N.E.L. et al v. Douglas County, Colorado et al

Filing 135

MEMORANDUM AND ORDER granting 120 Motion to Dismiss Second Amended Complaint. This case is closed. Signed by District Judge Carlos Murguia on 3/7/18. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
N.E.L., M.M.A., and E.M.M.,
Plaintiffs,
v.

Case No. 17-2155-CM

MONICA GILDNER, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiffs N.E.L., M.M.A., and E.M.M. bring this action against defendants Monica Gildner,
Angela Webb, and Tina Abney, for violations of their constitutional rights under 42 U.S.C. § 1983.
Plaintiffs allege defendants—who at the relevant time were social workers with the Kansas Department
of Children and Families (“DCF”)—engaged in a series of acts which led to plaintiffs’ unconstitutional
seizure and detainment. The matter is now before the court on defendants’ Motion to Dismiss Second
Amended Complaint (Doc. 120). For the reasons set forth below, the court grants the motion.
I.

Background
This case has a long, storied past. It comes before this court after it was transferred from the

District of Colorado on March 14, 2017. Plaintiffs originally filed their complaint in the District of
Colorado on December 31, 2015, alleging constitutional violations against defendants as well as two
Colorado state officials and Douglas County, Colorado. A magistrate judge recommended the district
court grant defendants’ motions to dismiss, finding the Colorado defendants were entitled to qualified
immunity and that the court lacked personal jurisdiction over the Kansas defendants. (Doc. 91.) The
district court judge adopted the recommendations and transferred the claims against the Kansas

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defendants to this court. (Doc. 98.) Upon transfer, plaintiffs filed a second amended complaint against
defendants. This amended complaint is the subject of the current motion to dismiss.
Accepting the facts in the second amended complaint as true and viewing them in the light most
favorable to the plaintiffs, the court will summarize the incident that gave rise to the current litigation.
Plaintiffs are three of John Doe and Jane Doe’s ten children. In 2008, John Doe, Jane Doe, and
their ten children lived in Johnson County, Kansas. In the spring of 2008, one of the younger children,
who is not a party to this case, began exhibiting troubling behavior and making comments regarding
improper behavior involving a relative of Jane Doe. The parents made a report to authorities at the
Kansas Department of Social and Rehabilitation Services (now known as DCF) and advised them that
none of their children had seen the relative, or any other members of Jane Doe’s family, since 2006.
Defendant Monica Gildner was assigned by her superiors, defendant Angela Webb and defendant
Tina Abney, to oversee the Doe family’s case. Defendants referred the children to Sunflower House for
interviews regarding the alleged abuse. After a criminal investigation into the allegations against the
relative, law enforcement notified defendant Gildner that no charges would be pursued. Gildner then
closed the Doe family’s file. After the file was closed, however, the reporting child shared additional
information, which the parents reported to DCF. Defendant Gildner referred the child again to the
Sunflower House and reopened the DCF file. Another Doe child then reported abuse by the same relative
and was referred to the Sunflower House. The children were also seeing a counselor.
At some point, defendant Gildner took the position that the abuse allegations against the relative
were fabricated and that Jane Doe was suffering from post-partum depression and mental instability.
She recommended the children continue counseling and that Jane Doe begin counseling. John Doe then
attempted to cease contact with defendant Gildner because of her adversarial position to his wife and
him and her “antagonistic, biased, and baseless positions.” Defendants Webb and Abney refused to

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replace defendant Gildner with a different social worker. At some point after John Doe asked for
defendant Gildner to be taken off the case, Gildner threatened to initiate court action and required that
the entire family participate in Family Preservation Services, which plaintiffs allege was in retaliation
for John Doe’s complaint against her.
In February 2009, defendant Gildner received two more reports regarding the allegations by the
second-reporting Doe child. Shortly thereafter, John Doe filed a formal complaint with DCF regarding
defendant Gildner’s inaction as he was concerned that no medical exams were ordered and no follow up
interviews were being conducted for the child. Defendant Gildner sought a meeting with John Doe to
discuss her concerns about the children being subjected to continued interviews about the allegations
and how the family was going to move forward. Plaintiffs allege defendant Gildner believed the relative
and maternal grandmother’s denials of the alleged abuse over the children’s claims. Defendant Gildner
told John Doe that if he refused to meet with her or participate in recommended services that she may
have to involve the District Attorney’s Office and the court. Plaintiffs allege this meeting and the
imposition of services was in retaliation for their complaint against her.
In March 2009, a third Doe child reported abuse allegations by the same relative to DCF. On
April 20, 2009, the District Attorney’s Office filed Child In Need Of Care (“CINC”) petitions for all ten
of the Doe children in the Johnson County, Kansas District Court. After the petitions were filed, the
court set a non-emergency hearing for May 11, 2009. The children remained in John and Jane Doe’s
custody.
On April 29, 2009, John Doe notified defendant Gildner that he was willing to participate in
Family Preservation Services. On April 30, 2009, defendant Gildner was notified by a relative of the
Doe family that Jane Doe and the children may have left town. Evidence suggested Jane Doe and the
children had gone to Colorado. On May 4, 2009, defendant Gildner went to the Doe home and met John

