In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2701

MARK SILIVEN, et al.,

Plaintiffs-Appellants,

v.

INDIANA DEPARTMENT OF CHILD SERVICES, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:08-cv-1192-WTL-DML—William T. Lawrence, Judge.

ARGUED JANUARY 21, 2011—DECIDED MARCH 16, 2011

Before FLAUM, MANION, and EVANS, Circuit Judges.

FLAUM, Circuit Judge. In January 2008, Teresa Siliven

discovered bruises on her then-two-year-old son C.S.’s

arm a few hours after picking him up from daycare at

the home of Ashley Woods. Teresa’s husband Mark told

her that he did not know how C.S. had gotten the

bruises. The Silivens filed a child abuse report with the

police. The case was referred to the Indiana Department

of Child Services (“DCS”), and assigned to case manager
2 No. 10-2701

Amber Luedike. Towards the end of an eight-day investigation into both Woods and the Silivens, Luedike discovered a DCS file indicating that Mark had been

accused of child abuse by his then-fifteen-year-old stepdaughter in 2003. The day after Luedike discovered the

report, she and Terry Suttle, the director of the Wayne

County DCS, decided to remove C.S. from the Siliven

home. They did not obtain a court order as it was

Friday afternoon, and they did not believe there was

adequate time to do so. Instead of putting C.S. in foster

care, Luedike and Suttle ultimately arranged to have

Teresa take C.S. to his grandmother’s house in Ohio. A

detention hearing was held the following Monday, after

which the court concluded that no probable cause

existed at that time to believe that C.S.’s physical

health was seriously endangered. The Silivens were

permitted to take C.S. home. Soon thereafter, the investigation was closed.

The Silivens filed suit against Luedike, Suttle, and the

Indiana DCS, alleging constitutional and state law violations. The district court concluded that Suttle and

Luedike (the only defendants at issue on appeal) were

entitled to summary judgment on the federal claims on

qualified immunity grounds, finding that the constitutional rights allegedly violated were not clearly established in January 2008. For the following reasons, we

affirm the judgment of the district court.

I. Background

The Silivens began taking their son C.S. to a daycare

run by Ashley Woods in early 2007. By January 2008,
No. 10-2701 3

Woods and her husband had begun having some

difficulty with C.S., and C.S. would cry when Teresa

dropped him off in the morning. However, the Silivens

had not seriously considered finding another daycare.

When Teresa picked up C.S. from daycare on January 16,

2008, Woods told her that C.S. had acted up in the afternoon and had to be put in “time out.” While Teresa was

undressing C.S. that night she noticed bruises on his

arm. C.S. said that the bruises did not hurt, and that he

did not know how he had gotten them. The Silivens took

C.S. to the Richmond Police Department (“RPD”)

that night and filed a child abuse report. 

The report of abuse was referred to the DCS. On

January 18, 2008, DCS case manager Luedike visited

the Siliven home. At the time, Mark was at home with

C.S. Mark told Luedike that he was not currently

working due to a disability, and that he would be caring

for C.S. at home until the matter was settled. Mark explained the incident to Luedike, who, after observing C.S.,

noted that the child appeared happy and healthy. Later

that day, Luedike called Teresa, who also explained

the incident. Luedike asked Teresa to take C.S. to the

hospital to have the bruises examined. That evening,

the Silivens took C.S. to the emergency room at Reid

Hospital.

Luedike obtained a copy of the emergency room

doctor’s medical report on January 23. The report

did not reach any conclusion as to the cause of the

bruises. Also on that day, Luedike e-mailed photographs of C.S.’s bruises taken by the police and the Reid
4 No. 10-2701

Hospital medical report to Dr. Toni Laskey at the child

abuse clinic at Riley Hospital in Indianapolis. The following day, Dr. Laskey responded, opining that the

bruises were consistent with an adult forcibly grabbing

C.S.’s arm.

Luedike and the police officer assigned to the

case, Detective Michael Britt, interviewed Woods on

January 23. Woods told them that she did not grab

C.S.’s arm, and did not know how he had gotten the

bruises. Woods had no criminal history or complaints

against her previously. During the interview, Woods

provided Luedike with the names and phone numbers

of the parents of other children in her daycare. On

January 25, Luedike spoke with one of those

parents, who stated that Woods took good care of her

child and that she had never had any problems with

Woods in the nine years that she had known her.

