CHRISTINA ROMERO; GARY AD AN CRUZ, SR. Plaintiffs - Appellant
AMANDA BROWN; NICOLE MOUTON; ROLAND BENAVIDES; ROBERT RUIZ; CITY OF HOUSTON; DOES ONE THROUGH TEN Defendants - Appellees
from the United States District Court for the Southern
District of Texas
KING, HIGGINSON, and COSTA, Circuit Judges.
COSTA, CIRCUIT JUDGE
Romero and Gary Adan Cruz are the parents of seven children.
The Texas Department of Family and Protective Services
received information that Cruz was abusing Romero. It ordered
Cruz to move away from the apartment where Romero and their
children lived. He complied. More than a month later, a
social worker and other officials seized all seven children
from Romero and put them in foster care homes. The seizures
occurred in the middle of the day without a court order. The
next day a state court judge found no justification for the
removal and ordered the immediate return of the children to
parents allege violations of their due process rights. We
conclude that the complaint does not allege a violation of
clearly established substantive due process rights because
there was an ongoing investigation into domestic violence and
the removal lasted only 24 hours. But the removal did violate
clearly established procedural due process rights because
there was neither a court order nor exigent circumstances to
support the social worker's taking the children from
following is what Plaintiffs say happened. At the pleading
stage, we only have their side of the story and must accept
it as true. Bosarge v. Miss. Bureau of Narcotics,
796 F.3d 435, 439 (5th Cir. 2015).
lived with Cruz and their seven children in a small apartment
in Houston. The first allegation that Cruz engaged in
domestic violence against Romero came in 2014. Then, in fall
2015, their six-year-old daughter told her school counselor
that Cruz punched and "body slammed" Romero. Family
and Protective Services opened an investigation and sent an
investigator to the apartment. The parents allege that the
investigator could "easily verify" the allegations
were untrue, and the investigator did not contact any law
enforcement officials at that time. But early the next year,
the agency ordered Cruz to move out of the apartment and
enroll in parenting, domestic violence, and anger management
classes. Cruz continued to contest the allegations but
complied with the agency's requests.
after the investigator's visit, the case was transferred
to social worker Amanda Brown. In March 2016, Brown conducted
another home visit to Romero's apartment, apparently at
the direction of her supervisor, Nicole Mouton. From the
start, Brown spoke "disparagingly" of Romero's
financial condition and told Romero she needed to make more
money. Romero tried to explain that Cruz's moving out
worsened the family's money troubles. Brown replied,
"That's not my problem. That's more your
problem," and suggested Cruz may never be allowed to
return. She also criticized Romero for sometimes having her
15-year-old son babysit the younger children instead of
sending them to daycare. Romero explained that she worried
about the quality of daycare and that she could not afford
it. Brown "sneered" at Romero, said Family and
Protective Services could help cover childcare costs, and
"appeared upset" that Romero questioned her
spent the remainder of the home visit sitting at the kitchen
table using her cellphone. This prompted Romero to say to
her, "You are not doing your job. You are just sitting
here playing on your phone." Romero told Brown she
wanted to file a complaint with Brown's supervisor about
that behavior. Brown "became visibly enraged, and
abruptly terminated the visit." Romero heard nothing
from Brown the remainder of the day.
next morning, around 11:00, Brown and two policer officers,
Roland Benavides and Robert Ruiz, surrounded Romero's
vehicle in the parking lot of the apartment complex. Romero
was returning to her apartment with her one-month old baby
and two toddlers. Brown and the officers seized all three
children. They did not have a court order. Brown threatened
Romero with arrest unless she signed a Notice of Removal.
an hour later, a Family and Protective Services employee
seized Romero's other four children at school. There was
no court order to take these children either. All seven
children were placed in foster care homes and spent the night
away from their mother.
following day, a state court hearing was held to determine if
the warrantless removal was justified. See Tex.
Family Code §§ 262.104, 106 (2017) (requiring such
a hearing for a removal without court order). The judge found
no evidence of physical abuse, malnourishment, or medical
neglect. The judge rebuked Brown for "remov[ing the]
children without a Court Order in the middle of the day"
even though there was enough time to obtain a court order.
The court ordered ...