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18-P-715                                               Appeals Court

   C.M.    vs.   COMMISSIONER OF THE DEPARTMENT OF CHILDREN AND
                         FAMILIES & others.1


                              No. 18-P-715.

           Suffolk.         June 13, 2019. - April 22, 2020.

                 Present:    Meade, Agnes, & Henry, JJ.


Department of Children & Families. Minor, Care and protection.
     Parent and Child, Care and protection of minor. Due
     Process of Law, Care and protection of minor. Civil
     Rights, Immunity of public official. Immunity from suit.
     Constitutional Law, Conduct of government agents.
     Practice, Civil, Care and protection proceeding, Civil
     rights, Judgment on the pleadings, Summary judgment,
     Affidavit. Federal Civil Rights Act.



     Civil action commenced in the Superior Court Department on
September 16, 2014.

     The case was heard by Rosemary Connolly, J., on a motion
for summary judgment and a motion for judgment on the pleadings,
and entry of separate and final judgment was ordered by Paul D.
Wilson, J.


     Eric B. Tennen for the plaintiff.
     Jesse M. Boodoo, Assistant Attorney General (Abigail Fee,
Assistant Attorney General, also present) for the defendants.

    1   Candice Gemski and Marcie Plouffe.
                                                                    2




     HENRY, J.   This case presents the question of the degree of

immunity accorded a defendant social worker in a damages action

under 42 U.S.C. § 19832 when it is alleged that the social worker

"knowingly and willingly misled" the Juvenile Court in order to

allow the Department of Children and Families (DCF) to obtain

temporary custody of a child.    Here, a mother, C.M., alleges

that DCF improperly obtained custody of her then seven year old

child by filing an ex parte care and protection petition

supported by an affidavit that contained knowingly false

statements and by testifying falsely during the hearing on that

petition.    DCF obtained and maintained physical custody of the

child for fifty-one days, until a Juvenile Court judge ordered

DCF to return the child to her mother's care.   DCF kept legal

custody of the child for another five months until May 2012,

when a Juvenile Court judge ordered the care and protection case

dismissed.

     The mother brought this action in Superior Court against

the commissioner of DCF and two DCF employees, Marcie Plouffe

and Candice Gemski.    The mother sought injunctive relief against

DCF and monetary damages against Plouffe and Gemski for


     2 "The text of [§ 1983] purports to create a damages remedy
against every state official for the violation of any person's
federal constitutional or statutory rights." Kalina v.
Fletcher, 522 U.S. 118, 123 (1997).
                                                                      3


violations of § 1983.    While discovery was ongoing, DCF moved

for summary judgment, and Plouffe and Gemski moved for judgment

on the pleadings.    Both motions were allowed and a separate and

final judgment pursuant to Mass. R. Civ. P. 54 (b), 365 Mass.

820 (1974), entered in their favor.3    The mother appeals.   We

affirm in part, vacate in part, and remand for further

proceedings.

     Background.     In reviewing the ruling on the motion for

judgment on the pleadings, we are required to take the

allegations of the complaint as true.     See Jones v. Brockton

Pub. Mkts., Inc., 369 Mass. 387, 388 (1975).     In considering the

ruling on DCF's motion for summary judgment, we are required to

review the facts in the light most favorable to the nonmoving

party, the mother.    See Augat, Inc. v. Liberty Mut. Ins. Co.,

410 Mass. 117, 120 (1991).

     The child was born in 2003.    DCF's involvement with the

mother and her daughter dates back to 2004, when DCF received a

report that the child's father was a level three sex offender.

The child's father did not live with the child, but had frequent

visitation.4   DCF investigated the report and closed the case


     3 The child is another plaintiff in the matter, but she does
not assert claims against the defendants in this appeal.

     4 At the time of the motion for summary judgment, the father
was registered as a level two sex offender. The mother asserts
that the father has not committed any offenses in over twenty
                                                                     4


after the parents voluntarily entered into their first safety

plan with DCF.   This plan provided that the father would not be

left alone with the child "except for short intervals such as

mother's going to the bathroom, doing chores around the house,

etc."

