Shawn A. McMillan, Esq., SBN 208529 [email protected]Stephen D. Daner, Esq., SBN 259689 [email protected]Samuel H. Park, Esq., SBN 261136 [email protected]THE LAW OFFICES OF SHAWN A. MCMILLAN, A.P.C. 4955 Via Lapiz San Diego, California 92122-3910 Phone: (858) 646-0069 Fax: (206) 600-4582 Attorneys for Plaintiffs, PETER HUK and BEVERLY RAFF UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 2 3 4 5 6 7 8 9 10 PETER HUK, an individual, and BEVERLY RAFF, an individual Plaintiffs, V. COUNTY OF SANTA BARBARA; KATHY GALLAGHER; DELFINO NEIRA; CINDY NOTT; SUSAN TOGNAZZINI; KATHY DAVIS; JULIE DE FRANCO; CHRISTEL BARROS; FRANCENE KELLY; and DOES 1-100, inclusive. Defendants. Case No.: CV12-2317 DSF (FMOx) Judge: Hon. Dale S. Fischer Courtroom: 840 PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT PURSUANT TO FRCP 12(b)(6) Hearing Date: November 5, 2012 Hearing Time: 1:30 p.m. Date Action Filed: March 19, 2012 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I/I I/I PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx)
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Shawn A. McMillan, Esq., SBN 208529 [email protected] Stephen D. Daner, Esq., SBN 259689 [email protected] Samuel H. Park, Esq., SBN 261136 [email protected] THE LAW OFFICES OF SHAWN A. MCMILLAN, A.P.C. 4955 Via Lapiz San Diego, California 92122-3910 Phone: (858) 646-0069 Fax: (206) 600-4582
Attorneys for Plaintiffs, PETER HUK and BEVERLY RAFF
UNITED STATES DISTRICT COURT,
CENTRAL DISTRICT OF CALIFORNIA
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PETER HUK, an individual, and BEVERLY RAFF, an individual
Plaintiffs,
V.
COUNTY OF SANTA BARBARA; KATHY GALLAGHER; DELFINO NEIRA; CINDY NOTT; SUSAN TOGNAZZINI; KATHY DAVIS; JULIE DE FRANCO; CHRISTEL BARROS; FRANCENE KELLY; and DOES 1-100, inclusive.
Defendants.
Case No.: CV12-2317 DSF (FMOx) Judge: Hon. Dale S. Fischer Courtroom: 840
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT PURSUANT TO FRCP 12(b)(6)
Hearing Date: November 5, 2012 Hearing Time: 1:30 p.m.
Date Action Filed: March 19, 2012
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PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx)
1. Plaintiffs' Second Amended Complaint States Sufficient Facts to Support a Section 1983 Claim Against the Individual Defendants . 11
A. The Social Workers Deprived Plaintiffs of Their Constitutional Rights Arising Under the Fourteenth Amendment To The United States Constitution When They Seized R.T. Without First Obtaining Judicial Authorization .........................11
B. "Prospective Adoptive Care Givers" Like Peter and Beverly are Entitled to Notice and a Full Hearing Before The Placement Could Be Terminated .........................................13
C. Social Workers Violated Peter and Beverly's Fourteenth Amendment Rights When They Seized R.T. Without First Obtaining Judicial Authorization .........................14
D. Any Reasonable Social Worker in Santa Barbara County Would Know it Was a Violation of Plaintiffs' Rights to Seize R.T. Based on TrumpedUp Allegations of Exigency ....................14
E. Social Workers Are Not Entitled to Absolute Immunity for Fabricating Evidence During an Investigation or Making False Statements ina Dependency Proceeding .................... 17
F. The Social Worker Defendants are Not Entitled to Qualified Immunity For Deceptive Statements to The
28 'Plaintiffs have filed their formal objection to Defendants' Request for Judicial Notice and incorporate those objections herein by this reference.
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 1
1 3) Plaintiffs have clarified their allegations regarding the involvement of
2 Defendant De Franco by describing her as "an investigations supervisor ... primarily
3 responsible for investigating the circumstances surrounding the alleged "imminent danger"
4 R.T. was in when he was wrongfully removed from Plaintiffs' long term care ... [and that]
5 De Franco intentionally suppressed material exculpatory information from her investigation
6 report, and that she fabricated evidence and inserted it into that same report with full
7 knowledge that her report would later be relied upon by the agency to justify its warrantless
8 seizure of R.T." (SAC 113, 163).
9 4) Plaintiffs have also enhanced their allegations to establish that Santa
10 Barbara's training materials, contracts, and other written materials provided to the Social
11 Worker Defendants were sufficient to put all social workers on notice of Plaintiffs' rights
12 to notice and an opportunity to be heard regarding R.T.'s seizure from their care in the
13 absence of any warrant, court order, or true exigency, as well as Plaintiffs' right to not be
14 lied about in judicial proceedings. (SAC 144, 146-9147, 171, 172, 177, 183, 184, 192-9193,
15 ¶107).
