FILED

United States Court of Appeals

Tenth Circuit

August 26, 2014

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEGINA and TODD THOMAS,

Plaintiffs - Appellants,
v.

No. 13-2076

MARY KAVEN, Ph.D.; JILL

STRAITS, Ph.D.; and ANILLA DEL
FABBRO, M.D., in their individual
capacities,
Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2-12-CV-00381-JCH-LAM)

Laura Schauer Ives, ACLU of New Mexico (Maureen A. Sanders, Sanders &
Westbrook PA, Albuquerque, New Mexico, and Matthew Garcia, Garcia Ives
Nowara, Albuquerque, New Mexico, with her on the briefs), Albuquerque, New
Mexico, for Appellants.
Mark J. Riley (Courtenay L. Keller and Tiffany L. Sanchez with him on the brief)
Riley, Shane & Keller, P.A., Albuquerque, New Mexico, for Appellees.

Before TYMKOVICH, EBEL, and PHILLIPS, Circuit Judges.

TYMKOVICH, Circuit Judge.

Legina and Todd Thomas are parents of M.T., a twelve-year-old girl at the
time of the events at issue in this case. The Thomases placed M.T. in the
University of New Mexico Childrens Psychiatric Center after she revealed
suicidal tendencies during a police investigation of a potential sexual assault.
Doctors diagnosed her as exhibiting several serious psychiatric problems and
recommended a prescription of psychotropic drugs. The Thomases resisted the
doctors diagnoses and recommendations. M.T. was evaluated for several weeks
until Mrs. Thomas decided to remove her from the hospital. Concerned about her
safety, M.T.s doctors and therapist placed M.T. on a medical hold and pursued
an involuntary residential treatment petition in state court. But, after a seven-day
hold, M.T. was released before the involuntary commitment proceedings began.
The Thomases claim the doctors and the hospital violated their
constitutional right to direct M.T.s medical care and their right to familial
association. The Thomases allege that the defendants violated their right to
familial association when they placed a medical hold on M.T. and when they filed
the petition for involuntary residential treatment in state court. The defendants
filed a motion to dismiss, asserting absolute and qualified immunity. The district
court granted the motion on qualified immunity grounds, and the Thomases
appealed.
We agree with the district court that the Thomases have not stated a claim
for a violation of their right to direct M.T.s medical care. But we hold that the
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Thomases have stated a claim for a violation of the right to familial association
for the defendants placing a medical hold on M.T. and seeking an order for
involuntary residential treatment in state court. The defendants cannot establish
as a matter of law at this point in the proceedings that the relevant state interests
outweighed the Thomases interest in their right to familial association. Under
this standard, some factual development is necessary before the court can
determine whether the defendants actions were justified and they are thus
entitled to qualified immunity for this claim.
We therefore AFFIRM in part and REVERSE in part and remand for further
proceedings.

I. Background
The relevant events occurred over the course of several weeks during April
and May 2010. 1 On April 12, 2010, the Thomases learned that M.T. may have
had sexual contact with a friends older brother in the preceding few days. The
Thomases asked the Lea County Sheriffs Department to investigate. M.T.
expressed to the investigating officer that she wanted to harm herself, and the
officer became concerned she was suicidal. Another officer conducted a suicide
prevention screen and found M.T. was at risk of hurting herself. M.T. was

Because this case is on appeal from a motion to dismiss for failure to

state a claim, Fed. R. Civ. P. 12(b)(6), we accept all well-pleaded factual
allegations in the complaint as true. See Moore v. Guthrie, 438 F.3d 1036, 1039
(10th Cir. 2006). We present the facts as articulated in the complaint.
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transported to a local hospital for an evaluation. There, hospital staff and a

