United States Court of Appeals

For the Eighth Circuit

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No. 17-2702

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HalW.Stanley and MichelleStanley,Individually and as Parents and Legal Guardians

lllllllllllllllllllllPlaintiffs - Appellees

v.

Katherine Finnegan

lllllllllllllllllllllDefendant - Appellant

Garland County, et al.

lllllllllDefendants

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Appeal from United States District Court 

for the Western District of Arkansas - Hot Springs

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Submitted: April 10, 2018

Filed: August 10, 2018

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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

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LOKEN, Circuit Judge.

On January 12, 2015, child abuse investigators removed seven minor children

from the private home of their parents, Hal and Michelle Stanley, in Hot Springs,

Arkansas. After extensive state administrative and judicial child abuse proceedings,
the Stanleys filed this § 1983 action, individually and on behalf of six of their

children, against the Arkansas Department of Human Services (DHS); Garland

County; and numerous employees of the State and Garland County in their individual

and official capacities. The forty-seven page Complaint asserted a variety of claims

against numerous defendants, including multiple claims against Katherine Finnegan,

a civilian investigator for the Crimes AgainstChildren Division ofthe Arkansas State

Police, in her individual and official capacities. Three individual defendants,

including Finnegan, moved to dismiss plaintiffs’ individual capacity claims based on

qualified immunity. The district court granted these defendants qualified immunity

1

on all claims except one, the claim that Finnegan removed the Stanleys’ minor

children from their home without an adequate basis. Finnegan appeals. An

interlocutory order denying a motion to dismiss based on qualified immunity is

immediately appealable. Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009). Reviewing the

denial of qualified immunity de novo, we affirm. Bradford v. Huckabee, 394 F.3d

1012, 1015 (8th Cir. 2005) (standard of review).

I. Background.

Our review of the denial of a Rule 12(b)(6) motion to dismiss based on

qualified immunity islimited to the facts alleged in the Stanleys’ lengthy Complaint,

which we accept as true and view most favorably to the plaintiffs. Hager v. Ark.

Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013). 

TheComplaint alleges that Hal and Michelle are parents who chose to raise and

home-educate their children according to Christian beliefs and with limited access

outside of the home. In 2014, son Jonathan, then sixteen, developed a desire to attend

public school and “not contribute and be a part of his family such as it was.” His

The Honorable P.K. Holmes, III, Chief Judge of the United States District 1

Court for the Western District of Arkansas.

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parents disapproved. Jonathan rebelled, convincing an adult friend to report to the

DHS Division of Children and Family Services that the Stanley children were not

adequately clothed and one was being abused. In December 2014, a DHS

investigator visited the Stanley home and “unsubstantiated” the report. 

Undeterred, Jonathan then accused his parents of “poisoning, burning, striking,

and bruising the children,” neglecting the children’s education, and providing

inadequate food and healthcare. He alleged to adult friends that Hal caused the

children to become ill by forcing them to drink a solution called “Miracle Mineral

Solution” (MMS), a product Hal used in his greenhouse, and threatened to pipe MMS

through the house vents. Jonathan provided what he said was a sample of MMS to

an adult friend who turned it over to the Garland County Sheriff’s Department. 

Sergeant Mike Wright interviewed Christopher Stanley, an adult child, on January 9,

2015, who said his only knowledge that Hal had pumped MMS vapors through the

home’s school room came from Jonathan. Sergeant Wright consulted Dr. Teresa

Esquivel of the Arkansas Children’s Hospital who conducted an internet search and

reported that MMS was dangerous. Based on this information, Sergeant Wright

obtained a warrant to search the Stanley home for MMS and other dangerous

chemical substances. Wright’s warrant affidavit stated that “the Arkansas State

Police Crimes Against Children Division . . . intends to remove the children from the

home to have them examined by a medical doctor.”

At approximately 4:30 p.m. on January 12, some thirty government agents

including Finnegan conducted a five-hour warrantsearch ofthe Stanley home. Seven

minor children including Jonathan were present. Their parents were ordered to

remain on the front porch during the search and were not allowed to speak with the

children. Each child wasinterviewed by Finnegan. Jonathan repeated his accusations

of abuse and neglect and made numerous additional accusations. Fourteen-year-old

V.S. stated that Jonathan and his adult friends “convinced her how bad things were.”

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During the investigation, each child was examined in an ambulance by a doctor

who found each child healthy and showing no symptom of exposure to a toxic

substance. At the conclusion of the investigation, the DHS Division of Children and

Family Services representatives concluded the children were happy, healthy, and in

no danger and declined to take them into DHS custody. However, the Sheriff’s

Department and itsCrimesAgainstChildren Division investigator,Finnegan, credited

Jonathan’s accusations. Sergeant Wright removed the children “at the insistence of

Inv. Finnegan,” leaving DHS no choice but to accept custody. The children were sent

to two different cities, two hours away from home, and enrolled in public school. 

