Arredondo v. Locklear

371 F.Supp.2d 1281

Jacinto ARREDONDO and Marisela Olivas, Plaintiffs, v. Naomi LOCKLEAR, Rebecca Barrera-Garcia,¹ Mike Pitts and Rudy Arrey, Defendants.

No. CIV 03-156 KBM/LCS.

United States District Court, D. New Mexico.

May 6, 2005.

Jacinto Arredondo, Artesia, Michael Truett Newell, Lovington, NM, for Plaintiff.

Marisela Olivas, Artesia, NM, pro se.

Sean Olivas, Albuquerque, NM, B. James Reeves, Las Cruces, NM, Derek L. Brooks, Richard E. Olson, Roswell, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs bring this action under 42 U.S.C. § 1983, seeking damages for the removal of their children during the course of a child abuse investigation. Defendants are the social workers and police officers who were involved in the investigation and/or made the decision to remove the children. They are sued in their individual capacities only. See Docs. 8, 12, 36.

Plaintiffs' Fourth Amendment "warrantless entry" claim was dismissed, and I do not read their Third Amended Complaint as asserting any state law claims.² Accordingly, the sole remaining claim asks whether failure to give Plaintiffs notice and a hearing before removing the children violated due process.³

The matter is before me on Defendants' motions for summary judgment on the issue of qualified immunity. Docs. 84, 89, 91. Plaintiffs also filed a motion for summary judgment, but briefing was stayed pending resolution of the qualified immunity issues. Docs. 87, 94, 97. Despite the stay in briefing on Plaintiffs' motion, this case is actually in a cross-motion posture, since Plaintiffs' responses reiterate the same arguments and facts that they asserted in support of the argument that summary judgment should issue in their favor. Compare Doc. 87, with Docs. 98-100.

Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties have consented to have me serve as the presiding judge and enter final judgment. The parties' submissions and the cases they cited have been carefully reviewed, and I have conducted my own research of relevant authorities as well. I commend Plaintiffs' counsel on the quality of his advocacy. Ultimately, however, I find Defendants' motions well-taken and will grant them. Accordingly, the pretrial conference and trial will be vacated and this matter dismissed.

I. Background

A. Overview Of Competing Legal Interests

The general constitutional principles that serve as the backdrop for the matter before me are well and long established. See, e.g., Troxel v. Granville, 530 U.S. 57, 66-67, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (and Supreme Court cases cited therein); Parham v. J.R., 442 U.S. 584, 602-03, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (same). Parents have constitutionally-protected liberty interest in the custody and care of their children that is of "paramount importance." J.B. v. Washington County, 127 F.3d 919, 925 (10th Cir.1997). Conversely, the State has "traditional and transcendent" interest of "surpassing importance" in "acting as parens patriae" to protect "children from physical and sexual abuse." Id. at 927.

In due process terms, the balance between these two interests is struck as follows: if an "emergency" situation exists, then the government officials need not give parents notice and an opportunity to be heard before taking the child into temporary custody.⁴ As the Seventh Circuit put over twenty years ago: "When a child's safety is threatened, that is justification enough for action first and a hearing afterward." Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.1983) (citing Duchesne v Sugarman, 566 F.2d 817, 825 (2nd Cir.1977)).

B. Overview Of New Mexico Child Abuse And Neglect Statutes

Plaintiffs concede that violation of a state law alone cannot serve as a basis for recovery under § 1983. See Docket No. 99 at 19. Nevertheless, a review of the New Mexico state laws governing child abuse and neglect may provide a framework to understand the factual background set forth in the next section of this opinion.

The state statutes codify the principle that the State must act to keep children safe, and in some instances, take temporary custody of them. See N.M. STAT. ANN. §§ 32A-4-1 et seq. Under those statutes, an "abused child" includes a child "who has suffered physical abuse ... inflicted or caused by the child's parent" or "who has suffered or who is at risk of suffering serious harm because of the action or inaction of the child's parent." Id., §§ 32A-4-2(B)(1), (2). Physical abuse includes bruises or broken bones for which there is no justifiable explanation or for which the explanation is at variance with the conditions, but the phrase "serious harm" is not further defined in the statutes. See id., § 32A-4-2(F).

