                            PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


GAYLE MARTIN, individually and as        
parent and custodian of her minor
children, Justin Martin and Jaime
Martin,
                  Plaintiff-Appellant,
                  v.                             No. 99-2107

SAINT MARY’S DEPARTMENT OF
SOCIAL SERVICES; KATHLEEN COULBY;
ALEXIS ZOSS,
              Defendants-Appellees.
                                         
            Appeal from the United States District Court
             for the District of Maryland, at Greenbelt.
                  J. Frederick Motz, District Judge.
                         (CA-98-3288-JFM)

                        Argued: March 2, 2000

                       Decided: October 8, 2003

 Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.



Affirmed by published opinion. Judge Widener wrote the majority
opinion, in which Judge Niemeyer joined. Judge Traxler wrote a dis-
senting opinion.


                             COUNSEL

ARGUED: Kenneth Everett McPherson, Riverdale, Maryland, for
Appellant. Shelly Eilene Mintz, Assistant Attorney General, Balti-
2           MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES
more, Maryland, for Appellees. ON BRIEF: J. Joseph Curran, Jr.,
Attorney General of Maryland, Elise Song Kurlander, Staff Attorney,
Baltimore, Maryland, for Appellees.


                              OPINION

WIDENER, Circuit Judge:

   Plaintiff Gayle Martin appeals the district court’s grant of summary
judgment to the defendants, St. Mary’s County Department of Social
Services, Alexis Zoss, and Kathleen Coulby. Miss Martin sued the
defendants pursuant to 42 U.S.C. § 1983 after her children were
removed from her home for one night in October 1997. Miss Martin
does not appeal the district court’s judgment in favor of defendant St.
Mary’s County Department of Social Services (St. Mary’s Depart-
ment) under the Eleventh Amendment. She appeals, however, the dis-
trict court’s grant of qualified immunity to defendants Alexis Zoss
and Kathleen Coulby. For the following reasons, we affirm the district
court’s judgment.

                                   I.

  We review the facts in this appeal in the light most favorable to the
non-movant. Mensh v. Dyer, 956 F.2d 36, 39 (4th Cir. 1991). Miss
Martin is the mother of two minor children, Justin, born on April 16,
1989, and Jaime, born September 16, 1995. St. Mary’s Department is
a Maryland state agency charged with investigating allegations of
child abuse and neglect and authorized by the state to take temporary
custody of a child if it believes that the child is in serious, immediate
danger. See Md. Code Ann., Family Law § 5-709(c) (1999).

   Prior to the events at issue in this appeal, St. Mary’s Department
was involved with Miss Martin’s family, specifically through investi-
gations regarding Justin and Miss Martin’s other child, Jessica. In
January 1997, St. Mary’s Department received a referral stating that
Miss Martin had neglected Justin by allowing Justin to stay home
from school for half of the school year. This referral prompted the
events at issue in this appeal.1 At that time, Justin was part of the
    1
   School records showed that Justin missed 66 days of kindergarten and
71 days of first grade. Miss Martin disputed these numbers during the
            MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES               3
Chronic Health Impaired Program, a school sponsored program for
children with illnesses in which teachers travel to the ill student’s
home to provide instruction. A teacher had not visited since Novem-
ber 1996 due to Miss Martin’s refusal. Based on the referral, Mrs.
Coulby, a Child Protective Services Investigator for St. Mary’s
Department, and her supervisor, Miss Zoss, investigated the allega-
tion. In May 1997, they filed a petition in the circuit court seeking a
finding that Justin was a "Child in Need of Assistance" (CINA)2 and
that Justin and Jaime required shelter care.

   The circuit court held a Shelter Care Hearing on May 14, 1997.
Thereafter, the circuit court ordered that: 1) legal care and custody of
Justin be with St. Mary’s Department, but that both Justin and Jaime
would remain in Miss Martin’s physical custody; 2) Miss Martin must
make a good faith effort to ensure Justin’s school attendance; 3) the
parties must submit to a family psychological evaluation; and 4) Miss
Martin must attend counseling. The first hearing served as an arraign-
ment and the circuit court set a later date for the adjudicatory hearing
of the CINA petition. In an adjudicatory hearing the court determines
whether the allegations in the petition, other than allegations that the
child requires the court’s assistance, treatment, guidance or rehabilita-
tion, are true. See Md. Code Ann., Courts and Judicial Proceedings
§ 3-801(b) (1998). The CINA hearing was ultimately set for October
16, 1997.3

