               Case: 12-15237       Date Filed: 08/21/2013       Page: 1 of 36


                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                     No. 12-15237
                               ________________________

                           D.C. Docket No. 1:10-cv-02742-AT



NICOLE MADDOX,
Individually and as Next of Friend of J.O., Minor Child,

                                                                           Plaintiff-Appellee,

                                            versus

BABETTE STEPHENS,

                                                                       Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________
                                  (August 21, 2013)

Before PRYOR and ANDERSON, Circuit Judges, and WALTER,* District Judge.


____________________
       * Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
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ANDERSON, Circuit Judge:

       Plaintiff Nicole Maddox (“Maddox” or “mother”), individually, and as Next

of Friend of J.O., a minor child, brought suit for violations of due process rights

under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, and for various

state law torts. The suit was brought against the Georgia Department of Human

Services, Division of Family & Children Services (“DFCS”), Gwinnett County

DFCS, and Appellant Babette Stephens, a social worker with Gwinnett County

DFCS (“Stephens”) (collectively “Defendants”).1 The only claim directly relevant

to this appeal is whether Appellant Stephens is entitled to qualified immunity on

Maddox’s substantive due process claim that Stephens violated her liberty interests

in the care, custody, and management of her minor child (“child” or “J.O.”) with

respect to Stephens’ actions in preparing and implementing a safety plan that

allegedly prohibited Maddox from removing the child from the paternal

grandmother’s care. The district court denied Stephens summary judgment on this

claim, holding that Stephens was not entitled to qualified immunity. Stephens now

brings this interlocutory appeal.

       After thorough review of the record, and with the benefit of oral argument,



       1
               Maddox also brought claims against Children’s Healthcare of Atlanta, Inc., which
are not presently before this Court.

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we reverse the district court’s denial of qualified immunity to Stephens on

Maddox’s substantive due process claim and remand for further proceedings not

inconsistent with this opinion.

                 I. FACTUAL AND PROCEDURAL BACKGROUND2

       J.O. was born in early September 2008 to Maddox and Michael Olayiwola

(“Mr. Olayiwola” or “father”). Maddox and Mr. Olayiwola were not married but

were living together at the time in Gwinnett County, Georgia. They also lived with

Mr. Olayiwola’s mother, Veronica Olayiwola (“Ms. Olayiwola” or “grandmother”).

As the unwed mother of J.O., Maddox was the only person who had legal custody

of J.O. prior to court proceedings on February 12, 2009, pursuant to O.C.G.A. § 19-

7-25 (“Only the mother of a child born out of wedlock is entitled to custody of the

child, unless the father legitimates the child . . . . Otherwise, the mother may

exercise all parental power over the child.”).

       On November 9, 2008, when J.O. was two months old, Maddox, Mr.

Olayiwola, and Ms. Olayiwola took her to Children’s Healthcare of Atlanta, Inc.

(“Hospital”). J.O. was diagnosed with a rare, potentially life-threatening disease


       2
               Many of the relevant facts are also discussed in the Discussion section infra. On
interlocutory appeal of a district court’s denial of summary judgment, denying qualified
immunity, “we do not make credibility determinations or choose between conflicting testimony,
but instead accept Plaintiff’s version of the facts drawing all justifiable inferences in Plaintiff’s
favor.” Bozeman v. Orum, 422 F.3d 1265, 1267 (11th Cir. 2005).

                                                   3
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known as Kasabach-Merritt Syndrome. This is a chronic illness, and J.O. required

24-hour daily care. J.O. remained in the Hospital during many of the relevant

events and was discharged on December 10, 2008, to the father and the

grandmother.

      Because both Mr. Olayiwola and Maddox worked, Ms. Olayiwola stayed

with J.O. at the Hospital on a daily basis and received training on how to care for

J.O.’s medical needs. Maddox did not own a car and did not have a driver’s

license, so she relied on Mr. Olayiwola and other family members for

transportation to the Hospital.3 Because of her work schedule and lack of

transportation, Maddox was not able to visit J.O. daily while J.O. was in the

Hospital. Ms. Olayiwola was the only family member qualified to care for the

special needs of the child while the child was in the Hospital.

      On November 12, 2008, Mr. Olayiwola and Maddox had a heated verbal

argument. The argument continued as they arrived at the Hospital, and security

officers were called to the scene. Both parties were advised that any future similar

conduct would result in both being asked to leave the Hospital. Social workers at

the Hospital then spoke with Mr. Olayiwola and Maddox regarding the dispute.

During these meetings with the social workers, both parties made allegations of


      3
             Maddox worked approximately 34-36 hours per week.

                                           4
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abuse and neglect against each other. Mr. Olayiwola alleged that Maddox was

using drugs and would leave J.O. in the apartment unsupervised, and Maddox

alleged that Mr. Olayiwola was physically abusive. Because of these allegations,

the matter was referred to Gwinnett County DFCS. Stephens was the Social

Services Caseworker responsible for after-hours referrals at this time. Stephens

went to the Hospital the next day and spoke directly with Mr. and Ms. Olayiwola.

She informed Mr. Olayiwola that just being J.O.’s father did not give him any legal

rights and explained the legitimization process. She later spoke with Maddox by

telephone, and Maddox informed her that she was now temporarily staying with her

sister in Fulton County, Georgia, after the argument.4 The matter was also referred

to the Hospital’s daytime social worker, Tonya Brailey (“Brailey”).

       On November 14, 2008, Stephens talked with Brailey about involving

ChildKind, a placement service for medically fragile children, in the case. On

November 19, 2008, Brailey again talked to Stephens regarding the placement with

ChildKind, but Stephens had not completed the referral and stated she would look

into it. Brailey also talked to Maddox and told her that J.O.’s medical care was

going to be intensive and that Maddox needed to be available to get training when



       4
               Stephens confirmed that Mr. Olayiwola had been physically abusing Maddox, but
she did not substantiate Mr. Olayiwola’s allegations of Maddox’s drug use and behavior.

