35 F.

3d 1486

Sharon MARTINEZ, Individually and as parent and next

friend
of Rose Martinez, Plaintiff-Appellant,
v.
Polly MAFCHIR, Lou Gallegos, Jack Callahan, Roberto
Samora,
Rosemary Roybal, and Audrey Druva, in their
individual capacities, Defendants-Appellees.
No. 93-2007.

United States Court of Appeals,

Tenth Circuit.
Sept. 27, 1994.

Fred Abramowitz, and Elizabeth E. Simpson, of Tomita & Simpson, P.C.,

Albuquerque, NM, for plaintiff-appellant.
Judith C. Herrera and Michael D. Baird, of Herrera, Baird & Long, P.A.,
Santa Fe, NM, for defendants-appellees.
Before ANDERSON, McKAY, and TACHA, Circuit Judges.
TACHA, Circuit Judge.

Plaintiff Sharon Martinez filed an action under 42 U.S.C. Sec. 1983 alleging
Fourteenth Amendment substantive and procedural due process violations
arising out of defendants' actions in pursuing a neglect and abuse petition
seeking legal custody of her daughter, plaintiff Rose Martinez. The district
court granted defendants' summary judgment motion. Plaintiffs appeal. We
exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm.1

I. Background
A. Facts 2

On January 12, 1988, four-year-old Rose Martinez was sexually abused and
raped by Leroy Boylan, a thirteen-year-old neighbor boy who was staying at
the Martinez house. Rose's mother, Sharon Martinez, became aware of the
sexual assault that same night, and after hearing Rose's complaints of pain and
finding blood in Rose's underwear, she gave Rose a hot bath and examined her
vagina for injuries. Seeing no signs of physical injury, Ms. Martinez decided
not to seek medical treatment for Rose. The following day, January 13, 1988,
Ms. Martinez informed Leroy's father, Mike Boylan, about the sexual assault,
and he in turn related the incident to his wife, Linda Boylan. Ms. Martinez did
not inform any public authorities about the assault.

Approximately one week after the incident, Ms. Martinez discovered a

discharge in Rose's underwear and notice that Rose was experiencing vaginal
irritation. She called to make an appointment with Dr. Gerald Rodriguez. Dr.
Rodriguez examined Rose a week later on January 27, 1988. He found that
Rose had suffered no tears, lacerations or abrasions to the pubic area, he tested
Rose for venereal disease, and he prescribed a vaginal cream.

The Social Services Division of the New Mexico Human Services Department
("HSD") learned of the sexual molestation on January 19, 1988, when Linda
Boylan brought the incident to HSD's attention at an unrelated detention
hearing for Leroy. The next day, January 20, 1988, Polly Mafchir, a social
worker for HSD, went to the Martinez home but found no one there. In
response to a note left by Ms. Mafchir, Ms. Martinez went to Ms. Mafchir's
office to meet with her on January 28, 1988. While there, Ms. Martinez quickly
became upset with Ms. Mafchir and complained to her supervisor, defendant
Rosemary Roybal. Ms. Martinez eventually calmed down and informed Ms.
Mafchir and Ms. Roybal about the sexual assault and Rose's visit to Dr.
Rodriguez's office. She indicated that Rose's behavior had changed since the
assault and acknowledged that Rose needed to talk about the incident. Ms.
Mafchir encouraged Ms. Martinez to take Rose to the Rape Crisis Center for a
psychological assessment.

Ms. Martinez later called the Rape Crisis Center, but decided not to take Rose
there because she did not like the Center's assessment procedures. Ms. Mafchir
testified that following her discussion with Ms. Martinez she called Dr.
Rodriguez and he told her in effect that Ms. Martinez was an irresponsible
parent.

On February 25, 1988, Ms. Mafchir visited the Martinez residence with Deputy
Judy Newsome of the Santa Fe County Sheriff's Department to investigate the

sexual assault of Rose. Inside the Martinez home, they observed marijuana
plants and were troubled that Rose was wearing "long feather-type earrings"
and makeup that was not "childishly applied," but rather had an adult-like
appearance. Ms. Mafchir told Ms. Martinez that HSD would pay for Rose's
psychological evaluation and she suggested that Ms. Martinez take Rose to a
private counselor named Margo Bryce. Ms. Martinez agreed to do this.
7

On February 26, 1988, Ms. Martinez again took Rose to Dr. Rodriguez's office
because Rose continued to have a malodor and slight discharge. Believing that
a foreign object might be causing the discharge, Dr. Rodriguez scheduled a
hospital visit for Rose so that he could surgically examine her. Because general
anesthesia would be used, Dr. Rodriguez instructed Ms. Martinez not to feed
Rose the morning of her surgery. The scheduled procedure had to be canceled
twice, however, because Rose awoke early and ate breakfast. Rose eventually
spent the night at the hospital to ensure that she would not eat before the
procedure. Dr. Rodriguez performed the procedure and no foreign objects were
found.

