United States District Court, E.D. California
EDWARD OLVERA, CARLA DE ROSE, Individually and as Guardian Ad Litem for AND-O, CHD-O, COD-O, SD-O, AGD-O, GD-O, RD-O, minor children, SUSAN MORRISON, KELLY MEIS, Plaintiffs,
COUNTY OF SACRAMENTO, JEANINE LOPEZ, FERMINE PEREZ, JENNIFER CULLIVAN, BRYAN JONES, ROBIN ROGERS, KEEVA PIERCE, VERONICA CARILLO, STEPHANIE LYNCH, LYNN FRANK, SOLLA, LAURA COULTHARD, and Does 1 through 20, Defendants
Filed March 19, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Edward Olvera, Plaintiff: Dennis Ingols, Robert Ross Powell, LEAD ATTORNEYS, Law Offices of Robert R. Powell, San Jose, CA; Brett O. Terry, Law Offices Of Robert R Powell, San Jose, CA; Ronald R. Haven, Shepard and Haven, LLP, Sacramento, CA.
For Carla De Rose, Susan Morrison, Kelly Meis, AND-O, guardian ad litem, Carla De Rose, CHD-O, guardian ad litem, Carla De Rose, COD-O, guardian ad litem, Carla De Rose, SD-O, guardian ad litem, Carla De Rose, AGD-O, guardian ad litem, Carla De Rose, GD-O, guardian ad litem, Carla De Rose, RD-O, guardian ad litem, Carla De Rose, Plaintiffs: Robert Ross Powell, LEAD ATTORNEY, Law Offices of Robert R. Powell, San Jose, CA; Brett O. Terry, Law Offices Of Robert R Powell, San Jose, CA; Ronald R. Haven, Shepard and Haven, LLP, Sacramento, CA.
For County of Sacramento, Jeanine Lopez, Fermine Perez, Jennifer Cullivan, Bryan Jones, Robin Rogers, Keeva Pierce, Veronica Carillo, Stephanie Lynch, Lynn Frank, Solla, Laura Coulthard, Department of Health and Human Services, Child Protective Services, Wendy Christian, Eva Schrage, Program Manager for D.H.H.S., Fred DeMartin, Program Manager at D.H.H.S., Joni Edison, Program Manager for D.H.H.S., Kim Pearson, Division Manager for D.H.H.S., Melinda Lake, Division Manager for D.H.H.S., Patti Gilbert-Driggs, Program Manager for D.H.H.S., Defendants: Mark Peter O'Dea, LEAD ATTORNEY, Longyear, O'dea & Lavra, LLP, Sacramento, CA.
For Lisa Travis, County Counsel, Defendant: Carol A Wieckowski, LEAD ATTORNEY, Daniel P Jay, Evans, Wieckowski & Ward, Sacramento, CA; Cathleen Janel Fralick, LEAD ATTORNEY, Evans, Wieckowski, and Ward, Sacramento, CA.
For Chris Guillone, County Counsel, Defendant: Carol A Wieckowski, LEAD ATTORNEY, Evans, Wieckowski & Ward, Sacramento, CA; Cathleen Janel Fralick, LEAD ATTORNEY, Evans, Wieckowski, and Ward, Sacramento, CA.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO APPOINT GUARDIAN AD LITEM
WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE.
Plaintiffs brought this civil rights action under 42 U.S.C. § 1983 against defendants the County of Sacramento, the Department of Health and Human Services (" DHHS" ), Child Protective Services (" CPS" ), CPS employees, and Sacramento County counsel based on an investigation by CPS and the removal of a minor child from plaintiffs Edward Olvera and Carla DeRose's home. Presently before the court are two motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 and plaintiffs' motion to appoint a guardian ad litem for the minor children plaintiffs pursuant to Rule 17.
I. Factual and Procedural Background
Plaintiffs and spouses Olvera and DeRose are licensed marriage and family therapists and are the natural parents of minor plaintiff RD-O. As of December 2008, Olvera and DeRose were the adoptive parents of minor plaintiffs SD-O, COD-O, and GD-O, were in the process of adopting minor plaintiffs AGD-O and AND-O, and had filed an incomplete adoption request for the adoption of minor plaintiff CHD-O. Until Olvera and DeRose adopted CHD-O on May 24, 2010, his adoptive parents were plaintiffs Susan Morrison and Kelley Miess.
