                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                    PUBLISH                   August 26, 2014
                                                            Elisabeth A. Shumaker
                  UNITED STATES COURT OF APPEALS                Clerk of Court

                               TENTH CIRCUIT



 LEGINA and TODD THOMAS,

             Plaintiffs - Appellants,
 v.                                                   No. 13-2076
 MARY KAVEN, Ph.D.; JILL
 STRAITS, Ph.D.; and ANILLA DEL
 FABBRO, M.D., in their individual
 capacities,

             Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                (D.C. NO. 2-12-CV-00381-JCH-LAM)


Laura Schauer Ives, ACLU of New Mexico (Maureen A. Sanders, Sanders &
Westbrook PA, Albuquerque, New Mexico, and Matthew Garcia, Garcia Ives
Nowara, Albuquerque, New Mexico, with her on the briefs), Albuquerque, New
Mexico, for Appellants.

Mark J. Riley (Courtenay L. Keller and Tiffany L. Sanchez with him on the brief)
Riley, Shane & Keller, P.A., Albuquerque, New Mexico, for Appellees.


Before TYMKOVICH, EBEL, and PHILLIPS, Circuit Judges.


TYMKOVICH, Circuit Judge.
      Legina and Todd Thomas are parents of M.T., a twelve-year-old girl at the

time of the events at issue in this case. The Thomases placed M.T. in the

University of New Mexico Children’s Psychiatric Center after she revealed

suicidal tendencies during a police investigation of a potential sexual assault.

Doctors diagnosed her as exhibiting several serious psychiatric problems and

recommended a prescription of psychotropic drugs. The Thomases resisted the

doctors’ diagnoses and recommendations. M.T. was evaluated for several weeks

until Mrs. Thomas decided to remove her from the hospital. Concerned about her

safety, M.T.’s doctors and therapist placed M.T. on a medical hold and pursued

an involuntary residential treatment petition in state court. But, after a seven-day

hold, M.T. was released before the involuntary commitment proceedings began.

      The Thomases claim the doctors and the hospital violated their

constitutional right to direct M.T.’s medical care and their right to familial

association. The Thomases allege that the defendants violated their right to

familial association when they placed a medical hold on M.T. and when they filed

the petition for involuntary residential treatment in state court. The defendants

filed a motion to dismiss, asserting absolute and qualified immunity. The district

court granted the motion on qualified immunity grounds, and the Thomases

appealed.

      We agree with the district court that the Thomases have not stated a claim

for a violation of their right to direct M.T.’s medical care. But we hold that the

                                         -2-
Thomases have stated a claim for a violation of the right to familial association

for the defendants’ placing a medical hold on M.T. and seeking an order for

involuntary residential treatment in state court. The defendants cannot establish

as a matter of law at this point in the proceedings that the relevant state interests

outweighed the Thomases’ interest in their right to familial association. Under

this standard, some factual development is necessary before the court can

determine whether the defendants’ actions were justified and they are thus

entitled to qualified immunity for this claim.

      We therefore AFFIRM in part and REVERSE in part and remand for further

proceedings.

                                  I. Background

      The relevant events occurred over the course of several weeks during April

and May 2010. 1 On April 12, 2010, the Thomases learned that M.T. may have

had sexual contact with a friend’s older brother in the preceding few days. The

Thomases asked the Lea County Sheriff’s Department to investigate. M.T.

expressed to the investigating officer that she wanted to harm herself, and the

officer became concerned she was suicidal. Another officer conducted a suicide

prevention screen and found M.T. was at risk of hurting herself. M.T. was


      1
         Because this case is on appeal from a motion to dismiss for failure to
state a claim, Fed. R. Civ. P. 12(b)(6), we accept all well-pleaded factual
allegations in the complaint as true. See Moore v. Guthrie, 438 F.3d 1036, 1039
(10th Cir. 2006). We present the facts as articulated in the complaint.

                                          -3-
transported to a local hospital for an evaluation. There, hospital staff and a

representative from the New Mexico Child, Youth, and Families Department

(CYFD) became concerned that M.T. would harm herself if sent home. The

Thomases allege a CYFD representative told Mrs. Thomas that, if she did not

consent to transfer her daughter to a state facility for a mental health evaluation,

CYFD would assume custody. The Thomases consented to the transfer and

evaluation, and M.T. was taken to the University of New Mexico Children’s

Psychiatric Center in Albuquerque, five hours from the plaintiffs’ home.

