.
       Our holding, as we explained it, was premised on three
parallels between child welfare employees and prosecutors:

       (1) the functions performed by [state child
       welfare     caseworkers]    in     dependency
       proceedings are closely analogous to the
       functions performed by prosecutors in criminal
       proceedings;     (2)   the    public    policy
       considerations that countenance immunity for
       prosecutors are applicable to child welfare
       workers performing these functions; and (3)
       dependency proceedings incorporate important
       safeguards that protect citizens from
       unconstitutional actions by child welfare
       workers.

Id. at 495. As 
to the first point, we observed that, like
prosecutors, “social worker[s] must make a quick decision
based on perhaps incomplete information as to whether to
commence investigations and initiate proceedings against
parents who may have abused their children.” 
Id. at 496
(quoting 
Meyers v. Contra Costa Cnty. Dep’t of Soc. Servs.,




                              25

812 F.2d 1154
, 1157 (9th Cir. 1987) (internal quotation marks
omitted)).      Regarding the applicable public policy
considerations, we noted that, much like prosecutors, child
welfare workers “acting in a quasi-prosecutorial capacity in
dependency proceedings” are forced to “exercise independent
judgment” that should not be compromised by exposing them
to the potentially chilling effect of § 1983 liability. 
Id. at 496.
Finally, 
we gave two reasons why § 1983 liability was not the
only mechanism available to protect the public against
unconstitutional conduct:

       First, the judicial process itself provides
       significant protection. Child welfare workers
       must seek an adjudication of dependency from a
       neutral judge whose decisions are guided by the
       “best interests of the child” and subject to
       appellate review.      Second, although child
       welfare workers are not subject to the
       comprehensive       system     of    professional
       responsibility applicable to prosecutors, they are
       under the supervision of the agency that
       employs them. The agency has an incentive to
       ensure that its employees do not violate
       constitutional rights because it is not immune
       from suit for abuses committed by employees
       with policy-making authority or acting pursuant
       to agency policy or custom.

Id. at 497 (citation 
omitted). Because the plaintiff’s claims
against the state child welfare workers arose “in connection
with the formulation and presentation of recommendations to
the state court regarding [the child’s] dependency status and




                                26
disposition,” we deemed those workers entitled to absolute
immunity. 
Id.

        We likewise extended 
that immunity to the private
attorney who had represented the agency, because the
attorney had – like the agency’s employees – taken action “on
behalf of the State that [was] integrally related to the judicial
process.” 
Id. at 502; see 
also 
id. at 504. Notably, 
we did so
even though the attorney’s allegedly unlawful actions
occurred after the attorney had been ordered removed from
serving on the agency’s behalf and had been undertaken with
a subjectively malicious intent. 
Id. at 503; see 
also 
id. (“It is
true 
that Ernst alleged, and the court found, that [the attorney]
… filed this petition because of hostility to Ernst rather than
for the purpose of serving the best interest of [the child].”).
Reasoning that the immunity analysis was to be undertaken
“without reference to the official’s subjective state of mind,”
id. at 502, we 
concluded that absolute immunity could protect
the attorney from liability flowing from prosecutorial actions,
as long as the challenged acts were not those that “a
reasonable [person] would recognize as being clearly outside
his jurisdiction,” 
id. at 502 (citation 
and internal quotation
marks omitted). Because “a reasonable attorney in [the
attorney]’s position could have concluded that she owed a
duty to her client,” since a new lawyer had not been
appointed to replace her at the time of the challenged conduct,
we held that she “did not act in a clear absence of authority”
and was therefore entitled to absolute immunity. 
Id. at 504.

      Appellees 
claim that the requests for orders pertaining
to Mother’s custodial rights are entitled to absolute immunity
under Ernst because they constitute protected advocacy. (See
Appellees’ Br. at 42 (“Requesting … an order is ‘petitioning’




                               27
the court, and providing any testimony constitutes ‘making
recommendations to the state court’ and/or ‘acting as an
advocate in judicial proceedings’ … .”).) The District Court
accepted that argument, understanding our precedent in Ernst
to mean that “there must be a judicial court order before …
social workers … [may] receive absolute immunity.” (Joint
App. at 24.) The District Court was satisfied that, in this
case, that prerequisite was effectively satisfied because “the
acts [Eller and Barth] performed in seeking a judicial order
transferring custody from the Natural Mother to the Natural
Father were closely associated with the judicial process.” (Id.
at 25.)

        Mother argues that the District Court ignored that, in
this case, unlike in Ernst, dependency proceedings were never
initiated; the County instead requested that the Court issue an
order in response to a caseworker’s summary 23 and, in so
doing, avoided affording Mother automatic process under
state law. 24 Thus, she argues, the checks on unconstitutional
conduct that were part of the justification for extending

       23
         Appellees refer to this process as a “Summary and
Order procedure.” (See, e.g., Appellees’ Br. at 23.)
       24
          There is a “heads-I-win, tails-you-lose” quality to
the Appellees’ assertion that, on the one hand, the lack of
dependency proceedings means there was no obligation to
afford Mother a prompt post-removal hearing, 
see supra 
Part
I.C, while, on the other hand, the alleged similarity between
the County’s Summary and Order procedure and dependency
proceedings means that Eller and Barth should be absolutely
immune. We reach our holding in spite of and not because of
that somewhat inconsistent line of argument.




                              28
absolute immunity in that case simply do not exist here. See
Ernst, 108 F.3d at 497 
(“Finally, as with prosecutors, there
are alternative mechanisms other than the threat of § 1983
liability that protect the public against unconstitutional
conduct by child welfare workers.”).

        That argument is not without logical force. The
availability of “alternatives to damages suits against the
official as [a] means of redressing wrongful conduct” is a
factor that we must consider when assessing whether a
government official is entitled to absolute immunity.
Kulwicki v. Dawson, 
969 F.2d 1454
, 1463 (3d Cir. 1992); see
id. (“Three factors determine 
whether a government official
should be given absolute immunity for a particular function:
1) whether there is a historical or common law basis for the
immunity in question; 2) whether performance of the function
poses a risk of harassment or vexatious litigation against the
official; and 3) whether there exist alternatives to damage
suits against the official as means of redressing wrongful
conduct.” (citation and internal quotation marks omitted)); cf.
Butz, 438 U.S. at 512 
(“Because the[] features of the judicial
process tend to enhance the reliability of information and the
impartiality of the decisionmaking process, there is a less
pressing need for individual suits to correct constitutional
error.”).

       Ultimately, however, Mother’s contention is
overstated. As a careful comparison of this case to Ernst
reveals, the same sorts of protection we identified there
actually do apply here with respect to the caseworkers’
function of seeking judicial orders related to custody of
Daughter. First, as is true of dependency proceedings, “the
judicial process itself” provided some check against wrongful




                              29
conduct under the procedure the County employed in
removing Daughter from Mother’s home. 
Ernst, 108 F.3d at
497
. Although the County’s protocol did not include the
post-removal hearing that dependency proceedings include,
Daughter’s removal was nevertheless effectuated only after
Eller presented her findings to “a neutral judge whose
decisions [were] guided by [Daughter’s] best interests.” 
Id.
(internal quotation marks 
omitted). Second, even without
following the protocols for removing a child in dependency
proceedings, the agency in this case had the incentive we
described in Ernst “to ensure that its employees do not violate
constitutional rights because it is not immune from suit for
abuses committed by employees with policy-making
authority or acting pursuant to agency policy or custom.” 
Id.
Thus, although Ernst 
is certainly distinguishable in that
absolute immunity was available to child welfare workers
“for their actions on behalf of the state in preparing for,
initiating, and prosecuting dependency proceedings,” 
id. at
495 (emphasis 
added), that distinction is not dispositive as far
as the availability of “important safeguards that protect
citizens from unconstitutional actions” goes. 
Id.

       Nor is Mother’s 
argument persuasive as to the
“functions performed” or the “public policy considerations”
we identified in Ernst. 
Id. Like caseworkers who 
present
their findings during dependency proceedings, the
caseworkers here were forced to act quickly to protect a child
from perceived neglect or abuse and had to exercise
independent judgment in doing so. See 
id. at 496-97. After
speaking with Dr. Lindblad, Eller discussed the matter with
Barth and decided it was necessary to initiate a ChildLine
report so as to “report allegations of serious physical neglect”
(Joint App. at 463), that would enable her to promptly secure




                              30
a court order to have Daughter removed from Mother’s care
and to protect Daughter from further abuse. The specter of
§ 1983 liability in future cases could well impede the ability
of Eller and others in her position to take action in an
emergency. We therefore believe that Ernst’s absolute
immunity for child welfare employees is appropriate when
the employee in question “formulat[es] and present[s] …
recommendations to the court” with respect to a child’s
custody determination, even if those recommendations are
made outside the context of a dependency proceeding. 25
Ernst, 108 F.3d at 495
.