     Several years later, in 2009, DCF received a report

indicating that the father was a level three sex offender, the

child had been telling others that her vagina hurt, and the

child was "touching herself."   After investigating, DCF made a

finding of neglect and again closed the case after the parents

agreed to a second safety plan.   The second safety plan provided

that at all times that the father was with the child and not at

a public venue, he would be supervised by the mother or his

girlfriend and that in case of an emergency, "all reasonable

efforts will be made to provide alternative supervision."     When

an alternative could not be found, the father would care for the

child "until such alternative care can be found."   Emergency was

defined as including "[d]eath in the immediate family";

"[i]llness/emergency care for [the child]"; and "[the mother's]

illness or hospitalization."




years, during which time he also has been sober. A psychologist
who specializes in sex offender treatment examined the father
and concluded that the father is unlikely to reoffend, and is
extremely unlikely to offend against his daughter.
                                                                   5


    That brings us to the events that led to the removal of the

child from the mother's care and custody.   In May 2011, when the

child was seven years old, DCF received a G. L. c. 119, § 51A,

report that the child might be having unsupervised contact with

the father.   The report identified -- and the mother admitted --

two sets of circumstances in which the child had been left

unsupervised with the father.   First, the mother left the child

with the father at an urgent care doctor's appointment while the

mother went to a previously scheduled dentist appointment for

replacement of a crown.   The child's doctor ordered her to have

X-rays.   The father transported her to the hospital for X-rays

and then home, where the mother met them immediately.   Second,

when the doctor ordered the mother to keep the child home until

she had completed five days of medication, the mother left the

child home alone with the father for two days because the mother

could not take time off from work or find alternate care.     A DCF

investigator interviewed the child, who was able to tell the

difference between a good and bad touch and stated that her

father had never touched her inappropriately.

    DCF again found the mother to be in neglect for allowing

the child to have unsupervised contact with the father.   The

mother contends that no circumstance mentioned above should have

supported the finding of neglect because the contacts involved
                                                                     6


emergencies.5   Following the finding of neglect, Plouffe, a DCF

case worker, began working with the family.

     Plouffe's relationship with the mother often was

acrimonious.    As alleged in the mother's amended complaint,

Plouffe did not work to "strengthen and encourage family life,"

and instead "simply identified perceived deficits in, and

problems with," the mother's support system.    Plouffe did not

identify supports to help the mother with day-to-day issues.

The mother further alleged that Plouffe faulted the mother for

her behavior, first criticizing her for being too upset and then

criticizing her for being too calm.

     As alleged in the first amended complaint, in August 2011,

the parents agreed to the father having no unsupervised contact

with the child "for the time being."    The mother alleges that at

an August 30, 2011, meeting, Gemski, a DCF area program manager

and Plouffe's supervisor, incorrectly maintained that the mother

was allowing the father to have ongoing contact with the child

and was not following DCF's safety plan.

     On October 5, 2011, DCF proposed a third safety plan.      "All

the parties agreed on the provisions prohibiting unsupervised




     5 In addition, the father took the child on a camping trip,
during which the father's girlfriend, who was approved by DCF to
supervise visitation, was also present. Given that the father
was supervised by the girlfriend, the mother contends that this
was not a violation of the second safety plan.
                                                                     7


contact between [the child] and her father."   The plan, however,

contained many provisions the mother had not agreed to,

including requirements that the mother and the child attend

therapy, that the mother sign "open releases of . . . private

health information to DCF," and that the father leave the house

if the mother was showering.   When the mother expressed concerns

regarding these additional provisions, Plouffe ended the

conversation.

    On October 31, 2011, without any further conversation

regarding the third safety plan, Plouffe informed the mother

that DCF would be seeking temporary custody of the child.     On

November 1, 2011, DCF filed a care and protection petition in

the Juvenile Court seeking temporary custody of the child.     The

mother alleges that the reasons Plouffe stated in her affidavit

in support of the petition that the removal was necessary -- the

mother "refusing to sign the October 5, 2011 draft of a revised

[s]afety [p]lan, the refusal to agree to forcing [the child's]

father to leave the home if [the mother] took a shower, and

refusal to force [the child] into sexual abuse therapy -- were

wholly unsupported by any evidentiary basis for seeking them."

