Police say examiner's office ignored their concerns about child's death
By Noah Haglund, Diana Hefley and Rikki King
MONROE -- Police say they repeatedly tried to tell the Snohomish County Medical Examiner's Office that a 7-year-old boy who showed up dead at a Monroe hospital had a history of mistreatment and neglect.
Police wanted an autopsy and called at least three times to make their case. They were given "a dismissive 'no,'" Monroe police spokeswoman Debbie Willis said Tuesday.
State officials confirmed that a social worker witnessed at least one of those conversations, and the detective mentioned Child Protective Services' past involvement with the boy's family.
Still, the medical examiner's office ruled the boy's death "low suspicion." His body was released and cremated without an autopsy. Two weeks later, toxicology tests ordered by the medical examiner came back showing the boy died with lethal amounts of what appears to be over-the-counter painkillers in his system.
Police are investigating the death as a potential manslaughter. The case is complicated by a lack of evidence from a body, little cooperation from the boy's parents and possible missteps in how his death investigation was handled. National experts say there aren't clear-cut policies for when a child death investigation requires an autopsy.
The boy, identified in court papers only as "A.J." of Monroe, was pronounced dead Jan. 30. His father brought the boy into the hospital emergency room unresponsive, nearly 40 minutes after he said he found the boy "ash white," the documents showed.
In the days after the boy's death, a detective called the medical examiner's office at least twice to request an autopsy, Willis said. A sergeant called, as well.
The detective attempted to explain that he'd investigated the boy's parents in a reckless endangerment case two years before, she said.
"It was a dismissive 'no,' they were not going to do an autopsy," she said. "They asked if we had documentation of any physical abuse, and we said no."
The medical examiner representative reportedly told the detective that if police wanted to send documents, they'd be reviewed, Willis said. They asked for no additional information.
"The detective felt at that point that we'd had three dismissive phone calls, they're not listening, and we have an investigation to continue here, and did not send any reports to them," Willis said.
The Snohomish County Executive's Office, which oversees the medical examiner, has declined to discuss any specifics of the case, citing the ongoing police investigation.
Police look into deaths that may involve crimes, but the medical examiner's office determines how someone died and whether the death was natural, an accident or the result of someone else's actions.
A determination on the boy's manner of death is pending, meaning there's not enough information.
State toxicologists reported finding lethal amounts of salicylates in the boy's blood. Salicylates are common in aspirin and other over-the-counter drugs.
The tests determine the presence and amount of the drug in the blood, not how it was ingested.
An autopsy would have answered important questions, such as whether there were pills in the boy's stomach. Even without that evidence, authorities still should be able to investigate, said Janice Ophoven, a Minnesota-based pediatric forensic pathologist who has consulted on cases nationally and abroad.
"In this particular case, we have a cause of death -- that's not going to be in dispute," Ophoven said. "Then the question becomes how did that stuff get in there, and is there a reasonable explanation for that?"
Salicylate poisoning generally causes noticeable symptoms that last hours before death, she said. Those include breathing problems, nausea and vomiting.
"Assuming that the numbers are reported accurately and this is a fatal dose, somebody is going to have to answer the question of what the family thought when they saw signs of salicylate poisoning," Ophoven said.
The case ultimately will come down to "good police work in the days and weeks to come," she said.
Job defies policy
There are no policies to tell forensic pathologists in Snohomish County, or anywhere else, exactly when to perform autopsies. Instead, death investigators must rely on their training and experience to make the right call.
"The almost infinite varieties in ways that people die makes it impossible to write a policy to deal with every kind of death," said Dr. Andrew Baker, spokesman for the National Association of Medical Examiners and medical examiner for Hennepin County, Minn.
Baker added: "Whether one is done is only a piece of the much larger puzzle. Whether you do one or not depends on what historical information is available to you."
A former associate pathologist for Snohomish County said the information from Child Protective Services should have made a decision on the Monroe boy's case an easy call.
"To me, it's obligatory to do an autopsy in this case if the medical examiner knew of the CPS reports," said Dr. Carl Wigren, who left Snohomish County in 2009 and now consults with coroners, attorneys and families.
The child's father pleaded guilty in 2010 to reckless endangerment after police discovered his children living in deplorable conditions. The children, then 10 and 5, were removed from the home for three months. Before then, state social workers investigated numerous allegations of mistreatment involving the couple's two sons, including a report that the older boy, now 12, had been given a double dose of anti-seizure medication on at least two occasions.
Both boys were severely developmentally delayed, but doctors haven't found genetic or neurological reasons. The older boy has been removed from the home.
Timeline still unclear
What also remains unclear is the timeline of events between the younger boy having medical trouble and the hospital declaring him dead, police said.
His father said the boy was breathing and alive when they left the home, but the emergency room doctor said when they arrived, the boy appeared to be in the early stages of rigor mortis, which happens hours after death.
Child Protective Services received notice from the hospital about the younger boy's death, said Sherry Hill, spokeswoman for the state Department of Social and Health Services
A social worker was investigating the case by 10 a.m. that morning. That included contacting Monroe police to ask if they would be assigning a detective.
Generally, hospitals contact CPS or law enforcement when the child's death is unexpected.
The social worker was in frequent contact with the detective. The social worker noted that she was there when the detective called the medical examiner's office. During that conversation, the detective conveyed the family's history with CPS. CPS officials never received a request from the medical examiner to see those reports, Hill said.
"We felt assured that the M.E. was aware of the history of this family," Hill said.
The social worker noted that the medical examiner expected to determine a cause of death that day. The social worker noted that the medical examiner planned to complete a toxicology screen and a full body scan to determine if there were any signs of abuse or neglect, Hill said.
Once the medical examiner concluded that the death wasn't suspicious, the social worker talked with the family about the possibility of doing an autopsy. She advised the family that an autopsy could be helpful to determine what caused the boy's seizures, which could be helpful to their care of their older son. The social worker made it clear that the family would need to request a full autopsy.
The social worker reported that the parents said they would consult with their own doctors and "take care of it."
Officials with the Children's Administration plan to convene a child fatality review. The law calls for a review when a child dies of suspected neglect or abuse and has received services from the state in the past year.
Shortly after A.J.'s death, leaders at his school broke the news to students and families.
A.J. was in a first-grade class.
"He faced many health challenges in his short life and we will miss him," Fryelands Elementary School Principal Jeff Presley wrote at the time. "A.J. was a wonderful member of our school family and our thoughts are with his parents and brother."
Source http://heraldnet.com/article/20120307/NEWS01/703079869/-1/News
CPS corruption hurts and destroys families worldwide. Please use caution posting about CPS here or anyplace on the internet. For your protection, using your full, real name and precise location is not advised. CPS has eyes everywhere and CPS is notorious for taking what people say, twisting it, embellishing on it and then using it against them in CPS "investigations" and at court proceedings.
Showing posts with label social worker. Show all posts
Showing posts with label social worker. Show all posts
Wednesday, March 7, 2012
Wednesday, February 22, 2012
Mothers charged with abuse over condition of Jefferson County home
Written by Jason Riley
The house was, by all accounts, filthy and unfit for children to live in, filled with dog feces, urine, rotting garbage and other hazards.
It was the type of home from which the state routinely removes children, at least until the the dangers are eliminated.
But more than two years after two toddlers were removed from the home in eastern Jefferson County and placed with a family member, prosecutors entered into what some local officials say is uncharted terrority in so-called “dirty house” cases: prosecuting twin sisters for raising the children in such a hazardous environment.
Local officials say the state Cabinet for Health and Family Services routinely investigates dirty-house cases, but it’s rare for them to wind up in Family Court — and unheard of for anyone to face criminal charges where no child was injured in the home, as is the situation for Jeanette Allen and Janet Doughty, who are charged with criminal abuse and wanton endangerment over the home’s condition.
“It is our belief that these are the only two people in Jefferson County that have ever been prosecuted” in a case like this, Allen’s attorney, Brian Butler, said during a recent court hearing, where he argued that the case should be dismissed for selective prosecution.
“This never happens. ... These people are being treated differently and unfairly.”
The defense claims that Allen and Doughty, in their early 20s, are being singled out because of what happened to their children after they were removed from the home.
Christopher Allen, 2, was beaten to death and Wyatt Allen, his half brother, also then 2, was injured within days of being removed on Aug. 25, 2008, and placed with their aunt, Nereida Allen.
Jeanette Allen is Christopher's mother, and Doughty is Wyatt's mother.
Nereida Allen and her former boyfriend, Joshua Peacher, were convicted last year of wanton murder, assault and criminal abuse and sentenced to 47 and 70 years in prison, respectively, for the death and abuse.
Timing questioned
A day before they were sentenced, the sisters were indicted over the condition of their home. They have pleaded not guilty.
“The timing is suspicious,” said J. Clark Baird, Doughty’s attorney. “These girls were not charged until after this trial was finished.”
Assistant Commonwealth’s Attorney David Scott has said prosecutors didn't seek charges sooner because they didn't wish to interfere with the murder case, and Kentucky has no statute of limitations on felonies.
And as unique as the 2011 indictment appears to be, defense attorneys have gone to equally unheard of lengths in trying to get the cases dismissed.
Butler has filed a subpoena for one of the prosecutors, asking a judge to order him to turn over any similar criminal cases ever handled by the Jefferson commonwealth’s attorney’s office; a family law attorney who served as court-appointed guardian for the two children testified that she had never heard of this type of prosecution; and, most recently and most surprisingly, the defense brought a longtime Jefferson Family Court judge in to testify in front of the circuit judge in the case.
On Jan. 30, Judge Joan Byer testified that she has handled thousands of cases, many involving dirty homes where children lived, but had never seen a family member criminally prosecuted over the condition of a home.
In fact, Byer testified, social workers typically keep dirty-home cases out of Family Court, giving the parents a chance to clean up and fix problems — such as a lack of electricity — in order to get the children back.
“The goal is not to send the case to (Family) Court except in the most extreme or extraordinary circumstances,” Byer told Judge Barry Willett.
But prosecutors argue that Allen and Doughty’s case is, in fact, extreme and extraordinary.
“This is more than a dirty-house case,” Assistant Commonwealth’s Attorney Dorislee Gilbert told Willett on Oct. 31. “The behavior they engaged in was much more than that.”
Not only was the home a health hazard — the prosecution will have an expert testify at trial that the exposure to the feces could have caused long-lasting physical problems for the children — but the sisters admitted that they would lock the children in a room by tying an electric cord from the door handle to a heavy piece of furniture, according to court records.
A social worker told police that the sisters were putting their children “in danger” and that the home was a “safety hazard.” Both sisters, who are out of jail on their own recognizance, admitted to social workers that the home was unfit for their children, according to court records.
Yet the social worker also said in an interview with police that the children were not ill and that the sisters could have gotten them back once the house was cleaned, without any court involvement, according to a transcript of the interview.
The sisters inherited the home, which has been been sold, from their mother.
Butler said in court records that he has subpoenaed Scott to force prosecutors to “admit that they have never prosecuted a dirty-house case despite the fact that they are relatively routine.”
In an interview, Scott said this “case is not simply about a dirty house but the criminal conduct of a parent exposing their children to hazardous conditions, and that constitutes abuse.”
Scott declined to say if the state had tried similar cases, saying the issue was pending before Willett and he couldn’t discuss it.
The newspaper could not find any similar felony cases in Jefferson County. But the county attorney’s office, which handles District Court cases, said criminal prosecution in dirty-house cases is rare but not unheard of.
And there have been similar cases prosecuted outside Jefferson County.
Warren Commonwealth's Attorney Chris Cohron, past president of the Commonwealth’s Attorneys Association, said he had similar cases, including one in which a man pleaded guilty to criminal abuse after being charged with allowing a 4-year-old to be locked in a room with feces on the wall and with urine-soaked carpet.
“We’ve had cases with children living in abject squalor that we believe rose to the level of criminality,” he said.
In the sisters’ case, Butler said that he will argue that Child Protective Services found Christopher and Wyatt were healthy and without any evidence of abuse when they were removed from the home. The agency determined that the children should be temporarily relocated to allow their mothers time to clean the residence.
Prosecutors, Butler said, are creating law, a scenario no different than if they tried to prosecute a parent for smoking around their children or for giving them too much fast food.
“The commonwealth has in fact created a novel crime without any injury to the child,” Butler said in a motion to dismiss. “... Simply put, a prosecutor does not and should not have the power to create law.”
Byer testified that she had reviewed the particulars of the case and found it was not unlike others she had seen.
“Unfortunately ... this type of scenario is not an unusual scenario for the court to get,” she said. “I could give example after example of similar types of situations. ... I have never in 16 years been aware of a criminal prosecution” in a case where the child was not injured in the dirty house.
The judge told Willett that she had a recent case in which a dead dog lay in a bathroom for weeks and another where a man locked a child in a basement, forcing him to urinate in a bottle. Neither led to criminal charges.
Scott questioned Byer, however, on whether she has seen homes so bad that she felt that someone should be charged for putting children’s safety at risk.
Byer said she couldn’t answer that question but believed it would require an intent to do harm.
Susan Meschler, a family law attorney who was appointed guardian for the boys, testified that the uncleanliness of the house was just a minor part of the case and that she has never seen a case where someone has been criminally prosecuted for a dirty home.
Willett has not ruled on whether to dismiss the case before trial, but senior status Judge Geoffrey Morris, sitting in for Willett during a November hearing, said the fact that Byer hadn’t heard of any of these type of cases wouldn’t sway him to dismiss the case, at least before trial.
“It doesn’t make any difference whether another judge had never seen a case like this,” Morris said. “Wouldn’t mean a thing to me.”
Source http://www.courier-journal.com/article/20120219/NEWS01/302190064/house-conditions-child-abuse?odyssey=mod%7Cnewswell%7Ctext%7CHome%7Cs
The house was, by all accounts, filthy and unfit for children to live in, filled with dog feces, urine, rotting garbage and other hazards.
It was the type of home from which the state routinely removes children, at least until the the dangers are eliminated.
But more than two years after two toddlers were removed from the home in eastern Jefferson County and placed with a family member, prosecutors entered into what some local officials say is uncharted terrority in so-called “dirty house” cases: prosecuting twin sisters for raising the children in such a hazardous environment.