Contested proceedings ensued and continued for twenty-one months. Finneganmade

findings of abuse and neglect that were overturned on appeal.

The Complaint’s First Claim for Relief includes a § 1983 claimseeking to hold

Finnegan liable for compensatory and punitive damagesfor “removing, detaining, and

continuing to detain [six minor children] from the care, custody, and control of their

parents . . . without proper or just cause and/or authority” in violation of plaintiffs’

First, Fourth, and Fourteenth Amendment Rights. In briefing the broader motion to

dismiss to the district court, the parties did not separately address whether Finnegan

is entitled to qualified immunity on this claim. The district court denied Finnegan’s

motion to dismiss the claim on the basis of qualified immunity:

[I]t was clearly established at the time of the seizure that at least a

reasonable suspicion of child abuse was required before removing

children from the home. . . . Because the allegations indicate that

Finnegan ordered the Stanley children removed despite evidence and

DHS recommendations to the contrary, Finnegan has not established that

she had a reasonable suspicion of child abuse.

2

On the merits, to defeat a qualified immunity defense, plaintiff has the burden 2

of proving that defendant’s conduct violated a clearly established constitutional right. 

See Hess v. Ables, 714 F.3d 1048, 1051 (8th Cir. 2013). But at the Rule 12(b)(6)

stage, the issue is whether plaintiff “pleads factual content that allows the court to

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II. Discussion.

“Qualified immunity protects public officials from § 1983 damage actions if

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Bradford, 394 F.3d at 1015, citing

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a defendant

is entitled to dismissal on the basis of qualified immunity, we consider “(1) whether

the official’s conduct violated a constitutionalright; and (2) whether the violated right

was clearly established.” Manning v. Cotton, 862 F.3d 663, 668 (8th Cir. 2017). A

complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). To prevail at this stage of the proceedings,

Finnegan must be entitled to qualified immunity “on the face of the complaint.” 

Bradford, 394 F.3d at 1015. 

As the district court recognized, it is clearly established that the removal of

children from their parents’ custody violates a constitutional right if the removal

occurs without reasonable suspicion of child abuse. See Heartland Acad. Cmty.

Church v. Waddle, 427 F.3d 525, 534 (8th Cir. 2005); Abdouch v. Burger, 426 F.3d

982, 987 (8th Cir. 2005). “Parents have a liberty interest in the care, custody, and

management of their children,” but this interest is “limited by the state’s compelling

interest in protecting a child . . . .” Swipies v. Kofka, 348 F.3d 701, 703 (8th Cir.

2003). To balance these competing interests, we have adopted the rule that, “when

a state official pursuing a child abuse investigation takes an action which would

otherwise unconstitutionally disrupt familial integrity, he or she is entitled to

qualified immunity, if such action is properly founded upon a reasonable suspicion

of child abuse.” Id., citing Manzano v. S.D. Dep’t of Soc. Servs., 60 F.3d 505, 510-

draw the reasonable inference that the defendant isliable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. Thus, the district court’s statement that Finnegan “has not

established” the defense, though imprecise, was not error. 

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11 (8th Cir. 1995). Thus, the issue is whether the allegations in the Stanleys’

Complaint, taken as true and viewed in their favor, state a plausible claim that

Finnegan lacked reasonable suspicion of child abuse when she participated in

removing the Stanleys’ minor children from the home and custody of their parents.

Finnegan first argues that the Stanleys’ claim is not plausible because, under

the Arkansas Child Maltreatment Act, only a lawenforcement officer, a juvenile court

judge, or a designated DHS employee has authority to take a child into protective

custody. At the Rule 12(b)(6) stage, this argument is without merit. The Complaint

alleges that Finnegan, acting under color of state law, entered the home to execute a

search warrant, separated the Stanleys from their children, questioned the children,

and had them taken to the ambulance for a doctor’s examination. At the end of this

process, “all seven (7) of the Stanley children were removed by Sgt. Mike Wright at

the insistence of Inv. Finnegan.” These facts plausibly allege that Finnegan may be

liable if the children were removed without reasonable suspicion of child abuse. 