The mother alleged that Gemski approved Plouffe's actions.

    The mother also alleged that at a hearing on the petition,

Plouffe falsely testified on two points:   (1) that the mother

"is allowing . . . the father, a level three sex offender, [to
                                                                     8


have] unsupervised contact with the child"; and (2) that the

mother "has refused to sign the safety plan."    As alleged in the

mother's complaint, these statements were false, were approved

by Gemski, and were knowingly and willingly made to mislead the

Juvenile Court.6

     Following the hearing, the Juvenile Court ordered temporary

custody of the child to DCF.   The case then proceeded to a

seventy-two hour hearing after which the child remained in DCF's

physical and legal custody.    The child was placed in foster care

and a new school.   The mother alleges that Plouffe and Gemski

did everything in their power to keep the child away from the

mother even if she agreed to no contact with the father during

the pendency of the care and protection proceeding.

     On December 19, 2011, the Juvenile Court ordered the child

returned to the mother pending final disposition of the matter.

In April 2012, a court appointed investigator submitted a

written report to the Juvenile Court recommending that the care

and protection proceeding be dismissed contingent upon the


     6 DCF's brief suggests that we "could reject as implausible
the contention that there was anything false in Plouffe's
statements." We disagree, as this is a question of fact that
would be inappropriately decided on a motion for judgment on the
pleadings. At argument, DCF rightly acknowledged that its
absolute immunity argument assumes, for the sake of argument,
the falsity in Plouffe's testimony. Plouffe similarly agreed at
the hearing on the motion for judgment on the pleadings that for
the sake of argument, the judge should assume Plouffe lied to
the Juvenile Court judge when seeking emergency removal.
                                                                     9


family's agreement to a new safety plan drafted by an

independent psychologist.   The mother asserts that the parties

adopted this safety plan (the 2012 plan), which called for a DCF

case manager/coordinator to evaluate the family's progress after

six months to a year.   The parties do not agree whether this

2012 plan or any safety plan is currently in place, and if it

is, whether DCF is a party to it.   DCF contends that to the

extent the mother considers herself subject to a current safety

plan, it does not involve DCF; rather, it involves the

independent psychologist.   The Juvenile Court dismissed the care

and protection petition on May 14, 2012.   DCF closed the case in

July 2012.

    In a careful decision, the motion judge ruled that Plouffe

and Gemski are absolutely immune from liability for the mother's

allegations pursuant to § 1983 for the functions of

investigating and prosecuting the removal proceeding.    The judge

rightly noted that the mother's allegations, if true, should be

of grave concern to DCF and the citizens of the Commonwealth.

The judge also recognized the public interest in safeguarding

children from abuse and neglect by their parents and the risk

that a DCF worker who suspects a child is in danger could be

inhibited from acting by fear of being sued and personal

financial ruin.   The judge allowed summary judgment to DCF on

the mother's claims for injunctive relief.
                                                                  10


     Discussion.   We first address Plouffe's and Gemski's motion

for judgment on the pleadings, which raises questions of

immunity.   Then we address the mother's request for injunctive

relief against DCF.