                                              5
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J.O. was discharged from the Hospital. Maddox indicated that she would be

getting a car in the next few weeks, but in the meantime she could use Medicaid

transportation to make herself available for the training. The record does not reveal

that Maddox began training to take care of J.O. at this time nor at any time prior to

J.O.’s release from the Hospital.

      On November 25, 2008, Brailey and Stephens discussed the possibility of

preparing a safety plan to avoid sending the child to a facility when J.O. was

discharged, and they planned to meet with the parents and the grandmother on

December 1. A safety plan is prepared by DFCS employees when there is an

identified risk of safety to the child. It is an agreement between DFCS and the

child’s caregiver and addresses areas of concern regarding the health of the child.

      Two days later, on November 27, 2008, there was a physical altercation

involving the grandmother and Maddox at the Hospital. Maddox was expelled

from the Hospital and told not to come back or she would be charged with criminal

trespassing. Stephens spoke with Maddox regarding this incident on the following

Monday (December 1). After speaking with Maddox, Stephens called Brailey and

asked that Maddox at least be granted supervised visitation at the Hospital.

Although Brailey said that the Hospital would consider this possibility, she

believed that the ban was “final.” Although the December 1 meeting with the

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parents and the grandmother did not occur, Brailey informed Stephens during their

telephone calls on December 1 that J.O.’s medications had again been changed and

that there was still no expectation of a discharge date.

      That same day, Stephens called Mr. Olayiwola to follow up on his efforts to

seek custody of J.O. Although she testified that it was contrary to DFCS standard

practices, Stephens called the Gwinnett County Superior Court at Mr. Olayiwola’s

request to ask about the status of his petition for legitimation and custody. The

court informed her that the hearing likely would not be before January 2009 and

thus that Mr. Olayiwola could not be legitimated before that time. Stephens again

explained to the father that, as a non-married father, he had to go through court

proceedings to establish his paternity.

      On December 8 and December 9, Stephens informed Brailey that DFCS

could not authorize custody or discharge to the father because the father had not

been legitimated. Stephens also informed Brailey that, because she had recently

learned that Maddox now resided in Fulton County, she did not believe that

Gwinnett County DFCS could deprive the child and that she was transferring the

case to Fulton County DFCS.

      On December 9, Brailey notified Stephens that J.O. was to be released to the

father during the upcoming week. After speaking with Hospital administration,

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Brailey was informed that the child could be released to the father despite the fact

that DFCS could not authorize such release. On December 10, 2008, Hospital

officials discharged J.O. to Mr. Olayiwola—knowing that Ms. Olayiwola, the only

family member qualified to care for the child, would be living with him and

providing care—because he was originally presented as the father of the child and

because the child had not been deprived by DFCS. Neither the Hospital nor

Stephens notified Maddox that J.O. was released. Stephens assumed, after

notifying Fulton County DFCS that the child had been released, that Fulton County

DFCS would notify Maddox.

       After Stephens contacted Fulton County DFCS to advise them of J.O.’s

release, she spoke with Anne Rae (“Rae”), her supervisor, who advised her to

prepare a safety plan (“Safety Plan”). The night J.O. was released from the

Hospital, Stephens met with the grandmother at her residence and prepared the

Safety Plan.5 While preparing the Safety Plan, Stephens was aware that Maddox


       5
                 The district court found that the “evidence is in dispute as to when the safety plan
was actually prepared.” Doc. 115 at 20 n.26. Stephens testified in her deposition that the Safety
Plan was prepared after J.O. was released from the Hospital at the grandmother’s apartment. By
contrast, the grandmother testified at the juvenile court proceedings that she left the hospital with
the Safety Plan in hand. However, Maddox waived any challenge that there was a material issue
as to this point. At the motion for summary judgment stage, Stephens prepared a “statement of
material facts” that stated, in relevant part: “[t]hat evening, after Stephens was advised that
[Hospital] had discharged J.O., Stephens’ supervisor . . . instructed Stephens to meet with [father
and/or grandmother] to create a document known as the ‘Safety Plan.’” Doc. 79-1 at 11. In
response, Maddox “admitted” this material fact. Furthermore, in Maddox’s response to

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was the only person with legal custody of the child. Maddox, however, was not

present for the signing of the Safety Plan.

       The Safety Plan provides, in relevant part, that:

       “[Grandmother] will contact Babette Stephens in the event Natural
       Mother, Nicole Maddox or anyone else attempt to remove [J.O.] from
       [grandmother’s] care.”
       “[Grandmother] will also contact Gwinnett P.D. immediately if anyone
       attempts to remove [J.O.] from [grandmother’s] care.”
       “[Grandmother] will assure [J.O’s] medical needs are met and follow the
       home care and follow-up appointment as instructed and explained at
       [J.O.’s] release from the hospital 12/10/08.”
       “Family will continue to cooperate with the Department during this
       investigation and follow recommendations as presented.”
       “Family will notify Stephens and the Department of any changes in
       address and phone numbers immediately.”

This Safety Plan was signed by Ms. Olayiwola and Stephens. Maddox was not

notified before the preparation of this Safety Plan and did not sign the Safety Plan.

       Willa Wagner Howick, J.O.’s guardian ad litem, testified, and it is

undisputed for purposes of this appeal, that Maddox was not properly trained to



Defendants’ motion for summary judgment, she stated that, “Stephens, the evening of December
10, 2008, went to [grandmother’s] apartment and prepared the safety plan, signed only by her and
[grandmother].” Doc. 94 at 12. Maddox has admitted that Stephens prepared the Safety Plan
after J.O. was released from the Hospital for purposes of this appeal.

