Doe

Opinion by Judge PAEZ; Dissent by Judge KLEINFELD.

OPINION

George and Lacey Doe (the “Does”) appeal from the district court’s summary judgment on their 42 U.S.C. § 1983 claims in favor of Lisvet Carrillo-Herrera (“Herrera”), a county social worker, and the County of Santa Clara, the Santa Clara County Department of Social Services, and Santa Clara County Protective Services (together the “County”). The Does contend that Herrera and the County violated their constitutional rights by removing Lacey, a four-year-old girl, from George’s custody, inadequately investigating allegations that George abused and neglected Lacey, fabricating evidence in support of the dependency petitions they filed in dependency court, and referring Lacey for a *823 sexual abuse examination without parental consent or a court order. The district court granted absolute immunity to Herrera, reasoning that her actions were part of the initiation and pursuit of child dependency proceedings for which social workers are entitled to absolute immunity. The court also concluded that there was no basis for Monell liability against the County-

We agree with the district court that the Does’ Monell claim against the…

dissenting in part:

I concur in all of the majority opinion except part 1(B)(2), qualified immunity for referring the child for an investigatory examination of her private parts. From that part, I respectfully dissent.

I concur in the majority’s conclusion that “on the Does’ version of the facts, Herrera violated the Does’ constitutional rights to family association and procedural due process.” 1 This is so, we are agreed, because a social worker needs parental consent or a court order to obtain an investigative medical examination of the child, in the absence of some urgent medical problem requiring immediate attention or a reasonable concern that material physical evidence may otherwise dissipate. 2 The majority bases qualified immunity on its erroneous conclusion that “Herrera reasonably could have believed that she had the requisite court order authorizing the examination.”

That conclusion runs contrary to what Herrera herself said. Herrera testified in her March 1, 2002 deposition that she “did not” obtain a court order before sending the little girl for an examination of her private parts:

Herrera prepared written recommendations for other orders, and the judge at the…