Lowther v. Children Youth and Family DepartmentLowther v. Children Youth and Family Department
Vincent Ward, The Ward Law Firm, Albuquerque, New Mexico, for Plaintiffs-Appellants.
Brian Griesmeyer, SaucedoChavez, P.C. (Frank T. Apodaca with him on the brief) and H. Nicole Werkmeister, Stiff, Garcia & Associates, LLC (John S. Stiff and Kathy L. Black on the brief), Albuquerque, New Mexico, for Defendants - Appellees.
Before McHUGH, MURPHY, and CARSON, Circuit Judges.
McHUGH, Circuit Judge.
New Mexico‘s Children, Youth, and Family Department (“CYFD“) received an anonymous report that Dr. Adam Lowther was sexually abusing his four-year-old daughter, A.L. The report was based on a disclosure A.L. made to her schoolteacher
Ultimately, the charges against Dr. Lowther were dismissed and the children returned to their parents. Dr. and Mrs. Lowther then sued various state officials on behalf of themselves and their children, asserting constitutional claims under
I. BACKGROUND
A. Factual History
1. The Initial Report
At the time of the removals, Dr. and Mrs. Lowther had two children, seven-year-old W.L. and four-year-old A.L. A.L. was enrolled in school and taught by Betty DuBoise. On August 25, 2017, Ms. DuBoise called Dr. Lowther and told him A.L. had been “touching [A.L.‘s] private area and hiking up her dress” in class. App. Vol. II at 492. Dr. Lowther said that he and Mrs. Lowther had “been working with” A.L. on this behavior and that “she gets it from watching” her brother “touch himself while sucking his thumb.” Id. A few days later, Ms. DuBoise spoke with Mrs. Lowther about A.L.‘s behavior. Mrs. Lowther stated that A.L. had “been having a hard time and that she would talk with her.” Id.
On August 30, 2017, at approximately 2:28 p.m., Ms. DuBoise anonymously called CYFD. She reported her suspicion that Dr. Lowther was sexually abusing A.L.1 CYFD‘s intake report described Ms. DuBoise‘s account as follows, with Ms. DuBoise identified as “Source“:
[A.L] told a male student that he had a penis. Source redirected the children. Source asked [A.L.] how she knew the word. [A.L.] says [Dr. Lowther] puts her on his lap when he goes to the bathroom and likes to move her up and down like a horsey. [Dr. Lowther] sleeps with her and kisses her on the lips with tongue. [Dr. Lowther] touches her on her bottom and puts his finger inside of her. [A.L.] was able to demonstrate the movement with her hands and fingers. [A.L.] relayed that her brother kisses her with tongue and that her brother touches her as well. [A.L.] said [Dr. Lowther] also touches her brother but did not give any detail. [A.L.] stated that this happens all the time. Source asked [A.L.] if she had told [Mrs. Lowther]. [A.L.] said [Dr. Lowther] told her not to and that it was their secret. [Dr. Lowther] told [A.L.] that [Mrs. Lowther] would get mad. Source tried to encourage [A.L.] to speak with [Mrs. Lowther] and [A.L.] said [Mrs. Lowther] would yell. [A.L.] has been demonstrating some behaviors in class since the start of school. She is not listening, talking back, she spit at another girl and has been aggressive toward other children.
Less than two hours later, at approximately 3:45 p.m., CYFD Investigator Maria Morales contacted Ms. DuBoise and confirmed the contents of the intake report. Investigator Morales also contacted the Bernalillo County Sheriff‘s Department (“BCSO“) and “request[ed] assistance in conducting a welfare check of the Lowther children.” Id. at 492. At approximately 3:50 p.m., BCSO dispatched Deputies Catherine Small, Brian Thornton, and Martin Lozano (collectively, “the Deputies“) to the Lowther home, with Deputy Small as the lead field deputy.2
2. First Contact with the Lowthers
At 4:05 p.m., the Deputies arrived at the Lowther home and met with Investigator Morales, who gave them “more detail regarding the nature of the allegations.” Id. at 493. At approximately 4:19 p.m., the Deputies knocked on the Lowthers’ front door and began speaking with Mrs. Lowther. Mrs. Lowther was on the phone with Dr. Lowther when she answered the door, and she contemporaneously relayed her conversation with the Deputies to Dr. Lowther.
The Deputies told Mrs. Lowther they needed to conduct a welfare check of her children. They said a welfare check was necessary “because ‘somebody called and wanted to remain anonymous that they were worried [about the children].‘” Id. at 494 (alteration in original). Mrs. Lowther refused entry, stating she would not let the Deputies “in the house until her husband arrived.” Id. Deputy Thornton responded, “So in [the] State of New Mexico, and we‘re conducting a check on children, if you deny us access you can be arrested.” Id.
Mrs. Lowther relayed Deputy Thornton‘s response to Dr. Lowther. She also stated, “I don‘t understand what‘s going on-what? Well, that‘s what they‘re telling me, I don‘t know what to do here. I don‘t understand what‘s going on.” App. Vol. VI at 1322. Mrs. Lowther told the Deputies that Dr. Lowther was on his way home and that they needed to stay outside until he arrived. Deputy Thornton replied, “Sure,” but told Mrs. Lowther she could not close the front door. Id. at 1323. Mrs. Lowther told Dr. Lowther that she was “not allowed to close the door.” Id. Mrs. Lowther also instructed A.L. and W.L. to go to their rooms.
