Kalmus et al v. Zimmerman et al

Filing 66

ORDER DISMISSING 30 Motion to Dismiss for Failure to State a Claim; GRANTING 31 Motion for Summary Judgment; DENYING 33 Motion for Summary Judgment; GRANTING 42 Motion to Amend Complaint. Signed by Judge Robert Pitman. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DONNA MARIE KALMUS, et al.,
Plaintiffs,
v.
JEANETTE ZIMMERMANN, et al.,
Defendants.

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1:15-cv-316-RP

ORDER
Before the Court are Defendant Laura Moore’s Motion to Dismiss, filed July 8, 2016, (Dkt.
30); Defendant Laura Moore’s No Evidence Motion for Summary Judgment, filed July 8, 2016,
(Dkt. 31); Defendants Jeanette Zimmermann 1, Karin Harbers, Jessica Jackson, and Kelli Sandoval’s
Motion for Summary Judgment on the Basis of Qualified Immunity, filed July 8, 2016, (Dkt. 33);
and Plaintiffs’ Second Motion for Leave to Amend Complaint, filed August 12, 2016, (Dkt. 42).
Having considered the pleadings and the relevant law, the Court issues the following order.
I. Background
This case involves the removal of an infant child from her family’s home by the Texas
Department of Family and Protective Services (“TDFPS” or “the Department”). Plaintiffs Donnie
Marie Kalmus and Jarvis Deshawn Burns assert claims, pursuant to 42 U.S.C. § 1983, against four
TDFPS employees and one Court Appointed Special Advocate, for violations of their constitutional

The Court is unsure how to spell this Defendant’s last name. Defendants’ counsel consistently spells the name
“Zimmerman.” However, Jeanette’s declaration is labeled “Declaration of Jeanette Zimmermann,” (Dkt. 33-2 at 1), and
is signed “Jeanette Zimmermann,” (id. at 5). Accordingly, contrary to all of the other filings in the case, the Court adopts
“Zimmermann” as the appropriate spelling. Similarly, Defendants’ counsel generally spells Ms. Sandoval’s last name
“Kelly,” whereas her declaration indicates her name is spelled “Kelli.” Again, the Court adopts the spelling found in the
Defendant’s declaration.
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rights and the constitutional rights of their children, F.K. and K.R.B. 2 The facts of the case are
largely undisputed.
Kalmus and Burns have a history of involvement with TDFPS dating back to 2010. In
November 2010, the Department received a report indicating Kalmus and Burns had engaged in
domestic violence in the presence of F.K. In early 2011, the Department received another report
that included further allegations of domestic violence by Burns, as well as allegations of extensive
drug use by both Burns and Kalmus. The report also included an allegation that Burns and Kalmus
would regularly lock F.K. in their car, while they used drugs and had sex in their trailer. At the time,
no action was taken to remove F.K. from the home.
In January 2012, undercover officers with the Fayette County Narcotics Unit repeatedly
purchased narcotics at the home where Burns, Kalmus and F.K. were known to reside. The unit
then executed a search warrant at the residence and found methamphetamines and drug
paraphernalia in the same room where a child appeared to live. The Fayette County Narcotics Unit
alerted TDFPS to the conditions at the residence, and TDFPS initiated an investigation. On January
17, 2012, TDFPS removed F.K. from the home. The next day, the District Court of Fayette County
issued an emergency order provisionally finding that F.K.’s removal was necessary and naming
TDFPS as F.K.’s temporary managing conservator and set a full adversary hearing for February 1,
2012. The court also appointed Defendant Laura Moore to serve as F.K.’s Court Appointed Special
Advocate (“CASA”). After the full adversary hearing, the court issued a final order appointing
TDFPS as F.K.’s temporary managing conservator. At the time of F.K.’s removal, Kalmus was
pregnant with Burns’s child, K.R.B.
In hopes of being reunited with F.K., Kalmus entered a “Family Plan of Service” specifying
the requirements she needed to fulfill prior to reunification. Those requirements included
Donna Kalmus is the mother of F.K. and K.R.B. Jarvis Deshawn Burns is K.R.B.’s father. However, Burns is neither
the biological father nor the legal guardian of Plaintiff F.K.

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completing protective parenting classes, participating in individual therapy, completing a drug and
alcohol assessment, participating in random drug testing, and providing a safe and stable
environment for herself and her daughter. TDFPS sought Burns’s voluntary cooperation in the
reunification process, but he refused to participate. Defendant Kelly Sandoval was assigned as F.K.’s
case worker. She was responsible for visiting F.K. in foster care and ensuring her needs were met.
She was also responsible for monitoring whether Kalmus was abiding by the terms of her Family
Service Plan and engaging in services required by TDFPS.
On April 3, 2013, the Fayette County District Court ordered F.K. returned to her mother’s
home on a monitored basis. Under the Texas Family Code, when a child is returned home on a
monitored basis, the child formally remains in TDFPS custody, but is monitored by a case worker as
if they child were in foster care. While the child is at home on a monitored basis, TDFPS may
remove the child from the home without seeking approval because TDFPS remains the child’s
temporary managing conservator and retains all the corresponding rights and duties, including the
right to physical possession of the child. The court order placing F.K. on monitored return
specifically stated that Burns was to have no contact with F.K. and was not allowed to visit Kalmus’s
residence, despite the fact that the at time Kalmus and Burns were living together on a property
owned by Burns’s parents in Washington County.
On April 9, 2013, F.K.’s special advocate, Defendant Moore, informed TDFPS that Burns,
who was at the time on probation for drug charges, had tested positive for methamphetamine use
and had executed an Admission of Use. TDFPS later learned that Burns had provided his probation
officer with his parents’ Washington County address as his home address. Both Sandoval and Moore
independently visited F.K. at school and learned that she and her mother were living with Burns on
a trailer on Burns’s parents’ property, where Burns’s and Kalmus’s infant child, K.R.B., also lived.

