Janette Dunkle v. Jennifer Dale

FILED
NOT FOR PUBLICATION
JUL 06 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANETTE DUNKLE, No. 17-35525
Plaintiff-Appellant, D.C. No. 3:14-cv-00005-RRB
v.
MEMORANDUM*
JENNIFER DALE, in her individual
capacity; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted June 12, 2018**
Anchorage Old Federal Building, Alaska
Before: THOMAS, Chief Judge, and CALLAHAN and BEA, Circuit Judges.
The Alaska Office of Children’s Services took custody of A.F. within days
of her birth without first obtaining a warrant because her mother, Janette Dunkle,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
had a long history of substance abuse, and opiates were found in A.F. when A.F.
was born. Dunkle filed this action alleging that her constitutional rights were
violated when A.F. was removed from her custody. After a remand from the Ninth
Circuit, the district court granted summary judgment in favor of the defendants,
certain Alaska social workers, and an Alaska State Trooper all of whom were
involved in the removal of A.F from Dunkle’s custody. Dunkle appeals arguing
that the district court erred (1) in granting the defendants qualified immunity
pursuant to our opinion in Kirkpatrick v. City of Washoe, 843 F.3d 784 (9th Cir.
2016) (en banc); and (2) in ruling that the Jennifer Dale, a social worker, was
entitled to summary judgment on Dunkle’s claim that Dale had given false
evidence in the state proceedings that led to the termination of Dunkle’s parental
rights to A.F.1
1. In 2016, in Kirkpatrick, 843 F.3d 784, we held that it violated a mother’s
constitutional rights to take custody of a newborn baby in a hospital because the
baby tested positive for illegal drugs without first obtaining a warrant. However,
we further held that at that time, “[n]o matter how carefully a social worker had
read our case law, she could not have known that seizing [the baby] would violate
1
Because the parties are familiar with the factual and procedural
history of the case, we need not recount it here.
2
federal constitutional law,” and thus, “[w]ithout that fair notice, the social workers
in this case are entitled to qualified immunity.” Id. at 793.
In our case, the defendants took custody of A.F. in 2012, four years before
our decision in Kirkpatrick. We are bound by our opinion in Kirkpatrick that
social workers would not have known prior to our decision that taking a newborn
baby who tested positive for illegal drugs without a judicial warrant violated the
mother’s constitutional rights. Accordingly, we affirm the district court’s grant of
qualified immunity in favor of the defendants. See Kennedy v. City of Ridgefield,
439 F.3d 1055, 1065 (9th Cir. 2006) (“Our task is to determine whether the
preexisting law provided the defendants with ‘fair warning’ that their conduct was
unlawful.”).
2. The district court recognized that a prima facie showing that Dale made
deliberate falsehoods to the Alaska court would deprive her of the shield of
qualified immunity. Chism v. Washington State, 661 F.3d 380, 393 (9th Cir.
2011). However, Dunkle had the burden of making a substantial showing that
Dale deliberately lied or recklessly disregarded the truth, and that, but for her
dishonesty, the state courts would not have terminated Dunkle’s parental rights.
Id. at 386.
3
The evidence in the record rebuts Dunkle’s assertion that Dale deliberately
lied. The most that Dunkle has shown is that Dale’s statements may have reflected
a misunderstanding or have been based on an incomplete record. Furthermore, the
decisions by the Alaska courts show that Dunkle’s parental rights were terminated
based on Dunkle’s history of drug use and failure to seek adequate treatment, her
history of entering into destructive and abusive relationships, and her failure to
visit A.F. after A.F. was approximately a month old. Findings, Conclusions, and
Order Terminating Parental Rights and Responsibilities, Disposition, and
Permanency Findings, In re A.F., No. 3PA-12-3CN (Alaska Super. Ct., Oct. 22,
2012). Dunkle’s relationship history, her drug use, and her failure to visit A.F.
soon after A.F. was born are undisputed facts. Thus, Dale’s representations to the
state courts, even if misleading, were not material to the state courts’ decisions.
We affirm the district court’s dismissal of Dunkle’s claims against Dale.
AFFIRMED.2
2
Appellees’ motion to supplement the record for judicial notice and to
file the document is granted. The proffered transcript is ordered filed under seal.
Appellant’s motion to strike appellees’ supplemental except of record is denied.
4