Nathaniel Brent v. Wayne County Department of Hum, et al

Filing

OPINION filed : the judgment of the district court is AFFIRMED with regard to Brett's state-law claims of IIED and gross negligence : the judgment with regard to the remainder of Brett's claim is REVERSED and the case is REMANDED for further proceedings, decision not for publication. R. Guy Cole , Jr., Circuit Judge; Ronald Lee Gilman, Authoring Circuit Judge and Bernice Bouie Donald, Circuit Judge.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0108n.06
No. 12-2669
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
NATHANIEL BRENT,
Plaintiff-Appellee,
v.
MIA WENK, SHEVONNE TRICE,
HEATHER DECORMIER-MCFARLAND,
MONICA SAMPSON, CHARLOTTE
MCGEHEE, and JOYCE LAMAR,
Defendants-Appellants.

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Feb 06, 2014
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN

OPINION

Before: COLE, GILMAN, and DONALD, Circuit Judges
RONALD LEE GILMAN, Circuit Judge. Mia Wenk, Shevonne Trice, Heather
Decormier-McFarland, Monica Sampson, Charlotte McGehee, and Joyce Lamar appeal the
district court’s decision denying them absolute and qualified immunity under federal law and
governmental immunity under Michigan law. Nathaniel Brent claims that these defendants, all
of whom are social workers, violated his constitutional rights when they searched his home
without a warrant and temporarily removed his minor children from his custody. For the reasons
set forth below, we AFFIRM IN PART AND REVERSE IN PART the decision of the district
court and REMAND the case for further proceedings consistent with this opinion.

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I. BACKGROUND
A. Factual background
The incident that sparked this lawsuit took place on January 17, 2010 when Brent’s then
15-year-old son, RAB, arrived at a Detroit police station barefoot and wearing only a pair of
shorts. Detroit Police Officer Donald Coleman reported the incident to the Wayne County
Department of Human Services (DHS). At the same time RAB’s mother, Sherrie Brent, who is
not a party to this action, contacted DHS about filing incorrigibility charges against RAB. These
events prompted Wenk, a DHS employee, to visit Brent’s home on January 20 and 21, 2010.
Brent claims that Officer Coleman failed to file the required paperwork to initiate the
DHS investigation, and that Coleman subsequently withdrew his report. According to Brent,
Coleman determined that the incident resulted from “poor decision making on the part of the
youth.” The defendants neither acknowledge nor dispute this assertion, nor does Brent cite the
record to support his claim.
In any event, Brent allowed Wenk to enter his living room during the January 20, 2010
visit and permitted her to speak with RAB. He claims that the questioning became leading and
suggestive, with Wenk eventually demanding to speak to RAB alone over Brent’s objection.
Wenk then proceeded to interview his other four children without his knowledge or consent.
Finally, she demanded that RAB show her the basement of the house where he slept, again
without Brent’s consent. Brent alleges that this visit allayed Wenk’s concerns and that she
decided with her supervisor, Sampson, to investigate the family for alternative bases for child
neglect—not those related to the original referral from Officer Coleman.

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Wenk contacted Brent the next day, January 21, 2010, to arrange for another visit. Brent
did not agree to the visit, but Wenk arrived at his home anyway, along with Sampson and
Decormier-McFarland. While Wenk spoke with Brent and his wife, Sampson and DecormierMcFarland walked around the entirety of the house, taking photographs without Brent’s consent.
Brent makes additional allegations regarding the period from January 21, 2010 to February 18,
2010, but because the district court did not rely on these facts in deciding to deny qualified
immunity, we need not address them here.
On February 18, 2010, Wenk filed a neglect petition with the Family Division of the
Third Judicial Circuit Court for Wayne County (the Family Court) seeking removal of Brent’s
five minor children, three of whom are boys and two of whom are girls. The Family Court
ordered them removed that same day. Detroit police officers took the children from Brent’s
custody and placed them in emergency shelters that very evening. The Family Court appointed
guardians ad litem the following day. On March 3, 2010, the children were placed with foster
families. But on March 26, 2010, the children were removed from those placements and
returned to the emergency shelters. The male children were eventually placed in separate fostercare centers.
A jury trial regarding the underlying allegations took place in the Family Court on May
11 to 13, 2010. On June 2, 2010, the Family Court ordered the children released to their parents
with a directive that DHS continue to supervise the children. The Family Court terminated this
supervision on September 10, 2010, finding that the Brents had improved the conditions in their
home and the children’s needs were being met.
B. Procedural background

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Brent filed this lawsuit in February 2010, claiming a multitude of constitutional and statelaw violations on the part of the various actors involved with this case. As relevant here, Brent
alleged that Wenk, Trice, Decormier-McFarland, and Sampson violated his constitutional rights
under the Fourth and Fourteenth Amendments during the January 20 and 21, 2010 visits to his
home when they exceeded the scope of Brent’s consent to search, misrepresented the purpose of
their visit, and photographed the home’s interior.

He also contends that Wenk, Trice,

Decormier-McFarland, Sampson, McGehee, and Lamar denied him various parental rights to
make decisions regarding his children in violation of the Fourteenth Amendment’s Due Process
Clause. Brent further alleges that many of these actions were extreme and outrageous conduct,
constituting intentional infliction of emotional distress (IIED) and gross negligence under
Michigan law. Finally, he claims that defendant Trice violated MCL § 722.633(1) by failing to
report suspected child neglect of RAB while RAB was in the state’s custody.
Following discovery, the defendants moved for summary judgment. The district court
rejected their claims of qualified and absolute immunity regarding the federal charges and denied
state-law immunity on the IIED, gross negligence, and MCL § 722.633(1) claims. This appeal
followed.
II. LEGAL STANDARD—FEDERAL IMMUNITY
A. Standard of review
“Whether a defendant is entitled to absolute or qualified immunity from liability under 42
U.S.C. § 1983 is a legal question that this Court reviews de novo.” Moldowan v. City of Warren,
578 F.3d 351, 374 (6th Cir. 2009). The denial of qualified immunity premised on a factual
dispute is not immediately appealable. See Johnson v. Jones, 515 U.S. 304, 313 (1995). “To the
extent that a district court’s denial of a claim of qualified immunity turns on an issue of law,

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however, the Supreme Court has held that the denial constitutes a final, appealable decision
within the meaning of 28 U.S.C. § 1291.” Sheets v. Mullins, 287 F.3d 581, 585 (6th Cir. 2002).