        Moreover, all of the documentary evidence supports that the Safety Plan was prepared
after J.O.’s discharge and at Mr. and Ms. Olayiwola’s apartment. It is doubtful that a reasonable
jury could find, on this record, solely on the basis of the grandmother’s remarks at a hearing
focused on other matters, that the Safety Plan was actually prepared before J.O.’s discharge.
However, we do not in any event believe that this factual issue is material to this appeal.

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take care of the child at the time of discharge. The only family member trained to

care for the child at the time of discharge was the grandmother.

      After Maddox called the hospital to check on J.O. and was informed that J.O.

had already been discharged, Maddox called Stephens. Maddox asked Stephens

how they could release J.O. without telling her and told Stephens that she wanted

to go get J.O. from the grandmother’s apartment. According to Maddox, Stephens

told her “you can’t go over there and get her and that it will only make things

worse, that if the police are involved . . . . then [J.O.] could be taken away from

both of the parents and that [J.O.] could be placed in a foster home.”

      Despite Stephens’ advice, Maddox went to Mr. and Ms. Olayiwola’s

apartment. Ms. Olayiwola would not open the door and called the police and

Stephens. Maddox also called the police. When the police arrived, an officer went

inside the apartment and Ms. Olayiwola provided the officer with a copy of the

Safety Plan. The police officer then spoke with Stephens on the telephone. After

the officer talked on the phone with Stephens, Maddox was not permitted to see the

child. After the police showed Maddox a copy of the Safety Plan—the first time

she had seen it—she left the apartment.

       Nothing in the record indicates precisely what was said during the telephone

call between the police officer and Stephens. However, taking all reasonable

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inferences in favor of Maddox, we assume that Stephens made statements on the

telephone that night—to the police, to Maddox, and to the grandmother—that led

them all to believe that Maddox should not be permitted to take J.O. away because

Maddox was incapable of caring for the child’s medical needs.

         After Stephens spoke with the grandmother and the police, she drove to the

apartment but arrived after both the police and Maddox had left. While at the

apartment, Stephens talked to the grandmother, and also talked to Maddox on the

telephone. Stephens asked Maddox why she was trying to see J.O. so late at night

and why she had left. Maddox responded that she left because the police were

there.

         On February 5, 2009, in response to Mr. Olayiwola’s Petition for

Legitimization and Custody/Visitation, Maddox filed an Amended Answer,

Counterclaim and Motion for Immediate Change of Custody and a Response to

Plaintiff’s Request for Full Custody. At a hearing that month, the Gwinnett County

Superior Court approved Mr. Olayiwola’s petition for legitimization, ordered that

physical custody be with Mr. Olayiwola, ordered that temporary joint legal custody

be with Mr. Olayiwola and Maddox, transferred the case to Gwinnett County

Juvenile Court, and appointed a guardian ad litem “due to the child’s frail health,

need for constant medical attention, and a pending DFCS investigation.” Doc. 105-

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4 at 1-2.6 After this hearing, Maddox began attending J.O.’s doctor’s appointments

and began training to provide care for J.O.

      After an August 17, 2009, hearing, the juvenile court held that “the child has

been well-taken care of by the grandmother, who has undergone the training and

education.” Id. at 6. The court continued that “[t]he child has continued to

progress and stay safe with the grandmother and the medical care givers believe

that the child is well-taken care of.” Id. Although the court was “deeply troubled

by the procedural history of this case,” and although Maddox had “regularly and

consistently attended the out patient appointments to learn how to care for her

daughter and is continuing to learn procedures and the medication regimen,” the

court granted emergency temporary custody to the grandmother because “the

grandmother is the only person involved in the child’s life who is capable of

properly caring for the child at this time.” Id. at 6-7.

      After a September 9, 2009, hearing, the juvenile court again held that “[t]he

mother needs more parenting time to demonstrate to the Court and the medical

team that she is capable of caring for her child on her own.” Doc. 105-5 at 2. After

a November 12, 2009, hearing, the court ordered that Maddox shall have both

physical and legal custody of J.O.


      6
             Howick was subsequently appointed as guardian ad litem.

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      Maddox subsequently filed her complaint under § 1983 against Defendants,

claiming constitutional and state law violations. As relevant to this appeal,

Maddox alleged that Stephens violated her substantive due process rights by

interfering with her protected liberty interest in the care, custody, and management

of her child. Maddox also alleged that Stephens’ failure to follow Georgia law and

administrative protocols constituted a procedural due process violation.

      Defendants filed a motion to dismiss on September 30, 2010. On November

19, 2010, the district court granted in part and denied in part Defendants’ motion to

dismiss. As relevant to the instant appeal, the district court granted the motion to

dismiss on Maddox’s procedural due process claim against Stephens, but denied

the motion to dismiss on Maddox’s substantive due process claim against Stephens.

With regard to the procedural due process claim, the district court held that

Stephens’ failure to follow those procedures was “a random and unauthorized act

of a state employee for which adequate postdeprivation process is available.” Doc.

33 at 15 (quoting Powell v. Ga. Dep’t of Human Res., 114 F.3d 1074, 1081 (11th

Cir. 1997)) (internal quotation marks omitted). The district court further held that

“Maddox may seek postdeprivation relief in the form of damages under Georgia

tort law.” Id. (citing Powell, 114 F.3d at 1074). Accordingly, the district court




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dismissed Maddox’s procedural due process claim.7 The district court did find,

however, that Maddox had adequately pled her substantive due process claim that

Stephens had unconstitutionally interfered with Maddox’s constitutionally

protected liberty interest in the care, custody, and maintenance of her child; the

district court denied Defendants’ motion to dismiss on this claim. Id. at 13.

