                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0253n.06

                                        No. 17-3435

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT

MONTY BAUCH, individually and as father and )                                   FILED
next friend of a minor, other O.B.; O.B., a minor, )                       May 23, 2018
                                                   )                   DEBORAH S. HUNT, Clerk
        Plaintiffs-Appellees,                      )
                                                   )
v.                                                 )
                                                             ON APPEAL FROM THE
                                                   )
                                                             UNITED STATES DISTRICT
RICHLAND COUNTY CHILDREN SERVICES; )
                                                             COURT FOR THE
HOLLY HARTMAN, Individually and in her )
                                                             NORTHERN DISTRICT OF
capacity as agent and/or employee of Richland )
                                                             OHIO
County Children Services,                          )
                                                   )
        Defendants-Appellants.                     )
                                                   )




       Before: SILER and LARSEN, Circuit Judges; BLACK, District Judge.*

       BLACK, District Judge.     Defendant Holly Hartman (“Hartman”) appeals from the

judgment entered by the district court denying her motion for summary judgment on Count Four

of Plaintiffs’ complaint. For the reasons set forth below, we REVERSE the judgment of the

district court and REMAND the case to the district court for proceedings consistent with this

opinion.

                                  I.     BACKGROUND

       This case arises out of the 2011 removal of minor Plaintiff/Appellee O.B. from the home

of her father, Plaintiff/Appellee Monty Bauch (“Bauch”), effectuated by Richland County


* The Honorable Timothy S. Black, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 17-3435
Bauch v. Richland County Children Services

Children Services (“RCCS”). O.B. was removed on Jan. 20, 2011 pursuant to an ex parte

emergency order issued by an Ohio magistrate under Ohio Revised Code § 2151.31(D) and (E)

and Ohio Juvenile Rule 6(B).1 Pursuant to statute, a hearing was held the next day. Upon

consideration of the evidence presented at the hearing, the juvenile court found that there was

probable cause for the issuance of the emergency order, that RCCS had made reasonable efforts

to prevent O.B.’s removal, and that it would be “contrary to the child’s best interest and welfare”

to continue living with Bauch at that time. Over the next two years, Bauch worked with RCCS

and the juvenile court toward the completion of his case plan, eventually regaining permanent

custody of O.B. in December 2013.

       Bauch filed suit in federal district court a year after he regained custody of O.B. Bauch’s

second amended complaint stated fourteen causes of action. The only count relevant to this

appeal is Count Four, which alleges that the individual defendants named in the complaint

       conspired to interfere with and violate the civil rights of the Plaintiffs, as set forth
       under 42 U.S.C. § 1983, including violation of the Plaintiffs’ rights found in the
       First, Fourth and Fourteenth Amendments of the United States Constitution, by,
       but not limited to, acting and conspiring to force Plaintiff Mr. Bauch to relent to
       their demands, by retaliating against Plaintiffs for the exercise of his
       constitutional freedoms and by removing, detaining and continuing to detain, the
       person and/or physical and legal custody of minors [sic] Plaintiff O.B. from the
       care, custody, and control of her parents, without proper or just cause and/or
       authority; by the use of intimidation, coercion and duress, and by using false and
       fabricated evidence and testimony, and failing to provide exculpatory evidence,
       during the investigation and initiation and pendency of the abuse and dependency
       proceedings, including the application for a valid warrant for the removal of
       O.B., in violation of, and interference with, the Plaintiffs’ constitutional liberty
       interests under the First Amendment, their fundamental rights to familial


1
  Section 2151.31(D) provides that “a juvenile judge or a designated referee may grant by
telephone an ex parte emergency order authorizing the taking of [a] child into custody if there is
probable cause to believe that” certain specified conditions are present. Section 2151.31(E) and
Ohio Juvenile Rule of Procedure 6(B) mandate that “the court shall hold a hearing to determine
whether there is probable cause for the emergency order . . . before the end of the next business
day” and no later than seventy-two hours after such an order is issued.
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No. 17-3435
Bauch v. Richland County Children Services

         association and due process under the Fourteenth Amendment, and in violation of
         Fourth Amendment rights against unreasonable searches and seizures.

