Announcement From Washington Extended Families:

A national class action lawsuit will commence after September 10th should the adoption incentive be renewed (S 3038). All damaged persons can participate to include extended family, parents and former foster/adopt children. You do not have to be a party to any case to participate. There will be a request for damages. Interested parties should have a vested interest in the children removed and be able to prove a substantial relationship.

Also of extreme interest, is obtaining names/phone/location of CPS workers who are falsifying or have falsified documents in court and who have lied in a court setting. They can sue for government entrapment. The goal is to have case workers sue in all 50 states.

Send the case worker a note that states the following:

Dear ,

It has been brought to my attention that you may have falsified documents with dependency actions. If you have not acted dishonestly in the past and are now pressured by the state to remove and adopt out children in an unethical manner, you are entitled to damages.

It is of paramount concern to our nation that these actions be stopped. If you are interested at any time of participating in a class action lawsuit in your state, please write to washingtonstateextendedfamilies@live.com.

Sincerely,
Jan D. Smith

August 21, 2008

Attention: Distinguished Members of Congress

Notice of legal intent with regards to S 3038

The People herewith declare that the renewal of the Adoption Incentives S 3038 called The Improved Adoption Incentives and Guardianship Support Act does violate the law under the Sherman Anti-trust Act. In addition, funds distributed to the states entrap state workers causing illegal acts not normally performed by said individuals prior to hire.

The People through discovery have found:

1. The imbalance of funding is creating corruption

2. Pathology has filtered through all manner of government and related agencies

3. Judicial decisions violate the public trust

4. Laws are created and passed that give parens patriae unlimited power not provided by the Constitution

5. The paradigm shift that accompanied a monopoly/monopsony strategy of funding extracted from dwindling Social Security is devastating families across America

6. Children’s lives are at stake and are being killed 6-1 over parents per 100, 000

7. That the states are not following guidelines placing with relatives but are screening them out using different criteria with foster families

8. That pockets of tyranny are going unchecked without recourse

9. Congress is not responsive to The People

10. That The People also have compelling interest as an implied term

The People are declaring a public health crisis as a result of these findings and also:

In addition, The People find the Parens Patriae to be more than a doctrine but a specialized position created by the government for the government that violates Article 1 Sec 9, 10: No title of nobility or honour shall be granted by the United States. The title extends to the courts, Children’s Administration and public education violating Amendment 14 depriving persons of life, liberty and property without due process. The position applies as a collective.

The People are ordering a cease and desist of the renewal of S 3038. Should action continue to commence, a nationwide class action lawsuit opposing Parens Patriae and the theft of Social Security to provide the continuing tyranny will be executed.

Signed,
Jan D. Smith
Registered Lobbyist
Washington State Extended Families
washingtonstateextendedfamilies@live.com

A wheelchair-bound mother in Montana won a special needs trust of $50,000 from the state. Her child will receive $100,000, and her attorney fees and costs will be paid. The lawyer gets $180,000. The Health and Human “Services” agency, also known as Children and Family “Services” (CFS) gets mud on its face and a debt to pay.

Geri Glass filed suit against the state of Montana because CFS social workers violated her rights and then retaliated against her when she complained.

Very important to those of you fighting false child abuse and neglect charges, it should be noted that when Geri Glass’ case was reported on in the media, the CFS agency dropped its investigation. They were apparently more worried about their own reputation than about possible problems with Glass’ child.

Source: State settles with disabled mother by Matt Gouras of the Associated Press, published May 10, 2008 in the Helena Independent Record.

…
Written by Linda Martin for Fight CPS.

In the United Kingdom, two men are imprisoned for defying child protective services orders, and helping foster children. One man is convicted of the terrible crime of ANSWERING THE DOOR when his teenage grandson knocked on it. The grandfather, Charles Roy Taylor, age 71, has been sent to prison for twenty months. The court decided he was “undermining the care plan”. Sadly, Mr. Taylor and his wife are the boy’s only living relatives. When the boy ran away, he wanted to see them.

The other case involves an unnamed 56 year old man with health problems who is now incarcerated for sixteen months. In that case a boy in foster care ran away from his foster home to see his mother. The man then drove the mother and son to Dover, and from there they went to Paris. He was convicted of “child abduction” though, as the writer of my source article points out, it is a strange kind of child abduction when the child, voluntarily and on his own, runs away from the foster care placement.

Source: Child protection? No, ruination by Camilla Cavendish, published March 13, 2008 in The Times.