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F.K. also told Moore that Burns had hit her mother with a belt and that her mother had hit Burns
while he was driving their car.
F.K.’s case worker, Sandoval, discussed this new information with her supervisor, Defendant
Zimmermann. In light of the revelation that F.K. was living with Burns, in violation of the order
placing her on monitored return, Zimmermann instructed Sandoval to pick up F.K. from school and
place her back in foster care. Out of concern for K.R.B.’s safety, Sandoval also notified Defendant
Jessica Jackson, who works for TDFPS’s investigative staff in Washington County about the infant’s
situation. Jackson and her supervisor, Defendant Karin Harbers, determined that the circumstances
also warranted removing K.R.B. from the home.
On April 22, 2013, at approximately 2:30 p.m., Sandoval and Jackson arrived at the
Washington County property where Kalmus, Burns, and the two children lived. Sandoval and
Jackson were accompanied by F.K.’s special advocate, Defendant Moore, and law enforcement
officers. (Zimmermann and Harbers, both TDFPS supervisors, did not accompany Sandoval, a case
worker, and Jackson, an investigator, to the property.) Shortly after arriving, Sandoval and Jackson
were greeted by Kalmus who was holding K.R.B. The two TDPFS employees explained that K.R.B.
was being removed from the home and that, along with F.K., she would be placed in foster care.
After leaving the property, Sandoval and Jackson picked F.K. up from school and placed the two
children in the same foster home.
The next day, April 23, 2013, TDPFS filed an ex parte suit seeking a temporary court order
that would give the Department custody over K.R.B. on an emergency basis. The County Court of
Law of Washington County provisionally found that there would be a continuing danger to K.R.B.’s
physical health or safety if she were to be returned to her parents, and, therefore, named TDFPS as
K.R.B.’s temporary managing conservator and set a full adversary hearing for May 2, 2013. After the
full adversary hearing, the court issued a second order naming TDFPS as K.R.B.’s temporary
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managing conservator. Both Kalmus and Burns appeared at the adversary hearing, but neither were
represented by counsel. Both parents were later appointed counsel, and, through counsel, moved the
court to reconsider its decision to appoint TDFPS as K.R.B.’s temporary managing conservator. The
court held a hearing on the motions for reconsideration and heard extensive testimony from the
relevant parties. The court declined to dismiss TDFPS as K.R.B.’s temporary managing conservator.
The court did, however, return K.R.B. to Kalmus, who was no longer living with Burns, on the
condition that Burns not be allowed contact with K.R.B. The court made no findings as to the
legality or propriety of the original decision to remove K.R.B. from her parents.
On April 21, 2015, Donna Kalmus and Jarvis DeShawn Burns filed this action, on behalf of
themselves and their children, F.K. and K.R.B., naming Jeanette Zimmermann, Karin Harbers,
Jessica Jackson, and Kelli Sandoval as Defendants in their individual capacities (collectively “TDFPS
Defendants”). The action also names as a Defendant CASA worker Laura Moore. Against the
TDFPS Defendants, Plaintiffs assert, pursuant to 42 U.S.C. § 1983, claims for violations of their
Fourth Amendment right to be free from unreasonable searches and seizures, violations of their
Fourteenth Amendment due process rights, and violations of their Fourteenth Amendment right to
family integrity. Against Defendant Moore, Plaintiffs assert a common law negligence claim.
Defendant Moore has filed a motion to dismiss and a motion for summary judgment. The
TDFPS Defendants have filed a motion for summary judgment. Additionally, Plaintiffs have filed a
second motion to amend their complaint. All four motions are now ripe for review.
II. Discussion
A. Plaintiff’s Second Motion to Amend
The Court begins with Plaintiffs Second Motion for Leave to Amend Complaint, (Dkt. 42).
Plaintiffs seek to voluntarily abandon several claims that they have determined are no longer viable.
Specifically, Plaintiffs intend to dismiss their claims for violations of the right to family integrity as
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well as all claims arising from the removal of F.K. Additionally, Plaintiffs seek to clarify that they are
not asserting a claim for unlawful entry into Kalmus’s or Burns’s home. Plaintiffs do not seek to add
new claims or modify the remaining claims.
Both the TDFPS Defendants and Defendant Moore oppose Plaintiffs’ motion to amend and
point out that the motion was filed nearly a year after the expiration of the amendment deadline.
Defendants reject Plaintiffs contention that they have a right to amend without leave of the Court
triggered by the filing of Defendant Moore’s motion to dismiss. Rather, Defendants argue Plaintiffs
must show good cause under Federal Rule of Civil Procedure 16(b)(4), or at the very least, are
required to seek leave of the Court under Federal Rule of Civil Procedure 15(a)(2). Of course,
Defendants are not opposed to Plaintiffs abandoning claims asserted against them. Their sole
concern is that allowing Plaintiffs leave to amend will delay the litigation by (1) mooting the pending
motions for summary judgment and (2) forcing Defendants to file responsive pleadings to the
amended complaint. Plaintiffs, on the other hand, contends that allowing leave to amend will serve
the litigation by providing a more clear and concise pleading.
This dispute is easily resolved. The Court grants Plaintiffs’ Second Motion for Leave to
Amend Complaint. All claims and causes of action not asserted in the Second Amended Complaint
are dismissed with prejudice. All pleadings responsive to the First Amended Complaint are
construed as responsive to the Second Amended Complaint.