     1.   Absolute and qualified immunity generally.   Plouffe and

Gemski argue that they are entitled to absolute immunity from

the mother's substantive due process claim.   They allege that

their actions fell within the scope of their quasi prosecutorial

function in initiating care and protection proceedings and that

they therefore are protected by absolute social worker immunity

and absolute witness immunity.   Before turning to their specific

arguments, we briefly review the law concerning absolute and

qualified prosecutorial immunity.7




     7 Qualified immunity is an affirmative defense and the
defendants have the burden of proof. Cristo v. Evangelidis, 90
Mass. App. Ct. 585, 590 (2016). "[T]he relevant inquiry on
summary judgment as to the defense of qualified immunity is
whether a reasonable official could have believed his actions
were lawful, in light of clearly established law and the
information possessed by the official at the time he acted."
Clancy v. McCabe, 441 Mass. 311, 322 (2004). We apply a three-
part test, which asks "(1) whether the facts taken in the light
most favorable to the plaintiff demonstrate that there was a
violation of the plaintiff's . . . constitutional or statutory
rights; (2) if so, whether at the time of the violation those
rights were clearly established; and (3) whether a reasonable
person in the defendant's position would understand that his
conduct violated those clearly established rights" (footnote
omitted). Cristo, supra at 590. The parties have not briefed
this question and we do not decide it.
                                                                    11


    "Implicit in the idea that officials have some immunity --

absolute or qualified -- for their acts, is a recognition that

they may err.    The concept of immunity assumes this, and goes on

to assume that it is better to risk some error and possible

injury from such error than not to decide or act at all."

Scheuer v. Rhodes, 416 U.S. 232, 242 (1974), overruled on other

grounds, Davis v. Scherer, 468 U.S. 183, 191 (1984).     Absolute

prosecutorial immunity, unlike qualified immunity, "applies

however erroneous the act may have been, and however injurious

in its consequences it may have proved to the plaintiff"

(quotation omitted).     Cleavinger v. Saxner, 474 U.S. 193, 199-

200 (1985).     See Dinsdale v. Commonwealth, 424 Mass. 176, 179-

182 (1997) (assistant attorneys general entitled to absolute

immunity in civil litigation); Reid v. New Hampshire, 56 F.3d

332, 337 (1st Cir. 1995) (prosecutors entitled to absolute

immunity for repeatedly misleading court).     See also Meade, The

Necessity and Reach of Prosecutorial Protections from Suit, 90

Mass. L. Rev. 106 (2006).     The concern is to protect the

function of the office by protecting the prosecutor from

harassing litigation so that the prosecutor may exercise

independent judgment in deciding which actions to bring.      See

Kalina v. Fletcher, 522 U.S. 118, 125 (1997); Dinsdale, 424

Mass. at 181.
                                                                   12


    The United States Supreme Court has "been quite sparing in

[its] recognition of absolute immunity, and [has] refused to

extend it any further than its justification would warrant"

(quotations and citation omitted).    Burns v. Reed, 500 U.S. 478,

487 (1991).   "The presumption is that qualified rather than

absolute immunity is sufficient to protect government officials

in the exercise of their duties."    Id. at 486-487.

    In determining questions of qualified and absolute immunity

under § 1983, the Supreme Court reads the statute "in harmony

with general principles of tort immunities and defenses rather

than in derogation of them."   Imbler v. Pachtman, 424 U.S. 409,

418 (1976).   As explained in Malley v. Briggs, 475 U.S. 335,

339-340 (1986):

    "[The] initial inquiry is whether an official claiming
    immunity under § 1983 can point to a common-law counterpart
    to the privilege he asserts. If an official was accorded
    immunity from tort actions at common law when the Civil
    Rights Act was enacted in 1871, the [next inquiry is]
    whether § 1983's history or purposes nonetheless counsel
    against recognizing the same immunity in § 1983 actions"
    (quotation and citation omitted).

The Supreme Court has made clear that this is a functional

approach, and that it is "the nature of the function performed,

not the identity of the actor who performed it," that informs

our immunity analysis.   Kalina, 522 U.S. at 127.

    Applying these principles, the Supreme Court has concluded

that prosecutors are absolutely immune from civil suits for
                                                                    13


damages under § 1983 for their actions in "initiating a

prosecution and in presenting the State's case."    Imbler, 424

U.S. at 431.    The Supreme Court has since recognized specific

functions that are integral to the absolute prosecutorial

immunity recognized in Imbler that are thus also accorded

absolute immunity.    These functions include appearing "in court

in support of an application for a search warrant and the

presentation of evidence at that hearing," Burns, 500 U.S. at

492, and "prepar[ing] and filing . . . [a criminal] information

and [a] motion for an arrest warrant," Kalina, 522 U.S. at 129.

