PUBLISH
UNITED STATES COURT OF APPEALS Filed 8/27/96 TENTH CIRCUIT

JERI GARRAMONE, individually and Jeri Garramone as guardian and next friend of JUDY GARRAMONE, a minor, Plaintiff - Appellee,

v. CARLA ROMO, GEORGIA SANCHEZ, CHARLENE WATSON, PETE ADOLPH, CINDY CLARK, RICHARD GRISCOMB, ANGELA ADAMS, RICHARD HEIM,

Defendants - Appellants, and MICHAEL J. CAPLAN, JUDY JONES, Defendants. No. 95-2092

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D. Ct. No. CIV 94-176)
Paula I. Forney, Legal Bureau/RMD, State of New Mex ico, Santa Fe, New Mexico, appearing for the Appellants. Jonathan E. Zorn (Chris Lackmann with him on the br iefs), Albuquerque, New- 2 -

Mexico, appearing for the Appellees.

Before SEYMOUR, Chief Judge, TACHA and EBEL, Circui t Judges.

TACHA, Circuit Judge.

Jeri Garramone temporarily lost custody of her daug hter as a result of a New Mexico civil neglect proceeding. After regaini ng custody, Garramone brought this suit under 42 U.S.C. §§ 1983 and 1985, alleging that employees of the New Mexico Human Services Department (“HSD”) an d an attorney retained by HSD wrongfully prosecuted her for neglect and ob tained custody of her daughter in violation of her federal constitutional and statutory rights. The district court either dismissed or granted summary judgment in favor of the defendants on all claims except for the claims for prospective relief against all the HSD defendants in their official capacities and two of the claims against HSD defendants Carla Romo and Georgia Sanchez in their individual capacities. We exercise jurisdiction under 28 U.S.C. § 1291 to rev erse in part and affirm in part.

Background Jeri Garramone resided in Grants, New Mexico, with her two children, Judy (age 14) and David (age 10), and her husband and th e children’s stepfather, Anthony Garramone. Jeri Garramone was a reservist in the United States Army,- 3 -

and in November 1990 the Army called her reserve un it to active duty and sent her to Saudi Arabia to serve in Operation Desert Sh ield-Desert Storm. When Garramone was sent overseas, she entrusted her chil dren to the care of their stepfather, Anthony. On February 18, 1991, while Garramone was still ove rseas, Anthony sexually abused Judy. Judy and her brother David i mmediately reported the incident to the Grants Police Department, and the p olice arrested Anthony and referred the case to HSD. HSD assigned the case to defendant Carmela Romo. Defendant Georgia Sanchez, Romo’s immediate supervi sor, performed administrative and investigative functions in the c ase. On February 20, 1991, HSD initiated civil abuse and neglect proceedings a nd petitioned for temporary physical and legal custody of Judy and David. The state court granted the petition by ex parte order the following day and scheduled ahearing within ten days to address continued custody. The two children were t emporarily placed in a foster home. Romo contacted Garramone on February 21 and notifie d her that Anthony had sexually abused Judy. On February 24, Garramon e arrived in Grants on a thirty-day emergency leave from military duty. She soon discovered that Romo considered her, as well as her husband, to be at fa ult in failing to provide Judy with proper parental care. Garramone told Romo that she had arranged for her- 4 -

parents in Indiana to take custody of the children until she permanently returned from active duty. HSD agreed to this arrangement o n the condition that Garramone sign a stipulated judgment finding her gu ilty of neglect, which she signed prior to the ten-day hearing. During her thirty-day emergency leave, Garramone attended two state court hearings: a combined custody and neglect hearing on February 28, 1991, and a disposition hearing on March 8, 1991. She was not represented by counsel at either hearing, and alleges that neither the state court nor any HSD representative advised her of her right to counsel or offered to appoint counsel. At the conclusion of the disposition hearing, HSD maintai ned both physical and legal custody over Judy, but allowed both children to res ide with Garramone’s parents. Garramone returned to active military duty until Ju ne 4, 1991. The Army reassigned her to Fort Carson, Colorado, and thus s he never returned to the Persian Gulf, moving instead to Colorado where, at some point, she reunited with Anthony. The New Mexico state court conducted furt her hearings on the neglect case and granted Garramone physical custody of Judyon September 10, 1991. Almost two years later, in May of 1993, HSD dismiss ed the case and returned legal custody of Judy to Garramone. In sum, HSD de prived Garramone of physical custody of her daughter for about six months and legal custody for about twenty-six months.- 5 -

