ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Doc. No. 44]
INTRODUCTION
Pending before the Court, is Defendants’ motion for summary judgment. The motion was heard before this Court on April 2, 2004. After hearing argument by counsel, and a thorough review of the pleadings and exhibits filed, the Court GRANTS IN PART AND DENIES IN PART Defendants’ motion for summary judgment.
BACKGROUND
This action arises from a report made to the San Diego County Health & Human Services Agency Child Abuse Hotline regarding Plaintiff Holly M. Parkes (“Holly”). On June 6, 2001, Holly, then four years old, told her teacher, Debbie Hare, her vagina was sore, because her daddy tickled her there. Ms. Hare made an audiotape of her conversation with Holly. On June 7, 2001, Dee Dee Smith, the director of Holly’s pre-school, told Holly’s mother, Plaintiff Lisa Parkes (“mother”) about Holly’s statements and played her the audiotape. Ms. Smith telephoned Child Protective Services (“CPS”) and told the mother to return the next day to meet with someone from CPS. On June 8, 2001, Defendant Diana Prince, Protective Services Worker, went to Holly’s school to conduct an investigation. After interviewing Holly and Plaintiff Chloe Conyngham-Booth (“Chloe”), Holly’s six year old sister, and speaking with the mother, Prince took Holly and Chloe into protective custody. The children were taken to Polinsky Children’s Cеnter. Medical examinations were conducted on the children after their arrival.
The matter was transferred to Defendant Roberto Calderon, Court Intervention Worker, and a dependency petition was filed pursuant to California Welfare and Institutions Code § 300. Defendant Gertrude “Trudy” Simoes was Calderon’s supervisor. A detention hearing was held on June 13, 2001. The judge found the initial removal was necessary and there was no reasonable means by which the children’s physical or emotional health would be protected without removing them from the parents. The judge detained the children in Polinsky and gave the agency discretion to detain the children with a relative upon a favorable home evaluation. The maternal grandmother from New Zea-
On June 10, 2002, Plaintiffs filed a complaint in Superior Court alleging assault, battery, false imprisonment, intentional infliction of emotional distress, legal malpractice and violations of civil rights for the alleged unlawful taking, examinations and continued detention of Holly and Chloe. Defendant County of San Diego filed an answer and removed the action to the United States District Court for the Southern District of California on September 6, 2002. On October 17, 2003, Defendants County of San Diego, Prince, Calderon, Simoes and Giddens filed a motion for summary judgment. 1 On February 12, 2004, Plaintiffs filed an opposition. Defendants filed a reply on February 13, 2004. Plaintiffs filed objections to the reply on February 20, 2004. This Court heard oral argument on the motion on April 2, 2004. During the hearing, this Court granted Plaintiffs’ request for leave to file a surre-ply. The matter was thereafter taken under submission.
LEGAL STANDARD
Summary judgment is properly granted when “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Entry of summary judgment is aрpropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett,
Once the moving party meets the requirements of Rule 56, the burden shifts to the party resisting the motion, who “must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc.,
EVIDENTIARY ISSUES
Plaintiffs filed objections to Defendants’ reply. Specifically, they object to the submission of the exhibits and declarations, an argument contained in the reply and specific provisions of the declarations.
1. Motion to Strike Reply
Plaintiffs argue Rule 7.1(e)(3) of the Local Rules of Practice for the United States District Court for the Southern District of California does not permit a party to submit declarations and exhibits in support of a reply. Plaintiffs also argue the reply should be stricken, because Defendants raise a new argument. However, this Court granted Plaintiffs leave to file a surreply to address the issue and the surreply was filed with documents in support. Furthermore, the language of Local Rulе 7.1(e)(3) does not specifically permit or prohibit the filing of exhibits and declarations in support of a reply. Accordingly, Defendants objections are overruled and motion to strike the reply is DENIED.
II. Objections to Declarations
Plaintiffs also object to specific paragraphs of the declarations submitted in support of the reply. Specifically, they object to paragraph 6 of Richard Songer’s declaration, paragraphs 3, 4, 5, and 7 of Karen Richter’s declaration and paragraphs 2,11,12 and 13 of Deborah McCarthy’s declaration.
Based upon the information contained in the extensive exhibits filed by the parties, the Court found it unnecessary to consider the objected to portions of the declarations in making its determination on the motion. 2 As such, the motion to strike portions of the Songer, Richter and McCarthy 3 declarations is DENIED as moot.