Local officials say the state Cabinet for Health and Family Services routinely investigates dirty-house cases, but it’s rare for them to wind up in Family Court — and unheard of for anyone to face criminal charges where no child was injured in the home, as is the situation for Jeanette Allen and Janet Doughty, who are charged with criminal abuse and wanton endangerment over the home’s condition.
“It is our belief that these are the only two people in Jefferson County that have ever been prosecuted” in a case like this, Allen’s attorney, Brian Butler, said during a recent court hearing, where he argued that the case should be dismissed for selective prosecution.
“This never happens. ... These people are being treated differently and unfairly.”
The defense claims that Allen and Doughty, in their early 20s, are being singled out because of what happened to their children after they were removed from the home.
Christopher Allen, 2, was beaten to death and Wyatt Allen, his half brother, also then 2, was injured within days of being removed on Aug. 25, 2008, and placed with their aunt, Nereida Allen.
Jeanette Allen is Christopher's mother, and Doughty is Wyatt's mother.
Nereida Allen and her former boyfriend, Joshua Peacher, were convicted last year of wanton murder, assault and criminal abuse and sentenced to 47 and 70 years in prison, respectively, for the death and abuse.
Timing questioned
A day before they were sentenced, the sisters were indicted over the condition of their home. They have pleaded not guilty.
“The timing is suspicious,” said J. Clark Baird, Doughty’s attorney. “These girls were not charged until after this trial was finished.”
Assistant Commonwealth’s Attorney David Scott has said prosecutors didn't seek charges sooner because they didn't wish to interfere with the murder case, and Kentucky has no statute of limitations on felonies.
And as unique as the 2011 indictment appears to be, defense attorneys have gone to equally unheard of lengths in trying to get the cases dismissed.
Butler has filed a subpoena for one of the prosecutors, asking a judge to order him to turn over any similar criminal cases ever handled by the Jefferson commonwealth’s attorney’s office; a family law attorney who served as court-appointed guardian for the two children testified that she had never heard of this type of prosecution; and, most recently and most surprisingly, the defense brought a longtime Jefferson Family Court judge in to testify in front of the circuit judge in the case.
On Jan. 30, Judge Joan Byer testified that she has handled thousands of cases, many involving dirty homes where children lived, but had never seen a family member criminally prosecuted over the condition of a home.
In fact, Byer testified, social workers typically keep dirty-home cases out of Family Court, giving the parents a chance to clean up and fix problems — such as a lack of electricity — in order to get the children back.
“The goal is not to send the case to (Family) Court except in the most extreme or extraordinary circumstances,” Byer told Judge Barry Willett.
But prosecutors argue that Allen and Doughty’s case is, in fact, extreme and extraordinary.
“This is more than a dirty-house case,” Assistant Commonwealth’s Attorney Dorislee Gilbert told Willett on Oct. 31. “The behavior they engaged in was much more than that.”
Not only was the home a health hazard — the prosecution will have an expert testify at trial that the exposure to the feces could have caused long-lasting physical problems for the children — but the sisters admitted that they would lock the children in a room by tying an electric cord from the door handle to a heavy piece of furniture, according to court records.
A social worker told police that the sisters were putting their children “in danger” and that the home was a “safety hazard.” Both sisters, who are out of jail on their own recognizance, admitted to social workers that the home was unfit for their children, according to court records.
Yet the social worker also said in an interview with police that the children were not ill and that the sisters could have gotten them back once the house was cleaned, without any court involvement, according to a transcript of the interview.
The sisters inherited the home, which has been been sold, from their mother.
Butler said in court records that he has subpoenaed Scott to force prosecutors to “admit that they have never prosecuted a dirty-house case despite the fact that they are relatively routine.”
In an interview, Scott said this “case is not simply about a dirty house but the criminal conduct of a parent exposing their children to hazardous conditions, and that constitutes abuse.”
Scott declined to say if the state had tried similar cases, saying the issue was pending before Willett and he couldn’t discuss it.
The newspaper could not find any similar felony cases in Jefferson County. But the county attorney’s office, which handles District Court cases, said criminal prosecution in dirty-house cases is rare but not unheard of.
And there have been similar cases prosecuted outside Jefferson County.
Warren Commonwealth's Attorney Chris Cohron, past president of the Commonwealth’s Attorneys Association, said he had similar cases, including one in which a man pleaded guilty to criminal abuse after being charged with allowing a 4-year-old to be locked in a room with feces on the wall and with urine-soaked carpet.
“We’ve had cases with children living in abject squalor that we believe rose to the level of criminality,” he said.
In the sisters’ case, Butler said that he will argue that Child Protective Services found Christopher and Wyatt were healthy and without any evidence of abuse when they were removed from the home. The agency determined that the children should be temporarily relocated to allow their mothers time to clean the residence.
Prosecutors, Butler said, are creating law, a scenario no different than if they tried to prosecute a parent for smoking around their children or for giving them too much fast food.
“The commonwealth has in fact created a novel crime without any injury to the child,” Butler said in a motion to dismiss. “... Simply put, a prosecutor does not and should not have the power to create law.”
Byer testified that she had reviewed the particulars of the case and found it was not unlike others she had seen.
“Unfortunately ... this type of scenario is not an unusual scenario for the court to get,” she said. “I could give example after example of similar types of situations. ... I have never in 16 years been aware of a criminal prosecution” in a case where the child was not injured in the dirty house.
The judge told Willett that she had a recent case in which a dead dog lay in a bathroom for weeks and another where a man locked a child in a basement, forcing him to urinate in a bottle. Neither led to criminal charges.
Scott questioned Byer, however, on whether she has seen homes so bad that she felt that someone should be charged for putting children’s safety at risk.
Byer said she couldn’t answer that question but believed it would require an intent to do harm.
Susan Meschler, a family law attorney who was appointed guardian for the boys, testified that the uncleanliness of the house was just a minor part of the case and that she has never seen a case where someone has been criminally prosecuted for a dirty home.
Willett has not ruled on whether to dismiss the case before trial, but senior status Judge Geoffrey Morris, sitting in for Willett during a November hearing, said the fact that Byer hadn’t heard of any of these type of cases wouldn’t sway him to dismiss the case, at least before trial.
“It doesn’t make any difference whether another judge had never seen a case like this,” Morris said. “Wouldn’t mean a thing to me.”
Source http://www.courier-journal.com/article/20120219/NEWS01/302190064/house-conditions-child-abuse?odyssey=mod%7Cnewswell%7Ctext%7CHome%7Cs
Friday, January 6, 2012
Attorneys for tortured teen sue seven government employees for alleged negligence
By Marjie Lundstrom
Attorneys for the young Sacramento woman who was tortured as a teen in her adoptive home filed a lawsuit Thursday against seven current and former government workers who had contact with the troubled household.
Lilly Manning, who turn turns 20 next week, and two of her siblings are seeking damages from six administrators and workers at Hiram Johnson High School, as well as a former social worker for Sacramento County's Child Protective Services.
Last month, the legal team, headed by Joe C. George, a lawyer/psychologist and child abuse expert, filed a claim for damages against CPS and the Sacramento City Unified School District.
The new civil filing seeks to hold the public employees personally liable for "negligent conduct" in their dealings with the children and their violent caregivers.
The new complaint for damages alleges that a CPS social worker was "a personal friend" of the abusive adoptive mother, Lillian Manning-Horvath, and dismissed or minimized warnings about the home. The complaint also alleges that the six employees associated with the school district saw Lilly's injuries or expressed suspicions about the family but failed to alert CPS, as required by law.
Both Lillian Manning-Horvath and her husband, Joseph Horvath, were sentenced to multiple life terms.
Source http://www.sacbee.com/2012/01/05/4166302/attorneys-for-tortured-teen-sue.html
Attorneys for the young Sacramento woman who was tortured as a teen in her adoptive home filed a lawsuit Thursday against seven current and former government workers who had contact with the troubled household.
Lilly Manning, who turn turns 20 next week, and two of her siblings are seeking damages from six administrators and workers at Hiram Johnson High School, as well as a former social worker for Sacramento County's Child Protective Services.
Last month, the legal team, headed by Joe C. George, a lawyer/psychologist and child abuse expert, filed a claim for damages against CPS and the Sacramento City Unified School District.
The new civil filing seeks to hold the public employees personally liable for "negligent conduct" in their dealings with the children and their violent caregivers.
The new complaint for damages alleges that a CPS social worker was "a personal friend" of the abusive adoptive mother, Lillian Manning-Horvath, and dismissed or minimized warnings about the home. The complaint also alleges that the six employees associated with the school district saw Lilly's injuries or expressed suspicions about the family but failed to alert CPS, as required by law.
Both Lillian Manning-Horvath and her husband, Joseph Horvath, were sentenced to multiple life terms.
Source http://www.sacbee.com/2012/01/05/4166302/attorneys-for-tortured-teen-sue.html
Thursday, December 29, 2011
Reasons unclear for fatal CPS decision to return a child to her parents
Blogger Note:
#CPS FAILURE
It is obvious that CPS does not know a good home or good parents from bad ones.
-----
By Brad Branan
Giovanni Melchor was just a year old when he drowned in the stagnant water of his family's backyard swimming pool in late 2006.
The family's single-story, purple-trimmed home in south Sacramento seemed well maintained on the outside. But inside, a neighbor said, the house was infested with roaches and city inspectors later cited Giovanni's father for an unsecured pool fence, the lack of a door closing off the garage from the pool, and a host of other health and safety code violations.
Not even three years later, Giovanni's sister, Yeinira, who had been removed from the home and then returned, was also dead, a victim of medical neglect by her parents.
Case files from Sacramento County Child Protective Services, recently obtained by The Bee, show how the 2-year-old girl died. Court records show that her parents, Jose Jaime Melchor, 35, and Elizabeth Melchor, 29, pleaded no contest to child endangerment charges in July and were deported this year.
What the records don't explain is how the agency made the decision to return the child to care that led to her death.
County officials say they cannot discuss the case or the records because of confidentiality laws.
But without documentation, evaluating the agency's actions is difficult, said Ed Howard, senior counsel at the Children's Advocacy Institute in San Diego, who reviewed Yeinira's file at the request of The Bee.
"If we take them at face value – that there is no documentation for reuniting this child with a very troubled family – then this is a fiasco," Howard said. "You can't do this job without documenting your reasons for making such a decision."
Specifically, CPS records for Yeinira do not show whether the agency conducted an assessment about the risk of returning her to the home – using what's called the Structured Decision Making tool – in violation of its own policies.
"In all of its reports, the (CPS) Oversight Committee has recommended comprehensive and consistent use of the tool," said Gina Roberson, co-chair of the committee. "It means social workers are using the best practices in trying to prevent child abuse."
The CPS Oversight Committee, echoing the complaints of experts and child welfare advocates, has repeatedly found the agency's social workers have made questionable decisions and serious errors in high-risk cases such as the Melchor's. That assessment was repeated in other reports this year, including one by the California State Auditor.
CPS released two sets of files on the Yeinira case. The first contained 12 pages and no information about the family's extensive record with CPS. The second, released after The Bee requested it under the California Public Records Act, had 124 pages.
County Health and Human Services Director Ann Edwards said the release of the incomplete file was unintentional. But neither set answers the questions about the fatal decision to return her to her parents.
A troubled history
The year Giovanni died, the Melchors were living in a working-class neighborhood on Center Parkway. They had five children.
Neighbors, attorneys and a social worker who had contact over the years with the Melchors, an immigrant family from Mexico, said the family needed help. They said Elizabeth Melchor seemed incapable of caring for her children and, according to court records, Jose Jaime Melchor physically abused his wife.
Five reports of alleged abuse or neglect involving the family were made to CPS prior to Yeinira's birth in July 2006, court records show.
Some of the reports involved the father, who allegedly had a drinking problem and abused his wife, according to court and CPS files. Other reports involved the mother, accused of hitting the children. Two of the reports were upheld by CPS.
Yeinira had a heart defect and a cleft palate that made feeding her difficult. Less than a month after she was born, CPS received another complaint, noting the mother wasn't learning how to take care of her fragile daughter. The child was still in the hospital and at risk of dehydration if not properly nourished.
Melchor "admits she is depressed and overwhelmed," according to an unidentified reporter quoted in the CPS case file. The mother and the father were refusing the training needed to feed Yeinira, according to the report. The source recommended placing Yeinira in a special foster home for her medical needs.
The complaint was upheld. CPS started monitoring the child, but allowed her to go home with her mother. Yvette Washington, a home visitation worker with the county's Birth and Beyond program, was assigned to counsel the family.
"She seemed withdrawn," Washington said of Elizabeth Melchor in an interview with The Bee.
Washington said she brought a public health nurse to the family's home to explain the risks of having a pool with stagnant water and a small and unsecured fence.
The mother didn't seem to take the matter seriously, Washington said, adding that she stopped providing service to the family in 2006 because Melchor was unreceptive.
Giovanni drowned in October that year. Melchor told police she was taking care of Yeinira, and left her other children unattended in the garage for about an hour, records show. Giovanni apparently wandered from the garage and into the pool.
Police found the missing garage door and the unsecured pool fence. Neither parent was charged. CPS also initially declined to take protective action, determining that an allegation of neglect was unfounded, court records show.
That reluctance befuddled some of the Melchors' neighbors.
Andrea Garcia, who lived next door to the family, said the Melchors were troubled. Her interactions with the family usually came when something went wrong, she said, such as when the children were left outside in diapers in cold weather.
The Garcias watched the other Melchor children while the parents dealt with the emergency of finding Giovanni in the pool.
Andrea Garcia said the children were filthy. She said she entered the Melchor home for clean clothes and saw cockroaches everywhere.
Her father, Jesus Garcia, said he had worried about the safety of the Melchor children under their mother's care."We never understood why CPS let her keep the kids," he said.
Taken away, brought back
Ten months after the drowning, the four Melchor children became dependents of the county as a result of abuse and neglect, court records show.
In Yeinira's case, her parents repeatedly failed to bring her to doctor's appointments, CPS records show. She missed eight appointments in seven months. Doctor's notes indicated a growing concern about her well-being.