       Having determined that the absence of dependency
proceedings is not, in itself, a basis for resolving the absolute
immunity question, we must now consider whether Eller and
Barth were, in fact, formulating and presenting
recommendations to a court when they undertook the conduct
of which Mother complains. In other words, we need to
ascertain whether Eller and Barth “function[ed] as the state’s
advocate when performing the action(s)” that gave rise to the
due process violations Mother seeks to redress, or whether
those claims instead arose from unprotected “administrative
or investigatory actions.” 
Odd, 538 F.3d at 208
; see 
Ernst,
108 F.3d at 495
, 497 n.7 (noting immunity for caseworkers

       25
          The dissent contends that the absence of dependency
proceedings requires that we deny absolute immunity. That,
however, would unnecessarily convert what is a feature of
some immunity cases into a prerequisite for immunity in all
child welfare cases. Our focus should be, instead, on whether
the function of the child welfare worker, while engaged in the
challenged act, was prosecutorial. See 
Ernst, 108 F.3d at 495
(emphasizing the import of the function performed).




                               31
includes     “the    formulation    and     presentation     of
recommendations to the court” but that we would not “accord
absolute immunity to ‘investigative or administrative’ actions
taken … outside the context of a judicial proceeding”). The
question is “what function … th[eir] act[s] served,”
Schneyder v. Smith, 
653 F.3d 313
, 332 (3d Cir. 2011). We
address that question first with regard to the acts underlying
the alleged procedural due process violations, and then turn to
the substantive due process claims.

              2.     Procedural Due Process

       The procedural due process claims arose when Eller
and Barth, with the County’s approbation, removed Daughter
from Mother’s custody by presenting ex parte conclusions
about Daughter’s welfare to Judge Cascio on May 5, 2006,
and perpetuated that removal through a second ex parte
meeting on June 23, 2006. 26 In each of those meetings, Eller,
on behalf of the County and under Barth’s supervision,
recommended that the court issue an order depriving Mother
of custody of Daughter. Such actions are “intimately
associated with the judicial process in much the same way as
are a prosecutor’s actions in representing the state in criminal
prosecutions.” 
Ernst, 108 F.3d at 496 
(internal quotation
marks omitted). Inasmuch as their acts were fundamentally
prosecutorial, in the manner described in Ernst, we conclude
that Eller and Barth are absolutely immune from liability with


       26
          We address the procedural due process claims
against the County infra Part III.B. Here, for purposes of the
absolute immunity determination, we address only those
claims against Eller and Barth.




                              32
respect to the procedural due process claims. 27 See 
id. at 495
(according 
immunity for “the formulation and presentation of
recommendations to the court”).

       27
          Our dissenting colleague argues that there can be no
absolute immunity for the procedural due process claims
because the caseworkers lacked “statutory authorization to
approach the judge to request” the orders. (Dissent at 4; see
id. at 16 (discussing 
the second ex parte meeting).) That
authorization was lacking, he claims, because the caseworkers
“merely initiat[ed] a custody process between parents,” a
process not included in the statutorily permitted
circumstances under which caseworkers can seek a removal
order. (Id. at 7.) It is certainly true that absolute immunity
does not protect acts in a “complete and clear absence of
authority.” 
Snell, 920 F.2d at 694
. The question of whether
an act can be so characterized, however, is assessed from the
perspective of the objectively reasonable caseworker,
“without reference to the official’s subjective state of mind.”
Ernst, 108 F.3d at 502
. We disagree with the suggestion in
the dissent that the caseworkers here could not have
reasonably believed their actions were in furtherance of their
authority. In Ernst, we determined that the lawyer who had
been removed from serving on the agency’s behalf “did not
act in a clear absence of authority” because she could have
reasonably “concluded that she owed a duty to her client”
under the circumstances. 
Id. at 504. So 
too here. There can
be no question that it was proper for the caseworkers to
endeavor to protect Daughter, see 55 Pa. Code § 3490.53(b)
(“The county agency shall protect the safety of the subject
child and other children in the home … and shall provide or
arrange appropriate services when necessary during the
investigation period.”), and the purpose of both the May 5




                              33
              3.     The Substantive Due Process Claim

      That, however, does not definitively settle the absolute
immunity question in this case, because the substantive due
process claim with respect to Eller remains to be addressed. 28

and June 23 orders was to do just that. Even if Pennsylvania
law requires that purpose to be effectuated by other means
than the procedure undertaken here, it cannot be persuasively
said that a reasonable caseworker would believe that she had
acted “in a clear absence of authority” in procuring the May 5
and June 23 orders. 
Ernst, 108 F.3d at 504
.
       28
          Although Mother brings this claim against all of the
Appellees, she fails to identify any action by Barth that
amounts to a substantive due process violation, instead
focusing entirely on Eller’s conduct. (See Appellant’s
Opening Br. at 58 (“[A] jury could conclude that Eller was
deliberately indifferent … and … acted in a grossly negligent
manner.” (emphasis added)); 
id. at 61 (“[A] 
jury could find
that Eller’s conduct shocks the conscience … .” (emphasis
added)).) We conclude, therefore, that Mother has waived
any challenge to the District Court’s ruling that Barth is
entitled to summary judgment on the substantive due process
claim. See Skretvedt v. E.I. DuPont De Nemours, 
372 F.3d
193
, 202-03 (3d Cir. 2004) (“We have held on numerous
occasions that [a]n issue is waived unless a party raises it in
its opening brief, and for those purposes a passing reference
to an issue will not suffice to bring that issue before this
court.” (alteration in original) (citation and internal quotation
marks omitted)). We address the County’s substantive due
process liability infra Part III.B, and thus address only Eller’s
substantive due process liability here.




                               34
Mother contends that that claim arose when Eller removed
Daughter on May 5, 2006, based on misrepresented medical
evidence (see Appellant’s Opening Br. at 52 (arguing that
Eller “concoct[ed] facts to convince Judge Cascio that he
should permit the separation of Daughter from Mother
coupled with the absence of information, which would justify
removal”)), and when Eller subsequently “manipulat[ed] [the]
evidence associated with the ChildLine report investigation”
and presented that report’s conclusions to Judge Cascio on
June 23, 2006, as the basis for her recommendation that
Mother not regain custody of Daughter (id.). As the
immunity analysis hinges on the specific function served by
Eller’s actions, we address each of those actions in turn.

                     a.     Daughter’s Initial Removal

        Mother contends that Eller’s initial removal of
Daughter on May 5, 2006 constitutes a substantive due
process violation because Eller improperly relied on a report
from Dr. Lindblad and misrepresented Daughter’s weight on
the summary she prepared for Judge Cascio. That claim
presents a difficult immunity issue.            Although Eller
eventually presented her recommendations to a court, and is
entitled to absolute immunity for that under Ernst, her
solicitation of information from Dr. Lindblad and the
compilation of her findings into an abuse report occurred
prior to the initiation of judicial proceedings. See 
Ernst, 108
F.3d at 497 
(holding that “formulation and presentation of
recommendations to the state” is entitled to absolute
immunity, but declining to accord immunity to “investigative
or administrative” actions (citation omitted)). Mother’s claim
thus raises the question of precisely where to draw the line
between a child welfare employee’s investigative and




                              35
prosecutorial functions, an issue that is not clearly addressed
by our holding in Ernst.

        But we do not need to answer that question today
because, even if we were to conclude that Eller was not
entitled to absolute immunity, no rational jury could find that
her initial removal of Daughter violated Mother’s substantive
due process rights. In Miller v. City of Philadelphia, 
174 F.3d
368 
(3d Cir. 1999), we held that a substantive due process
claim requires “decision-making by a social worker that is so
clearly arbitrary … [that it] can properly be said to ‘shock the
conscience.’” 
Id. at 376; see 
also Croft v. Westmoreland
Cnty. Children & Youth Servs., 
103 F.3d 1123
, 1124–26 (3d
Cir. 1997). In so holding, we observed that “[t]he exact
degree of wrongfulness necessary to reach the ‘conscience-
shocking’ level depends upon the circumstances of a
particular case,” because a “higher fault standard is proper
when a government official is acting instantaneously and
making pressured decisions without the ability to fully
consider their risks.” 
Miller, 174 F.3d at 375
. In such
situations, the “standard of culpability” necessary for a child
welfare employee’s actions to shock the conscience must
generally “exceed both negligence and deliberate
indifference.” 
Id.