B. Absolute immunity
“[S]ocial workers are absolutely immune only when they are acting in their capacity as
legal advocates—initiating court actions or testifying under oath—not when they are performing
administrative, investigative, or other functions.” Holloway v. Brush, 220 F.3d 767, 775 (6th
Cir. 2000) (en banc) (emphasis in original). “The official seeking absolute immunity bears the
burden of showing that immunity is justified in light of the function she was performing.” Id. at
774. “When applied, [t]he defense of absolute immunity provides a shield from liability for acts
performed erroneously, even if alleged to have been done maliciously or corruptly.” Kovacic v.
Cuyahoga Cnty. Dep’t of Children & Family Servs., 724 F.3d 687, 694 (6th Cir. 2013)
(alteration in original) (internal quotation marks omitted).
C. Qualified immunity
As set forth in Andrews v. Hickman County, 700 F.3d 845 (6th Cir. 2012), we review
district court decisions on qualified immunity as follows:
First, we determine whether based upon the applicable law, the facts viewed in
the light most favorable to the plaintiff show that a constitutional violation has
occurred. Second, we consider whether the violation involved a clearly
established constitutional right of which a reasonable person would have known.
Third, we determine whether the plaintiff has offered sufficient evidence to
indicate that what the official allegedly did was objectively unreasonable in light
of the clearly established constitutional rights.
Id. at 853 (internal quotation marks omitted). We may review the denial of qualified immunity
only “to the extent that the appeal involves the abstract or pure legal issue of whether the facts

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alleged by the plaintiff constitute a violation of clearly established law.” Dorsey v. Barber, 517
F.3d 389, 394 (6th Cir. 2008) (internal quotation marks omitted).
“The inquiry into whether a right was clearly established must be conducted in light of
the specific context of the case. [It must be] sufficiently clear that a reasonable official would
understand that what he is doing violates that right . . . [and] in the light of preexisting law the
unlawfulness must be apparent.” Andrews, 700 F.3d at 853 (second alteration in original)
(internal quotation marks omitted). “The plaintiff has the burden of establishing that the law was
clearly established at the time of the challenged conduct.” Id.
III. FOURTH AMENDMENT CLAIMS
A. Introduction
The district court denied qualified immunity on four of Brent’s Fourth Amendment
claims. Specifically, the court found that Brent raised triable issues as to whether:
(1) Mia Wenk went beyond the scope of the limited consent that had been given
to her to enter the living room area of [Brent’s] home and question RAB to ensure
that he had no medical problems arising from his exposure to the cold weather
(January 20th visit); (2) Wenk demanded to be permitted to question RAB outside
the presence of either parent (January 20th visit); (3) Wenk, Heather DecormierMcFarland, and Monica Sampson gained entry to his home by misrepresenting
the purpose and intent of their visit (January 21st visit); (4) while Wenk kept the
Brent parents preoccupied, and despite Brent’s expressed objections, Sampson
and Decormier-McFarland went throughout the home and photographed the
interior of his home (January 21st visit).
In essence, Brent argues that Wenk, Decormier-McFarland, and Sampson violated his Fourth
Amendment rights by exceeding the limited consent to search that he had given them.
The social workers do not appear to contest that Brent has raised a triable issue as to
whether he suffered a violation of his Fourth Amendment rights. They instead contend that this
court had not clearly established as of January 2010 that Brent had a right to be free from
unreasonable searches and seizures performed by social workers. In support, they cite Andrews,
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700 F.3d at 859, which held that the Fourth Amendment’s prohibition on unreasonable searches
does apply to social workers, but that such law was not clearly established as of 2008 when the
relevant events in Andrews took place.

B. Legal standard
The Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” “[P]hysical
entry of the home is the chief evil against which the wording of the Fourth Amendment is
directed.” United States v. United States Dist. Ct., 407 U.S. 297, 313 (1972). “[A] warrantless
search or seizure inside a home by a law enforcement officer violates the Fourth Amendment
unless an exception to the warrant requirement applies.” Andrews, 700 F.3d at 854.
C. Analysis
Wenk, Sampson, and Decormier-McFarland raise a close question as to whether the
Fourth Amendment applied to their conduct in January 2010. As the social workers argue,
Andrews and Jordan v. Murphy, 145 F. App’x 513 (6th Cir. 2005), on which Andrews relied,
suggest that until Andrews, this court had not yet clearly established that the Fourth Amendment
applies to the activities of social workers. On the other hand, since Andrews, this court has held
that the clearly established law in this circuit determined as early as 2002 that the Fourth
Amendment applies to the seizure of children by social workers. See Kovacic v. Cuyahoga Cnty.
Dep’t of Children & Family Servs., 724 F.3d 687, 699 (6th Cir. 2013) (holding that this circuit
had clearly established in 2002 that the warrantless seizure of children by social workers violates
the Fourth Amendment). And in doing so, this court reasoned that, presumptively, the Fourth
Amendment applies to all searches and seizures performed under color of law. See id. We must

