In Capp v. County of San Diego, published August 30, 2019, the 9th Circuit affirmed in part and reversed in part a district court order granting a motion to dismiss a 42 U.S.C. section 1983 suit by a father and his children against the defendant county and some of its social workers. The complaint alleged that the county's Health and Human Services Agency received a referral that the minor children might be at risk of neglect and emotional abuse by the plaintiff father. A social worker allegedly interviewed the children at school without the father's consent, then interviewed the father. The father sent a letter to the agency criticizing the interview and the allegations. The complaint alleges that the agency instructed the children's mother to apply ex parte to take custody of the children from the father. The court rejected the application and rebuked the agency. The father allegedly spoke to the head of the agency, who assured him the case would be closed. The father then received a letter from the agency stating that the allegations against him were substantiated, and that the father had been placed on the Child Abuser Index. He was later informed that in fact he was never placed on the index. The complaint alleged that the agency acted in retaliation for the father's criticism of his interview, and violated his First Amendment rights and Fourteenth Amendment right to famial association. The complaint further alleged that the interviews with the children violated their Fourth Amendment rights. The court dismissed all claims.
In reviewing the First Amendment claim, the court focused on the coerced ex parte application, since the father was never actually placed on the Child Abuser Index. Because the facts pleaded indicated both a lack of substantiated concern for the children's welfare and treatment different from other, similar cases, the father pleaded facts that would support an inference of retaliatory animus behind the defendant social worker's actions. The threat of having the children taken away would have chilled a reasonable person. Although the case would likely to be close, and the court emphasized the liberal pleading standard applied to pro se complaints, the court concluded that the father pleaded a claim for first amendment retaliation. Since the law clearly established the right to be free from government action that would not have occurred but for retaliatory animus, the claim was not barred by qualified immunity. But the facts pleaded were insufficient to state a claim under the Fourth Amendment for the children's interviews (particularly since the mother could have consented to them). Further, the defendants would be entitled to qualified immunity as to the Fourth Amendment claim, because right of minor children to be free from unconstitutional seizures and interrogations by social workers has not been clearly established. The plaintiffs also failed to state a plausible claim for violation of the Fourteenth Amendment, since the father did not actually lose custody of his children.
Comments