16 5) Lastly, the Monell allegations have been substantially engrossed. In addition
17 to those underlying facts incorporated by reference to the preceding allegations, Plaintiffs
18 have alleged that the County of Santa Barbara itself, through the conduct of its duly
19 appointed managerial staff to whom plenary policy making authority was granted, engaged
20 in the alleged misconduct. (SAC ¶100-9[109, and ¶110(f)- 1113). As discussed in greater
21 detail herein these enhanced allegations, among many others, should be deemed sufficient
22 to support Plaintiffs' claims against the County of Santa Barbara at this early stage in the
23 proceedings where virtually no discovery has been had.'
24 For the most part, the instant motion is merely a rehash of the arguments Defendants
25 made in their Motion to Dismiss the First Amended Complaint. Defendants have failed to
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27 2 A the Court may recall, Plaintiffs have not been granted full access to the juvenile
28 court records yet. Although an order was recently granted by the juvenile court judge, the records have not been forthcoming.
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 2
address the legal ramifications of the substantial amendments made by Plaintiffs. As
appears in greater detail below, these factual enhancements have a significant legal impact
which requires denial of Defendants' Motion to Dismiss.
II. FACTS
- The Individual Defendants' Misconduct
In 2008, R.T.'s mother lost her parental rights.' (Defendants' Request for Judicial
Notice, Exhibit A, pg. 1). Soon thereafter, for a host of reasons not relevant to the instant
Peter and Beverly chose to bring R.T. into their home. (SAC 19120-27). At that
time, R.T. was a "feral mess." (Id. at 123; see also 129). Peter and Beverly were lauded by
County officials for their exemplary efforts and the tremendous progress they made with
R.T. (SAC 124, and 134).
R.T. lived with Peter and Beverly for two years before he was removed, without any
e whatsoever, and without any good, just, or legal cause. (SAC 124). During the
se of that two year period, Peter and Beverly repeatedly expressed their love for R.T.,
their sincere interest in adopting him. (Ibid). Since the moment the issue of adoption
first brought up, they were repeatedly told by social workers and County officials that
were doing a great job with R.T. and that they would have no problem at all adopting
(Ibid; see also, 17 1).
Caring for R.T. was a monumental task, and Peter and Beverly needed help. (SAC
. But, they found that the services actually provided by the County were inadequate to
ess R.T.'s issues, or were not forthcoming at all. (SAC 128-9130,9138) Beverly
repeatedly. (Ibid). Her complaints about County shortfalls created a substantial
of consternation on the part of all Defendants. (Ibid). Peter and Beverly went to
lengths to give R.T. a stable and loving home. (See, SAC 13 1). Peter and Beverly
Defendants' Motion to Dismiss claims that the Court of Appeal stated that parental rights were not terminated. (See Defendants' Motion, pg. 11:18-11:23). This is an incorrect statement. Rather, the Court of Appeal stated that "Parental rights were terminated in 2008." In re Rickey T., 2011 Cal.App.Unpub. LEXIS 7644, pg. 2 (2011); see also Defendants' Request for Judicial Notice, Exhibit A, pg. 1).
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 3
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1 bonded strongly with R.T. and remained committed to him. (See, SAC 131-9[37). As early
2 as January 2009, Peter and Beverly told the County about their sincere interest in adopting
3 R.T., and in November 2009, social workers filed a "change of status" form with the
4 Juvenile Court, indicating that Peter and Beverly desired legal guardianship status. (Id). In
5 January 2010, Peter and Beverly contacted social worker Susan Tognazzini and requested
6 contact with an Adoptions Unit social worker for the purpose of engaging in the process of
7 adopting R.T. (Id). They repeatedly confirmed their long term commitment to R.T. (Id).
8 As R.T.'s long term caregivers, Peter and Beverly were not happy with the level or
9 quality of services provided by the County. (SAC 138-139). County staff became hostile
10 and retaliatory against Peter and Beverly for voicing their concerns about unskilled
11 workers, inflexibility within the program to accommodate special-needs children, and fiscal
12 waste. (Ibid). Angered by Plaintiffs' criticisms, Defendants Cindy Nott, Delfino Neira, and
13 Susan Tognazzini, retaliated against Peter and Beverly, by punishing them for complaining
14 too much. (SAC 139).
15 As it turned out, the services R.T. needed were expensive (SAC 148), and the
16 County did not want to pay for these services, despite R.T.'s needs. (SAC 141). This
17 conflict created friction between Plaintiffs and Defendants. (Id). Defendants cooked up a
18 plan to get R.T. out of Plaintiffs' care and rid themselves of the constant thorn in their side
19 that Plaintiffs had become. (Id).
20 Defendants' previously glowing reports of Peter and Beverly's accomplishments and
21 R.T.'s growth, which had been the pattern of the reports up until that point, transformed -
22 practically overnight - into venomous accusations that Peter and Beverly "failed to show a
23 commitment" to R.T., and that they sought services for personal monetary gain. These
24 accusations were false and the reporting Defendants knew it. (SAC 142).
25 Defendants Kathy Davis, Delfino Neira, Cindy Nott, Susan Tognazzini, and Christel
26 Barros, all worked together in concert to unlawfully remove R.T. from Plaintiffs' care.
27 (SAC 146, and 150). The vitriol culminated in Defendants false claim that Peter and
28 Beverly physically abused R.T., which placed him in imminent danger. (SAC 146). The
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 4
I Defendants' claim of "imminent" danger was a false pretext used by Defendants in order to
2 escape their contractual, regulatory, and legal obligation to provide advance written notice
3 to Plaintiffs of Defendants' intention to remove R.T. from their care and allow Plaintiffs a
4 pre-removal opportunity to object and be heard, and allow R.T. to remain in Plaintiffs'
5 home until the state-required regulation of completing a grievance hearing was satisfied.