Deputy Thornton offered to explain “what‘s going on” if Mrs. Lowther ended her call with Dr. Lowther. Id. Mrs. Lowther said she did not want to end the call, and Deputy Thornton replied, “That‘s fine.” Id. However, Deputy Thornton did explain that the visit was prompted by a phone call CYFD received “from school.” Id. at 1324.
3. Dr. Lowther‘s Arrival
At approximately 4:41 p.m., Detective Jacob Wootton was dispatched to the Lowther home to lead the investigation. On his way, he instructed the Deputies to detain Dr. Lowther when Dr. Lowther arrived.
Dr. Lowther arrived home at 4:42 p.m. Deputy Thornton met him outside and explained that the Deputies were responding to an anonymous call concerning the welfare of the Lowther children. The Deputies
Investigator Morales also spoke with Dr. Lowther when he arrived. She briefly explained that there were allegations of child abuse, but she did not identify the suspected perpetrator. Investigator Morales provided Dr. Lowther with a parent‘s guide that detailed the process if the children were taken into CYFD custody and Dr. Lowther‘s right to file a complaint against her. Investigator Morales told Dr. Lowther that she would provide more detail when Detective Wootton arrived.
After Dr. Lowther and Investigator Morales spoke, Dr. Lowther informed Deputy Thornton “that he was ‘not going to let anybody into the house.‘” App. Vol. II at 495. In response, Deputy Thornton detained Dr. Lowther by placing him in the back of a patrol car. At this point, Deputy Thornton clarified for Dr. Lowther that the complaint was specifically against him. Deputy Thornton also stated that Detective Wootton would explain more when he arrived and that
While Dr. Lowther was in the patrol car, Deputies Thornton and Lozano asked him if there were firearms in the home and where they were located. Dr. Lowther confirmed he had firearms in the home and said Mrs. Lowther would know their location. Deputy Thornton thanked Dr. Lowther for his cooperation.
Shortly after this conversation, Deputy Small asked Dr. Lowther to exit the patrol car. She handcuffed him and had him return to the patrol car.
4. The Warrantless Entry
While Dr. Lowther was outside, the Deputies continued to speak with Mrs. Lowther at the front door. They provided more detail about the CYFD report, including that A.L. made “very descriptive” statements to someone at her school. App. Vol. II at 495. They also told Mrs. Lowther that a detective was on his way. Mrs. Lowther “expressed incredulity” that the visit was prompted by something a four-year-old said. Id. at 496.
The Deputies also explained that “Dr. Lowther was being detained but was not under arrest.” Id. Mrs. Lowther asked what A.L. had said at school, and a deputy told her that he did not know. Mrs. Lowther replied, “At what point is the information going to flow?” App. Vol. VI at 1350. The Deputies said there would be more information after A.L. was interviewed by a child therapist.
The Deputies and Mrs. Lowther continued to talk, and Mrs. Lowther said A.L. “was not unsafe.” App. Vol. II at 496. A deputy responded that if this were his investigation, Mrs. Lowther “would already be in the back of a police car because she was obstructing the officers’ duty to check on the welfare of a child.” Id.
Mrs. Lowther then stated, “My duty is to my husband and my husband-” at which point the deputy cut her off and said, “I don‘t care right now. . . . I‘m just letting you know that if this was my investigation, you would be in handcuffs in the back of a car. So you might want to consider your actions.” App. Vol. VI at 1351.
Deputy Small then addressed Mrs. Lowther. She explained that medical personnel were coming to examine the children, and Mrs. Lowther “could either allow them access or be detained.” App. Vol. II at 496. In response, Mrs. Lowther asked if the child therapist who would interview A.L. had arrived. Deputy Thornton
At this point, Deputy Small again stated that medical personnel were coming and asked Mrs. Lowther if she was going to let them inside or be detained. The Deputies entered the Lowther home at approximately 4:44 p.m., about twenty-five minutes after they first arrived. Medical personnel arrived and did a medical check on the children at about 5:13 p.m. While the Deputies were inside, Mrs. Lowther “lied to the officers regarding her knowledge of whether there were any weapons or firearms in the house.” App. Vol. III at 774. She later “acknowledged the location of the firearms and agreed not to go near them.” Id.
5. Detective Wootton‘s Arrival
Detective Wootton arrived approximately six minutes after the Deputies entered the Lowther home. Detective Wootton understood the situation because he had reviewed the CYFD report, and the Deputies had informed him that Dr. and Mrs. Lowther were not cooperating. Additionally, when Detective Wootton arrived, he discussed the case with Investigator Morales.
When Detective Wootton went inside the home, he read Mrs. Lowther her Miranda rights, and she agreed to answer his questions. Detective Wootton began the interview by asking Mrs. Lowther why she had not let the Deputies inside. She replied, “I just, I just don‘t like letting people into my house who I don‘t know. I was with my children by myself.” App. Vol. VI at 1410. Detective Wootton asked if Dr. Lowther said to let the Deputies in. Mrs. Lowther responded, “He said not to let you in.” Id.
After this exchange, Investigator Morales discussed the abuse allegations with Mrs. Lowther. Investigator Morales explained, “So, the allegations right now that we‘re looking at is sexual molestation and sexual abuse and lack of supervision. So, those are the allegations against both you and dad.” Id. at 1413. Mrs. Lowther replied that these allegations came “completely out of left field.” Id. Detective Wootton then informed Mrs. Lowther that he would be “taking the children on a 48-hour hold.” Id. at 1415.
