Lelah Jerger v. Shannon Blaize ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3011
LELAH JERGER, et al.,
Plaintiffs-Appellants,
v.
SHANNON BLAIZE, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:18-cv-00030 — Richard L. Young, Judge.
____________________
ARGUED JUNE 1, 2022 — DECIDED JULY 26, 2022
____________________
Before EASTERBROOK, WOOD, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Before us is a messy set of facts
arising out of a child welfare investigation. The Indiana De-
partment of Child Services learned from a social worker that
Lelah and Jade Jerger may not have been providing their in-
fant daughter, J.J., medication prescribed to control epileptic
seizures. A blood draw, the DCS case workers knew, would
clarify whether that was so, and a series of urgent back-and-
forths with the Jergers resulted in their taking J.J. to the
2 No. 21-3011
hospital for the test. The results showed that J.J. had started
the prescription a few days earlier. But that was not the end
of it. Litigation ensued, with the Jergers alleging violations of
J.J.’s Fourth Amendment rights and their own Fourteenth
Amendment due process rights to make medical decisions for
their child. The district court decided that qualified immunity
protected the DCS case workers and entered summary judg-
ment in their favor. We vacate and remand, as the facts are too
murky and contested to allow us to reach any legal conclu-
sions with confidence.
I
A
Drawing on the summary judgment record, we set forth
the facts in the light most favorable to the Jergers. See Turner
v. City of Champaign, 979 F.3d 563, 565 (7th Cir. 2020). At just
15 months old, J.J. had experienced many seizures. After a
series of tests in early 2017, doctors at Riley Hospital in
Indianapolis diagnosed her with epilepsy. To help control the
seizures—at least one of which resulted in J.J. turning blue
and losing consciousness for about 15 seconds—doctors
prescribed Keppra, an anticonvulsant. Lelah and Jade,
however, worried about Keppra’s side effects. So they
delayed filling the prescription until they could get a second
opinion. In the meantime, they treated J.J.’s seizures with
CBD oil prescribed by a chiropractic neurologist.
Months later, the Jergers remained at a standstill over
whether J.J. should take Keppra. On September 20, 2017, a
concerned social worker at Riley Hospital, aware of the
Jergers’ decisions, called the Indiana Department of Child
Services to report medical neglect of J.J. by Lelah and Jade.
No. 21-3011 3
The social worker described not only how several doctors had
recommended Keppra to manage J.J.’s seizures, but also how
the Jergers refused to give their daughter the medication be-
cause of its potential side effects. The social worker expressed
concern that J.J. not taking the prescribed Keppra risked re-
curring seizures, long-term disability, and even death.
Allicyn Garrett was the DCS case worker assigned to learn
more about the situation. On September 21, the day after re-
ceiving the report of parental neglect, she visited the Jergers’
home to conduct a preliminary investigation. During that
visit, Lelah acknowledged her initial reservations with put-
ting J.J. on Keppra but also explained that only a few days
earlier, after receiving a second medical opinion, she and her
husband began giving their daughter the medication. But de-
spite hearing this account, and after speaking with her super-
visor Shannon Blaize, Garrett told the Jergers that they must
sign a form agreeing to take certain actions. The form was a
“Family Support/Community Services/Safety Plan,” which
required the Jergers, among other things, to agree to adminis-
ter the prescribed Keppra to J.J. and to take the child that same
day for a blood test to confirm the medication was in her sys-
tem.
The Jergers declined to sign the Safety Plan but did take
J.J. for the blood draw the next day, September 22. The results
confirmed that J.J. had started taking Keppra, and so DCS
dropped its investigation into Lelah and Jade. But what hap-
pened in between Garrett’s presentation of the Safety Plan
and the eventual blood test gave rise to this litigation and re-
mains the subject of serious debate.
From the Jergers’ perspective—the view we must credit at
this stage of the proceedings—Lelah and Jade submitted J.J.
4 No. 21-3011
to the blood draw only because of a threat leveled by Garrett.
From Lelah and Jade’s understanding, noncompliance with
the case workers’ demand would lead to J.J. becoming a
“Child in Need of Services” (or CHINS for short) and them
losing the right to make medical decisions on her behalf. This
threat, they thought, amounted to coercion and left them no
choice but to take J.J. for the blood draw.