6 (Ibid).
7 Defendants participated in a bad-faith campaign to smear Peter and Beverly, and to
8 depict them as "mentally unstable" and "emotionally abusive," with the ultimate goal of
9 removing R.T. and terminating, without any hearing, whatever rights Plaintiffs had
10 developed. (SAC 146).
11 In April 2010, Peter and Beverly informed the juvenile court of their desire to
12 formally adopt R.T. (SAC, ¶51). The juvenile court ordered Social Worker Defendants
13 Davis and Tognazzini to notify the Adoptions Unit of Plaintiffs' desire. (Id). Defendant
14 Tognazzini acknowledged the Plaintiffs' desire to adopt R.T. and promised to forward the
15 request on to her supervisor. (SAC, 152). On May 4, 2010, Peter met with adoptions social
16 worker Julie Mann in order to initiate the adoption of R.T. (FAC, 153). Mann, who helped
17 place R.T. in 2008, stated that Peter and Beverly would have no problem adopting him. (Id;
18 see also, SAC 124). Following this "adoptions" meeting, on May 4, 2010 at
19 approximately 2:45 p.m. Plaintiffs arrived at R.T.'s school to take him to his afternoon
20 dance class. (SAC 153). As Peter, Beverly, autism specialist, Dr. Russell Lang, and R.T.
21 walked toward the dance facility, Defendant Christel Barros approached and stated that she
22 was removing R.T. because CWS had received a report that Peter may have pinched him.
23 (SAC 154-155). Barros had no warrant or court order permitting her to remove R.T. (Ibid).
24 In addition, neither Barros, nor anyone at CWS, provided written notice of the Agency's
25 intent to remove R.T. at any point in time. (Ibid). Peter and Beverly were bewildered and
26 confused. Beverly - correctly - told Barros that it was illegal to remove R.T. without first
27 providing seven-days written notice (and an opportunity to object to the removal and
28 schedule a hearing). (Ibid).
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 5
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When Peter, Beverly and R.T. tried to leave, Barros stopped them and demanded
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t they wait for law enforcement. (SAC 155-9157). When a deputy sheriff arrived, Barros
3 and the deputy sheriff separately questioned R.T.; the deputy sheriff carefully examined the
4 boy, took photographs of a bruise on his arm, and asked R.T. how he got the bruise. (Ibid).
5 R.T. told the deputy that he fell off his bicycle and hurt his arm. (Ibid). After the deputy
6 sheriff examined the bruise, he noted that it appeared as if it may have been caused by
7 falling off his bicycle, perhaps from hitting the handlebars. (Ibid). The deputy also noted
8 that R.T. was obviously attached to Plaintiffs. (Ibid).
9 When it became apparent that the deputy sheriff saw no child abuse and would not,
10 himself, seize R.T., Barros ignored the deputy sheriff's assessment and called her
11 supervisor Division Head, Defendant Cindy Nott. (SAC 158). She was on the telephone
12 with Nott for an extended period of time during which she contacted
13 Neira by telephone to discuss the situation and decide how to handle it. (Id). At that point in
14 time, Neira and Gallagher were together. (Id). The two discussed the matter and together
15 decided that the circumstance presented an opportunity to get R.T. out of Plaintiffs' care
16 and eliminate what had become a thorn in the their side. (Id). At that point in time,
17 Gallagher and Neira were fully informed of all of the circumstances surrounding Plaintiffs
18 interactions with CWS agents, as well as the circumstances presented that day in relation to
19 R.T.'s condition. (Id). Gallagher, Neira, and Nott discussed the proposed course of action
20 and agreed that now was the time to strike. (Id). Accordingly, Nott instructed Barros that as
21 part of their concocted plan Barros was to seize R.T. based on a pretextual and false claim
22 that R.T. was in "imminent" danger. (Id). After completing her telephone call with Nott,
23 and upon Nott' s instruction, Barros seized R.T. without any court order or warrant, on
24 -up, false, and pre-textual grounds that the child was in "imminent danger." (Id).
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Peter asked Barros how she could conclude that R.T. was in "imminent danger" of
26 severe bodily injury or death (SAC 158). Barros simply responded that Nott - her
27 supervisor who was not present - "said" there was inmiinent danger. (Id). At no time prior
28 to said warrantless seizure, did Barros - or anyone else for that matter - have reasonable or
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 6
specific articulable evidence to support a reasonable suspicion that R.T. was in any danger
2 all, let alone imminent danger of sustaining serious bodily injury or death. (Id). Nor, was
3 IIR.T. ever in any danger of sustaining severe bodily injury while in the care of Peter and
4 IlBeverly. (Id).
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After these events, the deputy sheriff assigned to the investigation concluded in his
6 written report that no crime had occurred, and that the bruise to R.T.'s arm appeared to be
7 consistent with the statements provided by the child and Plaintiffs. (SAC 159). Indeed, no
8 criminal charges were ever filed against Peter or Beverly in connection with the seizure of
9 R.T., or based on any allegation that Peter or Beverly had pinched the boy. (Ibid).
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Throughout May 2010, the remainder of 2010, all of 2011, and into 2012, Peter and
11 Beverly urged and pleaded for R.T.'s return. (SAC 162, and 166). But, the gears of the
12 Defendants' plot were already in motion. By the time Peter and Beverly had lodged their
13 first complaint Julie De Franco, investigations supervisor for Northern Santa Barbara
14 County, had already competed her so called investigation and compiled here "report."
15 (SAC 163). There, De Franco padded her report by fabricating evidence which she then
16 Ilinserted into her report, omitting critical exculpatory material from her report, and
17 completely ignoring R.T.'s own statements and those of Beverly and Peter. (Id., see also
18 ¶64).