       Eller’s actions on 
May 5 may not be free from fault,
but they cannot be said to shock the conscience. When Eller
removed Daughter on May 5, she acted quickly upon
information from a physician who had been treating Daughter
over the course of several months. Dr. Lindblad told Eller of
medical evidence that indicated serious neglect. Although he
had not seen Daughter for approximately two-and-a-half
weeks, Dr. Lindblad knew enough about her case to cogently




                              36
describe the discrepancy between her growth during her
inpatient care at the Children’s Institute as compared with her
growth under Mother’s care. Based on Eller’s discussion
with Dr. Lindblad, it was reasonable to take the steps she did
to protect Daughter from Mother until there had been time to
investigate further. Considered in that context, Eller’s
misstatement that Daughter weighed 19 pounds, 
see supra
note 16 and accompanying text, cannot be viewed as more
than mere negligence, especially because the material facts
relayed by Dr. Lindblad that led Eller to act were all
accurately stated in her summary to Judge Cascio. We
conclude, therefore, that no rational jury could find that
Eller’s actions leading to the May 5 removal of Daughter
infringed upon Mother’s substantive due process rights.

                     b.     Eller’s Subsequent Actions

       Mother next argues that the way Eller handled her
subsequent investigation and report could support a jury
verdict in Mother’s favor on the substantive due process
claim. Specifically, Mother argues that Eller excluded from
her analysis the May 5 and May 8 weigh-ins, which suggested
that Daughter had improved under Mother’s care. According
to Mother, that omission demonstrates that Eller acted either
with a desire to manipulate the evidence or with deliberate
indifference to the truth, either of which would be sufficient
to support a jury verdict in her favor on the substantive due
process claim.

        To resolve whether Eller is absolutely immune from
liability with respect to that claim, we turn to the question of
“what function (prosecutorial, administrative, investigative,
or something else entirely)” the acts of preparing the report




                              37
and presenting its conclusion to Judge Cascio served. 29
Schneyder, 653 F.3d at 332
. That mode of analysis does not
lend itself to easy resolution in this case. Although Eller
“present[ed]” her “formulat[ed]” conclusions to Judge Cascio,
which could entitle her to absolute immunity, 
Ernst, 108 F.3d
at 495
, the conclusions she reported were derived from the
abuse report she prepared for the state which, on its own,
plainly would not, see 
id. at 497 n.7 
(“[W]e would be
unwilling to accord absolute immunity to investigative …
actions taken … outside the context of a judicial proceeding”
(emphases added) (internal quotation marks omitted)). There
would, in fact, be no serious basis for Eller to posit that she
acted as a quasi-prosecutor had she never secured a temporary
removal order from Judge Cascio or presented her report’s
conclusions to Judge Cascio after filing the report with the
state, because her function in investigating potential child
abuse and preparing a report required under state law does not
approximate legal advocacy. See Holloway v. Brush, 
220
F.3d 767
, 775 (6th Cir. 2000) (“[S]ocial workers are

      29
          We reach this issue with regard to this claim, unlike
with the claim arising from Eller’s May 5 conduct, because
Mother has a much stronger case that her substantive due
process rights were violated by Eller’s subsequent actions.
Eller’s failure to mention the May 5 and May 8 weigh-ins in
her report, combined with evidence in the record that she had
a contentious relationship with Mother (see Joint App. at 310
(describing how Eller found Mother “very offensive from the
beginning of [their] relationship”)), could potentially, upon
further analysis, support a determination that a rational jury
might conclude that her behavior shocked the conscience.
Thus, we must address whether Eller’s conduct is protected
by absolute immunity.




                              38
absolutely immune only when they are acting in their capacity
as legal advocates – initiating court actions or testifying
under oath – not when they are performing administrative,
investigative, or other functions.”).

        But the presence of an investigative component to
Eller’s conduct does not bar the application of absolute
immunity when the function of her actions is still
fundamentally prosecutorial in nature. In Ernst, we noted that
“[t]he Supreme Court has explicitly rejected the idea that
absolute prosecutorial immunity extends only to the act of
initiation itself and to conduct occurring in the courtroom.”
Ernst, 108 F.3d at 497 
(citation and internal quotation marks
omitted).      Rather, absolute immunity can protect acts
undertaken “in prepar[ation] for the initiation of judicial
proceedings,” so long as they fall within a prosecutor’s “role
as an advocate for the state.” 
Id. at 497–98 (citation 
omitted).
Extending that reasoning to apply to child welfare employees,
we concluded in Ernst that absolute immunity protects not
only caseworkers’ presentations of their recommendations to
a court, but also their “gathering and evaluation of
information” to formulate those recommendations and to
prepare for judicial proceedings.        
Id. at 498. To 
hold
otherwise, we explained, would expose caseworkers to
liability “for the observations and judgments that were the
necessary predicate” for their protected recommendations,
which would “eviscerate the immunity they did receive and
undermine the purposes sought to be advanced by the grant of
absolute immunity.” 
Id.

      Here, the further 
investigation that Eller undertook
after Judge Cascio’s initial order, and the subsequent
ChildLine report that Eller filed, were part of an ongoing




                              39
judicial proceeding throughout which she served as an
advocate for the state. As described above, 
see supra 
Part
III.A.2, Eller assumed a fundamentally prosecutorial role
during the May 5 hearing, arguing on behalf of the County for
Daughter’s removal from Mother’s care. Following that
initial removal, Eller undertook her investigation with the
understanding that her conclusions would be considered in a
subsequent custody determination. Judge Cascio’s May 5
order placed Daughter in Father’s custody only “until the
completion of the investigation,” indicating that a second
determination would be made “pending [its] result.” (Joint
App. at 468.) During the June 23 hearing, when that second
determination was made, Eller again represented the County
in recommending that the temporary change of custody be
made permanent. Her investigation was thus conducted in the
context of an open judicial proceeding, throughout which her
overall role was analogous to that of a prosecutor. See 
Ernst,
108 F.3d at 496 
(establishing that caseworkers’ actions are
protected to the extent that they are “intimately associated
with the judicial process in much the same way as are a
prosecutor’s actions in representing the state in criminal
prosecutions” (internal quotation marks omitted)).

       In addition to serving in a prosecutorial capacity,
Eller’s specific actions were akin to a prosecutor’s
preparations for trial. Cf. Buckley v. Fitzsimmons, 
509 U.S.
259
, 273 (1993) (“[T]he actions of a prosecutor are not
absolutely immune merely because they are performed by a
prosecutor.”). During her investigation, Eller was “gathering
and evaluat[ing] information” in preparation for an upcoming
judicial proceeding, see Ernst at 498 (extending absolute
immunity to such preparations), and the observations and
judgments compiled in her ChildLine report served as the




                             40
basis for her recommendations to Judge Cascio on June 23,
2006. In Ernst, we expressed concern that excluding such
“observations and judgments” from immunity when they
form      the    “necessary     predicate”      for    protected
recommendations would “undermine the purposes sought to
be advanced by the grant of absolute immunity.” 
Id. That
concern is 
similarly implicated here. If we protect Eller when
she presents her recommendations to a judge, but allow her to
be sued for preparing the report that she intends to present,
absolute immunity has offered her no real protection; she will
still have to defend in court the basis for her decision to
recommend removal. Cf. 
Yarris, 465 F.3d at 135 
(concluding
that it is “better to leave unredressed the wrongs done by
dishonest officers than to subject those who try to do their
duty to the constant dread of retaliation” (citation and internal
quotation marks omitted)).

        We therefore conclude that Eller’s actions are
protected by absolute immunity with respect to Mother’s
substantive due process claim. We emphasize, however, as
we did in Ernst, that this holding does not insulate from
liability all actions taken by child welfare caseworkers. See
id. at 497 n.7 
(“[W]e would be unwilling to accord absolute
immunity to investigative or administrative actions taken by
child welfare workers outside the context of a judicial
proceeding.” (citation and internal quotation marks omitted)).
Investigations conducted outside of the context of judicial
proceedings may still be susceptible to due process claims.
Nor can caseworkers shield their investigatory work from
review merely by seeking a court order at some point. See
Buckley, 509 U.S. at 276 
(“[A] prosecutor may not shield his
investigative work with the aegis of absolute immunity
merely because … that work may be retrospectively




                               41
described as ‘preparation’ … .” (citation omitted)). The key
to the absolute immunity determination is not the timing of
the investigation relative to a judicial proceeding, but rather
the underlying function that the investigation serves and the
role the caseworker occupies in carrying it out. See
Schneyder, 653 F.3d at 332 
(“The court must ascertain …
what conduct forms the basis for the plaintiff’s cause of
action, and … then determine what function … that act
served.”). Here, Eller advocated on behalf of the County in
the May 5 meeting and continued in that role through the June
23 custody determination. Because the underlying function
of her actions throughout that judicial proceeding – including
during the investigation and composition of the report – was
fundamentally prosecutorial in nature, she is entitled to
absolute immunity for this claim.

      B.     Due Process Claims Against the County

       Having concluded that none of the claims against Eller
and Barth are viable, we turn now to Mother’s due process
claims against the County. Mother contends that the County
violated her procedural due process rights by failing to afford
her a prompt post-removal hearing after Daughter was
removed from her custody on May 5, 2006, and through
Eller’s actions in meeting ex parte with Judge Cascio on June
23, 2006, and providing him with what Mother alleges is false
information about her treatment of Daughter. She also argues
that the County violated her substantive due process rights
because Daughter’s removal was based on Eller’s
“concoct[ed] facts” and “manipulate[ed] … evidence.”
(Appellant’s Opening Br. at 52.)