On February 18, 1994, Garramone and her daughter fi led suit under 42 U.S.C §§ 1983 and 1985 alleging that Michael Caplan , an attorney hired by HSD as an independent contractor, and numerous HSD empl oyees violated their rights under the First, Fourth, and Fourteenth Amendments to the Constitution, the Soldiers’ and Sailors’ Civil Relief Act of 1940 (“S SCRA”), 50 U.S.C. §§ 520(3) & 521, and the Adoption Assistance and Child Welfar e Act of 1980, 42 U.S.C. §§ 620-628 & 670-679a. Caplan filed a motion to dismi ss for lack of subject matter jurisdiction, and the HSD defendants filed a motion to dismiss that the court later converted into a motion for summary judgment. The district court dismissed all claims against Cap lan on grounds of absolute immunity. The court granted summary judgm ent on all claims as to all HSD defendants in their individual capacities on th e basis of qualified immunity, with the exception of the claims against Romo and S anchez for alleged violations of Garramone’s right to procedural due process and rights under the SSCRA. The court also granted summary judgment in favor of all HSD defendants in their official capacities on all claims for monetary reli ef on the basis of Eleventh Amendment immunity, but denied summary judgment to those defendants on all claims for prospective relief. Defendants now appe al, arguing that the district court erred in (1) finding that defendants Romo and Sanchez were not entitled to qualified immunity with regard to the procedural du e process and SSCRA claims,- 6 -

(2) failing to dismiss the claims for prospective r elief against the HSD defendants in their official capacities, and (3) failing to ap ply res judicata or collateral estoppel to the claims.

Discussion We begin by evaluating Romo’s and Sanchez’s conte ntion that they are entitled to qualified immunity on Garramone’s proce dural due process and SSCRA claims. We analyze assertions of qualified i mmunity under a two-part framework: first we determine whether the plaintiff has asserted a violation of a constitutional or statutory right, and then we deci de whether that right was clearly established such that a reasonable person in the de fendant’s position would have known that her conduct violated the right. Shinaul t v. Cleveland County Bd. of County Comm’rs , 82 F.3d 367, 370 (10th Cir. 1996); see Siegert v. Gilley , 500 U.S. 226, 231 (1991). Garramone asserts that Romo and Sanchez violated her right of procedural due process by failing to infor m her that she had a right to counsel. The Constitution guarantees a right to co unsel only in certain situations. In both criminal and civil cases, for example, liti gants have a presumed right to counsel when they could lose their physical libertyif they lose the litigation. See Scott v. Illinois , 440 U.S. 367, 373-74 (1979) (criminal defendant h as Sixth Amendment and Fourteenth Amendment right to appoint ed counsel where she- 7 -

faces actual imprisonment if convicted); Vitek v. J ones , 445 U.S. 480, 496-97 (1980) (inmate subject to involuntary administrativ e transfer to a mental hospital has a Fourteenth Amendment right to representation by either an attorney or qualified independent layperson). In proceedings where litigants are not directly thr eatened by a loss of physical liberty, a presumption arises against thei r right to appointed counsel. Lassiter v. Department of Social Servs. , 452 U.S. 18, 26-27 (1981). Nonetheless, when another liberty interest is threatened, courts determine on a case-by-case basis whether the requirements of due process overc ome this presumption. See id. at 27. The neglect proceeding in this case interf ered with Garramone’s constitutionally protected interest in familial ass ociation. Stanley v. Illinois , 405 U.S. 645, 650-52 (1972). In determining whether th e requirements of due process warrant the right to counsel, we balance the “funda mental fairness” factors outlined in Mathews v. Eldridge , 424 U.S. 319, 335 (1976): First, the private interest that will be affected b y the official action; second, the risk of an erroneous deprivation of suc h interest through the procedure used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the f iscal and administrative burdens that the additional or subst itute procedural requirement would entail.
See Lassiter , 452 U.S. at 26-33. Thus, we analyze the applicat ion of these factors to this case to determine whether they overcome the presumption against the right- 8 -