19 Peter contacted Defendants Gallagher, Nott, and Neira, to complain about the
20 injustices, the lack of due process, and the absence of an investigation concerning the
21 warrantless removal of R.T. based on false allegations that R.T. was in "imminent danger,"
22 among other things. (SAC 166). But at the meeting Kathy Gallagher warned Peter to give
23 up the fight, and threatened him, in essence to 'Shut up, or we will really punish you.'
24 (SAC 166). Peter and Beverly were terrified and suffered great stress. (SAC 167 -9168).
25 After the removal, the Defendants continued to present false accusations and
26 evidence to the juvenile court, including false allegations of "general neglect." In a further
27 effort to punish the Plaintiffs, the Defendants placed Peter and Beverly on the Child Abuse
28 IlCentral Index based on false accusations of abuse. (SAC 166).
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 7
- Allegations Relevant to The Monell Claims
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Defendant Gallagher is the Director of County of Santa Barbara Department of
3 IlSocial Services, with supervisory responsibility and authority over CWS and its social
4 llworker employees. (SAC 16). Gallagher has plenary and final power to promulgate and
5 Ilimplement policies governing the conduct of Santa Barbara County social workers in
6 llrelation to the agency's handling of juvenile dependency matters; this includes the power to
7 llhire, fire, train, and supervise Santa Barbara County social workers including the
8 lldefendants herein. (Id; see also, ¶100,)
9 11 Defendant Neira was, and still is, the deputy director of the County of Santa Barbara
10 Department of Social Services and is responsible for promulgating procedures and policies
11 to carry out the regulations of the state of California regarding the treatment of long-term
12 foster parents and/or prospective adoptive parents, and to ensure that social workers in the
13 County of Santa Barbara are adequately trained and supervised to ensure they at all times
14 act in accordance with law. (SAC 17, 1101).
15 Defendants Neira and Gallagher have been authorized by the Santa Barbara County
16 Board of Supervisors to act on the County's behalf in promulgating rules and regulations
17 governing the conduct of the Social Services Agency, and overseeing the training and
18 supervision of the County of Santa Barbara Social Services Agency, and the social workers
19 who work there. (SAC 18). Defendant Gallagher has the final say in promulgating policies
20 and in enforcing them within the agency. (Id). In their capacities as Director and Deputy
21 Director of the agency imbued with plenary and final power and authority to oversee the
22 operation of the agency and all its employees and their conduct, Defendants Neira and
23 Gallagher acted within the course and scope of their duties when they approved and ratified
24 the conduct of the remaining social worker Defendants after having been fully informed of
25 the circumstances surrounding the seizure of R.T. from Plaintiffs' care, and after having
26 been fully informed of all facts and circumstances regarding the remaining Defendants'
27 presentation of false, and fabricated evidence to the Juvenile Courts. (Id; see also 144, ¶58,
28 157, 193, and 1102- 1103).
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 8
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After Neira and Gallagher were fully informed of all the circumstances, they agreed
2 with and ratified - and even participated with the remaining Defendants in making the
3 decision to seize R.T. from Plaintiffs long-term care based on Defendants' trumped-up and
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false pretextual claim of "exigency." (SAC 1103).
5 Under the leadership of Gallagher and Neira the agency has engaged, and continues
6 to engage, in a systematic approach to controlling the outcomes in its cases, particularly
7 where long-term foster parents or prospective adoptive parents are involved by, among
8 other things, failing to disclose all material exculpatory evidence to the courts which the
9 agency calls upon to 'bless' its decisions; fabricating evidence and then inserting it into
10 reports its agents file with the juvenile courts; and, otherwise engaging in acts calculated to
11 deceive the courts, similar to what is alleged to have occurred here. (SAC 1104).
12 The Santa Barbara County Board of Supervisors has completely delegated all
13 decision making authority to Gallagher in CWS matters. For example, when Plaintiffs
14 complained to their County Board of Supervisors, Joseph Centeno and Doreen Farr,
15 Plaintiffs were told that it was known that CWS destroys families but that the Board of
16 Supervisors put Gallagher in power, and merely has the ability to remove her, but not to
17 override her or question her decisions. Plaintiffs were also told that the Board did not even
18 have specific knowledge of what Gallagher was up to in the management of the operations
19 of CWS. Plaintiffs were referred back to Neira and Gallagher to pursue their complaints.
20 (SAC 1105).
