Starkey Ex Rel. AB v. BOULDER COUNTY SOC. SERV.Starkey Ex Rel. AB v. BOULDER COUNTY SOC. SERV.
Stephen Starkey, his wife Bedra Starkey, and his three children, A.B., C.D., and E.F., brought this action in federal court under
The United States District Court for the District of Colorado dismissed on Eleventh Amendment sovereign-immunity grounds all claims for damages against BCDSS and the individual Defendants in their official capacities. The court also
On appeal the Starkeys contend (1) that BCDSS and the individual Defendants in their official capacities were not entitled to sovereign immunity because BCDSS is not an arm of the state of Colorado, (2) that the district court improperly struck portions of the Starkeys’ affidavits submitted with their response to Defendants’ summary-judgment motion, and (3) that the district court еrred by granting summary judgment to the individual Defendants on the First and Fourteenth Amendment claims because there were genuine issues of material fact as to whether all six individual Defendants violated their constitutional rights.
We have jurisdiction under
We affirm the district court‘s ruling striking portions of the Starkeys’ affidavits, and we hold that the Starkeys have failed to present sufficient evidence to raise a genuine issue that their constitutional rights were violated. Thus, we affirm summary judgment for the individual Defendants in their personal capacities. Because there was no underlying constitutional violation, the Starkeys’ claims against BCDSS and the individual Defendants in their official capacities must also fail. For subtle reasons that will be discussed more fully
I. BACKGROUND
We summarize the pertinent evidence presented to the district court with respect to Defendants’ summary-judgment motion, viewing it in the light most favorable to the Starkeys.1 See Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1216 (10th Cir. 2008). A.B. (born in 1991), C.D. (born in 1993), and E.F. (born in 1995) are the children of Mr. Starkey and his former wife, Susan Kozlowski. Mr. Starkey is now married to Bedra Starkey, and Ms. Kozlowski to Robert Kozlowski.
On August 20, 2004, the children contacted BCDSS, alleging abuse by Mr. Starkey and stating that they were planning to run away from hоme. The children said that Mr. Starkey had punished them by imposing time-outs for several hours, withholding food, forcing them to lie on the floor with their faces down for hours, spanking them, and hitting E.F. on the head. After interviewing Mr. Starkey and the children, Tamara Tacha, a caseworker at BCDSS but not a Defendant, filed a Petition in Dependency or Neglect (D&N Petition) in Boulder County District Court. In addition, the police filed criminal charges of child
On August 25 a hearing on the D&N Petition was held in state court. The children‘s guardian ad litem said that he believed that the children needed to be in foster care. The judge agreed, finding it in the best interests of the children to be placed in the temporary custody of BCDSS. The judge ordered (1) that legal custody of the children be placed with BCDSS, (2) that Mr. Starkey and Ms. Kozlowski have supervised visits with the children, and (3) that Mr. Starkey and Ms. Kozlowski complete psychological evaluations and interactional evaluations with the children.
On September 13 the case was transferred from Tacha to Defendant Miller.
Ten days later the state court held another hearing. Mr. Starkey admitted that “[the сhildren] lack proper parental care through the actions or omissions of their parent, guardian, or legal custodian,” Aplee. Supp. App. at 756, and that “[t]here was conflict in the home,” Aplt. App. Vol. II at 200. The court adjudicated the children “dependent or neglected,” id., and ordered that there be no contact between Mr. Starkey and the children until the children were psychologically evaluated.
On October 29 Dr. Suzanne Pinto, a licensed psychologist, reported her evaluation of Mr. Starkey. The report expressed concerns about his psychological state and its effect on the children. It noted that he “ha[d] tried to raise [them] in
At the next court hearing, on November 4, 2004, BCDSS submitted a proposed treatment plan for the Starkey family. The judge approved the plan with minor changes. The judge‘s order reiterated that it was in the best interests of the children to remain in the custody of BCDSS.
Sometime between the November 4 hearing and January 27, 2005, BCDSS moved A.B. to a separate foster home from her brother and sister. During this period all three children had weekly visits with Ms. Kozlowski (and their stepfather) and weekly visits with Mrs. Starkey. They did not have visits with Mr. Starkey.
