Metropolitan News-Enterprise


Thursday, May 27, 2010


Page 1


Authorities Held Immune in Parental Notification Case


By STEVEN M. ELLIS, Staff Writer


Authorities violated the Constitution when they failed to tell a father with legal, but not physical, custody that they were detaining his daughter and placing her with another family at her mother’s agreement, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

However, the three-judge panel said two Nevada County social workers and a sheriff’s deputy were entitled to qualifiied immunity in a suit over a 2003 molestation investigation because the father’s parental rights to notification were not clearly established until a Ninth Circuit ruling last year.

Using the same reasoning, the judges declined to address whether the man had a constitutional right to be notified that authorities were investigating his daughter’s report of molestation or of attempts to coerce her testimony.

Daniel James sued social workers Bobbie Rowlands and Vivian Vaught, and Deputy Steve Tripp, after learning of their efforts to remove his daughter from her mother’s home after the girl said she was molested by her mother’s live-in boyfriend’s father and pressured by the boyfriend to change her account.

Police detained the girl at school and placed her with her maternal grandmother, and three days later social workers entered into a voluntary agreement with the girl’s mother transferring physical custody to the grandmother when the mother refused to make her boyfriend leave her home or allow the girl to live with James.

James learned of the alleged molestation three months later, and claimed that the failures to inform him of the investigation, alleged coercion, detention and transfer of custody violated his substantive due process rights under the Fourteenth Amendment to participate in the care, custody and management of his child.

He also alleged violations of procedural due process and equal protection, but U.S. District Judge Garland E. Burrell of the Eastern District of California granted summary judgment on all of the claims. Burrell reasoned that although James’ substantive due process rights to notification were clearly established “on common sense,” the defendants were entitled to immunity because they made a reasonable mistake about what the law required.

On appeal, however, Judge Richard A. Paez rejected Burrell’s analysis. Noting the lack of any case “with even loosely analogous facts,” he wrote that the defendant’s failure to advise James of the investigation and alleged coercion was not so “patently violative” of a constitutional right that reasonable officials should know it was unconstitutional without court guidance.

Paez said the defendants violated James’ rights as a legal custodian when they failed to notify him of his daughter’s detention and the agreement to place her with her grandmother.

“[P]ublic officials may encourage and facilitate a transfer of a minor’s physical custody without notifying a parent with shared legal custody only if they have reasonable cause to believe that such notification would put the child in imminent danger of serious bodily injury,” he wrote.

But the judge explained that the defendants would not have known that in 2003 because the Ninth Circuit did not extend such rights beyond parents with full custody to those with only joint legal custody and not physical custody until its 2009 decision in Burke v. County of Alameda 586 F.3d 725.

Paez also flatly rejected James’ argument that provisions in the California Welfare Code gave him a procedural due process right to notification of his daughter’s detention and transfer of custody.

Senior Judge Procter Hug Jr. and U.S. District Judge George H. Wu of the Central District of California, sitting by designation, joined Paez in his opinion.

The case is James v. Rowlands, 08-16642.


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