                              42
             1.     Failure to Provide a Post-Removal
                    Hearing

       Due process is implicated when protected interests
such as a parent’s liberty interest “in the custody, care and
management of [his or her] children” are subjected to
intrusion by the state. 
Croft, 103 F.3d at 1125
. An individual
must ordinarily be afforded “the opportunity to be heard ‘at a
meaningful time and in a meaningful manner’” before any
such intrusion. Mathews v. Eldridge, 
424 U.S. 319
, 333
(1976) (quoting Armstrong v. Manzo, 
380 U.S. 545
, 552
(1965)). The extent of that obligation is, as the Supreme
Court has instructed, a flexible one, based upon a balance of
several factors:

      First, the private interest that will be affected by
      the official action; second, the risk of an
      erroneous deprivation of such interest through
      the procedures used, and the probable value, if
      any, of additional or substitute procedural
      safeguards; and finally, the Government’s
      interest, including the function involved and the
      fiscal and administrative burdens that the
      additional or substitute procedural requirement
      would entail.

Id. at 335. Thus, 
when a parent complains of state action
intruding on the “parent-child relationship,” the parent’s
interest must “be balanced against the state’s interest in
protecting children suspected of being abused.” 
Miller, 174
F.3d at 373
. While the question of what constitutes due
process is necessarily rooted in the circumstances of a given
case, it is axiomatic that at least some process is required




                              43
when a “state seeks to alter, terminate, or suspend a parent’s
right to the custody of [her] minor children.” McCurdy v.
Dodd, 
352 F.3d 820
, 827 (3d Cir. 2003).

       Mother, as noted, argues that her procedural due
process rights were violated here because she was afforded no
hearing when Daughter was removed through the County’s
practice of transferring custody to another guardian. 
See
supra 
Part I.C. Indeed, Mother’s first opportunity to protest
her Daughter’s removal was when she appeared before Judge
Cascio 40 days later in connection with the habeas corpus
proceedings that she herself had initiated.

        Adopting the arguments of the Appellees, the District
Court concluded that Mother’s procedural due process rights
were not violated. It reasoned that the May 5, 2006 order
“did not terminate all parental custody rights” but instead
“transferred primary custody from the Natural Mother to the
Natural Father and provided for supervised visitation of the
Natural Mother with the Minor Child.” (Joint App. at 36.)
The Court further concluded that Mother was “receiving and
has received due process” because she had the opportunity to
schedule a hearing and because “[t]he period of forty-five
days during which [the County] concluded its [abuse]
investigation was not an overly lengthy deprivation of the
Natural Mother’s status as primary custodian pending the
completion of the investigation.” (Id. at 36-37.) While the
District Court was right to consider the degree to which the
order intruded upon Mother’s rights in ascertaining what
process was due under the circumstances, see 
Mathews, 424
U.S. at 335 
(instructing courts to consider “the private interest
that will be affected by the official action”), we cannot agree
with its conclusion that Mother received due process.




                               44
        Even if Mathews’s flexible standard permitted less
process here than in a case where the state takes custody of a
child – and that is a question on which we express no opinion
at this time – that would not mean that no hearing was needed
to address the deprivation effected by the removal of
Daughter from Mother’s custody. The deprivation of a
parent’s custodial relationship with a child is among the most
drastic actions that a state can take against an individual’s
liberty interest, with profound ramifications for the integrity
of the family unit and for each member of it. From the
parent’s perspective, there may be little meaningful difference
between instances in which the state removes a child and
takes her into state custody and those in which the state shifts
custody from one parent to another, as occurred here. In
either case, the government has implicated a fundamental
liberty interest of the parent who loses custody. The state has
caused a deprivation and risks having done so wrongly. See
id. (noting “the risk 
of an erroneous deprivation” must be
considered).        Therefore, assuming the “fiscal and
administrative burdens,” 
id., of affording such 
parents a
prompt post-removal hearing do not outweigh the need for
one – and it is hard to imagine when they would – such a
hearing ought to be held. 30 Cf. Berman v. Young, 
291 F.3d
976
, 985 (7th Cir. 2002) (“When the state removes a child


       30
          It seems plain that requiring a prompt post-removal
hearing would not impose a substantial administrative or
financial burden upon the government in this case, primarily
because such a hearing is already required whenever a county
agency petitions the court for a finding of dependency. 
See
supra 
note 11 and accompanying text.




                              45
from her parents, due process guarantees prompt and fair
post-deprivation judicial review.” (emphasis added)).

       It is no adequate response to say, as the District Court
did and as the County continues to argue, that Mother was
given an opportunity to be heard because she filed a habeas
petition on her own and received a hearing in connection with
that. Some courthouse somewhere may be open to someone
aggressive and knowledgeable enough to initiate legal action,
but that does not meet the state’s burden of providing an
“opportunity to be heard at a meaningful time and in a
meaningful manner” to a parent deprived of custody,
Mathews, 424 U.S. at 333 
(citation and internal quotation
marks omitted), particularly when, as here, no notice was ever
given as to how a hearing could be scheduled and the hearing
occurred 40 days after Daughter’s removal. 31 Cf. 
Berman,
291 F.3d at 985 
(referring to “prompt and fair post-
deprivation judicial review”). Nor is it sufficient that
Mother’s custodial rights were eventually addressed after
Eller’s abuse investigation was concluded. The constitutional
deprivation at issue at this point is Daughter’s initial removal
from Mother’s home, so being heard much later, after the
deprivation, fails to address the harm.



       31
           Because it is uncontested that Appellees failed to
initiate a post-removal hearing in this case, we need not, and
do not, opine on the precise contours of the process that
Mother was due. Speaking generally, however, it should be
obvious that a hearing 40 days later is not sufficiently prompt.
The delay should ordinarily be measured in hours or days, not
weeks.




                              46
        Of course, “[t]he right to familial integrity … does not
include a right to remain free from child abuse
investigations.” 
Croft, 103 F.3d at 1125
. However, in view
of the extremely important liberty interests at stake here, due
process required the County to offer Mother a chance to be
promptly heard after they took Daughter from her home,
regardless of whether or not state law independently imposed
that obligation. See Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532
, 541 (1985) (the question of “what process is
due” is a matter of constitutional law, not state law (citation
and internal quotation marks)). And because there is no
dispute about the historical fact that Mother was not offered
the post-removal hearing to which she was constitutionally
entitled, we agree with Mother that the District Court should
have determined that the County violated her right to
procedural due process. 32


       32
          Had the County acted pursuant to a “protective
custody order,” rather than via an order transferring custody
between parents, its failure to provide a prompt hearing may
have also violated Pennsylvania law. See 42 Pa. Cons. Stat.
Ann. § 6324(1) (permitting the state to take a child into
custody pursuant to “a protective custody order removing a
child from the home of the parent, guardian, or custodian” if
the courts determines “that to allow the child to remain in the
home is contrary to the welfare of the child”). As described
above, 
see supra 
note 11, Pennsylvania law requires that an
informal hearing be held if protective custody is maintained
for longer than 72 hours. 23 Pa. Cons. Stat. Ann. § 6315(d).
Here, however, the County never claimed to be taking
Daughter into protective custody, and it transferred Daughter
to Father’s care well before 72 hours had elapsed.




                              47
       That, however, does not end our inquiry, because we
must also determine whether that due process irregularity
resulted in some damage. See Carey v. Piphus, 
435 U.S. 247
,
264 (1978) (holding that a plaintiff asserting a procedural due
process claim under § 1983 must introduce proof of damages
arising from the alleged due process violation in order to
recover actual damages). The County argues that it did not,
claiming that regardless of “the sufficiency of the process
granted … plaintiffs [cannot] demonstrate that such process
would have borne a different result.” (Appellees’ Br. at 29.)
Thus, the County says, the District Court appropriately
entered judgment in its favor. That is mistaken.

       If nothing else, the violation of Mother’s right to
procedural due process would be a basis for awarding
nominal damages. See 
Carey, 435 U.S. at 266 
(“[W]e believe
that the denial of procedural due process should be actionable
for nominal damages without proof of actual injury.”);
Simmons v. Uintah Health Care Special Dist., 
506 F.3d 1281
,
1286 (10th Cir. 2007) (“Even when one does not prove any
compensable damages from a due process violation, under
Section 1983 a cause of action and nominal damages remain
available.”). More importantly, however, there could be a
finding of actual damages.