In February 2005 the case was transferred from Defendant Miller to Dusti Moats, who is not a defendant in this case. In April, Mr. and Mrs. Starkey began having supervised visits with the children. About a month later A.B. reported to Moats that the children‘s initial allegations against their father in August 2004 had been exaggerated. She also said that she wanted to have unsupervised visits with her father and that she ultimately wanted to live with him part-time. C.D. confirmed that the allegations had been exaggerated and that she also wanted to live part-time with her father. E.F. continued to allege that his father hit him on the head, although he, too, wished for unsupervised visits and potentially part-time residence with Mr. Starkey.
On June 15 the case was transferred from Moats to Defendant Kintzing (and to Kintzing‘s supervisor, Defendant Park, in Kintzing‘s absence). On the same day, A.B. was returned to the custody of Ms. Kozlowski. C.D. and E.F.
On Wednesday, August 31, 2005, Mr. Starkey picked up the children for his scheduled parenting time. Four days later Mr. Starkey dropped C.D. and E.F. off with Ms. Kozlowski, but A.B. remаined with him. On Wednesday, September 7, Mr. Starkey received a call from A.B.‘s school because A.B. was having an anxiety attack. He picked her up from school and drove her to the hospital. On the way, A.B. calmed down and told Mr. Starkey that she did not want to go into the hospital for treatment.
That evening Mr. and Mrs. Starkey took A.B. to Victory Church, where she had recently joined a youth group. A religious service at the church was scheduled for 7:00 p.m. to 9:00 p.m. Mr. Starkey returned to the church at 9:00 p.m. to pick up A.B., but he saw that she was praying with two of the youth leaders at the church. One of the two leaders told Mr. Starkey that they could give A.B. a ride home, so Mr. Starkey left A.B. at the church. The leaders brought A.B. home around 1:00 a.m. The next day Mr. Starkey took A.B. to school, but he had to take her home because she was having another anxiety attack. Late that afternoon, Mr. Starkey returned A.B. to Ms. Kozlowski. Two hours later Ms. Kozlowski took A.B. to the emergency department at Exempla Lutheran Hospital because she continued to suffer from an anxiety attack.
He stated that it took him an hour to get any questions answered and 4 hours to finish the evaluation because of the severe state that she was in physically and mentally. . . . She spoke briefly about being saved, but then wouldn‘t discuss it. This occurred about 40 times during the interview. Ms. Kozlowski told them that Mr. Starkey had a church in his home, and that [A.B.] was prayed over for 2-3 hours on the 7th of September. [A.B.] had also told him this. . . . . When asked about a comment that Ms. Kozlowski had made to me about Mr. Starkey religiously brain abusing them, he stated that he wouldn‘t be surprised. He felt that [A.B.] “has a brainwashing dynamic goin[g] on that interfaces with her need for approval and recognition.[“] He stated that her reactions and affect were “the strangest I have ever seen“, in all of his years of doing psyche evals. Seemed worse than some of his psychotic patients.
In the meantime, on Monday, September 12, the state court held a hearing to consider the protective orders entered on September 9. BCDSS sought placement of the children in the temporary custody of Ms. Kozlowski with only supervised contact for Mr. and Mrs. Starkey. The crux of BCDSS‘s argument was that two of the three children had recently suffered anxiety attacks or emotional breakdowns after their contact with Mr. Starkey. In support of this argument, BCDSS рresented the testimony of two experts, Dr. Michael Stackpool and Dr. Elisabeth Konlos-Hrobsky.
Dr. Stackpool, the attending physician at Exempla Lutheran‘s emergency department on the night of September 8, testified that he had treated A.B. upon her admission to the hospital. A.B. had been brought in by her mother for what A.B. described as a “five-day anxiety attack.” Id. Vol. III at 312. A West Pines counselor also evaluated A.B. outside Dr. Stackpool‘s presence. Dr. Stackpool was told by the counselor that A.B. had recently returned to her mother‘s home from her first unsupervised visit with her father in ten months, during which she
She had long, overly-dramatic pauses. Lots of gulping of air, lots of hyperventilating. Could not get—could not give me any reason for those behaviors. There was no—аnd I—and I really believe there was no way she was gonna be able to talk about anything other than the Gulf Coast hurricane.
Id. at 317. After evaluating A.B., Dr. Stackpool wrote in his notes: “I feel strongly that this patient should be involved in counseling and after discussing the family situation more with the West Pines counselor, I think probably the father should go back to having supervised visits with his daughter and we have made this recommendation to Social Services.” Id. at 314 (internal quotation marks omitted).