      On April 13, M.T. was admitted to the psychiatric center. During intake,

the plaintiffs explained that, although they were concerned about M.T.’s

statements expressing suicidal thoughts, they were inclined to believe she was not

truly suicidal and was only trying to divert attention from the incident with her

friend’s older brother. M.T. told doctors a changing story, first reporting she

previously attempted suicide thirty times but then saying she had three attempted

suicides. In contrast, the Thomases told doctors that they were unaware of any

suicide attempts.

      On April 14, M.T.’s treating psychiatrist, Anilla Del Fabbro, spoke with

Mrs. Thomas by phone and explained she believed M.T. was suffering from

depression and possible schizophrenia and was experiencing hallucinations. Del

Fabbro recommended M.T. be placed on a specialized type of psychotropic

treatment to treat her depression. Del Fabbro also opined that the treatment

                                          -4-
would help with M.T.’s academic performance and behavioral issues in school.

Mrs. Thomas replied that M.T. had no problems in school and had not

experienced hallucinations before. She refused permission for the psychotropic

regimen and expressed a desire to explore alternative treatments before the use of

medication.

      On April 16, Del Fabbro again telephoned Mrs. Thomas to request

permission to treat M.T. and reported that M.T. confessed she had been suffering

hallucinations for years. Mrs. Thomas refused, reiterating her position that M.T.

was being dishonest with her physicians. She also stated she researched the

proposed medical treatment on the Internet and was wary of its potential side

effects. She faxed Del Fabbro several documents supporting her position that

M.T. did not have behavioral problems in school. In light of the Thomases’

refusal to allow psychotropic treatment, the defendants determined that M.T.

should go to a residential treatment facility upon release from UNMCPC rather

than back home. Plaintiffs initially agreed to consider such a plan.

      On April 20, Dr. Mary Kaven conducted a psychological evaluation on

M.T. Mrs. Thomas was unavailable to participate in person, and was told by Jill

Straits, M.T.’s therapist at UNMCPC, that Mrs. Thomas could only receive the

complete evaluation in person. Straits did reveal, however, that M.T. was

diagnosed with major depressive disorder, borderline personality disorder, and

early-onset schizophrenia. Straits further told Mrs. Thomas that doctors believed

                                         -5-
M.T. had an intellectual disability, and, because M.T. had been diagnosed with

petite mal seizures as a child, the combination of the mental disability,

schizophrenia, and the seizures may combine to result in M.T. never returning to

reality. Mrs. Thomas expressed skepticism and told Straits that M.T. was in the

gifted program at school and she had not suffered a seizure since she was a

toddler. The summation of the doctors’ diagnoses caused Mrs. Thomas to lose

faith in the doctors’ assessments of M.T.

      On April 26, Del Fabbro again called Mrs. Thomas seeking permission to

treat M.T. with psychotropics, as well as anti-psychotic medication and melatonin

supplements. Mrs. Thomas refused permission and asked for a fax of the

psychological evaluation. Del Fabbro informed her the evaluation would only be

provided in person.

      On April 27, Straits contacted CYFD to express concern about plaintiffs’

disregard of the doctors’ recommendations and their refusal to allow

administration of psychotropic drugs. The next day, Mrs. Thomas agreed to come

to Albuquerque to meet with physicians, promising to listen to their

recommendations with an open mind but expressing an inclination to sign M.T.

out of the facility. Following this conversation, Straits again contacted CYFD

and this time accused Mrs. Thomas of medical neglect for failing to follow the

doctors’ recommendations.




