Rogers v. County of San Joaquin , 487 F.3d 1288 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS ROGERS; NICOLE ROGERS, 
an individual; STEVEN KAHNCOCK,
Guardian ad litem for minors
Thomas R. Rogers and Shelby
Rogers,
Plaintiffs-Appellants,
v.
COUNTY OF SAN JOAQUIN;
CHARLOTTA ROYAL, individually No. 05-16071
and in her official capacity as
social worker for the County of  D.C. No.
CV-02-01961-DFL
San Joaquin Human Services
OPINION
Agency; DENISE WEST, individually
and in her official capacity as
social worker for the County of
San Joaquin Human Services
Agency; CITY OF LODI; DENNIS
LEWIS, individually and in his
capacity as police officer for the
City of Lodi,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Argued and Submitted
April 16, 2007—San Francisco, California
Filed May 29, 2007
Before: Warren J. Ferguson, Stephen Reinhardt, and
Milan D. Smith, Jr., Circuit Judges.
6313
6314 ROGERS v. COUNTY OF SAN JOAQUIN
Opinion by Judge Reinhardt
6316 ROGERS v. COUNTY OF SAN JOAQUIN
COUNSEL
David J. Beauvais, Oakland, California, for the plaintiffs-
appellants.
Daniel C. Cederborg, Office of the County Counsel, County
of San Joaquin, Stockton, California, for the defendants-
appellees.
ROGERS v. COUNTY OF SAN JOAQUIN 6317
OPINION
REINHARDT, Circuit Judge:
The Rogers family brought this action under 42 U.S.C.
§ 1983, alleging that the conduct of social worker Charlotta
Royal in removing the Rogers children from their home with-
out a warrant violated their Fourth and Fourteenth Amend-
ment rights. Both parties filed motions for summary
judgment, although the Rogerses’ was as to liability only. The
district court granted Royal’s motion on the basis of qualified
immunity. Because we hold that it was clearly established that
warrantless removal of children is permissible only in cases
of exigency, and that it would have been apparent to a reason-
able social worker that no exigency existed in this case, we
reverse both the grant of summary judgment to Royal and the
denial of partial summary judgment to the Rogerses.
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2001, San Joaquin County Child Protective
Services received a report of child neglect in the Rogers
home. The caller stated that three-year-old Shelby Rogers
(“Shelby”) and five-year-old Thomas Rogers, Jr. (“Tommy”)
were not toilet-trained, were locked in their rooms at night
and in a room at their parents’ business during the day, were
not receiving medical or dental care, that Tommy had lost his
teeth due to bottle rot, that Shelby was still being fed with a
bottle, that their home was dirty and maggot-infested, and that
there were unsecured guns in the home. The intake unit did
not view this report as requiring an emergency response, but
rather classified it as warranting a response within ten days.1
Three days later, before any action had been taken to investi-
1
Royal testified that the criteria that separate an emergency response
from a ten-day response case varies, but examples of emergency response
situations would be physical abuse or sexual abuse when the perpetrator
is in the home, or the absence of food from the home.
6318 ROGERS v. COUNTY OF SAN JOAQUIN
gate the report, Child Protective Services received a second,
similar report regarding the Rogers children and likewise clas-
sified it as requiring a ten-day response.
On August 31, Royal, a social worker with Child Protective
Services, visited the Rogers home, but, finding no one there,
departed without leaving a message or a note. She returned a
week later, on September 7 at 8:30 a.m. Observing that the
family was home, Royal called for the assistance of Lodi
Police and waited for the officers to arrive before making con-
tact with the family. Officer Dennis Lewis and at least one
other police officer responded.
The family was just getting up when Royal and the officers
entered their home.2 Royal claimed that following her entry
she heard Shelby knocking and asking for her mother from
inside a bedroom. The mother, Nicole Rogers (“Nicole”),
claims, however, that Shelby was neither knocking nor calling
for her.