In 2006, Olvera and DeRose began a therapeutic program in their home for adopted children suffering from severe emotional, psychological, and behavioral disorders in which the children lived in the Olvera/DeRose home and received treatment and education. In November 2007, Olvera and DeRose purchased a larger home and enrolled more children in their full-time, in-home program.
In December 2008, CPS received a report from a mandatory reporter that a child named Russell claimed he was subject to abuse when he previously lived in the Olvera/DeRose home. Based on this report, CPS began an investigation and the case was assigned to defendant Jeannine Lopez. On December 19, 2008, Lopez interviewed several children living in the Olvera/DeRose home at their school and, later that evening, went to the Olvera/DeRose home with defendant Claudia Solla and two police officers to interview other children residing at the home. Plaintiffs allege that the interviews on December 19, 2008, were performed without consent in violation of the Fourth Amendment. Defendant Wendy Christian, a CPS employee, also returned to the Olvera/DeRose home on January 6, 2009, and allegedly entered the home without consent in violation of the Fourth Amendment.
Based on Lopez's investigation and discussions during several " staffings" with CPS employees and County counsel, it was decided that Lopez would seek a protective custody warrant for the removal of AGD-O, AD-O, and CHD-O from the Olvera/DeRose home. To seek the removal of CHD-O, Lopez began drafting an application for a protective custody warrant (" PCW" ), which may have been edited by defendant Eva Schrage and County counsel defendants Lisa Travis and Christopher Guillon. Plaintiffs allege that the PCW for the removal of CHD-O contained misrepresentations and omitted exculpatory evidence in violation of the Fourth Amendment. The juvenile court ultimately issued a protective custody warrant for the removal of CHD-O, but denied the applications for protective custody warrants for the removal of AGD-O and AD-O.
Pursuant to the protective custody warrant, CHD-O was removed from the Olvera/DeRose home on February 5, 2009, and placed in foster care while contested detention hearings were conducted. Ultimately, a settlement agreement was reached in which CHD-O was allowed to return to the Olvera/DeRose home under certain conditions.
In their Third Amended Complaint (" TAC" ), plaintiffs assert the following eight claims:
1) the minor children plaintiffs' § 1983 claim against Lopez and Solla based on violations of their Fourth Amendment rights;
2) CHD-O's § 1983 claim against all defendants based on violation of his Fourth Amendment right;
3) all plaintiffs' § 1983 claim against all defendants based on violations of their Fourteenth Amendment rights to familial association caused by the removal of CHD-O from the Olvera/DeRose home without procedural due process; 
4) all plaintiffs' § 1983 claim against all defendants based on violations of their Fourteenth Amendment rights to familial association caused by the continued detention of CHD-O and " conspiracy to commit fraud upon the juvenile court and abuse the lawful processes of the court through repeated submissions of false evidence, misrepresentation, and the withholding of exculpatory evidence" without procedural due process, (Third Am. Compl. ¶ 157 (Docket No. 75));
5) all plaintiffs' § 1983 claim against all defendants based on violations of their First Amendment rights of association;
6) all plaintiffs' state law claim for intentional infliction of emotional distress against Lopez and Solla;
7) all plaintiffs' state law claim for intentional infliction of emotional distress against all individual defendants; and
8) all plaintiffs' § 1983 claim against all defendants based on violations of their Fourth Amendment rights when Christian entered the Olvera/DeRose home.
The County of Sacramento, DHHS, CPS, and the CPS employee defendants now move for summary judgment on all of plaintiffs' claims pursuant to Rule 56 (" County's motion" ). County counsel defendants Travis and Guillon also seek summary judgment on the claims against them, primarily on the ground of absolute immunity. Plaintiffs have also requested that the court appoint DeRose as guardian ad litem for the minor plaintiffs before addressing any of the minor plaintiffs' claims.