On January 24, Luedike obtained a copy of a 2003

DCS file describing a “substantiated” report of child

abuse involving Mark and his then-fifteen-year-old stepdaughter. The DCS uses the term “substantiated” in

reference to a child abuse report to mean that the investigation uncovered facts that “provide a preponderance

of evidence that child abuse . . . has occurred.” Ind. Code

§ 31-9-2-123. That file contained pictures showing significant bruising to the girl’s face, neck, and back.

On January 24 or 25, Luedike contacted Teresa at work

to ask whether she and Mark would be willing to

take polygraph tests. Teresa agreed to submit to a polygraph, and said she would ask Mark if he would as
No. 10-2701 5

well. Later that day, Mark left a message for Luedike

in which he agreed to a polygraph, on the condition

that Woods and her husband also be tested. According

to Luedike, in the message, Mark sounded “very angry

and almost threatening.”

That afternoon, Luedike met with Suttle, Helen Shultz

(Luedike’s supervisor), and Aaron Lawson (the staff

attorney for the Wayne County DCS) to discuss her

investigation. Luedike explained that C.S. had (likely)

been injured by an adult and that, because the parents

had not been ruled out as having caused the injuries, she

could not say that C.S. was safe at home. Luedike recommended that C.S. be removed from the home, and the

others agreed. Suttle determined that there was not

enough time to obtain a court order before the weekend,

and authorized Luedike to remove C.S. from the home

pursuant to an emergency detention.

Luedike contacted the Wayne County Sheriff’s Department, and three or four Wayne County sheriffs’ deputies

accompanied her to the Silivens’ home. Mark was

home with C.S. Luedike told Mark that DCS was going

to take C.S. into protective custody. Mark refused to

let Luedike into the home or to allow her to take C.S.

He called Teresa, who was on her way home from

work. Eventually, Teresa spoke with Suttle, who agreed

to allow Teresa to take C.S. to his grandmother’s house

in Ohio in lieu of putting C.S. in foster care. Luedike

wrote up a safety plan detailing the arrangement, which

the Silivens signed. Teresa and C.S. then drove to

Ohio, where they stayed for the weekend.
6 No. 10-2701

On Monday, January 28, 2008, a detention hearing was

held, after which the judge concluded that no probable

cause existed at that time to believe that C.S.’s physical

health was seriously endangered, as the applicable

statute requires. See Ind. Code §§ 31-34-1-2(a), 31-34-2-

3(a)(1) (authorizing caseworkers to take children into

custody where there is probable cause to believe the

child’s physical or mental condition will be seriously

impaired or seriously endangered if the child is not

immediately taken into custody). Therefore, the Silivens

were permitted to take C.S. home with them. The investigation was closed on March 18, 2008, and no charges

were brought.

The Silivens filed suit against Luedike, Suttle, and the

Indiana DCS in Indiana state court, alleging constitutional and state law violations. After defendants

removed the action to federal court, the district court

granted summary judgment in favor of defendants as

to the federal claims. The court also denied the Silivens’

cross-motion for summary judgment. With respect to the

Indiana DCS, the court granted summary judgment on

the ground that the DCS is not a “person” as defined by

§ 1983, such that the Silivens’ claims failed as a matter

of law. The Silivens do not appeal that ruling. The

court found that Suttle and Luedike were entitled to

summary judgment on the federal claims on qualified

immunity grounds. The district court elected to bypass

the first prong of the two-part qualified immunity

analysis set forth in Saucier v. Katz, 533 U.S. 194 (2001),

as is permissible under Pearson v. Callahan, 555 U.S. 223

(2009). Therefore, the court did not decide whether de-
No. 10-2701 7

fendants’ conduct violated the Silivens’ constitutional

rights. Instead, the court went directly to the second

prong and concluded that the constitutional rights allegedly violated were not “clearly established” in

January 2008. Finally, the district court declined to

exercise supplemental jurisdiction over the Silivens’

remaining state law claims, which it remanded to state

court. Subsequently, the Silivens filed a motion to alter

or amend judgment; the district court denied that motion. This timely appeal followed.

II. Discussion

We review a district court’s decision on cross-motions

for summary judgment de novo, construing all inferences

in favor of the party against whom the motion under

consideration is made. Tegtmeier v. Midwest Operating

Eng’rs Pension Trust Fund, 390 F.3d 1040, 1045 (7th Cir.

2004). Summary judgment is proper when there is no

genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255

(1986). We similarly review a district court’s qualified

immunity determination de novo. Sparing v. Village of

Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001).