Note from the Fight CPS webmaster: This is a very important report written by a Senator in Georgia. Please read the entire report, download the PDF, print it to give to your lawyers, caseworkers, local newspaper editors, state and federal senators and congressmen, CASA workers in your area, and whoever else you believe might benefit from reading the truth about CPS from the viewpoint of a Senator. Though this Senator is from Georgia, her report is about all state child protective services agencies. Thank-you, Senator Schaefer, for investigating and writing this report! - ljm

Click here to download an original copy of Senator Schaefer’s report in pdf format

From the legislative desk of Senator Nancy Schaefer 50th District of Georgia

November 16, 2007

THE CORRUPT BUSINESS OF CHILD PROTECTIVE SERVICES

BY: Nancy Schaefer
Senator, 50th District

My introduction into child protective service cases was due to a grandmother in an adjoining state who called me with her tragic story. Her two granddaughters had been taken from her daughter who lived in my district. Her daughter was told wrongly that if she wanted to see her children again she should sign a paper and give up her children. Frightened and young, the daughter did. I have since discovered that parents are often threatened into cooperation of permanent separation of their children.

The children were taken to another county and placed in foster care. The foster parents were told wrongly that they could adopt the children. The grandmother then jumped through every hoop known to man in order to get her granddaughters. When the case finally came to court it was made evident by one of the foster parent’s children that the foster parents had, at any given time, 18 foster children and that the foster mother had an inappropriate relationship with the caseworker.

In the courtroom, the juvenile judge, acted as though she was shocked and said the two girls would be removed quickly. They were not removed. Finally, after much pressure being applied to the Department of Family and Children Services of Georgia (DFCS), the children were driven to South Georgia to meet their grandmother who gladly drove to meet them. After being with their grandmother two or three days, the judge, quite out of the blue, wrote up a new order to send the girls to their father, who previously had no interest in the case and who lived on the West Coast. The father was in “adult entertainment”. His girlfriend worked as an “escort” and his brother, who also worked in the business, had a sexual charge brought against him.

Within a couple of days the father was knocking on the grandmother’s door and took the girls kicking and screaming to California.

The father developed an unusual relationship with the former foster parents and soon moved back to the southeast, and the foster parents began driving to the father’s residence and picking up the little girls for visits. The oldest child had told her mother and grandmother on two different occasions that the foster father molested her.

To this day after five years, this loving, caring blood relative grandmother does not even have visitation privileges with the children. The little girls are in my opinion permanently traumatized and the young mother of the girls was so traumatized with shock when the girls were first removed from her that she has not recovered.

Throughout this case and through the process of dealing with multiple other mismanaged cases of the Department of Family and Children Services (DFCS), I have worked with other desperate parents and children across the state because they have no rights and no one with whom to turn. I have witnessed ruthless behavior from many caseworkers, social workers, investigators, lawyers, judges, therapists, and others such as those who “pick up” the children. I have been stunned by what I have seen and heard from victims all over the sta te of Georgia.

In this report, I am focusing on the Georgia Department of Family and Children Services (DFCS). However, I believe Child Protective Services nationwide has become corrupt and that the entire system is broken almost beyond repair. I am convinced parents and families should be warned of the dangers.

The Department of Child Protective Services, known as the Department of Family and Children Service (DFCS) in Georgia and other titles in other states, has become a “protected empire” built on taking children and separating families. This is not to say that there are not those children who do need to be removed from wretched situations and need protection. This report is concerned with the children and parents caught up in “legal kidnapping,” ineffective policies, and DFCS who do does not remove a child or children when a child is enduring torment and abuse. (See Exhibit A and Exhibit B)

In one county in my District, I arranged a meeting for thirty-seven families to speak freely and without fear. These poor parents and grandparents spoke of their painful, heart wrenching encounters with DFCS. Their suffering was overwhelming. They wept and cried. Some did not know where their children were and had not seen them in years. I had witnessed the “Gestapo” at work and I witnessed the deceitful conditions under which children were taken in the middle of the night, out of hospitals, off of school uses, and out of homes. In one county a private drug testing business was operating within the DFCS department that required many, many drug tests from parents and individuals for profit. In another county children were not removed when they were enduring the worst possible abuse. Due to being exposed, several employees in a particular DFCS office were fired. However, they have now been rehired either in neighboring counties or in the same county again. According to the calls I am now receiving, the conditions in that county are returning to the same practices that they had before the light was shown on their deeds. Having worked with probably 300 cases statewide, I am convinced there is no responsibility and no accountability in the system.

