                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 15-1448
                    _____________

               MICHELLE MAMMARO

                           v.

 NEW JERSEY DIVISION OF CHILD PROTECTION
                 AND PERMANENCY,
       formerly known as DIVISION OF YOUTH
                 & FAMILY SERVICES;
        WATCHUNG POLICE DEPARTMENT;
 KARA P. WOOD, in her official capacity as Director of
   DCP&P; ALLISON BLAKE, in her official capacity
        as the Commissioner of the Department of
                  Children and Families;
       JOSEPH R. CINA, in his official capacity as
Acting Chief of Police of the Watchung Police Department;
  ALIREICHEN GRAZIANI, in her individual capacity;
     BENJAMIN REHIG, in his individual capacity;
       SUAN HACKER, in her individual capacity;
    REBECCA LABARRE, in her individual capacity;
     KRISTA DEBROUX, in her individual capacity;
              OMEGA LABOATORY INC;
       ANDREW HART, in his individual capacity;
    SCOTT TALLMADGE, in his individual capacity;
                   PATRICK MINNO;
         JOHN DOES 3-8, POLICE OFFICERS
    OF WATCHUNG POLICE DEPARTMENT, in their
               individual capacities

                   The New Jersey Division of Child
                   Protection and Permanency;
                   Commissioner Allison Blake;
                   Director Kara P. Wood;
                   Alireichen Graziani; Benjamin Rehig;
                   Rebecca LaBarre; and Krista DeBroux,

                                 Appellants
                    ________________

        Appeal from the United States District Court
                for the District of New Jersey
          (D.C. Civil Action No. 3-13-cv-06483)
        District Judge: Honorable Freda L. Wolfson
                     ________________

                  Argued October 7, 2015

          Before: McKEE, Chief Judge, AMBRO,
             and HARDIMAN, Circuit Judges

            (Opinion filed: February 19, 2016)

John J. Hoffman, Esquire
  Acting Attorney General of New Jersey
Michael C. Walters, Esquire (Argued)
Randall B. Weaver, Esquire
Benjamin H. Zieman, Esquire
Office of Attorney General of New Jersey




                             2
Richard J. Hughes Justice Complex
25 Market Street
Trenton, NJ 08625

      Counsel for Appellants

Kenneth J. Rosellini, Esquire (Argued)
636A Van Houten Avenue
Clifton, NJ 07013

      Counsel for Appellee
                   ________________

               OPINION OF THE COURT
                   ________________

AMBRO, Circuit Judge

       Appellee Michelle Mammaro filed this civil rights
action claiming that the temporary removal of her child from
her custody by the New Jersey Division of Child Protection
and Permanency (the “Division”) was a violation of her
substantive due process right as a parent. On a motion to
dismiss, the District Court held that several individual
caseworkers were not entitled to qualified immunity. The
caseworkers filed this interlocutory appeal, and for the
reasons that follow we conclude that they are immune from
suit.
                               I.
       Because this case comes to us on a Rule 12(b)(6)
motion to dismiss, the facts are drawn from the allegations
contained in Mammaro’s amended complaint, which we




                               3
accept as true. James v. City of Wilkes-Barre, 700 F.3d 675,
679 (3d Cir. 2012).
       On July 22, 2011, Mammaro first came to the
Division’s attention when she was taken to a hospital for
injuries inflicted by her husband, Damon. Although D.M.,
Mammaro’s one and a half year old child, was not harmed,
Mammaro met with a child protective services worker from
the Division—then known as the New Jersey Division of
Youth and Family Services. She agreed to send D.M. to stay
with her brother-in-law for that night and was treated for her
injuries and released the same day. Damon was charged with
several criminal offenses, including second degree aggravated
assault, and Mammaro sought a restraining order against him.
       At the first hearing on the restraining order, a Division
caseworker was present and told Mammaro that someone had
made allegations against her of child neglect based on drug
use. The caseworker threatened to separate Mammaro and
D.M. unless she submitted to a drug test. Mammaro
complied and tested positive for marijuana. (She admits to
using a small amount of marijuana to calm herself after
coming home from the hospital.) At the final restraining
order hearing, the caseworker appeared again and demanded
that Mammaro take another drug test. She again complied
and again tested positive, with the second test showing a
smaller level of marijuana than the first.1 Following these

1
  A hair follicle test in November 2011 showed a very small
amount of marijuana and cocaine, but the amount found was
too low to meet the standard for a positive test.

