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Nancy Kovacic, et al v. Cuyahoga County Department of Children and Family Services

August 25, 2011


The opinion of the court was delivered by: Judge Sara Lioi


Plaintiffs in this case are Daniel and Katherine Kovacic, who were both minors when this suit was filed. Plaintiffs allege civil rights violations against various county and city entities and individual municipal employees and seek damages resulting from the warrantless entry into their home and their temporary removal from the care and custody of their mother, Nancy Kovacic. Following appeal and remand from the Sixth Circuit Court of Appeals, the remaining defendants include Cuyahoga County Department of Children and Family Services (CCDCFS), and social workers, Patricia Campbell Ponstingle, Pam Cameron, Vikki Csornok and Pam Gaylord (collectively, "defendants").

Before the Court are the motions for summary judgment filed by plaintiffs (Doc. 120) and defendants (Doc. 121). Defendants oppose plaintiffs' motion (Doc. 125). Plaintiffs oppose defendants' motion (Doc. 129), and defendants have filed a reply brief (Doc. 131). For the reasons that follow, the dispositive motions are GRANTED in part, and DENIED in part.


The history of this case dates back to 1995, when, following the contentious divorce of Nancy and Tom Kovacic, CCDCFS began receiving reports of alleged abuse and neglect by Nancy of the couple's two children, Katherine and Daniel, including one incident where Daniel allegedly stabbed his mother with a pen. Mr. Kovacic had also reportedly assaulted Daniel.

On March 1, 2002, the CCDCFS social worker assigned to the case, Patricia Campbell Ponstingle, interviewed Daniel at his school. Daniel told Ponstingle that his mother hit him on a regular basis and had given his sister a bloody nose "awhile ago for being too loud." On March 22, 2002, Ponstingle scheduled an intervention meeting or "staffing" for March 26, 2002 to address the abuse allegations and discuss the service options available to keep the family "intact." CCDCFS had not contemplated removal of the Kovacic children at that time.

Plaintiffs contend that on the morning of March 26, 2002, Ponstingle called Ms. Kovacic to tell her that the staffing was postponed until the following day. Defendants, however, maintain that Ms. Kovacic requested the change because she was unavailable that day. Whatever the reason, it is undisputed that Ms. Kovacic did not appear at the CCDFCS offices on March 26, 2002, but other members of the Kovacic family did, including Nancy's ex-husband, Mr. Kovacic, his father Ed Kovacic and his sister Colleen Kovacic-Nola. North Olmsted Police Officers Chung, Calvitti and Sergeant Kilbane also appeared. Despite the absence of Ms. Kovacic, CCDCFS employees agreed to meet with Kovacic family members and the police officers.

During the meeting, the Kovacics and the police officers advised the social workers that Nancy had been exhibiting disturbing behavior that was "escalating." They also expressed their belief that Daniel and Katherine were in "imminent risk" of physical harm from Ms. Kovacic. The police officers detailed their encounters with Ms. Kovacic, including two incidents dating back to 1995, when Nancy allegedly filed a false kidnapping report against Mr. Kovacic and stole a gun from his home, which she maintained she removed to protect Daniel and Katherine. The officers also advised the social workers of problems Nancy had with neighbors, reports of her dog running loose, her allegedly angry outburst following a traffic accident, and numerous "nebulous" reports she filed alleging that Mr. Kovacic had violated a protective order. The officers also recounted interactions between Nancy and Colleen Kovacic-Nola, including allegations that Nancy yelled and screamed at Colleen on March 15, 2002, and that Colleen filed an assault report against Nancy on March 22, 2002. The assault charge was eventually dismissed. Officer Chung and Sergeant Kilbane both expressed their belief that Nancy had the potential to be violent toward her children.

Based on this information, CCDCFS representatives determined that the Kovacic children were at a more elevated risk than they first thought, and determined it was immediately necessary to remove Daniel and Katherine from Nancy's home in light of their belief that the children were in imminent danger of physical harm.

That same day, defendant Ponstingle, after seeking approval from her supervisor and receiving the signature of the assigned assistant prosecuting attorney, caused the execution of a Temporary Emergency Care (TEC) Order, which permits CCDCFS employees to remove children on an emergency basis prior to a judicial hearing.*fn1

With TEC order in hand, defendant Ponstingle, accompanied by North Olmsted police officers went to Ms. Kovacic's home. When Ms. Kovacic refused to let the police enter her home, the officers forced their way in, and Ponstingle followed. Ponstingle then removed Daniel and Katherine from the home without further incident.

