United States District Court, D. Oregon, Eugene Division
DANIEL TANNER; R. T. a minor; E. T. a minor; and A.T. a minor, Plaintiffs,
CLAUDIA SALDANA and JENNIFER LANG PERKINS, Defendants.
OPINION AND ORDER
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.
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.
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.
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.
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.
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,  which provides, in relevant part:
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.
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).
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.
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.
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.
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
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. White Decl. Ex. 2
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.
day, DHS took protective custody of the children and placed
them back in Mrs. Tanner's friends'
care. 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.
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