In foster care, she had surgery for her ailments and had recovered well. But in May 2008, less than two months after her surgery, Yeinira returned to her parents' home, joining her siblings who had been reunited with them several months earlier.
To place a foster child back in a parent's home, CPS must convince a dependency court judge that the conditions that originally made the home unsafe had been fixed. For Yeinira, CPS needed to ensure the issues at home had been addressed, said Bill Grimm, senior counsel at the National Center for Youth Law in Oakland, who reviewed the child's file at The Bee's request.
"Given all that was going on before, there was a pretty high threshold for them to resume care," Grimm said.
The lack of documentation calls the agency's decisions into question, said Grimm, adding that returning Yeinira home without doing a risk assessment would have been a serious error, if that's what happened.
Without care
After Yeinira returned, she did not see a doctor for about a year because the family didn't have insurance, her father told Sacramento police investigators in 2009.
During that time, Yeinira had a seizure, her mother told police. She said she put rubbing alcohol on a cotton ball and placed it under Yeinira's nose to revive her.
A couple of months later, Yeinira had another seizure. Yeinira "fell back, arched her back, and her feet twisted" as she fell onto concrete, her mother said, according to the investigative report. She again used rubbing alcohol and an onion to revive Yeinira.
The problem returned the next day, as Yeinira "fell forward, and her head hit the wall and her eyes went up," her mother said.
Again, Melchor turned to an onion and rubbing alcohol to revive her daughter. Her father was holding Yeinira in his lap when the mother noticed Yeinira wasn't breathing, she told investigators.
The father brought her to Kaiser Permanente Medical Center, south Sacramento, minutes away from their home. Two days later, April 20, 2009, Yeinira died at Kaiser's Roseville hospital because of a lack of oxygen in the brain, an autopsy found.
The Coroner's Office said physical abuse also may have contributed to her death, noting that she'd had a broken arm and other recent injuries.
In court documents, Dr. Michael Myette of Kaiser said he could say with "95 percent to 99 percent certainty that if the parents had accessed care when she began seizing, she would still be alive."
One of the Melchors' attorneys, Lori Calvert, said the couple grew up without doctors and that Elizabeth Melchor had been taught to revive her mother, who also suffered from seizures, as she had revived Yeinira.
The Melchors faced a number of obstacles, their attorneys said. They were illiterate in their native Spanish, couldn't speak English and were poor.
The prosecutor handling their neglect case agreed and cited those factors when explaining to a judge why she sought approval for a plea agreement resulting in a two-year jail sentence for the Melchors, the lowest under sentencing guidelines.
The judge agreed to the sentencing recommendation. The Melchors had served about a year in jail awaiting trial and, with various credits, were released in July after pleading no contest to the charges. They were deported to Mexico shortly afterward, without any of their children. Their attorneys said the children were put up for adoption by the county.
Source http://www.sacbee.com/2011/12/26/4145705/reasons-unclear-for-fatal-cps.html
#CPS FAILURE
It is obvious that CPS does not know a good home or good parents from bad ones.
-----
By Brad Branan
Giovanni Melchor was just a year old when he drowned in the stagnant water of his family's backyard swimming pool in late 2006.
The family's single-story, purple-trimmed home in south Sacramento seemed well maintained on the outside. But inside, a neighbor said, the house was infested with roaches and city inspectors later cited Giovanni's father for an unsecured pool fence, the lack of a door closing off the garage from the pool, and a host of other health and safety code violations.
Not even three years later, Giovanni's sister, Yeinira, who had been removed from the home and then returned, was also dead, a victim of medical neglect by her parents.
Case files from Sacramento County Child Protective Services, recently obtained by The Bee, show how the 2-year-old girl died. Court records show that her parents, Jose Jaime Melchor, 35, and Elizabeth Melchor, 29, pleaded no contest to child endangerment charges in July and were deported this year.
What the records don't explain is how the agency made the decision to return the child to care that led to her death.
County officials say they cannot discuss the case or the records because of confidentiality laws.
But without documentation, evaluating the agency's actions is difficult, said Ed Howard, senior counsel at the Children's Advocacy Institute in San Diego, who reviewed Yeinira's file at the request of The Bee.
"If we take them at face value – that there is no documentation for reuniting this child with a very troubled family – then this is a fiasco," Howard said. "You can't do this job without documenting your reasons for making such a decision."
Specifically, CPS records for Yeinira do not show whether the agency conducted an assessment about the risk of returning her to the home – using what's called the Structured Decision Making tool – in violation of its own policies.
"In all of its reports, the (CPS) Oversight Committee has recommended comprehensive and consistent use of the tool," said Gina Roberson, co-chair of the committee. "It means social workers are using the best practices in trying to prevent child abuse."
The CPS Oversight Committee, echoing the complaints of experts and child welfare advocates, has repeatedly found the agency's social workers have made questionable decisions and serious errors in high-risk cases such as the Melchor's. That assessment was repeated in other reports this year, including one by the California State Auditor.
CPS released two sets of files on the Yeinira case. The first contained 12 pages and no information about the family's extensive record with CPS. The second, released after The Bee requested it under the California Public Records Act, had 124 pages.
County Health and Human Services Director Ann Edwards said the release of the incomplete file was unintentional. But neither set answers the questions about the fatal decision to return her to her parents.
A troubled history
The year Giovanni died, the Melchors were living in a working-class neighborhood on Center Parkway. They had five children.
Neighbors, attorneys and a social worker who had contact over the years with the Melchors, an immigrant family from Mexico, said the family needed help. They said Elizabeth Melchor seemed incapable of caring for her children and, according to court records, Jose Jaime Melchor physically abused his wife.
Five reports of alleged abuse or neglect involving the family were made to CPS prior to Yeinira's birth in July 2006, court records show.
Some of the reports involved the father, who allegedly had a drinking problem and abused his wife, according to court and CPS files. Other reports involved the mother, accused of hitting the children. Two of the reports were upheld by CPS.
Yeinira had a heart defect and a cleft palate that made feeding her difficult. Less than a month after she was born, CPS received another complaint, noting the mother wasn't learning how to take care of her fragile daughter. The child was still in the hospital and at risk of dehydration if not properly nourished.
Melchor "admits she is depressed and overwhelmed," according to an unidentified reporter quoted in the CPS case file. The mother and the father were refusing the training needed to feed Yeinira, according to the report. The source recommended placing Yeinira in a special foster home for her medical needs.
The complaint was upheld. CPS started monitoring the child, but allowed her to go home with her mother. Yvette Washington, a home visitation worker with the county's Birth and Beyond program, was assigned to counsel the family.
"She seemed withdrawn," Washington said of Elizabeth Melchor in an interview with The Bee.
Washington said she brought a public health nurse to the family's home to explain the risks of having a pool with stagnant water and a small and unsecured fence.
The mother didn't seem to take the matter seriously, Washington said, adding that she stopped providing service to the family in 2006 because Melchor was unreceptive.
Giovanni drowned in October that year. Melchor told police she was taking care of Yeinira, and left her other children unattended in the garage for about an hour, records show. Giovanni apparently wandered from the garage and into the pool.
Police found the missing garage door and the unsecured pool fence. Neither parent was charged. CPS also initially declined to take protective action, determining that an allegation of neglect was unfounded, court records show.
That reluctance befuddled some of the Melchors' neighbors.
Andrea Garcia, who lived next door to the family, said the Melchors were troubled. Her interactions with the family usually came when something went wrong, she said, such as when the children were left outside in diapers in cold weather.
The Garcias watched the other Melchor children while the parents dealt with the emergency of finding Giovanni in the pool.
Andrea Garcia said the children were filthy. She said she entered the Melchor home for clean clothes and saw cockroaches everywhere.
Her father, Jesus Garcia, said he had worried about the safety of the Melchor children under their mother's care."We never understood why CPS let her keep the kids," he said.
Taken away, brought back
Ten months after the drowning, the four Melchor children became dependents of the county as a result of abuse and neglect, court records show.
In Yeinira's case, her parents repeatedly failed to bring her to doctor's appointments, CPS records show. She missed eight appointments in seven months. Doctor's notes indicated a growing concern about her well-being.
In foster care, she had surgery for her ailments and had recovered well. But in May 2008, less than two months after her surgery, Yeinira returned to her parents' home, joining her siblings who had been reunited with them several months earlier.
To place a foster child back in a parent's home, CPS must convince a dependency court judge that the conditions that originally made the home unsafe had been fixed. For Yeinira, CPS needed to ensure the issues at home had been addressed, said Bill Grimm, senior counsel at the National Center for Youth Law in Oakland, who reviewed the child's file at The Bee's request.
"Given all that was going on before, there was a pretty high threshold for them to resume care," Grimm said.
The lack of documentation calls the agency's decisions into question, said Grimm, adding that returning Yeinira home without doing a risk assessment would have been a serious error, if that's what happened.
Without care
After Yeinira returned, she did not see a doctor for about a year because the family didn't have insurance, her father told Sacramento police investigators in 2009.
During that time, Yeinira had a seizure, her mother told police. She said she put rubbing alcohol on a cotton ball and placed it under Yeinira's nose to revive her.
A couple of months later, Yeinira had another seizure. Yeinira "fell back, arched her back, and her feet twisted" as she fell onto concrete, her mother said, according to the investigative report. She again used rubbing alcohol and an onion to revive Yeinira.
The problem returned the next day, as Yeinira "fell forward, and her head hit the wall and her eyes went up," her mother said.
Again, Melchor turned to an onion and rubbing alcohol to revive her daughter. Her father was holding Yeinira in his lap when the mother noticed Yeinira wasn't breathing, she told investigators.
The father brought her to Kaiser Permanente Medical Center, south Sacramento, minutes away from their home. Two days later, April 20, 2009, Yeinira died at Kaiser's Roseville hospital because of a lack of oxygen in the brain, an autopsy found.
The Coroner's Office said physical abuse also may have contributed to her death, noting that she'd had a broken arm and other recent injuries.
In court documents, Dr. Michael Myette of Kaiser said he could say with "95 percent to 99 percent certainty that if the parents had accessed care when she began seizing, she would still be alive."
One of the Melchors' attorneys, Lori Calvert, said the couple grew up without doctors and that Elizabeth Melchor had been taught to revive her mother, who also suffered from seizures, as she had revived Yeinira.
The Melchors faced a number of obstacles, their attorneys said. They were illiterate in their native Spanish, couldn't speak English and were poor.
The prosecutor handling their neglect case agreed and cited those factors when explaining to a judge why she sought approval for a plea agreement resulting in a two-year jail sentence for the Melchors, the lowest under sentencing guidelines.
The judge agreed to the sentencing recommendation. The Melchors had served about a year in jail awaiting trial and, with various credits, were released in July after pleading no contest to the charges. They were deported to Mexico shortly afterward, without any of their children. Their attorneys said the children were put up for adoption by the county.
Source http://www.sacbee.com/2011/12/26/4145705/reasons-unclear-for-fatal-cps.html
Tuesday, November 22, 2011
Sunday Journal: For social worker, biggest lie didn't come from 'hoodlum children'
By Derry Smith
Driving a child to the Florida School for Boys in Marianna was not in the job description when my mother accepted the position of social worker for the Pinellas County Juvenile Justice System in 1959.
Fresh out of college, she felt privileged to join the department. She intended to work toward improving the future for kids who lived with neglectful or abusive parents. What she learned was that Florida's state and county agencies didn't have much compassion for kids.
Children, some as young as six, were arrested for such petty crimes as trespassing and taken away from their homes. Typically, parents weren't punished for neglecting or even abusing their children.
As a juvenile guardian for the court, my mother would hear tales from kids about the horrendous punishment they had to endure at the hands of foster parents. When she took these revelations to her supervisors she was chastised for believing "lies."
The Marianna School for Boys was a threat that was part of the protocol when working with disobedient kids. And her charge, Jackie, had been threatened many times. He knew first-hand about the place, being a seasoned attendee by the time he was 11 years old.
Jackie lived with a mother who showed no interest in him. She didn't keep him fed or clean. The truant officer visited regularly, and the neighbors called the police often about the boy trespassing in their yards and stealing fruit. His mother finally gave up custody, and the state put him in a foster home. Within a month Jackie ran away. The authorities caught up with him. My mother was the social worker who interviewed him.
"The foster mother doesn't feed me," he told her. "I only eat if there's something left after her own kids do."
Again my mother reported the complaint to supervisors. Her report was met with indifference.
"Children lie," she was told as before. "Especially hoodlum children."
Her orders to escort Jackie to Marianna came as a "gift." She understood that the state had an expense account for traveling to the School for Boys and she was expected to use it.
Her supervisor informed her of the nicest hotel in the area and the best places to eat. She made the reservations and, accompanied by my father, left on a Friday. With the blessing of her boss they intended to make a weekend of it. It wasn't until they sped north with Jackie in the back seat that she realized this would be no blissful vacation.
He was small for 11, and his freckled face lacked childish wonder. His haggard eyes seemed too old for tears, and this may be why he didn't cry. He begged to be taken somewhere else. Anywhere else.
"Please don't take me there," he said. "They're mean. They beat you."
My mother looked at the child, his brown bangs almost in his eyes.
"You've survived this place before," she said. "And I bet if you cooperate, the guards won't beat you."
But still he begged.
"It's only an eight-month sentence," she said. "Use it as an opportunity to turn your life around."
She had no advice for what he said next.
"The big kids. They chase the little kids," he said quietly. "And when they catch ya' they blow ya'."
"They blow you?"
My mother assumed he spoke of oral sex. After listening to more description she realized he meant sodomy.
"I seen 'em even kill dogs that way," he concluded.
She felt sick to her stomach.
She contemplated not taking him. He wasn't handcuffed. He ate lunch with my parents in a restaurant outside of Tallahassee, and she waited for him to run away. But he didn't. Instead he tagged along behind her like a wounded animal, begging her not to leave him.
My mother didn't ask any more questions. She didn't say much either. She was young and inexperienced and stuck with a system that didn't care. She listened to his pleas, knowing she could do nothing for him.
When she returned to work on that Monday, it was only to hand in her resignation.
