F I L E D

United States Court of Appeals

Tenth Circuit

OCT 7 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

J.B., individually, and for her minor

child, L.B.,

Plaintiffs-Appellants,

v.

WASHINGTON COUNTY,

Defendant-Appellee.

No. 95-4197

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 93-C-1038G)

Matthew Hilton, Matthew Hilton, P.C., Participating Attorney for Rutherford

Institute, Inc., Springville, Utah, for Plaintiffs-Appellants.

Richard A. Van Wagoner, (with Allan L. Larson on the briefs), Snow, Christensen

& Martineau, Salt Lake City, Utah, for Defendant-Appellee.

Before KELLY, McWILLIAMS, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

In this 42 U.S.C. § 1983 action, plaintiff J.B., individually and for her

minor child L.B., alleges that defendant, Washington County, violated J.B.’s and
1 See Utah Code Ann. § 62A-4a-101(16)(b) (1997) (protective services

provided by the Division of Child and Family Services are in part to “substantiate

evidence of neglect, abuse or exploitation”); Aplt’s App. vol. II, doc. 5 at 8 (Depo. of

Deputy County Attorney W. Brent Langston) (“If a child is going to school” it “would be

normal” to conduct an interview at school to substantiate allegations of in-home child

sexual abuse).

2

L.B.’s constitutional rights when County employees, acting under the authority of

an ex parte order, seized L.B. for approximately eighteen hours. The purpose of

this seizure was to obtain an interview with the child outside her parents’

presence to investigate a report that the child’s father had sexually abused her. 

Both parties submitted motions for summary judgment. The district court granted

summary judgment to defendant Washington County, from which J.B. and L.B.

now appeal. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

BACKGROUND

 Washington County Deputy Pamela Humphreys was presented with a

dilemma when she received an eyewitness report that a seven year-old child, L.B.,

had been sexually abused by her father. Recognizing the need in such cases for

an interview with the child outside the presence of her parents, the County had

adopted a policy to interview children alleged to be victims of child abuse at

school.1

 In this case, however, the school interview procedure was not available
2

In April 1996, the Utah legislature renamed the “Division of Family

Services” the “Division of Child and Family Services.” See Utah Code Ann. § 62A-4a101 (1997) (Amendment Notes).

3

because L.B. was home-schooled. In accordance with the policies of the 

Sheriff’s Office, Deputy Humphreys discussed the matter with County Sheriff

Glenwood Humphries. See Aplts’ App. vol II, doc. 4 at 4-6 (Depo. of Sheriff

Glenwood Humphries).

Deputy Humphreys consulted a member of the Utah Division of Family

Services,2

 Janalee Gregory, as required under Utah law. See Utah Code Ann. §§

62A-4a-105(1), (6); -106(1)(h) (the Division [of Child and Family Services’s]

responsibilities include administering protective services to children); 

-101(16)(d)(i) (1996) (protective services defined as services provided “to bring

the situation to the attention of the appropriate juvenile court and law 

enforcement agency” in cases of in-home perpetrators). Deputy Humphreys and

Ms. Gregory could not think of a workable approach for conducting a private

interview with L.B. See Aplts’ App. vol. II, doc. 3 at 17-18 (Depo. of Deputy

Sheriff Pamela Humphreys). Deputy Humphreys then sought advice from Deputy

County Attorney W. Brent Langston, who is authorized by statute to prosecute

any person charged with abuse or neglect before the juvenile court. See Utah

Code Ann. § 17-18-(7)(c) (1995). Deputy County Attorney Langston concurred
4

that an interview was necessary and suggested they consult Juvenile Court Judge

Joseph Jackson. See Aplt’s App. vol. II, doc. 5 at 4, 11.

 Judge Jackson recommended filing a petition with the juvenile court

requesting an order to remove L.B. from her home temporarily to conduct an

interview. See id. doc. 3 at 31-33, and ex. 2 (Deputy Sheriff Humphreys’s Supl.

Report). Deputy County Attorney Langston then prepared and filed a petition

alleging “on information and belief” that L.B. was an “abused child.” See J.B. &

L.B. v. Washington County, 905 F. Supp. 979, 983 (D. Utah 1995). Following the

ex parte hearing at which Deputy Humphreys testified, Judge Jackson issued an

order to take L.B. to shelter care where she would stay pending a hearing. See

Aplts’ App. vol. II, doc. 3 at 30-31.

Deputy Humphreys delivered the order to two uniformed police officers. 

The officers went to J.B.’s home in the early evening and took L.B. to a

prearranged shelter home. See id., doc. 7 at 7-8 (Depo. of Officer Kurt Wright). 