       After discovery, Defendants filed a motion for summary judgment. On

September 28, 2012,8 the district court entered an order granting in part and

denying in part Defendants’ motion for summary judgment. As relevant to this

appeal, the district court denied Stephens summary judgment on Maddox’s

substantive due process claim, finding that it could not conclude at the summary

judgment stage that Stephens was entitled to qualified immunity. Stephens timely

filed this interlocutory appeal, arguing that the district court erred by denying her

qualified immunity on Maddox’s substantive due process claim.

                              II. STANDARD OF REVIEW

       We review de novo a district court’s denial of summary judgment based on



       7
               Because this claim was dismissed at the motion to dismiss stage and is not
properly subject to interlocutory review, Maddox’s procedural due process claim is not properly
before us on appeal.
       8
              This case was originally assigned to Judge Thomas Thrash, who ruled on the
motion to dismiss proceedings. The case was then transferred to Judge Amy Totenberg when she
was appointed to the bench in March 2011.

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qualified immunity, applying the same legal standards as the district court.

Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013). Summary

judgment is appropriate if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a), (c); Celotex Corp. v. Catrett, 477 U.S. 317,

323-24, 106 S. Ct. 2548, 2553 (1986). We view the record and draw all reasonable

inferences in the light most favorable to the non-moving party. Sims v. MVM,

Inc., 704 F.3d 1327, 1330 n.2 (11th Cir. 2013).

                                  III. DISCUSSION

                                           A.

      The Fourteenth Amendment of the United States Constitution protects

against deprivation by state action of a constitutionally protected interest in “life,

liberty, or property” without the due process of law. Zinermon v. Burch, 494 U.S.

113, 125, 110 S. Ct. 975, 983 (1990). The Due Process Clause provides two

different kinds of constitutional protections: procedural due process and

substantive due process. McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994)

(en banc). A violation of either of these two kinds of protection may form the basis

for a suit under § 1983. Id.

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      The Supreme Court has held that “parents have a constitutionally protected

liberty interest in the care, custody and management of their children.” Doe v.

Kearney, 329 F.3d 1286, 1293 (11th Cir. 2003) (citing Santosky v. Kramer, 455

U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982)). This interest “is perhaps the

oldest of the fundamental liberty interests recognized by [the Supreme Court].”

Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); see

also Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554 (1978) (“We have

recognized on numerous occasions that the relationship between parent and child is

constitutionally protected.”); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S. Ct.

1526, 1541-42 (1972) (“The history and culture of Western civilization reflect a

strong tradition of parental concern for the nurture and upbringing of their children.

This primary role of the parents in the upbringing of their children is now

established beyond debate as an enduring American tradition.”). It is undisputed in

this case that Maddox has a liberty interest in the care, custody, and management of

J.O. Maddox argues that Stephens violated this liberty interest, and therefore that

she has sufficiently asserted a substantive due process violation.

      However, “not every wrong committed by a state actor rises to the level of a

‘constitutional tort,’ sufficient to trigger a substantive due process violation,” Lee

v. Hutson, 810 F.2d 1030, 1032 (11th Cir. 1987), as “the Constitution does not

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protect against all encroachments by the state onto the interests of individuals,”

Robertson v. Hecksel, 420 F.3d 1254, 1262 (11th Cir. 2005). The Supreme Court

has “previously rejected claims that the Due Process Clause should be interpreted

to impose federal duties that are analogous to those traditionally imposed by state

tort law,” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128, 112 S. Ct.

1061, 1070 (1992), and it is clear that “[m]ere negligence does not rise to the level

of a Fourteenth Amendment violation,” Bendiburg v. Dempsey, 909 F.2d 463, 470

(11th Cir. 1990); see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.

Ct. 1708, 1718 (1998) (“[L]iability for negligently inflicted harm is categorically

beneath the threshold of constitutional due process.”); Waddell v. Hendry Cnty.

Sheriff’s Office, 329 F.3d 1300, 1305 (11th Cir. 2003) (“We know for certain . . .

that a showing of negligence is insufficient to make out a constitutional due

process claim.”). Instead, plaintiffs face a high bar when attempting to establish a

substantive due process violation as “conduct by a government actor will rise to the

level of a substantive due process violation only if the act can be characterized as

arbitrary or conscience shocking in a constitutional sense.” Waddell, 329 F.3d at

1305. Even intentional wrongs seldom violate the Due Process Clause, id., and

“only the most egregious official conduct can be said to be ‘arbitrary in the

constitutional sense,’” Cnty. of Sacramento, 523 U.S. at 846, 118 S. Ct. at 1716

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(quoting Collins, 503 U.S. at 129, 112 S. Ct. at 1071). “Determinations of what is

egregious conduct must not be made in the glow of hindsight; decisions made by a

government actor must be egregious—that is, shock the conscience—at the time

the government actor made the decision.” Waddell, 329 F.3d at 1305. Conduct

intended to injure in some way that is unjustifiable by any government interest is

the sort of official action most likely to rise to the conscience-shocking level, id.,

and we must conduct an “exact analysis of circumstances before any abuse of

power is condemned as conscience shocking,” Cnty. of Sacramento, 523 U.S. at

850, 118 S. Ct. at 1718-19.

      Finally, the Supreme Court “has always been reluctant to expand the concept

of substantive due process because guideposts for responsible decisionmaking in

this unchartered area are scarce and open-ended.” Collins, 503 U.S. at 125, 112 S.

