### The Honorable Susan Webber Wright, United States Distric t 1 

### Judge for the Eastern District of Arkansas. ____________ No. 95-1908

____________
Kelly Thomason; * Randy Thomason, * * Appellants, * * v. * * SCAN Volunteer Services, Inc.; * Appeal from the United States Lynn Sims, individually and in * District Court for the her official capacity as County * Eastern District of Arkansas Director of SCAN Volunteer * Services, Inc.; Geneva Wordlaw, * individually and in her official* capacity as a Case Worker for * SCAN Volunteer Service, Inc.; * Dr. Russell Steele, * * Appellees. *

____________ Submitted: November 16, 1995 Filed: June 11, 1996

____________ Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

____________ McMILLIAN, Circuit Judge.

Kelly Thomason (Thomason), and her husband, Ran dy Thomason (together plaintiffs), appeal from a final judgment entered in the United State s District C ourt for the Eastern District of Arkansas dismissing their due 1
process claim against defendants SCAN Volunteer Services, Inc. (SCAN), Lyn n Sims, and Geneva Wordlaw (collectively defendants) pursuant to 42 U.S.C. § 1983. Thomason

### -2-

v. SCAN Volunteer Servs. , No. LR-C-93-893 (E.D. Ark. Mar. 8, 1995 ) (judgment). For reve rsal, plaintiffs argue that the district court erred in hold ing that defendants did not violate plaintiffs' constitutiona l rights as a matter of law, and, even if defendan ts did violate plaintiffs' rights, defendants ar e protected by qualified immunity. Id. , slip op. at 7 (Feb. 13, 1995) (memorandum and order granting summary judgment). For the reasons discussed below, we affirm.

Background

It is undisputed that SCAN, a not-for-profit co rporation located and operating in Pulaski County, Arkansas, had at al l relevant times the power under Arkansas state law to investigate allegations of suspected chil d abuse, to refer such abuse to the state prosecut ing authorities, to remove victi ms of suspected parental abuse from their homes, and to see k protective custody for such victims by order of the Juvenile Court o f Pul aski County, Arkansas. Joint Appendix at 3 (Complaint ¶ 6). SCA N operates under the direction of the Arkansas Dep artment of Human Services, Division of Children and Family Services (DHS/DCF). Lynn Sims and Geneva Wordlaw were at all relevant times employees of SCAN.

At approximately 1:44 p.m. on December 19, 1990, Andrea Goin, th e director of services at SCAN, received a telepho ne call from Shaun Wilfong at DHS/DCF . Wilfong informed Goin that she (Wilfong) had received b y facsim ile transmission some documents from a Little Rock physician, Dr

. WilliamR. Collie, and that she was, in turn, sending those documents to Goin, also by facsimile transmission. These documents concerne d plaintiffs' eight-month-old infant, Anthony Thom ason (Anthony). According to Goin 's deposition testimony, Wilfong did not indicate that she ha d received any information regarding Anthony other than the documentatio n which she had received from Dr. Collie and was p assing along to Goin. Id. at 151. Goin received the facsimile transmission from Wilfong

### -3-

shortly after their telephone conversation ended. The transmitte d documen ts included, in their entirety, three items: a letter from Dr

. Thomas G. DiSessa to Dr. Collie dated October 25, 1990; a letter from a Dr

. DiSessa to Dr. Collie dated December 14, 1990; and an article from th e Journal of Pediatrics , which Dr. DiSessa had attached to his December 14 let ter to Dr. Collie. Joint Appendix at 205-15. The medical journa l article discussed a rare psychological disorder called "Munchausen b y Proxy" believed to be displayed by parents (typi cally mothers) who subject their young children to potentially life-threatening and diagnosticall y elusive forms of physical abuse in order to draw sympathy and attention to themselves.

In his letter dated December 14, 1990, Dr. DiSe ssa indicated that he had been treating Anthony since October 25, 1990 , when Anthony was brought to Dr. DiSessa's outpatient clinic for a second opinion following treatmen t at Little Rock Children's Hospital for tachycard ia (rapid heart rate). He further stated that Thomason, Anthony's mother, "has intermittentl y reported that the chi ld has had apnea." In late October 1990, the letter continued, he (Dr. DiSessa) received a phone call from Thomason in which she re ported that Anthony had undergone recurrent episodes of paleness , grayness, and sweatiness, and she requested that Anthony be admitted to th e hospital for observat ion. Anthony was admitted to LeBonheur Hospital for

a perio d from November 5, 1990, to November 9, 1990. Referring to tha t hos pital stay, Dr. DiSessa's letter stated "during the 5 day admission , there [were] no episodes of paleness, grayness, duskiness, blueness o r apnea noted by our nursing staff." Anthony was sent home with an "event recorder." Since that time, the letter continue d, Thomason "has phoned in 8 separate events." According to the readings from the recorder, thes e reported events correlated with heart rates of "normal sinus rhythm with no evidence of a supr aventricular tachycardia arrhythmia"; these "traces" had been sent for rev iew to Dr. Paul Gillett, a "world renowned pediatric cardiac electrophysiologist."