The next day, March 27, 2002, Assistant Prosecuting Attorney Dorothy Reichenback prepared and filed a Complaint for Temporary Custody in the Cuyahoga County Juvenile Court. The juvenile court conducted a shelter hearing on March 29, 2002. Ms. Kovacic was present at hearing and was represented by counsel. The magistrate issued an order finding that "there is probably cause for removal of the children . . ." and granted temporary custody of the Kovacic children to CCDCFS. (Doc. 121-14.) Nancy did not appeal the magistrate's decision despite an opportunity to do so.

The Kovacic children were not returned to Ms. Kovacic until approximately ten months later when, after transfer of the action to the Lake County Juvenile Court, the matter was dismissed on November 7, 2003, upon finding no adjudication of the CCDCFS's complaint within the time frame mandated by Ohio Rev. Code § 2151.35(B)(1).

The present action was filed on November 28, 2005 by Ms. Kovacic on behalf of herself and her children asserting claims under 42 U.S.C. § 1983 for deprivation of their constitutional rights under the Fourth and Fourteenth Amendments to the U.S. Constitution, for conspiracy under 42 U.S.C. § 1985, for municipal liability, and for various state law violations. On defendants' Motion for Summary Judgment (Doc. 42), this Court dismissed Nancy's claims, finding those claims barred by the statute of limitations in Ohio for § 1983 actions and state law tort claims. (Doc. 88 at 10-14.) The Court also dismissed the children's federal claims related to the removal of Daniel and Katherine from their home pursuant to the Rooker-Feldman*fn2 doctrine. (Id. at 14-18.)

The Court found, however, that it retained jurisdiction over the remaining claims related to the warrantless entry into the Kovacic home. (Id. at 18.) The Court denied defendants' motion for summary judgment on the children's claims involving the warrantless entry. (Id. at 18-23.) Specifically, this Court held that the record did not support a finding that exigent circumstances existed when the police forcibly entered plaintiffs' home without a warrant. (Id. at 18-21.) The Court also held that the juvenile court's post-removal determination did not touch upon the Fourth Amendment violation alleged in the suit and, thus, was not entitled to preclusive effect. (Id. at 21-23.)

The Court also denied defendants' summary judgment motion as to the plaintiffs' municipal liability claims against the City of North Olmsted and Cuyahoga County, finding that CCDCFS had a policy of obtaining TEC Orders and the assistance of local police to justify the warrantless entry into homes to remove children at risk. The Court held that this policy was the "moving force" behind the warrantless entry into the Kovacic home. (Id. at 23-27.) As well, the Court denied requests for absolute and qualified immunity made by defendant Ponstingle and the police officers who entered plaintiffs' home without a warrant. Finally, the Court dismissed plaintiffs' § 1985 conspiracy claim and state law tort claims.

Following the Court's ruling on defendants' summary judgment motion, the North Olmsted defendants reached a settlement with plaintiffs. Defendant Ponstingle filed an interlocutory appeal with the U.S. Sixth Circuit Court of Appeals challenging the Court's ruling denying her qualified immunity with respect to the illegal entry claims. Defendant Ponstingle and plaintiffs reached a settlement with regard to the immunity issue raised by Ponstingle on interlocutory appeal. The Court then dismissed plaintiffs' unlawful entry claim against all defendants, including plaintiffs' related municipal liability claim against the City of North Olmsted. The remaining defendants thus were Cuyahoga County and the CDCFCS employees.

Plaintiffs appealed the Court's dismissal of Nancy's claims on statute of limitations grounds and the dismissal of the children's clams under the Rooker-Feldman doctrine. The Sixth Circuit affirmed the Court's dismissal of Ms. Kovacic's claims, but reversed the dismissal of the children's claims and remanded those claims as not barred by Rooker-Feldman. Following remand, the remaining claims are Katherine and Daniel Kovacic's constitutional claims asserting violations of the Fourth Amendment (unlawful seizure) and the Fourteenth Amendment (substantive and procedural due process) (Counts II, III, and IV) as against the individual social workers, and their municipal liability claim against the County (portion of Count V).

Before the Court are cross-motions for summary judgment brought by plaintiffs and defendants pursuant to Fed. R. Civ. P. 56. Plaintiffs seek summary judgment, arguing that there is no genuine issue of fact that no exigent circumstances justified the removal of Daniel and Katherine and, therefore, they are entitled to judgment as a matter of law on their constitutional claims. Defendants seek summary dismissal of plaintiffs' claims and contend that plaintiffs cannot establish a violation of their constitutional rights. Defendants also seek absolute and/or qualified immunity for all of the individual defendants and dismissal of Pamela Gaylord as a defendant due to her lack of participation.


