Lowther v. Children Youth and Families Department

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

ADAM LOWTHER and JESSICA LOWTHER, on behalf of themselves and as next friends to their minor children, W.L. and A.L.,

Plaintiffs, v. No. 1:18-cv-00868-MIS-JFR consolidated with

CHILDREN YOUTH AND FAMILIES No. 1:19-cv-01205-MIS-JFR DEPARTMENT, et al.,

Defendants.

AMENDED MEMORANDUM OPINION AND ORDER ON REMAINING CYFD DEFENDANTS’ RENEWED MOTION FOR

SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY (ECF NO. 286) THIS MATTER is before the Court on the Renewed Motion for Summary Judgment Based on Qualified Immunity filed by Defendants Maria Morales and Andrea Miles (“CYFD Defendants”). ECF No. 286. Plaintiffs Adam Lowther and Jessica Lowther filed their Response on behalf of themselves and their minor children, and the CYFD Defendants filed their Reply. ECF Nos. 305, 306. Having considered the parties’ submissions, the record, and the relevant law, the Court will grant the Motion.

PROCEDURAL BACKGROUND This case arises from an investigation of alleged child abuse at Plaintiffs’ home, resulting in action by the Bernalillo County Sheriff’s Office (“BCSO”) and Children Youth and Families Department (“CYFD”) to take temporary custody of the Lowther children two separate times, on August 30, 2017 (the “first seizure”) and September 6, 2017 (the “second seizure”). Plaintiffs filed this case pursuant to 42 U.S.C. § 1983 and the New Mexico Tort Claims Act, alleging that Defendants violated their civil rights and committed torts against them based on Defendants’ handling of the investigation, including but not limited to the two seizures. See generally 1st Am. Compl., ECF No. 166. The Court has already dismissed CYFD as a named party. ECF No. 308. The Court has also disposed of all claims against individually named CYFD employee Defendant Morales relating to the first seizure, as alleged in Counts IV and V. ECF Nos. 214, 266, 308.1

The sole remaining claim against the CYFD Defendants relates to the second seizure, as alleged in Count VI of the First Amended Complaint, in which Plaintiffs allege that Defendants Morales and Miles, acting under color of law, unlawfully seized the Lowther children on September 6, 2017 “without a warrant or reasonable suspicion the children were in imminent danger,” in violation of the Fourth and Fourteenth Amendments

The Court has already granted qualified immunity to Defendant Morales regarding the first seizure, as well as the alleged unlawful entry of Defendants into the Lowther home relating to that seizure. See ECF No. 166 at 41; ECF No. 214 at 52 (granting summary judgment as to Count V); ECF No. 266 at 4 (granting summary judgment as to Count VI). (Defendant Miles was not a party to Count IV or Count V. ECF No. 166 at 41.) The Court’s granting of qualified immunity regarding the first seizure was based, at least in part, on its conclusion that there was no constitutional violation by Defendant Morales during the first seizure (i.e., the first prong of the qualified immunity analysis). See, e.g., ECF No. 214 at 36, 38–40. The Court also concluded that Plaintiffs failed to cite to clearly established law (i.e., the second prong). Id. at 40–47. With regard to the second seizure (i.e., the subject of the present Motion), however, the Court will address only the second prong of the qualified immunity analysis.

The Court previously deferred ruling on CYFD Defendants’ request for qualified immunity regarding the second seizure, so that the parties could conduct limited discovery. ECF No. 214 at 47–51 (deferring ruling on Count VI under Fed. R. Civ. P. 56(d)). There is some confusion as to whether Defendant Miles previously requested qualified immunity on Count VI and whether the Court ruled on that request. See, e.g., ECF No. 172 (Andrea Miles’ Notice of Joinder in CYFD Defendants Dispositive Motions); ECF No. 214 at 1 n.1 (order removing Defendant Miles as a party to the CYFD Defendants’ original motion for summary judgment based on qualified immunity, ECF No. 106). Because the Court is now ruling on the renewed qualified immunity motion, as to both remaining CYFD Defendants, this discrepancy (if any) is immaterial. to the United States Constitution.2 ECF No. 166 at 42. The CYFD Defendants now renew their request for summary judgment on the basis of qualified immunity, relating to the second seizure.

