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Keates v. Koile

United States Court of Appeals, Ninth Circuit

March 6, 2018

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.

          Argued and Submitted December 4, 2017 San Francisco, California

         Appeal from the United States District Court for the District of Arizona D.C. No. 2:15-cv-01270-NVW Neil V. Wake, District Judge, Presiding

          Geoff Morris (argued) and DeeAn Gillespie Strub, Gillespie Shields Durrant & Goldfarb, Phoenix, Arizona, for Plaintiffs-Appellants.

          James 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.


         Civil Rights

         The 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.

         The 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.

         The 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.

         The 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.

         The 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.

         Finally, 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.



         Ellen 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.[1] 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.


         The 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.

         Notes 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 with A.K.

         Call 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.

         At some 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 investigation.

         At 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."

         On the 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.

         Later 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 PCH."

         A.K. 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 ...

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