Dees v. Cnty. of San Diego

• Decision Date: 27 May 2020
• Docket Number: Nos. 17-56621,17-56710,s. 17-56621
• Citation: 960 F.3d 1145
• Parties: Sara DEES; L.G., a minor by and through her Guardian Ad Litem, Robert Schiebelhut; G.G., a minor by and through her Guardian Ad Litem, Robert Schiebelhut, Plaintiffs-Appellees/ Cross-Appellants, v. COUNTY OF SAN DIEGO, Defendant-Appellant/ Cross-Appellee, and San Diego County Health and Human Services Agency; Caitlin McCann; Srisuda Walsh; Gloria Escamilla-Hudior; Corey Kissel, Doe 1; Norma Rincon, Doe 2; Alberto Borboa, Doe 3; Does, 4–100, inclusive, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

960 F.3d 1145

Sara DEES; L.G., a minor by and through her Guardian Ad Litem, Robert Schiebelhut; G.G., a minor by and through her Guardian Ad Litem, Robert Schiebelhut, Plaintiffs-Appellees/ Cross-Appellants,

v. COUNTY OF SAN DIEGO, Defendant-Appellant/ Cross-Appellee,andSan Diego County Health and Human Services Agency; Caitlin McCann; Srisuda Walsh; Gloria Escamilla-Hudior; Corey Kissel, Doe 1; Norma Rincon, Doe 2; Alberto Borboa, Doe 3; Does, 4–100, inclusive, Defendants.

Nos. 17-56621

17-56710

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 23, 2019 Pasadena, California

Filed May 27, 2020

OPINION

R. NELSON, Circuit Judge:

The County of San Diego appeals the district court’s post-verdict grant of judgment as a matter of law on Fourth and Fourteenth Amendment claims regarding the alleged seizure of a minor, L, by a social worker. Cross-Appellants L and Sara Dees appeal the district court’s grant of summary judgment on their Fourteenth Amendment claims regarding the County’s false letter allegedly impairing their right to familial association.

We reverse the district court’s grant of judgment as a matter of law on L and Sara’s respective Fourth and Fourteenth Amendment claims regarding the seizure. We also reverse the district court’s conditional grant of a new trial to Sara on her seizure claim. We affirm the district court’s judgment in favor of the County employees on L and Sara’s Fourteenth Amendment claims involving the false letter. Finally, we affirm the district court’s conditional grant of a new trial on L’s Fourth Amendment claim.

I

On February 7, 2013, Ka and Ky’s biological mother, Kelly Hunter, reported to San Diego County’s Health and Human Services Agency ("Agency") that her ex-husband, Robert Dees, had taken naked photos of their thirteen-year-old daughter, Ka. Hunter’s referral was assigned to County social worker Caitlynn McCann.

Pursuant to Agency policy, a companion referral was created for L and G because they primarily resided in the house that Robert shared with his wife, Sara. L and G are Sara’s children from her prior marriage to Alfredo Gil. L, a nine-year-old girl at the time, suffers from several cognitive disabilities. She has been diagnosed with anxiety, ADHD, and is "probably on the autism spectrum." L is also very bright, impulsive, and prone to outbursts.

McCann began her investigation by interviewing Ka and attending a police interview of Robert. Both Robert and Ka acknowledged that Robert had taken naked photos of Ka, ostensibly at Ka’s request as part of a project to document her body’s changes during puberty. The police, after completing their forensic interview with Robert, inspected the camera that had been used to take the photos. According to Robert, the photos of Ka had been deleted by Sara’s sister, who discovered them. Robert would not allow the police to take the camera because he claimed that it also contained naked photos of him and Sara.

After McCann interviewed Robert and Ka, she interviewed L. L told McCann that Hunter was trying to "make Rob[ert] look wrong" and that Robert had not taken any nude photos of her. At the end of the day, Robert agreed, at McCann’s request, to move out of the home during the investigation and to produce Ka for a forensic interview.

The next day, McCann informed Gil, L and G’s biological father, that he "was going to be given full custody of ... [his] two daughters ... [because] their step-father had taken nude photos of" Ka. Gil picked up his daughters that day under the operative custody arrangement. He arranged for L and G to stay at their grandmother’s house during the following week, even though L and G were scheduled to stay with Sara.

Sara and Robert subsequently secured legal counsel and a hearing at which they sought "to change the custodial rights back to the ... original custodial rights." The family court judge agreed, over Gil’s objections, and ordered the children returned to Sara pursuant to the preexisting custody arrangement. Sara took back custody of L and G shortly thereafter.