Ms. Roybal discussed the Martinez case with Ms. Mafchir throughout Ms.
Mafchir's investigation. On April 11, 1988, Ms. Mafchir and Ms. Roybal filed a
Uniform Case Record in which they recommended that HSD take affirmative
action in the case. Then, on April 28, 1988, a children's court attorney named
Catherine Aguilar filed in the Children's Court Division of the First Judicial
District Court in the State of New Mexico a Neglect/Abuse Petition ("Neglect
Petition") which had been prepared by Ms. Mafchir. The Neglect Petition
outlined the facts set forth above, concluded that Rose was neglected and
requested legal custody of Rose.

At the time the Neglect Petition was filed Ms. Mafchir believed that Rose's
medical needs had been met, though in an untimely fashion, and that she was
not in any immediate danger. Ms. Mafchir testified, however, that she believed
Rose's psychological needs had not been met and that Ms. Martinez had failed
to heed her suggestions to seek psychological counseling for Rose at the Rape
Crisis Center or with Margo Bryce. Ms. Mafchir and Ms. Roybal both testified
that this was an unusual case because, though HSD sought legal custody, HSD
was not seeking Rose's physical removal from the Martinez home. Rather, HSD
pursued the Neglect Petition (1) to enlist the court's help to ensure Ms.
Martinez would follow through with the recommended psychological
evaluations for Rose, and (2) to receive court approval for HSD payment for
the evaluations.

10

On May 2, 1988, a guardian ad litem was appointed for Rose and a Notice of

Setting was filed scheduling a hearing on the Neglect Petition for May 10,
1988. A hearing was held on that date, but Ms. Martinez was not present
because she had not been served with the Neglect Petition and she did not
receive notice of the hearing. At the hearing, the court awarded temporary
physical and legal custody of Rose to the state, but ordered that physical
placement of Rose remain with her mother, pending adjudication. Rose was
never physically separated from her mother. The court placed its findings and
conclusions in a Custody Hearing Order and mailed a copy to Ms. Martinez via
certified mail on May 12, 1988.
11

On May 23, 1988, Audrey Druva replaced Ms. Mafchir as the social worker in
the Martinez case. A week later, Ms. Martinez found copies of some court
pleadings, including the Neglect Petition, in an envelope taped to her door. Ms.
Martinez complained the next day to Ms. Mafchir's new supervisor, defendant
Roberto Samora, about Ms. Mafchir's conduct and the filing of the Neglect
Petition.

12

In August 1988, after an adjudicatory hearing, the parties agreed to dismiss the
Neglect Petition on the condition that Ms. Martinez cooperate in arranging and
participating in a psychological evaluation paid for by HSD. She complied and
the Neglect Petition was dismissed on November 23, 1988.

B. Procedure
13

On April 17, 1991, plaintiffs filed an action under 42 U.S.C. Sec. 1983 alleging
that defendants violated their Fourteenth Amendment substantive due process
right to familial integrity by investigating and pursuing the Neglect Petition
without just cause. Plaintiffs also asserted that defendants violated their
procedural due process rights by failing to provide Ms. Martinez with notice of
the Neglect Petition hearing. The district court granted defendants' motion for
summary judgment on both claims.

14

With respect to the substantive due process claim, the district court determined
that defendants were entitled to qualified immunity because their actions did not
violate any clearly established constitutional right. As to plaintiffs' procedural
due process claim, the court held that defendants were entitled to summary
judgment because they had no responsibility to provide Ms. Martinez with
notice. Plaintiffs now appeal arguing that the district court erred in granting
defendants' summary judgment motion.3

II. Discussion

A. Substantive Due Process Claim

15

Plaintiffs first assert that the district court erred in finding that defendants are
entitled to qualified immunity on plaintiffs' substantive due process claim.
"Qualified immunity is a question of law and the standard of review is de
novo." Yvonne L. v. New Mexico Dep't of Human Servs., 959 F.2d 883, 891
(10th Cir.1992).