Derry Smith lives in St. Petersburg. She shares her stories on her blog, storiesonthenines.org.
Source http://www.tampabay.com/features/humaninterest/sunday-journal-for-social-worker-biggest-lie-didnt-come-from-hoodlum/1201820
Driving a child to the Florida School for Boys in Marianna was not in the job description when my mother accepted the position of social worker for the Pinellas County Juvenile Justice System in 1959.
Fresh out of college, she felt privileged to join the department. She intended to work toward improving the future for kids who lived with neglectful or abusive parents. What she learned was that Florida's state and county agencies didn't have much compassion for kids.
Children, some as young as six, were arrested for such petty crimes as trespassing and taken away from their homes. Typically, parents weren't punished for neglecting or even abusing their children.
As a juvenile guardian for the court, my mother would hear tales from kids about the horrendous punishment they had to endure at the hands of foster parents. When she took these revelations to her supervisors she was chastised for believing "lies."
The Marianna School for Boys was a threat that was part of the protocol when working with disobedient kids. And her charge, Jackie, had been threatened many times. He knew first-hand about the place, being a seasoned attendee by the time he was 11 years old.
Jackie lived with a mother who showed no interest in him. She didn't keep him fed or clean. The truant officer visited regularly, and the neighbors called the police often about the boy trespassing in their yards and stealing fruit. His mother finally gave up custody, and the state put him in a foster home. Within a month Jackie ran away. The authorities caught up with him. My mother was the social worker who interviewed him.
"The foster mother doesn't feed me," he told her. "I only eat if there's something left after her own kids do."
Again my mother reported the complaint to supervisors. Her report was met with indifference.
"Children lie," she was told as before. "Especially hoodlum children."
Her orders to escort Jackie to Marianna came as a "gift." She understood that the state had an expense account for traveling to the School for Boys and she was expected to use it.
Her supervisor informed her of the nicest hotel in the area and the best places to eat. She made the reservations and, accompanied by my father, left on a Friday. With the blessing of her boss they intended to make a weekend of it. It wasn't until they sped north with Jackie in the back seat that she realized this would be no blissful vacation.
He was small for 11, and his freckled face lacked childish wonder. His haggard eyes seemed too old for tears, and this may be why he didn't cry. He begged to be taken somewhere else. Anywhere else.
"Please don't take me there," he said. "They're mean. They beat you."
My mother looked at the child, his brown bangs almost in his eyes.
"You've survived this place before," she said. "And I bet if you cooperate, the guards won't beat you."
But still he begged.
"It's only an eight-month sentence," she said. "Use it as an opportunity to turn your life around."
She had no advice for what he said next.
"The big kids. They chase the little kids," he said quietly. "And when they catch ya' they blow ya'."
"They blow you?"
My mother assumed he spoke of oral sex. After listening to more description she realized he meant sodomy.
"I seen 'em even kill dogs that way," he concluded.
She felt sick to her stomach.
She contemplated not taking him. He wasn't handcuffed. He ate lunch with my parents in a restaurant outside of Tallahassee, and she waited for him to run away. But he didn't. Instead he tagged along behind her like a wounded animal, begging her not to leave him.
My mother didn't ask any more questions. She didn't say much either. She was young and inexperienced and stuck with a system that didn't care. She listened to his pleas, knowing she could do nothing for him.
When she returned to work on that Monday, it was only to hand in her resignation.
Derry Smith lives in St. Petersburg. She shares her stories on her blog, storiesonthenines.org.
Source http://www.tampabay.com/features/humaninterest/sunday-journal-for-social-worker-biggest-lie-didnt-come-from-hoodlum/1201820
Saturday, October 29, 2011
Kentucky - Social worker says she falsified records
By Valarie Honeycutt Spears
A former Kentucky state social worker indicted by an Anderson County grand jury in August has told investigators that she falsified records in abuse and neglect cases, according to a court document recently filed.
Margaret "Geri" Murphy, who resigned in January, is charged with nine counts of tampering with public records in her role investigating allegations of child abuse and neglect for the Cabinet for Health and Family Services.
Details of nine cases, several involving child sexual abuse, were outlined in a document titled the Commonwealth's Bill of Particulars, filed in Anderson Circuit Court Oct. 18 by Attorney General Jack Conway's office.
The court document says that in one case, which ran from December 2007 through April 2008, Murphy investigated an allegation of sexual abuse of an infant by the infant's mother's boyfriend. In deeming the allegation "unsubstantiated," Murphy allegedly documented that a state police trooper told her that a hair found in the baby's pubic area was tested and found to be dog hair rather than a human hair.
But the officer told an investigator that he never told Murphy that the hair was dog hair, and that it had not been tested.
Two agencies, including police, filed complaints about Murphy's actions in the case, the court document said.
The mother later reunited with her boyfriend, and the case was reopened in October 2010 on the basis of new allegations of sexual abuse by the boyfriend, the document said.
"During that time, Murphy attempted to take part of an interview and examination of the child at an agency in Lexington, and the KSP trooper told Murphy to leave and has indicated he believes Murphy's actions contributed to the child being abused again," the court document said.
Murphy's attorney William Patrick said Friday that he could not comment on the case. But Patrick said a pre-trial conference was set for November. Murphy was issued a criminal summons in August and has pleaded not guilty.
In abuse and neglect cases, social workers make findings about the validity of allegations and document their work in a report titled a "continuous quality assessment."
In a case involving the alleged sexual abuse of an 11-year-old child by her father, Murphy admitted to falsifying the continuous quality assessment, the court document said. In that case, Murphy is accused of documenting that the suspect had been interviewed by state police. Murphy also is accused of documenting that the perpetrator denied the abuse and passed a polygraph.
However, police told an investigator that the suspect had never been interviewed or taken a polygraph.
Murphy "stated that this particular case 'bothered her' because she had falsified information. She admitted that she believed the child had been sexually abused, but still unsubstantiated and closed her case," the court document said.
In 2010, Murphy investigated a report of the sexual abuse of a 7-year-old child and deemed it "unsubstantiated." She had said that the child made inconsistent statements and that she had interviewed the suspect with police, and that the suspect denied the allegations and passed a polygraph test, according to a court document.
But police said they never interviewed the suspect and the suspect never took a polygraph, according to the court document.
The cabinet will not respond specifically to the cases in the bill of particulars, spokeswoman Jill Midkiff said.
"However, upon discovering that there were problems with the way in which Ms. Murphy conducted her investigations in these and other cases not involving falsifications, the Commissioner of the (Department of Community Based Services) had Ms. Murphy's cases reviewed to ensure that appropriate action was taken in accordance with the policies and procedures of the agency," Midkiff said.
Officials in Conway's office would not comment Friday. But in August, Conway said that his office began investigating after receiving a complaint from a resident whose family was in a court case to which Murphy had been assigned.
Tampering with public records is a Class D felony punishable by one to five years in prison and a fine of up to $10,000 on each count.
Here's a link to the court document:
http://media.kentucky.com/smedia/2011/10/28/23/45/155LTT.So.79.pdf
Source http://www.kentucky.com/2011/10/29/1938928/court-document-describes-former.html
A former Kentucky state social worker indicted by an Anderson County grand jury in August has told investigators that she falsified records in abuse and neglect cases, according to a court document recently filed.
Margaret "Geri" Murphy, who resigned in January, is charged with nine counts of tampering with public records in her role investigating allegations of child abuse and neglect for the Cabinet for Health and Family Services.
Details of nine cases, several involving child sexual abuse, were outlined in a document titled the Commonwealth's Bill of Particulars, filed in Anderson Circuit Court Oct. 18 by Attorney General Jack Conway's office.
The court document says that in one case, which ran from December 2007 through April 2008, Murphy investigated an allegation of sexual abuse of an infant by the infant's mother's boyfriend. In deeming the allegation "unsubstantiated," Murphy allegedly documented that a state police trooper told her that a hair found in the baby's pubic area was tested and found to be dog hair rather than a human hair.
But the officer told an investigator that he never told Murphy that the hair was dog hair, and that it had not been tested.
Two agencies, including police, filed complaints about Murphy's actions in the case, the court document said.
The mother later reunited with her boyfriend, and the case was reopened in October 2010 on the basis of new allegations of sexual abuse by the boyfriend, the document said.
"During that time, Murphy attempted to take part of an interview and examination of the child at an agency in Lexington, and the KSP trooper told Murphy to leave and has indicated he believes Murphy's actions contributed to the child being abused again," the court document said.
Murphy's attorney William Patrick said Friday that he could not comment on the case. But Patrick said a pre-trial conference was set for November. Murphy was issued a criminal summons in August and has pleaded not guilty.
In abuse and neglect cases, social workers make findings about the validity of allegations and document their work in a report titled a "continuous quality assessment."
In a case involving the alleged sexual abuse of an 11-year-old child by her father, Murphy admitted to falsifying the continuous quality assessment, the court document said. In that case, Murphy is accused of documenting that the suspect had been interviewed by state police. Murphy also is accused of documenting that the perpetrator denied the abuse and passed a polygraph.
However, police told an investigator that the suspect had never been interviewed or taken a polygraph.
Murphy "stated that this particular case 'bothered her' because she had falsified information. She admitted that she believed the child had been sexually abused, but still unsubstantiated and closed her case," the court document said.
In 2010, Murphy investigated a report of the sexual abuse of a 7-year-old child and deemed it "unsubstantiated." She had said that the child made inconsistent statements and that she had interviewed the suspect with police, and that the suspect denied the allegations and passed a polygraph test, according to a court document.
But police said they never interviewed the suspect and the suspect never took a polygraph, according to the court document.
The cabinet will not respond specifically to the cases in the bill of particulars, spokeswoman Jill Midkiff said.
"However, upon discovering that there were problems with the way in which Ms. Murphy conducted her investigations in these and other cases not involving falsifications, the Commissioner of the (Department of Community Based Services) had Ms. Murphy's cases reviewed to ensure that appropriate action was taken in accordance with the policies and procedures of the agency," Midkiff said.
Officials in Conway's office would not comment Friday. But in August, Conway said that his office began investigating after receiving a complaint from a resident whose family was in a court case to which Murphy had been assigned.
Tampering with public records is a Class D felony punishable by one to five years in prison and a fine of up to $10,000 on each count.
Here's a link to the court document:
http://media.kentucky.com/smedia/2011/10/28/23/45/155LTT.So.79.pdf
Source http://www.kentucky.com/2011/10/29/1938928/court-document-describes-former.html
Thursday, October 6, 2011
D.C. child welfare agency often acts too quickly to remove children, study says
By Teresa Tomassoni, Published: October 5
The number of children removed from their homes by child abuse investigators in the District has fallen in the past year, but a recent review of some cases concluded that children are still regularly separated from their parents without adequate justification.
The study, conducted by a federally mandated panel of volunteer monitors, examined 27 cases involving 41 children over several years. In many of the instances examined by the panel, children who were placed briefly in foster care should have stayed with their families, the report concluded.
The Citizens Review Panel said the District’s Child and Family Services Agency has not done enough to keep families together and urged the agency to do better.
“CFSA’s child removal decisions must balance the need to protect children from serious abuse or neglect with the need to protect children from the significant emotional trauma that comes from the government separating them from their families,” the report, released last week, stated.
The review, released last week, is the latest examination of the challenges that CFSA, like other child welfare agencies, faces in balancing the inclination to remove children when neglect or abuse is suspected and the imperative to leave them in the home unless they are in imminent danger.
In more than half of the reviews conducted, panel members found that the case record did not justify removal.
In one case cited in the report, a social worker removed a child upon discovering suspicious marks on the child’s body, most likely from being whipped with a cord. The social worker placed him and his three siblings, who did not show signs of abuse, into foster care without obtaining a family court order.
After the removal, the social worker met with the mother to work out a strategy, known as a safety plan, for addressing the problems in the home. Less than a week later, the children were back at home. The report said that if this conversation had taken place before the children were taken, foster care would not have been necessary.
CFSA’s statistics show that even as the number of removals are on pace to be their lowest in years, the percentage of children who are being returned home within four months is at 35 percent, roughly the same rate as last year and a higher rate than in any of the previous three years.
Debra Porchia-Usher, the child welfare agency’s interim director, said how quickly children are removed from their families and how quickly they are returned is an issue the CFSA continues to monitor. “We all agree fewer removals are better,” she said. But she does not agree that the problem is as prevalent as the report suggests.
In an effort to make better decisions about removals, the agency recently launched a pilot program of a strategy known as differential response, which acknowledges that not every abuse or neglect report is an indicator of imminent danger.
Earlier this year, the agency also completed a policy manual on conducting investigations. All social workers, supervisors and program managers have been trained using this new resource, Porchia-Usher said.
Source http://www.washingtonpost.com/local/dc-child-welfare-agency-often-acts-too-quickly-to-remove-children-study-says/2011/09/29/gIQAIGweOL_story.html
The number of children removed from their homes by child abuse investigators in the District has fallen in the past year, but a recent review of some cases concluded that children are still regularly separated from their parents without adequate justification.
The study, conducted by a federally mandated panel of volunteer monitors, examined 27 cases involving 41 children over several years. In many of the instances examined by the panel, children who were placed briefly in foster care should have stayed with their families, the report concluded.
The Citizens Review Panel said the District’s Child and Family Services Agency has not done enough to keep families together and urged the agency to do better.
“CFSA’s child removal decisions must balance the need to protect children from serious abuse or neglect with the need to protect children from the significant emotional trauma that comes from the government separating them from their families,” the report, released last week, stated.
The review, released last week, is the latest examination of the challenges that CFSA, like other child welfare agencies, faces in balancing the inclination to remove children when neglect or abuse is suspected and the imperative to leave them in the home unless they are in imminent danger.
In more than half of the reviews conducted, panel members found that the case record did not justify removal.
In one case cited in the report, a social worker removed a child upon discovering suspicious marks on the child’s body, most likely from being whipped with a cord. The social worker placed him and his three siblings, who did not show signs of abuse, into foster care without obtaining a family court order.
After the removal, the social worker met with the mother to work out a strategy, known as a safety plan, for addressing the problems in the home. Less than a week later, the children were back at home. The report said that if this conversation had taken place before the children were taken, foster care would not have been necessary.