         The only Defendant relevant to this appeal is Hartman, a licensed social worker and

caseworker supervisor employed by RCCS, who supervised the initial RCCS investigation of

Bauch.     Hartman moved to secure the initial emergency ex parte custody order from the

magistrate on Jan. 20, 2011. In so doing, Hartman prepared an affidavit in support of emergency

custody detailing the reasons RCCS was seeking removal. In that affidavit, Hartman stated that

O.B. was an “abused” child under Ohio Rev. Code § 2151, that reasonable efforts had been made

to avoid removal, and that removal was in O.B.’s best interest. Bauch alleges that Hartman

knowingly omitted pertinent information and included false information when completing the

affidavit, leading to O.B.’s improper removal and the denial of Plaintiffs’ constitutional rights.

         All parties filed motions for summary judgment before the district court. Hartman argued

that the claims against her in her individual capacity were barred by both absolute immunity and

qualified immunity. The district court rejected these immunity claims and denied Hartman

summary judgment on Count Four. First, the district court stated, without further explanation,

that Hartman was not shielded by absolute immunity for the act of vouching for the truth of the

facts she presented in her affidavit in support of emergency custody. Second, the district court

determined that qualified immunity was inappropriate because a jury had to decide whether

Hartman’s “omissions and rushed misrepresentations . . . would weigh significantly into the

magistrate’s decision to issue an order removing a child . . . and whether Hartman . . . had the

intention to mislead[.]”

                               II.     STANDARD OF REVIEW

         The only question before this Court on appeal is whether the district court erred by

denying Hartman’s claims of absolute and qualified immunity. “Whether a defendant is entitled

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Bauch v. Richland County Children Services

to absolute or qualified immunity from liability under 42 U.S.C. § 1983 is a legal question that

this Court reviews de novo.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009).2

                                       III.   ANALYSIS

       A.      Absolute Immunity

       Hartman argues that she is entitled to absolute immunity from prosecution resulting from

her statements in the affidavit in support of emergency custody. In certain circumstances, social

workers are “entitled to absolute immunity.” Holloway v. Brush, 220 F.3d 767, 774 (6th Cir.

2000) (en banc). “The scope of this immunity is akin to the scope of absolute prosecutorial

immunity, which applies to conduct ‘intimately associated with the judicial phase of the criminal

process.’” Pittman v. Cuyahoga Cty. Dep’t. of Children & Family Servs., 640 F.3d 716, 724 (6th

Cir. 2011) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Accordingly, “social

workers are absolutely immune only when they are acting in their capacity as legal advocates—

initiating court actions or testifying under oath—not when they are performing administrative,

investigative, or other functions.” Holloway, 220 F.3d at 775. The central dispute over absolute

immunity therefore concerns whether Hartman was acting in her capacity as a legal advocate

when she completed and submitted her affidavit in support of emergency custody. As the party

seeking absolute immunity, Hartman has the burden of demonstrating that the immunity is

justified for the function being challenged. Moldowan, 578 F.3d at 376.


2
  In addition to Defendants’ appeal, currently pending before this Court is Plaintiffs’ motion to
dismiss, which argues that the district court’s denial of immunity to Hartman was not a “final
decision” subject to appeal. However, the Court in Ortiz v. Jordan explained that “immediate
appeal from the denial of summary judgment on a qualified immunity plea is available when the
appeal presents a ‘purely legal issue,’ illustratively, the determination of ‘what law was “clearly
established”’ at the time the defendant acted[.]” Ortiz v. Jordan, 562 U.S. 180, 188 (2011)
(quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)). The question of whether Hartman is
entitled to absolute immunity is purely a legal one, and we accordingly deny Plaintiffs’ motion to
dismiss.
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No. 17-3435
Bauch v. Richland County Children Services

       The district court held that Hartman was not acting as a legal advocate in completing the

affidavit in support of emergency custody, relying primarily on this Court’s previous

unpublished decision in Young v. Vega, 574 F. App’x 684, 689 (6th Cir. 2014). In Young, a

father filed a § 1983 action against a Tennessee social worker alleging that the social worker

violated the plaintiff’s Fourteenth Amendment due process rights by including false statements

in a petition for the immediate removal of a child and causing the juvenile court to issue an ex

parte removal order without probable cause. Id. at 687, 691. This Court granted the social

worker qualified immunity but denied absolute immunity. Id. at 689, 694. In reaching its

conclusion, this Court determined that the social worker was not entitled to absolute immunity

for “the act of personally vouching for the truth of the facts that provide the evidentiary support

for a finding of probable cause.” Id. at 689.

