     Case: 18-20157   Document: 00515097312     Page: 1   Date Filed: 08/29/2019




          IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit


                                 No. 18-20157                      FILED
                                                             August 29, 2019
                                                              Lyle W. Cayce
CHRISTINA ROMERO; GARY ADAN CRUZ, SR.                              Clerk

             Plaintiffs - Appellant

v.

AMANDA BROWN; NICOLE MOUTON; ROLAND BENAVIDES; ROBERT
RUIZ; CITY OF HOUSTON; DOES ONE THROUGH TEN

             Defendants - Appellees



                Appeal from the United States District Court
                     for the Southern District of Texas


Before KING, HIGGINSON, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Christina Romero and Gary Adan Cruz are the parents of seven children.
The Texas Department of Family and Protective Services received information
that Cruz was abusing Romero.         It ordered Cruz to move away from the
apartment where Romero and their children lived. He complied. More than a
month later, a social worker and other officials seized all seven children from
Romero and put them in foster care homes. The seizures occurred in the
middle of the day without a court order. The next day a state court judge found
no justification for the removal and ordered the immediate return of the
children to both parents.
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                                 No. 18-20157
      The parents allege violations of their due process rights. We conclude
that the complaint does not allege a violation of clearly established substantive
due process rights because there was an ongoing investigation into domestic
violence and the removal lasted only 24 hours. But the removal did violate
clearly established procedural due process rights because there was neither a
court order nor exigent circumstances to support the social worker’s taking the
children from their mother.
                                       I.
                                       A.
      The following is what Plaintiffs say happened. At the pleading stage, we
only have their side of the story and must accept it as true. Bosarge v. Miss.
Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015).
      Romero lived with Cruz and their seven children in a small apartment
in Houston.    The first allegation that Cruz engaged in domestic violence
against Romero came in 2014. Then, in fall 2015, their six-year-old daughter
told her school counselor that Cruz punched and “body slammed” Romero.
Family and Protective Services opened an investigation and sent an
investigator to the apartment. The parents allege that the investigator could
“easily verify” the allegations were untrue, and the investigator did not contact
any law enforcement officials at that time. But early the next year, the agency
ordered Cruz to move out of the apartment and enroll in parenting, domestic
violence, and anger management classes.         Cruz continued to contest the
allegations but complied with the agency’s requests.
      Shortly after the investigator’s visit, the case was transferred to social
worker Amanda Brown. In March 2016, Brown conducted another home visit
to Romero’s apartment, apparently at the direction of her supervisor, Nicole
Mouton. From the start, Brown spoke “disparagingly” of Romero’s financial
condition and told Romero she needed to make more money. Romero tried to
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                                No. 18-20157
explain that Cruz’s moving out worsened the family’s money troubles. Brown
replied, “That’s not my problem. That’s more your problem,” and suggested
Cruz may never be allowed to return. She also criticized Romero for sometimes
having her 15-year-old son babysit the younger children instead of sending
them to daycare. Romero explained that she worried about the quality of
daycare and that she could not afford it. Brown “sneered” at Romero, said
Family and Protective Services could help cover childcare costs, and “appeared
upset” that Romero questioned her recommendations.
      Brown spent the remainder of the home visit sitting at the kitchen table
using her cellphone. This prompted Romero to say to her, “You are not doing
your job. You are just sitting here playing on your phone.” Romero told Brown
she wanted to file a complaint with Brown’s supervisor about that behavior.
Brown “became visibly enraged, and abruptly terminated the visit.” Romero
heard nothing from Brown the remainder of the day.
      The next morning, around 11:00, Brown and two policer officers, Roland
Benavides and Robert Ruiz, surrounded Romero’s vehicle in the parking lot of
the apartment complex. Romero was returning to her apartment with her one-
month old baby and two toddlers. Brown and the officers seized all three
children. They did not have a court order. Brown threatened Romero with
arrest unless she signed a Notice of Removal.
      About an hour later, a Family and Protective Services employee seized
Romero’s other four children at school. There was no court order to take these
children either. All seven children were placed in foster care homes and spent
the night away from their mother.
      The following day, a state court hearing was held to determine if the
warrantless removal was justified. See TEX. FAMILY CODE §§ 262.104, 106
(2017) (requiring such a hearing for a removal without court order). The judge
found no evidence of physical abuse, malnourishment, or medical neglect. The
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                                  No. 18-20157
judge rebuked Brown for “remov[ing the] children without a Court Order in
the middle of the day” even though there was enough time to obtain a court
order. The court ordered the children returned home and allowed Cruz to
return home as well. The children were reunited with their parents that day.
                                        B.
      The parents filed suit alleging that Brown, Mouton, the police officers,
and the City of Houston violated their Fourteenth Amendment due process
rights. All defendants moved for dismissal, which the district court granted.
The court held that a violation of the right to family integrity was not clearly
established in the context of a social worker investigation, entitling both Brown
and Mouton to qualified immunity. And it found no authority to support the
claim against the police officers. The court also dismissed all claims against
the city for failure to sufficiently allege municipal liability under section 1983.
                                        II.
      We review a dismissal on the pleadings de novo. In re ATP Oil & Gas
Corp., 888 F.3d 122, 125–26 (5th Cir. 2018) (quotation omitted). Allegations
against defendants who enjoy qualified immunity must overcome that
protection, which “gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions.” Ashcroft v.
al-Kidd, 563 U.S. 731, 743 (2011). Qualified immunity at the pleading stage
raises two questions.     First, does the complaint allege a constitutional
violation? If so, was the violation clearly established so that the government
official would have known she was violating the law? Turner v. Lieutenant
Driver, 848 F.3d 678, 685 (5th Cir. 2017). Because the complaint focuses on
social worker Brown, we will first address whether Plaintiffs have alleged that
she violated the parents’ clearly established due process rights.