Ct. at 1068; see also Waddell, 329 F.3d at 1304 (“We must take seriously the

Supreme Court’s caution against expanding the concept of substantive due

process.”). Specifically, in § 1983 cases asserting violations of parental liberty

interests, “we are venturing into the murky area of unenumerated constitutional

rights.” Robertson, 420 F.3d at 1256 (quoting McCurdy v. Dodd, 352 F.3d 820,

825 (3d Cir. 2003)). In determining whether the plaintiff has alleged an actual

deprivation of a constitutional violation, we must “tread lightly” because, “[b]y

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extending constitutional protection to an asserted right or liberty interest, we, to a

great extent, place the matter outside the arena of public debate and legislative

action. We must therefore ‘exercise the utmost care whenever we are asked to

break new ground in this field,’ lest the liberty protected by the Due Process Clause

be subtly transformed into the policy preferences of the Members of this Court.”

Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 2267-

68 (1997)).

      Even if we were to find that Stephens violated Maddox’s constitutional

rights, Stephens is not liable if she is protected by qualified immunity. Qualified

immunity offers “complete protection for government officials sued in their

individual capacities if their conduct ‘does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’”

Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). The doctrine

protects from suit “all but the plainly incompetent or one who is knowingly

violating the federal law,” id. (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir. 2002)), and prevents public officials from being intimidated—by the threat of

lawsuits that jeopardize the official and her family’s welfare personally—from

doing their jobs, Foy v. Holston, 94 F.3d 1528, 1534 (11th Cir. 1996). It is a

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“muscular doctrine that impacts on the reality of the workaday world as long as

judges remember that the central idea is this pragmatic one: officials can act

without fear of harassing litigation only when they can reasonably

anticipate—before they act or do not act—if their conduct will give rise to damage

liability for them.” Id. (citing Davis v. Scherer, 468 U.S. 183, 195, 104 S. Ct. 3012,

3019-20 (1984)). “If objective observers cannot predict—at the time the official

acts—whether the act was lawful or not, and the answer must await full

adjudication in a district court years in the future, the official deserves immunity

from liability for civil damages.” Id. (citing Elder v. Holloway, 510 U.S. 510, 513-

15, 114 S. Ct. 1019, 1022 (1994)).

      If the public official first shows that she was acting within the scope of her

discretionary authority—a burden undisputably met by Stephens here—the burden

shifts to the plaintiff to establish that qualified immunity is not appropriate. Id. at

1532. To determine whether a plaintiff has met her burden, a court must both

“decide whether the facts that a plaintiff has alleged . . . make out a violation of a

constitutional right” and “whether the right at issue was ‘clearly established’ at the

time of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232,

129 S. Ct. 808, 816 (2009). A court may undertake these two inquiries in either

order. Id. at 236, 129 S. Ct. at 818. Accordingly, we are afforded the flexibility to

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determine that the right allegedly violated was not clearly established without

deciding whether a constitutional violation occurred at all. See, e.g., Loftus v.

Clark-Moore, 690 F.3d 1200, 1204 (11th Cir. 2012); Lewis v. City of West Palm

Beach, Fla., 561 F.3d 1288, 1291 (11th Cir. 2009).

      A right may be clearly established for qualified immunity purposes in one of

three ways: “(1) case law with indistinguishable facts clearly establishing the

constitutional right; (2) a broad statement of principle within the Constitution,

statute, or case law that clearly establishes a constitutional right; or (3) conduct so

egregious that a constitutional right was clearly violated, even in the total absence

of case law.” Lewis, 561 F.3d at 1291-92 (internal citations omitted). It is

undisputed that only the third and final category is relevant to this appeal, and thus

that Stephens is entitled to qualified immunity unless her conduct fits into this third

category. This third category, however, is “narrow” and “encompasses those

situations where ‘the official’s conduct lies so obviously at the very core of what

the [relevant constitutional provision] prohibits that the unlawfulness of the

conduct was readily apparent to the official, notwithstanding the lack of case law.’”

Loftus, 690 F.3d at 1205 (quoting Terrell v. Smith, 668 F.3d 1244, 1257 (11th Cir.

2012)).

      “The inquiry whether a federal right is clearly established ‘must be

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undertaken in light of the specific context of the case, not as a broad general

proposition.’” Id. at 1204 (quoting Coffin v. Brandau, 642 F.3d 999, 1013 (11th

Cir. 2011) (en banc)). “The relevant, dispositive inquiry in determining whether a

right is clearly established is whether it would be clear to a reasonable [state

official] that [her] conduct was unlawful in the situation [she] confronted.” Id.

(quoting Vinyard, 311 F.3d at 1350). “Violations of the right to family association

are determined by a balancing of competing interests,” and we have held that “state

officials who act to investigate or protect children where there are allegations of

abuse almost never act within the contours of ‘clearly established law.’” Foy, 94

F.3d at 1537.

                                          B.

      We stress that, on appeal, only Maddox’s substantive due process claim is

properly before us. And, after thorough review, we hold that, even assuming

arguendo that Maddox has established a procedural due process violation and even

assuming arguendo that Stephens violated Maddox’s substantive due process

rights, Stephens is entitled to qualified immunity because the law was not clearly

established that Stephens’ actions were so conscience shocking as to violate

Maddox’s liberty interest in the care, custody, and management of J.O.

      The precise factual context is important to understand our holding that the

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undisputed facts demonstrate that Stephens is entitled to qualified immunity on this

substantive due process claim. First, a reasonable jury could not find that Stephens

bore responsibility for the actual discharge of the child to the father and the

grandmother. Stephens told Brailey and the Hospital on December 8 and 9—two

days and one day before J.O. was discharged from the Hospital—that neither she

nor Gwinnett County DFCS could authorize the child’s release to the father

because the father had not been legitimated. Brailey responded that she was aware

of this fact, but the Hospital administration nevertheless released the child to the

father and grandmother on December 10 despite Stephens’ clear indications that

Gwinnett County DFCS could not authorize such release.