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Doe, who told her any contact with him needed to be through his attorney. John Doe provided the
address of where the family was in Colorado to the Overland Park, Kansas police.
On May 5, 2009, defendants sought an ex parte order of protective custody. An application for
the order was filed by the District Attorney’s Office and was granted by the Johnson County District
Court. According to the order, the court found:
1. that remaining in the home would be contrary to the welfare of the children,
2. immediate placement was in the best interest of the children based on allegations of physical,
sexual, mental, or emotional abuse in the CINC petitions and,
3. it was reported that the children had left the area, that John Doe had refused to provide any
information about the whereabouts of the children, and that the whereabouts of the children were
presently unknown.
Plaintiffs allege defendants “fraudulently misrepresented to the court the factual basis for
obtaining the Ex Parte Orders and participated in intentionally crafting the language of the Ex Parte
Order to make it appear that an immediate danger to the children existed when Defendants knew in fact
that no such immediate danger existed or . . . they had no facts upon which to form a reasonable suspicion
that Plaintiffs were in immediate danger . . .” (Doc. 114, at 15–16.)
Plaintiffs allege the following facts in the ex parte order that falsely state or insinuate in a manner
intended to alarm and mislead:


That the parents had committed physical, sexual, mental, or emotional abuse when such
statement had no basis in the facts alleged in the CINC petitions or in the facts known to
defendants.



That John and Jane Doe had refused Family Preservation Services when in fact John Doe had
specifically accepted the offer of Family Preservation Services.

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

That an emergency existed which threatened the safety of the children when defendants knew
the Doe children were not in danger based on their actions:
o in initially closing the DCF file
o in disbelieving that the children’s abuse had actually occurred
o in filing CINC petitions only after John Doe had lodged a complaint against defendant
Gildner
o in not seeking immediate custody of the children upon filing the CINC petitions
o in failing and refusing to contact John and Jane Doe’s attorney or the children’s courtappointed guardian ad litem prior to seeing the ex parte order.



That John Doe would not provide any information on the whereabouts of the children when
he actually instructed defendant Gildner to contact his attorney, which she did not.



That the whereabouts and safety of the children were unknown, when defendants knew that
Jane Doe and the children had gone to Colorado and defendants made no attempt to obtain
information from the children’s guardian ad litem.

Plaintiffs also allege defendants intentionally or recklessly failed to disclose the following facts
that, but for their omission, would have resulted in a denial of the ex parte order:


The CINC petitions contained no prohibition against travel by John or Jane Doe or the
children before the CINC hearing.



The request for the ex parte order was in retaliation for John and Jane Doe’s complaint
against defendant Gildner and/or for their retaining counsel to represent them.



Defendants had failed to contact either the children’s guardian ad litem or John and Jane
Doe’s attorney before seeking the ex parte order.



Defendants disbelieved the children’s allegations of abuse by their relative.

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

Defendants had no reasonable suspicion to believe any of the Doe children were in
imminent danger of physical harm or neglect.



The Doe children did not meet the definition of children in need of care under K.S.A. §
38-2202(d).

Plaintiffs allege that the ex parte orders lacked any objectively reasonable basis for believing the
facts alleged in support were sufficient to establish probable cause to temporarily remove the children
from the custody of their parents, and defendants applied for the orders without an objectively reasonable
basis for believing there was probable cause.
On May 6, 2009, Jane Doe was with her ten children visiting family friends in Douglas County,
Colorado. Lesa Adame, a social worker with the state of Colorado, and Carl Garza, an employee of the
Douglas County, Colorado Sheriff’s Office, went together to the home where Jane Doe and the Doe
children were staying. Adame and Garza told the family friend, Dr. G, that they had a court order from
the State of Kansas to seize custody of all ten of the Doe children. Adame and Garza entered the home
with an order from the Colorado Department of Social Services and the Douglas County Department of
Human Services that required Dr. G and his wife Mrs. G to take custody of the Doe children and follow
through with a safety plan. The order also required Jane Doe to not have any contact with the children.
Dr. and Mrs. G were allowed to personally transport the Doe children to Kansas, and upon arrival in
Kansas, the children were transferred to DCF custody. Dr. G requested temporary custody of the
children or, alternatively, for the children to be placed in the custody of their paternal grandparents. DCF
declined this request and instead separated the children and placed them with foster families.
II.