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                                  No. 18-20157
                                        A.
      “The rights to conceive and to raise one’s children have been deemed
essential, basic civil rights of man, and rights far more precious than property
rights.” Stanley v. Illinois, 405 U.S. 645, 651 (1972) (cleaned up). Indeed, a
parents’ right to “care, custody, and control of their children” is “perhaps the
oldest of the fundamental liberty interests recognized by [the Supreme] Court.”
Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion); see also Pierce v.
Society of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S.
390, 400–01 (1923).
      Because a parent’s custody and control of her children is a fundamental
liberty interest, the government may violate substantive due process when it
takes away that right. See Moore v. City of East Cleveland, 431 U.S. 494, 498–
500, 503 (1977); Troxel, 530 U.S. at 65, 72–73; Morris v. Dearborne, 181 F.3d
657, 665 (5th Cir. 1999). Yet as strong as the “right of the family to remain
together without the coercive interference of the awesome power of the state”
is, the state also has a strong interest in preventing child abuse. Hodorowski
v. Ray, 844 F.2d 1210, 1216 (5th Cir. 1988) (quoting Duchesne v. Sugarman,
566 F.2d 817, 825 (2d Cir. 1977)). So in a substantive due process analysis,
“[t]he right to family integrity must be balanced against the state’s interests
in protecting the health, safety, and welfare of children.” Wooley v. Baton
Rouge, 211 F.3d 913, 924 (5th Cir. 2000).
      A balancing test is difficult terrain for a party having to prove a clear
violation of the law. Id. at 671; see also Hodorowski v. Ray, 844 F.2d 1210,
1217 (5th Cir. 1988) (recognizing the “unsuitability of such a general right [to
family integrity] to fix liability in particularized circumstances”). We analyze
whether a claim alleges a clearly established violation of the right to familial
association by “placing [the claim], on a case by case basis, along a continuum
between the state’s clear interest in protecting children and a family’s clear
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                                  No. 18-20157
interest in privacy.” Morris, 181 F.3d at 671. If the facts of the case “place it
in the center of the continuum,” meaning the state’s and family’s interests
overlap, the right to family integrity is considered too “nebulous” to find a
clearly established violation. Id. If, on the other hand, the case is “squarely
on the end of the continuum where the state’s interest is negligible and where
the family privacy right is well developed in jurisprudence from this circuit and
the Supreme Court,” qualified immunity is not a defense. Id.
      Defeating immunity for a family integrity claim thus “hinges, in large
part, upon the degree of fit between the facts of this case” and our prior
opinions.   Id.; see also Hodorowski, 844 F.2d at 1217 (recognizing the
“unsuitability of such a general right [to family integrity] to fix liability in
particularized circumstances”). That fit is lacking here. Two features of this
case are absent from any of our child removal cases finding a substantive due
process violation: a pending investigation into domestic violence and a removal
lasting only one day.
      Because the substantive due process inquiry becomes a clash of two vital
interests when the state removes a child as part of a domestic violence
investigation, it is not surprising that we have never found a clearly
established violation of the right to family integrity in that context. In fact, we
have never found such a violation in any case against a child welfare worker.
See, e.g., Kiser v. Garrett, 67 F.3d 1166, 1173 (5th Cir. 1995); Hodorowski, 844
F.2d at 1217 (both rejecting liability for social workers involved in the
temporary removal of children when there was an ongoing investigation); Hall
v. Dixon, No. H-09-2611, 2010 WL 3909515 (S.D. Tex. Sept. 30, 2010)
(Rosenthal, J.) (observing that the Fifth Circuit “has found violations of clearly
established law only when state employees who are not social workers have
acted to separate children from their families without evidence of harm to the
child”). In finding violations of clearly established law when a teacher or police
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                                  No. 18-20157
officer played a role in the removal of a child, we distinguished their relatively
smaller role in “ferret[ing] out possible instances of abuse” from that of child
welfare officials for whom that is the paramount concern. Morris v. Dearborne,
181 F.3d 657, 671 (5th Cir. 1999) (denying qualified immunity to teacher who
reported alleged abuse); see also Wooley, 211 F.3d at 924 (denying qualified
immunity to police officers who removed a child without a court order).
      To be sure, the interest in preventing child abuse was attenuated in this
case despite the pending investigation. No one had alleged that Cruz had