In February 2018 the Jergers filed a complaint under 42
U.S.C. § 1983, alleging that Garrett and Blaize’s investigation
and demand for a blood test amounted to constitutional vio-
lations of both their rights as parents under the Fourteenth
Amendment’s Due Process Clause and J.J.’s own rights under
the Fourth Amendment.
Following discovery, each party moved for summary
judgment. In framing their respective positions, both sides
agreed that the Jergers’ claims—the Fourth Amendment
claim that Lelah and Jade brought on behalf of J.J. and their
own Fourteenth Amendment claim as J.J.’s parents—turned
on consent. If the Jergers agreed to submit J.J. to the blood
draw, the DCS case workers would prevail, but if the opposite
was true, and the decision was the product of coercion, then
the district court should enter judgment in Lelah and Jade’s
favor. Overlaying the resolution of the consent issue was
qualified immunity, to which Garrett and Blaize claimed they
were entitled because they reasonably believed the Jergers
agreed to the blood draw.
B
The district court entered summary judgment for the DCS
defendants on the basis of qualified immunity. On the district
court’s view of the facts, Garrett and Blaize did not violate any
No. 21-3011 5
constitutional rights in persuading the Jergers to take J.J. for
the blood draw. The reports from Riley Hospital supplied
Blaize and Garrett with reasonable suspicion of child neglect
and therefore the requisite “lawful authority [under the Indi-
ana law] to threaten filing a motion to compel and opening a
CHINS proceeding.” From there, the district court acknowl-
edged Garrett’s alleged statement to the Jergers that, unless
they promptly agreed to the blood draw, “J.J. would become
a Child in Need of Service[s].” But the court was quick to add
that Garrett also told the Jergers there would be a court hear-
ing at which they could present their own perspective. In the
end, the district court saw the DCS case workers’ degree of
influence as “close to the line” of coercion but not stepping
over it.
Regardless, even if the Jergers had demonstrated potential
constitutional violations, the district court determined that
Garrett and Blaize were entitled to qualified immunity. The
Jergers, the court explained, could not point to any case that
would have put the DCS case workers on notice that their con-
duct in procuring consent by threat was problematic when
evaluated in the totality of the difficult circumstances they
confronted. Instead, all the Jergers relied on were cases sup-
porting general propositions relating to the constitutionality
of searches in the child welfare context. Because that showing
did not suffice, the district court concluded that qualified im-
munity protected both defendants from having to defend
themselves at trial.
The Jergers now appeal.
6 No. 21-3011
II
To our eye, both the summary judgment briefs submitted
in the district court and now the competing arguments
pressed on appeal expose material disagreement on the issue
of consent—whether the Jergers chose of their own volition to
take J.J. for the blood draw or whether that decision was the
product of coercion. The disagreement played out in oral ar-
gument too, with both parties urging us to accept inferences
aligned with their perspective on that question.
As a court of review, however, our obligation is to take our
own independent look at the record and ask whether the facts,
when viewed in the light most favorable to the Jergers, permit
judgment for the DCS defendants. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). The same perspective on
the facts must guide our review of the award of qualified im-
munity at summary judgment. If the facts, as represented by
the Jergers, portray a clearly established constitutional viola-
tion, the district court’s decision cannot stand. See Taylor v.
City of Milford, 10 F.4th 800, 806, 812 (7th Cir. 2021) (reversing
qualified immunity when the plaintiff’s version of the facts, in
contrast to those alleged by the defendant, “ma[d]e out a dep-
rivation of a constitutional right”).
We have hard time aligning the district court’s conclusions
with these principles. A few illustrations prove our point.
Each of these examples comes from the summary judgment
record and we set them forth, as we must, as the Jergers pre-
sent them.
Example #1: Threat about CHINS Proceeding Outcome:
According to Lelah Jerger’s deposition testimony, during the
September 21 investigatory visit, when she asked what would
No. 21-3011 7
happen if her and her husband refused to sign the DCS Safety
Plan, Garrett responded by saying that DCS “would file a mo-
tion to compel and that J.J. would become a Child in Need of
Services.” In that same testimony, Lelah explained that she
understood this statement to mean DCS would be “able to
make medical decisions for J.J., instead of us, through the
court.”