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now decide whether Andrews or Kovacic governs the search of a home in 2010. Because Brent’s
Fourth Amendment allegations relate to the search of his home, and not to the seizure of his
children, we hold that Andrews controls.
Andrews concerned the search of the plaintiff’s home following a complaint to a state
agency responsible for the welfare of children. The plaintiff in Andrews claimed that police
officers arrived at his home with employees of the State Department of Children’s Services in
tow. Andrews testified that when he walked into his home, he “was immediately followed into
[his] house by an officer, closely followed by the three [Department of Children’s Services]
employees, and then another officer, creating a ‘whoosh of presence’ and ‘flooding’ into the
home.” Andrews, 700 F.3d at 850. He also claimed that he was coerced into consenting to the
interview of his children outside his presence and acquiescing in a walk-through of his home,
both performed by the Children’s Services employees. Id. at 851.
Andrews sued, alleging, among other things, that the state employees violated his Fourth
Amendment rights by entering his home without a warrant or his consent, interviewing his
children without his consent, and walking through his home without his consent. The social
workers claimed absolute and qualified immunity, but the district court held that they were not
entitled to immunity. On appeal, this court reversed. The court first explained that,
[i]f their implication is that social workers are not state actors for the purposes of
the Fourth Amendment, the Supreme Court has established that the Fourth
Amendment’s restrictions on unreasonable searches and seizures extend well
beyond the police:
[T]he Court has long spoken of the Fourth Amendment’s strictures
as restraints imposed upon “governmental action”—that is, “upon
the activities of sovereign authority.” Accordingly, we have held
the Fourth Amendment applicable to the activities of civil as well
as criminal authorities. . . . Because the individual’s interest in
privacy and personal security “suffers whether the government’s
motivation is to investigate violations of criminal laws or breaches
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of other statutory or regulatory standards,” it would be anomalous
to say that the individual and his private property are fully
protected by the Fourth Amendment only when the individual is
suspected of criminal behavior.
New Jersey v. T.L.O., 469 U.S. 325, 335 (1985) (internal citations omitted). Thus,
the presumption appears to be that any state officer should operate with the
default understanding that the Fourth Amendment applies to her actions, unless a
specific exception to the requirements of the Fourth Amendment has been found
to apply.
Id. at 858–59.

The Andrews court concluded, based on this presumption, that the Fourth

Amendment applied to the Children’s Services employees. Id. at 859.
Nonetheless, the Andrews court noted that this circuit had no clearly established law
indicating that social workers were subject to the restrictions of the Fourth Amendment in the
performance of their duties; that is, it determined that, as of 2008, this court had not yet clearly
established that social-worker activities are subject to the Fourth Amendment.

The court

explained that this court’s unpublished decision in Jordan, 145 F. App’x 513, “is the only case
from our court that bears on the issue of whether the reasonable social worker, facing the
situation in the instant case, would have known that her conduct violated clearly established law.
Yet, Jordan fails to give clear guidance to the social worker faced with the decision to enter the
Andrews home.” Andrews, 700 F.3d at 861. Thus, although the court concluded that “social
workers in entering a home are governed by the Fourth Amendment, and . . . that no social
worker exception applies in such situations,” it said that clearly established law did not compel
such a conclusion in 2008 when the search occurred. Id. at 863.
In Kovacic v. Cuyahoga County Department of Children and Family Services, 724 F.3d
687, 699 (6th Cir. 2013), this court also considered whether a warrantless search and seizure by
child welfare officials violated the Fourth Amendment. As in Andrews, Kovacic relied on the
premise that state actors are presumptively subject to the Fourth Amendment. Id. at 698 (citing
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Camara v. Municipal Ct., 387 U.S. 523, 530–31 (1967)). But contrary to Andrews, Kovacic
reached the following conclusion:
In sum, there is an absence of pre–2002 case law specifically mentioning social
workers, which under our binding precedent is insufficient to upset the
presumption that all government searches and seizures are subject to the strictures
of the Fourth Amendment. We thus agree with the district court that at the time
of the social workers’ actions, it was clearly established that Fourth Amendment
warrant requirements, including the exigent-circumstances exception, apply to the
removal of children from their homes by social workers.
Kovacic, 724 F.3d at 699. The Kovacic court drew this conclusion after considering Andrews.
Collectively, Andrews and Kovacic indicate that before this court decided Andrews in
2012, a social worker entering a home without a warrant did not violate clearly established law,
but a social worker removing a child without a warrant did. Brent does not allege that his
children were removed in violation of the Fourth Amendment; he instead challenges the
warrantless entry into his home. Andrews therefore controls this case, meaning that the social
workers are entitled to qualified immunity on Brent’s Fourth Amendment claim.
Brent does not challenge this interpretation of Andrews, but instead argues that Andrews
was wrongly decided. He relies on decisions of district courts within this circuit and the
decisions of other circuits to establish that there has never been a social-worker exemption to the
Fourth Amendment.
Brent’s argument is without merit. First, Andrews belies Brent’s argument by holding
that there was no clearly established law regarding a social worker exemption in 2008, when the
events in Andrews took place. And Brent cites no case that would indicate a change in this
circuit’s law between 2008 and 2010, when the events of this case took place. Second, and
relatedly, “[w]hen determining whether a constitutional right is clearly established, we look first
to decisions of the Supreme Court, then to our own decisions and those of other courts within the

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circuit, and then to decisions of other Courts of Appeal.” Andrews, 700 F.3d at 853. Brent’s
reliance on district court cases within this circuit and on the law of other circuits is therefore
unavailing. Because our circuit in Andrews held that there was no clearly established law
regarding the Fourth Amendment’s applicability to social workers in 2008, that determination
controls this case. We therefore reverse the judgment of the district court and grant the social
workers qualified immunity on Brent’s Fourth Amendment claims.
IV. FOURTEENTH AMENDMENT CLAIMS
A. Background
The district court also denied qualified immunity to the defendants on several of Brent’s
Fourteenth Amendment claims.