### -4-

The final two paragraphs of Dr. DiSessa's December 14 letter stated th e following:

On De cember 13th, mother again called my offic e with the following concerns. Her concerns were those of fast heart rate, paleness, grayness, clamminess an d sweating. In addition, the mother reported that th e baby had a severe apnea episode producing bluenes s app roximately a week to 10 days ago. After the bab y required a substantial amount of stimulation, mothe r failed to seek medical attention f or this apnea episode.

This failure to seek medical attention for th e apnea episode is a great concern to me. The mother' s general affect has also been of great concern to a number of physicians here at LeBon heur Hospital. Mother has been described by at least two physicians as bein g dysfunctional. . . . My greatest f ear is that this child may fall into the category of chil dren recently reported in the Jo urnal of Pediatrics . . . [which] reported 2 7 infants who suffered "recurrent apnea and sudden infant death " who were in reality suffered repetitively [sic ] suffoca tion events by their mother. These events began between ages in 1 and 3 months of age and went on until the child died between 6 and 12 mo nths later. I believe that this possibility needs to be explored

. Unfor tunately, my distance precludes that I explore i t effectively. If your familiarity with this famil y substan tiates this suspicion, I would like to recommend that you refer this case to Arkans as Social Services for further exploration.

Id. at 205-06.

Accord ing to Goin's deposition testimony, during her telephon e conversation with Wilfong, she began filling out a form with the preprinte d title "Division of Children and Family Services Child Abuse and Neglect Repo rting," which she completed sometime after receiving the facsimil e transmiss ion from Wilfong. At the bottom of page 1 of this form, sh e wrote: "Dr. DiSessa (Pediatrics at U of Tennesse e and LeBonheur Children's Medical Center) reports that the mother is intermittently smothering the baby." Id. at 147-50; 201.

### Defendants argue that Thomason in fact voluntarily consented 2 

### to th e removal of Anthony from plaintiffs' home. They refer t o Word law's deposition statement that Thomason was "in agreement " after Wordlaw "told [Thomason] that [she, Wordlaw,] needed to take the child to the hospital." D efendants also rely on the fact that Thomason provided Wordlaw with a car seat when Wordlaw did n ot have one. Brief for Appellees at xii (citing Joint Appendix at 74, 77 (deposition of Geneva Wordlaw) ). We hold that defendants have not established beyond genuine dispute that Thomason voluntaril y consented to the removal of Anthony from plaintiffs' home. I f anything, the evidence indicates that Wordlaw never gave Thomason a choice in the matter. See Joint Appendix at 75, 77 (Deposition of Geneva Wordlaw: "Q. You didn't both decide in conjunction with one another; you decided to take the child to the hospital, is that right? A. Yes, I did. Well, SCAN did."; "Q. And when you got to the Thomason home you knew at that moment when you knocked on the door y ou were going to take the child to the hospital, is tha t right? A. Yes.") Having been told that her eight-month-old child was being taken to the hospital, Thomason's insistence that he ride in a car seat does not suggest that she voluntarily consented to Wordlaw's removal of him from the home.
-5- The decision was made by SCAN personnel, including Goin, that Anthon y should be removed from the home and taken to a hospital for a medica l evaluation. This task was assigned to Wordlaw. According to Wordlaw, she was told by Goin to g o to plaintiffs' home "immediately." Id. at 70. At that time, all the information that Wordlaw had received about Anthony's

case was Goin's verbal indication that SCAN had received a report , including some medical information, that the mother had smothered the baby

. Id. at 69-71. Having no other information and having not reviewed any of the documentation, Wo rdlaw went to plaintiffs' home at approximately 4:30 p.m. When Wordlaw arrived at plaintiffs' residence, Thomason was home wit h her three children. Wordlaw identified herself as an evaluator with the Pulaski County SCAN o ffice and informed Thomason that SCAN had received a report th at "her child was being smothered and that she was the allege d perpetra tor." Id. at 72. Thomason became very upset, denied th e
accusa tion, and telephoned her mother-in-law, who promptly came to th e house. Id. at 72-73. Having told Thomason that the decision had been mad e by SCAN to take the baby to the hospital, Wordla w removed Anthony from the home and took him to Arkansas Children's Hospital. 2

