiths concede their failure to revoke pursuant to the plan’s instruction to alert
Williams-Ash. As they see it though, their repeated inquiries to Williams-Ash about both her
investigation’s length and what they needed to do to speed the children’s return “amounted to the
same thing” as an explicit demand to terminate the safety plan. Appellants’ Br. at 15.
        The plain-language form provided to the Smiths undercuts their argument. It told them to
revoke their consent by advising their caseworker. To have opted out of the plan would have
triggered consequences: Children’s Services would either return the Smiths’ children or seek to keep
No. 06-4638              Smith et al. v. Williams-Ash                                                       Page 5


the children with their temporary caregivers by filing a civil complaint against the Smiths. See Ohio
Rev. Code § 2151.353(A)(2) (authorizing Ohio’s juvenile courts to award temporary custody of
neglected children to a public services agency). Questioning about the timing of a procedure opted
for to avoid the potential of a more onerous one—a formal custody proceeding—cannot tenably be
viewed as equivalent to opting out. We do not doubt that the Smiths, as any parents likely would,
resented the safety plan from the beginning. But mere displeasure and frustration fails to negate
their consent. Rather than remind Williams-Ash of what she already knew—that they disliked the
plan—the Smiths needed to explicitly withdraw the consent they explicitly gave, thus requiring
Children’s Services to either return the children or file a formal complaint2 against them. In light of
their admitted failure to do so, the Smiths were not entitled to a hearing.
                                                        IV
        For these reasons, we affirm.




        2
          Given this conclusion, we do not reach Williams-Ash’s arguments that absolute and qualified immunity shield
her from liability.
No. 06-4638           Smith et al. v. Williams-Ash                                              Page 6


                                         ________________
                                             DISSENT
                                         ________________
        RONALD LEE GILMAN, Circuit Judge, dissenting. Because I believe that there is a
genuine issue of material fact as to whether the Smiths’ consent to the safety plan was voluntary,
I respectfully dissent.
                                           I.   CONSENT
         There is no question that “the parent-child relationship gives rise to a fundamental liberty
interest that a parent may not be deprived of absent due process of law,” Kottmyer v. Maas, 436 F.3d
684, 689 (6th Cir. 2006), and that “notice and an opportunity to be heard are necessary before
parental rights can be terminated.” Anh v. Levi, 586 F.2d 625, 632 (6th Cir. 1978). Although
Williams-Ash acknowledges that Children’s Services removed the three children in question without
a hearing, she insists that she did not violate the Smiths’ due process rights because they voluntarily
consented to the removal of their children when they signed the safety plan. The Smiths, on the
other hand, argue that they have presented sufficient evidence to raise a genuine issue of material
fact as to whether they voluntary consented to enter into the plan and whether their consent became
involuntary during the course of the plan.
         The majority contends that Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006), a case involving
the constitutionality of voluntary safety plans, is decisive here. I respectfully disagree. The parents
in Dupuy argued that the state agency had coerced their consent by threatening to formally remove
their children from them. No fault was found in this threat, however, because the agency had the
valid legal authority to remove the children. Id. at 762-63. Noting that “[i]t is not a forbidden
means of ‘coercing’ a settlement to threaten merely to enforce one’s legal rights,” the court held that
when a parent voluntarily enters into a safety plan, “no hearing of any kind is necessary [because]
hearings are required for deprivations taken over objection, not for steps authorized by consent.”
Id. at 761-62.
        The Dupuy decision, however, is distinguishable from the present case. Dupuy rests on the
premise that the threat of action made by the state agency was grounded in proper legal authority
and, therefore, the consent given by the parents was not coerced. Id. at 762-63. The court in Dupuy
specifically found that the agency threatened to enforce only its valid legal right to initiate a formal
custody proceeding against the parents. Id. at 761-62. Dupuy acknowledged, however, that consent
garnered through misrepresentations or other wrongful means would be involuntary if it was “not
grounded in proper legal authority” or granted as the result of “duress or extortion.” Id. at 762-63.
        In the present case, Melody Smith’s affidavit provided sworn testimony that Williams-Ash
made a number of threats that Williams-Ash had no legal right to make. Melody Smith specifically
stated that Williams-Ash told the Smiths that (1) if they did not participate in the safety plan, they
would be put in jail, (2) if they did not follow her instructions, “the children [would not] come home,
period,” (3) if the kids stepped foot in the Smiths’ house, the Smiths would be put in jail and they
would never get the kids back, and (4) if the Smiths attempted to withdraw from the safety plan,
such withdrawal would result not only in formal custody proceedings against them, but they would
be sent to jail.
        Because imprisonment is not a permissible consequence of the failure to participate in a
voluntary safety plan, Williams-Ash had no legal basis to make such threats. If the Smiths’
allegations are true, then Williams-Ash’s threats go beyond simply warning the Smiths that
Children’s Services would move forward to enforce a valid legal right. A jury could therefore
No. 06-4638           Smith et al. v. Williams-Ash                                              Page 7