"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); White v. Turfway Park Racing Ass'n., 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases, the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252.

Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The non-moving party is under an affirmative duty to point out facts in the record as it has been established which create a genuine issue of material fact. Fulson v. Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id.


A.Law of the Case

As a threshold matter, the Court will address the parties' disagreement as to the application of the law-of-the-case doctrine in this case. The law-of-the-case doctrine bars challenges to a decision made at a previous stage of the litigation, which could have been challenged in a prior appeal, but were not. United States v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997); JGR, Inc. v. Thomasville Furniture Indus., Inc., 550 F.3d 529, 532 (6th Cir. 2008) ("A party that fails to appeal waive[s] his right to raise the [.] issue [.] before the district court on remand or before this court on appeal after remand.") (quoting Adesida, 129 F.3d at 850). Under this doctrine, "a decision on an issue made by a court at one stage of a case should be given effect in successive stages of the same litigation." United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S. Ct. 2166, 2177, 100 L. Ed. 2d 811 (1988)). See also, E.E.O.C. v. United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120,235 F.3d 244, 249-50 (6th Cir. 2000) ("Issues decided at an early stage of the litigation, either explicitly or by necessary inference from the disposition, constitute the law of the case. ") (quoting Hanover Ins. Co. v. Am. Eng'g Co., 105 F.3d 306, 312 (6th Cir.1997)).

The Supreme Court has noted that this doctrine will not deprive a court of the power to revisit an issue:

[T]he law-of-the-case doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power."[.] A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances[.].

Christianson, 486 U.S. at 817, 108 S. Ct. at 2178 (quoting Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 740, 56 L. Ed. 1152 (1912)). The doctrine, "therefore, does not foreclose a court from reconsidering issues in a case previously decided by the same court [.]." Todd, 920 F.2d at 403. There are three exceptional circumstances under which a court will reconsider a previously decided issue: "(1) where substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous and would work a manifest injustice." United States v. Rayborn, 495 F.3d 328, 337 (6th Cir. 2007) (quoting Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006)). "It is within the sole discretion of a court to determine if a prior ruling should be reconsidered." Todd, 920 F.2d at 403.

Plaintiffs argue in their motion for summary judgment that the law-of-the-case doctrine applies to the Court's previous decisions, which defendants did not appeal, including its decision regarding the absence of exigent circumstances and its denial of qualified immunity to defendant Ponstingle. Specifically, Plaintiff contends that this Court's denial of defendants' earlier summary judgment motion, finding no exigent circumstances to justify the warrantless entry, now requires the Court to find that "the removal of the children, must, by necessity, also be in violation of the Fourth Amendment." (Doc. 120 at 5.) Further, plaintiffs argue that the Court's previous denial of defendant Ponstingle's request for absolute or qualified immunity for the warrantless entry requires the Court to do so again with regard to the removal. Finally, Plaintiffs assert that municipal liability for the removal of the children flows from the Court's previous ruling that the county had a policy of obtaining TEC orders and the assistance of law enforcement to justify warrantless entry and removal of children.

In opposition, defendants argue that the Court's past rulings with respect to those issues and claims subsequently settled by the parties are moot. Defendants point to the settlement between plaintiffs and the North Olmsted defendants with regard to the warrantless entry and contend that plaintiffs have moved for summary judgment on settled claims. Moreover, defendants argue that this Court did not reach the merits on any of the claims; therefore, the lawof-the-case doctrine is not applicable to the Court's past findings.

"Generally, the settlement of a dispute between the parties does render the case moot." Aubrey v. City of Cincinnati, 65 F.3d 168 (6th Cir. 1995) (quoting Int'l Union, United Auto., Aerospace, Agric. and Implement Workers of Am., v. Dana Corp., 697 F.2d 718, 720-21 (6th Cir. 1983)). An exception to this general rule applies in instances "in which one issue in a case has become moot, but the case as a whole remains alive because other issues have not become moot." Id.

By Judgment Entry docketed on November 4, 2008, this Court clarified the remaining parties and claims in this case following its ruling, granting in part and denying in part defendants' motions for summary judgment. (Doc. 107.) The Court noted that plaintiffs had reached a settlement with defendant Ponstingle with regard to her immunity claims related to the warrantless entry. The Court noted the only issues that had been settled and dismissed were those with regard to the warrantless entry (Counts I and V of the Amended Complaint) and all claims against the North Olmsted defendants. The record does not reflect that plaintiffs reached a settlement with defendants, including Ponstingle, with respect to the seizure and removal of the children. Thus, while the issues with regard to the entry (a search) are moot by virtue of settlement, those issues with regard to the removal (a seizure) are not moot. Accordingly, to the extent the plaintiffs' motion seeks judgment on claims related to the seizure, the Court rejects defendants' contention that these claims were settled.

