Gomes v. Wood

Decision Date27 June 2006
Docket NumberNo. 04-4197.,04-4197.
Citation451 F.3d 1122
PartiesShauna GOMES; Domingos Gomes; and Rebekah Gomes, Plaintiffs-Appellants, v. Deborah A. WOOD; Megan Annes; Kerri Ketterer; and Tess Blackmer, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Steven C. Russell, Affordable Legal Advocates, P.C., Salt Lake City, UT, for Plaintiffs-Appellants.

J. Clifford Peterson, Office of the Attorney General (Brent A. Burnett, Peggy E Stone, and Peter L. Rognlie, Assistant Attorneys General, and Mark L. Shurtleff, Attorney General, on the brief), Salt Lake City, UT, for Defendants-Appellees.

Before HENRY, McKAY, and TYMKOVICH, Circuit Judges.

HENRY, Circuit Judge.

On April 30, 2000, Megan Annes, a child protection caseworker with the Utah Division of Child and Family Services, removed nine-month-old Rebekah Gomes from Rebekah's home and placed her in protective custody. Ms. Annes's decision was based on a four-inch linear skull fracture that Rebekah's treating physician had reported to Child and Family Services four days earlier. In September 2000, the Division of Child and Family Services found that protective custody was no longer warranted and returned Rebekah to her family.

Rebekah and her parents, Shauna and Domingo Gomes, then filed this 42 U.S.C. § 1983 action against Ms. Annes, Kerri Ketterer and Tess Blackmer (Ms. Annes's supervisors), and Assistant Attorney General Deborah Wood. The Gomeses alleged that the removal of Rebekah from their home without prior notice and a hearing violated their due process rights under the Fourteenth Amendment.

The district court granted summary judgment to all the defendants. Relying on Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the court reasoned that the state's affording the Gomeses a post-removal hearing on May 3, 2000 foreclosed their claims for damages for failing to provide a pre-removal hearing. The court also indicated that "it likely would have reached the same result" on alternative grounds — that emergency circumstances justified removal without a hearing and that the defendants were entitled to qualified immunity. Aplts' App. at 941 (Dist. Ct. Order, filed July 16, 2004).

We disagree with the district court's application of Carey to these facts, but we affirm its decision for a different reason: we hold that because Ms. Annes did not violate clearly established law of which a reasonable official would have known, she and the other defendants are entitled to qualified immunity.

A. The Removal of Rebekah

On April 26, 2000, Shauna Gomes took Rebekah to her pediatrician, Dr. Brent Knorr. She told Dr. Knorr that Rebekah had injured her head on the previous day when she fell off the bed. She reported that Rebekah had slept a lot since the fall and was "cranky" and "clingy." Aplts' App. at 585.

Dr. Knorr examined Rebekah and found a large amount of swelling. An x-ray revealed a four-inch parietal fracture on Rebekah's skull. However, there was no depressed fracture — a significant finding because such fractures are more likely to injure the brain. The fracture was linear, not star-shaped, which suggested to Dr. Knorr that it had been caused by a blunt trauma.

Dr. Knorr found Ms. Gomes's explanation of the injury "possible but suspicious." Id. at 930. He stated that the shape of Rebekah's fracture was "consistent with a fall on a flat object." Id. at 929. However, in deposition testimony, he explained that he had seen many children who had fallen from beds, or objects of similar heights, but had not suffered the kind of fracture that he had seen on Rebekah. Dr. Knorr was also concerned that Ms. Gomes had waited until the day after Rebekah's injury to seek medical attention. To Dr. Knorr, the delay in seeking care was "one of the warning signs that maybe something-wasn't on par with what I was told." Id. at 596.

Dr. Knorr prescribed Motrin. He told Ms. Gomes that he was required to report the fracture (and Ms. Gomes's explanation of it) to the Division of Child and Family Services. Nevertheless, he sent Rebekah home and told Ms. Gomes that he was comfortable doing so.

Dr. Knorr then reported the incident to Child and Family Services by telephone. The intake caseworker responded that, because the matter did not appear to be an emergency, an investigator would call him back on the following day.

On April 27, 2000, Ms. Gomes returned to the doctor's office with Rebekah. She was concerned that Rebekah had been vomiting. Dr. Knorr was out of the office, but his partner examined Rebekah and concluded that the vomiting was caused by the stomach flu and not by the head injury.

