Thursday, November 1, 2018
Exams of Children Without Parental Consent Violate Constitution
By SHANE PATRICK ETCHISON, Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that San Diego County officials violated the Fourth and Fourteenth Amendments by conducting gynecological and rectal examinations of young children without their parents’ consent.
Circuit Judge Kim M. Wardlaw delivered the opinion of a three-judge panel. It reverses in part and affirms in part a judgment by U.S. District Judge Gonzalo P. Curiel of the Southern District of California.
The four children in the case—a then-six-year-old girl and her triplet siblings—were taken from their parents in 2010 after one of the triplets’ preschool teachers discovered a red mark on her lower back. The children’s father, Mark Mann, explained that he had spanked the child the night before with a wooden spoon.
Mann and his wife, Melissa Mann, cooperated with the San Diego County Health and Human Services Agency, which the teacher had been required to notify, but the agency nevertheless sought and obtained a warrant for the children’s removal. (Wardlaw noted that the application for the warrant omitted any mention of the parents’ cooperation with the agency.)
While the children were at a temporary housing facility, Polinsky Children’s Center, they were subjected to medical examinations without their parents’ knowledge or consent, and without a judicial order. A San Diego Superior Court judge ultimately dismissed the agency’s petition after a trial, citing a lack of substantial evidence.
Curiel granted summary judgment for the Manns in their constitutional violation suit. He held that the county had violated their Fourteenth Amendment rights by its policies failing to notify them about the examinations and barring them from attending them.
He further held, however, that the Fourteenth Amendment did not require prior parental consent nor a judicial order. He did not reach the couple’s contention that the children’s Fourth Amendment rights had also been violated by the examinations.
The county and the Manns settled the remaining claims, but both parties appealed Curiel’s summary judgment. The county argued that even notice was not required; the parents contended that consent or a judicial order was necessary, and they renewed their Fourth Amendment argument.
“The County’s attempts to parse a purely non-investigatory purpose out of the Polinsky medical examinations are not persuasive, especially because medical examinations of young children are particularly likely to have dual purposes as the ‘investigation of  abuse for child protection purposes may uncover evidence of a crime.’…
“We conclude that the same rules apply to purely investigatory examinations as to dual-purpose examinations, where one of the purposes is investigatory. Thus…, the County is required to notify the parents and obtain parental consent (or a court order) in advance of performing the Polinsky medical examinations, and permit parents to be present for these examinations because, while the examinations may have a health objective, they are also investigatory. Parental notice and consent is even more warranted when examinations have dual purposes than when the purpose is purely for health reasons.”
Specific Procedures Irrelevant
“A parent’s due process right to notice and consent is not dependent on the particular procedures involved in the examination, or the environment in which the examinations occur, or whether the procedure is invasive, or whether the child demonstrably protests the examinations.”
Wardlaw noted that a medical emergency is an exception to the general rule requiring parental consent, as is the need to preserve evidence before it dissipates.
In the case of the Mann children, she said, no such exception existed, as the red mark from the spanking and another triplet’s bruised forehead from an accident had already been explained.
Children’s Rights Violated
Wardlaw also noted that the examinations violated the children’s constitutional rights.
“The Mann children possess a Fourth Amendment right to ‘be secure in their persons...against unreasonable searches and seizures.’…Because we have concluded that the Polinsky medical examinations are at least partially investigatory, the examinations are well within the ambit of the Fourth Amendment.”
The county argued that special needs doctrine applied to the examinations. That doctrine excepts from the requirement for a warrant a search in which “special needs” make warrants and probable cause impracticable.
“We assume, without deciding, that the ‘special needs’ doctrine applies to the Polinsky medical examinations, but conclude that the searches are unconstitutional under the ‘special needs’ balancing test if performed without the necessary notice and consent. To reach this conclusion, we balance the children’s expectation of privacy against the government s interest in conducting the Polinsky medical examinations.”
She went on to say:
“While the County’s concern for the health of children in its custody is important, it has not demonstrated that the ‘nature and immediacy’ of its interest outweighs the children’s privacy interests.”
In 2014, the county settled with another family, the Swartwoods, over similar issues. As a result of that case, the county changed its procedures to afford notice to families of the medical examinations done at the Polinsky facility.
At oral argument in Pasadena on May 15, Wardlaw asked San Diego Senior Deputy County Counsel David Brodie:
“The background question I have is why are you still litigating this case when you’ve already changed your procedures and to conform with what the court’s held in other cases?”
“Well we did change the procedures, that was after the Swartwood case….That case came out in 2014 and the county did decide to change how things are done after that case, but we’re litigating this case because we don’t believe that the parents have the constitutional right to be present at that exam.”
Wardlaw, in her opinion, declared:
“The County’s continued failure to provide parental notice and obtain consent for the Polinsky medical examinations has harmed families in Southern California for too long. Here, the County subjected the Mann children to invasive medical examinations unbeknownst to their parents, who were meanwhile trying to cooperate with the County’s investigation. The Manns were deprived of their right to raise their children without undue interference from the government, the right to make medical decisions for their children, and the right to privacy in their family life. The Mann children were subjected to invasive, potentially traumatizing procedures absent constitutionally required safeguards.”
The case is Mann v. County of San Diego, No. 16-56657.
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