Kindra O'Bryant v. DCP&P

Opinion

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 23-1950, 23-1951, & 23-1952

KINDRA O’BRYANT; BRIAN FLANDERS; ARTIE PEOPLES

v.

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

FKA Division of Youth and Family Services; LISA VON PIER;

ALLISON BLAKE; LISA CAPONE; CONCHITA VARGA;

BRYANT ROLLS;

ET AL.

ARTIE PEOPLES, Appellant in 23-1950

BRIAN FLANDERS, Appellant in 23-1951

KINDRA O’BRYANT, Appellant in 23-1952

_____________________________

On Appeal from the U.S. District Court, D.N.J. Judge Noel L. Hillman, No. 1:17-cv-07752

Before: HARDIMAN, FREEMAN, AND CHUNG, Circuit Judges

Argued: Oct. 21, 2025; Filed: Sept. 16, 2026

_____________________________

OPINION OF THE COURT

CHUNG, Circuit Judge. Plaintiffs brought claims alleging that caseworkers with New Jersey’s Division of Child Protection and Permanency (“DCPP”) violated the Fourth Amendment by entering their residence without a warrant and violated their due process rights by removing children from their parental custody without court authorization when the children did not face a risk of imminent harm. The District Court dismissed the Complaint based on qualified immunity. We will affirm the dismissal in most respects. However, because we conclude that some Plaintiffs pled plausible violations of clearly established Fourth Amendment law, we will reverse the dismissal of the Fourth Amendment claim and remand for further proceedings on that claim.

I. BACKGROUND 1

Plaintiff Kindra O’Bryant is the mother of three children who were removed from her custody without court authorization. She is also the owner and resident of the home that was subject to warrantless entry. Plaintiff Brian Flanders is a resident of the same home and the father of the youngest

1 The facts set forth in this section are taken from the Complaint and deemed to be true for purposes of reviewing the District Court’s dismissal. In re Allergan Erisa Litig., 975 F.3d 348, 353 n.9 (3d Cir. 2020). We construe the Complaint in the light most favorable to Plaintiffs. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

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of O’Bryant’s children, and Plaintiff Artie Peoples is O’Bryant’s father and the grandfather of all three children.

A. The Home Entry

On June 6, 2017, Flanders came to pick up O’Bryant’s children, K.E. and K.Y., from school. Although the school told him not to leave because DCPP 2 was on its way to retrieve the children, Flanders left with the children and took them back to the home he shared with O’Bryant.

Later that same day, Defendant Alicia Ash, a caseworker with the DCPP, appeared unannounced at O’Bryant’s home with an unnamed colleague. Ash identified herself as a DCF employee and stated that she needed to enter the home “[n]ow!” JA66. O’Bryant was not home at the time. When Flanders pressed Ash to explain why she needed to enter the home, she stated that she was there to investigate the abuse of K.Y. and K.E., and that she had received a phone call from “someone” who reported that Flanders “was upset and agitated when he” dropped the two children off at school that morning. JA66–67. Flanders denied her entry, but Ash replied that “he had to let her in ‘right now’ and that he ‘could not refuse’ her entry.” JA67. Faced with these demands, Flanders “under duress and the coercive threats of Ash acting under color of state law, then proceeded to allow Ash into Ms. O’Bryant’s home against his will [and] involuntarily.” Id. Once Ash entered, she stated that she wanted to see the children, and was

2 DCPP is a division within New Jersey’s Division of Children and Families (“DCF”). (The Complaint refers to this division by its former name, the Division of Youth & Family Services.)

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permitted to do so. She then stated that she wanted to inspect the home and where the children slept. Flanders told her she could not do so without O’Bryant’s permission. Ash and her colleague left without inspecting O’Bryant’s home.

B. The Family Agreement and Conditions Related to O’Bryant and Her Home

Also on June 6, O’Bryant, who was pregnant, attended a pre-natal care appointment and presented with symptoms of depression. She was admitted to Cooper Hospital later that day. While there, Ash and another DCPP caseworker approached O’Bryant and asked her about her relationship with Flanders. O’Bryant said that Flanders is the father of the child O’Bryant was expecting, and that while they sometimes argue, they never have physical fights and the children are not afraid of him. Ash also asked O’Bryant about her “cutting history” and asked to see “the new cut on [her] arm.” JA69.

The next day, Ash called O’Bryant and told her that she could not be discharged until Ash and her colleague arrived to talk with her. When Ash arrived, she presented O’Bryant with a family plan agreement (the “Family Agreement”). Under the terms of the Family Agreement as described in the Complaint, Flanders would be required to leave O’Bryant’s home due to his “history of violence and hurting his child,” and would not be permitted to “be a caregiver to” O’Bryant’s children. JA70. O’Bryant explained to Ash that this “history” entailed an incident of Flanders “disciplin[ing]” his son from another relationship, that his related DCPP case had been closed several months before, and that Flanders had since seen his son. Id. O’Bryant reiterated that Flanders had never been violent to her or her children “in any way.” Id. Ash responded

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that if O’Bryant “did not sign [the Family Agreement] her children were going to be taken away from her.” JA71. “[U]nder duress and the coercive threats of Ash acting under color of state law,” O’Bryant “signed the … Family Agreement involuntarily.” Id.

Ash and her colleague then took O’Bryant home. They took a tour of the home and observed that the house had a roach and bed bug problem, the stove was broken, and the house needed other repairs. Ash promised that the DCPP would help ameliorate these issues, and O’Bryant accepted the promise of these services. O’Bryant also advised the caseworkers that the children were about to go to Ohio for the summer to be with their father.

Thereafter, O’Bryant tried contacting Ash multiple times to explain that the Family Agreement was not working for her because living alone made her depressed. Weeks later, Ash returned to O’Bryant’s home and presented her with an updated family plan agreement (the “Amended Family Agreement”), which O’Bryant signed. JA73. The Amended Family Agreement “does not mention anything about [Flanders] not being able to live in the house,” and only states that “he cannot be a caregiver alone with the children.” JA76.

As to the conditions at O’Bryant’s home, the DCPP failed to act on their promise to help.

C. The Removal of the Children

On August 12, 2017, K.E. and K.Y. returned from Ohio and were brought to O’Bryant’s home. On August 15, O’Bryant gave birth to her and Flanders’s child at a hospital. The next

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day, Defendants Bryant Rolls and Conchita Vargas, both DCPP caseworkers, entered O’Bryant’s hospital room. Flanders was not present at that time. Rolls called Peoples and told him that he had to come to the hospital to pick up K.E. and K.Y. When Peoples arrived, Rolls and Vargas explained that they were there to talk with Flanders regarding his presence around the newborn, K.E., and K.Y. Rolls left his contact information and said that Flanders must call him when he returned to the hospital.

Flanders called as instructed, and Rolls and Vargas returned. Rolls advised that he was the caseworker newly assigned to the case. He further advised that under the terms of the Family Agreement, Flanders was not permitted to be at the hospital if O’Bryant’s children were present and could not live at O’Bryant’s home with the children until he completed a domestic violence program. Flanders responded that his case involving his son was closed and he was permitted to interact with him, but the caseworkers emphasized the terms of the Family Agreement. O’Bryant noted that the Amended Family Agreement “does not mention anything about [Flanders] not being able to live in the house, it states he cannot be a caregiver alone with the children.” JA76.

A short while later, Peoples arrived at the hospital and the exchange continued. A hospital security guard and deputies of the Camden County Sheriff’s Office, led by Deputy T. Nichols, responded. Vargas told Deputy Nichols that Flanders was previously charged with endangering the welfare of a child, aggravated assault on a police officer, and an offense related to weapons, and that he had pending warrants for his arrest. Deputy Nichols ran a check for warrants and found none outstanding.

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Vargas then stated that she wanted to talk with K.E. and K.Y. alone. Peoples replied that she needed a warrant to do so. Vargas then presented “Dodd” removal papers to Deputy Nichols and Peoples and said that the papers authorize the DCPP “to talk with” O’Bryant’s children. 3 JA84. Although Vargas never showed the papers to O’Bryant or Flanders, Deputy Nichols brought K.E. and K.Y. across the street to the DCPP building, joined by Vargas, Rolls, Peoples, and Flanders. Flanders and Peoples were directed to wait outside while the children were brought inside. About two hours later, Deputy Nichols returned with an arrest warrant for Flanders and arrested him, removing him from the property. Three hours thereafter, Peoples was still waiting outside for his grandchildren. A security guard exited and advised Peoples that no one was going to come talk to him and that he could call the DCPP office the next day to inquire about the children.

3 The Complaint alleges that “yellow papers” were issued pursuant to N.J. Rev. Stat. § 9:6-8.29 to effect a “Dodd” removal of the children. The statute permits the state to “remove a child from the place where the child is residing … and without the consent of the parent or guardian … if the child is in such condition that the child’s continuance in the place or residence or in the care and custody of the parent … presents an imminent danger to the child’s life, safety, or health, and there is insufficient time to apply for a court order[.]” N.J. Rev. Stat. § 9:6-8.29. It could be that the children were formally removed at this point in time. However, the Complaint includes some indication that K.E. and K.Y. might be released to Peoples who waited outside for them. In any case, the exact timing of their removal on this date does not matter for purposes of our decision.

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The next day, August 17, Defendant Jonathan Garrett, a DCPP caseworker, arrived unannounced at O’Bryant’s hospital room to tell her she was to appear at a Superior Court hearing the next day and that he was there to seize her newborn child. Garrett said that his supervisor was Lisa Capone and provided her phone number to O’Bryant and Peoples. They called Capone and asked her how she had the jurisdiction to seize the children. She responded that she “kn[ew] the law” and would be in their lives forever. JA89. The newborn was not seized at this time.

O’Bryant could not attend the hearing on August 18 because of medical concerns that kept her in the hospital. Flanders, still in Sheriff’s custody, was produced by that office. The court postponed the hearing given O’Bryant’s inability to appear. Later that day, Garrett returned to the hospital to seize O’Bryant’s and Flanders’s newborn. He did not present a warrant or court order. On August 21, both O’Bryant and Flanders appeared for a hearing in family court.

D. Procedural History

On October 10, 2017, Plaintiffs filed a pro se complaint (the “Complaint”) in the United States District Court for the District of New Jersey, alleging claims under 42 U.S.C. §§ 1983 and 1985. On September 6, 2018, the District Court granted Defendants’ motion to dismiss the Complaint. On June 16, 2020, we vacated the dismissal in part, 4 concluding that the

4 We affirmed the dismissal of Plaintiffs’ claims for money damages against the DCPP and its employees in their official

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District Court improperly applied the domestic relations exception to subject matter jurisdiction and Younger abstention, and remanded. See O’Bryant v. N.J. Div. of Child Prot. & Permanency, 818 F. App’x 143, 147 (3d Cir. June 16, 2020). On July 20, 2020, the DCPP Defendants 5 filed a renewed motion to dismiss the Complaint, which the District Court granted on February 22, 2021, concluding that they were entitled to qualified immunity. On June 12, 2021, the Sheriff Defendants 6 filed their own renewed motion to dismiss, which

capacity. O’Bryant v. N.J. Div. of Child Prot. & Permanency, 818 F. App’x. 143, 147 (3d Cir. June 16, 2020). 5 The “DCPP Defendants” are: (1) the DCPP; (2) Allison Blake, who was the Commissioner of DCF; (3) Lisa Von Pier, who was the Director of DCPP; and (4) DCPP employees Conchita Vargas, Bryant Rolls, Alicia Ash, Jonathan Garrett, and Lisa Capone.