B. Summary Judgment Standard
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure
only “if the movant shows there is no genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine only if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
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The party moving for summary judgment bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The Court will view the summary judgment evidence in the light most favorable to the
non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). Once the movant carries its burden,
the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Wise v. E.I. Dupont
de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by
setting forth particular facts indicating there is a genuine issue for trial. Miss. River Basin Alliance v.
Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by
tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125,
1131 (5th Cir. 1992). “After the non-movant has been given the opportunity to raise a genuine
factual issue, if no reasonable juror could find for the non-movant, summary judgment will be
granted.” Westphal, 230 F. 3d at 174.
C. Defendant Moore’s Motion for Summary Judgment
Plaintiffs assert claims for negligence against Defendant Laura Moore. Specifically, Plaintiffs
argue that Moore acted tortiously when she reported to TDFPS that F.K. had stated she was living
with Burns and that Burns had hit Kalmus. Plaintiffs contend that Moore’s decision to relay this
information to TDFPS, without conducting an independent investigation of F.K.’s assertion,
breached her duties to Kalmus, Burns, K.R.B., and in particular, to F.K, for whom she served as a
court appointed guardian ad litem.

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Defendant Laura Moore filed both a Motion to Dismiss, (Dkt. 30), and a No Evidence
Motion for Summary Judgment 3, (Dkt. 31), on the same day. The thrust of the two motions is the
same. Moore argues that she did not have a duty to any of the Plaintiffs and, to the extent that she
did have a duty, there is nothing in Plaintiffs’ allegations or in the record to suggest she breached
that duty. Plaintiffs respond substantively to Moore’s motion for summary judgment, but simply
object to the motion to dismiss as procedurally defective. Plaintiffs argue that any motion filed
pursuant to Federal Rule of Civil Procedure 12(b)(6) must be filed before the party files its answer,
and thus, Moore’s motion to dismiss is untimely. 4 In light of the similarity between the two motions
and Plaintiffs’ procedural objections to the motion dismiss, the Court concludes it best to begin by
addressing Moore’s motion for summary judgment.
Under Texas law, a claim for negligence has three elements: (1) the existence of a legal duty
owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by
that breach. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009).
The first question then is whether Moore owed any of the Plaintiffs a duty. Plaintiffs argue
that Moore owed a general duty to Kalmus, Burns, F.K., and K.R.B., see El Chico Corp. v. Poole, 732
S.W.2d 306, 315 (Tex. 1987) (“The law of negligence . . . dictates every person is responsible for
Technically, the Federal Rules of Civil Procedure do not recognize a no evidence motion for summary judgment:
“Simply filing a summary judgment motion does not immediately compel the party opposing the motion to come
forward with evidence demonstrating material issues of fact as to every element of its case. . . . [Celotex Corp. v. Catrett,
477 U.S. 317 (1986)] makes clear that before the non-moving party is required to produce evidence in opposition to the
motion, the moving party must first satisfy its obligation of demonstrating that there are no factual issues warranting
trial.” Russ v. International Paper Co., 943 F.2d 589, 592-93 (5th Cir. 1991). However, in Celotex, the Supreme Court is also
clear that the party moving for summary judgment need not produce evidence to prove the lack of a factual dispute,
rather “the burden on the moving party may be discharged by ‘showing’—that is, pointing out . . . that there is an
absence of evidence to support the nonmoving party's case.” Celotex Corp., 477 U.S. at 325. Here, the Court is persuaded
that Defendant Laura Moore has met this rather low burden and, thus, the burden shifts to Plaintiffs to demonstrate a
genuine and material fact issue.

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Plaintiffs are correct. However, generally courts will construe an untimely motion made Federal Rule of Civil
Procedure 12(b)(6) a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), which is subject
to the same standard as a motion made under Rule 12(b)(6). See Young v. City of Houston, 599 F. App'x 553, 554 (5th Cir.
2015). Because here Defendant has also filed a valid motion for summary judgment, the Court sees no need to
redominate her motion to dismiss.
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injuries which are the reasonably foreseeable consequence of his act or omission.”), and a specific
fiduciary duty to F.K., see Byrd v. Woodruff, 891 S.W.2d 689, 706 (Tex. App.—Dallas 1994, writ dism’d
by agr.) (“[A] guardian ad litem’s court-appointed role to act as the representative of the minor’s
interests is sufficient to establish a fiduciary relationship between the minor and the guardian ad
litem.”). Assuming Plaintiffs are correct that under Texas common law Moore owed all four
Plaintiffs a duty, that duty is circumscribed by statute. The Texas Family Code mandates that “[a]
guardian ad litem . . . is not liable for civil damages arising from an action taken” unless the action
(1) was taken “with conscious indifference or reckless disregard to the safety of another,” (2) was
made “in bad faith or with malice,” or (3) was “grossly negligent or willfully wrongful.” Tex. Fam.
Code § 107.009(a)-(b). To prevail, Plaintiffs must demonstrate a genuine issue of material fact as to
whether Moore violated one of the three heightened standards of care articulated in Texas Family
Code § 107.009(b). 5
In response to Moore’s motion for summary judgment, Plaintiffs point principally to the
affidavits submitted by the four TDFPS Defendants in support of their own motion for summary
judgment. Plaintiffs also submit the affidavit of Donna Kalmus. According to Plaintiffs, the “best
evidence” of Moore’s negligence comes from the affidavits of the TDFPS Defendants:
Their Declarations make it clear that the impetus for their decision to remove
the Children was a report from Moore that Kalmus was violating a court
order. Of course, when the dust settled, neither Moore nor the CPS
Defendants ever developed any evidence that Kalmus violated the Fayette
County District Court’s Order as alleged by Moore. Because of the proof of
Moore’s involvement in the removal of the Children, Moore’s Motion for
Summary Judgment must fail.