The next morning, Deputy Humphreys and Ms. Gregory interviewed L.B. The

interview revealed no evidence of sexual abuse and L.B. was released to her

parents, seventeen and one-half hours after she was taken from her home. See id.

doc. 3, ex. 2; doc. 5 at 27-28. Thereafter, the juvenile court case was dismissed 

on motion by the County Attorney’s office stating there was insufficient evidence

to believe that L.B. was an abused child.
3 Plaintiffs do not appeal the district court’s rulings on their claims brought

under Utah state law. 

5

DISCUSSION

Plaintiffs pursue four claims on appeal. First, they contend that the

County’s employees violated their rights to procedural due process when they

removed L.B. from J.B.’s home. Second, they claim the removal of L.B. was a

reckless and deliberate interference with familial associational rights. Third, they

contend that the removal of L.B. violated their Fourth Amendment rights to be

secure against unreasonable seizures. Finally, plaintiffs allege that the policy

adopted by the County violated their Fourteenth Amendment right to equal

protection.3

We review the grant of summary judgment de novo, applying the same

standard as the district court. Hollingsworth v. Hill, 110 F.3d 733, 737 (10th Cir.

1997). Summary judgment is appropriate only “if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 

“We view the evidence and draw any inferences therefrom in the light most

favorable to the party opposing summary judgment.” Coosewoon v. Meridian Oil
4 Although plaintiffs at one time argued that a failure to train was involved,

they have apparently abandoned that contention on appeal. 

6

Co., 25 F.3d 920, 929 (10th Cir. 1994). “‘Where the record taken as a whole

could not lead a rational trier of fact to find for the nonmoving party,’ summary

judgment in favor of the moving party is proper.” Thomas v. International Bus. 

Machs., 48 F.3d 478, 484 (10th Cir. 1995) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

I. County Policy or Procedure

The parties do not challenge the district court’s holding that the actions of

the officials involved are imputed to the defendant County as policy, procedure,

or custom of the County because the actions were authorized or ratified by the

authorized decision makers. See J.B., 905 F. Supp. at 985. The Supreme Court 

has recently calibrated the test for determining what comprises a county policy, in

a failure to train setting, and we must evaluate its applicability here.4

 See Bryan

County v. Brown, 117 S. Ct. 1382, 1391 (1997) (stating that “we did not foreclose

the possibility that evidence of a single violation of federal rights, accompanied

by a showing that a municipality has failed to train its employees to handle

recurring situations presenting an obvious potential for such a violation, could
7

trigger municipal liability”) (citing City of Canton v. Harris, 489 U.S. 378, 390 &

n.10 (1989)).

A plaintiff seeking to impose liability on a county under § 1983 must 

identify a policy or custom that caused the plaintiff’s injury. Bryan County, 117

S. Ct. at 1388. This “ensures that a [county] is held liable only for those

deprivations resulting from the decisions of its duly constituted legislative body

or of those officials whose acts may be fairly said to be those of the [county].” 

Id. at 1387-88 (“municipalities and other local governmental bodies are ‘persons’

within the meaning of § 1983") (citing Monell v. New York City Dep’t of Soc.

Servs., 436 U.S. 658, 689, 694 (1978)).

In addition to the identification of a county policy or custom, a “plaintiff 

must also demonstrate that, through its deliberate conduct, the [county] was the

‘moving force’ behind the injury alleged. That is, a plaintiff must show that the

[county] action was taken with the requisite degree of culpability and must

demonstrate a causal link between the [county] action and the deprivation of

federal rights.” Id. 

In Pembauer v. Cincinnati, 475 U.S. 469 (1986), the Supreme Court

indicated that an authorized decision maker’s course of action “tailored to a

particular situation and not intended to control decision in later situations” may, 

under certain circumstances, give rise to liability under § 1983. Id. at 481. 
5 We have no doubt that the actions of Washington County Sheriff

Humphries, an authorized policy maker of Washington County, bound the County in this

case. See generally, Utah Code Ann. § 17-22-2 (Supp. 1996). Similarly, there is no

question that the police officers who executed the removal order acted under the direction

of Deputy County Attorney Langston and Sheriff Humphries. See Aplts’ App. doc. 5 at

9; Utah Code Ann. § 17-18-1(1) (1995) (listing powers of county attorney).