       The County is blind to that prospect. It asks us to hold
that no rational jury could conclude that a post-removal
hearing would have made a difference, because, as the
County sees it, no one could think the underlying facts are the
least ambiguous: Mother was starving Daughter, and that’s
that. But Daughter was weighed on May 5 and May 8,
immediately after having been in Mother’s care, and those
weights demonstrated a noteworthy improvement in her




                              48
condition. For that very reason, Dr. Lindblad testified that he
likely “would have waited until another opportunity to
examine [Daughter] before calling the ChildLine,” if he had
been aware of the May 5, 2006 weight of “22 pounds, 2
ounces.” (Joint App. at 369.) Another expert wondered why
Daughter was removed, since she had shown meaningful
improvement while in Mother’s then-recent custody. (See 
id.
at 695 (“It 
is unclear to me why the child was removed on a
day when she showed significant weight gain for the first
time while under the mother’s care.”).) Daughter’s May 5
and May 8 weights could have come to light if a post-removal
hearing had been conducted, 33 and, given the significance of
those weights, a reviewing judge may have ordered Daughter
to be returned to Mother’s custody if the judge accepted
Mother’s account of how the weigh-ins were conducted. 34 In

       33
          Appellees have not directed us to any evidence that
the May 5 and May 8 weights were brought to Judge Cascio’s
attention at the hearing on Mother’s habeas corpus petition,
and we have found none in the appellate record. Even if the
new weights were discussed at that hearing, we would not
necessarily reject Mother’s claim to damages, as the primary
issue at that hearing was not whether Daughter’s removal was
appropriate but, rather, whether the state had an obligation to
conduct a post-removal hearing under the CPSL, given that
Daughter had not been taken into state custody.
       34
         There are serious questions as to whether the May 5
and May 8 weights were valid results. Our dissenting
colleague indicates that Daughter must have been clothed
when she weighed in at 22 pounds, 2 ounces because Eller
made that first-hand observation on May 5. (see Dissent at 13
(arguing that Daughter “was clothed during [the May 5]
weigh-in”).) So do Appellees, relying on Eller’s testimony




                              49
short, it is not obvious that the custody determinations would
have been the same, had the information regarding the May 5
and May 8 weights been fully aired.

      The only remaining question, then, is whether the
County is accountable to Mother for whatever damages a jury
finds she sustained as a result of that constitutional


that Daughter was clothed when she was weighed on May 5
and May 8. If a jury accepts that testimony, as the dissent
does, it may find that Mother suffered no damages in
connection with the procedural due process violation
committed here. However, despite any suggestion to the
contrary, that testimony is not uncontroverted; Daughter’s
medical record from Berlin Pediatrics lists those weights, and
the only indication that Daughter was clothed was added by
Eller herself. 
See supra 
note 17. That Berlin Pediatrics
recorded Daughter’s weights as having increased is
undisputed. Eller’s notation and testimony are disputed,
however, as a physician from that practice testified that it was
the “standard practice” to weigh a child such as Daughter
“without … clothes.” (Joint App. at 371.) Although that
physician did not observe Daughter being weighed on May 5
or May 8, we disagree with the dissent’s implicit conclusion
that the physician’s testimony about the way the clinic
conducted weigh-ins could not be accepted by a rational jury
and lead the jury to then question Eller’s account of how the
May 5 and May 8 weights were taken. (See Dissent at 13
(noting that the doctor “never challenged Eller’s testimony
that, in essence, his protocol was not followed on that
occasion”).) We do not imply how this factual dispute ought
to be resolved; we only note that the dispute exists.




                              50
violation. 35 With respect to municipalities such as the
County, that inquiry turns on whether the due process
violation was a result of the County’s “policy or custom,
whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy.” Monell v.
Dep’t of Soc. Servs. of the City of N.Y., 
436 U.S. 658
, 694
(1978). A policy is a decision of a municipality’s “duly
constituted legislative body” or of “officials whose acts may
fairly be said to be those of the municipality.” Bd. of the
Cnty. Comm’rs of Bryan Cnty. v. Brown, 
520 U.S. 397
, 403-
04 (1997). A custom is a practice that, although “not …
formally approved by an appropriate decisionmaker … is so
widespread as to have the force of law.” 
Id. at 404. “In 
either
of these cases, it is incumbent upon a plaintiff to show that a
policymaker is responsible either for the policy or, through
acquiescence, for the custom.” Andrews v. City of Phila., 
895
F.2d 1469
, 1480 (3d Cir. 1990); see Chambers ex rel.
Chambers v. Sch. Dist. of Phila Bd. of Educ., 
587 F.3d 176
,
193 (3d Cir. 2009) (same).

       Although the record does not support a conclusion that
the County has a formal policy against providing hearings for
parents such as Mother, the evidence does demonstrate, as the
County essentially admits in its briefing (see Appellees’ Br. at
23 (referring to the County’s “Summary and Order
procedure”)), that, amidst abuse allegations, the County has a
custom of removing children from a parent’s home without
conducting a prompt post-removal hearing if another parent

       35
            As discussed above, 
see supra 
Part III.A, we
conclude that Eller and Barth are absolutely immune from
liability relating to the failure to afford Mother a prompt post-
removal hearing.




                               51
can take custody. Hunt, the Assistant Director of Somerset
County Children and Youth Services, testified that the
procedure employed to remove Daughter from Mother’s
custody without a hearing is utilized in circumstances in
which there is a “fit-and-willing parent” to be “given the right
by the court to care for the child.” (Joint App. at 330.)
Douglas Walters, a caseworker supervisor at Somerset
County Children and Youth Services, elaborated that the
process is used several times each year, explaining that
caseworkers at the agency would know they could “obtain an
order to stop contact until [the agency] could investigate” in a
case such as Mother’s (id. at 339-340), because they would be
informed of that option “through discussions and meetings,
ongoing meetings, … with the[ir] supervisors,” (id. at 340).

      Thus, while the relevant policymaker is not readily
apparent, 36 the evidence shows conclusively that, when a non-

       36
           “The question of who is a ‘policymaker’ is a
question of state law,” to be addressed by a court, not a jury,
in “determin[ing] which official has final, unreviewable
discretion to make a decision or take an action.” 
Andrews,
895 F.2d at 1481
. Here, the District Court never determined
who the relevant policymaker was, since it simply determined
that Mother’s constitutional rights were not violated.
Although we think it likely that Hunt would qualify as a
policymaker for Monell purposes, the record and briefing is
not sufficient to enable us to definitively answer that question
in the first instance. We need not direct the District Court to
consider that issue afresh on remand, however, because while
“the identification of those officials whose decisions represent
the official policy of the local governmental unit is itself a
legal question to be resolved by the trial judge,” Jett v. Dallas




                               52
custodial parent is available to take a child, it is customary for
the County to temporarily suspend the other parent’s custody
rights without a hearing, when abuse is suspected. That
custom was utilized with official approbation in this case.
And, because there is no question that what the County calls
its “Summary and Order procedure” (Appellees’ Br. at 23)
violated Mother’s right to a prompt post-removal hearing, we
conclude that the County is liable under § 1983 for whatever
damages a jury may deem appropriate to redress that
violation. See 
Andrews, 895 F.2d at 1480 
(stating that
liability attaches “only when execution of a government’s
policy or custom … inflicts the injury” (citation omitted)).

              2.     Other Due Process Claims Against the
                     County

        We now briefly turn to Mother’s second procedural
due process claim against the County, which arises from
Eller’s ex parte report of the child abuse investigation to
Judge Cascio on June 23, 2006, and to her substantive due
process claim. There is no evidence supporting § 1983
liability against the County for either claim. Mother does not
allege that the June 23, 2006 meeting with Judge Cascio was

Indep. Sch. Dist., 
491 U.S. 701
, 737 (1989), Appellees’
effective admission of a custom obviates any need to have a
court “determine, by reference to local law, which … officials
had final policymaking authority,” Simmons v. City of Phila.,
947 F.2d 1042
, 1065 (3d Cir. 1991) (Becker, J., concurring);
cf. 
id. at 1089 n.1 
(Sloviter, J., concurring) (“I do agree …
with Judge Becker’s conclusion … that the City waived its
claim that plaintiff failed to identify the responsible
[policymaker] … .”).




                               53
made pursuant to any policy or custom. Lacking such
evidence, we must conclude that the District Court was
correct in holding that the County is not liable under § 1983
for any alleged constitutional harm arising from that meeting.
See 
Monell, 436 U.S. at 694 
(“[I]t is when execution of a
government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.”).
Similarly, Mother’s substantive due process claim focuses
entirely on Eller’s conduct, alleging that her “concoct[ion]
[of] facts” and “manipulation of evidence” to effectuate
Daughter’s removal was so egregious that it “shocks the
conscience.” (Appellant’s Opening Br. at 52-53.) Because
Mother provides no evidence that the County had a policy or
custom endorsing such behavior, if it occurred, we agree with
the District Court that the County is entitled to summary
judgment on the substantive due process claim as well.