Testifying next was Dr. Konlos-Hrobsky, a therapist with a Ph.D. in child psychology who worked at the Boulder County Mental Health Center. She had evaluated E.F. the month before at a previously scheduled intake appointment. She said that when she came out to greet E.F. and Ms. Kozlowski in the waiting area, “[E.F.] was curled up on one of the chairs.” Id. at 327. Ms. Kozlowski explained that Mr. Starkey had shown E.F. an Internet site about fatalities caused
Mr. Starkey then presented his case. He showed that the West Pines counselor had provided Dr. Stackpool with at least two items of erroneous information: First, A.B.‘s visit with her father before returning to her mother‘s home had not been her first unsupervised visit with her father in ten months; joint custody had begun several weeks earlier. Second, any spiritual cleansing to which A.B. had been subjected while in the custody of her father actually took place at Victory Church; Mr. Starkey was not directly involved. Pastor Doug Walker, the youth pastor at Victory Church, testified at the hearing that A.B. had attended a youth service on the evening of Wednesday, September 7. After the service he observed two of his youth leaders praying with and ministering to A.B. He believed that what had happened to A.B. at the church could be described as a “spiritual cleansing.” Id. at 352.
Counsel for BCDSS asked the court to order that the children remain in the sole custody of Ms. Kozlowski. In counsel‘s view, “whether this thing that happened on Wednesday the 7th was a spiritual cleansing or not [was] completely
The judge concluded that it would be in the best interests of the children to remain in the custody of Ms. Kozlowski. The judge expressed concern about A.B.‘s mental state and E.F.‘s behavior. Although little mention of C.D. had been made at the hearing, the judge concluded that it would be in the best interests of the children to stay together.
After the judge announced this ruling, the parties discussed a provision in the petition for protective orders that had sought a prohibition on religious discussion between Mr. Starkey and the children. BCDSS‘s attorney explained:
I think the specific—what we were trying to specifically say was in the context of doing it in a therаpeutic setting with a therapist, that‘s fine. But in a supervised visit when it‘s just the dad and the kids when we don‘t really know what‘s going on and all of that, to try to keep the visits a little lighter and focused more on how are you and
seeing them and letting the more intense issues be dealt with in a therapeutic setting.
Id. at 452. She later elaborated that there would be no objection to Mr. Starkey‘s responding to religious questions from the children, so long as he did not initiate the discussion. Mr. Starkey‘s attorney objected to any such prohibition as a violation of the Starkeys’ First Amendment rights.
The judge‘s written order specified (1) that temporary custody of the children be with Ms. Kozlowski, and (2) that Mr. and Mrs. Starkey have supervised visits with the children. The order did not include any provision restricting the religious speech of Mr. or Mrs. Starkey with the children. In a minute order issued the following day, the judge clarified the initial order on this point:
Mr. Starkey and Mrs. Starkey are allowed a minimum of two supervised visits a week. During these visits, they are to be sensitive to the needs of the children and respond to the questions the children have, the requests the children have, and to re-direct the children when appropriate. If the children bring up a request to spend time together in prayer or other religious event, then Mr. and Mrs. Starkey should respond appropriately—supporting their children‘s needs and encouraging their children. The Court is not concerned if anything religious occurs during visits, the Court is only concerned that the children leave those visits feeling cared for, supported, and encouraged by the time spent with the Starkeys.
Aplee. Supp. App. at 777.
On September 21, 2005, A.B. was discharged from Ft. Logan. A.B.‘s discharge report, signed by Nurse Practitioner Mary Hamilton and Dr. Robert Hernandez, included the statement: “At the time of admission, the patient‘s
On the day of A.B.‘s discharge from Ft. Logan, another hearing was held in state court to determine her placement. BCDSS sought to have A.B. removed from the custody of both parents and temporarily placed in its custody. Ms. Kozlowski agreed, but Mr. Starkey sought custody of A.B. The only witness to testify at the hearing was Mary Hamilton, the psychiatric nurse practitioner who had treated A.B. at Ft. Logan. She had met daily with A.B. during her stay.