DISCUSSION
Defendants seek summary judgment and assert (1) Defendants Prince, Calderon and Simoes are immune from suit under state law for all actions taken in connection with their investigation and the filing of the dependency petition, (2) Calderon’s and Simoes’ conduct in filing and prosecuting the dependency proceeding is privileged under state law, (3) the judge’s findings at the detention hearing validate their conduct, (4) Plaintiffs cannot establish their legal malpractice claim against deputy public defender Giddens, because they have not designated an expert witness, (5) Defendants are entitled to qualified immunity under federal law, (6) Defendants Calderon and Simoes are entitled to absolute prosecutorial immunity under federal law for all activity relating to the dependency proceedings, (7) Plaintiffs fail
I. Estoppel or Preclusion based upon Juvenile Court Findings
In their reply, Defendants contend the juvenile court’s finding at the detention hearing validate their conduct and shields them from liability. The judge found the initial removal of the children was necessary and continued care in the home would be contrary to the children’s welfare. Defs’ Exhs. J, K. Plaintiffs argue the judge’s findings and order do not equate to collateral estoppel.
Collateral estoppel bars a party from relitigating issues resolved in a prior proceeding. The party assеrting collateral estoppel must demonstrate (1) the issue necessarily decided at the previous proceedings is identical to the one sought to be relitigated; (2) the previous proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior proceedings.
Pacific Lumber Co. v. California State Water,
Defendants set forth no argument in support of their contention that the juvenile court’s action in finding the initial removal necessary validates their action. They simply cite to
Jenkins v. County of Orange,
Plaintiffs argue that even if the issue of the detention is identical to that discussed by the juvenile court judge, the issue was not actually litigated and was not necessarily decided resulting in a final judgment on the merits. Restatement (Second) of Judgments § 27 states “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” California courts also utilize Restatement Second of Judgments when determining whether a party is precluded from relitigating an issue.
See Rice v. Crow,
This Court finds the issue of fact sought to be precluded here was not determined
II. State Law Statutory Immunity
Defendants Prince, Calderon and Si-moes assert they are entitled to statutory immunity with respect to the first, second, third and seventh causes of action pursuant to California Government Code § 821.6. They further argue discretionary immunity extends to social workers who investigate allegations of suspected child abuse pursuant to California Government Code § 820.2. Finally, Defendants maintain California Code § 820.21 does not apply-
Plaintiffs argue Defendants are not entitled to immunity, because their conduct falls under the exception to immunity set forth in section 820.21. They further argue that Defendant Prince’s failure to leave the children with their mother and Defendants Calderon’s and Simoes’ failure to investigate the matter and failure to promptly investigate Craig Parkes and the maternal grandmother as a suitable placement were not discretionary acts but mandatory duties not afforded immunity under section 820.2.
A. Law
“A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Cal. Gov.Code § 821.6. The immunity also applies to allegations of negligence.
See Jenkins v. County of Orange,
“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Cal. Gov.Code § 820.2.
California Government Code § 820.21 provides that immunity for social workеrs does not extend to conduct that includes perjury, fabrication of evidence, failure to disclose exculpatory evidence and obtaining testimony by duress, if committed with malice. Malice is conduct intended to cause injury or despicable conduct that is carried on with a “willful and conscious disregard of the rights or safety of others.” Cal. Gov.Code § 820.21(b).
B. Analysis
1. Allegations
a. Assault (First Cause of Action)
Plaintiffs allege Defendants caused Holly and Chloe fear of harmful contact by the detention and efforts to persuade them to falsely implicate their parents and acted with malice. Complaint at 11-12
b. Battery (Second Cause of Action)
Plaintiffs allege Defendants, with intent and malice, made harmful contact with Plaintiffs Holly and Chloe while unlawfully detaining them. Id. at 13.
c. False Imprisonment (Third Cause of Action)
Plaintiffs allege Defendants, with malice, unlawfully detained Holly and Chloe without evidence of imminent danger, without reasonable cause and without the consent of their parents from June 8, 2001 to July 25, 2001. Id. at 14.
d. Intentional Infliction of Emotional Distress (Seventh Cause of Action)
Plaintiffs allege Defendants, with malice, engaged in outrageous conduct, including
Defendants conduct in removing Holly and Chloe from their parents, interviewing them regarding the allegations, detaining them and reporting to the juvenile court judge were performed as part of their duty as social workers investigating the allegations of abuse and prosecuting the dependency action. Accordingly, they are entitled to statutory immunity unless the exception of section 820.21 applies and Defendants’ conduct falls within the exception.
2. Applicability of Section 820.21
a. Defendant Prince
Plaintiffs argue Prince removed the children without judicial authority and absent exigent circumstances. Plaintiffs maintain the basis for removal of the children was threat of serious bodily harm from the father and Prince did not believe the mother presented an immediate threat to the children. Even so, they argue, Defendant Prince did not discuss any alternatives to removal from the mother, prior to removing the children from her care (e.g. the fаther moving out of the home). The parties do not dispute there was no judicial authority to remove the children, but do dispute whether the situation qualified as an emergency. Defendants argue Plaintiffs do not provide any evidence that the children did not make the statements as reported by Prince, but merely argue Prince should not have believed the girls’ statements.
