                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-3966
                                  ___________

Melissa Abdouch,                         *
                                         *
             Plaintiff - Appellant,       *
                                         * Appeal from the United States
      v.                                 * District Court for the District of
                                         * South Dakota.
Vicki Burger; Raina Boyum; Kathrin       *
Betzing; Alison Downs, in their          *
individual capacities and in their       *
capacities as employees of the South     *
Dakota Department of Social Services, *
                                         *
             Defendants - Appellees.      *
                                    ___________

                          Submitted: September 15, 2005
                              Filed: October 20, 2005
                                  ___________

Before MELLOY, BEAM, and BENTON, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Melissa Abdouch brought this action under 42 U.S.C. § 1983 against the
defendants, a group of South Dakota social workers. She alleged that after the
defendants discovered her infant son had seventeen broken bones, they violated her
constitutional rights by removing him from her care for a period of approximately
seven months. The district court1 found the defendants entitled to qualified immunity
and granted summary judgment in their favor. We affirm.

                                          I.

       Melissa Abdouch and her husband, Michael Abdouch, lived with their three
children: A.A., B.A., and C.A. On August 8, 2002, Melissa took the youngest child,
eleven week-old C.A., to a cardiologist because of a heart murmur. The cardiologist
took a chest x-ray that revealed multiple fractured ribs. The next day, August 9, the
Abdouch’s family physician informed Melissa that the x-ray had revealed “bone
abnormalities.” He asked her to bring C.A. to a hospital emergency room. A physical
exam and x-rays taken at the emergency room revealed that C.A. had seventeen
fractures including fractures of the ribs and clavicle and of the arms and legs, both
above and below the joints. Despite the severity and extent of C.A.’s injuries, all
doctors involved with the case later concurred that the injuries would not have been
apparent to a lay person.

       Two police detectives interviewed Melissa and Michael, starting at the hospital
and continuing at a police station. The police quickly focused on Michael as the
suspected abuser, although there was little evidence to suggest what role each parent
might have played. Melissa and Michael denied harming C.A. and denied having
knowledge of any abuse. When Michael was later deposed, however, he admitted that
he had anger management issues and that Melissa had encouraged him to seek anger
management help or counseling at about the time that the doctors discovered C.A.’s
injuries.




      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

                                         -2-
       Defendant Alison Downs was the Department’s intake social worker assigned
to the case. She was present at the police station. Downs permitted Melissa to take
C.A. home on August 9 on the condition that Michael not stay at the family’s home.

      The following day, August 10, Melissa brought the older children to the
hospital for evaluation. Although neither exhibited signs of abuse, Downs and her
supervisor, defendant Raina Boyum, decided to remove all three children from the
home and place them in a care center. Downs completed a “Child Placement
Agreement and Case Plan” form for each child to authorize the care center to provide
services. In addition to noting C.A.’s severe injuries, Downs noted on the forms that
there was possible sexual abuse. Boyum initialed the forms. There was no evidence
of sexual abuse.

       Also on August 10, Downs told Melissa that there would be a temporary
custody hearing the following day and that she would recommend the court send the
three children home with Melissa. On August 11, at the hearing, Downs did not make
the recommendation. After the hearing, Downs and Boyum released A.A. and B.A.
to Michael’s parents and placed C.A. in foster care. Michael returned home to live
with Melissa. Melissa had urged that C.A. be placed with the children’s grandparents,
who were willing to take C.A. into their home and/or move to care for C.A. in a
different location. Following C.A.’s placement in foster care, Melissa and Michael
were each allowed one one-hour supervised visit per week.

       On August 18, Downs completed an information collection form. She marked
boxes to indicate that C.A. had suffered physical abuse in the “head, face, genitals,
stomach or back area.” She marked boxes to indicate that C.A. required “immediate
medical attention,” that there was “no evidence” of sexual abuse, and that there had
been “frequent or increasingly harsh physical contact.” She also marked boxes to
indicate that Melissa was “emotionally handicapped” and had an “uncontrolled mental
illness.” Finally, without noting which caretaker she was referring to, Downs marked

                                         -3-
boxes to indicate that the caretaker had an “unrealistic expectation of [the] child’s
behavior” and did not “believe that there is a problem.”

