Shawn SLAVEN and Julie Slaven, individually and as parents and next friends for C.S., A.S., and J.S., Plaintiffs-Appellants v. Dan ENGSTROM, Human Services and Public Health Department for Hennepin County, in his official capacity as the Director or his successor; Hennepin County, a governmental entity within the State of Minnesota; Donothan R. Bartley, in his official capacity as a social worker for the Hennepin County Human Services and Public Health Department or his successor; Jamie L. Cork, in her official capacity as an Assistant County Attorney for Hennepin County or her successor, Defendants-Appellees.
No. 12-1457
United States Court of Appeals, Eighth Circuit
March 22, 2013
Submitted: Oct. 17, 2012.
Nonetheless, we must deny Zheng‘s petition because any error was harmless. See Tariq v. Keisler, 505 F.3d 650, 657 (7th Cir.2007).2 Though Zheng submits a fair amount of evidence demonstrating poor conditions for certain types of Christians today, such as evidence that proselytizing (which Zheng wishes to do) is forbidden, the only evidence that conditions materially worsened since 1999 amounts exclusively to the statements that protections for religious freedoms “deteriorated.” Such highly generalized statements simply do not satisfy Zheng‘s burden. Cf., e.g., Moosa, 644 F.3d at 387 (“[G]eneral conditions of hardship that affect entire populations ... are not persecution.” (quotation marks and citation omitted)); Iglesias v. Mukasey, 540 F.3d 528, 532 (7th Cir.2008) (single general statement about the “happily married couple” was insufficient to demonstrate bona fide marriage). Zheng points to nothing in the reports, for example, that shows in what time frame conditions deteriorated, how conditions specifically deteriorated for those who practice Christianity in the manner that Zheng wishes to practice, or whether such persecution intensified in or around the region where Zheng expects to live. Cf. Moosa, 644 F.3d at 387 (evidence of “broad social strife” occurring nearly 900 miles away from petitioner‘s hometown was insufficient). Zheng points to evidence showing that conditions have worsened for attorneys who defend persecuted Christians, but he does not assert that he is an attorney. He points to evidence that China persecutes unregistered churches, but the evidence does not show how that persecution specifically worsened since 1999 or before, and more importantly, he does not allege that he belongs to, or would join, an unregistered church. In sum, none of the evidence illustrates with any meaningful level of specificity how China‘s treatment of those who practice Christianity as Zheng wishes to do actually worsened from 1999 or before until today. “[B]ecause the BIA could have reasonably concluded” that Zheng failed to demonstrate materially changed circumstances, “we need not remand because the alleged legal error was harmless.” Iglesias, 540 F.3d at 532-33.
III. CONCLUSION
For the above-stated reasons, we DENY Zheng‘s petition for review.
Daniel Patrick Rogan, argued, Minneapolis, MN, for Appellee.
Before LOKEN, SMITH, and BENTON, Circuit Judges.
SMITH, Circuit Judge.
Shawn and Julie Slaven, individually and as parents and next friends for C.S., A.S., and J.S., (collectively, “the Slavens“) brought suit against Hennepin County, a governmental entity within the State of Minnesota, and three of its employees1 in their official capacities (collectively, “Hennepin County“) under
I. Background
The Slavens reside in Plymouth, Minnesota, and are parents of minor children C.S., A.S., and J.S. On August 18, 2009, Julie Slaven carried two-month-old C.S. in his car seat up the steps to their home. Unfortunately, C.S. accidentally fell out of the car seat and hit his head on the ground. Julie Slaven called 911, and police and emergency responders came to the home. Although C.S. had no external injuries, he was transported via ambulance to the hospital as a precaution. The police called Shawn Slaven and provided care for the other children until he arrived.