16

"[G]overnment officials performing discretionary functions generally are

shielded 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, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Pueblo
Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988).
In Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1793, 114 L.Ed.2d
277 (1991), the Supreme Court "clarif[ied] the analytical structure under which
a claim of qualified immunity should be addressed." To reach the question of
whether a defendant official is entitled to qualified immunity, a court must first
ascertain whether the plaintiff has sufficiently asserted the violation of a
constitutional right at all. Siegert, 500 U.S. at 231-33, 111 S.Ct. at 1793; see
Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994); Maldonado v.
Josey, 975 F.2d 727, 729 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct.
1266, 122 L.Ed.2d 662 (1993). If the plaintiff has asserted the violation of a
constitutional right, the court must then determine whether that right had been
clearly established so that a reasonable official in the defendant's situation
would have understood that his conduct violated that right. Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987);
Donovan, 17 F.3d at 947.

17

Plaintiffs assert that the defendants' alleged improper conduct violated their
substantive due process right to familial integrity. Defendants argue to the
contrary. The Supreme Court has recognized in various situations an abstract
fundamental liberty interest in familial integrity. Lehr v. Robertson, 463 U.S.
248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Lassiter v. Department of Social
Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Smith v.
Organization of Foster Families for Equality & Reform, 431 U.S. 816, 97 S.Ct.
2094, 53 L.Ed.2d 14 (1977); Spielman v. Hildebrand, 873 F.2d 1377, 1383
(10th Cir.1989); Kickapoo Tribe of Oklahoma v. Rader, 822 F.2d 1493, 1497
(10th Cir.1987). The right to familial integrity, however, has never been
deemed absolute or unqualified. See, e.g., Lehr, 463 U.S. at 256, 103 S.Ct. at
2990-91 (relationship between parent and child merits constitutional protection
in "appropriate cases"); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct.

438, 442, 88 L.Ed. 645 (1944) ("the family itself is not beyond regulation in the
public interest"). Indeed, the state itself has a compelling interest in the health,
education and welfare of children. See, e.g., Santosky v. Kramer, 455 U.S. 745,
766, 102 S.Ct. 1388, 1401, 71 L.Ed.2d 599 (1982) (state has parens patriae
interest in welfare of child); Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct.
1526, 1532, 32 L.Ed.2d 15 (1972) (state has "high responsibility for education
of its citizens"); see also Frazier v. Bailey, 957 F.2d 920, 930 (1st Cir.1992)
(citing Santosky and Yoder ).
18

Courts have recognized that the constitutional right to familial integrity is

amorphous and always must be balanced against the governmental interest
involved. See Hodge v. Jones, 31 F.3d 157, 163-64 (4th Cir.1994); Frazier, 957
F.2d at 931; Baker v. Racansky, 887 F.2d 183, 187 (9th Cir.1989); Hodorowski
v. Ray, 844 F.2d 1210, 1217 (5th Cir.1988); see also Melton v. City of
Oklahoma City, 879 F.2d 706, 729 (10th Cir.1989) (where balancing of
interests is required "the law is less likely to be well established than in other
cases"), cert. denied, --- U.S. ----, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991). As a
result, the Siegert framework has proved difficult to apply in child abuse cases
involving the generalized constitutional right to familial integrity because the
threshold constitutional violation analysis may run together with the "clearly
established" analysis. See, e.g., Doe v. Louisiana, 2 F.3d 1412, 1417 (5th
Cir.1993) (blending constitutional violation analysis with clearly established
law analysis), cert. denied, --- U.S. ----, 114 S.Ct. 1189, 127 L.Ed.2d 539
(1994); Frazier, 957 F.2d at 921-22 (same). Nevertheless, we undertake to
apply the Siegert framework here. In the context of this case, we must first
determine whether Ms. Mafchir's actions in pursuing the Neglect Petition, not
to seek Rose's actual physical removal from the Martinez home but basically to
force Ms. Martinez to follow through with the recommended psychological
evaluations for Rose, rose to the level of a constitutional violation.