8

“Where a ‘plaintiff seeks to impose municipal liability on the basis of a single

incident, the plaintiff must show that the particular illegal course of action was

taken pursuant to a decision made by a person with authority to make policy

decisions on behalf of the entity being sued.’” Hollingsworth, 110 F.3d at 743

(quoting Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (citing Pembauer,

475 U.S. at 483-85)). Here, unlike the failure to train allegations in Bryan

County, the decision to adopt the particular course of action to remove L.B. from 

her home to interview her outside the home was “made by [the county’s]

lawmakers or by those whose edicts or acts may be fairly said to represent official

policy.” Cannon v. City & County of Denver, 998 F.2d 867, 877 (10th Cir. 1993);

see 905 F. Supp. at 985 n.7 (testimony of Washington County Sheriff Humphries

stating that he approved Deputy Humphreys’s actions “as being in accordance

with [County Sheriff’s Office’s] policies and procedures”).5 Thus, the decision

was a “course of action consciously chosen from among various alternatives,”

which generally implies a policy. Oklahoma City v. Tuttle, 471 U.S. 808, 823

(1985). 
9

 Washington County’s actions were tailored to accommodate its interest in

investigating the sexual abuse allegations that involved a home-school child. This

decision, properly made by the County’s authorized decision makers, “surely

represents an act of official government ‘policy’ as that term is commonly

understood.” Pembauer, 475 U.S. at 481.

We conclude the district court correctly found “that the actions taken by

Deputy Sheriff Humphreys and Deputy County Attorney Langston constituted a

‘policy, procedure or custom’” of Washington County. 905 F. Supp. at 985.

II. Deprivation of Constitutional Rights

A. Procedural Due Process

Plaintiffs argue that the procedure that the County personnel employed to

remove L.B. from her home did not comport with the constitutional requirements

of procedural due process. They object to the ex parte discussion with Judge

Jackson that took place before a court petition was filed. They also assert that the

court documents did not explain why L.B. was being taken to shelter care, or

provide information sufficient to permit them to prepare for a hearing. They also

claim that the County’s procedures to obtain an untainted interview with L.B.
10

were unsuccessful, because L.B.’s father spoke with her privately before she left

for the shelter home. 

To determine what process is constitutionally due, we look to three

somewhat flexible demands of procedural due process:

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

second the risk of an erroneous deprivation of such interest through

the procedures 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.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see Morrissey v. Brewer, 408

U.S. 471, 481 (1972) (“[D]ue process is flexible and calls for such procedural

protections as the particular situation demands.”).

It is undisputed that J.B.’s liberty interests in the custody, care, and

management of her children are of paramount importance. See Santosky v.

Kramer, 455 U.S. 745, 760 (1981) (“[U]ntil the State proves parental unfitness, 

the child and his parents share a vital interest in preventing erroneous termination

of the natural relationship.”). L.B. also enjoys a liberty interest requiring that

procedural due process accompany her confinement. See Schall v. Martin, 467

U.S. 253, 263 (1984) (holding that juvenile pretrial detention implicates due

process rights); Parham v. J.R., 442 U.S. 584, 600-01) (1979) (holding that a

child has a “substantial liberty interest in not being confined unnecessarily for
11

medical treatment” under the Fourth Amendment). As the district court noted,

“[t]he bonds of a unitary family are the foundation of society.” 905 F. Supp. at

986. 

 We recognize that “[t]he forced separation of parent from child, even for a

short time, represents a serious impingement” upon both the parents’ and child’s

rights. Jordan v. Jackson, 15 F.3d 333, 346 (4th Cir. 1994). “Of course, the child

also has obvious and compelling interests in his personal welfare and safety,

which are opposed to those of his parents when they pose the threat to the child’s

safety.” Id.

On the other side of the balancing equation lies the compelling interest of

the government, acting as parens patriae, in protecting children from physical and

sexual abuse. See Jordan, 15 F.3d at 346 (noting that “the “Commonwealth as

parens patriae also has at stake compelling interests--those in the safety and

welfare of its children”); Santosky, 455 U.S. at 766-67 (observing that “[t]wo

state interests are at stake in parental rights termination proceedings--a parens

patriae interest in preserving and promoting the welfare of the child and a fiscal

and administrative interest in reducing the cost and burden of such proceedings”). 

The government also shares the interests of the parent and child in preserving

their family’s integrity. Santosky, (stating that “the parens patriae interest favors

preservation, not severance, of natural familial bonds”). Without deciding which 
12

of these two significant interests is weightier, we agree with the district court that

“considerable deference should be given to the judgment of responsible

government officials in acting to protect children from perceived imminent danger

or abuse.” 905 F. Supp. at 986 (citing Jordan, 15 F.3d at 348). 

 Having recognized the importance of both the private and governmental

interests, we turn to the last factor in the Mathews balancing, and examine the

procedures used here, and the cost and benefit of additional procedures. In this

case of first impression for Washington County officials, the officials had few 

options but to attempt an interview with L.B. outside of her parents’ zone of

influence. 

“While there is always a risk of error when an emergency removal of a

child from his parents’ custody is required, the [County] has substantially reduced

that risk at the threshold by the imposition of significant substantive limitations

upon the removal authorization.” Jordan, 15 F.3d at 346. It is undisputed that the

County officials obtained a judicial order authorizing the temporary removal of

L.B. from her home. 