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Plaintiffs acknowledge that Texas Family Code § 107.009 limits the liability of guardians ad litem, but suggest that
Defendant Moore has waived this argument by failing to raise it in her motion. However, Plaintiffs do not cited
suggesting the immunity provided by this section operates as an affirmative defense or otherwise is waived if not
invoked. The Court reads the statute as narrowing the scope of causes of action preexisting in the common law, not
creating a defense to those causes of actions. Accordingly, Plaintiffs claims must be consistent with the parameters
set forth Texas Family Code § 107.009, even if Defendants motion fails to explicitly invoke the statute.

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(Pls.’ Resp. Def.’s No Evid. Mot. Summ. J., Dkt. 46 at 1-2). The only action of Moore’s that
Plaintiffs suggest constitutes a breach of duty is her failure to investigate F.K.’s assertion that she
and her mother were living with Burns. (See id. at 10-11).
While a guardian ad litem arguably ought to make some attempt to corroborate the claims of
a four year old before relaying them to authorities, it strains credulity to suggest that Moore’s failure
to investigate F.K.’s assertion that she was living with Burns violates one of the heightened
standards of care set out in Texas Family Code § 107.009(b). First, Moore clearly did not act “with
conscious indifference or reckless disregard to the safety of another.” Id. Even by Plaintiffs’ account
the injury Moore risked was F.K. and K.R.B.’s removal from their home, an injury which does not
implicate the safety of either the children or their parents. Next, there is no evidence that Moore
acted “in bad faith or with malice.” Id. Even if reporting F.K.’s statements without conducting an
independent investigation was tortious conduct, there is no evidence in the record that Moore acted
on any motivation other than to protect the safety of the children. Similarly, there is no reason to
believe Moore’s conduct was “grossly negligent or willfully wrongful,” id., as Plaintiffs have
submitted no evidence of Moore’s attitude or motivations. See Burk Royalty Co. v. Walls, 616 S.W.2d
911, 922 (Tex. 1981) (“The essence of gross negligence is . . . the mental attitude of the defendant. . .
. The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his
rights.”).
Accordingly, the Court concludes Plaintiffs have failed to demonstrate the existence of a
genuine issue of material fact as to whether Moore’s allegedly tortious conduct is exempt from the
immunity provided by Texas Family Code § 107.009. Therefore, the Court concludes Moore’s
motion for summary judgment should be granted.

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D. TFDPS Defendants’ Motion for Summary Judgment
The Court now turns to Defendants Jeanette Zimmermann, Karin Harbers, Jessica Jackson,
and Kelly Sandoval’s Motion for Summary Judgment on the Basis of Qualified Immunity. In
addition to arguing that they are entitled to qualified immunity, the TDFPS Defendants also argue
that this Court should abstain from reviewing Plaintiffs’ claims under the Rooker-Feldman a doctrine.
Defendants Sandoval and Zimmermann also argue that they are not liable due to their limited
involvement in K.R.B.’s case. The Court will first address the TDFPS Defendants evidentiary
objections, then turn to their substantive arguments.
1. Evidentiary Objections
The TDFPS Defendants object to several pieces of summary judgment evidence submitted
by Plaintiffs. Most pertinently, Defendants object to the Court’s consideration of the transcript of a
hearing held in the County Court of Law of Washington County on motions for reconsideration
filed by Burns and Kalmus asking the court to revisit its decision to appoint TDFPS as K.R.B.’s
temporary managing conservator. In their response to the TDFPS Defendants’ motion for summary
judgment, Plaintiffs cite several passages of testimony given by Defendant Zimmermann at this
hearing. Plaintiffs contend this testimony is probative of Zimmermann’s involvement in the decision
to remove K.R.B. from her parents.
Defendants argue that Zimmermann’s prior testimony is inadmissible under Federal Rule of
Evidence 804(b)(1). This rule creates an exception to the hearsay exclusion “if the declarant is
unavailable as witness” for “[t]estimony that . . . was given as a witness at a trial, hearing, or lawful
deposition . . . and . . . is now offered against a party who had . . . an opportunity and similar motive
to develop it by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b)(1)(A)-(B). Defendants
argue Zimmermann has not been shown to be unavailable and did not have a similar motive to
develop her testimony at the state court hearing, and therefore, her prior testimony is inadmissible.
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Defendants’ argument is misguided. It is true that the admissibility of summary judgment
evidence is subject to the same standards and rules that govern the admissibility of evidence at trial.
Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 504 (5th Cir. 1999). However, the evidence need not
be submitted in the same form as it would be presented at trial. For example, affidavits and
deposition testimony are generally not admissible at trial because they constitute hearsay under
Federal Rule of Evidence 802. Yet, affidavits and deposition testimony are allowed as summary
judgment evidence, because the affiant or deponent can be called or subpoenaed as a witness at trial.
See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“We do not mean that the nonmoving party
must produce evidence in a form that would be admissible at trial in order to avoid summary
judgment.”). Accordingly, a transcript of prior testimony, much like an affidavit or deposition
testimony is permissible summary judgment evidence. See O’Connor v. Williams, 640 F. App’x 747,
750 (10th Cir. 2016) (affirming the consideration of prior testimony at a protective order hearing
because summary judgment evidence does not need to be submitted in an admissible form so long
as the substance of the evidence is admissible); Williams v. Vasquez, 62 F. App’x 686, 692 (7th Cir.
2003) (“[A]long with other courts, we have recognized that transcripts of testimony may be
considered in support of, or opposition to, a motion for summary judgment.”). Accordingly, the
court overrules Defendants’ objection to the Court’s consideration of the transcript of the August
12, 2013 held in the County Court of Law of Washington County.