FACTUAL BACKGROUND The material facts stated below are either undisputed or stated in the light most favorable to the nonmovant:3

On August 30, 2017, following a teacher’s report of potential abuse of Plaintiff A.L. by her father, Plaintiff Adam Lowther (“Dr. Lowther”), the Lowther children (A.L and W.L.) were removed from the family home and taken into protective custody. See ECF No. 286, UMF 17; ECF No. 81-1 at 5, ¶ 8; id. at 10, ¶ 30. Dr. Lowther was eventually charged in connection with the above reports of potential abuse.4 ECF No. 286, UMF 23. In addition

The Court has chosen to include only proffered facts that are material to the present Motion or helpful for background purposes. To the extent that a fact has been omitted, the Court hereby deems such fact immaterial to the present Motion.

The Court notes that Plaintiffs’ “Summary of Facts” does not comply with D.N.M. LR-Civ. 56.1(b), which requires any additional facts to be lettered. The Court requests that Plaintiffs follow the Local Rules of Civil Procedure in the future.

On September 1, 2017, CYFD developed a safety plan to release the children from protective custody into the custody of Ms. Lowther, with the children’s maternal grandparents, John and Terry Borg (“Mr. Borg” and “Ms. Borg,” respectively; collectively

On September 4, 2017, CYFD held a transfer meeting with Ms. Lowther, Mr. and Ms. Borg, Defendants Morales and Miles, and CYFD supervisors Yvonne Meade and Robin Yoder to discuss returning custody of the children to Ms. Lowther, with the Borgs acting as safety monitors. ECF No. 286, UMF 33; ECF No. 106-1 at 117. The meeting participants agreed that Defendant Miles, an in-home services clinician, would work with the family. ECF No. 105-1 at 9–10; see also ECF No. 305-1 at 2 (stating Defendant Miles’ job title). The Lowther children were then in the custody of Ms. Lowther under the safety monitor arrangement.11

On September 5, 2017, the Second Judicial District Court, County of Bernalillo, State of New Mexico (the “criminal court”) held a hearing, in which the Assistant District Attorney (“ADA”) expressed concerns regarding Dr. Lowther’s potential access to the

There is also a discrepancy in the record regarding when Defendant Miles first met Plaintiff Jessica Lowther and the Borgs. See ECF No. 105-1 at 9–10, ¶ 20 (Defendant Miles was present at the September 4, 2017 transfer meeting); ECF No. 221-1 at 3, ¶ 8 (Defendant Miles first met Plaintiff Jessica Lowther and the Borgs on September 5, 2017). The Court finds that this dispute is immaterial to the present Motion.

Defendant Miles attended the September 5, 2017 criminal hearing, at which Mr. Borg was also present. Id., UMFs 34, 37. Defendant Miles had previously explained to Mr. Borg that his role as a safety monitor required maintaining neutrality regarding the nature of a child’s abuse disclosures—in other words, not expressing disbelief as to the truth of any abuse disclosures. Id., UMFs 31–32; ECF No. 221-1 at 3–4, ¶ 8. However, during or immediately following the criminal hearing, Mr. Borg angrily expressed his disbelief to Defendant Miles on the allegations against Dr. Lowther, putting his hand on her, calling her his “helper,” and telling her she needed to fix the situation. ECF No. 286, UMF 37. Mr. Borg’s statements ran contrary to the instructions that Defendant Miles had recently given the Borgs about their duties as safety monitors, which required maintaining neutrality regarding the nature of a child’s abuse disclosures. See id., UMFs 31–32; ECF No. 221-1 at 3–4, ¶ 8.13

On the morning of September 6, 2017, the criminal court issued an order releasing Dr. Lowther from custody, on personal recognizance, under the conditions that (among other things) Dr. Lowther be monitored via GPS tracking, that he remain in his residence

The day before the second seizure, although she had serious concerns about the Borgs acting as safety monitors, Defendant Miles (who was the primary investigator at that time) was not concerned that the children were in imminent danger. ECF No. 305-1 at 3; see also ECF No. 305-2 at 6 (Defendant Miles was the primary investigator prior to the second seizure).18 Defendant Morales, who participated in the meeting that resulted failed to raise a genuine dispute regarding the facts presented in UMF 36. Even if there were a genuine dispute, such dispute would be immaterial to the second prong of the qualified immunity analysis.