At the hospital, medical staff performed a computed tomography scan (“CT scan“) of C.S.‘s head. He was kept overnight at the hospital for observation. The following morning, he underwent a second CT scan. The CT scans showed chronic blood in C.S.‘s bilateral frontal lobes. Based on the test results, hospital staff filed a report of suspected child abuse with Hennepin County on August 20, 2009, stating that the CT scan findings were inconsistent with a fall from a car seat. On the same date, C.S. had a retinal scan. Also on that date, the hospital asked Dr. Mark Hudson,
Donothan R. Bartley, a Hennepin County social worker, opened a child-protection investigation based on the report of suspected child abuse. Bartley, along with Detective Molly Lynch of the Plymouth Police Department, interviewed the Slavens. Bartley and Detective Lynch also interviewed Dr. Hudson, who informed them that a retinal hemorrhage, like the one found in C.S., may result from shaking. He also informed them that the Slavens declined consent to perform a bone scan due to fear of excessive radiation. Julie Slaven claims that Detective Lynch used high-pressure tactics on the Slavens, telling them that she would arrange to have all of their children taken from them and placed in a foster home with a middle-of-the-night raid of their home if they did not consent to a bone scan.
Based on Dr. Hudson‘s findings and the lack of a bone scan, Detective Lynch placed C.S. on an emergency “72-Hour Police Health and Welfare Hold” on the afternoon of August 20, 2009. The hold prohibited the Slavens from seeing C.S., except for feeding times with supervision.
On August 21, 2009, Bartley and Detective Lynch interviewed the Slavens’ other children in the home of their maternal grandparents, Marjorie and Stanley Leuthner (“the Leuthners“). Aside from Bartley and Detective Lynch, no one else was present with the children during the interview. That same day, C.S. had a bone scan after the Slavens consented. In the afternoon, Bartley gave Julie Slaven a handwritten note stating, “Tuesday, August 22, 2009 Juvenile Justice Center ... Stop by front desk if you want to apply for a PD (public defender).” Id. at 999 (alteration in original) (quotation and citation omitted). In actuality, August 22, 2009, was a Saturday, and the EPC hearing was set for Tuesday, August 25, 2009.
Minnesota law provides that a peace officer may take a child into immediate custody “when [the] child is found in surroundings or conditions which endanger the child‘s health or welfare or which such peace officer reasonably believes will endanger the child‘s health or welfare.”
[n]o child taken into custody ... by a peace officer ... may be held in custody longer than 72 hours, excluding Saturdays, Sundays and holidays, unless a petition has been filed and the judge ... determines ... that the child shall remain in custody or unless the court has made a finding of domestic abuse perpetrated by a minor after a hearing ..., in which case the court may extend the period of detention for an additional seven days....
whether the petition also makes a prima facie showing that:
(i) the child or others would be immediately endangered by the child‘s actions if the child were released to the care of the parent or legal custodian; or
(ii) the child‘s health, safety, or welfare would be immediately endangered if the child were released to the care of the parent or legal custodian.
On August 25, 2009, the Slavens appeared with counsel, Eric Olson, at the EPC hearing. Jamie L. Cork, Hennepin County Assistant Attorney; Bartley; and Sarah Storm, the assigned social worker for the case, appeared on Hennepin County‘s behalf. A guardian ad litem for the children also appeared. Judge Kathryn L. Quaintance, Minnesota Fourth Judicial District Judge for Hennepin County, conducted the EPC hearing. At the hearing, the Slavens received a summons and petition. The petition, which Hennepin County filed on August 25, 2009, named not only C.S. but also A.S. and J.S. as subjects of the petition. The petition relayed the Slavens’ account of events and Dr. Hudson‘s statement that “there is not a single finding here diagnostic of non-accidental injury.” Slaven, 848 F.Supp.2d at 999 (quotation and citation omitted). But the petition erroneously stated that “Mr. and Mrs. Slaven would not agree to a Skeletal Survey” when, in fact, the Slavens ultimately permitted the bone scan after initially withholding consent. Id. at 999-1000 (quotation and citation omitted). Both Cork and Bartley had signed the petition.
At the hearing, Cork “ask[ed] the Court to find that there is a prima facie showing that a child protection matter exists within the four corners of the petition, and that all three children listed are the subjects of that matter.” She also requested that the court “find ... that ... if the children were in the care and custody of Mr. and Mrs. Slaven, that their health, safety, and welfare would be in immediate danger.” Cork also explained that, although the police department placed a 72-hour hold on J.S., “the two oldest children,” A.S. and J.S., had been staying with the Leuthners on a voluntary basis. Cork presented the court with “an Emergency Protective Care Findings and Order” to keep “those children ... out of the care and custody of the Slavens.” Judge Quaintance then asked Olson for his views on the children‘s placement. Olson referenced “an in camera discussion about the futility of challenging the veracity of the [p]etition.” Slaven, 848 F.Supp.2d at 1000. Specifically, Olson stated:
I know we discussed this at length in chambers[,] and the Court was very clear that you didn‘t want us to be trying the facts in front of you here today. But I have got to note that the petition itself brings doubt into what actually occurred here, and they contradict each other....