IV.   Conclusion

       For the foregoing reasons, we affirm in part and
reverse in part the District Court’s order. We affirm the
District Court’s order to the extent it awarded judgment in
favor of Eller and Barth on the procedural due process claims;
awarded judgment to all Appellees on the substantive due
process claims; and awarded judgment to the County on the
procedural due process claim as it relates to the June 23
meeting. We reverse the District Court’s denial of summary
judgment to Appellant on her procedural due process claim
against the County for its violation of her right to a post-
removal hearing, and we remand this case for a trial on the
damages associated with that violation.




                             54
 B. S., and B.S. as guardian and parent of T.S., G.S., and N.S.,
v. Somerset County; Somerset County Children and Youth
Services; Jessica Eller; Julie Barth, No. 11-1833.

Nygaard, Circuit Judge, concurring in part, dissenting in part.


         I agree with the majority that the May 5, 2006
meeting between Eller and Judge Cascio violated procedural
due process, and that the County is liable for this violation. I
also agree that caseworkers Eller and Barth are immune from
liability on this issue. I write separately because I disagree
with the majority on the type of immunity that should be
extended to Eller and Barth, and because I differ on the scope
of the procedural due process remand.

       As to the June 23, 2006 ex parte meeting, I conclude
that Eller violated procedural due process, and I would not
grant her any immunity on this claim. Nonetheless, I would
instruct the District Court to award only nominal damages.

       Finally, I agree with the majority that B.S.’s
substantive due process claim regarding M.N.’s initial
removal from B.S.’s house does not have any merit.
However, I reach the same conclusion on all of B.S.’s
substantive due process claims. As a result, I do not find any
error in the District Court’s grant of summary judgment on
these claims.


                May 5, 2006 Ex Parte Meeting

                     Absolute Immunity
       In light of our long tradition of reluctance to extend the
scope of immunity, I would not adopt the District Court’s
broad interpretation of Ernst as to the May 5, 2006 meeting
between Jessica Eller and Judge Cascio, applying absolute
immunity anytime a court order has been issued, regardless of
the context in which the order came about. I agree that a
functional analysis is appropriate to assess whether it is
proper to extend absolute immunity, but we must take care to
provide such immunity only where it is clear that it comports
with the larger concerns of procedural due process.

       As the Supreme Court said:

              Advocates are restrained not only
              by their professional obligations,
              but by the knowledge that their
              assertions will be contested by
              their adversaries in open court.
              Jurors are carefully screened to
              remove all possibility of bias.
              Witnesses are, of course, subject
              to the rigors of cross-examination
              and the penalty of perjury.
              Because these features of the
              judicial process tend to enhance
              the reliability of information and
              the      impartiality    of     the
              decisionmaking process, there is a
              less pressing need for individual
              suits to correct constitutional
              error.




                               2
Butz v. Economou, 
438 U.S. 478
, 512 (1978). When a child
welfare worker functions in the nature of a prosecutor in the
context of a judicial process that provides for cross-
examination and rebuttal (eliminating the need for collateral
litigation to challenge the caseworkers conduct), the full array
of considerations appropriate to absolute immunity are
addressed. That is the significance, in Ernst, of our grant of
absolute immunity to caseworkers in the context of
dependency proceedings, a limitation ensuring that the parties
and the court have ample opportunities to scrutinize the
caseworker’s conduct, decisions and recommendations.
Ernst, 108 F.3d at 497
; see also Juvenile Act (42 Pa.C.S. §
6324(1)); see also Child Protective Services Act (23 Pa.C.S. §
6315(a)(1)).

        For this reason, I cannot accept the majority’s
affirmation of the District Court’s formula for providing
absolute immunity—essentially applying anytime a court is
involved. It provides an overbroad standard that does not
comport with fundamental concerns underlying absolute
immunity.      Although Eller’s and Barth’s conduct and
conclusions were placed before a judge in a summary
proceeding, their decisions and actions occurred within a
process structured to ensure that they were never going to be
subjected to cross examination or rebuttal.            This is
fundamentally at odds with our long-standing concern to
extend absolute immunity only where procedural due process
is available. Yet, my difficulty with the majority’s conclusion
goes far deeper.

       The Court of Appeals for the Ninth Circuit said:
“[S]tate law must authorize the prosecutorial or judicial
function to which absolute immunity attaches.” Chalkboard,




                               3
Inc. v. Brandt, 
902 F.2d 1375
, 1379 (9th Cir. 1989). I agree.
In Chalkboard, the Court denied absolute immunity to state
actors, ruling that the Arizona Department of Health Services
was not acting within the “role assigned to it by state law”
when it summarily closed a day care center. 
Id. The majority
broadly 
analogizes Eller’s and Barth’s decisions and actions
to those of a prosecutor both because they seem to fall in the
category of functioning as a state advocate, and also because
Eller interacted with the state court. But, even if we ignore
the pro forma and insular nature of the interaction between
Eller and Judge Cascio that call the prosecutorial analogy into
question, a closer analysis reveals that Eller did not have any
statutory authorization to approach the judge to request this
particular order.

       The starting point for understanding the state’s
authority in child welfare cases is the dependency process.
“Before interfering with a parent's care and control of a child
and ordering the intervention of an agency of the state, a court
must first determine that the child is dependent.” In Interest
of Theresa E., 
429 A.2d 1150
, 1155 (Pa. Super. 1981), citing
42 Pa.C.S. § 6341. However, in an emergency, a dependency
determination is not necessary. 1 The Child Protective
Services Law states the following:

1
  The Pennsylvania Superior Court said: “in a dependency
proceeding, a court may grant custody of an allegedly
dependent child to that child’s non-custodial parent without
first declaring the child dependent as long as sufficient
evidence of dependency exists.” In Interest of Justin S., 
543
A.2d 1192
, 1198 n.2 (1988). The Pennsylvania Supreme
Court went further, stating that “where a non-custodial parent
is ready, willing, and able to provide adequate care to a child,




                               4
            A child may be taken into
            custody: (1) Pursuant to an order
            of the court under this chapter.
            Prior to entering a protective
            custody order removing a child
            from the home of the parent,
            guardian or custodian, the court
            must determine that to allow the
            child to remain in the home is
            contrary to the welfare of the
            child. (2) Pursuant to the laws of
            arrest. (3) By a law enforcement
            officer or duly authorized officer
            of the court if there are reasonable
            grounds to believe that the child is
            suffering from illness or injury or
            is in imminent danger from his
            surroundings, and that his
            removal is necessary. (4) By a
            law enforcement officer or duly
            authorized officer of the court if
            there are reasonable grounds to
            believe that the child has run
            away from his parents, guardian,
            or other custodian. (5) By a law
            enforcement officer or duly
            authorized officer of the court if
            there are reasonable grounds to
            believe that the child has violated



a court may not adjudge that child dependent.” In re M.L.,
562 A.2D 46, 650 (2000).




                             5
             conditions    of       his   probation.

42 Pa.C.S. § 6324 (emphasis added). A treating physician or
director of a hospital can take a child into protective custody
for up to 24 hours if they determine a child to be in immediate
danger. 23 Pa.C.S. §6315(1). After 24 hours, a county
agency must get an order to authorize an extension of the
protective custody. 
Id.

       Somerset County, Eller 
and Barth say that they did not
take M.N. into protective custody, nor did they ask the court
to commence a dependency proceeding to determine the
status of the child. Instead, they say, they were merely
transferring custody between parents. As they were keen to
note throughout their argument, this distinction goes far
beyond mere semantics because by seeking this order—unlike
a protective custody order—they avoided all hearing
requirements.

       The Child Protective Services Law states that “[i]n no
case shall protective custody under this chapter be maintained
longer than 72 hours without an informal hearing under 42
Pa.C.S. § 6332.” 23 Pa.C.S. § 6315. The hearing is held to
determine:

             whether [the child’s] detention or
             shelter care is required under
             section 6325 (relating to detention
             of child), whether to allow the
             child to remain in the home would
             be contrary to the welfare of the
             child . . . [and] [i]f the child is
             alleged to be a dependent child,




                                6
             the court or master shall also
             determine whether reasonable
             efforts were made to prevent such
             placement or, in the case of an
             emergency placement where
             services were not offered and
             could not have prevented the
             necessity of placement, whether
             this level of effort was reasonable
             due to the emergency nature of
             the situation, safety considerations
             and circumstances of the family.

42 Pa.C.S. § 6332. I conclude from this that the state has
statutory authority to seek an order removing the child from a
parent under two circumstances:          following a court’s
determination of dependency; and through the mechanism of
a protective custody order where the child is in imminent
danger of harm. Appellees did neither of the above,
removing the child under an order that merely transferred
custody between parents. Again, in this case, the difference
goes beyond mere semantics, since appellees viewed what
they were doing as fundamentally different from the process
established in the statutes. This, according to their own
argument, is why their conduct did not need to be subjected to
the same scrutiny that is dictated in the statutory processes.
They were not initiating a dependency process, nor were they
seeking a protective custody order. Rather, they were merely
initiating a custody process between parents. They were
functioning, therefore, in a different capacity. This is where
the problem arises.




