Hannah David v. Gina Kaulukukui ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HANNAH DAVID, Individually and on No. 21-15731
behalf of her minor daughter B.D.,
Plaintiff-Appellee, D.C. No.
1:20-cv-00002-
v. JMS-WRP
GINA KAULUKUKUI,
Defendant-Appellant, OPINION
and
CATHY BETTS, Director of the
Department of Human Resources,
State of Hawaii; AIMEE LESKOVIC;
SHAWN LATHROP; IWALANI
KAAUWAI-HERROD; PENNY CHO;
DINO ST. AUGUSTINE; WILLIAM
KEAHIOLALO; SHAYLENE ISERI;
DOES, Jane and/or John Does 1–25;
Doe Entities 1–10,
Defendants.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief District Judge, Presiding
Argued and Submitted February 15, 2022
Honolulu, Hawaii
2 DAVID V. KAULUKUKUI
Filed June 27, 2022
Before: Michael Daly Hawkins, Ryan D. Nelson, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Forrest
SUMMARY *
Civil Rights
The panel affirmed the district court’s denial of
defendant’s motion to dismiss, on the basis of qualified
immunity, an action brought pursuant to 42 U.S.C. § 1983alleging violations of plaintiff’s right to familial association.
Plaintiff, individually and on behalf of her minor
daughter, alleged that defendant Gina Kaulukukui, an
employee of the Kauai County Police Department, deceived
the Hawaii family court when she assisted the non-custodial
father of plaintiff’s daughter in obtaining a temporary
restraining order that prevented plaintiff, the sole custodial
parent, from having any contact with her daughter. Plaintiff
further alleged that Kaulukukui conspired with the non-
custodial father and state officials to extract the daughter
from her school and place her in the father’s custody without
plaintiff’s knowledge or a court order.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DAVID V. KAULUKUKUI 3
The panel stated that although Kaulukukui may
ultimately prove that plaintiff’s allegations were false, at the
pleading stage, the panel must accept all well-pleaded
factual allegations as true. When the alleged events in this
case occurred, the law clearly established that a parent and
child’s constitutional right to familial association is violated
when a state official interferes with a parent’s lawful custody
through judicial deception. The law also clearly established
that a state official cannot remove a child from a lawful
custodial parent without consent or a court order unless the
official has reasonable cause to believe that the child is in
imminent danger and, even then, the scope and duration of
the removal must be reasonable. Here, plaintiff plausibly
alleged that Kaulukukui violated these rights by deliberately
failing to inform the family court of a custody order when
assisting the non-custodial father in obtaining a temporary
restraining order that prevented contact between plaintiff
and her daughter, and by assisting the other defendants in
removing plaintiff’s daughter from plaintiff’s custody and
separating them for 21 days. As such, Kaulukukui was not
entitled qualified immunity at this early stage.
COUNSEL
Charles A. Foster (argued), Office of the County Attorney,
Lihue, Hawaii, for Defendant-Appellant.
Kevin A. Yolken (argued), Eric A. Seitz, and Jonathan M.F.
Loo, Honolulu, Hawaii, for Plaintiff-Appellee.
4 DAVID V. KAULUKUKUI
OPINION
FORREST, Circuit Judge:
If what Plaintiff Hannah David alleges is true, she and
her daughter suffered a blatant abuse of government power.
David claims that Defendant Gina Kaulukukui, an employee
of the Kauai County Police Department, deceived the
Hawaii family court when she assisted the non-custodial
father of David’s daughter in obtaining a temporary
restraining order (TRO) that prevented David, the sole
custodial parent, from having any contact with her daughter.
David further claims that Kaulukukui conspired with the
father (who works for the Kauai County Fire Department)
and other state officials to extract the daughter from her
school and place her in the father’s custody on a different
island—all without David’s knowledge or a court order—
and then prevented David and her daughter from having any
contact for 21 days.
Whether these shocking allegations are true is for
another day. The question here is whether qualified
immunity requires dismissal of David’s denial-of-familial-
association claim brought against Kaulukukui under
42 U.S.C. § 1983. Because we conclude that David and her
daughter’s constitutional right to familial association was
clearly established such that a reasonable official in
Kaulukukui’s shoes would have understood that her alleged
actions were a constitutional violation, we affirm the district
court’s denial of Kaulukukui’s motion to dismiss. David and
her daughter deserve nothing less than the opportunity to
have their claims heard.
