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by Brian Shilhavy
Editor, Health Impact News

In what is seen as a victory for parental rights, the U.S. 9th Circuit Court of Appeals has 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.

The police investigation was extensive, including medical and forensic exams of the children looking for sexual abuse, as well as obtaining a warrant to search the family’s home, where police “seized all the evidence that might be relevant to a child pornography investigation:  computers, printers, photographs, cell phones, undeveloped film, floppy discs, DVDs, CDs, VHS tapes, and cameras.”

Police found no evidence of wrongdoing, so no charges were filed against the parents, and the children were returned home.

Police detective John Krause wrote in his report:

 “[a]pparently after the forensic interviews and medical exams were completed, [Child Protective Services] declined to remove the children from the parent’s custody, and had directed [his partner] to return the girls to Lisa and A.J.”

According to court records:

None of the photographs portrayed children engaged in sexual activity. None portrayed the children’s genitalia frontally.

The parents stated they simply wanted the photos to look back at years later to see how “cute” the children were.

The matter should have ended after the investigation, but it did not.

Child Protective Services (“CPS”) investigating officer Laura Pederson discussed the case with Detective Krause, according to court records, and decided to drive over to the house and take the children into custody.

After reviewing the evidence Krause showed her, Pederson decided to take the children into emergency temporary custody, without obtaining a court order or a warrant.

She later said, “I was relying on the fact that . . . at the time there was a pending criminal investigation with both parents named as suspects. I was relying on information that Krause obtained during the investigation . . . his opinion of the criminal acts that were committed, my viewing of the pictures and the fact that the—all of this suggested these children were at risk of further exploitation.” She discussed her recommendation with her supervisor, Amy Van Ness, who agreed.

Two of the three children were put into a foster home, and the third one into a different one. Two days later, they were transferred to their grandparents’ home, where they stayed for about one month, before being returned to their parents.

Violation of Constitutional Right to “Live Together Without Governmental Interference”

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Image from YouTube.

The ruling of the court was made by a 3-judge panel at the 9th Circuit. Judge Marsha S. Berzon was the leading concurring judge.

The court 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 fact that the Demaree family’s constitutional rights under the 4th Amendment were violated by removing their children from their home without a warrant is apparently not in dispute in this appeal.

The parents had already successfully sued the police officer, John Krause, who settled out of court.

The courts have consistently ruled against law enforcement who remove children from homes without a warrant issued by a judge. The law and court cases defining the exceptions where a warrant is not needed, where the children’s lives are in imminent danger and there would be no time to get a warrant, are clear, and were quoted in this decision also.

However, most states have “qualified immunity” laws for social workers, apparently under the justification that when a child is in danger, it is better to err on the side of caution.

Veil of “Qualified Immunity” for Social Workers Pierced Through by 9th Circuit Court

In this current 9th Circuit ruling, however, the court ruled that social workers are not above the law and do not have the right to violate the Constitution. The Demarees claimed that CPS social workers violated their constitutional rights:

The Demarees, on behalf of themselves and their children, claim Pederson and Van Ness violated their clearly established constitutional rights when Pederson removed the children from the home without a court order and absent an emergency.

The 9th Circuit Court agreed:

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.

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.

Arizona is perhaps the largest abuser of parents’ constitutional rights, taking a higher percentage of children away from their families than any other state in the U.S.

As for the Demaree family from Arizona, their 9.5 year legal battle is not over yet. They must now attempt to sue the social workers for damages in a Phoenix court, and it is possible that the State of Arizona could appeal this decision to the U.S. Supreme Court.

See Also:

Does the State Ever Have a “Right” to Remove Children from a Home?

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