Defendant Prince removed the girls from their mother after Holly reported that her father “tickled” her on her vagina and her mother knew about the “tickling.” A review of Prince’s deposition demonstrates she did not believe the mother presented a threat of serious bodily harm to Holly. Prince Depo. at 176-77, Plas’ Exh. 1. However, when asked if she believed the mother presented a threat of serious bodily harm to Chloe, she responded “from the point of not protecting her, yes” and “if she was not going to act protectively, yes.” Id. at 177. Prince also stated in a written report that the mother was very cooperative. Family Assessment Factor Analysis, Pías’ Exh. 10 at 2, Prince Depo. at 164, Pías’ Exh. 1. She reported that the reason the children were removed was because the mother denied any knowledge of the molest and she was not “comfortable the mother would be protective and avoid putting pressure on the two girls” before the evidentiary interviews. Transfer Summary, Pías’ Exh. 11, Sexual Abuse Risk Assessment, Pías’ Exh. 12; Delivered Service Log at 5, Defs’ Exh. C.
Plaintiffs fail to set forth any facts demonstrating a genuine issue as to whether Defendant Prince engaged in perjury, fabrication of evidence, failure to disclose exculpatory evidence or obtaining testimony by duress. Accordingly, section 820.21 does not apply to Prince’s conduct and she is entitled to immunity. The motion for summary judgment is GRANTED as to the first, second, third and seventh causes of action against Defendant Prince.
b. Defendants Calderon and Simoes
Plaintiffs argue Calderon and Simoes failed to conduct an investigation prior to the detention hearing to determine whether continued detention was necessary. Plaintiffs also argue Defendants Calderon and Simoes failed to disclose exculpatory
Defendants argue there was no failure to disclose exculpatory evidence, because Plaintiffs’ attorneys were aware of the information and could have informed the court about the information. They further argue the videotape and results of the medical examinations were not exculpatory.
1. Pre-hearing Investigation
California Welfare and Institutions Code § 309 requires the social worker to investigate the circumstances of a child’s detention and release the child unless there is an immediate and urgent need to continue detention and there are no reasonable means by which the child can be protected at home. Cal. Welf. & Inst.Code § 309(a)(2). Calderon did not believe the mother presented a risk of serious physical harm to the children. Calderon Depo. at 194, Pías’ Exh. 2. He determined it was not safe to leave the children with their mother based on Prince’s report, not on his own investigation. Id. at 219. There is no evidence to support the allegation that Calderon engaged in perjury, fabricated evidence, failed to disclose exculpatory or obtained testimony by duress. Plaintiffs have not met its burden that the complained of acts were committed with a “willful and conscious disregard of the rights and safety of the alleged victims”. As such, Section 820.21 does not apply and Defendant Calderon is entitled to immunity with respect to the pre-hearing investigation. Defendant Simoes is entitled to immunity with respect to her actions taken as Calderon’s supervisor during the pre-hearing investigation.
ii. Disclosure of Information
A review of the exhibits demonstrates neither the Jurisdiction/Disposition Report nor the addendum prepared for the hearing by Defendants Calderon and Simoes mentioned the results of the physical examinations conducted at Polinsky and at Children’s Hospital. 5 Defs’ Exh. T, Pías’ Exh. 16. According to the medical record from the Polinsky exam, Holly’s external genitalia and hymen appeared normal. Polinsky Medical Record — Admission Physical Exam, Pías’ Exh. 13. However, the report notes that an evidentiary examination was needed. Id. The report containing the results of the evidentiary examination performed at Children’s Hospital shоws the physical findings for the genitals, hymen and anus were all normal. Pías’ Exh. 18 at 13. The report also notes, however, that a “normal exam does not prove or disprove sexual abuse.” Id. During the videotape interview of Holly, she states her father tickled her “by her private part,” with his fingers on top of her underwear. Pías’ Exh. 19 at 4.
The reports prepared for the Jurisdiction/Disposition hearing also lack any mention that Holly was seen by her doctor for her bladder problems two days prior to the disclosure. The report states that Dr. Neil Goldfinger, Holly’s physician, was consulted regarding Holly’s medical needs. Defs’ Exh. T at 8, 10. However, Calderon admits he never contacted the doctor to
The parents, through their attorneys, were able to inform the juvenile court judge themselves that Holly was seen by her doctor two days prior to the incident. There is no evidence that Plaintiffs were aware of the results of the Polinsky or Children’s Hospital examinations prior to the Jurisdiction/Disposition hearing so as to allow them to inform the judge. However, there is evidence that Defendant Calderon was aware of the examination results and failed tо inform the juvenile court judge. Calderon stated he spoke with County Counsel regarding the Parkes case following the July 3, 2001 hearing and they agreed to dismiss the petition because, although the children were consistent with the allegations, there were no physical findings supporting the allegations. Calderon Deck ¶¶ 14,15,16.