Plaintiffs also dispute UMF 45, stating that the “allegations raised in this UMF occurred after the decision to remove the children on September 6, 2017.” ECF No. 305, Response to UMF 45. However, Defendants’ UMF 45 relates to information gained after the “first removal” on August 30, 2017, not the second removal on September 6, 2017. ECF No. 286, UMF 45. Plaintiffs’ response to UMF 45 does not cite to any materials in the record. ECF No. 305, Response to UMF 45. The Court finds that Plaintiffs have failed to raise a genuine dispute regarding the facts presented in UMF 45 and that, even if there were a genuine dispute, such dispute would be immaterial to the second prong of the qualified immunity analysis.

APPLICABLE LAW I. Standard for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure allows summary judgment when the evidence submitted by the parties establishes that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this burden, the nonmovant is required to put in the record facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–52 (1986). A fact is “material” if under the substantive law it is essential to the proper disposition of the claim. Id. at 248.

The nonmoving party cannot rely upon conclusory allegations or contentions of counsel to defeat summary judgment. See Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988). Rather, the nonmovant has a responsibility this statement in the light most favorable to Plaintiffs, and taking the words at face value, the Court must accept this statement as an admission that Defendant Miles was not concerned that the children were in imminent danger. Ultimately, the Court finds that this dispute is immaterial to the second prong of the qualified immunity analysis, which forms the basis for the present opinion. to “go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [their] case in order to survive summary judgment.” Johnson v. Mullin, 422 F.3d 1184, 1187 (10th Cir. 2005) (quoting McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998)).

It is not the court’s role to weigh the evidence or assess the credibility of witnesses in ruling on a motion for summary judgment. See Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012). Rather, the court resolves all doubts against the movant, construes all admissible evidence in the light most favorable to the nonmovant, and draws all reasonable inferences in favor of the nonmovant. See Hunt v. Cromartie, 526 U.S. 541, 551–52 (1999); see also Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). However, summary judgment may nevertheless be granted where “the evidence is merely colorable, or is not significantly probative.” Liberty Lobby, Inc., 477 U.S. at 249– 50.

II. Qualified Immunity Standard

The doctrine of qualified immunity protects government officials sued in their individual capacity from monetary damages unless their actions violate a “clearly established” statutory or constitutional right. City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)). A right is clearly established only when, at the time of the challenged conduct, “the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he [or she] was violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014).

“A plaintiff can demonstrate that a constitutional right is clearly established by reference to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits.” Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008) (quoting Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006)) (internal quotation marks omitted). “The rule must be settled law, which means it is dictated by controlling authority or a robust consensus of cases of persuasive authority.” District of Columbia v. Wesby, 138 S. Ct. 577, 289–90 (2018) (internal citations and quotation marks omitted). Although the plaintiff is not required to identify a case directly on point, “existing precedent must have placed the statutory or constitutional question beyond debate.” Kisela, 138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). Clearly established law cannot be defined “at a high level of generality”; rather, it must be particularized to the facts of the case. Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011); see Anderson v. Creighton, 483 U.S. 635, 640 (1987). But “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015) (quoting Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007)). The dispositive question is whether the unlawfulness of the official’s actions was apparent in light of pre-existing law. Creighton, 483 U.S. at 640.

When a defendant asserts qualified immunity at the summary judgment stage, “the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right, and (2) the constitutional right was clearly established.” Kapinski v. City of Albuquerque, 964 F.3d 900, 905 (10th Cir. 2020) (quoting Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011)). The court may address these two inquiries in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009); McCowan v. Morales, 945 F.3d 1276, 1282 (10th Cir. 2019). If the plaintiff fails to satisfy either test, the court must grant qualified immunity. McCowan, 945 F.3d at 1282 (quoting Estate of Ceballos v. Husk, 919 F.3d 1204, 1212–13 (10th Cir. 2019)). If the plaintiff succeeds, then—and only then—does the defendant bear the traditional burden of the movant for summary judgment. Kapinski, 964 F.3d at 905.

