     Case: 18-20486   Document: 00515068922     Page: 1   Date Filed: 08/08/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                                August 8, 2019
                                 No. 18-20486
                                                                Lyle W. Cayce
                                                                     Clerk
BARBARA MARKS; JLF, a Minor; GWF, a Minor; GJH, a Minor, also known
as GJR,

             Plaintiffs - Appellees

v.

WANDA HUDSON; DEAUC DENTAEN,

             Defendants - Appellants




                Appeal from the United States District Court
                     for the Southern District of Texas


Before OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      A mother and her three minor children sued two employees of the state’s
child protective services agency. They claimed a violation of the constitution
stemming from the defendants’ taking of the three children from their mother’s
custody under a temporary removal order.        The district court denied the
defendants’ motion to dismiss the claims based on qualified immunity. The
defendants brought an interlocutory appeal. We conclude the defendants were
entitled to qualified immunity because there was no constitutional violation.
We REVERSE and REMAND in order to dismiss the suit.
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                                 No. 18-20486
              FACTUAL AND PROCEDURAL BACKGROUND
      The plaintiff Barbara Marks is the mother of plaintiffs JLF, GWF, and
GJH, who are minors.       William Farmer is the father of JLF and GWF.
Raymond Hlavaty, III is GJH’s father. Apparently, neither father lives with
Marks or the children. Before the events giving rise to this suit, there were
two reports to the Texas Department of Family and Protective Services
(“Protective Services”) of neglectful supervision made against Marks. Both
reports were later “ruled out” by Protective Services. GWF was allegedly
difficult to control and occasionally exhibited outbursts of anger.
      On December 13, 2015, GWF called the police to report that Marks hit
him in the eye. The next day, Protective Services received a referral of physical
abuse due to bruising on GWF’s eye. Marks’ complaint in this suit alleges that
she did not hit GWF, but rather he slipped while throwing a “temper tantrum”
as Marks was attempting to remove him from the baby GJH’s room. Defendant
Wanda Hudson, a Protective Services employee, was assigned to the case. The
complaint alleges that JLF told Hudson that the bruise was the result of an
accident. Defendant Deauc Dentaen was Hudson’s supervisor at the time.
      On December 15, 2015, Hudson ordered Marks to release GWF to his
father while Marks enrolled in counseling for six months. Marks refused. In
an affidavit filed in the District Court of Harris County, Texas, Hudson stated
that she interviewed GWF at school, and that GWF claimed Marks “hit him in
the eye after saying he better find his review paperwork for school.” On
December 16, Marks allowed GWF to be with his father “for a couple of days,”
but was adamant that GWF could not stay there long “because [the] father was
unable to take care of GWF properly considering the problems GWF has.” On
December 18, Marks permitted GWF’s father to take him for a doctor’s
appointment, but then she picked GWF up from that appointment.


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                                  No. 18-20486
      That same day, Hudson went to Marks’ residence, but no one answered
the door. Hudson in an affidavit swore someone was at home and that she saw
a light in the home being turned off. Marks claims she did not answer because
she had left to go to a theater. Marks claims Hudson was aware Marks was
not home and lied about seeing a light being turned off.
      On December 21, a state judge entered temporary ex parte removal
orders for the children, based on the Hudson affidavit filed that same day.
There was an adversary proceeding on February 10, 2016. The evidence was
Hudson’s affidavits and testimony from Hudson’s supervisor Dentaen. The
court ordered both GWF and JLF to live with their father while the baby GJH
was sent to live with foster parents. The children were returned to Marks on
April 22, 2016.
      The plaintiffs brought suit in the district court for the Southern District
of Texas on December 19, 2017. In their current complaint, the plaintiffs claim
violations of their Fourteenth Amendment right to family integrity and their
right to be free from “judicial deception,” which they argue arises under the
Fourth and Fourteenth Amendments.            Marks brought only Fourteenth
Amendment claims, while the children brought both Fourteenth Amendment
and Fourth Amendment claims.
      The defendants moved to dismiss the claims on April 30, 2018, based on
qualified immunity, absolute immunity, and failure to state a claim upon
which relief could be granted. On June 28, 2018, the district court denied the
motion to dismiss. It held that the complaint sufficiently asserted a violation
of clearly established law recognizing a right to family integrity by giving false
evidence to support removal of the children. The defendants timely appealed.