19

Social workers face extreme difficulties in trying simultaneously to help

preserve families and to serve the child's best interests. See Baker, 887 F.2d at
187. Ms. Mafchir was in possession of the following facts at the time she
prepared the Neglect Petition: (1) four-year-old Rose had been raped by a
neighbor boy who was staying at the Martinez residence; (2) Ms. Martinez did
not seek medical treatment the night of the sexual assault even though Rose
complained of vaginal pain and had blood on her underwear; (3) Ms. Martinez
told Leroy's father of the assault but did not inform public authorities about the
incident; (4) Ms. Martinez did not take Rose to be examined by Dr. Rodriguez
until two weeks after the assault and approximately one week after Rose
experienced irritation and discharge; (5) Dr. Rodriguez effectively told Ms.
Mafchir that Ms. Martinez was an irresponsible parent; (6) Ms. Mafchir and

Deputy Newsome observed marijuana in the house and saw Rose wearing long
feather earrings and makeup that had an adult-like appearance; (7) Ms.
Martinez missed two appointments to have Rose examined under general
anesthesia because Rose had eaten the morning of the scheduled procedure; (8)
Rose's behavior had changed since the sexual assault and Ms. Martinez
acknowledged that Rose needed to talk about the incident; (9) despite Ms.
Mafchir's suggestions, Ms. Martinez failed to take Rose for psychological
counseling as she had promised to do; and (10) Rose's medical needs had been
met and she was not in any immediate danger. Though these facts lend
themselves to different interpretations when viewed separately or with
hindsight, given the above circumstances in their entirety a reasonable social
worker at the time could have believed that Ms. Martinez was neglecting Rose's
serious psychological needs. 4
20

Though Ms. Martinez undoubtedly suffered anxiety between the time

temporary legal custody was awarded to the state and the time the Neglect
Petition was dismissed, we again point out that Rose never was removed
physically from her mother. When she filed the Neglect Petition based on
Rose's perceived need for psychological counseling, Ms. Mafchir apparently
was attempting to comply with the dual objectives of preserving the family unit
and pursuing the child's best interest. Considering that Rose was the victim of
sexual abuse, the facts surrounding her home environment and the details
related to Ms. Martinez's inattentive attitude regarding Rose's psychological and
medical treatment, Ms. Mafchir's actions placed the state's interest in protecting
the child's well being in a higher priority position than the counterbalancing
interest in familial integrity. Under the circumstances of this case, the two
interests simply cannot lie in equipoise. By pursuing the state's interest in the
child, Ms. Mafchir did not violate the Constitution by temporarily
compromising the right to familial integrity. We find that Ms. Mafchir's action
in filing the Neglect Petition, although arguably extreme for its purpose, did not
violate any constitutional right to which Ms. Martinez is entitled.

21

Plaintiffs' Sec. 1983 substantive due process claim against Ms. Roybal and Mr.
Samora is based solely on their supervision of Ms. Mafchir's investigation and
pursuit of the Neglect Petition. Because Ms. Mafchir did not violate plaintiffs'
constitutional right to familial integrity, neither did Ms. Roybal nor Mr.
Samora. See, e.g., Meade v. Grubbs, 841 F.2d 1512, 1527-28 (10th Cir.1988)
(no supervisory liability attaches without an underlying constitutional
violation).

B. Procedural Due Process Claim

22

Unlike the nebulous substantive due process right to familial integrity, it cannot
be denied that a parent's procedural due process right to receive notice prior to a
child custody hearing is a clearly established right of which a reasonable
official should have known. See Application of Gault, 387 U.S. 1, 33-34, 87
S.Ct. 1428, 1446-47, 18 L.Ed.2d 527 (1967); Kickapoo, 822 F.2d at 1497. The
district court, however, did not hold that Ms. Martinez's procedural due process
rights had not been violated. To the contrary, pointing out that Ms. Martinez did
not receive notice of the Neglect Petition hearing, the court found it "strange,
even shocking," that "custody of a parent would be ordered removed at a
hearing at which the parent was not present and no exigent circumstances
existed." The district court nevertheless held that summary judgment was
appropriate because Ms. Mafchir and her supervisors had no responsibility to
provide Ms. Martinez with notice.5 Thus, this appears to be the unusual case in
which we must decide the factual issue of whether these defendants violated
plaintiffs' procedural due process rights.