Legal Standards
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which

relief can be granted.” Rule 8(a)(2) states that a pleading must contain “a short and plain statement of

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the claim showing that the pleader is entitled to relief.” To withstand a motion to dismiss under 12(b)(6),
a complaint must contain “enough allegations of fact, taken as true, ‘to state a claim to relief that is
plausible on its face.’” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is plausible when “the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). When the complaint contains well-pleaded factual
allegations, a court should “assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id.
Generally, when reviewing a Rule 12(b)(6) motion, a court only considers the contents of the
complaint. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Exceptions to this rule include:
1) documents that the complaint incorporates by reference, 2) documents referred to in the complaint if
the documents are central to the plaintiffs’ claim and the parties do not dispute the documents’
authenticity, and 3) matters of which a court may take judicial notice. Id.; see also Indus. Constructors
Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 964 (10th Cir. 1994) (courts may consider documents
attached to the complaint when reviewing a 12(b)(6) motion); Van Woudenberg v. Gibson, 211 F.3d 560,
568 (10th Cir. 2000) (“[T]he court is permitted to take judicial notice of its own files and records, as well
as facts which are a matter of public record.”), abrogated on other grounds by McGregor v. Gibson, 248
F.3d 946, 955 (10th Cir.2001); GFF Corp. v. Assoc’d Wholesale Grocers, Inc., 130 F.3d 1381, 1384
(10th Cir. 1997) (“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint,
but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may
submit an indisputably authentic copy to the court to be considered on a motion to dismiss.”).
In this case, plaintiffs have attached various documents to their second amended complaint,
including a copy of the Ex Parte Order of Protective Custody filed in Johnson County District Court on

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May 5, 2009 (Doc. 114-1), and a “Safety Plan” from the Colorado Department of Social Services and
Douglas County Department of Human Services (Doc. 114-2). In their motion to dismiss, defendants
attached:
1) Motion for Request for Ex Parte Orders of Protective Custody filed by the Johnson County
District Attorney on May 4, 2009,
2) copies of the CINC petitions for all three plaintiffs filed April 20, 2009 in Johnson County
District Court,
3) copies of the Ex Parte Order of Protective Custody for all three plaintiffs filed May 5, 2009
in Johnson County District Court,
4) copies of the Motion for Pick-Up Order for all three plaintiffs filed May 5, 2009 in Johnson
County District Court,
5) copies of the Order for Pick Up filed May 5, 2009 in Johnson County District court for all
three plaintiffs, accompanied by an affidavit submitted by the District Attorney in support of the
Pick-Up Order,
6) Journal Entry Nunc Pro Tunc filed on May 8, 2009 in Johnson County District Court ordering
the Doe children be placed in custody of the Secretary of Social and Rehabilitation Services.
(Docs. 123-1–14 *SEALED*.)
Because there is no dispute to the authenticity of these documents, and because the plaintiffs
refer to these documents in their complaint and the facts in the documents are central to plaintiffs’ claims,
the court will consider the exhibits without converting the motion into a motion for summary judgment.
III.

Analysis
Plaintiffs’ Second Amended Complaint includes the following claims:
1) Unlawful seizure in violation of the Fourth Amendment,

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2) Unlawful detention in violation of the Fourth Amendment,
3) Deprivation of familial association in violation of the Fourteenth Amendment,
4) Conspiracy (with the Colorado officials) to deprive plaintiffs of their constitutional rights,
5) Exemplary damages,
6) Deprivation of the right to travel, and
7) Malicious prosecution and/or abuse of process.
All of the claims are related to defendants’ conduct in seeking the ex parte order for protective
custody, which, when it was granted by a judge in Johnson County District Court, resulted in plaintiffs’
removal from Jane Doe’s custody in Colorado and subsequent temporary placement in state custody.
Defendants move to dismiss the complaint arguing 1) the Rooker-Feldman doctrine bars
plaintiffs’ claims, 2) they are entitled to absolute immunity, 3) plaintiffs failed to state a claim as the
seizure was inherently reasonable, 4) plaintiffs failed to state a claim for deprivation of their right to
familial association, 5) plaintiffs failed to state a claim for malicious prosecution or abuse or process, 6)
plaintiffs failed to state a claim for deprivation of the right to travel, 7) they are entitled to qualified
immunity, 8) plaintiffs failed to establish defendant Webb and defendant Abney’s personal involvement,
and 9) the claims are barred by the statute of limitations.
a. Rooker-Feldman
Defendants insist that the Rooker-Feldman doctrine applies to plaintiffs’ claims and, therefore,
this court does not have jurisdiction over the case. Because this implicates whether the court has subject
matter jurisdiction over the case, the court will take up this argument first.
The Rooker-Feldman doctrine “precludes lower federal courts ‘from effectively exercising
appellate jurisdiction over claims actually decided by a state court and claims inextricably intertwined
with a prior state-court judgment.’” PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010)