to counsel. The private interest affected in this case, a paren t’s maintenance of custody of her child, “undeniably warrants deference and, a bsent a powerful countervailing interest, protection.” Stanley , 405 U.S. at 651; accordLassiter , 452 U.S. at 27. Garramone’s interest is further he ightened by the fact that the neglect proceedings accused her of conduct that cou ld have exposed her to future criminal proceedings. Lassiter , 452 U.S. at 27 n.3, 31. Compare N.M. Stat. Ann. § 30-6-1(A)(2) withN.M. Stat. Ann. § 32A-4-2(C)(2) (containing virtua lly identical definitions of “neglect”). The risk that Garramone would be erroneously depriv ed of custody of her children in the absence of counsel was high. Garra mone was charged with neglect, presumably on the theory that she had lefther children with her spouse and thereby enabled the stepfather to sexually abus e Judy. There is no evidence, however, that Garramone knew that Anthony presenteda threat to her children. As soon as she heard of the abuse, Garramone return ed from her post in Saudi Arabia and arranged to have her parents take care o f her children. The defendants, however, allegedly threatened to place both children in foster care unless Garramone signed a judgment stipulating thatshe neglected her children. Had Garramone received legal counsel at the hearing s, she may well have defended herself rather than consent to a judgment of neglect that resulted in loss- 9 -

of physical and legal custody of her daughter. Finally, the government’s interest in the neglect p roceeding would have been better served by ensuring that Garramone was r epresented by counsel. The government shares Garramone’s interest in accurate and just findings affecting the custody of her children. Lassiter , 452 U.S. at 27-28. That interest is served by providing the parent with adequate representatio n: If, as our adversary system presupposes, accurate and just results are most likely to be obtained through equal contests o f opposed interests, the State’s interest in the child’s welf are may perhaps best be served by a hearing in which both the parent and the State acting for the child are represented by counsel, without w hom the contest of interests may become unwholesomely unequal. Id. at 28. While the government may have incurred som e fiscal burdens had Garramone received appointed counsel, those burdens are not particularly high.
See id. Thus, after balancing all the factors, we conclud e that, under the constitutional guarantee of procedural due process, Garramone had a right to counsel at the February 28 and March 8 state court hearings. Even though Garramone had a right to counsel, we mu st answer the additional question whether Romo and Sanchez had anobligation to inform her of that right. See Martinez v. Mafchir , 35 F.3d 1486, 1493 (10th Cir. 1994). This determination turns on whether state law required t hem to inform Garramone of her right. See id. at 1492-93. New Mexico Children’s Court Rule 10-30 2 provides:- 10 -

Within twenty-four (24) hours . . . from the time t he child is taken into custody, the person taking the child into phys ical custodyshall give notice to the parents, guardian or custodian o f the child that: . . . (4) if they are the respondents, they have a right to an attorney, and if they cannot afford an attorney, one will be appoint ed to represent them free of charge. (Emphasis added). Because the HSD defendants took the children into custody, they had the responsibility to inform Garramone, as parent and respondent, of her right to counsel. See State v. Perlman , 635 P.2d 588, 590 (N.M. Ct. App. 1981). Thus, we agree with the district court that Garramo ne has asserted a violation of a constitutional right by defendants Romo and Sanchez

. We must now determine whether Garramone’s right to counsel was clearly established. In order to be clearly established, “ [t]he contours of the right must be sufficiently clear that a reasonable official wo uld understand that what he is doing violates that right.” Anderson v. Creighton , 483 U.S. 635, 640 (1987). Although the action in question does not have to have been previously held unlawful, “in the light of pre-existing law the unl awfulness must be apparent.” Id. This ordinarily means that there must be a Suprem e Court or Tenth Circuit opinion on point, or the clearly established weightof authority from other courts must have found the law to be as the plaintiff main tains. Medina v. City and County of Denver , 960 F.2d 1493, 1498 (10th Cir. 1992). As noted above, in proceedings where litigants are not directly threatened with a loss of physical liberty, the presumption is against a due process right to- 11 -

counsel. That presumption is only overcome in the rare case, such as this one, where the balance of various factors of fundamental fairness weighs heavily in favor of the litigant. The LassiterCourt explained the circumstances that might give rise to such a right in these terms: If, in a given case, the parent’s interests were attheir strongest, the State’s interest were at their weakest, and the ris ks of error were at their peak, it could not be said that the Eldridge factors did not overcome the presumption against the right to appoi nted counsel, and that due process did not therefore require the appo intment of counsel. 452 U.S. at 31. This is hardly the language of a c learly established right. Furthermore, because the parent’s interest in retai ning custody must always be balanced against the state’s interest in the health and welfare of the children, it is difficult, if not impossible, for state officials t o know that they have violated clearly established law. Frazier v. Bailey , 957 F.2d 920, 931 (1st Cir. 1992). We hold that Garramone’s right to counsel under the Du e Process Clause was not clearly established, and thus Romo and Sanchez are entitled to qualified immunity on that claim. Garramone also asserts that Romo and Sanchez violat ed her rights under the SSCRA. The purpose of the SSCRA is to assist s oldiers whose ability to conduct their defense in civil cases is materially affected by reason of military service. It provides two protections that are rele vant in this case. First, the SSCRA allows the court to appoint an attorney to th e soldier:- 12 -