Although Chief Judge McKee joins this opinion in its
entirety, he notes his concern with the misleading nature of
the Division’s brief on this point. The brief stated that




                               4
Mammaro “submitted to a hair follicle drug test, which was
positive for cocaine and marijuana.” However, at oral
argument, after counsel for Mammaro represented that she
never tested positive for cocaine, the Division’s counsel (who
was involved in drafting the brief) was given an opportunity
to clarify whether the hair follicle test for cocaine was
positive, as represented in the brief, or negative. Counsel first
responded that the result was “inconclusive,” but then
conceded that Mammaro’s hair follicle analysis was
“negative” for cocaine.

Mammaro’s test showed 100 picograms/milligram (“pg/mg”)
of cocaine. The Division’s guidelines for concluding if a
person has used cocaine requires at least 500 pg/mg. Omega
Laboratories requires that a test result must be “greater than
its above listed cutoff” of 100 pg/mg. The testing equipment
has a margin for error of 20 percent. Accordingly, given the
thresholds employed by the lab and the Division’s own
guidelines, Mammaro’s test results were negative.

Chief Judge McKee believes that it is (at best) unfortunate
and (at most) disingenuous and intentionally misleading for
the Division to have stated, without qualification or
explanation, that Mammaro was using cocaine. The failure to
explain or qualify such an assertion is particularly egregious
here where the focus of our inquiry is the reasonableness of
the challenged interference with Mammaro’s custody of her
child, and the alleged bad faith of the Division. Moreover,
the misstatement in the brief should not be minimized merely
because the removal of Mammaro’s child preceded the
disputed cocaine analysis. By its own statement, the Division
provided the misleading lab results for “background




                               5
drug tests, and based on allegations from Damon and
Mammaro’s brother-in-law that Mammaro had used drugs in
front of D.M., the Division filed for temporary guardianship
of D.M. Mammaro alleges that the Division does not have a
policy of pursuing every positive drug test as a case of child
abuse.
       While the petition for temporary guardianship was
pending, the Division placed Mammaro and D.M. in a safe
house for victims of domestic violence. There, Mammaro’s
interaction with D.M. was supervised by Division employees.
Sometime later, Mammaro notified the Division that she was
unable to get an extension to stay in the house, but it failed to
make arrangements for Mammaro to remain there. Without
notifying any Division representative, Mammaro then moved
with D.M. to a private home. When the Division learned that
Mammaro was no longer in supervised housing, it had police
remove D.M. from Mammaro’s custody.                  Mammaro
challenged the removal in New Jersey Superior Court, and
within a few days the Division returned D.M. to her and
approved the new housing. In June 2012, the Superior Court
dismissed the petition for temporary guardianship and found
that she had not abused or neglected D.M.
       Mammaro thereafter filed a complaint in the District of
New Jersey against numerous defendants, including the
Division and five Division employees (the employees include
two supervisors and three caseworkers, but for ease of
reference we refer to them collectively as caseworkers


information.” Since the information was, by the Division’s
own admission, irrelevant to its decision to interfere with
Mammaro’s parental rights, Chief Judge McKee is concerned
that it may have been offered in an attempt to “poison the
[analytical] well.”




                               6
throughout). In an amended complaint, Mammaro raised
claims for violation of her rights under the First, Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendments to our
Constitution and the New Jersey Civil Rights Act.
       The Division filed a motion to dismiss. Although the
District Court granted the motion in almost all other respects,
it denied the motion with respect to one claim against the
caseworkers: a substantive due process claim for interfering
with Mammaro’s parental rights by temporarily removing
D.M. from Mammaro’s custody. The Division argued that its
employees were protected by qualified immunity, but the
Court rejected that defense, concluding that Mammaro had
adequately alleged a violation and that the right at issue was
clearly established at the time of the alleged conduct. The
caseworkers appeal that decision.
                               II.
       The District Court had jurisdiction under 28 U.S.C.
§ 1331 and we have appellate jurisdiction under 28 U.S.C.
§ 1291 and the collateral order doctrine, which is an
exception to the usual requirement of a final decision for
appellate review. “The requirements for collateral order
appeal have been distilled down to three conditions: that an
order ‘[1] conclusively determine the disputed question, [2]
resolve an important issue completely separate from the
merits of the action, and [3] be effectively unreviewable on
appeal from a final judgment.’” Will v. Hallock, 546 U.S.
345, 349 (2006) (quoting P.R. Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)). “[A] denial
of qualified immunity that turns on an issue of law—rather
than a factual dispute—falls within the collateral order
doctrine.” Doe v. Groody, 361 F.3d 232, 237 (3d Cir. 2004).
The only issue presented to us is whether the alleged violation
of substantive due process was clearly established. This is a