Officer Lewis asked to see the whole family. Nicole went
to Shelby’s bedroom and unfastened a latch-type lock to open
the door. Shelby emerged from the room dressed in a diaper
that, according to Royal, appeared to be soiled. Nicole then
retrieved Tommy from his bedroom. Tommy emerged wear-
ing pajamas and a pull-up diaper. Royal saw a thumb lock
similar to those used in bathroom doors on the outside of
Tommy’s bedroom door. Royal believed that both children
had been locked in their bedrooms, but Nicole testified that
Tommy’s bedroom door was not locked. The father, Thomas
Rogers (“Thomas”), also got out of bed to talk with Royal and
Officer Lewis.
Royal asked why the children had locks on their bedroom
2
The parties debate whether the Rogerses consented to the entry, but
that issue is not before us on appeal. Thus, our decision does not apply to
that question, to the extent that it may still be viable in the district court.
ROGERS v. COUNTY OF SAN JOAQUIN 6319
doors. Nicole testified that she told Royal that they had never
locked Tommy’s door, that his room had a lock on the door
when they moved into the house, and that they had simply
never removed it. According to her testimony, she also stated
that they locked Shelby in her room at night because other-
wise she would roam the house and get into things while the
rest of the family was sleeping. However, Royal testified that
Nicole first stated that she locked the children in their rooms
only when she showered, and that only after Royal pointed
out that Nicole had not been showering when they arrived did
she say that she locked Shelby in at night. Royal testified that
she believed Nicole had tried to lie to her and that this con-
cerned her. She said that she was also concerned about the
children being locked in their bedrooms because it could
result in injury due to lack of supervision or as a result of a
fire, and could restrict their access to the bathroom. Royal told
the Rogerses that they would have to remove the locks.
Nicole testified that she agreed to do so, but Royal contended
that the Rogerses did not respond to her statement.
Royal asked why the children were still in diapers. The
Rogerses testified that they replied that they were “working
with” Tommy, and that while they put a pull-up diaper on him
at night, he was “doing good during the day.” They said that
Shelby was not yet toilet-trained. Royal testified, however,
that Nicole told her that “she hadn’t had time” to toilet-train
the children.
Royal and Officer Lewis inspected Tommy’s mouth.
Tommy suffered from severe bottle rot. Several of his teeth
were missing and his remaining teeth were yellow and
showed signs of decay. His mother acknowledged during her
deposition that Tommy’s mouth had looked “horrible.” Nicole
told Royal that Tommy had never complained of pain. She
said that a dentist had told her that Tommy needed surgery,
and she had scheduled an appointment but cancelled it out of
fear that Tommy would be harmed, after she and her husband
saw a television program about a child dying while under gen-
6320 ROGERS v. COUNTY OF SAN JOAQUIN
eral anaesthesia. Royal testified that she believed that this
meant the Rogerses were unwilling to take Tommy to the den-
tist.
Royal asked if the family had medical insurance. Accord-
ing to Nicole, she answered that they did not have medical
insurance at the moment but that she was waiting for an appli-
cation, at which point Royal asked for proof that she had ever
had insurance and Nicole showed her old membership cards
for Kaiser. Nicole testified that Royal then asked her if the
cards were active and she replied that they were not. Royal,
however, stated that Nicole first told her that they had medical
insurance and then attempted to deceive her by showing her
inactive cards when she asked for proof. This, according to
Royal, caused her further to doubt Nicole’s honesty.
Royal observed that the children had multiple circular
bruises on their legs. Nicole stated that the children were
always falling down. Royal also observed that Shelby had a
large scratch on the side of her face. Nicole and Thomas told
Royal that Shelby sustained the scratch when she fell off a
chair at their workplace. They explained that they worked in
an auto shop in San Leandro and that they took the children
with them to work every day. Royal testified that she did not
think that the children were being physically abused. She was
concerned, however, that, because the children were taken to
their parents’ place of business every day, they were isolated
and would not be seen by pre-school teachers or others who
would be required to report suspected abuse.
Royal also observed that Shelby had unkempt hair that
appeared to be thin and missing in some areas and that both
children were very pale. She believed that the thinning hair
could indicate malnutrition and the pale skin could be due to
a vitamin deficiency or lack of sunlight. She observed, how-
ever, that the refrigerator and kitchen cabinets were well
stocked with food and that the bathroom had the necessary
toiletries. She told the Rogerses that the children looked very
ROGERS v. COUNTY OF SAN JOAQUIN 6321
pale and sickly, and that they could be suffering from a vita-
min deficiency or from lack of sunlight. Nicole responded that
their pale complexion and Shelby’s thin hair were due to the
fact that their father has pale skin and fine hair.