1. Ex parte communications

Plaintiffs object to the way County officials obtained the shelter care order,

particularly to the officials’ initial consultation with Juvenile Court Judge Joseph
13

Jackson. Judge Jackson’s ex parte receipt of information before, rather than after,

the time the County’s agents filed the petition is not significant under these

circumstances. 

We recognize that ex parte communications may be fraught with peril, and 

that judges must take great care with respect to ex parte communications even in

the most exigent of circumstances, but we can find nothing in the record to

suggest that Judge Jackson abandoned the impartial judicial role. The factors that

determine “whether an act by a judge is a ‘judicial’ one relate to the nature of the

act itself, i.e., whether it is a function normally performed by a judge, and to the

expectations of the parties, i.e., whether they dealt with the judge in his judicial

capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). 

In this unique factual setting, the record indicates that rather than take 

action upon unsworn statements, Judge Jackson suggested the filing of a petition

and the holding of a hearing--acts clearly within the jurisdiction invested in him. 

See Aplts’ App. vol II, doc. 3 at 31, 33. By acting upon sworn statements and

signed pleadings, Judge Jackson diminished the risks traditionally posed by ex

parte communications. Absent any evidence that the Judge took improper action,

we are reluctant to cast doubt upon the Judge’s conduct, or to find that this

procedure violated a constitutional right in any way. 
6 The then-relevant statute, Utah Code. Ann. § 78-3a-306(4)(a) (1994)

(amended 1995), provided for a mandatory post-deprivation hearing following an

emergency removal of a child which lasted 48 hours or more to determine the validity of

continuing state custody of the child. The detention here lasted less than 18 hours,

therefore no hearing was required. 

The very existence of this statute indicates the attempt by the Utah legislature to

provide safeguards in this kind of case. “States across the country have struck the same

or similar balance when confronted with the . . . question [of how to balance private and

public interests with the requirements of procedural due process].” Jordan, 15 F.3d at 351

and nn. 17-19 (citing state statutes involving emergency removal of a child that provide

for an interim period before a post-deprivation hearing must be held).

14

2. Insufficiency of the court order

Although the court order did not inform plaintiffs of the reason L.B. was

being taken to shelter care, the police officers who took her informed her parents

that there had been a report of child abuse and there would be a hearing within 

48 hours. A post-deprivation hearing was not held, however, because the child

was released to her parents the following morning.6

 Therefore, plaintiffs’ claim

that they might not have been able to prepare for a hearing because of the scant

order is too speculative for our review. Cf. Whitemore v. Arkansas, 495 U.S.

149, 160-61 (1990) (holding that speculative theory of possible injury insufficient

to establish injury in fact under Article III’s case or controversy requirement). 

3. Reliability of the interview

Although the risk of erroneous deprivation for seventeen and one-half

hours existed, we agree with the district court that the reliability of an out-of-
15

home interview to investigate the eyewitness sexual abuse allegations is of

overriding importance, and the risks of a tainted interview in the home or the

returning a child to an abusive situation are enormous. See 905 F. Supp. at 987.

Plaintiffs claim that the adopted procedure was not completely free of

parental influence because L.B.’s father was able to speak privately with L.B.

before the interview. The alternative approach submitted by plaintiffs, however

(asking L.B.’s parents to permit a private interview to take place in the home),

appears even more infeasible and uncertain. J.B.’s testimony reflects that

parental permission for a private interview within L.B.’s home was uncertain, and

in any event the point of removal of the child from the home was to conduct the

interview in an influence-free environment. Plaintiff J.B. also admits that had the

officers simply asked to interview L.B., that she “wouldn’t say yes.” Aplts’ App.

vol. I, doc. 6 at 37 (Depo. of J.B.). This only belies plaintiffs’ claim that the

officials should have requested parental consent to an at-home interview.

In retrospect, Washington County employees could have, as the district

court noted, chosen an alternative route, “such as conducting the interview in the

shelter care center sooner and without requiring overnight detention.” 905 F.

Supp. at 987 n.13. Given the extraordinary situation facing them, we conclude

that the procedures employed were reasonably calculated to balance the

competing interests and to achieve an interview with the child untainted by either
16

parent’s influence. See Hollingsworth, 110 F.3d at 739 (“Removal of children

from the custody of their parents requires predeprivation notice and a hearing

‘except for extraordinary situations where some valid governmental interest is a

stake that justifies postponing the hearing until after the event.’”) (quoting

Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir. 1989) (internal

quotations omitted)). Cf. Doe v. Hennepin County, 858 F.2d 1325, 1326-29 (8th

Cir. 1988) (holding no constitutional violation occurred where children removed

from home after reports of sexual abuse, post-deprivation hearings were held the

following day, and children were subsequently kept from home for 16 days and

returned to home after reports of abuse proved unfounded). Accordingly, we

agree with the district court that the Washington County officials’ actions did not

violate plaintiffs’ procedural due process rights.