In their opposition to the County's motion, plaintiffs indicate that they waive their fifth claim under § 1983 based on alleged violations of the First Amendment and all claims against defendants Fermine Perez, Laura Coulthard, Lynn Frank, Joni Edison, Keeva Pierce, Stephanie Lynch, Veronica Carrillo, Fred Demartin, Kim Pearson, Patti Gilbert-Driggs, and Melinda Lake. (Pls.' Opp'n to Cnty.'s Mot. at 2:4-11 (Docket No. 146).) Plaintiffs also indicate that they waive all claims based on defendants' alleged conspiracy to retaliate against Olvera based on his alleged prior " whistleblwoing" activity while previously employed with CPS. (Id. at 1:15-17.)
A. Motion to Appoint Guardian Ad Litem
Pursuant to Federal Rule of Civil Procedure 17(c), " [a] minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem." Fed.R.Civ.P. 17(c). Rule 17(c) provides that the " court must appoint a guardian ad litem--or issue another appropriate order--to protect a minor or incompetent person who is unrepresented in an action." Id. Recognizing that a motion to appoint a guardian ad litem should have been filed earlier in this action, plaintiffs now request the court to appoint DeRose as a guardian ad litem for the minor children plaintiffs (AND-O, CHD-O, COD-O, SD-O, AGD-O, GD-O, and RD-O) nunc pro tunc to the date this action was filed. All defendants have filed statements of non-opposition to this request. (Docket Nos. 157 & 158.) Accordingly, the court will grant plaintiffs' motion to appoint DeRose as guardian ad litem for the minor children plaintiffs nunc pro tunc to the date this action was filed.
B. Motions for Summary Judgment
Summary judgment is proper " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which
it will bear the burden of proof at trial. Id.
Once the moving party meets its initial burden, the burden shifts to the non-moving party to " designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must " do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.
In resolving a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." Id.
In relevant part, § 1983 provides,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . .., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress . . . .
42 U.S.C. § 1983. While § 1983 is not itself a source of substantive rights, it provides a cause of action against any person who, under color of state law, deprives an individual of federal constitutional rights or limited federal statutory rights. Id.; Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
In § 1983 actions, " 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 should have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). " The test for qualified immunity is: (1) identification of the specific right being violated; (2) determination of whether the right was so clearly established as to alert a reasonable officer to its constitutional parameters; and (3) a determination of whether a reasonable officer would have believed that the policy or decision in question was lawful." McDade v. West, 223 F.3d 1135, 1142 (9th Cir. 2000). The Supreme Court recently held that a court may assume the existence of a constitutional violation under the first inquiry for purposes of the qualified immunity analysis. Pearson, 555 U.S. at 236.
The clearly established inquiry " serves the aim of refining the legal standard and is solely a question of law for the judge." Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1085 (9th Cir. 2009). To be clearly established, " existing precedent must have placed the statutory or constitutional question beyond debate." Reichle v. Howards, U.S., , 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (internal quotation marks and citation omitted). Whether the unlawfulness of certain conduct is clearly established " depends largely 'upon the level of generality at which the relevant " legal rule" is to be identified.'" Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Anderson v. Creighton, 483 U.S. 635, 639,
107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The right must be defined in a " particularized, and hence more relevant, sense," requiring a court to strike a balance between defining a right too generally so that the definition necessarily leads to the conclusion that the right is clearly established and defining the right too narrowly so that prior precedent must mirror the facts of the case in order to conclude that the right has been clearly established. Saucier v. Katz, 533 U.S. 194, 202-03, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
If the court concludes a right is not clearly established, the official is entitled to qualified immunity. Id. at 202. If a right is clearly established, an official is not entitled to qualified immunity unless a reasonable official would not have known that his conduct violated the clearly established right. See Anderson, 483 U.S. at 640. The reasonableness inquiry recognizes " that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude" that their conduct comports with the Constitution and thus shields officials from liability when their mistake is reasonable. Id. at 641.
