Tracie Palmer left this message on our page for attorney requests. I felt it was too long for that page but is important enough that everyone here should see it. Please note that at the end she states she is looking for an attorney for her child.

This is an excellent In Pro Per Complaint against the county and social workers. All of you who are facing injustice from county agencies may want to start writing something similar. – ljm

Tracie Palmer
In Pro Per
SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SHASTA
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TRACIE PALMER, an individual, and
LUCIA D. PALMIERI, a minor, by and through her Guardian ad Litem, TRACIE PALMER,
Plaintiffs,
vs.

SHASTA COUNTY DEPARTMENT OF SOCIAL SERVICES, CHILDREN AND FAMILY SERVICES DIVISION,
MICHAEL SCHWEITZER, individually, and as an employee of Children and Family Services,
HOLLY HETZEL, individually, and as an employee of Children and Family Services,
GAYLE MITCHELL, individually, and as an employee of Children and Family Services,
DEBRA ANDERSON, individually, and as an employee of Children and Family Services,
TINA MARTINEZ, individually and as an employee of Children and Family Services,
RANDEE MAEDA, individually, and as an employee of Children and Family Services,
and DOES 1-25, inclusive,
Defendants. )
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Case No.: 166491

SECOND AMENDED
COMPLAINT FOR DAMAGES

Plaintiffs Tracie Palmer (herein after referred to as “Plaintiff Palmer”) and Lucia D. Palmieri (herein after referred to as “Plaintiff Palmieri”) allege as follows:
1. This is a civil action seeking damages against Defendants for the commission of acts, under color of state law, that deprived Plaintiff Palmer and Plaintiff Palmieri of rights secured to them by law and the Constitutions of the United States and the State of California. Damages are also sought against Defendants for the commission of tortious acts in breach of California State law.
2. Plaintiffs are mother (Palmer) and daughter (Plaintiff Palmieri) and at all relevant times resided in Shasta County, California.
3. Defendant Shasta County Department of Social Services, Children and Family Services Division (CFS) is a governmental agency within and part of Shasta County, California.
4. Defendant Michael Schweitzer was at all relevant times, including September 15, 2006, an employee of CFS. He is sued by Plaintiffs in both his individual and official capacities.
5. Defendant Holly Hetzel was at all relevant times, including September 15, 2006, an employee of CFS. She is sued by Plaintiffs in both her individual and official capacities.
6. Defendant Gayle Mitchell was at all relevant times, including September 15, 2006, an employee of CFS. She is sued by Plaintiffs in both her individual and official capacities.
7. Defendant Debra Anderson was at all relevant times, including September 15, 2006, an employee of CFS. She is sued by Plaintiffs in both her individual and official capacities.
8. Defendant Tina Martinez was at all relevant times, including September 15, 2006, an employee of CFS. She is sued by Plaintiffs in both her individual and official capacities.
9. Defendant Randee Maeda was at all relevant times, including September 15, 2006, an employee of CFS. She is sued by Plaintiffs in both her individual and official capacities.
10. Plaintiffs do not know the true names and capacities, whether individual, corporate, associate, or otherwise, of defendants sued as Does 1 through 25, inclusive, and therefore sues these defendants by such fictitious names pursuant to Code of Civil Procedure section 474. Plaintiffs will seek leave to amend this complaint to allege the true names and capacities of these defendants when ascertained, together with additional charging allegations as necessary. Plaintiffs are informed and believe that each of the fictitiously named defendants is legally responsible in some manner for the occurrences or actions relevant to those occurrences alleged and for Plaintiffs’ resulting damages.
11. At all times pertinent hereto, each of the defendants was the agent or employee of each of the remaining defendants and has ratified and/or approved the acts of the remaining defendants.
12. At all times material to this complaint, each defendant acted or purported to act under color of the law, customs, and usages of Shasta County and California.