It does not automatically follow, however, that the Court must necessarily find the seizure unlawful, that defendants are not entitled to immunity, and that the County is liable, solely on the basis of the Court's previous ruling regarding the unlawful entry. "Although related to claims of Fourth Amendment unreasonable searches, claims of Fourth Amendment unreasonable seizures require separate analysis." Canter v. Reeves, No. 05-74791, 2008 WL 1925048, at *6 (E.D. Mich. May 1, 2008) (citing O'Donnell v. Brown, 335 F. Supp. 2d 787, 806 (W.D. Mich. 2004)). An unlawful entry does not automatically make the seizure unlawful. O'Donnell, 335 F. Supp. 2d at 806. Accordingly, plaintiffs' motion for summary judgment based solely on the law of the case is DENIED.

Nevertheless, to the extent that the Court's rulings with regard to the removal, either explicitly or by necessary inference, address the issues presented in the instant motions, those rulings constitute the law of the case and are not moot. Local No. 120,235 F.3d at 249-50. In the absence of extraordinary circumstances, this Court is loathe to revisit its prior decisions unless defendants present this Court with new evidence, a change in controlling law, or otherwise show that manifest injustice will result. Todd, 920 F.2d at 403. With this in mind, the Court will turn to the issues presented in the pending motions.

B.Plaintiffs' Motion for Summary Judgment

Plaintiffs assert they are entitled to summary judgment on all of their remaining claims. First, plaintiffs contend that the County is liable under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692, 98 S. Ct. 2018 (1978), for causing the North Olmsted police officers to subject plaintiffs to a tort. Regarding their Fourth Amendment unlawful seizure claims, plaintiffs allege that the standing order of the juvenile court is unconstitutional both facially and as applied; specifically, plaintiffs argue that defendants violated their rights when they seized them and removed them from their home without exigent circumstances and without a court order. Regarding their procedural due process claim, plaintiffs allege that they were deprived of their constitutional liberty (i.e., family integrity) rights without due process when defendants failed to provide them or their mother with notice and a hearing prior to the removal and when defendant Ponstingle made knowingly false statements in the sworn complaint. Next, plaintiffs allege that defendants violated their substantive due process right to family integrity, and that under a strict scrutiny standard, the seizure was based neither on a reasonable suspicion of abuse or imminent danger of abuse, nor was it narrowly tailored. Finally, regarding their Monell claim, plaintiffs allege the County had an unconstitutional policy of bypassing judicial authority and relying on a non-particularized standing order to justify the warrantless removal of children.

1. Section 1983 Liability of County for Actions of City Defendants

Plaintiffs' first claim is that the County is vicariously liable for the torts of the city police officers. The Court will presume the tort that plaintiffs are referring to is the illegal entry into the Kovacic home. The claims related to the entry, as noted above, have long since been settled. Furthermore, the city's actions cannot form the basis of a claim against the County. The County can only be liable for its own policy, customs or practices. Morton v. City of Cleveland, 839 F.2d 240, 243-44 (6th Cir. 1988) ("Cleveland cannot be held vicariously liable under § 1983 for damages inflicted by its officers. Rather, the municipality may be required to respond in damages under § 1983 only for its own actions."). Accordingly, plaintiffs' motion for summary judgment on their Monell claim (Count V) as against Cuyahoga County is DENIED, and defendants' motion for summary judgment on the same is GRANTED.

2. Seizure in Violation of the Fourth and Fourteenth Amendment

a. Facial Constitutional Challenge to Standing Order

Plaintiffs contend that the juvenile court's standing order is facially unconstitutional because it authorizes warrantless entries and seizures, and if allowed to stand, reliance on exigent circumstances will become the norm, rather than an exception to the warrant requirement. In order to prevail on their facial challenge, plaintiffs must establish that there is no set of circumstances under which the standing order may be constitutionally applied. United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 95 L. Ed. 2d 697 (1987). "In other words, a facial challenge to a statute should fail if the statute has a constitutional application." Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 194 (6th Cir. 1997).

