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Montes v. Fernandez

United States District Court, D. Arizona

March 13, 2019

Joseph Daniel Montes, Plaintiff,
v.
Lora Morales Fernandez; Brenda Lemley Spence; and Deena Steinmetz, Defendants.

          ORDER

          DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         I. Plaintiff's Allegations.

         Plaintiff 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.[1]

         II. Summary Judgment Standard.

         A party 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.

         III. Defendants' Summary Judgment Motion.

         A. Fourteenth Amendment.

         Parents 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).

         Defendants 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.[2]

         B. The Undisputed Facts.

         Defendants' 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.

         On 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. ¶¶ 13-21.

         The 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. ...


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