Doe v. Lebbos

• Decision Date: 04 November 2003
• Docket Number: No. 02-16326.,02-16326.
• Citation: 348 F.3d 820
• Parties: George DOE, individually and as Guardian Ad Litem; Lacey Doe, a minor, Plaintiffs-Appellants, v. Betsey Warren LEBBOS; Lisvet Carrillo-Herrera; Aida Madeline Lebbos; Aida Lebbos Trust; County of Santa Clara; Santa Clara County Department of Social Services; Santa Clara County Child Protective Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

348 F.3d 820

George DOE, individually and as Guardian Ad Litem; Lacey Doe, a minor, Plaintiffs-Appellants, v. Betsey Warren LEBBOS; Lisvet Carrillo-Herrera; Aida Madeline Lebbos; Aida Lebbos Trust; County of Santa Clara; Santa Clara County Department of Social Services; Santa Clara County Child Protective Services, Defendants-Appellees.

No. 02-16326.

United States Court of Appeals, Ninth Circuit.

Submitted March 11, 2003.^* — San Francisco, California.

Filed November 4, 2003.

COPYRIGHT MATERIAL OMITTED

Robert R. Powell, Law Offices of Robert R. Powell, San Jose, California, for the plaintiffs-appellants.

Ann Miller Ravel, County Counsel, Winifred Botha, Lead Deputy County Counsel, Office of the County Counsel, San Jose, California, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Ronald M. Whyte, District Judge, Presiding. D.C. No. CV-00-21274-RMW/PVT.

Before: Pamela Ann Rymer, Andrew J. Kleinfeld, and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez; Dissent by Judge Kleinfeld.

OPINION

PAEZ, Circuit Judge:

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

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

FACTUAL BACKGROUND

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

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

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

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

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

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

On April 12, 2002, the district court granted summary judgment in favor of the County and Herrera on the Does' § 1983 claim. The court reasoned that Herrera was entitled to absolute immunity because her actions involved the initiation and pursuit of child dependency proceedings and that the Does had not provided a basis for Monell liability against the County. In addition, the court held that the Does' § 1983 claim was barred by the Rooker-Feldman doctrine. The judge also ordered the parties to show cause why he should not issue partial summary judgment in favor of Lebbos and why the case should not be remanded to state court for lack of federal jurisdiction in the event he entered partial summary judgment in favor of Lebbos.

On May 23, 2002, the district court granted summary judgment in favor of Lebbos on the Does' § 1983 claim because the Does failed to present any facts showing that Lebbos was acting in the capacity of a state actor. In addition, the judge remanded the state claims to state court because there were no remaining federal claims before the court.

The Does appeal from the district court's summary judgment in favor of Herrera and the County.⁸

STANDARD OF REVIEW

We review de novo the district court's summary judgment. Mabe v. San Bernardino County, 237 F.3d 1101, 1106 (9th Cir.2001). Whether Herrera is entitled to immunity also is a question of law that we review de novo. See id.

DISCUSSION

I.

We address first whether the district court properly concluded that Herrera was entitled to absolute immunity for her actions in detaining Lacey prior to the initiation of child dependency proceedings, investigating the allegations of abuse and neglect and presenting evidence to the dependency court, and referring Lacey for a sexual abuse examination without a court order or parental consent. In making this determination, we apply a "functional approach." See Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Miller v. Gammie, 335 F.3d 889, 898 (9th Cir.2003) (en banc). That is, we look at the "nature of the function performed, not the identity of the actor who performed it." Buckley, 509 U.S. at 269, 113 S.Ct. 2606. State actors, including social workers, who perform functions that are "critical to the judicial process itself" are...