B. Substantive Due Process

Plaintiffs’ right of familial association is included in the substantive due

process right of freedom of intimate association, which is “consonant with the

right of privacy.” Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993). The

right is based on the Fourteenth Amendment liberty interest. See id. Evaluation

of a party’s Fourteenth Amendment substantive due process rights requires a

“balancing [of the party’s] liberty interests against the relevant state interests.” 
17

Youngberg v. Romero, 457 U.S. 307, 321 (1982). Accordingly, we must weigh

plaintiffs’ rights of familial association against Washington County’s interest in

protecting children within its jurisdiction from sexual abuse.

Undeniably, plaintiffs have a substantial interest in the right to associate

with their family. “Family relationships ‘by their nature, involve deep

attachments and commitments to the necessarily few other individuals with whom

one shares not only a special community of thoughts, experiences, and beliefs, but

also distinctly personal aspects of one’s life.’” Arnold v. Board of Educ. of

Escambia County, 880 F.2d 305, 312-13 (11th Cir. 1989) (quoting Roberts v.

United States Jaycees, 468 U.S. 609, 618 (1984)). 

 As to Washington County’s interest, the Supreme Court has noted that

governmental entities have a “traditional and ‘transcendent interest’” in protecting

children within the county from abuse. Maryland v. Craig, 497 U.S. 836, 855

(1990) (citing Ginsberg v. New York, 390 U.S. 629, 640 (1968)). Accord New

York v. Ferber, 458 U.S. 747, 757 (1982) (stating “[t]he prevention of sexual

exploitation and abuse of children constitutes a government objective of

surpassing importance”). As the district court aptly observed, the “[i]nvestigation

of child abuse allegations ‘deserves no less attention’” than the protection of

children from abuse. 905 F. Supp. at 988 (quoting Griffin, 983 F.2d at 1548).
18

In evaluating these competing interests, we have observed that “[n]ot every

statement or act that results in an interference with the rights of intimate

association is actionable.” Griffin, 983 F.2d at 1548. The conduct or statement

must be directed “at the intimate relationship with knowledge that the statements

or conduct will adversely affect that relationship.” Id. 

Here, plaintiffs have sounded a constitutional claim by alleging that the

conduct of the County officials was directed at the family relationship with

knowledge that it would adversely affect that relationship. “[I]t is evident that

there was interference with plaintiffs’ rights of familial association” because

“L.B. was physically removed from her home and from her parents for a period of

almost 18 hours,” which “included an overnight stay in a pre-arranged shelter

home.” 905 F. Supp. at 988. Therefore, we proceed to “examine the evidence to

determine the severity of the alleged infringement, the need for the defendant’s

conduct, and any possible alternatives.” Griffin, 983 F.2d at 1548.

Plaintiffs recognize that the County officials had a duty to investigate the

report of child sexual abuse. They do not allege that the officials were motivated

by any other purpose apart from investigation. Rather, they claim that the

officials failed to use the least disruptive procedure to interview the child. 

We agree with the district court that while the County’s “objectives might

have been accomplished within a shorter period, there is no evidence that [the
19

County officials] intended or directed their conduct in this matter at the familial

relationship of L.B. and J.B. with knowledge that such conduct would adversely

affect the relationship as required by [this court].” 905 F. Supp. at 988 (citing

Griffin, 983 F.2d at 1546, 1548). “Absent such evidence of wilfulness or intent,”

the district court appropriately determined that no genuine issue of material fact

exists as to plaintiffs’ substantive due process claims. Id. We similarly conclude

that the County officials’ conduct did not impermissibly interfere with plaintiffs’

right of familial association.

III. Fourth Amendment Violations

Plaintiffs claim that L.B.’s court-ordered removal from her home to a

shelter home for the purposes of investigating allegations of sexual abuse violated

their Fourth Amendment rights. Plaintiffs assert that (1) plaintiff J.B. has

standing under the Fourth Amendment; (2) the order issued by Judge Jackson was

not supported by probable cause; (3) Judge Jackson did not act as a neutral and

detached magistrate; (4) the order was not specific as to the location where L.B.

could be seized; and (5) the execution of the order was unreasonable. We affirm

the district court’s grant of summary judgment against plaintiffs on these claims. 

We address each contention in turn.
20

A. Standing

It is well established that “Fourth Amendment rights are personal rights

which, like some other constitutional rights, may not be vicariously asserted.” 

Alderman v. United States, 394 U.S. 165, 174 (1969). The gravamen of

plaintiffs’ Fourth Amendment claim in this case is the court-ordered seizure of

L.B. The district court was correct in ruling that plaintiff mother, J.B., may not

assert a derivative or vicarious claim based on L.B.’s Fourth Amendment injuries. 

