Plaintiff James Barber, the biological father and legal guardian of J.B., a minor, sued Defendant James Miller, a social worker, alleging § 1983 claims related to Miller’s in-school interviews of J.B. on suspicion of child neglect. These interviews led to a court order placing J.B. in protective custody. Barber also challenged the constitutionality of a Michigan statute authorizing such in-school interviews. The district court dismissed the claims against Miller on grounds of absolute and qualified immunity and dismissed Barber’s constitutional challenge for lack of standing. We AFFIRM.
I. Facts
In January 2011, a member of Barber’s family reported to the Children’s Protective Services unit of the Michigan Department of Human Services (CPS) that Barber was neglecting J.B. Soon after, Miller, a CPS social worker, interviewed J.B. at his public elementary school without first obtaining a court order or Barber’s consent. That same day, Miller interviewed Barber and inquired about his use of con
These various interviews prompted Miller to petition the family court to place J.B. in protective custody pending a hearing. See Mich. Comp. Laws §§ 712A.14b, 722.638. The court issued a protective-custody order; Miller picked J.B. up from school pursuant to that order. After a two-day hearing held over three calendar days, the judge found probable cause to support one or more allegations in the petition. Deciding to return J.B. to Barber’s custody nevertheless, the judge conditioned the return on: Barber’s abstaining from marijuana until further notice of the court, submitting to drug screening, and ensuring that J.B. has constant adult supervision.
Displeased with the intervention by CPS, Barber sued Miller under 42 U.S.C. § 1983 for violating his constitutional rights. He alleged that Miller violated J.B.’s Fourth Amendment rights and Barber’s Fourteenth Amendment substantive due process rights by (1) interviewing J.B. at school without a court order or parental consent, (2) littering the protective-custody petition with falsehoods and misrepresentations, and (3) removing J.B. from school pursuant to the protective-custody order. Barber also sought a declaratory judgment striking down Mich. Comp. Laws § 722.628(8), (9) — the statute .authorizing CPS to conduct in-school interviews of suspected child-abuse victims without parental consent — as facially unconstitutional under the Fourth and Fourteenth Amendments.
Miller moved to dismiss, and the district court granted the motion as to all claims. Specifically, the court cited Pittman v. Cuyahoga County Department of Children & Family Services,
II. Standard of Review
“Whether a defendant is entitled to absolute or qualified immunity from liability under 42 U.S.C. § 1983 is a legal question that this Court reviews de novo.” Moldowan v. City of Warren,
III. Absolute Immunity
Barber first argues that Miller violated both his and J.B.’s constitutional rights by including false and misleading
Here, Barber complains that Miller included false and misleading statements of fact in the protective-custody petition. But Miller offered his factual assessment in his capacity as a legal advocate initiating a child-custody proceeding in family court; Pittman therefore shields. And though Barber invites this court to revisit Pittman, we may not. See United States v. Elbe,
IV. Qualified Immunity
Barber also claims that Miller violated J.B.’s Fourth Amendment rights and Barber’s Fourteenth Amendment rights by interviewing J.B. at school and later taking J.B. into protective custody. There being no grounds for Miller to invoke absolute immunity as to these actions, see Pittman,
As it is well-understood, we only briefly review the governing law. Once a defendant invokes qualified immunity, the plaintiff bears the burden of showing that (1) the defendant’s acts violated a constitutional right and (2) the right at issue was clearly established at the time of the defendant’s alleged misconduct. Barker v. Goodrich,
In Pearson, the Supreme Court detailed a range of circumstances in which courts should address only the clearly established prong. Id. at 236-42,
“For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Leonard v. Robinson,
A. The In-School Interviews
Barber contends that Miller violated J.B.’s Fourth Amendment rights and Barber’s Fourteenth Amendment rights by interviewing J.B. at school on suspicion of child neglect. He protests Miller’s conducting these interviews in the absence of a court order or parental consent. Because Barber fails to show that these rights were clearly established at the time of the interviews, Miller enjoys qualified immunity.
Fourth Amendment Rights Not Clearly Established
We find that J.B.’s Fourth Amendment right to avoid warrantless, in-school interviews by social workers on suspicion of child abuse not to have been clearly established in January 2011, when Miller interviewed J.B. Barber relies on Andrews v. Hickman County,
In Andrews, the plaintiff asserted that social workers — along with several police officers — entered and searched his home without his permission and coerced him into granting permission to interview his children outside his presence.
A year later, this court denied qualified immunity to social workers who effectuated a warrantless removal of children from their homes, holding that — by 2002 — clearly established Fourth Amendment law prohibited such action. See Kovacic,
*846 [W]hile Andrews addressed the warrant-less entry of social workers into homes, our case at bar involves the warrantless removal of children from their homes.... While there certainly remain unresolved issues relating to the Fourth Amendment, as noted by the dissent, the issue at hand — whether a government official can seize children from their homes without a warrant or exigent circumstances — is simply not one of them.