The parties dispute the condition of the Rogers home.
Royal and Officer Lewis stated that they observed piles of
dirty dishes and an overflowing garbage receptacle in the
kitchen, as well as piles of dirty clothing scattered about the
kitchen, living room and bedrooms. Thomas testified, how-
ever, that the garbage receptacles were only partly full. He
also testified that the reason for the piles of clothing was that
the washer and dryer were broken.
Royal stated that she observed that the children had dirty
bedding and mattresses without frames. In Shelby’s room, she
saw clothing that she believed was dirty scattered on the floor.
The Rogerses do not dispute that the children did not have
bedframes, but testified that the clothing and bedding were
clean. Thomas also testified that Shelby’s clothes were on the
floor because she had a habit of pulling them out of her
dresser to play dress-up. In Tommy’s room, Royal observed
a brown substance that she believed to be feces smeared on
the wall and a substance that she thought was rat droppings
on the floor. Officer Lewis observed what he thought was
vomit in the bottom drawer of a night stand. Tommy told
Royal that the substance on the wall was a smashed graham
cracker. The Rogerses testified that the alleged rat droppings
on the floor actually consisted of small grains of filling that
came out of a broken hacky sack ball, and the purported
vomit, like the smears on the wall, was the remains of broken
graham crackers.
There were five guns in the Rogerses’ bedroom, four of
which were unloaded and stored in the closet, and one of
which was loaded and kept in the dresser next to the Rog-
erses’ bed. Thomas testified that ammunition for the guns
remained in the closet in a childproof container. Nicole testi-
6322 ROGERS v. COUNTY OF SAN JOAQUIN
fied that the gun in the dresser had a trigger lock with a key,
and the key was located in a jewelry box mounted on the wall.
Royal stated that after her conversation with the Rogerses
and her observations of the condition of the home, she
believed that the Rogers children had been neglected for some
time and that there was an imminent risk to their physical
health and safety. Based on this opinion, Royal chose to
remove them from their home immediately and place them in
the custody of Child Protective Services.3 Royal did not offer
the Rogerses alternative accommodations, medical referrals
for the children, or services from the agency whereby the chil-
dren could remain at home. Royal also did not obtain a war-
rant.
Royal called for a car seat and, when it arrived, transported
the children to Lodi Memorial Hospital. She testified that
Tommy complained of mouth pain while at the hospital. She
also testified that an attending nurse stated that the children
appeared to be malnourished and suffering from a vitamin
deficiency. The doctor who saw the children stated in his
evaluation that both were “alert” and “playful,” but had “poor
hygiene.” The doctor wrote that Tommy had “many teeth
missing” and that Shelby’s hair was “sparse, brittle.” The doc-
tor also wrote that the purpose of the visit was “medical clear-
ance prior to [Child Protective Services] placement” and
classified the visit as routine rather than emergency.
After the medical clearance the children were placed in a
shelter. Tommy did not receive any dental care that day or at
any time while in the County’s custody. The children were
returned to their parents on September 20, 2001, after the
3
Royal and Officer Lewis dispute who made the decision to remove the
children, with both claiming that the other did so. Royal concedes, how-
ever, that this factual dispute is not relevant to the outcome of this appeal
because she was ultimately responsible for the decision and could have
countermanded it if she had disagreed.
ROGERS v. COUNTY OF SAN JOAQUIN 6323
Rogerses made changes to their home and lifestyle as required
by Child Protective Services, obtained medical insurance, and
arranged for Tommy to have oral surgery. As a result of their
time in custody, according to their mother, the children
became concerned about being separated from their parents.
Nicole further testified that Tommy, in particular, “lost trust
in people in general” because of the experience.
The Rogerses appealed the grant of summary judgment to
Royal as well as the denial of their own motion for partial
summary judgment as to Royal.