But the court below did not focus on the separate claim of J.B., alleging her own

distinct injuries as a result of the seizure of her seven-year-old daughter. While it

is clear that constitutional protection afforded a parent against a child’s seizure in

these circumstances may be found in the Fourteenth Amendment, Curnow ex rel.

Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (holding that “a

parent who claims loss of the companionship . . . of his or her child” raises a

claim based on the Fourteenth, not Fourth Amendment); Griffin, 983 F.2d at 1547

(holding that familial right of association is found in Fourteenth Amendment),

there may be circumstances in which a parent has Fourth Amendment standing to

challenge a seizure involving a minor child. See 1 Wayne R. LaFave & Jerold H.

Israel, Criminal Procedure § 9.2 at 732-33 and nn. 26-28 (1984) (noting that the

Model Code of Pre-Arraignment Procedure "provides that a defendant has
21

standing with respect to searches of or seizures from various persons with whom

the defendant has" a spousal, parental, or sibling relationship where a "common

zone of privacy" was intruded upon). Cf. Hollingsworth, 110 F.3d at 739

(limiting representative standing to parents where child included as plaintiff). 

But see Tenebaum v. Williams, 862 F. Supp. 962, 973 (E.D.N.Y. 1994) (noting

that "the Court is not aware . . . of any federal decision which has held that a

parent may legitimately assert an individual, as distinct from representative,

Fourth Amendment claim based upon the seizure of a child"). Neither the cases

cited by the parties nor those found by the court precisely address the issue. 

However we need not reach the question because J.B. does have standing under

the Fourteenth Amendment to assert a claim that would, if she were successful,

result in full compensation for any harm suffered.

The district court was also correct in holding that the County officials’

temporary removal of L.B. from her home is a seizure which implicates L.B.’s

own Fourth Amendment rights. See Van Emrick v. Chemung County Dep’t of

Social Servs., 911 F.2d 863, 867 (2d Cir. 1990) (noting that “when the procedures

undertaken at the initiative of a state official serve primarily an investigative

function . . . Fourth Amendment and bodily integrity interests of the child are

implicated”). We conclude that L.B. does have standing to challenge her removal

from her home. Therefore, we must determine whether the seizure in this case is
7 For example, plaintiffs argue that the informant erroneously claimed that

J.B. and L.B. were on vacation at the time the allegation was made and that the father did

not have employment outside the home. See Aplts’ App. vol. II, doc. 3 ex. 1 at 2

(incident report). 

22

consistent with the limitations on governmental authority contained in the Fourth

Amendment.

B. Probable Cause

Plaintiffs argue that the temporary removal of L.B. from her home for

questioning by the authorities violated the Fourth Amendment because the agents

of Washington County lacked probable cause to believe that L.B. had been

abused. Specifically, plaintiffs complain that the principal source of information

supporting probable cause, the informant’s statement to Deputy Humphreys,

contained inaccurate information, and that Deputy Humphreys inadequately

investigated the informant’s claims.7

A threshold question is the proper standard for evaluating the

constitutionality of the seizure. The Supreme Court has yet to decide whether the

temporary removal of children in cases of suspected abuse or neglect is governed

by the probable cause standard. It could be argued that such removal is based on

“‘special needs, beyond the normal need for law enforcement,’” O’Connor v.
23

Ortega, 480 U.S. 709, 720 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325,

351 (1985)), and therefore permissible in the absence of probable cause. See e.g.,

Vernonia Sch. Dist. 47J v. Acton,115 S. Ct. 2386, 2396-97 (1995) (upholding

scheme of suspicionless drug testing of student-athletes under special needs

doctrine); T.L.O., 469 U.S. at 347-348 (permitting warrantless search of student’s

purse grounded in reasonable suspicion of presence of cigarettes; state’s interest

in maintaining discipline in schools provides special need beyond criminal law

enforcement obviating need for probable cause). 

Though the district court at one point suggested that a standard less than

traditional probable cause might be proper in evaluating the seizure in this case,

see 905 F. Supp. at 990 n.15 (“This ruling is directed only at the facts of this

case. In other cases, the duty of government officials to investigate the veracity

of an anonymous informant might be more feasible, and a higher degree of

probable cause would be required.”), the district court actually invoked the

traditional probable cause formulation of Illinois v. Gates, 462 U.S. 213, 238

(1983) (emphasizing that the judge must make a “practical, common-sense

decision whether, given all the circumstances . . . . there is a fair probability”

that the facts to which the probable cause determination is addressed exist). The

district court also cited approvingly to Tenebaum, 862 F. Supp. at 975-76, which

applied the traditional probable cause standard in circumstances similar to those
24

here. Moreover, it did not anywhere state that a lesser quantum of suspicion of

wrongdoing, such as the reasonable suspicion standard, would suffice to justify

this seizure. Thus, the record in this case supports the view that the district court

found probable cause for the seizure of L.B.