21 III. GOVERNING LAW
22 All allegations of material fact are taken as true and construed in the light most
23 favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
24 When a complaint's allegations are capable of more than one inference, the Court must
25 adopt whichever inference supports a valid claim. Hamilton v. Palm, 621 F.3d 816, 819
26 (8th Cir. 2010); see also Schwarzer, Tashima & Wagstaffe, CAL. PRAC. GUIDE: FED.
27 ICIV. PRO. BEFORE TRIAL (The Rutter Group), §9:214.4. Bell Atlantic Corp. v. Twombly,
28 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) and Ashcroft v. Iqbal, 129 S. Ct.
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 9
I 1937, 173 L. Ed. 2d 868 (2009) did not change this fundamental tenet of Rule 12(b)(6)
3 In addition, the Court is required to read the complaint charitably and must assume
4 that all general allegations "embrace whatever specific facts might be necessary to support
5 them." Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). This rule
6 of liberal construction is "particularly important in civil rights cases." Johnson v.
7 California, 207 F.3d 650, 653 (9th Cir. 2000).
8 IV. ARGUMENT
9 1. Plaintiffs' Second Amended Complaint States Sufficient Facts to Support a Section 1983 Claim Against the Individual Defendants
10 By the plain terms of section 1983, two - and only two - allegations are required in
11 order to state a cause of action. "First, the plaintiff must allege that some person has
12 deprived him of a federal right. Second, he must allege that the person who has deprived
13 him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S.
14 635, 640 (1980). Section 1983 contains no state-of-mind requirement independent of that
15 necessary to state a violation of the underlying constitutional right. Parratt v. Taylor, 451
16 U.S. 527, 534 (U.S. 1981); overruled, in part, on other grounds in Daniels v. Williams, 474
17 U.S. 327, 330-331 (U.S. 1986); see also Board. of the County Comms. v. Brown, 520 U.S.
18 397,405 (U.S. 1997).
19 The complaint alleges that in their conduct toward Plaintiffs, the Social Worker
20 Defendants were acting under color of law as officers, agents, and/or employees of the
21 County of Santa Barbara (SAC, 16-9[14).
22 A. The Social Workers Deprived Plaintiffs of Their Constitutional Rights
23 Arising Under the Fourteenth Amendment To The United States Constitution When They Seized R.T. Without First Obtaining Judicial
24 Authorization
25 In Smith v. Organization of Foster Families for Equality and Reform (OFFER), 431
26 U.S. 816 (U.S. 1977) the Supreme Court provided instruction as to how one might answer
27 the questions raised in the instant motion. There, the court recognized that foster parents
28 have a distinct liberty interest in foster relationships, "[a]lthough emotional ties between
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-2317 DSF (FMOx) Page 10
1 children and unrelated adults may give rise to a constitutionally protected liberty interest,
2 such an interest is limited by state law when the requisite emotional ties 'have their origins
3 in an arrangement in which the State has been a partner from the outset." Id. at p. 845.
4 When "the claimed interest derives from a knowingly assumed contractual relation with the
5 State, it is appropriate to ascertain from state law the expectations and entitlements of the
6 parties." Id. at p. 845-846. Thus, this Court must look to state law to determine what rights
7 Plaintiffs had, and whether those rights were clearly established at the time the wrongful
8 conduct occurred.
9 The Director of the Health and Welfare Agency, a State Department of Social
10 Services, implements and adopts regulations for the governance of its social workers. Cal.
11 Weif. & Inst. Code, §10553 and 10554. Under such regulations, social workers are
12 obligated to provide all foster parents in California "at least seven calender days' advance
13 written notice of intent to remove a child." (SAC, Exhibit B, pg. 106). Under OFFER, such
14 a regulation deliberately and specifically entitles all foster parents, in California, to due
15 process prior to the removal of a child. OFFER, 431 U.S. at 845-846. In addition, all foster
16 parents are obligated to enter into a "Foster Parents Agreement" with the social services
17 agency. (SAC, 172, Exhibit A, p.1). Therefore, Plaintiffs' rights and obligations as foster
18 parents were defined both by statute and by the terms of a written contract.
19 The specific terms of this contract provided that the Defendants could "(4) Not
20 remove the child with less than 7 calendar days written notice. . ." (Exhibit A, signed by
21 Defendant Mann). As a contractual matter, Plaintiffs' were guaranteed due process rights
22 prior to the removal of R.T. from their care. 4
23 III
24 III
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27 4 At present, the Plaintiffs' California Welfare and Institutions Code section 827 Petition is
28 pending before the Juvenile Court. Until such petition is granted, Plaintiffs' are precluded from using any juvenile court records due to confidentially.
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B. "Prospective Adoptive Care Givers" Like Peter and Beverly are Entitled to Notice and a Full Hearing Before The Placement Could Be
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Terminated
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In determining whether a status or right is fundamental, the courts consider its effect
4 Ilin human terms and its importance to the individual's life situation. C. V. C. v. Superior
5 Court, 29 Cal.App.3d 909, 916 (1973). Gain of a child for adoption fulfills the prospective
6 parents' most cherished hopes. Ibid. The event marks the onset of a close and meaningful
7 relationship. Ibid. The emotional investment does not await the ultimate decree of adoption.
