Rarely have I read anything so poignant and moving as the day-by-day account a loving mother is writing of the TPR trial she’s enduring. See: TPR Trial Blog. You may have to be logged into MySpace to read this. Get an account if you don’t have one already. This is really worth reading.

If that link doesn’t work for you, try this one: TPR Trial Blog.

For those who don’t know, TPR means “Termination of Parental Rights”.

I ask that this weekend everyone who reads this who is inspired to do so, please say a prayer for this family to be reunited, send positive energies, pray for the judge to make the right decision, and so on . . . because next Monday the trial continues.

This mother, who is a nurse, deserves our support and love and good wishes. Please keep praying that she’s able to bring her children home.

And to the mother: thanks for posting to Fight CPS and for giving us the link to your blog.

Sean’s mother, his most loving advocate, created a MySpace page for him: Foster Care ABUSE~Political PRISONER ! HOSTAGE CPS

Now do CPS workers want to suppress evidence by trying to force her her to take down Sean’s MySpace page?

According to a June 28, 2007 message she sent to her friend’s list at MySpace, CPS workers are mad as fire because they found out about the MySpace page on which Sean’s mother recounts details about her experiences with CPS.

Why?

One look at these photographs will tell the story.

Sean is being bruised in foster care!

This is what Sean’s mother saw during her visit with him:

Sean’s mother says:

my case is all about POLITICS . Not even close to ABUSE. the abuse now is what they have done to SEAN!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
3 Foster Homes and they tried to HIDE MY BABY !!!!.. and his BRUISES!!!

For more information, see Sean’s MySpace: Foster Care ABUSE~Political PRISONER ! HOSTAGE CPS

CPS caseworkers in Washington apparently failed to follow up on fifteen reports of child abuse, but when a neighbor told police a teenage foster child was locked in the closet, the girl was finally rescued from what appears to be a horrific foster care abuse situation. Detectives said the first fifteen complaints weren’t acted on because the foster parent moved from apartment to apartment, and they couldn’t find her, yet at the same time this woman collected foster parent benefits for housing the young girl.

My theory is different. I believe that cases of child abuse in foster homes are ignored because CPS doesn’t get any money for taking children from one foster home and putting them in another. They only get an increase in funding when they take a child from their natural families, then place them in a foster home. Therefore foster child abuse isn’t a priority for busy CPS caseworkers.

Fight CPS hopes to shed light on the problem of abuse in foster homes. Statistics have shown that child abuse of all types is about ten times more likely to happen in a foster home than in a natural family home.

The child, who is now sixteen, lived with foster parent Chornice Lewis, 33, for ten years. Acquaintances said Lewis was very polite and made a good impression on them.

Police allege that if the foster child caused any problems, Lewis put the child’s hand on a hot stove. And if she didn’t listen she had to stand next to her foster parent’s bed all night long. If she slept, a 10-lb weight was dropped on her feet. And once, when she wasn’t packing properly, an insulin needle was plunged into her eye, so the girl is now blind in one eye.

According to a KOMOTV.Com article, Cheryl Stephani, an employee of the Washington Department of Social and Health Services, DSHS, said “We missed it. . . . As a child welfare system. It’s all of us, the courts, the department, the children’s administration. We should hold each other accountable; we need to hold each other accountable.”

Holding CPS caseworkers accountable = Good Idea. When?

Source: Mother accused of abusing foster daughter for years by Bryan Johnson, for KOMOTV.Com, published June 26, 2007.

Jack and Casey He were going through hard times years ago when they gave their baby girl, Anna Mae, to temporary foster parents. When they tried to get their child back, Jerry and Louise Baker refused to let go. Now Anna Mae is eight years old and the foster parents are still filing court papers, trying to keep her. It is people like this who give foster parenting a bad name. This case has been ongoing for six years, since the Bakers filed a motion in 2001 to try to terminate the He’s parental rights.

In January the Tennessee Supreme Court ruled that Anna Mae should be returned to her parents “in an expeditious manner” but Jack and Casey He are still waiting because the Bakers, with the help of their attorney, Larry Parish, made a federal court filing on June 12 asking that the Tennessee Supreme Court ruling be overturned. If the federal court doesn’t intervene, Anna Mae should be reunited with her family late in July.

Tennessee Attorney General Robert Cooper Jr. filed papers on June 18 criticizing the Bakers and Larry Parish for “a number of extreme and horrifying hypotheticals” included in the federal filing. For example, Parish wrote that the Tennessee Supreme Court was “amputating [the child's] legs” and that Jack and Casey He were “strangers” who “have become monsters in her world”.

The only reason Jack and Casey He weren’t visiting Anna Mae is that Jerry and Louise Baker got a lower court judge to ban them from seeing her back in 2001. Is this is what the Bakers twist around to call ‘abandonment’? And if Anna Mae He now thinks of her rightful parents as “monsters” that most likely has been instilled in her by her foster parents. I believe this is called brainwashing.

The Bakers believe Anna’s rights are being violated. What about her right to live with the parents God gave her? What about her right not to have her mind poisoned by foster parents who hate her parents enough to fight with Jack and Casey He in court about custody of their daughter?

Source: Supreme Court Decision Stands for Anna Mae He by Teri Whitcraft, ABC News Law & Justice Unit, published June 26, 2007.

See also: the Jack and Casey He page at FamilyRights.Us where there’s an ongoing collection of articles about the He Family since 2001.