Such actions "occur in the course of [the prosecutor's] role as

an advocate for the State [and] are entitled to the protections

of absolute immunity."    Id. at 126, quoting Buckley v.

Fitzsimmons, 509 U.S. 259, 273 (1993).

       The Supreme Court, however, has rejected claims to absolute

immunity for a prosecutor's advice to police during a criminal

investigation, Burns, 500 U.S. at 495-496, a prosecutor's

fabrication of evidence before the grand jury that led to an

indictment, Buckley, 509 U.S. at 275-276, and a prosecutor's

statements to the press in announcing an indictment, id. at 276-

278.    Because such actions do not fall within the advocate's

role, "a prosecutor [who engages in these activities] is in no

different position than [any] other executive official[] [for

whom] qualified immunity is the norm."    Id. at 278.
                                                                   14


    The Supreme Court also has specifically addressed the

question of immunity for complaining witnesses.     When § 1983 was

enacted, "the term 'complaining witness' was used to refer to a

party who procured an arrest and initiated a criminal

prosecution."   Rehberg v. Paulk, 566 U.S. 356, 370 (2012).

Prosecutors act as complaining witnesses, not advocates, when

attesting to the facts in arrest warrant applications and

criminal complaints, and they are not absolutely immune from

civil suits for damages under § 1983 for those actions.     Indeed,

the Supreme Court has rejected a claim of absolute immunity for

a prosecutor's false statements made in an affidavit that was

attached to an application for an arrest warrant.    Kalina, 522

U.S. at 129-131.   The Supreme Court recognized that the

prosecutor was functioning as an advocate and exercising her

professional judgment when she drafted the affidavit, when she

determined that the evidence justified a probable cause finding,

and when she presented the information and motion to the court.

However, "[t]estifying about facts is the function of the

witness, not of the lawyer."   Id. at 130.   Because the

prosecutor was functioning as a "complaining witness" and not as

"an advocate" for the State when she attested to the facts in

the affidavit, she was entitled to qualified, not absolute,

immunity.   Id. at 131.   It is true that the State law in that

case required that an application for an arrest warrant be sworn
                                                                    15


or certified under penalty of perjury.     Id. at 129.   However,

any competent witness could perform that task; it was not

"necessary for the prosecutor to make that certification."       Id.

120-130.

     a.    Social workers and immunity.   i.   Filing care and

protection petition.    Plouffe was a DCF case worker and Gemski

was her supervisor.8   To the extent that the mother is

challenging the filing of the care and protection petition,

Plouffe and Gemski enjoy absolute immunity.     See Kalina, 522

U.S. at 129; Imbler, 424 U.S. at 431.     As the United States

Court of Appeals for the Ninth Circuit explained in Miller v.

Gammie, 335 F.3d 889, 896-898 (9th Cir. 2003), the initiation

and pursuit of child dependency proceedings are prosecutorial in

nature and therefore "likely entitled to absolute immunity."

Id. at 896-898.   See Millspaugh v. County Dep't of Pub. Welfare

of Wabash County, 937 F.2d 1172, 1176-1177 (7th Cir. 1991)

(social worker entitled to absolute immunity in child custody

case when presenting case to court); Vosburg v. Department of

Social Servs., 884 F.2d 133, 135 (4th Cir. 1989) (in filing

removal petition, social worker was acting in prosecutorial


     8 The mother also argues that Plouffe is not entitled to
absolute immunity because she was not a licensed social worker
at the time of her actions. This argument is unavailing, as we
look to the functions Plouffe was performing, not to her title
or license status. See Forrester v. White, 484 U.S. 219, 229
(1988).
                                                                  16


capacity and afforded absolute immunity from any liability

arising from this function); Minor v. State, 819 N.W.2d 383, 398

(Iowa 2012) (social worker who refers case to county attorney

for possible child in need of assistance petition "is performing

a function analogous to that of a prosecutor" and is afforded

absolute immunity).