                                7
question of law over which our review is unrestricted.
Atkinson v. Taylor, 316 F.3d 257, 261 (3d Cir. 2003).
                              III.
       Qualified immunity protects government officials from
insubstantial claims in order to “shield officials from
harassment, distraction, and liability when they perform their
duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231
(2009). “When properly applied, it protects ‘all but the
plainly incompetent or those who knowingly violate the
law.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). To
overcome qualified immunity, a plaintiff must plead facts
“showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Id. at
2080. In our case, the Division has not challenged whether
Mammaro sufficiently alleged a violation of substantive due
process, and we limit our review to the question of clearly
established law.
       “A Government official’s conduct violates clearly
established law when, at the time of the challenged conduct,
‘[t]he contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would have understood that what he is
doing violates that right.’” Id. at 2083 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). “In other words, there
must be sufficient precedent at the time of action, factually
similar to the plaintiff’s allegations, to put defendant on
notice that his or her conduct is constitutionally prohibited.”
McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001).
We look first for applicable Supreme Court precedent. Even
if none exists, it may be possible that a “robust consensus of
cases of persuasive authority” in the Court of Appeals could
clearly establish a right for purposes of qualified immunity.




                               8
Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per curiam)
(quoting City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765,
1778 (2015)).
        What is the right here? The Due Process Clause of the
Fourteenth Amendment provides that no state shall “deprive
any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1. From the text, it is clear
that the Clause has a procedural component, requiring the
state to afford an adequate level of process (notice and an
opportunity to be heard) before depriving persons of a
protected interest. Mathews v. Eldridge, 424 U.S. 319 (1976).
But the Clause also has a substantive component. “The
substantive component of the Due Process Clause limits what
government may do regardless of the fairness of procedures
that it employs, and covers government conduct in both
legislative and executive capacities.” Boyanowski v. Capital
Area Intermediate Unit, 215 F.3d 396, 399 (3d Cir. 2000).

        In bringing a substantive due process claim, one
alleges that the government has abused its power in an
arbitrary manner that “shocks the conscience.” Cty. of
Sacremento v. Lewis, 523 U.S. 833, 846-48 (1998). In this
case Mammaro alleged the arbitrary interference with her
right to parent her child. See Troxel v. Granville, 530 U.S.
57, 66 (2000). She contends that the right at issue is her right
to be free from the temporary removal of her child unless
there is “some reasonable and articulable evidence giving rise
to a reasonable suspicion that a child has been abused or is in
imminent danger of abuse.” Croft v. Westmoreland Cty.
Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997).
This definition is too broad for purposes of qualified
immunity, however. We must frame clearly established law
“in light of the specific context of the case, not as a broad
general proposition.” Saucier v. Katz, 533 U.S. 194, 200-01
(2001). “The general proposition, for example, that an




                               9
unreasonable search or seizure violates the Fourth
Amendment is of little help in determining whether the
violative nature of particular conduct is clearly established.”
al-Kidd, 131 S. Ct. at 2084.
       We thus consider the substantive due process right of
Mammaro as a parent in light of the specific allegations in her
amended complaint. She contends that the caseworkers
removed her child after she violated the restrictions on her
contact with D.M. by removing the child from supervised
housing. At the time of the removal, Mammaro alleges that
there was insufficient evidence of past abuse or risk of future
abuse by her to justify D.M.’s removal. Even if so, for
Mammaro’s case to have legs she must show that the law was
so well established at that time a reasonable caseworker
would have understood that temporarily removing a child in
those circumstances would violate substantive due process.2
       We conclude that there was no consensus of authority
that temporarily removing a child after the parent takes the