It interpreted Brent’s claims as violations of both his

“procedural due process interest in parenting” and his “substantive fundamental right to raise
[his] child[ren].” Quoting Bartell v. Lohiser, 215 F.3d 550, 557 (6th Cir. 2000). Analyzing both
bases for Brent’s claims, the district court determined that “[t]o the extent that Brent’s claim is
based upon the removal of the children from his home, the State Defendants are correct that they
cannot be held liable for any such deprivation because the family court—not the State
Defendants—bore the ultimate responsibility for this decision.” Nonetheless, the district court
determined that Brent did raise triable issues regarding whether the social workers made
decisions regarding the removed children’s care without consulting him. The court specifically
identified the following five actions:
(1) various examinations and interventions that were conducted without his
knowledge or consent and in the absence of any court order; (2) the refusal of
several Defendants to seek or permit his input in decisions regarding his
children’s medical, educational, residential, and other needs; (3) the failure to
advise him of decisions that had been made with respect to his children;
(4) certain Defendants’ insistence that—notwithstanding their conclusion that the
home conditions were adequate and safe—they would recommend the children’s
return only if he would waive his right to a jury trial and give up all post-return
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decision-making authority with respect to their education, medical care, and
extracurricular activities; and (5) the creation of a document that purported to
appoint the Chinavares as the temporary guardians of the male children without
parental consent or a court order.
(internal citation omitted).
On appeal, the defendants contend that both absolute and qualified immunity shield them
from these claims. They first argue that they are entitled to absolute immunity for all of their
actions leading up to the Family Court’s removal order because the Family Court mandated the
only constitutionally cognizable deprivation that Brent suffered—the removal of his children
from his custody. Second, the defendants contend that Brent retained no protected liberty
interest in the parenting of his children after the Family Court placed them in foster care. They
accordingly argue that their failure to consult Brent regarding his children did not violate his due
process rights under the Fourteenth Amendment.
B. Legal standard
The Fourteenth Amendment’s Due Process Clause guarantees that no “State [shall]
deprive any person of life, liberty, or property, without due process of law.” Supreme Court
precedent holds that “[t]he fundamental liberty interest of natural parents in the care, custody,
and management of their child does not evaporate simply because they have not been model
parents or have lost temporary custody of their child to the State.” Santosky v. Kramer, 455 U.S.
745, 753 (1982).

A state may extinguish parental rights only by proving that “clear and

convincing evidence” so warrants. Id. at 769. Yet beyond a liberty interest in the future custody
of one’s child, the Supreme Court has not delineated the rights of parents temporarily deprived of
the custody of their children. And neither party points us to any precedents from this circuit that
illuminate the meaning of the right to raise one’s child.
We particularly note that
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not every disregard of its regulations by a public agency . . . gives rise to a cause
of action for violation of constitutional rights. Rather, it is only when the
agency’s disregard of its rules results in a procedure which in itself impinges upon
due process rights that a federal court should intervene in the decisional processes
of state institutions.
Bates v. Sponberg, 547 F.2d 325, 329–30 (6th Cir. 1976). Brent must therefore show not only
that the state violated its own procedures, but that such violation resulted in a procedure that
violated constitutional due process.

That is, he must show that the resulting procedure

contravenes clearly established federal law.
C. Analysis
The social workers first argue that the district court misinterpreted this court’s decision in
Pittman v. Cuyahoga County Department of Children and Family Services, 640 F.3d 716, 722
(6th Cir. 2011), and that properly understood, the case indicates that absolute immunity shields
them from all of Brent’s claims. In Pittman, the plaintiff claimed that an agent of the county’s
child welfare agency
unconstitutionally deprived him of his fundamental liberty interest in maintaining
a parental relationship with [his child] by regularly, repeatedly and on an ongoing
basis misrepresenting his status, his whereabouts and his attitude towards
parenting [his child] to the Juvenile Court; by misrepresenting his status [and] his
attitude toward parenting when participating in agency decisions regarding the
placement and custody of [his child]; and by completely cut[ting] him out of the
[placement and custody] process.
Id. at 723–24 (third, fifth, and sixth alterations in original) (internal quotation marks omitted).
Pittman also claimed that the defendants misled him to believe that he would be next in line for
custody of his child if they determined the child’s mother to be an unfit parent. Id. at 724.
The Pittman court first held that absolute social-worker immunity protects against
liability for the filing of a complaint and affidavit in support of removal of a child.

Id.

Specifically, the court noted that “[w]hether [the social worker] made intentional

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misrepresentations to the juvenile court in the complaint and affidavits does not affect the
conclusion that she is entitled to absolute immunity.” Id. at 725. The Pittman court drew on
Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000) (en banc), which analogized social-worker
immunity in such contexts to prosecutorial immunity.
In the present case, the district court properly applied Pittman. It held that “[t]o the
extent that Brent’s claim is based upon the removal of the children from his home, the State
Defendants are correct that they cannot be held liable for any such deprivation because the
family court—not the State Defendants—bore the ultimate responsibility for this decision.” The
district court found triable issues only with regard to whether the social workers failed to
properly consult with Brent after the children’s removal. Accordingly, Pittman, standing alone,
does not contradict the district court’s analysis.
The social workers nonetheless argue that Brent’s remaining claims should be dismissed
based on absolute immunity under Holloway because they were acting in their capacity as legal
advocates. Alternatively, they contend that the rights that the district court identified were not
clearly established and, therefore, qualified immunity shields them. On a claim of absolute
immunity, “[t]he official seeking absolute immunity bears the burden of showing that immunity
is justified in light of the function she was performing.” Holloway, 220 F.3d at 774. But on a
claim of qualified immunity, “[t]he plaintiff has the burden of establishing that the law was
clearly established at the time of the challenged conduct.” Andrews v. Hickman Cnty., 700 F.3d
845, 853 (6th Cir. 2012). We will now consider each of Brent’s Fourteenth Amendment claims
in turn.
1. Social worker action 1: interrogation of Brent’s children without his
consent