I have come to the conclusion:

· that poor parents often times are targeted to lose their children because they do not have the where-with-all to hire lawyers and fight the system. Being poor does not mean you are not a good parent or that you do not love your child, or that your child should be removed and placed with strangers;

· that all parents are capable of making mistakes and that making a mistake does not mean your children are always to be removed from the home. Even if the home is not perfect, it is home; and that’s where a child is the safest and where he or she wants to be, with family;

· that parenting classes, anger management classes, counseling referrals, therapy classes and on and on are demanded of parents with no compassion by the system even while they are at work and while their children are separated from them. This can take months or even years and it emotionally devastates both children and parents. Parents are victimized by “the system” that makes a profit for holding children longer and “bonuses” for not returning children;

· that caseworkers and social workers are oftentimes guilty of fraud. They withhold evidence. They fabricate evidence and they seek to terminate parental rights. However, when charges are made against them, the charges are ignored;

· that the separation of families is growing as a business because local governments have grown accustomed to having taxpayer dollars to balance their ever-expanding budgets;

· that Child Protective Service and Juvenile Court can always hide behind a confidentiality clause in order to protect their decisions and keep the funds flowing. There should be open records and “court watches”! Look who is being paid! There are state employees, lawyers, court investigators, court personnel, and judges. There are psychologists, and psychiatrists, counselors, caseworkers, therapists, foster parents, adoptive parents, and on and on. All are looking to the children in state custody to provide job security. Parents do not realize that social workers are the glue that holds “the system” together that funds the court, the child’s attorney, and the multiple other jobs including DFCS’s attorney.

· that The Adoption and the Safe Families Act, set in motion by President Bill Clinton, offered cash “bonuses” to the states for every child they adopted out of foster care. In order to receive the “adoption incentive bonuses” local child protective services need more children. They must have merchandise (children) that sell and you must have plenty of them so the buyer can choose. Some counties are known to give a $4,000 bonus for each child adopted and an additional $2,000 for a “special needs” child. Employees work to keep the federal dollars flowing;

· that there is double dipping. The funding continues as long as the child is out of the home. When a child in foster care is placed with a new family then “adoption bonus funds” are available. When a child is placed in a mental health facility and is on 16 drugs per day, like two children of a constituent of mine, more funds are involved;

· that there are no financial resources and no real drive to unite a family and help keep them together;

· that the incentive for social workers to return children to their parents quickly after taking them has disappeared and who in protective services will step up to the plate and say, “This must end! No one, because they are all in the system together and a system with no leader and no clear policies will always fail the children. Look at the waste in government that is forced upon the tax payer;

· that the “Policy Manuel” is considered “the last word” for DFCS. However, it is too long, too confusing, poorly written and does not take the law into consideration;

· that if the lives of children were improved by removing them from their homes, there might be a greater need for protective services, but today all children are not always safer. Children, of whom I am aware, have been raped and impregnated in foster care and the head of a Foster Parents Association in my District was recently arrested because of child molestation;

· that some parents are even told if they want to see their children or grandchildren, they must divorce their spouse. Many, who are under privileged, feeling they have no option, will divorce and then just continue to live together. This is an anti-family policy, but parents will do anything to get their children home with them.

· fathers, (non-custodial parents) I must add, are oftentimes treated as criminals without access to their own children and have child support payments strangling the very life out of them;

· that the Foster Parents Bill of Rights does not bring out that a foster parent is there only to care for a child until the child can be returned home. Many Foster Parents today use the Foster Parent Bill of Rights to hire a lawyer and seek to adopt the child from the real parents, who are desperately trying to get their child home and out of the system;

· that tax dollars are being used to keep this gigantic system afloat, yet the victims,
parents, grandparents, guardians and especially the children, are charged for the
system’s services.

· that grandparents have called from all over the State of Georgia trying to get custody of their grandchildren. DFCS claims relatives are contacted, but there are cases that prove differently. Grandparents who lose their grandchildren to strangers have lost their own flesh and blood. The children lose their family heritage and grandparents, and parents too, lose all connections to their heirs.

· that The National Center on Child Abuse and Neglect in 1998 reported that six times as many children died in foster care than in the general public and that once removed to official “safety”, these children are far more likely to suffer abuse, including sexual molestation than in the general population.

· That according to the California Little Hoover Commission Report in 2003, 30% to 70% of the children in California group homes do not belong there and should not have been removed from their homes.

FINAL REMARKS

On my desk are scores of cases of exhausted families and troubled children. It has been beyond me to turn my back on these suffering, crying, and sometimes beaten down individuals. We are mistreating the most innocent. Child Protective Services have become adult centered to the detriment of children. No longer is judgment based on what the child needs or who the child wants to be with or what is really best for the whole family; it is some adult or bureaucrat who makes the decisions, based often on just hearsay, without ever consulting a family member, or just what is convenient, profitable, or less troublesome for a director of DFCS.