On April 28, 2000, Ms. Gomes again returned to Dr. Knorr's office for a follow-up visit. She asked him if he had contacted Child and Family Services, noting that no one had contacted her. Evidently, no one had contacted Dr. Knorr either, as he responded that he would follow up with the agency. He concluded that Rebekah was doing well, and he again "felt comfortable leaving the child in her mother's care." Id. at 930-31.

On the same day, Dr. Knorr spoke by telephone with the defendant Megan Annes, a caseworker in the Division of Child and Family Services. He told her that "the mother's explanation was possible but suspicious" but that he "felt comfortable leaving [Rebekah] in her mother's care." Id. at 930.

After speaking with Dr. Knorr, Ms. Annes met with her supervisors, Tess Blackmer and Kerri Ketterer (who are also named as defendants in this case). They advised Ms. Annes that it might be necessary to take Rebekah into protective custody immediately — without first conducting a hearing. Ms. Blackmer indicated that "there were substantial reasons to believe that there was a substantial danger to Rebekah's physical health and safety." Id. at 550. Ms. Blackmer based that conclusion on the severity of Rebekah's skull fracture, Dr. Knorr's suspicions regarding Ms. Gomes's explanation of the fracture, the Gomeses' apparent delay in seeking medical treatment for the fracture, Rebekah's young age, and the possibility that further medical treatment for the skull fracture might be delayed. Id. Ms. Ketterer added that she did not find Ms. Gomes's explanation of Rebekah's injury to be credible. See id. at 556 (stating that "[b]ased on my training and experience. . . I did not believe it was possible for a nine-month-old child to receive a four-inch skull fracture from a two-foot fall off a bed because of the softness of a baby's skull bones"). Both supervisors advised Ms. Annes to investigate further and to seek legal advice.

Ms. Annes then telephoned the defendant Deborah Wood, an Assistant Attorney General for the State of Utah in the child services division (and the fourth defendant in this case). Ms. Wood also concluded that Rebekah's "physical health and safety were in substantial danger." Id. at 563. Ms. Wood and Ms. Annes agreed that Ms. Annes should conduct a home visit. Ms. Wood advised Ms. Annes that "if [Ms. Annes] concluded there was substantial cause to believe that placing Rebekah Gomes into protective custody was necessary to protect her from a substantial danger to her physical health and safety, the decision would comply with the applicable state statutes." Id. at 564. Ms. Wood added that she would support the removal by filing a petition in the juvenile court seeking an out-of-home placement. Id.

On the following day, April 29, 2000, Ms. Annes contacted a police detective and proceeded with him to the Gomeses' home. They arrived at 12:30 p.m. but discovered that no one was there.

On April 30, 2000, Ms. Annes and another police officer returned to the Gomeses' home and interviewed them there. Ms. Annes asked how Rebekah had been injured. After Ms. Gomes offered the same explanation that she had given to Dr. Knorr, Ms. Annes inspected the bed and the floor where Ms. Gomes maintained that Rebekah had fallen. Her inspection confirmed her view that Ms. Gomes's explanation was not plausible. Ms. Annes was also concerned because Ms. Gomes told her that she had not noticed the fracture until the day after the fall. Accordingly, Ms. Annes decided to take Rebekah into protective custody and removed her from the Gomeses' home.

On May 3, 2000, Assistant Attorney General Wood filed a petition for custody in the Utah County Fourth District Juvenile Court. The petition recited the facts surrounding Rebekah's skull fracture, alleged that there was a substantial danger to Rebekah's health and safety, and requested the court to award custody to the Division of Child and Family Services for out-of-home care and placement. The court conducted a hearing on the same day. The Gomeses were represented by counsel, and they agreed that Rebekah could be placed in the temporary custody of the Division of Child and Family Services. Rebekah remained in state custody until September 2000, when the Division of Child and Family Services determined that the circumstances warranted returning her to her family.

B. The Gomeses' Section 1983 Action

In September 2001, the Gomeses filed this 42 U.S.C. § 1983 action against Ms. Annes, Ms. Ketterer, Ms. Blackmer, and Ms. Wood. They asserted that taking Rebekah into state custody without prior notice and a hearing violated their due process rights under the Fourteenth Amendment, and they sought actual damages for this alleged constitutional violation.

The Gomeses and the defendant state officials each moved for summary judgment, and the district court granted summary judgment to all the defendants. The court reasoned that the state court's finding after a post-removal hearing that Rebekah should remain in state custody foreclosed the Gomeses' claim for damages arising out of failure to provide a pre-removal rehearing. According to the district court, "[t]he Supreme Court had made clear that where an adverse action would have nevertheless been taken had the plaintiff received adequate due process, the plaintiff would...

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