CFSA’s statistics show that even as the number of removals are on pace to be their lowest in years, the percentage of children who are being returned home within four months is at 35 percent, roughly the same rate as last year and a higher rate than in any of the previous three years.
Debra Porchia-Usher, the child welfare agency’s interim director, said how quickly children are removed from their families and how quickly they are returned is an issue the CFSA continues to monitor. “We all agree fewer removals are better,” she said. But she does not agree that the problem is as prevalent as the report suggests.
In an effort to make better decisions about removals, the agency recently launched a pilot program of a strategy known as differential response, which acknowledges that not every abuse or neglect report is an indicator of imminent danger.
Earlier this year, the agency also completed a policy manual on conducting investigations. All social workers, supervisors and program managers have been trained using this new resource, Porchia-Usher said.
Source http://www.washingtonpost.com/local/dc-child-welfare-agency-often-acts-too-quickly-to-remove-children-study-says/2011/09/29/gIQAIGweOL_story.html
Fractured Leg, Fractured Family: A Misdiagnosis Leads to Allegations of Child Abuse
Written by: Ryan Schill on Oct 3, 2011
When Anthony Richards, Jr., was born on an early Sunday morning in June, the only complications involved his family getting the cameras in focus to capture his arrival into the world. He was a healthy baby and his parents, Queenyona Boyd and Anthony Richards, Sr., couldn’t have been happier. Yet, only four days later Anthony was put in foster care after doctors discovered an unexplained broken femur, his distraught parents the suspects of child abuse.
A Protective Father’s Discovery
After the hospital discharged Boyd and her baby boy, Richards took the two straight home later that Sunday. The following day, Boyd slipped out to pick up her prescriptions at a pharmacy only a short drive away. She wasn’t gone long when she received a phone call from her husband. Something was wrong with Anthony.
Although Boyd had a daughter already, Richards was a first-time dad. And like many first-time dads he was protective to a fault and he worried, maybe a little too much. So when he found a lump on Anthony’s leg while changing a diaper, he grew concerned.
“Did you notice his leg has some swelling?” he asked Boyd.
“Is it where he got the hepatitis B vaccine?” she asked. Richards said it was. Boyd wasn’t worried. Swelling around inoculations is normal, she thought. But she came home just in case.
Her husband wasn’t convinced the swelling was from the vaccine so he called his sister, a nurse. She told them to put warm compresses on the leg and massage the swollen area. Baby Anthony never cried while his parents followed the nurse’s advice. He even fell asleep.
Anthony was due for his three-day check-up with the pediatrician on Wednesday, but his parents moved it up to Tuesday as a precaution. The swelling was still present despite their efforts.
At the check-up, the pediatrician gave Anthony a clean bill of health. The only problem he saw was the swelling on the baby’s leg. He referred them to the emergency room at Children’s Health Care of Atlanta’s (CHOA) Egleston hospital in metro Atlanta. (A spokesperson for CHOA declined to comment for this story citing patient privacy concerns.)
In the ER, the doctor looked Anthony over and said that he thought the swelling could be a result of the hepatitis B injection missing the muscle. Swelling like Anthony had is not uncommon if the injection is mistakenly delivered subcutaneously. The doctor ordered X-rays and an ultrasound to be sure. Through it all, Anthony didn’t cry except when they were changing his diaper and Boyd suspected this was because Anthony had been circumcised Sunday.
First, they X-rayed Anthony’s leg. While the images were developing they took Anthony for the ultrasound, but just before they were to begin, the X-ray technician rushed into the room.
“Stop the ultrasound,” she said. “There’s a break.”
That’s when everything changed for Anthony’s parents.
The Science of Misdiagnosis of Child Abuse
In a recent report, the federal Administration on Children, Youth and Families estimated that 702,000 children were victims of maltreatment in 2009. That’s the equivalent of nine abused children for every 1000 in the population. But the report also says that only one in five investigations of abuse are substantiated. The rest, 80 percent, are cases in which the children are “found to be non-victims of maltreatment.”
What is not counted in the study is the number of investigations leading to deprivation (the state taking the child from the parents and placing them in foster care) before the parents are ultimately cleared of abuse. No one knows how many incidences of misdiagnosis occur each year. But one Child Welfare Law Specialist from Atlanta, Diana Rugh Johnson (who would eventually represent Boyd and Anthony) says she has brought six cases of misdiagnosis to trial in the last two years.
“Once a child abuse expert says there has been child abuse, that’s not the end of the investigation,” she said. “It’s the beginning.”
Experts must determine whether an injury is the result of trauma or was accidental or natural. But once a child abuse expert makes a determination of abuse, says Dr. Julie Mack, professor of radiology at Hershey Medical Center in Pennsylvania, it becomes very difficult to change the tenor of the conversation.
“The problem,” Mack wrote in an email, “is with the assumption of trauma — it becomes the default diagnosis, the one that is assumed as most likely. This is a dangerous assumption for the patient (who may have an underlying medical disease) and for the parents (who will appropriately deny trauma if none existent).”
In her cases, Johnson has found the same thing. She relies on out-of-state medical experts because she often cannot find a doctor locally who would publicly disagree with CHOA’s child abuse expert.
“Once [the child abuse expert] says it’s child abuse, everyone else shuts up,” she wrote.
But in infants especially, Mack wrote, “it is not appropriate to assume trauma is the most likely diagnosis, particularly in the absence of outward evidence of trauma.” Although, she adds, no physician she knows believes child abuse is not a reality. “Children are abused by their parents,” she wrote. Because of that, it is important to work hard to find the correct diagnosis.
“Fractures in the absence of history of significant trauma,” she wrote, “are also a characteristic feature of fractures caused by bone diseases such as osteogenesis imperfecta, bone disease of prematurity, and bone disease associated with vitamin deficiencies (rickets).”
Often cited as a contributing factor is rickets, a disorder that causes weak or soft bones. Rickets is often caused by a deficiency of vitamin D and in many cases a vitamin D deficiency in the mother will lead to the same deficiency in their newborn. But vitamin D deficiency may be hard to diagnose.
In a commentary in the journal Pediatrics, Dr. Colin Patterson of the University of Dundee, Scotland, writes that one difficulty in the diagnosis of vitamin D deficiency, “is that the radiologic signs may be absent or unimpressive in cases of children with biochemically severe deficiency, which is particularly true of infants younger than one year.”
The conundrum, Mack says, occurs in an infant with fractures. “If a child presents with multiple fractures, but no clinical history or signs of trauma, ‘hidden’ (abusive) forceful trauma is often assumed,” she said. “The logic used is ‘abuse is present because the parents have failed to explain the fractures.’”
Queenyana Boyd struggled with a vitamin D deficiency throughout her pregnancy with Anthony.
“Are you here to take my child away?”
Boyd and Richards were in shock. How could Anthony’s leg be broken? You must have the wrong family, they told the X-ray tech. They had brought the newborn to the hospital because of complications from a vaccination. But the tech confirmed their details. It was true; Anthony had a broken leg.
When Boyd and her husband returned to their room in the ER, the doctor and a social worker met them. The doctor spoke first.
“I’m sorry,” he said. “I should have asked you if you could have dropped Anthony or if he could have fallen.”
Absolutely not, Boyd and Richards told him. The social worker spoke up wanting to know what happened, so Boyd told them both the story, from the moment her husband discovered the swelling to when they arrived at the ER.
Richards’ eyes were tearing up. “Are you here to take my child away?” he asked the social worker. Boyd refused to believe that. They’d done nothing wrong.
“Well,” the social worker said, “we’re going to have to admit him to the hospital and do further tests.”
No one took their son that day. In fact, Boyd and Richards were allowed to stay in the hospital with Anthony, often alone in their room with the door closed, while Anthony was breastfed.
A caseworker from Georgia’s Child Protective Services (CPS) arrived later that day and began interviewing Anthony’s family. He spoke with Boyd and Richards, Boyd’s 7-year-old daughter Anya, Boyd’s sister and Richards’ mother, who had flown in after the birth. He also interviewed the nurses who had treated Anthony in the hospital. No one had a negative thing to say. The caseworker even told Boyd that her Anya was very happy and showed no signs of abuse. (Repeated calls to CPS were not returned.)
Boyd then asked the caseworker to contact Anthony’s pediatrician. She was told he would get to that later. He then explained to Boyd and Richards they needed to meet with a representative from the hospital’s child protection division. In the meantime, doctors continued to run tests on baby Anthony.
The next morning, the couple arrived for the interview with the child protection division. Once again they told the story of finding the swollen leg and how they had wound up in an interview with protective services. The representative said that she saw no indications of abuse; the break looked like “one of those things that happens.” Boyd agreed. She was also struggling to pinpoint when or how the leg could have broken.
Following the interview, a doctor from the child protection division spent a few minutes examining Anthony. He told the parents that Anthony appeared to be completely healthy, save for the broken leg.
Boyd and Richards were beginning to feel a little relief. They felt that if the hospital or CPS truly suspected abuse they would have contacted the police by now. At this point, it had been more than a day since the break was discovered. Boyd and Richards had been left alone with Anthony on multiple occasions. No one involved in the case had indicated seeing any signs of abuse. But as the day wore on, the couple began to worry. Although it was true no one had said their case looked like abuse, no one had told them they were cleared either. The pair repeatedly called the CPS caseworker asking for information but they never received any.
That evening, the CPS caseworker walked into their hospital room with a security officer. “I’m sorry,” he said, “but I have to take your son into custody.”
With those words Boyd felt the air go out of her. “Why?” she managed to ask. “Why are you taking our son?”
The caseworker explained that the report from the child protection division doctor who had examined Anthony concluded the break was non-accidental and to investigate possible child abuse.
“There’s nothing we can do,” he told her.
Boyd pleaded with the caseworker, asking if her sister could take Anthony rather than placing him in foster care. She was told that was impossible. He had no choice but to put Anthony in foster care. As CPS took her son away, Boyd felt like Anthony was being kidnapped. She had no idea where her son was — CPS wouldn’t tell her — and she had no way of continuing to breastfeed him. Boyd wouldn’t learn where her child was for five more days.
How Big a Problem?
Misdiagnosis of child abuse occurs, especially in infants. It is the word of the parents against the medical opinion of the doctor who examines the child. But is it a growing problem?
“I think it has been a problem since the 1990s or maybe a little earlier -– we just didn’t know it,” Seattle attorney Heather Kirkwood said. “In the past decade, it has begun to spiral, I think . . . one of those pendulums that swings too far and is due for correction. [The same thing] happened in antitrust, too, just not with such disastrous consequences. Here, I suspect that we are looking at hundreds to thousands of destroyed families and falsely imprisoned parents and caretakers.”
Kirkwood has handled a number of high profile cases of misdiagnosed child abuse. Her cases have been written about in The New York Times and The Chicago Tribune. Others were featured on the PBS documentary series, Frontline, as well as on NPR and ProPublica.
According to Kirkwood, many misdiagnoses originate “simply because we don’t know (or in some cases have forgotten) how to diagnose vitamin D deficiency (rickets), vitamin C deficiency (scurvy), etc.”
“Often the key to the diagnosis,” she said, “is that the child has no bruises, no pain and the ‘fractures’ are self-curing — with good nutrition, the bones will develop normally without any other intervention. Not, in short, your typical fracture picture.”
The first step for Kirkwood when investigating is to do a retrospective diagnosis.
“In that stage,” she said, “I work with experts and read the literature to see how the medical findings fit together, both within the disciplines and with the clinical history. Sometimes it takes quite a few tries before we begin to put the entire picture together.”
Over time, in what is an evolving process, she has learned what to look for.
“When I first began to review cases,” she said, “I assumed that one fracture might be accidental but that multiple fractures without a major accident must be abusive.”
As she examined more cases, however, she began to conclude “that in cases in which the baby has no bruises or signs of abuse and otherwise seems well cared for, the opposite is true: the more fractures there are, the more likely it is that we are looking at some type of metabolic bone disease.”
And rickets often leads to fractures. Patterson, in his commentary in Pediatrics, writes, “In a recent retrospective study, fractures were found in seven of 40 children younger than 24 months with overt radiologic evidence of rickets.”
A Mother’s anguish
It was Wednesday evening. Boyd’s son had been placed in foster care earlier in the day. She was distraught and couldn’t understand why CPS wouldn’t let Anthony go with a family member. She called her aunt who had been in the delivery room when Anthony was born.
She was feeling hysterical and needed to talk to someone she trusted who would calm her down. While on the phone, her aunt began flipping through the pictures she’d taken at the delivery. And that’s when — in the middle of the conversation — Boyd’s aunt made a startling discovery that would further alter the course of events.
“I’m going to send you a picture,” her aunt said. “Did you see your son’s leg?”
Boyd’s aunt immediately emailed the camera phone picture to her. Boyd looked at the photograph, taken moments after delivery before the umbilical cord was cut; Anthony’s leg was already swollen in the photo. Boyd searched her own pictures for a higher resolution picture and found another that showed Anthony’s leg was swollen at birth. She discovered a picture on her camera taken at nearly the same moment as her aunt’s picture. It two appeared to show swelling on Anthony’s leg.
If the leg was broken before Boyd had even held her baby — and the swollen leg in the photos would seem to indicate that — CPS had no case. This was all the evidence she needed, Boyd thought. She emailed the photos to CPS the same night and asked that they be shown to the doctor at the child protective division at CHOA hospital. She never heard back.
Outraged at CPS for not communicating with her and impatient for the first hearing Monday (delayed until after the weekend because of a state furlough day on Friday), Boyd enlisted the help of Johnson. When shown the photos from the delivery, Johnson was astonished.
“The leg looked completely messed up,” she said later.
A mandatory “72-hour” hearing was held Monday to determine if further foster care was necessary for Anthony. The judge granted Boyd and Richards’ daily visitation rights with their son. They could spend three hours a day with him, but they weren’t allowed to bring him home yet. The judge scheduled an ad judicatory hearing for nearly three weeks later.