I have witnessed such injustice and harm brought to these families that I am not sure if I even believe reform of the system is possible! The system cannot be trusted. It does not serve the people. It obliterates families and children simply because it has the power to do so. Children deserve better. Families deserve better. It’s time to pull back the curtain and set our children and families free.

“Speak up for those who cannot speak for themselves, for the rights of all who are destitute.
Speak up and judge fairly; defend the rights of the poor and the needy” Proverbs 31:8-9

Please continue to read:

Recommendations
Exhibit A
Exhibit B

RECOMMENDATIONS

1. Call for an independent audit of the Department of Family and Children’s Services (DFCS) to expose corruption and fraud.

2. Activate immediate change. Every day that passes means more families and children are subject to being held hostage.

3. End the financial incentives that separate families.

4. Grant to parents their rights in writing.

5. Mandate a search for family members to be given the opportunity to adopt their own relatives.

6. Mandate a jury trial where every piece of evidence is presented before removing a child from his or her parents.

7. Require a warrant or a positive emergency circumstance before removing children from their parents. (Judge Arthur G. Christean, Utah Bar Journal, January, 1997 reported that “except in emergency circumstances, including the need for immediate medical care, require warrants upon affidavits of probable cause before entry upon private property is permitted for the forcible removal of children from their parents.”)

8. Uphold the laws when someone fabricates or presents false evidence. If a parent alleges fraud, hold a hearing with the right to discovery of all evidence.

Senator Nancy Schaefer
50th District of Georgia

EXHIBIT A

December 5, 2006
Jeremy’s Story

( Some names withheld due to future hearings)
As told to Senator Nancy Schaefer by Sandra (XXXX), a foster parent of Jeremy for 2 ½ years.

My husband and I received Jeremy when he was 2 weeks old and we have been the only parents he has really ever known. He lived with us for 27 months. (XXXX) is the grandfather of Jeremy, and he is known for molesting his own children, for molesting Jeremy and has been court ordered not to be around Jeremy. (XXXX) is the mother of Jeremy, who has been diagnosed to be mentally ill, and also is known to have molested Jeremy. (XXXX) and Jeremy’s uncle is a registered sex offender and (XXXX) is the biological father, who is a drug addict and alcoholic and who continues to be in and out of jail. Having just described Jeremy’s world, all of these adults are not to be any part of Jeremy’s life, yet for years DFCS has known that they are. DFCS had to test (XXXX) (the grandfather) and his son (XXXX) (the uncle) and (XXXX) to determine the real father. (XXXX) is the biological father although any of them might have been. In court, it appeared from the case study, that everyone involved knew that this little boy had been molested by family members, even by his own mother, (XXXX). In court, (XXX), the mother of Jeremy, admitted to having had sex with (XXXX) (the grandfather) and (XXXX) (her own brother) that morning. Judge (XXXX) and DFCS gave Jeremy to his grandmother that same day. (XXXX), the grandmother, is over 300 lbs., is unable to drive, and is unable to take care of Jeremy due to physical problems. She also has been in a mental hospital several times due to her behavior. Even though it was ordered by the court that the grandfather (XXXX), the uncle (XXXX) (a convicted sex offender), (XXXX) his mother who molested him and (XXXX) his biological father, a convicted drug addict, were not to have anything to do with the child, they all continue to come and go as they please at (XXXX address), where Jeremy has been “sentenced to live” for years. This residence has no bathroom and little heat. The front door and the windows are boarded. (See pictures) This home should have been condemned years ago. I have been in this home. No child should ever have to live like this or with such people. Jeremy was taken from us at age 2 ½ years after (XXXX) obtained attorney (XXXX), who was the same attorney who represented him in a large settlement from an auto accident. I am told, that attorney (XXXX), as grandfather’s attorney, is known to have repeatedly gotten (XXXX) off of several criminal charges in White County. This is a matter of record and is known by many in White County. I have copies of some records. (XXXX grandfather), through (XXXX attorney’s) work, got (XXXX), the grandmother of Jeremy, legal custody of Jeremy. (XXXX grandfather) who cannot read or write also got his daughter (XXXX) and son (XXXX) diagnosed by government agencies as mentally ill. (XXXX grandfather), through legal channels, has taken upon himself all control of the family and is able to take possession of any government funding coming to these people.