assaulted the children, and he was no longer residing in the apartment. See
Wooley, 211 F.3d at 924 (noting that “cases in which the state’s interest has
blurred the existence of a family’s rights uniformly have involved removal of
children by social workers . . . where there were allegations of abuse”). That
means the state’s interest was much less than it was in cases with allegations
of ongoing abuse of children. Still, the state’s interest in protecting Romero’s
children was not eliminated.      The child’s allegation against Cruz relayed
extremely violent conduct.    Spousal abuse is an indicator of child abuse. See
CHILD ABUSE & NEGLECT: RISK AND PROTECTIVE FACTORS, CTR. FOR DISEASE
CONTROL & PREVENTION (listing “intimate partner violence” as a risk factor for
child abuse and neglect). So the open investigation into domestic violence
factors into the substantive due process balancing.
      One other aspect of this case confirms that it ends up in the nebulous
zone of the substantive due process continuum. Foundational family integrity
cases “involved the state’s attempt to sever permanently the parent-child
relationship.” Hodorowoski, 844 F.2d at 1217 (emphasis in original) (citing
Santosky v. Kramer, 455 U.S. 745 (1982); Stanley v. Illinois, 405 U.S. 645
(1972)). Cases since have found clear violations of substantive due process only
when the removal measured in months or years. See Wooley, 211 F.3d at 918
(finding violation when mother lost custody of her child for approximately
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                                  No. 18-20157
three months); Morris, 181 F.3d at 671 (finding violation when child was placed
in foster care for three years and cut off from all contact with her father during
that time) Although the state’s taking children for any amount of time is a
serious encroachment on a parent’s fundamental right, the one-day removal of
Romero’s children is a much less substantial interference with the right to
control a child’s upbringing than these far lengthier removals.               See
Hodorowski, 844 F.2d at 1217 (finding that the “temporary” nature of a
removal was “alone [] sufficient to prevent us from concluding that appellants’
conduct violated clearly established law”). Combine that with the role of a
child welfare officer who had a pending investigation into domestic violence,
and there is not a similar case finding substantive due process liability. As a
result, qualified immunity protects Brown from the substantive due process
claim.
                                     B.
      The Due Process Clause does not just provide parents with substantive
protection from interference with their liberty interest in the care, custody, and
management of their children. It also requires that the state follow certain
procedures before encroaching on those parental rights. Santosky v. Kramer;
455 U.S. 745, 753–54 (1982); Stanley v. Illinois, 405 U.S. 645, 658 (1972); Gates
v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir.
2008). And importantly for the qualified immunity analysis, unlike the fuzzy
continuum that governs substantive due process in this area, there are bright
lines when it comes to the procedural safeguards.
      The rule is this: A child cannot be removed “without a court order or
exigent circumstances.” Gates, 537 F.3d at 434. This is the same standard
that governs a child’s Fourth Amendment claim for being removed from the
family.   Id. at 345.    Gates followed other circuits that had “equated the
procedures required under the Fourteenth Amendment with those required
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                                       No. 18-20157
under the Fourth Amendment for searches and seizures related to child abuse
investigations.” Id. at 435 (citing Doe v. Kearney, 329 F.3d 1286 (11th Cir.
2003); Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000); Tenenbaum v.
Williams, 193 F.3d 581 (2d Cir. 1999)). With Gates on the books, we later held
that a procedural due process claim overcame qualified immunity at the
summary judgment stage because evidence would allow a jury to find that
children were seized without court approval or an emergency. Wernecke v.
Garcia, 591 F.3d 386, 391 n.7 (5th Cir. 2009). 1 It is thus clearly established
that a court order or exigency is the predeprivation process that is due when
social workers remove a child. 2 Gates, 537 F.3d at 434; Wernecke, 591 F.3d at
391 n.7.
       The complaint alleges that neither a court order nor exigent
circumstances existed when Brown seized Plaintiffs’ seven children.                     It is
undisputed that Brown did not obtain a court order. Nor was there reason to
believe that the children were “in imminent danger of physical or sexual abuse”
if they were not immediately removed. Gates, 537 F.3d at 429. Cruz had been
accused only of spousal abuse, had left the apartment weeks earlier, and there
were no reports that he had attempted to return. Indeed, Defendants do not
even try to argue that there was an emergency related to the children’s safety.