FACTS COMMON TO ALL CAUSES OF ACTION
13. Plaintiffs lived in the home at 6044 Emerald Lane in Redding, California from October 2000 until May 2002 and then again from August 2003 until September 15, 2006. Plaintiff Palmer made her living as a freelance PC technician out of the garage/shop and paid a share of rent and other household bills in those months.
14. The home was owned by Marcella Shatnawi (herein after referred to as “Shatnawi”), Plaintiffs’ sister/aunt, and the three lived there with their mother/grandmother, Earleen Smith.
15. On September 7, 2006, Earleen Smith died in the home. It was then-five-year-old Plaintiff Palmieri who discovered her grandmother in her room.
16. A neighbor took Plaintiff Palmieri in for the week to minimize any further upheaval to her while Plaintiff Palmer and Shatnawi were handling the necessary plans and arrangements.
17. On September 15, 2006 at or about 7:00 a.m. Redding Police Officers Harry Bishop, Luke Blehm, and Officer Bryan arrived at the home, stating they had received an “anonymous report” of noxious odors consistent with methamphetamine manufacturing coming from the home.
18. Plaintiff Palmieri was not at home at the time, or even in residence. When police arrived at the residence, the child was at school.
19. Upon making entry to the home, the officers claimed discovery of Ziploc baggies and paraphernalia, “with drug residue”.
20. Police also claimed to discover, among thousands of computer parts and electronic components in the shop/garage and the dozens they checked out, a used computer allegedly stolen from the Shasta County Sheriff’s office.
21. The officers then contacted Defendant Holly Hetzel and suggested an assessment and investigation by CFS at the residence.
22. Police confiscated all items that they found objectionable as evidence. The officers concluded that Shatnawi was not involved in or responsible for the seized property. Neither department reported concerns regarding the home itself.
23. Shatnawi (Plaintiff Palmieri’s ostensible non-offending caretaker) was also willing, able, and requesting immediate care of Plaintiff Palmieri at that time.
24. The child was instead summarily and simultaneously detained by CFS social workers – seized from elementary school during her school day. It is possible that some of the specific identities of social workers on the scene are as yet unknown to Plaintiffs, but they would be named herein or included in Does 1-25.
25. No one at the scene gave Plaintiff Palmer any information – or access to information – regarding rights or procedures in the juvenile court.
26. Defendant social workers and Does 1-25 made no contact whatsoever with Plaintiff Palmer from September 15, until Wednesday, September 20, 2006 nor was she given any direction, information, or access to information regarding the matter from anyone.
27. Notice of the Detention Hearing and a copy of the petition were served on Plaintiff Palmer by Defendant Mitchell on September 20, 2006.
28. The Detention Hearing commenced moments later and the only evidence heard was offered by Defendant social workers, County Counsel, and Does 1-25. The court ordered Plaintiff Palmieri further detained in the custody of the court.
29. Plaintiffs’ first visit was on October 5, 2006 and they began regular, monitored visitation at the LINCS offices, which housed most of CFS’ social workers (and did at all relevant times).
30. Plaintiff Palmer authorized all county agencies to share case information, gave CFS all family history information, received the initial case plan, and in mid-December 2006, Plaintiff Palmer submitted a change of address to CFS – duly filed with the courts.
INTRODUCTORY ALLEGATIONS
31. Defendants summarily seized Plaintiff Palmieri from her school, home, and family without a warrant, just or probable cause and in the absence of exigent circumstances (in violation of WIC §300.2, §306(a)(2)) – not because they had to, but because they could.
32. The child was not properly and lawfully released from custody when initial dependency petition was not timely filed (pursuant to California Welfare and Institutions Code (WIC) §313), or when the Detention Hearing was not timely held (pursuant to WIC §315).
33. Defendants Mitchell, Maeda, CFS, and Does 1-25 barred all entitled contact between Plaintiffs (pursuant to WIC §308(a)), with no claim of detriment to the child, thereby denying Plaintiff Palmer’s fundamental liberty interest in soothing and reassuring her child and depriving the five year old of her mother’s essential, elemental, recuperative comfort.
34. Defendants CFS, social workers, and Does 1-25 put Plaintiff Palmieri at untenable, unnecessary risk when and as they detained her in the foster care of strangers. This was in no way mitigated by the eight placements the child was subjected to in just twelve months.
35. The initial petition and Detention Report, filed by Defendant workers and Does 1-25, and co-signed by Defendant Maeda, were made up almost entirely of conclusory statements having no basis in fact and wholly fabricated charges and allegations.
36. These fabrications included, but were not limited to, allegations and assertions that:
a. On September 15, 2006, Plaintiff Palmer was being “arrested for Child Endangerment”,
b. Plaintiff Palmer “was unable to make an appropriate plan for the care of the child prior to her incarceration”,
c. Plaintiff Palmer had left her daughter “with no provision for support”,
d. “The home contained drugs” and that objectionable and illegal items were “found in the home”,
e. On September 15, 2006, Plaintiff Palmer had “substance abuse” and “anger control problem” that “put the child at risk of harm”,
f. Plaintiff Palmer had a CFS “history of…physical abuse [of the child] and [posed] substantial risk [to the child] ”,
g. CFS provided “reasonable services”, albeit in the distant past, but Plaintiff Palmer had failed to benefit from them, and,
h. On September 15, 2006, “there were no services that could have prevented” Plaintiff Palmieri’s immediate seizure.
Each and every one of these statements was false, and known to be false, at the time they were made and/or verified by Defendants.
37. Defendants and each of them intentionally withheld and/or concealed exculpatory evidence from the Juvenile Court that would not support their actions or claims, and would likely confirm the viability of Plaintiff Palmieri’s immediate release to a responsible family member. These included, but were not limited to, the following:
a. Neither RPD nor CFS expressed concern about the residence and it was searched and cleared by several agents of both departments,
b. At the time of her removal, Plaintiff Palmieri’s physical condition and emotional health were hearty and robust; Defendants concurred, seeing no need for medical consultation,
c. In spite of Defendants’ claims of risks and dangers that Plaintiff Palmer posed to the child, there was never a specific instance of abuse or neglect claimed by CFS anywhere at any time,
d. Plaintiff Palmieri told Defendants that she had suffered no physical or emotional abuse or neglect prior to her removal, nor was Plaintiff Palmer accused of any specific abuse.
e. The initial interview of Plaintiff Palmieri by CFS workers (pursuant to WIC §328) was exculpatory yet suppressed,
f. By virtue of the September 15 ‘inspections’ by RPD and CFS, Shatnawi (and her home) had already been all but qualified as a responsible relative placement, an ostensibly nonoffending caretaker who was willing, able, and requesting interim custody of Plaintiff Palmieri,
g. There were several additional alternatives available for the child’s interim care,
h. Defendant Mitchell did not relay Plaintiff Palmer’s voluntary pledge to the court (made before the Detention Hearing commenced) that she would vacate the residence so that the child could remain.
Each and every one of these mitigating, exculpatory facts was material, and known to be material, when and as they were concealed and withheld from the court by Defendants.
38. Defendants failed to proceed in accordance with the Welfare and Institutions Code by:
a. Refusing to conduct any real investigation into the situation on September 15, 2006,
b. Negating possible scenarios that could facilitate maintaining Plaintiff Palmieri safely in her own home (pursuant to §306(b), §309(a) and §309(d)(1)),
c. Refusing to engage reasonable efforts and services to maintain Plaintiff Palmieri in her home (pursuant to §306(b), §309(a) and §309(d)(1)),
d. Failing to inform Plaintiff Palmer of anything related to the case, including the child’s status or how she was faring, their rights, or the impending court hearings and procedures (pursuant to WIC §307.4(a) & §307.4(a)(1)),
39. Defendants blocked any and all meaningful access by Plaintiffs to the juvenile court, with and through the above and the following, but not limited to:
a. Summarily seizing the child, unlawfully limiting the time Plaintiff Palmer had to discover her options before the initial hearing,
b. Verifying the above referenced falsehoods on the initial petition and submitting them as fact in their pre-detention report to the court,
c. Withholding information vital and entitled to Plaintiff Palmer and the Juvenile Court,
d. Not timely filing petition (pursuant to §311(a)), giving Plaintiff Palmer almost no time or information to educate herself regarding dependency proceedings,
e. Not timely serving notice of the Detention Hearing with the required copy of the petition (pursuant to WIC §290.2,),
f. Not timely holding Detention Hearing (pursuant to WIC §315),