In recent years, the Supreme Court “has issued a number of opinions reversing federal courts in qualified immunity cases.” White v. Pauly, 580 U.S. 73, 79 (2017). “The [Supreme] Court has found this necessary both because qualified immunity is important to society as a whole . . . and because as ‘an immunity from suit, qualified immunity is effectively lost if a case is erroneously permitted to go to trial.’” Id. (citations and internal quotation marks omitted).

III. Fourth Amendment Standard The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The protections of the Fourth Amendment are incorporated against the states through the Fourteenth Amendment. U.S. Const. amend. XIV; Mapp v. Ohio, 367 U.S. 643, 655 (1961). “It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971)) (internal quotation marks omitted); see also Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1070 (10th Cir. 2010).

More specifically, “state officials may not remove children from the home, through either temporary seizures or the permanent termination of parental rights, without providing due process of law.” Gomes v. Wood, 451 F.3d 1122, 1127 (10th Cir. 2006). However, under the emergency circumstances exception, “state officials may remove a child from the home without prior notice and a hearing when they have a reasonable suspicion of an immediate threat to the safety of the child if he or she is allowed to remain there.” Id. at 1130. “[E]ven in these instances in which emergency removal is justified, the state must afford the parents a prompt post-removal hearing.” Id.

DISCUSSION I. The CYFD Defendants are entitled to qualified immunity because

Plaintiffs have not shown that the applicable law was clearly established, as applied to the specific factual circumstances of this case.

In its discretion, the Court addresses the second prong, or “clearly established prong,” of the qualified immunity analysis first. The Court finds that Plaintiffs have failed to set forth legal precedent showing that the CYFD Defendants violated clearly established law.

In order to defeat qualified immunity, Plaintiffs must demonstrate that, under the specific circumstances of this case, the right allegedly violated (i.e., the alleged illegal second seizure of the Lowther children on September 6, 2017, absent emergency circumstances, see ECF No. 166 at 41) was clearly established at the time of the alleged misconduct. See Kerns v. Bader, 663 F.3d 1173, 1180 (10th Cir. 2011). If a factual distinction between a prior case and the present case might make a constitutional difference, then by extension, the second prong of qualified immunity likely cannot be satisfied. See, e.g., id. at 1186–87 (where prior cases of warrantless access to information involved “an unlawful campaign of sexual harassment,” but the case at issue involved a warrantless request for a suspect’s medical records in pursuit of an otherwise lawful investigation, the constitutional right was not clearly established for purposes of qualified immunity).

The Tenth Circuit has held, since its 2006 decision in Gomes, that state officials may remove a child from the home without prior notice and a hearing only when they have “reasonable suspicion of an immediate threat to the safety of the child if he or she is allowed to remain there.”19 451 F.3d at 1130. In Gomes, a mother, Shauna Gomes, took her child to the doctor with a suspicious head injury, the doctor called the Utah Division of Child and Family Services to report the head injury, and the intake caseworker responded that, because the case did not appear to be an emergency, a child welfare

Although Plaintiffs argue that the facts of the Gomes case were sufficient to put CYFD Defendants on notice of the potential unconstitutionality of their alleged conduct to terminate the safety plan and initiate a second 48-hour hold, the facts of the present case differ from those in Gomes in several significant ways. First, the child welfare caseworker in Gomes did not simply provide information to law enforcement that ultimately resulted in the child’s removal from the home, but instead, the Gomes caseworker was physically present at the child’s home and was an active participant in the child’s removal as it was occurring. Id. Second, Gomes did not involve an immediate change in circumstances, whereas in the present case, it is apparent that the CYFD Defendants took swift action to terminate the safety plan and initiate a second 48-hour hold because of multiple changed circumstances, i.e., safety monitor Mr. Borg’s actions in violation of the instructions provided to him by the in-home services clinician, combined with Dr. Lowther’s imminent release from jail. Third, in the present case, CYFD had at least some factual basis to believe that Dr. and Ms. Lowther would abscond with the children after his release from jail. Finally, Plaintiffs’ cited cases involved seizures that were factually distinct from the present case, such as initial seizures (Gomes, Roska, Malik, Hollingsworth, and Arredondo) or seizures involving permanent termination of parental rights (Santosky and Spielman), not termination of a safety plan put in place in order to return children to the home after an initial seizure. See supra note 19. The factual circumstances of the present case make it very different from Gomes, such that a reasonable official in the CYFD Defendants’ position might not see the applicability of Gomes when confronted with these circumstances.

