Hernandez Ex Rel. Hernandez v. Foster, 2011 U.S. App. LEXIS 17861

DCFS removed 15-month-old Jaymz from his parents and placed him in protective custody after a September 8, 2008 visit stemming from a buckle arm fracture with conflicting parental explanations.
Nurse Luebke and Dr. Kostinsky reported inconsistencies and concerns of potential abuse; the hospitalization showed no external signs of abuse beyond the fracture.
Foster-Stith, a DCFS supervisor, prepared an action plan and, with Ruppe, decided to pursue protective custody due to inconsistent information and ongoing concerns.
Jaymz was placed with maternal great-grandparents for 48 hours and a safety plan was later implemented, limiting parental contact pending further investigation.
Medical opinions during the investigation generally supported an accidental fall rather than abuse, yet the plan to detain Jaymz continued; a second safety plan was later terminated after further review.
The district court granted summary judgment on several claims; the Seventh Circuit reversed in part and remanded for factual development on several due process and safety-plan issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether continued withholding of Jaymz violated rights	Hernandezes claim continued withholding violated substantive due process	Defendants contend ongoing custody was justified by probable cause or exigent circumstances	Genuine issues of material fact about continued withholding exist; qualified immunity may not apply to that claim
Whether initial removal violated Fourth Amendment or was protected by qualified immunity	Removal lacked definitive probable cause; information was insufficient	Investigation and inconsistencies justified removal under probable cause; qualified immunity applicable	Qualified immunity; reasonable officials could have believed removal lawful under the circumstances
Whether safety-plan coercion violated due process	Safety-plan agreement coerced by threats and misrepresentation	Safety plan offered voluntarily; no coercion or misrepresentation	Triable issue whether coercion occurred; district court erred in granting summary judgment on safety-plan claims
Procedural due process before and during removal	Due process required pre-deprivation hearing absent exigent circumstances	Post-deprivation process and emergency removal peuvent satisfy due process under Jensen/Brokaw line of cases	Qualified immunity not available for procedural claims tied to coercive safety-plan; issue of pre-deprivation hearing remains fact-dependent

Brokaw v. Mercer Cnty., 235 F.3d 1000 (7th Cir. 2000) (pre-deprivation hearing and exigency guidelines for child removal; probable cause governs seizure)
Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) (Fourth Amendment governs seizure of child from home in removal context)
Siliven v. Indiana Dep't of Child Servs., 635 F.3d 921 (7th Cir. 2011) (probable cause and reasonableness standard for ongoing detention; totality of circumstances)
Jensen v. Foley, 295 F.3d 745 (7th Cir. 2002) (discussion of pre- vs post-deprivation hearings and probable cause in removal contexts)
Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006) (safety-plan coercion; improper to coerce parental consent without authority; duress standard)
BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986) (continuation of initial detention when later facts dissipate probable cause; due process concerns)
Gomes v. Wood, 451 F.3d 1122 (10th Cir. 2006) (compatibility with exigent circumstances standard in removal without pre-deprivation hearing)