Defendants also object to an exhibit submitted by Plaintiffs referred to as “Gates
Memorandum of August 22, 2008” and another exhibit referred to as “Excerpts from the Child
Protective Services Handbook.” The Court’s ruling does not rely on either exhibit. Thus, the Court
need not consider these objections.

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2. Qualified Immunity
All four TDFPS Defendants assert the defense of qualified immunity. The doctrine of
qualified immunity protects government employees from civil liability as long as “their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194 (2001),
the Supreme Court articulated a “two-step sequence for resolving government officials’ qualified
immunity claims.” Pearson v. Callahan, 555 U.S 223, 232 (2009). “First, a court must decide whether
the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right.”
Id. “Second, if the plaintiff has satisfied this first step, the court must decide whether the right at
issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Id. In Saucier, the
Supreme Court required courts to first address whether Plaintiff had shown the violation of a right,
before asking whether the right in question was clearly established. Id. The Court subsequently
reconsidered and now courts are “permitted to exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances of the particular case at hand.” Id. at 236.
In addressing the first question—whether Plaintiffs have shown a violation of a
constitutional right—“we employ currently applicable constitutional standards.” Kinney v. Weaver, 367
F.3d 337, 350 (5th Cir. 2004). In addressing the second—whether the right allegedly violated is
“clearly established”—we ask whether “’[t]he contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’” Id. at 350 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The ‘clearly established’ standard does not mean
that officials’ conduct is protected by qualified immunity unless ‘the very action in question has
previously been held unlawful.’” Id. (quoting Anderson, 483 U.S. at 640). On the other hand, “an
official does not lose qualified immunity merely because a certain right is clearly established in the
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abstract.” Id. Government officials are protected by qualified immunity “unless the law is clear in the
more particularized sense that reasonable officials should be ‘on notice that their conduct is
unlawful.’” Id. (quoting Saucier, 533 U.S. at 206). A qualified immunity defense will fail “despite
notable factual distinctions between the precedents relied on and the case the before the court, so
long as the prior decisions gave reasonable warning that the conduct then at issue violated
constitutional rights.” Hope v. Pelzer, 536 U.S. 730, 740 (2002) (emphasis added).
“In the summary judgment context, a government official need only plead qualified
immunity, which then shifts the burden to the plaintiff.” Gates v. Texas Dep't of Protective & Regulatory
Servs., 537 F.3d 404, 419 (5th Cir. 2008). “The plaintiff must rebut the defense by establishing that
the official’s allegedly wrongful conduct violated clearly established law and that genuine issues of
material fact exist regarding the reasonableness of the official’s conduct.” Id.
a. Qualified Immunity Step One
The first step in the qualified immunity inquiry is to determine whether the plaintiff has
shown a violation of a constitutional right. Here, Plaintiffs assert claims for violations of both their
Fourth Amendment right to be free from unlawful seizure and for violations of their Fourteenth
Amendment right to due process.
The Fourth Amendment right to be free from unreasonable seizure is a personal right that
belongs only to the individual whose person or belongings is subject to seizure. See Alderman v. U.S.,
394 U.S. 165, 174 (1969) (“Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted.”). Plaintiffs’ only remaining Fourth
Amendment claim alleges that the removal of K.R.B. from her parents constitutes an unlawful
seizure. If so, K.R.B. has a claim, but her parents do not, as they cannot assert K.R.B.’s Fourth
Amendment rights on their own behalf. See, e.g., P.C. v. Conn. Dep’t of Children & Families, 662 F.
Supp. 2d 218, 232 (D. Conn. 2009) (holding, as a matter of law, that parents do not have a Fourth
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Amendment right to be free from a child’s removal and may bring Fourth Amendment claims only
on the child’s behalf). Thus, the only Plaintiff who has a plausible remaining Fourth Amendment
claim is K.R.B., whose claims are brought by her parents, Plaintiffs Kalmus and Burns, as next
friends.
Plaintiffs Kalmus and Burns do have viable claims for the violation of the Fourteenth
Amendment right to due process. See Gates, 537 F.3d at 434 (5th Cir. 2008) (holding that “parents
have a ‘fundamental liberty interest . . . in the care, custody, and management of their child’”
(quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982))). The Fifth Circuit has made clear that in cases
where the plaintiffs bring both Fourth and Fourteenth Amendment claims relating to the seizure of
a child, the protections afforded by the Fourth Amendment to the child mirror the protections
afforded by the Fourteenth Amendment to the parents. See id. at 435 (“The procedures required for
a constitutional search and seizure under the Fourth Amendment are adequate to protect [the parent
plaintiffs’] procedural due process rights and liberty interests in directing the upbringing of their
children.”); Wernecke v. Garcia, 591 F.3d 386, 391 (5th Cir. 2009) (“In previous cases . . . premised
upon the same underlying facts—the removal of children—the Fifth Circuit and other circuits have
held that the procedures required for a constitutional search and seizure under the Fourth
Amendment are adequate to protect the parents’ procedural due process rights.”).
Accordingly, the Court considers the Plaintiffs’ Fourth and Fourteenth Amendment claims
collectively and does so in reference to the governing Fourth Amendment case law. Plaintiffs argue
that the TDFPS Defendants’ decision to take K.R.B. from her mother without a court order violated
K.R.B.’s Fourth Amendment right to be free from unreasonable seizure. The parties agree that the
legality of the removal of K.R.B. is governed by two Fifth Circuit cases: Gates v. Texas Dep’t of
Protective & Regulatory Servs., 537 F.3d 404 (5th Cir. 2008) and Wernecke v. Garcia, 591 F.3d 386 (5th
Cir. 2009).
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In Gates, social workers removed children from their home without a court order after
investigating allegations of recent physical abuse by their father. Gates, 537 F.3d at 430. To determine
whether the removal violated the Fourth Amendment rights of the children, the Fifth Circuit
considered all of the information known to the social workers at the time the children were
removed. Id. at 429. Among other evidence of abusive parenting, the court noted that one child
displayed wounds that according to both the child and his siblings were inflicted by his father. Id.
