Beltran

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LORI BELTRAN; ROBERT BELTRAN; 

COBY BELTRAN, by and through his Guardian Ad Litem Lori Beltran, Plaintiffs-Appellants, v. SANTA CLARA COUNTY; MELISSA No. 05-16976 SUAREZ, individually and as an employee of the County of Santa  D.C. No.

CV-03-03767-RMW

Clara; JENNIFER HUBBS,

OPINION

individually and as an employee of the County of Santa Clara; EMILY TJHIN, individually and as an employee of the County of Santa Clara, Defendants-Appellees.  Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding

Argued and Submitted April 17, 2007—San Francisco, California

Filed June 25, 2007

Before: Warren J. Ferguson, Stephen Reinhardt, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reinhardt; Concurrence by Judge Reinhardt; Partial Concurrence and Partial Dissent by Judge Ferguson

7565 7568 BELTRAN v. SANTA CLARA COUNTY

COUNSEL

Robert R. Powell, Law Offices of Robert R. Powell, San Jose, California, for the plaintiffs-appellants.

Ann Miller Ravel and Melissa Kiniyalocts, Office…

Opinion by Judge REINHARDT; Concurrence by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge FERGUSON.

This case raises the question whether social workers are entitled to absolute immunity for verified statements in petitions filed with a dependency court. We hold that they are, both with respect to depen *1099 dency petitions and custody petitions, as well as the statement of facts submitted therewith.

FACTUAL AND PROCEDURAL BACKGROUND

Since his premature birth on June 5, 1998, Coby Beltran (“Coby”) has suffered from numerous medical maladies, including an undiagnosed and unsuccessfully treated bowel motility problem. Coby’s gastrointestinal problems led to occasions where his Body Mass Index fell below the fifth percentile, putting him at risk of significant long-term damage. During the first four years of Coby’s life, Child Protective Services Department of the Social Services Agency of Santa Clara County (“the Department”) received four separate referrals based on claims that Coby’s mother suffered from Munchausen Syndrome by Proxy, a condition in which a parent (generally the mother) takes affirmative steps to keep her child ill in order to gain medical…

dissenting in part and specially concurring in part:

Social worker Tjhin personally verified the factual allegations contained in the dependency petition; in so doing, she functioned as the sole complaining witness. See Kalina v. Fletcher, 522 U.S. 118, 130-31 , 118 S.Ct. 502 , 139 L.Ed.2d 471 (1997) (ruling that certifying truth of facts constitutes functioning as complaining witness). The parents of Coby Beltran (“Coby”) assert that, in the verification to which Tjhin swore under penalty of perjury, she made fraudulent allegations concerning the care the Beltrans gave their son. The Supreme Court has consistently denied absolute immunity to complaining witnesses making false allegations. See, e.g., id. at 127 n. 14, 118 S.Ct. 502 (quoting Malley v. Briggs, 475 U.S. 335, 340-41 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986)). The majority’s decision to grant immunity for this alleged fraud expands the doctrine of absolute immunity “beyond those functions historically recognized as absolutely immune at common law.” Miller v. Gammie, 335 F.3d *1104 889, 897 (9th Cir.2003) (en banc). I respectfully dissent.

I.

On August 12, 2002, social worker Emily Tjhin (“Tjhin”), an employee of the…

specially concurring, joined by

Doe v. Lebbos is binding law in this circuit. We are required to follow it, and we do so. However, I write this separate concurrence to express my serious doubts as to the correctness of its holding that social workers are entitled to absolute immunity for investigating dependency petitions.

We are required to evaluate absolute immunity claims by analogy to the functions to which absolute immunity applied at the time that 42 U.S.C. § 1983 was enacted. Kalina v. Fletcher, 522 U.S. 118, 123-24 , 118 S.Ct. 502 , 139 L.Ed.2d 471 (1997). “[Bjeyond those functions historically recognized as absolutely immune at common law, qualified and only qualified immunity exists.” Miller v. Gammie, 335 F.3d 889, 897 (9th Cir.2003) (en banc). For this reason, the Supreme Court has held that a prosecutor is not entitled to absolute immunity for investigating or certifying a statement of facts in support of an arrest warrant. Kalina, 522 U.S. at 129 , 118 S.Ct. 502 . The court explained that “[wjhen a prosecutor performs the investigative functions normally performed by a detective or police officer, it is neither appropriate nor justifiable that, for the same act,…