2
   We note that the District Court’s analysis of clearly
established law differs from what the Supreme Court requires.
When addressing whether the caseworkers’ actions were
clearly unconstitutional, the District Court cited only an
unpublished decision. Weaver v. Marling, No. 12-cv-1777,
2013 WL 4040472 (W.D. Pa. Aug. 8, 2013) (considering
whether three-month separation of parent and child violated
substantive due process). As well done as that opinion might
be, it is not by itself an indication of a clearly established
constitutional right. Moreover, the opinion postdates the
events in this case and thus could not have given fair notice to
the caseworkers of a clearly established right. See Brosseau
v. Haugen, 543 U.S. 194, 200 n.4 (2004) (per curiam).




                              10
child from approved housing violates substantive due process.
Beginning with the Supreme Court, it has recognized that, as
a general matter, “the Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their
children.” Troxel, 530 U.S. at 66. From this fundamental
right flows, for example, certain procedural due process rights
for parents when the state seeks to deprive them permanently
of custody. See Santosky v. Kramer, 455 U.S. 745, 769
(1982); Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31
(1981); Stanley v. Illinois, 405 U.S. 645, 649 (1972). But the
Court has never found a substantive due process violation
when state agencies temporarily remove a child, whatever the
circumstances of the removal. Accordingly, no Supreme
Court precedent clearly establishes that D.M.’s temporary
removal from her mother’s custody violated substantive due
process.
       Likewise, assuming a consensus of persuasive
authority could clearly establish a right, there is no consensus
that removing D.M. was an unconstitutional interference with
the parent-child relationship. Mammaro’s reliance on Croft
to argue otherwise is misplaced. Putting aside the question of
whether one case is sufficient to establish a “robust consensus
of persuasive authority,” Croft is factually off point. There a
caseworker followed up on a “six-fold hearsay report by an
anonymous informant” of child abuse. Croft, 103 F.3d at
1126. After interviewing the father and his child, the
caseworker uncovered no evidence of abuse, yet still
threatened to remove the child that night. Id. at 1124. We
recognized that child welfare agencies may be justified in
removing a child when there are fears of abuse. But before
separating parent and child, caseworkers need “some
reasonable and articulable evidence giving rise to a
reasonable suspicion that a child has been abused or is in
imminent danger of abuse.” Id. We concluded that the




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caseworker lacked objectively reasonable evidence of abuse
and that the separation of parent and child was an arbitrary
abuse of government power. Id. at 1127.
       We have much different facts than did Croft.
Mammaro’s husband and brother-in-law had made an
allegation of neglect that was supplemented by two positive
drug tests of Mammaro. And the immediate impetus for
D.M.’s removal was Mammaro’s decision to take D.M. from
supervised housing, a factor not present in Croft. While
Mammaro does allege that the caseworkers failed to assist her
in making new arrangements for approved housing, nothing
in Croft suggests that the failure to assist her—however unfair
and counterproductive it may have been—was an arbitrary
abuse of government power that shocks the conscience.
Accordingly, Croft did not put the caseworkers on notice that
their conduct violated substantive due process.
                 *      *      *      *      *

       Caseworkers investigating allegations of child abuse
often must make difficult decisions based on imperfect
information. Particularly when deciding whether to separate
parent and child, a caseworker must weigh the rights of the
parent against the rights of the child and the risk of abuse.
We are not the first to note that the failure to act quickly and
decisively in these situations may have devastating
consequences for vulnerable children. See, e.g., Arredondo v.
Locklear, 462 F.3d 1292, 1294 (10th Cir. 2006); Millspaugh
v. Cty. Dep’t of Pub. Welfare, 937 F.2d 1172, 1176-77 (7th
Cir. 1991). This is why caseworkers are protected by
qualified immunity unless clearly established law puts them
on notice that their conduct is a violation of the Constitution.
In this case, there was no such clearly established law, and
qualified immunity covers the Division’s caseworkers. We




                              12
thus reverse the decision of the District Court and remand for
it to enter judgment in their favor.




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