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Brent alleges that Wenk, Sampson, and Decormier-McFarland interrogated his children
in violation of his constitutional rights. In particular, he asserts that Wenk interviewed all of his
children without his consent when she visited his home on January 20, 2010. He also claims that
Sampson and Decormier-McFarland seized RAB by forcing him to show them around Brent’s
residence on January 21, 2010.
Brent cites two cases to suggest that the actions of Wenk, Sampson, and DecormierMcFarland were a violation of his clearly established Fourteenth Amendment rights, but neither
is persuasive. First, he cites Myers v. Potter, 422 F.3d 347 (6th Cir. 2005), which held that
police officers violated Myers’s Fourth Amendment rights when they interrogated Myers, who
was then a child, for three hours beyond the one hour to which his mother had consented.
Brent’s claim differs in two critical respects. First, Brent asserts his claim under the Fourteenth
Amendment, but Myers clearly established the law only under the Fourth Amendment.
The second critical difference between this case and Myers is that Brent asserts the claim
on his own behalf, not on behalf of his children. Myers reaffirmed the unremarkable proposition
that a party interrogated without valid consent suffers a constitutional violation. It provides no
authority to suggest that a father personally suffers a constitutional violation when social workers
interrogate his children without his consent. Accordingly, Myers provides no authority regarding
Brent’s Fourteenth Amendment rights.
The other case that Brent cites, the Seventh Circuit decision in Doe v. Heck, 327 F.3d 492
(7th Cir. 2003), is also distinguishable. Doe held that
because the defendants had no evidence giving rise to a reasonable suspicion that
the plaintiff parents were abusing their children, or that they were complicit in any
such abuse, the defendants violated the plaintiffs’ right to familial relations by
conducting a custodial interview of John Doe Jr. without notifying or obtaining
the consent of his parents and by targeting the plaintiff parents as child abusers.

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Id. at 524.
But Doe alone does not clearly establish the law in the Sixth Circuit. As this court clearly
explained in Russo v. City of Cincinnati, 953 F.2d 1036, 1042–43 (6th Cir. 1992):
[I]n the ordinary instance, to find a clearly established constitutional right, a
district court must find binding precedent by the Supreme Court, its court of
appeals or itself. In an extraordinary case, it may be possible for the decisions of
other courts to clearly establish a principle of law. For the decisions of other
courts to provide such “clearly established law,” these decisions must both point
unmistakably to the unconstitutionality of the conduct complained of and be so
clearly foreshadowed by applicable direct authority as to leave no doubt in the
mind of a reasonable officer that his conduct, if challenged on constitutional
grounds, would be found wanting.
This reasoning severely limits Doe’s import as an out-of-circuit case. Moreover, the
holding in Doe does not point “unmistakably to the unconstitutionality of the conduct
complained of here,” see id. at 1043, because RAB’s under-dressed mid-January arrival at a
police station in fact gave rise to a reasonable suspicion of child abuse. Finally, Doe actually
granted qualified immunity to the caseworkers on the basis that they would have believed that
state law gave them authority to conduct such an interview. Brent has therefore cited no
authority supporting the conclusion that the interrogation of his children violated a constitutional
right.
We also note that Kovacic v. Cuyahoga County Department of Children and Family
Services, 724 F.3d 687 (2013), is not to the contrary. Kovacic determined that this circuit had
“clearly established [as of 2002] that Fourth Amendment warrant requirements, including the
exigent-circumstances exception, apply to the removal of children from their homes by social
workers.” Id. at 699. The case held that a parent may sue social workers for such constitutional
violations. But Kovacic did not address whether a temporary seizure within the home (i.e., to
interrogate the children) violated the Fourth Amendment. Neither do the parties’ submissions to

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this court. Absent any further discussion on this point, Brent has failed to carry his burden of
showing that the actions of Wenk, Sampson, and Decormier-McFarland violated clearly
established law. Qualified immunity is therefore appropriate on these claims.
2. Social worker actions 2 and 3: failure to seek Brent’s input in decisions
regarding the children and failure to advise Brent of the decisions
Brent fails to carry his burden of showing that any of these alleged actions violated
clearly established law. His principal contention is that Santosky guaranteed him the right to be
consulted regarding his children’s care while they were not in his custody. But Santosky’s
holding is considerably more limited. Santosky considered the interest parents retain in the
permanent custody of their children when the state temporarily removes the children from their
parents’ care. See Santosky v. Kramer, 455 U.S. 745, 753 (1982). It did not consider the
parents’ right to participate in other decisions concerning the children’s welfare while they are
temporarily in the state’s custody. Accordingly, Brent has not identified any clearly established
law that the defendants allegedly violated.
Brent next argues that MCL §§ 712A.13a(10)(c) and 722.124a gave him certain rights,
and that the state’s failure to honor its state-law obligations itself violates due process. Michigan
Compiled Law § 712A.13a(10) provides that “[i]f the court orders placement of the juvenile
outside the juvenile’s home, the court shall inform the parties . . . [t]hat participation in an initial
services plan is voluntary without a court order.” And MCL § 722.124a gives social workers the
right to consent to routine medical treatment for children in their care. Brent cites three cases in
support of his claim that the defendants’ purported violations of MCL §§ 712A.13a(10) and
722.124a constitute a federal due process violation: Wolff v. McDonnell, 418 U.S. 539 (1974);
Goss v. Lopez, 419 U.S. 565 (1975); and Perry v. Sniderman, 408 U.S. 593 (1972).

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We find none of these cases on point. In Wolff, the Supreme Court confronted “important
questions concerning the administration of a state prison,” namely whether “disciplinary
proceedings did not comply with the Due Process Clause.” 418 U.S. at 542–43. The case before
us, in contrast, concerns child-neglect proceedings, and Brent does not challenge the adequacy of
the proceedings, but only the social workers’ alleged failure to comply with state law.
Goss is similarly not on point. That case concerned a class of high-school students’
suspensions from school. The Supreme Court held that the Due process Clause “requires, in
connection with a suspension of 10 days or less, that the student be given oral or written notice
of the charges against him and, if he denies them, an explanation of the evidence the authorities
have and an opportunity to present his side of the story.” 419 U.S. at 581. Brent is not asserting
that his children were suspended from school, so Goss is of no relevance to the present
circumstances.
Finally, Brent cites Perry. The Supreme Court in Perry held that the government cannot
deny a governmental benefit to a recipient because of the recipient’s exercise of a constitutional
right.

See 408 U.S. at 597–98.

