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 Mexico, Santa Fe, New

Mexico, appearing for the Appellants.

Jonathan E. Zorn (Chris Lackmann with him on the briefs), Albuquerque, New
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Mexico, appearing for the Appellees.

Before SEYMOUR, Chief Judge, TACHA and EBEL, Circuit Judges.

TACHA, Circuit Judge.

Jeri Garramone temporarily lost custody of her daughter as a result of a

New Mexico civil neglect proceeding. After regaining custody, Garramone

brought this suit under 42 U.S.C. §§ 1983 and 1985, alleging that employees of

the New Mexico Human Services Department (“HSD”) and an attorney retained

by HSD wrongfully prosecuted her for neglect and obtained 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 reverse 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 the children’s stepfather,

Anthony Garramone. Jeri Garramone was a reservist in the United States Army,
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and in November 1990 the Army called her reserve unit to active duty and sent

her to Saudi Arabia to serve in Operation Desert Shield-Desert Storm. When

Garramone was sent overseas, she entrusted her children to the care of their

stepfather, Anthony.

On February 18, 1991, while Garramone was still overseas, Anthony

sexually abused Judy. Judy and her brother David immediately reported the

incident to the Grants Police Department, and the police arrested Anthony and

referred the case to HSD. HSD assigned the case to defendant Carmela Romo. 

Defendant Georgia Sanchez, Romo’s immediate supervisor, performed

administrative and investigative functions in the case. On February 20, 1991,

HSD initiated civil abuse and neglect proceedings and 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 a hearing within ten days to

address continued custody. The two children were temporarily placed in a foster

home. 

Romo contacted Garramone on February 21 and notified her that Anthony

had sexually abused Judy. On February 24, Garramone 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 fault in failing to provide Judy

with proper parental care. Garramone told Romo that she had arranged for her
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parents in Indiana to take custody of the children until she permanently returned

from active duty. HSD agreed to this arrangement on the condition that

Garramone sign a stipulated judgment finding her guilty 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 maintained both physical and legal

custody over Judy, but allowed both children to reside with Garramone’s parents.

Garramone returned to active military duty until June 4, 1991. The Army

reassigned her to Fort Carson, Colorado, and thus she never returned to the

Persian Gulf, moving instead to Colorado where, at some point, she reunited with

Anthony. The New Mexico state court conducted further hearings on the neglect

case and granted Garramone physical custody of Judy on September 10, 1991. 

Almost two years later, in May of 1993, HSD dismissed the case and returned

legal custody of Judy to Garramone. In sum, HSD deprived Garramone of

physical custody of her daughter for about six months and legal custody for about

twenty-six months.
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On February 18, 1994, Garramone and her daughter filed 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 employees violated their rights

under the First, Fourth, and Fourteenth Amendments to the Constitution, the

Soldiers’ and Sailors’ Civil Relief Act of 1940 (“SSCRA”), 50 U.S.C. §§ 520(3)

& 521, and the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§

620-628 & 670-679a. Caplan filed a motion to dismiss 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 Caplan on grounds of

absolute immunity. The court granted summary judgment on all claims as to all

HSD defendants in their individual capacities on the basis of qualified immunity,

with the exception of the claims against Romo and Sanchez 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 relief on the basis of Eleventh

Amendment immunity, but denied summary judgment to those defendants on all

claims for prospective relief. Defendants now appeal, 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 due process and SSCRA claims,
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(2) failing to dismiss the claims for prospective relief against the HSD defendants

in their official capacities, and (3) failing to apply res judicata or collateral

estoppel to the claims. 

Discussion

 We begin by evaluating Romo’s and Sanchez’s contention that they are

entitled to qualified immunity on Garramone’s procedural due process and

SSCRA claims. We analyze assertions of qualified immunity under a two-part

framework: first we determine whether the plaintiff has asserted a violation of a

constitutional or statutory right, and then we decide whether that right was clearly

established such that a reasonable person in the defendant’s position would have

known that her conduct violated the right. Shinault 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 inform her that she had a right to

counsel. The Constitution guarantees a right to counsel only in certain situations. 

In both criminal and civil cases, for example, litigants have a presumed right to

counsel when they could lose their physical liberty if they lose the litigation. See

Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (criminal defendant has Sixth

Amendment and Fourteenth Amendment right to appointed counsel where she
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faces actual imprisonment if convicted); Vitek v. Jones, 445 U.S. 480, 496-97

(1980) (inmate subject to involuntary administrative 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 threatened by a loss of

physical liberty, a presumption arises against their 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 overcome this presumption. See

id. at 27. The neglect proceeding in this case interfered with Garramone’s

constitutionally protected interest in familial association. Stanley v. Illinois, 405

U.S. 645, 650-52 (1972). In determining whether the requirements of due process

warrant the right to counsel, we balance the “fundamental fairness” factors

outlined in Mathews v. Eldridge, 424 U.S. 319, 335 (1976):

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such 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 fiscal and

administrative burdens that the additional or substitute procedural

requirement would entail.

See Lassiter, 452 U.S. at 26-33. Thus, we analyze the application of these factors

to this case to determine whether they overcome the presumption against the right
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to counsel.