Hamilton expressed concerns about A.B.‘s returning to the custody of either Ms. Kozlowski or Mr. Starkey. According to Hamilton, A.B. “felt like there was a lot of chaos in the family,” and this had been “overwhelming” to her. Id. Vol. IV at 481. She explained that A.B. “tries to take responsibility and emotionally care-take both of her parents.” Id. Hamilton noted that A.B. had expressed fear of her father, and that during the ten days of her treatment at Ft. Logan, she had vacillated between wanting to return to her mother‘s home, her father‘s home, or to a foster home. On cross-examination by the Starkeys’ lawyer, Hamilton said that she had received “secondhand information” from a
The judge agreed, finding it in A.B.‘s best interests to be placed in the custody of BCDSS. The judge found that A.B. needed to be placed in a safe and stable environment, away from the chaos surrounding her family, in order to take care of herself. After her discharge from Ft. Logan, A.B. was placed in a group foster home. Both parents were allowed supervised contact with A.B. E.F. and C.D. remained in the temporary custody of Ms. Kozlowski.
On November 16, 2005, E.F. and C.D. were placed in the joint physical custody of both parents, but a week later they were placed in Mr. Starkey‘s custody by agreement of the parties. On December 12 Mr. Starkey submitted to the district court an evaluation from a treating therapist and an affidavit from the
II. DISCUSSION
The Starkeys claim violations of three constitutional rights: their Fourteenth Amendment substantive-due-process rights to family integrity, their First Amendment rights to the free exercise of religion, and the children‘s Fourteenth Amendment substantive-due-process rights to a reasonably safe and secure environment while in government custody. The district court held that the claims against BCDSS and the individual Defendants in their official capacities were barred by Eleventh Amendment sovereign immunity because BCDSS is an arm of the state. It also granted summary judgment to the individual Defendants in their personal capacities. As to Defendants Smith, Park, Baldwin, and Russell, the court ruled that the Starkeys had not provided evidence that any of them had violated the Starkeys’ constitutional rights. The court made the same ruling with respect to Defendant Miller, but also relied on the issue-preclusive effect of the state court‘s findings relating to the period of time that Miller worked on the Starkeys’ case. Finally, the court concluded that Defendant Kintzing was protected by qualified immunity because the uncontradicted evidence showed that her conduct was “objectively reasonable in light of the information she possessed at the time.” Aplt. App. Vol. V at 745. On appeal the Starkeys contend (1) that Eleventh Amendment sovereign immunity is not applicable because BCDSS is an
First, we affirm the district court‘s ruling on the affidavits. We then affirm the summary judgments entered in favor of the individual Defendants in their personal capacities because the evidence on which the Starkeys rely does not support the allegations that their constitutional rights were violated. In the absence of a constitutional violation, neither BCDSS nor the individual Defendants in their official capacities can be held liable, so we can affirm judgment in their favor without deciding whether they are entitled to Eleventh Amendment sovereign immunity.
A. Affidavits
Mr. Starkey, Mrs. Starkey, and A.B. submitted affidavits with their response to Defendants’ summary-judgment motion. Defendants moved to strike the affidavits on various grounds. In ruling on the motion the district court first noted “that the affidаvits do not appear to be sworn before someone who is authorized to administer an oath and may be stricken sua sponte on that basis alone.” Id. Vol. V at 732. But because Defendants had not objected to the affidavits on this ground, the court proceeded through the affidavits line by line, striking portions that (1) were not based on personal knowledge, (2) were mere
The Starkeys’ challenge, however, is inadequate. The only ground for striking that they confront is lack of personal knowledge; they contend that the affidavits “clearly demonstrate personal knowledge.” Aplt. Br. at 19. But every statement in the affidavits that was stricken for lack of personal knowledge was also stricken for one or more other reasons. The Starkeys’ briefs on appeal do not address these other reasons. When an appellant does not challenge a district court‘s alternate ground for its ruling, we may affirm the ruling. See Bones v. Honeywell Int‘l, Inc., 366 F.3d 869, 877 (10th Cir. 2004) (affirming on district court‘s alternate ground for judgment that was not addressed in appellant‘s brief on appeal); Utahns for Better Transp. v. U.S. Dep‘t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002) (we do not address issues not adequately briefed). We therefore reject the Starkeys’ challenge to striking portions of the affidavits.