   In July 1997, while the CINA petition was pending, Miss Martin
moved with her children to Los Angeles, California. Miss Martin
alleged that she told Mrs. Coulby, her family, and the post office that
she was moving. After arriving in Los Angeles, Miss Martin and her
children moved into a community center, and Justin began to attend
school near their residence. At approximately the same time, Mrs.

investigation.
  2
    The Maryland Code defines "Child in Need of Assistance" as one
who requires the assistance of the court because he or she is mentally
handicapped or not receiving ordinary and proper care and attention and
the parents are unable or unwilling to give such care. Md. Code Ann.,
Courts and Judicial Proceedings § 3-801(f) (1998).
  3
    The hearing was apparently held on October 15, 1997.
4          MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES
Coulby left St. Mary’s Department on maternity leave and did not
return until October 8, 1997.4

   On October 9, 1997 at approximately 10:45 p.m. (Pacific Time),
members of both the Los Angeles Department of Child Services (Los
Angeles Department) and the Los Angeles Police Department (Los
Angeles Police) arrived at Miss Martin’s residence to remove the chil-
dren to take them to Maryland for the CINA hearing. Miss Martin
alleged in her complaint that Mrs. Coulby and Miss Zoss told the Los
Angeles Department that emergent circumstances existed and that the
circuit court had granted an order for Miss Martin’s children to be
returned to Maryland in the custody of St. Mary’s Department. Miss
Martin refused to surrender custody, and the Los Angeles Department
forcibly removed her children and held them overnight in a Los
Angeles Department facility. The record does not indicate that St.
Mary’s Department requested or petitioned for the circuit court’s
assistance in obtaining physical custody of Justin and Jaime Martin
at any time.

  On October 10, 1997, the circuit court in Maryland granted an
emergency order directing St. Mary’s Department to call the Los
Angeles Department and to return the Martin children to the home of
Miss Martin. St. Mary’s Department was also present at the emer-
gency hearing and agreed with Miss Martin’s attorney to release the
children to their mother, with the previous orders of the court to
remain in effect. The Los Angeles Department returned the Martin
children to Miss Martin at 11:00 p.m. (Pacific Time) on October 10,
1997.

   Subsequently, on September 28, 1998, Miss Martin filed this 42
U.S.C. § 1983 action against St. Mary’s Department, Miss Zoss, and
Mrs. Coulby (the defendants) in the United States District Court for
the District of Maryland. In her complaint, Miss Martin also alleged
several state law claims. The defendants filed a motion to dismiss or,
in the alternative, a motion for summary judgment. The district court
    4
  In her affidavit, Mrs. Coulby asserted that upon her return from
maternity leave, she worked in the Service Intake Division and did not
work on the Martin case.
            MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES                 5
granted the defendants’ motion for summary judgment on July 12,
1999.5 Miss Martin appeals from that judgment.

   We review the district court’s grant of summary judgment de novo.
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). The moving party
is entitled to summary judgment only if no genuine issue of material
fact exists. Fed. R. Civ. Pro. 56(c).

                                    II.

   Miss Martin argues that the district court erred by granting the
defendants qualified immunity for three reasons: 1) her rights to
familial integrity and due process of the law were sufficiently clear
to enable the defendants to know that the children should not have
been removed from Miss Martin’s custody without a court order;6 2)
a genuine dispute existed about whether the defendants knowingly
made false representations to the Los Angeles Department or whether
the defendants had an objectively reasonable belief that the children
were in immediate danger; and 3) the defendants failed to initiate a
post-deprivation hearing for Miss Martin, rather Miss Martin’s coun-
sel initiated it. We turn first to the issue of qualified immunity.

                                    A.

   Qualified immunity shields public officials from personal liability
for performance of their official duties, provided that they do not vio-
late "clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). A court considers whether the rights allegedly
violated by the public official were clearly established at the time of
the challenged conduct, Mitchell v. Forsyth, 472 U.S. 511, 528
(1985), and whether such conduct was objectively reasonable. Har-
low, 457 U.S. at 818. "As such, if there is a ‘legitimate question’ as
  5
     The district court declined to exercise supplemental jurisdiction pur-
suant to 28 U.S.C. § 1367(c)(3) and dismissed Miss Martin’s state law
claims without prejudice.
   6
     Miss Martin recognizes that if a social worker believes a child to be
in immediate danger, the social worker may remove the child from the
parents’ custody as long as a post-deprivation hearing is provided.
6           MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES
to whether an official’s conduct constitutes a constitutional violation,
the official is entitled to qualified immunity." Wiley v. Doory, 14 F.3d
993, 995 (4th Cir. 1994) (citing Tarantino v. Baker, 825 F.2d 772,
775 (4th Cir. 1987)), cert. denied sub nom. Wiley v. Mayor of Balti-
more, 516 U.S. 824 (1995). We have held that social workers may
assert qualified immunity in appropriate circumstances. See Hodge v.
Jones, 31 F.3d 157, 162 (4th Cir.) (citing Wildauer v. Frederick
County, 993 F.2d 369, 373 (4th Cir. 1993)), cert. denied, 513 U.S.
1018 (1994).