Example #2: No Time to Hire a Lawyer: Both Lelah and
Jade testified that Garrett, after leaving their home the morn-
ing of September 21, called later in the day to say they had to
take J.J. for a blood draw that same night. By Lelah’s account,
the Jergers asked if they could speak with an attorney first,
but Garrett told them that there was no time to get legal coun-
sel: “You have to be at the hospital today.”
Example #3: Police Presence at the Hospital: Both Lelah
and Jade also testified that upon arriving at the hospital, they
were met by police officers. Lelah explained that she believed
the officers were there “to make sure [they] did” the test. For
his part, Jade testified that he felt the police officers were there
“for intimidation purposes.”
A reasonable jury, crediting the Jergers’ perspective on
these three matters, could find that the DCS case workers em-
ployed coercion to get Lelah and Jade to go through with the
blood draw on September 22. Foremost, Lelah could have
heard Garrett’s admonition that J.J. “would become a Child in
Need of Services” as a statement informing her and her hus-
band of a certain outcome—that the impending CHINS court
proceeding, with which they were unfamiliar, was sure to re-
sult in them losing their right to make medical decisions for
their daughter. Garrett said nothing else to convey a different
message; nor did the summary judgment record supply any
8 No. 21-3011
reason to believe the Jergers understood much at all about
CHINS proceedings or their rights. See Nicole K. ex rel. Linda
R. v. Stigdon, 990 F.3d 534, 536–37 (7th Cir. 2021) (describing
in detail the complexity of CHINS proceedings); see also Ash-
ley W. v. Holcomb, 34 F.4th 588, 590–91, 593 (7th Cir. 2022) (ac-
knowledging the wide “scope and complexity of CHINS pro-
ceedings”).
On that understanding, the Jergers could have concluded
that they had no real choice but to take J.J. for the blood draw.
Lelah and Jade’s testimony that they had no time to seek legal
advice to better understand their rights and DCS’s authority
only adds to that conclusion, as does their perspective on why
the police were present at the hospital upon their arrival with
J.J.
Taking these facts together, the Jergers paint a picture of
coercion, not “freely and voluntarily given” consent. United
States v. Ahmad, 21 F.4th 475, 478 (7th Cir. 2021) (quoting
United States v. Duran, 957 F.2d 499, 502 (7th Cir. 1992)). And
lacking consent, a search or seizure pursuant to a child wel-
fare investigation is reasonable under the Fourth Amendment
only if supported by a court order, probable cause, or exigent
circumstances. See Brokaw v. Mercer County, 235 F.3d 1000,
1010 (7th Cir. 2000); but see Sebesta v. Davis, 878 F.3d 226, 233
(7th Cir. 2017) (explaining that reasonable suspicion, and not
probable cause, is the standard for evaluating the constitu-
tionality of child welfare investigations impinging on the
right to familial integrity under the Fourteenth Amendment
Due Process Clause).
Remember, too, that the only issue on appeal is consent.
Indeed, at oral argument, the defendants conceded that they
offer no other justification for the search—neither a warrant,
No. 21-3011 9
nor probable cause, nor exigent circumstances (with the latter
concession surprising us). Thus, without the consent Blaize
and Garrett rely on, and no other proffered justification for the
search, the Jergers have done enough to create a jury question
on whether the DCS defendants violated their and J.J.’s con-
stitutional rights.
Our law, too, is clear that some threats used to obtain com-
pliance with a child welfare investigation violate clearly es-
tablished constitutional rights. See, e.g., Hernandez ex rel. Her-
nandez v. Foster, 657 F.3d 463, 482 (7th Cir. 2011) (holding that
“it is improper to obtain consent to a safety plan through du-
ress or other illegal means” including when a case worker
threatens “to take an action that she has no legal authority to
take”); Dupuy v. Samuels, 465 F.3d 757, 763 (7th Cir. 2006) (put-
ting case workers on notice that threatening to take an action
without having legal authority to take that action violates con-
stitutional rights); Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003)
(finding unconstitutional case workers’ threats to remove
children from their parents’ custody because the case workers
lacked lawful authority to do so). Of course, “specificity is im-
portant” in defining clearly established law, but there need
not be “a case presenting the exact same facts” for defendants
to be on notice that their behavior violates constitutional
rights. Taylor, 10 F.4th at 807.