DAVID V. KAULUKUKUI 5
I. BACKGROUND
As this appeal comes to us from a denial of Kaulukukui’s
motion to dismiss, we must “accept[] as true all well-pleaded
allegations of material fact, and construe[] them in the light
most favorable to [David].” Hernandez v. City of San Jose,
897 F.3d 1125, 1132 (9th Cir. 2018) (quoting Padilla v. Yoo,
678 F.3d 748, 757 (9th Cir. 2012)).
A. Family Background and Custody Order
David is the mother and sole custodial parent of her 11-
year-old daughter, B.D. William Keahiolalo is B.D.’s
biological father. David alleges that Keahiolalo raped and
impregnated her when she was underage. David reported the
alleged rape, but no criminal charges were filed against
Keahiolalo. Shortly after B.D.’s birth, David alleged that
Keahiolalo abused B.D. In the wake of these serious
allegations, the parties engaged in “prolonged and bitter
litigation in the Family Court,” and “[i]n order to avoid an
evidentiary hearing on the custody and abuse allegations,”
Keahiolalo “agreed to stipulate to any and all of [David]’s
demands with regard to the custody of B.D.”
In 2012, the parties filed a stipulated custody agreement
with the Hawaii family court, and the court issued an order
granting David full legal and physical custody of B.D.
(Custody Order). The Custody Order denied Keahiolalo
visitation rights and ordered that he “stay away from and
have no contacts whatsoever with [David].” 1 The Custody
Order also contained a provision stating that “in the absence
1
David alleges that the Custody Order also prohibits Keahiolalo
from having contact with B.D., but the district court noted that the
redacted version of the Order appears to prohibit contact only with
David.
6 DAVID V. KAULUKUKUI
of a compelling emergency that affects [B.D.’s] health or
safety, Mr. Keahiolalo stipulates and agrees not to file any
motions in the Family Court of the State of Hawaii or
another jurisdiction.” The Custody Order “has never been
amended, modified, or vacated, and remains in full force and
effect.”
B. Altercation and TRO
During the relevant period, David and B.D. lived on the
island of Hawaii, while Keahiolalo lived on Kauai. From
issuance of the Custody Order until November 2019,
Keahiolalo had “virtually no contacts” with his daughter.
However, in November 2019, David and B.D. flew to Kauai
for Thanksgiving to visit David’s family. While there, B.D.
participated in a modeling show at a local shopping center.
Keahiolalo showed up at this event with two of his other
daughters and introduced himself to B.D. David ordered to
him leave, but he “continued to follow [David] and B.D.,
encouraged his daughters to approach B.D., and videotaped
the children’s reaction.”
The following day, David took B.D. to Keahiolalo’s
workplace and demanded that he apologize to B.D. When he
refused, David yelled at, pushed, and taunted Keahiolalo
until the police arrived and arrested her on misdemeanor
harassment and third-degree assault charges. After David
posted bail, she and B.D. returned to the island of Hawaii.
A few days after the altercation, Keahiolalo met with
Kaulukukui at the Kauai County Police Department.
Kaulukukui prepared and filed a petition for a protective
order (the Petition) in the Hawaii family court on
Keahiolalo’s behalf seeking to prohibit David from
contacting Keahiolalo or any of his family members,
including B.D. The Petition did not mention the existing
DAVID V. KAULUKUKUI 7
Custody Order or inform the family court that Keahiolalo
lacked legal, custodial, or visitation rights to B.D.
On December 4, 2019, the family court granted the
Petition and issued a TRO prohibiting David from having
contact with B.D. or Keahiolalo. The TRO did not discuss
any custodial issues or authorize Keahiolalo to take custody
of B.D.
C. State Officials Place B.D. with Keahiolalo
Approximately two weeks after Keahiolalo received the
TRO, a Hawaii Child Welfare Services (CWS) official
visited David’s home and performed a Comprehensive
Strengths and Risk Assessment Rating to determine whether
the home was safe for B.D. David received a risk score of 3
on a scale of 0–51, with a low/moderately low risk score
ranging from 1 to 17. During the home visit, David explicitly
informed the official of the terms of the Custody Order.