Spokane City Councilman Bob Apple launched an outspoken attack on a CPS social worker he claimed submitted false court documents in a child welfare case involving a former employee and campaign volunteer, Daniel Morgan. The City Councilman stated that CPS kidnapped a 2-year-old child, and that the assistant attorney general should be jailed.

From the article:

“It’s a sham… If this is how the court system operates, then it’s broken.” - Bob Apple

Of course CPS said that the charges were “ridiculous” because they go to court and state that the child is “at risk of imminent harm”.

In this case the ex-husband of Morgan’s wife has made accusations against Morgan in a custody dispute.

From the article:

Since 2002, the state agency has received a “number of referrals related to parental neglect of the children and alleged physical abuse of the children by Mr. Morgan,” according to the court documents. A state spokeswoman said she could not disclose how many of the complaints were made by Allen…..The Morgans said Allen has used the referrals “as payback” and to gain custody of the two children he had with Robin Morgan.

Now, this next part hits home with me:

“Unfortunately, in this field, when the custody of children is involved, everyone involved is willing to lie,” said Dave Wood, a lobbyist for Washington Families United, a nonprofit group seeking reforms to the child-welfare system. “You don’t know what the truth is. Something has to change.”

I find that so true - that too many people are willing to lie to get custody. That includes social workers, ex-spouses, girlfriends of ex-spouses, etc. And I plead with each one of you that if you’re in this situation, stay with the truth. Lies lead only to confusion. If you tell the truth, at least when it is all over, you still have your integrity.

City Councilman Bob Apple will advocate for any citizen that contacts him. Perhaps you might want to print out this article and take it to your city councilman (or woman) to see if that person is willing to go to bat for you. I’ve contacted my county supervisor several times, including for an issue involving CPS, and every time she’s been a great help and everything turned out perfectly.

Source: Apple puts spotlight on CPS by Benjamin Shors for the Spokane Spokesman Review, published June 23, 2007

This week I had guests on this website that are not sympathetic to our cause. John and Brooke, who post from Texas, seem to think they are God’s gift to Unfortunate Children … in other words, they are self-righteous foster parents. See the messages they contributed to this site at Texas: “The System Is Maxed”.

Normally I have no problem with having foster parents posting here at Fight CPS. Some foster parents are loving, kind, and truly on the side of parents who want to regain custody of their children. I appreciate that they care enough to come here and give advice to suffering parents and other natural family members.

John and Brooke did not fit that description. They apparently were here to insult and annoy the suffering people who this site was created to help. Some of their comments were inappropriate and unkind, and some of those are being held in the moderation queue because they are not appropriate for this site.

At first I didn’t know they were related though it was clear that John was backing up Brooke and railing against me, including a few rude comments along the way. I’d had enough of him when John finally declared, “I am not at all simpathetic [sic] to the people who complain about removal because I don’t know if they are truthful, I know that these parents will lie or tell only part of the story to gain simpathy [sic] from anyone that will listen.”

The people who come to this site - those for whom this site is intended - do not need to be insulted by being called liars.

In retrospect it is humorous to see that John is so unfamiliar with the concept of sympathy that he cannot even spell it right.

Because of John’s rude statement, I put his future comments on moderation by putting his Texas IP number in the comment moderation box in my blog administration panel.

I was surprised when I woke up the next day and found a comment from Brooke in my moderation queue! It was then that I noticed that Brooke and John were using the same IP number!

That day John finally admitted to being a foster parent receiving money from the state. It was as I’d suspected - he has his hands in the pockets of the system and so naturally is blind to anything that might be wrong with what he’s doing. He wrote, “I couldn’t really care less about the money I am financially secure without it.”

Does that qualify him to leave comments on this system where there are hundreds of suffering parents and family members seeking help every day, insulting everyone by calling them liars? I think not, and won’t tolerate it. So I decided that John and Brooke will not have any further comments published.

Brooke posted one more time - and I have not published it - her final comment remains in the moderation queue because it is an insult to another suffering parent who is trying to recover from heroin addiction. Like most people here, I’ve never tried heroin and never will, but I do not believe it is right to spew hatred and recriminations at people who are trying to recover from an addiction, as Brooke did in her final comment.

I honestly cannot understand why Brooke and John were so intent on posting here. They have no respect for the people who come to this site for help, and don’t have a clue as to why I started and maintain this site. They have their foster home money and some Unfortunate Children… and yes, I’m concerned about the children in their care. If this is how they respond to suffering people, those children may be receiving similar maltreatment at the hands of these self-righteous people.

The point of this story is in the title to the post. People who come to this site should be aware it is my intention to build suffering people up, not tear them down. Tearing them down is what CPS does. I’ve known for nearly twenty years that what CPS does is find people who are going through a rough spot in life, then the caseworkers kick them while they’re down, figuratively speaking, by destroying their families.

Here at Fight CPS we must do the opposite. When suffering people come here, we must give them hope, strengthen them, build them up, love them, care for them, understand them (we are all God’s children) . . . and give them tools to use to express themselves in court so that CPS workers aren’t the only ones going in with legal paperwork, prepared for court.

John and Brooke, be gone. We don’t need anyone telling people they have problems. Everyone who gets involved with CPS is aware already they’ve got a problem and/or made mistakes. They don’t need you stuffing your recriminations down their throats. God help the children you’re warehousing for the state.

