Ellen Keates; A. K., a minor, through her parent and guardian Ellen Keates, Plaintiffs-Appellants,
Michael Koile; Karen Howard; Gillian Vanesse; Rita Gomez; Sarah Jenkins; Kimberly Pender; Joanna Lensche; and Steve Rountree, individually as employees with the State of Arizona Child Protective Services; Clarence H. Carter, individually as Director, Arizona Department of Economic Security; State of Arizona, a political entity; Unknown Parties, John and Jane Does 1-5; Black Entities 1-5, Defendants-Appellees.
and Submitted December 4, 2017 San Francisco, California
from the United States District Court for the District of
Arizona D.C. No. 2:15-cv-01270-NVW Neil V. Wake, District
Morris (argued) and DeeAn Gillespie Strub, Gillespie Shields
Durrant & Goldfarb, Phoenix, Arizona, for
B. Bowen (argued), Assistant Attorney General; Mark Brnovich,
Attorney General; Office of the Attorney General, Phoenix,
Arizona; for Defendants-Appellees.
Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit
Judges, and John D. Bates, [*] District Judge.
panel affirmed in part and reversed in part the district
court's dismissal of an action against Child Protective
Services officers and employees alleging constitutional
violations arising from defendants' actions in removing a
minor child A.K. from her mother's custody following
A.K.'s hospitalization for depression and suicidal
ideation, and remanded.
panel held that this Circuit's case law clearly
establishes that the rights of parents and children to
familial association under the Fourteenth, First, and Fourth
Amendments are violated if a state official removes children
from their parents without their consent, and without a court
order, unless information at the time of the seizure, after
reasonable investigation, establishes reasonable cause to
believe that the child is in imminent danger of serious
bodily injury, and the scope, degree, and duration of the
intrusion is reasonably necessary to avert the specific
injury at issue.
panel held that the district court erred in dismissing the
familial association claim against defendants Koile and
Pender on the basis of qualified immunity. The panel held
that the operative complaint alleged sufficient facts to
establish that defendants violated plaintiffs'
constitutional rights to familial association. The panel
further determined that a reasonable official in
defendants' position would have known that the available
information did not establish reasonable cause to believe
that A.K. was in imminent danger of attempting to commit
suicide, or that it was necessary to separate her from her
mother, transfer her to a treatment center, and continue to
detain her after medical professionals concluded she was a
low suicide risk.
panel held that the district court did not err by dismissing
plaintiffs' judicial deception claim. The panel
determined that it could not say that defendant's
statement in the dependency petition was a deliberate
falsehood or constituted judicial deception in light of the
specific context of the case.
panel held that there was sufficient evidence to make a
plausible allegation that defendants Lensche and Rountree
were integral participants in violating plaintiffs'
constitutional rights. As to the claims against four other
defendants, the panel held that the complaint did not offer
any plausible allegation that the defendants participated in
the decision to interfere with plaintiffs' constitutional
rights, and therefore the district court did not err in
dismissing those claims.
the panel held that the complaint did not allege that the
Director of the Arizona Department of Economic Security was
directly involved in the allegedly unconstitutional conduct
or that he had knowledge of the constitutional deprivations
and acquiesced in them. The panel held that plaintiffs'
conclusory allegations that the unconstitutional policies and
procedures caused the unconstitutional conduct did not
suffice to state a claim of supervisory liability.
Keates and her minor child, A.K., appeal the dismissal of
their claims against Michael Koile and other officers and
employees of what was then the Child Protective Services
(CPS) division of the Arizona Department of Economic Security
(ADES), which allege (among other things) violations of
Keates's and A.K.'s constitutional rights to familial
association. These claims all stem from CPS's
actions to remove A.K. from her mother's custody
following A.K.'s hospitalization for depression and
suicidal ideation. We conclude that certain of Keates's
and A.K.'s claims against the defendants who allegedly
participated in the interference with familial association
withstand the motion to dismiss.
operative complaint includes the following factual
allegations. In May 2013, A.K. was thirteen years old and had
been experiencing depression for four to six months, and
"[o]n occasion, she had suicidal ideations." Ellen
Keates is the mother of A.K. On May 20, 2013, Keates took
A.K. to Christ Cares Clinic where A.K. told an employee that
she was sad and had contemplated suicide in the past, but
stated that she was not currently experiencing suicidal
ideation. The clinic employee referred A.K. to the emergency
room at Phoenix Children's Hospital (PCH), where A.K. was
seen by a triage nurse and a doctor who ordered a
psychological consultation and evaluation by a social worker.
from the triage nurse at PCH stated that A.K. expressed
feeling sad and depressed, admitted to having suicidal
ideation, "but denied having a plan to carry it
out." Several hours later, Randy Call, a PCH employee,
and Julie Kaplan, a PCH social worker, told Keates that A.K.
could go home if Keates provided a safety plan for A.K.
