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Marshall v. County of San Diego

California Court of Appeals, Fourth District, First Division

July 22, 2015

RITA MARSHALL, Plaintiff and Appellant,
v.
COUNTY OF SAN DIEGO et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court No. 37-2008-00085115-CU-CR-CTL of San Diego County, Ronald S. Prager, Judge.

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COUNSEL

Law Offices of Shawn A. McMillan, Shawn A. McMillan, Stephen D. Daner and Samuel H. Park for Plaintiff and Appellant.

Thomas E. Montgomery, County Counsel and David L. Brodie, Deputy County Counsel for Defendants and Respondents.

OPINION

AARON, J.

I.

INTRODUCTION

Shortly after his birth in 2003, the County of San Diego Health and Human Services Agency (the Agency) placed a dependent child named J.J. with appellant Rita Marshall. Marshall cared for J.J. for two and a half years and began the process of adopting him. However, in June 2006, the Agency commenced proceedings that led to J.J.'s removal from Marshall's care and his placement in another home for adoption.

Marshall filed this action against the County of San Diego (the County) and several County social workers who were involved in the proceedings that led to J.J.'s removal. In the causes of action relevant to this appeal, Marshall brought two claims pursuant to 42 United States Code section 1983 (hereafter section 1983) against the social workers in which she claimed that the social

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workers violated her right to due process in removing J.J. without providing her adequate notice and an opportunity to be heard, and in making deliberately false statements to the trial court that led to the removal. Marshall also brought a section 1983 claim against the County, alleging that the social workers violated her constitutional rights pursuant to a County custom or policy.

In summary judgment proceedings, the trial court concluded that the social workers were entitled to qualified immunity with respect to Marshall's claims against them because there was no evidence from which a reasonable jury could find that the social workers had violated Marshall's "clearly established" constitutional rights. (Carroll v. Carman (2014) 574 U.S. ___ [190 L.Ed.2d 311, 135 S.Ct. 348, 350] (Caroll).) ["A government official sued under § 1983 is entitled to qualified immunity unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct"].) The court also concluded that the County was entitled to judgment as a matter of law with respect to Marshall's section 1983 claim.

On appeal, Marshall contends that the trial court erred in granting summary judgment for the County and the social workers. With respect to Marshall's claims based on the social workers having purportedly made deliberately false statements to the trial court, we conclude that Marshall had a clearly established constitutional right not to have J.J.'s placement terminated based on a social worker's statement that was either deliberately false or made with reckless disregard for its truth. However, we further conclude that the social workers are entitled to qualified immunity with respect to Marshall's claims premised on this theory of liability because there is no evidence from which a reasonable jury could find that J.J.'s placement with Marshall was terminated based on statements that were either deliberately false or made with reckless disregard for their truth. We also reject the remainder of Marshall's other claims, and affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. J.J. is placed in Marshall's

J.J. was born in November 2003. Within days of his birth, the trial court declared J.J. a dependent of the court and the Agency placed him with Marshall.

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In June 2004, Marshall informed the Agency that she wanted to adopt J.J. Throughout his placement with Marshall, respondent Noreen Harmelink, the primary social worker assigned to J.J., reported to the trial court that J.J. was doing well in Marshall's home.

2. Marshall initiates the adoption process for J.J.

The court terminated the parental rights of J.J.'s birth parents in May 2005, and, in November 2005, entered an order setting adoption as J.J.'s permanent plan. In December 2005, the Agency received forms from Marshall requesting to initiate the adoption process for J.J.

Agency adoptions applicant worker Elizabeth Edwards met with Marshall in March 2006 to begin the adoption homestudy process. Edwards gave Marshall forms to fill out and return, including the formal "Application to Adopt" form. Marshall never returned the forms.

3. The Agency seeks to remove J.J. from Marshall's home

On June 19, 2006, respondent Linda Johanesen, the Agency social worker for two other children placed in Marshall's home, K.B. and C.B., verbally informed Marshall that the Agency was planning to remove K.B., C.B. and J.J. from Marshall's home. On June 26, Marshall filed an objection to the Agency's proposal to remove J.J. with the trial court.[1] Marshall also requested that the court formally designate her as J.J.'s prospective adoptive parent.