representative from the New Mexico Child, Youth, and Families Department
(CYFD) became concerned that M.T. would harm herself if sent home. The
Thomases allege a CYFD representative told Mrs. Thomas that, if she did not
consent to transfer her daughter to a state facility for a mental health evaluation,
CYFD would assume custody. The Thomases consented to the transfer and
evaluation, and M.T. was taken to the University of New Mexico Childrens
Psychiatric Center in Albuquerque, five hours from the plaintiffs home.
On April 13, M.T. was admitted to the psychiatric center. During intake,
the plaintiffs explained that, although they were concerned about M.T.s
statements expressing suicidal thoughts, they were inclined to believe she was not
truly suicidal and was only trying to divert attention from the incident with her
friends older brother. M.T. told doctors a changing story, first reporting she
previously attempted suicide thirty times but then saying she had three attempted
suicides. In contrast, the Thomases told doctors that they were unaware of any
suicide attempts.
On April 14, M.T.s treating psychiatrist, Anilla Del Fabbro, spoke with
Mrs. Thomas by phone and explained she believed M.T. was suffering from
depression and possible schizophrenia and was experiencing hallucinations. Del
Fabbro recommended M.T. be placed on a specialized type of psychotropic
treatment to treat her depression. Del Fabbro also opined that the treatment
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would help with M.T.s academic performance and behavioral issues in school.
Mrs. Thomas replied that M.T. had no problems in school and had not
experienced hallucinations before. She refused permission for the psychotropic
regimen and expressed a desire to explore alternative treatments before the use of
medication.
On April 16, Del Fabbro again telephoned Mrs. Thomas to request
permission to treat M.T. and reported that M.T. confessed she had been suffering
hallucinations for years. Mrs. Thomas refused, reiterating her position that M.T.
was being dishonest with her physicians. She also stated she researched the
proposed medical treatment on the Internet and was wary of its potential side
effects. She faxed Del Fabbro several documents supporting her position that
M.T. did not have behavioral problems in school. In light of the Thomases
refusal to allow psychotropic treatment, the defendants determined that M.T.
should go to a residential treatment facility upon release from UNMCPC rather
than back home. Plaintiffs initially agreed to consider such a plan.
On April 20, Dr. Mary Kaven conducted a psychological evaluation on
M.T. Mrs. Thomas was unavailable to participate in person, and was told by Jill
Straits, M.T.s therapist at UNMCPC, that Mrs. Thomas could only receive the
complete evaluation in person. Straits did reveal, however, that M.T. was
diagnosed with major depressive disorder, borderline personality disorder, and
early-onset schizophrenia. Straits further told Mrs. Thomas that doctors believed
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M.T. had an intellectual disability, and, because M.T. had been diagnosed with
petite mal seizures as a child, the combination of the mental disability,
schizophrenia, and the seizures may combine to result in M.T. never returning to
reality. Mrs. Thomas expressed skepticism and told Straits that M.T. was in the
gifted program at school and she had not suffered a seizure since she was a
toddler. The summation of the doctors diagnoses caused Mrs. Thomas to lose
faith in the doctors assessments of M.T.
On April 26, Del Fabbro again called Mrs. Thomas seeking permission to
treat M.T. with psychotropics, as well as anti-psychotic medication and melatonin
supplements. Mrs. Thomas refused permission and asked for a fax of the
psychological evaluation. Del Fabbro informed her the evaluation would only be
provided in person.
On April 27, Straits contacted CYFD to express concern about plaintiffs
disregard of the doctors recommendations and their refusal to allow
administration of psychotropic drugs. The next day, Mrs. Thomas agreed to come
to Albuquerque to meet with physicians, promising to listen to their
recommendations with an open mind but expressing an inclination to sign M.T.
out of the facility. Following this conversation, Straits again contacted CYFD
and this time accused Mrs. Thomas of medical neglect for failing to follow the
doctors recommendations.

