Doe v. Lebbos

348 F.3d 820, 2003 WL 22479996
Court of Appeals for the Ninth Circuit·Decided November 4, 2003·No. No. 02-16326·Published·Cited by 38 cases

Opinions

Opinion by Judge PAEZ; Dissent by Judge KLEINFELD.

OPINION

PAEZ, Circuit Judge:

George and Lacey Doe (the “Does”) appeal from the district court’s summary judgment on their 42 U.S.C. § 1983 claims in favor of Lisvet Carrillo-Herrera (“Herrera”), a county social worker, and the County of Santa Clara, the Santa Clara County Department of Social Services, and Santa Clara County Protective Services (together the “County”). The Does contend that Herrera and the County violated their constitutional rights by removing Lacey, a four-year-old girl, from George’s custody, inadequately investigating allegations that George abused and neglected Lacey, fabricating evidence in support of the dependency petitions they filed in dependency court, and referring Lacey for a [823] sexual abuse examination without parental consent or a court order. The district court granted absolute immunity to Herrera, reasoning that her actions were part of the initiation and pursuit of child dependency proceedings for which social workers are entitled to absolute immunity. The court also concluded that there was no basis for Monell liability against the County-

We agree with the district court that the Does’ Monell claim against the County must fail because there was no evidence that Herrera was a final decisionmaker for the County, that the County failed adequately to train its social workers, or that the County deliberately deprived the Does of their constitutional rights. We also agree with the district court that Herrera is entitled to immunity for her actions, but we disagree that she is entitled to absolute immunity across the board. Instead, we hold that Herrera’s actions in allegedly failing to investigate adequately the allegations of abuse and neglect against George and in allegedly fabricating evidence in the dependency petitions she prepared for the court were part of the initiation and pursuit of child dependency proceedings, for which Herrera was entitled to absolute immunity. She is entitled only to qualified immunity, however, for her actions in maintaining Lacey outside of George’s custody pending the November 5,1999, detention hearing and in referring Lacey for a sexual abuse examination without parental consent or a court order. In light of our disposition of the immunity issue, we affirm the district court’s summary judgment in favor of Herrera and the County.

FACTUAL BACKGROUND

Lacey Doe is the four-year-old daughter of George Doe and Robin Doe.1 On November 2, 1999, the San Jose Police Department detained Lacey and placed her in a children’s shelter on the basis of allegations made by Betsey Lebbos (“Lebbos”)2 —an acquaintance of George’s with whom he and Lacey lived for approximately one week after they moved to San Jose, California, from Miami, Florida — that, among other things, George had been drunk while caring for Lacey, had generally neglected her (i.e., failed to provide her with adequate food, shelter, and medical care), and that Lacey complained of vaginal pain and discharge.

On November 4, 1999, Herrera, a county social worker, was assigned to Lacey’s case. With Herrera’s assistance, Santa Clara County Social Services prepared a juvenile dependency petition, pursuant to California Welfare & Institutions Code section 300, in preparation for Lacey’s detention hearing the following day. The report included failure to protect and sexual abuse allegations based in part (1) on evidence of general neglect as reported by the San Jose Police Department, (2) on George’s alcohol problem and his failure to provide appropriate care when under the influence of alcohol, (3) on inconsistent statements made by George and Lacey’s pediatrician regarding whether Lacey received medical treatment for a urinary tract infection, (4) on Lacey’s complaints of vaginal pain and discharge (which appeared to be untreated), (5) on information that Lacey had redness around her vaginal area for which there was no reasonable explanation, (6) on reports that Lacey pre[824] viously had two yeast infections, and (7) on a prior complaint against George in Santa Cruz County alleging that he sexually abused one of his other daughters.3

The dependency court held a detention hearing on November 5, 1999. At the hearing, the judge explicitly asked the County’s attorney “if Lacey [was] getting some physical treatment at the shelter for her vaginal infection.” The attorney responded that she would contact Herrera and check into treatment for Lacey. The judge then commented, “All right. Because that’s very important because she has been complaining that it’s painful.” At the conclusion of the hearing, the judge decided that “on the face of the [dependency] petition a showing has been made that [Lacey] comes within section 300.” The judge therefore detained Lacey and placed her under the supervision of the Department of Family and Children’s Services. She also granted George supervised visitation rights.

Due in significant part to the judge’s inquiry about Lacey’s condition, as well as evidence of sexual abuse against Lacey, Herrera referred Lacey on November 10, 1999, to the Santa Clara Valley Medical Center, Center for Child Protection, for a sexual abuse examination. She did not have parental consent or a formal court order authorizing the examination. Mary Ritter, a certified physician’s assistant, performed a physical examination, including a Sexual Assault Response Team (“SART”) examination,4 on Lacey to determine whether she had a vaginal infection and whether there were signs of sexual abuse. Ritter found “[n]o definite evidence of penetrating trauma,” but concluded that the “absence of definite physical evidence of penetrating trauma by no means rules out the possibility of prior sexual contact.”

The dependency court held a contested jurisdictional hearing on February 28, 2000.5 George admitted the allegation of neglect, which was based on his alcohol use, and knowingly and intentionally waived his right to a trial. The judge then declared Lacey a dependent of the court and ordered George to participate in a family reunification plan. Lacey remained out of George’s custody until May 15, 2001, when George completed the family reunification services.

After Lacey was once again in his custody, George filed suit in California Superior Court, on behalf of himself and Lacey, against the County, Herrera, and Lebbos. In his amended complaint, filed on November 9, 2000, he alleged nine state causes of action6 and one federal cause of action7, [825] all related to the removal of Lacey from his care and custody. The defendants removed the action to federal court on December 20, 2000.

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Doe v. Lebbos, 348 F.3d 820, 2003 WL 22479996 (9th Cir. 2003).

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