### -6- Two d ays later, on December 21, 1990, SCAN submitted an ex part e application to the Pu laski County Chancery Court, along with a supporting aff idavit signed by Wordlaw, recommending that Anthony be placed in th e custody of the State of Arkansas Division of Chi ldren and Family Services. Wordlaw's affidavit was written by herself, Andrea Goin, and one or tw o other individuals. Id. at 83 (deposition of Geneva Wordlaw); id. at 176 (deposition of Andrea Goin). At the time she signed the affidavit, Wordla w had not reviewed any medical records concerning Anthony other than the two letters written by Dr . DiSessa. Id. at 85. Wordlaw's affidavit included the s tatement "[m]edical records and physicians concur that Anthon y Thomason showed evidence of `intermittent smothering.'" Id. at 104. On the same day that the application and affidavit were received by the state

cour t, the court entered an ex parte order removing Anthony from th e custody of his parents and placing him in protective custody with th e state. Anthony remai ned in the state's custody through the Christmas and New Year holidays until a hearing was held on January 2, 1991. During tha t time, he stayed at Arkansas Children's Hospital. Following the January 2, 199 1, hearing, in which plaintiffs had the opportunity to present thei r side of the case, the state court quashed the ex parte order and returned Anthon y to his parents subject to certain conditions, including tha t Anthony was to remain hospitalized for seven mor e days at plaintiffs' cost and that Thomason was to undergo some counseling . At a final hearing held on January 29, 1991, the state court dismissed SCAN's petition on grounds of insufficient evidence of abuse.

Plaintiffs brought t his § 1983 action for compensatory and punitive damages, alleging that the removal of Anthony from their home, and their two-week separation from Anthony as a result of the state court's ex parte order, deprived them of their liberty interest in the care, custody, and management of their child, in

### Plaintiffs' additional claims against three doctors wer e 3 

### dismis sed without prejudice. Thomason v. SCAN Volunteer Servs. , No. LR-C-93-893 (E.D. Ark. Mar. 7, 1995) (order); id. (Aug. 22 , 199 4) (order). Plaintiffs do not appeal the district court' s dismissal of the doctors.
-7- violation of their su bstantive due process rights. Plaintiffs sued SCAN,

as well as Wordlaw and Lynn Sims (the county director of SCAN), in their individual and official capacities. Plaintiffs also asserted a 3 supplement al state law tort claim. SCAN, Wordlaw, and Sims moved fo r summary judgment arguing that their conduct did not constitute state actio n for purpo ses of 42 U.S.C. § 1983 and, even if it did, defendants wer e immune from suit. The district court granted their motion, statin g "[ a]ssuming without deciding that the defendants' actions were stat e action, the plaintiff s' Section 1983 action still fails because there was no deprivation of a c onstitutionally protected right. Even if there were

a constitutional deprivation, the defendants would be protected b y qualified immunity and possibly by the Eleventh Amendment." Slip op. at 7. Th ereafter, the district court entered judgment for defendants

. Thomason v. SCAN Volu nteer Servs. , (Mar. 8, 1995) (judgment). Plaintiffs appealed.

Discussion

We review a grant of summary judgment de novo . The question before the district court, a nd this court on appeal, is whether the record, when viewe d in the light most favorable to the non-moving party, shows tha t there is no genuine issue as to any material fact and that the moving part y is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see, e.g. , Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50 (1986); Get Away Club, Inc. v. Coleman , 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire & Marine Ins. Co

. v. FDIC , 968 F.2d 695, 699 (8th Cir. 1992). In the present case, th e district court held that plaintiffs were not deprived of their

### -8-

constitutional rights as a matter of law and, therefore, no liability coul d attach to SCAN or its employees, either in their individual or in thei r official capacities.