This Court finds there is a genuine issue of material fact as to whether Defendants Calderon and Simoes failed to disclose exculpatory evidence and whether their conduct was committed with a “willful and conscious disregard for the safety” of the children when they failed to inform the court of the examination results. Accordingly, Defendant Calderon and Simoes are not entitled to statutory immunity for their alleged failure to disclose exculpatory evidence.
III. California Civil Code § 47
Defendants argue Calderon and Simoes’ 6 conduct is privileged pursuant to California Civil Code § 47 and, therefore, they are immunized from tort liability. Plaintiffs argue section 820.21 explicitly removes the immunity of social workers, “notwithstanding any other provision of law.”
“[Cjommunications with ‘some relation’ to judicial proceedings have been absolutely immune from tort liability by the privilege codified as section 47(b).”
Rubin v. Green,
Upon the Court’s inquiry at oral argument on this matter, counsel explained they were unaware of any case dealing with what effect, if any, section 820.21 has on the litigation privilege. This Court’s own research revealed no such case. Plaintiffs argue that if section 47 was able to shield defendants from liability despite the language of section 820.21, it would render the section a nullity. This Court finds Plaintiffs argument persuasive. The
IV. Legal Malpractice (Fourth Cause of Action)
Defendants argue Plaintiffs have not designated an expert on the issue of legal malpractice against Defendant Giddens. Defendants maintain Plaintiffs’ counsel advised Defendants’ counsel of his plans to dismiss the claim, but has not signed the proposed stipulation. Plaintiffs failed to address the claim in their papers, but notified the Court at the hearing of their intention to proceed with the malpractice claim. Accordingly, the motion is DENIED without prejudice as to the legal malpractice claim.
V. Section 1983 (Fifth Cause of Action)
Plaintiffs allege Defendants detained, threatened, examined and searched the children in violation of Plaintiffs’ Fourth and Fourteenth Amendment rights.
A. Absolute Prosecutorial Immunity
Defendants assert Defendants Calderon and Simoes’ actions in authorizing the juvenile petition and its prosecution are entitled to absolute immunity as to the fifth cause of action alleging a violation of the Fourth and Fourteenth Amendments pursuant to 28 U.S.C. § 1983.
1. Legal Standard
“Social workers are entitled to absolute immunity in performing quasiprosecutorial functions connected with the initiation and pursuit of child dependency proceedings.”
Meyers v. Contra Costa County Depart. of Social Svcs.,
2. Analysis
Plaintiffs allege Defendants Calderon and Simoes used false and fabricated evidence, and failed to disclose exculpatory evidence during the dependency proceedings. Complaint at 18. They contend the videotaped interview of Holly was exculpatory and Defendants withheld the results and made misrepresentations as to Holly’s accusations.
7
They argue Defendants are
Plaintiffs further contend Defendants’ action in misrepresenting Holly’s disclosure to the dependency court was comparable to a prosecutor fabricating evidence prior to an arrest and filing false reports, conduct the Ninth Circuit held was not entitled to absolute immunity in
Milstein v. Cooley,
More on point with the facts of this action is the case of
Doe v. Lebbos,
Here, any alleged misrepresentations to the dependency court and failure to disclose exculpatory evidence by Defendants Calderon and Simoes occurred during the dependency proceedings. As such, Defendants Calderon and Simoes are entitled to absolute immunity for their actions in prosecuting the case in accordance with Lebbos. 8 The motion for summary judgment as to the section 1983 claims against Defendants Calderon and Simoes for their actions in failing to disclose exculpatory evidence and misrepresentations to the court is GRANTED.
B. Qualified Immunity
Defendants Prince, Calderon and Si-moes argue Plaintiffs’ claim for violation of their Fourth and Fourteenth Amendment rights to be free from unlawful search and seizure and interference with their familial
1. Legal Standard
Government officials enjoy qualified immunity from civil damages unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald,
2. Analysis
Plaintiffs allege Defendants violated their Fourth and Fourteenth Amendment rights when they removed the children, continued to detain the children without proper or just cause and/or authority, and subjected Holly and Chloe to physical examinations without consent or authority. Complaint at 18.
a. Defendant Prince
Plaintiffs argue Defendant Prince violated their Fourth and Fourteenth Amendment rights when she removed and detained Holly and Chloe without due process and without exigent circumstances.
i. Was a Constitutional Right Violated?