JURISDICTION
The grant of summary judgment is a final order and thereby
gives us jurisdiction over both the grant of summary judgment
to Royal and the denial of partial summary judgment to the
Rogerses. See Jones-Hamilton Co. v. Beazer Materials &
Servs., Inc., 973 F.2d 688, 694 (9th Cir. 1992). We have
declined to exercise our jurisdiction over denials of summary
judgment when reviewing orders granting summary judgment
where the record has not been fully developed. Id. at 694 n.2.
Such is not the case here. Moreover, both sides agree that the
denial of the Rogerses’ motion is properly before us on
appeal.
QUALIFIED IMMUNITY
I. Constitutional violation:
[1] In assessing a claim of qualified immunity, we must
first decide whether “the [official’s] conduct violated a consti-
tutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001).
“Parents and children have a well-elaborated constitutional
right to live together without governmental interference.”
Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000). “The
Fourteenth Amendment guarantees that parents will not be
separated from their children without due process of law
6324 ROGERS v. COUNTY OF SAN JOAQUIN
except in emergencies.” Mabe v. San Bernardino County,
Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir.
2001). Officials violate this right if they remove a child from
the home absent “information at the time of the seizure that
establishes ‘reasonable cause to believe that the child is in
imminent danger of serious bodily injury and that the scope
of the intrusion is reasonably necessary to avert that specific
injury.’ ” Id. at 1106 (quoting Wallis, 202 F.3d at 1138). The
Fourth Amendment also protects children from removal from
their homes absent such a showing. Doe v. Lebbos, 348 F.3d
820, 827 n.9 (9th Cir. 2003). Officials, including social work-
ers, who remove a child from its home without a warrant must
have reasonable cause to believe that the child is likely to
experience serious bodily harm in the time that would be
required to obtain a warrant. Mabe, 237 F.3d at 1108.
[2] Serious allegations of abuse that have been investigated
and corroborated usually give rise to a “reasonable inference
of imminent danger sufficient to justify taking children into
temporary custody” if they might again be beaten or molested
during the time it would take to get a warrant. Ram v. Rubin,
118 F.3d 1306, 1311 (9th Cir. 1997). However, an official’s
prior willingness to leave the children in their home militates
against a finding of exigency, as does information that the
abuse occurs only on certain dates or at certain times of day.
Mabe, 237 F.3d at 1108; Wallis, 202 F.3d at 1140.
[3] Under this standard, the district court correctly con-
cluded that Tommy’s bottle rot, the children’s malnourish-
ment, and the disorderly conditions in the home did not
present an imminent risk of serious bodily harm. This is so
whether the disputed factual questions are resolved in favor of
appellants or defendants.
[4] At oral argument, Royal conceded that she could have
obtained a warrant within hours. There is no indication in the
record that so short a delay could have resulted in a signifi-
cant worsening of the children’s physical conditions or an
ROGERS v. COUNTY OF SAN JOAQUIN 6325
increase in the prospects of long-term harm. Royal testified
that she thought, after seeing Tommy’s mouth, that he could
have an abscess and that he almost certainly had an infection.
However, she does not assert that she believed that his condi-
tion would worsen if she delayed taking him into custody in
order to obtain a warrant. Tommy’s teeth may have hurt, but,
if so, he had likely been experiencing such pain for a consid-
erable period of time and the “pain” was not so serious that
he ceased to be “playful” and “alert.” Under such circum-
stances, any pain Tommy may have experienced cannot jus-
tify a failure to obtain a warrant or the peremptory removal
of the children from their parents’ custody. Similarly, Royal’s
testimony, even viewed in the light most favorable to her,
does not suggest that the malnourishment in this case was suf-
ficiently serious to justify the children’s immediate removal
as both were alert and active, and there was no indication of
imminent danger. It is worth noting in this respect that when
the children eventually reached the hospital, the doctor did not
suggest any immediate treatment for Tommy’s bottle rot or
Shelby’s malnutrition.4
[5] Nor do the other circumstances cited by Royal support
a finding of exigency, even if her version of all the disputed
facts is accepted as true, and even if all of the conditions
observed by her are considered collectively. There was no
imminent danger of serious bodily harm as a result of Shelby
being locked in her room, as this occurred only at night. Cf.