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Two days later, Mrs. Thomas met with defendants to discuss M.T.s
evaluation. Kaven informed her that M.T.s diagnosis was major depressive
disorder with psychosis, borderline traits, and post-traumatic stress. She noted
that plaintiffs medical insurance was very good and would cover almost
anything, which prompted defendants to put M.T. on a waitlist for a residential
treatment facility without seeking her parents authorization. Mrs. Thomas told
defendants she did not believe M.T. was suicidal or experiencing hallucinations
and again declined to consent to psychotropic medical treatment. Del Fabbro
informed Mrs. Thomas the defendants did not believe she was competent to make
medical decisions on her childs behalf. Fearing that Mrs. Thomas would remove
M.T. from the hospital, on April 29, Del Fabbro placed M.T. on a medical hold so
that Mrs. Thomas could not obtain her release that day. 2
The next day, Del Fabbro reported the Thomases to CYFD for medical
neglect for failure to consent to psychotropic treatment for M.T.s psychosis. On
May 4, the defendants petition for involuntary residential treatment was filed in
state court in order to confine M.T. at UNMCPC for a period not to exceed sixty

The Thomases allege the defendants placed a five-day hold on M.T., but
the record demonstrates that they placed a seven-day hold on her.
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days. 3 The hospital notified the Thomases that the hearing would take place in
Bernalillo County Second Judicial District Court on May 10.
On May 5, Straits telephoned Mrs. Thomas to tell her to pick up her
daughter immediately because the Thomases insurance carrier would no longer
cover the costs of M.T.s hospitalization. The defendants concluded there was an
adequate safety plan in place to prevent imminent harm to M.T. They discharged
M.T. on May 6 and abandoned the involuntary commitment petition. On May 7,
despite the discharge, Kaven again reported the plaintiffs to CYFD for medical
neglect for not believing the diagnoses and refusing to allow administration of
psychotropic drugs. Nothing came of the report, and M.T. returned to school and
experienced no further problems arising from the incident.
The Thomases sued under 42 U.S.C. 1983, claiming the defendants
violated their Fourteenth Amendment right to direct their childs medical care and
the right to familial association. 4 The defendants asserted defenses of absolute
and qualified immunity and filed a motion to dismiss. The district court granted
the motion to dismiss, holding the defendants were entitled to qualified immunity.

Although Straits was the only person designated as the state court
petitioner, the complaint states that all three defendants were involved in the
decision to abandon the petition. We will construe the complaint to allege that all
three defendants were involved in the decision to file the petition.
4

The plaintiffs also brought a First Amendment associational claim, which

the district court dismissed without objection.
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The court concluded that the complaint did not state a claim for violations of
clearly established rights to direct medical care and to familial association.

II. Analysis
The Thomases argue the district court erred in granting the defendants
motion to dismiss. At this stage in the case, they contend the complaint alleges
sufficient facts to sustain their claims that the defendants knowingly deprived the
Thomases of their clearly established rights to direct M.T.s medical care and to
familial association.
We review a Rule 12(b)(6) dismissal de novo. Cressman v. Thompson, 719
F.3d 1139, 1144 (10th Cir. 2013). At the motion-to-dismiss stage, we must
accept all the well-pleaded allegations of the complaint as true and must construe
them in the light most favorable to the plaintiff. Id. at 1152. To survive
dismissal, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Id.
A. Absolute Immunity
The defendants first argue they are entitled to absolute immunity for
initiating a medical hold on M.T. and filing a petition for involuntary residential

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treatment in state court. 5 The defendants argue that, because their actions were
intimately associated with the judicial process, they are entitled to absolute
immunity. Scott v. Hern, 216 F.3d 897, 909 (10th Cir. 2000).
Absolute immunity offers certain government officials total protection from
a suit for damages under 42 U.S.C. 1983. Mink v. Suthers, 482 F.3d 1244, 1258
(10th Cir. 2007). Prosecutors are absolutely immune for those activities
intimately associated with the judicial phase of the criminal process. Id. at
1259 (quoting Imbler v. Pacthman, 424 U.S. 409, 430 (1976)). But the Supreme
Court has made clear that absolute immunity is not available for those aspects of
the prosecutors responsibility that cast him in the role of an administrator or
investigative officer rather than that of advocate. Imbler, 424 U.S. at 43031.
In limited circumstances, absolute immunity is also available to other
government officials who perform functions closely associated with the judicial
process. Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); see also Butz v.
Economou, 438 U.S. 478, 515 (1978) (We also believe that agency officials
performing certain functions analogous to those of a prosecutor should be able to
claim absolute immunity with respect to such acts.). Officials who seek