Next, Detective Wootton went outside to speak with Dr. Lowther. Detective Wootton told Dr. Lowther the specific nature of the allegations and reiterated that Dr. Lowther was not under arrest. Dr. Lowther asked why he was still in handcuffs, and Detective Wootton replied, “I have no idea.” App. Vol. II at 498. Detective Wootton then directed Deputy Thornton to remove the handcuffs. After the handcuffs were removed, Dr. Lowther was placed back in the patrol car.
6. The First Removal & Safehouse Interviews
A.L. and W.L. were removed from their home, transported to a safehouse, and forensically interviewed that night (“First Removal“). A.L. was interviewed twice for a total of fifty-four minutes. W.L. was interviewed once for forty minutes.
The district court provided the following synopsis of the interviews, which the parties have not challenged:
A.L. stated, among other things, that she got into trouble for touching her privates at school; she sits on her father‘s lap while he is defecating; her father touches her “pee-pee” and “gina” in the bathroom, which she repeatedly
stated was their “secret“; her father kisses her “butt-cheeks“; and takes photographs and videos of her “butt and gina,” with his phone, sometimes while she is saying “fuck.” W.L. stated that he and his sister are spanked on the bottom with a wooden spoon; sometimes, mostly by his father, they are slapped on the face; he feels nervous around his mother; he does not feel safe around his father; his father “is real mean and I don‘t like to be around him a lot . . . because he hurts me a lot;” and that his father sometimes pushes him “hard down on the ground” which causes him to hit the back of his head.
Id. at 499.
Detective Wootton reviewed the interviews that night and directed the Deputies to transport Dr. and Mrs. Lowther to the BCSO station. Detective Wootton charged Dr. Lowther with criminal sexual penetration of a minor and criminal sexual contact of a minor. Mrs. Lowther was not charged and was allowed to leave the station. That night, after the interviews, BCSO obtained a warrant and searched the Lowthers’ home.
7. A.L.‘s Physical Exam
The following day, August 31, Investigator Morales took A.L. for a physical exam at the Albuquerque Sexual Assault Nurse Examiners (SANE) Collaborative. A.L. had a follow-up exam the next day, September 1. The follow-up exam occurred at a different facility and was conducted by Dr. Shalon Nienow. Dr. Nienow‘s report noted that in the SANE exam, “an injury was noted at 12 o‘clock on the anus” that was “consistent with tearing and/or bruising.” App. Vol. III at 811. Dr. Nienow reexamined A.L. and reported, “Normal anal folds. Skin tag at 12 o‘clock. Tearing visualized on SANE photographs has resolved with new skin present on right side of anal tag.” Supp. App. at 620. In the “diagnostic impressions” section of the report, Dr. Nienow wrote, “Normal physical examination today. Previous examination with anal tear present. This finding is consistent with the child‘s disclosure of anal penetration and constitutes child sexual abuse.” Id.
8. The Safety Plan
Also on September 1, Investigator Morales and Mrs. Lowther spoke about the allegations against Dr. Lowther. Mrs. Lowther said “she was unaware of any misconduct by her husband” and “did not accept the allegation as true . . . because nothing in [her] 18 years of marriage to him would indicate that he could or would commit any crime.” App. Vol. III at 812. Mrs. Lowther wanted A.L. to be in therapy because she did not believe A.L. “would say such things unless something had happened to her.” Id.
That same day, CYFD developed a safety plan to release the children from protective custody. Mrs. Lowther‘s parents, John and Terry Borg, would act as safety monitors. CYFD uses safety monitors “to allow children to be returned to their parents’ custody, even when CYFD has lingering concerns about the parents’ ability to protect their children.” App. Vol. IV at 1054. Safety monitors must remain neutral and cannot express their belief or disbelief of abuse disclosures. In-home services clinician Andrea Miles explained this neutrality requirement to the Borgs before they became safety monitors.
On September 4, CYFD held a transfer meeting with Mrs. Lowther, the Borgs, Investigator Morales, Ms. Miles, and CYFD supervisors Yvonne Meade and Robin Yoder to discuss returning custody to Mrs. Lowther with the Borgs acting as safety monitors. The meeting participants agreed that Ms. Miles would work with the
9. The Second Removal
On September 5, a New Mexico state district court held a hearing concerning Dr. Lowther‘s release from jail. The assistant district attorney assigned to the case “expressed concerns regarding Dr. Lowther‘s potential access to the Lowther children via his influence over Mrs. Lowther and her parents, the Borgs.” Id. at 1054-55. This concern stemmed from recorded calls between Dr. and Mrs. Lowther “in which they discussed leaving town with the children.” Id. at 1055.
Mr. Borg and Ms. Miles were both at the criminal hearing. During or immediately after the hearing, Mr. Borg approached Ms. Miles and “angrily expressed his disbelief to [her] on the allegations against Dr. Lowther, putting his hand on her, calling her his ‘helper,’ and telling her she needed to fix the situation.” Id. Because of this interaction, Ms. Miles was concerned that Mr. Borg was not a neutral safety monitor.
The following morning, the New Mexico district court issued an order releasing Dr. Lowther from custody. There were several conditions placed on the release, including that Dr. Lowther wear a GPS monitor and not contact Mrs. Lowther or their children. Within thirty minutes after the order was entered, CYFD personnel-including Investigator Morales and Ms. Miles-met to discuss the Borgs’ ability to serve as safety monitors “given Dr. Lowther‘s imminent release from custody.” Id. at 1056. The meeting participants had their “original concerns about the ability of Dr. and Mrs. Lowther to care for their children,” but they were also worried about the Borgs’ ability to remain neutral and the “possibility that Dr. and Mrs. Lowther posed a risk of absconding with” the children. Id.