Id. at 699 (footnote omitted).
Thus, Andrews and Kovacic instruct that, by 2008, social workers entering a home without a warrant violated no clearly established rights, but those removing a child from a home without a warrant did. Inasmuch as both decisions turned on the greater constitutional concerns surrounding government intrusion into a citizen’s home, see Andrews,
And even if we were to accept Barber’s view that the warrantless, in-home questioning in Andrews mirrors the interviews here, the Andrews court granted the social workers qualified immunity because circuit precedent in 2008 provided little instruction on the Fourth Amendment’s application to social workers.
Barber also relies on two out-of-circuit cases to support his contention that Miller’s interviews violated J.B.’s clearly established rights. But because the Supreme Court vacated the Fourth Amendment holding in one of those cases on mootness grounds, Greene v. Camreta,
Doe lends little support to Barber’s position regarding the clearly established nature of J.B.’s Fourth Amendment rights because a single out-of-circuit case generally cannot clearly establish the law in the Sixth Circuit. See Brent,
For the decisions of other courts to provide such “clearly established law,” these decisions must both point unmistakably to the unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable [social worker] that his*847 conduct, if challenged on constitutional grounds, would be found wanting.
Russo,
In the end, Barber falls short of demonstrating that J.B.’s Fourth Amendment rights in the context of warrantless, in-school interviews by social workers on suspicion of child abuse were clearly established in our circuit at the time of the interviews. Given the lack of guidance in this area, we are hard pressed to say that a “reasonable social worker, facing the situation in the instant case, would have known that [his] conduct violated clearly established law.” Andrews,
Fourteenth Amendment Rights Not Clearly Established
Barber also contends that these interviews violated his Fourteenth Amendment substantive due process rights. He describes these rights as the “fundamental liberty interest of natural parents in the care, custody, and management of their child,” and argues that government intrusions on these rights must pass strict scrutiny. But in pressing the clearly established feature of these rights, he cites two cases that have little relevance to the factual situation here. In Wisconsin v. Yo-der, the Supreme Court held that a state statute requiring parents to send their children to high school infringed on the religious liberties of Amish parents.
In fact, our circuit has explained that “[m]ere investigation by authorities into child abuse allegations without more ... does not infringe upon a parent’s right to custody or control of a child.” Kottmyer v. Maas,
B. The School Pick Up
Barber also claims that Miller violated his and J.B.’s clearly established Fourth and Fourteenth Amendment rights by removing J.B. from school pursuant to the protective-custody order.
Fourth Amendment Rights Not Clearly Established
Barber points to no Supreme Court or Sixth Circuit case law clearly establishing J.B.’s right to avoid removal from school under the circumstances here. And his reliance on Kovacic again proves unhelpful. The social workers there effectuated a warrantless removal of the children from
In contrast, Miller obtained a court order before removing J.B. from school. Barber’s general assertions that “the Fourth Amendment was violated as to J.B. when he was seized pursuant to the order” that he claims “was based on false statements and otherwise lacked probable cause” invoke no clearly established right.
No Fourteenth Amendment Deprivation by Miller
Barber also argues that Miller violated Barber’s clearly established substantive due process rights by removing J.B. from school pursuant to the court order. In this circuit, “[a] parent is necessarily deprived of his or her right to custody and control of their child, either permanently or temporarily, when a child is removed from the home.” Kottmyer,
As in Pittman and Kolley, the family court here possessed the final authority to issue the protective-custody order. See Godboldo v. Cnty. of Wayne, No. 14-11065,
V. Declaratory Judgment
Finally, Barber seeks a declaratory judgment striking down Mich. Comp. Laws § 722.628(8) and (9) as unconstitutional under the Fourth and Fourteenth Amendments. This statute requires schools to cooperate with CPS’s child-abuse investigations by “allowing access to the child without parental consent if access is determined by the department [of human services] to be necessary to complete the investigation or to prevent abuse or neglect of the child.” Mich. Comp. Laws § 722.628(8). The district court held that Barber lacked standing to challenge the statute because he “provided no evidence that he has been threatened with further or repeated removals of J.B. or future proceedings in family court.” We agree.
To support Article III standing, Barber must show — among other things — that it is “likely, as opposed to
In arguing for standing, Barber insists that state law requires him to send J.B. to school, and social workers will therefore have future access to J.B. under § 722.628. Barber further points out that, about eleven days after CPS returned J.B. to his custody, a social worker followed up with Barber, which suggests CPS’s “ongoing interest into [Barber’s] familial affairs.” Finally, he contends that future injury is likely because CPS routinely fails to follow mandatory procedures under state law, such as video or audio recording the interviews of children.
These allegations — taken as true- — evidence no “certainly impending” injury. Barber suffers no immediate threat of harm from the challenged statute greater than that of any other parent in Michigan. See Johnson v. Turner,
VI. Conclusion
Discerning no error in the district court’s dismissal, we AFFIRM.