                                         -6-
      Two days later, Mrs. Thomas met with defendants to discuss M.T.’s

evaluation. Kaven informed her that M.T.’s diagnosis was major depressive

disorder with psychosis, borderline traits, and post-traumatic stress. She noted

that plaintiffs’ medical insurance was very good and would cover almost

anything, which prompted defendants to put M.T. on a waitlist for a residential

treatment facility without seeking her parents’ authorization. Mrs. Thomas told

defendants she did not believe M.T. was suicidal or experiencing hallucinations

and again declined to consent to psychotropic medical treatment. Del Fabbro

informed Mrs. Thomas the defendants did not believe she was competent to make

medical decisions on her child’s behalf. Fearing that Mrs. Thomas would remove

M.T. from the hospital, on April 29, Del Fabbro placed M.T. on a medical hold so

that Mrs. Thomas could not obtain her release that day. 2

      The next day, Del Fabbro reported the Thomases to CYFD for medical

neglect for failure to consent to psychotropic treatment for M.T.’s psychosis. On

May 4, the defendants’ petition for involuntary residential treatment was filed in

state court in order to confine M.T. at UNMCPC for a period not to exceed sixty




      2
         The Thomases allege the defendants placed a five-day hold on M.T., but
the record demonstrates that they placed a seven-day hold on her.

                                         -7-
days. 3 The hospital notified the Thomases that the hearing would take place in

Bernalillo County Second Judicial District Court on May 10.

      On May 5, Straits telephoned Mrs. Thomas to tell her to pick up her

daughter immediately because the Thomases’ insurance carrier would no longer

cover the costs of M.T.’s hospitalization. The defendants concluded there was an

adequate safety plan in place to prevent imminent harm to M.T. They discharged

M.T. on May 6 and abandoned the involuntary commitment petition. On May 7,

despite the discharge, Kaven again reported the plaintiffs to CYFD for medical

neglect for not believing the diagnoses and refusing to allow administration of

psychotropic drugs. Nothing came of the report, and M.T. returned to school and

experienced no further problems arising from the incident.

      The Thomases sued under 42 U.S.C. § 1983, claiming the defendants

violated their Fourteenth Amendment right to direct their child’s medical care and

the right to familial association. 4 The defendants asserted defenses of absolute

and qualified immunity and filed a motion to dismiss. The district court granted

the motion to dismiss, holding the defendants were entitled to qualified immunity.




      3
         Although Straits was the only person designated as the state court
petitioner, the complaint states that all three defendants were involved in the
decision to abandon the petition. We will construe the complaint to allege that all
three defendants were involved in the decision to file the petition.
      4
         The plaintiffs also brought a First Amendment associational claim, which
the district court dismissed without objection.

                                        -8-
The court concluded that the complaint did not state a claim for violations of

clearly established rights to direct medical care and to familial association.

                                   II. Analysis

      The Thomases argue the district court erred in granting the defendants’

motion to dismiss. At this stage in the case, they contend the complaint alleges

sufficient facts to sustain their claims that the defendants knowingly deprived the

Thomases of their clearly established rights to direct M.T.’s medical care and to

familial association.

      We review a Rule 12(b)(6) dismissal de novo. Cressman v. Thompson, 719

F.3d 1139, 1144 (10th Cir. 2013). “At the motion-to-dismiss stage, we must

accept all the well-pleaded allegations of the complaint as true and must construe

them in the light most favorable to the plaintiff.” Id. at 1152. To survive

dismissal, “a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). “The plausibility standard is not akin to a probability

requirement, but it asks for more than a sheer possibility that a defendant has

acted unlawfully.” Id.

      A. Absolute Immunity

      The defendants first argue they are entitled to absolute immunity for

initiating a medical hold on M.T. and filing a petition for involuntary residential



                                          -9-
treatment in state court. 5 The defendants argue that, because their actions were

“intimately associated” with the judicial process, they are entitled to absolute

immunity. Scott v. Hern, 216 F.3d 897, 909 (10th Cir. 2000).

      Absolute immunity offers certain government officials total protection from

a suit for damages under 42 U.S.C. § 1983. Mink v. Suthers, 482 F.3d 1244, 1258

(10th Cir. 2007). Prosecutors are “absolutely immune for those activities

‘intimately associated with the judicial phase of the criminal process.’” Id. at

1259 (quoting Imbler v. Pacthman, 424 U.S. 409, 430 (1976)). But the Supreme

Court has made clear that absolute immunity is not available for “those aspects of

the prosecutor’s responsibility that cast him in the role of an administrator or

investigative officer rather than that of advocate.” Imbler, 424 U.S. at 430–31.