     ii.   False statements in an affidavit supporting care and

protection petition.   We next turn to the mother's allegation

that Plouffe, with Gemski's approval,9 made false statements in

an affidavit in support of the care and custody petition and

that those false statements were knowingly and willingly made to

mislead the Juvenile Court.   In Massachusetts, a care and

protection proceeding is initiated by a person filing a care and

protection petition identifying the parties and affirming that a

child under the age of eighteen within the jurisdiction is in

need of care and protection within the meaning of the statutory

criteria set forth in G. L. c. 119, § 24.   The petition is

typically filed by a DCF employee but it does not have to be and

is signed under the pains and penalties of perjury.10   It must


     9 The parties do not dispute that Gemski's immunity for
approving Plouffe's actions is the same as Plouffe's immunity,
and we agree. See Van de Kamp v. Goldstein, 555 U.S. 335, 345
(2009).

     10"The person filing a care and protection petition must
allege 'under oath' that a child: '(a) is without necessary and
proper physical or educational care and discipline; (b) is
                                                                   17


allege facts satisfying the statutory criteria.     See Care &

Protection of Lillian, 445 Mass. 333, 337 (2005).

    The mother argues that Plouffe was functioning as a

complaining witness, similar to the prosecutor in Kalina, when

she submitted the affidavit in support of the petition and that

Plouffe and Gemski are thus not entitled to absolute immunity.

We agree.   The same reasoning that applied to the prosecutor in

Kalina applies here, where a social worker files an affidavit in

support of a care and protection petition.

    Numerous courts have analyzed the question of immunity in

the context of a care and protection petition and adopted this

approach.   See Austin v. Borel, 830 F.2d 1356, 1361-1363 (5th

Cir. 1987) (child protection workers were not entitled to

absolute immunity for their conduct in filing allegedly false

verified complaint); Millspaugh, 937 F.2d at 1176 (social

worker's application for ex parte order to have children taken

into custody "was much like a police officer's affidavit seeking

a search warrant, which . . . falls outside the scope of

absolute immunity"); Miller, 335 F.3d 889, 896-898 (recognizing




growing up under conditions or circumstances damaging to the
child's sound character development; (c) lacks proper attention
of the parent, guardian with care and custody or custodian; or
(d) has a parent, guardian or custodian who is unwilling,
incompetent or unavailable to provide any such care, discipline
or attention . . . .'" Care & Protection of Lillian, 445 Mass.
at 337, quoting G. L. c. 119, § 24.
                                                                   18


that Kalina requires narrow scope for absolute immunity and

parsing each action by social worker; only qualified immunity

protects prosecutor acting as complaining witness); Beltran v.

Santa Clara County, 514 F.3d 906, 908 (9th Cir. 2008) (social

workers "are not entitled to absolute immunity from claims that

they . . . made false statements in a dependency petition

affidavit"); Minor, 819 N.W.2d at 399 ("social worker who files

an affidavit along with a [child in need of assistance] petition

acts as a complaining witness" and is not afforded absolute

immunity).

    Nonetheless, DCF's brief asserts that the United States

Circuit Courts of Appeal "have widely held that government

social workers are entitled to absolute immunity from claims

related to their initiation and prosecution of child custody

proceedings."   DCF cites Millspaugh, 937 F.2d at 1176, in

support of the position that the United States Court of Appeals

for the Seventh Circuit is among those courts.   Millspaugh,

however, holds that "[t]he application for the initial order [to

obtain custody of the children] was much like a police officer's

affidavit seeking a search warrant," which "falls outside the

scope of absolute immunity."   DCF similarly misapprehends

Miller, 335 F.3d at 892, in which the Ninth Circuit acknowledged

that Kalina required the court "to clarify the narrow scope of

absolute immunity."   Five years after Miller, the Ninth Circuit
                                                                    19


held in Beltran, that social workers "are not entitled to

absolute immunity from claims that they . . . made false

statements in a dependency petition affidavit."    Beltran, 514

F.3d at 908.     See Thomas v. Kaven, 765 F.3d 1183, 1192-1193 &

n.7 (10th Cir. 2014) (does not directly address question but

notes doubt that doctors who treated child would be entitled to

absolute immunity for decision to seek judicial order to have

child involuntarily committed to residential treatment

facility).

