                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 March 10, 2008
                                                                  Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                   Clerk of Court



    MISTA TURNER BURGESS,
    individually and in her capacity as
    mother and next best friend of H.M.T.
    a minor child,

                Plaintiff-Appellee,

    v.                                                  No. 07-6107
                                                  (D.C. No. CIV-07-269-R)
    CAROL HOUSEMAN, individually,                       (W.D. Okla.)

                Defendant-Appellant,

          and

    MICHAEL E. KLIKA, individually;
    DEPARTMENT OF HUMAN
    SERVICES, ex rel., The State of
    Oklahoma, a state agency; CITY OF
    OKLAHOMA CITY, a political
    subdivision of the State of Oklahoma;
    JOHN DOES 1 through 5,

                Defendants.


                              ORDER AND JUDGMENT *



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before TACHA, EBEL, and MURPHY, Circuit Judges.



      Carol Houseman appeals the district court’s denial of her motion to dismiss

plaintiff’s 42 U.S.C. § 1983 civil rights claim against her on the basis of qualified

immunity. The claim in question was brought by plaintiff Mista Turner Burgess

on behalf of her minor child, H.M.T. She alleged that Houseman violated

H.M.T.’s Fourth, Fifth, and Fourteenth Amendment rights by taking H.M.T. into

protective custody without a court order or probable cause and without providing

a hearing. The district court denied qualified immunity to Houseman because it

determined that plaintiff had alleged sufficient facts to show the seizure was

unreasonable and that the right asserted was clearly established prior to

Houseman’s alleged actions. We affirm the challenged order of the district court.

                                 BACKGROUND

      Plaintiff is the former spouse of John Turner, H.M.T.’s father. In her

complaint, she alleges that on April 7, 2005, John Turner’s ex-girlfriend, who was

the mother of another of his children, complained to the Oklahoma City Police

Department (OCPD) that Turner had sexually abused her three-year-old son.

Officers interviewed the boy and he allegedly accused Turner of abusing H.M.T.

as well. The OCPD notified the Oklahoma Department of Human Services (DHS)

of the allegations.



                                         -2-
      Under the terms of their divorce decree, plaintiff and Turner had joint

custody of H.M.T. On April 19, 2005, OCPD officers seized H.M.T. from her

school and took her to a DHS facility known as the Care Center Shelter. Plaintiff

alleges that there was no probable cause for this seizure. Officer Michael E.

Klika later interrogated plaintiff at OCPD headquarters and told her that he had

caused H.M.T. to be placed in protective custody with DHS. He refused to permit

plaintiff to see H.M.T. at the Care Center.

      That evening, Houseman called plaintiff, identifying herself as H.M.T.’s

caseworker. Notwithstanding the fact that no allegations of child abuse had been

made against plaintiff, Houseman refused to release H.M.T. from the Care Center

to plaintiff. H.M.T. was detained overnight at the Care Center, until plaintiff was

able to obtain a court order giving her sole custody of H.M.T. the following day.

Plaintiff asserts that Klika and Houseman “engaged in [a] joint venture . . .

assist[ing] each other in performing the actions described and lent their physical

presence and support, as well as the authority of their offices, to each other during

[the relevant] events.” Aplt. App. at 22.

      Plaintiff further asserts that “the allegations against Turner were totally

unfounded, that Turner never touched Plaintiff H.M.T. in a sexually inappropriate

manner, and that the ‘investigation’ by Defendants Klika and Houseman was

superficial and highly unprofessional.” Id. at 16. Before releasing H.M.T. to

plaintiff’s custody, Houseman allegedly told H.M.T. that her father was “bad,”

                                            -3-
and she “greatly frightened” H.M.T. Id. H.M.T. later underwent counseling as

the result of alleged trauma resulting in part from her detention at the Care Center

and the statements made by Houseman about her father.

                                    ANALYSIS

      “An order denying qualified immunity that raises purely legal issues is

immediately appealable.” Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006).

Our review is de novo, and we accept all well-pleaded allegations of the

plaintiff’s complaint as true, considering them in the light most favorable to the

plaintiff. Id. To overcome Houseman’s assertion of the qualified immunity

defense, plaintiff must show that the acts complained of violated a constitutional

or statutory right, and that the right allegedly violated was clearly established at

the time of the conduct at issue. Id.

      1. Proper Constitutional Standard

      Houseman first contends that plaintiff has failed to make the required

showing, because the facts alleged are not “conscience shocking” and therefore

cannot rise to the level of a constitutional violation. Aplt. Br. at 11. The

“shock-the-conscience” test only applies, however, when the plaintiff asserts a

substantive due process violation based on executive action that does not

implicate a fundamental right. County of Sacramento v. Lewis, 523 U.S. 833,

846-47 (1998); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1203 (10th Cir. 2003).

As we read her complaint, plaintiff does not bring her claim on the basis of

                                         -4-
substantive due process, but avers instead that H.M.T. was detained in violation

of her right to be free from unreasonable seizure under the Fourth and Fourteenth

Amendments and without due process of law in violation of the Fifth and

Fourteenth Amendments. “Where a particular Amendment provides an explicit

textual source of constitutional protection against a particular sort of government

behavior, that Amendment, not the more generalized notion of ‘substantive due

process,’ must be the guide for analyzing these claims.” Albright v. Oliver,

510 U.S. 266, 273 (1994) (quotation omitted).

      2. Fourth Amendment Claim

      Plaintiff’s Fourth Amendment claim asserts that Houseman helped seize

and detain H.M.T. without a court order and without probable cause to believe

that H.M.T. would be abused if she remained in her mother’s physical custody.