To begin, as to defe ndant Lynn Sims, who was sued in her individual capac ity and in her official capacity as county director of SCAN , plaintiffs have not identified any specific or concrete facts supporting their claim that she caused a deprivation of their constitutional rights. In fact, her name is not mentioned anywhere in plaintiffs' statement o f facts on appeal. Nor are we able to infer such facts from the evidence in the record. Because there is no evidence sugges ting either that defendant Sims was personally or directly involved in the alleged violation o f plaint iffs' constitutional rights, or that, in her capacity as a supervisor, she knew about the allegedly unlawfu l conduct and facilitated, approved, condoned, o r deliberately ignored the conduct, we hold that the district court did not err in granting summary judgment on plaintiffs ' claims against her bo th in her individual and in her official capacities. Cf. Ripson v. Alles , 21 F.3d 805, 808-09 (8th Ci r. 1994) (where individual was arrested by a pol ice officer without probable cause, the police chief

was entitled to summary judgment dismissing the arrestee's § 1983 claims against him because his only connection to the unlawful conduct was that he was the supervisor of the arresting officer).

Turning to the claims against SCAN and Wordlaw, we are guided by our recent decision i n Manzano v. South Dakota Dep't of Social Servs. , 60 F.3 d 505 (8th Cir. 1995) ( Manzano ), in which we described th e constitutional right of parents in the care and control of their children as follows:

Our c ourt has recognized the liberty interes t which p arents have in the care, custody, and management of their children. Myers v. Morri s , 810 F.2d 1437, 1462 (8t h Cir.) ( Myers ) (citing Lehr v. Robertson , 463 U.S

. 248, 258 (1983)), cert. denied , 48 4 U.S. 828 (1987); see

### -9- Lux by Lu x v. Hansen , 886 F.2d 1064, 1066-67 (8th Cir

. 1989) ( Lux ); Fitzgerald v. William son , 787 F.2d 403, 407 (8th Cir. 1983). However, we have at the same tim e indicated that this right is not absolute. Myers , 81 0 F.2d at 1462; see Martinez v. Mafchir , 35 F.3d 1486 , 1490 (10th Cir. 1994) ( Martinez ) ( "The right to familial inte grity, however, has never been deemed absolute o r unquali fied."); accord Hodge v. Jones , 31 F.3d 157, 163 (4th Cir.) ( Hodge ), cert. denied , 115 S. Ct. 581 (1994); Doe v. Louisiana , 2 F.3d 1412, 1417 (5th Cir. 1993 ) ( Doe ), cert. denied , 114 S. Ct. 1189 (1994); Frazier v. Bailey , 957 F.2d 920, 929 (1st Cir . 1993) ( Frazier ). As we sta ted in Myers , "the liberty interest in familia l rela tions is limited by the compelling governmenta l inte rest in the protection of minor children , part icularly in circumstances where the protection i s considered necessary as against th e parents themselves." 810 F. 2d at 1462. Moreover, as the First Circuit ha s corr ectly noted, "[t]he right to family integrit y clearl y does not include a constitutional right to b e fre e from child abuse investigations." Watterson v
. Page , 987 F.2d 1, 8 (1st Cir. 1993) ( Watterson ).
The ne ed to continually subject the assertion o f this a bstract substantive due process right to a bal ancing test which weighs the interest of the paren t against the interests of the child and the state make s the qualified immunity defense difficult to overcome

. Mo reover, the requirement that the right be clearl y esta blished at the time of the alleged violation i s particularly formidable. See Mart inez , 35 F.3d at 1490; Hodge , 31 F.3d at 164; Frazier , 957 F.2d at 930; Myers , 810 F.2d at 1462-63. . . . Our cou rt has not gone so far as to say that there are no "clearly established " substa ntive due process rights held by parents in th e co ntext of child abuse investigations. However, i n Myers , we did recognize the problem of defining suc h rights. 810 F.2d at 1462-63. Mor e generally, this need to balance competing interests makes the Sieger t approa ch difficult to apply in child abuse case s involvi ng the right to familial integrity. In thes e [ ] types o f cases, it is nearly impossible to separate the co nstitutional violation analysis from the clearl y establ ished right analysis. See Martinez , 35 F.3d a t 1490; D oe , 2 F.3d at 1417; Frazier , 957 F.2d at 929-31.

. . . . Clearly, our precedents provide t hat, when a state offic ial pursuing a child abuse investigation takes a n action which would otherwise unconstitutionally disrupt

### -10- fam ilial integrity, he or she is entitled to qualifie d immu nity, if such action is properly founded upon a reasonable suspicion of child abuse.

Manzano , 60 F.3d at 509-11 (footnote omitted).