The Plaintiffs do not appeal the dismissal of the DCPP.

While they apparently appeal the dismissal of their due process claims as to Von Pier and Blake, the Complaint does not plead any allegations as to these two defendants, so we will affirm the order dismissing claims as to those defendants. When we use the term “DCPP Defendants,” we exclude the DCPP, Von Pier, and Blake. 6 The Sheriff Defendants are: (1) Gilbert “Whip Wilson,”

who was Sheriff of Camden County, N.J. and (2) Camden County, N.J. Deputy Sheriffs T. Nichols and Gurkin.

Plaintiffs stated at oral argument that they are challenging the order dismissing the Sheriff Defendants, but failed to develop any argument to that effect in their Opening Brief and so have forfeited this challenge. Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145–46 (3d Cir.

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the District Court granted on August 11, 2022, also on the basis of qualified immunity. This timely appeal followed. 7

After filing their opening brief, Plaintiffs moved for the appointment of pro bono counsel. We granted their motion and set a new briefing schedule. Plaintiffs, through appointed

2017). Consequently, we will affirm the dismissal of the Sheriff Defendants. 7 Plaintiffs do not meaningfully challenge the District Court’s dismissal of Counts One, Two, and Five, so we will affirm dismissal of those Counts. See Barna, 877 F.3d at 145– 46. With regard to Count Four, they only present arguments regarding defendant Ash.

Flanders clarified at Oral Argument that he only asserts a right to the care, custody, and management of his own biological child, and that his claim does not relate to the removal of K.E. and K.Y. from O’Bryant’s custody. Therefore, to the extent that the District Court dismissed Flanders’ claims related to the two older children, we will affirm.

We also affirm the District Court’s order dismissing all counts asserted by Peoples on the independent basis that he lacks Article III standing. The Complaint does not allege that Peoples had any privacy interest in O’Bryant’s home, nor does it plausibly allege he has a cognizable constitutional interest in the care, custody, and management of his grandchildren. He has therefore not shown the “invasion of a legally protected interest.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

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counsel, 8 filed a corrected brief (the “Opening Brief”) and appendix, which did not adopt the pro se brief or appendix originally filed pro se. In their Response Brief, Defendants assert a number of additional facts by citing a complaint of child abuse included in the pro se appendix.

II. DISCUSSION 9

We review de novo a district court’s dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6). In re Allergan Erisa Litig., 975 F.3d 348, 353 n.9 (3d Cir. 2020). “‘In conducting such a review, we take as true all the factual allegations of the ... Complaint and the reasonable inferences that can be drawn from them, but we disregard legal conclusions and recitals of the elements of a cause of action, supported by mere conclusory statements.’” Id. (quoting Santiago v. Warminster Township., 629 F.3d 121, 128 (3d Cir. 2010)). “To survive a motion to dismiss, ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). We confine our review to the

8 The attorneys representing Appellants appeared pro bono.

We thank them for taking this case on a pro bono basis and for the very able and professional way in which they handled the representation and argument before the Court. 9 The District Court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291.

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complaint and the exhibits attached thereto without reference to other materials, with limited exceptions not applicable here, Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010), and we construe pro se complaints liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Plaintiffs appeal the District Court’s order dismissing on qualified immunity grounds (1) Count Four, their § 1983 claim that Ash violated their Fourth Amendment right to be free from unreasonable searches, and (2) Count Three, their § 1983 claim that the DCPP Defendants violated their substantive and procedural due process rights in the care, custody, and management of their children.

In considering whether an official sued under § 1983 is entitled to qualified immunity, we determine if (1) the facts in the Complaint state a claim that the official violated a constitutional right that was (2) clearly established at the time of their alleged misconduct. Stringer v. County of Bucks, 141 F.4th 76, 85 (3d Cir. 2025). If the specific right was not clearly established, the official is entitled to qualified immunity. Id.

A. Defendants’ Reliance Upon the Pro Se Appendix is Misplaced, and the District Court Improperly Considered Facts Outside of the Complaint in its Opinion

1. Defendants May Not Rely Upon the Child Abuse Complaint

The DCPP Defendants rely upon factual allegations contained in a child abuse complaint included in the pro se appendix to argue that the District Court’s order should be

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affirmed. The DCPP Defendants posit that because Plaintiffs filed the child abuse complaint in this Court, we can and should consider the document and the allegations therein. Our dissenting colleague agrees and also asserts that we should take judicial notice of the child abuse complaint as a public record. 10

We may judicially notice a fact that “is not subject to reasonable dispute.” Werner v. Werner, 267 F.3d 288, 295 (3d Cir. 2001); cf. Fed. R. Evid. 201(b). Yet many of the allegations in the child abuse complaint are disputed by the Plaintiffs, and some are based on multiple layers of hearsay. The dissent reasons that we may consider these documents because Plaintiffs filed them when they acted pro se, Dissent at 7–8, but Plaintiffs merely acknowledged the existence of these documents.

Reliance on these documents is particularly misplaced here because they are inconsistent with facts asserted by Plaintiffs in their Complaint and those inconsistencies are relevant to our legal analysis. For instance, the child abuse complaint asserts that removal is appropriate because O’Bryant violated the Family Agreement by allowing Flanders to be around the children. 11 Plaintiffs allege in their Complaint, though, that

10 Our dissenting colleague would also take judicial notice of DCPP’s 2017 determination regarding Flanders’s case and state records regarding Flanders’s charges. As we explain below, see infra n.14, Defendants have not requested that we take notice of these documents, and we decline to do so. 11 The DCPP Defendants now disavow that basis for the children’s removal, despite otherwise relying on the child abuse complaint.

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O’Bryant was coerced into signing the Agreement. Moreover, the Complaint in this case asserts that the Family Agreement was amended so as to permit Flanders to live in the home with the children, while the child abuse complaint makes no mention of the Amended Family Agreement. These inconsistencies matter because they impact how we define the constitutional right for qualified immunity purposes. 12

We decline to take judicial notice of the Family Court documents in light of these inconsistencies. Werner, 267 F.3d at 295; Fed. R. Evid. 201(b).

2. The District Court Improperly Considered Factual Allegations Outside the Complaint

In concluding that the Defendants are entitled to qualified immunity, the District Court erroneously relied upon factual allegations external to the Complaint, construed the Complaint’s silence on some issues against the Plaintiffs, or accepted as true statements made by various DCPP Defendants or third parties that the Complaint merely recounted. 13 We do

12 For instance, Plaintiffs assert that their substantive due process rights were violated because the children were removed based upon O’Bryant’s failure to adhere to a Family Agreement she signed under coercion and that was later amended. See Opening Br. at 38–39; Croft, 103 F.3d at 1127. 13 “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” See Fed. R. Civ. P. 12(d). “When a District Court decides to convert a motion to dismiss into a motion for

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none of those things at this stage, though, because when evaluating a grant of dismissal made pursuant to Rule 12(b)(6), we construe the Complaint in the light most favorable to Plaintiffs.

For example, the District Court stated that the “DCPP discovered that Flanders … had a documented history of child abuse and a violent criminal record, which included endangering the welfare of a child, weapons, and aggravated assault on a police officer.” JA25. However, the Complaint presents a different narrative. It states that Flanders’s case involving his son had been closed for months and does not state that the allegations were sustained. It also states that Flanders is permitted to interact with his son. 14 Similarly, the Complaint

summary judgment, it must provide the parties ‘reasonable opportunity’ to present all material relevant to a summary judgment motion.” In re Rockefeller Cntr Props., Inc. Secs. Litig., 184 F.3d 280, 287–88 (3d Cir. 1999) (quoting Fed. R. Civ. P. 12(d)). The parties must have “notice of the conversion,” and that notice must be “unambiguous.” Ross v. Bartle, 871 F.2d 331, 340–42 (3d Cir. 1989). We note this not as the basis for reversal, which was not argued by Plaintiffs, but to flag that the external factual allegations cited by the District Court are disputed in the Complaint. 14 Our dissenting colleague would take judicial notice of a letter sent to Flanders reflecting that DCF and DCPP made an administrative finding regarding a prior child abuse allegation against Flanders. The DCPP Defendants have not asked us to take judicial notice of this document, nor was it before the District Court. Moreover, while the document states that DCPP found the allegation was “Established,” it also explained

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states that a DCPP Defendant alleged that Flanders had charges for certain crimes, without averring that Flanders in fact faced such charges, or that he was convicted of them. While we accept as a reasonable inference that Flanders had a charge or conviction of some kind, given the Complaint’s allegation that he wore an ankle monitor, we cannot construe the Complaint’s silence, coupled with its inclusion of a hearsay statement, against Plaintiffs to conclude that Flanders was convicted of a violent offense.

The District Court additionally wrote that the “DCPP discovered O’Bryant had either self-mutilated or attempted suicide while pregnant due to severe depression.” JA25. Yet the Complaint is silent as to these alleged facts and contains only a hearsay statement by a DCPP Defendant asking about O’Bryant’s “cutting history.” JA69. Likewise, the District Court found that, under the Family Agreement, Flanders needed to complete certain parenting and domestic violence programing as a condition of his return to O’Bryant’s home. Neither the Complaint, nor the child abuse complaint, states that the domestic violence program was a term of the Family Agreement, just that Flanders was informed at the hospital that

that Flanders’s conduct did “not warrant a finding of Substantiated.” The letter does not state what conduct Flanders engaged in to “establish” child abuse, nor does it set forth the difference between an “established” and a “substantiated” allegation. Id. The parties likewise do not brief what significance, if any, the distinction would have here. Hence, even if we were to take notice that the finding was Established as of a certain date, we could afford that finding little weight since we lack critical information to understand what it reflects.

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he needed to complete programs before he could be with the children. See JA75-80; ECF 15, ex.2 at 5. Furthermore, the Complaint alleges that the Amended Family Agreement superseded the Family Agreement and allowed Flanders to be in the home so long as he was not acting as “a caregiver alone with the children.” JA76.

Against this backdrop, we now turn to the legal analysis of Plaintiffs’ claims. 15

B. The District Court Erred in Dismissing the Fourth Amendment Claim

1. The Complaint States a Plausible Violation of the Fourth Amendment

15 Discovery may, of course, resolve disputes about the existence of an Amended Family Agreement or indicators of danger that Flanders may have posed. We merely remand so that such discovery can be conducted, particularly given that the Plaintiffs sought discovery, and had no opportunity to respond with additional evidence to facts external to their Complaint.

It is unsurprising that our dissenting colleague reaches different conclusions as he considers an entirely different set of facts, akin to those which might be revealed by limited discovery for qualified immunity purposes. See Stringer, 141 F.4th at 86–87. As our opinion draws only upon those facts set forth in the Complaint taken as true, it should not be read as taking any position with regard to the legal conclusions contained in the Dissent.