Mabe, 237 F.3d at 1108 (concluding that the sexual abuse
alleged in that case occurred only at night, so there was time
to get a warrant before the child would be in imminent dan-
ger). The allegations that the children were also locked up
during the day at their parents’ workplace, even if true, do not
4
Although only the information that Royal had at the time that she made
the challenged decision is relevant to the qualified immunity inquiry, the
doctor’s response is relevant to the question of how serious the children’s
conditions would have appeared to the reasonable social worker. Baker v.
Racansky, 887 F.2d 183, 185 n.1 (9th Cir. 1989).
6326 ROGERS v. COUNTY OF SAN JOAQUIN
support a finding of imminent risk of serious bodily harm.
The chances of accidental injury or of a fire breaking out at
the Rogerses’ workplace during the few hours that it would
take Royal to obtain a warrant were very low. So remote a
risk does not establish reasonable cause to believe that the
children were in immediate danger.
[6] Similarly, the conditions of the home, even if as unsani-
tary as Royal asserts, fail to indicate any imminent risk of
serious bodily harm. Like the bottle rot, the mess in the Rog-
ers living quarters, to the extent that it may have existed, was
a chronic, ongoing problem. The presence of disorderliness
and a small amount of droppings, feces, and other matter may
increase the risk of eventual illness, but there is no indication
in the record of any particular risk that the Rogers children
would become seriously ill during the few hours that it would
take Royal to obtain a warrant. Likewise, it would have pres-
ented no risk to the children to delay the commencement of
their toilet-training for a few hours while Royal followed the
requisite legal procedures.
[7] Royal also relies on the family’s lack of medical insur-
ance and daycare. These conditions present no imminent dan-
ger of harm, and Royal does not argue otherwise. Thus, they,
too, provide no support for the warrantless removal. It would
certainly be preferable for all children to have medical insur-
ance and quality daycare; given the absence of universal pro-
vision of such services, however, reliance on factors so
closely related to economic status as a justification for
removal would border on the unconstitutional.
[8] Royal also argues that the cumulative effect of all of the
problems in the Rogers household placed the children in
imminent danger. However, her argument falls far short of the
mark. Even viewing the factors cumulatively, we have no
doubt that there was no imminent danger to either or both of
the Rogers children.
ROGERS v. COUNTY OF SAN JOAQUIN 6327
[9] Our conclusion that no exigency existed here is also
supported by the fact that the Child Protective Services
delayed in investigating the case and in removing the chil-
dren. See Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir.
1999) (holding that a 14-day delay by social workers in enter-
ing the family home to investigate a report of abuse is evi-
dence of lack of exigency). Here, the concerned officials
classified the case as a ten-day response, indicating that they
did not think that any exigency existed. In fact, Royal waited
until eleven days after the first referral to visit the house for
the first time, and an additional seven days, following the first
aborted visit, before returning, for a total delay of eighteen
days, four days longer than the delay in Calabretta. That nei-
ther Royal nor the other staff members thought that the allega-
tions required immediate action militates against a finding of
exigency. When Royal finally returned to the Rogers home,
the evidence she observed may, at most, have supported the
anonymous tips received by the Services; it is evident, how-
ever, that it provided no basis for concern regarding any addi-
tional cause of imminent injuries. Royal’s actions after seeing
the children also tend to support the view that the circum-
stances were not exigent. Instead of taking prompt action to
obtain medical care as we would have expected her to do if
she believed that the children faced imminent danger of seri-
ous harm to their health, Royal spent close to two hours talk-
ing with the family before deciding to remove the children
from the parental home. She further delayed in order to wait
for someone to bring a car seat rather than calling for an
ambulance or other emergency transport. Although Royal did
take the children to the hospital when she finally decided to
place them in custody, the visit was treated by hospital staff
as a routine screening visit, not as an emergency call.
[10] In sum, whether we accept the version of the facts
offered by the Rogerses or by Royal, there is no support at all
in the record for the conclusion that the Rogers children were
likely in imminent danger of serious bodily harm. Thus, we
hold that, under any view of the facts, the Rogerses’ Fourth
6328 ROGERS v. COUNTY OF SAN JOAQUIN
and Fourteenth Amendment rights were violated when Royal
removed the children without a warrant.
