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February 17, 2006
Case Law Developments: No Qualified Immunity for Removal of Children from Home if State Does not Follow Statutory Requirements
State child protection services have once again been held subject to suit under Section 1983. In this case, the US Court of Appeals for the Tenth Circuit affirms a district court's denial of summary judgment to child protection workers on the basis of qualified immunity.
The case followed actions by the Utah child protective services in their investigation which indicated that the child was being medically neglected by Mother, whom doctors suspected had Munchauser Syndrome by Proxy. The child protective worker in the case consulted with a attorney in the attorney general’s office who indicated that the information gained was sufficient to remove the child from the home. Although the child protective worker did not believe Child was in imminent danger of death and although the family treating physician indicated that removal from the home would be harmful to the child, Child was taken into protective custody and placed in foster care. Following a second shelter hearing, the child was released to the parent’s custody under DCFS supervision.
Parents sued under 42 U.S.C. 1983 alleging removal of their son from their home without a warrant or pre-deprivation hearing violated their Fourth and Fourteenth Amendment rights. The district court concluded that while Defendants did rely on Utah statutes providing for removal of children without a warrant, they did not actually comply with the statute and could not reasonably have concluded that their noncompliance was constitutional. Moreover, the district court reasoned Defendants were not entitled to rely on the advice of counsel because the attorney did not know of the child’s physician’s opposition to removal when he advised Defendants that removal was proper. Thus, the district court granted summary judgment for plaintiffs on liability.
The Tenth Circuit affirmed, holding that because the State failed to comply with the statute on which they base their qualified immunity claim, their conduct was not objectively reasonable.
Roska v. Sneddon, 2006 U.S. App. LEXIS 3126 (10th Cir. February 9, 2006)
The Court of Appeals reasoned that reliance on a statute does not make an official's conduct per se reasonable. Rather, it is a factor to consider in determining objective reasonableness and requires consideration of “(1) the degree of specificity with which the statute authorized the conduct; (2) whether the official in fact complied with the statute; (3) whether the statute has fallen into desuetude; and (4) whether the official could have reasonably concluded the statute was constitutional.”
The statute in question required both danger to the child and reasonable efforts to eliminate the need for removal before a child could be placed in protective custody without a warrant. With post-deprivation hearings available, the Court of Appeals found it reasonable for the state to conclude that the statute was constitutional. Nevertheless, the court found that the state had failed to actually comply with the statute on which they rely because they did not provide preventive services to the parents. The state argued that parent’s prior unwillingness to cooperate with physicians and child protection investigations, along with the nature of mother’s suspected condition, caused them to conclude that services would not be effective in protecting Child. However, the court found that the child was not in such immediate peril, especially given the doctor’s opposition to removal, that the state could refuse to provide services.
A strong dissent by one judge would have affirmed the summary judgment for defendants on the qualified immunity defense.
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