The Thomases argue that, because the district court held defendants were
entitled to qualified immunity, the defendants must file a cross-appeal to seek
absolute immunity. But because the defendants are asking this court to affirm the
grant of immunity on an alternate basis without enlarging the scope of its own
rightsi.e., immunity from suitthe defendants need not file a cross-appeal. See
Wyoming v. U.S. Dept of Agric., 661 F.3d 1209, 1271 n.33 (10th Cir. 2011).
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exemption from personal liability on the basis of absolute immunity bear the
burden of showing that such an exemption is justified by overriding
considerations of public policy. Forrester v. White, 484 U.S. 219, 224 (1988).
In determining whether particular acts of government officials are eligible
for absolute immunity, we apply a functional approach . . . which looks to the
nature of the function performed, not the identity of the actor who performed it.
Malik v. Arapahoe Cnty. Dept of Soc. Servs., 191 F.3d 1306, 1314 (10th Cir.
1999) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)). The more
distant a function is from the judicial process, the less likely absolute immunity
will attach. Snell v. Tunnell, 920 F.2d 673, 687 (10th Cir. 1990). We have
recognized, for example, that social workers may be entitled to absolute immunity
in limited circumstances. See id. (The courts have looked to the particular task a
defendant was performing and its nexus to the judicial process rather than
deciding that social workers or guardians ad litem as a class are entitled to
absolute immunity.). In this circuit, aspects of civil commitment proceedings
can provide government officials the basis for absolute immunity. See Hern, 216
F.3d at 909. 6
6

The Supreme Court has not addressed the question of whether social
workers can gain absolute immunity from suit for actions functionally analogous
to a prosecutors duties. But at least one Justice has noted potential problems
with making absolute immunity available to social workers. See Hoffman v.
Harris, 511 U.S. 1060 (1994) (Thomas, J., dissenting from denial of petition for
writ of certiorari) (The courts that have accorded absolute immunity to social
(continued...)
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The same limitations that apply to granting absolute immunity to

prosecutors also apply to other government officials. In Snell, we held that the
crucial distinction for determining whether a social worker was entitled to
absolute immunity was whether the social worker was acting in a way
functionally analogous to a prosecutor or in an investigative capacity. Id. at 689.
Because the social workers in that case sought a custody order as part of their
investigation into child abuse and before any petition was filed to adjudicate the
status of the child, the social workers were acting in an investigative capacity. Id.
at 690. In concluding the social workers could claim only qualified immunity, we
held that [a] social worker seeking a pre-petition order for protective custody
functions like a police officer seeking an arrest warrant; a functional approach to
immunity requires that those performing like functions receive like immunity.
Id. 7
6

(...continued)
workers appear to have overlooked the necessary historical inquiry; none has
seriously considered whether social workers enjoyed absolute immunity for their
official duties in 1871. If they did not, absolute immunity is unavailable to social
workers under 1983.); see also Margaret Z. Johns, A Black Robe Is Not A Big
Tent: The Improper Expansion of Absolute Judicial Immunity to Non-Judges in
Civil-Rights Cases, 59 SMU L. Rev. 265, 28590 (2006).
7

Other circuits agree that absolute immunity does not protect social
workers acting in an investigative capacity, but that it does protect social workers
acting in a prosecutorial capacitysuch as when initiating child custody
proceedings in court. See, e.g., Holloway v. Brush, 220 F.3d 767, 775 (6th Cir.
2000) ([S]ocial workers are absolutely immune only when they are acting in
their capacity as legal advocatesinitiating court actions or testifying under
(continued...)
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The Thomases urge us to find that the defendants roles in seeking

