Yount v. Millington

• Decision Date: 22 November 1993
• Docket Number: No. 13787,13787
• Citation: 117 N.M. 95,1993 NMCA 143,869 P.2d 283
• Parties: Kathleen YOUNT, for herself and on behalf of her minor son, Shane P., Plaintiff-Appellant/Cross-Appellee, v. Michaele MILLINGTON, Angela Adams, Rosemary Roybal, and Virginia Gilmer, individually and as officials of the New Mexico Human Services Department, Defendants-Appellees/Cross-Appellants.
• Court: Court of Appeals of New Mexico

Page 283

869 P.2d 283

117 N.M. 95

Kathleen YOUNT, for herself and on behalf of her minor son, Shane P., Plaintiff-Appellant/Cross-Appellee, v. Michaele MILLINGTON, Angela Adams, Rosemary Roybal, and Virginia Gilmer, individually and as officials of

the New Mexico Human Services

Department,

Defendants-Appellees/Cross-Appellants.

No. 13787.

Court of Appeals of New Mexico.

Nov. 22, 1993.

Certiorari Denied Feb. 4, 1994.

[117 N.M. 97] Michael P. Gross, C. Bryant Rogers, Roth, VanAmberg, Gross, Rogers & Ortiz, Santa Fe, for plaintiff-appellant/cross-appellee.

Emily A. Franke, James P. Lyle, Deborah D. Wells, Butt, Thornton & Baehr, P.C., Albuquerque, Mark A. Basham, Legal Bureau, Risk Management Div., Santa Fe, for defendants-appellees/cross-appellants.

OPINION

PICKARD, Judge.

This case involves a civil rights action pursuant to the federal Civil Rights Act, 42 U.S.C. Section 1983 (1982). It is brought by Plaintiff for herself and on behalf of her minor son against a New Mexico Human Services Department (HSD) social worker, the social worker's supervisor, and the chief Children's Court attorney for the HSD. The action was brought because of Defendants' extraterritorial seizure of Plaintiff's child in California based on an ex parte order issued in New Mexico.

Plaintiff appeals the trial court's judgment dismissing Plaintiff's claims for monetary damages on the basis of Defendants' qualified immunity. Plaintiff also appeals the trial court's finding that Plaintiff failed to prove that she was entitled to declaratory relief for the constitutional rights violated in connection with her claims regarding Defendants' false affidavit and extraterritorial seizure. On cross-appeal, Defendants object to the trial court's denial of their motion for summary judgment on the ground of absolute immunity.

Plaintiff raises three issues on appeal: (1) whether the trial court erred in granting qualified immunity regarding the affidavit underlying the ex parte order, (2) whether the trial court erred in granting qualified immunity regarding the extraterritorial execution of the ex parte order, and (3) whether the trial court abused its discretion in denying declaratory relief. Defendants raise one issue on cross-appeal: whether the trial court erred in finding as a matter of law that Defendants are not entitled to absolute immunity. Since we affirm the trial court on the three issues raised by Plaintiff in the appeal, we need not address the issue raised by Defendants on cross-appeal, and thus we leave for another day the question of whether Defendants are protected by absolute immunity for their acts complained of in this case.

FACTS

The HSD initiated an investigation of sexual abuse of Plaintiff's six-year-old son based on reports of suspected child abuse from consulting diagnostician Ginger Guthrie Reed at the child's school and from clinical social worker Margo Brace. Brace was unable to rule out either parent as the perpetrator of the abuse, based upon the information supplied by Reed and upon Brace's initial interview of the child. Therefore, further investigation was required, and Plaintiff agreed to a follow-up interview with Brace. However, Plaintiff left New Mexico, failing to go to the battered women's shelter in Albuquerque, where she had informed Brace and the HSD she intended to go. Instead, Plaintiff took the child to a shelter for battered women in California without notifying Brace or the HSD of her or the child's whereabouts.

On June 27, 1985, the HSD filed a neglect and abuse petition and an affidavit for an ex parte custody order based on (1) the initial report of sexual abuse from the child's school; (2) subsequent interviews conducted by Brace with the child, both his parents, his maternal grandmother, and a neighbor; and (3) Plaintiff's unexplained flight to California with her son during the HSD's investigation of sexual abuse of the child. Defendant Adams (the HSD attorney) helped prepare the petition and affidavit, and the affidavit was signed by Defendant Millington (the social worker). The next day, Judge Petra Jimenez Maes issued an ex parte order from the state of New Mexico to "any officer authorized to execute this order." The order directed that the child be turned over to the custody of the New Mexico HSD. Prior to Defendant Millington's journey to California, she communicated with the Laguna Beach Police Department to find out how to properly execute a New Mexico order in California. She was informed that the California police would accept and execute a valid New Mexico order. On July 1, 1985, Defendant Millington, accompanied by two California police officers, took custody of the child at the women's shelter. Plaintiff was given a copy of the ex parte order at that time. Defendant Millington returned to New Mexico with the child on the same day.