       1 Brown contends that Wernecke’s decision not to “conduct a separate analysis of the
Werneckes’ Fourteenth Amendment claims” means that it was rejecting the possibility of the
parents’ procedural due process claim. That ignores what the court did: It remanded to allow
the due process claim, just like the children’s Fourth Amendment claim, to continue past the
summary judgment stage. 591 F.3d at 391 n.7. There was no need to conduct a separate due
process analysis because under Gates the standard was the same as that governing the
Fourth Amendment claim. Id.
       2 When an exigency is the basis for the removal, a prompt postdeprivation hearing is

required. Gates, 537 F.3d at 435 (finding no due process violation because exigent
circumstances supported the removal of the children and a hearing was held the day after
the seizure); Martin v. Tex. Dep’t of Protective & Regulatory Servs., 405 F. Supp. 2d 775, 790
(S.D. Tex. 2005) (finding no procedural due process violation because the child was removed
based on allegations of sexual abuse and parents received a hearing within 24 hours).
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                                      No. 18-20157
They instead suggest that “the distressing state of Plaintiffs’ home” created
such an urgency that the children needed to be removed before a court order
could be obtained. But we have previously rejected the notion that a “merely
cluttered” home poses an imminent danger to children justifying a warrantless
removal. Wernecke, 591 F.3d at 400–01. And Plaintiffs have more than just
their own version of events to rely on. The ruling of the state judge, finding no
exigency to justify the removal and immediately returning the children to both
parents, lends further support to a procedural due process claim under the
clearly established Gates standard.
       Defendants’ primary pushback on the procedural due process claim is to
argue that when there is a claim grounded in a specific constitutional provision
like the Fourth Amendment, the Due Process Clause should not offer separate
protection from the same conduct. See Albright v. Oliver, 510 U.S. 266 (1994).
But Albright refers to explicit textual sources of constitutional protection
displacing “the more generalized notion of ‘substantive due process.’” 3 Id. at
273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); cf. Morris, 181 F.3d
at 676 (Jolly, J., concurring) (arguing that, under Graham, “an analysis under
the procedural due process doctrine should preempt our consideration of the
plaintiffs’ claim under the doctrine of substantive due process”). Here the
apparent overlap is between the Fourth Amendment and procedural due
process. The larger point, however, is that there is no overlap. The ones who
are seized, the children, may assert a Fourth Amendment claim (brought on




       3 This principle shows why another of Brown’s suggestions—that child removal claims
are only governed by substantive due process and not procedural due process—gets things
backwards. As Judge Higginson’s concurring opinion points out, if anything procedural due
process should be the primary source of protection. Concur. Op. (citing Morris, 181 F.3d at
676 (Jolly, J., concurring)). We nonetheless also address substantive due process because the
parties pressed that analysis and our cases have applied both substantive and procedural
due process analysis to child removal cases.
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                                       No. 18-20157
their behalf by the parents). Gates, 537 F.3d at 427. The parents who lose
control of their children may assert a due process right. Id. at 434. As a result,
in child removal cases we have repeatedly allowed parents to vindicate their
due process right to direct the upbringing of their children even when the same
conduct supports a child’s Fourth Amendment claim. Id; Wernecke, 591 F.3d
at 391 n.7; Wooley, 211 F.3d at 923–26. 4
       For almost a decade before Brown took the seven children from their
mother, social workers in this circuit have been on notice that they violate
procedural due process when they remove children without a court order or
exigent circumstances.         Gates, 537 F.3d at 434.           Because the complaint
plausibly alleges that is what happened to Plaintiffs’ children, this claim
against Brown will proceed past the pleading stage.
                                           III.
       What about the other defendants? Plaintiffs do not appeal the district
court’s ruling that the complaint failed to sufficiently allege a policy or practice
that could hold the City of Houston liable for its police officers’ involvement in
the removal.
       Although Plaintiffs do appeal the dismissal of Brown’s supervisor
(Mouton), reasoning similar to that warranting the city’s dismissal also
supports her dismissal. A supervisor is liable under section 1983 if: “(1) [s]he
affirmatively participates in the acts that cause the constitutional deprivation,
or (2) [s]he implements unconstitutional policies that causally result in the