    While DCF relies on cases from some United States Circuit

Courts of Appeal decisions that speak in broad terms about

social worker activities performed in preparing or initiating

proceedings, these cases were decided before Kalina and do not

address the narrower question we face concerning factual

affidavits furnished in support of a petition.    For example,

Ernst v. Child & Youth Servs. of Chester County, 108 F.3d 486,

494-495 (3d Cir. 1997), cert. denied, 522 U.S. 850 (1997), held

that social workers "are entitled to absolute immunity for their

actions on behalf of the state in preparing for, initiating, and

prosecuting dependency proceedings."    However, Ernst was decided

before Kalina.    Moreover, Ernst did not address the question at

issue:   the distinction between initiating the child protection

proceeding and a supporting factual affidavit.    Indeed, in B.S.

v. Somerset County, 704 F.3d 250, 267-270 (3d Cir. 2013), the
                                                                   20


United States Court of Appeals for the Third Circuit expressly

declined to answer the question of where to draw the line

between a child welfare employee's investigative and

prosecutorial functions.11

     DCF's reliance on Vosburg, 884 F.2d at 135-137, is

similarly misplaced.     Vosburg was decided before Kalina and did

not address the distinction between the petition initiating the

child removal action and a supporting factual affidavit.

Moreover, Vosburg recognized that social workers would not enjoy

absolute immunity for "conduct in investigating the possibility

that a removal petition should be filed."    Id. at 138.   See

Brent v. Wayne County Dep't of Human Servs., 901 F.3d 656, 684-

685 (6th Cir. 2018) (failing to cite Kalina);12 Abdouch v.

Burger, 426 F.3d 982, 989 (8th Cir. 2005) (addressing only

initiation of judicial proceedings, not false statement in

supporting affidavit).

     iii.   Statements during initial hearing.   We next turn to

the mother's allegations regarding Plouffe's testimony during


     11B.S., 704 F.3d at 270, recognizes that a child welfare
case worker's "[i]nvestigations conducted outside of the context
of judicial proceedings may still be susceptible to due process
claims."

     12 Brent, 901 F.3d at 685, however, would grant only
qualified immunity to a social worker who "execute[s] a removal
order that would not have been issued but for known falsities
that the social worker provided to the court to secure the
order."
                                                                    21


the initial hearing on the care and custody petition that there

had been speculation that the father had "affected" the child.

The mother again argues that Plouffe was functioning as a

complaining witness.    We disagree.   As noted above, a

complaining witness is one who procures an arrest or initiates a

criminal prosecution.    See Rehberg, 566 U.S. at 370.     However, a

complaining witness may then go on to testify at a hearing or

trial, at which point they are entitled to absolute immunity for

their testimony.    Id. at 371, citing Briscoe v. LaHue, 460 U.S.

325, 326 (1983).    See Aborn v. Lipson, 357 Mass. 71, 72-73

(1970) (testimony of witness in course of judicial proceeding is

absolutely privileged).    This absolute immunity for trial

witnesses also extends to grand jury witnesses and witnesses who

testify during other pretrial proceedings.     See Rehberg, 566

U.S. at 375; Williams v. Hepting, 844 F.2d 138, 141-143 (3d Cir.

1988) (witness immunity applies to testimony given at pretrial

hearings); Holt v. Castaneda, 832 F.2d 123, 125-126 (9th Cir.

1987) (same).    Absolute privilege also extends to a witness's

statement to a police officer made in the course of a criminal

investigation.   Correllas v. Viveiros, 410 Mass. 314, 319-320

(1991).   Accordingly, we conclude that once Plouffe was

testifying in court, she was no longer functioning as a
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complaining witness, but as a trial witness who was thus

entitled to absolute immunity.13

     In sum, DCF workers are protected by absolute immunity in

their decisions to initiate care and protection proceedings and

in testifying at the subsequent hearings or trials on the

petitions.   They are protected by qualified immunity, not

absolute immunity, (1) in investigations they conduct and (2)

regarding factual assertions they make on personal knowledge and

under oath when they are acting as a complaining witness by

executing an affidavit in support of a petition for care and

protection of a child.