The facts before us are so disputed as to limit what we can
do on appeal. All we can say for sure is that a jury—accepting
Lelah and Jade’s version of events—could conclude that Gar-
rett and Blaize acted in violation of the Jergers’ clearly estab-
lished rights. A reasonable case worker would have known
that threatening expedited CHINS proceedings with a prede-
termined outcome—one that terminated Lelah and Jade’s
10 No. 21-3011
rights to make medical decisions for J.J.—and leaving no time
for the Jergers to seek legal advice went too far in procuring
the blood test.
Of course, the defendants disagree—and strongly so—
with the Jergers’ portrayal of the facts. But that is precisely our
point. Summary judgment is not available in the face of this
factual tug-of-war. Nor is qualified immunity where the par-
ties dispute facts material to the consent question. Everything
depends on whose version of the facts to credit, whose ac-
count is most credible, and whose perspective aligns best with
the totality of the difficult circumstances all parties found
themselves in as the underlying events played out over those
couple of days in September 2017. See Payne v. Pauley, 337 F.3d
767, 770 (7th Cir. 2003); see also Taylor, 10 F.4th at 809, 810–11
(7th Cir. 2021). In the final analysis, “it is for a jury, and not
for us, to weigh all the evidence and choose between compet-
ing inferences.” Abdullahi v. City of Madison, 423 F.3d 763, 770
(7th Cir. 2005).
To be sure, “[t]his is not the final word on qualified im-
munity for this case.” Smith v. Finkley, 10 F.4th 725, 749 (7th
Cir. 2021). The mess of facts concerning the Jergers’ consent
only “precludes a ruling on qualified immunity at this point.”
Id. at 750 (quoting Strand v. Minchuk, 910 F.3d 909, 918–19 (7th
Cir. 2018)) (emphasis added). The jury’s ultimate resolution
of the facts may allow the district court to grant qualified im-
munity to the DCS case workers at trial. See id. (collecting
cases); see also Ferguson v. McDonough, 13 F.4th 574, 584 (7th
Cir. 2021) (explaining that though factual issues made quali-
fied immunity at the summary judgment stage improper, “a
jury may resolve disputed facts in [the defendant’s] favor, and
No. 21-3011 11
the district court could then determine he is entitled to quali-
fied immunity as a matter of law”).
Until then, however, the record before us leaves no choice
but to vacate the entry of summary judgment for the defend-
ants.
III
This appeal presents a clear example of the important and
delicate circumstances child welfare case workers face every
day. Indeed, the law recognizes the “compelling governmen-
tal interest in the protection of children particularly where the
children need to be protected from their own parents.”
Brokaw, 235 F.3d at 1019 (quoting Croft v. Westmoreland County
Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997)).
Acting on that interest often requires balancing weighty and
sometimes competing considerations—of children, parents,
and the state—and making decisions on less-than-perfect in-
formation without the benefit of much time to deliberate.
Beyond our conclusion about the disputed facts at the cen-
ter of the issue presented on appeal, we cannot avoid a closing
observation. Having spent substantial time with the summary
judgment record, it seems that much of the disagreement be-
tween the parties—their sharply different perspectives on
what led the Jergers to take J.J. for the blood draw—might
have been avoided by the DCS case workers taking steps to
better inform the Jergers about the legal proceedings the state
intended to commence and what rights the Jergers would
have before and during those proceedings. For example, Gar-
rett might have explained to Lelah and Jade the purpose of a
CHINS proceeding and the relief DCS intended to request.
She could have also described how, even in the case of an
12 No. 21-3011
expedited proceeding, the Jergers could seek legal advice and
take an attorney with them to the CHINS hearing. Finally, the
DCS defendants might have done well to clarify that all deci-
sions would be made by an impartial judge and that the
Jergers would not lose any parental rights until the judge
evaluated the evidence and arguments presented by both par-
ties. And so too could a step be taken, whether in writing or
through an audio recording, to memorialize the information
conveyed to the Jergers and their responses.
In no way are we suggesting that the case workers shoul-
dered any affirmative obligation to advise the Jergers. But tap-
ping the brake pedal long enough to convey objective and ac-
curate information to the Jergers about DCS’s intentions and
their rights in any impending CHINS proceedings may have
kept this difficult situation from ever getting to a courthouse.
Of course, DCS is much better positioned than a federal court
to discern whether and how best to implement that observa-
tion in practice.
With these parting observations, we VACATE the district
court’s entry of summary judgment for the defendants and
REMAND for trial.