FILED
                            NOT FOR PUBLICATION
                                                                               OCT 26 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHEILA GARCIA; CASSANDRA                         No.   19-55022
GARCIA; C.N.G., a minor, by and
through their Guardian Ad Litem, Donald          D.C. No.
Walker; C.J.G., a minor, by and through          3:15-cv-00189-JLS-NLS
their Guardian Ad Litem, Donald Walker,

              Plaintiffs-Appellees,              MEMORANDUM*

 v.

CAITLIN MCCANN; GLORIA
ESCAMILLA-HUIDOR; JESUS
SALCIDO,

              Defendants-Appellants,

 and

COUNTY OF SAN DIEGO; SAN DIEGO
HEALTH AND HUMAN SERVICES
AGENCY; POLINSKY CHILDRENS
CENTER; SRISUDA WALSH; MARTHA
PALAFOX; LAURA QUINTANILLA;
DOES, 1 through 10 Inclusive,

              Defendants.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                            Submitted April 16, 2020**
                               Pasadena, California

Before: SCHROEDER and COLLINS, Circuit Judges, and BAYLSON,*** District
Judge.
Partial Concurrence and Partial Dissent by Judge COLLINS

      Defendants-Appellants Caitlin McCann, Gloria Escamilla-Huidor, and Jesus

Salcido, San Deigo County social workers, appeal the district court’s denial of

qualified immunity in this 42 U.S.C. § 1983 action. Plaintiffs include Cassandra

Garcia, her two sisters, and their mother. They contend the children’s warrantless

removal from their parents’ home, Cassandra’s placement in an emergency shelter

rather than the psychiatric inpatient program chosen by her parents, and

Cassandra’s subsequent treatment in the emergency shelter, violated plaintiffs’

Fourth and Fourteenth Amendment rights.

1.    It has been well-settled law in this circuit for two decades that authorities

may not remove a child from the parents’ custody without judicial authorization,

unless there is reasonable cause to believe the child is in imminent danger of bodily

      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
                                          2
injury or serious harm. See Demaree v. Pederson, 

, 883 (9th Cir.

2018) (“It is ‘beyond debate,’ . . . that existing Ninth Circuit precedent establishes

that children can only be taken from home without a warrant to protect them from

imminent physical injury or molestation in the period before a warrant could be

obtained”) (citing and discussing Mabe v. San Bernardino County, 

,

1108–09 (9th Cir. 2001) and Wallis v. Spencer, 

, 1138 (9th Cir.

2000)). Exigency is a “very limited exception” to the warrant requirement. 

. Defendants are entitled to qualified immunity on issue (1) only

if the allegations of abuse are exigent as a matter of law.

      Because the record is unclear on whether leaving the children in the home

would have put them at risk of “imminent danger of future harm,” the district court

properly denied qualified immunity on this claim. 

.

Several facts, viewed in the light most favorable to Plaintiffs, undermine the

reasonableness of a belief of exigency. First, the only reported incident of abuse in

the home concerned Cassandra, not her sisters. Cf.

evidence of

exigency was “more compelling” where the victim who reported the abuse was still

in danger of harm). Second, Cassandra reported that the incident occurred more

than one month before the sisters’ removal from the home, and there is no evidence

that the abuse was recurring. See

was undermined by the


                                           3
fact that the inappropriate touching had stopped in the month after the initial police

report was made). As Defendants note, other facts may support a finding of

exigency, including that it would have taken 24 to 72 hours to procure a warrant

and that Defendants acted promptly after conducting their initial inquiry. As in

Mabe, these factual disputes prevent the conclusion that, as a matter of law,

imminent serious injury justified the warrantless removal of the sisters from their

home. It is up to a jury to determine whether Defendants had “reasonable cause to

believe exigent circumstances existed.” 

.

      Defendants invoke on appeal only the Supreme Court’s warning, given in

the context of excessive force cases, that we not define the law at too high a level

of generality. See Kisela v. Hughes, 

, 1152 (2018). In this case

however we deal with a specific line of cases that provides “clear notice of the law

to social workers responsible for protecting children from sexual abuse and

families from unnecessary intrusion.” 

(citing and

discussing Mabe and Rogers v. Cnty. of San Joaquin, 

(9th Cir.

2007)). Further, “[w]hile the Supreme Court has repeatedly admonished this court

not to define clearly established law at a high level of generality, we need not

identify a prior identical action to conclude that the right is clearly established.”

Ioane v. Hodges, 

, 956 (9th Cir. 2018) (internal citation omitted).