Although Perry might bear on Brent’s retaliation claim,

discussed in the next subsection, it has no relevance to the provisions at issue in this subsection.
All three cases cited by Brent are therefore distinguishable. On the other hand, this
court’s recent decision in Jasinski v. Tyler, 729 F.3d 531 (6th Cir. 2013), although cited by
neither side, is directly on point. The key holding in Jasinski, a case involving a different
provision of Michigan’s child-protection laws, is as follows:
To establish a procedural due process claim, a plaintiff must show “(1) he had a
life, liberty, or property interest protected by the Due Process Clause; (2) he was
deprived of this interest; and (3) the state did not afford him adequate procedural
rights prior to depriving him of the . . . interest.” Women’s Med. Prof’l Corp. v.
Baird, 438 F.3d 595, 611 (6th Cir. 2006). A liberty interest may be created by
state law when a state places “substantive limitations on official discretion.” Tony
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L. and Joey L. v. Childers, 71 F.3d 1182, 1185 (6th Cir. 1995) (quoting Olim v.
Wakinekona, 461 U.S. 238, 249 (1983)). A state may create such limitations by
“establishing ‘substantive predicates’ to govern official decision-making . . . and
further, by mandating the outcome to be reached upon a finding that the relevant
criteria have been met.” Id. (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S.
454, 462 (1989)). The state statute “must use ‘explicitly mandatory language’
requiring a particular outcome if the articulated substantive predicates are
present.” Id. (citing Thompson, 490 U.S. at 463).
Id. at 541. Michigan Compiled Laws § 712a.13a(10)(c) appears to qualify as such a substantive
limitation on official discretion because the statute specifies that “[i]f the court orders placement
of the juvenile outside the juvenile’s home, the court shall inform the parties . . . [t]hat
participation in an initial services plan is voluntary without a court order.” (emphasis added).
But Brent does not rely on Jasinski, and we are therefore loathe to address the
constitutional dimensions of MCL § 712a.13a(10)(c) here. This is particularly so because we
have discretion to determine “which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009). In the present case, we have concluded that Brent has not
carried his burden of showing that the law applicable to his case was clearly established.
Jasinski supports this reasoning because Jasinksi itself held that “we cannot say that a reasonable
[Child Protective Services] official would understand that the failure to file a petition under
§ 722.638 would constitute a denial of procedural due process. No decision has yet found a
procedural due process right in a similar context.” Jasinksi, 729 F.3d at 544. Likewise, the
parties here have pointed us to no case suggesting a constitutional dimension to MCL
§ 712a.13a(10)(c). The social workers are therefore entitled to qualified immunity on these
procedural due process claims.
3. Social worker action 4: alleged insistence that Brent waive his right to a jury
trial in order to obtain the social workers’ approval of the children’s return
to his custody
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The district court also denied qualified immunity on Brent’s claim that certain defendants
insisted that—notwithstanding their conclusion that the home conditions were adequate and
safe—they would recommend the children’s return only if he would waive his right to a jury trial
and give up all post-return decision-making authority with respect to their education, medical
care, and extracurricular activities. On appeal, the social workers argue that this conduct was
intimately connected to their role as advocates and, in any event, only the Family Court could
have ordered the children’s return. We agree.
Under this court’s decision in Pittman v. Cuyahoga County Department of Children and
Family Services, 640 F.3d 716, 725 (6th Cir. 2011), the removal of the children from parental
custody was one entrusted to the Family Court. Accordingly, the Family Court affected the
deprivation, not the social workers, whatever their conduct in so advocating. The decision to
return the children, and the advocacy associated therewith, is entitled to the same immunity.
Indeed this court has so held. Considering Tennessee’s child welfare statute, this court explained
that
Tennessee law entrusts the decision whether to return a neglected child to the
home from which he was removed to the Juvenile Court. The Department [of
Children’s Services] acts in an advisory role to the Juvenile Court in
recommending that the child is ready to return home. In performing that role,
social workers in the Department act in much the same fashion as probation
officers who make sentencing recommendations to criminal courts for which they
are entitled to absolute immunity. . . . Social workers involved in the
investigation or recommendation are, therefore, entitled to absolute immunity
with respect to claims arising from such recommendations and investigations.
Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 422–23 (6th Cir. 2001) (internal citations
omitted). The same logic applies here. Advocacy and decisions concerning the return of
removed children are entitled to the same immunity as advocacy and decisions concerning their
initial removal.
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Moreover, Perry v. Sniderman, 408 U.S. 593 (1972), offers no help to Brent. A claim for
retaliation under Perry must allege that the government denied the plaintiff a benefit because the
plaintiff exercised a constitutional right. See 408 U.S. 597 (“[The government] may not deny a
benefit to a person on a basis that infringes his constitutionally protected interests . . . .”). Here,
Brent appears to claim that he had the right to have the social workers recommend the return of
his children (the purported benefit), and that they denied him this benefit because he chose to
exercise his right to a jury trial in the Family Court (the purported constitutional right).
Brent is wrong twice over. First, a recommendation from the social workers is not a
benefit within the meaning of Perry but is, as we have just explained, an action committed to the
absolute discretion of the social workers. Second, although Brent may have been entitled to a
jury trial in the Family Court under Michigan law, Brent provides no authority holding that the
Fourteenth Amendment requires such a procedure, so he cannot claim that he exercised a
constitutional right at all. We therefore find Perry inapposite to the present case.
In sum, the defendants are entitled to absolute immunity on this claim. We therefore
reverse the district court’s judgment to the contrary.
4. Social worker action 5: creation of a document that purported to appoint the
Chinavares family as the temporary guardians of the male children
Finally, the district court determined that Brent raised triable issues regarding the creation
of a document that purported to appoint the Chinavares family as the temporary guardians of the
male children without parental consent or a court order.