B. 42 U.S.C. § 1983 Claims Against BCDSS Employees In Their Personal Capacities
We review the district court‘s grant of summary judgment de novo. See Pignanelli, 540 F.3d at 1216. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
The Starkeys contend that Defendants violated their substantive-due-process rights to family integrity by depriving Mr. and Mrs. Starkey of custody and contact with the children. “[T]he 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 (2000). See J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997) (“[The] right of familial association [of plaintiffs, a mother and child,] is included in the substantive due process right of freedom of intimate association . . . .“). But this right to family integrity “has never been deemed absolute or unqualified.” Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir. 1994). “Courts have recognized that the constitutional right to familial integrity is amorphous and always must be balanced against the governmental interest involved.” Id.
We need not resolve the dispute between the parties regarding whether the government‘s interest in the welfare of the children outweighed the Starkeys’ rights to family integrity. We are persuaded by Defendants’ alternative defense that if there was any interference with the Starkeys’ constitutional rights, Defendants did not cause it. They correctly assert that “[t]he [state] court made every significant decision about custody, visitation and treatment.” Aplee. Br. at 21. The Starkeys do not contest that the evidence presented to the state court was
We will assume for purposes of this appeal that it would be a constitutional violation for Defendants to have obtained the state-court orders through the presentation of fabricated evidence. Cf. Malik v. Arapahoe County Dept. of Soc. Servs., 191 F.3d 1306, 1316 (10th Cir. 1999) (government officials’ procuremеnt of court order to seize a child “‘through distortion, misrepresentation, and omission‘” was a violation of the
Four separate court proceedings are at issue: (1) on August 25, 2004, the state court ordered that legal custody of the children be placed with BCDSS and that Mr. Starkey have only supervised contact with the children; (2) a year later, on September 9, 2005, the state court ordered that temporary custody of the children be placed with Ms. Kozlowski and that Mr. Starkey have only supervised contact with the children; (3) on September 12, 2005, the state court affirmed its order placing the children in the temporary custody of Ms. Kozlowski and limited
It is not clear from the Starkeys’ briefing whether they allege that Defendants obtained the first order, in August 2004, through fraudulent means. They do allege that Defendants knew that the children‘s allegations about their father were fаlse. But there is no evidence that Defendants had received any information that the children had made false allegations about their father until the children recanted some of their allegations in May 2005, nine months after the first order. The Starkeys have directed us to no evidence in the record that Defendants fabricated evidence to obtain this first order.
The Starkeys allege that the remaining three orders, which were entered in September 2005, were obtained only because Defendants “invented” a claim that Mr. Starkey had subjected A.B. to a “coercive ‘spiritual cleansing‘” that resulted in her hospitalization. Aplt. Br. at 3–4. According to the Starkeys, Defendants provided this false information to the children‘s caretakers, who then repeated it through their testimony to the court. In support of these allegations, the Starkeys direct us to (1) Dr. Stackpool‘s September 12 testimony (as described by the Starkeys) that A.B. “had a history of emotional abuse by her father, that she had just returned [to his home] after a ten-month hiatus, and [that] she had just been subjected to a ‘spiritual cleansing’ [by her father],” id. at 4; (2) a notation in A.B.‘s discharge report from Ft. Logan that states: “At thе time of admission, the
The statements upon which the Starkeys rely contain seven factual assertions: (1) that Mr. Starkey had a history of emotionally abusing the children; (2) that A.B.‘s hospitalization occurred immediately after her first unsupervised visit with Mr. Starkey in ten months; (3) that A.B. had been subjected to a spiritual cleansing by Mr. Starkey; (4) that A.B. had been brainwashed by Mr. Starkey; (5) that Mr. Starkey started his own church; (6) that Mr. Starkey was heavily into religion; and (7) that A.B.‘s hospitalization was caused by Mr. Starkey. For one of these assertions to support the Starkeys’ claim that the court‘s orders were caused by Defendants’ concoction of false evidence, the Starkeys would have to prove (1) that the assertion was false, (2) that Defendants were the source of the assertion, (3) that Defendants knew the assertion to be
Two of the seven assertions (numbers 5 and 6) are not contestable, or at least not contested by the Starkeys. That Mr. Starkey was “heavily into religion,” id. Vol. I at 46, is established by the Starkeys’ briefs on appeal, as well as by the record. As for the assertion that Mr. Starkey “started his own church a number of years ago,” id., Mr. Starkey testified on direct examination during the September 12 hearing that he and Mrs. Starkey had “worship service[s]” in their home. Id. Vol. III at 376. The children‘s guardian ad litem pursued the matter in the following exchange:
Q: Mr. Starkey, I want to talk about the religious environment in your home. In fact, there‘s a church in your basement; is that correct?