Adjudication is similar to a trial, but the judge makes the final ruling without a jury’s involvement. In this case, the judge would decide if the allegations of child abuse were true. The hearing lasted five hours. The prosecutor argued that Anthony must have been abused, as there was no other explanation for the broken femur. Both the CHOA hospital child protective division doctor and the obstetrician from Anthony’s delivery testified that the kind of break that Anthony had could not have happened at delivery. They were too rare.
Johnson brought in Dr. Julie Mack, a medical expert from Lancaster, Pa., who countered that claim. Mack had research that showed numerous similar cases. In nearly every one, the break wasn’t diagnosed until days later, even if the baby never left the hospital. She also compared the photos from the delivery with Anthony’s X-rays, showing that the swollen area in the picture was where the break was in the X-ray.
The judge ruled for Boyd and Richards. Anthony could finally come home with his parents.
While she is overjoyed to have her son back, the experience has left Boyd scared and upset. She worries every time she has to take Anthony to the pediatrician. She’d done nothing wrong when she took Anthony in with the swollen leg. In fact, she did everything right. But CPS took her child anyway. Boyd felt as if she were guilty until proven innocent. Until CPS said otherwise, she was an abusive parent.
Anthony was later diagnosed with a vitamin D deficiency, likely inherited from his mother. However, he was never tested during the abuse investigation and has not, to date, been diagnosed with rickets.
Source http://jjie.org/fractured-leg-fractured-family-misdiagnosis-leads-allegations-of-abuse/43001/2
When Anthony Richards, Jr., was born on an early Sunday morning in June, the only complications involved his family getting the cameras in focus to capture his arrival into the world. He was a healthy baby and his parents, Queenyona Boyd and Anthony Richards, Sr., couldn’t have been happier. Yet, only four days later Anthony was put in foster care after doctors discovered an unexplained broken femur, his distraught parents the suspects of child abuse.
A Protective Father’s Discovery
After the hospital discharged Boyd and her baby boy, Richards took the two straight home later that Sunday. The following day, Boyd slipped out to pick up her prescriptions at a pharmacy only a short drive away. She wasn’t gone long when she received a phone call from her husband. Something was wrong with Anthony.
Although Boyd had a daughter already, Richards was a first-time dad. And like many first-time dads he was protective to a fault and he worried, maybe a little too much. So when he found a lump on Anthony’s leg while changing a diaper, he grew concerned.
“Did you notice his leg has some swelling?” he asked Boyd.
“Is it where he got the hepatitis B vaccine?” she asked. Richards said it was. Boyd wasn’t worried. Swelling around inoculations is normal, she thought. But she came home just in case.
Her husband wasn’t convinced the swelling was from the vaccine so he called his sister, a nurse. She told them to put warm compresses on the leg and massage the swollen area. Baby Anthony never cried while his parents followed the nurse’s advice. He even fell asleep.
Anthony was due for his three-day check-up with the pediatrician on Wednesday, but his parents moved it up to Tuesday as a precaution. The swelling was still present despite their efforts.
At the check-up, the pediatrician gave Anthony a clean bill of health. The only problem he saw was the swelling on the baby’s leg. He referred them to the emergency room at Children’s Health Care of Atlanta’s (CHOA) Egleston hospital in metro Atlanta. (A spokesperson for CHOA declined to comment for this story citing patient privacy concerns.)
In the ER, the doctor looked Anthony over and said that he thought the swelling could be a result of the hepatitis B injection missing the muscle. Swelling like Anthony had is not uncommon if the injection is mistakenly delivered subcutaneously. The doctor ordered X-rays and an ultrasound to be sure. Through it all, Anthony didn’t cry except when they were changing his diaper and Boyd suspected this was because Anthony had been circumcised Sunday.
First, they X-rayed Anthony’s leg. While the images were developing they took Anthony for the ultrasound, but just before they were to begin, the X-ray technician rushed into the room.
“Stop the ultrasound,” she said. “There’s a break.”
That’s when everything changed for Anthony’s parents.
The Science of Misdiagnosis of Child Abuse
In a recent report, the federal Administration on Children, Youth and Families estimated that 702,000 children were victims of maltreatment in 2009. That’s the equivalent of nine abused children for every 1000 in the population. But the report also says that only one in five investigations of abuse are substantiated. The rest, 80 percent, are cases in which the children are “found to be non-victims of maltreatment.”
What is not counted in the study is the number of investigations leading to deprivation (the state taking the child from the parents and placing them in foster care) before the parents are ultimately cleared of abuse. No one knows how many incidences of misdiagnosis occur each year. But one Child Welfare Law Specialist from Atlanta, Diana Rugh Johnson (who would eventually represent Boyd and Anthony) says she has brought six cases of misdiagnosis to trial in the last two years.
“Once a child abuse expert says there has been child abuse, that’s not the end of the investigation,” she said. “It’s the beginning.”
Experts must determine whether an injury is the result of trauma or was accidental or natural. But once a child abuse expert makes a determination of abuse, says Dr. Julie Mack, professor of radiology at Hershey Medical Center in Pennsylvania, it becomes very difficult to change the tenor of the conversation.
“The problem,” Mack wrote in an email, “is with the assumption of trauma — it becomes the default diagnosis, the one that is assumed as most likely. This is a dangerous assumption for the patient (who may have an underlying medical disease) and for the parents (who will appropriately deny trauma if none existent).”
In her cases, Johnson has found the same thing. She relies on out-of-state medical experts because she often cannot find a doctor locally who would publicly disagree with CHOA’s child abuse expert.
“Once [the child abuse expert] says it’s child abuse, everyone else shuts up,” she wrote.
But in infants especially, Mack wrote, “it is not appropriate to assume trauma is the most likely diagnosis, particularly in the absence of outward evidence of trauma.” Although, she adds, no physician she knows believes child abuse is not a reality. “Children are abused by their parents,” she wrote. Because of that, it is important to work hard to find the correct diagnosis.
“Fractures in the absence of history of significant trauma,” she wrote, “are also a characteristic feature of fractures caused by bone diseases such as osteogenesis imperfecta, bone disease of prematurity, and bone disease associated with vitamin deficiencies (rickets).”
Often cited as a contributing factor is rickets, a disorder that causes weak or soft bones. Rickets is often caused by a deficiency of vitamin D and in many cases a vitamin D deficiency in the mother will lead to the same deficiency in their newborn. But vitamin D deficiency may be hard to diagnose.
In a commentary in the journal Pediatrics, Dr. Colin Patterson of the University of Dundee, Scotland, writes that one difficulty in the diagnosis of vitamin D deficiency, “is that the radiologic signs may be absent or unimpressive in cases of children with biochemically severe deficiency, which is particularly true of infants younger than one year.”
The conundrum, Mack says, occurs in an infant with fractures. “If a child presents with multiple fractures, but no clinical history or signs of trauma, ‘hidden’ (abusive) forceful trauma is often assumed,” she said. “The logic used is ‘abuse is present because the parents have failed to explain the fractures.’”
Queenyana Boyd struggled with a vitamin D deficiency throughout her pregnancy with Anthony.
“Are you here to take my child away?”
Boyd and Richards were in shock. How could Anthony’s leg be broken? You must have the wrong family, they told the X-ray tech. They had brought the newborn to the hospital because of complications from a vaccination. But the tech confirmed their details. It was true; Anthony had a broken leg.
When Boyd and her husband returned to their room in the ER, the doctor and a social worker met them. The doctor spoke first.
“I’m sorry,” he said. “I should have asked you if you could have dropped Anthony or if he could have fallen.”
Absolutely not, Boyd and Richards told him. The social worker spoke up wanting to know what happened, so Boyd told them both the story, from the moment her husband discovered the swelling to when they arrived at the ER.
Richards’ eyes were tearing up. “Are you here to take my child away?” he asked the social worker. Boyd refused to believe that. They’d done nothing wrong.
“Well,” the social worker said, “we’re going to have to admit him to the hospital and do further tests.”
No one took their son that day. In fact, Boyd and Richards were allowed to stay in the hospital with Anthony, often alone in their room with the door closed, while Anthony was breastfed.
A caseworker from Georgia’s Child Protective Services (CPS) arrived later that day and began interviewing Anthony’s family. He spoke with Boyd and Richards, Boyd’s 7-year-old daughter Anya, Boyd’s sister and Richards’ mother, who had flown in after the birth. He also interviewed the nurses who had treated Anthony in the hospital. No one had a negative thing to say. The caseworker even told Boyd that her Anya was very happy and showed no signs of abuse. (Repeated calls to CPS were not returned.)
Boyd then asked the caseworker to contact Anthony’s pediatrician. She was told he would get to that later. He then explained to Boyd and Richards they needed to meet with a representative from the hospital’s child protection division. In the meantime, doctors continued to run tests on baby Anthony.
The next morning, the couple arrived for the interview with the child protection division. Once again they told the story of finding the swollen leg and how they had wound up in an interview with protective services. The representative said that she saw no indications of abuse; the break looked like “one of those things that happens.” Boyd agreed. She was also struggling to pinpoint when or how the leg could have broken.
Following the interview, a doctor from the child protection division spent a few minutes examining Anthony. He told the parents that Anthony appeared to be completely healthy, save for the broken leg.
Boyd and Richards were beginning to feel a little relief. They felt that if the hospital or CPS truly suspected abuse they would have contacted the police by now. At this point, it had been more than a day since the break was discovered. Boyd and Richards had been left alone with Anthony on multiple occasions. No one involved in the case had indicated seeing any signs of abuse. But as the day wore on, the couple began to worry. Although it was true no one had said their case looked like abuse, no one had told them they were cleared either. The pair repeatedly called the CPS caseworker asking for information but they never received any.
That evening, the CPS caseworker walked into their hospital room with a security officer. “I’m sorry,” he said, “but I have to take your son into custody.”
With those words Boyd felt the air go out of her. “Why?” she managed to ask. “Why are you taking our son?”
The caseworker explained that the report from the child protection division doctor who had examined Anthony concluded the break was non-accidental and to investigate possible child abuse.
“There’s nothing we can do,” he told her.
Boyd pleaded with the caseworker, asking if her sister could take Anthony rather than placing him in foster care. She was told that was impossible. He had no choice but to put Anthony in foster care. As CPS took her son away, Boyd felt like Anthony was being kidnapped. She had no idea where her son was — CPS wouldn’t tell her — and she had no way of continuing to breastfeed him. Boyd wouldn’t learn where her child was for five more days.
How Big a Problem?
Misdiagnosis of child abuse occurs, especially in infants. It is the word of the parents against the medical opinion of the doctor who examines the child. But is it a growing problem?
“I think it has been a problem since the 1990s or maybe a little earlier -– we just didn’t know it,” Seattle attorney Heather Kirkwood said. “In the past decade, it has begun to spiral, I think . . . one of those pendulums that swings too far and is due for correction. [The same thing] happened in antitrust, too, just not with such disastrous consequences. Here, I suspect that we are looking at hundreds to thousands of destroyed families and falsely imprisoned parents and caretakers.”
Kirkwood has handled a number of high profile cases of misdiagnosed child abuse. Her cases have been written about in The New York Times and The Chicago Tribune. Others were featured on the PBS documentary series, Frontline, as well as on NPR and ProPublica.
According to Kirkwood, many misdiagnoses originate “simply because we don’t know (or in some cases have forgotten) how to diagnose vitamin D deficiency (rickets), vitamin C deficiency (scurvy), etc.”
“Often the key to the diagnosis,” she said, “is that the child has no bruises, no pain and the ‘fractures’ are self-curing — with good nutrition, the bones will develop normally without any other intervention. Not, in short, your typical fracture picture.”
The first step for Kirkwood when investigating is to do a retrospective diagnosis.
“In that stage,” she said, “I work with experts and read the literature to see how the medical findings fit together, both within the disciplines and with the clinical history. Sometimes it takes quite a few tries before we begin to put the entire picture together.”
Over time, in what is an evolving process, she has learned what to look for.
“When I first began to review cases,” she said, “I assumed that one fracture might be accidental but that multiple fractures without a major accident must be abusive.”
As she examined more cases, however, she began to conclude “that in cases in which the baby has no bruises or signs of abuse and otherwise seems well cared for, the opposite is true: the more fractures there are, the more likely it is that we are looking at some type of metabolic bone disease.”
And rickets often leads to fractures. Patterson, in his commentary in Pediatrics, writes, “In a recent retrospective study, fractures were found in seven of 40 children younger than 24 months with overt radiologic evidence of rickets.”
A Mother’s anguish
It was Wednesday evening. Boyd’s son had been placed in foster care earlier in the day. She was distraught and couldn’t understand why CPS wouldn’t let Anthony go with a family member. She called her aunt who had been in the delivery room when Anthony was born.
She was feeling hysterical and needed to talk to someone she trusted who would calm her down. While on the phone, her aunt began flipping through the pictures she’d taken at the delivery. And that’s when — in the middle of the conversation — Boyd’s aunt made a startling discovery that would further alter the course of events.
“I’m going to send you a picture,” her aunt said. “Did you see your son’s leg?”
Boyd’s aunt immediately emailed the camera phone picture to her. Boyd looked at the photograph, taken moments after delivery before the umbilical cord was cut; Anthony’s leg was already swollen in the photo. Boyd searched her own pictures for a higher resolution picture and found another that showed Anthony’s leg was swollen at birth. She discovered a picture on her camera taken at nearly the same moment as her aunt’s picture. It two appeared to show swelling on Anthony’s leg.
If the leg was broken before Boyd had even held her baby — and the swollen leg in the photos would seem to indicate that — CPS had no case. This was all the evidence she needed, Boyd thought. She emailed the photos to CPS the same night and asked that they be shown to the doctor at the child protective division at CHOA hospital. She never heard back.
Outraged at CPS for not communicating with her and impatient for the first hearing Monday (delayed until after the weekend because of a state furlough day on Friday), Boyd enlisted the help of Johnson. When shown the photos from the delivery, Johnson was astonished.
“The leg looked completely messed up,” she said later.
A mandatory “72-hour” hearing was held Monday to determine if further foster care was necessary for Anthony. The judge granted Boyd and Richards’ daily visitation rights with their son. They could spend three hours a day with him, but they weren’t allowed to bring him home yet. The judge scheduled an ad judicatory hearing for nearly three weeks later.