By journal entry dated March 18, 1999 ("standing order"), Administrative Judge John W. Gallagher of the Court of Common Pleas, Cuyahoga County, Juvenile Court division ordered the appointment of all County social workers as officers of the court pursuant to Ohio Rev. Code § 2151.31*fn3 and the juvenile court rules. (Doc. 125-2.) The standing order provides that social workers have the authority to remove and provide temporary emergency and shelter care for children who are at imminent risk of serious physical or emotional harm. It further provides that in such circumstances, a complaint must be filed no later than the next business day and a hearing held within 72 hours pursuant to Ohio statutory law. Finally, the standing order provides that social workers may request the assistance of law enforcement when carrying out an emergency removal.

In essence, plaintiffs complain that defendants routinely remove children without a warrant based on alleged exigent circumstances. In other words, they claim that the standing order authorizes defendants to bypass judicial authority and Fourth Amendment warrant requirements by treating every suspected case of abuse or neglect as an emergency.

Plaintiffs' argument is flawed because it is aimed at the County's application of the standing order. The standing order authorizes social workers' warrantless removal of children in cases where the social worker believes the child is in imminent danger of abuse. Although, plaintiffs contend that defendants will stretch the definition of exigent circumstances, the face of the standing order is silent as to what circumstances may reasonably be considered to constitute an "imminent risk of serious physical or emotional harm." It is possible, however, to apply the standing order in a way that does not offend the Fourth Amendment. "[C]courts have recognized that a state may constitutionally remove children threatened with imminent harm when it is justified by emergency circumstances." Doe v. Kearney, 329 F.3d 1286, 1293-94 (11th Cir. 2003). See, e.g., Mabe v. San Bernardino Cnty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1106-07 (9th Cir. 2001); Brokaw v. Mercer Cnty., 235 F.3d 1000, 1010-11 (7th Cir. 2000); Wooley v. City of Baton Rouge, 211 F.3d 913, 925--26 (5th Cir. 2000); Tenenbaum v. Williams, 193 F.3d 581, 604-05 (2d Cir. 1999); cf. United States v. Bradley, 922 F.2d 1290, 1293 (6th Cir. 1991), overruled on other grounds by United States v. McGlocklin, 8 F.3d 1037, 1047 (6th Cir. 1993) (en banc)(permitting warrantless search and seizure in criminal cases where exigent circumstances exist). In such circumstances, no warrant or prior judicial involvement is required. Id. By definition, the standing order is constitutional.*fn4 See Kearney, 329 F.3d at 1293-94 (rejecting a facial constitutional challenge of a state statute authorizing warrantless removal of children in emergency circumstances because the statute could be applied in a constitutional manner). Accordingly, plaintiffs' request for summary judgment on their facial constitutional challenge to the standing order (portion of Count II) is DENIED, and defendants' motion for summary judgment on this claim is GRANTED.

b. As Applied Challenge to Removal

Plaintiffs next seek summary judgment on the issue of whether the removal of Daniel and Katherine from their home pursuant to the juvenile court standing order and the TEC violated the Fourth Amendment.

The Fourth Amendment prohibits "unreasonable searches and seizures," and provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the persons or things to be seized." The Fourth Amendment requires that a seizure inside a home be supported by a warrant unless exigent circumstances exist or the officers have some other lawful reason to be inside the property. See Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 2039, 29 L. Ed. 2d 564 (1971) ("[N]o amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances.'").

"The removal of a child from his custodial parents' home is a seizure for Fourth Amendment purposes, which is constitutionally reasonable if it is pursuant to a court order, is supported by probable cause, or is justified by exigent circumstances." Krantz v. City of Toledo Police Dept., 197 F. App'x. 446, 454 (6th Cir. 2006) (citing Brokaw v. Mercer Cnty., 235 F.3d 1000, 1010 (7th Cir. 2000); O'Donnell, 335 F. Supp. 2d at 806-07; Hernandez v. Foster, No. CIV.A 09 C 2461, 2010 WL 300361 (N.D. Ill. Jan. 15, 2010)).

It is undisputed that defendants did not seek a court order prior to removing the Kovacic children from their home. Defendants' argument that their conduct was constitutional because they were acting in accordance with state law is unavailing. Ohio statutes and regulations, including the juvenile court rules and its standing order, on which defendants rely, authorize the removal of children in certain circumstances, but nothing in Ohio law compels or mandates the removal of children without a court order in the absence of exigent circumstances. Walsh v. Erie Cnty. Dept. of Job & Family Servs., 240 F. Supp. 2d 731, 759 (N.D. Ohio 2003) ("Ohio law did not require the defendants to act as they did, and they cannot take refuge behind their misapplication of that law to avoid liability to the plaintiffs.")

