Monday, July 13, 2015
Court Revives Rights Suit Over Child’s Removal by Social Workers
By KENNETH OFGANG, Staff Writer
A father whose child was placed in foster care two days after being born, without a court order, can sue social workers on the child’s behalf, but not his own, the Ninth U.S. Circuit Court of Appeals ruled Friday.
A divided panel partially overturned a district judge’s grant of summary judgment to all defendants on all claims in the suit brought by Jamie Kirkpatrick. They held that Kirkpatrick may sue two social workers and Washoe County, Nev. on behalf of the child, identified by the initials B.W.
The child, who will turn seven years of age this week, was removed by social workers after her mother, Rachel Whitworth, admitted recent and repeated use of methamphetamine. Learning from Whitworth that her two older children were in foster care, the hospital contacted their caseworker, who said the county Department of Social Services was seeking to terminate Whitworth’s parental rights regarding the older children because she was a drug user who lacked stable housing and employment, and was demonstrably unable to provide child care.
Kirkpatrick was at the hospital when B.W. was born, but admitted that he was uncertain at the time that he was the biological father. His first public expression of interest in maintaining a parental relationship with B.W. came at a review hearing when she was six months old.
B.W. was originally placed in a foster home—where her older half-siblings were already living—by the caseworker based on a department “hold,” a notice given by the DSS to the hospital. The appellate panel said such holds are normally honored by the hospital, but are not court orders.
Neither Whitworth nor Kirkpatrick contested the child’s remaining in foster care at a judicial hearing held a few days later.
Kirkpatrick sued the county and three social workers, contending that the removal of the child from parental custody at the hospital without judicial process constituted an unlawful seizure of the child’s person under the Fourth Amendment and deprived Kirkpatrick of liberty under the Fourteenth Amendment without due process of law.
The social workers denied violating any constitutional rights, and claimed they were entitled to qualified immunity if they did. The county claimed it was not liable because if they were any constitutional violations, they were not a result of any law, policy, or custom of the county.
Senior District Judge Edward C. Reed Jr. granted summary judgment to the defendants, but Judge Jay Bybee, writing for the Ninth Circuit, said there was sufficient evidence for some of the claims to go to trial.
Bybee agreed with the defendants that the Fourteenth Amendment claim that the plaintiff brought on his own behalf fails by reason of the fact that his paternity had not been established at the time of the alleged violation. But he said there was enough evidence for Kirkpatrick to sue on his daughter’s behalf for violation of the Fourth Amendment.
Bybee explained that under Rogers v. Cnty. of San Joaquin, 487 F.3d 1288 (9th Cir. 2007) the government may not remove a child from parental custody without judicial process, unless there is reason to believe the child is in imminent danger. Here, he explained, the child was in the safe environment of the hospital, the Department of Social Services and the hospital had a cooperative relationship, so “a reasonable juror could find that [social workers] Wilcox and Kennedy could not have reasonably believed that B.W. would ‘likely experience serious bodily harm’ during the time it would have taken to obtain a warrant.
The defendants were not entitled to qualified immunity, the judge went on to say, because Rogers clearly established the child’s right not to be taken from parental custody without a warrant or a genuine emergency. Other cases, he said, have established that the same analysis applies to a newborn as to an older child.
‘Unofficial, Unconstitutional Custom’
As for the county’s liability, Bybee wrote, “record evidence suggests that the County had an unofficial, unconstitutional custom of taking custody of children under non-exigent circumstances without obtaining prior judicial authorization.” Although the county disputed this, Bybee cited testimony by the social workers that removing children from parental custody was part of their jobs, they believed they did so in accordance with county policy, that they never obtained a warrant and were never told they needed one, and that they had no training as to how to ask for one.
The panel did uphold a grant of summary judgment in favor of one social worker defendant, saying there was no evidence of her involvement in the child’s removal.
Judge Stephen Reinhardt joined in the opinion.
Judge Alex Kozinski dissented, saying the social workers were entitled to qualified immunity under Taylor v. Barkes, 14-939, decided June 1 by the U.S. Supreme Court, repeating an earlier case’s admonition that “[w]hen properly applied, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.”
“The majority ignores that clear admonition, and imposes personal liability on two child protective service workers whose actions were anything but malicious or incompetent.”
The case is Kirkpatrick v. County of Washoe, 12-15080.
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