After learning about the family court’s decision, McCann’s supervisor ordered McCann to wrap up her investigation. Agency policy required McCann to complete a final welfare check on L and G, and "a lot of loose ends ... [and] discrepancies" still left McCann suspicious that illegal activities were taking place. McCann’s suspicions were not shared by the San Diego Police Department, which closed its investigation and advised McCann that the District Attorney was not seeking a search warrant for Robert’s camera. Still, McCann believed the criminal investigation was ongoing.

McCann called the Dees to arrange a final interview of L and G. L and G’s grandmother, who was staying at the Dees’ home, told McCann that she was not to interview L or G without an attorney present. Despite the grandmother’s instruction, McCann went to L and G’s school to interview them. McCann believed that school district policy allowed her to interview the kids at school in a case of suspected child abuse. The school district’s policy does not require the social worker to notify the parents or to obtain parental consent, but the social worker must:

1. advise the child of the right to have school personnel present during the interview[;]

2. advise the child that (s)he may stop the interview at any time and periodically check with the child during the interview to determine if (s)he is comfortable with continuing the interview. If the child says to stop, then the [social worker] will immediately terminate the interview[;]

3. not include law enforcement in the interview[; and]

4. complete the interview within developmentally-appropriate time limits, which will never exceed 60 minutes.

McCann asked a school assistant to bring L to the administrative office. L was willing to talk with McCann. McCann told L that a school official could remain in the room, L could stop the interview at any time, and if L had any questions, McCann would try to answer them. L did not want a school official in the room during the interview and never indicated that she wanted to stop talking to McCann.

The interview lasted five minutes. McCann asked L whether Robert, despite agreeing to remain out of the house during the pendency of the investigation, was, in fact, back in the house. McCann did not ask L directly if Robert had taken nude photos of her but understood from the conversation that no such photos existed. The interview ended "naturally" when McCann finished her questions and L indicated she did not have any questions for McCann. A school official then escorted L back to her classroom.

L’s emotional state during and after the interview is disputed. According to McCann, L was "diplomatic" during the interview and was not upset immediately after the interview. Sara, who happened to be in the school when L was interviewed, disputes McCann’s assessment of L’s emotional state. According to Sara, L was upset after the interview, screaming "CPS is here, CPS is here."

Two days later, McCann was unambiguously informed by the police that their investigation was closed. A week later, McCann closed her own investigation, finding any allegation that L was being abused "unfounded"—meaning that she concluded, under Agency policy, there had "been no shown abuse, and there [was] no basis for the allegation."

That same day, McCann sent a letter, signed by Gloria Escamilla-Huidor and Alberto Borboa (McCann’s supervisors), to the family court overseeing the custody dispute between Sara and Gil. The letter stated that "[a] decision has been made to remove the child(ren) [L and G] from the custodial parent [Sara] and place [them] with the non-custodial parent [Gil] to avoid placing the child(ren) into Polinsky Children’s Center, foster home or adjunct." The statement in the letter was false because L and G were never removed from Sara’s custody. At trial, the County’s own expert testified that the letter was "not correct" and "ma[de] no sense." McCann testified that the quoted language was "standard language ... [that she] couldn’t have edited ... if ... [she] wanted to" and that the letter "was sent on behalf of ... [Gil], who was concerned about his children and was looking for custody." The letter was received by the family court, but the family court never acted on it. L and G have remained in Sara’s primary custody since February 13, 2013.

Sara and L brought multiple claims against the County and various County employees alleging, among other things, violations of their Fourth and Fourteenth Amendment rights. In particular, Sara and L brought claims against the County employees alleging violations of the Fourteenth Amendment right to familial association by sending the false letter to the family court. The County employees moved for summary judgment on those claims. Despite noting that "McCann’s conduct in preparing the March 7 letter ... [was] alarming," the district court concluded "the letter caused no harm to Plaintiffs." Accordingly, the district court granted summary judgment to McCann, Huidor, and Borboa on Sara and L’s Fourteenth Amendment claims related to the false letter.

A jury trial was subsequently held on the remaining claims. At the close of the County’s case, Sara and L moved, pursuant to Federal Rule of Civil Procedure ("Rule") 50(a), for judgment as a matter of law on their respective Fourteenth and Fourth Amendment claims regarding McCann’s alleged seizure of L. The district court took the motion under advisement and submitted the case to the jury.

The jury returned a verdict in favor of the County on all counts. The jury answered "No" to the question, "Did Caitlin McCann violate the 4th Amendment Constitutional rights of ... [L] when she conducted the school interview[ ] ?" The jury also answered "No" to the question, "Did Caitlin McCann violate the 14th Amendment Constitutional right of Sara Dees when she conducted the –?" Because the jury concluded no constitutional...