Finnegan next argues that a child maltreatment investigator cannot be liable for

“making recommendations based on investigative findings,” citing Manzano, 60 F.3d

at 510-11. This contention, too, is without merit. In Manzano, a mother informed a

county sheriff’s investigator her child had made statements that the child’s father

sexually abused her. The investigator advised the mother to get a temporary

protection order to keep the father away from the child. 60 F.3d at 507. In reversing

the denial ofsummary judgment based on qualified immunity, we explained: “we do

not think that [the investigator] had to have a reasonable suspicion of child abuse

before advising [the mother] of her option to file a petition for a temporary protection

order.” Id. at 512. This decision does not come close to supporting the assertion that

an investigator cannot be liable for causing a child’s forcible removal.

The issue in this case is properly framed by cases establishing the Fourth

Amendment standard that applies to police officers and investigators in making

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arrests and other seizures. The standard is well established in this circuit. Cause or

suspicion warranting a seizure must exist at the moment of the seizure. Ripson v.

Alles, 21 F.3d 805, 808 (8th Cir. 1994). “An officer contemplating an arrest is not

free to disregard plainly exculpatory evidence, even if substantial inculpatory

evidence (standing by itself) suggests that probable cause exists.” Kuehl v. Burtis,

173 F.3d 646, 650 (8th Cir. 1999); see Ross v. City of Jackson, No. 17-1390, 2018

WL 3581468, at *4 (8th Cir. July 26, 2018); Womack v. City of Bellefontaine

Neighbors, 193 F.3d 1028, 1031 (8th Cir. 1999).

Here, Finnegan, Sergeant Wright, and the other investigators went to the

Stanleys’ home based on bizarre accusations by teenager Jonathan that, if true, gave

reason to believe Jonathan’s minorsiblings were in danger of continuing child abuse. 

But a month earlier, another investigator had “unsubstantiated” Jonathan’s earlier

allegations, and proper research would have shown, as an email from a DHS

supervisor attached to the Complaint reported the day after the warrant search, that

“MMS is legal and promoted as a cure for the simple cold to acne to the flu and to

other more serious diseases.” Thus, although the investigators went to the home with

the intent to remove the children, this was a child abuse situation that cried out for

investigation and confirmation. After five hours, the five youngest children had been

interviewed; they denied abuse in the home and said they loved their parents; a doctor

had medically examined each child and concluded they were healthy and showed no

signs of abuse or symptoms of poisoning; and the DHS investigators had concluded

that the home wassafe and the children were happy, healthy, in no danger, and should

not be taken into custody. Yet, Sergeant Wright, at the “insistence” of Finnegan,

ordered the children removed, compelling DHS to take custody and beginning a

twenty-one month ordeal for the family.

As the district court concluded, it was clearly established at the time Finnegan

acted that reasonable suspicion was required to remove the Stanley children from

their home and their parents’ custody. Like probable cause to arrest, reasonable

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suspicion to seize children must exist at the moment of the seizure, and an official is

not free to disregard plainly exculpatory evidence when it undermines substantial

inculpatory evidence that reasonable suspicion exists. The Complaint raises a fair

inference that Finnegan was aware ofthe substantial exculpatory evidence developed

during the five-hour investigation before Finnegan and Sergeant Wright made the

decision to remove. The Complaint also raises the inference that the decision to

remove was motivated by disagreement with the Stanleys’ decision to home-school

their children in an isolated environment. Though perhaps unlikely, thistheory is not

implausible. “[A] well-pleaded complaint may proceed even if it strikes a savvy

judge that actual proof of those facts isimprobable, and that a recovery is very remote

and unlikely.” Twombly, 550 U.S. at 556. The factually supported claim against

Finnegan at issue on appeal lies well within that liberal pleading standard and

therefore survives a Rule 12(b)(6) motion to dismiss based on qualified immunity. 

Finnegan argues that our decision in Myers v. Morris, 810 F.2d 1437 (8th Cir.

1987), is contrary, controlling authority. We disagree. Myers is distinguishable on

multiple grounds -- the grant of qualified immunity was made on a summary

judgment record; at least twelve children -- many unrelated to one another -- made

allegations ofsexual abuse against parents and other adultsthat therapists, guardians,

prosecutors, and investigators found credible; and the governing legal standard for

removal -- reasonable suspicion of child abuse -- was not clearly established at that

time. Id. at 1441-43, 1454, 1460, 1462-63. Here, whether there was reasonable

suspicion of child abuse warranting removal must be determined by analyzing the

totality of the circumstances at the time of the removal. Kuehl, 173 F.3d at 650.

We affirm that part of the district court’s Order dated June 20, 2017, denying

the motion to dismiss the claimthat Finnegan removed plaintiffs’minor children from

their home without an adequate basis, and the Order dated July 5, 2017, denying

Finnegan’s motion for reconsideration. 

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