Around this same time, at least two other CWS officials were
also explicitly informed of the Custody Order.
Nevertheless, a few days after the home visit, on
December 20, several CWS officials (accompanied by
Keahiolalo and multiple state police officers) conducted a
“grab and go” of B.D. without a court order or prior notice
to David. State officials took B.D. from her school, placed
her in Keahiolalo’s custody, immediately escorted
Keahiolalo and B.D. to the airport, and flew them to Kauai
“to avoid any encounter with [David].”
David was not informed that B.D. had been taken from
school and transported to Kauai until after B.D. was placed
in Keahiolalo’s custody and police officers served the TRO
on David at her home. David and her attorney attempted to
contact CWS, the police, and the Kauai court to get
8 DAVID V. KAULUKUKUI
information about B.D.’s whereabouts, but they were
unsuccessful. David again informed CWS of the terms of the
existing Custody Order. David also reported to the Kauai
County Police Department “that B.D. had been kidnapped
and was in the custody of an allegedly abusive, non-custodial
parent.” But Kaulukukui and the other named defendants
worked together to prevent David’s allegations from being
investigated or a police report from being filed.
Eleven days later, during which time David had no
contact with her daughter, the family court held a hearing on
the TRO. The court learned of the Custody Order for the first
time and dismissed the prohibition against David having
contact with B.D. due to Keahiolalo’s “lack of authority . . .
to file on behalf of [B.D.].” But the court declined to issue
any additional orders and “directed counsel, as officers of
the court, to discuss and work out the custody matters.”
Despite the court’s direction, the Kauai County Prosecutor
refused to (1) speak with David’s counsel, (2) produce any
authority permitting Keahiolalo to maintain physical
custody, or (3) allow David or her mother to see or talk to
B.D.
After the hearing, David’s counsel repeatedly attempted
to contact CWS representatives on the islands of Kauai and
Hawaii and have B.D. returned to David or removed from
Keahiolalo, all to no avail. CWS initially attempted to deny
involvement in the seizure to make it appear that Keahiolalo
“simply took custody of B.D. himself,” but it later informed
David that it would “be filing something” in the family court.
Several days later, CWS removed B.D. from Keahiolalo’s
home and placed her in a foster home on Kauai, still without
allowing David to communicate with her daughter.
Having made no progress working with state officials,
on January 2, 2020, David moved for a TRO in federal
DAVID V. KAULUKUKUI 9
district court requiring the state to return B.D. to her custody.
Four days later, the Hawaii Department of Human Services
filed a petition for temporary custody of B.D. in the Hawaii
family court. After an evidentiary hearing, the family court
denied the Department’s petition. Finally—21 days after
being grabbed from her school without her mother’s
knowledge and without being able to even talk to her
mother—B.D. was returned home.
D. This Lawsuit
David, individually and on behalf of B.D., sued several
individuals, including Kaulukukui, under 42 U.S.C. § 1983for violating their constitutional right to familial
association. 2 In addition to the facts included above, David
alleged in her First Amended Complaint (FAC) that:
• Kaulukukui “acted in concert with [CWS
officials], among others, to file and serve
the [P]etition in the family court, to provide
Defendant Keahiolalo with advice
enabling him to obtain the protective order
and thus circumvent the existing [Custody
Order], and to orchestrate and carry out the
seizure of B.D. and placement with
Defendant Keahiolalo without any
authority to do so.”
• After the seizure of B.D. from her school,
several Defendants, including Kaulukukui,
2
While David named multiple CWS workers, the State Director of
the Department of Human Services, Keahiolalo, and Keahiolalo’s
attorney as defendants, this appeal concerns only Kaulukukui because
she is the only defendant who moved to dismiss asserting qualified
immunity.
10 DAVID V. KAULUKUKUI
“were communicating amongst each other
and acting in concert to prevent . . . [a]
police report from being filed, to prevent
[David’s] claims from being investigated
and to perpetuate what they knew to be the
unlawful placement of B.D. in the custody
of Defendant Keahiolalo.”