g. Preventing Plaintiff Palmer being heard in any meaningful way at the Detention Hearing by not disclosing and otherwise denying Plaintiff Palmer’s right to subpoena, confront and cross-examine all relevant witnesses.
h. Plaintiff Palmer was not made aware of her rights, or that she had any (pursuant to WIC §307.4(a), §311(b), §319(a), §341).
40. Each of these actions – taken individually – was unlawful, unconstitutional, and unnecessarily punitive on their own.
41. However, their actions – taken as a series of steps in an overall plan – demonstrated a considered punitive strategy toward Plaintiffs – that proved more damaging in anthology than the sum of Defendants’ cumulative acts. Defendants and each of them executed this conduct in diametric opposition to their own mission statement, the Legislative intent of the WIC, and the well established constitutional rights and liberty interests of Plaintiffs.
42. Collectively, the facts corroborate Plaintiffs’ claim of intentional, planned, and routine objectives to debase Plaintiff Palmer, maintain Plaintiffs’ separation, and prolong the dependency of the child. Further, considered in total, reconciling Defendants’ handling of this family with Plaintiff Palmieri’s health, welfare or best interests cannot be done within reason or non-fiction.
43. Defendants’ complex deceptions and heavy-handed, malevolent manipulations made CFS social workers the only contributors of evidence and argument at the Detention Hearing. Thus, Defendants and each of them were completely unopposed by the unprepared, uninformed, and vulnerable parent of their own deliberate design.
44. Defendants and each of them enjoyed and relied on a presumptive integrity conferred by the very court on which they perpetrated this fraud. Predictably, Defendants Mitchell, Maeda, and Does 1-25 succeeded in securing a court order for the child’s continued detention on September 20, 2006. Plaintiffs claim the court order was the intended result of CFS’ well-orchestrated, deftly choreographed, and oft-rehearsed tactical steps.
45. In late December 2006, Plaintiff Palmer discussed filing a request for change of court order with Defendant Mitchell and that she would be relieving her counsel to do so.
46. On or about January 3, 2007, the probation officer assigned to assess Plaintiff Palmer (for work release in lieu of jail) phoned Mitchell for Plaintiff’s contact information. Defendant Mitchell responded that she had “no idea where” to find her.
47. This fabrication resulted – directly – in the probation officer’s misguided recommendation that Plaintiff Palmer’s sentencing be continued and her “custody status be reviewed”. It was – directly causing her unjust and unnecessary remand on January 24, 2007. Plaintiff Palmer was then forced to appear on her petition, in juvenile court on February 20, 2007, wearing an orange jumpsuit and shackles, in custody.
48. Defendant Anderson and Does 1-25 arbitrarily “invalidated” credible drug treatment and mental health assessments conducted by providers of CFS’ choosing, forcing Plaintiff Palmer’s submission to both arduous processes a second time. Moreover, Defendant Anderson insisted on specific individual assessors for these repeated “assessments” in an attempt to manipulate, influence, and control their results – rendering the sessions “treatment intakes”.
49. The required mental health assessment was then “upgraded” to a full psychiatric evaluation, even where no “red flags” or warnings were raised by the original and qualified assessor.
50. In the case of the drug treatment assessment, Defendant’s chosen counselor was actually located in, and working out of, the CFS office.
51. In the case of the mental health assessment, Defendant’s chosen counselor was unduly influenced by the enhanced and highly prejudicial “referral” crafted by Defendant Anderson and Does 1-25.
52. Defendant Anderson and Does 1-25 stalled these and other provider referrals and services to insinuate Plaintiff Palmer’s inaction and limited progress toward family reunification. Defendant Anderson took full advantage of this engineered advantage in her subsequent review reports to the court. This also delayed and arrested any development of professional, respected advocates for Plaintiffs, keeping the only opinions and evidence offered in and to the court that of CFS workers.
53. Using these and other tactics and misrepresentations, Defendant Anderson and Does 1-25 persuaded the court, at several junctures, to retain Plaintiff Palmieri as a dependent out-of-home, separated from her mother and denying Plaintiffs any contact that Defendant Anderson could not regulate or monitor directly for an additional 8 months (through September, 2007).
54. Defendant Anderson and Does 1-25 “interviewed” Plaintiff Palmieri (just back in Shatnawi’s custody). In it, she asked the child if she ever “considered going to church without your Aunt [Shatnawi]”.
55. Defendant Anderson and Does 1-25 reported to the court – in part – that the 6-year-old’s face was “observed to be without emotion” and she “had a moment of confusion or fear”. Plaintiff Palmieri was acutely traumatized by Defendant’s self-serving, insensitive, monstrous mode of inquiry as she tried to contemplate being alone again – and almost immediately after her return.
56. Defendant then reports that Plaintiffs could not be granted an extra weekly visit at another church since Plaintiff Palmieri had “chosen” her “religious preference”, Plaintiff Palmer had no right to “change” it , and Defendant could not in good conscience “force” her to go with her mother.
57. As a direct result of Defendants’ punitive, disparaging, unlawful, and unrelenting campaign against them, Plaintiffs were needlessly and maliciously separated for approximately 14 months.
FIRST CAUSE OF ACTION
(For Violation of Plaintiffs’ Federal Civil Rights against All Defendants)
(42 U.S.C. § 1983)
58. Plaintiffs re-allege and incorporate by this reference each and every allegation of paragraphs 1 through 12, 13-30 of Facts Common to All Causes of Action, and 31-57 of Introductory Allegations as if fully set forth herein.
59. At all relevant times herein, Defendants purported their unfettered prerogative – conferred on them by the court – to remove Plaintiff Palmieri from her school, home and family and that it was entirely within the Department’s discretion to proceed at will. Plaintiff Palmer was told to comply with each and every demand made of her or her parental rights would be in great peril in the coming months.
60. Defendants and each of them violated the federal constitutional rights of the Plaintiffs by:
a. Summarily seizing the child from her home, parent, and family care without a warrant, just or probable cause, and absent exigent circumstances, in violation of several sections of the California Welfare & Institutions Code,
b. Crafting a counterfeit allegation presented to the court on the initial verified petition (WIC 300(g)) in a successful and concerted effort to obtain a tainted judicial order separating mother from daughter,
c. Denying Plaintiffs any physical or conversational contact, where there was no claim of Plaintiff Palmer’s detriment to the child (pursuant to WIC §309(a)),
d. Withholding exculpatory evidence that may well have changed not only the Detention Hearing findings, orders, and outcomes, but those of every subsequent hearing (pursuant to WIC §315), and confirmed the suitability of leaving Plaintiff Palmieri in her home and immediately reuniting mother and daughter,
e. Not timely releasing the child or filing the initial petition (pursuant to WIC §313),
f. Not timely serving Plaintiffs notice of the initial hearing (pursuant to WIC §290.2),
g. Not timely releasing the child or holding the Detention Hearing (pursuant to WIC §315),
h. Blocking all meaningful access of Plaintiffs to the Juvenile Court by withholding mandatory disclosures from Plaintiff Palmer (pursuant to WIC §307.4 and regarding §300, et seq.),
i. Refusing any investigation whatsoever into Plaintiff Palmer’s claims or proof of innocence, even when presented the opportunity to do so at very nominal cost to the County, and
j. Conducting a defective and one-sided investigation into the facts concerning the suitability of Plaintiff Palmieri’s home or immediately reuniting mother and daughter, and ignoring clear and obvious indications that this was appropriate and necessary for Plaintiff Palmieri’s health and well being.
61. These official policies, customs, practices and/or directives of Defendant CFS are causally and affirmatively linked to the deprivation of Plaintiffs’ constitutional rights and were used, relied upon, and carried out by defendant social workers who in turn targeted Plaintiffs through their iniquitous and malevolent conduct without fear of sanction or reprisal.
62. These policies, customs, practices and/or directives of Defendant CFS are causally and affirmatively linked to the deprivation of Plaintiffs’ constitutional rights and yet remain standard and routinely relied upon by Defendants even where they are not formally or publically enacted.
63. This conduct was a major cause of the lengthy separation of mother and daughter, causing physical, emotional and economic injuries to Plaintiffs, in amounts to be proven at trial, in violation of the Fourth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. §1983.
64. Throughout, Defendants’ conduct was malicious and oppressive and was intended to cause injury if not carried out with deliberate indifference to and callous disregard of Plaintiffs’ rights and well-being, justifying an award of punitive damages as to individual defendants.