…

* I know the exact city their IP number comes from but am concealing that information, for now.

Morris Brasovankin, 89, and his wife, Mildred, 86, enjoyed taking care of their five-year-old grandson, Steven. He was born in 2001 to a mother addicted to crack, three months premature, weighing just over two pounds. The mother left and the child’s father, Steven Brasovankin, 54, made the mistake of contacting CPS to help take care of his son.

The baby was placed in a foster home but his father found out the foster parents wanted to adopt so he fought to get his son home again. Grandparents Mildred and Morris Brasovankin helped take care of little Steven.

Four months ago the father took little Steven to the hospital for treatment for a cold. The hospital staff called DHS thinking the father was acting irrationally, due, he says, to financial problems and business failure. The court ordered psychological counseling for this father and gave temporary custody to the grandparents.

Then disaster struck on March 23 at a court hearing when the impatient child, after being confined for more than an hour in the waiting area, got away from his grandparents and ran up to the judge’s bench where he smacked a computer. Because the Brasovankins weren’t able to chase the child and control him, their attorney retrieved him.

A CASA worker, Kathleen Knese, recommended that Steven be taken from his grandparents because of his activity level and behavior. She said that the Brasovankins wouldn’t be able to take care of him properly. The judge agreed and ordered that little Steven be placed in foster care in 90 days.

Ten days ago a DHS worker, James Hood, showed up at Steven’s school and took the child. The Brasovankins were not even notified. When Steven didn’t come home on the bus they phoned the school and were given the news.

From the article at Philly.Com:
“Right away, I’m running down to the school. I must have been there in two minutes,” Morris said. “I’ll tell you something — I love that little boy. I’d do anything for him. Anything. It killed me when I went to that school and he was already gone because if I was there, he would have never been taken away.”

Source: Too Old To Be Parents? by Wendy Ruderman for the Philadelphia Daily News.

Katie Wernecke, 14, was taken from her family by CPS two years ago, not because she was being abused or neglected, but because CPS agents and doctors didn’t agree with her parents’ decisions regarding her cancer treatment. At the age of 12 Katie, a resident of Agua Dulce, Texas, had Hodgkin’s disease. Her parents sought an alternative treatment for her. That right was denied to them.

CPS took Katie Wernecke from her family and forced her to undergo court ordered medical treatments. A judge allowed her to go home in November 2005, and though the family is grateful to have been reunited they believe their Constitutional Rights were violated. The lawsuit, filed by a Frisco, Texas attorney, is based on violations of the Fourth and Fourteenth Amendments to the US Constitution.

The Fourth Amendment protects citizens from unreasonable search and seizure. CPS child detentions are considered a seizure. The Fourteenth Amendment protects property and legal rights, and ensures that citizens have due process rights.

Many people have sued CPS in Federal Courts based on the violation of these Constitutional Rights.

Source: Wernecke family suing Nueces County, CPS by Erin Cargile of KRIS-TV.

***

The Fourth Amendment to the US Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourteenth Amendment to the US Constitution:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

What are your thoughts about how CPS should be changed?

Please leave a comment here to tell us what’s wrong with the child protective services system and how you believe it should change.

The WCF Courier reported:

Marie Mahler, 39, of Cedar Falls, filed three reports between Aug. 27, 2004, and Oct. 7, 2004, used in a juvenile court case that she “knew or reasonably should have known were false” and that the reports would be used by a judge to make a decision in the case, according to court records obtained by the Courier.

Mahler repeatedly included misrepresentations of conversations, events and relationships of the people involved with the case, according to court records.

Court records say she claimed that Jesup police officers were called to the mother’s home for a drug investigation in August 2004. Records indicate an officer was called to the home not for drugs, but to prevent an altercation between two siblings. No signs of drugs were found.

Mahler, who has been a Buchanan County social worker since 1998, pleaded ‘not guilty’.

Roger Munns, a spokesman for her employer, the Iowa Department of Human Services, said “This is really quite unusual.”

Yes, we know that caseworkers lie in court documents and get away with it, and that having one criminally charged is unusual. However we hope that this will become common practice to stop lying CPS social workers everywhere.

***

Would you like to see your caseworker charged criminally for lying about you? If so, keep this in mind:

While the offenses occurred in 2004, Bernau said Mahler is exempt from Iowa’s statute of limitations law because she is still a state employee. In most felony cases, charges have to be filed within three years of the offense. However, that three-year period begins for state employees only after they are no longer working for the state.

Perjury is a Class D felony punishable by up to five years in prison.

(This is per Iowa state law. Your state laws may be different - do the research.)

Source: Social worker charged with perjury, by Josh Nelson, Courier Staff Writer, June 12, 2007

***

If you have ever had a caseworker lie about you in a court document, please leave a comment to this post, and tell us about it.

I’ve seen way too many lies in social worker reports to the courts.

It’s time for this criminal practice to result in prison sentences. Every perjury conviction will be a victory!

CPS Employee on trial for molestation

June 13, 2007 - Cory Heinzman, a man described as a “former Child Protective Services employee” is on trial for molesting two boys, one of whom he confessed to have slept in the same bed with, though he also “denied having anything but professional contact” with the boys.

Excuse me? Since when do CPS employees sleep with 13-year-old kids and call it “professional contact”?

The article goes on to state that the younger boy told his mother about the molestation during the course of a heated argument in 2005. The older boy then saw a news account of this and told his father that he too was molested.

