Martinez v. Mafchir

• Decision Date: 27 September 1994
• Docket Number: No. 93-2007,93-2007
• Citation: 35 F.3d 1486
• Parties: Sharon MARTINEZ, Individually and as parent and next friend of Rose Martinez, Plaintiff-Appellant, v. Polly MAFCHIR, Lou Gallegos, Jack Callahan, Roberto Samora, Rosemary Roybal, and Audrey Druva, in their individual capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1486

35 F.3d 1486

Sharon MARTINEZ, Individually and as parent and next friend of Rose Martinez, Plaintiff-Appellant, v. Polly MAFCHIR, Lou Gallegos, Jack Callahan, Roberto Samora, Rosemary Roybal, and Audrey Druva, in their

individual capacities, Defendants-Appellees.

No. 93-2007.

United States Court of Appeals, Tenth Circuit.

Sept. 27, 1994.

Fred Abramowitz, and Elizabeth E. Simpson, of Tomita & Simpson, P.C., Albuquerque, NM, for plaintiff-appellant.

Judith C. Herrera and Michael D. Baird, of Herrera, Baird & Long, P.A., Santa Fe, NM, for defendants-appellees.

Before ANDERSON, McKAY, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Plaintiff Sharon Martinez filed an action under 42 U.S.C. Sec. 1983 alleging Fourteenth Amendment substantive and procedural due process violations arising out of defendants' actions in pursuing a neglect and abuse petition seeking legal custody of her daughter, plaintiff Rose Martinez. The district court granted defendants' summary judgment motion. Plaintiffs appeal. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm. ¹

I. Background

A. Facts ²

On January 12, 1988, four-year-old Rose Martinez was sexually abused and raped by Leroy Boylan, a thirteen-year-old neighbor boy who was staying at the Martinez house. Rose's mother, Sharon Martinez, became aware of the sexual assault that same night, and after hearing Rose's complaints of pain and finding blood in Rose's underwear, she gave Rose a hot bath and examined her vagina for injuries. Seeing no signs of physical injury, Ms. Martinez decided not to seek medical treatment for Rose. The following day, January 13, 1988, Ms. Martinez informed Leroy's father, Mike Boylan, about the sexual assault, and he in turn related the incident to his wife, Linda Boylan. Ms. Martinez did not inform any public authorities about the assault.

Approximately one week after the incident, Ms. Martinez discovered a discharge in Rose's underwear and notice that Rose was experiencing vaginal irritation. She called to make an appointment with Dr. Gerald Rodriguez. Dr. Rodriguez examined Rose a week later on January 27, 1988. He found that Rose had suffered no tears, lacerations or abrasions to the pubic area, he tested Rose for venereal disease, and he prescribed a vaginal cream.

The Social Services Division of the New Mexico Human Services Department ("HSD") learned of the sexual molestation on January 19, 1988, when Linda Boylan brought the incident to HSD's attention at an unrelated detention hearing for Leroy. The next day, January 20, 1988, Polly Mafchir, a social worker for HSD, went to the Martinez home but found no one there. In response to a note left by Ms. Mafchir, Ms. Martinez went to Ms. Mafchir's office to meet with her on January 28, 1988. While there, Ms. Martinez quickly became upset with Ms. Mafchir and complained to her supervisor, defendant Rosemary Roybal. Ms. Martinez eventually calmed down and informed Ms. Mafchir and Ms. Roybal about the sexual assault and Rose's visit to Dr. Rodriguez's office. She indicated that Rose's behavior had changed since the assault and acknowledged that Rose needed to talk about the incident. Ms. Mafchir encouraged Ms. Martinez to take Rose to the Rape Crisis Center for a psychological assessment.

Ms. Martinez later called the Rape Crisis Center, but decided not to take Rose there because she did not like the Center's assessment procedures. Ms. Mafchir testified that following her discussion with Ms. Martinez she called Dr. Rodriguez and he told her in effect that Ms. Martinez was an irresponsible parent.

On February 25, 1988, Ms. Mafchir visited the Martinez residence with Deputy Judy Newsome of the Santa Fe County Sheriff's Department to investigate the sexual assault of Rose. Inside the Martinez home, they observed marijuana plants and were troubled that Rose was wearing "long feather-type earrings" and makeup that was not "childishly applied," but rather had an adult-like appearance. Ms. Mafchir told Ms. Martinez that HSD would pay for Rose's psychological evaluation and she suggested that Ms. Martinez take Rose to a private counselor named Margo Bryce. Ms. Martinez agreed to do this.

