by Brian Shilhavy
Editor, Health Impact News
A new bill submitted in the Texas state Legislature by state Representative Gene Wu of Houston would require Child Protective Services (CPS) to increase accountability and prevent social workers from altering case records.
What does this say about the current moral status of social workers in CPS when a law has to be passed to stop them from lying and falsifying records?
One of the cases that was the motivation for this Texas bill is a case from 2018 that we reported here at Health Impact News where a family court judge ordered CPS to immediately return two children, a 5-month-old baby boy and 2-year-old little girl, to their family and have no more contact with them since they were removed from their home without a warrant and under false allegations. See:
In Unprecedented Move Texas Judge Orders CPS to Have No Contact with 2 Children Removed without Warrant – Social Worker Pleads 5th in Court
Later, Judge Mike Schneider took the unprecedented action to sanction CPS $127,000 for wrongfully removing the couple’s children and lying to the court about it. See:
Representative Wu who authored the bill told the Houston Chronicle:
“We’re talking about taking children away from families, breaking up families — we need to have the utmost transparency. We want there to be integrity in the reporting system.”
According to the Chronicle:
The bill would require the department to track who makes every entry in a case and when, and it would require that the electronic records system prohibit users from modifying or deleting information.
Instead, users would be able to add updates and revisions without fully removing prior notes.
Time to Pierce the Veil of “Qualified Immunity” for Social Workers?
Laws based on the U.S. Constitution’s 4th Amendment are very clear about the need to have a judge issue a warrant before entering a person’s home.
In most states, “exigent circumstances” need to be present to enter a home without a warrant. In family law, this usually means the child’s life must be in imminent danger during the time it would take to go to a judge to issue a warrant.
The circuit courts have consistently ruled against law enforcement officers who violate the 4th Amendment and remove children from a home simply based on a social worker’s claim.
However, many states have something called “qualified immunity” for CPS social workers which can prevent them from being prosecuted under the 4th Amendment. The apparent justification for such immunity appears to be that when a child is in danger, it is believed to be better to err on the side of caution.
This kind of thinking, however, does not take into account the emotional trauma children go through in being separated from their families, nor does it consider the horrific rates of abuse in foster care today.
A couple of court cases in recent years, however, may signal that courts are beginning to reject these “qualified immunity” exemptions for CPS social workers, by ruling that social workers are not above the law and do not have the right to violate the Constitution.
In October 2016, Child Protective Services attorneys in Orange County California tried to argue to the 9th Circuit of Appeals that it was acceptable for social workers to lie about parents in order to take their children.
The 9th Circuit judges did not buy the argument, and ruled against the social worker.
The 9th Circuit video tapes most of their cases, and you can watch the incredible 23 minute video of the defense attorney trying to argue that a social worker has the right to lie:
In a 2018 case before the U.S. 9th Circuit Court of Appeals which may have set legal precedence for parents to sue social workers and pierce through the veil of “Qualified Immunity,” the court ruled in favor of Arizona parents who had their 3 children removed from their home simply because they had taken photos of them after a bath when they were laying on a towel naked.
They went to develop the photos at a Walmart, and an employee reported them to the police who were called in to investigate.
Police and social workers removed the children without a warrant. The parents sued, and won a settlement against the police, but the case against the social worker went all the way to the 9th Circuit Court of Appeals.
The 3-judge panel stated:
As this court has stated repeatedly, families have a “well-elaborated constitutional right to live together without governmental interference.”
Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000); accord Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 789 (9th Cir. 2016) (en banc); Burke v. Cty. of Alameda, 586 F.3d 725, 731 (9th Cir. 2009); Rogers v. Cty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007); Mabe v. San Bernardino Cty., 237 F.3d 1101, 1107 (9th Cir. 2001); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997).
Judge Marsha S. Berzon in her concurring opinion addressed the issue of traumatizing children by removing them from their home:
I concur in the per curiam opinion in full. I write separately to emphasize why it is essential that the courts scrupulously guard a child’s constitutional right to remain at home absent a court order or true exigency.
Taking a child from his or her home, family, and community constitutes a separate trauma, in and of itself. Our cases so recognize, and so ordinarily permit that trauma to occur only after a court determination that the alternative is worse.
The court ruled against the social worker’s “qualified immunity:”
Viewing the facts in the light most favorable to the Demarees, the social workers did not have reasonable cause to believe the children were at risk of serious bodily harm or molestation.
Pederson and Van Ness did not represent that the Demaree children might “again be beaten or molested,” Rogers, 487 F.3d at 1294, if left in their home—the children were never beaten or molested in the first place.
The 9th circuit was very thorough in their opinion regarding the 4th and 14th Amendments and how social workers cannot violate the Constitution even if state laws offer “qualified immunity.” They quoted many other cases as precedent:
In 2007, the year before the events in this case took place, Rogers held that a social worker violated a family’s clearly established federal rights by removing children with no warrant because of reports that a three-year-old and five-year old “were not toilet-trained, were locked in their rooms at night and in a room at their parents’ business during the day, were not receiving medical or dental care, that [one] had lost his teeth due to bottle rot, that [the other] was still being fed with a bottle, that their home was dirty and maggot-infested, and that there were unsecured guns in the home.” Rogers, 487 F.3d at 1291.