   Miss Martin alleges that the defendants violated her rights to famil-
ial integrity and due process of law by making misrepresentations to
the Los Angeles Department causing the removal of her children for
one night. First, we note that although the family unit is a "fundamen-
tal precept firmly ensconced in the Constitution and shielded by Due
Process," it is "neither absolute nor unqualified." Hodge, 31 F.3d at
163. A state has a legitimate interest in protecting children from
neglect and abuse and in investigating situations that may give rise to
such neglect and abuse. See Renn by and through Renn v. Garrison,
100 F.3d 344, 349-350 (4th Cir. 1996). Because of the complicated
balance between parents’ rights to raise their children and a State’s
interest in protecting its minor citizens, the right to familial integrity
is "amorphous" in many cases. See Hodge, 31 F.3d at 164. The con-
tours of the right to familial integrity may not be "sufficiently clear"
in certain situations, to be deemed "clearly established" as required.
See Renn, 100 F.3d at 349 (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). A public official must decipher what conduct vio-
lates protected rights, but an official will not be held liable for "bad
guesses in gray areas." Maciarello v. City of Lancaster, 973 F.2d 295,
298 (4th Cir. 1992), cert. denied, 506 U.S. 1080 (1993).

   In this case, the circuit court in Maryland took away Miss Martin’s
legal custody of Justin after the initial CINA proceeding; however,
that court permitted her to keep physical custody of both children and
legal custody of Jaime. In its order granting legal custody of Justin to
the St. Mary’s Department, the circuit court made clear that it
expected St. Mary’s Department and Miss Martin to work together to
improve the Martin family situation through concerted efforts to
transport Justin to school and Miss Martin to counseling. During the
hearing, the circuit court thanked St. Mary’s Department for its
           MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES               7
involvement in the Martin family affairs and expressed its belief that
the situation had the potential to improve. The circuit court then set
the adjudicatory hearing for October 1997. Miss Martin’s subsequent
move to California did not cause St. Mary’s Department to lose its
interest in or its legal custody of Justin at any time.

                                  B.

   Even assuming that the right to familial integrity was clearly estab-
lished at the time of the defendants’ alleged conduct, the facts and the
record do not show that the defendants committed any intentional
wrong-doing, "much less intruded so vigorously into the [Martin]
family as to infringe their family privacy right." Renn, 100 F.3d at
349. This is especially true given the St. Mary’s Department’s legal
custody of Justin and the status of the pending CINA petition. In fact,
at the time of the events in Los Angeles, Miss Martin and her children
were then required to be present at the CINA adjudicatory hearing
only some five or six days later.

   The record in this case is devoid of evidence that demonstrates the
defendants’ alleged misrepresentations to the Los Angeles Depart-
ment. Miss Martin alleged in her complaint that a Los Angeles
Department social worker told her that he had a court order from
Maryland to remove her children. Another affidavit, submitted by
Patricia Jackson, the children’s court appointed attorney, stated that
the defendants did not describe an emergency situation to her that
would have warranted the removal of the Martin children. But, the
record does not contain any affidavits from any Los Angeles Depart-
ment workers or other evidence based on personal knowledge to
establish the alleged misrepresentations. We agree with the district
court’s assessment of any communications between St. Mary’s
Department and the Los Angeles Department with respect to the Mar-
tin children. These communications constituted "matters of judgment
and interpretation." It held the conclusions or actions based on these
communications "could have arisen from a misunderstanding in the
communication." We agree.

   Because the record falls short on the facts and does not indicate
that the defendants made misrepresentations to the Los Angeles
Department, and because any actions on the part of the defendants
8          MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES
causing the removal of the Martin children could have arisen from a
misunderstanding, we are of opinion that the defendants’ conduct was
no more than negligent conduct, if that. "Where a government offi-
cial’s act causing injury to life, liberty, or property is merely negli-
gent, no procedure for compensation is constitutionally required."
Daniels v. Williams, 474 U.S. 327, 333 (1986) (internal quotations
omitted) (emphasis is the Court’s). Because a § 1983 claim cannot be
sustained, it follows that the defendants are entitled to qualified
immunity. See Clark v. Link, 855 F.2d 156, 166 (4th Cir. 1988).