23

The district court analyzed the New Mexico Children's Code and concluded
that "[a] fair implication from the Children's Code's structure and language,
especially in light of the customary practice of law, is that the attorney who
files the petition is responsible for seeing that the summons is issued and
served with a copy of the petition." Further, the court noted that "[n]o statute or
other law charges the social worker or the social worker's supervisor with the
duty of serving the petition." The district court also looked to Ms. Mafchir's
deposition testimony. In response to questioning, she testified as follows:

24

Q. Was it your responsibility to see that the papers had been served?

25

A. No.

26

Q. As the investigative worker, do you normally have responsibility for any

service?

27

A. No.

28

Q. Who has that responsibility?

29

A. The Sheriff's Department.

30

Q. Is that something you assign, or is that something the attorney assigns?

31

A. The attorneys. I don't have anything to do with that.

32

Q. Okay.

33

A. The attorneys--I don't know whether it's the attorneys or the Court, honestly.

34

Plaintiffs' sole argument on appeal is that deposition testimony of Catherine

Aguilar, the children's court attorney who filed the Neglect Petition, creates a
material fact as to whether Ms. Mafchir had responsibility for providing Ms.
Martinez with notice of the Neglect Petition hearing, thus precluding summary
judgment on plaintiffs' procedural due process claim.6 Plaintiffs rely on the
following excerpt from Catherine Aguilar's testimony to support their assertion:

35

Q. I don't know what you're looking at, but why are you laughing?

36

A. Well, apparently the Department may have served the wrong person. I
apparently wrote a memo to [Ms. Mafchir] about--Apparently somebody sent
me back the Summons saying, "You served me, and I'm not Sharon Martinez."
And so I wrote a memo to the social worker saying that I had received this back
and to please talk to me about this service.

37

Q. Who is responsible for seeing to it that service is done in these cases?

38

A. The social workers normally--although we sent--Because of the ten-day rule,

it was often--it was a race to see how we could get clients served as soon as
possible. Most of the time, we took our service of process to the Sheriff's Office
to get served. And I believe the social workers did that actual delivery to the
Sheriff's Office.

39

We find that this testimony does not create a genuine issue of material fact
regarding Ms. Mafchir's responsibility for providing Ms. Martinez with notice.

40

Ms. Mafchir clearly testified she was not responsible for service of the
summons and the petition, but that the children's court attorneys were
responsible for assigning the Sheriff's Department to effect service. Catherine
Aguilar's testimony, that social workers "normally" are responsible for "seeing
to it that service is done" and that "the social workers did that actual delivery to
the Sheriff's Office" in this case, does not contradict Ms. Mafchir's testimony.
Rather, Catherine Aguilar's testimony merely adds to Ms. Mafchir's testimony
by showing that Ms. Mafchir had assumed the function of delivering service

papers to the Sheriff's Office, not that she was responsible for ensuring that Ms.
Martinez received notice.

41

In fact, all the evidence, including Catherine Aguilar's testimony itself,

indicates that the children's court attorney retained responsibility for ensuring
Ms. Martinez actually received notice. Catherine Aguilar stated that "someone
sent me back the Summons ... [a]nd so I wrote a memo to the social worker
saying that I had received this back and to please talk to me about this service."
Ms. Mafchir's entry in the Martinez casefile after the hearing also shows the
children's court attorney retained responsibility for overseeing service of
process. On May 16, 1988, Ms. Mafchir wrote: "Memo from Legal to ask us to
provide service of process of Sharon Martinez. Sheriff's office has not been
taking care of this service on a number of our cases lately." Further, no statute
charges social workers with the responsibility for providing notice. As the
district court noted, the New Mexico Children's Code provides that parents
must be served, see N.M.Stat.Ann. Sec. 32A-1-12 ("summonses shall be issued
... to the parent" requiring the parent to appear before the court to answer the
allegations of the petition); N.M.Stat.Ann. Sec. 32A-1-13 ("the summons shall
be served upon the party" at least forty-eight hours before the hearing), but does
not make clear where responsibility for providing that notice rests, though a
"fair implication from the Children's Code's structure and language, especially
in light of the customary practice of law, is that the [children's court] attorney
who files the petition" bears that burden.