• From December 2 to December 31, all
Defendants, including Kaulukukui, “had
frequent and direct contacts with
Defendant Keahiolalo in the form of text
messages, emails, phone conversations,
and in-person visits – both formal and
informal – in which Defendants worked
together at every step with Defendant
Keahiolalo to assist with and prepare
documents that deliberately misled the
Family Court, to conspire to orchestrate the
‘grab and go’ abduction of B.D., and to
maintain the appearance that the actions
taken were appropriate and lawful.”
Kaulukukui moved to dismiss the claim brought against
her based on qualified immunity. The district court denied
her motion, concluding that David plausibly alleged that
Kaulukukui violated a clearly established constitutional
right to familial association. The district court first explained
that the FAC could plausibly be read to infer that Kaulukukui
knew about the Custody Order when she filed the Petition
and, therefore, knew that Keahiolalo did not have any
authority to move for a protective order on B.D.’s behalf. In
addition, the district court held that the FAC stated several
allegations that, after the Petition was filed, Kaulukukui
“knowingly assisted in the wrongful removal of B.D. from
DAVID V. KAULUKUKUI 11
David’s custody in violation of [their] rights to familial
association.” While the district court noted that Kaulukukui
might ultimately be able to show that David’s allegations
were not true, it concluded that “those questions cannot be
definitively answered at this motion-to-dismiss stage.”
Kaulukukui timely appealed.
II. DISCUSSION
We generally lack jurisdiction to hear interlocutory
appeals from denials of a motion to dismiss. See Hernandez,
897 F.3d at 1132. However, there is an exception to this rule
for denials based on qualified immunity. Id. This exception
exists “because qualified immunity is immunity from suit,
not just a defense to liability, and the immunity is effectively
lost if a case is erroneously permitted to go to trial.” Andrews
v. City of Henderson, __ F.4th __ (9th Cir. 2022) (cleaned
up). We review de novo a district court’s denial of a motion
to dismiss based on qualified immunity. Benavidez v. County
of San Diego, 993 F.3d 1134, 1141 (9th Cir. 2021). We
“accept[] as true all well-pleaded allegations of material fact,
and construe[] them in the light most favorable to the non-
moving party.” Hernandez, 897 F.3d at 1132 (quoting
Padilla, 678 F.3d at 757). “If the operative complaint
contains even one allegation of a harmful act that would
constitute a violation of a clearly established constitutional
right, then plaintiffs are entitled to go forward with their
claims.” Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir.
2018) (quoting Pelletier v. Fed. Home Loan Bank of S.F.,
968 F.2d 865, 872 (9th Cir. 1992)).
Qualified immunity shields government officials from
liability for civil damages unless their conduct “violated a
clearly established constitutional right.” Williamson v. City
of Nat’l City, 23 F.4th 1146, 1151 (9th Cir. 2022) (quoting
Monzon v. City of Murrieta, 978 F.3d 1150, 1156 (9th Cir.
12 DAVID V. KAULUKUKUI
2020)). To determine whether an official is entitled to
qualified immunity, the court asks “(1) whether the
[official’s] conduct violated a constitutional right, and
(2) whether that right was clearly established at the time of
the events at issue.” Id. (internal quotation marks citation
omitted).
Kaulukukui does not dispute that David and her daughter
have a constitutional right to familial association—nor could
she. “[T]he interest of parents in the care, custody, and
control of their children—is perhaps the oldest of the
fundamental liberty interests recognized by [the Supreme]
Court.” Keates, 883 F.3d at 1235–36 (quoting Troxel v.
Granville, 530 U.S. 57, 65 (2000) (plurality opinion)). Our
caselaw has long recognized this right for parents and
children under the Fourth and Fourteenth Amendments. See,
e.g., Keates, 883 F.3d at 1235–38 (explaining the origins of
the right); Wallis v. Spencer, 202 F.3d 1126, 1136–37 (9th
Cir. 2000). For parents, the right to familial association is
generally grounded in the Fourteenth Amendment’s Due
Process Clause, while claims brought by children are
evaluated under the more “specific” Fourth Amendment
right to be free from unreasonable seizures. See Kirkpatrick
v. County of Washoe, 843 F.3d 784, 788–89 & n.2 (9th Cir.