                              7
       Pennsylvania law says the following regarding
standing to bring custody actions.

           The following individuals may
           file an action under this chapter
           for any form of physical custody
           or legal custody: (1) A parent of
           the child.      (2) A person who
           stands in loco parentis to the
           child. (3) A grandparent of the
           child who is not in loco parentis
           to the child: (i) whose relationship
           with the child began either with
           the consent of a parent of the
           child or under a court order; (ii)
           who assumes or is willing to
           assume responsibility for the
           child; and (iii) when one of the
           following conditions is met: (A)
           the child has been determined to
           be a dependent child under 42
           Pa.C.S. Ch. 63 (relating to
           juvenile matters); (B) the child is
           substantially at risk due to
           parental abuse, neglect, drug or
           alcohol abuse or incapacity; or
           (C) the child has, for a period of
           at least 12 consecutive months,
           resided with the grandparent,
           excluding        brief    temporary
           absences of the child from the
           home, and is removed from the
           home by the parents, in which




                            8
             case the action must be filed
             within six months after the
             removal of the child from the
             home.

23 Pa.C.S.A. § 5324. The state is not given standing to, sua
sponte, initiate court proceedings solely to alter the custody
between parents. The problem is that by seeking a custody
order rather than a protective custody order, they functioned
outside of the statutory structure of the Child Protective
Services Law and the Juvenile Act, and more important for
immunity analysis, outside of their statutory authority. 2 The
state has a broad mandate to protect children from abuse, but
it must secure their safety in a manner that is consistent with
their statutory authority. To receive the benefits of absolute
immunity, child welfare workers, like prosecutors, must act
within the confines of their legal authority. By stepping
beyond this boundary, even if they were functioning
prosecutorially, they crossed a bright line and placed
themselves outside of the protective umbrella of absolute
immunity.



2
  Pennsylvania courts have been careful to distinguish
dependency proceedings from custody actions. “This Court
has stated strong disapproval of the use of a dependency
proceeding as a means of transferring custody of a child from
one parent to another.” In re A.E., 
722 A.2d 213
, 215 (Pa.
Super. Ct. 1998); citing Helsel v. Blair County Children and
Youth Services, 
519 A.2d 456
, 460 (Pa.Super.1986); In the
Matter of Mark T., 
442 A.2d 1179
, 1182 (Pa.Super.1982)
(Beck, J. concurring).




                              9
       Therefore, for all of the above reasons, I disagree with
the majority and conclude that it is not proper to extend
absolute immunity to Eller and Barth for B.S.’s procedural
due process claim arising from the May 5, 2006 ex parte
meeting. 3


       Qualified Immunity for the May 5, 2006 Meeting

        I would, instead, affirm the District Court’s alternative
ruling that Eller and Barth should receive qualified immunity.
The qualified immunity analysis is focused on the “‘objective
legal reasonableness of the action, assessed in light of the
legal rules that were clearly established at the time it was
taken.’” Montanez v. Thompson, 
603 F.3d 243
, 251 (3d Cir.
2010) (quoting Pearson v. Callahan, 
555 U.S. 223
, 231 (3d
Cir. 2009). This ‘“gives ample room for mistaken judgments
by protecting all but the plainly incompetent or those who
knowingly violate the law.’” 
Id. (quoting Gilles v. 
Davis, 
427
F.3d 197
, 203 (3d Cir. 2005)). The analysis is objective, but
still requires that we take into account the context in which


3
  This conclusion is further supported by the fact that the
caseworkers were not requesting the court to “prosecute”
anything: they were not seeking a court declaration regarding
the status of the child, nor were they asking the court to
adjudicate anything about B.S.’s conduct. Rather, they were
merely attempting to unilaterally change the custody
arrangement between the parents.          Denying absolute
immunity here is consistent with our recognition that such
immunity requires “meticulous analysis” of a prosecutor’s
actions. Odd v. Malone, 
538 F.3d 202
, 208 (3d Cir. 2008).




                               10
Eller and Barth acted. Therefore, we must consider a number
of factors.

       First, Pennsylvania’s legal landscape is somewhat
confusing. As I noted above, the Pennsylvania Supreme
Court said the following:

             [I]t is the duty of the trial court to
             determine whether the non-
             custodial parent is capable and
             willing to render proper parental
             control prior to adjudicating a
             child dependent. If the court
             determines that the custodial
             parent is unable to provide proper
             parental care and control “at this
             moment” and that the non-
             custodial parent is “immediately
             available” to provide such care,
             the child is not dependent under
             the provisions of the Juvenile Act.
             Consequently, the court must
             grant custody of the allegedly
             dependent child to the non-
             custodial parent. Once custody is
             granted to the non-custodial
             parent, “the care, protection, and
             wholesome mental and physical
             development of the child” can
             occur in a family environment as
             the purpose of the Juvenile Act
             directs. 42 Pa.C.S. § 6301(b).




                              11
In re M.L., 
757 A.2d 849
, 851 (Pa. 2000) (emphasis added)
(quoting In Interest of Justin S., 
543 A.2d 1192
, 1200 (Pa.
Super. 1988)). I read this provision as dictating a particular
result after a dependency action has been commenced. Yet,
fairly read, this holding creates the impression that, in
circumstances like that of B.S., a post-deprivation hearing
would be, at best, perfunctory.

        Second, the County argued that In re ML and the
Pennsylvania statutes made the dependency process
inapplicable to their summary and order procedure. 4 As a
result, I query whether there existed a sufficiently confusing
environment that would cause a reasonable caseworker to
mistakenly conclude that a post-deprivation hearing was not
required here. I conclude that this is the case. See O'Brien v.
City of Grand Rapids, 
23 F.3d 990
, 1004 (6th Cir. 1994)
(“The policy, practice, or custom was taught by a national
authority on the management of critical incidents, a person
upon whom it was not unreasonable to rely. The officers’
response, which did not vary from the policy, practice, or
custom, entitles them to qualified immunity.”). Although the
right to a post-deprivation hearing is deeply embedded in our
society, we cannot expect caseworkers to parse state supreme
court precedent and interpret state law in a way that is
contrary to an accepted agency custom. In light of the
confusing legal landscape that exists, it was not unreasonable
for Barth and Eller to rely upon an established agency custom
to guide their handling of the case. For this reason I conclude
that the District Court properly determined that Eller and

4
 I am also aware of the pervasive concern for acting in the
best interest of the child.




                              12
Barth have qualified immunity and are protected from section
1983 liability for the failure to provide B.S. with a post-
deprivation hearing.


     Remand on Damages for the May 5, 2006 Meeting

       I also disagree with the scope of the majority’s remand
regarding the County’s liability on the procedural due process
violation arising from the May 5, 2006 meeting. I concur
with their conclusion that nominal damages are substantiated,
but disagree that further damages may be appropriate. The
majority concluded that there was a factual dispute about
M.N.’s weight on the day that the County removed her from
B.S.’s custody. I see no such dispute.

       My disagreement with the majority is focused upon a
single point of reference in the record: M.N.’s weight on
May 5, 2006, the day she was removed from B.S.’s house.
There is no dispute that the records specify M.N.’s weight on
that day as 22 pounds, 2 ounces. However, Eller, who was
present at the medical exam on that day, stated that M.N. was
clothed during this weigh-in. No one disputes this, nor do
they dispute the fact that prior weights were taken when the
child was not clothed.

       M.N.’s pediatrician testified only that, in his practice,
children were usually weighed without clothes. Yet, he was
not present for M.N.’s weigh-in on May 5, 2006 and,
significantly, he never challenged Eller’s testimony that, in
essence, his protocol was not followed on that occasion. It is
axiomatic that, in the absence of any challenge to Eller’s
factual statement, B.S. failed to create a factual dispute.