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(citing Mo’s Express, LLC v. Sopkin, 441 F.3d 1229, 1233 (10th Cir. 2006)). The doctrine extends to
“all state-court decisions—final or otherwise . . . and covers not only claims actually decided by the state
court but issues inextricably intertwined with such claims.” Atkinson-Bird v. Utah, Div. of Child &
Family Servs., 92 F. App’x 645, 647 (10th Cir. 2004). The Supreme Court has recently clarified the
“narrow scope” of the doctrine, noting it applies only to “cases brought by state-court losers complaining
of injuries caused by state-court judgments rendered before the district court proceedings commenced
and inviting district court review and rejection of those judgments.” Wagner, 603 F.3d at 1193 (citing
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). In deciding whether the
doctrine applies, courts should determine whether “the state-court judgment caused, actually and
proximately, the injury for which the federal-court plaintiff seeks redress,” and whether success on the
claims “would require the district court to review and reject [the state court’s] judgments.” Id. For
example, the doctrine would bar a claim for constitutional violations if the alleged violation was the
result of the state court’s order. See Atkinson-Bird, 92 F. App’x at 647 (“[A]n unsuccessful state litigant
cannot challenge an adverse state judgment and circumvent the rule of Rooker-Feldman simply ‘by
bringing a constitutional claim under the civil rights statutes.’”)
Defendants claim the Rooker-Feldman doctrine applies, arguing plaintiffs are effectively seeking
appellate review of the ex parte order of protective custody. Defendants note that orders of temporary
custody are appealable under K.S.A. § 38-2273, therefore the ex parte order was a final, appealable order
and plaintiffs chose not to seek appellate review and are prohibited from seeking such review in this
court. The doctrine further precludes subject matter jurisdiction because the relief plaintiffs seek is
“inextricably intertwined” with the ex parte order.
First, there is no indication the ex parte order was a final, appealable order. The Kansas Court
of Appeals has held that an ex parte order is not appealable because it does not fall under the definition

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of “temporary custody order” in K.S.A. § 38-2243 and because “[e]x parte orders issued . . . upon a
verified application are designed to be short-lived orders that remain in effect until the temporary custody
hearing. . . .” In re K.W.C., Nos. 112,904–907, 2015 WL 6112013, at *5 (Kan. Ct. App. Oct. 16, 2015).
Regardless, the doctrine applies to all state-court decisions “final or otherwise,” including issues
“inextricably intertwined with such claims.” Atkinson-Bird, 92 F. App’x at 647.
Although defendants argue that plaintiffs’ claims in substance attack the state-court order and/or
are “inextricably intertwined” with the issues in the order, the court finds they do not. Plaintiffs allege
that defendants’ pre-order conduct—including misleading the court with factual misrepresentations and
omissions and seeking an ex parte order fully knowing there was no probable cause to do so—ultimately
led to their illegal seizure. Plaintiffs are not asking for the invalidation of the ex parte order, rather, they
seek relief for defendants’ alleged illegal actions which led to the issuance of that ex parte order. See
Kovacic v. Cuyahoga Cnty. Dep’t of Children & Families, 606 F.3d 301, 310 (6th Cir. 2010) (finding
the Rooker-Feldman doctrine did not apply to plaintiffs’ Fourth Amendment claims and claims for due
process violations because they did not “seek review or reversal of the decision of the juvenile court to
award temporary custody to the state, but instead focus[ed] on the conduct of Family Services and of the
social workers that led up to the juvenile court’s decision to award temporary custody to the County.”).
Because the Supreme Court has advised that the Rooker-Feldman doctrine has a “narrow application,”
the court finds it does not apply in this case and subject matter jurisdiction exists over plaintiffs’ claims.
b. Absolute Immunity
Defendants next argue they have absolute immunity from suit based on the nature of their
functions. Absolute immunity is “necessary to assure that judges, advocates, and witnesses can perform
their respective functions, often controversial, without concern about possible repercussions.” Snell v.
Tunnell, 920 F.2d 673, 687 (10th Cir. 1990). The Supreme Court has applied a “functional approach”