Prior to the time Defendant Millington sought the ex parte custody order, she was advised by Defendant Adams to refer the matter to the appropriate California social service authorities. Defendant Millington did contact the California authorities and was told that they would take no action in the case inasmuch as the abuse had occurred in New Mexico and had not recurred since the child was in the protective environment of the shelter. Because Plaintiff and the child could not stay at the shelter indefinitely and because Defendants were still concerned about the child's welfare and safety, they initiated the New Mexico proceedings, and Defendant Millington went to California as stated.

Upon Plaintiff's return to New Mexico, she filed a petition for writ of prohibition and writ of habeas corpus in the New Mexico Supreme Court. Although the Court granted the writ of prohibition, it allowed the HSD to keep custody of the child and remanded the matter to the trial court. Plaintiff eventually entered into a consent decree, at the completion of which full custody of the child was returned to her.

QUALIFIED IMMUNITY

Government officials are entitled to summary judgment on the ground of qualified immunity, provided that their actions are objectively reasonable in the light of clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982); see also Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987). The issue of qualified immunity is a legal issue that is to be decided prior to trial so that the immunity, which is an immunity from suit, is not lost. Jennings v. Hinkle, 115 N.M. 387, 392-93, 851 P.2d 509, 514-15 (Ct.App.1993).

Affidavit for the Ex Parte Order

Plaintiff's assertion that the trial court erred in granting Defendants summary judgment on the issue of qualified immunity regarding the filing of the affidavit appears to be two-fold. First, Plaintiff contends that Defendants affirmatively lied in misrepresenting that the child was in danger. See generally Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Snell v. Tunnell, 920 F.2d 673 (10th Cir.1990), cert. denied, 499 U.S. 976, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991). Second, Plaintiff asserts that Defendants showed a reckless disregard for the truth by omitting the following allegedly "critical facts" from the affidavit: (1) all available information that could have possibly supported a conclusion that the perpetrator of the sexual abuse was male rather than female; (2) all available information that would support the conclusion that the child was not in danger and that Plaintiff was mentally stable enough to care for the child; and (3) the fact that Plaintiff herself had reported an incident to the California shelter staff regarding the child's inappropriate fondling of Plaintiff's breasts. See generally Jennings v. Hinkle.

It was well established in 1985 that the intentional falsification or reckless disregard for truthfulness regarding material facts in an affidavit to support probable cause for issuance of a search warrant violates Fourth Amendment rights. See Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676. By 1985, the law was also clearly established that the omission of material facts undermines probable cause and violates the Fourth Amendment. Salmon v. Schwarz, 948 F.2d 1131, 1137-38 (10th Cir.1991); see United States v. Williams, 737 F.2d 594, 604 (7th Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). It is Plaintiff's burden to show that Defendants intentionally falsified the affidavit or deliberately omitted a material fact or facts that would have changed the probable cause determination for the ex parte custody order. See Jennings, 115 N.M. at 390-92, 851 P.2d at 512-14; see also Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85; Snell, 920 F.2d at 698.

Plaintiff cites to no evidence that supports her bare assertion that Defendant Millington lied in the affidavit to retaliate for Plaintiff's leaving for California without informing the HSD and for Plaintiff's failure to return Defendant Millington's phone calls. Instead, the record indicates that Plaintiff's failure to return the HSD's calls could reasonably have compounded the HSD's concerns about the welfare of the child, given the fact that Plaintiff had fled the state of New Mexico with the child in the middle of an HSD abuse investigation without notifying the HSD. Nor are we persuaded by the argument that the attorney's, Defendant Adams', admission that HSD employees "weight" affidavits to satisfy the probable cause requirements constitutes reckless disregard for truthfulness.

Allegations of negligence or innocent mistakes are insufficient to establish intentional or reckless falsification. Franks, 438 U.S. at 171, 98 S.Ct. at 2684. A determination of qualified immunity does not require that Defendants include every piece of information both favorable and unfavorable to a finding of probable cause; rather, Defendants are required to include facts that are material to a probable...