II. Reasonable Official:
[11] In order to assess Royal’s claim of qualified immunity,
we must conduct a two-part analysis: “1) Was the law govern-
ing the official’s conduct clearly established? 2) Under that
law, could a reasonable [official] have believed the conduct
was lawful?” Ram, 118 F.3d at 1310 (quoting Carnell v.
Grimm, 74 F.3d 977, 978 (9th Cir. 1996)). The law was
clearly established at the time of the events in this case that
a child could not be removed from the home without prior
judicial authorization absent evidence of “imminent danger of
serious bodily injury and [unless] the scope of the intrusion is
reasonably necessary to avert that specific injury.” Mabe, 237
F.3d at 1106; Wallis, 202 F.3d at 1138; Ram, 118 F.3d at
1310.
[12] Notwithstanding this clearly established law, the dis-
trict court granted Royal qualified immunity, holding that the
application of the law to medical neglect was not clearly
established. However, it is not necessary that a case be on “all
fours” with the facts of the instant case. A right is clearly
established if “[t]he contours of the right [are] sufficiently
clear that a reasonable official would understand that what he
is doing violates that right.” Saucier, 533 U.S. at 202 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Prior to
the events in question, we had repeatedly held that a family’s
rights were violated if the children were removed absent an
imminent risk of serious bodily harm. A reasonable social
worker would need nothing more to understand that she may
not remove a child from its home on the basis of a medical
condition that does not present such a risk.
[13] The district court appeared to be concerned that social
workers may have difficulty assessing the imminence of a
threat from a particular malady. On that basis, it concluded
ROGERS v. COUNTY OF SAN JOAQUIN 6329
that without a case specifically analyzing exigency in cases of
bottle rot and malnutrition social workers would not be able
to determine whether those conditions present an imminent
risk of serious bodily harm. Even if it might be difficult for
a social worker without medical training to assess the immi-
nence of the threat posed by some dangerous maladies, such
is not the case here. One need not be a licenced physician to
recognize that in the case of a child who is both alert and
active neither bottle rot nor malnutrition is the type of condi-
tion that will lead to serious injury if not corrected within a
matter of hours. A reasonable social worker could reach no
other conclusion. Even Royal stated during her deposition that
in her opinion bottle rot does not amount to exigency. Thus,
because a reasonable social worker would have understood
that the children faced no imminent risk of serious bodily
harm, as required by clearly established law, the district court
erred in granting qualified immunity to Royal and denying
partial summary judgment to the Rogerses.
CONCLUSION
Child abuse and neglect are very serious problems. We
applaud the efforts of social workers to address these matters
and to protect the vulnerable victims of these crimes. “No one
can doubt the importance of this goal.” Cf. Mincey v. Arizona,
437 U.S. 385, 393 (1978). However, the rights of families to
be free from governmental interference and arbitrary state
action are also important. Thus, we must balance, on the one
hand, the need to protect children from abuse and neglect and,
on the other, the preservation of the essential privacy and lib-
erty interests that families are guaranteed under both the
Fourth and Fourteenth Amendments of our Constitution.
Assuming Royal’s version of the facts, the Rogers children
were in a sorry state and suffering from neglect of a type that
could, if their parents’ conduct was not modified within a rea-
sonable period of time, lead to long-term harm. Still, the con-
ditions here did not present an imminent risk of serious bodily
6330 ROGERS v. COUNTY OF SAN JOAQUIN
harm. It would have taken Royal only a few hours to obtain
a warrant. In removing the Rogers children from their home
without obtaining judicial authorization, Royal violated the
Rogerses’ clearly established Fourth and Fourteenth Amend-
ment rights. The lack of exigency would have been apparent
to any reasonable social worker. Accordingly, we conclude
that the district court erred in granting qualified immunity to
Royal and in denying the Rogerses’ motion for partial sum-
mary judgment as to Royal.
We REVERSE the grant of summary judgment to Royal
and we likewise REVERSE the denial of the Rogerses’ partial
summary judgment motion with respect to her. We REMAND
with instructions to grant partial summary judgment to the
Rogerses and for further proceedings consistent with this
opinion.
REVERSED and REMANDED.