Parents and children have a liberty interest protected by the Fourteenth Amendment’s guarantee that parents and children will not be separated by the state without due process except in an emergency.
Wallis v. Spencer,
Defendant Prince had no judicial authority to remove the children. Both children disclosed inappropriate touching of Holly by the father. There were no allegations of molest or abuse by the mother. Although Defendant Prince stated she believed the mother presented a risk of serious bodily harm to Chloe if she would not be protective, she also stated she did not believe the mother presented a risk to Holly, who made the accusations. Viewing the facts in the light most favorable to Plaintiffs, the Court cannot find that no reasonable jury could conclude that the plaintiffs’ constitutional rights were violated.
ii. Was the Right Clearly Established?
The Court must now consider whether it would be clear to a reasonable officer that Prince’s conduct was unlawful under the circumstances of the case.
Plaintiffs argue that Prince’s action in removing the children from the mother’s custody was not reasonable, because she did not believe there was a threat of serious bodily harm from the mother. Defen
Prince’s notes reflеct she was told Holly was seen by a doctor two days before the initial contact regarding Holly’s allegations. Prince Depo. at 187, Pías’ Exh. 1. The notes referred to a bladder infection and that Holly had only one kidney. Id. Additionally, Ms. Smith, the school administrator, told Prince Holly had frequent bladder infections and she only has one kidney. Delivered Service Log, Defs’ Exh. C at 1. Defendants claim Ms. Smith also explained Holly has lots of stories, but opined that the story about her father was different. Id. However, Ms. Smith testified that she explained Holly had lots of stories, but never opined the story about her father was different. Smith Deposition, Pías’ Exh. 33 at 79. Ms. Smith also recalls telling Defendant Prince that Ms. Hare, the teacher who recorded the conversation with Holly, can blow things out of proportion. Id. at 73. Ms. Smith also questioned whether the tape was guided or leading and shared this concern with Defendant Prince. Prince listened to the audiotape of the conversation between Holly and her teacher about her father touching her. Delivered Service Log, Defs Exh. C at 2. Prince interviewed Holly and Holly explained her father touched her with his fingers, and they went inside and it hurt a lot. Id. at 3. Holly also said she told her mom and her sister Chloe saw her father touching her. Id. She also said Chloe told her the father used to touch Chloe. Id. Prince interviewed Chloe and Chloe denied the father touched her, but said he would put her on the bed and tickle her all over. Id. at 4. When asked if her mother ever said anything about the father touching Holly, Chloe responded, “well sometimes if he’s touching her in private part, I mean if he is about to touch her in her private parts, my mother will come in and say something to distract him. Like if they’re on the couch and he’s been doing it, I mean about to touch it, my mother will come in and say, T need to take Holly to pre-school’ or ‘Holly needs to go to bed now’ or something else like that to take Holly out of the room.” Id. Prince determined there was a immediate threat of serious bodily injury to Holly and possibly Chloe by the father. Prince Depo. at 176, Pías’ Exh. 1. However, she did not believe the mother presented an immediate threat of bodily injury to Holly. Id. at 176-77. Prince believed the mother presented an immediate threat of bodily harm to Chloe, “if she was not going to act protectively.” Id. at 177. Defendant Princе stated the reason to temporarily remove the children was because the mother denied any knowledge of any molest. Transfer Summary, Pías’ Exh. 11. Prince also reported that she was concerned the mother would not be protective and might put pressure on the girls before they could set up unbiased evidentiary interviews. Delivered Service Log, Exh. C at 5.
Because it is unclear whether Prince believed the children were at risk of an immediate threat of serious bodily harm if left with mother, there is a genuine issue of material fact as to whether a reasonable social worker could believe her action in removing the children from the mother’s custody was lawful. Furthermore, whether reasonable cause to believe exigent circumstances existed is generally a question of fact for the jury.
Mabe v. San Bernardino County, Dept. of Social Svcs.,
Plaintiffs argue Calderon and Simoes kept the children in detention because they wished to protect the integrity of the interviews of the children, although they were required to return the children if there was no immediate and urgent nеed for continued detention.
i. Pre-hearing Detention
aa. Was a Constitutional Right Violated?
California Welfare and Institutions Code § 309 requires the social worker to investigate the circumstances of the child’s detention and the worker must release the child to her parent’s custody unless there is an immediate and urgent need to continue detention and there are no reasonable means by which the child can be protected in her home. Cal. Welf. & Inst.Code § 309(a)(2). Plaintiffs argue Defendants Calderon and Simoes continued the detention of the children prior to the hearing without conducting an investigation or evaluating whether there were reasonable means by which to protect the children while in their mother’s custody. Calderon Depo. at 133, Pías’ Exh. 2. Accordingly, in the light most favorable to Plaintiffs, the Court cannot find that no reasonable jury could conclude that the plaintiffs’ constitutional rights were violated.
bb. Was the right clearly established?