8 Ibid. Love and mutual dependence set in ahead of official cachets, administrative or
9 judicial. Ibid. The placement initiates the closest conceivable counterpart of the relationship
10 of parent and child. Ibid. To characterize enforced removal of the child as a "grievous loss"
11 is to state the obvious. Ibid. California courts have long held that prospective adoptive
12 caregivers have a liberty interest in continued custody. The Fourteenth Amendment's
13 guarantee of due process of law requires notice and an opportunity to be heard before an
14 individual suffers governmental deprivation of a fundamental interest. C. V. C. v. Superior
15 Court, 29 Cal.App.3d 909, 916 (1973). A prospective adoptive parent suffers such a
16 deprivation of their liberty interests when a child is removed. Adoption of Baby Girl B., 74
17 Cal.App.4th 43, 51(1999). "[A] placement can originally have one purpose - i.e., foster
18 care - and metamorphose into an adoptive placement, even absent formal paperwork. The
19 intent of the parties must surely be evaluated, along with the objective indicia of adoption
20 proceedings." Jinny N. v. Superior Court, 195 Cal.App.3d 967, 972 (1987).
21 As early as January 2009, Plaintiffs expressed their desire to adopt R.T. and
22 continuously engaged in adoptions discussions with the Defendants. In fact, by April 2010,
23 the juvenile court was apprised of the Plaintiffs' desire to adopt R.T., and as a result the
24 juvenile court ordered Defendants to ensure the adoptions unit was notified. In May 2010,
25 Peter met with adoptions social worker Julie Mann, who stated that Peter and Beverly,
26 would "have no problems adopting [R.T.]." As prospective adoptive parents, Plaintiffs
27 suffered a deprivation of their fourteenth amendment rights when R.T. was removed
28
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 12
1 without judicial authorization and in the absence of exigent circumstances. Adoption of
2
Girl B., supra, 74 Cal.App.4th at 51.
3
C. Social Workers Violated Peter and Beverly's Fourteenth Amendment Rights When They Seized R.T. Without First Obtaining Judicial
4
Authorization
5
Officials cannot lawfully remove a child absent "information at the time of the
6 seizure that establishes 'reasonable cause to believe that the child is in imminent danger of
7 serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that
8 specific injury." Mabe v. San Bernardino County, Dept. of Public Social Services, 237
9 F.3d 1101, 1106 (9th Cir. 2001); Wallis ex rel. Wallis v. Spencer, 202 F.3d 1126, 1138 (9th
10
2000). Such reasonable cause must be supported by "specific, articulable evidence."
11 11 Wallis, 202 F. 3d at 1138. And reasonable avenues of investigation must first be pursued.
12 IIIbid; see also, Anderson-Francois v. County of Sonoma, 415 Fed.Appx. 6, 9 (9th Cir.
13 2011).
14 Here, R.T. was seized from the Plaintiffs' custody without judicial authorization and
15 in the absence of imminent danger of serious bodily injury. It is alleged that the entire
16 "exigency" claimed by Defendants was a trumped-up pretext. There is no admissible
17 evidence at this point in the proceedings to properly challenge these allegations.
18 D. Any Reasonable Social Worker in Santa Barbara County Would Know it Was a Violation of Plaintiffs' Rights to Seize R.T. Based on Trumped-
19 Up Allegations of Exigency
20 A court engaging in review of a qualified immunity claim uses its full knowledge of
21 its own and other relevant precedents. Elder v. Holloway, 510 U.S. 510, 516 (U.S. 1994).
22 Precedent directly on point is not necessary. Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th
23 Cir. Wash. 2001). General statements of law are capable of giving fair and clear warning to
24 government officials about the constitutionality of their conduct. United States v. Lanier,
25 520 U.S. 259, 271 (U.S. 1997). A general constitutional rule already identified in decisional
26 law may apply with obvious clarity to the specific conduct in question, even though the
27 very action in question has not previously been held unlawful. Ibid. Otherwise, government
28 officials would escape responsibility for the most egregious forms of conduct simply
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 13
I Ilbecause there was no case on all fours prohibiting that particular manifestation of
2 unconstitutional conduct. Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir.
3 Cal. 2003). In appropriate circumstances a constitutional right may even be clearly
4 established by reference to common sense. DeBoer v. Pennington, 206 F.3d 857, 864-865
5 (9th Cir. Wash. 2000), vacated on other grounds by Bellingham v. DeBoer (2001) 532 U.S.
6 992.
7 Nelson v. City of Davis, 685 F.3d 867, 886 (9th Cir. Cal. 2012), should be read
8 together with Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. Cal. 2003) for
9 the proposition that a government agent's training may be considered in determining
10 whether the Defendants should have known they were violating Plaintiffs' due process
11 rights when they seized R.T. in the known absence of any real exigency, without first
12 obtaining a court order. Here, the Second Amended Complaint clearly alleges that the
13 Social Worker Defendants had extensive training regarding the rights of people in Plaintiffs
14 circumstances. (SAC 147, 171-172, 177, 183-184,192-192, and 1107). In addition to the
15 extensive training these Defendants received, Defendant Mann actually signed the contract
16 with Defendants herself - presumably she read it when she signed it. It is difficult to
17 understand how she could not have known it would be a violation of Plaintiffs' due process
18 rights to seize R.T. based on trumped-up claims of exigency.
19 In the absence of binding precedent, a court should look to whatever decisional law
20 is available to ascertain whether the law is clearly established for qualified immunity
21 purposes; this includes review of decisions of state courts, other circuits, and district courts.
