329 F.3d 1286 (11th Cir. 2003), 02-13874, Doe v. Kearney

Docket Nº:02-13874.
Citation:329 F.3d 1286
Party Name:John DOE, Jane Doe, individually and on behalf of their minor children, D.M., N.O., and B.O., and on behalf of a class of similarly situated persons in the State of Florida, Plaintiffs-Appellants, v. Kathleen A. KEARNEY, Secretary of Florida Department of Children and Family Services, Don Dixon, District Administrator for District 6 of Florida Depa
Case Date:May 08, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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329 F.3d 1286 (11th Cir. 2003)

John DOE, Jane Doe, individually and on behalf of their minor children, D.M., N.O., and B.O., and on behalf of a class of similarly situated persons in the State of Florida, Plaintiffs-Appellants,


Kathleen A. KEARNEY, Secretary of Florida Department of Children and Family Services, Don Dixon, District Administrator for District 6 of Florida Department of Children and Family Services, in their official capacities, Deborah O'Brien, in her personal capacity, Defendants-Appellees.

No. 02-13874.

United States Court of Appeals, Eleventh Circuit

May 8, 2003

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Mark R. Brown, St. Petersburg, FL, for Plaintiffs-Appellants.

Sheridan K. Weissenborn, Papy & Weissenborn, P.A., Coral Gables, FL, Todd W. Vraspir, Papy & Weissenborn, P.A., Spring Hill, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA and BLACK, Circuit Judges, and RYSKAMP [*], District Judge.

BLACK, Circuit Judge:

Appellants John Doe and Jane Doe, 1 individually and on behalf of their three minor children, D.M., N.O., and B.O., appeal the district court's dismissal of their action against Appellee Deborah O'Brien. 2 Their claims arise out of an incident in which O'Brien, an authorized agent of the Florida Department of Children and Family Services (DCF), effected an "emergency" removal of Appellants' children without Appellants' permission and without a court order. Appellants brought this action seeking a declaration that Fla. Stat. § 39.401(1), which purportedly authorized the removal of the children, is unconstitutional both facially and as applied to them. They also asserted a 42 U.S.C. § 1983 claim for money damages against O'Brien in her individual capacity, alleging that she violated their constitutional rights by taking their children without judicial authorization and in the absence of a true emergency. For the reasons explained herein, we conclude § 39.401(1) is not unconstitutional, and Appellants have not demonstrated a violation of their constitutional rights. Furthermore, in the absence of any constitutional violation, Appellants

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cannot prevail on their § 1983 claim against O'Brien. Therefore, we affirm.


On January 18, 2000, DCF officials in St. Augustine, Florida, were informed that T.O., John Doe's nine-year-old niece, had recently reported being abused by John Doe approximately four years earlier, when T.O. was five. T.O., who is deaf, reportedly accused John Doe of making her touch his penis and perform oral sex. DCF officials in St. Augustine investigated the report and discovered that John Doe was residing in Hillsborough County, Florida, with his wife, Jane Doe, and their three minor children, D.M. (age 13), N.O. (age 9), and B.O. (age 6). 3 On January 21, 2000, the St. Augustine office forwarded the report to DCF's Hillsborough County office, where the case was assigned to O'Brien at approximately 12:30 P.M.

Soon after receiving the report, O'Brien commenced an investigation and discovered that John Doe had previously been investigated by DCF in 1995. In the 1995 case, John Doe had been accused of placing his penis in the rectum of a three-year old boy whom Jane Doe was babysitting. According to O'Brien, DCF believed the allegation to be true but had not pressed charges due to lack of cooperation from the victim. 4

O'Brien also discovered during her investigation that John Doe had a criminal record involving crimes of a sexual nature. 5 According to a report she received from the Florida Department of Law Enforcement (FDLE), John Doe was convicted in 1989 of two counts of lewd and lascivious behavior stemming from an incident in which he exposed and fondled himself in front of children at a school bus stop. 6 The report also indicated that John Doe had previously been charged with solicitation of prostitution and had been accused of, but not charged with, rape.

At approximately 2:10 P.M., O'Brien met with her supervisor, Wanda Rios. Rios recommended sheltering all three of Appellants' children, but advised O'Brien to first contact DCF's legal department. Following Rios' recommendation, O'Brien consulted with DCF legal counsel at approximately 2:45 P.M., and was advised to take the children into custody.