A: I have no basement.
Q: Okay. Where you have service at your house?
A: Yes.
Q: And when the children are there, they participate in the service, correct?
A: No.
Q: They do not?
A: Nope.
Q: How many mem—how many individuals do you have in the congregation? A: I no longer have any members in my congregation. In the—
Q: You indicated—
A: —past—
Q: —earlier in your testimony that you do not speak as a pastor, that Bedra speaks?
A: Yes, I have been preaching outside of my home for the past year in other men‘s churches.
Court: I‘m sorry, in other what?
A: Other men‘s churches. I‘m a back-up—I‘m a back-up pastor and preacher to the Denver Rescue Mission.
Court: Oh.
Q: So who does Bedra speak to?
A: Since we haven‘t had any members for quite some time, she preaches to me.
Q: Outside of the presence of the children?
A: The children haven‘t been home. For the last five weeks, they have not participated because they are not there on Sunday nights. So they—they have only been—well, it‘s been over a year.
Id. at 410–11. Mr. Starkey has not specifically denied that he started his own church, and his testimony certainly suggests that he did so.
The same can be said with respect to the brainwashing assertion. The only evidence that any Defendant alleged that Mr. Starkey had brainwashed the children appears in A.B.‘s discharge report from Ft. Logan on September 21, 2005. But before A.B.‘s admission to Ft. Logan, Kintzing had substantial information that would support such an allegation: Ms. Kozlowski told Kintzing that Mr. Starkey had “religiously brain abu[sed]” the children in the past, id. Vol. I at 83. Also, the West Pines counselor reported to Kintzing that Ms. Kozlowski had told him that “Mr. Starkey had a church in his home, and that A.B. was prayed over for 2-3 hours on the 7th of September,” id., and that he was
Turning to assertions 2 and 3, the Starkeys have presented no evidence that Defendants were the source of the (inaccurate) statements that A.B. had her first unsupervised visit with her father immediatеly before her hospitalization and that Mr. Starkey had subjected her to a spiritual cleansing. These inaccurate statements were made by Dr. Stackpool in his testimony on September 12, 2005. The Starkeys contend that Dr. Stackpool testified that he “did not know the source of [these] allegations, but that they would not have come from the child‘s birth mother.” Aplt. Br. at 4. The record is to the contrary. Dr. Stackpool testified that he treated A.B. upon her admission to the emergency department, that a West Pines counselor evaluated her outside his presence, and that he learned from that counselor that A.B. had just had her first unsupervised visit with Mr. Starkey in ten months, during which she had been subjected to a “spiritual cleansing” by her father. Aplt. App. Vol. III at 319. Dr. Stackpool said that he did not know the source of the counselor‘s information, but he assumed that the counselor obtained it from A.B. or Ms. Kozlowski. Kintzing did not learn of A.B.‘s hospitalization until Ms. Kozlowski called her the following morning. Nothing suggests that any Defendant was the source of Dr. Stackpool‘s misinformation, directly or indirectly. (We also note that the factual errors in Dr. Stackpool‘s testimony were
One assertion (number 7) remains—that Mr. Starkey caused A.B.‘s hospitalization. The only “evidence” that any BCDSS employee made such an assertion was elicited during the Starkeys’ cross-examination of Hamilton, the psychiatric nurse who testified at the final hearing, on September 21, 2005. The Starkeys’ attorney asked Hamilton whether A.B. had ever “told somebody else something that would indicate that it was her father‘s responsibility that she had ended up in the hospital.” Id. at 488. Hamilton responded that she had heard “secondhand information about that” from “her caseworker.” Id. at 488–49. The Starkeys’ attorney did not have Hamilton expand on this point. Such vague testimony cannot support a claim that a Defendant alleged that Mr. Starkey caused her hospitalization.