22 See, Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995). Even "unpublished decisions of
23 district courts may inform our qualified immunity analysis." Sorrels v. McKee, 290 F.3d
24 965, 971 (9th Cir. 2002).
25 Brown v. County of San Joaquin, 601 F. Supp. 653, 665 (E.D. Cal. 1985) and Elwell
26 v. Byers, 2009 U.S. Dist. LEXIS 60863, 14-15 (D. Kan. July 16, 2009) are apropos to the
27 circumstances here. Elwell is nearly identical. There, the defendants were not entitled to
28 lqualified immunity. The Court may also look to C.V.C. v. Superior Court, 29 Cal.App.3d
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 14
1 909, 916 (1973), Adoption of Baby Girl B., 74 Cal.App.4th 43, 51(1999), and Jinny N. v.
2 Superior Court, 195 Cal.App.3d 967, 972 (1987) for guidance. These cases suggest there is
3 a very clearly established due process right to the continued custody of long-term foster
4 children where, as is the case here, the foster parent or prospective adoptive parent has
5 demonstrated a sincere desire to adopt the child.
6 California statutes recognize the rights of long-term foster parents and prospective
7 adoptive parents, and require that notice and an opportunity to object to removal be
8 provided. The Director of the Health and Welfare Agency implements and adopts
9 regulations for the governance of social workers. See, Cal. Weif. & Inst. Code, §10553
10 and 10554. Under the regulations adopted by the Agency, social workers must provide all
11 foster parents in California "at least seven calender days' advance written notice of intent to
12 remove a child." (SAC, Exhibit B, pg. 106, Regulation 34-440.1). In addition, the contract
13 Santa Barbara signed with Plaintiffs expressly states that the agency and its workers shall
14 "(4) Not remove the child with less than 7 calendar days written notice. . ." These
15 promises of "notice" and an opportunity to "grieve" or be heard, are not hollow words.
16 They implicate the concepts of due process embodied in the Constitution's Fourteenth
17 Amendment. See, e.g., Elwell v. Byers, 2009 U.S. Dist. LEXIS 60863, 14-15 (D. Kan. July
18 16,2009).
19 In Brown v. County of San Joaquin, 601 F. Supp. 653, 665 (E.D. Cal. 1985) the
20 district court noted that the foster family relationship is sufficiently similar to other familial
21 relationships held by the Supreme Court to be entitled to constitutional protection that for
22 purposes of assessing the rights of foster parents or prospective adoptive parents "the foster
23 parent - foster child relationship has precisely the same form and content as a healthy
24 biological parent-child relationship, and in the face of that reality, the circumstances of its
25 creation are immaterial."
26 III
27
28 1/// PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION
Case No. CV12-2317 DSF (FMOx) Page 15
1
E. Social Workers Are Not Entitled to Absolute Immunity for Fabricating Evidence During an Investigation or Making False Statements in a
2
Dependency Proceeding
3
Defendants argue that they are entitled to absolute immunity. (See Defendants'
4
1 t Dismiss, Pg. 17, in. 1-15). They are wrong. There is a presumption that
5 llqualified, rather than absolute, immunity is sufficient to protect officials in the exercise of
6 Otheir duties. Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003). Thus, the scope of
7 absolute immunity for social workers is extremely narrow. (Id. at 898). In Beltran v. Santa
8 Clara County, 514 F.3d 906, 908 (9th Cir. Cal. 2008), the court acknowledged that a social
9 worker would only be entitled to absolute immunity, if at all, for the "decision" to institute
10 dependency proceedings. However, the court made it clear that "[social workers] are not
11 entitled to absolute immunity from claims that they fabricated evidence during an
12 investigation or made false statements in a warrant affidavit that they signed under penalty
13 of perjury, because such actions aren't similar to discretionary decisions about whether to
14 prosecute." Ibid.
15 The Ninth Circuit has further reiterated and expanded on their decision in Beltran
16 and concluded that "social workers are not afforded absolute immunity for their
17 investigatory conduct, discretionary decisions or recommendations." Tamas v. Dept of Soc.
19 Here, the social worker defendants are not being sued for their "decision" to initiate
20 any dependency proceedings, but rather for an unlawful warrantless removal of R.T., and
21 for making false statements to the juvenile dependency court in the ensuing proceedings. In
22 the Ninth Circuit, social workers are not entitled to absolute immunity for such conduct.
23 F. The Social Worker Defendants are Not Entitled to Qualified Immunity For Deceptive Statements to The Juvenile Court
24 Defendants argue that Costanich v. Dep't of Soc. & Health Sen's., 627 F.3d 1101,
25 (9th Cir. Wash. 2009) stands as "binding" precedent for the proposition that Plaintiffs' right
26 to be free of false or perjured evidence in juvenile proceedings was not clearly established
27 until 2010. This argument is based solely on dicta contained in Costanich stating that
28 " forward" reasonable government officials are on notice that such conduct violates
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 16
1 the Plaintiff's rights. Costanich, supra, 627 F.3d at 1115. This statement is taken out of
2 context. The doctrine of precedent extends only to the ratio decidendi of a decision, not to
3 supplementary or explanatory comments which might be included in an opinion. See, e.g.,
4 4reso v. CarMax, Inc. 195 Cal. App. 4th 996, 1005-1006 (Cal. App. 2d Dist. 2011). Mere
5 observations by an appellate court are dicta and not precedent, unless a statement of law
6 was necessary to the decision. Ibid.