conclude that the Smiths’ participation in the safety plan was the result of forbidden “duress or
extortion.” Dupuy, 465 F.3d at 762; see also Croft v. Westmoreland County Children & Health
Servs., 103 F.3d 1123, 1125 n.1 (3d Cir. 1997) (finding the caseworker’s conduct “blatantly
coercive” in securing a parent’s voluntary departure from the house by improperly threatening to
place his four-year-old daughter in foster care).
        Alternatively, the Smiths argue that, even if they are found to have originally agreed to the
safety plan voluntarily, their consent became involuntary during the course of the plan. They assert
that they “were not allowed to recover their children after the Safety Plan had been initiated despite
their best efforts to do so,” and that William-Ash “thwarted” their attempts to regain custody of their
children. Specifically, the Smiths allege that Williams-Ash told them that if they did not obey the
plan, she “would see to it that the children didn’t come home, period,” that she responded to their
requests for the return of their children by telling them that they should just “enjoy their time alone
without the kids,” and that she told them that any attempt to withdraw from the voluntary plan would
result in formal custody proceeding, jail, and loss of custody of the children.
        This court in Farley v. Farley, 225 F.3d 658, Nos. 98-6114/6 115, 2000 U.S. App. LEXIS
17580 (6th Cir. July 19, 2000) (unpublished), found that consent given as part of a voluntary safety
plan may become involuntary during the course of the plan. The mother in Farley voluntarily
agreed to a safety plan that allowed her two children to stay with their father, but that left her with
legal custody of the children during the course of the plan. Id. at *4. When the mother eventually
sought the return of her children, the agency told her that it had 60 days to conduct the investigation
and refused to return them. Id. at *5. Only after the mother sought the assistance of the district
attorney were the children returned to her. Id. In considering whether the social worker was
entitled to qualified immunity, the Farley court held that the mother’s due process rights were
clearly violated because her consent “was not voluntary during the entire time period involved.”
Id. at *14.
       Like the mother in Farley, the Smiths claim that their consent became involuntary during
the course of the plan. The district court declined to give their argument credence because, despite
the Smiths’ many attempts to secure the return of their children, they did not explicitly state that
they could not or would not continue following the plan. The terms for withdraw stated in the
safety plan, however, were somewhat vague. The plan stated only: “You must contact your
caseworker immediately if you decide that you cannot or will not be able to continue following the
plan.”
        The Smiths allege that they repeatedly contacted Williams-Ash as required by the terms of
the safety plan, that they made repeated attempts to get specifics from Williams-Ash as to what they
needed to do to recover their children, and assert that Williams-Ash threatened them with jail and
permanent loss of custody if they withdrew from the plan. Their decision to hire an attorney to
secure the return of their children also strongly suggests that their consent to the plan had become
involuntary, and the fact that the children were returned to the Smiths two days after they filed a
lawsuit, without any further investigation on the part of Children’s Services, suggests that the
agency may not have had good reason for continuing to detain the children. I therefore conclude
that the Smiths have raised a genuine issue of material fact as to whether they continued to consent
to the safety plan, and that the district court erred in granting summary judgment to Williams-Ash
on that ground.
                                         II.   IMMUNITY
       Neither the majority opinion nor the district court reached the issue of whether
Williams-Ash is entitled to absolute or qualified immunity. Because I believe that the Smiths’
procedural due process claim should survive summary judgment, I must address the question of
No. 06-4638           Smith et al. v. Williams-Ash                                               Page 8


immunity. I conclude that Williams-Ash is not entitled to absolute immunity, but I would remand
to the district court the question of whether she is entitled to qualified immunity.
        This circuit has strictly tied absolute immunity to either in-court conduct or conduct that
was otherwise “intimately associated” with the judicial process. Holloway v. Brush, 220 F.3d 767,
774 (6th Cir. 2000). Social workers are therefore “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.” Id. 220 F.3d at 775.
Because all of Williams-Ash’s alleged conduct here occurred out of court, she functioned as a
service provider and an investigator—not as an in-court advocate—and is therefore not entitled to
absolute immunity.
        As for qualified immunity, the Supreme Court requires the use of a two-step inquiry to
decide whether a defendant is entitled to such immunity. Scott v. Harris, 127 S. Ct. 1769, 1774
(2007); Hudson v. Hudson, 475 F.3d 741, 745 (6th Cir. 2007). The court must first consider
whether the defendant’s conduct violated a constitutional right of the plaintiff. Saucier v. Katz, 533
U.S. 194, 201 (2001). If a constitutional violation occurred, the court must then consider whether
the violated right was clearly established at the time the violation occurred. Brosseau v. Haugen,
543 U.S. 194, 198 (2004). Because, as discussed above, the question of whether William-Ash’s
conduct violated the Smiths’ constitutional rights hinges on the factual question of whether the
Smiths voluntarily consented to the safety plan, this issue should be initially resolved by the district
court.
                                       III.   CONCLUSION
         I believe that a genuine issue of material fact exists as to whether the Smiths’ initial and
continuing consent to the safety plan was voluntary. I would therefore reverse the judgment of the
district court and remand the case for further proceedings.