SECOND CAUSE OF ACTION
(For Violation of Plaintiffs’ State Civil Rights against All Defendants)
(Cal. Civ. Code § 52.1)
65. Plaintiffs re-allege and incorporate by this reference each and every allegation of paragraphs 1 through 12, 13-30 of Facts Common to All Causes of Action, 31-57 of Introductory Allegations, and 59-64 of First Cause of Action as if fully set forth herein.
66. These specific acts by Defendants violated Article I, Section 13 of the Constitution of the State of California and Cal. Civ. Code § 52.1.
67. Plaintiffs were harmed by the conduct of Defendants, as enumerated above, and that conduct was a major factor in causing physical, emotional and economic injuries to Plaintiffs, in amounts to be proved at trial and justifying punitive damages as to individual defendants.
THIRD CAUSE OF ACTION
(Brought By Both Plaintiffs for Intentional Infliction of Emotional Distress
(Against All Defendants)
68. Plaintiffs re-allege and incorporate by this reference each and every allegation of paragraphs 1 through 12, 13-30 of Facts Common to All Causes of Action, 31-57 of Introductory Allegations, and 59-64 of First Cause of Action as if fully set forth herein.
69. Defendants used their positions of authority to damage the interests of Plaintiffs. Defendants’ actions in removing and detaining Plaintiff Palmieri were outrageous by any standard of decency, yet they acted even in the knowledge that their conduct would likely result in serious damage to one or both Plaintiffs, and with reckless disregard for Plaintiffs’ well-being. The foreseeable susceptibility of a small child and a single mother forcibly separated without reason had no effect and Defendants did not relent in their sustained campaign of attack on Plaintiffs, even when they knew it to be unwarranted.
70. Mother and child suffered shock, fear, indignity, terror and apprehension due directly to actions taken by Defendants. Plaintiffs were left elementally vulnerable and further frightened, humiliated, and terrorized by their ongoing conduct.
71. Defendant CFS breached a duty of due care owed to Plaintiffs by failing to provide adequate guidance, oversight, supervision and training to their social workers.
72. Defendant CFS breached a duty of due care owed to Plaintiffs by failing to implement or enforce any policy that would preclude and prevent the unlawful removal of children from their homes by social workers in their employ.
73. The actions of the Defendants described above were intentional and carried out with deliberate indifference to and callous disregard of Plaintiffs’ rights, well being, and best interests.
74. The acts and/or omissions of each Defendant promoted the protracted separation of mother and child and constituted a major factor in causing Plaintiffs’ physical, emotional and economic injuries. The emotionally charged environment rendered Plaintiffs especially susceptible to damages caused by Defendants’ targeted attacks. By ambushing Plaintiffs, brandishing their positions, and exploiting the induced vulnerabilities of Plaintiffs, Defendants maximized that damage, justifying punitive damages against individual defendants, in amounts to be proved at trial.
FOURTH CAUSE OF ACTION
(Brought By Both Plaintiffs for Negligence)
(Against All Defendants)
75. Plaintiffs re-allege and incorporate by this reference each and every allegation of paragraphs 1 through 12, 13-30 of Facts Common to All Causes of Action, 31-57 of Introductory Allegations, 59-64 of First Cause of Action, and 71-72 of Third Cause of Action as if fully set forth herein.
76. Defendants CFS, Martinez, Schweitzer, Hetzel, Mitchell, Maeda and their supervisors and Does 1-25 breached a duty of due care owed to plaintiffs by failing to provide adequate guidance, oversight and supervision to Defendant social workers. Defendant social workers’ actions harmed plaintiffs by summarily removing Plaintiff Palmieri from her home, parent and family without a warrant and absent exigent circumstances, in violation of California Welfare and Institutes Codes §300, 305, 306, 307, 308, 309 et. seq.
77. Defendants and each of them were aware of the foreseeable perils their willful misconduct subjected Plaintiffs to and the injuries to Plaintiffs as they accumulated. However, Defendants did nothing to mitigate either the risks or the resulting injuries to Plaintiffs.
78. Every action by Defendants and each of them has compounded and accumulated, developing an overall punitive philosophy and approach in their dealings with Plaintiffs.
79. To the extent that the actions of Defendants and each of them described above were not deliberate or intentional, they were done with gross negligence and deliberate indifference to and callous disregard for Plaintiffs’ rights and well being.
80. Defendant Anderson failed and refused to retrieve Plaintiff Palmieri’s belongings from the foster homes that housed Plaintiff Palmieri, where Plaintiff Palmer could not request or compel their production, upon Plaintiff Palmieri’s return to her mother.
81. The acts and/or omissions of each Defendant constituted a major factor in causing Plaintiffs’ physical, emotional and economic injuries, including justified punitive damages against individual defendants, in amounts to be proved at trial.