                                  C.

   We also reject Miss Martin’s claim that the defendants violated her
due process rights because her counsel, rather than St. Mary’s Depart-
ment, initiated the post-deprivation hearing. First, due process is a
flexible concept. See Jordan by Jordan v. Jackson, 15 F.3d 333, 348
(4th Cir. 1994). Secondly, Miss Martin received a post-deprivation
hearing and the St. Mary’s Department directed the return of her chil-
dren to her within 24 hours of their removal.

  For the foregoing reasons, the district court’s judgment granting the
defendants’ motion for summary judgment is accordingly

                                                          AFFIRMED.

TRAXLER, Circuit Judge, dissenting:

   At the time Justin and Jaime were removed from Gayle Martin’s
custody, clearly established substantive due process principles prohib-
ited government officials from removing a child from the custody of
his or her parent without either prior judicial authorization or evi-
dence that the child faced an imminent risk of harm to his or her
health and well-being if the parent maintined custody. Viewed in the
light most favorable to Martin, including the reasonable inferences to
be drawn therefrom, the record before us shows that Alexis Zoss
directed the removal of Justin and Jaime from Martin’s custody, even
though no court had ordered it and nothing suggested the children
were in imminent danger from abuse or neglect. Particularly troubling
is the removal of Jaime, who was not even of school age and who
           MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES               9
remained in the sole legal and physical custody of Martin — there
was no reason conceivable for her to be taken. I believe it is erroneous
to require Martin to prove that Zoss made misrepresentations to the
Los Angeles Department of Social Services ("LADSS"). In my view,
Martin can prove that Zoss infringed upon her fundamental liberty
interest in the custody and control of her children through Martin’s
evidence that there was no factual or legal basis for Zoss to direct the
removal of the children. The taking of children from their parents by
a government official without reason is unquestionably egregious and
arbitrary conduct. Evidence that Zoss used a misrepresentation to gain
custody might strengthen Martin’s claim, but it is not essential to
Martin’s claim. Consequently, I find no deficiency in Martin’s proof
even if there is a lack of direct evidence as to a misrepresentation by
Zoss.

   Moreover, I find no evidence of any miscommunication between
Zoss and LADSS, which the district court offered as a possible theory
for the unexplained removal of the children. Zoss submitted an affida-
vit to the district court, but in it she says nothing about what LADSS
was told and she offers no justification whatsoever for the seizure of
the children.

   I therefore must respectfully dissent from the conclusion that Zoss
is entitled as a matter of law to qualified immunity on Martin’s sub-
stantive due process claim. I would vacate that portion of the district
court’s order and remand so that Martin could continue to pursue this
cause of action.

                                   I.

   In January 1997, the St. Mary’s Department of Social Services
("SMDSS") received a Child Protective Services referral alleging that
Justin had missed over half of his first grade school year. Justin, who
suffered from asthma, had been placed in the school’s Chronic Health
Impaired Program ("CHIPS program") which provided weekly home
visits by a school tutor. According to school officials, however, the
home tutors were only able to establish very limited direct contact
with Justin. Kathleen Coulby, an SMDSS employee, began investigat-
ing the referral and learned school officials were concerned that many
of Justin’s absences were not genuinely linked to his health problems.
10          MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES
Coulby was informed that because Justin had never been taught on a
regular basis, the school had been unable to assess his learning dis-
abilities. Coulby eventually spoke to Martin, who denied that Justin
had missed an untoward amount of school. Nevertheless, Martin
agreed to submit Justin to a mental health evaluation conducted by
Dr. Heidi Daniels. Dr. Daniels, whose conclusions are not part of the
record submitted to the panel, apparently determined that Justin’s
chronic absences from school resulted in "mental injury." J.A. 90.1 No
such determination was made regarding Jaime who, at 18 months of
age, was far too young to attend school. SMDSS does not suggest that
Justin and Jaime were being physically abused or neglected or that
they were at risk of physical abuse or neglect.

  Based on Coulby’s investigation, SMDSS petitioned for an order
declaring both Justin and Jaime to be Children in Need of Assistance
("CINA"), and, pending a hearing on the merits of the CINA petition,
removing them from the home and placing them in shelter care with
SMDSS.2 The CINA petition sought the same relief for both children
even though there were no specific allegations regarding why the state
was entitled to remove the younger child, Jaime, from her mother.