Based on these concerns, either Investigator Morales or Ms. Miles called Detective Wootton regarding a second 48-hour hold. “[Detective] Wootton considered CYFD‘s input and concerns, and he then decided to place the Lowther children on a second 48-hour hold, before Dr. Lowther was released from jail.” Id. The children were removed a second time (“Second Removal“), although they were ultimately reunited with Dr. and Mrs. Lowther. The charges against Dr. Lowther were dismissed after the district attorney‘s office declined to prosecute.
B. Procedural History
On behalf of themselves and their children, Dr. and Mrs. Lowther filed suit against BCSO, Detective Wootton, the Deputies, CYFD, Investigator Morales, and Ms. Miles (collectively, “Defendants“). They alleged several violations of the United States Constitution and the New Mexico Tort Claims Act. The constitutional claims were brought pursuant to
After several rounds of briefing, the district court granted summary judgment in Defendants’ favor on all federal claims. The Lowthers filed a timely appeal. Before considering the merits of the Lowthers’ appellate arguments, we outline their claims on appeal and the district court‘s relevant rulings.
1. Counts 1 & 10 - Warrantless Arrest
In Count 1, Dr. Lowther asserts that Detective Wootton and the Deputies (collectively,
In Count 10, the Lowthers assert a claim against BCSO under the New Mexico Tort Claims Act for false arrest and imprisonment of Dr. Lowther on August 30, 2017. The district court dismissed this claim based on its ruling that any warrantless arrest of Dr. Lowther was supported by probable cause.
2. Count 4 - Warrantless Entry
In Count 4, the Lowthers assert that Investigator Morales and the County Defendants violated the Fourth Amendment by entering the Lowther home on August 30, 2017, without a warrant.5 The County Defendants argued they are entitled to qualified immunity because Mrs. Lowther consented to the entry and alternatively, because the warrantless entry was justified by exigent circumstances.
The Lowthers argued, among other things, that the County Defendants had not timely raised the exigent circumstances exception. The district court initially ruled that exigency had been waived, but later reconsidered and concluded exigency had been timely raised. The district court further concluded that the County Defendants were entitled to qualified immunity because exigent circumstances justified the warrantless entry. The exigent circumstances were the reasonable suspicion A.L. “had been abused or [was] in imminent peril of abuse.” App. Vol. III at 681. The district court later dismissed Count 4 against Investigator Morales because she is also entitled to qualified immunity based on the exigent circumstances.
3. Counts 5 & 12 - First Removal
In Count 5, the Lowthers assert that Investigator Morales and Detective Wootton violated the Fourth and Fourteenth Amendments6 by removing the Lowther children “without a warrant or reasonable suspicion the children were in imminent danger.”7 App. Vol. II at 571. This claim stems from the First Removal.
The district court granted summary judgment in Detective Wootton‘s favor, concluding the First Removal was justified by exigent circumstances and that even if there was a constitutional violation, the law was not clearly established. The Lowthers asked the court to reconsider this ruling. Among other things, they argued the court incorrectly applied the Fourteenth Amendment exigency standard to their Fourth Amendment claim. In response, Detective Wootton argued that the Fourth and Fourteenth Amendment exigency standards are the same, so the court‘s application was correct. The district court declined to reconsider, concluding “that the standard governing Fourth Amendment violations in the context of the warrantless removal of a child closely tracks that of the Fourteenth Amendment such that qualified immunity should be granted.” App. Vol. III at 778.
The district court later dismissed Count 5 against Investigator Morales as well, reiterating its prior ruling that the First Removal was justified by exigent circumstances and that any constitutional violation was not clearly established.
In Count 12, the Lowthers assert BCSO violated the New Mexico Tort Claims Act by falsely arresting and imprisoning the Lowther children during the First Removal.8 The district court dismissed this claim for the same reasons it dismissed Count 6-exigent circumstances justified the removal.
4. Count 6 - Second Removal
In Count 6, the Lowthers assert that Investigator Morales and Ms. Miles violated the Fourth and Fourteenth Amendments by removing the Lowther children “without a warrant or reasonable suspicion the children were in imminent danger.”9 App. Vol. II at 572. This claim is based on the Second Removal.
Investigator Morales and Ms. Miles moved for summary judgment on Count 6, asserting qualified immunity. They first argued they could not be held liable for the Second Removal because law enforcement officers were responsible for the removal. Alternatively, they argued there was no constitutional violation because of exigent circumstances, namely their reasonable suspicion the children had been abused and were in imminent danger of abuse. They further contended that if there was a violation, it was not clearly established.
The district court ruled that Investigator Morales and Ms. Miles are entitled to qualified immunity because the Lowthers had not shown the alleged violation was clearly established. The district court therefore declined to address the other arguments for dismissal.
5. Final Judgment
After the various summary judgment rulings, only a state law claim against BCSO remained. The district court declined to exercise supplemental jurisdiction over that claim, dismissing it without prejudice. The district court entered final judgment, and the Lowthers timely appealed.
We review de novo a district court‘s grant of summary judgment based on qualified immunity. McInerney v. King, 791 F.3d 1224, 1227 (10th Cir. 2015). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
“When a defendant asserts the defense of qualified immunity, the onus is on the plaintiff to demonstrate (1) that the official conduct violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” A.M. v. Holmes, 830 F.3d 1123, 1134 (10th Cir. 2016) (internal quotation marks omitted). If the plaintiff fails to make either showing, the defendant is entitled to qualified immunity. Id. at 1134-35.