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Plaintiffs first challenge the District Court’s order dismissing their Fourth Amendment claim as to Defendant Ash. 16

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. “It is a ‘basic principle of Fourth Amendment law’ … that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971)). Indeed, “physical entry of the home is the chief evil against which the … Fourth Amendment is directed.” United States v. U.S. Dist. Ct. for E. Dist. of Mich., 407 U.S. 297, 313 (1972); see also Florida v. Jardines, 569 U.S. 1, 6 (2013) (“[W]hen it

16 The District Court did not analyze the Fourth Amendment claim in its opinion. This is unsurprising as Ash’s brief supporting the motion to dismiss failed to develop any argument related to the Fourth Amendment claim. While this constitutes forfeiture, DirecTV, Inc. v. Seijas, 508 F.3d 123, 125 n.1 (3d Cir. 2007), “[w]e may decide a question not addressed by the District Court when ‘the record has been sufficiently developed for us to resolve the legal issue,’” Chehazeh v. Att’y Gen., 666 F.3d 118, 140 (3d Cir. 2012) (quoting In re Ben Franklin Hotel Assocs., 186 F.3d 301, 306 (3d Cir. 1999)). Furthermore, at oral argument, Plaintiffs urged us to resolve the matter, and Defendants did not argue otherwise. Given the adequacy of the record before us, the fact that this case has already been considered on remand once, and its long pendency, we will assess the merits of Plaintiffs’ challenge to the dismissal of their Fourth Amendment claim.

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comes to the Fourth Amendment, the home is first among equals.”). This warrant requirement, however, is subject to exceptions because “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

The Complaint alleges that Defendant Ash “and another woman” appeared in their capacity as state officials at O’Bryant’s home, after receiving a phone call from an unidentified source who reported that Flanders “was upset and agitated” when he dropped off the children at school. JA66– 67. Ash did not have a warrant and was refused entry by Flanders. After she repeatedly insisted on entering and stated that Flanders “could not refuse” her request, Flanders relented and let her inside. JA67.

To determine whether the Complaint plausibly alleges that the search was unreasonable, we look at “‘all of the circumstances surrounding the search … and the nature of the search … itself,’” Skinner v. Ry. Lab. Execs. Ass’n, 489 U.S. 602, 619 (1989) (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)), “assessing on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests,” United States v. Knights, 534 U.S. 112, 118–19 (2001). Because this case involves the search of a home, we start with the principle that warrantless searches of a home “are presumptively unreasonable,” Payton, 445 U.S. at 586, and assess whether there is a legitimate government interest to overcome this presumption, Knights, 534 U.S. at 118–19. For example, a warrantless search of a home may be justified where officers need to render “emergency aid.” Kentucky v. King, 563 U.S.

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452, 460 (2011).

Ash contends that her entry was necessary to protect O’Bryant’s children, which we construe to be an assertion that the imminent danger exception to the warrant requirement applies. See Good v. Dauphin Cnty. Soc. Servs. for Child. & Youth, 891 F.2d 1087, 1093 (3d Cir. 1989); Brigham City, 547 U.S. at 403. This exception only applies at this stage when it is plain from the Complaint that (1) entry into a home was made to protect children within from imminent danger of abuse and (2) it was objectively reasonable to believe that the intrusion was necessary to avert that imminent harm to the children. See Croft v. Westmoreland Cnty. Child. & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997); Michigan v. Fisher, 558 U.S. 45, 49 (2009). The Complaint alleges that Ash was in receipt of a report made by an unknown person that Flanders was “upset and agitated” when he dropped the children off at school that morning. JA67. That report is plainly insufficient to allow us to conclude that the children were in imminent danger of abuse or other harm, and no other facts are alleged in the Complaint as to the information Ash relied upon at the time of her search.

Ash also argues that the warrantless entry was reasonable pursuant to the “special needs doctrine.” We disagree. That doctrine allows for warrantless searches unsupported by individualized suspicion, like searches at border checkpoints or drug testing of certain categories of employees. See City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (collecting cases). It applies in “instances when a search furthers a ‘special governmental need’ beyond that of normal law enforcement such that the search, although not supported by the typical quantum of individualized suspicion, can nonetheless still be

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found constitutionally ‘reasonable.’” Neumeyer v. Beard, 421 F.3d 210, 213–14 (3d Cir. 2005). The doctrine has been applied when a policy routinely allows for warrantless searches if certain circumstances are present, without further assessment of individualized suspicion, and when such factors reflect reasonableness and a valid state interest in the search apart from law enforcement needs. 17 Because the search here was not conducted pursuant to such a policy, and instead was expressly based on individualized suspicion, the special needs doctrine is not implicated.

For the foregoing reasons, Plaintiffs have plausibly alleged a violation of the Fourth Amendment with respect to Ash’s warrantless entry.

2. Ash Is Not Entitled to Qualified Immunity on the Fourth Amendment Claim

Though Plaintiffs have plausibly alleged a Fourth Amendment violation, we must consider if Ash is entitled to qualified immunity. Government officials are entitled to qualified immunity when their actions, even if

17 See Skinner, 489 U.S. at 624 (drug and alcohol testing for employees upon the occurrence of a train accident); Nat. Treas. Emps. Union, 489 U.S. at 667–68 (drug testing of employees as a condition of placement or employment for positions that met certain criteria, such as a job requirement to carry a firearm); Veronica Sch. Dist. 47J v. Acton, 515 U.S. 646, 664– 65 (1995) (random drug testing for student athletes); Neumeyer, 421 F.3d at 213–14 (requiring that prison visitors consent to searches of their vehicles as a precondition for entry).

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unconstitutional, do not violate clearly established law. Pearson v. Callahan, 555 U.S. 223, 243 (2009). The inquiry “turns on the ‘objective legal reasonableness of the action, addressed in light of the legal rules that were clearly established at the time it was taken.’” Id. (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). This means that “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). In these cases, “a plaintiff can demonstrate that the right was clearly established by presenting a closely analogous case that establishes that the Defendants’ conduct was unconstitutional or by presenting evidence that the Defendant’s conduct was so patently violative of the constitutional right that reasonable officials would know without guidance from a court.’’ Id. (internal quotations and citation omitted).

“‘[Q]ualified immunity will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.’” Thomas v. Independence Township, 463 F.3d 285, 300 (3d Cir. 2006) (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)). Being that defendants have no hand in drafting complaints and are unable to insert facts that may weigh in favor of finding qualified immunity, we have noted that it may be difficult for defendants to successfully claim qualified immunity on the pleadings. See Stringer, 141 F.4th at 86.

We begin by defining “the right ‘in light of the specific

23

context of the case,’ with all reasonable inferences drawn in the nonmovant’s favor.” Mack v. Yost, 63 F.4th 211, 228 (3d Cir. 2023) (quoting Peroza-Benitez v. Smith, 994 F.3d 157, 165–66 (3d Cir. 2021)) (internal quotations omitted). Here, the right at issue is freedom from warrantless entry of a home by state child welfare workers conducting a child safety investigation upon a report from an unidentified source that one of the children’s caregivers appeared upset and agitated earlier that day.

Next, we must determine if that right was sufficiently clear such that a reasonable official would have understood that their conduct violated that right. Peroza-Benitez, 994 F.3d at 165. It was. Good v. Dauphin County Social Services for Children & Youth provided “fair warning” to Ash that the entry of O’Bryant’s home was unconstitutional absent corroborating evidence that the children were in imminent danger. There, we addressed a similar set of facts and explained that, as of at least the incident’s occurrence in 1987, “the decided case law made it clear that the state may not, consistent with the prohibition of unreasonable searches and seizures found in the Fourth and Fourteenth amendments, conduct a search of a home or strip search of a person’s body in the absence of consent, a valid search warrant, or exigent circumstances.” 891 F.2d at 1092. 18

18 Supreme Court authority from before Good makes clear that it must be “objectively legally reasonable to conclude that a given search was supported by . . . exigent circumstances.” Anderson, 483 U.S. at 641; see Mincey v. Arizona, 437 U.S. 385, 393 (1978) (“[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling

24

In Good, state social services received a report that a seven- year-old child said certain bruises on her body were caused by a fight with her mother. Id. at 1089. According to the state officers, the child was not in school the next morning and a caseworker unsuccessfully tried contacting her mother by phone. Id. As a result, a caseworker entered the family’s home without a warrant and performed a non-consensual strip search of the child. Id. We held that the entry and the strip search were unconstitutional because the caseworker lacked reason to believe the child “was in imminent danger of serious bodily injury and that the[] intrusions were reasonably necessary to avert that injury.” Id. at 1095.

Good and the present case are “closely analogous” because both involve warrantless searches based on a single uncorroborated statement about a child’s welfare. Schneyder, 653 F.3d at 330. And any inference of imminent danger that DCPP officials here could have drawn from the facts was weaker than in Good because the uncorroborated statement from the unidentified source here does not even suggest that Flanders physically injured the children. It therefore “would have been apparent to a reasonable official” that Ash’s conduct was unlawful. Williams v. Bitner, 455 F.3d 186, 192 (3d Cir. 2006).

Ash contends Good is distinguishable, and so did not provide her fair warning, because she and her colleague were

that the warrantless search is objectively reasonable under the Fourth Amendment.”). This body of law put Ash on notice that she needed an objectively reasonable basis for concluding that exigent circumstances justified her warrantless entry into O’Bryant’s home.

25

not accompanied by a law enforcement officer, as the social worker was in Good. However, in Good we said it had been clearly established since at latest 1987 that the state may not enter a home without consent, a valid warrant, or exigency. 891 F.2d at 1092. That clearly established law was not limited to police officers. 19

For these reasons, Ash is not entitled to qualified immunity, and we will reverse the District Court’s order dismissing the Fourth Amendment claim.

C. The District Court Correctly Dismissed Plaintiffs’

Substantive Due Process and Procedural Due Process Claims

In Count Three of the Complaint, Plaintiffs allege that the DCPP Defendants violated their substantive and procedural due process rights under the Fourteenth Amendment by removing the children from their custody without court authorization. The District Court dismissed the claim based on qualified immunity. In doing so, it did not address whether the Complaint plausibly alleged a substantive due process violation and focused only on whether the right asserted was clearly established at the time. The District Court did not specifically analyze the procedural due process portion of the

19 We do not address the special needs doctrine in our qualified immunity analysis because Ash argues that she entered the home based on her belief the children were in danger—not because of any policy supporting suspicionless entry. See supra Section II.B.1. Thus, we need not consider whether she had adequate notice that she could not rely on the special needs doctrine in entering O’Bryant’s home.

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due process claim. We will conduct both steps of the qualified immunity analysis for each of the asserted violations of due process.

1. Plaintiffs Plausibly Allege a Substantive Due Process Violation

The Fourteenth Amendment’s Due Process Clause provides that “[n]o State shall … deprive any person of life, liberty or property, without due process of law.” U.S. CONST. amend. XIV, § 1. To establish a substantive due process claim, a plaintiff must identify a fundamental liberty interest protected under the Due Process Clause and show how “the government’s deprivation of that protected interest shocks the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008).