FIFTH CAUSE OF ACTION
(For False Imprisonment of Plaintiff Palmieri)
(Against Defendants CFS, Mitchell, Maeda, Schweitzer, Hetzel, and Does 1-25)
82. Plaintiffs re-allege and incorporate by this reference each and every allegation of paragraphs 1 through 12, 13-30 of Facts Common to All Causes of Action, 31-57 of Introductory Allegations, 59-64 of First Cause of Action, as if fully set forth herein.
83. Defendants CFS, Michael Schweitzer, Holly Hetzel, Gayle Mitchell, Tina Martinez, Randee Maeda, and Does 1-25 intentionally removed or sanctioned the imminent confinement and removal of Plaintiff Palmieri from her home and family, without warrant and absent exigency, in violation of California Welfare and Institutes Codes §300, 305, 306, 307,308, 309 et. seq., Further, Defendants improperly investigated, detained and maintained Plaintiff Palmieri outside her home.
84. In the absence of a timely filed petition, or a timely held hearing, Plaintiff Palmieri’s detention was not lawfully authorized at the time of the seizure, nor was it consensual.
85. The moment the mandated timeframe to release Plaintiff Palmieri or file the initial petition had expired, Defendants and each of them effectively seized her again and again without lawful authorization.
86. The moment the mandated timeframe to release Plaintiff Palmieri or hold the initial hearing had expired, Defendants and each of them effectively seized her yet again and again without lawful authorization.
87. These acts were authorized, condoned, directed, and/or ratified by Defendant CFS and Does 1-25.
88. Plaintiffs suffered significant physical and emotional damages as a result.
89. The acts and/or omissions of each Defendant constituted a major factor in causing Plaintiffs physical, emotional and economic injuries, including punitive damages against individual defendants, in amounts to be proved at trial.