Source: Man Denies Molestation Charge: Judge dismisses several charges against former Child Protective Services employee by Rebecca L. Sandlin for the Noblesville Daily Times.

Update! Cory Heinzman - convicted!

June 14, 2007 - Cory Heinzman, a former CPS caseworker, has been CONVICTED on 17 charges, many of them felonies.

Source: Ex-caseworker found guilty on 17 counts
Heinzman may face more than 190 years in prison for sexual acts involving 2 teen boys

Google News Archive on Cory Heinzman

Arizona CPS social workers are now using a “new” risk assessment tool that the state spent a lot of money to develop. Apparently the goal of the risk assessment is for investigations to be more thorough and comprehensive.

A sample risk assessment distributed to employees had 81 pages, which astounded CPS social workers who are expected to complete this process each time they do an investigation. It could be that caseworkers will spend more time doing paperwork and less time detaining children.

According to one child welfare expert, the risk assessment tool is based on 20-year-old standards and will do nothing to make children safer. However state officials say the assessment is used in other states and that Arizona CPS staff contributed feedback for development of the project.

From the June 4, 2007 article in the Arizona Daily Star:

Without the changes, “we weren’t able to see how they (investigators) made their decisions,” said Janice Mickens, an administrator with CPS. “We need to have something that guides us throughout this process.”

Risk assessment tools have been used by CPS agencies for years. The “new” Arizona risk assessment is based on a Washington risk assessment developed in 1986, and some experts consider it antiquated. The state of Washington also considers it out of date and is working on developing new methods.

From the article:

The general philosophy behind it and the Arizona model is what is known as a “consensus-based” approach, meaning the case manager assesses risk from a number of areas like the child’s behavior and development, severity of abuse and the qualities of the caretaker, among others.

Such an approach has been criticized in social work academic journals for being subjective, overly broad and using the same variables to predict different types of abuse and neglect.

Using a risk assessment, CPS social workers can detain children based on what might happen, even when nothing has happened. Questions on the risk assessment may include questions such as “are the parents legally married?” and “how many children are in the home?”.

Rep. Jonathan Paton of Tucson said “81 pages seems excessive. I can envision a lot of frustration from workers who have too many cases as it is.” But Mickens, the CPS administrator, said she didn’t think the risk assessment will add much time to the investigation process because social workers are already filling out some of the same forms.

The agency didn’t study the time factor so they don’t know how long it will take Arizona CPS social workers to fill out the form, but they feel this risk assessment is a “critical tool” as it will force CPS caseworkers to “ask the right questions”.

Arizona CPS has been responsible for several recent high-profile deaths of children who had open CPS cases: Tyler Payne, 5; his sister Ariana, 4; and Brandon Williams, 5.

Source: CPS assessment tool raises criticism
Long paperwork said to be thorough, but system is based on 1986 model by Josh Brodesky of the Arizona Daily Star

Please leave a comment on this post to let me know what CPS is called in your state - or country. Thanks… -LJM

“The system is maxed,” Patrick Crimmins said. “The system as designed, depending on your point of view, either cannot or will not absorb more children.”

Because foster care providers refuse to house hundreds of foster children, the children are forced to sleep in hotels or even in CPS offices.

Rather than admitting that far too many of the children in the state’s custody have been unjustly and unfairly taken from viable and loving parents, Crimmins, who is spokesman for the Texas Department of Family and Protective Services, blames the current crisis on a law that allows foster parents to refuse children, and on the children themselves, some of whom are labeled “severely disturbed”.

Are the children “severely disturbed” because they’ve been unfairly ripped from loving parents? Are they “severely disturbed” because of childhood mental illnesses that the parents were trying to control when they lost custody? What’s the story behind having so many homeless “severely disturbed” children in the state’s care?

I’d be disturbed too if I was taken from my parents by state-paid ‘do-gooders’ and forced into homelessness with strangers. And do they really expect children to take this kind of abusive treatment, and remain calm? What does this say about our society that we allow such cruelty to exist against the most helpless citizens, the children?

Meanwhile Texas legislators may pass laws forcing foster care providers to take children they don’t want.

“Allowing providers to pick and choose among foster children and the services they deliver undermines the entire foster care system,” Comptroller Carole Keeton Strayhorn said, adding, ”It also puts caseworkers in a bind when contractors can dictate which children they will serve.”

Source: Kids sleep in CPS offices after foster-care rejection

Three-year-old Julia may have been taken from her parents, not because of abuse, but because of a brittle bone disease. The appellate court ordered for Julia to be returned to her parents but as of this time, she’s still in the kinship care foster home of her aunt and uncle. Saratoga County, New York, is requesting that the case be reviewed by the state’s highest court.

Apparently when she was younger, Julia suffered broken bones and had red splotchy-looking marks on her. Some doctors claimed this could be evidence of child abuse but the family says it could be a brittle bone disease - osteogenesis imperfecta (OI).

Source: County to appeal in ‘brittle bone’ abuse case

This is the place for prayer requests during June 2007.

Please refer to the most recent prayer requests page to leave your request.

This is the guestbook for June 2007.

Note: This thread is closed to new comments. Please refer to the most recent guestbook thread to leave your message.