It was during this time that Jeremy was to have a six-month transitional period between (XXXX grandmother) and my family as we were to give him up. The court ordered agreement was to have been 4 days at our house and 3 days at (XXXX grandmother). DFCS stopped the visits within 2 weeks. The reason given by DFCS was the child was too traumatized going back and forth. In truth, Jeremy begged us and screamed never to be taken back to (XXXX his grandmother) house, which we have on video. We, as a family, have seen Jeremy in stores time to time with (XXXX grandmother) and the very people he is not to be around. At each meeting Jeremy continues to run to us wherever he sees us and it is clear he is suffering. This child is in a desperate situation and this is why I am writing, and begging you Senator Schaefer, to do something in this child’s behalf. Jeremy can clearly describe in detail his sexual molestation by every member of this family and this sexual abuse continues to this day.

When Jeremy was 5 years of age I took him to Dr. (XXXX) of Habersham County who did indeed agree that Jeremy’s rectum was black and blue and the physical damage to the child was clearly a case of sexual molestation.

Early in Jeremy’s life, when he was in such bad physical condition, we took him to Egleston Children Hospital where at two months of age therapy was to begin three times a week. DFCS decided that the (XXXX grandparent family) should participate in his therapy. However, the therapist complained over and over that the (XXXX grandparent family) would not even wash their hands and would cause Jeremy to cry during these sessions. (XXXX the grandmother), after receiving custody no longer allowed the therapy because it was an inconvenience. The therapist reported that this would be a terrible thing to do to this child. Therapy was stopped and it was detrimental to the health of Jeremy. During (XXXX grandmother) custody, (XXXX uncle) has shot Jeremy with a BB gun and there is a report at (XXXX) County Sheriff’s office. There are several amber alerts at Cornelia Wal-Mart, Commerce Wal-Mart, and a 911 report from (XXXX) County Sheriff’s Department when Jeremy was lost. (XXXX grandmother), to teach Jeremy a lesson, took thorn bush limbs and beat the bottoms of his feet. Jeremy’s feet got infected and his feet had to be lanced by Dr. (XXXX). Then Judy called me to pick him up after about 4 days to take back him to the doctor because of intense pain. I took Jeremy to Dr. (XXXX) in Gainesville. Dr. (XXXX) said surgery was needed immediately and a cast was added. After returning home, (XXXX), his grandfather and (XXXX), his uncle, took him into the hog lot and allowed him to walk in the filth.

Jeremy’s feet became so infected for a 2nd time that he was again taken back to Dr. (XXXX) and the hospital. No one in the hospital could believe this child’s living conditions. Jeremy is threatened to keep quiet and not say anything to anyone. I have videos, reports, arrest records and almost anything you might need to help Jeremy. Please call my husband, Wendell, or me at any time.

Sandra and (XXXX) husband (XXXX)

EXHIBIT B

Failure of DFCS to remove six desperate children

A brief report regarding six children that Habersham County DFCS director failed to remove as disclosed to Senator Nancy Schaefer by Sheriff Deray Fincher of Habersham County.

Sheriff Deray Fincher, Chief of Police Don Ford and Chief Investigator Lt. Greg Bowen Chief called me to meet with them immediately, which I did on Tuesday, October 16, 2007 Sheriff Fincher, after contacting the Director of Habersham County DFCS several times to remove six children from being horribly abused, finally had to get a court order to remove the children himself with the help of two police officers.

The children, four boys and two girls, were not just being abused; they were being tortured by a monster father.

The six children and a live in girl friend were terrified of this man, the abuser. The children never slept in a bed, but always on the floor. The place where they lived was unfit for human habitation.

The father on one occasion hit one of the boys across his head with a bat and cut the boy’s head open. The father then proceeded to hold the boy down and sew up the child’s head with a needle and red thread. However, even with beatings and burnings, this is only a fraction of what the father did to these children and to the live-in girlfriend.

Sheriff Fincher has pictures of the abuse and condition of one of the boys and at the writing of this report, he has the father in jail in Habersham County.

It should be noted that when the DFCS director found out that Sheriff Fincher was going to remove the children, she called the father and warned him to flee.

This is not the only time this DFCS director failed to remove a child when she needed to do so. (See Exhibit A)

The egregious acts and abhorrent behavior of officials who are supposed to protect children can no longer be tolerated.

Senator Nancy Schaefer
50th District of Georgia

(originally posted 12/5/07 at FightCPS.Com)

The following article was written by a dear friend of mine in 1995. She told me then I could circulate this, but asked that I don’t use her name. I know the file is online elsewhere with her name, but I’ll exclude it because she asked me not to use it, at the time. I met her when she started using computer bulletin board systems to get information helpful to her CPS case. I owned a computer bulletin board system (using FidoNet) at the time. She lived only a few miles from me and we got together and became friends before I left the Bay Area. She worked mainly with VOCAL and some attorneys to get her step-child home from foster care, so you’ll see references to NASVO and VOCAL in the following article. I don’t know if the NASVO contact phone number is still useful as this is now a twelve year old article! However it contains some good information, and I’d like to know what you think of the suggestions she gives. - LJM

Don’ts and Dos when Falsely Accused of Child Abuse or Neglect

Don’t Invite Law Enforcement or Social Services Into Your Home Without a Warrant

This action waives your right under illegal search and seizure under the Constitution. This will allow them to come into your home at ANY TIME and search and seize your children or belongings.