Before discussing the record, two preliminary observations are in order. 

First, probable cause “is a fluid concept--turning on the assessment of

probabilities in particular factual contexts,” Gates, 462 U.S. at 232, and the value

of informants’ tips in establishing probable cause is as varied as the myriad of

fact situations in which they arise. Nevertheless, courts traditionally have

distinguished between anonymous tipsters, whose motives and bases of

knowledge are unknown to the investigating officers, and ordinary citizens who

identify themselves and report crimes to the police. Although the courts have

eschewed rigid rules, the probable cause case law emphasizes the importance of

corroboration of some amount of the anonymous tipster’s information in

establishing probable cause, see e.g., United States v. Hinojos, 107 F.3d 765, 768

(10th Cir. 1997) (discussing necessary corroboration of anonymous tip to

establish reasonable suspicion); United States v. Wilhelm, 80 F.3d 116, 120 (4th

Cir. 1996) (discussing corroboration necessary to support search warrant based on

anonymous tip); United States v. Johnson, 64 F.3d 1120, 1126 (8th Cir. 1995)

(same), while presuming the reliability of citizen informants. See e.g., United
25

States v. Decoteau, 932 F.2d 1205, 1207 (7th Cir. 1991) (suggesting that probable

cause exists when an officer receives information from an ordinary citizen who

claims to have witnessed a crime, and whom the officer reasonably believes is

telling the truth).

Second, appellate courts reviewing probable cause determinations owe

substantial deference to the judicial officer making the initial probable cause

determination. See United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir.

1996) (citing United States v. Williams, 45 F.3d 1481, 1485 (10th Cir. 1995)). As

the Supreme Court explained, the job of the appellate court “is to ensure that the

magistrate had a ‘substantial basis for . . . conclud[ing] that probable cause

existed.’” Gates, 462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S.

257, 271 (1960)). 

In the typical probable cause review case, a magistrate has made a finding

of probable cause to issue a warrant (either for search or arrest). The situation in

this case is analogous. Deputy Humphrey’s petition to the juvenile court was, for

our purposes, tantamount to an application for an arrest warrant, while Judge

Jackson’s order to take L.B. to a shelter home was tantamount to an arrest warrant

issued by a magistrate. In evaluating the reasonableness of this seizure, under

Fourth Amendment principles, we owe the same deference to Judge Jackson’s

determination supporting the removal order that we would owe to a magistrate’s
26

finding of probable cause in issuing a warrant. See e.g., Cusumano, 83 F.3d at

1250 (noting that “we give ‘great deference’ to the decision of the issuing

magistrate” in determining whether probable cause supported the issuance of a

search warrant) (quoting Williams, 45 F.3d at 1485). 

Under the totality of the circumstances, see Gates, 462 U.S. at 230, we

agree with the district court that there was probable cause to temporarily remove

L.B. from her home for questioning. The informant, whose identity was known to

Deputy Humphreys, see Aplt’s App. doc. 3 at 8, gave an eyewitness account of

the alleged sexual abuse. Judge Jackson questioned the investigating officer

regarding the statements of the informant, prior to entering the removal order. Id.

at 983. Under these circumstances, we hold that Judge Jackson was entitled to

conclude that there was probable cause to temporarily remove L.B. from the home

for questioning. 

Plaintiffs miss the mark in arguing that certain information provided by the

eyewitness was incorrect, and that Deputy Humphreys failed to corroborate the

informant’s statements. The incorrect information was immaterial to the

allegations of sexual abuse. Because Deputy Humphreys knew the eyewitness’s

identity, and thus was able to assess that person’s veracity, corroboration was

unnecessary in this case. See Decoteau, 932 F.2d at 1207 (considering an

identified informant’s tip, the court noted that “if it seems reasonable to the
27

police to believe that the [ordinary citizen] eyewitness was telling the truth, they

need not take any additional steps to corroborate the information regarding the

crime before taking action”).

C. Neutral and Detached Magistrate

Similarly, plaintiffs cannot prevail on the basis of their argument that Judge

Jackson’s order was invalid because he was not a neutral arbiter of probable

cause, but an active participant in the investigative process. The Fourth

Amendment may be violated when the judge abandons the judicial role and acts as

“‘an adjunct law enforcement officer.’” See United States v. Leon, 468 U.S. 897,

914 (1984) (quoting Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27 (1979)). 

However, we agree with the district court’s conclusion that the circumstances of

this case do not warrant the conclusion that Judge Jackson lacked the neutrality or

detachment required by the Fourth Amendment. While plaintiffs contend that it

was improper for Judge Jackson to discuss the case ex parte with Deputy County

Attorney Langston and Deputy Humphreys before the petition was filed, they do

not allege that Judge Jackson commandeered a law enforcement role. There is

nothing in the record that suggests that Judge Jackson overstepped his judicial
28

capacity. These circumstances do not call into question Judge Jackson’s

neutrality or detachment. 