The Fourth Amendment, which prohibits the unreasonable seizure of persons, is

applicable to the actions of state social workers. Jones v. Hunt, 410 F.3d 1221,

1225 (10th Cir. 2005). “With limited exceptions, a search or seizure requires

either a warrant or probable cause.” Id. at 1227. 1 Houseman argues that an

exception to the warrant or probable cause requirement applies here, and the




1
      In the context of a seizure for child protection, a juvenile court order often
serves the function of a warrant. See J.B. v. Washington County, 127 F.3d 919,
930 (10th Cir. 1997).

                                         -5-
seizure was reasonable, because exigent circumstances were present which

obviated the need for a court order or probable cause.

      Exigent circumstances may justify a warrantless seizure and detention for

child protective purposes. See Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir.

2003). However, “[t]his exception is narrow, and must be jealously and carefully

drawn.” Id. (quotation omitted). The facts of plaintiff’s complaint, which we

must take as true, do not establish that Houseman’s actions fell within this narrow

exception. According to the complaint, there were no child abuse allegations

raised against Ms. Burgess, who knew nothing of the alleged sexual abuse. No

charges were ever filed against Ms. Burgess alleging that she failed to protect

H.M.T. or that she exposed H.M.T. to any threat of harm. 2 Plaintiff alleges that

there was no reason at all to believe that H.M.T. would not have been safe if

permitted to remain in the custody of her mother. Thus, there were no exigent

circumstances alleged and plaintiff has sufficiently pleaded a violation of

H.M.T.’s Fourth Amendment rights.

      The law was clearly established, prior to the events in question, that

children enjoy Fourth Amendment rights to be free from seizure, including the

improper removal from their home. See J.B. v. Washington County, 127 F.3d 919,


2
      Plaintiff does allege that Houseman “alleged in DHS records as early as
April 19, 2005 that Plaintiff Burgess ‘failed to protect’ and exposed Plaintiff
H.M.T. to [a] ‘threat of harm.’” Aplt. App. at 15. She contends, however, that
these charges “were totally meritless and without any evidentiary support.” Id.

                                         -6-
928-29 (10th Cir. 1997). We therefore affirm the denial of qualified immunity on

plaintiff’s Fourth Amendment claim.

      3. Fifth Amendment Claim

      The district court appears to have analyzed plaintiff’s claim primarily as a

Fourth Amendment claim. Aplt. App. at 133-34 (concluding that plaintiff “has

alleged sufficient facts to support her contention that the removal of H.M.T. from

her home and placement in a protective environment was an unreasonable

seizure” and that the right involved was clearly established). As we read

plaintiff’s complaint, however, she also alleges that H.M.T. was deprived of

procedural due process in connection with the seizure and detention. Such a

deprivation can violate a child’s due process rights. See J.B., 127 F.3d at 925.

To the extent that Ms. Houseman asserts qualified immunity as to this Fifth

Amendment claim, we affirm the denial of qualified immunity at this stage on

that claim as well.

      A minor child “enjoys a liberty interest requiring that procedural due

process accompany her confinement.” Id. This interest must be balanced against

the state’s interest in protecting children from physical and sexual abuse, which is

significant here. See id. In addition to the child’s liberty interest and the state’s

interest in child protection, a third and decisive factor examines the procedures

used and the cost and benefit of additional procedures. Id.




                                          -7-
      Oklahoma law provides a procedure for obtaining a court order before

seizing and detaining a child. Okla. Stat., tit. 10, § 7003-2.1(A)(2). The

defendants did not attempt to obtain a court order before seizing and detaining

H.M.T. Houseman cites our holding in Gomes v. Wood, 451 F.3d 1122, 1130

(10th Cir.), cert. denied, 127 S. Ct. 676 (2006), that “state officials may remove a

child from the home without prior notice and a hearing when they have a

reasonable suspicion of an immediate threat to the safety of the child if he or she

is allowed to remain there.” This is consistent with Oklahoma law, which

provides that seizure and detention are appropriate without a court order “if the

child’s surroundings are such as to endanger the welfare of the child or if

continuation of the child in the child’s home is contrary to the health, safety or

welfare of the child.” Okla. Stat., tit. 10, § 7003-2.1(A)(1).

      As we have already seen, however, the allegations of plaintiff’s complaint

indicate that defendants could not reasonably have relied on imminent danger to

H.M.T. to justify the seizure and detention. Turning to the second factor

pertinent to qualified immunity, we note that the law that requiring procedural

due process in connection with the seizure and detention of a child was clearly

established at the time of the events in question. See, e.g., J.B., 127 F.3d at

924-25.

      For the reasons stated, we reject Houseman’s assertion that exigent

circumstances justified the seizure and detention of H.M.T. without a court order

                                          -8-
or probable cause, as it applies to both plaintiff’s Fourth Amendment and Fifth

Amendment claims. The allegations of plaintiff’s complaint establish the

violation of H.M.T.’s constitutional rights, and the law concerning these rights

was clearly established at the time of the alleged violation. We therefore affirm

the district court’s denial of qualified immunity. 3 The judgment of the district

court is AFFIRMED.


                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




3
       As in Jones, “[w]e emphasize that our disposition of this case is largely
dictated by the Rule 12(b)(6) standard,” which requires us to accept the
allegations of plaintiff’s complaint as true. Jones, 410 F.3d at 1231 n.7. We hold
only that the district court did not err in denying qualified immunity at this stage
in the litigation. See id.

                                         -9-
