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Romero v. Brown

United States Court of Appeals, Fifth Circuit

August 29, 2019


          Appeal from the United States District Court for the Southern District of Texas

          Before KING, HIGGINSON, and COSTA, Circuit Judges.


         Christina 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 both parents.

         The 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 their mother.



         The 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).

         Romero 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.

         Shortly 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 recommendations.

         Brown 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.

         The 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.

         About 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.

         The following day, a state court hearing was held to determine if the warrantless removal was justified. See Tex. Family Code ยงยง 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 ...

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