The court deemed the case a “close call,” but ultimately concluded, given the totality of the
circumstances, the social workers did not violate the Fourth Amendment by seizing the children
without a court order. Id.
In reaching this conclusion, the Fifth Circuit articulated a framework for determining
whether the seizure of a child violates the Fourth Amendment. “[T]he government may not seize a
child from his or her parents absent a court order, parental consent, or exigent circumstances.” Id.
Exigent circumstances are present if, “based on the totality of the circumstances, there is reasonable
cause to believe that the child is in imminent danger of physical or sexual abuse if he remains in his
home.” Id. Determining whether there is reasonable cause to believe the child is in imminent danger
is a “flexible inquiry,” but the Fifth Circuit enumerated six specific factors courts should consider:
(1) “whether there was time to obtain a court order,” (2) “the nature of the abuse (its severity,
duration, and frequency),” (3) “the strength of the evidence supporting the allegations of abuse,” (4)
“the risk that the parent will flee with the child,” (5) “the possibility of less extreme solutions to the
problem,” and (6) “any harm to the child that might result from the removal.” Id.
In Wernecke, the Fifth Circuit applied this framework to a case where two boys were removed
by social workers from their parents’ home and placed in state custody because their home was not
deemed a safe place for children to live. Wernecke, 591 F.3d at 398-401. The parties disputed the
exact state of the home. Id. at 398-99. According to the plaintiffs it was merely cluttered, while
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according to the defendants it was extremely unsanitary, with medications, syringes, and feces
scattered about. Id. at 398. The Fifth Circuit applied the six factors articulated in Gates and
concluded that “[i]n the light most favorable to the Werneckes, a reasonable person would not
believe that an immediate danger would be posed by [the children] remaining in the home.” Id. at
399. Moreover, the court concluded that “the essentials of what [is] required . . . for a social worker
to effect a warrantless seizure,” namely the requirement of “at the very least, some evidence of
imminent danger to child,” were clearly established, even prior to the Fifth Circuit’s decision in
Gates. Id. at 400.
Here, the TDFPS Defendants offer two arguments as to why they reasonably believed the
removal of K.R.B. was necessary due to exigent circumstances. First, F.K. had reported that she and
her mother were again living with Burns, contrary to what Kalmus had told TDFPS and in violation
of an order entered by the Fayette County District Court. In light of Burns’s history of spousal
abuse and drug use, the TDFPS Defendants argue, they reasonably concluded it was unsafe for
K.R.B. to reside with him. This concern was compounded by the fact that TDFPS had recently
learned from Burns’s probation officer that he had tested positive for methamphetamines. However,
Defendants must do more than demonstrate general concerns about K.R.B.’s welfare—they must
show they reasonably perceived an imminent threat of physical abuse. The evidence Defendants present
suggesting that K.R.B.’s father used methamphetamines and had some history of abuse is troubling,
but does not demonstrate that K.R.B. was in immediate danger.
Moreover, the Court notes that while the Fayette County District Court had previously
ordered that Kalmus and F.K. not reside with Burns, no such order was in place with regard to
K.R.B. Burns is K.R.B.’s biological father and at the time of K.R.B.’s removal TDFPS had made no
effort to strip him of the rights incident to fatherhood. In this context, some of the arguments made
by the TDFPS Defendants are puzzling. For example, the TDFPS Defendants repeatedly remind
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the Court that F.K. had informed them that “Burns fed K.R.B. her bottle ‘all the time.’” (Defs.’ Mot.
Summ. J., Dkt. 33 at 7). On this point, the Court agrees with Plaintiffs that a father feeding his child
is not evidence of an imminent threat of physical abuse.
Second, Defendants argue F.K. “made an outcry of domestic violence” to her CASA
worker, Defendant Laura Moore, which was then relayed to them. (Defs.’ Mot. Summ. J., Dkt. 33 at
8). The TDFPS Defendants provide inconsistent accounts of what Moore told them F.K. had said.
In her declaration, Defendant Jeanette Zimmermann states that “Ms. Moore . . . advised that F.K.
had . . . told her that Mr. Burns lived at home,” but makes no mention of Moore relaying an outcry
of abuse. (Zimmermann Decl. ¶ 12, Dkt. 33-2 at 4). Defendant Kelli Sandoval attests that Moore
conveyed that F.K. had said “that Mr. Burns hit Ms. Kalmus with a belt and that Ms. Kalmus had hit
Mr. Burns when he was driving their car,” but makes no mention of Moore relaying that Burns had
abused F.K. (Sandoval Decl. ¶ 15, Dkt. 33-1 at 4). Sandoval’s declaration is consistent with the
report she submitted to the Fayette County District Court. (See Report to the Court, Dkt. 34-10 at
1). Defendants Karin Harbers and Jessica Jackson, on the other hand, both attest they heard,
without specifying from whom, “F.K. had made an outcry of domestic violence between Ms.
Kalmus and Mr. Burns as well as physical abuse of herself.” (Harbers Decl. ¶ 12, Dkt. 33-3 at 3;
Decl. Jackson Decl. ¶ 12, Dkt. 33-4 at 3). Notably, when Harbers testified in state court she was
asked to explain the basis for the removal of K.R.B. from her home and she responded in full,
“There were concerns about the state of the home that Ms. Kalmus was residing in, as well as
concerns about whether or not Mr. Burns was actually at the residence.” (Tr. Mot. Reconsideration
53:4-9, Dkt. 43-5 at 53). In her testimony, Harbers did not mention an outcry of abuse.