Nor does the standing order or the TEC satisfy the warrant requirements of the Fourth Amendment. The standing order is not particularized as to the persons to be seized or the places to be searched, and neither the standing order nor the TEC was issued by a neutral and detached magistrate upon a finding of probable cause. U.S. CONST. AMEND. IV; Johnson v.

United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948).

Defendants' argument that this Court is precluded from finding a constitutional violation based on the state court's after-the-fact determination that probable cause existed to justify the removal is equally unavailing. The federal courts are obligated to give a state court judgment the same preclusive effect that courts of the rendering state would give it. McCormick v. Braverman, 451 F.3d 382, 397 (6th Cir. 2006). Under Ohio law, collateral estoppel comprises the following four elements: (1) a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (2) the issue must have been actually and directly litigated in the prior suit and must have been necessary to the final judgment; (3) the issue in the present suit must have been identical to the issue involved in the prior suit; and (4) the party against whom estoppel is sought was a party or in privity with a party to the prior action.

Cashelmara Villas Ltd. P'ship v. DiBenedetto, 623 N.E.2d 213, 215 (Ohio Ct. App. 1993). In addition, the burden is upon the party seeking to invoke collateral estoppel to prove that all the elements of the doctrine apply. See Monahan v. Eagle Picher Industries, Inc., 486 N.E.2d 1165, 1167-68 (Ohio Ct. App. 1984); LaBonte v. LaBonte, 572 N.E.2d 704, 709 (Ohio Ct. App. 1988).

As an initial matter, the Court notes that defendants' brief is devoid of any analysis of the collateral estoppel test as applied to the instant dispute. Instead, defendants conclusively assert that this Court must give preclusive effect to the magistrate's probable cause determination. In any event, the Court finds that defendants have not satisfied their burden because they cannot prove all of the elements of the collateral estoppel test. Specifically, defendants cannot invoke collateral estoppel because they cannot prove the third and fourth elements.

The third prong of Ohio's collateral estoppel test requires that the issue involved in the present litigation must have been identical to the issue involved in the prior suit. Issue preclusion will bar relitigation only when the identical issue was actually decided in the first case, and not simply where an issue could have been decided in the first case. Goodson v. McDonough Power Equip., 443 N.E.2d 978, 987 (Ohio 1983). Here, the magistrate's ruling did not touch upon whether the seizure without a prior court order violated the Fourth Amendment; that is, in absence of a court order, whether exigent circumstances justified the seizure. Instead, the magistrate ruled upon the existence of probable cause to support an emergency custody order issued pursuant to Ohio Rev. Code § 2151.31(E). That section provides that if a judge or referee, by telephone, issues an ex parte emergency order for taking a child into custody, then the court must hold a hearing no later than 72 hours after the order issues to determine if there is probable cause for the order. Thus, under that section, a judge can retroactively find probable cause to support the previously issued ex parte emergency custody order.

Here, there is no question that defendants acted without any court order. Defendants never sought, and the state court never granted an ex parte emergency order; therefore, the magistrate's order cannot be applied retroactively to the seizure because there is no basis to do so. In fact, the magistrate's order is prospective, finding that there "is," as opposed to "was" probable cause for removal of the children.*fn5 Moreover, a finding of probable cause for the issuance of an ex parte emergency order for custody is not identical to a finding that exigent circumstances justified the failure to secure an order prior to the seizure. Cf. United States v. Morgan, 743 F.2d 1158 (6th Cir. 1984) (holding that existence of probable cause for a warrant cannot excuse failure to secure a warrant prior to entry into home to arrest suspect where there was no exigent circumstances). Consequently, the magistrate never addressed the issue here- whether defendants were justified in executing a seizure without a prior court order and in the absence of exigent circumstances.

Finally, with respect to the fourth element of collateral estoppel under Ohio law, "[i]n order to invoke res judicata, one of the requirements is that the parties to the subsequent action must be identical or in privity with those in the former action." Kirkhart v. Keiper, 805 N.E.2d 1089, 1092 (Ohio 2004). There can be no question that the individual defendants here were not parties to the custody proceedings in the state court; it was the County, acting as an arm of the state, which brought the custody action against Ms. Kovacic. See Alternatives Unlimited-Special, Inc. v. Ohio Dept. of Educ., 861 N.E.2d 163, 177 (Ohio Ct. App. 2006) ("For the purposes of applying collateral estoppel, regardless of which agency or instrumentality is nominally involved, the state is the real party in interest."). Consequently, the individual defendants can only invoke the doctrine of collateral estoppel if they were in privity with the County.