SIXTH CAUSE OF ACTION
(For False Imprisonment of Plaintiff Palmer)
(Against Defendants CFS, Mitchell, Maeda, and Does 1-25)
90. Plaintiffs re-allege and incorporate by this reference each and every allegation of paragraphs 1 through 12, 13-30 of Facts Common to All Causes of Action, 31-57 of Introductory Allegations, 59-64 of First Cause of Action, as if fully set forth herein.
91. Defendant Mitchell and Does 1-25 were contacted by a Shasta County probation officer assigned to assess Plaintiff Palmer for probation and report back to the court. Mitchell responded by telling probation she had “no idea” where to find Plaintiff Palmer – in the full knowledge that the officer would then recommend continuing the sentencing hearing until Plaintiff Palmer could be assessed, and remanding her in the interim.
92. Defendant Mitchell and Does 1-25 directly and intentionally caused Plaintiff Palmer’s unjust and unnecessary remand on January 24, 2007. This was outside the scope of Defendant Mitchell’s employment, was not a quasi-judicial or quasi-prosecutorial or discretionary function, and did nothing to advance the dependency case.
93. It is believed by Plaintiffs that this action may have been sanctioned and/or ratified by Defendants Maeda and/or Does 1-25.
94. Plaintiffs suffered significant physical and emotional damages as a result.
95. The acts and omissions of the Defendants constituted a major factor in causing Plaintiffs physical, emotional and economic injuries, including punitive damages against individual defendants, in amounts to be proved at trial.