While different conclusions can be reached on the clearly established and reasonableness inquiries, the two inquiries are usually intertwined, and the Supreme Court has explained that " [t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202; see also
Messerschmidt v. Millender, __ U.S.__, __, 132 S.Ct. 1235, 1245, 82 L.Ed.2d 47 (2012) (" [W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action, assessed in light of the legal rules that were 'clearly established' at the time it was taken." (internal quotation marks and citation omitted) (alteration in original)); Anderson, 483 U.S. at 640 (" The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." ).
1. First and Eighth Claims Re: Consent
In their first claim, the minor children bring a § 1983 claim against Lopez and Solla based on alleged violations of their Fourth Amendment rights when Lopez and Solla interviewed them on December 19, 2008, without the consent of a parent or guardian.  In their eighth claim for relief, plaintiffs contend Christian violated plaintiffs' Fourth Amendment rights when she entered the Olvera/DeRose home on January 6, 2009, without consent.
Defendants seek summary judgment on the first and eighth claims solely on the ground that, because DeRose consented to the interviews of the minor children on December 19, 2008, and consented to Christian's entry on January 6, 2009,
the interviews and entry comported with the Fourth Amendment. " [T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); see also United States v. Drayton, 536 U.S. 194, 206-07, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (" The Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search. . . . Instead, the Court has repeated that the totality of the circumstances must control, without giving extra weight to the absence of this type of warning." ).
a. December 19, 2008, Interviews
To conduct the interviews at issue, Lopez and Solla went to the Olvera/DeRose home the evening of December 19, 2008, with a third social worker, Nikkita Moorer, and two police officers, Taizo Takahasi and Christopher Lemus. In her deposition, DeRose explained that she objected to the interviews of the children:
Ms. Lopez very forceful1y said that the kids were going to be interviewed and that she didn't need to explain to me what was going on. And obviously when police show up, I mean I'm familiar enough with the system that I got the point that they were probably going to try to detain my kids. So I was then saying, " No, you're not going to interview my kids." . . . I told them no. It was alarming to see that many people on my doorstep. I told them no, I don't want you to interview the kids. And pressure, pressure, pressure by them. And then there was at some point a threat that " We'll take them to the receiving home and interview them." And I said, " Okay. Interview them, but I want to be present." " No, can't do that." " Okay. Interview them, but I want to record." " No, can't do that."
(DeRose Dep. 201:11-202:9.)
Two days after the interviews at issue, DeRose also sent a four-page email to the director of DHHS, Lynn Frank, raising concerns about the interviews:
Within hours, several child abuse investigators and police officers arrived on our door step. Ms. Lopez demanded to interview every child in the house . . . . While I understood the need for further substantiation of information provided by my son, I was not enthusiastic to have further interviews occur in the absence of an attorney or advocate. I asked Ms. Lopez to wait for the arrival of our attorney. She refused. I asked her if the interviews could be recorded. She refused. I told her why I was uncomfortable and she responded with " you have no choice."
(Powell Decl. Ex. JJ (Docket No. 146-9).)
On the other hand, Lopez testified in her deposition that DeRose stated that she was expecting her when they arrived and said it would be " fine" for Solla and Moorer to begin interviewing the children while Lopez talked with DeRose. (Lopez Decl. ¶ ¶ 7-10.) Lopez recalled declining DeRose's request to record Lopez and DeRose's conversation, but does not recall DeRose requesting that an attorney be present. (Id. ¶ ¶ 11-12.)
Although Solla did not have a detailed recollection of conversations between Lopez and DeRose about interviewing the children, she testified that she " think[s] [they] asked if we could interview them," recalls it being " pretty easy," and does not recall Lopez threatening to take the children or DeRose requesting that an attorney be present or the interviews be recorded. (Solla Dep. 83:3-6, 91:5-95:22.) Officer Lemus testified only that it is his
practice to request permission to speak to a child alone, (Lemus Dep. 18:6-15), and Moorer and Officer Takahashi could not recall whether DeRose objected to the interviews. (Moorer Dep. 53:1-24; Takahashi Dep. 22:2-15.)