The Court now considers whether it would be clear to a reasonable officer that the pre-hearing detention was unlawful in the situation confronted by Calderon and Simoes.
Plaintiffs allege Calderon and Simoes admitted there was no threat of serious bodily injury by mother, therefore their decisions to detain the children from the mother was not reasonable.
Defendant Calderon testified that based on the facts received from the previous worker, the mother was not a safe person with whom to leave the children. Calderon Depo. at 134, Pías’ Exh. 2. He also testified that prior to detention he did not believe the mother presented an immediate risk of serious bodily injury to Holly or Chloe. Id. at 194. On June 11, 2001, Calderon received a telephone call from Chloe’s father who said he was very concerned about his child. Delivered Service Log, Defs’ Exh. C at 6, 127. On June 12, 2001, Defendant Calderon telephoned Chloe’s father and asked if he had any prior concerns about Shane Parkes’s parenting or behavior and he said he did not. Id. Calderon believed the father presented an immediate risk of serious bodily harm to Holly. Calderon Depo. at 193, Plas’ Exh. 2.
There is a genuine dispute as to whether a reasonable social worker could believe continuing the detention of the children prior to the hearing was reasonable when Defendant Calderon did not believe mother demonstrated a immediate risk of serious рhysical harm to the children. As such, Defendants Calderon and Simoes are not entitled to qualified immunity. Accordingly, the motion for summary judgment as to the section 1983 claim involving the continued detention of the children is DENIED.
ii. Medical Examinations
Defendants argue the forensic interviews and physical exams are no longer at issue, because Plaintiffs conceded that consent was given. They further argue Judge Moskowitz issued an order stating whether the parents consented to the medical exams was not at issue. Plaintiffs argue the order deals solely with the evidentiary examination not the examinations conducted at Polinsky.
VI. Monell Claim (Sixth Cause of Action)
Plaintiffs allege Defendant County violated their Fourth and Fourteenth Amendment rights. Defendants argue the County cannot be held liable based on conduct of their employees, unless the civil rights violations stem from enforcement of a municipal policy or custom. Defendants argue Plaintiffs failed to identify a policy, custom or practice that deprived them of their constitutional rights and, merely, set forth conclusory allegations that policies exist.
A. Legal Standard
A municipality may be held liable for violations of civil rights caused by a policy or practice.
Monell v. New York City Dept. of Social Svcs.,
B. Analysis
In the complaint, Plaintiffs allege a number of policies or customs in support of their claim against the County. However, Plaintiffs address only four in their opposition to the motion for summary judgment. Because the Plaintiffs have set forth no evidence to support the alleged policies not addressed in their opposition, Defendants’ motion is GRANTED as to those claims. The Court will only address those claims set forth in Plaintiffs’ opposition. Plaintiffs contend the evidence demonstrates the County has the following policies:
(1) removal and continued detention of children based upon the parents’ failure to admit the unproven abuse allegations;
(2) removal and detention of minor children without a judicial order even in the absence of exigent circumstances;
(3) physical examination of minor children, without judicial order, exigent cir-cumstanees or notification to parent; and
(4) prohibiting parents to be present at physical examinations.
1.Children are Removed and Detained base upon a Parent’s Failure to Admit Unproven Allegations
Plaintiffs argue that the County has a policy of requiring the non-offending parent to admit allegations to prevent removal of the children, which is deliberately indifferent to their constitutional rights. Defendants argue the County does not require the non-offending parent to admit abuse, but does require the parent establish she will be protective.
When discussing the mother, Defendant Prince testified that “there had to be some resolve to the fact that her statements were in total contradiction to what her daughters said and both her daughters indicated she knew.” Prince Depo. at 194, Defs’ Exh. Z. Defendant Simoes testified that it was not a policy, practice or procedure that a parent had to admit the child’s disclosures before having the child returned to them. Simoes Depo. at 283, Defs’ Exh. AB. She further testified that a mother’s denial of knowledge of an alleged molest is not a sole factor for removal. Smylie Depo. at 38, Defs’ Exh. AC. However, Plaintiffs demonstrate the mother would have to accept the disclosures “to some extent” to prevent the girls’ removal. Calderon Depo. at 128, Pías’ Exh. 2; See also Smylie Depo. at 29, Pías’ Exh. 4. (The admission of the non-offending parent that the offending parent committed the acts accused of is part of the criteria for deciding whether to remove a child). Pías’ Exh. 28 at 2. Additionally, Renee Smylie testified that the non-offending parent’s admission had been a criteria in determining whether to remove the child during the fifteen year period she was with the agency. Smylie Depo., Pías’ Exh. 4 at 31. Furthermore, the Child Welfare Services Initial Case Plan includes objectives that mother listen to and show acceptance and support of the disclosure made by her child. Pías’ Exh. 29 at 2.