       Second, it is undisputed that Stephens believed that Maddox had moved her

domicile to Fulton County in December of 2008. Accordingly, before even being

notified of J.O.’s impending release, Stephens had begun initiating proceedings to

transfer the case to Fulton County.9 The record confirms that Cheryl D. Ward, a

Social Services Supervisor for Fulton County DFCS, received notification of this

transfer at least by December 9, one day before J.O.’s release from the Hospital.



       9
               Maddox has not argued below and does not argue on appeal that Stephens should
not have transferred the case to Fulton County. In other words, Maddox does not dispute that
Fulton County DFCS should have had primary jurisdiction and responsibility as of the time the
child was discharged by the Hospital into the care of the father and the grandmother.

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The record also reveals that Stephens had informed Brailey on December 8—prior

to Stephens learning that the child was going to be discharged that week—that the

case was being transferred to Fulton County DFCS because the mother was no

longer a resident of Gwinnett County. Brailey then spoke with Stephens on

December 10, informed her that the child was to be released, and spoke with Ward

(of Fulton County DFCS) to notify her of J.O.’s discharge. The record indicates

that Stephens and Rae believed that they were not able to authorize any deprivation

proceedings because the mother was not residing in Gwinnett County, and

Stephens also relayed this fact to Brailey.

         Third, it is undisputed that J.O. had serious medical needs and that Maddox

was not qualified to care for those needs. It is also undisputed that the grandmother

was the only family member who was qualified to care for the medical needs of the

child. And it is undisputed that serious risks to the health and safety of the child

would have been posed if the child were under the sole care of Maddox. Maddox

was not qualified to care for the child’s needs because she had not received the

necessary training before J.O.’s discharge from the Hospital. On this summary

judgment record, no reasonable jury could find otherwise with respect to these

facts.

         Fourth, no reasonable jury could find that Stephens bore responsibility for

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the fact that Maddox was not trained to take care of the medical needs of the child.

A meeting had been scheduled for December 1, 2008, for Stephens, Brailey, the

parents, and the grandmother to discuss arrangements for the care of J.O. upon her

discharge from the Hospital.10 The evidence indicates that Maddox visited the

child on Thanksgiving Day, November 27, and that an altercation occurred

between Maddox and the grandmother. Hospital security investigated and imposed

a ban on Maddox’s presence at the Hospital. The next day, Brailey talked with

Maddox and the grandmother, and advised Maddox that she would not be

permitted to visit the Hospital, and furthermore that she was not sure that the

December 1 meeting would still take place. Stephens was not involved in, and was

not even aware of, any of these events until the following Monday, December 1.

After talking with Maddox about the Thanksgiving Day incident on December 1,

Stephens contacted both Brailey and Hospital security and requested that Maddox

at least be granted supervised visits with the child. Brailey indicated that she

would check to see if anything could be done but that she believed the decision was

final. On this summary judgment record, no reasonable jury could find that


       10
                On November 25, Stephens and Brailey had planned to schedule this meeting for
December 1 whereby they would prepare a safety plan with the grandmother and the mother that
would not require the child to be placed with child care. Obviously, Stephens and Brailey were
contemplating a consensual agreement such that the grandmother would provide the necessary
care for the child upon her discharge from the Hospital.

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Stephens bore responsibility for the fact that Maddox was banned from the

Hospital or for the fact that Maddox did not receive the training that would have

been necessary for her to become qualified to care for the child’s medical needs.11

       Considering these facts, the primary possible deficiency with respect to

Stephens’ actions is the failure to trigger court action within seven days following

the discharge to the father and grandmother pursuant to O.C.G.A. § 15-11-14.

However, Maddox’s procedural due process claims are not before us because they

were dismissed at the motion to dismiss stage in this litigation. Although the only

claim Maddox is pursuing in this appeal is a substantive due process claim, it is

apparent that the focus of her challenge to Stephens’ actions is that Stephens failed

to follow the procedures set out in the Georgia statutes for depriving a parent of

custodial rights.12 To facilitate a better understanding of her appeal, we set out first


       11
               Prior to this incident, on November 14, Brailey had advised Maddox that she
needed to begin training to take care of the child. There is no record evidence that Stephens’
actions in any way contributed to or caused Maddox not to begin training.

        Moreover, the record suggests that it was probably impossible in any event to fully train
Maddox prior to the time the child was discharged from the Hospital. As of February 5, 2009,
the matter of Maddox’s custodial rights was under the supervision of the state court. On that
date, Maddox filed a counterclaim in the father’s previously filed legitimization proceedings.
Significantly, although court supervision of the matter commenced in February 2009, and the
training of Maddox commenced shortly thereafter, the juvenile court could not conclude that
Maddox was capable of caring for her child until after a hearing on November 12, 2009, where
the court awarded Maddox full legal and physical custody of J.O.
       12
              See, e.g., Appellee Br. at 16 (“Then in violation of [Maddox’s] and J.O.’s
[Fourteenth] Amendment rights to liberty they gave custody of J.O. to [Ms. Olayiwola] without

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her argument that Stephens violated her procedural due process rights, followed by

the arguments for Stephens in response, and finally we explain why the instant

facts fall far short of a clearly established substantive due process claim.

       Maddox’s argument in support of finding a violation of her procedural due

process rights proceeds along the following line.13 Maddox argues that, even if

Stephens bore no responsibility for the initial discharge by the Hospital of the child

to the father and grandmother, Stephens’ preparation of the Safety Plan, and her

telephone conversations with the grandmother, Maddox, and the police officer on

the night that Maddox appeared at the grandmother’s residence and sought to take

the child home with her at least contributed to the continued deprivation of her

custodial right (as the only person with legal custody) to have physical custody of

the child. Maddox argues that a reasonable jury could find that Stephens told the

grandmother, Maddox, and the police officer in those telephone conversations that

Maddox should not be permitted to take the child away from the grandmother

because that would pose a serious risk to the safety of the child, and that the Safety



court authority and in violation of Georgia law, DFCS’ written procedures and Children’s
Healthcare’s written procedures.”); id. at 22 (“Stephens then failed to seek a unilateral emergency
care seven-day temporary placement as authorized within DFCS’ procedures or seek the
intervention of the juvenile court for a temporary placement.”).
       13
             We express no opinion at all with respect to whether there actually was a violation
of Maddox’s procedural due process rights.