Source: Rogers v. County of San Joaquin - Ninth Circuit Opinions

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 05-16071
D.C. No.CV-02-0196o1-DFL
OPINION

THOMAS ROGERS; NICOLE ROGERS,
an individual; STEVEN KAHNCOCK,
Guardian ad litem for minors
Thomas R. Rogers and Shelby
Rogers,

Plaintiffs-Appellants,

                 v.

COUNTY OF SAN JOAQUIN;
CHARLOTTA ROYAL, individually
and in her official capacity as
social worker for the County of
San Joaquin Human Services
Agency; CITY OF LODI; DENNIS
LEWIS, individually and in his
capacity as police officer for the
City of Lodi,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Argued and Submitted
April 16, 2007—San Francisco, California
Filed May 29, 2007
Before: Warren J. Ferguson, Stephen Reinhardt, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt

COUNSEL
David J. Beauvais, Oakland, California, for the plaintiffsappellants.
Daniel C. Cederborg, Office of the County Counsel, County
of San Joaquin, Stockton, California, for the defendantsappellees.

OPINION

REINHARDT, Circuit Judge:

The Rogers family brought this action under 42 U.S.C. § 1983, alleging that the conduct of social worker Charlotta Royal in removing the Rogers children from their home without a warrant violated their Fourth and Fourteenth Amendment rights. Both parties filed motions for summary judgment, although the Rogerses’ was as to liability only. The district court granted Royal’s motion on the basis of qualified immunity. Because we hold that it was clearly established that warrantless removal of children is permissible only in cases of exigency, and that it would have been apparent to a reasonable social worker that no exigency existed in this case, we reverse both the grant of summary judgment to Royal and the denial of partial summary judgment to the Rogerses.

FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 2001, San Joaquin County Child Protective Services received a report of child neglect in the Rogers home. The caller stated that three-year-old Shelby Rogers (“Shelby”) and five-year-old Thomas Rogers, Jr. (“Tommy”) were not toilet-trained, were locked in their rooms at night and in a room at their parents’ business during the day, were not receiving medical or dental care, that Tommy had lost his teeth due to bottle rot, that Shelby was still being fed with a bottle, that their home was dirty and maggot-infested, and that there were unsecured guns in the home. The intake unit did not view this report as requiring an emergency response, but rather classified it as warranting a response within ten days.(1) Three days later, before any action had been taken to investigate the report, Child Protective Services received a second, similar report regarding the Rogers children and likewise classified it as requiring a ten-day response.

[Footnote 1: Royal testified that the criteria that separate an emergency response from a ten-day response case varies, but examples of emergency response situations would be physical abuse or sexual abuse when the perpetrator is in the home, or the absence of food from the home.]

On August 31, Royal, a social worker with Child Protective Services, visited the Rogers home, but, finding no one there, departed without leaving a message or a note. She returned a week later, on September 7 at 8:30 a.m. Observing that the family was home, Royal called for the assistance of Lodi Police and waited for the officers to arrive before making contact with the family. Officer Dennis Lewis and at least one other police officer responded.

The family was just getting up when Royal and the officers entered their home.(2) Royal claimed that following her entry she heard Shelby knocking and asking for her mother from inside a bedroom. The mother, Nicole Rogers (“Nicole”), claims, however, that Shelby was neither knocking nor calling for her.

[Footnote 2: The parties debate whether the Rogerses consented to the entry, but that issue is not before us on appeal. Thus, our decision does not apply to that question, to the extent that it may still be viable in the district court.]

Officer Lewis asked to see the whole family. Nicole went to Shelby’s bedroom and unfastened a latch-type lock to open the door. Shelby emerged from the room dressed in a diaper that, according to Royal, appeared to be soiled. Nicole then retrieved Tommy from his bedroom. Tommy emerged wearing pajamas and a pull-up diaper. Royal saw a thumb lock similar to those used in bathroom doors on the outside of Tommy’s bedroom door. Royal believed that both children had been locked in their bedrooms, but Nicole testified that Tommy’s bedroom door was not locked. The father, Thomas Rogers (“Thomas”), also got out of bed to talk with Royal and Officer Lewis.

Royal asked why the children had locks on their bedroom doors. Nicole testified that she told Royal that they had never locked Tommy’s door, that his room had a lock on the door when they moved into the house, and that they had simply never removed it. According to her testimony, she also stated that they locked Shelby in her room at night because otherwise she would roam the house and get into things while the rest of the family was sleeping. However, Royal testified that Nicole first stated that she locked the children in their rooms only when she showered, and that only after Royal pointed out that Nicole had not been showering when they arrived did she say that she locked Shelby in at night. Royal testified that she believed Nicole had tried to lie to her and that this concerned her. She said that she was also concerned about the children being locked in their bedrooms because it could result in injury due to lack of supervision or as a result of a fire, and could restrict their access to the bathroom. Royal told the Rogerses that they would have to remove the locks. Nicole testified that she agreed to do so, but Royal contended that the Rogerses did not respond to her statement. Royal asked why the children were still in diapers. The Rogerses testified that they replied that they were “working with” Tommy, and that while they put a pull-up diaper on him at night, he was “doing good during the day.” They said that Shelby was not yet toilet-trained. Royal testified, however, that Nicole told her that “she hadn’t had time” to toilet-train the children.