Moreover, and perhaps more importantly, the Starkeys have failed to show that any false information from Defendants influenced the state court in issuing the various ordеrs that interfered with the Starkeys’ family integrity. To begin with, the Starkeys have utterly failed to show what evidence and argument, if any, was presented to the state court on September 9, 2005, when the court ordered
My concern would be that she would get right back into not taking care of herself emotionally and trying to take care of both of her parents and I think when she does that, her level of stress goes up and she becomes very overwhelmed. And I think right now that, you know, we just got her stabilized and I think that if she was in a neutral place for a period of time, that that would allow her to become even more stable and kind of sort through some issues.
Id. at 484. The state court relied on Hamilton‘s testimony when explaining its decision. After noting that A.B. “had changed her mind three times about where she wants to be” during her stay at Ft. Logan, id. at 516, the court concluded that it would be in A.B.‘s best interests to be placed in foster care:
A.B. needs to take care of herself. She needs to get well. She needs to be removed from the chaos. . . . She needs to get off of the roller coaster ride. She needs to feel safe and stable so that she can work on things that 14-year-old kids work on. Not on taking care of your parents because they have a really high conflict divorce. She needs to be 14 and we need to get her there.
Id. at 518. On this record, the Starkeys have not shown that anything a Defendant may have reported had any effect on Hamilton‘s testimony or on the state court‘s order.
In sum, the Starkeys have failed to raise a genuine issue that the state-court orders were fraudulently induced by Defendants. Accordingly, we affirm the summary judgment for the individual Defendants in their personal capacities on the Starkeys’ family-integrity claim.
2. Free-Exercise Claim
The Starkeys also contend that Defendants violated their
The Starkeys allege that Defendants conspired to deprive Mr. and Mrs. Starkey of custody and contact with the children “because of their disapproval of [the Starkeys‘] Pentecostal or ‘fundamentalist’ religious beliefs.”
In any event, the Starkeys cannot support a claim that any adverse consequences resulted from this alleged bias. Their sole claim of injury from the religious bias is the deprivation of Mr. and Mrs. Starkey‘s custody of and contact with the children. But, as we have already explained in rejecting the Starkeys’ family-integrity claim, they have pointed to no evidence that Defendants caused these deprivations. Rather, the state court ordered the deprivations based on the testimony of independent professionals who had treated the children and concluded that restrictions on custody and contact would be in the children‘s best interests. As a result, the Starkeys’ claim must fail, and the district court properly granted summary judgment to the individual Defendants in their personal capacities.
3. Safe-And-Secure-Environment Claim
The Starkeys’ complaint alleged: “During the period from September 12, 2005 to December, 2005, Ms. Park, Ms. Kintzing and/or Ann Baldwin repeatedly endeavоred to force the children in foster care or their mother‘s care, despite the obvious physical and emotional dangers of such placement.” Id. at 14 ¶ 15. They may have been attempting to state a claim that Defendants violated the children‘s substantive-due-process rights to placement in a reasonably safe and secure
Although the Starkeys’ reply brief cites additional evidence in support of their safe-environment claim, we decline to consider that evidence. “This court does not ordinarily review issues raised for the first time in a reply brief.” Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). This rule protects us “from publishing an erroneous opinion because we did not have the benefit of the appellee‘s response.” Id. The same rationale applies when the only evidence supporting a claim is not cited until the reply brief. See Hrobowski v. Worthington Steel Co., 358 F.3d 473, 478 (7th Cir. 2004) (reply brief‘s citations
C. 42 U.S.C. § 1983 Claims Against BCDSS And Employees In Their Official Capacities
The district court dismissed the Starkeys’
Ordinarily, we would have to resolve the sovereign-immunity question before addressing the merits of the claim, even if the sovereign-immunity question were difficult and we could easily decide the merits in favor of the defendants. See Martin v. Kansas, 190 F.3d 1120, 1126 (10th Cir. 1999) (state‘s assertion of sovereign immunity must be resolved before addressing merits of
Nevertheless, we need not decide the sovereign-immunity question before us because Steel Co. recognized an exception to the general rule—that jurisdiction must be established before turning to the merits—that applies here. Occasionally a court may rule that a party loses on the merits without first establishing jurisdiction because the merits have already been decided in the court‘s resolution of a claim over which it did have jurisdiction. In that circumstance, resolution of the merits is “foreordained,” id. at 98, so the court is not producing an advisory opinion. Rather, it is merely parroting a prior decision. Such parroting is not an
Steel Co. acknowledged that the Supreme Court had previously acted in accordance with this “foreordained” exception. Id. at 98-100. Two cases, Norton v. Mathews, 427 U.S. 524 (1976), and Secretary of Navy v. Avrech, 418 U.S. 676 (1974), are particularly instructive. In Norton the Supreme Court heard a direct appeal from a three-judge district court. See 427 U.S. at 528. Although faced with a jurisdictional question—whether the action was properly brought in the three-judge district court rather than in an ordinary district court—the Court found it unnecessary to resolve this “difficult and perhaps close” question. Id. at 530. The merits of Norton had been decided in a companion case, Mathews v. Lucas, 427 U.S. 495 (1976). Thus, resolution of the jurisdictional question could have no effect on the outcome. As the Supreme Court later explained:
If the three-judge court had been properly convened, we would have affirmed, and if not, we would have vacated and remanded for a fresh decree from which an appeal could be taken to the Court of Appеals, the outcome of which was foreordained by Lucas.