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Plan contemplated just such a consequence. Maddox argues that, as the only

person with legal custody of the child, those actions contributed to the temporary

deprivation of her custodial rights by preventing her from taking physical custody

of the child. She argues that Georgia’s statutory procedures clearly establish the

procedures for depriving a mother of custody of her child. For example, O.C.G.A.

§ 15-11-14 establishes that the “Department of Human Services is authorized to

provide emergency care and supervision to any child without seeking a court order

for a period not to exceed seven days.” O.C.G.A. § 15-11-14(a). The statute then

provides that, “[u]pon the expiration of such seven-day period, if the child or

children have not been released . . . or if the department determinates that there is

an issue of neglect, abandonment, or abuse, the department shall promptly contact a

juvenile court intake officer or bring the child or children before the juvenile

court.” Id. § 15-11-14(d). It is undisputed that Stephens was aware of these state

procedural requirements. Thus, the argument in favor of finding a violation of

clearly established procedural due process rights is that Stephens willfully

bypassed the procedures set forth by the Georgia code and Georgia case law. In

other words, Maddox’s argument is that there are issues of fact as to whether an

emergency existed, and thus whether it was appropriate under § 15-11-14 to

discharge to (or prolong the deprivation resulting from the discharge to) the father

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and grandmother—thus temporarily depriving her of her custodial rights—without

complying with the required notice and court action.14 And the argument

continues: even if there were an emergency and the initial discharge of the child to

the father and grandmother was justified under § 15-11-14(a), nevertheless

Stephens’ failure to trigger court action within seven days pursuant to § 15-11-

14(d) violated clearly established procedural due process rights.15

       The argument against finding that Stephens violated a clearly established

procedural due process right is that the procedures do not speak clearly to the

situation here—where the grandmother has already been given custody of the child

by a party other than the Department of Human Services—i.e., the Hospital. The

argument continues that Stephens was faced with the following situation. The



       14
               In non-emergency situations, Georgia has procedural requirements of court action
and notice before the deprivation of children. See generally Watkins v. Watkins, 266 Ga. 269,
466 S.E.2d 860 (Ga. 1996); Sanchez v. Walker Cnty. Dep’t of Family & Children Servs., 237
Ga. 406, 229 S.E.2d 66 (Ga. 1976).
       15
                 Of course, the law is well established that the mere failure to follow state
procedures does not necessarily rise to the level of a violation of federal procedural due process
rights. See Harris v. Birmingham Bd. of Educ., 817 F.2d 1525, 1528 (11th Cir. 1987) (“[W]e
emphasize that the violation of a state statute outlining procedure does not necessarily equate to a
due process violation under the federal constitution. If otherwise, federal courts would have the
task of insuring strict compliance with state procedural regulations and statutes.”). Moreover,
with respect to a federal claim of a violation of federal procedural due process rights, the
availability of state remedies can be relevant, as the district court found in granting the motion to
dismiss Maddox’s procedural due process claim. See, e.g., Powell, 114 F.3d at 1080-83.
Because we need not decide whether there was a violation of clearly established procedural due
process rights, we do not give further consideration to such case law.

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child was in the care of the grandmother, the only family member capable of

providing appropriate care for the child’s serious medical needs. Removal of the

child from the care of the grandmother—i.e., removal by Maddox who was not

qualified to care for the child’s medical needs—would pose a serious threat to the

safety of the child. Thus, Stephens argues that it was absolutely necessary for the

safety of the child to prepare the Safety Plan and to ensure that the child was not

removed from the care of the grandmother.

       However, the foregoing does not respond to Maddox’s argument that even if

Stephens bore no responsibility for the initial discharge by the Hospital to the

father and the grandmother, nevertheless her subsequent actions prolonged the

deprivation of Maddox’s custodial rights, and that Stephens was required to trigger

court proceedings within seven days, as provided in § 15-11-14. Stephens’

response to this argument is that it was not unreasonable for her to believe that

Fulton County should have had primary jurisdiction regarding this case and

therefore that Fulton County DFCS—and not Gwinnett County DFCS—may have

been responsible for initiating deprivation proceedings.16 In sum, Stephens would

argue that, even assuming arguendo that § 15-11-14 applied to this situation, it was



       16
                As noted above, both Stephens and Rae did not believe that Gwinnett County
should initiate deprivation proceedings because Maddox no longer resided in Gwinnett County.

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not clearly established that she should have triggered court action within seven

days given the unique factual context described above—i.e., that Gwinnett County

DFCS was not involved in the release of the child to the father and the

grandmother, that the State did not take custody of the child, and that a reasonable

official in Stephens’ situation could have believed that any necessary court action

should be initiated by Fulton County DFCS because Maddox’s residence had

moved to Fulton County.17

       However, as noted above, Maddox’s procedural due process claim is not

before us. The arguments above are relevant only in that they reveal the facts

relevant to Maddox’s substantive due process claim, and the deficiencies with

respect to Stephens’ actions that Maddox argues violated her clearly established

substantive due process rights. Thus, we express no opinion at all with respect to

any procedural due process claim because only Maddox’s substantive due process

claim is properly before us in this appeal. And, for purposes of addressing

Maddox’s substantive due process claim, we can assume arguendo that Stephens


       17
                Maddox further argues that, even if it were clear that her move to Fulton County
meant that Fulton County DFCS, rather than Gwinnett County DFCS, had primary jurisdiction,
O.C.G.A. § 15-11-38 permits “any person . . . who has knowledge of the facts alleged or is
informed and believes that they are true” to trigger court action. Id. (emphasis added). Stephens
would argue that nevertheless a reasonable official could have reasonably believed that primary
responsibility should lie with Fulton County DFCS; additionally, she would argue that it was not
clearly established law that Gwinnett County DFCS was required to initiate these proceedings.