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when determining whether particular acts of government officials are eligible for absolute immunity,
looking to “the nature of the function performed, not the identity of the actor who performed it.” See
Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). The Tenth Circuit has held that “the more distant a
function is from the judicial process, the less likely absolute immunity will attach.” Snell, 920 F.2d at
687. So, for example, an officer applying for a warrant is not absolutely immune from suit, but a
prosecutor seeking an indictment may enjoy absolute immunity. Id. The Tenth Circuit has found
specifically that social workers are not absolutely immune from suits involving their investigative
functions. See Malik v. Arapahoe Cnty. Dep’t of Soc. Servs., 191 F. 3d 1306, 1314 (10th Cir. 1999)
(denying absolute immunity for social workers in a suit related to their “participation in the investigative
act of seeking a placement order). In contrast, the Tenth Circuit has granted absolute immunity for social
workers in suits related to their functions as a testifying witness. See English v. LeBaron, 3 F. App’x
872, 873 (10th Cir. 2001).
Because the facts in the second amended complaint allege defendants committed constitutional
violations when they relied on factual misrepresentations and omissions when they recommended the
District Attorney seek an ex parte order of protective custody, the court finds absolute immunity does
not apply, as defendants’ conduct involved their investigative function.
c. Qualified Immunity
Defendants next argue that if they are not absolutely immune, they are at least entitled to qualified
immunity. Qualified immunity recognizes “the need to protect officials who are required to exercise
their discretion and the related public interest in encouraging the vigorous exercise of official authority.”
Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). It protects “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). A defendant is entitled
to qualified immunity unless the plaintiff can show “(1) a reasonable jury could find facts supporting a

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violation of a constitutional right, which (2) was clearly established at the time of the defendant’s
conduct.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). The Supreme Court has held
a court has the discretion to consider “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).
Following this instruction from the Supreme Court, the court will first address whether
defendants violated clearly established law. “The relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). For a right to be
clearly established, the “contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Id. Determining when a law is clearly established
ordinarily requires “a Supreme Court or Tenth Circuit decision on point, or the clearly established weight
of authority from other courts must have found the law to be as plaintiff maintains.” Booker, 745 F.3d
at 427. The Tenth Circuit has adopted a sliding scale approach to determine when law is clearly
established. Id. Under the sliding scale approach, “the more obviously egregious the conduct in light of
prevailing constitutional principles, the less specificity is required from prior case law to establish the
violation.” Id. The question we must answer, therefore, is whether officials—in this case social
workers—“of reasonable competence could disagree about the lawfulness of the challenged conduct.”
Gomes v. Wood, 451 F.3d 1122, 1136 (10th Cir. 2006). If so, the court must grant defendants qualified
immunity.
The Fourth Amendment prohibits the government from unreasonably removing children from
their home. See Burgess v. Houseman, 268 F. App’x 780, 783 (10th Cir. 2008) (finding an unreasonable
seizure when a social worker helped seize and detain a child without a warrant or probable cause to

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believe the child would be abused if she remained in her mother’s custody); Roska ex rel. Roska v.
Peterson, 328 F.3d 1230, 1244 (finding a child was unreasonably seized within meaning of the Fourth
Amendment when state actors removed him from his home under belief that his health was at risk.).
Plaintiffs maintain that in the Tenth Circuit, the law is clearly established that obtaining a court order to
seize a child through distortion, misrepresentation, and omission is a violation of the Fourth Amendment.
See Malik, 191 F.3d at 1316 (“Officials cannot reasonably assume that the law permits them to obtain a
custody order in retaliation for a parent’s retaining counsel and through reckless omission of probative
facts to a magistrate.”).
In Malik, a police officer and state social worker sought an order from a magistrate judge to
remove a four-year-old girl from her mother’s custody so that they could interview her regarding nude
photographs taken of her. Id. at 1310–13. In seeking the order, the social worker failed to inform the
judge that authorities did not consider the girl to be in imminent danger, that the photographs were five
months old and taken by an uncle who did not live in the area, that the mother had already been
interviewed, that the officer had already cancelled one of the previously scheduled interviews with the
child, and that a medical professional had expressed doubt that the child had bruises on her in the
photographs. Id. at 1311–12. The social worker also failed to mention that the mother had retained an
attorney who had insisted on certain conditions for the child to be interviewed, and proposed alternative
interview dates should officials agree to the conditions. Id. at 1310. The magistrate judge granted the
order and once the child had been removed from her mother’s custody, another officer allegedly told the
mother, “this wouldn’t have happened if you hadn’t gotten an attorney.” Id. at 1312. The Tenth Circuit
found the officer and social worker were not entitled to qualified immunity because “[o]fficials’ desire
to circumvent an attorney’s attempt to negotiate protective conditions for an interview does not rise to
the level of an extraordinary circumstance dangerous to the child . . .,” because the magistrate judge’s