2016) (en banc). However, “the same legal standard applies
in evaluating Fourth and Fourteenth Amendment claims for
the removal of children.” Keates, 883 F.3d at 1236 (quoting
Wallis, 202 F.3d at 1137 n.8).
Kaulukukui instead argues that the violations that David
alleges were not “clearly established” under the specific
facts presented in this case. We disagree. A right is clearly
established if its contours are “sufficiently clear that a
reasonable official would understand that what [s]he is doing
violates that right.” Rice v. Morehouse, 989 F.3d 1112, 1125
DAVID V. KAULUKUKUI 13
(9th Cir. 2021) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). “This exacting standard gives government
officials breathing room to make reasonable but mistaken
judgments by protect[ing] all but the plainly incompetent or
those who knowingly violate the law.” Hardwick v. County
of Orange, 844 F.3d 1112, 1117 (9th Cir. 2017) (quoting
City & County of S.F. v. Sheehan, 575 U.S. 600, 611 (2015)).
Although the “law does not require a case directly on point
for a right to be clearly established, existing precedent must
have placed the statutory or constitutional question beyond
debate.” Rivas-Villegas v. Cortesluna, __ U.S. __, 142 S. Ct.
4, 7–8 (2021) (per curiam) (quoting White v. Pauly, 580 U.S.
73, 7–8 (2017)).
A. The TRO Petition
David alleges that Kaulukukui violated her and B.D.’s
right to familial association by helping Keahiolalo file the
Petition asking the family court to prevent David from
having any contact with B.D., despite knowing that the
Custody Order severely limited Keahiolalo’s rights related
to B.D. Our caselaw clearly establishes that, as part of the
right to familial association, parents and children have a
“right to be free from judicial deception” in child custody
proceedings and removal orders. Greene v. Camreta, 588
F.3d 1011, 1034 (9th Cir. 2009), vacated in part on other
grounds, 563 U.S. 692 (2011), 661 F.3d 1201 (9th Cir.
2011). Indeed, we recently reiterated that by 2016, “well
before” the events of this case, it was clearly established that
“material omissions and misrepresentations with a deliberate
disregard for the truth to a juvenile court would violate the
Constitution.” Benavidez, 993 F.3d at 1152; see also
Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101,
1108 (9th Cir. 2010) (“[D]eliberately fabricating evidence in
civil child abuse proceedings violates the Due Process clause
14 DAVID V. KAULUKUKUI
of the Fourteenth Amendment when a liberty or property
interest is at stake.”); Devereaux v. Abbey, 263 F.3d 1070,
1074 (9th Cir. 2001) (describing as “virtually self-evident”
the constitutional due process right to not be subjected to
criminal charges based on deliberately false evidence).
In Greene, for example, the plaintiff alleged that her
children were removed from her custody after a social
worker intentionally included false statements in his petition
for a protective custody order. 588 F.3d at 1018–19, 1034.
We denied the social worker qualified immunity at summary
judgment because, viewing the facts in the light most
favorable to the plaintiff, the court would not have granted
the order and the plaintiff would not have lost custody of her
children absent the social worker’s deliberately false
statements. Id. at 1035–36. In doing so, we held that the right
to be free from judicial deception in child custody
proceedings was clearly established by our precedent,
including numerous decisions in the Fourth Amendment
context holding that officers who make false or misleading
statements in an affidavit to a court are not entitled to
qualified immunity. Id. at 1034–35 (citing Whitaker v.
Garcetti, 486 F.3d 572, 581 (9th Cir. 2007); Butler v. Elle,
281 F.3d 1014, 1024 (9th Cir. 2002); Hervey v. Estes, 65
F.3d 784, 788 (9th Cir. 1995)).