                                            4
Although there is no case with this precise set of facts, it has been well established

since at least 2000 that social workers “may remove a child from the custody of its

parent without prior judicial authorization only if the information they possess at

the time of the seizure is such as provides 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.” 

.

Defendants McCann and Escamillao-Huidor are not entitled to qualified immunity

on plaintiffs’ claim that the sisters should not have been removed without a warrant

on the basis of a single assault that had been reported several days earlier, and had

occurred months before the removal.

2.    Plaintiffs’ second set of allegations with respect to Cassandra are that

Defendants placed her in a facility that was contrary to her mother’s wishes and

where she was mistreated. Plaintiffs claim this violated her mother’s rights to

make critical medical decisions for her child. We have recognized the violation of

such a due process guarantee in a situation where officials failed to obtain the

parents’ consent to an invasive medical examination. 

.

Yet we have never recognized a due process claim in a situation like the one here,

where the children’s mother asserts that her due process rights were violated

because a child that had been removed from her care was placed in a facility other


                                           5
than one of her choosing. Plaintiffs have thus failed to identify a “case where an

officer acting under similar circumstances . . . was held to have violated” the

Fourteenth Amendment. S.B. v. Cnty. of San Diego, 

, 1015–16 (9th

Cir. 2017) (citation omitted). We are thus not dealing with a clearly established

rule that would have put the social workers on notice that their conduct violated the

law. Defendants are entitled to qualified immunity on this claim.

3.    Plaintiffs further assert that Defendant Salcido’s alleged failure to respond to

Cassandra’s repeated threats of suicide, after Salcido placed her in the Polinsky

Children’s Center, rose to the level of deliberate indifference to the child’s medical

needs. In this circuit, we have held that “once the state assumes wardship of a

child, the state owes the child . . . reasonable safety and minimally adequate care

and treatment appropriate to the age and circumstances of the child.” Tamas v.

Dep’t of Soc. & Health Servs., 

, 846 (9th Cir. 2010) (citation omitted).

We have specifically recognized due process violations when instructions of the

child’s treating physician went unheeded, and the resulting failure of the child to

receive adequate care directly harmed the child. Henry A. v. Wilden, 

,

1001 (9th Cir. 2012). Yet neither of the cases relied upon by plaintiffs involved a

social worker acting under similar circumstances as Defendant Salcido. Plaintiffs’

allegations do not involve ignoring a treating physician’s advice, nor do they


                                           6
involve Salcido’s placement of a child with a dangerous foster parent. Defendant

Salcido is thus entitled to qualified immunity on this claim.

4.    The district court properly held there were disputed issues of material facts

precluding the grant of qualified immunity on Plaintiffs’ claim that the warrantless

removal of the children from their parents’ custody was unlawful. On Plaintiffs’

other two claims, however, qualified immunity should have been granted to the

county officials.

      AFFIRMED IN PART, REVERSED IN PART, REMANDED.

      Each party to bear its own costs.




                                          7
                                                                             FILED
                                                                             OCT 26 2020
Garcia, et al. v. McCann, et al., No. 19-55022
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
COLLINS, Circuit Judge, concurring in part and dissenting in part:

      I concur in sections 2 and 3 of the majority’s memorandum disposition, in

which the court (1) partially reverses the district court’s denial of qualified

immunity to Defendants-Appellants Caitlin McCann and Gloria Escamilla-Huidor,

and (2) reverses the district court’s denial of qualified immunity to Defendant-

Appellant Jesús Salcido. But I would also reverse the denial of qualified immunity

on the sole remaining claim against Defendants McCann and Escamilla-Huidor,

which concerns the warrantless removal of the Garcia children. As to that issue, I

therefore respectfully dissent.

      1. The majority commits a threshold legal error by erroneously collapsing

the two separate prongs of the qualified-immunity inquiry. “Qualified immunity

shields federal and state officials from money damages unless a plaintiff pleads

facts showing (1) that the official violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, 

, 735 (2011). These are separate prongs, and

although the court has “discretion to decide which of the two prongs of qualified-

immunity analysis to tackle first,”

erroneous to merge the two

questions. See Estate of Ford v. Ramirez-Palmer, 

, 1048–50 (9th

Cir. 2002). The majority, however, does just that, by framing the ultimate
qualified immunity issue (prong two) entirely in terms of the underlying merits of

the constitutional claim (prong one).