The social worker in that case “could have obtained a warrant within hours,” and “[t] here [was] no indication in the record that so short a delay could have resulted in a significant worsening of the children’s physical conditions or an increase in the prospects of long-term harm.”
Id. at 1295. One child’s “‘pain’ was not so serious that he ceased to be ‘playful’ and ‘alert,’” the physical risk the children faced from being locked in a room for the time it would take to obtain a warrant was “very low,” and “the mess in the Rogers living quarters . . . was a chronic, ongoing problem.”
Even in the face of this significant accumulation of neglect and bodily harm, which all parties agreed had resulted in bodily injury to the small children, we held that there was no reasonable cause to believe an exigency supported the children’s warrantless removal. Id. at 1296. We concluded that their removal therefore violated their clearly established rights. Id.
The judges applied this to the Demaree case:
Here, there had been no actual or threatened physical harm to or physical sexual abuse of the Demarees’ children before they were taken from their home. So the likelihood that they would suffer such abuse in the days it would take to get a warrant was necessarily less than the likelihood of future physical injury to the Rogers’ children in the hours it would take to get a warrant.
The judges then brought up another case ruling against social workers violating parental rights:
Similarly, in Mabe v. San Bernardino Cty., 237 F.3d 1101, 1109 (9th Cir. 2001), viewing the facts in the light most favorable to the plaintiff family, we held that a jury could have found that a defendant social worker violated a mother’s clearly established constitutional rights by removing her teenage daughter from her home without a warrant.
We were unpersuaded that the sexual abuse allegations were exigent as a matter of law, even though the teenager’s stepfather sexually abused her by “touch[ing] her breasts and crotch area through her clothing at night in her bedroom . . . every other night for . . . two or three months.” Id. at 1104–05.
We reasoned that, “[a] lthough the conduct by the stepfather was clearly inappropriate, it did not involve violence or penetration and the only time it had taken place was at night when MD was in her bedroom.
Assuming that [the worker] could obtain a warrant the same day . . . , it is difficult to understand how the further delay of a few hours necessary to obtain the warrant would have put MD in imminent danger of serious physical injury.” Id. at 1108 (internal footnote omitted).
That conclusion was further underscored by the fact that the social worker “opted to leave MD in the residence after interviewing MD and Mabe about the alleged molestation.”11 Id.
Despite quite serious allegations of physical sexual assault and bodily injury in Mabe, we were unwilling to hold as a matter of law that there was reasonable cause to believe there would be “imminent danger of future harm” within the time it would take to get a warrant. Id.
We held, instead, that “a reasonable jury could conclude that [the mother’s] constitutional rights were violated,” id. at 1109.
We do the same here.
The judges then cited one other previous case from the 10th circuit that was similar to the Demaree case where “immunity” did not apply to the unconstitutional actions of social workers:
We note that at least one other federal court of appeal has dealt with facts similar to those before us. In Malik v. Arapahoe Cty. Dep’t of Soc. Servs., 191 F.3d 1306, 1309 (10th Cir. 1999), the Tenth Circuit held that, viewing the facts in the light most favorable to the Maliks, a police officer and social worker could have violated Ms. Malik’s and her four-year-old daughter’s clearly established constitutional rights.
The defendants had removed the daughter on the authority of a court order obtained through misrepresentation several weeks after they had discovered a set of ten photographs portraying the daughter partially clothed, “some with full frontal genital exposure.” Id.13
The daughter’s uncle, an artist, had taken the photos five months earlier, and the mother had sent the photos to be processed; as here, the photo processing center called the police. Id.
The Tenth Circuit held that the defendants were not entitled to qualified immunity. Id. at 1315. That “conclusion hinge[d] upon the district court’s finding that ‘[d] efendants acknowledged [the daughter] was in no imminent danger at the time they sought the order and the facts suggest[ed] [the warrant] was secured only through distortion, misrepresentation and omission.’” Id. at 1315 n.5.
In the absence of imminent danger that the daughter would be the subject of more photographs—even if the sexual exploitation inherent in the existing ones would have justified removal—the government could not remove the daughter without a legitimate judicial order.
Clearly established law, said the Tenth Circuit, compelled that conclusion.
So this 9th Circuit ruling makes it very clear that social workers are not above the law, and cannot hide behind State “immunity” laws.
Unless the child is in immediate danger of suffering severe “bodily harm” during the time it takes to obtain a warrant from a judge, they must go through the proper legal channels and obtain a warrant first, before removing the child.
When evaluating qualified immunity claims, “[w] e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
It is “beyond debate,” id., that existing Ninth Circuit precedent establishes that children can only be taken from home without a warrant to protect them from imminent physical injury or molestation in the period before a warrant could be obtained. See Mabe, 237 F.3d at 1108–09.
The clearly established case law requires articulable, imminent, and serious physical injury or physical abuse to children to justify removing them from their parents’ home without a judicial order.
There was no such injury identified here.
9th Circuit Court Upholds Parents’ Constitutional Rights: Rules Against Arizona Social Workers Removing Children without a Warrant
If social workers across the U.S. followed the law and the proper legal channels, we would have far fewer medical kidnapping cases to report on here at Health Impact News.