SEVENTH CAUSE OF ACTION
(For Fraud and Deceit of Plaintiff Palmer)
(Against Defendants CFS, Mitchell, Maeda, Schweitzer, and Does 1-25)
96. Plaintiffs re-allege and incorporate by this reference each and every allegation of paragraphs 1 through 12, 13-30 of Facts Common to All Causes of Action, 31-57 of Introductory Allegations, 59-64 of First Cause of Action, as if fully set forth herein.
97. Defendants and each of them concealed the following material facts from Plaintiff Palmer, although it was their duty to disclose same, to wit:
a. Plaintiff Palmer had the right to see to Plaintiff Palmieri’s alternate care prior to her incarceration,
b. Information advising Plaintiff Palmer of her rights and court procedures (pursuant to WIC §307.4),
c. Plaintiffs’ right to contact within 5 hours of their separation, where there was no claim of detriment to the child (pursuant to WIC §308(a)),
d. The actual petition, until just moments before the Detention Hearing, where it was required to be provided with timely notice of hearing 24 hours before said hearing’s commencement (pursuant to WIC §290.2).
e. All rights conferred by the WIC to parents at the Detention Hearing, including, but not limited to, the right to subpoena, confront, and cross examine all relevant witnesses.
98. These material facts were intentionally withheld to ensure that Plaintiff Palmer would not assert or exercise any of her rights at or before the Detention Hearing. Thus, Defendants and each of them defrauded the Plaintiff and the court, securing a tainted court order unopposed in any way by Plaintiff Palmer.
99. Plaintiff Palmer was unaware of any of these rights, that she in fact had any, or how to exercise them at the Detention Hearing. Based on her actions throughout the dependency, it can be said that Plaintiff Palmer would certainly have acted and reacted much differently, had she been aware of all the material facts concealed by Defendants and the impact dependency would likely have on Plaintiffs.
100. But for the concealment of these facts, and Plaintiff Palmer’s ignorant inaction, the outcome of the Detention Hearing would likely have been much different, even sparing Plaintiffs the protracted, needless separation altogether, had she been allowed to exercise the relevant rights guaranteed by law.
101. As a result, Plaintiff Palmer was prejudiced in legal and public forums, forced to overcome erroneous credibility issues in the eyes of the court and the community. This fraud and deceit directly caused irreparable pain and suffering to both Plaintiffs and laid the very foundation for Plaintiffs’ separation under false pretense.
102. Plaintiffs were unwittingly and unwillingly drawn into a contractual relationship with Defendants the moment Plaintiff Palmieri was detained by social workers.
103. Defendants and each of them were subsequently granted broad discretion and control over Plaintiffs’ very lives. The Case Plan, upon its delivery to Plaintiff Palmer, was characterized as the “only way to get [Plaintiff Palmieri] home”. The alternative to Plaintiff Palmer’s satisfying all terms and conditions, approved and ratified by Defendants and each of them, was permanent loss of her parental rights and, in fact, her child.
104. Plaintiffs believe that the Petition, Case Plan and Welfare & Institutions Code constitute an implied contract (conceived, implemented and filed at the will of the Department) between Plaintiffs and Defendants. Offered no real alternatives, Plaintiff Palmer was compelled to comply with an illegal contract, given the gravity of consequences had she not done so.
105. With the court’s binding findings and orders, all parties were then bound by this implied contract, each with rights, rewards, and responsibilities laid out in the Case Plan and the WIC.
106. Plaintiff Palmer’s ‘reward’ for subjectively satisfying these same terms and conditions was the promised return of her daughter and Defendants’ relenting in the pursuit to terminate her parental rights.
107. Had Plaintiff Palmer not performed all conditions to the subjective satisfaction of Defendants and each of them, Plaintiff Palmieri would not have been returned to her and Plaintiff Palmer’s parental rights might well have been terminated by the court at Defendants’ recommendation.
108. Defendants and each of them imposed an illegal contract on Plaintiffs by violating the Welfare and Institutions Code, §§290.2, 300.2, 306(a)(2), 306(b)(3), 307.4, 308(a), 309(a), 309(d)(1), 313(a), 315, 328, 332, 360, 361(a), 361( c), 361( c)(5), 361.1, et seq. when and as they took custody of Plaintiff Palmieri.
109. Because Plaintiffs were forced into this contract as a result of fraud and false pretense, Plaintiffs believe that said contract is null and void from its inception and but for the deceit and bad faith shown by Defendants, Plaintiffs would not have been subjected to the extensive burdens of the contract.
110. The acts and omissions of the Defendants and each of them constituted a major factor in causing Plaintiffs physical, emotional and economic injuries, in amounts, including emotional distress and punitive damages against individual defendants, to be proved at trial.