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                                  No. 18-20486
                                 DISCUSSION
      A defendant may appeal a district court’s denial of a motion to dismiss
based on qualified immunity to the extent the alleged error is one of law.
Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). Our review is de novo,
which means the well-pleaded facts in the complaint are considered to be true,
with all inferences in favor of the plaintiff. Id. State “officials enjoy qualified
immunity to the extent that their conduct is objectively reasonable in light of
clearly established law.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004)
(en banc)).
      The defendants argue there is no actionable right to “familial
association,” that there was no violation of the “nebulous due process right to
‘family integrity,’” and that the complaint fails to allege judicial deception
sufficient to claim a violation of the Fourth or Fourteenth Amendments. They
also argue they are entitled to qualified immunity because the “nebulous”
rights on which the plaintiffs rely are not clearly established, nor were their
actions objectively unreasonable. Finally, Dentaen alone argues that he is
entitled to absolute immunity for his testimony.
      “The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity therefore
has two components: “whether an official’s conduct violated a constitutional
right of the plaintiff; and whether the right was clearly established at the time
of the violation.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). We
start with whether plaintiffs alleged an actionable constitutional violation.




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                                 No. 18-20486
I.    The Existence of a Constitutional Right
      The defendants argue there is no constitutional right to “familial
association,” and that the closest analogue is a “nebulous” due process right to
“family integrity.” The defendants also argue that the other allegations cast
as Fourteenth Amendment claims concern a due process Fourth Amendment
violation for withholding evidence. We will survey the legal landscape for
familial rights to determine what is actionable.
      The federal constitution protects the right to “family integrity,” which is
characterized as a “form of liberty guaranteed by the due process clause of the
Fourteenth Amendment,” including the “rights to conceive and to raise one’s
children” and to maintain the “integrity of the family unit.”         Morris v.
Dearborne, 181 F.3d 657, 666-667 (5th Cir. 1999) (quoting Stanley v. Illinois,
405 U.S. 645, 651 (1972)). This right can also be described as “the right of the
family to remain together without the coercive interference of the awesome
power of the state.” Hodorowski v. Ray, 844 F.2d 1210, 1216 (5th Cir. 1988)
(quoting Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977)). The right
is not absolute. “States can adopt necessary policies to protect the health,
safety, and welfare of children.” Morris, 181 F.3d at 669. Even so, some
procedural due process must be provided before parents are deprived of their
liberty interest in the custody and management of their child. See Santosky v.
Kramer, 455 U.S. 745, 753-54 (1982).
      Over the last fifteen years or so, we have addressed different issues
relevant to familial rights. We held that the Fourth Amendment regulates
social workers’ civil investigations but did not establish “the relevant Fourth
Amendment standards” that would apply. Roe v. Tex. Dep’t of Protective &
Regulatory Servs., 299 F.3d 395, 401 (5th Cir. 2002). We cited cases from other
circuits that had held that when parents’ claims mirror a child’s Fourth
Amendment seizure claim, the same “procedures required for a constitutional
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                                 No. 18-20486
search and seizure under the Fourth Amendment are adequate to protect
[parents’] procedural due process rights and liberty interest in directing the
upbringing of their children.” Gates v. Tex. Dep’t of Protective & Regulatory
Servs., 537 F.3d 404, 435 (5th Cir. 2008).
      We dated one aspect of the clarity in our law by holding that “[a]s of June
1, 2005, Fifth Circuit precedent clearly established that the Fourth
Amendment governs social workers’ investigations of allegations of child
abuse.” Wernecke v. Garcia, 591 F.3d 386, 399-400 (5th Cir. 2009). A panel of
the court determined that we had clearly established that “[g]overnment
officials may neither permanently terminate parental rights, nor temporarily
remove children from their parents, without affording the parents due process
of law.” Stewart v. Perry, 369 F. App’x 593, 594 (5th Cir. 2010) (citing Morris,
181 F.3d at 669-72, for the proposition that it is a violation of the Fourteenth
Amendment to seize a child even temporarily without due process of law).
Finally, one panel stated that it was clearly established that social workers can
violate the Fourth Amendment by “‘knowingly and intentionally, or with
reckless disregard for the truth,’ mak[ing] a false statement or omission that
results in the issuance of a warrant without probable cause.” Wernecke v.
Garcia, 452 F. App’x 479, 483 (5th Cir. 2011) (quoting Franks v. Delaware, 438
U.S. 154, 155-56 (1978) and citing Hale v. Fish, 899 F.2d 390, 400 (5th
Cir.1990) (applying Franks to omissions)).
      Because nonprecedential opinions do not establish any binding law for
the circuit, Light-Age, Inc. v. Ashcroft-Smith, 922 F.3d 320, 322 n.1 (5th Cir.
2019), they cannot be the source of clearly established law for qualified
immunity analysis. Certainly, though, to the extent any of those opinions are
restating what was clearly established in precedents they cite or elsewhere,
the unpublished opinions can properly guide us to such authority. It is clearly
established that Fourth Amendment procedures and standards apply to social
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                                  No. 18-20486
workers’ investigations. Wernecke, 591 F.3d at 399-400. Process that satisfies
Fourth Amendment standards is adequate to protect parents’ Fourteenth
Amendment liberty interest in their child’s custody. Gates, 537 F.3d at 435. It
is also clearly established that a constitutional violation occurs if an official
makes a knowing, intentional, or reckless false statement or omission that
causes the issuance of a warrant without probable cause that leads to the
removal of a child from its parent’s custody. See Franks, 438 U.S. at 155-56.
       The necessity of candor and completeness in an affidavit involves more
than the rights of the person targeted by the statements. “Because it is the
magistrate who must determine independently whether there is probable
cause, it would be an unthinkable imposition upon his authority if a warrant
affidavit, revealed after the fact to contain a deliberate or reckless false
statement, were to stand beyond impeachment.” Id. at 165.
       All this means that an actionable Fourteenth Amendment claim exists
for a false affidavit submitted to a court for the purpose of obtaining a child
seizure order.    The Fourteenth Amendment right alleged by the mother,
Marks, is equivalent to her children’s Fourth Amendment seizure claims.
       We next analyze whether the plaintiffs have alleged a Fourth
Amendment violation.