More recently, in Hardwick, we denied qualified
immunity to social workers who deliberately submitted false
testimony to a court during a custody proceeding that
ultimately resulted in the removal of the minor plaintiff from
her mother’s custody. 844 F.3d. at 1114–15. There, the
defendants argued that the right to be free from judicial
deception had not yet been clearly established in civil child
dependency proceedings, only in criminal proceedings
against parents. Id. at 1117. We squarely rejected that
DAVID V. KAULUKUKUI 15
argument, explaining that regardless of whether the
proceeding occurred in the criminal or civil context, a
reasonable official would have fair notice that “the knowing
use of false evidence [is] absolutely and obviously
irreconcilable with the Fourteenth Amendment’s guarantee
of Due Process in our court.” Id. at 1119. In light of these
decisions, the right to be free from judicial deception in
matters of child custody “is beyond debate.” Id. at 1117. 3
To state a violation of the constitutional right to familial
association through judicial deception, a plaintiff must allege
“(1) a misrepresentation or omission (2) made deliberately
or with a reckless disregard for the truth, that was
(3) material to the judicial decision.” Benavidez, 993 F.3d at
1147; see Greene, 588 F.3d at 1035. A misrepresentation or
omission is “material” if a court “would have declined to
issue the order had [the defendant] been truthful.” Greene,
588 F.3d at 1035.
Here, David alleges that the Petition that Kaulukukui
prepared omitted any reference to the Custody Order or its
terms and that neither Keahiolalo nor Kaulukukui otherwise
informed the family court of the Custody Order. David also
alleges that Kaulukukui “acted in concert” with other
Defendants to (1) “file and serve the [P]etition in the family
court,” (2) “provide Defendant Keahiolalo with advice
enabling him to obtain the protective order,” and in doing so,
(3) “circumvent the existing [Custody Order].” She states
that beginning on December 2, 2019—the day the Petition
3
Although Greene and Hardwick concerned affirmative false
statements rather than omissions (as is alleged here), we have
consistently held that judicial deception may occur through deliberate
omission or affirmative misrepresentation. See Greene, 588 F.3d at
1035; KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004).
16 DAVID V. KAULUKUKUI
was filed—Kaulukukui (and the other defendants) “worked
together at every step with Defendant Keahiolalo to assist
with and prepare documents that deliberately misled the
Family Court.” (emphasis added).
In order to “circumvent” the Custody Order and
“deliberately misle[ad] the Family Court,” Kaulukukui
necessarily must have known of the Custody Order and
intentionally decided not to discuss it in the Petition or bring
it to the family court’s attention. 4 Accordingly, based on
these allegations, we conclude that the FAC plausibly
alleges that Kaulukukui deliberately made a
“misrepresentation or omission” to a court of law. 5
Benavidez, 993 F.3d at 1147.
4
Notably, in her opening brief, Kaulukukui acknowledged that “the
[C]omplaint essentially alleges that . . . [she] conspired at every step to
circumvent the terms of the [Custody Order] . . . by intentionally omitting
reference in the TRO application to the [Custody Order], in order to
deliberately mislead the family court into issuing a TRO, and using the
TRO to pry B.D. from Ms. David’s custody.” Op. Br. at 14–15 (emphasis
added). Although she pointed out in a footnote that the district court held
that the FAC plausibly alleged that she knew about the Custody Order
prior to filing the Petition, or shortly thereafter, she did not challenge the
district court’s conclusion on this point until her reply brief. Therefore,
in addition to being unpersuasive for the reasons stated above, this
argument is likely waived. See Turtle Island Restoration Network v. U.S.
Dep't of Com., 672 F.3d 1160, 1166 n.8 (9th Cir. 2012) (“[A]rguments
raised for the first time in a reply brief are waived.” (internal quotation
marks and citation omitted)).
5
Our caselaw also clearly establishes that judicial deception may
occur when an omission or misrepresentation of material information is
made “recklessly.” Greene, 588 F.3d at 1035. However, because the
FAC alleges that Kaulukukui’s omission of the Custody Order from the
Petition was deliberate, we need not address whether it was reckless.
DAVID V. KAULUKUKUI 17
Additionally, David alleges that “had the presiding judge
in the Family Court been informed of the [Custody Order],
Defendant Keahiolalo’s application for a temporary
restraining order would not have been granted as to B.D.” In
other words, she claims that but-for Kaulukukui’s
misrepresentation or omission, David would not have been
deprived of custody over B.D., meaning that the omission
was material. See Greene, 588 F.3d at 1035. Thus, we
conclude that David has successfully stated a claim for
violation of her and B.D.’s right to familial association based
on judicial deception.
