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Marks v. Hudson

United States Court of Appeals, Fifth Circuit

August 8, 2019

BARBARA MARKS; JLF, a Minor; GWF, a Minor; GJH, a Minor, also known as GJR, Plaintiffs - Appellees
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.


         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.


         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.

         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.


         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 ...

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