Adjudication is similar to a trial, but the judge makes the final ruling without a jury’s involvement. In this case, the judge would decide if the allegations of child abuse were true. The hearing lasted five hours. The prosecutor argued that Anthony must have been abused, as there was no other explanation for the broken femur. Both the CHOA hospital child protective division doctor and the obstetrician from Anthony’s delivery testified that the kind of break that Anthony had could not have happened at delivery. They were too rare.
Johnson brought in Dr. Julie Mack, a medical expert from Lancaster, Pa., who countered that claim. Mack had research that showed numerous similar cases. In nearly every one, the break wasn’t diagnosed until days later, even if the baby never left the hospital. She also compared the photos from the delivery with Anthony’s X-rays, showing that the swollen area in the picture was where the break was in the X-ray.
The judge ruled for Boyd and Richards. Anthony could finally come home with his parents.
While she is overjoyed to have her son back, the experience has left Boyd scared and upset. She worries every time she has to take Anthony to the pediatrician. She’d done nothing wrong when she took Anthony in with the swollen leg. In fact, she did everything right. But CPS took her child anyway. Boyd felt as if she were guilty until proven innocent. Until CPS said otherwise, she was an abusive parent.
Anthony was later diagnosed with a vitamin D deficiency, likely inherited from his mother. However, he was never tested during the abuse investigation and has not, to date, been diagnosed with rickets.
Source http://jjie.org/fractured-leg-fractured-family-misdiagnosis-leads-allegations-of-abuse/43001/2
Wednesday, August 17, 2011
Child Protective Services Worker Jailed
Woman faces drug distribution and weapons charges, police say.
Date published: 8/17/2011
By PORTSIA SMITH
A Spotsylvania County Child Protective Services worker and two family members face drug charges in Westmoreland County.
According to Westmoreland Sheriff C.O. Balderson, a search warrant was executed July 25 at a home in the 100 block of Stratford Circle in Colonial Beach.
Investigators reported seizing prescription drug pills, drug paraphernalia, a firearm and an undisclosed amount of cash, Balderson said.
Upon further investigation, three Colonial Beach residents were charged this week.
Sherry Heslop-Dazy, 48, who works as a child protective services worker in Spotsylvania, was arrested Tuesday and charged with distribution of a controlled substance, possession with intent to distribute, possession of a firearm while possessing a controlled substance and conspiring to distribute a controlled substance.
Her husband, 42-year-old Kenneth R. Dazy, is charged with two counts of distributing a controlled substance, conspiring to distribute a controlled substance, possession of a firearm while possessing a controlled substance and possession of a firearm while being a convicted felon.
The couple's son-in-law, William J. Whitlock, 33, is also charged with possession of a controlled substance.
All three are being held without bond at the Northern Neck Regional Jail in Warsaw.
Kenneth Dazy was already incarcerated on unrelated charges prior to these charges, Balderson said.
"Having the capability to use technology in order to monitor communication enabled us to not only further our investigation, but to obtain several indictments and arrest these individuals," Balderson said.
Sherry Dazy and Whitlock will appear in Westmoreland Circuit Court on Friday. Kenneth Dazy will make his next appearance on Monday.
Source: http://fredericksburg.com/News/FLS/2011/082011/08172011/1313607603fls
Date published: 8/17/2011
By PORTSIA SMITH
A Spotsylvania County Child Protective Services worker and two family members face drug charges in Westmoreland County.
According to Westmoreland Sheriff C.O. Balderson, a search warrant was executed July 25 at a home in the 100 block of Stratford Circle in Colonial Beach.
Investigators reported seizing prescription drug pills, drug paraphernalia, a firearm and an undisclosed amount of cash, Balderson said.
Upon further investigation, three Colonial Beach residents were charged this week.
Sherry Heslop-Dazy, 48, who works as a child protective services worker in Spotsylvania, was arrested Tuesday and charged with distribution of a controlled substance, possession with intent to distribute, possession of a firearm while possessing a controlled substance and conspiring to distribute a controlled substance.
Her husband, 42-year-old Kenneth R. Dazy, is charged with two counts of distributing a controlled substance, conspiring to distribute a controlled substance, possession of a firearm while possessing a controlled substance and possession of a firearm while being a convicted felon.
The couple's son-in-law, William J. Whitlock, 33, is also charged with possession of a controlled substance.
All three are being held without bond at the Northern Neck Regional Jail in Warsaw.
Kenneth Dazy was already incarcerated on unrelated charges prior to these charges, Balderson said.
"Having the capability to use technology in order to monitor communication enabled us to not only further our investigation, but to obtain several indictments and arrest these individuals," Balderson said.
Sherry Dazy and Whitlock will appear in Westmoreland Circuit Court on Friday. Kenneth Dazy will make his next appearance on Monday.
Source: http://fredericksburg.com/News/FLS/2011/082011/08172011/1313607603fls
Sunday, July 31, 2011
No. 97-15385. - CALABRETTA v. FLOYD - US 9th Circuit
v.
Jill FLOYD, individually and in her official capacity as a Caseworker of Yolo County Department of Social Services; Yolo County Department of Social Services; Nicholas Schwall, individually and in his official capacity with Woodland Police Department; Russell Smith, individually and in his official capacity as Chief of Police of the Woodland Police Department; Woodland Police Department, Defendants-Appellants.
No. 97-15385.
Argued and Submitted June 8, 1998 -- August 26, 1999
Before: J. CLIFFORD WALLACE, THOMAS G. NELSON and ANDREW J. KLEINFELD, Circuit Judges.
J. Scott Smith,Angelo, Kilday and Kilduff, Sacramento, California, for the defendants-appellants.Michael P. Farris, Home School Legal Defense Association, Paeonian Springs, Virginia, for the plaintiffs-appellees. Steven Bailey (briefed), Placerville, California, for the plaintiffs-appellees.David E. Gordon (briefed), Home School Legal Defense Association, Purcellville, Virginia, for the plaintiffs-appellees.Thomas R. Yanger (briefed), Deputy Attorney General, Sacramento, California, for amicus State of California Ex. Rel. Eloise Anders, Director of the California State of Social Services.Kevin T. Snider (briefed), United States Justice Foundation, Escondido, California, for amicus United States Justice Foundation and Christian Action Network.
This case involves whether a social worker and a police officer were entitled to qualified immunity, for a coerced entry into a home to investigate suspected child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency.
Facts.
The two individual defendants moved for summary judgment based on qualified immunity. The district judge denied it.
Some individual called the Department of Social Services October 27, 1994, with the information that gave rise to this case. The report says that the caller was anonymous, but the report redacts names, thus it is not clear whether the caller gave her name but the Department treated her as anonymous, or whether she refused to give her name. The caller said that she was once awakened by a child screaming “No Daddy, no” at 1:30 A.M. at the Calabretta home. Then two days ago she (or someone else, possibly a Department of Social Services employee-it is not clear from the report) heard a child in the home scream “No, no, no” in the late afternoon. The caller said that the children “are school age and home studied” and that “this is an extremely religious family.”
The report was put into the in box of defendant Jill Floyd, a social worker in the Department. She checked the Department files to see whether the Calabretta family had any “priors,” or had ever been on welfare, and ascertained that they had no priors and had never been on welfare. She did not attempt to interview the person who had called in the report.
On October 31, four days after the call, the social worker went to the Calabretta home to investigate. Mrs. Calabretta, the children's mother, refused to let her in. The children were standing at the door with their mother, and the social worker noted on her report that they “were easily seen and they did not appear to be abused/neglected.”
The social worker was about to go on vacation, so she requested that someone else be assigned to the case, but the investigation had not been completed when she returned. On November 10, fourteen days after the call and ten days after the first visit, the social worker returned to the Calabretta house with a policeman. She did not tell the police dispatcher about the specific allegations, just that she needed police assistance to gain access so that she could interview the children. Officer Nicholas Schwall met the social worker at the Calabretta house, knowing nothing about the case except that he had been assigned to assist her. She told him that they had received a report of the children crying, and he understood her to mean that they might have been beaten.
The policeman knocked, Mrs. Calabretta answered, and the policeman said they were checking on the children's welfare because someone had reported children crying. Mrs. Calabretta did not open the door, and said she was uncomfortable letting them in without her husband at home. The police officer had the opinion that in any check on the welfare of children “there is an exigent circumstance” so no search warrant is needed. Mrs. Calabretta and Officer Schwall disagreed in their depositions on whether Officer Schwall told her that if she did not admit them, then he would force their way in. Appellants concede that for purposes of appeal, the entry must be treated as made without consent.
The social worker then took Mrs. Calabretta's twelve year old daughter into one room while the policeman stayed with the mother in another. The twelve year old did not remember any of the children screaming “No, Daddy, no,” but did recall that at about the date of the report, her little brother hurt himself in the backyard and screamed “no, no, no.” The social worker asked what kind of discipline the parents used, and understood the twelve year old to be saying that the parents used “a round, wooden dowel, very, very thin wooden dowel,” about “twice as big ․ as a pen.” The three year old came into the room at that point and said “I get hit with the stick too.” The twelve year old told her, according to the social worker's report, “that her parents do not discipline indiscriminately, only irreverence or disrespect.” The social worker wrote in her report “Minor is extremely religious-made continual references to the Lord and the Bible.” The social worker testified that any physical means of disciplining children “raises a red flag” for her, and “I always counsel or advise parents on other ways of discipline before they resort to corporal punishment.”
While the mother was still with the policeman in the other room, the social worker told the twelve year old to pull down the three year old girl's pants. She wanted to look at the three year old's buttocks to see whether there were marks. The twelve year old did not do so, and the three year old started crying. The mother heard her daughter crying and ran in. The twelve year old said “she wants me to take down Natalie's pants.” The social worker said “I understand you hit your children with objects,” and went on to say “It's against the California state law to hit your children with objects. And I found out that you hit your children with objects. And I need to see Natalie's bottom to see if there are bruises there.” The policeman said “I'll leave you alone to do this” and backed off. The social worker said “The rod of correction?” Mrs. Calabretta answered, “Oh, it's just a little stick,” referring to “a little Lincoln log, piece of Lincoln log roofing, nine inches long.” Mrs. Calabretta “explained the Biblical basis of its use” to the social worker. The social worker repeated “It's against California law to hit your children with objects. This is breaking the law. And I insist on seeing her bottom.” The three year old was screaming and fighting to get loose, the mother looked at the social worker to see whether she would relent, but she did not, and the mother pulled down the three year old's pants in obedience to the social worker's order.
There were no bruises or marks on the three year old's bottom. The social worker then insisted on seeing the piece of Lincoln log roofing, and Mrs. Calabretta showed it to her. The social worker then decided not to interview or examine the buttocks of any of the other children. She “had a brief conversation with the mother in which we discussed her looking into alternative forms of discipline.”
The Calabrettas sued the social worker and policeman and other defendants for damages, declaratory relief and an injunction under 42 U.S.C. § 1983. The defendants moved for summary judgment on grounds of qualified immunity. The district court denied the defendants' motion, and the social worker and police officer appeal.
Analysis.
We have jurisdiction over interlocutory appeals from denials of summary judgments denying qualified immunity.1 On summary judgment, “even in a qualified immunity case, we must assume the nonmoving party's version of the facts to be correct.” 2 Those facts must, of course, be established by evidence cognizable under Federal Rule of Civil Procedure 56. In this case, although the parties disagree on some details, the disagreements are not material to the outcome. We review denial of the qualified immunity claim de novo.3
A. The coerced entry
The social worker and police officer concede that for purposes of appeal, they should be treated as having entered the Calabretta home without consent. They argue that the district court erred in holding that their nonconsensual entry required special exigency or a search warrant. Their theory is that an administrative search to protect the welfare of children does not carry these requirements, and the social worker was doing just what she was supposed to do under state administrative regulations. They claim immunity for entry into the home, interviewing the twelve year old, and strip searching the three year old.
“[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 4 The right the official is alleged to have violated must have been “clearly established” in an appropriately particularized sense. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” 5 The “relevant question is the objective (albeit fact-specific) question whether a reasonable officer could have believed [the] warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. [The officer's] subjective beliefs about the search are irrelevant.” 6 “Specific binding precedent is not required to show that a right is clearly established for qualified immunity purposes.” 7
The facts in this case are noteworthy for the absence of emergency. The social worker and her department delayed entry into the home for fourteen days after the report, because they perceived no immediate danger of serious harm to the children. The police officer was there to back up the social worker's insistence on entry against the mother's will, not because he perceived any imminent danger of harm. The report that led to the investigation could have indicated a problem, but was not especially alarming. A child screaming “no, Daddy, no” late at night could mean that the father was abusing the child. But in a household where the father puts the children to bed, these words are often screamed at bedtime, and also in the middle of the night after a child has gotten up to go to the bathroom, get a drink of water, check the television, and enter his parents' room to say that he cannot sleep, when the father puts the child to bed the second time. The other scream, “no, no, no,” likewise may mean abuse, or may mean that a child around two is developing a normal, healthy sense of separateness of herself as an individual and perhaps does not care for her mother's choice of vegetable. The tipster's reference to religion might imply that the tip arose from religious differences between the tipster and the Calabretta family. Had the information been more alarming, had the social worker or police officer been alarmed, had there been reason to fear imminent harm to a child, this would be a different case, one to which we have no occasion to speak.
Appellants urge us to adopt a principle that “a search warrant is not required for home investigatory visits by social workers.” They claim qualified immunity on the ground that there is no clearly established principle to the contrary. The principle they urged is too broad. Anderson requires more particularized analysis, to determine whether, in these particular circumstances, notably the absence of emergency, a reasonable official would understand that they could not enter the home without consent or a search warrant.8
In our circuit, a reasonable official would have known that the law barred this entry. Any government official can be held to know that their office does not give them an unrestricted right to enter peoples' homes at will. We held in White v. Pierce County 9 , a child welfare investigation case, that “it was settled constitutional law that, absent exigent circumstances, police could not enter a dwelling without a warrant even under statutory authority where probable cause existed.” 10 The principle that government officials cannot coerce entry into people's houses without a search warrant or applicability of an established exception to the requirement of a search warrant is so well established that any reasonable officer would know it. Under White, appellants' claim, that “a search warrant is not required for home investigatory visits by social workers,” is simply not the law.