*
I am sure the Court is going to [make] a prima facie finding in the petition, but there clearly is some question about what happened here....
Thus, Olson “confined [his] argument to asserting the [p]etition itself was intrinsically inconsistent and did not support a
... the petition sets forth a prima facie case of a child in need of protection and services, and that because of this incident, which doesn‘t yet have a full explanation, according to the physicians, [C.S.‘s] health, safety[,] and welfare, and that of his siblings would be in imminent harm and danger if they were returned to the care of Ms. Slaven.
Judge Quaintance adopted the Slavens’ proposed placement arrangement. Thereafter, Judge Quaintance discussed the future “pretrial and trial date.” “Judge Quaintance proposed a pre-trial hearing date of September 17, 2009, but due to the Slavens’ and their attorney‘s schedules[,] the date of September 21, 2009[,] was selected.” Slaven, 848 F.Supp.2d at 1000. The clerk set a “trial date ... for Judge Quaintance‘s ‘trial block’ that allotted her days for trial beginning on October 26, 2009[,] and ending October 29, 2009.” Id. A trial date of “October 26, 2009, was sixty-two days after the EPC [h]earing.” Id. The Slavens did not object to this trial date even though “[t]he Minnesota Rules of Juvenile Protection Procedure require that a trial be held within sixty days of an EPC [h]earing or another hearing (not applicable here) known as an admit/deny hearing.”
The Slavens claim that, after the EPC hearing, Hennepin County failed to “perform any further investigation of the August 18th accident.”
“By Order dated October 12, 2009, Judge Quaintance ordered that supervision of the Slavens be gradually phased out with no supervision beginning the week of October 26, 2009.”
The Slavens brought suit against Hennepin County under
Minnesota procedures regarding emergency protective care of children and other applicable hearing statutes and court rules, as applied in their circumstances, violated their constitutional right to procedural due process under the Fourteenth Amendment of the U.S. Constitution because they never “received an opportunity to be heard at a meaningful time in a meaningful manner,” among other procedural legal and factual infirmities.
(Emphasis added.)
The Slavens alleged that Hennepin County “knew that the Slavens had a right to offer rebuttable evidence to overcome or invalidate the offered ‘prima facie’ petition,” but that during the EPC hearing “the court denied the Slavens right to provide rebuttal evidence and the right to cross-examine witnesses among other rights afforded to the Slavens.” (Emphasis added.) According to the Slavens, Hennepin County “knowingly participated in the Slavens denied right to due process.” “As a result, [the Slavens asserted that] the governing statute
Count II of the complaint alleged that Hennepin County violated the Slavens’ procedural due process rights because the 62-day delay between the EPC hearing and the scheduled trial was unconstitutionally long, as the delay deprived them of “an opportunity to be heard at a meaningful time or in a meaningful manner.” (Quotation marks in original.) Specifically, Count II alleged, in relevant part:
45.
Minnesota Statute § 260C.163 is devoid of a required scheduling of a timely and expedient adjudicative hearing after theMinn. R. Civ. P. 30.01 emergency protective hearing. In this respect, the statute is unconstitutional.46.
Minnesota Court Rules for Juvenile Protection Procedure 30. 11, subd. 3 allows the court to schedule a formal review hearing “at any time.” The phrase “at any time” is unconstitutionally vague and arbitrary.47. Because of the restrictions placed upon the Plaintiffs, the Defendants, acting under the color of state law, interfered with the constitutional protections afforded to parents and their children, and continued to interfere with their constitutional rights for more than 62 days.
48. In addition, the statutory absence of a specific deadline and the similar absence of a formal hearing deadline of applicable court rules for a formal hearing, considering the constitutional rights implicated involving the infant and parent, allows for arbitrary scheduling and thus, the lack of due process. The Defendants participated in the scheduling of the arbitrary hearing date and the Defendants’ failure to expedite
the adjudication of their petition caused the restricted separation between the Plaintiffs for over 62 days. 49. The length of time between the filing of the August 25, 2009 petition and the scheduled trial by the court was so arbitrary that it can be said to shock the conscience.