The first factor is met here. The Supreme Court has long recognized that parents have a fundamental liberty interest under the Fourteenth Amendment “in the care, custody, and management of their child.” Santosky v. Kramer, 455 U.S. 745, 754 (1982). This interest, however, “is not absolute,” and “is limited by the compelling government interest in the protection of children—particularly where the children need to be protected from their own parents.” Croft, 103 F.3d at 1125.

We thus consider whether there was a deprivation that shocks the conscience. In Croft, we held that “a state has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.” Id. at 1126. In that case, an anonymous tipster reported that Croft was sexually abusing his

27

daughter; that the daughter slept with her parents; and that she had recently been out of the house naked, walked to a neighbor’s house, and told the neighbors she was “sleeping with mommy and daddy.” Id. at 1124. We concluded that it was improper to grant summary judgment because the uncorroborated allegations did not provide the social worker “objective evidence of sexual abuse.” Id. at 1127. We also made clear that reasonable suspicion is an objective standard. Id. at 1126 (standard is met when “the information available to the defendants at the time would have created an objectively reasonable suspicion of abuse[.]”).

The question here then is whether the Complaint plausibly alleges that the DCPP Defendants’ conduct shocked the conscience because, under the facts pled therein, the DCPP Defendants lacked reasonable suspicion that the children were in imminent danger of abuse at the time of their removals on August 16 and 18, 2017. 20 We conclude that the Complaint does for several reasons.

First, as to the newborn, Flanders had been in custody for

20 Our dissenting colleague says we “undermine[] our precedent by declining even to assess whether the DCPP Defendants had reasonable suspicion of past abuse.” Dissent at 15 (emphasis added). The DCPP Defendants do not argue that they removed the children from the home based on suspicion of past abuse. They simply cite the “reasonable suspicion that a child has been abused or is in imminent danger of abuse” standard, which all agree applies here. We accordingly limit our discussion to “only questions presented by the parties.” United States v. Sineneng-Smith, 590 U.S. 371, 376 (2020).

28

two full days when she was removed on August 18, and the Complaint does not allege that Flanders was to be released forthwith. These circumstances belie any objectively reasonable belief that Flanders posed an imminent risk. Cf. Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996) (concluding there was no reasonable basis to believe a child was in imminent danger from his father where the father was in jail).

As for the removals of K.E. and K.Y., as we explain above, the District Court looked to facts outside the record and found that Flanders posed an imminent danger to the children based on his “violent criminal record” and his “documented history of child abuse.” JA24–25. Defendants similarly argue that the facts in the Complaint support a reasonable inference of imminent harm to the children because of Flanders’s child endangerment case and criminal charges. Based on the Complaint alone, we consider only that Flanders had a DCPP endangerment case for disciplining his son that was closed months earlier, that he was permitted to be around his son without further restrictions, that he was charged with or convicted of an unknown crime, and that he wore an ankle monitor. Viewing the allegations about the child endangerment case in the light most favorable to the Plaintiffs, DCPP determined that Flanders did not pose a danger to his son. As for Flanders’s criminal matter, because the timing, offense, and other facts which might reflect imminent danger are unknown, the criminal matter itself is insufficient to support an objectively reasonable belief that Flanders was a danger to the children.

In sum, the Complaint asserts facts that, when considered in the light most favorable to Plaintiffs, plausibly allege that

29

the DCPP Defendants did not have an objectively reasonable belief that Flanders posed an imminent risk to the children.

The DCPP Defendants argue that, even resolving questions about Flanders in favor of the Plaintiffs, Mammaro v. New Jersey Division of Child Protection & Permanency, 814 F.3d 164 (3d Cir. 2016) and Mulholland v. Government County of Berks, 706 F.3d 227 (3d Cir. 2013) support a conclusion that there was reasonable suspicion that Flanders posed an imminent danger of abuse to the children. These cases are inapposite. Unlike the defendants in Mulholland, the DCPP Defendants here did not have judicial authorization for the emergency removal. 706 F.3d at 233. And in Mammaro, we assumed, for purposes of considering whether the right was clearly established, that there was a violation. 814 F.3d at 170. In any case, Mammaro involved detailed, corroborated allegations, where the mother was accused of neglect based on drug use and twice tested positive for drugs, and removal only occurred after that corroboration and after the mother and child left supervised housing without DCPP approval. Id. at 167– 68.

We next consider whether the Complaint plausibly alleges that the DCPP Defendants acted without an objectively reasonable belief that imminent harm was posed by conditions related to O’Bryant’s mental health and the conditions at her home. The District Court dismissed the Complaint in part based upon its view that O’Bryant suffered “severe depression,” and “self-mutilated” or “attempted suicide.” JA24–25. The DCPP Defendants similarly contend that the conditions at O’Bryant’s home and O’Bryant’s mental status, including her history of self-harm, gave rise to a reasonable suspicion that the children were in imminent danger at the time

30

of their removals. The Complaint does not state the status of the pest problem and other home conditions at the time the children were removed, though, only the conditions at O’Bryant’s home two months prior and that DCPP did not ameliorate them. Regardless, even assuming the home conditions were unchanged from two months prior, K.E. and K.Y. were home for four days before they were removed, and the Complaint does not suggest that they suffered any harm from the home’s conditions during that time. There is also nothing that suggests the bug problem, broken stove, and other conditions are more severe than those faced by many. Thus, concluding that such conditions permit emergency removal would make the process-less removal available in too wide a swarth of fairly common circumstances. Accordingly, we cannot agree that the facts in the Complaint support an objectively reasonable belief that home conditions posed an imminent danger to the children. Finally, the Complaint does not allege that O’Bryant suffered “severe depression” or suicidal ideation in the days leading up to the children’s removal in August, so it is not reasonable to conclude that her mental health posed an imminent danger to the children when they were removed. In any case, as with the home conditions, to conclude that depression of unknown severity and impact is grounds for emergency removal would permit the exception to swallow the rule requiring pre-removal process.

For the above reasons, Plaintiffs have plausibly alleged a violation of substantive due process arising from the temporary removals of the children.

2. Defendants Are Entitled to Qualified Immunity as to the Substantive Due Process Portion of their Claim

31

Having concluded that the Complaint plausibly alleges a substantive due process violation, we now assess whether the specific substantive due process right at issue was clearly established at the time of the alleged violation. The right at issue here is a parental right to be free from the state’s emergency removal (i.e., without court authorization) of their children when the purported imminent danger to the children is based upon (1) one parent/caregiver who is in law enforcement custody at the time of the removals and who has an unknown criminal charge or conviction, a prior allegation of child abuse that was resolved in a manner that permitted him to continue seeing the subject child, and who is the subject of a single two-month-old report that he was upset and agitated while dropping the children off at school; (2) the other parent’s past symptoms of depression; and (3) a bed bug and roach problem, a broken stove, and a lack of bedding as of two months prior at the home where the children live. For the reasons set forth below, it was not clearly established that emergency removal of children violated a substantive due process right under these circumstances.

Under our Circuit’s caselaw, a substantive due process right is violated when a child “is removed without ‘an objectively reasonable suspicion of abuse,’ based on the information available at the time.” Mulholland, 706 F.3d at 241 (quoting Croft, 103 F.3d at 1126). Reasonable suspicion is lacking when a child welfare agency has “consciously disregarded a great risk that there had been no abuse.” Id. (quoting Ziccardi v. City of Philadelphia, 288 F.3d 57, 66 (3d Cir. 2002)). That occurred in Croft, where the defendants’ conduct was deemed “completely without reasonable evidentiary support” and therefore “arbitrary.” Ziccardi, 288 F.3d at 66 (3d Cir. 2002) (quoting Miller v. City of Philadelphia, 174 F.3d 368, 374 (3d

32

Cir. 1999)); see Croft, 103 F.3d at 1126 (state must have “some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused”).

Beginning with the potential harm posed by Flanders to his infant daughter, our decision in Parkhurst v. Trapp would have given some notice to the DCPP Defendants that removing the infant, while Flanders was in police custody without a projected release, would not support a reasonable suspicion of imminent risk of harm. 77 F.3d at 711. That case is not sufficiently analogous, however, as it involved a different constitutional right. Anderson, 483 U.S. at 640 (a plaintiff can demonstrate that the right was clearly established by presenting a closely analogous case that establishes that the Defendants’ conduct was unconstitutional).

With regard to the other bases for imminent harm, we have held that “a state has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.” Croft, 103 F.3d at 1126. Here, the DCPP Defendants relied upon a criminal case and an allegation of child abuse. Per the factual allegations in the Complaint and as further discussed above, the DCPP Defendants lacked critical detail about these matters such that “reasonable and articulable evidence” of imminent harm was absent. We have not addressed when a criminal charge or child abuse case provides insufficient indicia of reliability for emergency removal. Although we rely upon Croft to conclude that a constitutional violation occurred here, that case involved only an anonymous tip, id. at 1124–25, and is not sufficiently analogous to this case to have provided the DCPP Defendants with notice that their actions were unlawful.

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Anderson, 483 U.S. at 640.

Likewise, although we hold that the report of Flanders’s agitation, the conditions in the home, and O’Bryant’s depression two months prior to the removal are insufficient to justify emergency removal, the DCPP Defendants were not on notice that their actions were unconstitutional. We have not previously stated that when common conditions are the basis for emergency removal, they must be accompanied by details which establish that the conditions are not just non-ideal, undesirable, or poor, but are of such quality that they objectively pose a risk of imminent harm. 21 We do so now.

Because the law was not clearly established that the conduct at issue violated substantive due process, the DCPP Defendants are entitled to qualified immunity. Accordingly, we will affirm the District Court’s order dismissing Plaintiff’s substantive due process claim.

3. Plaintiffs Plausibly Allege a Procedural Due Process Violation

Lastly, Plaintiffs challenge the order dismissing the procedural due process portion of their Fourteenth Amendment claim. “To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that (1) he

21 We would reach the same conclusion even if the Complaint alleged that O’Bryant’s depression and the home conditions remained the same in August as they were in June, because regardless of when the conditions were present, there was no reasonable basis for believing that they posed an imminent danger to the children.

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was deprived of an individual interest that is encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or property,’ and (2) the procedures available to him did not provide ‘due process of law.’” Hill v. Borough of Kurtztown, 455 F.3d 225, 233–34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). We have observed that “[a]t a minimum, due process requires notice and a hearing[.]” Wilson v. MVM, Inc., 475 F.3d 166, 178 (3d Cir. 2007) (citing Mathews, 424 U.S. at 334–35).

We begin with whether the Plaintiffs have asserted a cognizable liberty interest protected by the Due Process Clause. They have. A parent’s right to the “custody, care, and management of their children”—the same right implicated in their substantive due process claim—is one we recognize as protected by the Fourteenth Amendment. See Croft, 103 F.3d at 1125; supra Section II.B.