Don’t Speak To Anyone About Your Case Without First Consulting A Lawyer. Everything You Say Can and Will Be Used Against You

If you cannot afford a lawyer one will be appointed to you if you are arrested. No attorney will be appointed to you if this is a civil case (family law). In some states, attorneys are appointed to parents in juvenile dependency court. You should call the local Bar Association or legal information service nearest you for this information.

Don’t Contact the Alleged Victim, Their Family, or Prosecution Witnesses

Any and all such contact will be construed as an attempt to bribe or threaten the alleged victim into silence or recantation. Such contact must be done through a PRIVATE INVESTIGATOR who will work through or with your attorney.

Don’t Turn To Drugs or Alcohol

Such substances are habit forming and are depressants. They can cause you to jeopardize your case.

Do Go Attorney Shopping

Seek out an attorney who is EXPERIENCED IN CHILD ABUSE CASES (specifically false cases). For assistance, contact your local VOCAL or call NASVO at (916) 863-7470. If you cannot afford an attorney, one will be appointed to you in criminal court. If you are in civil court (family), you must pay for your own attorney. Depending on the state, you may or may not be appointed an attorney in juvenile dependency court.

Do Hire A Private Investigator

Some attorneys have their own in house investigators. Some do not, and IT IS CRUCIAL THAT AN INVESTIGATOR BE IMMEDIATELY ASSIGNED TO YOUR CASE. If your attorney does not provide one, call NASVO for references.

Do Keep A Daily Journal

Such a journal should document everything you do or where you go and people who see you or are with you. Keep receipts of purchases to keep evidence of activities. Back date a journal by going through canceled checks, photos, letters and holiday experiences. Try to remember and reconstruct everything you did and where you were at the time of the allegation. Give this information to your investigator (and attorney). This can provide evidence.

Do Strip Search the Child’s Room, if the Accusing Child Lived in Your Home

This can provide proof as to your child’s activities and sexual and social habits. Look for notes, letters, diaries, photos, telephone numbers, drug or sexual paraphernalia. Provide findings to your investigator (and your attorney).

Do Keep Active

Physical and social activity are healthy and will assist in keeping depression at bay.

Do Pay Your Attorney or Investigator

The people you hire for your defense are professionals and will work toward finding a solid defense. It is advisable to ALWAYS ENTER INTO A CONTRACT AGREEMENT FOR FEES. This sets the boundaries of your agreement and protects both you and your defense professional from failure. If you have problems about your proposed contract, call NASVO.

I found this press release online today and decided to share it with you. I live in a town dominated by and divided by a tribe. I’ve had people who had to deal with the tribal child welfare agents complain to me about the way they were treated. It used to be that we believed the Indian Child Welfare Act could help some families, but now it seems to be just another way for tribes to make money. I can tell you, the tribe here has been applying for grant money for years; recently receiving over 2 million dollars in grants. It is a huge money-grab, and child welfare money is certainly part of it.

I checked out the site mentioned at the end of the following article and read some heart-breaking stories. One story mentioned that a certain tribe had only 5,000 members, but they held over 1,000 children in foster homes. - LJM

Children’s Lives Destroyed by ICWA, Says CAICW

WASHINGTON, Aug. 29 /PRNewswire-USNewswire/ — Across America, children that have never been near a reservation nor involved in tribal customs are routinely being removed from homes they love and placed with strangers chosen by tribes.

Though proponents of the ICWA argue that the act has safeguards to prevent misuse, scores of multi-racial children are being negativelyaffected by application of the Indian Child Welfare Act (ICWA).

Over decades, numerous tribal members have married non-members and moved off the reservations. Many chose to leave because they didn’t want their children raised amid the dangers rampant in Indian Country.