      After Downs and Boyum completed their initial investigation and intake, case
manager Kathrin Betzing and her supervisor, Vicki Burger, took over the case.
According to Betzing and Burger, C.A. did not tolerate the supervised visits from
Michael and Melissa well and screamed and refused to eat after the visits. During one
of Michael’s visits, Michael became frustrated and called C.A. a “little shit.” Melissa
contests the Department’s claim that C.A. did not tolerate her visits well.

      An Assistant Attorney General involved in the case, Anthony Sanchez,
recommended that the Department terminate the supervised visits. Sanchez stated that
Melissa was not cooperative in the abuse investigation and that he did not want her
to have more visits until he knew “what part [Melissa] had in the child’s injuries,
whether she actually caused them or . . . knew [Michael] caused them.” Betzing and
Burger decided in September to terminate the visits. At about the same time, they
decided to seek the termination of Michael’s and Melissa’s parental rights regarding
C.A.

       Melissa testified that she wanted to remain married to Michael and have her
children at home. She initially appeared not to believe that Michael had abused C.A.
She testified that she was told by the Department that she would not regain custody
of her children if she remained married to Michael. She requested that C.A. be tested
for a rare congenital disease that causes brittle bones, osteogenesis imperfecta. C.A.
was tested in late September and found not to have the disorder. Melissa filed for
divorce on October 5, 2000, one week after she received the test results. The divorce
became final on January 20, 2001. The January divorce decree did not resolve any
issues of child custody and visitation between Michael and Melissa. When asked,
Melissa could not say whether she would have filed for divorce if the Department had
not recommended that she do so.

                                         -4-
       Notwithstanding the fact that Melissa filed for divorce, Michael continued to
live with Melissa until just before a state court adjudicatory hearing on October 18.
At the hearing, a state court judge relied on the medical evidence of C.A.’s injuries to
determine that C.A. was an abused or neglected child. After the hearing, C.A.’s
placement in foster care continued, and the two older children returned to the family’s
home to live with Melissa.

       Investigators who visited Melissa’s home after Michael moved out reported that
it appeared that a married couple still lived at the home. Further, in discussions with
one of the social workers before Michael moved out, Melissa initially lied about
Michael’s living arrangements. Melissa first stated that Michael had already moved
and that he was living with a friend. When pressed to give the friend’s name,
however, Melissa became flustered and admitted that Michael still lived at home.
Based on this deception, Melissa’s reluctance to believe that Michael had abused C.A.,
and her claimed ignorance that abuse had occurred, the defendants believed that
Melissa had filed for divorce only as a pretext to regain custody of C.A..

       A criminal investigation continued throughout this time. A prosecutor, Pam
Tiede, filed an abuse and neglect petition. Michael eventually admitted that he had
treated C.A. roughly, that he “lost his cool,” and that he must have injured C.A.,
although he said he did not purposely injure C.A. In November, he agreed to plead
guilty to simple assault. He entered a guilty plea on February 22, 2001.

        Melissa’s visits with C.A. resumed in December 2000. Melissa’s visits were
initially once per week and later twice per week. In January 2001, she was allowed
to take C.A. on home visits. In February 2001, Melissa was permitted to begin taking
C.A. on overnight visits. On March 15, 2001, C.A. was conditionally returned to
Melissa on a full-time basis. Following a custody hearing on June 13, 2001, all
conditions on Melissa’s custody of C.A. were removed.



                                          -5-
       Notwithstanding the transitioning of C.A. back into Melissa’s custody, Betzing
and Burger continued to seek termination of Melissa’s parental rights. Before the
June 13 hearing, Prosecutor Tiede told Burger and Betzing that she didn’t believe
there was sufficient evidence to terminate Melissa’s parental rights. At Burger’s and
Betzing’s request, Assistant Attorney General Sanchez took the case from Tiede.
Sanchez reviewed the case, and with Burger and Betzing, decided not to pursue the
termination of rights. They did not notify Melissa of this decision until June 13, the
day of the hearing. At the hearing, the Department sought termination of Michael’s
parental rights and sought continuation of the case against Melissa to permit continued
monitoring of C.A. The court dismissed all proceedings as against Melissa and
deferred the case as to Michael.