The next step is assessing whether the process Plaintiffs received in this case—a Dodd warrant and post-deprivation hearing following the emergency temporary removals of the three children—is sufficient to comport with procedural due process under the circumstances here. We have held that “[t]he procedural component of parental due process rights … requires rigorous adherence to procedural safeguards anytime the state seeks to alter, terminate, or suspend a parent’s right to the custody of his minor children.” McCurdy v. Dodd, 352 F.3d 820, 827 (3d Cir. 2003). While we have not explicitly stated that those procedural safeguards are the same as those

35

afforded by substantive due process, we do so now. The temporary removal of children from their parents can occur without a pre-deprivation hearing only when swift action is necessary for securing the children’s safety. 22 In those emergency situations, where the child is in imminent danger of abuse, a post-deprivation hearing satisfies procedural due process. This framework is in line with the process required by many of our sister circuits. 23 Therefore, for the same

22 We realize that this is essentially the same standard for a violation of substantive due process discussed earlier in the opinion. See supra pp. 25–26 (emergency removal of children shocks the conscience when not premised upon a reasonable suspicion that children are in danger of imminent harm). However, our Court has held that separation of parent and child, without court process, violates substantive due process unless circumstances are present that give rise to an objectively reasonable belief of imminent danger to the children. Croft, 103 F.3d at 1126. Other circuits have taken a different approach. See, e.g., Tenenbaum v. Williams, 193 F.3d 581, 593–94, 600–01 (2d Cir. 1999) (procedural due process violation occurs when state interest in protecting child does not outweigh parent interest in notice and process; substantive due process violation occurs when, even with process, parental interest cannot be infringed); Weller v. Dep’t of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391 n.6 (4th Cir. 1990) (claim that child was unconstitutionally removed due to lack of hearing was better characterized as a procedural, not substantive, due process claim). 23 See Lossman v. Pekarske, 707 F.2d 288, 291–92 (7th Cir.

1983) (holding that adversarial, post-deprivation hearing satisfies due process only when there is justification for the

36

delay, such as “[w]hen a child’s safety is threatened”); Weller, 901 F.2d 387, 393 (4th Cir. 1990) (post-deprivation process satisfies due process “where emergency action may be needed to protect a child”); Hollingsworth v. Hill, 110 F.3d 733 (10th Cir. 1997) (“Removal of children from the custody of their parents requires predeprivation notice and a hearing except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” (cleaned up)); Tenenbaum, 193 F.3d at 596 (2d Cir. 1999) (“[I]t is unconstitutional for state officials to effect a child’s removal on an ‘emergency’ basis where there is reasonable time safely to obtain judicial authorization consistent with the child’s safety[.]”);Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000) (requiring prior judicial authorization to remove a child unless an official has “reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.”); Hatch v. Dep’t for Child., Youth, & their Fams., 274 F.3d 12, 21 (1st Cir. 2001) (“[T]he Constitution allows a case worker to take temporary custody of a child, without a hearing, when the case worker has a reasonable suspicion that child abuse has occurred (or, alternatively, that a threat of abuse is imminent).”); Doe v. Kearney, 329 F.3d 1286, 1295 (11th Cir. 2003) (courts should assess whether “an objectively imminent danger justified the state’s removal of a child without prior judicial authorization”); Gates v. Tex. Dep’t of Protective & Regul. Servs., 537 F.3d 404, 434-35 (5th Cir. 2008) (concluding that the requirements of procedural due process in the child welfare context mirrors the requirements of a constitutional search or seizure under the Fourth Amendment, and noting that three other circuits have the same view).

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reasons that we concluded that Plaintiffs’ substantive due process rights were violated, see supra Section II, their procedural due process rights were as well.

The DCPP Defendants contend that they provided constitutionally sufficient process because they complied with the process set forth in New Jersey’s “Dodd” statute. The minimum process required, however, to deprive individuals of their cognizable liberty interests—like the right to the care, custody, and management of one’s children—is established by the Fourteenth Amendment, not state law. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 540–41 (1985).

4. The Defendants Are Entitled to Qualified Immunity on the Procedural Due Process Claim

Defendants are nonetheless entitled to dismissal if they did not violate a clearly established right.

The right at issue here is parents’ right to be free from the state’s emergency removal of their children pursuant to a state’s statutory procedures when the purported imminent danger to the children is based upon (1) one parent/caregiver who is in law enforcement custody at the time of the removals and who has an unknown criminal charge or conviction, a prior allegation of child abuse that was resolved in a manner that permitted him to continue seeing the subject child, and who is the subject of a single two-month-old report that he was upset and agitated while dropping the children off at school; (2) the other parent’s past symptoms of depression; and (3) a bed bug and roach problem, a broken stove, and a lack of bedding as of two months prior at the home where the children live.

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We confirm explicitly for the first time today that, absent any evidence of imminent harm, procedural due process is violated by the temporary removal of a child without pre-removal judicial authorization. For this reason, and for the same reasons that the DCPP Defendants are entitled to qualified immunity on the substantive due process claim, the DCPP Defendants lacked “fair warning” that their conduct was unconstitutional at the time of the removals. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

We also conclude that the DCPP Defendants did not have “fair warning” that following the Dodd statute procedures would not satisfy the requirements of procedural due process. The DCPP Defendants argue that they reasonably believed that the children were in “imminent danger” as required by the Dodd statute and reasonably believed that in satisfying that requirement, they also satisfied the Fourteenth Amendment. The constitutional standard requires that swift action be necessary to secure a child’s safety because of “an imminent danger” before effecting an emergency removal without pre- deprivation process. See supra Section II.C.3. The Dodd statute similarly requires “an imminent danger” to the child to conduct a removal without a court order. N.J. Rev. Stat. § 9:6- 8.29. The DCPP Defendants did not identify, nor have we identified, any New Jersey case law establishing that the statutory definition of “imminent danger[s],” id., is coextensive with the meaning of that term under the Fourteenth Amendment. We now make clear that compliance with the Dodd statute satisfies procedural due process only when the constitutional standard of imminent harm is met. Nonetheless, the DCPP Defendants lacked “fair notice” that they could not assume that the Dodd statute set forth the same requirements as the Constitution and that statutory compliance thereby

39

satisfied procedural due process. We will thus affirm the District Court’s order dismissing Plaintiffs’ procedural due process claim.

*****

For the reasons set forth above, we will AFFIRM the District Court’s order in part and REVERSE it in part. We will AFFIRM in full the dismissal of all counts as to all defendants except that we will REVERSE the dismissal of Count Four as to Defendant Ash. We will REMAND this case for further proceedings consistent with this Opinion.

Kindra O’Bryant et al. v. New Jersey Division of Child Protection and Permanency et al., Nos. 23-1950, 23-1951, 23-1952

HARDIMAN, Circuit Judge, concurring in part and dissenting in part.

Qualified immunity “shield[s] officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). So a state actor can be liable only when “existing law [] clearly establish[es] that what this officer did in these circumstances violated the plaintiff’s rights.” Urda v. Sokso, 146 F.4th 311, 314 (3d Cir. 2025). Because the District Court correctly held that Plaintiffs did not overcome the high bar for qualified immunity on any of their claims, I respectfully concur in part and dissent in part. 1

1 I concur in the majority’s affirmance of the dismissal of all claims against the Sheriff Defendants, the DCPP, Lisa Von Pier, and Allison Blake. I also agree that: Plaintiff Artie Peoples lacks standing to bring any claim; Counts One, Two, and Five were properly dismissed; and the District Court correctly dismissed Plaintiff Brian Flanders’s claims as they relate to O’Bryant’s two older children. Lastly, I agree that the DCPP Defendants are entitled to qualified immunity on Plaintiffs’ substantive and procedural due process claims. I reach that conclusion for slightly different reasons than the majority, though, as I explain in Section II.

I

I begin with a fundamental question: can a federal court consider official state records, copies of which are also filed in federal court? Of course it can.

A

We construe the complaint in the light most favorable to Plaintiffs, taking their pro se status into account. Montanez v. Price, 154 F.4th 127, 140 (3d Cir. 2025). But that construction must rest on reasonable inferences, informed by “judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Those reasonable inferences require a complete reading of the record, including essential facts that paint a different picture than the one drawn by the majority opinion.

On June 6, 2017, Brian Flanders dropped his girlfriend Kindra O’Bryant’s two children off at school. Someone from the school was concerned enough to call the New Jersey Division of Child Protection and Permanency (DCPP) to report that Flanders appeared “upset and agitated.” App. 67. Flanders was known to DCPP because he was investigated just a few months earlier for child abuse after he struck his son from another relationship. The investigation ended in an administrative determination by DCPP that child abuse was “Established.” Pro Se App. 15.

Responding to the report that Flanders was “upset and agitated,” DCPP caseworker Alicia Ash and a colleague visited the Flanders-O’Bryant home. Flanders answered the door and asked “why they were there.” App. 66. Ash identified herself as a DCPP caseworker, stated that “she had to come into the

O’Bryant family home ‘Now!’” and then “tried to force her way into the house.” Id. After Flanders barred her entry, Ash said “she was there to investigate abuse of” O’Bryant’s two older children. Id. Ash also explained that DCPP had received a call from a concerned member of the school community. When Flanders “told Ash that she could not come into the [] family home[] without Ms. O’Bryant’s permission,” Ash “emphatically assert[ed] that he had to let her in ‘right now’ and he ‘could not refuse’ her entry.” App. 67. Flanders then let Ash in “against his will involuntarily.” Id. Ash later reported that the house was infested with roaches and bed bugs, the stove was broken, and the house needed repairs.

June 6, 2017 was a difficult day for O’Bryant as well.

She was at a routine prenatal appointment when Ash encountered Flanders at her home. Pregnant with Flanders’s child, O’Bryant was referred for “crisis management” and taken by ambulance to Kennedy Hospital. App. 65. She was later transferred to Cooper Hospital and “detain[ed] for a psych evaluation” after reporting that she was depressed. App. 68.

After Ash left the home, she and a colleague arrived at Cooper Hospital to see O’Bryant. They asked O’Bryant questions about Flanders, the safety of her children, and her history of self-harm. They returned to the hospital the next day before O’Bryant was discharged. There, O’Bryant signed a Family Agreement promising that Flanders would neither reside in her home nor serve as caregiver to her children until he completed domestic violence and parenting programs. O’Bryant alleged that, in the weeks that followed, she “tried contacting Ash multiple times to explain that the Family Agreement was not working for her because living alone made her depressed.” Maj. Op. 5. So Ash eventually returned with an Amended Family Agreement that O’Bryant alleged did not

4

prevent Flanders from living in the house, though it still forbade him from being the sole caregiver to the children.

O’Bryant’s children then went to stay with their father in Ohio for the summer “so she could get rid of the [buginfested ] beds.” App 72. The children did not return until August 12, 2017. Three days later, on August 15, O’Bryant gave birth to her and Flanders’s child. The next day, O’Bryant’s two older children visited their mother in the hospital. Two DCPP caseworkers arrived and O’Bryant’s father, Artie Peoples, arrived later. Following a heated exchange with DCPP caseworkers about what the Family Agreement required (the caseworkers maintained that Flanders could not be around the children until he completed the programs he had agreed to), Peoples tried to leave with his grandchildren. A caseworker stopped Peoples and informed him that security had been called.