   On May 14, 1997, a juvenile master held a hearing to determine
whether Justin and Jaime should be removed and placed into tempo-
rary shelter care. SMDSS called as a witness Susan Joyce, a social
worker who, based on 90 minutes of observation, testified that she
believed Justin "[was] suffering from neglect, mental injury." J.A. 74.
No evidence or testimony was presented in support of SMDSS’s
assertion that Jaime should be taken from her mother — the evidence
  1
     Maryland law defines "mental injury" as "the observable, identifiable,
and substantial impairment of a child’s mental or psychological ability
to function." Md. Code Ann., Cts. & Jud. Proc. § 3-801(r).
   2
     "Shelter care" is "temporary placement of a child [who is alleged to
be a CINA] outside of the home" until a final decision can be made on
the merits of the CINA petition. Md. Code Ann., Cts. & Jud. Proc. § 3-
815(f)(2)(ii). A judicial hearing is required before SMDSS can put a
child into shelter care, but SMDSS may place a child in "emergency
shelter care" prior to obtaining a court order "to protect the child from
serious immediate danger." See Md. Code Ann., Cts. & Jud. Proc. § 3-
815(b)(1).
            MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES                11
and testimony focused exclusively on Justin. The master concluded
that Justin’s "[c]ontinuation in the home is not contrary to [his] wel-
fare," J.A. 55, and permitted Martin to retain physical custody of Jus-
tin. However, the master granted legal custody of Justin to SMDSS
pending the final disposition of the CINA petition, and ordered Mar-
tin to "make a good faith effort to ensure Justin[’s] . . . attendance [at]
school." J.A. 56. The master also required that the family undergo a
"family psychological evaluation" and that Martin attend an "individ-
ual counseling and/or a parenting/child development class in an effort
to better understand the developmental and educational needs of a
child." J.A. 56. The master did not grant any portion of SMDSS’s
petition with respect to Jaime.

   After the shelter care hearing, Dr. James Lewis, whom SMDSS
listed as its expert witness, performed the psychological evaluation
and concluded that "[d]espite the psychological data which suggests
that Justin has not been provided ordinary and proper care sufficient
to make age and grade-level educational and psychosocial progress,"
Justin was "very positively and closely bonded to his mother and sis-
ter, such that he would be psychologically harmed if the next remedy
implemented is removal from his parental home." J.A. 99. Moreover,
Dr. Lewis noted that Jaime was also "very closely and positively
bonded" to Martin and would be "hurt psychologically" by removal
from the parental home. J.A. 95. These findings were set forth in a
report dated July 29, 1997, which was provided to Coulby.

   The adjudication hearing on the CINA petition was set for August
28, 1997. In late July, however, Martin decided to move with her chil-
dren across the country to Los Angeles, California. According to Mar-
tin, she informed Coulby and two additional SMDSS employees of
the move, as well as family members in Maryland. Coulby went on
maternity leave about this time and had no further involvement with
the case; Zoss, Coulby’s supervisor, apparently assumed an active
role in the Martin case. Upon arriving in Los Angeles, the Martin
family temporarily settled into a community shelter, and Justin began
attending school nearby. Martin filed a formal change of address with
the United States Postal Service and obtained a California identifica-
tion card. She also notified SMDSS of her new address in California.

  According to Martin’s unrefuted affidavit, on October 9, 1997, at
10:45 p.m., social workers with LADSS appeared unannounced at the
12         MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES
shelter where the Martins were living and demanded custody of Justin
and Jaime, who were sleeping. The social workers were accompanied
by police officers. LADSS informed Martin that a court in Maryland
had issued an order authorizing the removal of Justin and Jaime from
her and that the children were to be flown to Maryland the following
day where they would remain in the custody of SMDSS. Martin even-
tually permitted the children to be taken only after she became con-
vinced that SMDSS had indeed obtained such a court order and that
she risked arrest if she did not cooperate. LADSS took Justin and
Jaime crying and screaming from their mother and held them until the
next night.

   Zoss does not dispute that she directed LADSS to take the Martin
children. It is also undisputed that there was no court order directing
that Justin or Jaime be removed from their mother’s physical custody.
Moreover, there was no emergency at the time that placed the chil-
dren in "serious immediate danger," Md. Code Ann., Cts. & Jud.
Proc. § 3-815(b), and Zoss does not suggest otherwise. Zoss never-
theless directed that the Martin children be removed without prior
notice or a hearing, as required by Maryland law in a nonemergency.
See Md. Code Ann., Cts. & Jud. Proc. § 3-815.