At approximately 3:30 P.M., O'Brien proceeded to D.M.'s school. She interviewed the child and explained that she was going to talk to D.M.'s parents and siblings and "make sure everybody was okay." O'Brien then arranged for D.M. to be taken into custody, and attempted to summon a deputy sheriff to accompany her to Appellants' residence. For reasons unexplained, however, the deputy never arrived and, after waiting approximately one hour, O'Brien proceeded to Appellants' residence alone. She arrived there at approximately 5:20 P.M. and, after explaining that she was there to investigate a report of child abuse, was invited inside by Appellants. O'Brien then proceeded to interview John Doe, Jane Doe, N.O., and B.O.

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At approximately 6:00 P.M., after she had interviewed each member of the Doe family, O'Brien concluded the children were in danger of abuse from John Doe. She also concluded that Jane Doe was incapable of protecting the children and that the children would need to be temporarily removed for their safety. 7 The children were subsequently taken to their maternal grandparents' home, where they remained for the night. The following morning, a state judge concluded there was a lack of probable cause to keep the children apart from their parents, and ordered that all three children be immediately returned to Appellants. Appellants subsequently commenced this action.



Section 39.401(1) governs the state's emergency removal of children who are believed to be in danger of child abuse. It provides in pertinent part:

(1) A child may only be taken into custody:


(b) By a law enforcement officer, or an authorized agent of the [DCF], if the officer or authorized agent has probable cause to support a finding:

1. That the child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment[.]

Fla. Stat. § 39.401(1). 8

Consistent with § 39.401(1), DCF's policy is to remove a child from a parent or legal guardian without prior judicial authorization when there is probable cause to believe the child has been abused or is in imminent danger of abuse. Appellants maintain that DCF routinely removes children believed to be in danger of abuse without first attempting to determine whether there is time to obtain a court order before effecting the removal without exacerbating the risk to the child. O'Brien acknowledges that she did not attempt to determine whether there was time to obtain a court order before she removed the Doe children from their parents.


Appellants asserted in their complaint that § 39.401(1) violates the Due Process Clause of the Fourteenth Amendment and violates the Fourth Amendment (as made applicable to the states through the Fourteenth) by authorizing the warrantless removal of their children. They also asserted that O'Brien violated their constitutional rights when she took their children into custody without prior judicial authorization.

On January 22, 2001, Appellants filed a motion for partial summary judgment seeking: (1) a declaration that § 39.401(1) is unconstitutional; (2) a determination

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that O'Brien violated their Fourteenth and Fourth Amendment rights; and (3) a determination that O'Brien was not entitled to qualified immunity. On April 9, 2001, the district court issued an order denying Appellants' motion for partial summary judgment. In its order, the court concluded § 39.401(1) comports with due process requirements and comports with the Fourth Amendment. 9 As to the § 1983 claim against O'Brien, the court concluded the central issue was whether there were emergency circumstances warranting her removal of the children without prior judicial approval, and that genuine issues of material fact existed as to that issue. On June 19, 2001, the case proceeded to trial on the § 1983 claim against O'Brien. At the conclusion of Appellants' case in chief, the district court granted O'Brien's motion for judgment as a matter of law on the basis of qualified immunity.

Appellants challenge the district court's dismissal of their constitutional claims and the court's judgment as a matter of law in favor of O'Brien on the issue of qualified immunity.


Before turning to the substantive issues raised on appeal, we first consider whether Appellants have standing to challenge § 39.401(1). The district court determined Appellants had standing to sue, notwithstanding the fact that their children had been returned to them prior to the commencement of this lawsuit. We review that determination de novo. See Maiz v. Virani, 253 F.3d 641, 654 (11th Cir. 2001).

Article III standing requirements preclude claims in which the plaintiff has failed to make out a case or controversy between himself and the defendant. Lynch v. Baxley, 744 F.2d 1452, 1455-56 (11th Cir. 1984). A plaintiff will generally have standing where three criteria are met: (1) the plaintiff has experienced injury in fact; (2) the injury is fairly traceable to the defendant's conduct; and (3) the plaintiff's harm is likely to be redressed should the court order relief. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Appellants' claims in this case easily satisfy the first two criteria. Parents have a fundamental right to the custody of their children, and the deprivation of that right effects a cognizable injury. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71...

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