The Court is required to construe the evidence in the most favorable to Plaintiffs and
therefore assumes F.K.’s outcry of abuse was limited to report her parents hitting each other, as
stated in Sandoval’s declaration and her report to the Fayette County District Court. The Court finds
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that evidence of a limited incident of abuse between Kalmus and Burns is not evidence that K.R.B.
faced an imminent threat of physical abuse.
The Court now assesses this evidence in light of the six factors articulated by the Fifth
Circuit in Gates. First, the TDFPS Defendants have not presented evidence that they were unable to
obtain a court order. In their motion, the TDFPS Defendants assert that “obtaining a court order
was not feasible on April 22, 2013 (Monday).” (Defs.’ Mot. Summ. J., Dkt. 33 at 17). However, they
provide no evidence or explanation to substantiate this assertion. Second, any assessment of the
nature of the abuse, including its severity, duration and frequency, counsels against finding the
presence of exigent circumstances. In fact, there is no evidence in the record that K.R.B. has ever
been abused. While there is evidence that F.K. reported spousal abuse on the part of her parents,
this allegation appears limited to one or two isolated incidents of hitting. Third, an assessment of the
strength of the evidence supporting the allegations of abuse also clearly counsels against finding the
presence of exigent circumstances. The TDFPS Defendants acted based on the vague,
uncorroborated assertions of a four year old that were relayed to them through a third party. Fourth,
there is no evidence in the record that either parent was likely to flee with K.R.B. Neither party has
submitted evidence specifically relevant to the fifth and six factors, but the Court believes it fair to
assume there were at least some less drastic remedial measures available to TDFPS and that K.R.B.
suffered some harm from being taken away from her family and placed in state custody.
Having reviewed all of the evidence and construed it in the light most favorable to Plaintiffs,
the Court finds that Plaintiffs have shown the presence of fact issues as to whether the TDFPS
Defendants reasonably believed K.R.B. faced an imminent threat of physical abuse. Accordingly,
Plaintiffs have sufficiently demonstrated a violation of K.R.B.’s Fourth Amendment right to be free
from unreasonable seizures to overcome summary judgment.

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b. Qualified Immunity Step Two
The second step in the qualified immunity inquiry is to determine whether the right in question
was clearly established at the time of the defendant’s unconstitutional conduct. The Fifth Circuit’s
opinion in Wernecke is instructive on this front. In that case, the court determined the rule that
seizure of a child requires evidence to imminent danger was clearly established even before the Fifth
Circuit’s opinion in Gates:
The Gates decision articulated a standard for determining when some evidence
of danger rises to the level of an emergency justifying immediate removal, but
Gates was not the first case to require, at a minimum, some evidence of
imminent danger prior to removal. [Previous cases] clearly established that, at
the very least, some evidence of imminent danger to a child was required to
justify a warrantless seizure. . . . While . . . Gates gives additional guidance to
social workers, the essentials of what was required in June 2005 for a social
worker to effect a warrantless seizure . . . were clear. . . . . Fifth Circuit law
clearly established in June 2005 that a warrantless seizure of [a child]—in the
absence of any imminent danger—was a constitutional violation.
Wernecke, 591 F.3d 386 at 400 (internal citations omitted). If the defendants in Wernecke were
expected to understand that warrantless seizure of a child requires the presence of an imminent
threat, then clearly the TDFPS Defendants should be held to the same standard. This is particularly
true given that the Defendants here have the benefit of substantial case law, including the Fifth
Circuit’s decisions in Gates and Wernecke, that were not available to the Wernecke defendants.
Therefore, the TDFPS Defendants are not entitled to qualified immunity on Plaintiffs’ claim that
they unlawfully seized K.R.B.
3. Liability of Defendants Sandoval and Zimmermann
Defendants Kelli Sandoval and Jeanette Zimmerman argue that they were not involved in
the decision to remove K.R.B. and therefore, even if not entitled to qualified immunity, are not
liable for any claim arising from K.R.B.’s removal. Defendants Sandoval and Zimmermann were at
the time of K.R.B.’s removal employed by TDFPS’s conservatorship unit and, thus, were primarily
involved in the case due to TDFPS’s role as F.K.’s temporary managing conservator. In contrast,
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Defendants Jackson and Harbers were employed by TDFPS’s investigative unit and, at least in a
nominal sense, were responsible for making the decision to remove K.R.B., who at the time was not
in TDFPS’s custody. Nonetheless, Plaintiffs argue that both Sandoval and Zimmermann effectively
participated in the decision to remove K.R.B.
An official “may be held liable under § 1983 only if (1) he affirmatively participates in the
acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies that
causally result in the constitutional injury.” Gates, 537 F.3d at 435 (quoting Baker v. Putnal, 75 F.3d
190, 199 (5th Cir. 1996)). “Ordinarily, supervisors may not be held vicariously liable for
constitutional violations committed by subordinate employees.” Atteberry v. Nocona Gen. Hosp., 430
F.3d 245, 254 (5th Cir. 2005). “However, supervisors may be liable . . . when supervisors act, or fail
to act, with deliberate indifference to violations of others’ constitutional rights committed by their
subordinates.” Id.
Plaintiffs point out that Sandoval, by all accounts, was at Kalmus’s residence, with
Defendants Jackson and Harbers, when K.R.B. was removed. (Sandoval Decl. ¶ 17, Dkt. 33-1 at 45). In Kalmus’s declaration, she states “Defendants Sandoval, Jackson and Moore loaded K.R.B.
into Sandoval’s car” and “Sandoval left with K.R.B.” (Kalmus Decl. ¶ 6, Dkt. 43-1 at 1). Thus, the
Court easily concludes Plaintiffs have demonstrated the existence of a genuine issue of material fact
as to whether Defendant Sandoval affirmatively participated in the removal of K.R.B.
