United States District Court, D. Arizona
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE.
Joseph Montes filed a pro se civil rights complaint against
Defendants Lora Morales Fernandez, Brenda Lemley Spence, and
Deena Steinmetz. Doc. 1. The Court dismissed the claims
against Fernandez. Doc. 36. Spence and Steinmetz have moved
for summary judgment on the remaining claims. Doc. 47.
Plaintiff has not responded. Defendants request oral argument
(Doc. 54), but it will not aid the Court's decision.
See Fed. R. Civ. P. 78(b); LRCiv 7.2(f). For reasons
stated below, the Court will grant the motion.
and his wife Veronica have three minor children: XDP, AFM and
JDM. Plaintiff alleges that on April 29, 2017, Fernandez
(Veronica's aunt) falsely complained to the Arizona
Department of Child Safety (“DCS”) that he and
Veronica were mistreating the children. Doc. 1 at 2. As a
result of this complaint, DCS supervisor Spence authorized
the removal of the children from his custody. Id. On
May 2, 2017, DCS investigative specialist Steinmetz removed
the children from their schools and took them into temporary
protective custody. Id. Plaintiff claims that the
children were in no imminent danger when they were taken into
DCS custody without a court order. Id. at 1. He
asserts claims for violations of his Fourth and Fourteenth
Amendment rights pursuant to 42 U.S.C. § 1983, and seeks
$5 million in damages. Id. at 3.
Summary Judgment Standard.
seeking summary judgment “bears the initial
responsibility of informing the 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). Summary judgment is appropriate if the
evidence, viewed in the light most favorable to the nonmoving
party, shows there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is
also appropriate against a party who “fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322.
Defendants' Summary Judgment Motion.
have a well-established Fourteenth Amendment right to custody
of their children. See Troxel v. Granville, 530 U.S.
57, 66 (2000) (citing cases). The Fourteenth Amendment
“provide[s] a guarantee ‘that parents will not be
separated from their children without due process of law
except in emergencies.'” Keates v. Koile,
883 F.3d 1228, 1236-37 (9th Cir. 2018) (quoting Mabe v.
San Bernardino Cty., 237 F.3d 1101, 1107-09 (9th Cir.
2001)). State officials “may not remove children from
their parents without a court order unless they have
‘information at the time of the seizure that
establishes reasonable cause to believe that the [children
are] in imminent danger of serious bodily injury.'”
Id. (quoting Rogers v. Cty. of San Joaquin,
487 F.3d 1288, 1294 (9th Cir. 2007)). “This requirement
‘balances, on the one hand, the need to protect
children from abuse and neglect and, on the other, the
preservation of the essential . . . liberty interests that
families are guaranteed under [the] Fourteenth
Amendment[.]'” Demaree v. Pederson, 887
F.3d 870, 878 (9th Cir. 2018) (quoting Rogers, 487
F.3d at 1297).
argue that they did not violate Plaintiff's Fourteenth
Amendment rights because the undisputed facts show that the
children were under an imminent threat of serious physical
harm when they were removed from parental custody. Doc. 47 at
7-13. The Court agrees.
The Undisputed Facts.
evidence establishes the following facts. Plaintiff and
Veronica have a history of substance abuse and domestic
violence. Doc. 48 ¶¶ 28-34. On April 24, 2017,
Plaintiff became upset with Veronica after she spent a couple
days drinking at a friend's house and could not remember
how to get home. On April 26, 2017, Veronica left the
children home alone when XDP refused to clean up a mess. The
police were there when Plaintiff arrived home, and he told
them that Veronica had become mentally unstable over the past
two weeks and would get very angry with the children. The
April 26 incident was caused in part by one of XDP's fits
of rage, and dishes, marbles, and other objects were strewn
about the house. Id. ¶¶ 9-11.
April 28, Veronica became very angry with the children's
messes and slapped XDP for talking back to her. XDP began
screaming, and he and Veronica threw food at each other. XDP
called 911. The police arrived to find Veronica running
around the house screaming and crying. The children explained
that they were fearful of Veronica because she had called
them “devil children” and thrown things at them.
Plaintiff stated that Veronica was very angry, delusional,
and depressed, but refused to take medication. Suspecting
that Veronica was using illicit drugs, the police determined
that she was a danger to herself and the children. The police
prepared a petition to involuntarily admit her to an urgent
psychiatric care center. Veronica tested positive for
methamphetamine upon admission to the center. Id.
center reported the incident to DCS the next day. A DCS
hotline specialist analyzed the report and marked it a
“Priority 3” because Veronica was the aggressor.
Priority 3 reports require a DCS field investigation within
72 hours. ...