However, ICWA authorizes tribal jurisdiction over any child who is a member of a tribe, or eligible for membership and the biological child of a member. Tribal governments determine their own membership and most require only 1/4 blood quantum, The Cherokee Nation of Oklahoma goes further and claims jurisdiction over any child with ancestry tracing back to the Dawes Rolls no matter how minute the blood quantum. Making matters worse, some states have recently passed laws barring courts from considering whether a child or his family have any real connection to the tribe. As a result, the following occurs:

“… it was discovered she (the birthmother) is 1/128th Cherokee. That makes my son 1/256 or .0039% Native American and 99.9961% not…. His mother…was very adamant about the Cherokee Nation NOT raising her child and the court records show this. In April of 2006, we were notified of the Cherokee Nation’s intent to take us to court and remove our son from our home…. Since then, we have been in a constant state of panic….”

Any emotionally healthy child, no matter their heritage, is devastated when taken from home and forced to live with strangers. Even children of 100% tribal heritage are devastated if they’re taken from non-tribal families they love and placed with strangers they know nothing about.

The Christian Alliance for Indian Child Welfare (CAICW) is the only national organization advocating for families who have lost or are at risk of losing children due to misapplied and sometimes illegal application of the ICWA. The CAICW will be at the National Press Club at 12 noon, Tuesday, September 4, 2007, with affected families sharing about this growing problem.

Letters from birth parents, grandparents, foster families, pre-adoptive families, and tribal members themselves can be read at http://www.caicw.org/familystories.html.

icwa indian child welfare act child welfare children

It always astounds me when people come onto this site, say I’m not doing the right thing, and suggest some other thing I should be doing to help change the CPS system.

For example, today I checked the comments for this site and found a comment from Darrin who thinks I should be tracking down a man I’ve never met, whose name I don’t know, to get more information before posting something about a news article.

Sorry, Darrin. I don’t have time. Do it yourself if you think it needs to be done.

Then I came across Carla’s message about creating a new child protection system. Great idea, but again, I don’t have time. I think Carla should do it because after all, it is her idea.

This reminds me that not long ago John told me I should focus my efforts on getting more funding for foster children. Yeah, right… like I would ever do that! Foster parents already get lots more than welfare recipients, and they keep complaining. Don’t get me started on that one! If John thinks that’s the answer to all CPS problems, then John should do something about it.

We all are led by our hearts, to do what we think is right.

Back in October 2000, my heart told me to start this site. I’ve been struggling with this site for almost seven years now, and with trying to help people going through one of the most emotionally devastating events of their lives. And every time I hear about CPS injustice tearing a family apart, it takes a toll on me. I’m constantly upset by things I read on this site - for example what RJ just wrote about his infant being taken by a CPS agent at the hospital because his fiancé mentioned that she’d been depressed when she was 13 or 14. What teenager hasn’t? Why does that mean a firstborn child should be taken from its loving mother? This stuff really haunts me and grabs at my heart.

Many times it isn’t easy for me to bear - which is why I’ve left the message board here in the loving hands of other advocates and activists who want to help counsel people going through CPS hell. That is what their hearts tell them to do, and I’m so grateful for anyone doing anything to help change this inhumane system of cruelty to families. I don’t need or want to be the center of attention here. I’m only doing what my heart led me to do seven years ago, and I know it isn’t right to stop doing it yet. So here I am, still, after all these years.

Which brings me to the point of this article, which is that we all should listen to our hearts and our consciences, and take whatever actions we feel appropriate for the highest good of all involved. If your heart tells you to advocate for families one-on-one, then do it. Don’t expect me to - as that’s not what my heart tells me to do. You do your thing and I’ll do my thing. And hopefully if we all work on doing our heart-inspired tasks, together we can make huge changes in the world.

One person can’t do it all. Don’t even try… this problem is way too big for that. But do your own small part, just as I’m doing my own small part. And don’t think that this site is the ultimate family rights site. If your heart is telling you to create another one, there’s a reason for that! Maybe it is the right thing to do! Don’t hold back. Everyone has talents and capacities that can be drawn upon to help fight CPS and make this world a safer, healthier place for families. Do your own small part and don’t worry about what others are doing, and don’t be like Darrin, Carla and John, and try to tell others what they should be doing. That’s not helpful at all.

If you’ve read this far, I thank you. And I want to tell you what I’ve been doing lately.

It may surprise some people like the three I just mentioned, but I don’t spend all my time working on this website. I hold down a part-time job in my community, and I own two small businesses that are barely profitable… but they keep me busy. I live in an extremely low-budget cabin in the Klamath National Forest, which I rent. I’m not a lawyer and currently don’t work in the legal profession at all. I have a boyfriend I dearly love who expects me to spend a huge part of my time with him. I’m a 55-year-old woman (boyfriend is 56) and I still have one child at home, plus four adult children. My youngest is almost 18 and so soon, for the first time in 35 years, I’ll have no minor children to take care of. Also I have no grandchildren which considering the work I do on this site, could be a divine blessing and protection.