The Ohio courts have recognized that the concept of privity for purposes of res judicata is "somewhat amorphous." Brown v. Dayton, 730 N.E.2d 958, 962 (Ohio 2000). "Mutuality, however, exists only if 'the person taking advantage of the judgment would have been bound by it had the result been the opposite. Conversely, a stranger to the prior judgment, being not bound thereby, is not entitled to rely upon its effect'" for res judicata." O'Nesti v. DeBartolo Realty Corp., 862 N.E.2d 803, 806 (Ohio 2007).

In this case, there is no indication that there was an identity of interest between the social workers and the State of Ohio such that they would be bound by the State's conduct in the custody proceedings. See, Abdulsalaam v. Franklin Cnty. Bd. Of Com'rs, 637 F. Supp. 2d 561, 587 (S.D. Ohio 2009) (finding a social worker is not in privity with county children services agency) ("While it is true that Spires [sic] investigatory notes were important to the course of the case and that Spires assisted in the creation of the complaint, once the complaint had been filed, Spires' role in relation to the litigation became that of a material witness. [.] The interests of a caseworker investigating a neglect case and the agency prosecuting the case may easily diverge, especially when, as in this case, the caseworker is accused of acting contrary to agency policy and protocol."); cf. Potts v. Hill, 77 F. App'x 330 (6th Cir. 2003) (finding police officers not in privity with state in prior criminal action, thus in subsequent § 1983 civil litigation, the court was not precluded from considering constitutionality of seizure even if state court had already found a constitutional violation); Wallace v. Mamula, 30 F.3d 135 (6th Cir. 1994) (finding no privity between police officer and state in criminal case thus officer was not precluded). For the foregoing reasons, the Court rejects defendants' collateral estoppel argument.

In the absence of a warrant supported by probable cause, the key dispute becomes whether exigent circumstances supported defendants' seizure of the children. "[I]t is core Fourth Amendment doctrine that a seizure without consent or a warrant is [not] a 'reasonable' seizure. [unless] it is justified by 'exigent circumstances.'" Tenenbaum, 193 F.3d at 604. Exigent circumstances exist only where real, immediate and serious consequences would certainly occur were a police officer (or social worker) to postpone action to get a warrant. O'Brien v. City of Grand Rapids, 23 F.3d 990, 997 (6th Cir. 1994). "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S. Ct. 2408, 2413, 57 L. Ed. 2d 290 (1978) (citing Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963) (Burger, J.)); United States v. Rohrig, 98 F.3d 1506, 1515 (6th Cir. 1996) ("[T]he cases finding exigent circumstances uniformly cite the need for prompt action by government personnel, and conclude that delay to secure a warrant would be unacceptable under the circumstances.").

The Sixth Circuit has held that the public official must establish an exception to the warrant requirement by "clear and positive proof." United States v. Jones, 641 F.2d 425, 429 (6th Cir. 1981). The test is an objective one: the public official must be able to point to "specific and articulable facts" at "the moment of the warrantless entry" that would lead a reasonable, experienced officer to believe that someone inside the dwelling required immediate assistance. United States v. Morgan, 743 F.2d 1158, 1162, 1163 (6th Cir. 1984). To satisfy her "heavy burden" to establish exigent circumstances, the official must do more than demonstrate "the mere possibility" that an exigency exists. United States v. Radka, 904 F.2d 357, 362 (6th Cir. 1990); see also Jones, 641 F.2d at 428-429.

"Whether exigent circumstances exist is generally an issue for a jury. Walters v. Stafford, 317 F. App'x. 479, 489 (6th Cir. 2009) (citing Hancock v. Dodson, 958 F.2d 1367, 1375 (6th Cir. 1992)). However, where "the underlying facts are essentially undisputed, and where a finder of fact could reach but one conclusion as to the existence of exigent circumstances, the issue may be decided by the trial court as a matter of law." Id.