In any action or proceeding in which a person in mi litary service is a party if such party does not personally appear ther ein or is not represented by an authorized attorney, the court may appoint an attorney to represent him . . . . 50 U.S.C. § 520(3). Second, the SSCRA allows the c ourt to grant a temporary stay of proceedings: At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as p laintiff or defendant, during the period of such service or within sixty d ays thereafter may, in the discretion of the court in which it is pendi ng, on its own motion, and shall, on application to it by such per son or some person on his behalf, be stayed as provided in this Act . . . , unless, in the opinion of the court, the ability of plaintiff to p rosecute the action or the defendant to conduct his defense is not materia lly affected by reason of his military service. 50 U.S.C. § 521. Garramone maintains that these pr ovisions afforded her a right to appointed counsel and a temporary stay of procee dings, and asserts that Romo and Sanchez violated those rights by failing to inf orm her of her right to counsel and neglecting to arrange a stay of proceedings. The defendants argue that Garramone must first prov e that clearly established authority holds that the SSCRA provides a private cause of action. The proper inquiry, however, is whether the SSCRA c reates clearly established rights that were violatedby the defendants--section 1983 may provide the ca use of actionfor the alleged violation of those rights. We not e here that the defendants do not dispute the district court’s conc lusion that the SSCRA contains rights enforceable under § 1983, but instead argue that Garramone has failed to- 13 -

assert a violation of those rights. The provisions of the SSCRA neither mandate that a particular right be afforded to Garramone nor specify that Romo and San chez were obligated to preserve whatever right existed. Section 520(3) al lows the court, in its discretion, to appoint an attorney; its failure to do so does n ot amount to a violation of Garramone’s rights. Moreover, there is no statutory basis for concluding that Romo and Sanchez should have either informed Garram one of this provision of the SSCRA or requested that an attorney be appointe d for her. Section 521 allows a court to stay proceedings on its own motion, and requires a court to stay proceedings on motion of the party, if the party’s defense would be materially affected by her military service. Because there is no evidence in the record that Garramone requested a stay, the court was under no obligation to stay the proceedings. Further, like § 520(3), nothing in § 521 imposes any obligation on Romo and Sanchez. We conclude that Garramone has f ailed to assert a violation of her rights under the SSCRA by Romo and Sanchez, and therefore hold that Romo and Sanchez are entitled to qualified immunity on this claim as well. The defendants’ second contention on appeal is thatthe district court erred in denying their motion to dismiss the claims for p rospective relief on the basis of Eleventh Amendment immunity. A district court’s de nial of Eleventh Amendment immunity, like its denial of qualified immunity, is immediately appealable as a- 14 -

final judgment under the collateral order doctrine. Williams v. Kentucky , 24 F.3d 1526, 1543 (6th Cir.), cert. denied , 115 S. Ct. 358 (1994); see Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 113 S. Ct. 684, 689 (1993). While the Eleventh Amendment bars actions for monet ary damages to be paid by the state, Edelman v. Jordan , 415 U.S. 651, 677 (1974), it does not bar claims against state officers for prospective relief, Ex p arte Young , 209 U.S. 123, 159-60 (1908). Thus, the district court correctly denied defendants’ motion to dismiss those claims. Defendants’ final contention is that the district c ourt erred in holding that res judicata or collateral estoppel do not apply to the claims against them in their official capacities. This decision of the districtcourt, however, is not an appealable final order. While we may exercise pend entappellate jurisdiction over this issue, we may do so only if the district court ’s decision on the issue was “inextricably intertwined with that court’s decisio n to deny the individual defendants’ qualified immunity motions, or . . . re view of the former decision was necessary to ensure meaningful review of the latter .” Swint v. Chambers County
Comm’n , 115 S. Ct. 1203, 1212 (1995). The district court ’s determination that res judicata and collateral estoppel do not preclud e this action has no relationship to its decision to deny immunity to the defendants, and thus we cannot review this claim on appeal.- 15 -

We therefore REVERSE the district court’s ruling onqualified immunity for defendants Romo and Sanchez, AFFIRM the court’s ruling on Eleventh Amendment immunity, and REMAND for proceedings cons istent with this opinion.