      In limited circumstances, absolute immunity is also available to other

government officials “who perform functions closely associated with the judicial

process.” Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); see also Butz v.

Economou, 438 U.S. 478, 515 (1978) (“We also believe that agency officials

performing certain functions analogous to those of a prosecutor should be able to

claim absolute immunity with respect to such acts.”). Officials who “seek


      5
         The Thomases argue that, because the district court held defendants were
entitled to qualified immunity, the defendants must file a cross-appeal to seek
absolute immunity. But because the defendants are asking this court to affirm the
grant of immunity on an alternate basis without enlarging the scope of its own
rights—i.e., immunity from suit—the defendants need not file a cross-appeal. See
Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1271 n.33 (10th Cir. 2011).

                                        -10-
exemption from personal liability” on the basis of absolute immunity bear “the

burden of showing that such an exemption is justified by overriding

considerations of public policy.” Forrester v. White, 484 U.S. 219, 224 (1988).

       “In determining whether particular acts of government officials are eligible

for absolute immunity, we apply a ‘functional approach . . . which looks to the

nature of the function performed, not the identity of the actor who performed it.’”

Malik v. Arapahoe Cnty. Dep’t of Soc. Servs., 191 F.3d 1306, 1314 (10th Cir.

1999) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)). “The more

distant a function is from the judicial process, the less likely absolute immunity

will attach.” Snell v. Tunnell, 920 F.2d 673, 687 (10th Cir. 1990). We have

recognized, for example, that social workers may be entitled to absolute immunity

in limited circumstances. See id. (“The courts have looked to the particular task a

defendant was performing and its nexus to the judicial process rather than

deciding that social workers or guardians ad litem as a class are entitled to

absolute immunity.”). In this circuit, aspects of civil commitment proceedings

can provide government officials the basis for absolute immunity. See Hern, 216

F.3d at 909. 6

       6
         The Supreme Court has not addressed the question of whether social
workers can gain absolute immunity from suit for actions functionally analogous
to a prosecutor’s duties. But at least one Justice has noted potential problems
with making absolute immunity available to social workers. See Hoffman v.
Harris, 511 U.S. 1060 (1994) (Thomas, J., dissenting from denial of petition for
writ of certiorari) (“The courts that have accorded absolute immunity to social
                                                                       (continued...)

                                         -11-
        The same limitations that apply to granting absolute immunity to

prosecutors also apply to other government officials. In Snell, we held that the

crucial distinction for determining whether a social worker was entitled to

absolute immunity was whether the social worker was acting in a way

functionally analogous to a prosecutor or in an investigative capacity. Id. at 689.

Because the social workers in that case sought a custody order as part of their

investigation into child abuse and before any petition was filed to adjudicate the

status of the child, the social workers were acting in an investigative capacity. Id.

at 690. In concluding the social workers could claim only qualified immunity, we

held that “[a] social worker seeking a pre-petition order for protective custody

functions like a police officer seeking an arrest warrant; a functional approach to

immunity requires that those performing like functions receive like immunity.”

Id. 7

        6
        (...continued)
workers appear to have overlooked the necessary historical inquiry; none has
seriously considered whether social workers enjoyed absolute immunity for their
official duties in 1871. If they did not, absolute immunity is unavailable to social
workers under § 1983.”); see also Margaret Z. Johns, A Black Robe Is Not A Big
Tent: The Improper Expansion of Absolute Judicial Immunity to Non-Judges in
Civil-Rights Cases, 59 SMU L. Rev. 265, 285–90 (2006).
        7
         Other circuits agree that absolute immunity does not protect social
workers acting in an investigative capacity, but that it does protect social workers
acting in a prosecutorial capacity—such as when initiating child custody
proceedings in court. See, e.g., Holloway v. Brush, 220 F.3d 767, 775 (6th Cir.
2000) (“[S]ocial workers are absolutely immune only when they are acting in
their capacity as legal advocates—initiating court actions or testifying under
                                                                        (continued...)