On February 26, 1988, Ms. Martinez again took Rose to Dr. Rodriguez's office because Rose continued to have a malodor and slight discharge. Believing that a foreign object might be causing the discharge, Dr. Rodriguez scheduled a hospital visit for Rose so that he could surgically examine her. Because general anesthesia would be used, Dr. Rodriguez instructed Ms. Martinez not to feed Rose the morning of her surgery. The scheduled procedure had to be canceled twice, however, because Rose awoke early and ate breakfast. Rose eventually spent the night at the hospital to ensure that she would not eat before the procedure. Dr. Rodriguez performed the procedure and no foreign objects were found.

Ms. Roybal discussed the Martinez case with Ms. Mafchir throughout Ms. Mafchir's investigation. On April 11, 1988, Ms. Mafchir and Ms. Roybal filed a Uniform Case Record in which they recommended that HSD take affirmative action in the case. Then, on April 28, 1988, a children's court attorney named Catherine Aguilar filed in the Children's Court Division of the First Judicial District Court in the State of New Mexico a Neglect/Abuse Petition ("Neglect Petition") which had been prepared by Ms. Mafchir. The Neglect Petition outlined the facts set forth above, concluded that Rose was neglected and requested legal custody of Rose.

At the time the Neglect Petition was filed Ms. Mafchir believed that Rose's medical needs had been met, though in an untimely fashion, and that she was not in any immediate danger. Ms. Mafchir testified, however, that she believed Rose's psychological needs had not been met and that Ms. Martinez had failed to heed her suggestions to seek psychological counseling for Rose at the Rape Crisis Center or with Margo Bryce. Ms. Mafchir and Ms. Roybal both testified that this was an unusual case because, though HSD sought legal custody, HSD was not seeking Rose's physical removal from the Martinez home. Rather, HSD pursued the Neglect Petition (1) to enlist the court's help to ensure Ms. Martinez would follow through with the recommended psychological evaluations for Rose, and (2) to receive court approval for HSD payment for the evaluations.

On May 2, 1988, a guardian ad litem was appointed for Rose and a Notice of Setting was filed scheduling a hearing on the Neglect Petition for May 10, 1988. A hearing was held on that date, but Ms. Martinez was not present because she had not been served with the Neglect Petition and she did not receive notice of the hearing. At the hearing, the court awarded temporary physical and legal custody of Rose to the state, but ordered that physical placement of Rose remain with her mother, pending adjudication. Rose was never physically separated from her mother. The court placed its findings and conclusions in a Custody Hearing Order and mailed a copy to Ms. Martinez via certified mail on May 12, 1988.

On May 23, 1988, Audrey Druva replaced Ms. Mafchir as the social worker in the Martinez case. A week later, Ms. Martinez found copies of some court pleadings, including the Neglect Petition, in an envelope taped to her door. Ms. Martinez complained the next day to Ms. Mafchir's new supervisor, defendant Roberto Samora, about Ms. Mafchir's conduct and the filing of the Neglect Petition.

In August 1988, after an adjudicatory hearing, the parties agreed to dismiss the Neglect Petition on the condition that Ms. Martinez cooperate in arranging and participating in a psychological evaluation paid for by HSD. She complied and the Neglect Petition was dismissed on November 23, 1988.

B. Procedure

On April 17, 1991, plaintiffs filed an action under 42 U.S.C. Sec. 1983 alleging that defendants violated their Fourteenth Amendment substantive due process right to familial integrity by investigating and pursuing the Neglect Petition without just cause. Plaintiffs also asserted that defendants violated their procedural due process rights by failing to provide Ms. Martinez with notice of the Neglect Petition hearing. The district court granted defendants' motion for summary judgment on both claims.

With respect to the substantive due process claim, the district court determined that defendants were entitled to qualified immunity because their actions did not violate any clearly established constitutional right. As to plaintiffs' procedural due process claim, the court held that defendants were entitled to summary judgment because they had no responsibility to provide Ms. Martinez with notice. Plaintiffs now appeal arguing that the district court erred in granting defendants' summary judgment motion. ³

II. Discussion

A. Substantive Due Process Claim

Plaintiffs first assert that the district court erred in finding that defendants are entitled to qualified immunity on plaintiffs' substantive due process claim. "Qualified immunity is a question of law and the standard of review is de novo." Yvonne L. v. New Mexico Dep't of Human Servs., 959 F.2d 883, 891 (10th Cir.1992).

"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988). In Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991), the Supreme Court "clarif[ied] the analytical structure under which a claim of qualified immunity should be addressed." To reach the question of whether a defendant official is entitled to qualified immunity, a court must first ascertain whether the plaintiff has sufficiently...