For the last few days my home has been threatened by a forest fire. I live in far-northern California, in a small town called Happy Camp. I came home from my birthday trip to the coast on Saturday night to find that there was a forest fire blazing on the hill next to the forested hill I live on. One of my part-time small businesses is the Happy Camp News site which I’m grateful to say, is in the process of being sold so I won’t have to keep working on it. But this week I’ve been posting articles about the fire, doing interviews, etc. plus I had to remove all my valuables from my home and pack everything, because it seemed that evacuation was imminent. At this point the fire is less intense, however that could change again. So all this stuff is going on, plus I’m still going to work where our workload tripled because of the huge numbers of fire fighters present in our town at this time.

Then I came in here and saw messages from Darrin and Carla, and well, this article is the end result. I don’t need anyone telling me what to do with my time, or saying I’m not doing enough by providing this site, some simple legal information, and a message board for people to connect on. This is what my heart leads me to do, and I’m doing it.

I know that most of the people who come to this site appreciate what I’ve done here. I’m sorry I’m not able to do one-on-one counseling and legal help, but I really don’t have the time or stamina, and like I said, hearing the sad stories affects my heart, and it is nearly more than I can bear at times. I’m a very sensitive person and I love you all.

I don’t want you to stop writing about your heartaches here - because I want the people that matter to come here and read these things. I want CPS workers to stop by and read what we think of their tactics for destroying families. I want foster parents to know that many of the children they are hostage-holding for the government are taken unfairly from innocent parents. I want legislators to come here and realize the CPS system is horrible, unjust, and inhumane. I want them to know that they must be the ones to take the lead, by writing laws to end this system of cruelty in our country. I want lawyers to know that if they aren’t defending their CPS clients actively and aggressively, they are doing a disservice, and are (in my opinion) frauds to be taking on clients they can’t or won’t defend properly. I want them to have the heart to do what must be done in court to safeguard family rights.

Enough said. Thanks for reading, and I’ll post more sometime when I’ve got more time on my hands for publicizing the details of all the injustice CPS does to harm children and families. That seems to be my lifework, which my heart draws me to. I’m here for you as much as I can be, and wherever else I am, you know I’m totally on your side, hoping for all good things to happen in your lives.

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.

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

This column is a reaction to the recent report in Kentucky about corruption in the child welfare industry. This was published on kentucky.com - I am unable to locate the author’s name. - ljm

Repulsive mess
Social-services scandal needs strong cleaner
Fri, Jan. 19, 2007

Sadistic and criminal aren’t words usually associated with social workers. But they come to mind while reading the results of a yearlong investigation into a Kentucky child-protection bureaucracy that was allowed to go rogue.

Social workers gave each other nicknames like “The Queen of Removal” and “Terminator” and laughed as they stripped children from their parents.

Workers and supervisors lied and falsified documents to cover up their misconduct and misled an accrediting agency. Those who protested or tried to report the abuses were targeted for retaliation, while some of those responsible were rewarded.

Not all, or even most, of the social workers in the eight-county Lincoln Trail area, based in Elizabethtown, are guilty of the abuses of government power detailed by Inspector General Robert J. Benvenuti III.

And such abuses are not confined to Lincoln Trail.

But that’s not much consolation.

It underlines the “luck of the draw” quality of life-changing decisions being made about children and their families. “Kentucky’s Other Lottery” is the apt title of the report by child advocates that launched the Inspector General’s investigation.

The good news is that the scathing review was commissioned by the state Cabinet for Health and Family Services, which administers Lincoln Trail and the rest of Kentucky’s community-based services offices.

If the cabinet is willing to air its nasty linen, maybe it will also deal aggressively with the problems the report revealed. A lot of people are watching to see how the cabinet responds.

Kentucky’s social workers expose themselves daily to great danger for little pay while making difficult judgment calls on which the safety and well-being of children hinge.

Social worker Boni Frederick was killed last year while supervising an in-home visit between a foster child and his biological mother.

No one is criticizing the judgment calls required in the course of a day’s work. But what developed within Lincoln Trail was pernicious and rotten — an “attitude of supremacy” toward clients and the public, according to the IG’s report.

The report identified 13 possible criminal violations that were turned over to a local prosecutor, along with various violations of cabinet policy.

The inspector general also issued a list of recommendations, some of which would require legislation and some of which the cabinet could accomplish by itself.

A blue-ribbon task force was already at work on reforms aimed at correcting abuses in the processes for terminating parental rights and adoption.

But no amount of legislation or reorganization can clean out all the rottenness that this investigation exposed.

The responsible parties should be held accountable.

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