   On the following day, Zoss "called [Martin] twice . . . and threat-
ened to keep the children and have [Martin] arrested if [she] did not
return to Maryland for the adjudication hearing," J.A. 108, which had
been rescheduled for the next week. Martin contacted her attorney in
Maryland who filed an emergency motion in Maryland circuit court
seeking the immediate return of Justin and Jaime. The attorney
appointed to represent the interests of the children also believed that
the children should be returned immediately to Martin because she
perceived no emergency or other "factual or legal basis for removing
the children from their mother on October 9, 1997." J.A. 111. Zoss
disagreed, insisting that the removal had been appropriate because the
case involved "‘mental injury.’" J.A. 112. At the emergency hearing,
however, SMDSS agreed to direct LADSS to return the children. At
11:00 p.m. on October 10, Justin and Jaime were returned to their
mother. Martin subsequently filed a motion to dismiss the underlying
CINA petition, which SMDSS agreed to do.
            MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES                 13
   Martin filed this § 1983 action against Coulby and Zoss, in their
official and individual capacities, as well as SMDSS. The district
court accepted Martin’s view of the evidence but awarded qualified
immunity to Zoss because, in its view, Martin failed to demonstrate
that the constitutional right at issue was clearly established. Also, the
court concluded that Martin’s claim against Zoss failed because there
was no support in the record for her claim that Zoss made misrepre-
sentations to LADSS. I cannot agree.3

                                    II.

   Social workers performing discretionary functions, as Zoss was
here, are protected by qualified immunity "‘insofar as their conduct
does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’" White by White
v. Chambliss, 112 F.3d 731, 735 (4th Cir. 1997) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether Zoss is
entitled to qualified immunity, we follow a two-step analytical pro-
cess. Before considering the qualified immunity question, we must
decide if Martin has alleged the deprivation of a constitutional or stat-
utory right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). That
inquiry requires us to determine whether, "[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show
[that] the [official’s] conduct violated a constitutional right." Id. If so,
then we proceed to the second task, which "is to ask whether the con-
stitutional right was clearly established in the specific context of the
case." Figg v. Schroeder, 312 F.3d 625, 635 (4th Cir. 2002) (internal
quotation marks omitted); see also Wilson v. Layne, 526 U.S. 603,
609 (1999).

                      A. Constitutional Violation

  The Fourteenth Amendment’s directive that "[n]o State shall . . .
deprive any person of life, liberty, or property, without due process
  3
   SMDSS was dismissed from the action and Martin does not seek
review of that ruling. The record contains unrefuted evidence that Coul-
by’s involvement in the Martin case ended prior to October 9, 1997,
when the children were removed. Accordingly, I would affirm the district
court’s grant of summary judgment to Coulby.
14          MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES
of law" prohibits "certain government actions regardless of the fair-
ness of the procedures used to implement them." County of Sacra-
mento v. Lewis, 523 U.S. 833, 840 (1998) (internal quotation marks
omitted). Thus, the Due Process Clause of the Fourteenth Amendment
"guarantees more than fair process" and "includes a substantive com-
ponent that provides heightened protection against government inter-
ference with certain fundamental rights." Troxel v. Granville, 530
U.S. 57, 65 (2000) (internal quotation marks omitted).

   The core of the concept of substantive due process is the "protec-
tion of the individual against arbitrary action of government," Lewis,
523 U.S. at 845 (internal quotation marks omitted), i.e., protection
against "the exercise of power without any reasonable justification in
the service of a legitimate governmental objective," id. at 846. The
substantive component of the Due Process Clause limits arbitrary
government action whether such power is exercised by a legislative
body or by an individual member of the executive branch, and the
application of substantive due process review differs based on what
kind of governmental action we are reviewing. See id. at 847 n.8.

    If, as is the case here, our focus is on a purported abuse of execu-
tive power rather than the propriety of a legislative enactment, "only
the most egregious official conduct can be said to be arbitrary in the
constitutional sense." Lewis, 523 U.S. at 846 (internal quotation
marks omitted). Thus, "the threshold question is whether the behavior
of the governmental officer is so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience." Id. at 847 n.8;
see United States v. Salerno, 481 U.S. 739, 746 (1987). "[T]he kind
of executive conduct that fairly can be said to shock the conscience
. . . involves abusing executive power, or employing it as an instru-
ment of oppression." Hawkins v. Freeman, 195 F.3d 732, 742 (4th
Cir. 1999) (en banc) (internal quotation marks and alteration omitted).
In considering whether the conduct at issue qualifies as conscience-
shocking, we look to see if "history, tradition and precedent demon-
strate[ ] that the right asserted was one entitled to substantive due pro-
cess protection." Id. at 739.