                                         -12-
      The Thomases urge us to find that the defendants’ roles in seeking

involuntary commitment were not akin to the role of a prosecutor. They argue,

rather, that filing an involuntary residential treatment petition is more akin to the

role of a complaining witness. The Supreme Court has held that a complaining

witness, as opposed to an official acting in a prosecutorial capacity, is not entitled

to absolute immunity. See Rehberg v. Paulk, 132 S. Ct. 1497, 1507 (2012)

(explaining that a complaining witness “refer[s] to a party who procured an arrest

and initiated a criminal prosecution”); Kalina v. Fletcher, 522 U.S. 118, 130

(1997) (denying absolute immunity to prosecutor who stepped into role of fact

witness when she attested to the truth of facts supporting a warrant); Wyatt v.

Cole, 504 U.S. 158, 164–165 (1992) (a complaining witness “set[s] the wheels of

government in motion by instigating a legal action”). The relevant distinction for

absolute immunity purposes is whether the official’s actions are prosecutorial or

testimonial; is the prosecutor acting as an advocate for the state or as fact

witness? See Kalina, 522 U.S. at 129–30.

      We need not fully decide this difficult question in this case. The injury

alleged by the Thomases derived solely from the defendants’ decision to place


      7
       (...continued)
oath—not when they are performing administrative, investigative, or other
functions.”); Meyers v. Contra Costa Cnty. Dep’t of Soc. Servs., 812 F.2d 1154,
1157 (9th Cir. 1987) (“[S]ocial workers are entitled to absolute immunity in
performing quasi-prosecutorial functions connected with the initiation and pursuit
of child dependency proceedings.”).

                                         -13-
M.T. on a seven-day emergency medical hold. Of course, the defendants were

then statutorily required to obtain a court order to continue involuntary residential

treatment. See N.M. Stat. § 32A-6A-20(J). But M.T. was discharged before any

court proceedings began. Although the petition was pending for part of the time

the medical hold was in effect (the petition was filed five days later), no causal

connection exists between the commencement of judicial proceedings and the

Thomases’ injury. The infringement on the Thomases’ right to familial

association stemmed solely from the emergency medical hold the defendants

placed on M.T prior to the filing of the petition.

      Even if we were to find a causal connection between the filing of the

petition and the injury, we doubt the defendants would be entitled to absolute

immunity for their decision to seek a judicial order. According to the New

Mexico Children’s Code, if the child’s physician or psychologist believes a

guardian’s attempt to discharge his or her child goes against the child’s best

interests, the physician or psychologist can “request that the children’s court

attorney initiate involuntary residential treatment proceedings.” N.M. Stat.

§ 32A-6A-20(J) (emphasis added). After the request, the children’s court attorney

“may petition the court for such proceedings.” Id. Under this division of labor,

the children’s court attorney has the sole discretion to initiate involuntary

commitment proceedings. The role of the physician or psychologist under this

scheme is more akin to the role of the complaining witness who “set[s] the wheels

                                         -14-
of government in motion by instigating a legal action.” Wyatt, 504 U.S. at

164–165.

      Extending absolute immunity to government employees who are not

statutorily authorized to petition the court directly would be an unwarranted

expansion of absolute immunity protection. “The presumption is that qualified

rather than absolute immunity is sufficient to protect government officials in the

exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486–87 (1991); see also

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (explaining that one of the

purposes of qualified immunity is “to shield officials from harassment,

distraction, and liability when they perform their duties reasonably”). Absolute

immunity extends only so far as is necessary to protect the judicial process.

Burns, 500 U.S. at 492 (explaining that absolute immunity applies to prosecutors

because the “substantial likelihood of vexatious litigation . . . might have an

untoward effect on the independence of the prosecutor”). Extending absolute

immunity to those who solicit a government attorney to initiate judicial

proceedings is unnecessary to protect the judicial process. See Cornejo v. Bell,

592 F.3d 121, 128 (2d Cir. 2010) (extending absolute immunity only to child

protection agency attorney despite agency officials directing the attorney to

initiate court proceedings).