involuntary commitment were not akin to the role of a prosecutor. They argue,
rather, that filing an involuntary residential treatment petition is more akin to the
role of a complaining witness. The Supreme Court has held that a complaining
witness, as opposed to an official acting in a prosecutorial capacity, is not entitled
to absolute immunity. See Rehberg v. Paulk, 132 S. Ct. 1497, 1507 (2012)
(explaining that a complaining witness refer[s] to a party who procured an arrest
and initiated a criminal prosecution); Kalina v. Fletcher, 522 U.S. 118, 130
(1997) (denying absolute immunity to prosecutor who stepped into role of fact
witness when she attested to the truth of facts supporting a warrant); Wyatt v.
Cole, 504 U.S. 158, 164165 (1992) (a complaining witness set[s] the wheels of
government in motion by instigating a legal action). The relevant distinction for
absolute immunity purposes is whether the officials actions are prosecutorial or
testimonial; is the prosecutor acting as an advocate for the state or as fact
witness? See Kalina, 522 U.S. at 12930.
We need not fully decide this difficult question in this case. The injury
alleged by the Thomases derived solely from the defendants decision to place

(...continued)
oathnot when they are performing administrative, investigative, or other
functions.); Meyers v. Contra Costa Cnty. Dept of Soc. Servs., 812 F.2d 1154,
1157 (9th Cir. 1987) ([S]ocial workers are entitled to absolute immunity in
performing quasi-prosecutorial functions connected with the initiation and pursuit
of child dependency proceedings.).
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M.T. on a seven-day emergency medical hold. Of course, the defendants were

then statutorily required to obtain a court order to continue involuntary residential
treatment. See N.M. Stat. 32A-6A-20(J). But M.T. was discharged before any
court proceedings began. Although the petition was pending for part of the time
the medical hold was in effect (the petition was filed five days later), no causal
connection exists between the commencement of judicial proceedings and the
Thomases injury. The infringement on the Thomases right to familial
association stemmed solely from the emergency medical hold the defendants
placed on M.T prior to the filing of the petition.
Even if we were to find a causal connection between the filing of the
petition and the injury, we doubt the defendants would be entitled to absolute
immunity for their decision to seek a judicial order. According to the New
Mexico Childrens Code, if the childs physician or psychologist believes a
guardians attempt to discharge his or her child goes against the childs best
interests, the physician or psychologist can request that the childrens court
attorney initiate involuntary residential treatment proceedings. N.M. Stat.
32A-6A-20(J) (emphasis added). After the request, the childrens court attorney
may petition the court for such proceedings. Id. Under this division of labor,
the childrens court attorney has the sole discretion to initiate involuntary
commitment proceedings. The role of the physician or psychologist under this
scheme is more akin to the role of the complaining witness who set[s] the wheels
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of government in motion by instigating a legal action. Wyatt, 504 U.S. at