The parties' accounts of what occurred leading up to the interviews differ drastically. At summary judgment, the court must construe the facts in the light most favorable to plaintiffs and cannot displace the roll of the jury by determining which version is more credible. See Anderson, 477 U.S. at 255. Taking DeRose's account, as depicted through her deposition testimony and email to the DHHS director only two days after the event, the court cannot find, as a matter of law, that DeRose consented to the interviews of the children.  Not only did three social workers arrive at DeRose's home on the evening of December 19, 2008, but two police officers also accompanied the social workers. DeRose testified that, given the presence of the police officers, she thought the children would be taken. After DeRose repeatedly objected to the interviews of the children, she was told that the children would be taken to the receiving home and interviewed there. To avoid having the children removed, DeRose " agreed" to the interviews under certain conditions, which Lopez rejected.
While DeRose ultimately may have " agreed" to the interviews, a reasonable jury could find that she did so only under the threat that the children would be taken if she did not. The Supreme Court has explained that the Fourth and Fourteenth Amendments " require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed."
Schneckloth, 412 U.S. at 228; see also United States v. Winsor, 846 F.2d 1569, 1573 n.3 (9th Cir. 1988) (" As this court has recognized in the situation where police demand entrance to a dwelling, compliance with a [governmental] demand is not consent." (internal quotation marks omitted) (alteration in original)).
Accordingly, because a genuine issue of material fact remains with respect to whether DeRose consented to the interviews of the minor children, the court will deny defendants' motion for summary judgment on the minor children's first claim under § 1983 for alleged violations of their Fourth Amendment rights.
b. January 6, 2009, Entry by Christian
Similar to the interviews on December 19, 2008, the parties' accounts of what occurred before Christian entered the Olvera/DeRose home on January 6, 2009, differ in significant respects. Christian testified that, when Lopez and she arrived at the Olvera/DeRose home, it was clear that DeRose was upset with Lopez and Christian suggested that Lopez wait in the car while she spoke with DeRose. (Christian Dep. 82:1-13.) She further testified that DeRose " ultimately agreed to let me come in the home and invited me in after I agreed to be tape-recorded during our interview." (Id. at 80:25-81:2.) Christian denied that she threatened to have the children removed if DeRose did not speak with her. (Id. at 107:2-4.)
On the other hand, DeRose testified at her deposition that she allowed Christian
in her home under threat that the children would be removed if she did not:
Q: Getting back to when Ms. Christian and Ms. Lopez returned to your house on January the 6th, you ultimately relented and you let Wendy Christian come into your home, did you not? . . .A: I did.Q: And you did that upon the condition that she allow you to tape-record her; correct?A: No. . . .Q: She refused to allow you to tape-record her?A: Yes. . . .Q: Okay. What was the reason that you finally agreed to let her in the house?A: Because there again was a reference that we can --" If you don't cooperate, we can take the kids to the receiving home, we can take the kids." There was always these references of . . . .
(DeRose Dep. 235:24-236:23.)
Defendants do not dispute that, if DeRose's testimony is believed, a jury could find that she did not consent to the entry of her home. Instead, defendants argue that DeRose's prior sworn testimony during the juvenile court proceedings " calls into question" her deposition testimony and " removes any question as to whether or not [she] consented" to Christian's entry of the home. (Cnty.'s Reply at 33:10-34:15.) Specifically, during the juvenile court proceedings on February 18, 2009, DeRose provided the following testimony while under oath:
Q: The second time that Child Protective Services came to the house approximately when was that in relation to the first visit?A: A month, a month-ish, maybe three weeks later. . . .Q: Okay. What happened after the social worker explained the purpose of the visit to you?A: I told her that I didn't feel comfortable with [Lopez] coming in my home, that Miss Christian was welcomed to come in.
(O'Dea Decl. Ex. I at 224:22-225:23.) In arguing that this evidence is sufficient for the court to grant summary judgment, defendants misconstrue the court's role at summary judgment. Although the prior testimony may significantly undermine the credibility of DeRose's deposition testimony, the court cannot displace the role of the jury and assess DeRose's credibility. See Anderson, 477 U.S. at 255 (" Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." ). DeRose's deposition testimony is sufficient to create a triable issue of fact that she did not voluntarily consent to Christian entering her home.