      The defendants’ decision to place an emergency medical hold on M.T. in

anticipation of Mrs. Thomas’s attempt to discharge M.T. is not protected by

                                         -15-
absolute immunity. The decision to place the hold was not closely associated

with the judicial process. An emergency medical hold is a mechanism for

facilities to temporarily prevent a patient’s discharge when personnel believe the

patient’s medical circumstances warrant such a measure. Medical personnel are

not required to obtain judicial permission before placing a temporary hold on a

patient’s discharge. In this case, the medical hold preceded the filing of an

involuntary residential treatment petition and was functionally analogous to law

enforcement officials taking unilateral emergency action. See Snell, 920 F.2d at

690 (declining to extend absolute immunity for social workers’ efforts to gain

protective custody before filing a petition in court); Spielman v. Hildebrand, 873

F.2d 1377, 1383 (10th Cir. 1989) (holding that defendants are not entitled to

absolute immunity because they “acted unilaterally prior to the operation of the

judicial process” (internal quotation marks omitted)).

      In sum, the defendants are not entitled to absolute immunity for their

decision to place M.T. on a medical hold. We thus turn to whether qualified

immunity is available for the defendants’ conduct.

      B. Qualified Immunity

      Qualified immunity protects officials “from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Once the qualified immunity defense is

                                        -16-
asserted, the plaintiff “bears a heavy two-part burden” to show, first, “the

defendant’s actions violated a constitutional or statutory right,” and, second, that

the right was “clearly established at the time of the conduct at issue.” Archuleta

v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008) (internal quotation marks

omitted).

      A right is clearly established in this circuit “when a Supreme Court or

Tenth Circuit decision is on point, or if the clearly established weight of authority

from other courts shows that the right must be as the plaintiff maintains.” PJ ex

rel. Jensen v. Wagner, 603 F.3d 1182, 1196–97 (10th Cir. 2010) (internal

quotation marks omitted). A previous decision need not be “materially factually

similar or identical to the present case; instead, the contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Id. at 1197 (internal quotations marks and alterations

omitted). “The relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.

194, 202 (2001).

      Although qualified immunity defenses are typically resolved at the

summary judgment stage, district courts may grant motions to dismiss on the

basis of qualified immunity. “Asserting a qualified immunity defense via a Rule

12(b)(6) motion, however, subjects the defendant to a more challenging standard

                                         -17-
of review than would apply on summary judgment.” Peterson v. Jensen, 371 F.3d

1199, 1201 (10th Cir. 2004); see also Behrens v. Pelletier, 516 U.S. 299, 309

(1996) (“At [the motion to dismiss] stage, it is the defendant’s conduct as alleged

in the complaint that is scrutinized for ‘objective legal reasonableness.’ On

summary judgment, however, the plaintiff can no longer rest on the pleadings,

and the court looks to the evidence before it (in the light most favorable to the

plaintiff) when conducting the [qualified immunity] inquiry.” (citations omitted)

(emphasis in original)).

             1. Right to Direct Child’s Medical Care

      The Thomases first allege in their complaint that the defendants violated

their right to direct M.T.’s medical care when the defendants notified CYFD of

potential parental medical neglect.

      The Fourteenth Amendment protects the right of parents to make decisions

“concerning the care, custody, and control of their children.” Troxel v. Granville,

530 U.S. 57, 66 (2000). This right provides “some level of protection for parents’

decisions regarding their children’s medical care.” Jensen, 603 F.3d at 1197.

Although neither the Supreme Court nor the Tenth Circuit has defined the precise

scope of the right to direct a child’s medical care, it is not absolute. “[W]hen a

child’s life or health is endangered by her parents’ decisions, in some

circumstances a state may intervene without violating the parents’ constitutional

rights.” Id. at 1198.

                                         -18-
      Our decision in Jensen is illustrative. In that case, we concluded the

medical defendants were entitled to qualified immunity because the parents’ right

to direct their child’s medical care under the circumstances was not clearly

established. Seven doctors had diagnosed the minor child with life-threatening

cancer and recommended immediate chemotherapy treatment to save his life. A

state-employed doctor and two social services officials pursued the treatment over

the objections of the parents. We concluded that it was not clearly established

that the Jensens had a right to refuse the recommendations of seven doctors or to

shop around for additional opinions until they found a recommendation against

conventional treatment. Because the Jensens had not asserted any factual

allegation that would demonstrate state action clearly outside the state’s “wide

range of power” to protect children, the Jensens’ right to direct their child’s

medical care under those circumstances was not clearly established. Id.