The doctrine of qualified immunity insulates government actors from liability for civil damages when their

conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have been aware. Pearson v. Callahan, 555 U.S.

223, 129 S.Ct. 808, 815 (2009). In other words, the
8 No. 10-2701

doctrine protects public officials “who act in ways they

reasonably believe to be lawful,” and thus leaves “ample

room for mistaken judgments.” Wheeler v. Lawson, 539

F.3d 629, 639 (7th Cir. 2008) (citations omitted).

Qualified immunity claims present two questions:

(1) whether the plaintiff’s allegations make out a deprivation of a constitutional right, and (2) whether the

right at issue was clearly established at the time of the

defendant’s alleged misconduct. Pearson, 129 S.Ct. at 815.

Courts are free “to exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of

the circumstances in the particular case at hand.” Id. at

818. Unlike the district court, we begin with the first

prong, which we find to be dispositive as to each of the

Silivens’ constitutional claims. See Williams v. Fleming,

597 F.3d 820, 823 (7th Cir.2010) (we may affirm the judgment of the district court on any ground supported in

the record).

A. Fourth Amendment Claim

The Silivens first claim that defendants violated C.S.’s

Fourth Amendment right to be free from unreasonable

seizures when they compelled Teresa to remove the boy

from his home. With respect to Fourth Amendment

claims asserted “[i]n the context of removing a child

from his home and family,” we have held that “a seizure

is reasonable if it is pursuant to a court order, if it is

supported by probable cause, or if it is justified by

exigent circumstances, meaning that state officers
No. 10-2701 9

‘have reason to believe that life or limb is in immediate

jeopardy.’ ” Brokaw v. Mercer County, 235 F.3d 1000, 1010

(7th Cir. 2000) (citations omitted).

As an initial matter, we must address whether C.S.

was seized for purposes of the Fourth Amendment.

Generally, a person has been seized for Fourth Amendment purposes “only if, in view of all of the circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave.” Bentz

v. City of Kendallville, 577 F.3d 776, 779 (7th Cir. 2009)

(citations omitted). “Determining whether a seizure

has occurred is a highly fact-bound inquiry.” United States

v. Tyler, 512 F.3d 405, 410 (7th Cir. 2008). Among the

relevant factors to be considered is “coercive conduct on

the part of the police that indicates cooperation is required.” Id.

Defendants contend that no seizure took place because

C.S. was not placed in foster care. Rather, defendants

permitted his mother to take him to his grandmother’s

house and to remain there with him. That C.S. was

never out of his mother’s company certainly undermines the Fourth Amendment claim. That said, there is

evidence indicating that defendants coerced Teresa

into taking C.S. to Ohio by threatening to place him

in foster care if she did not cooperate. In the context

of Fourth Amendment seizures involving official

coercion, we have noted that “[a] threat becomes more

coercive as the cost of non-compliance increases relative

to the cost of compliance.” Kernats v. O’Sullivan, 35

F.3d 1171, 1179 (7th Cir. 1994). Here, it is difficult to
10 No. 10-2701

The Silivens argue that, after our decision in Michael C. v. 1

Gresbach, 526 F.3d 1008 (7th Cir. 2008), either a court order or

exigent circumstances are required, and that probable cause

is insufficient. We disagree. In Michael C., we stated that “[t]he

requirement that a child welfare worker obtain the equivalent

of a warrant before conducting a search (absent exigent circumstances) can effectively protect children, without having

to excuse workers from obtaining advance judicial approval

of searches and seizures. . . . Because Gresbach conducted a

search of each child on private property without consent, a

warrant or probable cause, or exigent circumstances, Ian and

(continued...)

overstate the cost of non-compliance—losing custody of

one’s child, even temporarily. But we need not decide

whether C.S. was seized within the meaning of the

Fourth Amendment. During the January 28 detention

hearing, both the DCS and the presiding judge assumed

that the events of January 25 constituted an emergency

detention. Specifically, Luedike stated at the hearing

that C.S. was “detained Friday, January 2[5]th, approximately five p.m.,” and the judge noted that the hearing

was being held within 48 hours of the removal as

required by Indiana law. We too will proceed as if

there was an emergency detention, which constitutes a

seizure for purposes of the Fourth Amendment.