For a right to be clearly established, “there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Mocek v. City of Albuquerque, 813 F.3d 912, 922 (10th Cir. 2015) (quotation marks omitted). The Supreme Court has cautioned “not to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). The “clearly established” inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).
Further, a “clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.‘” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). If reasonable officers could disagree, the right is not clearly established. Malley v. Briggs, 475 U.S. 335, 341 (1986).
The Lowthers challenge the district court‘s rulings on each of the claims outlined above. See supra Section I.B. We address those claims in turn, concluding the district court did not err.
A. Counts 1 & 10 – Warrantless Arrest
Dr. Lowther challenges the district court‘s conclusion that his warrantless arrest was justified by probable cause. We first address this challenge under the
1. Count 1 – Fourth Amendment
The Lowthers assert that when Dr. Lowther arrived home on August 30, 2017, the County Defendants violated the
The
The district court concluded probable cause existed to arrest Dr. Lowther. In reaching this conclusion, the court relied on the following evidence: (1) “[Detective] Wootton had been presented with the contents of the CYFD Report, which included that A.L. had disclosed to [Ms.] DuBoise, in graphic detail, inappropriate sexual conduct with her father“; (2) Investigator Morales spoke to Ms. DuBoise and relayed that conversation to Detective Wootton; and (3) when Detective Wootton arrived at the Lowther home, he was briefed by the Deputies and Investigator Morales, who informed him the Lowthers “had been uncooperative.” App. Vol. II at 504.
Considering the evidence in totality, we perceive no error in the district court‘s probable cause analysis—particularly given A.L.‘s graphic disclosure. Nevertheless, the Lowthers argue probable cause was lacking because the County Defendants relied solely on the double-hearsay statement of a four-year-old. The Lowthers’ argument rests on our decision in Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007) (en banc).
In Cortez, a woman took her two-year-old daughter to the hospital “alleging that the child had complained that her babysitter‘s ‘boyfriend’ had ‘hurt her pee pee.‘” 478 F.3d at 1113 (footnote omitted). A nurse called the sheriff‘s department and reported the disclosure. Id. at 1112–13. Sheriff‘s deputies immediately went to the boyfriend‘s house. Id. at 1113. The deputies “did not wait to receive the results of the medical examination of the child, did not interview the child or her mother, and did not seek to obtain a warrant.” Id. Moreover, they arrived at the home around 1:00 a.m., and when the boyfriend answered the door, the deputies seized, handcuffed, and Mirandized him before putting him in a patrol car and questioning him. Id.
We held that the deputies violated clearly established law because they did not have probable cause to arrest the boyfriend. Id. at 1116–22. We reached this conclusion because the deputies possessed only “a double-hearsay statement, allegedly derived from a two-year-old.” Id. at 1122. Additionally, the deputies “conducted no investigation,” even though “witnesses were readily available for interviews, physical evidence was available, and a medical diagnosis was forthcoming.” Id. at 1117.
Like Cortez, this case involves the hearsay statement of a young child. But there are material differences. First, A.L. was four, not two, and her statement was more detailed than saying somebody “hurt her pee pee.” Id. at 1113. A.L. described specific disturbing actions—she said Dr. Lowther “kisses her on the lips with tongue” and “touches her on her bottom and puts his finger inside of her.” App. Vol. II at 492. A.L. also demonstrated “the movement with her hands and fingers.” Id. at 492–93. She further reported that Dr. Lowther touched W.L. inappropriately and that Dr. Lowther told A.L. not to tell Mrs. Lowther. Additionally, the CYFD report noted that A.L. had been touching herself inappropriately at school.
This case also differs from Cortez because there were not additional witnesses or evidence readily available. See Cortez, 478 F.3d at 1117–19. The mother in Cortez reported the alleged abuse and took her child to the hospital for an examination. Thus, there was nothing to suggest she would impede further investigation. Additionally, the defendants could have interviewed the nurse who reported the alleged abuse and the doctor who examined the child, and they could have waited for the “forthcoming” medical diagnosis. Id. at 1117. In contrast, Mrs. Lowther would not allow the County Defendants inside the house, and she announced she did not take the allegations seriously. So, unlike the defendants in Cortez, the County Defendants did not have evidence or witnesses readily available. See id. at 1117–18.
In sum, A.L.‘s detailed disclosure and her inappropriate behavior in class gave rise to probable cause to believe Dr. Lowther had committed a crime. Because Dr. Lowther has not shown a constitutional violation, the district court properly dismissed Count 1.
2. Count 10 – New Mexico Tort Claims Act
The district court dismissed Count 10, relying on its conclusion that the County Defendants had probable cause to arrest Dr. Lowther. Although the Lowthers identify this as a ruling they challenge on appeal, they offer no argument for why the district court‘s ruling was incorrect. Thus, they waived any argument that the dismissal of Count 10 was erroneous, and we do not consider it further. See Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir. 1992) (“[E]ven issues designated for review are lost if they are not actually argued in the party‘s brief.“).
B. Count 4 – Warrantless Entry
The Lowthers contend that Investigator Morales and the County Defendants violated the
Assuming the warrantless entry
We begin by concluding that although Investigator Morales is not a law enforcement officer, she may be liable for the warrantless entry. Next, we reject the Lowthers’ argument that the County Defendants waived their exigency defense. We then outline our precedent concerning exigent circumstances under the
1. Investigator Morales
Investigator Morales contends that because she is not a law enforcement officer, she could not have obtained a search warrant and was thus entitled to “rely on law enforcement‘s judgment to enter the Lowthers’ home.” CYFD Br. at 25. Consequently, she argues she cannot be liable for an unlawful entry. We disagree.