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violated Maddox’s procedural due process rights. We nevertheless hold that

Stephens is entitled to qualified immunity because she did not violate any clearly

established substantive due process rights of which a reasonable state official in

Stephens’ shoes would have known during the pertinent time period.

       We disagree with the district court that Stephens’ conduct “lies so obviously

at the very core of what the [relevant constitutional provision] prohibits that the

unlawfulness of the conduct was readily apparent to the official, notwithstanding

the lack of case law.” See Loftus, 690 F.3d at 1205. As discussed in depth above,

in order for Maddox to show a substantive due process violation, Stephens’ actions

must be “characterized as arbitrary, or conscience shocking, in a constitutional

sense.” Collins, 503 U.S. at 128, 112 S. Ct. at 1070. Although Maddox cites

Eleventh Circuit and Georgia Supreme Court cases for the proposition that

procedural requirements should be followed when the State takes custody of the

child, she has not cited any case that would make it clear to a reasonable social

worker at the time that her actions were arbitrary or conscience shocking.

      Maddox’s arguments that procedural due process cases clearly established a

substantive due process violation are unpersuasive. None of the cases she cites

come even remotely close to establishing that Stephens’ actions, at the time she

was making them, were so conscience shocking that it would be clear to a

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reasonable state official that her conduct would violate Maddox’s substantive due

process rights. See Loftus, 690 F.3d at 1204. None of these cases, nor the

provisions in the Georgia code, clearly provide for a situation where a party other

than the State (the Hospital) has already released the child to the care of a third

party (the grandmother). As Stephens argues, she did not release the child to the

father and the grandmother—it was the Hospital that released the child to the

grandmother. Stephens had advised the Hospital that neither she nor Gwinnett

DFCS could authorize releasing the child to the father. And, after finding out that

the child was being discharged to the father and the grandmother, Stephens

contacted Rae and, at Rae’s direction, prepared the Safety Plan to make sure that

the child would remain safe with the only family member qualified to care for her

special needs.

      Importantly—perhaps most importantly—it is clear and undisputed that the

mother was not fit to take care of this child at any time before the discharge or even

in the months after the discharge. Given the fact that the child was to be released

from the Hospital, and given the fact that the grandmother was undisputably the

only family member qualified to take care of this child, we cannot hold that

Stephens’ actions violated Maddox’s clearly established substantive due process

rights. Looking at the substance of what happened, the temporary placement of the

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child with the grandmother was inevitable and it was clearly the most reasonable

placement for the time being. In fact, allowing the medically fragile child to be

placed in the custody of an individual not qualified to care for her serious medical

needs—here the mother—would have been unthinkable. And this Court has

previously held that “state officials who act to investigate or to protect children

where there are allegations of abuse almost never act within the contours of ‘clearly

established law.’” Foy, 94 F.3d at 1537.18 Given all of these circumstances, and

even if Stephens’ actions were not “textbook perfect,” id. (quoting Manzano v.

S.D. Dep’t of Soc. Servs., 60 F.3d 505, 513 (8th Cir. 1995)), we must conclude that

it would not be clear to a reasonable social worker that her conduct violated

Maddox’s substantive due process rights; stated another way, a reasonable social

worker would not have been on notice that her behavior was “conscience

shocking” or “arbitrary.” Even if we assume arguendo, although we expressly do

not decide, that Stephens should have triggered court action within seven days of

December 10, 2008, and even if we assume arguendo, although we expressly do

not decide, that Stephens’ actions violated Maddox’s procedural due process rights,



       18
               We note that Foy involved allegations of abuse while this case does not concern
such allegations. However, because here the safety and health of the child was similarly at issue,
we find Foy instructive as to whether a reasonable official would have known that her conduct
violated Maddox’s clearly established substantive due process rights.

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we cannot conclude that the law was clearly established at the time of the relevant

conduct that Stephens’ actions were conscience shocking, and thus we cannot

conclude that there has been a violation of clearly established substantive due

process law.19 Accordingly, Stephens is entitled to qualified immunity on

Maddox’s substantive due process claim.

                                     IV. CONCLUSION

       “Substantive due process is a doctrine that has been kept under tight reins,

reserved for extraordinary circumstances.” Nix v. Franklin Cnty. Sch. Dist., 311

F.3d 1373, 1379 (11th Cir. 2002). Even conduct that is “untoward,” “unfortunate,”

and “understandably upsetting” does not necessarily rise to the level of a

substantive due process violation. See Tinker v. Beasley, 429 F.3d 1324, 1329

(11th Cir. 2005) (quoting Luckes v. Cnty. of Hennepin, Minn., 415 F.3d 936, 940

(8th Cir. 2005)). Here, we simply cannot hold that a reasonable social worker

would have been on notice that her actions violated Maddox’s substantive due

process rights. Accordingly, we reverse the denial of qualified immunity to

Stephens on Maddox’s substantive due process claim and remand for further

proceedings not inconsistent with this opinion.


       19
               Because we hold that there has been no violation of clearly established substantive
due process law, we need not decide whether Stephens’ behavior actually violated Maddox’s
substantive due process rights. See Pearson, 555 U.S. at 236, 129 S. Ct. at 818.

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REVERSED AND REMANDED.




                              36