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order was procured because of relevant factual omissions, and because it was clearly established that an
individual’s rights are violated when a police officer retaliates against him for hiring an attorney. Id. at
1315–16.
Defendants, however, note that the Tenth Circuit has found qualified immunity for social workers
in suits against them for violations resulting from the removal of children. In Gomes v. Wood, for
example, the Tenth Circuit found that because officers of reasonable competence could disagree as to
whether an immediate threat to the safety of the child did not exist, the social worker—who had
recommended removal of a child who had suffered a skull fracture—was entitled to qualified immunity.
451 F.3d at 1137. In granting qualified immunity, the Tenth Circuit emphasized that “considerable
deference should be given to the judgment of responsible government officials in acting to protect
children from perceived imminent danger or abuse.” Id. Further, qualified immunity should only be
denied if, when presented with all relevant information in the case, a reasonable official would have
“understood that there were no ‘emergency circumstances which pose an immediate threat to [the
child’s] safety.’” Id. In deciding whether officials have a reasonable suspicion of threat to a child, courts
must consider “all relevant circumstances, including the state’s reasonableness in responding to a
perceived danger, as well as the objective nature, likelihood, and immediacy of danger to the child.” Id.
at 1131.
The court agrees with plaintiffs that the allegations in the second amended complaint—that
defendants sought the ex parte order knowing there was no emergency and knowing they were omitting
and misrepresenting relevant facts—does violate clearly established Tenth Circuit law. Yet the Tenth
Circuit has recognized the difficulty social workers face in making “on-the-spot judgments on the basis
of limited and often conflicting information . . . with limited resources to assist them,” and has
emphasized that courts must consider all relevant circumstances when deciding whether an official acted

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within the bounds of the law. Id. at 1138, 1131. Therefore, the court must consider not only plaintiffs’
allegations but also the uncontested documents provided by defendants in support of their motion to
dismiss to determine whether any official could disagree with the reasonableness of defendants’ conduct.
As mentioned above, plaintiffs claim constitutional violations based on defendants’ alleged
omissions and misrepresentations in seeking the ex parte order of protective custody. Plaintiffs argue
defendants knew no exigencies existed to justify removing them from their mother’s custody and that
the ex parte order was invalid, and therefore, their removal was a seizure under the Fourth Amendment.
Again, the Tenth Circuit has instructed us to give deference to officials who are acting to protect children,
and to consider all the relevant circumstances. In reviewing the documents attached to defendants’
motion to dismiss, the court will briefly summarize defendants’ and the Johnson County District
Attorney’s positions in regard to plaintiffs, their siblings, and John and Jane Doe.
In the Motion for Request For Ex Parte Orders of Protective Custody, the Johnson County District
Attorney stated that CINC petitions had been filed for all ten children and that the facts alleged in the
petitions “pursuant to the investigation of [DCF], remained the primary concern the State has for the
welfare of the minor children.” (Doc. 123-1 *SEALED*, at 2.) After the petitions were served on the
parents, John Doe contacted defendant Abney to express his willingness to cooperate with the DCF
investigation and services. This information was passed along to defendant Gildner. Defendant Webb
contacted John Doe and he also expressed to her he wanted to work with Family Preservation as soon as
possible, and that he intended to cooperate with DCF. On May 1, defendant Gildner received a message
from the children’s maternal grandmother, who stated that one of her children had driven by the Doe
home and had seen them loading luggage into their vehicle, and that later the home was dark and the
family’s vehicle was gone. The family’s social worker for SRS benefits stated that the family’s food
stamp card had been used in Colorado on May 2 and May 3. The District Attorney then stated “[b]ased

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on this information, [DCF] has reason to believe that [Jane Doe] and the children have left the State of
Kansas. Based upon these activities as well as the facts as outlined in the petitions filed of record, the
State believes that the children may be at imminent risk for harm.” (Doc. 123-1 *SEALED*, at 3.)
Because the motion for the ex parte order was based partially on the allegations in the CINC
petitions, it is necessary to summarize those here. It is important to note that while plaintiffs allege the
CINC petitions were not based on probable cause, they have not contested the facts in the CINC petitions.
According to the petitions, filed by the Johnson County District Attorney, DCF began working with the
Doe family in June 2008 after allegations of sexual abuse of one of the non-plaintiff children arose. This
non-plaintiff child alleged that a maternal relative had touched her inappropriately. The Doe family was
estranged from the maternal relatives because Jane Doe felt it was inappropriate that this same maternal
relative had been tickling her children.
The non-plaintiff reporting child as well as two other non-plaintiff children were interviewed
about the allegations. The maternal relative was also interviewed by police regarding the allegations,
which he denied.