The document, issued on the

Department of Human Services’ stationery states that “Noel and Michael Chinavare does [sic]
have temporary guardianship of [AB, RB, and JB].”
As earlier discussed, the only case that Brent cites in support of his parental rights,
Santosky v. Kramer, 455 U.S. 745 (1982), held that a state may “may sever completely and
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irrevocably the rights of parents” only by proving that “clear and convincing evidence” so
warrants. Id. at 747–48 (emphasis added). Brent cites no authority supporting the proposition
that the document declaring that the Chinavares had temporary guardianship of Brent’s three
boys violated his right to due process. Indeed this claim also fails under qualified immunity’s
first prong—that the defendants violated Brent’s constitutional rights at all—because Brent has
not alleged, much less proffered evidence, that the document actually deprived him of the
custody of his children. Absent some authority suggesting that clearly established law prohibited
the social workers’ actions, Brent has failed to carry his burden of establishing that a reasonable
juror could find to the contrary. Qualified immunity is therefore appropriate on this claim.
5. Alleged discovery violation
The social workers also appeal the district court’s decision regarding “[i]mmunity as to
the alleged failure to produce documents.” In its opinion, the district court considered this claim
“as falling within [Brent’s] parental rights claim.” Brent argues that MCL § 722.627(2)(f) gives
him the right to access DHS records regarding his children.
The language of the statute reads as follows:
Unless made public as specified information released under section 7d, a written
report, document, or photograph filed with the department as provided in this act
is a confidential record available only to 1 or more of the following . . .
(f) A person named in the report or record as a perpetrator or
alleged perpetrator of the child abuse or neglect or a victim who is
an adult at the time of the request, if the identity of the reporting
person is protected as provided in section 5.
As we explained with regard to MCL § 712a.13a(10)(c), MCL § 722.627(2)(f) appears to
“place[] substantive limitations on official discretion” that would render any violation of MCL
§ 722.627(2)(f) an additional violation of Brent’s procedural due process rights. See Jasinski v.
Tyler, 729 F.3d 531, 541 (6th Cir. 2013) (internal quotation marks omitted). Brent, however,
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does not so argue. Nor does he cite any authority suggesting that “a reasonable [Child Protective
Services] official would understand that the failure to [comply with MCL § 722.627(2)(f)] would
constitute a denial of procedural due process. No decision has yet found a procedural due
process right in a similar context.” See Jasinksi, 729 F.3d at 544. The burden on this issue is
Brent’s—a burden to show the violation of clearly established federal law. See Andrews v.
Hickman Cnty., 700 F.3d 845, 853 (6th Cir. 2012) (“The plaintiff has the burden of establishing
that the law was clearly established at the time of the challenged conduct.”). This is a burden
that Brent has failed to meet.
We also note some difficulty in discerning the factual basis for Brent’s claim. Brent
appears to have requested the entire case file on his children. But Brent does not clarify in his
briefing which of these documents he was allegedly denied. As the defendants point out, Brent’s
complaint acknowledges that the defendants did deliver some documents to Brent’s attorney
“during the hearing on March 30, 2010.” The record does not reveal whether these March 30,
2010 documents are the entire basis for this claim or only some portion of it. And Brent has not
established that this timing violated his due process rights. He has, therefore, failed to carry his
burden against the defendants’ assertions of qualified immunity with regard to the documents in
question. For these reasons, we grant qualified immunity to the defendants on this claim.
V. STATE-LAW CLAIMS
A. Background
The district court also denied governmental immunity on several of Brent’s state-law
claims. Specifically, the district court denied state-law immunity on Brent’s IIED and grossnegligence claims against Wenk, Sampson, Trice, McGehee, and Lamar, as well as his claim
under MCL § 722.633(1) against Trice. We will consider each claim in turn.

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B. Legal standard
The Michigan Supreme Court has
[p]rovide[d] these steps to follow when a defendant raises the affirmative defense
of individual governmental immunity. The court must do the following:
(1) Determine whether the individual is a judge, a legislator, or the
highest-ranking appointed executive official at any level of
government who is entitled to absolute immunity under MCL
691.1407(5).
(2) If the individual is a lower-ranking governmental employee or
official, determine whether the plaintiff pleaded an intentional or a
negligent tort.
(3) If the plaintiff pleaded a negligent tort, proceed under MCL
691.1407(2) and determine if the individual caused an injury or
damage while acting in the course of employment or service or on
behalf of his governmental employer and whether:
(a) the individual was acting or reasonably believed
that he was acting within the scope of his authority,
(b) the governmental agency was engaged in the
exercise or discharge of a governmental function,
and
(c) the individual’s conduct amounted to gross
negligence that was the proximate cause of the
injury or damage.
(4) If the plaintiff pleaded an intentional tort, determine whether
the defendant established that he is entitled to individual
governmental immunity under the Ross test by showing the
following:
(a) The acts were undertaken during the course of
employment and the employee was acting, or
reasonably believed that he was acting, within the
scope of his authority,
(b) the acts were undertaken in good faith, or were
not undertaken with malice, and

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(c) the acts were discretionary, as opposed to
ministerial.