Royal and Officer Lewis inspected Tommy’s mouth. Tommy suffered from severe bottle rot. Several of his teeth were missing and his remaining teeth were yellow and showed signs of decay. His mother acknowledged during her deposition that Tommy’s mouth had looked “horrible.” Nicole told Royal that Tommy had never complained of pain. She said that a dentist had told her that Tommy needed surgery, and she had scheduled an appointment but cancelled it out of fear that Tommy would be harmed, after she and her husband saw a television program about a child dying while under general anaesthesia. Royal testified that she believed that this meant the Rogerses were unwilling to take Tommy to the dentist. Royal asked if the family had medical insurance. According to Nicole, she answered that they did not have medical insurance at the moment but that she was waiting for an application, at which point Royal asked for proof that she had ever had insurance and Nicole showed her old membership cards for Kaiser. Nicole testified that Royal then asked her if the cards were active and she replied that they were not. Royal, however, stated that Nicole first told her that they had medical insurance and then attempted to deceive her by showing her inactive cards when she asked for proof. This, according to Royal, caused her further to doubt Nicole’s honesty.

Royal observed that the children had multiple circular bruises on their legs. Nicole stated that the children were always falling down. Royal also observed that Shelby had a large scratch on the side of her face. Nicole and Thomas told Royal that Shelby sustained the scratch when she fell off a chair at their workplace. They explained that they worked in an auto shop in San Leandro and that they took the children with them to work every day. Royal testified that she did not think that the children were being physically abused. She was concerned, however, that, because the children were taken to their parents’ place of business every day, they were isolated and would not be seen by pre-school teachers or others who would be required to report suspected abuse. Royal also observed that Shelby had unkempt hair that appeared to be thin and missing in some areas and that both children were very pale. She believed that the thinning hair could indicate malnutrition and the pale skin could be due to a vitamin deficiency or lack of sunlight. She observed, however, that the refrigerator and kitchen cabinets were well stocked with food and that the bathroom had the necessary toiletries. She told the Rogerses that the children looked very pale and sickly, and that they could be suffering from a vitamin deficiency or from lack of sunlight. Nicole responded that their pale complexion and Shelby’s thin hair were due to the fact that their father has pale skin and fine hair.

The parties dispute the condition of the Rogers home. Royal and Officer Lewis stated that they observed piles of dirty dishes and an overflowing garbage receptacle in the kitchen, as well as piles of dirty clothing scattered about the kitchen, living room and bedrooms. Thomas testified, however, that the garbage receptacles were only partly full. He also testified that the reason for the piles of clothing was that the washer and dryer were broken. Royal stated that she observed that the children had dirty bedding and mattresses without frames. In Shelby’s room, she saw clothing that she believed was dirty scattered on the floor. The Rogerses do not dispute that the children did not have bedframes, but testified that the clothing and bedding were clean. Thomas also testified that Shelby’s clothes were on the floor because she had a habit of pulling them out of her dresser to play dress-up. In Tommy’s room, Royal observed a brown substance that she believed to be feces smeared on the wall and a substance that she thought was rat droppings on the floor. Officer Lewis observed what he thought was vomit in the bottom drawer of a night stand. Tommy told Royal that the substance on the wall was a smashed graham cracker. The Rogerses testified that the alleged rat droppings on the floor actually consisted of small grains of filling that came out of a broken hacky sack ball, and the purported vomit, like the smears on the wall, was the remains of broken graham crackers.

There were five guns in the Rogerses’ bedroom, four of which were unloaded and stored in the closet, and one of which was loaded and kept in the dresser next to the Rogerses’ bed. Thomas testified that ammunition for the guns remained in the closet in a childproof container. Nicole testified that the gun in the dresser had a trigger lock with a key, and the key was located in a jewelry box mounted on the wall. Royal stated that after her conversation with the Rogerses and her observations of the condition of the home, she believed that the Rogers children had been neglected for some time and that there was an imminent risk to their physical health and safety. Based on this opinion, Royal chose to remove them from their home immediately and place them in the custody of Child Protective Services.(3)

[Footnote 3: Royal and Officer Lewis dispute who made the decision to remove the children, with both claiming that the other did so. Royal concedes, however, that this factual dispute is not relevant to the outcome of this appeal because she was ultimately responsible for the decision and could have countermanded it if she had disagreed.]

Royal did not offer the Rogerses alternative accommodations, medical referrals for the children, or services from the agency whereby the children could remain at home. Royal also did not obtain a warrant. Royal called for a car seat and, when it arrived, transported the children to Lodi Memorial Hospital. She testified that Tommy complained of mouth pain while at the hospital. She also testified that an attending nurse stated that the children appeared to be malnourished and suffering from a vitamin deficiency. The doctor who saw the children stated in his evaluation that both were “alert” and “playful,” but had “poor hygiene.” The doctor wrote that Tommy had “many teeth missing” and that Shelby’s hair was “sparse, brittle.” The doctor also wrote that the purpose of the visit was “medical clearance prior to [Child Protective Services] placement” and classified the visit as routine rather than emergency. After the medical clearance the children were placed in a shelter. Tommy did not receive any dental care that day or at any time while in the County’s custody. The children were returned to their parents on September 20, 2001, after the Rogerses made changes to their home and lifestyle as required by Child Protective Services, obtained medical insurance, and arranged for Tommy to have oral surgery. As a result of their time in custody, according to their mother, the children became concerned about being separated from their parents. Nicole further testified that Tommy, in particular, “lost trust in people in general” because of the experience. The Rogerses appealed the grant of summary judgment to Royal as well as the denial of their own motion for partial summary judgment as to Royal.