Steel Co., 523 U.S. at 98. Steel Co. approved of this analysis because ”Norton did not use the pretermission of the jurisdictional question as a device for reaching a question of law that otherwise would have gone unaddressed.” Id. The question of law had already been decided in the companion case.
Steel Co. did not say that the peculiar circumstances of these cases were the only ones in which the merits could be addressed without first finding jurisdiction. In fact, two of the five members of the Steel Co. majority explained that “the Court‘s opinion should not be read as cataloging an exhaustive list of circumstances under which federal courts may exercise judgment in reserving difficult questions of jurisdiction when the case alternatively could be resolved on the merits in favor of the same party.” Steel, 523 U.S. at 110–11 (O‘Connor, J., concurring, joined by Kennedy, J.) (ellipses and internal quotation marks omitted).
In Seale v. INS, 323 F.3d 150 (1st Cir. 2003), the First Circuit also bypassed a jurisdictional question because circuit precedent conclusively resolved the merits issue. An alien had petitioned the district court for a writ of habeas corpus under
(1) the question of whether the district court has subject matter jurisdiction is close and, for us, one of first impression; and (2) precedent already existing in this circuit . . . conclusively resolves against [the alien] his objections to the order of removal; our merits ruling here is thus “foreordained” and does not create new precedent. In such circumstances, the rule in Steel Co. requiring a definitive jurisdictional assessment may be circumvented.
Finally, the case most similar to the one before us is a precedent from this circuit, Carolina Casualty Insurance Co. v. Pinnacol Assurance, 425 F.3d 921 (10th Cir. 2005). The lawsuit arose out of a prior suit by Jeremy Dymowski, a mentally disabled person who worked on a church clean-up crew for Rocky Mountain Job Opportunity Brigade (RMJOB). See id. at 923. He sued RMJOB in tort after being injured at work. See id. RMJOB‘s general liability insurer, Carolina Casualty, settled the claim, but only after RMJOB‘s workers’ compensation carrier, Pinnacol Assurance, refused to participate in settlement negotiatiоns. See id. Contending that Pinnacol‘s refusal violated the Americans with Disabilities Act (ADA) and obligations under state law, Carolina Casualty and Denver Fox, the president of RMJOB, sued Pinnacol. See id. at 925. The district court granted summary judgment to Pinnacol. See id. On appeal Pinnacol argued that it should prevail on the merits and that both plaintiffs lacked
In short, in Carolina Casualty we had jurisdiction to resolve the merits of the claim of one plaintiff, and our decision on that claim foreordained that the claim of the other plaintiff would also fail. It was therefore unnecessary for us to determine whether we had jurisdiction over the second claim.
In the present case we are not addressing claims by two different plaintiffs against the same defendant, but rather claims by the same plaintiffs against two different (sets of) dеfendants. The principle, however, is identical. We have resolved that the individual Defendants in their personal capacities did not violate any constitutional right of the Starkeys. But under the Starkeys’ complaint, BCDSS and the individual Defendants in their official capacities could be held liable only if there was an underlying constitutional violation—that is, only if at least one of the Defendants in a personal capacity had violated at least one of the Starkeys’ constitutional rights. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006) (“[M]unicipality may not be held liable where there was no underlying constitutional violation by any of its officers.“). Therefore, the Starkeys are
V. CONCLUSION
We AFFIRM the judgment of the district court.