EIGHTH CAUSE OF ACTION
(By Plaintiffs For Abuse of Process – Against all Defendants)
111. Plaintiffs re-allege and incorporate by this reference each and every allegation of paragraphs 1 through 12, 13-30 of Facts Common to All Causes of Action, 31-57 of Introductory Allegations, 59-64 of First Cause of Action, as if fully set forth herein.
112. The stated Legislative intent of the Welfare and Institutions Code is to “to preserve and strengthen a child’s family ties whenever possible, removing the child from the custody of his or her parents only when necessary for his or her welfare”. (§16000) “The Legislature hereby declares its intent to encourage the continuity of the family unit” (§16500) and “to use the strengths of families and communities to serve the needs of children who are alleged to be abused or neglected, as described in Section 300, to reduce the necessity for removing these children from their home, [and] to encourage speedy reunification of families when it can be safely accomplished.” (§16500.1)
113. Dependency proceedings are to be initiated only if required to secure the safety and well-being of the child and are strictly for “the protection of the child, not the punishment of the parent”.
114. Defendants misused the court process with the following non-communicative acts:
a. Filing a Dependency Petition in Juvenile Court, in the name of Plaintiff Palmieri, that Defendants knew was false, misleading, and unnecessary;
b. Not advising Plaintiff Palmer of any of her rights or relevant court procedures. Instead, used and maintained her ignorance to ensure that no objections would be raised, no rights would be asserted, and no statement would be demanded of those who removed Plaintiff Palmieri from her home prior to the court authorizing the detention;
c. Withholding exculpatory evidence from the court as enumerated above,
d. Disallowing contact between Plaintiffs as mandated (WIC §308(a));
e. Refusing to assist or allow Plaintiff Palmer to prove her claims of non-culpability, stalling long enough that the proof was lost forever;
f. Not advising Plaintiff Palmer of her rights pertaining to the proceedings;
g. Not timely serving notice of Detention Hearing;
h. Not timely filing the petition;
i. Not timely holding the initial hearing.
115. The Defendants and each of them intended to induce a tainted court order further detaining Plaintiff Palmieri in foster care, and they misused the court’s authority and process to accomplish that objective.
116. In requiring a “suitable home” and “legal” and “steady” income on the Case Plan, Defendants and each of them violated the letter and spirit of the WIC and abused the dependency process.
117. Further, Defendants and each of them promoted and fostered the very circumstances the WIC charges them with helping to ameliorate. The letter and spirit of the WIC mandates that Defendants and each of them actively assist Plaintiffs in overcoming obstacles to family maintenance and reunification – including poverty and homelessness “wherever possible”.
118. In diametric opposition to the Legislature’s intent and the WIC’s mandate, Defendants and each of them promoted, amplified, and influenced circumstances that could then be portrayed to the court as “non-compliance” and unacceptably “minimal progress” toward Case Plan fulfillment.
119. Given the vast purview of social workers, their supervisors, and CFS, the following would be general knowledge throughout the system:
a. By keeping the child detained, the mother is rendered ineligible to receive emergency cash aid from the state (where income was a requirement of the Case Plan),
b. By effectively blocking the only possible emergency income to Plaintiffs, Defendants extended the duration of Plaintiff Palmer’s new homelessness (where getting and keeping a “suitable” home was required by the Case Plan),
c. By fostering and relying on Plaintiff Palmer’s homelessness, Defendants could justify keeping the child detained (where mother posed no actual danger or detriment to her child) due to unfulfilled requirements of the Case Plan.
d. Defendants propagated this cycle of barriers again and again, for as long as they could.
120. All along there were viable options and far less inherently traumatic alternatives to detention and foster care available to CFS. Those options, however, were not then made available to Plaintiffs – nor would Defendants and each of them even disclose their existence.
121. Defendants and each of them did not attempt to preserve and strengthen Plaintiffs’ family ties or encourage Plaintiffs as a family unit at any time during Plaintiff Palmieri’s dependency. From the instant they summarily seized Plaintiff Palmieri, Defendants and each of them implemented a strategy to keep Plaintiff Palmer ignorant of any and all knowledge as to the rights of her family and the relevant court procedures. Ergo, Defendants and each of them used the process for purposes other than those intended and to propagate the unjust separation of mother and daughter.
122. At all times mentioned herein, Defendants and each of them acted willfully with the wrongful intention of injuring Plaintiffs and for an improper and immoral motive amounting to malice in that the afore-referenced tortuous and criminal conduct was intentionally committed by Defendants and was knowingly oppressive, malicious and wanton with the intended purpose to cause harm to Plaintiffs herein.
123. The acts and omissions of the Defendants and each of them constituted a major factor in causing Plaintiffs physical, emotional and economic injuries, in amounts to be proved at trial, including punitive damages against individual defendants.

WHEREFORE, Plaintiffs respectfully pray for judgment against each and all of the Defendants for the following:
1. Special and general damages according to proof;
2. Punitive damages according to proof;
3. Declaratory relief as appropriate and according to proof;
4. Attorneys’ or other professional fees incurred during suit;
5. Costs of suit;
6. An order voiding the Petition from its inception;
7. An apology from Defendants; and
8. Such other and further relief as the court may deem appropriate.

_________________________________________
Tracie Palmer, for herself and as
Guardian ad Litem for Lucia D. Palmieri

**Now I just need an attorney to rep my daughter – they can dismiss because of lack of counsel – HELP!

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.

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