Accordingly, the court must deny defendants' motion for summary judgment on the eighth claim for a violation of the Fourth Amendment as to Christian. Because the parties treat the claim as against only Christian and only Christian entered the home, the court will grant defendants' motion for summary judgment as to all remaining defendants on that claim.
2. Third and Fourth Claims for Violations of the Fourteenth Amendment Rights to Familial Association
a. Olvera and DeRose's Rights to Familial Association
In their third and fourth claims, Olvera and DeRose assert that particular defendants violated their Fourteenth Amendment rights to familial association based on CHD-O's removal on February 5, 2009,
and continued detention for fourteen days following the removal. Olvera and DeRose claim that their rights to familial association derive from their status as " de facto parents" or " prospective adoptive parents" of CHD-O under California law.
" [F]reedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). " There does exist a 'private realm of family life which the state cannot enter,' that has been afforded both substantive and procedural protection." Smith v. Org. of Foster Families For Equality & Reform, 431 U.S. 816, 842, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (internal citation omitted). Traditionally, these rights have extended to only biological parents. See id. at 843-44 (" [T]he usual understanding of 'family' implies biological relationships, and most decisions treating the relation between parent and child have stressed this element. . . . [But n]o one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship." ).
" [T]here is no question that parents have a constitutionally protected liberty interest in making decisions about the care, custody, and control of their children." Miller v. California, 355 F.3d 1172, 1175 (9th Cir. 2004). " The constitutional right of parents and children to live together without governmental interference is well established [and t]he Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies." Mabe v. San Bernardino Cnty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001). " Where procedural due process must be afforded because a 'liberty' or 'property' interest is within the Fourteenth Amendment's protection, there must be determined 'what process is due' in the particular context."
Smith, 431 U.S. at 847.
With parents, " the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in 'this Nation's history and tradition.'" Id. at 845. Unlike those intrinsic rights and similar to foster parents, any rights Olvera and DeRose assert as de facto parents or prospective adoptive parents derive entirely from state law. " While the Court has recognized that liberty interests may in some cases arise from positive-law sources, in such a case . . . it is appropriate to ascertain from state law the expectations and entitlements of the parties." Id. at 845-46 (internal citation omitted). While the court must look to state law to determine " the expectations and entitlements of the parties," id. at 846, the question of whether any liberty interest created by state law is protected under the federal Due Process Clause is a question of federal law. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 757, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (" Although the underlying substantive interest is created by an independent source such as state law, federal constitutional law determines whether that interest rises to the level of a legitimate claim of entitlement protected by the Due Process Clause." (internal quotation marks and citations omitted)).
1. De Facto Parents
California Rules of Court provide that a " de facto parent" is " 'a person
who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period.'" In re Patricia L., 9 Cal.App.4th 61, 66, 11 Cal.Rptr.2d 631 (4th Dist. 1992) (quoting Cal. Rules of Court 1401(a)(4)). " The concept of a de facto parent was judicially created to recognize limited rights in dependency cases for a person who has been found by the juvenile court to have assumed on a day-to-day basis the role of a parent, fulfilling the child's physical and psychological needs for a substantial period of time." R.H. v. Superior Court, 209 Cal.App.4th 364, 371, 147 Cal.Rptr.3d 8 (4th Dist. 2012). The purpose of de facto parent status is to enable " very important persons in the minor's life" to assert their interests in the " companionship, care, custody and management of the child" during a dependency proceeding and provide the court with " critical information relating to the child's best interests." In re Patricia L., 9 Cal.App.4th at 66 (internal quotation marks and citation omitted). " A person seeking de facto parent status must file a written application and establish by a preponderance of the evidence that he or she falls within the definition of a de facto parent." Id. at 67.