        Melissa brought her claims in the present action under § 1983. She concedes
that it initially was appropriate for the defendants to remove the children from her
home. She alleges, however, that the defendants continued to seek the termination of
her parental rights after it became clear that the defendants could not make the
showing necessary to terminate her rights. She characterizes this action as a violation
of her right to be free from prosecution without probable cause. She also alleges that
the defendants’ protracted placement of C.A. in foster care deprived her of her liberty
interest in the care and custody of her children.

       As to the prosecution-related claim, the district court found that the social
workers were analogous to prosecutors and therefore entitled to absolute immunity for
their initiation of judicial proceedings against Melissa. As to the alleged violation of
her liberty interest as a parent, the district court found that qualified immunity applied.
We affirm.




                                           -6-
                                           II.

       Qualified immunity protects public officials unless their conduct violates
clearly established statutory or constitutional rights of which a reasonable person
would have known. Littrell v. Franklin, 388 F.3d 578, 582 (8th Cir. 2004) (“‘officials
are not liable for bad guesses in gray areas; they are liable for transgressing bright
lines.’”) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).
Qualified immunity is a question of law that we review de novo. Littrell, 388 F.3d at
584-85. In reviewing a grant of qualified immunity, “[t]he sequence of our analysis
is to ask first whether, taken in the light most favorable to the plaintiff, the facts
alleged show the officer’s conduct violated a constitutional right; and second,
whether, in the specific context of the case, the right was clearly established.” Swipies
v. Kofka, 348 F.3d 701, 703 (8th Cir. 2003).

       We have previously recognized that parents have an important but limited
substantive due process right in the care and custody of their children. Manzano v.
South Dakota Dept. of Soc. Servs., 60 F.3d 505, 509-10 (8th Cir. 1995). The right is
limited because the state has a potentially conflicting, compelling interest in the safety
and welfare of the children. Id. at 510 (“‘[T]he liberty interest in familial relations is
limited by the compelling governmental interest in the protection of minor children,
particularly in circumstances where the protection is considered necessary as against
the parents themselves.’”) (quoting Myers v. Morris, 810 F.3d 1437, 1462 (8th Cir.
1987)). The right is important because of the need to “curb[] overzealous suspicion
and intervention on the part of health care professionals and government officials,
particularly where the effect of such overzealousness may have the effect of
discouraging parents or caretakers from communicating with doctors or seeking
appropriate medical attention for children with real or potentially life-threatening
conditions.” Thomason v. SCAN Volunteer Servs., Inc., 85 F.3d 1365, 1373 (8th Cir.
1996).



                                           -7-
       The net result of these competing interests is that we must weigh the interests
of the state and child against those of the parents to determine whether a constitutional
violation has occurred. Under this balancing test, the officials’ actions must have been
based on a reasonable suspicion of abuse and must not have been disproportionate
under the circumstances. Id. at 1371-72 (“The difficulty in the present case is not
whether such a reasonable suspicion can be found, but rather, whether the actions
taken by the defendants and the resulting disruption to plaintiffs’ familial relations
with [the child] were so disproportionate under the circumstances as to rise to the level
of a constitutional deprivation.”).

       “The need to continually subject the assertion of this abstract substantive due
process right to a balancing test which weighs the interest of the parent against the
interests of the child and the state makes the qualified immunity defense difficult to
overcome.” Manzano, 60 F.3d at 510. Even where this balancing reveals a
constitutional violation, qualified immunity still applies unless the constitutional
violation was so clear that an objectively reasonable official under the circumstances
would have recognized the disproportionality or lack of reasonable suspicion. In the
present case, we need not reach this second step of the qualified immunity analysis
because we conclude that the defendants’ conduct, viewed in a light most favorable
to the plaintiff, did not violate a constitutional right.