42

We also point out that Ms. Mafchir fulfilled any duty she had regarding the
function of delivering the Neglect Petition to the Sheriff's Office. Ms. Mafchir's
notes indicate (and it is undisputed) that the Petition was delivered to the
Sheriff's Department prior to the May 10, 1988 hearing. Ms. Mafchir's actions
during and after the hearing also demonstrate that she acted responsibly. When
Ms. Martinez failed to appear at the May 10, 1988 hearing, the judge asked Ms.
Mafchir to call the Sheriff's Department to inquire whether Ms. Martinez had
been served. Upon making the call, Ms. Mafchir learned that Ms. Martinez had
not been served. Mafchir then told the children's court attorney and the attorney
in turn informed the judge, who proceeded with the hearing despite Ms.
Martinez's absence. After the hearing, when specifically asked by the children's
court attorney to assume the responsibility of overseeing service of process, Ms.
Mafchir's May 19, 1988, entry in the case file--"Memo sent to Legal that I
spoke with Ramona, a process server at Sheriff's office. She promised to serve
papers today"--indicates that Ms. Mafchir acted diligently.

43

Like the district court, we find it shocking that the hearing on the Neglect
Petition proceeded in Ms. Martinez' absence. However, we are called upon to

decide only whether these defendants--Ms. Mafchir and her supervisors--were

responsible for serving Ms. Martinez with notice. Because Ms. Aguilar's
testimony creates no material fact regarding this issue, defendants are entitled to
summary judgment on plaintiffs' procedural due process claim because they did
not violate plaintiffs' constitutional rights.
III. Conclusion
44

Defendants are entitled to summary judgment on plaintiffs' substantive due

process claim because they did not violate the right to familial integrity.
Plaintiffs' procedural due process claim fails because these defendants were not
responsible for providing Ms. Martinez with notice of the Neglect Petition
hearing and therefore did not violate plaintiffs' right to procedural due process.
AFFIRMED.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument

Plaintiffs have filed a motion to strike defendants' supplemental appendix. We

deny the motion because the materials in defendants' supplemental appendix
merely correct and clarify factual misstatements in plaintiffs' appellate brief.
See Fed.R.App.P. 10(e) ("If anything material to either party is omitted from
the record by error or accident or is misstated therein, ... the court of appeals, on
proper suggestion or of its own initiative, may direct that the omission or
misstatement be corrected, and if necessary that a supplemental record be
certified and transmitted.") (emphasis added)

This appeal presumably relates only to the actions of defendants Polly Mafchir,
Rosemary Roybal and Roberto Samora. In plaintiffs' complaint, they named as
defendants Polly Mafchir, Lou Gallegos, Jack Callahan, Roberto Samora,
Rosemary Roybal and Audrey Druva. (Jack Callahan was the Director of the
Social Services Division of HSD and Lou Gallegos was the Secretary of HSD
at all times material to this suit.) In their Response to Defendants' Motion for
Summary Judgment, however, plaintiffs agreed to the dismissal of defendants
Lou Gallegos, Jack Callahan and Audrey Druva because discovery did not
substantiate any wrongdoing on their part

The New Mexico Children's Code's definition of a "neglected child" is subject

to broad interpretation and arguably encompasses situations where the child's

psychological needs are neglected. The Children's Code defines a "neglected

child" as a child:
who is without proper parental care and control or subsistence, education,
medical or other care or control necessary for the child's well-being because of
the faults or habits of the child's parent, guardian or custodian or the neglect or
refusal of the parent, guardian or custodian, when able to do so, to provide
them.
N.M.Stat.Ann. Sec. 32A-4-2.C(2) (emphasis added).
5

Plaintiffs incorrectly assert that the district court sua sponte concluded that
defendants were not responsible for providing Ms. Martinez with notice.
Defendants brought this issue to the district court's attention by stating in their
Motion for Summary Judgment that "[t]hese defendants did not deny plaintiff
procedural [due] process" and then by arguing in their Memorandum in Support
of Motion for Summary Judgment that they "were not responsible for serving
the Petition."

Catherine Aguilar's deposition testimony was not part of the record below and
therefore was not considered by the district court. Normally we do not consider
on appeal materials not furnished to the district court. Creason v. American
Bridge, 384 F.2d 475, 478 (10th Cir.1967); see also Henn v. National
Geographic Soc'y, 819 F.2d 824, 831 (7th Cir.), cert. denied, 484 U.S. 964, 108
S.Ct. 454, 98 L.Ed.2d 394 (1987). In this case, however, we grant plaintiffs'
motion to supplement the record with Ms. Aguilar's deposition testimony.
Defendants did not oppose the motion, and further, as we determine above,
even had Ms. Aguilar's testimony been part of the original record it would not
have created any material factual issue regarding Ms. Mafchir's responsibility to
provide Ms. Martinez with notice