164165.
Extending absolute immunity to government employees who are not
statutorily authorized to petition the court directly would be an unwarranted
expansion of absolute immunity protection. The presumption is that qualified
rather than absolute immunity is sufficient to protect government officials in the
exercise of their duties. Burns v. Reed, 500 U.S. 478, 48687 (1991); see also
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (explaining that one of the
purposes of qualified immunity is to shield officials from harassment,
distraction, and liability when they perform their duties reasonably). Absolute
immunity extends only so far as is necessary to protect the judicial process.
Burns, 500 U.S. at 492 (explaining that absolute immunity applies to prosecutors
because the substantial likelihood of vexatious litigation . . . might have an
untoward effect on the independence of the prosecutor). Extending absolute
immunity to those who solicit a government attorney to initiate judicial
proceedings is unnecessary to protect the judicial process. See Cornejo v. Bell,
592 F.3d 121, 128 (2d Cir. 2010) (extending absolute immunity only to child
protection agency attorney despite agency officials directing the attorney to
initiate court proceedings).
The defendants decision to place an emergency medical hold on M.T. in
anticipation of Mrs. Thomass attempt to discharge M.T. is not protected by
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absolute immunity. The decision to place the hold was not closely associated
with the judicial process. An emergency medical hold is a mechanism for
facilities to temporarily prevent a patients discharge when personnel believe the
patients medical circumstances warrant such a measure. Medical personnel are
not required to obtain judicial permission before placing a temporary hold on a
patients discharge. In this case, the medical hold preceded the filing of an
involuntary residential treatment petition and was functionally analogous to law
enforcement officials taking unilateral emergency action. See Snell, 920 F.2d at
690 (declining to extend absolute immunity for social workers efforts to gain
protective custody before filing a petition in court); Spielman v. Hildebrand, 873
F.2d 1377, 1383 (10th Cir. 1989) (holding that defendants are not entitled to
absolute immunity because they acted unilaterally prior to the operation of the
judicial process (internal quotation marks omitted)).
In sum, the defendants are not entitled to absolute immunity for their
decision to place M.T. on a medical hold. We thus turn to whether qualified
immunity is available for the defendants conduct.
B. Qualified Immunity
Qualified immunity protects officials from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Once the qualified immunity defense is
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asserted, the plaintiff bears a heavy two-part burden to show, first, the
defendants actions violated a constitutional or statutory right, and, second, that
the right was clearly established at the time of the conduct at issue. Archuleta
v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008) (internal quotation marks
omitted).
A right is clearly established in this circuit when a Supreme Court or
Tenth Circuit decision is on point, or if the clearly established weight of authority
from other courts shows that the right must be as the plaintiff maintains. PJ ex
rel. Jensen v. Wagner, 603 F.3d 1182, 119697 (10th Cir. 2010) (internal
quotation marks omitted). A previous decision need not be materially factually
similar or identical to the present case; instead, the contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right. Id. at 1197 (internal quotations marks and alterations
omitted). The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted. Saucier v. Katz, 533 U.S.
194, 202 (2001).
Although qualified immunity defenses are typically resolved at the
summary judgment stage, district courts may grant motions to dismiss on the
basis of qualified immunity. Asserting a qualified immunity defense via a Rule
12(b)(6) motion, however, subjects the defendant to a more challenging standard
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of review than would apply on summary judgment. Peterson v. Jensen, 371 F.3d
1199, 1201 (10th Cir. 2004); see also Behrens v. Pelletier, 516 U.S. 299, 309
(1996) (At [the motion to dismiss] stage, it is the defendants conduct as alleged
in the complaint that is scrutinized for objective legal reasonableness. On
summary judgment, however, the plaintiff can no longer rest on the pleadings,
and the court looks to the evidence before it (in the light most favorable to the
plaintiff) when conducting the [qualified immunity] inquiry. (citations omitted)
(emphasis in original)).
1. Right to Direct Childs Medical Care
The Thomases first allege in their complaint that the defendants violated
their right to direct M.T.s medical care when the defendants notified CYFD of
potential parental medical neglect.
The Fourteenth Amendment protects the right of parents to make decisions
concerning the care, custody, and control of their children. Troxel v. Granville,
530 U.S. 57, 66 (2000). This right provides some level of protection for parents
decisions regarding their childrens medical care. Jensen, 603 F.3d at 1197.
Although neither the Supreme Court nor the Tenth Circuit has defined the precise
scope of the right to direct a childs medical care, it is not absolute. [W]hen a
childs life or health is endangered by her parents decisions, in some
circumstances a state may intervene without violating the parents constitutional
rights. Id. at 1198.
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Our decision in Jensen is illustrative. In that case, we concluded the