       This Court reached its conclusion in Young by applying the Supreme Court’s reasoning in

Kalina v. Fletcher, 522 U.S. 118 (1997), a case involving a prosecutor’s actions, to the social

worker context. 574 F. App’x at 689.3 In Kalina, a prosecutor contemporaneously filed three

documents in a criminal prosecution––an information charging respondent with burglary, a

motion for an arrest warrant, and an affidavit supporting the issuance of the arrest warrant. 522

U.S. at 121. The Court granted absolute immunity for the first two documents, but denied

absolute immunity for the affidavit that was given in support of the arrest warrant because the

prosecutor was not functioning as “an advocate for the State” when she submitted that affidavit.

Id. at 126 (citation omitted). Therefore, the prosecutor had stepped into the role of a fact witness

by attesting to the truth of facts supporting the warrant. Id. at 130. Thus, Kalina confirms that

officials who serve as complaining witnesses receive qualified, not absolute, immunity. See also

3
 This Court looks to the scope of prosecutorial immunity to determine the scope of social
worker immunity. Holloway, 220 F.3d at 774.
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Bauch v. Richland County Children Services

Malley v. Briggs, 475 U.S. 335, 340 (1986) (stating that “complaining witnesses were not

absolutely immune at common law”); Vakilian v. Shaw, 335 F.3d 509, 513 (6th Cir. 2003) (an

investigator can be held liable under § 1983 for making material false statements either

knowingly or recklessly to establish probable cause for arrest). Bauch argues that Hartman’s

affidavit in support of emergency custody is analogous to the affidavits at issue in Kalina,

Malley, and Vakilian because, for purposes of the affidavit, Hartman was acting not as an

advocate but as a witness testifying to the truth of her factual assertions regarding Bauch and

O.B.

       However, multiple decisions of this Court, issued after both Young and Kalina were

decided, have held in situations analogous to this case that the submission of an affidavit that

triggers judicial child-removal proceedings is in fact an act of legal advocacy by social workers.

In Barber v. Miller, 809 F.3d 840 (6th Cir. 2015), a father contended that a social worker

included falsehoods and misrepresentations in a petition for protective custody in order to obtain

an ex parte order for immediate removal pending a hearing.4 Id. at 843. This Court granted the

social worker absolute immunity against those allegations because the social worker “offered his

factual assessment in his capacity as a legal advocate initiating a child-custody proceeding in

family court.” Id. at 843–44. In so doing, this Court held that “[a] social worker acts as a legal

advocate when initiating court proceedings, filing child-abuse complaints, and testifying under

oath,” and that “this absolute immunity holds, even under allegations that the social worker

intentionally misrepresented facts to the family court.”         Id. at 844; see also Schattilly v.

4
  The social worker sought a protective custody order pursuant to Mich. Comp. Laws
§§ 712A.14b and 722.638. Barber, 809 F.3d at 843. Mich. Comp. Laws § 712A.14b, similar to
Ohio Rev. Code § 2151.31(D), authorizes “a judge or referee,” “[u]pon receipt electronically or
otherwise of a petition or affidavit of facts,” to “issue a written ex parte order . . . authorizing the
department of human services to immediately take a child into protective custody and place the
child pending the preliminary hearing if the court finds” that the specified conditions are present.
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No. 17-3435
Bauch v. Richland County Children Services

Daugharty, 656 F. App’x 123, 135 (6th Cir. 2016) (“[Absolute] immunity includes social

workers’ statements in complaints or affidavits that they submit to courts—even if the statements

are false or misleading.” (citing Pittman, 640 F.3d at 724–25)).