In the present case, it is beyond genuine dispute that Dr. DiSessa, in his letter dated December 14, 1990, expressed his own suspicion tha t Thoma son was engaging in a life-threatening form of child abuse. Thi s suspicion, although based solely upon circumstantial evidence, wa s rationally drawn from Anthony's medical history, specific acts by Thomason which Dr. DiSessa described, and other physicians' alleged concer n regarding Thomason's "affect." Defendants reasonably could have assumed that Dr. DiSessa was highly knowledgeable and ex perienced in these matters and lacked any motive to lie. Moreover, from de fendants' perspective, the medica l journal article may have lent additional credibility to Dr

. DiSessa's theory of abuse. Therefore, we have little difficulty in holdin g that defendants, upon receiving the facsimile transmission of Dr. DiSessa' s letters and the accom panying medical journal article, formed a reasonable

sus picion of abuse which would justify some degree of interference wit h plaintiffs' rights as the parents of Anthony.

The difficulty in th e present case is not whether such a reasonable suspicion can be found, but rather, whether the actions taken by defendant s and the resulting disruption to plaintiffs' familial relations with Anthon y
were so disproportionate under the circumstances as to rise to the level of a constitutional deprivation. Viewing the evidence in the light most favorable to plaintiffs, the evidence demonstrates that, upon receivin g Shaun Wilfong's phone call, the copies of Dr. DiSessa's letters, and the medical journal article, Wordlaw (at Andrea Goin's directions) proceeded to plaintiffs' residence with the intent to remove Anthony from plaintiffs ' home without so much as a telephone call

### We also not e that Dr. DiSessa's letter of December 14, 1990, 4 

### stated that he had sent the evaluation "traces" from Anthony' s event recorder to Dr. Paul Gillett, a "world renowned pediatri c card iac electrophysiologist." Joint Appendix at 206. SCA N per sonnel also could have attempted to contact Dr. DiSessa t o ascertain whether Dr. Gillett had rendered an opinion. As noted above, the affidavit stated "[m]edical records and 5 

### physicians concur that Anthony Thomason showed evidence o f 'intermittent smothering.'" Joint Appendix at 104. In the present appeal , defendants continue to maintain the accuracy of thi s statement, arguing:

[B]y the time the affidavit was prepared o n Dec ember 21, SCAN had the benefit of medica l opi nion of the Children At Risk team at th e Arkansas Children's Hospital. The doctors on th e team agreed that there was a reasonable basis t o be lieve that Anthony was being intermittentl y smothered and that the mother, Mrs. Thomason, wa s suffering from a psychological condition known a s Munchausen by Proxy. (JA 174-175) Thus, when the af fidavit was prepared, physicians (plural) di d concur. Brief for Appellees at 11-12. The citation provided by defendants to sup port the above-quoted language refers to the followin g deposition testimony of Andrea Goin (not any of the doctors): Q. Okay. Were there any doctors tha t agreed the mother was smothering the child?

A. If you're asking if they said in those words, "The mother is smothering the child" at that point , -11- either to Dr . DiSessa or to Dr. Collie to verify the source of th e document s. Moreover, without even reviewing the purported evidence o f 4 abuse in SCAN's possession, Wordlaw appeared at plaintiffs' doorstep and inaccurately asserted to Thomason that SCAN had "received a report [that] her child was being smothered and that she was the alleged perpetrator," Joint Appendix at 72 (deposition of Geneva Wordlaw). Finally, in seeking and obtaining an ex parte protective custody order from the state court, Wordlaw submitted a signed affidavit that arguably mischaracterized Dr

. DiSessa's letters and exaggerated the strength of defendants' evidence of abuse. 5

### no.

. . . .

Q. To your knowledge had any doctor ever tol d you or wrote on any piece of paper that you know o f or knew of at the time that the mother wa s smothering the child?

A. What I remember from the meeting was th e consensus in the meeti ng that the only way to know for sure, because ther e was not any medical reason that had been found for apnea, the only way to kno w for sure whether or not that was happening would b e for the child to be in a neutral setting.
Q. The d octors didn't know if it was happenin g or not, is that right? Based on what you remember from that meeting?

A. What I remember, I do not believe that anyone was willing to state b eyond a shadow of a doubt at that point that that was happening.
Q. Did any doctor at that meeting or any medical professional at that m eeting offer an opinion that Kelly Thomason was suffering from Munchausen's b y Proxy?
A. As I said previously, that was discussed and that possibility was a part of that conversation.
Q. Di d any doctor or medical professional a t that me eting say or offer any sort of medica l opinion that Kelly Thomason was suffering fro m Munchausen's by Proxy?