In arguing otherwise, Kaulukukui contends that the
altercation between David and Keahiolalo made it
reasonable for her to believe that she could assist Keahiolalo
in filing the Petition on B.D.’s behalf given the plain
language of the Hawaii Domestic Violence Protective
Orders statute and the “Compelling Emergency” provision
of the Custody Order. Moreover, she asserts that no statute
or caselaw affirmatively required her to address the Custody
Order in the Petition. Thus, she argues that it was not clear
to a reasonable official in her position that assisting a non-
custodial parent in obtaining a protective order without
informing the family court of the Custody Order was
unlawful.
Kaulukukui’s arguments fail for two reasons. First,
regardless of Hawaii’s generally applicable Protective
Orders statute, the Custody Order that defined David’s and
Keahiolalo’s parental rights deprived Keahiolalo of the
ability to seek judicial relief related to B.D. absent a
“compelling emergency that affects [her] health or safety.”
There is no indication that Kaulukukui was led to believe
there were any circumstances presenting an emergent risk to
B.D. Additionally, as the district court noted, Kaulukukui's
18 DAVID V. KAULUKUKUI
reliance on the Compelling Emergency provision
necessarily admits that she knew when she filed the Petition
that (1) David had sole custody of B.D., (2) Keahiolalo
lacked any custody or visitation rights, and (3) Keahiolalo
was generally prohibited from seeking relief on B.D.’s
behalf. Nevertheless, Kaulukukui deliberately chose not to
inform the family court of the Custody Order’s terms.
Second, regardless of whether there is specific authority
requiring that a custody order be included in a petition for a
protective order, the FAC alleges more than just that
Kaulukukui prepared and filed the Petition on Keahiolalo’s
behalf; it alleges that Kaulukukui knowingly and
deliberately omitted material custody information from the
Petition to mislead the family court into issuing the TRO that
allowed Defendants to deprive David of custody. While
Kaulukukui’s arguments focus on whether a reasonable
official could believe that the terms of a custody order are
not affirmatively required to be included in a petition for a
protective order, they do not address whether an official may
reasonably believe she can deliberately conceal material
custody information from a court for the purpose of
depriving a custodial parent of her child.
We conclude that any reasonable official would
understand that the latter behavior—if proven—violates the
law. As such, it is “hardly conduct for which qualified
immunity is either justified or appropriate.” See Hardwick,
844 F.3d at 1119.
B. Removal of B.D.
David also alleges that Kaulukukui’s participation in
removing B.D. and placing her in Keahiolalo’s custody was
a constitutional violation. Again, our caselaw clearly
establishes that the right to familial association is violated “if
DAVID V. KAULUKUKUI 19
a state official removes children from their parents without
their consent, and without a court order, unless information
at the time of the seizure, after reasonable investigation,
establishes reasonable cause to believe that the child is in
imminent danger of serious bodily injury.” Keates, 883 F.3d
at 1237–38. Additionally, even if there is reasonable cause
to believe that the initial removal of a child without a court
order or consent is necessary, the continued separation of a
child from her custodial parent is constitutional only if “the
scope, degree, and duration of the intrusion” is “reasonably
necessary to avert the specific injury at issue.” Id.; see
Wallis, 202 F.3d at 1138.
For example, in Wallis, police officers seized the
plaintiffs’ children without a court order after the mother’s
institutionalized, mentally ill sister reported to her therapist
that the children’s father was going to sacrifice his son to
Satan on the Fall Equinox and cover it up with a car accident.
202 F.3d at 1131. After the therapist reported this threat to
Child Protective Services, police entered the family’s home
around midnight, took the children into custody without a
court order, and transported them to a hospital where they
were subjected to internal body cavity examinations without
the plaintiffs’ presence or consent. Id. at 1134–35. The
children were not returned to the plaintiffs’ custody for two
and a half months. Id. at 1034. There, we concluded that
because the officers failed to investigate the institutionalized
sister’s “bizarre tale,” interview the children’s mother, or
otherwise conduct a sufficient background investigation, “a
reasonable jury could find that the officers did not have
reasonable cause to remove the children without a court
order.” Id. at 1040.
