BARBARA MARKS; JLF, a Minor; GWF, a Minor; GJH, a Minor, also known as GJR, Plaintiffs - Appellees
WANDA HUDSON; DEAUC DENTAEN, Defendants - Appellants
from the United States District Court for the Southern
District of Texas
OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.
H. SOUTHWICK, CIRCUIT JUDGE
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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
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.
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)).
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.
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