   "[T]he interest of parents in the care, custody, and control of their
children" has been described as "perhaps the oldest of the fundamen-
tal liberty interests recognized" by the Supreme Court. Troxel, 530
            MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES               15
U.S. at 65; see Wisconsin v. Yoder, 406 U.S. 205 (1972); Prince v.
Massachusetts, 321 U.S. 158 (1944); Meyer v. Nebraska, 262 U.S.
390 (1923). The Supreme Court has consistently reaffirmed that the
contours of substantive due process apply to hem in the state’s power
to interfere with a parent’s right to custody and control of her child.
See Troxel, 530 U.S. at 66 ("In light of th[e] extensive precedent, it
cannot now be doubted that the Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make deci-
sions concerning the care, custody, and control of their children.").

   This fundamental right is not absolute, however. "The parent’s
right to custody is subject to the child’s interest in his personal health
and safety and the state’s interest as parens patriae in protecting that
interest." Chambliss, 112 F.3d at 735. In cases involving a pre-
hearing removal of children from parental custody by state officials,
we have concluded that substantive due process is satisfied when the
caseworker has "some evidence of child abuse" or a reasonable basis
to suspect the child is in immediate danger of serious harm. Weller
v. Dep’t of Soc. Servs. for Baltimore, 901 F.2d 387, 391-92 (4th Cir.
1990) (applying the shocks-the-conscience test); see Chambliss, 112
F.3d at 736-37 (holding that caseworker acted within the bounds of
substantive due process where there was evidence of abuse and where
the statutory precondition that the child be in danger was satisfied);
cf. Jordan by Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir. 1994)
("[I]t is well-settled that the requirements of process may be delayed
where emergency action is necessary to avert imminent harm to a
child."). The converse, it seems to me, is self-evident — a state offi-
cial runs afoul of a parent’s fundamental liberty interest in the care,
custody and control of her child when the official removes the child
without any reason to believe the child is suffering abuse or is in
imminent danger of serious harm. I am hard pressed to think of exec-
utive conduct that is more arbitrary or abusive. See, e.g., Suboh v.
District Attorney’s Office of Suffolk, 298 F.3d 81, 92-93 (1st Cir.
2002); Brokaw v. Mercer County, 235 F.3d 1000, 1019 (7th Cir.
2000); Hatch v. Dep’t for Children, Youth & Families, 274 F.3d 12,
20-24 (1st Cir. 2001); Croft v. Westmoreland County Children &
Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997); Wallis v. Spencer,
202 F.3d 1126, 1138 (9th Cir. 2000); Hurlman v. Rice, 927 F.2d 74,
79 (2d Cir. 1991).
16          MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES
   Based on the sparse record, Martin’s version of events is literally
unrefuted and, in my view, recounts conduct by Zoss that was wholly
arbitrary and satisfies the stringent "shocks the conscience" standard.
For me, the key is in Zoss’s failure, for whatever reason, to supply
any justification at all, let alone to identify evidence of child abuse or
imminent danger, for having the children (Jaime in particular)
removed from Martin. The record is simply devoid of any evidence
from which I can conclude that Zoss’s decision to have these children
removed was not capricious. Everyone — from the attorneys serving
as guardians ad litem for the children to Zoss herself, apparently —
agrees that there was no emergency. There was no evidence that Jus-
tin or Jaime had ever been abused or physically neglected or that they
were in imminent peril of any nature. Indeed, Zoss was fully aware
that the juvenile court in Maryland, after a plenary investigation by
SMDSS, had refused to remove Justin from the physical custody of
his mother. And, SMDSS’s assertion that Jaime had been neglected
evidently had so little merit that the court did not even expressly
address it. Zoss knew, or reasonably should have known, that follow-
ing the initial shelter care hearing, SMDSS’s own expert witness
examined Justin and concluded that to take him away from his mother
would actually result in a net detriment, not benefit, to Justin.

   Patricia Jackson’s unrefuted affidavit provided that, as guardian ad
litem, she was informed by Carole Coursey, counsel for SMDSS, that
"[SMDSS] had attempted to gain the cooperation of the California
authorities . . . to conduct a home visit of the Martin children for three
weeks without success. . . . Ms. Coursey described her client as telling
LADSS ‘to take the children.’" J.A. 111. Thus, another reasonable
inference is, as Martin asserted in her motion to dismiss the CINA
petition, that Zoss "intended solely to manipulate and coerce the Los
Angeles County Department of Children’s Services into assigning a
higher priority to the request." J.A. 119.