Here, Olvera and DeRose concede that they were not designated de facto parents by a juvenile court, but nonetheless argue that, " in every relevant sense," that is what they were. (Pls.' Opp'n to Cnty.'s Mot. at 90 n.49.) Plaintiffs have not cited any authority, however, for treating them as de facto parents under California law in the absence of having sought and received that status by a juvenile court. Even assuming a juvenile court could have granted Olvera and DeRose de facto parents status, a de facto parent's rights under California law " are not equated" with the rights of parents and are limited to being present, having retained or appointed counsel, and presenting evidence in a dependancy proceeding. R.H., 209 Cal.App.4th at 371-72 (internal quotation marks and citation omitted); see also In re Kieshia E., 6 Cal.4th 68, 76, 23 Cal.Rptr.2d 775, 859 P.2d 1290 (1993) (" Within its limited scope, the doctrine of de facto parenthood has since been liberally applied to ensure that all legitimate views, evidence, and interests are considered in dispositional proceedings involving a dependent minor." (emphasis added)); In re Joshuia S., 205 Cal.App.3d 119, 122, 252 Cal.Rptr. 106 (4th Dist. 1988) (" [T]he mother is placing too much significance in the status of de facto parent. The granting of such status does not automatically confer custody of the minor dependent child on persons recognized as de facto parents . . . ." ).
In Miller, grandparents, who had been granted de facto parent status by the juvenile court, argued that they had a substantive due process right to family integrity under the Fourteenth Amendment because " they had assumed the role of parents to their grandchildren by providing for their care, comfort, and protection as well as their physical and psychological needs for a substantial period of time." Miller, 355 F.3d at 1175. The Ninth Circuit rejected the grandparents' claim that their status as de facto parents " under California law for purposes of the juvenile court proceedings create[d] a liberty interest in contact with the children." Id. at 1176. After recognizing the limited rights de facto parent status provides during dependency proceedings, the court concluded, " being de facto parents simply gave the [grandparents] the right to appear in the proceeding . . . . It conferred no other, or weightier interest of constitutional dimension." Id.
Accordingly, because de facto parent status is insufficient to give rise to a liberty interest cognizable under the Fourteenth Amendment, Olvera and DeRose's reliance on their status as being akin to de facto parents is unavailing. Moreover, even if a relationship akin to de facto parents could give rise to a liberty interest under the facts of this case, plaintiffs have not shown that any such right was clearly established at the time CHD-O was removed and detained, thus defendants would be entitled to qualified immunity under such a theory.
2. Prospective Adoptive Parents
Olvera and DeRose next contend that they had a liberty interest in their continued companionship with CHD-O as prospective adoptive parents under California law. On December 22, 2008, Olvera filed an Adoption Request form and Parental Consent to Adoption form with the Del Norte County Superior Court. (O'Dea Decl. Ex. B; Olvera Dep. 321:5-23.) The Adoption Request Form checked box 16, which states, " I will ask the court to end the parents rights of [blank]," but does not identify Morrison, Miess, or any individuals in the blank area provided. (O'Dea Decl. Ex. B.) The Parental Consent to Adoption form was also completed erroneously in that it states, " I/we, being the parents of [CHD-O] . . . give my/our full and free consent to the adoption of said child by Susan E. Morrison and Kelly B. Miess." (Id. Ex. A.)
It is undisputed that the Adoption Request form was also incomplete because it did not attach a copy of an Independent Adoption Placement Agreement as provided for in the Adoption Request form. (See id. Ex. A at 2 (indicating that a copy of the Independent Adoption Placement Agreement is attached to the form and was signed by all persons with parental rights); Olvera Dep. 322:3-324:9.) Olvera testified that Morrison and Miess had not signed an Adoption Placement Agreement before February 5, 2009. (Olvera Dep. 250:5-8.)
Under California law, a child must be " placed for adoption" prior to the filing of an adoption request. See Cal. Fam. Code § 8802. Completion of an Independent Adoption Placement Agreement was necessary in order for CHD-O to have been " placed" with Olvera and DeRose for adoption under California law. Specifically, Family Code section 8539 provides,
" Place for adoption" means, in the case of an independent adoption, the selection of a prospective adoptive parent or parents for a child by the birth parent or parents and the completion of an adoptive placement agreement on a form prescribed by the department by the birth parent or parents placing the child with prospective adoptive parents.
Cal. Fam. Code § 8539 (emphasis added); see also Cal. Fam. Code § 8801.3 (detailing additional requirements before a child can be " considered to ...