Assuming there was a seizure, the question is whether

defendants acted reasonably. Because defendants acted

without a court order, the removal of C.S. can be considered reasonable only if defendants had probable

cause or if exigent circumstances existed. We conclude

1
No. 10-2701 11

(...continued) 1

Alexis’s Fourth Amendment rights to be free from unreasonable searches were violated.” 526 F.3d at 1016. While we

omitted mention of probable cause in the first quoted sentence, we included it in the second. We cannot agree that

the initial omission implicitly overturned part of the holding

in Brokaw.

that probable cause existed to remove C.S. from Mark’s

custody, such that there was no Fourth Amendment

violation.

The Indiana Code provides that a “child may be

taken into custody by a . . . caseworker acting with probable cause to believe the child is a child in need of

services if . . . it appears that the child’s physical or

mental condition will be seriously impaired or seriously

endangered if the child is not immediately taken into

custody.” Ind. Code § 31-34-2-3(a)(1). A child is considered to be “in need of services” if “the child’s

physical or mental health is seriously endangered due

to injury by the act or omission of the child’s parent,

guardian, or custodian.” Id. § 31-34-1-2(a). The pertinent

inquiry, then, is whether defendants had probable

cause to believe that C.S.’s physical health would be

seriously endangered if he was not immediately

removed from his father’s custody.

The probable cause analysis is an objective one. See

Whren v. United States, 517 U.S. 806, 813 (1996). Our focus

is on the facts and circumstances known to defendants

at the time they decided to remove C.S., and whether a
12 No. 10-2701

prudent caseworker (meaning one of reasonable caution) could have believed that C.S. faced an immediate

threat of abuse based on those facts. Wagner v. Washington

County, 493 F.3d 833, 836 (7th Cir. 2007) (describing

probable cause in the context of an arrest). The defendants’ “subjective beliefs are largely irrelevant to the

probable cause inquiry.” United States v. Garcia-Garcia,

2011 WL 206153, at *3 (7th Cir. Jan. 25, 2011).

Here, defendants knew that there was physical

evidence of abuse (corroborated by Dr. Laskey’s opinion),

that Mark had access to C.S. during the timeframe in

which the injuries might have occurred, and that there

was a prior substantiated report of child abuse against

Mark. We conclude that those facts were sufficient to

warrant a prudent caseworker in believing that C.S. was

in danger. As the Silivens note, the evidence was far

from conclusive as to how C.S. was injured, and

whether Mark was involved. But, while probable cause

requires more than bare suspicion, it does not demand

probability, or “even a showing that the officer’s belief

is more likely true than false.” Woods v. City of Chicago,

234 F.3d 979, 996 (7th Cir. 2000) (internal citations omitted). Moreover, probable cause “need not be based on

evidence sufficient to support a conviction.” Id. (citation

omitted).

We note that Luedike stated in her deposition that

she did not believe C.S. was in imminent danger. Rather,

she simply “couldn’t say that he was completely safe.”

Because probable cause is judged by an objective standard, Luedike’s “subjective belief as to the legal basis
No. 10-2701 13

for [the detention] is irrelevant.” Potts v. City of Lafayette,

Ind., 121 F.3d 1106, 1113 (7th Cir. 1997). A reasonable

caseworker in Luedike’s position could have concluded

that C.S. was in imminent danger. Therefore, we conclude that defendants’ actions were objectively reasonable, and did not violate the Fourth Amendment.

Our determination of reasonableness is influenced, in

large part, by the fact that C.S. remained with his mother

at all relevant times. Reasonableness under the Fourth

Amendment is “measured in light of the totality of the

circumstances and determined by balancing the degree

to which a challenged action intrudes on an individual’s

privacy and the degree to which the action promotes

a legitimate government interest.” Green v. Butler, 420

F.3d 689, 694 (7th Cir. 2005); see also Bell v. Wolfish, 441

U.S. 520, 559 (1979) (in conducting the Fourth Amendment balancing test, “[c]ourts must consider the scope

of the particular intrusion . . .”). Here, defendants opted

for a less intrusive interference with C.S.’s rights by

permitting him to remain with his mother, instead

of taking him into state custody. We do not intend to

characterize the degree of interference as minimal, far

from it. But we believe the state’s legitimate interest

in protecting children warranted that lesser degree of intrusion in this case.

B. Substantive Due Process Claim

The Silivens also present a substantive due process

claim. As we noted in Brokaw, “[t]he Supreme Court has

long recognized as a component of substantive due
14 No. 10-2701

process the right to familial relations.” 235 F.3d at 1018.