     3.   DCF.   The mother also brought State and Federal

procedural due process claims against DCF based on DCF's failure

to provide her with some process by which to amend the safety

plans.    The sole relief that the mother sought was injunctive

relief in the form of an order requiring DCF to provide her with




     13We note that the mother also alleged that Plouffe and
Gemski acted unprofessionally prior to the filing of the
petition, misstated facts during a team meeting, and violated a
stipulation that the parties entered into after DCF received
temporary custody of the child in 2011. However, these claims
were dismissed for reasons other than absolute immunity, and the
mother does not make any arguments with respect to those other
reasons on appeal. As such, we do not address whether Plouffe
and Gemski are absolutely immune for those actions.
                                                                  23


the requested process.   The judge properly granted summary

judgment to DCF on these claims.14

     What appears to underlie the mother's desire for injunctive

relief is her belief that DCF would not have made its 2009 and

2011 findings of neglect but for the existence of the first and

second safety plans, which DCF claims that the mother violated

by allowing the child to have unsupervised contact with the

father.   The mother acknowledges in her amended complaint that

"DCF has no open matters pending against" the mother and "no

jurisdiction to enforce a service plan."15   DCF agrees that it

has no open case and in the absence of an open case, DCF has no

jurisdiction over the mother or the child.

     The mother's proposition is that if in the future she

allows the father, a registered sex offender, unsupervised

access to their minor child, and if DCF is so informed, the

mother will be held to answer because it was a violation of a


     14 Because we "treat[] the procedural due process
protections of the Massachusetts and United States Constitutions
identically," we do not address these claims separately.
Liability Investigative Fund Effort, Inc. v. Massachusetts Med.
Professional Ins. Ass'n, 418 Mass. 436, 443 (1994).
     15 This is a dispute of DCF's own making in two ways.

First, by entering into the second safety plan in 2009 that
allowed the father unsupervised contact with the child in an
emergency, DCF created the impression that it would not be
neglect if the mother left the child in the unsupervised care of
the father. Second, Plouffe previously testified by affidavit
that DCF became "re-involved in June 2011 . . . due to concerns
that [the father] was allowed unsupervised contact with [the
child] in violation of the [second] safety plan."
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voluntary safety plan that she has no mechanism to modify.

Leaving aside whether the mother can withdraw from a voluntary

safety plan or whether DCF is a party to the alleged 2012 safety

plan, DCF's authority to act is limited to the statutory

criteria set forth in G. L. c. 119, §§ 24-29.   If, in the

future, the mother allows a registered sex offender unsupervised

access to the minor child, and if DCF is so informed, DCF's

charge would be to determine whether an incident of abuse or

neglect had occurred on the facts then presented, regardless of

the existence of a safety plan.   See G. L. c. 119, § 24.    See

also 110 Code Mass. Regs. § 4.32 (2009); 110 Code Mass. Regs.

§ 2.00 (2008).

    Moreover, to the extent this issue arises in the future,

there are processes by which the mother may challenge any

finding of neglect.   For example, the mother may challenge a

finding of neglect through DCF's hearing process, see 110 Code

Mass. Regs. § 10.06(11), and through judicial review of any

future care and protection petitions, if any.   These processes

provide the mother with the due process that she seeks.

    Conclusion.    We thus affirm the judgment entered in DCF's

favor.   We further affirm the judgment entered in Plouffe's and

Gemski's favor to the extent the mother alleged violations of 42

U.S.C. § 1983 based on Plouffe's court room testimony, and

Gemski's approval of that testimony.   However, the judgment
                                                                  25


entered in Plouffe's and Gemski's favor is vacated to the extent

that the mother alleged violations of § 1983 based on Plouffe's

conduct of allegedly making false factual assertions in support

of the care and protection petition and Gemski's alleged

approval of that conduct.   The case is remanded for further

proceedings consistent with this opinion.

                                   So ordered.