II.    Constitutional Violation
       A.    Evidentiary Standard for Emergency Order
       The Texas legislature has required the following findings be made before
a magistrate may “issue a temporary order for the conservatorship of a child
under Section 105.001(a)(1) or a temporary restraining order or attachment of
a child authorizing a governmental entity to take possession of a child in a suit
brought by a governmental entity:”



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                                 No. 18-20486
      (1) there is an immediate danger to the physical health or safety of
      the child . . . and that continuation in the home would be contrary
      to the child’s welfare;

      (2) there is no time, consistent with the physical health or safety
      of the child . . . for a full adversary hearing . . . ; and

      (3) reasonable efforts, consistent with the circumstances and
      providing for the safety of the child, were made to prevent or
      eliminate the need for the removal of the child.

TEX. FAM. CODE ANN. § 262.102 (a) (West 2015). The provisions of Texas law
concerning the seizure of a child under Section 262.102 “would have sufficed to
meet the ‘warrant’ requirement.” Gates, 537 F.3d at 429 n.16.
      No evidentiary standard is specified, such as probable cause or
preponderance of the evidence, either in what we have quoted from Section
262.102 or in the remainder of that statute. A preceding section of the Family
Code provides potentially useful text. It lists the same findings as Section
262.102 in the context of setting out the required contents of the affidavit that
a social worker must submit when petitioning for an emergency removal order.
Section 262.101 says that the affidavit must “stat[e] facts sufficient to satisfy
a person of ordinary prudence and caution” that the listed conditions exist. See
In re E.C.R., 402 S.W.3d 239, 247 (Tex. 2013) (describing the process
established by §§ 262.101-02).
      Whatever questions might be raised by this statutory language, the
parties here argue the case solely on the basis of whether an affidavit without
fabrications or omissions would have supported probable cause. For purposes
of this appeal, then, we will do the same.


