Metropolitan News-Enterprise


Wednesday, May 30, 2007


Page 3


Court Revives Suit Against County Over Warrantless Removal of Children


By TINA BAY, Staff Writer


Evidence that children were suffering from bottle rot and malnutrition did not necessarily constitute a medical exigency justifying their warrantless removal from their home, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Reversing summary judgment rulings by U.S District Judge David F. Levi of the Eastern District of California, the court reinstated a lawsuit by a San Joaquin County couple.

Thomas and Nicole Rogers, for themselves and on behalf of their children Shelby and Thomas Jr., brought a civil rights action against the county, the City of Lodi and a social worker alleging that the removal of the youngsters. from the family residence in September 2001 violated their Fourth and Fourteenth Amendment rights.

The children were taken into custody by county Child Protective Services social worker Charlotta Royal, who determined they had been neglected for some time and faced an imminent risk to their physical health and safety. The girl was three and the boy five at the time.

Authorities say the Rogers family had first come to the agency’s attention in August 2001 when two individuals reported that the children appeared to be suffering from neglect, based on observations such as Thomas Jr.’s loss of teeth due to bottle rot and their home’s dirty, maggot-infested condition. The reports were classified as requiring a 10-day response as opposed to emergency attention.

Royal initially attempted to visit the Rogers’ residence on Aug. 31 but found no one home.  She departed without leaving a message or note and returned one week later, at an hour when the whole family was home and just waking up.

Accompanied by Lodi police officers whom she had summoned, Royal entered the Rogers’ home and found that Shelby had been inside a locked bedroom. The mother said she locked her in her room at night to prevent her from roaming the house and getting into things while the family was sleeping.

Thomas Jr. also emerged from a bedroom with a thumb lock on the outside, but the mother told Royal his door had not been locked. Based on her questioning, the social worker concluded that the children’s mother was lying to her about the locks.

Evidence Royal found of neglect included the fact that the children had not yet been toilet trained and were still wearing diapers, and that Thomas Jr. was suffering from severe bottle rot that had left him with missing or yellowing teeth.

Additionally, she discovered the family lacked medical insurance, that the children appeared very pale as though they suffered from sunlight and vitamin deficiency, and that Shelby’s unkempt hair was thinning, possibly indicating malnutrition.

The social worker also noted the presence of multiple bruises on the children’s legs and a scratch on the girl’s face, which the parents said were sustained from falls at the auto shop in which they worked.  The parents allegedly took the kids to work with them every day, a fact which Royal believed but viewed as cause for concern.

Royal’s other observations included piles of dirty clothing scattered about, an overflowing garbage receptacle, stains on the walls resembling feces and vomit, and mattresses for the children that lacked frames and were covered with dirty bedding.

Five guns were also found in the parents’ bedroom.

After speaking with the parents for about two hours and hearing their explanations, Royal decided the children should immediately be removed and placed in the county’s custody for the sake of their safety.  Without offering the parents any alternatives like medical referrals that would allow the children to stay at home, and without obtaining a warrant, she called for a car seat and had the children transported to Lodi Memorial Hospital for examination.

According to a doctor’s evaluation, the children had “poor hygiene” but were “alert” and “playful.” Their visit was characterized as a routine medical clearance prior to county placement rather than an emergency.

After obtaining a medical clearance, the youngsters were placed in a shelter and separated from their parents for about two weeks.  They were returned home after their parents made required changes.

Ruling on Royal’s summary judgment motion and the family’s motion for partial summary judgment as to the social worker, Levi found that the conditions discovered by Royal at the Rogers’ home did not present an imminent risk of serious bodily harm. Nonetheless, he concluded Royal was entitled to qualified immunity because the application of the law to medical neglect was not clearly established

Since there was no caselaw specifically analyzing exigency in cases of bottle rot and malnutrition, Levi reasoned, social workers would not be able to make an assessment about the imminence of threat resulting from medical neglect in the Rogers’ situation. On this basis, the judge ruled in favor of Royal.

But the appellate panel said Levi was mistaken.

Judge Stephen Reinhardt wrote for the court:

“Even if it might be difficult for a social worker without medical training to assess the imminence of the threat posed by some dangerous maladies, such is not the case here. One need not be a licensed physician to recognize that in the case of a child who is both alert and active neither bottle rot nor malnutrition is the type of condition that will lead to serious injury if not corrected within a matter of hours.”

A reasonable social worker would not understand the Rogers children to be facing imminent danger during the few hours it would take to obtain a warrant for their removal, he said.

“Assuming Royal’s version of the facts, the Rogers children were in a sorry state and suffering from neglect of a type that could, if their parents’ conduct was not modified within a reasonable period of time, lead to long-term harm,”  the judge said. 

But, he concluded, there was “no support at all” in the record for the conclusion that the children faced an imminent risk of serious bodily harm.

The Rogers’ appellate attorney, David J. Beauvais, told the MetNews he was pleased with the court’s ruling.

“There was a lot of overstatement in this case, a lot of exaggeration,” he said.

Noting that Levi’s decision had been published, he added:

“The district court ruled medical neglect was such an esoteric concept that social workers would not be able to clearly assess whether or not the child was in imminent danger, he said. “That to me was an extremely dangerous precedent & I’m glad the Ninth Circuit corrected it.”

Counsel for San Joaquin County could not be reached for comment.

The case is Rogers v. County of San Joaquin, 05-16071.


Copyright 2007, Metropolitan News Company