7 Long before Costanich was published, it was already well established in the Ninth
8 Circuit that social workers were not entitled to qualified immunity for their acts of judicial
9 deception. For purposes of determining when a proposition was "clearly established" for
10 qualified immunity purposes Courts focus only on whether the right allegedly violated was
11 clearly established "at the time of the incident." Greene v. Camreta, 588 F.3d 1011, 1031
12 (9th Cir. Or. 2009). Thus, the only issue before the court, and addressed, in Costanich was
13 whether the right to be free from the use of false or perjured evidence by the government
14 during civil proceedings was "clearly established as of 2001, when the conduct at issue in
15 [Costanich] occurred." (Costanich, supra, 627 F.3d at 1115). Ergo, the court's "going
16 forward" statement was made in reference to the specific conduct at issue there - which
17 occurred in 2001 before any closely analogous case had been published.'
18 Marching forward in time from 2003, the Federal District Court in Toler v. Paulson,
19 551 F. Supp. 2d 1039 (E.D. Cal. 2008), denied qualified immunity and correctly concluded
20 that the right to be free from deception in the presentation of evidence in civil proceedings
21 was established in 2005. Toler, supra, 551 F. Supp. 2d at 1043 and 1047. Neither
22 Devereaux, nor Toler have been overturned. This fact is important to underscore the
23 specific timing and context in which the Costanich court's comments should be construed.
24 To highlight the point more clearly, in 2009 one year before the Costanich opinion
25 was published, the Ninth Circuit Court of Appeals held that "the right to be free from
26
27 51t bears note that Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir. Wash. 2001)
was not decided until several months after the conduct addressed in Costanich occurred. 28 Hence, it would have been impossible for the Defendants there to know of the closely
analogous circumstances of that case. PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION
Case No. CV12-231 7 DSF (FMOx) Page 17
I deception in the presentation of evidence during a protective custody proceeding [itself a
2 civil action] was clearly established at the time Camreta filed his affidavit [in 20031 with
3 the Juvenile Court." Greene v. Camreta (9th Cir. Or. 2009) 588 F.3d 1011, 1018-1019 and
4 1034-1035. The Green decision cannot be ignored.
5 These cases were published prior to Costanich, yet the Court in Costanich does not
6 address - or overrule - either Greene or Toler.
7 2. Plaintiffs' Second Amended Complaint States Sufficient Facts to Support a Section 1983 Claim Against the County of Santa Barbara
8 Municipalities are subject to liability under Section 1983. Monell v. Dept of Soc.
9 Sen's., 436 U.S. 658 (1978). A Monell cause of action contains the following two elements:
10 (1) fault, i.e. that the municipality's policy or custom is the source of the constitutional
11 violation, and (2) causation. Id. at 690.
12 Under the Monell doctrine, Plaintiffs may recover from the municipality if their
13 injury was inflicted pursuant to policy, regulation, custom, or usage. Chew v. Gates, 27
14 F.3d 1432, 1444 (9th Cir. Cal. 1994).
15 A "custom or usage" can be demonstrated by (1) actual knowledge of official policy
16 makers and a failure to correct, address or discipline the errant workers; McRorie v.
17 Shimoda, 795 F.2d 780, 784 (9th Cir. 1986); Grandstaff v. City of Borger, 767 F.2d 161
18 (5th Cir. 1985), (2) unconstitutional conduct by a municipal agent which is ratified by an
19 official policymaker through approval of the subordinate's decision and the basis for that
20 decision; Gillette v. Delmore, 979 F.2d 1342, 1346-48 (9th Cir. 1992), or (3) sufficiently
21 notorious or conscience-shocking misconduct so that official policymakers know or should
22 know of the risk to people's federal rights; Collins v. City of Harker Heights, 503 U.S. 115,
23 116 (1992).
24 - Santa Barbara County Ratified The Alleged Misconduct
25 A municipality may be liable for an isolated constitutional violation if the final
26 policymaker "ratified" a subordinate's actions. Christie v. lopa, 176 F.3d 1231, 1238-1239
27 (9th Cir. Haw. 1999). To show ratification, a plaintiff must prove that the "authorized
28 policymakers approve a subordinate's decision and the basis for it." Id. Here, in addition to
PLAINTIFFS' OPPOSITION TO COUNTY DEFENDANTS' FRCP 12(b)(6) MOTION Case No. CV12-231 7 DSF (FMOx) Page 18
1 all the allegations showing the chain of events that led to R.T.'s ultimate seizure from
2 Plaintiffs' care and the deceptive tactics used by Defendants to ensure that R.T. was not
3 returned to Plaintiffs' care, Plaintiffs have also alleged that the County of Santa Barbara
4 has delegated full policy making authority to Gallagher and Neira. (SAC 16-918, and 1100-
5 ¶101). In addition, Plaintiffs have alleged not only that Gallagher and Neira were informed
6 of the underlying facts and circumstances, but also that Gallagher and Neira participated
7 directly in making the decision to allow their subordinates to engage in the misconduct