A security officer and deputies of the Camden County Sheriff’s Office responded to the scene at the hospital. DCPP told one of the deputies that Flanders had previously been charged with endangering the welfare of a child, weapons violations, and aggravated assault on a police officer. DCPP also suggested that there were outstanding warrants for Flanders’s arrest, but a deputy found none.

The deputies brought the two older children to a nearby DCPP office. Meanwhile, caseworkers produced a notice under New Jersey’s Dodd Act, which authorizes the state to remove children from the home without a court order. N.J. Stat. Ann. § 9:6-8.29(a). The Dodd Act permits an emergency removal when there is “an imminent danger to the child’s life, safety, or health, and there is insufficient time to apply for a court order.” Id. Within two days of the emergency removal,

5

the state must file a complaint, and a court hearing must be held. § 9:6-8.30(a), (b). The Act also provides state-law immunity to “[a]ny person . . . acting in good faith in the removal or keeping of a child pursuant to” an emergent removal. § 9:6-8.29(c).

The children remained in DCPP custody for several hours on August 16 while Flanders and Peoples waited outside the DCPP office. A deputy returned a few hours later with a warrant and arrested Flanders. Peoples was informed that the children would not be released that night and that he could call the DCPP office in the morning. The next day, August 17, another DCPP caseworker visited O’Bryant in the hospital to tell her that her newborn child would be seized and that she would have a hearing in Superior Court the next day. DCPP took custody of the newborn the next day, August 18.

New Jersey filed a formal child abuse complaint against O’Bryant and Flanders. Hearings were held on August 18 and August 21, 2017. Two months later, O’Bryant, Flanders, and Peoples sued under 42 U.S.C. §§ 1983 and 1985, seeking $10,000,000 in compensatory damages and $50,000,000 in punitive damages.

B

The majority opinion ignores DCPP’s prior child abuse investigation of Flanders, the administrative finding against him, and the child abuse complaint filed against him and O’Bryant. And it does so even though Plaintiffs included those pertinent state records in the appendix they filed on the public docket in 2023. We may take judicial notice of state records in these circumstances. See Grp. Against Smog & Pollution, Inc. v. Shenango Inc., 810 F.3d 116, 127 (3d Cir. 2016) (courts may

6

take judicial notice of public records, including “letter decisions of government agencies” (citation omitted)); see also Dixon v. von Blackensee, 994 F.3d 95, 104 (2d Cir. 2021) (exercising discretion to take judicial notice of a state court transcript and order that “flatly contradict[ed] the assertion in [the plaintiff’s] complaint”). Consistent with these authorities, I would take judicial notice of the state records, including New Jersey DCPP’s March 2017 determination that “child abuse was Established” in Brian Flanders’s previous case and the child abuse complaint DCPP filed in state court related to this case. Pro Se App. 15 (emphasis omitted); see Pro Se App. 4– 13; Fed. R. Evid. 201(c)(1) (“The court[] may take judicial notice on its own.”).

It matters not that the state court child abuse complaint and DCPP’s prior child abuse finding were not attached to the Complaint or incorporated by reference therein. First, as state records, each document carries the indicia of authenticity and reliability that we typically look for when determining whether to take judicial notice of a document. See City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 259 & n.3 (3d Cir. 1998) (taking judicial notice where the documents’ authenticity was undisputed and they were included in the joint appendix). (Plus, federal courts may take judicial notice of state court records in related proceedings, like the state court complaint. See Dixon, 994 F.3d at 102–03.) Second, both of those documents became matters of public record in this case at the very least when Plaintiffs themselves submitted a copy of each on our public docket. See Shrader v. Dist. Att’y of York Cnty., 74 F.4th 120, 127 (3d Cir. 2023) (strength of privacy interest in protecting child abuse information from disclosure “fades once information already appears on the public record” (citation modified)); see also N.J. Stat. Ann. § 9:6-8.10a(b)(6)

(authorizing the release of child abuse reports to courts when “such records may be necessary for determination of an issue before it”).

That leads me to my next point. Before this Court appointed pro bono counsel, Plaintiffs submitted an appendix that included copies of Flanders’s prior child abuse determination and the child abuse complaint arising from this removal. The majority opinion fails to take judicial notice of these documents and suggests that it would be improper to consider the pro se appendix containing them. I would consider the documents Plaintiffs provided to this Court (and to the District Court as well, see Dist. Ct. Dkt. No. 75-1). See, e.g., Dixon, 994 F.3d at 102 (judicially noticing a state court transcript included in the joint appendix by the appellant); cf. Johnson v. City of Atlanta, 107 F.4th 1292, 1294–95 (11th Cir. 2024) (concluding that a district court could look to video evidence of a police encounter at the motion-to-dismiss stage because it showed the events central to the plaintiff’s claims and its authenticity was not challenged); Esco v. City of Chicago, 107 F.4th 673, 676 (7th Cir. 2024) (same).

In short, the majority’s refusal to consider an important part of the record has led it astray. As its opinion acknowledges, “[w]e may judicially notice a fact that ‘is not subject to reasonable dispute.’” Maj. Op. 13 (quoting Werner v. Werner, 267 F.3d 288, 295 (3d Cir. 2001)). It is not in reasonable dispute that a child abuse complaint related to these events was filed against O’Bryant and Flanders in state court in August 2017 (and proceedings ensued for several more years). Nor is there any dispute that DCPP had, just months before the removals at issue here, found that Flanders abused another child. Plaintiffs do not dispute any of those facts. Instead, they submitted key supporting documentation for our

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review. 2 When the record is considered in its entirety, the caseworkers’ reasonable view of the situation (and thus the

2 One brief point of clarification is in order. Contrary to the majority opinion’s assertion, I do not suggest we should look to the judicially noticed documents for the truth of the matters asserted therein. The records’ existence tells us that: (1) DCPP made an administrative finding that child abuse was established in Brian Flanders’s prior case; and (2) a child abuse complaint related to these events was filed. Because the existence of these documents and the allegations they contain “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned,” we should take judicial notice of them. Fed. R. Evid. 201(b)(2). That conclusion does not mean we should accept statements in those documents for the truth of the matter asserted (e.g., relying on mere allegations in the state court complaint to resolve whether there was in fact an amended Family Agreement).

Take our recent decision in Handal v. Innovative Industrial Properties, Inc., 157 F.4th 279 (3d Cir. 2025). There, we took “judicial notice of properly authenticated public disclosure documents filed with the SEC,” because the corporation’s “representations in [its] filings were different from [the complaint’s] allegations in two important ways.” Id. at 294 (citation modified). In other words, we asked what the documents said, not whether those statements were true. Cf. Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 666 (3d Cir. 2002). (conflicting statements were not admitted for the truth of the matter asserted because the question was merely whether the statements conflicted, not which of the conflicting statements was true). Here too we should recognize (as Plaintiffs—who urge reversal of the District Court’s orders— do) that the administrative finding and child abuse complaint

9

correctness of the District Court’s qualified immunity conclusions) becomes even more apparent.

II

In addition to my disagreement with the majority opinion’s incomplete rendition of the facts, I also have quarrels with its exposition of the controlling law. I respectfully disagree with my colleagues’ decision to revive the Fourth Amendment claim against DCPP Defendant Ash. The majority opinion does correctly conclude that the DCPP Defendants are entitled to qualified immunity on Plaintiffs’ substantive and procedural due process claim, but for somewhat different reasons than I do.

Qualified immunity will shield defendants from liability unless plaintiffs plead facts showing that the defendants violated a clearly established constitutional or statutory right. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2009). We must define the right at issue “in light of the specific context of the case, not as a broad general proposition.” Mammaro v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir.

existed. The existence of these allegations and administrative findings help us understand what information may have contributed to the caseworkers’ reasonable suspicion in the summer of 2017. Put differently, it helps us understand what the caseworkers were operating off at the time of the removals and how that information, whether completely accurate or not, impacted their reasonable assessment of the likelihood of child abuse. Even if I were to accept the majority opinion’s rendition of the facts, though, the DCPP Defendants would still be entitled to qualified immunity in this case, as the majority opinion itself eventually concludes on the due process claims.

2016) (citation omitted). Although this Court has expressed its preference for resolving qualified immunity defenses at the summary judgment stage, see Stringer v. County of Bucks, 141 F.4th 76, 87 (3d Cir. 2025), the Supreme Court has repeatedly reminded us that “qualified immunity is an immunity from suit rather than a mere defense to liability” and that “immunity questions [must be resolved] at the earliest possible stage in litigation,” Pearson, 555 U.S. at 231–32 (citation modified). I address each of the claims in turn, keeping in mind that qualified immunity is supposed to protect “all but the plainly incompetent or those who knowingly violate the law,” including those who make reasonable—even erroneous— decisions. al-Kidd, 563 U.S. at 735.

A

Begin with the Fourth Amendment claim. Defendant Ash conceded that Plaintiffs pleaded a Fourth Amendment claim against her, see App. 121 n.6, so I proceed to the clearly established prong of the qualified immunity analysis.

For a right to be clearly established, the “precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply” and that it “clearly prohibit[s] the officer’s conduct in the particular circumstances.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (citation modified) (emphasis added). The Supreme Court has recently cautioned that “[p]rinciples stated generally, such as that ‘an officer may not use unreasonable and excessive force,’ do not suffice.” Zorn v. Linton, 146 S. Ct. 926, 930 (2026) (per curiam) (quoting Kisela v. Hughes, 584 U.S. 100, 105 (2018) (per curiam)).

Contrary to these imperatives, the majority opinion concludes that the right here was clearly established by relying on broad propositions in Good v. Dauphin County Social Services for Children & Youth, 891 F.2d 1087 (3d Cir. 1989). According to the majority opinion, “in Good we said it had been clearly established since at latest 1987 that the state may not enter a home without consent, a valid warrant, or an exigency,” so Plaintiffs’ right here was clearly established. Maj. Op. 25. Such general propositions are precisely what the Supreme Court has instructed us to avoid. In fact, last year we admonished a district court for defining a Fourth Amendment right at a similar level of abstraction: the right to be free from “arrest[] or prosecut[ion] without probable cause.” Urda, 146 F.4th at 314. We suggested that our prior precedent declaring that such a broad right was clearly established was erroneous because it “conflict[ed] with a landslide of Supreme Court precedent” requiring fact-based specificity. Id. at 315.