D. Insufficient Specificity of the Ex Parte Order

Plaintiffs also allege that the order was constitutionally infirm because it

did not describe the location from which L.B. was to be seized. They argue that

the order permitted the County’s agents to seize L.B. wherever they may have

found her, even without her parents’ knowledge. The particularity requirement

for a seizure warrant must specify the “persons or things to be seized.” U.S.

Const. amend IV. Plaintiffs misread the particularity requirement for a search

warrant, which requires a description of “the place to be searched,” id., to extend

to a seizure. However, there is no requirement that a seizure warrant describe

with particularity the location of the person to be seized. 

E. Execution of Order

Plaintiffs final objection to the shelter care order is the manner in which it

was executed. They maintain that the execution of the order was unreasonable

because it was executed late in the day so that L.B. was required to stay in shelter
29

care overnight, the officers did not provide the parents with much information,

and a less intrusive method could have been used to obtain the interview. 

As noted earlier in this opinion, we agree with the district court that

although “different procedures may have been taken that would have been less

intrusive, such as conducting the interview in the shelter care center sooner and

without requiring overnight detention,” the procedures adopted by the County

“constitute[d] a permissible balancing of the substantial private and public issues

at stake.” J.B., 905 F. Supp. at 987 n.13. Because the analysis under procedural

due process applies to plaintiffs’ arguments in the Fourth Amendment context, we

also reject plaintiffs’ claims here.

IV. Equal Protection

Plaintiffs final claim is that their Fourteenth Amendment rights to equal

protection of the laws were abridged by the County’s removal of L.B. from her

home. They claim that L.B. is a member of a “suspect class” of children whose

parents choose to school them at home. They maintain that the County treated

L.B. differently than children not schooled at home. Plaintiffs further raise a

substantive due process claim that J.B. was exercising her fundamental right to

school her child at home, and the County’s policies impermissibly interfered with
30

that right. Lastly, plaintiffs allege that they were penalized for exercising their

fundamental right to school L.B. at home.

“[U]nless a classification warrants some form of heightened review because

it jeopardizes exercise of a fundamental right or categorizes on the basis of an

inherently suspect characteristic, the Equal Protection Clause requires only that

the classification rationally further a legitimate state interest.” Nordlinger v.

Hahn, 505 U.S. 1, 10 (1992). “While home school families impelled by deepseated religious convictions might be the type of ‘discrete and insular minorit[y]’

to which Justice Stone referred in footnote four of United States v. Carolene

Products Co., 304 U.S. 144 (1938), the broad secular category of individuals who

prefer to school their children at home is not.” Murphy v. Arkansas, 852 F.2d

1039, 1043 (8th Cir. 1988). 

Plaintiffs do not assert that the County’s adopted policy is aimed at

Murphy’s first category of individuals. Because the policy undeniably affects the

“broad secular category of individuals” who home-school their children, we

examine whether the County officials’ actions rationally furthered a legitimate

state interest. As stated above, the County had an important interest in

investigating the report of child abuse, and the means used to effect a private

interview with L.B. rationally furthered that interest and were not unduly

intrusive under these circumstances. 
31

Plaintiff J.B. also contends that the County interfered with her fundamental

right to direct the upbringing and education of her child. See e.g. Wisconsin v.

Yoder, 406 U.S. 205, 213 (1972). Although the exercise of this right “may be

fairly characterized as [an] exercise[] of familial rights and responsibilities . . .

[parents] have no constitutional right to provide their children with private school

education unfettered by reasonable government regulation.” Runyon v. McCrary,

427 U.S. 160, 178 (1976). 

The conduct of the County officials did not impede the exercise of J.B.’s

right to home-school L.B. As the district court noted, “[i]nstead, [the County]

employees merely chose a different method of dealing with the child abuse

allegation as a result of [p]laintiffs’ different circumstances.” 905 F. Supp. at

991. We agree with the district court that “[t]he classifications in this case, and

the conduct of defendant’s employees based thereon, do not violate the Equal

Protection Clause.” Id.

CONCLUSION

This is a difficult case, pitting the fundamental rights of parents and

families--rights that are in Griffin’s terms, “consonant with the right of privacy”--

against the awesome responsibilities of a county to investigate child abuse, a most
32

reprehensible and ever-increasing problem. 983 F.2d at 1547. Though it is

possible, with hindsight, to suggest improvements in the procedures utilized by

Washington County, in our judgment, the County’s good faith efforts did not

result in a violation of the plaintiffs’ constitutional rights.

Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.