Zimmermann was not present when K.R.B. was removed, but was involved in her capacity
as Sandoval’s supervisor. Plaintiffs point to some evidence indicating that Sandoval was involved in
the process of assessing K.R.B.’s wellbeing and determining what actions, if any, TDFPS should take
to protect K.R.B. Zimmermann testified before the County Court of Law of Washington County
that she had been involved with Kalmus and both “her children.” (Tr. Mot. Reconsideration 39:911, Dkt. 43-5 at 39). She also testified she had observed Kalmus and K.R.B. together a handful of
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times and offered opinions about Kalmus’s treatment of K.R.B., including that K.RB. “was dressed
appropriately” and that Kalmus was “really diligent” about seeing to K.R.B.’s medical needs. (Id. at
48:15-24). When asked why K.R.B. was not removed from Kalmus as soon as she was born,
Sandoval testified, “That’s correct. We made a mistake.” (Id. at 41:8-18) (emphasis added). Moreover,
in her own declaration, Zimmmermann explains at length how a social worker in TDFPS’s
conservatorship unit is regularly “required to seek approval from his or her supervisor for certain
decisions and actions during a case.” (Zimmermann Decl. ¶ 4, Dkt. 33-2 at 2). In light of the
evidence submitted suggesting Sandoval, Zimmmermann’s subordinate, participated directly in
K.R.B.’s removal, it is reasonable to infer, given Zimmermann’s supervisory responsibilities, she
played some role in the decision to remove K.R.B. While this evidence is not overwhelming, the
Court concludes it is sufficient to establish a fact issue as to whether Zimmermann acted, or failed to
act, with deliberate indifference to the constitutional rights of Plaintiffs.
4. Rooker-Feldman Abstention
Finally, the TDFPS Defendants argue that this action is barred the Rooker-Feldman abstention
doctrine. The Rooker-Feldman doctrine “directs that federal district courts lack jurisdiction to
entertain collateral attacks on state court judgments.” Saloom v. Tex. Dep’t of Family & Child Protective
Servs., 578 F. App’x 426, 428–29 (5th Cir. 2014) (quoting Liedtke v. State Bar of Tex., 18 F.3d 315, 317
(5th Cir. 1994)). The doctrine “is ‘narrow’ and only applies when the plaintiff seeks the ‘review and
rejection’ of a state court judgment.” Id. (quoting Exxon Mobil Corp. v. Saudi Basic. Indus. Corp., 544
U.S. 280, 284 (2005)). Moreover, “[a] federal lawsuit is not barred if the alleged injuries were caused
by the defendants’ actions rather than by the state court judgment, even if the defendants’ actions
led to the state court judgment.” Id.
The Rooker-Feldman doctrine is inapplicable here for two reasons. First, the state court
overseeing the suit affecting the parent-child relationship with regard to K.R.B. never entered a
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judgment. TDFPS voluntarily dismissed the suit and K.R.B. has been returned to Kalmus.
Accordingly, there is no state judgment for Plaintiffs to challenge. Second, the state court action and
this federal action involve distinct issues. The state court’s intermediary orders pertain to the
question of whether TDFPS had the right to prospectively retain custody of K.R.B. under the terms
of the Texas Family Code. This lawsuit involves the separate question of whether the initial decision
to seize K.R.B. without a warrant is consistent with the Fourth and Fourteenth Amendments.
Accordingly, this action does not seek to vacate an order of the state court, even if the two actions
involve similar legal standards and overlapping factual issues. See Thomas v. Tex. Dep’t of Family &
Protective Servs., 427 F. App’x 309, 313 (5th Cir. 2011) (“We cannot accept . . . [this ]suit is merely an
attempt to shoehorn a parent-child relations dispute that is pending in state court into a civil rights
complaint. . . . Appellants have made claims asserting federal constitutional violations, and seek
monetary relief and injunctive relief to prevent further allegedly unconstitutional searches and
seizures. The mere fact that the underlying dispute arose from an issue concerning a parent—child
relationship does not destroy a federal court’s jurisdiction over a properly pleaded constitutional
claim.”).
The Fifth Circuit’s holding in Saloom v. Texas Department of Family & Child Protective Services is
dispositive on this point:
Here, [the plaintiff] does not seek the review or rejection of the state court’s
custody order in the amended complaint. Instead, she challenges the actions
taken by the defendants before the state court entered any orders, such as the
defendants' initial non-judicial seizure of her son . . . . [She] seeks damages for
injuries caused by the defendants' actions rather than by the state court
judgment. . . .The lawsuit is not barred simply because the defendants' actions
allegedly led to the state court judgment. Therefore, the district court should
not have found that [her] suit was barred by the Rooker–Feldman doctrine.
578 F. App’x 426, 429 (5th Cir. 2014) (internal citations omitted).
The Court therefore concludes TDFPS Defendants’ motion for summary judgment should
be denied.
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IV. Conclusion
Plaintiffs’ Second Motion for Leave to Amend Complaint (Dkt. 42) is hereby GRANTED.
All claims and causes of action not asserted in the Second Amended Complaint are dismissed with
prejudice. All pleadings responsive to the First Amended Complaint are construed as responsive to
the Second Amended Complaint.
Defendant Laura Moore’s No Evidence Motion for Summary Judgment (Dkt. 31) is hereby
GRANTED. Defendant Laura Moore’ Motion to Dismiss (Dkt. 30) is hereby DISMISSED AS
MOOT.
Defendants Jeanette Zimmermann, Karin Harbers, Jessica Jackson, and Kelly Sandoval’s
Motion for Summary Judgment on the Basis of Qualified Immunity is hereby DENIED.
SIGNED on November 1, 2016.
_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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