       The district court did not address how Barber or Schattilly affect the analysis of absolute

immunity in the present case. We concur with the analysis of these two cases. Like the social

worker’s petition in Barber, Hartman’s affidavit offered her factual assessment as a legal

advocate initiating a child-custody proceeding. See Barber, 809 F.3d at 843–44. Unlike a police

officer’s application for a search warrant, Hartman’s affidavit for emergency custody necessarily

triggered a subsequent custody proceeding in court pursuant to Ohio law. The Ohio Revised

Code states that

              If a judge or referee pursuant to division (D) of this section issues an ex
       parte emergency order for taking a child into custody, the court shall hold a
       hearing to determine whether there is probable cause for the emergency order.
       The hearing shall be held before the end of the next business day after the day on
       which the emergency order is issued, except that it shall not be held later than
       seventy-two hours after the emergency order is issued.

Ohio Rev. Code § 2151.31(E) (emphasis added). Accordingly, Hartman’s actions were more

analogous to a prosecutor’s decision to prosecute than a police officer’s testifying by affidavit in

support of probable cause. This case is also distinguishable from the facts of Kalina—although

the affidavit submitted by the prosecutor in Kalina was “filed as part of an ex parte process prior

to the indictment that begins the criminal case,” Hartman’s affidavit in support of emergency

custody was “an undeniable part of the judicial process” because “the [affidavit] initiated the

[removal] action” and subsequent hearing. Gray v. Poole, 275 F.3d 1113, 1118 (D.C. Cir. 2002).

       Absolute immunity represents “a balance between . . . evils,” as “it has been thought in

the end better to leave unredressed the wrongs done by dishonest officers than to subject those

who try to do their duty to the constant dread of retaliation.” Gregoire v. Biddle, 177 F.2d 579,

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Bauch v. Richland County Children Services

581 (2d Cir. 1949). Weighing this balance in the case of child advocates such as Hartman

demonstrates the clear need to provide that same heightened protection to children’s services

advocates charged with determining whether to initiate child-removal proceedings. See Pittman,

640 F.3d at 725–26 (explaining the necessity of extending absolute immunity to social workers).

Nearly every instance in which a children’s services advocate must act to remove a child from

his or her home promises to be contentious and emotionally charged. If absolute immunity were

denied to these advocates, a flood of litigation against individual advocates would follow as

parents challenged the factual assertions of each affidavit in support of emergency custody. See

Barber, 809 F.3d at 843 (explaining that absolute immunity is necessary to “enable[] social

workers to ‘protect the health and well-being of the children . . . without the worry of

intimidation and harassment from dissatisfied parents’” (citation omitted)). This in turn could

negatively affect children’s services in the future, as advocates, fearing individual reprisal, might

fail to act expediently in situations where a child’s welfare is at risk. Just as absolute immunity

is essential for prosecutors engaged in legal advocacy because “any lesser degree of immunity

could impair the judicial process itself,” Malley, 475 U.S. at 342, that same immunity must be

given to a children’s services advocate as the initiator of home-removal actions; any lesser

protection would jeopardize the essential process that has been established to provide protection

to those children who need it most.

       Accordingly, Hartman is entitled to absolute immunity for claims related to her affidavit

in support of emergency custody.

       B.      Qualified Immunity

       We have held that Defendant/Appellant Holly Hartman is entitled to absolute immunity

from claims arising from her affidavit in support of emergency custody.            This defeats all


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Bauch v. Richland County Children Services

Plaintiffs’ claims against Hartman that are before us on appeal. Accordingly, we need not, and

shall not, review the district court’s determination regarding Hartman’s assertion that she is also

entitled to qualified immunity from Plaintiffs’ claims.

                                     IV.    CONCLUSION

       As this Court properly has jurisdiction over Defendants’ appeal, Plaintiffs’ motion to

dismiss the appeal is DENIED. Furthermore, we conclude that the district court erred in holding

that Defendant/Appellant Holly Hartman was not entitled to absolute immunity in this case. We

therefore REVERSE the judgment of the district court and REMAND this case to the district

court for proceedings consistent with this opinion.




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