Certain people, such as physicians, who have a "reasonable suspicion" that a child is abused, are required to "immediately" report the same to either law enforcement or the New Mexico Child, Youth & Families Department "CYFD" (or other appropriate agency when American Indian children are involved). Id., § 32A-4-3(A); see also id., § 32A-1-4(F). Failure to report is a criminal misdemeanor, which carries a penalty of a jail sentence and/or fine. Id., § 32A-4-3(F). Whoever receives a report

shall take immediate steps to ensure prompt investigation of the report. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect.

Id., § 32A-4-3(C); see also id., § 32A-4-4(A) (CYFD "shall conduct an investigation to determine the best interest of the child with regard to any action to be taken.").

A police officer may hold or take a child into custody "when the officer has reasonable grounds to believe that the child is suffering from ... injury as a result of alleged abuse or neglect [or that the child] is in danger from the child's surroundings and removal from those surroundings is necessary." Id., § 32A-4-6(A)(1). Likewise, a person in the medical profession may "hold" a child until officers can take custody when "there are reasonable grounds to believe that the child has been injured as a result of abuse or neglect and that the child may be at risk of further injury if returned to the child's parent." Id., § 32A-4-6(A)(2).

Once a child has been taken into custody, the police officer must "with all reasonable speed" either release the child to the parent with verbal counseling and warning, or deliver the child to CYFD or to a shelter facility or to a medical facility depending on the circumstances. Id., §§ 32A-4-7(a)(1)-(2). Upon delivery to CYFD, "caseworkers shall review the need for placing the child in custody and shall release the child from custody unless custody is appropriate or has been ordered by the court." Id., § 32A-4-7(b).

If CYFD does not release the child to the parent, the CYFD is required to "give written notice thereof as soon as possible, and in no case later than twenty-four hours, to the child's parent ... together with a statement of the reason for taking the child into custody." Id., § 32A-4-7(C). CYFD is required to make "reasonable efforts... to prevent or eliminate the need for removing the child from the child's home, with the paramount concern being the child's health and safety." Id., § 32A-4-7(D). Nondelinquent children who are in custody are subject to placement in "specified community-based shelter-care facilities." Id. These include relatives who are "willing to guarantee to the court that the child will not be returned to the alleged abusive of neglectful parent ... without the prior approval of the court," licensed foster homes, or licensed child welfare agencies. Id., § 32A-4-8(A)-(D).

Unless CYFD files a petition within two days of taking a child into custody, the child is to be released to the parent. Id., § 32A-4-7(D). Petitions alleging abuse or neglect cannot be filed "unless the children's court attorney has determined and endorsed upon the petition that the filing of the petition is in the best interests of the child." Id., § 32A-4-15.

CYFD can also file a petition alleging abuse or neglect and seek custody of a child who is not yet in custody. See id., § 32A-4-18(A). "[U]pon a sworn written statement of facts showing probable cause exists to believe that the child is abused or neglected and that custody ... is necessary," the court can issue an "ex-parte custody order" directing "the officer to take custody of the child and deliver [her] to a place designated by the court." Id., § 32A-4-16(A), (B). The petitioner demonstrates that custody is "necessary" by, among other things, showing "probable cause exists to believe that" the child suffers from an injury and the parent is not providing adequate care, or the "child is in immediate danger from [her] surroundings and removal form those surroundings in necessary for the child's safety," or "the child will be subject to injury by others if not placed in custody of [CYFD]." Id., §§ 32A-4-18(C)(1)-(3).

Once a child has been taken into custody, either by having an officer give custody to CYFD or by CYFD securing an ex parte order for temporary custody, then a custody hearing must be held within ten days from the filing of the petition with the parents having been given "reasonable notice" of the time and place of the hearing. Id., § 32A-4-18(B). The court must determine if the child should remain in or be placed in CYFD's custody. Id., § 32A-4-18(A).

II. Factual Background

This case turns on whether Defendants were confronted with an "emergency" when Plaintiff's children were taken into custody. The parties point to different sets of facts to support their diametrically opposed legal conclusions. Ultimately, what I find to be material consists of a circumscribed set of facts and those facts are not in dispute. Nevertheless, I will examine the evidence in some detail here, in the light most favorable to Plaintiffs, to...