      The Thomases frame their claim as the right to be free from an allegation

of neglect by treating physicians. But none of our cases clearly establish that an

allegation alone can be the basis for an infringement on the right to direct a

child’s medical care. In this case, the defendants’ communications to CYFD

resulted in no official action that affected the Thomases’ right to direct M.T.’s

medical care. We see no interference with M.T.’s medical treatment as a result of

this communication, nor can the Thomases point to any case law that defines the

contours of the right to direct medical care such that it would be “sufficiently

                                        -19-
clear” to the defendants that reporting the plaintiffs to CYFD would violate that

right. And the Thomases do not allege that any other conduct by the defendants

violated their right to direct medical care.

      Because the Thomases have not shown a violation of a clearly established

right to direct M.T.’s medical care under these circumstances, the district court

was correct to dismiss this claim.

             2. Right to Familial Association

      The Thomases also claim that the defendants violated their right to familial

association when they placed M.T. on a temporary medical hold and sought an

involuntary residential treatment order in state court. As we explained above, the

decision to seek involuntary residential treatment was not the cause of the

Thomases’ alleged injury. The placement of the medical hold on M.T. to prevent

her discharge was the cause of the alleged injury. We will therefore assess

whether the Thomases have stated a claim for a violation of the right to familial

association only with respect to the placement of the medical hold.

      The government’s “forced separation of parent from child, even for a short

time, represents a serious impingement” on a parent’s right to familial

association. Jensen, 603 F.3d at 1199. But a parent must allege “intent to

interfere” with this right—that is, the defendant must have directed conduct at the

familial relationship “with knowledge that the statements or conduct will

adversely affect that relationship.” Lowery v. Cnty. of Riley, 522 F.3d 1086,

                                          -20-
1092–93 (10th Cir. 2008). A familial association claim is grounded in

“substantive due process” arising from allegations of abusive government

authority. Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993); see also

Jensen, 603 F.3d at 1198–99; J.B. v. Wash. Cnty., 127 F.3d 919, 927 (10th Cir.

1997). Regardless of the intensity of a familial association claim, our cases

establish that the right is not absolute, but must be weighed against the state’s

interest in protecting a child’s health and safety in order to determine whether

state actors unduly burdened that right in a given case. See Youngberg v. Romeo,

457 U.S. 307, 320–21 (1982); see also Jensen, 603 F.3d at 1199; Lowery, 522

F.3d at 1092. 8 To state a claim for the deprivation of the right of familial

association, the Thomases had to allege that (1) defendants intended to deprive

them of their protected relationship with their daughter, see Estate of B.I.C. v.

Gillen, 710 F.3d 1168, 1175 (10th Cir. 2013), and that (2) balancing the

Thomases interest in their protected relationship with M.T. against the state’s

interests in M.T.’s health and safety, defendants either unduly burdened

plaintiffs’ protected relationship, see Jensen, 603 F.3d at 1199, or effected an

“unwarranted intrusion” into that relationship, Trujillo v. Bd. of Cnty. Comm’rs,

768 F.2d 1186, 1189 (10th Cir. 1985). In conducting this balancing, the court

will consider, among other things, the severity of the infringement on the

      8
         The Thomases also point to “procedural due process” cases to support
their claim. They did not assert this theory in the district court, and we decline to
address it. See Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir. 2012).

                                         -21-
protected relationship, the need for defendants’ conduct, and possible alternative

courses of action. See Griffin, 983 F.2d at 1548.

      The facts alleged in the complaint here are sufficient to state a claim for

deprivation of the right to familial association. When Mrs. Thomas indicated she

was inclined to have M.T. discharged from the hospital on April 29, Del Fabbro

placed a medical hold on M.T. The purpose and effect of this action was to

prevent Mrs. Thomas from removing M.T. from the hospital. The complaint

sufficiently alleges that all defendants were involved in the decision to retain

custody of M.T. at this time.

      Upon the defendants’ assertion of the defense of qualified immunity, the

Thomases were required to state a claim of not only a violation of a constitutional

right, but a violation of a clearly established right. Iqbal, 556 U.S. at 673. The

defendants argue that they are entitled to qualified immunity because the

Thomases failed to show an immediate threat to M.T.’s life did not exist.

      The scope of the right to familial association, at least in the context of

deprivation of parental custody in certain circumstances, is clearly established.