Johanesen and her supervisor, respondent Robin Thompson, filed an ex parte application on June 28, 2006 to remove J.J. from Marshall's home.[2] The June 28 ex parte application stated in relevant part:

"The Agency received two recent CPS [Child Protective Services] referrals on the [Marshall] home for physical discipline. Currently, there are 11 total referrals and have been 11 holds placed on this home. This home is currently on hold. [Marshall] has not complied with requests for the adoptive homestudy and her homestudy has been closed as unapproved.

"Recent psychological evaluations recently performed on two other children in this home recommend that the caregiver's [sic] received [sic] psychoeducation to develop appropriate discipline strategies. It is the Agency's position that [Marshall] will not comply with the recommendation since

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she has not complied with the requirements for the adoptive homestudy. Attached is the Addendum Report for [C.B.] and [K.B.] who also reside in this home.... The Agency is asking to remove these children also. [Marshall] has been given the proper [statutory] notice. [Marshall] has made no attempt to contest the children's removal."

That same day, June 28, the trial court granted the application and vacated J.J.'s placement with Marshall, effective that day.[3]

4. The July 20 hearing

The trial court held a hearing on July 20 on Marshall's objection to the removal and request to be designated J.J.'s prospective adoptive parent. Just before the hearing began, Harmelink gave Marshall a copy of a July 20 addendum report that outlined the reasons for the Agency's request that the court reaffirm its decision to vacate J.J.'s placement with Marshall.

In the report, in support of its removal recommendation, the Agency noted that there had been a recent referral alleging physical abuse on a child in Marshall's home, and that there had been 11 different child abuse referrals since 2001, which had resulted in 11 different "holds" on Marshall's home. The report also stated that Marshall "typically maintains six [foster] children in her care, " that the children were often young and with special needs, and that Marshall "works full time." The report stated that Marshall appeared to be "stretched beyond her capability to be physically and emotionally available to the children in the manner one would anticipate from an adopting caregiver." The Agency also noted that K.B. and C.B. had recently undergone psychological evaluations, and that the psychologist had "expressed concerns regarding the care these children have received in [Marshall's] home." The report also stated that Marshall had failed to follow through with the adoptive homestudy process with J.J.

The trial court briefly adjourned the hearing in order to give Marshall time to read the addendum report. After the brief recess, the court resumed the hearing. At the conclusion of the hearing, the court entered an order overruling Marshall's objection to the removal. The court also rejected Marshall's request to be designated J.J.'s prospective adoptive parent.

5. Additional proceedings

Marshall filed a writ petition in this court seeking review of the July 20 order. While Marshall's writ petition was pending, the Agency removed J.J. from Marshall's home and placed him in a new home.

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On October 25, 2006, this court issued an opinion vacating the trial court's July 20 order. (Rita M. v. Superior Court (Oct. 25, 2006, D049099) [nonpub. opn.] (Rita M. I).) The court concluded that Marshall was "not provided sufficient notice that J.J. would be removed and [Marshall] would not be approved to adopt him" (ibid.), and ordered that Marshall be provided a new hearing "where she will have an adequate opportunity to address the Agency's concerns about her care of J.J." (Ibid.) Apparently unaware that the Agency had removed J.J. from Marshall's home between the time Marshall filed her writ petition and the time of oral argument on the petition, [4] this court stated, "No change of J.J.'s current placement is required pending this hearing." (Ibid.)

On remand, approximately seven months later, the trial court held a new hearing and concluded that removing J.J. from his new adoptive home would not be in his best interest.[5] Marshall filed a second writ petition in which she contended that the trial court erred in failing to place J.J. in her home for adoption. This court denied Marshall's petition. (Rita M. v. Superior Court (Sept. 21, 2007, D051025) [nonpub. opn.] (Rita M. II).)

B. Procedural history

1. The complaint

Marshall filed a complaint in June 2008 against the County and various County social workers, including Thompson, Johanesen, and Harmelink (we refer to Thompson, Johanesen, and Harmelink collectively as "the social workers").[6]

As relevant to this appeal, Marshall brought claims pursuant to section 1983 against both the social workers and the County.[7] Marshall's claims against the social workers alleged ...


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