medical defendants were entitled to qualified immunity because the parents right
to direct their childs medical care under the circumstances was not clearly
established. Seven doctors had diagnosed the minor child with life-threatening
cancer and recommended immediate chemotherapy treatment to save his life. A
state-employed doctor and two social services officials pursued the treatment over
the objections of the parents. We concluded that it was not clearly established
that the Jensens had a right to refuse the recommendations of seven doctors or to
shop around for additional opinions until they found a recommendation against
conventional treatment. Because the Jensens had not asserted any factual
allegation that would demonstrate state action clearly outside the states wide
range of power to protect children, the Jensens right to direct their childs
medical care under those circumstances was not clearly established. Id.
The Thomases frame their claim as the right to be free from an allegation
of neglect by treating physicians. But none of our cases clearly establish that an
allegation alone can be the basis for an infringement on the right to direct a
childs medical care. In this case, the defendants communications to CYFD
resulted in no official action that affected the Thomases right to direct M.T.s
medical care. We see no interference with M.T.s medical treatment as a result of
this communication, nor can the Thomases point to any case law that defines the
contours of the right to direct medical care such that it would be sufficiently
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clear to the defendants that reporting the plaintiffs to CYFD would violate that
right. And the Thomases do not allege that any other conduct by the defendants
violated their right to direct medical care.
Because the Thomases have not shown a violation of a clearly established
right to direct M.T.s medical care under these circumstances, the district court
was correct to dismiss this claim.
2. Right to Familial Association
The Thomases also claim that the defendants violated their right to familial
association when they placed M.T. on a temporary medical hold and sought an
involuntary residential treatment order in state court. As we explained above, the
decision to seek involuntary residential treatment was not the cause of the
Thomases alleged injury. The placement of the medical hold on M.T. to prevent
her discharge was the cause of the alleged injury. We will therefore assess
whether the Thomases have stated a claim for a violation of the right to familial
association only with respect to the placement of the medical hold.
The governments forced separation of parent from child, even for a short
time, represents a serious impingement on a parents right to familial
association. Jensen, 603 F.3d at 1199. But a parent must allege intent to
interfere with this rightthat is, the defendant must have directed conduct at the
familial relationship with knowledge that the statements or conduct will
adversely affect that relationship. Lowery v. Cnty. of Riley, 522 F.3d 1086,
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109293 (10th Cir. 2008). A familial association claim is grounded in

substantive due process arising from allegations of abusive government
authority. Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993); see also
Jensen, 603 F.3d at 119899; J.B. v. Wash. Cnty., 127 F.3d 919, 927 (10th Cir.
1997). Regardless of the intensity of a familial association claim, our cases
establish that the right is not absolute, but must be weighed against the states
interest in protecting a childs health and safety in order to determine whether
state actors unduly burdened that right in a given case. See Youngberg v. Romeo,
457 U.S. 307, 32021 (1982); see also Jensen, 603 F.3d at 1199; Lowery, 522
F.3d at 1092. 8 To state a claim for the deprivation of the right of familial
association, the Thomases had to allege that (1) defendants intended to deprive
them of their protected relationship with their daughter, see Estate of B.I.C. v.
Gillen, 710 F.3d 1168, 1175 (10th Cir. 2013), and that (2) balancing the
Thomases interest in their protected relationship with M.T. against the states
interests in M.T.s health and safety, defendants either unduly burdened
plaintiffs protected relationship, see Jensen, 603 F.3d at 1199, or effected an
unwarranted intrusion into that relationship, Trujillo v. Bd. of Cnty. Commrs,
768 F.2d 1186, 1189 (10th Cir. 1985). In conducting this balancing, the court
will consider, among other things, the severity of the infringement on the
8