This Court finds there is a genuine issue as to whether the County had a policy of detaining children based upon a parent’s failure to admit unproven allegations in violation of the plaintiffs’ constitutional rights. Accordingly, the motion is DENIED as to this alleged policy.
2. Removal and Detention without a Court Order and absent Exigent Circumstances
As discussed above, there is evidence that the County had a policy of removing children from the custody of the non-offending parent based solely upon her failure to admit allegations of abuse. The evidence demonstrates that the County considers a parent’s failure to admit the veracity of allegations as an emergency warranting removal of the child, in that the parent will not be protective if she does not accept the disclosures to some extent. If the County is ultimately found to have a policy to remove a child from her parents’ custody based upon the failure to admit unproven allegations in violation of constitutional rights, it follows that the County has a policy to remove a child absent exigent circumstances. Accordingly, Defendants are not entitled to summary judgment as to this alleged policy.
3. Conducting Physical Examinations without a Court Order, Exigent Circumstances or Notification to the Parents
Children entering Polinsky are subjected to a medical examination within 24 hours of their arrival. Graff Depo., Pías’ Exh. 5 at 41. Parental consent is not obtained, instead the doctor uses a “general сonsent order” issued by a Superior
Defendants do not dispute that children are subjected to a physical examination upon arrival at Polinsky without parental consent or notification. They hоwever, argue the “health assessments” are reasonable.
a. Fourteenth Amendment Violation
The right to family association, embodied in the Fourteenth Amendment, “includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state.”
Wallis
b. Fourth Amendment Violation
In addition to the Fourteenth Amendment violation, Plaintiffs assert violations of the Fourth Amendment. Medical examinations are intrusions that trigger the Fourth Amendment.
See Yin v. State of Cal.,
In limited circumstances, a search not supported by a warrant or probable cause may still be constitutional pursuant to the “special needs” doctrine.
New Jersey v. T.L.O.,
There is no clear authority on the applicability of the “special needs” doctrine to an action involving a medical examination of minors without knowledge or con
a. Intrusion into Privacy
Medical examinations conducted at Po-linsky include an assessment by a nurse who performs “a general once-over, height, weight, vital signs” and determine whether the child is in need of immediate medical attention. Graff, Depo., Plas’ Exh 5 at 42, Defs’Exh. AD at 42; see also Polinsky Children’s Center, Initial Nursing Admission Notes for Holly and Chloe, Plas’ Exhs. 13, 14. The children are also subjected to a physical examination by a pediatrician or nurse practitioner that includes an examination of the external genitalia, hymen and rectum, and pelvic еxaminations. Graff Depo., Plas’ Exh. 5 at 45 — 46, Defs’ Exh. AD at 92; see also Initial Nursing Admission Notes for Holly and Chloe, Plas’ Exhs. 13,14.
This Court finds a medical examination that includes a pelvic examination and inspecting a child’s external genitalia, hymen and rectum is significantly intrusive.
9
Holly and Chloe have a legitimate expectation of privacy in not being subjected to a medical examination without their parents’ consent.
See Yin
b. County’s Interest
Defendants assert the medical examinations are necessary to insure children entering Polinsky are not in need of medical care and do not present a risk of harm to other children. Although the nature of the County’s interest in protecting the health of the children in Polinksky is important, it does not outweigh the invasive nature of the medical examinations performed without consent when the parent is available to authorize it. Defendant is not entitled to summary judgment as to this policy.
4. Parents are not Permitted to be Present at the Examinations
Parents and children have a protected liberty interest in having the parents present with the children when they receive medical attention.
Wallis
VII. Injunctive Relief (Eighth Cause of Action)
Plaintiffs seek an order prohibiting Defendants from:
(1) failing to establish and follow policies mandated by the United States Constitution as to the questioning, detention and examination of minor children;
(2) from failing to properly supervise employees as to their compliance with the principals mandated by the Fourth and Fourteenth Amendments; and
(3) from failing to implement and establish a policy of prompt, truthful and unbiased reporting in the investigation or prosecution of dependency matters.
Complaint at 25-26.
Defendants argue Plaintiff fails to demonstrate immediate threat of irreparable harm, because they no longer live in the County’s jurisdiction.