      B.    Hudson’s Affidavit
      This appeal is from the district court’s denial of the defendants’ motion
to dismiss under Rule 12(b)(6). Our review requires us to analyze whether the
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                                  No. 18-20486
well-pled facts in the complaint, taken as true, are sufficient to constitute a
plausible claim that the Fourth and Fourteenth Amendment were violated
when these children were removed from their home. See Miller, 519 F.3d at
236.      There is a constitutional violation if an affiant knowingly and
intentionally, or with reckless disregard for the truth, includes in an affidavit
a false statement that is necessary to the finding of probable cause, and that
affidavit results in the issuance of a warrant that leads to a search or seizure.
See Franks, 438 U.S. 155-56. There also can be a Fourth Amendment violation
if   there   were   misleading   material   omissions      that   were   recklessly,
intentionally, or knowingly omitted from the affidavit. See Kohler v. Englade,
470 F.3d 1104, 1113 (5th Cir. 2006). “To determine whether facts omitted from
a warrant affidavit are material to the determination of probable cause, courts
ordinarily insert the omitted facts into the affidavit and ask whether the
reconstructed affidavit would still support a finding of probable cause.” Id.
        In summary, we remove all plausibly claimed fabrications and insert all
plausibly claimed omissions to see if the revised affidavit would have
allowed — “would still support” — the magistrate’s finding of probable cause.
        The plaintiffs allege that Hudson lied in her affidavit that led to the
seizure of the children for a period of about four months. We accept the well-
pled claims of falsehoods but must decide if the asserted fabrications were
necessary to the finding of probable cause for the removal of the children.
Franks, 438 U.S. 155-56.
        At the outset, we identify some significant statements in the affidavit
that are not claimed to be false. These include that Hudson arrived at Marks’
home on December 15 to speak with Marks; that the father, William Farmer,
agreed and signed a safety plan for the care of GWF; that GWF stated that his
mother hit him in the eye after saying that he needed to find review homework
from school; that Protective Services requested to be temporary managing
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conservator of the children due to GWF’s black eye which he stated was
“received from his mother”; and that Marks was instructed by her attorney not
to cooperate with Protective Services. The plaintiffs fail to allege any facts to
show that the above statements were false. For instance, the plaintiffs claim
that GWF never stated his mother purposefully hit him, but they do not deny
that he stated his mother hit him after saying he better find his school
paperwork. Whether the child used words of intent like “purposeful,” or just
said his mother hit him and implied she did so as extra emphasis in the
demand she just made on him, hardly matters.
      The plaintiffs’ allegation that Hudson “knew the black eye was caused by
accident,” in response to Hudson’s claim that Protective Services requested
possession of the children because of the black eye GWF stated he received
from his mother, is not well-pled. It is speculation from the stated facts. See
U.S. ex rel. Willard v. Humana Health Plan of Tex., 336 F.3d 375, 379 (5th Cir.
2003). Similarly, the statement that Marks would not cooperate was not false
because Marks told Hudson that she should only speak to Marks’ attorney.
Marks admits saying she would not speak to Hudson about the matter, which
does not render Hudson’s characterization of the situation false.
      The plaintiffs also claim that the affidavit’s statement that reasonable
efforts were made to prevent the removal of the children was false because no
efforts were made, and Marks was only told to give GWF to his father. The
plaintiffs’ own allegations, however, show this was not a false statement. The
plaintiffs do not deny that Hudson attempted on multiple occasions to contact
Marks and that Marks refused Hudson’s plan for her to attend counseling.
Similarly, Marks claims that the statement that she was “physically abusing
her son” was false because “GWF is known to be a problem at times and out of
control which was known to” Hudson and because there was “no evidence of
abuse.” Such evidence does not refute that GWF had a black eye, which,
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                                  No. 18-20486
contrary to Marks’ assertion, could reasonably be interpreted by Hudson to be
“evidence of abuse.” The allegation that Hudson “knew” her statement was
false is also not well-pled as it is simply a claim. See id. GWF’s prior instances
of behavioral problems do not bear on the alleged conduct of Marks.
      There are some potentially false statements.          The plaintiffs allege
Hudson falsely swore she saw a light being turned off at Marks’ home as
evidence that whoever was there ignored Hudson’s knocking at the door. They
also allege that Hudson’s statement that there was an agreement to allow
GWF to reside with his father was false because Marks was adamant
throughout the process that GWF could not stay more than a few days with
the father. The plaintiffs also allege that Hudson’s statement that the injury
was serious was false because a doctor determined that the injury was not.
      Probable cause does not turn on those allegedly false allegations. GWF’s
claim that his mother hit him is the key fact. Hudson’s allegedly knowing no
one was home when she tried to visit at most supported interference with the
investigation, as does the claim that Marks made an agreement to allow GWF
to remain with his father then recanted. Furthermore, the relevant fact for
the issuing magistrate was disclosed concerning GWF’s residing with his
father: Marks refused to allow GWF to reside there temporarily.               The
characterization of the injury as “serious” does not matter for the purposes of
probable cause because Hudson disclosed in the affidavit that the injury was a
swollen black eye, permitting the magistrate to determine whether it was
serious or not. The affiant’s individual characterization of the injury can
hardly be considered a “material” fact given that the injury itself was disclosed
in the affidavit.   Removing these supposedly false statements does not
undermine the finding of probable cause.
      We now turn to what was omitted.           Hudson did not include in her
affidavit that she had talked to one of the other children, JLF, and that the
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                                 No. 18-20486
child had said the bruise was the result of an accident stemming from GWF’s
temper tantrum. Hudson also did not include in her affidavit that a doctor
determined the injury was not “serious.” There was no mention in the affidavit
of GWF’s prior behavioral problems. Finally, the affidavit did not include that
the father, Farmer, told an officer that the injury was an accident.
      Having dealt with the claimed fabrications, we now add the claimed
omissions into what was properly before the magistrate. We then decide if the
additions affect a finding of probable cause. Kohler, 470 F.3d at 1113. A
complete affidavit would have stated that GWF called law enforcement
concerning his black eye; Protective Services received a referral for physical
abuse; and Marks was uncooperative, refusing to enroll in counseling. Marks
also had allowed GWF to be with his father for a short period of time, but then
took GWF back to her residence, refusing to allow that child to stay at his
father’s home any longer. The affidavit would note that GWF had previously
had behavioral problems and that a doctor stated the injury was not serious.
The affidavit would also include a statement that JLF and Farmer stated that
the injury was the result of an accident.
      Having reconstructed the affidavit, we find there still are statements
that support the existence of an immediate danger to GWF. The plaintiffs do
not refute that GWF actually told Hudson that his mother hit him in the eye;
the plaintiffs only contest whether he told her it was purposeful. Even if the
injury was disclosed as not being serious, these assertions still support that
the danger to GWF was not in the specific injury but in Marks’ willingness to
strike GWF. Including that child’s history of behavioral problems would not
eliminate probable cause, as the issue was how his mother responded to the
challenges he presented to her. Adding in the omission that JLF and Farmer
provided an alternative explanation to Hudson and to a police officer, the
affidavit still would state that GWF called the police and told Hudson he was
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                                  No. 18-20486
struck by his mother, which would support that it was in GWF’s best interest
to remove him from the home until the adversarial hearing could adequately
test the claims of other witnesses.
      The reconstructed affidavit also would support that reasonable efforts
were made to provide for the safety of the child while preventing the child’s
removal, given the discussion in the affidavit of Marks’ refusal to attend
counseling sessions and Marks’ own concession that she did refuse.
§ 2262.102(a)(3). 1 Other evidence in the affidavit that was not refuted by the
plaintiffs is that Hudson attempted on multiple occasions to speak with Marks.
Reviewing the reconstructed affidavit, we find that there was an adequate
basis for the issuance of the temporary conservatorship order, and therefore
there was no Fourth Amendment violation based on Hudson’s affidavit.