       Because Melissa concedes that it initially was proper for the defendants to
remove C.A., her allegations of a constitutional violation focus on her extended
deprivation of custody claim. For a substantial period of time after the discovery of
C.A.’s severe injuries, the defendants did not know which parent harmed C.A.,
whether both parents had a role in harming C.A., or whether the injuries were due at
least in part to one or both parents’ negligence. Even as investigators’ attention
focused on Michael, a clear picture of the abuse and of Melissa’s role in, or
knowledge of, the abuse eluded investigators. This uncertainty caused the defendants
to question Melissa’s ability to care for and protect C.A.

                                          -8-
       The defendants’ actions, however, were not based solely on speculation or
uncertainty. Rather, the defendants reasonably believed that Melissa was not being
honest with them. She attempted to deceive the defendants regarding Michael’s living
arrangements. In addition, from the defendants’ perspective, she appeared reluctant
to believe or admit that Michael had abused C.A. and reluctant to file for divorce.
Also, she continued to live with Michael until shortly before the October 18 hearing.
All of this information, when viewed against the backdrop of C.A.’s serious and
unexplained injuries, clearly shows a basis for the defendants’ reasonable suspicion
that Melissa was complicit in the abuse or guilty of neglect. It was not unreasonable
to hold C.A. in foster care during this time.

      Further, the state court’s October 18 decision, following notice and a hearing,
demonstrated the reasonableness of the defendants’ suspicions and did nothing to
vindicate either Melissa or Michael. The court held that C.A. was an abused or
neglected child, not that Michael was guilty nor Melissa innocent. Later, when
Michael agreed to plead guilty, his statements shed little to no light on the events that
caused C.A.’s injuries. The defendants, nevertheless, began to transition C.A. back
into Melissa’s care.

       Melissa’s main complaint appears to be that this transition was slower than
necessary. In balancing the rights of the parents against the interests of the child, we
disagree. The Department was under a duty to protect C.A. and formulate a transition
plan that protected C.A. from any further abuse or neglect. This duty required the
Department to ensure that Michael did not have access to C.A. In that regard, the
divorce was not final until January, and even then, custody issues were not resolved
by the divorce decree. Before that time, visitation had resumed. Home visits and
overnight visits followed, and by March, C.A. was in the plaintiff’s care on a full time
basis. Given these facts, as well as the severity of the injuries and the uncertainties
about Michael’s situation, the deprivation of custody from October 18 until full-time
placement in March was not unreasonable, and certainly did not rise to the level of a

                                          -9-
constitutional violation. Accordingly, the defendants are entitled to the protection of
qualified immunity.2

       As a final matter, we note that the district court correctly applied absolute
immunity to shield the defendants from liability for initiating or maintaining judicial
proceedings. See Thomason, 85 F.3d at1373 (“To the extent [a state authorized child
welfare agency and its worker] are sued for initiating judicial proceedings, [the
welfare worker’s] role was functionally comparable to that of a prosecutor.”); Myers,
810 F.2d at 1452 (“Accordingly the decision to file charges is protected, even in the
face of accusations of: vindictive prosecution, or reckless prosecution without
jurisdiction, or conspiracy to prosecute for a crime that never occurred.”) (internal
citations omitted); Martin v. Aubuchon, 623 F.2d 1282, 1285 (8th Cir. 1980) (finding
that absolute immunity applied to protect a prosecutor who had initiated the
termination of parental rights without notice to the parents).

       The judgment of the district court is affirmed. Appellees’ pending motion to
strike portions of the Appellant’s brief is denied as moot.
                        ______________________________




      2
        Melissa argues that various specific actions by the defendants showed personal
animosity. For example, Melissa complains that Downs lied about her intention to
recommend that the children stay with Melissa at the August 11 hearing and that
Downs and Boyum suggested on forms that there was evidence of sexual abuse when
no such evidence existed. Finally, Melissa argues that because the physicians
believed a lay person would not have recognized C.A.’s injuries, she had no notice of
the injuries and should not have been the target of an abuse and neglect investigation.
These arguments are misplaced. As discussed above, no constitutional violation
occurred. Without a violation of constitutional rights, qualified immunity applies
regardless of whether an official harbors personal animosity. Also the fact that C.A.’s
injuries were difficult to detect does not disprove the reasonable suspicion as set forth
above.

                                          -10-