Keates offered several options, including having A.K. stay
home with her twelve-year old brother, having A.K. stay with
a neighbor, or dropping A.K. off at the public library. Call
and Kaplan rejected these options. Keates explained that she
was self-employed and staying at home would cost her some
business, but Keates nevertheless said she would stay home
and Kaplan then informed Keates that the decision had been
made to prevent A.K. from going home with Keates, and that
she was required to go to a mental hospital for inpatient
treatment. Keates stated that she lacked health insurance to
pay for inpatient treatment. When Call, Kaplan, or another
hospital staff person asked Keates for her contact
information, Keates said she was "unwilling to give PCH
agents information that could lead [her] to being billed for
an unnecessary, and increasingly costly, stay at PCH."
Keates "furiously expressed her concern" to
hospital staff that "PCH was going to hold A.K. hostage
until PCH received information to bill [her]."
Nevertheless, while talking to Call and Kaplan, Keates did
provide her name, phone number and other contact information.
point after Keates had refused to provide contact information
for billing, "someone" from PCH called CPS to
report that "A.K. was suffering severe
depression and had attempted a suicide by strangulation on
May 20, 2013." PCH staff told CPS that "inpatient
care was necessary"-although they had previously told
Keates it was merely recommended-and that Keates "was
not able to enact a safety plan." Kaplan subsequently
wrote a report stating that "[b]ecause mother refused to
provide any identifying information, other than
[patient's] name, CPS report was made during assessment
for fear that mother would take [patient] and leave."
Randy Call spoke to or was referred to CPS employees Joanna
Lensche and Steve Rountree. CPS employees Michael Koile, Kim
Pender, and Gillian Vanesse were also involved early in the
end of the discussion among Keates and PCH staff, Kaplan told
Keates that A.K. would be reassessed in the morning and that
Keates should go home and call PCH for the results of the
second assessment the next day. Keates went home, but when
she called the next morning, May 21, she was told "there
would be no second assessment and that CPS had told PCH that
Ms. Keates was not to have any contact with A.K. and was not
to come back to PCH."
morning of May 21, Koile, a CPS case worker, interviewed A.K.
without Keates present and without Keates's consent. A.K.
reported that her only complaint about her mother was that
she "yells, screams, and cusses." A.K. also told
Koile that she had suicidal ideation in the past but had not
attempted suicide on May 20; the doctor at Christ Cares
Clinic had misunderstood her.
on May 21, around 11:45 A.M., Koile issued a temporary
custody notice (TCN) allowing him to take A.K. away from
Keates and put her into CPS custody. In preparing and issuing
this order, Koile collaborated with his colleagues, Joanna
Lensche and Steve Rountree, and had the advice, consent and
approval of his supervisor, Kim Pender. Keates was not at the
hospital at the time Koile issued the TCN. A CPS case worker,
Karen Howard, later wrote a letter to Keates stating that CPS
took custody of A.K. because Keates did not have health
insurance and was unwilling to share her contact information
with PCH. Koile told PCH that Keates was "prohibited
from visiting A.K. during the remainder of A.K.'s stay at
was discharged from PCH on May 21, 2013. She was strapped to
a gurney and delivered by ambulance to Aurora Behavioral
Health System (ABHS) in Tempe, Arizona. During intake at
ABHS, Koile told the intake nurse that A.K. had tried to
commit suicide on May 20, 2013. But A.K. told the intake
nurse that she "did not have, at that time, any
[suicidal ideation]" and while "she had some
[suicidal ideation] over the course of the previous several
months," she had no plan to commit suicide. She stated
that "she was depressed but she did not feel like she
needed to be here" and told the intake nurse that the
doctor at Christ Cares Clinic "misunderstood her in that
A.K. had thoughts of ...