For purposes of the second prong of qualified immunity analysis, it is irrelevant whether the CYFD Defendants’ suspicion of imminent physical harm was reasonable; rather, the Court must focus on whether it would have been apparent to any reasonable official in the CYFD Defendants’ position that that their conduct was unlawful. Creighton, 483 U.S. at 640. Even viewing the facts in the light most favorable to Plaintiffs, and even assuming for purposes of argument that emergency circumstances did not exist, the Court cannot conclude that it would have been apparent to any reasonable official in the CYFD Defendants’ position that that their conduct was unlawful, given the specific factual circumstances here. The Defendants in the present case were at least somewhat removed from the actual harm alleged by Plaintiffs (i.e., they were not physically present at the removal), and there were several simultaneous factors at play (involving Dr. Lowther, Ms. Lowther, and the safety monitors) that made the applicability of Gomes far from apparent in the present case.

The Court is mindful of potential constitutional concerns over the warrantless removal of the Lowther children from their home, given that there were at least some measures in place by the criminal court to ensure that Dr. Lowther would not come into contact with the Lowther children or abscond with them. However, the second prong of the qualified immunity analysis essentially requires that the CYFD Defendants were on notice that they could not terminate the safety plan without violating the law, such that every reasonable official would have known not to terminate the safety plan under similar circumstances. See Kerns, 663 F.3d at 1180; Al-Kidd, 563 U.S. at 741. When applied to the present case, Gomes does not provide clear notice but instead a broad, general proposition of law, which is insufficient to satisfy the second prong of the qualified immunity analysis. Al-Kidd, 563 U.S. at 742; Creighton, 483 U.S. at 640.

The Court is unable to locate any other directly controlling authority or persuasive authority from the weight of other circuits establishing that every reasonable official in the CYFD Defendants’ position would have known that they were violating Plaintiffs’ constitutional rights.20 Instead, the facts known to CYFD at the time indicated that (1) Dr. Lowther’s release from jail was imminent; (2) CYFD had some level of concern that Dr. and Ms. Lowther might abscond with the children; and (3) one day prior to Dr. Lowther’s release, Mr. Borg (a willingly neutral safety monitor and an essential part of the plan to return the Lowther children to their home) “had angrily expressed his disbelief to Defendant Miles as to the allegations against Dr. Lowther, putting his hand on her, calling

II. The Court declines to address the CYFD Defendants’ remaining arguments.

Because the Court has granted qualified immunity to the CYFD Defendants, thus fully disposing of the claims made against them, it will not address the merits of their other arguments.

CONCLUSION For the foregoing reasons, the CYFD Defendants’ Renewed Motion for Summary Judgment Based on Qualified Immunity, filed on January 28, 2022, ECF No. 286, is hereby GRANTED.

Summary judgment is granted in favor of Defendants Maria Morales and Andrea Miles, based on qualified immunity, for all claims pertaining to the second removal of the Lowther children from their home, specifically Count VI of the First Amended Complaint. ECF No. 166 at 41–42.22

Because there are no claims remaining against Defendant Maria Morales or Andrea Miles (see ECF No. 214 at 52 (granting summary judgment to Defendant Morales on Count V); ECF No. 266 at 4 (granting summary judgment to Defendant Morales on Count IV)), the Clerk is hereby DIRECTED to terminate Defendants Maria Morales and Andrea Miles as parties from the lawsuit.

A separate final judgment will be entered at a later date, if necessary. IT IS SO ORDERED.

Mv di Thad. | MARGARET STRICKLAND _

UNITED STATES DISTRICT JUDGE