Because the allegations were unsubstantiated, DCF closed the case.

DCF

recommended Jane Doe seek counseling to address anger toward her family, as she had reported she had
been sexually abused by a relative.
In November 2008, DCF received another report alleging the original reporting non-plaintiff
child had disclosed additional information about the alleged sexual abuse by the maternal relative. The
child was again interviewed, but the details were inconsistent with the original report. In December
2008, another non-plaintiff child reported that she and the original reporting non-plaintiff child were
given pills, shown dead animals, and forced to watch pornography on the maternal relative’s computer.
Jane Doe reported that the maternal relative threatened to kill the children if they told anyone about the
alleged abuse and that he gave the children injections, showed them pornography on his computer, and

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forced them to watch animals being shot and mutilated. She also alleged the relative pushed his mother
down the stairs in front of the children.
DCF notified law enforcement about these allegations and concern was expressed regarding Jane
Doe’s mental stability as she recently had given birth and had a history of post-partum depression. DCF
was concerned that because of the “fantastic nature” of the allegations, Jane Doe may be experiencing
delusions related to the allegations. After further interviews of the children, law enforcement executed
a search warrant for the computers in the maternal relative’s home. There was no pornography found
on any of the computers. Based on the children’s statements, an elder abuse investigation was also
initiated, but was closed as the allegations were unconfirmed. Through this investigation, however,
officials found out that the maternal relative and Jane Doe’s mother and father had loaned the Doe family
tens of thousands of dollars to help with necessities with the understanding the Doe family would pay
them back. When the maternal relative confronted John and Jane Doe about how the money was being
spent, John and Jane Doe became upset and cut off contact with the maternal side of the family. John
and Jane Doe had also been involved with several lawsuits and had legal issues related to passing bad
checks. Jane Doe had allegedly been soliciting money on the internet and the family had to file for
bankruptcy. The maternal side of the family had expressed concern for the children’s physical and
emotional well-being and Jane Doe’s mental health and safety. DCF had also received documentation
that Jane Doe had been participating in online chat groups for victims of sexual abuse and had been
asked to leave due to people being uncomfortable with her and feeling that she had been lying about
allegations she had been reporting.
The family initially had accepted DCF’s offer of Family Preservation Services, but later declined,
stating the children were going to continue therapy and that Jane Doe was going to begin therapy
elsewhere. In March 2009, John Doe called DCF to express his disappointment with their services.

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Shortly after, DCF was informed by Leawood, Kansas and Kansas City, Missouri Police Departments
that law enforcement and the FBI were involved in an investigation regarding allegations that the
maternal relative had taken some of the Doe children to a bar in Kansas City, Missouri, had given them
shots, stripped them naked, and made them lick a dead rat. Both agencies declined to further investigate
the allegations based on lack of information.
DCF expressed concern about the “fantasticality” of the allegations and the high frequency of
reports from the family. DCF believed that much of the information reported by the Doe family was
untrue based on reports from others interviewed during the investigation. John Doe had reported he
would continue to seek action against the maternal relative, including filing a lawsuit, and DCF was
concerned about the emotional impact this would have on the children due to their continued exposure
to interviews and investigations because of their parents’ action. DCF reported they had attempted to
discuss these concerns with John and Jane Doe, but the first meeting was rescheduled, and the second
meeting was canceled by John Doe, who had expressed he no longer wanted to cooperate with DCF.
DCF believed John and Jane Doe were unwilling to listen to DCF’s concerns regarding their children
and DCF remained concerned with the children’s emotional well-being and safety, as Jane Doe was the
primary caregiver, was home with the children all day, and was potentially suffering from mental health
issues. DCF believed that, based on reports, the source of much of the information regarding the
allegations was from Jane Doe, not the children. And John and Jane Doe had become increasingly
uncooperative in the investigation, and had recently denied DCF requests to interview the children.
The petition then stated that reasonable efforts have been provided to prevent removal of the
children from the home, including ensuring the children were safe from the alleged perpetrator in the
original investigation, and that the children and Jane Doe had been participating in therapy. DCF noted,
however, that financial support from the maternal relatives had been cut off, and that the family declined