“The requirements for the issuance of a permanent injunction are ‘the likelihood of substantial and immediate irreparable injury and the inadequаcy of remedies at law.’ ”
American-Arab Anti-Discrimination Comm.,
Plaintiffs allege ongoing violations by the defendants and maintain they are entitled to an evidentiary hearing on the matter. They, however, fail to set forth any evidence demonstrating a risk of “immediate irreparable injury” or continuing adverse effects. Accordingly, Plaintiffs’ claim for injunctive relief is DISMISSED.
CONCLUSION AND ORDER
IT IS HEREBY ORDERED Defendants’ motion for summary judgment is GRANTED IN PART AND DENIED IN PART as follows:
1. The motion is GRANTED as to the following:
(A) the first, second, third and seventh causes of action against Defendant Prince;
(B) the first, second, third and seventh causes of action against Defendant Calderon and Simoes as to the pre-detention hearing investigation;
(C) the fifth cause of action against Defendants Calderon and Defendant Si-moes for their actions in failing to disclose exculpatory evidence and misrepresentations to the dependency court, and subjecting the children to physical examinations;
(D) the sixth cause of action against Defendant County for the following alleged policies:
(1) detaining children without a finding of imminent danger of serious physical injury;
(2) questioning and/or examining children without exigent circumstances
(3) prohibiting parents from being present during questioning;
(4) detaining children and not returning them after the basis for detention is negated;
(5) using trickery, duress, fabrication and/or false testimony or evidence and in failing to provide exculpatoryevidence in preparing and presenting reports and court documents to the court;
(6) failing to provide adequate, competent and appropriate counsel to represent the interest of parties in juvenile dependency proceedings;
(E) the eighth cause of action for injunc-tive relief.
2. The motion is DENIED as to the following:
(A) the first, second, third and seventh causes of action against Defendant Calderon and Defendant Simoes for failure to disclose exculpatory evidence to the dependency court;
(B) the fourth cause of action for legal malpractice;
(C) the fifth cause of action against Defendant Prince;
(D) the fifth cause of action against Defendant Calderon and Defendant Si-moes for the continued detention of the children;
(E) the sixth cause of action as to the following policies:
(1) removing and detaining children based upon a parent’s failure to admit unproven allegations;
(2) removal and detention of minor children without a judicial order even in the absence of exigent circumstances;
(3) conducting physical- examinations without a court order, еxigent circumstances or notification to the parents;
(4) prohibiting parents’ presence at physical examinations;
IT IS FURTHER ORDERED Plaintiffs’ request to strike is DENIED as moot.
Notes
. The matter was transferred to this Court and the motion was rescheduled to December 19, 2003. Upon stipulation the motion was continued to February 20, 2003. The hearing was rescheduled to April 2, 2004 on the Court's motion.
. The declarations included information already contained in previously filed exhibits (e.g. depositions, court transcripts and orders). The declarations also included information not relevant to the Court’s consideration of the motion.
. Because the Court did not consider the objected to paragraphs of the McCarthy declaration, it is unnecessary to discuss the issue of counsel testifying as a witness. However, the Court will entertain argument on the issue should it arise in later proceedings.
. The California Appeals Court in
Jenkins
noted that the trial court’s erroneous reliance on prior cases in making its ruling did not require reversal, if the ruling itself was correct.
Jenkins,
. The Jurisdiction/Disposition hearing was set for July 3, 2001, but was continued to July 25, 2001. See Juvenile Court Minute Order, Defs Exh. P. At the hearing held on July 3, 2001, the judge ordered County Counsel to provide the father's counsel the audio tape of Holly's interview and all reports. Id.
. Although Defendants also argue Defendant Prince’s conduct is protected by the litigation privilege, the Court will not address the issue, in that the Court has determined Prince is entitled to statutory immunity for the same claims. Additionally, the Court will not address whether Defendant Calderon and Si-moes conduct during the pre-hearing investigation is protected by the litigation privilege as the Court has determined they are entitled to statutory immunity as to that claim.
. Plaintiffs also refer, without specifics, to evidence that ultimately led to dismissal of the depеndency action. According to this
. In a footnote, Plaintiffs suggest Lebbos is distinguished from this case because the Court did not take into consideration section 820.21 and failed to analyze state law and its impact on immunity. Plaintiffs argue the Miller court recognized that state law may differ as to the functions performed by social workers and California has limited immunity by instituting section 820.21. This Court finds Section 820.21 does not effect federal immunity principles available to social workers for conduct undertaken in the initiation and pursuit of dependency proceedings in a section 1983 claim. Moreover, the Court notes Lebbos was decided subsequent to the enactment of section 820.21.
. Defendant’s contention that the examination takes less than one minute (see Reply at 12) does not effect the intrusive nature of an examination of genitalia.