      Specifically, according to the majority, “Defendants are entitled to qualified

immunity” on the warrantless-removal claim “only if the allegations of abuse are

exigent as a matter of law.” See Mem. Dispo. at 3. That, however, is the standard

for evaluating the merits of the underlying constitutional claim at the summary-

judgment stage—i.e., it is the prong-one inquiry. As the majority itself later

frames the underlying substantive rule that governs the merits, “social workers

‘may remove a child from the custody of its parent without prior judicial

authorization only if the information they possess at the time of the seizure is such

as provides 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.”

(quoting Wallis v. Spencer, 

, 1138

(9th Cir. 2000)). But to defeat qualified immunity, a plaintiff must make the

further showing required by prong two, which is that, at the time the defendant

acted, “every reasonable official would understand that what [the defendant] is

doing is unlawful.” District of Columbia v. Wesby, 

, 589 (2018)

(simplified). Thus, the relevant question here at prong two is whether, in light of

then-existing precedent, every reasonable official would have recognized that the

information Defendants possessed did not “provide[] reasonable cause to believe


                                          2
that the child[ren] [were] in imminent danger of serious bodily injury.” 

. The majority fails to pose, much less answer, that question.

Instead, it purports to deny qualified immunity on the prong-one ground that “the

record is unclear on whether leaving the children in the home would have put them

at risk of ‘imminent danger of future harm.’” See Mem. Dispo. at 3. I agree with

that statement as far as it goes, and for that reason I would not grant summary

judgment based on prong one. But by erroneously framing the qualified immunity

issue in such terms, the majority effectively omits the crucial second step of the

analysis.

      2. The majority compounds its error by later stating that the applicable law

has been clearly established, so as to defeat qualified immunity, simply because we

articulated the above-quoted Wallis standard in 2000. See Mem. Dispo. at 5. In

doing so, the majority violates the clear instruction of the Supreme Court, which

“has repeatedly told courts—and the Ninth Circuit in particular—not to define

clearly established law at a high level of generality.” Kisela v. Hughes, 

, 1152 (2018) (simplified). The mere articulation of the very generally

worded standard in Wallis is not sufficient, without more, to show that Defendants

violated clearly established law. Rather, as explained, the plaintiff must make a

more case-specific showing that “‘the right’s contours were sufficiently definite

that any reasonable official in the defendant’s shoes would have understood that he


                                          3
was violating it.’”

(emphasis added) (citation omitted). In this sense,

the majority’s over-generalizing of the clearly established law is comparable to its

erroneous collapsing of the two separate prongs of the qualified-immunity inquiry:

in both instances, the majority elides the critical element that the plaintiff must

show that, under then-existing precedent, every reasonable social worker would

have realized that Defendants did not have reasonable cause to believe that the

Garcia children were in imminent danger.

      The majority suggests that the Supreme Court’s admonition against defining

clearly established law at a high level of generality is limited to excessive-force

cases, see Mem. Dispo. at 4, but that is wrong. In fact, that same admonition has

been given by the Court in a variety of cases under 42 U.S.C. § 1983 (and even

under 42 U.S.C. § 1985). See, e.g., 

(false arrest); Ziglar

v. Abbasi, 

, 1866–67 (2017) (conspiracy under § 1985); City &

Cnty. of San Francisco v. Sheehan, 

, 613 (2015) (warrantless entry);

Reichle v. Howards, 

, 665 & n.5 (2012) (First Amendment retaliatory

arrest); Wilson v. Layne, 

, 615 (1999) (scope of search); Anderson v.

Creighton, 

, 639 (1987) (warrantless search). More importantly, this

court has already applied this principle to the warrantless removal of children, the

very issue before us:

      In July 2008 it was well-settled that a child could not be removed
      without prior judicial authorization absent evidence that the child was

                                           4
      in imminent danger of serious bodily injury. But the Supreme Court
      has repeatedly told courts—and the Ninth Circuit in particular—not to
      define clearly established law at a high level of generality.

Kirkpatrick v. County of Washoe, 

, 792 (9th Cir. 2016) (simplified).

Under Kirkpatrick, the inquiry must be framed as follows: Defendants are entitled

to qualified immunity unless in 2013 (when Defendants acted) it was “beyond

debate that the confluence of factors” in this case “would not support a finding of

exigency.”

The majority commits legal error in framing the qualified-

immunity question at a higher level of generality than Kirkpatrick allows.

      3. Applying the correct qualified-immunity standards, I would reverse the

denial of qualified immunity to McCann and Escamilla-Huidor.