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Family Preservation Services and had been declining to cooperate with DCF. The petition then stated it
was contrary to the children’s welfare to remain in the home and that placement out of the home was in
the best interest of the child due to: concerns about how the children’s emotional and physical needs
were being met, the continued on-going investigations and fantastic allegations being made against the
maternal relative and the impact this had on the children’s emotional health, and Jane Doe’s mental
stability.
As mentioned above, the court set a hearing on the petitions for May 11, 2009. On May 5, 2009,
the Johnson County District Attorney filed an affidavit in support of a pick-up order of the children after
the ex parte order of protective custody was issued. In the affidavit, the Johnson County District Attorney
claimed that on May 5, defendant Gildner responded to the Doe family home after it was reported John
Doe was seen there. He informed defendant Gildner he would not divulge the whereabouts of his
children and that any communication would need to go through his attorney. The District Attorney stated
the pick-up order was necessary “to assure the juvenile’s continuing placement, is necessary as there is
no assurance that said juvenile will appear for hearing in this Court, and is made in the best interest of
the child and the community.” (Doc. 123-11 *SEALED*, at 3.)
The court finds it is important to outline the facts from the Johnson County documents as they
refute many of the “misrepresentations and omissions” plaintiffs rely on to support their argument that
defendants violated their constitutional rights. For example, plaintiffs allege that defendants had
represented that “the parents had committed physical, sexual, mental, or emotional abuse when such
statement had no basis in the facts alleged in the CINC petitions or in the facts known to defendants.”
As the details from the CINC petitions make clear, defendants had concern that the children were subject
to at least emotional and mental abuse, and the facts alleged provided support for this concern. Plaintiffs
also claim “that John and Jane Doe had refused Family Preservation Services when in fact John Doe had

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specifically accepted the offer of Family Preservation Services.” In the motion for the ex parte order,
the District Attorney specifically states that after the CINC petitions were filed, John Doe accepted the
offer of Family Preservation Services and stated he was willing to cooperate with DCF. Further,
plaintiffs claim that defendants knew the Doe children were not in danger because they initially closed
their file, disbelieved the children’s abuse had actually occurred, and didn’t seek immediate custody of
the children upon filing the CINC petitions. The motion for the ex parte order, however, states that the
allegations in the CINC petition, combined with the parents taking the children out of state, created an
immediate need to take custody of the children. The CINC petition itself stated it was contrary to the
children’s welfare to remain in the home and that placement out of the home is in the best interest of the
child due to: concerns about how the children’s emotional and physical needs are being met, the
continued on-going investigations and fantastic allegations being made against the maternal relative and
the impact this has on the children’s emotional health, and Jane Doe’s mental stability. (Emphasis
added.)
Based on a review of the Johnson County documents, the court can distinguish this case from the
facts of Malik, which plaintiffs rely on to show the law was clearly established. In Malik, the evidence
showed the officials had no reason to remove the child from the home beyond the fact that they were
having difficulty scheduling the child for an interview. There were no facts that the child was in danger,
and the social worker omitted material facts about the situation when seeking an order from the
magistrate judge. Here, the District Attorney, likely based on a recommendation from defendants, sought
an ex parte order of protective custody based on the allegations in the CINC petition and the parents’
post-petition conduct—removing the children from the state and not being forthcoming about the
children’s whereabouts. Most of the claimed “misrepresentations and omissions” set forth in plaintiffs’
complaint are refuted by the Johnson County documents or are not material. Plaintiffs do claim that

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there were no travel restrictions placed on the family in the time period between the filing of the petition
and the hearing, and therefore it was unreasonable to use the family’s travel to justify the ex parte order.
The court has not found any travel restrictions in any of the documents. The court, however, has to give
reasonable deference to defendants’ judgment in deciding when a child may be in danger.
The court therefore finds that reasonable officials could disagree as to whether there was a threat
to plaintiffs’ safety. And based on the factual allegations in the CINC petition—which have not been
contested—combined with the parents’ post-petition conduct, it would be reasonable for an official to
believe an ex parte order of protective custody was justified.
For these reasons, the court finds defendants are entitled to qualified immunity because the law
is not clearly established that their conduct violated plaintiffs’ constitutional rights.
IT IS THEREFORE ORDERED that defendants’ Motion to Dismiss Second Amended
Complaint (Doc. 120) is granted.
This case is closed.

Dated March 7, 2018, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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