The
Investigator Morales does not distinguish this case from others where we have declined to recognize a social worker exception to the
2. Waiver
The Lowthers argue the County Defendants waived their exigency defense by not raising it in their Motion for Partial Summary Judgment. Although the parties dispute this point, we assume the County Defendants did not raise exigency in their Motion for Partial Summary Judgment. Even so, the Lowthers had an opportunity to oppose the exigency defense, so the district court was not prohibited from considering it.
“Our case law forbids the district court from relying on new arguments or materials to decide a summary judgment motion unless the opposing party is provided an opportunity to respond.” Geddes v. United Staffing All. Emp. Med. Plan, 469 F.3d 919, 928 (10th Cir. 2006). Before the district court, the Lowthers had two opportunities to respond to the exigency defense.
First, the Lowthers responded to the County Defendants’ Motion for Partial Summary Judgment by filing a combined Response and Cross-Motion for Partial
The exigent circumstances exception was fully briefed before the district court, and the Lowthers had a fair opportunity to address it. As a result, it was not improper for the district court to consider exigent circumstances. Geddes, 469 F.3d at 928; cf. Stewart v. City of Oklahoma City, 47 F.4th 1125, 1132 (10th Cir. 2022) (“Furthermore, we may affirm a grant of summary judgment on grounds other than those relied on by the district court when the record contains an adequate and independent basis for the result.” (internal quotation marks omitted)).
3. Exigent Circumstances
Although the warrantless entry claim is brought under the
As we now explain, our precedent is unclear concerning the applicable exigency standards under the
a. Tenth Circuit precedent
“It is a ‘basic principle of
Under the
Investigator Morales and the County Defendants argue that under both the
The disagreement between the parties stems from our precedent considering exigent circumstances in the child welfare context.
i. Roska ex rel. Roska v. Peterson
In Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1237–38 (10th Cir. 2003), school employees suspected a student was being abused by his mother. Id. at 1238. The employees told a social worker they were worried the student “might die” without intervention. Id. Two days later, social workers and a police officer entered the mother‘s home without a warrant and removed the student without judicial authorization. Id. The student and his family sued the social workers and other state actors under
On appeal, we considered whether exigent circumstances justified the warrantless entry. Id. at 1240–41. Under the
We next considered whether the student‘s removal without judicial authorization violated the
In sum, Roska required evidence of imminent danger under both the
In Gomes v. Wood, 451 F.3d 1122, 1124 (10th Cir. 2006), a mother took her nine-month-old daughter to the pediatrician, claiming the daughter had a skull fracture from falling off a bed. Id. The pediatrician found this explanation “possible but suspicious.” Id. And although he “was comfortable” sending the daughter home, he told the mother he would have to report the injury. Id. at 1125. Several days later, a caseworker removed the daughter from the mother‘s home without a court order. Id. at 1126.
The mother sued the caseworker and others under
We began by explaining that a child may be removed without prior notice and a hearing if there are “[e]mergency circumstances which pose an immediate threat to the safety of a child.” Id. at 1128 (alteration in original) (quotation marks omitted).
However, we acknowledged there is no “precise definition of emergency circumstances which pose an immediate threat to the safety of a child.” Id. (quotation marks omitted). We thus considered caselaw from our sister circuits. Id. at 1129–30. We quoted the First Circuit as noting that “a majority of circuits addressing this issue have held that ‘a case worker . . . may place a child in temporary custody when he has evidence giving rise to a reasonable and articulable suspicion that the child has been abused or is in imminent peril of abuse.‘” Id. at 1129 (alteration in original) (quoting Hatch v. Dep‘t for Children, Youth, & Their Families, 274 F.3d 12, 20 (1st Cir. 2001)). We then acknowledged that the Ninth and Eleventh Circuits require “reasonable or probable cause of imminent danger.” Id.
Ultimately, we decided to follow “the majority approach” and concluded “that 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. Although we stated we were adopting “the majority approach“—which appears to require only reasonable suspicion “the child has been abused,” id. at 1129 (quoting Hatch, 274 F.3d at 20)—the standard we articulated required “a reasonable suspicion of an immediate threat to the safety of the child,” id. at 1130.
Turning back to the merits, we held there was a genuine dispute whether the defendants had reasonable suspicion to remove the daughter without a hearing. Id. at 1135. However, the law was not clearly established because “a reasonable official could have believed that there was an immediate threat” to the daughter‘s safety that justified her removal without a hearing. Id. at 1137. Thus, the defendants were entitled to qualified immunity. Id. at 1138.
iii. Arredondo v. Locklear
In Arredondo v. Locklear, 462 F.3d 1292, 1294 (10th Cir. 2006), a mother took her eleven-month-old daughter, Jasmine, to the emergency room with a fractured arm. Id. The mother gave an inconsistent and confusing explanation for the arm fracture. Id. Additionally, the mother returned to the emergency room four days later because Jasmine could not put weight on her leg. Id. at 1295. Based on the two serious injuries and the “conflicting stories,” hospital staff reported the mother to the
A social worker and a detective went to the family‘s home where they spoke to the mother and inspected the home. Id. The detective removed Jasmine immediately based on the two injuries and because he thought the mother‘s explanation for the injuries was conflicting and unlikely. Id. The detective also wanted to remove Jasmine‘s older sister, Ashley, from the home. Id. Ashley showed no signs of abuse or injury, but the detective was worried she would become a target of abuse once Jasmine was gone. Id. at 1295–96. The social worker believed there was no threat to Ashley and refused to take her into custody. Id. at 1296. The next day, however, the social worker removed Ashley from her home after conferring with other social workers. Id.