In 2007, this Court denied defendants' summary judgment on plaintiffs' unlawful entry claim because the evidence did not demonstrate an objectively reasonable basis to support defendants' conclusion that exigent circumstances justified a warrantless entry. As noted in the Court's prior opinion, defendants concede that prior to March 26, 2002 meeting, CCDCFS employees did not intend to remove Daniel and Katherine from their home. In fact, all of the incidents relied upon by defendants to establish exigent circumstances were known to defendants for some time, including the single documented act of violence by Ms. Kovacic against her children and the incident in which Daniel stabbed his mother with a pen. The only additional information gained at the March 26, 2002 meeting were the subjective opinions and speculations offered by the police officers and by Nancy's ex-husband's family, none of which tended to indicate that Nancy had physically abused or threatened to abuse her children. Finally, defendants offered no evidence that there was no time to obtain a court order authorizing the seizure of the children. In short, defendants have failed to show that real immediate and serious consequences would certainly occur were they to have delayed their actions long enough to seek a court order or warrant. No reasonable juror could find that Ms. Kovacic posed an imminent threat of physical harm to her children. Accordingly, plaintiffs' motion for summary judgment on their unlawful removal claim (portion of Count II) is GRANTED, and defendant's motion for summary judgment on this claim is DENIED.

3. Fourteenth Amendment Due Process Claims

a. Procedural Due Process

Plaintiffs' next contention is that they are entitled to summary judgment on their procedural due process claim because defendants deprived them of a constitutionally protected liberty interest (i.e., the right to family integrity) when they removed them from their family home without due process. A Fourteenth Amendment procedural due process claim depends upon the existence of a constitutionally cognizable liberty or property interest with which the state has interfered. See Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989); Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir.1993). "Procedural due process generally requires that the state provide a person with notice and an opportunity to be heard before depriving that person of a property or liberty interest." Warren v. City of Athens, 411 F.3d 697, 708 (6th Cir. 2005). Thus, to succeed on a procedural due process claim, plaintiffs must demonstrate both a deprivation of a constitutionally protected property or liberty interest, and that the deprivation occurred without due process of law. Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990); Kennedy v. City of Cincinnati, 595 F.3d 327, 334 (6th Cir. 2010.) "Only after a plaintiff has met the burden of demonstrating that he possessed a protected property or liberty interest and was deprived of that interest will the court consider whether the process provided the plaintiff in conjunction with the deprivation, or lack thereof, violated his rights to due process." Warren, 411 F.3d at 708 (citing Hamilton v. Myers, 281 F.3d 520, 529 (6th Cir. 2002)).

Thus, in order to decide whether plaintiffs merit summary judgment on their procedural due process claim, the Court must begin by determining whether plaintiffs suffered a deprivation of the constitutionally protected right to family integrity. Defendants argue that children do not possess a constitutionally protected interest with respect to a temporary deprivation to protect their safety, nor do they have a constitutional right to a pre-deprivation hearing before being taken into protective care. Reno v. Flores, 507 U.S. 292, 117 S. Ct. 1439 (1993). Defendants assert that, "The constitutional rights of children, if any, must be subservient to that of the state which seeks to protect them." (Doc. 125 at 12.)

Defendants' reliance on the Flores decision is misplaced. In Flores, the Supreme Court held that the custody of juveniles does not violate substantive due process, nor does a child have a substantive right to a hearing on placement when the child is an unaccompanied juvenile alien that has no parent, close relative, or legal guardian capable of caring for the child, the government does not intend to punish the child, and conditions of governmental custody are decent and humane. 117 S. Ct. at 1447-48. The Court noted that the claims of the alien juveniles were "novel" and not so rooted in the traditions and conscience of our people as to be ranked as fundamental. Id.

The Flores case has no application in the context of removal of children from their parents or custodial guardians. The Kovacic children were not detained as aliens suspected of being deportable, a class that can be detained, and over which the government has broad discretion regarding detention. Instead, the defendants removed the Kovacic children from the custody and control of their natural parent. The discretion granted a state agent within the context of removal of children from their natural parents is not nearly as broad as that of the Attorney General over aliens. Compare Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982), with Flores, 117 S. Ct. at 1447-49.

In this context, the Supreme Court has recognized the right to family integrity as a fundamental liberty interest protected by the Fourteenth Amendment. See, e.g., Santosky, 455 U.S. at 753. Courts have held that this right extends to both parents and their children. Id. at 760 ("[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of the natural relationship."); Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) ("Parents and children have a well-elaborated constitutional right to live together without governmental interference."); Brokaw v. Mercer Cnty., 235 F.3d 1000, 1020 (7th Cir. 2000) ("Similarly, a child's right to be nurtured by his parents cannot be denied without an opportunity to be heard in a meaningful way."); Wooley, 211 F.3d at 923 ("a child's right to family integrity is concomitant to that of a parent"); J.B. v. Washington Cnty., 127 F.3d 919, 925 (10th Cir. 1997) (holding that a child "also enjoys a liberty interest requiring that procedural due process accompany her confinement"); Cf. A.C. v. Mattingly, No. 05cv2986, 2007 WL 894268, at *5 ...

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