   About the only substantial fact highlighted by defense counsel to
show that Zoss’s conduct was objectively reasonable is that Martin
moved from Maryland to California while the final hearing on the
CINA petition was still pending. This is uncontested, but I fail to see
how it helps Zoss. Zoss nowhere says that the move motivated her
actions, nor explains how the move created circumstances requiring
removal of the children. To the extent Zoss’s attorney offers this fact
            MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES               17
post hoc to suggest that Martin had illegally fled the jurisdiction, Mar-
tin has created an issue of fact in this respect. It is undisputed that
Martin informed SMDSS of her intention to move more than two
months prior to the hearing date. After arriving in California, Martin
obtained a California identification card, enrolled Justin in school,
and notified SMDSS of her new address, which hardly suggests that
she was ducking the authorities. And, I find nothing to suggest that
SMDSS told Martin she was required to stay in Maryland. Addition-
ally, at the very least, even if Martin was trying to distance her family
from SMDSS, SMDSS had no authority to force Martin to keep the
younger child Jaime, for whom shelter care was denied, in Maryland.

   In sum, I cannot imagine more arbitrary conduct. Zoss has not
pointed to a single fact that justifies the extra-judicial removal of
Martin’s children. I therefore have no difficulty finding that such con-
duct is of a kind that shocks the conscience and that Martin has suffi-
ciently alleged a violation of her rights guaranteed by the substantive
component of the Due Process Clause of the Fourteenth Amendment.

                     B. Clearly Established Law

   The next question is "whether the established contours of the
[Fourteenth] Amendment were sufficiently clear [in October 1997] to
make it plain to reasonable [officials] that their actions under these
particular circumstances violated [Martin’s] rights." Winfield v. Bass,
106 F.3d 525, 531 (4th Cir. 1997) (en banc). In determining whether
the right in question was clearly established, we must define "the right
allegedly violated . . . at the appropriate level of specificity." Wilson,
526 U.S. at 615. This does not mean that "the exact conduct at issue
[must] . . . have been held unlawful for the law governing an officer’s
actions to be clearly established." Amaechi v. West, 237 F.3d 356, 362
(4th Cir. 2001). Rather, our analysis must take into consideration "not
only already specifically adjudicated rights, but those manifestly
included within more general applications of the core constitutional
principle invoked." Id. at 362-63 (internal quotation marks omitted).
The right must be defined "in such a way as to provide notice to a rea-
sonable person in the official’s position that his conduct violated the
identified right." Id. at 363.

   In light of our caselaw in October 1997, and that of a number of
other jurisdictions, I cannot accept the notion that Zoss could have
18          MARTIN v. SAINT MARY’S DEPT. SOCIAL SERVICES
reasonably believed her actions were lawful. We have clearly stated,
on more than one occasion, that a social worker can remove a child
from the parent’s physical custody without getting prior court
approval only when the caseworker is acting in an alleged emergency
situation. See Weller, 901 F.2d at 391-92 (reviewing a removal
effected by a caseworker who was provided evidence of child abuse);
Chambliss, 112 F.3d at 376-37 (same). Although our decisions have
not affirmatively stated that substantive due process forbids the
removal of a child from his parents without prior judicial approval in
a non-emergency and where there is no evidence of serious danger,
that principle is clear from our statements in Weller and Chambliss.
And, although we have not precisely determined the outer contours
of what constitutes an emergency, our recognition that a pre-hearing
removal is proper when there is some evidence of child abuse at a
minimum makes clear that a caseworker can assume custody of a
child without court approval only if the caseworker has some articul-
able basis for doing so. Here, we have been pointed to nothing that
could be considered a justifiable basis.

   Moreover, I believe that a number of other precedents made it clear
in October 1997 that Zoss’s conduct was impermissible under the Due
Process Clause of the Fourteenth Amendment. See, e.g., Croft, 103
F.3d at 1126; Manzano v. South Dakota Dep’t of Soc. Servs., 60 F.3d
505, 511 (8th Cir. 1995); Caldwell v. LeFaver, 928 F.2d 331, 333 (9th
Cir. 1991); Hurlman, 927 F.2d at 80.

   Accordingly, I would reverse the district court as to Martin’s claim
that Zoss violated her fundamental right to physical custody of her
children free from arbitrary state interference. I would return this par-
ticular claim to the district court for further proceedings. I respectfully
dissent.