Odom v. Wayne Cnty., 760 N.W.2d 217, 228 (Mich. 2008). Contrary to who bears the burden of
proof in the federal context, “the burden . . . fall[s] on the governmental employee to raise and
prove his entitlement to immunity as an affirmative defense.” Id. at 227–28.
C. Analysis
1. IIED claims
Brent alleges that the social workers intentionally inflicted emotional distress upon him in
myriad ways. The district court dismissed several of Brent’s IIED claims, but identified many
more as remaining for trial. As the district court explained,
[t]he essence of these allegations is that the State Defendants, despite having no
actual belief that the Brent children were exposed to any harm in the home,
nevertheless undertook a campaign to discover—or even fabricate—damaging
evidence so as to get the children removed, and then, having accomplished that
purpose, used the return of the children as collateral to coerce Brent to relinquish
his parental authority. For example, Brent alleges that (1) Wenk, with Sampson’s
approval, continued her investigation of the Brent family, notwithstanding their
conclusion that the initial complaint was unsubstantiated, (2) Wenk and Sampson
conducted this investigation having already predetermined the outcome and
falsified various reports to support this outcome; (3) Wenk, Trice, McGehee,
Lamar, and Sampson refused to explain what services were being offered to the
Brent family or what harm, if any, the children faced in the absence of those
services; (4) Wenk, Trice, McGehee and Sampson withheld information from
Brent and refused to permit him to have any input regarding what was best for the
family; (5) Wenk abused her authority to force her will upon the parents upon
threat of the children not returning or being removed again after their return;
(6) Wenk, Sampson, and Lamar refused to advise Brent what he needed to do to
facilitate the return of his children; (7) Wenk coerced Brent into turning over all
post-return decision-making authority with respect to the children’s education,
medical care, and extracurricular activities by threatening that the children would
otherwise not be permitted to return; (8) Sampson and Lamar refused to respond
to or investigate Brent’s claims regarding constitutional, statutory, and policy
violations; (9) despite having determined that the home was suitable for the
children’s return, Trice, Lamar, and McGehee held the children hostage to coerce
the Brents to forfeit their right to trial and falsified various documents to justify
not returning the children; (10) Trice refused to provide services to reunify the
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family, notwithstanding the review board’s conclusions that the medical and
educational needs of the children were not being met during their removal and
that they should be returned to the Brent home. Brent also alleges that these
actions were taken with reckless disregard for their effect on him, and caused him
extreme emotional distress.
The social workers argue on appeal that they had no reason to know that any of these
purported actions were unlawful, and that because the Family Court jury determined that Brent
had neglected his children, their investigation cannot have been conducted with malice. They
further contend that if this court finds no federal constitutional violations, then they must have
been acting within the scope of their authority. Brent responds that because Michigan law
requires the state employees to be trained in their legal duties, they cannot plausibly claim that
they were mistaken as to those duties. He also contends that the defendants have offered no
evidence suggesting that they were acting in good faith.
We find Brent’s arguments the more persuasive at this stage of the case. First, the
defendants cite no cases, orders of the Family Court, or Michigan statutes authorizing the ten
actions that the district court identified as remaining for trial. Second, the defendants cite no
authority for the proposition that simply because their actions did not violate the U.S.
Constitution, they could reasonably believe that they were within the scope of their state-law
authority. The defendants also fail to cite any compelling authority to support their claim that
because the Family Court jury determined that Brent had neglected his children, none of their
actions could have been taken with malice. Although they rely on the opinion of the Michigan
Court of Appeals in Latits v. Phillips, 826 N.W.2d 190 (Mich. Ct. App. 2012), for the
proposition that a finding of probable cause defeats a claim for false arrest, they offer no
authority to suggest that Michigan law applies this holding to the actions of social workers in the
context of child-neglect proceedings. Accordingly, we affirm the district court’s decision that, at

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this stage, the defendants have failed to negate the absence of a genuine dispute regarding
Brent’s IIED claims, but we note that they may reassert their state-law immunity defense upon
the completion of discovery.
2. Gross-negligence claims
For similar reasons, we deny the defendants’ claims of governmental immunity on
Brent’s gross-negligence claims. The parties’ briefing and the district court’s opinion leaves
some doubt as to what the factual bases are for these claims. Nonetheless, as with Brent’s IIED
claims, the burden is on the government official asserting immunity to prove that she or he is so
entitled, see Odom v. Wayne Cnty., 760 N.W.2d 217, 227–28 (Mich. 2008), which includes
proving that he or she “was acting or reasonably believed that he was acting within the scope of
his authority.” Id. at 228. As with Brent’s IIED claims, the defendants have failed to cite the
authority that allegedly authorized their actions. Absent such authority, we cannot conclude as a
matter of law that the defendants reasonably believed that Michigan law authorized their actions.
State-law immunity is therefore inappropriate at this stage of the case.
3. Michigan Compiled Laws § 722.633(1) claim
Finally, we consider Brent’s claim that “Trice is liable to Plaintiff under MCL 722.633(1)
for the damages caused from her failure to report the medical neglect of Plaintiff’s son, including
but not limited to medical expenses and emotional distress suffered by Plaintiff as a result of her
failure.” Michigan Compiled Laws § 722.633(1) provides that “[a] person who is required by
this act to report an instance of suspected child abuse or neglect and who fails to do so is civilly
liable for the damages proximately caused by the failure.” The district court considered this
claim and explained that “[a]lthough the State Defendants request a dismissal and/or a summary
judgment with respect to Brent’s entire amended complaint, Trice has not made any argument

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specifically regarding this claim. Therefore, and in the absence of any argument or briefing by
the parties, this claim will proceed.”
On appeal, Trice does not dispute that she failed to specifically address this claim before
the district court, but instead argues that Brent lacks standing to bring this claim himself and that
it should instead have been brought by RAB. She adds that even if RAB had brought this claim,
the neglectful party rather than Trice herself would be the proximate cause of any injuries. Brent
counters that both whether he was injured by the failure to report (and therefore has standing to
bring this claim) as well as the proximate cause of any injury are factual issues that are not
before us on appeal.
On this claim the law favors Trice. “Even if no party to this appeal has raised the issue
of standing, this court can and must address the issue on its own motion.” Jaimes v. Toledo
Metro. Hous. Auth., 758 F.2d 1086, 1092 (6th Cir. 1985). Here, the Michigan Supreme Court
has explained that “the Legislature intended that liability under [MCL § 722.633(1)] be limited
to claims for damages by the identified abused child about whom no report was made.” Murdock
v. Higgins, 559 N.W.2d 639, 646 (Mich. 1997) (emphasis added) (quoting Marcelletti v.
Bathani, 500 N.W.2d 124, 127 (Mich. Ct. App. 1993)). Brent brings this claim in his own name,
not RAB’s. Accordingly, his claim must be dismissed for lack of standing.
VI. CONCLUSION
For all of the reasons set forth above, the judgment of the district court is AFFIRMED
with regard to Brett’s state-law claims of IIED and gross negligence. Its judgment with regard to
the remainder of Brett’s claims is REVERSED because the social workers are entitled to either
absolute or qualified immunity.

We REMAND the case to the district court for further

proceedings consistent with this opinion.

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