      C.    Dentaen’s Testimony
      The plaintiffs also challenge Dentaen’s testimony at the February
adversarial hearing as violating the Fourteenth Amendment: “a conviction
obtained through [the] use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth Amendment.”
Napue v. Illinois, 360 U.S 264, 269 (1959). We assume in our analysis that this
constitutional right is clearly established in the context of a hearing regarding
the state taking custody of a child.
      The plaintiffs must allege facts to support that Dentaen falsely testified
at the adversarial hearing. The plaintiffs allege only that Dentaen testified to
what was in the affidavit. The plaintiffs do not allege any specific facts but
only their conclusions that (1) he “had personal knowledge” that GWF’s eye



      1  Neither party discusses whether there was time for a hearing based upon the
allegations in the affidavit.
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injury was not serious and due to an accident when he testified that GWF’s eye
injury was serious, and (2) that he had knowledge of the allegedly false
statements in the affidavit but approved them.
      Because there is no vicarious liability for supervisors for the conduct of
their subordinates, the claim against Dentaen fails absent well-pled
allegations of his personal involvement or some other form of causation to
connect the supervisor to the violation. Rios v. City of Del Rio, 444 F.3d 417,
425-26 (5th Cir. 2006). At most, the complaint makes unwarranted conclusions
about a defendant’s actual knowledge. This claim was properly dismissed.
      We REVERSE and REMAND with instructions to dismiss the suit.




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