Stein v. Depke
| Docket Number | CV-20-00102-TUC-JCH |
| Decision Date | 14 September 2023 |
| Parties | Justin Stein, et al., Plaintiffs, v. Alyssa Depke, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
In this case, as relevant to the remaining claims, Defendant DCS agents removed Plaintiffs Justin and Jacqueline Stein's son C.S. and Plaintiff Grace Reid's son L.G. In both cases, Defendants relied on Plaintiffs' consent to removal, which Plaintiffs allege was never secured. Before the Court are Defendants' motions for summary judgment. Doc. 83 (Hanson); Doc. 89 (Depke & Fregoso). Defendants argue that a reasonable official in the same circumstances would have thought consent was secured. Defendants thus claim entitlement to qualified immunity from trial. The issues are fully briefed, Docs. 95, 97, 106, 107, and the Court heard oral argument on August 16, 2023. Doc. 109 ("Hr'g Tr.").
Under the Steins' versions of the facts, which the Court must accept at this stage, Depke and Fregoso violated clearly established law by failing to secure parental consent to removal. The Steins' evidence could convince a jury that Depke and Fregoso did not explain basic aspects of removal and told the Steins "there is no turning back" when the Steins withdrew their consent. The Steins' evidence could also convince a jury that Depke and Fregoso told the Juvenile Court the Steins did not want their son back shortly after the Steins said they did want him back.
Under Reid's version of the facts, Hanson did not violate clearly established law. Reid's evidence could convince a jury only that Hanson mistakenly believed Reid wanted DCS to take custody of L.G. That potential mistake, and Hanson's other actions, were objectively reasonable. Reid's version of the facts also does not show a violation of law clearly enough established to place any issue "beyond debate." Reid's evidence raises issues of the scope and intelligence of Reid's consent, not coercion. Unlike the law on coerced consent, the law on the scope and intelligence of consent was not clearly established enough in 2018 to notify Hanson that his actions were unlawful. There is nothing for a jury to do under these circumstances.
Consequently a trial is needed in the Steins' case but not in Reid's case. The Court will deny Depke's and Fregoso's motion for summary judgment and schedule a trial-setting conference, and grant Hanson's motion for summary judgment.
Summary judgment is appropriate when the parties have no genuine dispute as to any material fact. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A dispute is genuine if a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986). A fact is material if it might affect the outcome of the suit. Id.
The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. A movant without the ultimate burden of persuasion at trial may carry its initial burden either by producing evidence negating an essential element of the nonmovant, or by showing that the nonmovant does not have enough evidence of an essential element to carry its ultimate burden. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co. Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Id. at 1102-03. If the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material. Liberty Lobby, 477 U.S. at 248; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed.R.Civ.P. 56(c)(1). The Court must believe the nonmovant's evidence and draw all justifiable inferences in the nonmovant's favor. Liberty Lobby, 477 U.S. at 255.
Plaintiffs seek relief under 42 U.S.C. § 1983, and Defendants claim entitlement to qualified immunity. Compare Doc. 25 at 9, with Docs. 83 at 13, 89 at 13. Section 1983 creates a cause of action against any person who violates another person's constitutional rights under color of law. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1106 (9th Cir. 2001); see 42 U.S.C. § 1983. But "qualified immunity protects government officials '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.'" Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1037 (9th Cir. 2018) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When determining whether a public official is immune from liability for acts performed in an official capacity, "qualified immunity is the general rule[.]" Harlow, 457 U.S. at 807. A public official is entitled to qualified immunity unless the Plaintiff shows: "(1) the official[s] violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
The first prong of a qualified immunity analysis requires the Court to determine whether the circumstances of C.S.'s or L.G.'s removal violated the Constitution. The First, Fourth, and Fourteenth Amendments provide a guarantee "that parents will not be separated from their children without due process of law except in emergencies." Mabe, 237 F.3d at 1107-09; see also Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 1999) (internal citations omitted); Demaree v. Pederson, 887 F.3d 870 (9th Cir. 2018). "For parents, the right to familial association is generally grounded in the Fourteenth Amendment's Due Process Clause, while claims brought by children are evaluated under the more "specific" Fourth Amendment right to be free from unreasonable seizures." David v. Kaulukukui, 38 F.4th 792, 799 (9th Cir. 2022) (citing Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 788-89 & n.2 (9th Cir. 2016) (en banc)).
Narrow circumstances control when the government may constitutionally remove children from their families without a court order or warrant. Demaree, 887 F.3d at 878. Defendants do not seek summary judgment on the ground that C.S. or L.G. were removed under a court order, exigent circumstances, or probable cause.[1] At oral argument, Defendants affirmatively stated that "[e]xigent circumstances have nothing to do with either case." Hr'g Tr. at 3:18-19. Defendants' motions for summary judgment do not discuss any exception other than consent. See generally Docs. 83, 89. Defendants have thus failed to carry their initial burden on this element.[2]
Absent a court order, exigent circumstances, or probable cause, consent is the only exception to the general prohibition on separating children from their parents. Consent must be "voluntarily given, and not the result of duress or coercion, express or implied." Schneckloth v. Bustamonte, 412 U.S. 218, 249 (1973). Whether consent is voluntary is a question of fact determined from the totality of all the circumstances. See id. at 227. Consent must also be "unequivocal and specific" and "freely and intelligently given." United States v. Basher, 629 F.3d 1161, 1167 (9th Cir. 2011) (citations omitted). The scope of consent is "generally defined by its expressed object." See Florida v. Jimeno, 500 U.S. 248, 251 (1991) (); United States v. Taylor, 60 F.4th 1233, 1244 (9th Cir. 2023) (); United States v. Lopez-Cruz, 730 F.3d 803, 809 (9th Cir. 2013) (). The core question is one of "objective reasonableness"-what a reasonable person would have understood by the exchange. Jimeno, 500 U.S. at 251.
Defendants assert that Plaintiffs consented to DCS removal of their children, and Plaintiffs assert they did not consent. The Court analyzes each family's dispute in turn.
The following facts are drawn from the Steins' account because the Court is obliged to believe their evidence and draw all inferences in their favor at this stage. Where the Steins' account is ambiguous or missing information, the Court draws on undisputed facts or record evidence for clarity.
On October 9, 2019, C.S. attacked his dad Justin, hitting Justin and attempting to choke him while Justin was driving. Doc. 96 at 15 ¶ 1. Justin almost lost control of the car. Id. When Justin and C.S. got home, Justin told his wife Jacqueline ("Jackie") what happened, and they agreed they needed help. Id. They called the Crisis Response Team ("CRT"), which sent Caren Jablonsky. Doc. 96 at 16 ¶¶ 3, 4. When Jablonsky arrived, the Steins explained their situation and discussed their options through "waves of tears." Doc. 96-3 at 14, 15; see also Doc. 96-2 at 38. The Steins were eager to get a psychiatric evaluation and medication for C.S., and potentially in-home respite care. Doc. 96 at 16 ¶ 2; Doc. 96-2 at 38. Jablonsky recommended the Steins call the DCS Hotline because there was "a good possibility" that DCS would be able to provide those things faster than any alternative. Doc. 96-3 at 18; see also Doc. 96 at 16 ¶¶ 5, 6; Doc. 96-2 at 39.
Following Jablonsky's advice, the Steins chose Jackie to call the DCS...
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