Just this year in Zorn v. Linton, the Supreme Court summarily reversed the Second Circuit’s order denying qualified immunity in a Fourth Amendment case because it relied too heavily on broad propositions about excessive force in one of its precedents. 146 S. Ct. at 930. In that case, a protestor participated in a “sit-in” at the Vermont state capitol and remained in the building after it closed. Id. at 928. After repeatedly warning the protester that she would be removed by force if she did not stand up, a police officer used a rear wristlock and then another “pain compliance” maneuver to get her to comply. Id. at 929. She sued under § 1983, claiming the officer used excessive force in violation of the Fourth Amendment. Id. The Second Circuit held that the officer was not entitled to qualified immunity. Id. It reasoned that its twenty-year-old opinion in Amnesty America v. Town of West

Hartford, 361 F.3d 113 (2d Cir. 2004), in which officers had used rear-wristlocks and other, harsher forms of pain compliance to disrupt a similar sit-in demonstration—clearly established that “the gratuitous use of pain compliance techniques—such as a rear-wristlock—on a protestor who is passively resisting arrest constitutes excessive force.” Linton v. Zorn, 135 F.4th 19, 35 (2d Cir. 2025). The Supreme Court disagreed. Zorn, 146 S. Ct. at 931. It concluded that “the Second Circuit contravened [qualified immunity] principles” by reading one prior case “to establish [a] general principle.” Id. at 930–31. That broad principle “lack[ed] the ‘high degree of specificity’ needed to make it ‘clear’ to officers which actions violate the law” because “it fail[ed] to specify which circumstances make the use of force ‘gratuitous.’” Id. at 931 (quoting Wesby, 583 U.S. at 63). So it did “not ‘obviously resolve’ whether using a rear wristlock to move a noncompliant protestor after repeated warnings violate[d] the Fourth Amendment.” Id. (quoting Wesby, 583 U.S. at 64).

The majority opinion commits a similar error here by relying on broad propositions from our opinion in Good. Had caseworker Ash “read the relevant precedent beforehand” she would not have “known that it proscribed [her] specific conduct.” Id. at 930. True, she would have known that “the state may not . . . conduct a search” unless there is “consent, a valid search warrant, or exigent circumstances.” Good, 891 F.2d at 1092. But she would not have known how those general principles play out here: whether these circumstances were exigent. In Good—unlike this case—the social worker was accompanied by a police officer. Id. at 1089. They arrived at the Good family home late at night after receiving an anonymous tip that a seven-year-old child was being abused. Id. After causing a “commotion [] so extreme that it startled”

the child awake, they “demanded entry” without a warrant, and told Good that “she must let them enter.” Id. at 1090. When she refused, the police officer “used a hand-held radio she was carrying to notify someone that she’d been ‘flagged down’” by the social worker and “that they were going into” the Good family home. Id. Good told them they could come in but said that “she did so only because she understood that she was being compelled.” Id. The social worker “chased the terrified child down [a] hallway” and the police officer then strip-searched the child, “ostensibly for marks or injuries.” Id. We held that the social worker and police officer’s actions were not protected by qualified immunity. Id. at 1091.

Good cannot clearly establish Plaintiffs’ right to be free from an insistent social worker, unaccompanied by law enforcement, demanding entry to a home occupied by a man with a record of child abuse who had been reported to DCPP by a concerned member of the school community. Though Good broadly discusses how the Fourth Amendment protects citizens from state intrusion, it does not speak to whether the specific circumstances caseworker Ash faced constituted an exigency or otherwise satisfied an exception to the warrant requirement. Because the language in Good is too general and its facts are meaningfully different from this case, the “rule’s contours” were not “so well defined” that it would be clear to every reasonable caseworker in Ash’s shoes that her actions were “unlawful in the situation [she] confronted.” Id. (citation modified).

Good does suggest that social workers are subject to the same Fourth Amendment standard as police officers (at least when in their company). But I am not persuaded that it placed “beyond debate” whether social workers are subject to a different standard when acting alone. al-Kidd, 563 U.S. at 741.

The fact that the majority opinion explains why the special needs doctrine was not implicated by Ash’s home entry, rather than simply stating that the argument is foreclosed by Good, is strong evidence that the right has not been clearly established. See also Gates v. Texas Dep’t of Prot. & Regul. Servs., 537 F.3d 404, 429 (5th Cir. 2008) (concluding that the Fourth Amendment standard for social workers’ warrantless home entries had not been clearly established); Andrews v. Hickman Cnty., Tenn., 700 F.3d 845, 863 (6th Cir. 2012) (“[I]t was not evident under clearly established law whether the [social workers] were even required to comply with the strictures of the Fourth Amendment”); Wildauer v. Frederick Cnty., 993 F.2d 369, 372 (4th Cir. 1993) (suggesting that a lower Fourth Amendment standard applies to the “non-criminal nature” of social workers’ home searches).

In sum, the Fourth Amendment question presented by this case is unresolved. And if a knowledgeable officer had to choose, the Supreme Court’s expansion of the special needs doctrine since our 1989 decision in Good suggests that social workers, when acting alone, might not be subject to the same Fourth Amendment standard as law enforcement officers. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653–54 (1995) (explaining the various Fourth Amendment exceptions that fall within that doctrine); see also Kovacic v. Cuyahoga Cnty. Dep’t of Child. & Fam. Servs., 724 F.3d 687, 707–08 (6th Cir. 2013) (Sutton, J., dissenting) (observing all the areas of law in which the Supreme Court has “calibrate[d] the [constitutional] protections” differently “to account for the protection of children.”). Especially given those developments, it was not unreasonable for Ash to believe “her conduct complie[d] with the law,” even if it did not. Pearson, 555 U.S. at 244.

“[I]f officers of reasonable competence could disagree on [the] issue, [qualified] immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Because Good is distinguishable and the Fourth Amendment’s application in this factual context would not have been clear to every reasonable social worker, I would affirm the District Court’s order dismissing the complaint as to Plaintiffs’ Fourth Amendment claim against Ash.

B

I turn next to the majority opinion’s substantive due process analysis. It brushes past our longstanding legal standard in the child welfare context to explain that Plaintiffs plausibly alleged a violation of their substantive due process rights. That move, in my view, is errant. But I agree with the majority’s conclusion that the substantive due process right was not clearly established so the DCPP Defendants get qualified immunity.

1

State actors violate individuals’ substantive due process rights when they take actions that are “arbitrary or conscience shocking, in a constitutional sense.” County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). Before a child can be removed from the family, our precedents require “some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.” Croft v. Westmoreland Cnty. Child & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997) (emphasis added). The standard considers past abuse because substantive due process is about whether state actors act arbitrarily, i.e., without reason. See Mulholland v. Gov’t Cnty. of Berks, Pa., 706 F.3d 227, 241

(3d Cir. 2013). Reasonable suspicion of past abuse provides caseworkers a sufficient, non-arbitrary reason to justify an intrusion on family life. Croft, 103 F.3d at 1126.

The majority opinion undermines our precedent by declining even to assess whether the DCPP Defendants had reasonable suspicion of past abuse. It claims that the “DCPP Defendants do not argue that they removed the children from the home based on suspicion of past abuse.” Maj. Op. 27 n.20. That claim misrepresents DCPP’s brief, which quoted our precedent’s language about past abuse and stated that the “DCPP Defendants had specific evidence and reasonable suspicion to remove the O’Bryant children.” DCPP Br. 12. The brief then went on to detail at length the reasons why caseworkers had reasonable suspicion of child abuse such that the children’s removal was not an “arbitrary abuse of government power that shocks the conscience.” DCPP Br. 23 (quoting Mammaro, 814 F.3d at 164). So I do not agree with the majority opinion’s conclusion that the DCPP Defendants failed to develop that argument. To the contrary, the bulk of their brief is spent developing it. Besides, we may affirm for any basis supported by the record. See, e.g., Shark River Cleanup Coal. v. Twp. of Wall, 47 F.4th 126, 136 (3d Cir. 2022). The majority opinion’s failure to address half of the governing substantive due process standard is troubling.

The majority opinion concludes that the caseworkers did not have reasonable suspicion to believe the children were in imminent danger. But even if that imminence conclusion is correct, the majority opinion’s analysis still deviates from our precedent, which makes clear that “imminent danger” is only one side of a disjunctive inquiry. Croft, 103 F.3d at 1126. We ask whether caseworkers had objectively reasonable suspicion of past abuse or imminent danger to justify state action as non-

arbitrary. Id. We have settled on that standard because caseworkers’ “failure to act quickly and decisively in these situations [might] have devastating consequences for vulnerable children.” Mammaro, 814 F.3d at 171. The caseworkers here could have reasonably concluded that: (1) Flanders was physically abusing O’Bryant’s children like the agency had recently determined he abused his own child; (2) O’Bryant was experiencing severe mental health challenges and was perhaps neglectful; and (3) the home conditions were unsafe for young children and a newborn. For these reasons, I disagree with the majority’s conclusion that Plaintiffs have plausibly alleged arbitrary state action that shocks the conscience.

2

After determining that Plaintiffs have alleged substantive due process violations, the majority opinion proceeds to the “clearly established” prong of the qualified immunity analysis. Neither the Supreme Court nor this Court has ever recognized “a substantive due process violation when state agencies temporarily remove a child, whatever the circumstances of the removal.” Mammaro, 814 F.3d at 170. I agree with the majority opinion’s bottom line: Plaintiffs’ substantive due process rights were not clearly established so the DCPP Defendants get qualified immunity. I come to that conclusion for reasons that differ slightly from my colleagues, however.

Two of our precedents are particularly instructive. In Croft, an anonymous caller, relying on several levels of hearsay, informed social workers that Croft was sexually abusing his daughter. 103 F.3d at 1124. The caller reported that the child had recently been out of “the house naked, walked to

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a neighbor’s house, knocked on the door, and told the neighbors that she was sleeping with mommy and daddy.” Id. Social workers went to the house and, despite Croft’s denials of the allegations and explanations for the child’s behavior, gave Croft an ultimatum. Id. He could either leave his home until the investigation was complete, or his daughter would be removed from his custody, so he complied. Id. Emphasizing the unreliability of one anonymous hearsay-riddled tip and the social worker’s admission that she had “no opinion one way or the other whether sexual abuse had occurred,” we explained that the social worker lacked an objectively reasonable suspicion that abuse had occurred or would soon occur. Id. at 1127. As we recognized in later cases, “Croft assessed liability when a social worker acted to separate parent and child without any valid basis for doing so.” Miller v. City of Philadelphia, 174 F.3d 368, 376 (3d Cir. 1999) (emphasis added).

A year before the events in this case, we addressed another alleged substantive due process violation when New Jersey removed a child from her mother’s custody. Mammaro, 814 F.3d at 168. Mammaro was a victim of domestic violence who had tested positive for marijuana use twice. Id. at 166–67. Caseworkers petitioned for guardianship of her child and moved her into a safe house for victims of domestic violence. Id. at 167. Mammaro could not remain in the safe house after caseworkers did not help her get an extension for her stay there. Id. When she moved into a private home against the caseworkers’ wishes, the caseworkers seized the child. Id. at 168. Because “there was no consensus of authority that temporarily removing a child after the parent takes the child from approved housing violates substantive due process,” the caseworkers had qualified immunity. Id. at 170.

O’Bryant’s case is far more like Mammaro than Croft.