Additionally, we held that even if the children’s initial
removal was reasonable, there was a genuine dispute as to
20 DAVID V. KAULUKUKUI
whether “the actions taken by the officers—removing the
children from their mother and placing them in an
institution—exceeded the permissible scope of the action
necessary to protect them from that immediate threat.” Id. at
1138. Because the alleged danger to the plaintiffs’ son “was
to occur specifically and only on [the Fall Equinox],” there
was a genuine dispute “as to whether the emergency
continued to exist for more than the brief day or two.” Id. at
1140. In addition, because “the police had no information
whatsoever that implicated the children’s mother in any past
or future abuse,” there was a genuine dispute whether
placing the children “in a county institution for an indefinite
period, was sufficiently strictly circumscribed by the
exigency that justified the [defendants’] intrusion into the
children’s lives.” Id. at 1140–41 (internal quotation marks
and citation omitted).
Turning to this case, David sufficiently alleges that
Kaulukukui participated in removing B.D. from her custody
without a court order, placed B.D. in Keahiolalo’s custody,
and prevented David from having contact with B.D. or
regaining custody. These allegations, if true, violate a clearly
established constitutional right to familial association. Based
on the allegations in the FAC, there was no reason, much
less “reasonable cause,” to believe that B.D. was in any
“imminent danger of serious bodily injury.” Id. at 1138. In
fact, the FAC indicates quite the contrary—shortly before
the surreptitious “grab-and-go” operation, a CWS official
visited David’s home, performed a Comprehensive
Strengths and Risk Assessment Rating, and rated David a 3
on a risk scale of 0–51, meaning that there was a
low/moderately low risk of harm in David’s home.
Additionally, the FAC alleges that CWS officials surveilled
David for several days before deciding to take custody of
DAVID V. KAULUKUKUI 21
B.D., demonstrating that there was sufficient time to obtain
a court order.
Not only did Kaulukukui and the other Defendants
remove B.D. and place her with someone they knew had no
custodial rights without legal justification, David also
alleges that they conspired to prevent her from filing a police
report or otherwise having her claims regarding Keahiolalo’s
unlawful custody investigated. These allegations state a
plausible claim for a violation of a clearly established
constitutional right to familial association.
Moreover, even if B.D.’s initial removal was supported
by reasonable cause, David alleges facts plausibly indicating
that the Defendants, including Kaulukukui, “exceeded the
scope of any intrusion necessary to protect [B.D.].” Keates,
883 F.3d at 1239. The FAC states that David was not able to
speak with or see B.D. for 21 days. Nor was she informed of
B.D.’s whereabouts. With no indication that B.D. faced any
past abuse by David or that B.D. was at risk of future abuse,
“there was no basis for preventing [David] from having
contact with [B.D.]” or for separating B.D. from David for
21 days. Id. Again, the FAC alleges that CWS itself had
deemed David’s home to be at the lowest risk level just days
before B.D. was removed from her mother’s care. Based on
these allegations, the 21-day separation was significantly
longer than “reasonably necessary to alleviate [a] threat of
immediate harm.” Wallis, 202 F.3d at 1140 (citation
omitted).
*****
When the alleged events in this case occurred, the law
clearly established that a parent and child’s constitutional
right to familial association is violated when a state official
interferes with a parent’s lawful custody through judicial
22 DAVID V. KAULUKUKUI
deception. The law also clearly established that a state
official cannot remove a child from a lawful custodial parent
without consent or a court order unless the official has
reasonable cause to believe that the child is in imminent
danger and, even then, the scope and duration of the removal
must be reasonable. Here, David has plausibly alleged that
Kaulukukui violated these rights by deliberately failing to
inform the family court of the Custody Order when assisting
Keahiolalo in obtaining a TRO that prevented contact
between David and B.D. and by assisting the other
Defendants in removing B.D. from David’s custody and
separating them for 21 days.
Kaulukukui may ultimately prove that David’s
allegations are false. But at the pleading stage, we must
accept all well-pleaded factual allegations as true.
Hernandez, 897 F.3d at 1132; see also Wong v. United
States, 373 F.3d 952, 957 (9th Cir. 2004) (“[W]hile
government officials have the right . . . to raise and
immediately appeal the qualified immunity defense on a
motion to dismiss, the exercise of that authority is not a wise
choice in every case.”). As such, we conclude that
Kaulukukui is not entitled qualified immunity at this early
stage and affirm the district court’s denial of her motion to
dismiss.
AFFIRMED.