JURISDICTION

The grant of summary judgment is a final order and thereby gives us jurisdiction over both the grant of summary judgment to Royal and the denial of partial summary judgment to the Rogerses. See Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 694 (9th Cir. 1992). We have declined to exercise our jurisdiction over denials of summary judgment when reviewing orders granting summary judgment where the record has not been fully developed. Id. at 694 n.2. Such is not the case here. Moreover, both sides agree that the denial of the Rogerses’ motion is properly before us on appeal.

QUALIFIED IMMUNITY

I. Constitutional violation:

[1] In assessing a claim of qualified immunity, we must first decide whether “the [official’s] conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “Parents and children have a well-elaborated constitutional right to live together without governmental interference.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000). “The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.” Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001). Officials violate this right if they remove a child from the home absent “information at the time of the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.’ ” Id. at 1106 (quoting Wallis, 202 F.3d at 1138). The Fourth Amendment also protects children from removal from their homes absent such a showing. Doe v. Lebbos, 348 F.3d 820, 827 n.9 (9th Cir. 2003). Officials, including social workers, who remove a child from its home without a warrant must have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant. Mabe, 237 F.3d at 1108.

[2] Serious allegations of abuse that have been investigated and corroborated usually give rise to a “reasonable inference of imminent danger sufficient to justify taking children into temporary custody” if they might again be beaten or molested during the time it would take to get a warrant. Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir. 1997). However, an official’s prior willingness to leave the children in their home militates against a finding of exigency, as does information that the abuse occurs only on certain dates or at certain times of day. Mabe, 237 F.3d at 1108; Wallis, 202 F.3d at 1140.

[3] Under this standard, the district court correctly concluded that Tommy’s bottle rot, the children’s malnourishment, and the disorderly conditions in the home did not present an imminent risk of serious bodily harm. This is so whether the disputed factual questions are resolved in favor of appellants or defendants.

[4] At oral argument, Royal conceded that she could have obtained a warrant within hours. There is no indication in the record that so short a delay could have resulted in a significant worsening of the children’s physical conditions or an increase in the prospects of long-term harm. Royal testified that she thought, after seeing Tommy’s mouth, that he could have an abscess and that he almost certainly had an infection. However, she does not assert that she believed that his condition would worsen if she delayed taking him into custody in order to obtain a warrant. Tommy’s teeth may have hurt, but, if so, he had likely been experiencing such pain for a considerable period of time and the “pain” was not so serious that he ceased to be “playful” and “alert.” Under such circumstances, any pain Tommy may have experienced cannot justify a failure to obtain a warrant or the peremptory removal of the children from their parents’ custody. Similarly, Royal’s testimony, even viewed in the light most favorable to her, does not suggest that the malnourishment in this case was sufficiently serious to justify the children’s immediate removal as both were alert and active, and there was no indication of imminent danger. It is worth noting in this respect that when the children eventually reached the hospital, the doctor did not suggest any immediate treatment for Tommy’s bottle rot or Shelby’s malnutrition.(4)

[Footnote 4: Although only the information that Royal had at the time that she made the challenged decision is relevant to the qualified immunity inquiry, the doctor’s response is relevant to the question of how serious the children’s conditions would have appeared to the reasonable social worker. Baker v. Racansky, 887 F.2d 183, 185 n.1 (9th Cir. 1989).]

[5] Nor do the other circumstances cited by Royal support a finding of exigency, even if her version of all the disputed facts is accepted as true, and even if all of the conditions observed by her are considered collectively. There was no imminent danger of serious bodily harm as a result of Shelby being locked in her room, as this occurred only at night. Cf. Mabe, 237 F.3d at 1108 (concluding that the sexual abuse alleged in that case occurred only at night, so there was time to get a warrant before the child would be in imminent danger). The allegations that the children were also locked up during the day at their parents’ workplace, even if true, do not support a finding of imminent risk of serious bodily harm. The chances of accidental injury or of a fire breaking out at the Rogerses’ workplace during the few hours that it would take Royal to obtain a warrant were very low. So remote a risk does not establish reasonable cause to believe that the children were in immediate danger.

[6] Similarly, the conditions of the home, even if as unsanitary as Royal asserts, fail to indicate any imminent risk of serious bodily harm. Like the bottle rot, the mess in the Rogers living quarters, to the extent that it may have existed, was a chronic, ongoing problem. The presence of disorderliness and a small amount of droppings, feces, and other matter may increase the risk of eventual illness, but there is no indication in the record of any particular risk that the Rogers children would become seriously ill during the few hours that it would take Royal to obtain a warrant. Likewise, it would have presented no risk to the children to delay the commencement of their toilet-training for a few hours while Royal followed the requisite legal procedures.

[7] Royal also relies on the family’s lack of medical insurance and daycare. These conditions present no imminent danger of harm, and Royal does not argue otherwise. Thus, they, too, provide no support for the warrantless removal. It would certainly be preferable for all children to have medical insurance and quality daycare; given the absence of universal provision of such services, however, reliance on factors so closely related to economic status as a justification for removal would border on the unconstitutional.

[8] Royal also argues that the cumulative effect of all of the problems in the Rogers household placed the children in imminent danger. However, her argument falls far short of the mark. Even viewing the factors cumulatively, we have no doubt that there was no imminent danger to either or both of the Rogers children.

