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Monday, February 5, 2024


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Suit Restored Over Seizure of Two Children From Home

DCFS Acted Pursuant to a Warrant, but One Obtained, Ninth Circuit Says, Through ‘Judicial Deception’ Negating Qualified Immunity; Cannabis Was Administered to Child but, Contrary to Declaration, Under Medical Supervision


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday reinstated an action against the County of Los Angeles and three social workers brought by a couple, suing individually and on behalf of their two children, based on the girls being removed from their home, pursuant to a warrant, because one of them, age 9, was being treated for autism with cannabis oil.

Although Lourdes Olarte, a social worker with the Los Angeles County Department of Children and Family Services (“DCFS”), said in a declaration accompanying the application for a warrant that use of the marijuana was not under the supervision of a physician, it was, in fact, pursuant to a doctor’s recommendation.

“We have recognized a cause of action under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments where a warrant or other authorization to seize a child was obtained through judicial deception,” Ninth Circuit Judge Jay S. Bybee said in his opinion for a three-judge panel.

Judicial deception, he declared, precludes qualified immunity, which District Court Judge Consuelo B. Marshall of the Central District of California had concluded that the social workers enjoy.

Statements Were Misrepresentations

“We find that Olarte’s statements regarding the Parents’ failure to obtain medical supervision were misrepresentations,” Bybee said.

These statements, he noted, were material, pointing out:

“Since California has legalized medical marijuana (including for children) when recommended by a doctor, a reasonable magistrate could not have ordered the children removed merely because K.X. was receiving medical marijuana. Here, medical supervision separates lawful parental behavior from actionable concerns on the part of DCFS. A reasonable jury could therefore find Olarte’s assertions that the Parents had not obtained supervision to be material. In sum, we find the Parents have stated a cognizable claim for judicial deception on this basis.”

Not only was it false that the administration of cannabis oil was not under the supervision of a physician, Bybee said, but there was a triable issue of fact as to whether statements which Olarte attributed in her declaration to the teacher of K.X., the 9-year-old suffering from autism, had actually been made by her—which she denied in a deposition.

Observations attributed to the teacher, Alida Turner—including that the child appeared to be “under the influence” of marijuana—“could likewise be found by a reasonable jury to be misrepresentations,” he wrote.

‘Schoolhouse Interview’

While the opinion reverses summary judgment in favor of the social workers on the claim that judicial deception resulted in the violations of the right to familial association and the girls’ right to be free from unreasonable search and seizures, it affirms summary judgment in favor of Olarte on a claim that she violated the Fourth Amendment rights of G.X., then age 5, by having her taken from her classroom to be interviewed. Qualified immunity is denied only where a local or state employee acts in violation of “clearly established” rights and, Bybee said, a “clear rule” cannot be discerned from the cases on the permissibility of a “schoolhouse interview.”

  Marshall granted summary judgment in favor of the defendants on a claim of intentional infliction of emotional distress, finding that Olarte’s declaration did not contain material misrepresentations.

“Because we have reversed on the judicial deception claim, we must reverse that holding as well,” Bybee said.

The DCFS brought a petition under Welfare & Institutions Code §300 to have the children declared to be dependent on the court. A Los Angeles Superior Court judge, at a jurisdictional hearing on Dec. 7, 2017, ordered the case dismissed, with prejudice, in the “interests of justice.”

Monell Claim

The parents, Rachel Scanlon and Steven Sawyer, sought to have the county held liable under the U.S. Supreme Court’s 1978 decision in Monell v. Department of Social Services of the City of New York. That case says that a local governmental entity can be held liable pursuant to 42 U.S.C. §1983 for a civil rights violation if it is committed pursuant to that entity’s policy.

 The complaint in the case sets forth that “COUNTY has a policy, custom, or practice, of including false allegations, inflating and exaggerating partially true allegations into misrepresentations, and omitting facts and circumstances exculpatory to allegations, in the Welfare & Institutions Code 300 Petitions, and Applications for Warrants filed by social workers (and other juvenile court filings), which behaviors are done with social worker supervisor approval, and engaged in to support efforts to obtain judicial approval of otherwise unlawful removals of children and/or continue separation of children from their parent(s).”

Bybee sad:

“Drawing all inferences in the Parents’ favor, as we must on a motion for summary judgment, a jury could conclude that DCFS’s practices are inadequate to protect against constitutional violations such as those now claimed. We therefore remand the Monell claim to the district court for additional consideration.”

The case is Scanlon v. County of Los Angeles, 21-55999.



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