That fundamental right encompasses “the right of a

man and woman to marry, and to bear and raise their

children,” as well as “the right of a child to be raised and

nurtured by his parents.” Doe v. Heck, 327 F.3d 492, 517-18

(7th Cir. 2003) (citations omitted). The constitutional

right to familial integrity is not absolute; rather, it must

be balanced against the state’s interest in protecting

children from abuse. Brokaw, 235 F.3d at 1019. To

maintain the appropriate balance, we require that caseworkers have “evidence to support a ‘reasonable suspicion’ of past or imminent abuse” before they may take

a child into protective custody. Terry v. Richardson, 346

F.3d 781, 787 (7th Cir. 2003). “A reasonable suspicion

requires more than a hunch but less than probable

cause.” United States v. Oglesby, 597 F.3d 891, 894 (7th Cir.

2010) (citations and internal quotation marks omitted).

Here, defendants’ suspicion of past and possible imminent abuse by Mark was based on definite and

articulable evidence—namely, Dr. Laskey’s opinion that

C.S.’s injuries were caused by an adult using enough

force to injure him, and the record of a past accusation

of abuse against Mark. Above, we concluded that that

evidence was sufficient to establish probable cause. It

follows that it must also be sufficient to satisfy the

less demanding reasonable suspicion standard. Therefore, we can find no substantive due process violation.

Again, our analysis is influenced by the fact that C.S.

remained with his mother. In light of the facts known

to defendants, the use of state action to protect C.S.
No. 10-2701 15

from his father was reasonable. Therefore, defendants’

decision to temporarily remove C.S. from his father’s

custody was warranted by the state’s interest in

protecting children from abuse. Whether the state’s

interest would have justified a greater intrusion on the

Silivens’ right to familial integrity, such as placing C.S.

in foster care, is far from clear. But we need not

take that up at this time. Here, it was reasonable for

defendants to suspect possible abuse by Mark, and defendants’ intrusion on the Silivens’ constitutional right

to familial integrity was no greater than was necessary

to address that danger. See Wallis v. Spencer, 202 F.3d

1126, 1140-41 (9th Cir. 2000) (in analyzing due process

claim arising out of child abuse investigation, noting

that reasonableness of “intrusion on a child’s protected

privacy and security interests” depends on whether

intrusion is “sufficiently . . . ‘circumscribed by the exigency

that justified’ the City’s intrusion into the children’s

lives”) (citation omitted).

C. Procedural Due Process Claim

Finally, the Silivens allege a procedural due process

claim, asserting that the removal of C.S. from the home

without a hearing violated the due process clause of the

Fourteenth Amendment. In this circuit, due process

requires, at a minimum, that governmental officials “not

remove a child from his home without an investigation

and pre-deprivation hearing resulting in a court order of

removal, absent exigent circumstances.” Brokaw, 235

F.3d at 1020.
16 No. 10-2701

In the context of the Fourth Amendment, the question

whether exigent circumstances justified a warrantless

search is an objective inquiry. See Brigham City, Utah v.

Stuart, 547 U.S. 398 (2006); United States v. Richardson,

208 F.3d 626, 629 (7th Cir. 2000). With respect to

warrantless searches, we have held that “the government must establish that the circumstances as they appeared at the moment of entry would lead a reasonable,

experienced law enforcement officer to believe that someone inside the house, apartment, or hotel room required immediate assistance.” Richardson, 208 F.3d at

629 (citation omitted). In the context of removing a

child from his home, defendants must show that, in

light of the facts and circumstances known to defendants

at the time of the removal decision, reasonable, experienced caseworkers would have believed that the child

was in immediate physical danger in the home. As discussed above, we find that a reasonable caseworker

would have drawn that conclusion in this case based on

the physical evidence of abuse, combined with the prior

accusation of abuse against Mark. Moreover, the scope

of the removal was limited to the exigency that justified

it, in that C.S. was removed from his father’s custody only.

III. Conclusion

We are not unsympathetic to the Silivens. One can

only imagine their frustration when, after reporting

potential abuse of their child by a third party, the investigation came to focus on them. However, for the reasons

stated above, we conclude that the particular inter-
No. 10-2701 17

ference with the Silivens’ constitutional rights that occurred here was reasonable in view of the facts known

by defendants and the state’s strong interest in protecting children from abuse. For the foregoing reasons,

we AFFIRM.

3-16-11