The substantive due process violation in Croft presented an extreme situation where a father with no prior engagement with child-welfare services was ordered removed from his own home in the middle of the night and separated from his child based only on uncorroborated anonymous hearsay. Croft, 103 F.3d at 1127. The social worker there did not even have an opinion on whether the sexual abuse allegations were credible. Id. The opposite occurred here. Flanders—a man known to DCPP because of a prior finding of child abuse—was reportedly “agitated” when he dropped O’Bryant’s children at school. Meanwhile, O’Bryant was experiencing mental health challenges serious enough to require a psychiatric evaluation. And the house was in such disrepair that the children were not sleeping in beds and the stove was inoperable. Significantly, the children had just returned to this environment after spending the summer with their father in Ohio. Moreover, the DCPP caseworkers who removed the children understood O’Bryant to have violated the Family Agreement, as the complaint makes clear. See App. 76 (recounting the exchange between O’Bryant and the DCPP caseworker immediately before the removal of the older children, in which a DCPP caseworker “state[d] he know[s] nothing about any second agreement”). O’Bryant’s and Flanders’s perceived failures to comply with DCPP’s conditions tracks closely Mammaro’s failure to comply with the condition that she remain in the safe house while the investigation was ongoing. See Mammaro, 814 F.3d at 168. The DCPP caseworkers’ actions were also authorized by an unchallenged state statute upon which they reasonably relied. In my view, Mammaro forecloses a determination that the right at issue here was clearly established.

The caseworkers took custody of the children under the authority of a state statute after considering the totality of the circumstances. Those circumstances included Flanders’s history of child abuse, questions about the residence’s habitability, O’Bryant’s mental instability, and, to their knowledge, violations of a Family Agreement between O’Bryant and DCPP. So they made a reasonable, even if erroneous, choice on the ground nine years ago. Faced with these same essential facts, the state court upheld the separation of these children from O’Bryant and Flanders for years after the emergency removals that provoked this litigation. The facts here were not so obviously divorced from indicators of abuse or neglect that we can say all reasonable officers would have known that they could not intervene on an emergency basis to protect the children. For all those reasons, Plaintiffs’ substantive due process rights were not clearly established.

* * *

Because Plaintiffs did not plausibly allege violations of their substantive due process rights, and even if they had, those rights were not clearly established in 2017, I join the majority in affirming the District Court’s order dismissing the substantive due process claims against the DCPP Defendants in their individual capacities.

C

Finally, I turn to Plaintiffs’ procedural due process claims. I agree with my colleagues that Plaintiffs did not plausibly allege a violation of a clearly established procedural due process right, but I disagree with the route the majority opinion takes to get there.

Though our Court has applied the balancing test set forth in Mathews v. Eldridge, 429 U.S. 319, 335 (1976) to various procedural due process claims, we have never, until today, articulated a precise standard for those claims when children are temporarily removed from their parents’ custody. Recognizing the absence of caselaw in this area, the majority opinion announces for the first time an “imminent danger of abuse” test: “[t]he temporary removal of children from their parents can be effected without a pre-deprivation hearing only when swift action is necessary for securing the children’s safety.” Maj. Op. 35.

Whatever the merits of this new standard—and it might make good sense in the context of our exigent circumstances jurisprudence—the procedural due process rule the majority opinion announces today was not clearly established nine years ago. So even if Plaintiffs adequately alleged procedural due process violations under the majority opinion’s rubric, 3 the

3 I do not determine whether Plaintiffs have plausibly alleged violations of their procedural due process rights because those rights, even as defined by the majority, were not clearly established in 2017. But I add one observation. The majority opinion emphasizes the fact that the June events (including Ash’s visits to the residence and the hospital along with the signing of the Family Agreement) occurred months before the emergency removals of the children in August. That implies that the summer of 2017 were peaceful days in the Flanders- O’Bryant household, where the family was simply awaiting assistance from DCPP that never came. But the children went to Ohio for the summer to stay with their father. They had just returned to the potentially unsafe environment days before the removals. So I would put substantially greater weight on the

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majority opinion is correct that the DCPP Defendants did not have “‘fair warning’ that their conduct was unconstitutional at the time of the removals.” Maj. Op. 38 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

The majority opinion reasons that, as alleged, the DCPP Defendants’ compliance with the Dodd Act—in the absence of any caselaw suggesting that the emergent removal under these facts would violate it—means the right could not have been clearly established. I largely agree. The Act, like the majority’s new framework, requires “imminent danger to a child” and “insufficient time to apply for a court order.” N.J. Stat. Ann. § 9:6-8.29(a). Here, it is undisputed that the DCPP Defendants acted under the procedures authorized by New Jersey’s Dodd Act and Plaintiffs received a prompt post-deprivation hearing. See also Jordan by Jordan v. Jackson, 15 F.3d 333, 351 (4th Cir. 1994) (concluding that “the 65-hour delay in judicial review of [a child’s] emergency removal . . . which was authorized by [a state statute] did not” violate the Constitution); Gates, 537 F.3d at 435 (“adequate procedural due process was given” when defendants followed Texas law, which “call[ed] for a hearing as soon as possible after children are removed without a court order”). Even if a federal appellate court might question whether the danger was imminent and the procedures adequate nine years later, qualified immunity

June events than the majority opinion does. The facts that put members of the household on DCPP’s radar (for at least the second time in one calendar year) were directly linked to the August removals and helped form the basis for the caseworkers’ reasonable suspicion.

“gives government officials breathing room to make reasonable but mistaken judgments.” al-Kidd, 563 U.S. at 743.

So even if the DCPP Defendants’ conduct might violate the Dodd Act under the majority’s new framework, not every reasonable officer would have known that nine years ago. At worst, the DCPP Defendants “reasonably misapprehend[ed] the law governing the circumstances [they] confronted” by failing to ascertain a lack of imminence (as the majority opinion defines today) or, as the majority opinion explains, by failing to expect that a federal court would hold that the Dodd Act’s language is coextensive with federal constitutional standards at the time they acted. Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam). Their reasonable reliance on state procedures (often used, approved, and perhaps even encouraged by their supervisors) further supports that the right here could not have been clearly established. Cf. United States v. Leon, 468 U.S. 897 (1984) (holding that the exclusionary rule does not apply when police officers reasonably rely on a deficient warrant). Therefore, as the majority rightly concludes, Defendants are entitled to qualified immunity in their individual capacities on Plaintiffs’ procedural due process claims.

In my view, however, there are more reasons why Plaintiffs’ procedural due process right was not clearly established in 2017. Several circuits have adopted some form of an “imminence” analysis for emergency removals. But each of those approaches is nuanced, and it’s not clear that all would lead to the same result in this case. These important distinctions are especially salient in the fact-driven clearly established inquiry.

To justify emergent removals, the Second, Ninth, and Tenth Circuits require—each with its own subtleties—that the child be in immediate danger and there is no time to get a court order. Tenenbaum v. Williams, 193 F.3d 581, 594 (2d Cir. 1999); Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294– 95 (9th Cir. 2007); Roska v. Peterson, 328 F.3d 1230, 1245–46 (10th Cir. 2003). The First Circuit, by contrast, applies a “past abuse” standard. Hatch v. Dep’t for Child., Youth, & Their Fams., 274 F.3d 12, 22 (1st Cir. 2001). It permits emergency removal when social workers have a reasonable suspicion that child abuse previously occurred or the threat of future abuse is imminent, as we normally do in the substantive due process context, without weighing whether social workers had time to get a court order. Id. at 22; see id. (“[T]he Constitution allows a case worker to take temporary custody of a child, without a hearing, when the case worker has a reasonable suspicion that child abuse has occurred.” (emphasis added)). And the Fifth Circuit undertakes an even more flexible analysis for emergent child-removal claims, looking to the totality of the circumstances to assess whether the seized children faced an imminent risk of physical or sexual abuse without a bright-line rule that caseworkers must have insufficient time to get a court order. See Gates v. Texas Dep’t of Prot. & Regul. Servs., 537 F.3d 404, 429 (5th Cir. 2008) (looking holistically at the nature of the abuse, the strength of the evidence supporting the allegations of abuse, the risk the parents will flee, the possibility of less extreme solutions, and any harm to the child that might result from the removal); accord Doe v. Kearney, 329 F.3d 1286, 1295, 1297–98 (11th Cir. 2003) (assessing the totality of the circumstances because “[t]his kind of subtle balancing cannot be properly accomplished when courts blunt the inquiry by simply asking whether there was time to get a warrant”).

The nuanced approaches courts take in this area of the law, all heavily reliant on the facts of each case, underscore that there is no robust consensus of authority. As the Eleventh Circuit has observed, the due process “interests may be implicated to varying degrees depending on the individual case, which will necessarily affect the degree of procedural due process required.” Id. at 1297. There are various ways to determine what even qualifies as “imminent” (or “abuse”). The majority opinion’s new standard, which at first glance seems most similar to the Second, Ninth, and Tenth Circuits’ approach, is itself meaningfully different from those courts’ approaches. Under that approach, emergency removals can occur “only when swift action is necessary for securing the children’s safety,” which might encompass more conduct than the immediate “danger” or “physical abuse” other courts require. Maj. Op. 35.

So even if the Dodd Act did not move the needle, Defendants were not on notice of which standard we would apply, much less how we would apply our newly minted standard to the facts. If anything, we have sent contrary signals in the past. See Miller, 174 F.3d at 372 (“Initiating child custody proceedings by ex parte orders is generally constitutional if a prompt post-deprivation hearing is held.”). At issue here is the due process right to be free from temporary removal of children under the procedures authorized by a valid state statute when caseworkers believe the express conditions of a Family Agreement have been violated, the father figure in the home has a recent child abuse record, the mother who just gave birth has mental health challenges, the home has habitability problems, and the children have, days earlier, returned to this environment from out of state. Under these specific facts—not just a vague consensus that “imminence” in

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general is required—out-of-circuit authority did not put the DCPP Defendants on notice that this emergent removal would violate Plaintiffs’ rights.

On the procedural due process issue, I could not sum up this case any better than Judge Sutton did in another case involving child welfare: “in the face of our previous silence, the Supreme Court’s continued silence and the conflicting signals sent by other circuits, I doubt even the most sophisticated social worker, accompanied by the most sophisticated attorney, could have distilled one framework,” much less the application of that framework to the nuanced facts here, to determine whether their actions violated Plaintiffs’ procedural due process rights. Kovacic, 724 F.3d at 708 (Sutton, J., dissenting). For all those reasons, the majority opinion reaches the correct result on the procedural due process issue: the DCPP Defendants are entitled to qualified immunity.

III

“Caseworkers investigating allegations of child abuse often must make difficult decisions based on imperfect information. Particularly when deciding whether to separate parent and child, a caseworker must weigh the rights of the parent against the rights of the child and the risk of abuse.” Mammaro, 814 F.3d at 171. Today, by concluding that the DCPP Defendants are entitled to qualified immunity on the due process claims—albeit for slightly different reasons than I do—the Court pays due respect to the reasonable decisions made in service of that precarious balance. Still, I would affirm the District Court’s orders in the entirety, including insofar as they dismissed Plaintiffs’ Fourth Amendment claim against

Ash. For those reasons, I respectfully concur in part and dissent in part.

Counsel for Appellant(s) Cory J. Kopicki [ARGUED] Stuart T. Steinberg Dechert

Counsel for Appellee(s)

Howard L. Goldberg Krista A. Schmid Office of Camden County Counsel

Jae K. Shim Joseph D. Sams Office of Attorney General of New Jersey

Ashleigh B. Shelton [ARGUED] Phoenix N. Meyers Robert J. McGuire Office of Attorney General of New Jersey