      View in the light most favorable to Plaintiffs, the evidence established that

Defendants were aware of the following circumstances at the time that they acted:

that a 16-year-old girl had reported to an initial social worker that her father had

inappropriately fondled her while drunk and that her parents would regularly drink

until vomiting, leaving her to care for her two- and ten-year-old sisters; that the

initial social worker reported that the 16-year-old was tearful and unable to say if

the inappropriate touching had happened previously or to her sisters; that the ten-

year-old sister denied that sexual abuse had happened to her but confirmed that the

parents would drink to the point of vomiting, although “not so much lately”; that,

even though the 16-year-old later claimed that the incident with her father was an


                                           5
isolated accident, the initial social worker had found the 16-year-old’s emotional

earlier account (which professed uncertainty about other incidents) to be credible;

and that a warrant would have taken at least 24 to 72 hours to obtain. I think that,

under then-existing precedent in 2013, it “was not beyond debate that the

confluence of factors set forth above would not support a finding of exigency.”

. Put another way, it cannot be said that every

reasonable social worker would have recognized in 2013 that these facts did not

support a warrantless removal.

      None of the precedents cited by the majority shows that “the state of the law

at the time of [the] incident provided fair warning to the defendant[s] that [their]

conduct was unconstitutional.” Jessop v. City of Fresno, 

, 940 (9th

Cir. 2019) (emphasis added) (citations and internal quotation marks omitted). The

majority relies primarily on Mabe v. San Bernardino County, 

(9th

Cir. 2001), see Mem. Dispo. at 3–4, but the case is materially distinguishable.

Indeed, the majority concedes two very significant differences between Mabe and

this case. First, “Defendants acted promptly after conducting their initial inquiry,”

see Mem. Dispo. at 4, whereas in Mabe, the social worker delayed for four days

after conducting her investigation and securing evidence corroborating the referral,

thereby casting substantial doubt on the notion that there was an exigency

justifying a warrantless 

. Second, the majority concedes


                                          6
that here “it would have taken 24 to 72 hours to procure a warrant,” see Mem.

Dispo. at 4, whereas the warrant in Mabe could have been procured within “a few

. The only point of commonality that the majority

identifies is its claim that here, as in Mabe, “there is no evidence that the abuse was

recurring.” See Mem. Dispo. at 3. But the absence of affirmative evidence of

continuing abuse is not sufficient to defeat qualified immunity. The question is

whether every reasonable social worker would have concluded that, based on the

uncertain and conflicting statements made by the 16-year-old daughter, there was

no “reasonable cause” to believe that there was imminent danger. 1 Nothing in

Mabe supports the conclusion that the answer to that question is yes.

      The majority also cites, but does not analyze, Rogers v. County of San

Joaquin, 

(9th Cir. 2007), and 

. See Mem.

Dispo. at 3–5. Neither case is sufficient to defeat qualified immunity here. In

Rogers, the court declined to find an “imminent risk of serious bodily harm” based

on “chronic, ongoing” problems with the children’s health and nourishment when a

warrant could have been secured “within 

–96. That bears



1
  I disagree with the majority’s suggestion that, if there was a risk of sexual abuse,
it was limited to the 16-year-old and that qualified immunity should still be denied
as to the removal of the other two children. See Mem. Dispo. at 3. It cannot be
said that, under the then-existing precedent, every reasonable social worker would
have recognized and agreed that, where there has been sexual abuse of one child,
the other children can confidently be left in the house with the alleged abuser.

                                          7
no similarity to the situation presented here, where the concern was sexual abuse

and where a warrant would take 24–72 hours to obtain. And Wallis is even further

afield from this case. In Wallis, the issues were whether removal was appropriate

where the officers did not properly investigate the underlying charge—which was

based on a “bizarre” story from an “institutionalized mental patient” about alleged

human sacrifice—and whether the duration of the removal and the application of

the removal to both parents were 

–41. Nothing

comparable is involved here.

      Finally, the majority’s reliance on Demaree v. Pederson, 

, 883

(9th Cir. 2018) (cited at Mem. Dispo. at 3–4), is plainly improper, because that

decision postdates the events in this case. In Kisela, the Supreme Court chastised

this court for similarly relying on a case decided after the incident in question,

because such a decision “could not have given fair notice” to government officials

years earlier and is “of no use in the clearly established 

(citations and internal quotation marks omitted). To the extent that the

majority apparently thinks that it can cite Demaree for its explanation of what the

earlier law was, that too is wrong: the Supreme Court reprimanded us for that as

well in Kisela, holding that we should not have relied on the case even for

“illustrative” purposes.

did not place beyond debate whether there


                                           8
were exigencies justifying Defendants’ warrantless removal of the children, I

conclude that Defendants are entitled to qualified immunity on this issue. I

therefore respectfully dissent from sections 1 and 4 of the memorandum

disposition.




                                         9