Jasmine and Ashley‘s parents sued under
The district court granted summary judgment to the defendants based on qualified immunity, and we affirmed. Id. at 1297, 1302. On appeal, we explained that under Gomes, the state may remove a child without notice and a hearing if there is “evidence giving rise to a reasonable and articulable suspicion that the child has been abused or is in imminent peril of abuse.” Id. at 1298 (quotation marks omitted). We then concluded that “the evidence available to state officials was sufficient to create a reasonable suspicion that Jasmine had been abused, and that Ashley was in imminent peril of abuse.” Id. at 1299. Concerning Jasmine, we stated the defendants “had ample evidence” she “had been abused or was in imminent danger of abuse,” emphasizing that within four days she suffered two injuries that required emergency care. Id. We also explained that a “team of social workers” agreed Jasmine was “in immediate danger of harm.” Id. at 1300. For these reasons, we held there was no
iv. Silvan W. v. Briggs
In Silvan W. v. Briggs, 309 F. App‘x 216, 219 (10th Cir. 2009) (unpublished), a teenager was sexually assaulted by her brother-in-law.11 The teenager‘s mother reported the assault but also “hooked [the brother-in-law] up with a lawyer,” encouraged the teenager to be forgiving, and allowed the brother-in-law in the family‘s home after the assault. Id. Concerned for the teenager‘s safety, police took her into custody without a warrant or hearing. Id. at 220. The family brought a
We addressed the
We then briefly addressed the
v. Halley v. Huckaby
In Halley v. Huckaby, 902 F.3d 1136, 1142 (10th Cir. 2018), the state received an anonymous call from somebody concerned about the safety of a six-year-old boy.12 A police officer—without judicial authorization—removed the boy from school and took him to a safehouse for an interview. Id. at 1142–43, 1147. The interview did not reveal any evidence of abuse, so the boy was taken back to school, and there was no further investigation. Id. at 1143.
The boy sued the deputy and several state employees under
In reaching that conclusion, we noted the parties had cited Gomes. Id. at 1146 n.3. Although ”Gomes is not a
vi. Summary
Our decision in Roska required an “immediate threat” of harm under both the
Gomes, however, injected some ambiguity into our precedent. There, we stated the
Reasonable officials could have also translated this incorrect understanding to the
Because the disjunctive phrasing in Gomes is unclear, we take this opportunity to clarify our precedent. Although Gomes, Arredondo, and Silvan W. may reasonably be read as not requiring a threat of imminent harm, that reading is divorced from the context of the standard. Gomes adopted the phrasing “has been abused or is in imminent peril of abuse” as a definition of “emergency circumstances which pose an immediate threat to the safety of a child.” 451 F.3d at 1128–29 (emphasis added) (quotation marks omitted). And Gomes, Arredondo, and Silvan W. still considered whether there was a threat of imminent harm despite evidence of past
222-23 (concluding there was reasonable suspicion the teenager “had been abused and was in imminent peril of further abuse“).
To be sure, evidence of past abuse may demonstrate a threat of imminent harm, but it will not always do so. Factors important to assessing the risk of imminent harm include, but are not limited to, the strength of the evidence indicating prior abuse, the severity of the prior abuse, the temporal proximity to the prior abuse, the identity of the alleged abuser, the alleged abuser‘s access to the child, and whether there is time to obtain a warrant or judicial authorization. See Halley, 902 F.3d at 1146-47; Silvan W., 309 F. App‘x at 222-23; Arredondo, 462 F.3d at 1299-1302; Gomes, 451 F.3d at 1135; Roska, 328 F.3d at 1240-41. For the circumstances to justify warrantless entry and seizure based on exigent circumstances, there must be a threat of imminent harm under both the
Nevertheless, Defendants here did not have the benefit of this clarification. Accordingly, they could have reasonably, but incorrectly, believed that under the
b. Defendants’ warrantless entry
When Investigator Morales and the County Defendants entered the Lowther home, they had probable cause to believe that Dr. Lowther had abused A.L. See supra Section II.A.1. Therefore, they also had reasonable suspicion A.L. had been abused. See Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (explaining that “‘reasonable suspicion’ is a less demanding standard than probable cause“).
Yet, the Lowthers argue there could not have been an exigency because Dr. Lowther was detained outside the home and was thus unable to harm the children. But as explained, the County Defendants could have reasonably believed that reasonable suspicion of past abuse justified the warrantless entry, even when further abuse was not imminent.
Based on our precedent, a reasonable investigator or officer could reasonably believe warrantless entry was justified by reasonable suspicion of past abuse. Thus, Investigator Morales and the County Defendants did not violate clearly established
C. Counts 5 & 12 - First Removal
The Lowthers assert that the First Removal violated the
1. Count 5 - Fourth and Fourteenth Amendments
The Lowthers assert the First Removal violated the
Recall that under the
When Investigator Morales and Detective Wootton seized the children on August 30, 2017, they had the same information as when they entered the home earlier that afternoon. And we have already concluded that the available information supported a reasonable suspicion a child had been abused. See supra Section II.B.3.b. Thus, Investigator Morales and Detective Wootton could have reasonably believed the First Removal was justified by exigent circumstances, and the Lowthers have not shown a violation of clearly established law.