       4 Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395 (5th Cir. 2002), is
not to the contrary. It was not a child removal case. Id. at 412 (distinguishing “the family
association cases” in which “the social worker had removed the child from its family home”).
Instead, the case involved unlawful entry into the home and a body cavity search of the child,
and the parent could have refused consent to both actions. Id. at 411-12. Both the parent
and child thus had Fourth Amendment claims. Id.; see also Gates, 537 F.3d at 419
(considering parents’ Fourth Amendment claim based on social workers “entry into the home”
as the parents had a privacy interest in the home).
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constitutional injury.”   Gates, 537 F.3d at 435.     The latter policy-focused
inquiry is akin to the standard for municipal liability. Rios v. City of Del Rio,
Tex., 444 F.3d 417, 426 (5th Cir. 2006). That is, for a supervisor to act with
“deliberate indifference,” she must usually know about a “pattern of similar
violations.” Id. at 427 (quoting Johnson v. Deep East Texas Regional Narcotics,
379 F.3d 293, 309 (5th Cir. 2004)). There is no such allegation. Nor are there
other allegations sufficient to establish deliberate indifference. As for actual
involvement, there are only general allegations that Mouton “approved the
unlawful seizure” and worked with Brown “to execute a coordinated removal
of the children.” Such conclusory allegations are not enough. Iqbal, 556 U.S.
at 678.
      That leaves the allegations against the two police officers who helped
Brown remove the three young children from Romero’s vehicle.               Those
allegations do not establish that the officers violated clearly established law.
Officers assisting social workers in the removal of children may “reasonably
rely on [the child welfare agency’s] assessment of the situation.” Gates, 537
F.3d at 431. There is no general obligation of officers to “cross-examine” other
officials they are assisting about the justification for the law enforcement
action. Id. (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir.
1976)).
      The officer’s reliance on Brown was not clearly unreasonable. Brown had
prepared a notice of removal, had visited the home the day before, and there
was a pending investigation into domestic violence. There is no indication that
the officers had reason to believe that Brown or her agency had “made
unconstitutional decisions to remove children in the past.” Id. These objective
bases for relying on Brown about the need to remove the children overcome the
conclusory, uncertain, and likely implausible allegation that Brown may have
told the officers that there was no emergency to justify the removal. Given all
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                                  No. 18-20157
the circumstances, we cannot say that all reasonable officers would have
viewed assisting Brown as an unlawful act. Officers Benavides and Ruiz are
entitled to qualified immunity.
                                     ***
      The judgment of the district court is AFFIRMED IN PART and
REVERSED IN PART. The procedural due process claim against Brown is
REMANDED for further proceedings in which Brown will be able to tell her
side of the story.




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                                  No. 18-20157
STEPHEN A. HIGGINSON, Circuit Judge, concurring:
      I concur fully in the majority opinion’s procedural due process analysis.
I write separately only to note that I would not address substantive due process
as a distinct cause of action here. See Morris v. Dearborne, 181 F.3d 657, 675
(5th Cir. 1999) (Jolly, J., concurring). In similar contexts, the Supreme Court
has recognized that the Fourteenth Amendment protects the fundamental
liberty interest of parents in the care and custody of their children and then
outlined the procedural due process required before depriving parents of that
right. See Santosky v. Kramer, 455 U.S. 745, 753–54 (1982); Stanley v. Illinois,
405 U.S. 645, 650–51 (1972). We followed this approach in Wooley v. Baton
Rouge, 211 F.3d 913, 923–24 (5th Cir. 2000), and Gates v. Tex. Dep’t of
Protective & Regulatory Servs., 537 F.3d 404, 434 (5th Cir. 2008).
      In Wooley, we explained that “a child’s right to family integrity is
concomitant to that of a parent” and considered “the nature of the process due
[the child] before depriving him of that right.” 211 F.3d at 923–24. We held
that removing a child from the custody of his mother absent judicial
authorization or a threat to the child’s safety violated the “clearly established
right” of mother and child “to maintain their relationship free from
interference by state actors.” Id. at 924. We further clarified the constitutional
standard for child removals in Gates, 537 F.3d at 429, 434–35, and Wernecke
v. Garcia, 591 F.3d 386, 400–01 (5th Cir. 2009). Under Wooley, Gates, and
Wernecke, the plaintiffs have alleged a violation of their clearly established
Fourteenth Amendment rights.




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