(Emphases added.)
The parties filed cross-motions for summary judgment. The district court denied the Slavens’ motion, granted Hennepin County‘s motion, and dismissed with prejudice the Slavens’ complaint. The district court concluded that Hennepin County was not liable under
II. Discussion
On appeal, the Slavens argue that the district court erred in granting Hennepin County summary judgment on their claims of procedural due process violations. According to the Slavens, “[w]hen a county implement[s] a policy under state law that is violative of the constitutional right to due process, it is liable under
“The Due Process Clause provides that ‘[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.‘” Lind v. Midland Funding, L.L.C., 688 F.3d 402, 405 (8th Cir.2012) (alterations in original) (quoting
Additionally, “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). “That liberty interest is limited by the compelling governmental interest in protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.” Whisman Through Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir.1997) (quotation and citation omitted); see also Dornheim v. Sholes, 430 F.3d 919, 925–26 (8th Cir.2005) (“However, the right to family integrity clearly does not include a constitutional right to be free from child abuse investigations, as the
Here, the Slavens alleged that Hennepin County “engaged in conduct under the unconstitutional authority of Minnesota statutes and court rules to deny [them their] due process rights.” Hennepin County is a unit of local government that is a “person” within the meaning of
In the present case, the Slavens’ complaint is devoid of any allegations of an unconstitutional Hennepin County policy separate and distinct from Minnesota law. As set forth supra, Counts I and II of their complaint repeatedly reference specific Minnesota statutes, rules, and procedures as depriving them of due process. In fact, both Counts I and II of the Slavens’ complaint challenge Judge Quaintance‘s application of Minnesota law and handling and scheduling of the EPC hearing and formal hearing. These counts do not challenge a particular policy that Hennepin County promulgated. For example, ¶ 33 of Count I provides:
During the August 25, 2009 hearing, the court denied the Slavens right to provide rebuttal evidence and the right to cross-examine witnesses among other rights afforded to the Slavens. The Defendants had in their possession evidence of a nature that could overcome, invalidate, or rebut the allegations of the offered petition to the court. They did not or refused to present this evidence to the court. Thus, the Defendants knowingly participated in the Slavens denied right to due process.
(Emphases added.) Because the court “denied [the Slavens] the right to present evidence[,] including cross-examination of witnesses during [the EPC] hearing,” the Slavens allege that they “were denied the right to be heard.”
Similarly, ¶ 44 of Count II alleges that “the court ... ordered and scheduled a formal trial hearing for October 26, 2009—62 days after the August 25, 2009 hearing.” (Emphasis added.) According to the Slavens, because ”
Additionally, ¶ 48 of Count II provides that “the statutory absence of a specific deadline and the similar absence of a formal hearing deadline of applicable court rules for a formal hearing” resulted in “arbitrary scheduling and thus, the lack of due process.” (Emphases added.) The
As the district court explained:
Under Minnesota law, child protection matters are tried before the courts of Minnesota.
Minn.Stat. § 260C.101, subd. 1 (“The juvenile court has original and exclusive jurisdiction in proceedings concerning any child who is alleged to be in need of protection or services....“). Inherent in judicial authority is the authority of the court to set its own schedule. See Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort....“).
Slaven, 848 F.Supp.2d at 1004 (emphasis added). Minnesota law provides that court judges and their staffs in the various judicial districts are state employees, not county employees. See
And, under Minnesota law, the state court—not Hennepin County—is responsible for service of the summons and petition. See
In summary, Hennepin County lacks any policymaking authority regarding the handling and scheduling of the EPC hearing and formal hearing. The Slavens’ complaint essentially alleges that Minnesota law, and the state court judge‘s application of that law—not an independent Hennepin County policy—caused the procedural due process violations. Hennepin County cannot be liable to the Slavens under
III. Conclusion
Accordingly, we affirm the judgment of the district court.
LAVENSKI R. SMITH
UNITED STATES CIRCUIT JUDGE
Notes
[a] parent with a legally recognized parent and child relationship must be provided the right to be heard in any review or hearing held with respect to the child, which includes the right to be heard on the disposition order under section 260C.201, subdivision 1, parental visitation under section 260C.178, and the out-of-home placement plan under section 260C.212, subdivision 1.