The private interest affected in this case, a parent’s maintenance of custody

of her child, “undeniably warrants deference and, absent a powerful

countervailing interest, protection.” Stanley, 405 U.S. at 651; accord Lassiter,

452 U.S. at 27. Garramone’s interest is further heightened by the fact that the

neglect proceedings accused her of conduct that could 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) with N.M. Stat. Ann. § 32A-4-2(C)(2) (containing virtually

identical definitions of “neglect”). 

The risk that Garramone would be erroneously deprived of custody of her

children in the absence of counsel was high. Garramone was charged with

neglect, presumably on the theory that she had left her children with her spouse

and thereby enabled the stepfather to sexually abuse Judy. There is no evidence,

however, that Garramone knew that Anthony presented a threat to her children. 

As soon as she heard of the abuse, Garramone returned from her post in Saudi

Arabia and arranged to have her parents take care of her children. The

defendants, however, allegedly threatened to place both children in foster care

unless Garramone signed a judgment stipulating that she neglected her children. 

Had Garramone received legal counsel at the hearings, she may well have

defended herself rather than consent to a judgment of neglect that resulted in loss
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of physical and legal custody of her daughter.

Finally, the government’s interest in the neglect proceeding would have

been better served by ensuring that Garramone was represented 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 representation:

If, as our adversary system presupposes, accurate and just results are

most likely to be obtained through equal contests of opposed

interests, the State’s interest in the child’s welfare 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 whom the contest of

interests may become unwholesomely unequal. 

Id. at 28. While the government may have incurred some fiscal burdens had

Garramone received appointed counsel, those burdens are not particularly high. 

See id. Thus, after balancing all the factors, we conclude 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 must answer the

additional question whether Romo and Sanchez had an obligation 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 them to inform Garramone of

her right. See id. at 1492-93. New Mexico Children’s Court Rule 10-302

provides: 
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Within twenty-four (24) hours . . . from the time the child is taken

into custody, the person taking the child into physical custody shall

give notice to the parents, guardian or custodian of 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 appointed 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 Garramone 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 would 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 unlawfulness must be apparent.” 

Id. This ordinarily means that there must be a Supreme Court or Tenth Circuit

opinion on point, or the clearly established weight of authority from other courts

must have found the law to be as the plaintiff maintains. 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
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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 Lassiter Court explained the circumstances that might

give rise to such a right in these terms:

If, in a given case, the parent’s interests were at their strongest, the

State’s interest were at their weakest, and the risks of error were at

their peak, it could not be said that the Eldridge factors did not

overcome the presumption against the right to appointed counsel, and

that due process did not therefore require the appointment of counsel.

452 U.S. at 31. This is hardly the language of a clearly established right. 

Furthermore, because the parent’s interest in retaining 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 to 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 Due 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 violated her rights under

the SSCRA. The purpose of the SSCRA is to assist soldiers whose ability to

conduct their defense in civil cases is materially affected by reason of military

service. It provides two protections that are relevant in this case. First, the

SSCRA allows the court to appoint an attorney to the soldier:
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In any action or proceeding in which a person in military service is a

party if such party does not personally appear therein 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 court 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 plaintiff or defendant,

during the period of such service or within sixty days thereafter may,

in the discretion of the court in which it is pending, on its own

motion, and shall, on application to it by such person 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 prosecute the action or

the defendant to conduct his defense is not materially affected by

reason of his military service.

50 U.S.C. § 521. Garramone maintains that these provisions afforded her a right

to appointed counsel and a temporary stay of proceedings, and asserts that Romo

and Sanchez violated those rights by failing to inform her of her right to counsel

and neglecting to arrange a stay of proceedings.

The defendants argue that Garramone must first prove that clearly

established authority holds that the SSCRA provides a private cause of action. 

The proper inquiry, however, is whether the SSCRA creates clearly established

rights that were violated by the defendants--section 1983 may provide the cause

of action for the alleged violation of those rights. We note here that the

defendants do not dispute the district court’s conclusion that the SSCRA contains

rights enforceable under § 1983, but instead argue that Garramone has failed to
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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 Sanchez were obligated to

preserve whatever right existed. Section 520(3) allows the court, in its discretion,

to appoint an attorney; its failure to do so does not amount to a violation of

Garramone’s rights. Moreover, there is no statutory basis for concluding that

Romo and Sanchez should have either informed Garramone of this provision of

the SSCRA or requested that an attorney be appointed 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 failed 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 that the district court erred

in denying their motion to dismiss the claims for prospective relief on the basis of

Eleventh Amendment immunity. A district court’s denial of Eleventh Amendment

immunity, like its denial of qualified immunity, is immediately appealable as a
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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 monetary 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 parte 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 court 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 district court, however, is not an

appealable final order. While we may exercise pendent appellate 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 decision to deny the individual

defendants’ qualified immunity motions, or . . . review 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 preclude this action has no relationship

to its decision to deny immunity to the defendants, and thus we cannot review this

claim on appeal.
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We therefore REVERSE the district court’s ruling on qualified immunity

for defendants Romo and Sanchez, AFFIRM the court’s ruling on Eleventh

Amendment immunity, and REMAND for proceedings consistent with this

opinion.