The Thomases also point to procedural due process cases to support

their claim. They did not assert this theory in the district court, and we decline to
address it. See Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir. 2012).
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protected relationship, the need for defendants conduct, and possible alternative
courses of action. See Griffin, 983 F.2d at 1548.
The facts alleged in the complaint here are sufficient to state a claim for
deprivation of the right to familial association. When Mrs. Thomas indicated she
was inclined to have M.T. discharged from the hospital on April 29, Del Fabbro
placed a medical hold on M.T. The purpose and effect of this action was to
prevent Mrs. Thomas from removing M.T. from the hospital. The complaint
sufficiently alleges that all defendants were involved in the decision to retain
custody of M.T. at this time.
Upon the defendants assertion of the defense of qualified immunity, the
Thomases were required to state a claim of not only a violation of a constitutional
right, but a violation of a clearly established right. Iqbal, 556 U.S. at 673. The
defendants argue that they are entitled to qualified immunity because the
Thomases failed to show an immediate threat to M.T.s life did not exist.
The scope of the right to familial association, at least in the context of
deprivation of parental custody in certain circumstances, is clearly established.
But at this stage in the proceedings, we do not have the information necessary to
determine whether a state interest in M.T.s health and welfare existed such that it
would have been justified for the defendants to infringe upon the Thomases right
to familial association. Whether the right to familial association has been
violated requires the court to conduct a fact-intensive balancing test not ordinarily
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suitable for the Rule 12(b)(6) stage. When the facts have not yet been fully
brought out through discovery, it is difficult for the court to adequately conduct
the relevant constitutional test. See Devlin v. Kalm, 531 F. Appx 697, 707 (6th
Cir. 2013) ([W]hile officers will often be entitled to qualified immunity under [a
multi-factor balancing test], this will only be evident after an opportunity for
discovery so that the court can know what is being balanced against what.).
While we can consider the objective reasonableness of defendants actions at the
motion to dismiss stage, we can only scrutinize their conduct as alleged in the
complaint. Behrens, 516 U.S. at 309. A complaint might sometimes contain
sufficiently detailed facts to allow for a qualified immunity inquiry, but such is
not the case here.
The facts alleged in the Thomases complaint, when accepted as true and
viewed in a light favorable to the plaintiffs, do not show an immediate threat of
suicide had M.T. been discharged. The complaint does allege that suicidal
ideation was a basis for M.T.s intake, diagnosis, and course of treatment. But
the complaint does not contain facts showing M.T.s suicide risk on April 29, the
day the defendants instituted the medical hold and allegedly violated the
plaintiffs constitutional rights. Although the complaint avers that M.T.
expressed suicidal ideation on May 4, the complaint does not provide sufficient
information or context for determining the immediacy or seriousness of the
suicide threat during the course of the seven-day hold. Moreover, the complaint
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alleges the defendants chose to discharge M.T. because they determined her
insurance would not cover the involuntary commitment, and not because her
medical condition improved. Thus, to be able to adequately determine whether
officials of reasonable competence could disagree as to the danger of discharging
M.T., the court must allow for some factual development of the record. 9 The
defendants will be entitled to qualified immunity if reasonable officers could at
least disagree as to the danger of discharging M.T.
The defendants ask us to consider M.T.s medical records to determine
whether a reasonable official would have found an exigent situation existed. A
district court may consider documents (1) referenced in a complaint that are (2)
central to a plaintiffs claims, and (3) indisputably authentic when resolving a
motion to dismiss without converting the motion to one for summary judgment.
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 138485 (10th
Cir. 1997). But there are reasons not to do so here. First, and most importantly,
the medical records were before the district court under seal on a motion to
appoint a guardian ad litem; the court did not consider them in the context of the
motion to dismiss. Moreover, the record contains only isolated snippets of the
9

Qualified immunity protects officers from the burdens of pre-trial

discovery. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Jiron v. City of
Lakewood, 392 F.3d 410, 414 (10th Cir. 2004). But if the district court
determines that it cannot rule on the immunity defense without clarification of the
facts, it may issue a discovery order narrowly tailored to uncover only those
facts needed to rule on the immunity claim. Backe v. LeBlanc, 691 F.3d 645,
648 (5th Cir. 2012) (internal quotation marks omitted).
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medical recordswhich appear as exhibits supporting the defendants motion to

appoint a guardian ad litemand do not allow for a comprehensive review of the
evidence. While the medical records will surely be central to the case at summary
judgment, they are not the kind of documents we have ordinarily allowed to be
entertained at the motion to dismiss stage.
In sum, the district court erred in granting the defendants motion to
dismiss on the right to familial association claim, insofar as it is based on the
April 29 decision to place a medical hold on M.T. The Thomases have pleaded
facts that demonstrate a violation of clearly established law. And, at this stage of
the proceedings, there are insufficient undisputed facts to determine whether
reasonable officers would disagree as to whether an immediate threat to M.T.s
life existed.

III. Conclusion
We AFFIRM the dismissal of the plaintiffs right to direct medical care
claim. We REVERSE the dismissal of the plaintiffs familial association claim.
We remand for further proceedings consistent with this opinion.

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