The Lowthers, however, argue that Roska demonstrates the First Removal clearly violated the
The Lowthers also urge us “to focus on the fact that under the novel facts of this case, Detective Wootton and Investigator Morales had ample opportunity to obtain a warrant prior to removing the children from their home, without jeopardizing the children‘s safety.” Appellants’ Br. at 33. They contend there was “ample opportunity to obtain a warrant” for the removal because BCSO was able to obtain a search warrant for the Lowthers’ home later that night. Id.
We have held that an “important consideration” when evaluating exigency is “whether state officials had time to seek and obtain judicial authorization for the removal without jeopardizing the safety of the child.” Gomes, 451 F.3d at 1131. Still, this factor is not “necessarily dispositive.” Id.; see also Arredondo, 462 F.3d at 1300. And “[i]n many instances, it may not be entirely clear either how long it would take to obtain judicial approval or whether this period of delay would jeopardize the safety of the child.” Gomes, 451 F.3d at 1130.
Investigator Morales and Detective Wootton argue that a “seizure warrant” for child removals does not exist and that it is unclear how much time they would have needed to obtain judicial authorization. CYFD Br. at 7. As Detective Wootton explains, obtaining judicial authorization can take “an unpredictable amount of time” and “requires CYFD to file a petition for an ex parte custody order with the children‘s court.” County Br. at 37; see also
For these reasons, Investigator Morales and Detective Wootton could have reasonably believed there were exigent circumstances that justified removing the children without judicial authorization. We thus affirm the district court‘s ruling that Investigator Morales and Detective Wootton are entitled to qualified immunity on Count 5.
2. Count 12 - New Mexico Tort Claims Act
The district court dismissed Count 12 because there was “reasonable suspicion to place the Lowther children in state custody” and because the Lowthers failed to provide a “substantive argument.” App. Vol. III at 699. The Lowthers identify this as a ruling they challenge on appeal, but they provide no relevant analysis. As a result, they waived any challenge to the district court‘s dismissal of Count 12. See Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir. 1992).
D. Count 6 - Second Removal
The Lowthers assert that Investigator Morales and Ms. Miles violated the
First, Investigator Morales and Ms. Miles had the same information available at the time of the First Removal. They knew that A.L. had been touching herself inappropriately in class and had made a graphic disclosure to Ms. DuBoise. Moreover, there was new information corroborating A.L.‘s disclosure. In her forensic interview, for example, A.L. stated that her father “takes photographs and videos of her ‘butt and gina.‘” App. Vol. II at 499. W.L. also made concerning statements, namely that he and A.L. “are slapped across the face” and that “his father pushes him ‘hard down on the ground’ which causes him to hit the back of his head.” Id. Further, Dr. Nienow documented that during A.L.‘s SANE exam, “an injury was noted at 12 o‘clock on the anus” that “appeared consistent with tearing and/or bruising.”19 App. Vol. III at 811.
Next, Mr. Borg approached Ms. Miles at the criminal hearing and “angrily expressed his disbelief” of the allegations against Dr. Lowther. App. Vol. IV at 1055. Mr. Borg‘s behavior indicated the Borgs could not remain neutral. The Lowthers, however, argue that the children were not in danger just because Mr. Borg refused “to accept as true an unproven allegation of the most egregious type.” Reply at 18. This argument misses the point. Mr. Borg was not required to believe that Dr. Lowther abused A.L. and W.L. But Mr. Borg was required to remain neutral, and his behavior at the criminal hearing indicated he was not.
Finally, Investigator Morales and Ms. Miles knew that Dr. Lowther was going to be released from jail and that he and Mrs. Lowther had “discussed leaving town with the children.” App. Vol. IV at 1055. Investigator Morales and Ms. Miles also knew that the assistant district attorney had “expressed concerns regarding Dr. Lowther‘s potential access to the Lowther children via his influence over [Mrs.] Lowther and her parents.” Id. at 1054-55.
Considering the totality of the circumstances—specifically, the evidence of past abuse, the results of the children‘s interviews and A.L.‘s physical examination, Mr. Borg‘s behavior at the criminal hearing, Dr. Lowther‘s impending release from jail, and the Lowthers’ discussions indicating they planned to abscond with the children—Investigator Morales and Ms. Miles had reasonable suspicion the children were in immediate danger. Thus, the remaining question is whether Investigator Morales and Ms. Miles also had “an objectively reasonable basis for believing” the children were in imminent danger. See Brigham City, 547 U.S. at 400 (stating
Nonetheless, the Lowthers point to Ms. Miles‘s statement after the criminal hearing that she did not think the children were in imminent danger. Ms. Miles‘s subjective beliefs are not relevant, however, because reasonableness is an objective, not a subjective, inquiry.20 Brigham City, 547 U.S. at 404; see also Arredondo, 462 F.3d at 1300 (explaining that a defendant‘s “subjective belief that the situation was not an ‘emergency’ does not change the fact that the [d]efendants had an objectively reasonable basis to suspect that [a child] had been abused or faced imminent peril of abuse“).
The Lowthers also argue that if the children had been in imminent danger of harm, they would have been removed right after the criminal hearing. Although the children were not removed immediately after the hearing, they were removed within twenty-four hours of the hearing. And more importantly, they were removed before Dr. Lowther was released from jail, thus addressing concerns that Dr. Lowther would have access to or abscond with the children.
For the foregoing reasons, Investigator Morales and Ms. Miles acted reasonably. Accordingly, the Lowthers failed to show that the Second Removal violated the
III. CONCLUSION
The Lowthers have not shown any error in the district court‘s summary judgment rulings. We thus AFFIRM.