                              13
       B.S.’s argument, therefore, is that the court would not
have ordered M.N.’s removal, or would have immediately
returned M.N. to her, if she had been able to present this
weight to the court—even though the weight was taken while
M.N. was clothed. In light of the Dr. Lindblad’s diagnosis
and report, 5 and other information before the court at that
time, I do not regard such an inference as reasonable. 6 For

5
   At deposition, B.S. presented Dr. Lindblad with a
hypothetical in which M.N.’s weight was actually 22 pounds,
2 ounces on May 5. Under this hypothetical, Lindblad stated
that, while failure to thrive diagnoses are based upon a trend
of data rather than a discreet data point, he would have to take
this information into account before deciding on a failure to
thrive diagnosis. Yet, as with M.N.’s pediatrician, B.S. never
asked Dr. Lindblad to consider the actual data that included
the weight of M.N.’s clothes. Lindblad never commented on
the real data. (Interestingly, however, Linblad detected that
the hypothetical was flawed because he stated that such a
hypothetical weight would have been highly suspect to him
because it diverged so greatly from M.N.’s prior growth.)
The majority’s use of Lindblad’s testimony to suggest that he
retracted his diagnosis and ChildLine complaint diverges
from fact.
6
  B.S. fails to raise a dispute of material fact about the
fundamental assertion made in Eller’s summary that she
presented to the court: Dr. Lindblad diagnosed M.N. with
psycho-social failure to thrive due to chronic low weight gain
that, from clinical observation of both M.N. and B.S., likely
was caused by B.S.’s conduct. The court’s decision to
remove M.N. from B.S.’s custody was ultimately based on
this observation and diagnosis. Nothing stated in any of the




                              14
this reason, I conclude that there is no basis to send the issue
of damages to a jury. I would, instead, remand with
instruction for the District Court to award nominal damages.


               June 23, 2006 Ex Parte Meeting 7



reports of the doctors or caseworker specifically addresses,
much less refutes, any of this. Moreover, clarification of
Eller’s reference to 19 pounds would not have materially
changed anything. This is so because, even if B.S. could have
produced credible evidence of a different weight—the
weights taken, for instance, by either of the two physicians
who examined M.N. in late April—the evidence would still
have supported a conclusion that M.N. was severely
underweight while under the care of B.S.
7
  In a footnote, B.S. generally states that Eller’s decisions
“had to have the approval of her supervisor and Agency
policy-makers before it could be extended.” Yet, as to the
June 23, 2006 meeting, B.S. failed to detail any specific
challenge to the grant of summary judgment in favor of Barth.
I am aware that, under section 1983, “a supervisor may be
personally liable under § 1983 if he or she participated in
violating the plaintiff’s rights, directed others to violate them,
or, as the person[s] in charge, had knowledge of and
acquiesced in [their] subordinates’ violations.” A.M. ex rel.
J.M.K. v. Luzerne County Juvenile Detention Center, 
372
F.3d 572
, 586 (3d Cir. 2004); see also Santiago v.
Warminster Twp., 
629 F.3d 121
, 129 (3d Cir. 2010). In this
case, however, B.S.’s failure to raise a specific challenge as to
Barth waives the issue of the District Court’s decision




                               15
       As to the June 23, 2006 meeting between Eller and
Judge Cascio, I disagree with the majority that there is any
basis to extend absolute immunity to Eller on the procedural
due process claim. Like the May 5 meeting, even if I agreed
that the conduct can be analogized as prosecutorial, Eller had
no authority to approach the court to propose another custody
order. As a result, there is no basis for absolute immunity.

                     Qualified Immunity

       My disagreement with the majority on the June 23
meeting goes further in that I would not extend even qualified
immunity to Eller. As I noted in the discussion of the May 5,
2006 meeting, the constitutional protection against ex parte
meetings is well-established. I concluded that qualified
immunity was due in that instance, however, because of the
combination of a confusing legal landscape and a County
custom that misguided the caseworkers actions. Yet, for the
June 23, 2006 meeting, there was no applicable County
custom. This, to me, is decisive. Eller, acting in discernibly
non-emergency circumstances, made the decision to meet ex
parte with Judge Cascio on June 23. There is no evidence to
suggest that Eller did so at the behest of any County
authority, nor was she ordered to do so by the court.
Therefore, I must conclude that she acted on her own.
Accordingly, there is no basis to conclude that Eller made a
reasonable mistake by approaching Judge Cascio ex parte.


granting qualified immunity to Barth for liability arising from
the June 23, 2006 meeting with the court.




                              16
Nonetheless, as with the May 5, 2006 ex parte meeting, I
would award only nominal damages because there is no
reasonable basis to infer that the outcome of the meeting
would have been different if B.S. had been given the
opportunity to confront the evidence.

       As with the May 5 meeting, the inquiry on the June 23
meeting focuses on whether B.S.’s inability to confront
information provided at the meeting prejudiced the outcome. 8
Yet, as I noted in my analysis of injury arising from B.S.’s

8
   Eller gave the court the summary and proposed order,
neither of which provided any details about the investigation.
The summary stated only that upon completion of its
investigation regarding serious physical neglect, “[t]he CY-48
was filed on June 19, 2006 with Childline and substantiated
[B.S.], the natural mother, as the perpetrator.” The proposed
order stated only that “due to the indicated report of serious
physical neglect whereby B.S. is the perpetrator, it is hereby
ordered . . . .” Nonetheless, by the time of the second hearing
the County had completed its CY-48 investigation,
determining that Lindblad’s accusation of child neglect by
B.S. was “indicated.” B.S. plainly disputes the conclusion of
the summary given to the court and disagrees with the
custody recommendation, but the focus of her challenge is
with information that is contained in or left out of the CY-48.
For the sake of summary judgment—since the report was
filed before the hearing—I would assume that B.S. had an
opportunity to read it and formulate the objections that she
voices in this appeal. Moreover, I would presume that her
presence at the June 23 meeting would have provided her
with a forum to raise numerous issues with the investigation.




                              17
other procedural due process claim, I do not find any
reasonable basis for the District Court to have inferred that
the state court would have made a decision more favorable to
B.S. based upon the weight record from the May 5 doctor
appointment. The state court’s ignorance of this record was
of no moment. The same reasoning applies here. 9

       As to the May 8 weight record, according to Eller, the
natural father reported the child was also clothed during this
weigh-in. However, even were we to disregard Eller’s
undisputed testimony here because she was not physically
present at the examination, I note that this weight was taken
after M.N had been in the custody and care of her natural
father for three days. As a result, it would not have been
reasonable for the District Court to construe this weight
record as evidence favorable to B.S.’s claims of constitutional
harm, since –objectively—it arose from the period of time in
which the natural father, not B.S., had custody of M.N.

     We are required to make only reasonable inferences at
summary judgment.

       Because B.S.’s issues with the CY-48 are predicated
on the May 5 and May 8 weights, weights that do not support
B.S.’s claims, I must conclude that all of the issues that B.S.
raises regarding the report are baseless. Therefore, lacking
any reasonable challenge to Eller’s recommendation, there is
no evidentiary support for actual prejudice arising from the

9
 There is no evidence that this record was actually submitted
with the CY-48. For purposes of summary judgment, I
presume that it was.




                              18
June 23 meeting between Eller and the state court and,
therefore, no evidence of actual, compensable, harm. Yet, as
with the May 5, 2006 procedural due process violation, I
would remand to the District Court with instructions to award
nominal damages.


              Substantive Due Process Claim 10

       As to the substantive due process claim, I agree with
the majority that, as to B.S.’s substantive due process claims
arising from M.N.’s removal, no reasonable fact-finder could
rule that Eller’s actions shock the conscience. I differ from
both of my colleagues, however, in reaching the same
conclusion for all of B.S.’s substantive due process claims. I,
therefore, do not reach the issue of absolute immunity on this
issue.

       Eller acted originally upon the report of one of M.N.’s
attending physicians, who had sustained contact with both
M.N. and B.S. over a period of time. Moreover, the
physician’s suspicions of serious neglect arose from
observations he made that were grounded in his field of
medical expertise. Eller’s subsequent investigation gathered
a large amount of data, which provided a very consistent
description of M.N. as one who was severely underweight
while under the care of B.S. and who gained weight
appropriately while under the care and supervision of others.
Finally, while the weight of 22 pounds, 2 ounces is,

10
   I agree with the majority that that B.S. waived the
substantive due process issue as to Barth and the County.




                              19
technically, over the threshold for a failure to thrive
diagnosis, the margin by which it exceeds it is extremely
slight. Additionally, the weight from May 5 (and the May 8
weight) is a notable outlier when charted with all of M.N.’s
recorded weights. This is important in light of Lindblad’s
testimony that his assessment arose from long-term patterns
that he observed, rather than discrete data points. Viewed in
this larger context, even if I could have concluded that Eller
mishandled the May 5 or May 8 weight records, her
misstatement or misjudgments could hardly be regarded as
egregious or conscience shocking.

       B.S. attempts to tie all of the alleged errors together by
claiming that Eller had an agenda throughout this time to
deprive her of custody in favor of the natural father. The
problem, however, is that B.S. did not substantiate this
theory. She pointed to one possibly uncommon statement in
the May 5 order requiring her to refrain from “badgering or
harassing the agency staff, belitteling [sic] any service
providers or the natural father.” She claims that this is
evidence that Eller had a negative view of her. Yet, B.S. fails
to produce any evidence from which the District Court could
have reasonably inferred such an agenda against her, much
less a causal link to the caseworker’s conduct. Without this,
her entire substantive due process claim fails.

       Accordingly, I do not find any error in the District
Court’s decision to grant summary judgment in favor of Eller
regarding B.S.’s substantive due process claims.




                               20