But at this stage in the proceedings, we do not have the information necessary to

determine whether a state interest in M.T.’s health and welfare existed such that it

would have been justified for the defendants to infringe upon the Thomases’ right

to familial association. Whether the right to familial association has been

violated requires the court to conduct a fact-intensive balancing test not ordinarily

                                         -22-
suitable for the Rule 12(b)(6) stage. When the facts have not yet been fully

brought out through discovery, it is difficult for the court to adequately conduct

the relevant constitutional test. See Devlin v. Kalm, 531 F. App’x 697, 707 (6th

Cir. 2013) (“[W]hile officers will often be entitled to qualified immunity under [a

multi-factor balancing test], this will only be evident after an opportunity for

discovery so that the court can know what is being balanced against what.”).

While we can consider the objective reasonableness of defendants’ actions at the

motion to dismiss stage, we can only scrutinize their conduct “as alleged in the

complaint.” Behrens, 516 U.S. at 309. A complaint might sometimes contain

sufficiently detailed facts to allow for a qualified immunity inquiry, but such is

not the case here.

      The facts alleged in the Thomases’ complaint, when accepted as true and

viewed in a light favorable to the plaintiffs, do not show an immediate threat of

suicide had M.T. been discharged. The complaint does allege that suicidal

ideation was a basis for M.T.’s intake, diagnosis, and course of treatment. But

the complaint does not contain facts showing M.T.’s suicide risk on April 29, the

day the defendants instituted the medical hold and allegedly violated the

plaintiffs’ constitutional rights. Although the complaint avers that M.T.

expressed suicidal ideation on May 4, the complaint does not provide sufficient

information or context for determining the immediacy or seriousness of the

suicide threat during the course of the seven-day hold. Moreover, the complaint

                                         -23-
alleges the defendants chose to discharge M.T. because they determined her

insurance would not cover the involuntary commitment, and not because her

medical condition improved. Thus, to be able to adequately determine whether

officials of reasonable competence could disagree as to the danger of discharging

M.T., the court must allow for some factual development of the record. 9 The

defendants will be entitled to qualified immunity if reasonable officers could at

least disagree as to the danger of discharging M.T.

      The defendants ask us to consider M.T.’s medical records to determine

whether a reasonable official would have found an exigent situation existed. A

district court may consider documents (1) referenced in a complaint that are (2)

central to a plaintiff’s claims, and (3) indisputably authentic when resolving a

motion to dismiss without converting the motion to one for summary judgment.

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384–85 (10th

Cir. 1997). But there are reasons not to do so here. First, and most importantly,

the medical records were before the district court under seal on a motion to

appoint a guardian ad litem; the court did not consider them in the context of the

motion to dismiss. Moreover, the record contains only isolated snippets of the

      9
          Qualified immunity protects officers from the burdens of pre-trial
discovery. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Jiron v. City of
Lakewood, 392 F.3d 410, 414 (10th Cir. 2004). But if the district court
determines that it cannot rule on the immunity defense without clarification of the
facts, “it may issue a discovery order narrowly tailored to uncover only those
facts needed to rule on the immunity claim.” Backe v. LeBlanc, 691 F.3d 645,
648 (5th Cir. 2012) (internal quotation marks omitted).

                                        -24-
medical records—which appear as exhibits supporting the defendants’ motion to

appoint a guardian ad litem—and do not allow for a comprehensive review of the

evidence. While the medical records will surely be central to the case at summary

judgment, they are not the kind of documents we have ordinarily allowed to be

entertained at the motion to dismiss stage.

       In sum, the district court erred in granting the defendants’ motion to

dismiss on the right to familial association claim, insofar as it is based on the

April 29 decision to place a medical hold on M.T. The Thomases have pleaded

facts that demonstrate a violation of clearly established law. And, at this stage of

the proceedings, there are insufficient undisputed facts to determine whether

reasonable officers would disagree as to whether an immediate threat to M.T.’s

life existed.

                                 III. Conclusion

       We AFFIRM the dismissal of the plaintiffs’ right to direct medical care

claim. We REVERSE the dismissal of the plaintiffs’ familial association claim.

We remand for further proceedings consistent with this opinion.




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