[9] Our conclusion that no exigency existed here is also supported by the fact that the Child Protective Services delayed in investigating the case and in removing the children. See Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir. 1999) (holding that a 14-day delay by social workers in entering the family home to investigate a report of abuse is evidence of lack of exigency). Here, the concerned officials classified the case as a ten-day response, indicating that they did not think that any exigency existed. In fact, Royal waited until eleven days after the first referral to visit the house for the first time, and an additional seven days, following the first aborted visit, before returning, for a total delay of eighteen days, four days longer than the delay in Calabretta. That neither Royal nor the other staff members thought that the allegations required immediate action militates against a finding of exigency. When Royal finally returned to the Rogers home, the evidence she observed may, at most, have supported the anonymous tips received by the Services; it is evident, however, that it provided no basis for concern regarding any additional cause of imminent injuries. Royal’s actions after seeing the children also tend to support the view that the circumstances were not exigent. Instead of taking prompt action to obtain medical care as we would have expected her to do if she believed that the children faced imminent danger of serious harm to their health, Royal spent close to two hours talking with the family before deciding to remove the children from the parental home. She further delayed in order to wait for someone to bring a car seat rather than calling for an ambulance or other emergency transport. Although Royal did take the children to the hospital when she finally decided to place them in custody, the visit was treated by hospital staff as a routine screening visit, not as an emergency call.

[10] In sum, whether we accept the version of the facts offered by the Rogerses or by Royal, there is no support at all in the record for the conclusion that the Rogers children were likely in imminent danger of serious bodily harm. Thus, we hold that, under any view of the facts, the Rogerses’ Fourth and Fourteenth Amendment rights were violated when Royal removed the children without a warrant.

II. Reasonable Official:

[11] In order to assess Royal’s claim of qualified immunity, we must conduct a two-part analysis: “1) Was the law governing the official’s conduct clearly established? 2) Under that law, could a reasonable [official] have believed the conduct was lawful?” Ram, 118 F.3d at 1310 (quoting Carnell v. Grimm, 74 F.3d 977, 978 (9th Cir. 1996)). The law was clearly established at the time of the events in this case that a child could not be removed from the home without prior judicial authorization absent evidence of “imminent danger of serious bodily injury and [unless] the scope of the intrusion is reasonably necessary to avert that specific injury.” Mabe, 237 F.3d at 1106; Wallis, 202 F.3d at 1138; Ram, 118 F.3d at 1310.

[12] Notwithstanding this clearly established law, the district court granted Royal qualified immunity, holding that the application of the law to medical neglect was not clearly established. However, it is not necessary that a case be on “all fours” with the facts of the instant case. A right is clearly established if “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 US at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Prior to the events in question, we had repeatedly held that a family’s rights were violated if the children were removed absent an imminent risk of serious bodily harm. A reasonable social worker would need nothing more to understand that she may not remove a child from its home on the basis of a medical condition that does not present such a risk.

[13] The district court appeared to be concerned that social workers may have difficulty assessing the imminence of a threat from a particular malady. On that basis, it concluded that without a case specifically analyzing exigency in cases of bottle rot and malnutrition social workers would not be able to determine whether those conditions present an imminent risk of serious bodily harm. Even if it might be difficult for a social worker without medical training to assess the imminence of the threat posed by some dangerous maladies, such is not the case here. One need not be a licenced physician to recognize that in the case of a child who is both alert and active neither bottle rot nor malnutrition is the type of condition that will lead to serious injury if not corrected within a matter of hours. A reasonable social worker could reach no other conclusion. Even Royal stated during her deposition that in her opinion bottle rot does not amount to exigency. Thus, because a reasonable social worker would have understood that the children faced no imminent risk of serious bodily harm, as required by clearly established law, the district court erred in granting qualified immunity to Royal and denying partial summary judgment to the Rogerses.

CONCLUSION

Child abuse and neglect are very serious problems. We applaud the efforts of social workers to address these matters and to protect the vulnerable victims of these crimes. “No one can doubt the importance of this goal.” Cf. Mincey v. Arizona, 437 U.S. 385, 393 (1978). However, the rights of families to be free from governmental interference and arbitrary state action are also important. Thus, we must balance, on the one hand, the need to protect children from abuse and neglect and, on the other, the preservation of the essential privacy and liberty interests that families are guaranteed under both the Fourth and Fourteenth Amendments of our Constitution. Assuming Royal’s version of the facts, the Rogers children were in a sorry state and suffering from neglect of a type that could, if their parents’ conduct was not modified within a reasonable period of time, lead to long-term harm. Still, the conditions here did not present an imminent risk of serious bodily harm. It would have taken Royal only a few hours to obtain a warrant. In removing the Rogers children from their home without obtaining judicial authorization, Royal violated the Rogerses’ clearly established Fourth and Fourteenth Amendment rights. The lack of exigency would have been apparent to any reasonable social worker. Accordingly, we conclude that the district court erred in granting qualified immunity to Royal and in denying the Rogerses’ motion for partial summary judgment as to Royal.

We REVERSE the grant of summary judgment to Royal and we likewise REVERSE the denial of the Rogerses’ partial summary judgment motion with respect to her. We REMAND with instructions to grant partial summary judgment to the Rogerses and for further proceedings consistent with this opinion.

REVERSED and REMANDED.
6330 ROGERS v. COUNTY OF SAN JOAQUIN