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Tanner v. Saldana

United States District Court, D. Oregon, Eugene Division

June 11, 2019

DANIEL TANNER; R. T. a minor; E. T. a minor; and A.T. a minor, Plaintiffs,



         Plaintiffs Daniel Tanner and his minor children R.T., E.T., and A.T. bring this action against defendants Claudia Saldana and Jennifer Perkins under 42 U.S.C. § 1983. Plaintiffs allege that Ms. Saldana and Ms. Perkins, Oregon Department of Human Services ("DHS") employees, violated their constitutional rights to familial integrity. Defendants now move fr summary judgment. The Court finds this motion suitable for resolution without oral argument and, fr the reasons that follow, defendants' Motion for Summary Judgment (doc. 18) is GRANTED.


         Mr. Tanner and his former spouse Adele Tanner have three children. At the time of the incidents giving rise to this case, Mr. Tanner and Mrs. Tanner were separated and involved in divorce and custody proceedings.

         The Tanners shared custody of the children during their separation. In late October 2015, Mr. Tanner became concerned because the children were groggier than normal in the morning when he picked them up from Mrs. Tanner. Mr. Tanner also knew the children went to sleep much earlier than usual while staying with Mrs. Tanner. Mr. Tanner had hair from each of the children drug tested.

         On November 20, 2015, Mr. Tanner told his divorce attorney that the children had tested positive for valium, cocaine, and GHB "from April 31, 2015 through October 31, 2015." Compl. ¶ 13-14. His attorney relayed that information to DHS. During the call, Mr. Tanner's attorney advised DHS that she was about to file an immediate danger petition for temporary emergency custody of the children on Mr. Tanner's behalf with the state circuit court.

         That same day, defendant Ms. Saldana, the DHS caseworker assigned to the case, contacted Mr. Tanner asking him to meet her at Mrs. Tanner's house where she planned to search the home and "question [Mrs. Tanner] with the Sheriffs office." Daniel Tanner Corrected Decl. ¶ 8. When Mr. Tanner arrived, Mrs. Tanner was not home, so Ms. Saldana and the Sheriffs Deputy left without searching. Later that night, Ms. Saldana met with Mr. and Mrs. Tanner. At the meeting, Mr. Tanner signed a DHS Protective Action form allowing the children to be placed at the home of one of Mrs. Tanner's friends. Initially, Mr. Tanner did not support that placement, but he ultimately agreed when Ms. Saldana explained that the alternative was to place them with strangers. The children were removed from Mrs. Tanner's care that night.

         On November 23, 2015, both parents appeared with their attorneys in Lane County Circuit Court for a hearing before Judge Mustafa Kasubhai on Mr. Tanner's petition for temporary custody of the children. Immediate danger petitions filed before entry of a judgment in a divorce proceeding are governed by ORS 107.097, [1] which provides, in relevant part:

         (3)(a) A court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

(A) The party requesting an order is present in court and presents an affidavit or a declaration under penalty of perjury, alleging that the child is in immediate danger; and
(B) The court finds, based on the facts presented in the party's testimony, the party's affidavit or declaration under penalty of perjury and the testimony of the other party, if the other party is present, that the child is in immediate danger.

         Further, if the court enters a temporary order, the party against whom the order is entered may request a hearing to contest it, which the court "shall hold ... no later than 21 days after receipt of the request." ORS 107.097(4).

         At the hearing, Mr. Tanner provided the lab results and a declaration from an expert forensic drug analyst who reviewed the test results. Mr. Tanner also provided his own declaration and testimony subject to cross examination. Both attorneys informed the court that DHS was investigating Mr. Tanner's attorney's report. Mrs. Tanner's request to testify was denied.

         The state court found that the children were in immediate danger and issued an order granting temporary sole custody to Mr. Tanner. The court explained that "[c]ustody is immediate" but clarified "with respect to whatever DHS ends up trying to do" that "if [DHS] ends up filing a petition, they certainly can, and then you will go through those steps to address where the children go and when." Dugan Decl. Ex. A at 31-32.

         The order also provided that Mrs. Tanner would have supervised parenting time with the children until further order of the court. Mrs. Tanner requested a contested hearing, which the Court set for December 8 and 9, 2015. Mr. Tanner sent a copy of the order to DHS and picked up the children from Mrs. Tanner's friends' house.

         On November 24, 2015, DHS filed petitions for shelter orders with the Lane County Circuit Court's juvenile division. The petitions sought DHS custody of the children alleging that the children's welfare was endangered due to their exposure to controlled substances; that both parents' substance abuse and mental health conditions interfered with their ability to safely parent the children; and that both parents lacked the parenting skills and knowledge to safely meet the children's needs. The petitions averred, incorrectly, that "[n]o other custody litigation involving the child[ren] is pending in any other court in this or any other state." White Decl. Exs. 3-5. Ms. Perkins, a DHS Social Service Specialist, signed the petitions.

         The shelter hearing was held the next day, November 25, 2015, before Lane County Circuit Court Judge Valerie Love. Mr. and Mrs. Tanner, DHS, and the children were each separately represented by attorneys. The parties discussed Judge Kasubhai's temporary emergency custody order and its effect. DHS also informed the court that the results from its own tests of the children's hair follicles were not back yet. Judge Love urged the parties to come to an agreement about where the children would stay over the upcoming Thanksgiving holiday, noting "I told you folks earlier, I was hoping you could figure something out because of the holiday, but otherwise I was continuing the hearing and DHS has removal authority" under ORS 419B.150.[2] White Decl. Ex. 2 at 12.

         At the end of the hearing, Judge Love did not rule on the petitions, and instead continued the hearing until December 8, when it could be heard by Judge Kasubhai as part of the consolidated custody hearing. Judge Love stated "DHS has the authority to remove and decide where they're going to be [placed]" and reiterated "I'm not entering an order because I want to afford the parties a chance to present their case, but I think at this stage, DHS has the authority to do what they've asked to do." Id. at 14.

         That day, DHS took protective custody of the children and placed them back in Mrs. Tanner's friends' care.[3] DHS also signed an Extended Visitation Plan allowing the children extended visits with each parent. Rodello Decl. ¶¶ 3-4, Ex. 1 at 1. On December 3, the children were placed separately into other non-relative foster homes. Daniel Tanner Corrected Decl. ¶ 30.

         From December 8 through 11, 2015, Judge Kasubhai held a hearing on the consolidated immediate danger and shelter care matters. On December 11, 2015, the court denied DHS's petition for a shelter order and ordered that the children be placed with their paternal grandparents pending his ruling on the immediate danger petition. On December 15, 2015, the court ordered that the children be returned to Mr. Tanner's custody.

         LEGAL ...

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