A. It was stated that that was a possibility. Joint Appendix at 174-75. Thus, ev en Goin did not state that the doctors found a "reasonable basis" to believe that Anthony was being intermi ttently smothered or that Kelly Thomason was afflicted with Munchausen by Proxy, much less that they "concurred" or "agreed" that such a reasonable basis existed. All she said was that the doctor s discussed these matters as possibilities.
-12- Nevertheless, while we recognize that plaintiffs are justified i n

### -13-

feeling that more background investigation could have been done and that Wordlaw handled the initial encounter with Thomason in an unprofessional
manner, we hold that plaintiffs' constitutional rights were not violated as a result of the removal of Anthony from

### Wordlaw would also be protected by qualified immunity fro m 6 

### person al liability for damages arising out of her actions i n removing Anthony from plaintiffs' home. In Myers v. Morris , 81 0 F.2d 1437, 1463 (8th Cir.), cert. denied , 484 U.S. 828 (1987 ), this court held that a prosecutor a nd sheriff's deputies were protected by qualified immunity for the removal of children from their homes upon receiving evidence of potential sexual abuse by their p arents. In so holding, this court observed that there was no lega l prec edent suggesting that "acting upon a reasonable belief tha t children are endangered by continued presence in their homes must be deferred until the completion of additional investigation ." Id.
-14- their home. In Manzano , we observed that, in th e child abuse context, the abstra ct substantive due process right to familial integrity must b e continually subjected to "a balancing test which weighs the interest of th e pa rent against the interests of the child." 60 F.3d at 510. In th e present case, the constitutional inquiry require s weighing the interest of plaintiffs not to have the state physically remove their eight-month-old child from their home against the state's interests in immediately removin g the ch ild from a potentially life-threatening abusive home setting fo r medical evaluation and protection. We recognize that the parents' private interest in this type of acutely sensitive situation is "of the highes t order. " Doe v. Hennepin County , 858 F.2d 1325, 1330 (8th Cir. 1988 ) (Henl ey, J., concurring), cert. denied , 490 U.S. 1108 (1989). We als o recog nize the vital importance of curbing overzealous suspicion an d interv ention on the part of health care professionals and governmen t officials, particular ly where such overzealousness may have the effect of discour aging parents or caretakers from communicating with doctors o r seeking appropriate medical attention for children with real or potentiall y life-threatening conditions. The consequences of such a chilling effect could be devastating. Our holding today is ther efore limited to the facts of this case. Where a treating physician has cl early expressed his or her reasonable suspicion that life-threatening abuse is occurring in the home, the inte rest of the child (as shared by the state as parens patriæ) i n being removed from that home setting to a safe and neutral environmen t outweighs the parents ' private interest in familial integrity as a matter of law. Because no constitutional violation occ urred in the present case, defendants Wordlaw and SCAN cannot be held liable under § 1983 for th e removal of Anthony from plaintiffs' home. 6

### -15- Finally, Wordlaw and SCAN are absolutely immune from liability for their participation in the ex parte proceedings in state court that led to the award of temporary protective custody of Ant hony to the state. To the extent Wordlaw and SC AN are sued for initiating the judicial proceedings, Wordlaw's role was functionally comparable to that of a prosecutor. See Myers v. Morris , 810 F.2d 1437, 1452 (8th Cir.) ( Myers ) (prosecutor i s absolut ely immune for initiating neglect proceedings in family court ) (citing Mazor v. Shel ton , 637 F. Supp. 330, 334-35 (N.D. Cal. 1986) (role of socia l worker in filing proceedings to protect abused minors i s functionally comparable to prosecutor's initiation of the judicial process , thus warranting absolute immunity)), cert denied , 484 U.S. 828 (1987). To the extent Wordlaw and SCAN are sued because Wordlaw made arguably false sta tements in her affidavit in her role as a witness before the stat e court, the doctrine of absolute witness immunity applies. See Manzano , 60 F.3d at 512 (absolute immunity applied to state officials who testified in

su pport of family court's temporary protective order restricting th e plaintiff's unsupervised visitation with his dau ghter); Myers , 810 F.2d at 1466 (absolute immunity extends to witness's act s of providing reports and recommendations to family court); cf. Briscoe v. LaHue , 460 U.S. 325, 342- 46 (1983) (absolute witness immunity rests on fu nctional category and thus bars § 1983 claim alleging that police officer's perjured testimon y resulted in a constitutional deprivation).

### -16- Conclusion

For the foregoing reasons, the judgment of the district court i s affirmed.

A true copy.
Attest:
CLERK , U.S. COURT OF APPEALS, EIGHTH CIRCUIT

.