Appellants urge that White speaks only to police, not social workers. That is an invalid distinction. In the case at bar, the social worker used a police officer to intimidate the mother into opening the door. Also, there is no reason why White would be limited to one particular kind of government official. The Fourth Amendment preserves the “right of the people to be secure in their persons, houses ․” without limiting that right to one kind of government official. It is not as though all reasonable people thought any government official could enter private houses against the occupants' will, without search warrant or special exigency, and then White said that police officers could not, without speaking about social workers. Rather, everyone knew that the government could not so enter houses, and White said that principle was well established, in the context of a child abuse investigation. Appellants' argument that they be allowed qualified immunity because White did not speak expressly about social workers is of the kind that Anderson rejects, “[t]hat is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful․” 11
There is a distinction between White and the case at bar, but the distinction is of no help to appellants. In White, there was a special exigency. Someone had called in a report that the seven year old had several welts on his back. The boy and his father talked to the police officer at the door, and the boy tried to show the officer his back, but the father would not allow him to. Based on the report, and the father's violent and abusive response when questioned, the officer thought that if he delayed to get a warrant, the father would injure the child or remove him from the house before the officer returned with the warrant. We held that “the deputies had probable cause to believe the child had been abused and that the child would be injured or could not be taken into custody if it were first necessary to obtain a court order.” 12
By contrast, in the case at bar, the report did not describe any evidence of physical abuse, and the social worker and police officer did not perceive any danger of injury to the children or loss of evidence if they secured a warrant. On her first visit four days after the call, ten days prior to her return with the police officer, the social worker wrote “Minors were easily seen and they did not appear to be abused/neglected.” The only reason the social worker and police officer did not seek a search warrant was that their subjective opinion was that they did not need one.
Appellants argue that Baker v. Racansky13 limits White to the principle that compliance with a constitutionally permissible state statute entitles the government officials to immunity. That is not correct. We did not limit White at all in Baker, but merely held that it did the claimants in that case no good. Baker is not on point, because it did not involve any kind of home search, and did not turn on any child welfare exception to normal search and seizure law.
In Baker, we held that social workers were entitled, in the particular circumstances of that case, to qualified immunity for their decision to take a child into protective custody. We noted that at the time, “there was no binding Ninth Circuit or Supreme Court precedent which clearly established when state officials could or could not take a child into temporary protective custody.” 14 That, of course, distinguishes Baker from the case at bar, where at the time there was binding Ninth Circuit precedent, White, which clearly established that the general law of search warrants applied to child abuse investigations. Baker also differs from the case at bar in that the investigators reasonably believed that the child was in imminent danger of abuse if they did not act. A neighbor's children reported to their mother, and to the social worker, that the child's father had sexually abused them, and one of them had a vaginal rash that corroborated the accusation. When the social workers asked the father's own child if his father did anything sexual with him, the child denied it but “started walking around the room ․ would crawl up in his chair ․ went into the corner of the room, put his head in between his legs, raised his legs up, put his arms up toward his head like this, curled up.” 15 The social workers thought the denial was false, because of the child's bizarre behavior when he made the denial, and thought that the mother would not be able to protect the child when the father was released from jail.
Appellants argue that other circuits have allowed broader qualified immunity, so the social worker and police officer could not have been expected to know that they were acting unconstitutionally. They cite Darryl H. v. Coler,16 Wildauer v. Frederick Cnty.,17 and Franz v. Lytle,18 and some out of circuit district court and state court decisions to show that there is no well-established right to privacy from inspections by social workers. It is not clear that a conflict among other circuits would create qualified immunity where clearly established law in this circuit would preclude it,19 but even if it could, these cases would not establish such an open question about coerced entry.
Darryl H. involves strip searches of children, not warrantless entries into homes, and is discussed below with respect to the strip search. Wildauer involves an entry into a home, but there was apparent consent and no express objection, no criminal aspect to the investigation, no entry of a parental home to investigate parents' treatment of their children, and no investigatory purpose. The householder had nine “foster children” living with her (apparently the children were not placed there pursuant to custody orders), and two sets of parents had complained that she would not give their children back despite the absence of any custodial claim. When the social worker appeared, the householder gave two children back and said there were two more she could not find, and invited the social worker in to help look for them. The social worker came back with a nurse because many of the children were disabled and the house looked unhygienic to the social worker, but the purpose of the second look, to which no objection was made, was to see whether the children should stay there, not to investigate any crime.
We are unable to see why appellants cite Franz v. Lytle.20 A neighbor told the police that a woman was leaving her two year old unsupervised and not changing her urine-soaked diapers. The Tenth Circuit held that the investigating police officer was not entitled to qualified immunity, for having the neighbor take off the child's diaper so that he could examine and feel the baby's vaginal area, and under the guise of investigating for sexual molestation, threatening to take the baby into protective custody to make the parents bring the baby to a hospital for further vaginal examination (which revealed no evidence of sexual molestation, a crime for which there was no evidence). The case would not have given the police officer and social worker in the case at bar any reason to think their entry into the Calabretta house and strip search of the three year old was constitutionally permissible, because to the extent that Franz was in any way analogous, the police officer lost on his qualified immunity claim.
One other circuit has spoken on facts analogous to those in the case at bar. Good v. Dauphin County Social Services,21 like our decision in White, holds that a social worker and police officer were not entitled to qualified immunity for insisting on entering her house against the mother's will to examine her child for bruises. Good holds that a search warrant or exigent circumstances, such as a need to protect a child against imminent danger of serious bodily injury, was necessary for an entry without consent, and the anonymous tip claiming bruises was in that case insufficient to establish special exigency. In our case, the anonymous tip did not even allege bruises.
Appellants also argue that the doctrine allowing certain kinds of administrative searches without warrants or special exigency applies to social workers' entries into homes for child protection. That proposition is too broad for the kind of particularized examination of conduct in particular circumstances required by Anderson. We need not decide whether in some circumstances that doctrine might apply, because it does not apply in the circumstances of this case.
The starting point for administrative searches is Camara v. Municipal Court.22 The case involved a routine municipal housing code inspection of an apartment house, yet the Court held that the Fourth Amendment requirement of a search warrant, consent, or exigent circumstances applied. The requirement of probable cause was diluted in the circumstances, so a warrant would be easy to obtain if an occupant would not let an inspector in without it, but a search warrant was necessary in the absence of special exigency or consent, despite the lack of any criminal investigatory purpose. Our analysis in White is consistent with Camara, and Camara is of no help to appellants.
Appellants argue that Wyman v. James,23 establishes that where a social worker enters a house to investigate the welfare of a child, Fourth Amendment standards do not apply. It does not. Wyman holds that the state may terminate welfare where a mother refuses to allow a social worker to visit her home to see whether the welfare money is being used in the best interests of the child for whom it is being paid. It does not hold that the social worker may enter the home despite the absence of consent or exigency. Wyman distinguishes Camara on the ground that in Wyman, “the visitation in itself is not forced or compelled.” 24 In the case at bar, by contrast, the entry into the home was forced and compelled.
New Jersey v. T.L.O.25 holds that the Fourth Amendment does apply to a school administrator search of a student's purse, but that in the special context of in-school searches, the Fourth Amendment did not require a warrant or probable cause. It has no bearing on searches of a home. Appellants would have us read T.L.O. as a blanket suspension of ordinary Fourth Amendment requirements where children are involved. The Court's opinion does not support so broad a reading. The court emphasized that it was “the school setting” that “requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” 26 Of course there are occasions when Fourth Amendment restrictions on entry into homes are relaxed. We emphasize that in this case the officials entered without a warrant or consent simply because they thought they had a right to do so, and thought that the Fourth Amendment did not apply to entries into homes where children were involved. This was not a case where the officials coercing entry into the home recognized some special exigency creating imminent risk to the child. White v. Pierce County 27 establishes that a special exigency excuses a warrantless entry where the government officers have probable cause to believe that the child has been abused and that the child would be injured or could not be taken into custody if it were first necessary to obtain a court order.
Appellants also argue that the coerced entry into the home was primarily to protect the children, not investigate crime, pursuant to California regulations. It is not clear why this would excuse them from compliance with the Fourth Amendment, in light of the Camara holding that administrative inspections of buildings are “significant intrusions upon the interests protected by the Fourth Amendment,” even though not criminal, so in the absence of emergency, warrants should be obtained if consent is refused.28 We held, years before the coerced entry into the Calabretta home, that even in the context of an administrative search, “[n]owhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved․ Therefore, we have been adamant in our demand that absent exigent circumstances a warrant will be required before a person's home is invaded by the authorities.” 29
Nor did the California statutes and regulations direct the social worker or police officer to coerce entry into the home without a warrant or special exigency, or suggest that no warrant was needed in that circumstance. The statutes 30 appellants cite say nothing about entering houses without consent and without search warrants. The regulations they cite require social workers to respond to various contacts in various ways, but none of the regulations cited 31 say that the social worker may force her way into a home without a search warrant in the absence of any emergency. A possibly related regulation, in the chapter on “Report of Child Abuse Investigative Procedures,” does speak to search warrants, but not at all helpfully to appellants. It says that the “child protective official” receiving a report should “consider the need for a search warrant.” 32 This administrative regulation would tend to put the social worker on notice that she might need a search warrant, not that she was exempt from any search warrant requirements. Appellants presented no evidence they did “consider the need for a search warrant.” They both imagined incorrectly that no search warrants were necessary to enter houses for child abuse investigations.
We conclude that on appellants' first issue, whether they were protected by qualified immunity regarding their coerced entry into the Calabrettas' home, the district court was right. They were not.
B. The strip search.
Appellants second issue on appeal is whether they were entitled to qualified immunity for the social worker's requiring the twelve year old to talk to her in a separate room and requiring the mother to pull down the three year old's pants. They argue that there is no authority on point in the Ninth Circuit, and the Seventh Circuit held in Darryl H. v. Coler 33 that such a visual inspection is shielded by qualified immunity. They also argue that there are so many reports of child abuse that the social workers cannot bear any additional restrictions on how they conduct their investigations. In their memorandum in support of summary judgment filed in the district court, appellants did not argue that they were entitled to qualified immunity for the interview with the twelve year old. Because this claim was not raised in the district court, it cannot be raised for the first time on appeal 34 and we have no occasion to pass on the question. The argument in the district court was limited to the proposition that the social worker violated no clearly established law in strip searching the three year old, so that is the only issue we consider.
Darryl H. is not entirely supportive of appellants' position. The strip search was conducted at the children's school, and did not involve an official takeover of the family home. The Seventh Circuit reversed a summary judgment in the social workers' favor on constitutionality of the search. The opinion says that “nude physical examination is a significant intrusion into the child's privacy” and even where the child is too young to have the same subjective sense of bodily privacy as an older child, the nude body search affects “legitimate expectations of the parents ․, protected by the fourteenth amendment, that their familial relationship will not be subject to unwarranted state intrusion.” 35 Although a warrant or probable cause was not needed, in the Seventh Circuit's view, reasonableness was under the Fourth Amendment, and there were issues of fact that precluded summary judgment regarding reasonableness. Although in Darryl H., as in the case at bar, the social worker ordered the mother to strip the child, there was a genuine issue of fact about whether the mother did so consensually or in response to coercion. Also, not much checking had been done on the validity of the tip, the children denied abuse, and there was evidence that the tipster might not be fair and objective.
Darryl H. offers some support to appellants because it held that the social workers were entitled to qualified immunity. But the strip search was not done during an unconstitutional entry into the home, and the information supporting a strip search was much stronger in Darryl H. than in the case at bar. The school principal reported “Lee H., age six, was tied up for punishment. Lee and his sister, Marlena, age seven, were thin and not allowed to eat lunch at school, and the children's clothes and bodies were dirty.” 36 The principal told the social worker that “both parents were usually angry when they came to school ․ that other students indicated Lee was tied up for punishment,” but “that bruises had never been observed on the children.” 37 Thus, in Darryl H., the social workers had substantial reason to believe that the children were malnourished, dirty, and abusively disciplined.
By contrast with Darryl H., in the case at bar the social worker had little reason to believe that the three year old was abused. The tip itself included a reference to the Calabrettas' religious views that might suggest that the tipster was motivated by religious differences. Even if the tip was entirely accurate, a benign explanation of “no, Daddy, no” and “no, no, no” was at least as likely as any punishment, let alone abusive punishment. The social worker had noted on her first visit that “Minors were easily seen and did not appear to be abused/neglected.” The twelve year old had already explained away the screaming and told the social worker that the children were not abusively disciplined. The social worker's notations refer to the religiosity of the household, but surely a family's religious views cannot justify social workers invading the household and stripping the children. The social worker plainly expressed the view to the mother that use of any object to spank a child, such as the “rod” (a nine inch Lincoln log) was illegal, and she did have reason to believe that such an object was used, but appellants have cited no authority for the proposition she was right that California law prohibits use of any object to discipline a child. The statutes we have found prohibit “cruel or inhuman” corporal punishment or injury resulting in traumatic condition.38 While some punishment with some objects might necessarily amount to cruel or inhuman punishment, a token “rod” such as a nine inch Lincoln log would not. A social worker is not entitled to sacrifice a family's privacy and dignity to her own personal views on how parents ought to discipline their children.
The Third Circuit held, in factual circumstances much more similar than Darryl H. to the case at bar, that the social workers lacked qualified immunity for strip searching small children. In Good v. Dauphin County Social Services,39 an anonymous tipster told Social Services that a seven year old girl had bruises on her body and said she got them in a “fight with her mother.” As with Calabretta, a social worker and police officer insisted on entry, claiming that they needed no search warrant to investigate child abuse.
Good reversed a summary judgment in the social worker's and police officer's favor on qualified immunity, and held that they were not entitled to qualified immunity. Even though there was no case in point, the Third Circuit held that the general proposition was clearly established that the government may not “conduct a search of a home or strip search of a person's body in the absence of consent, a valid search warrant, or exigent circumstances.” 40 Good cited a Seventh Circuit case for the proposition that “It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity.” 41 Good holds that under Anderson, “a public official may not manufacture immunity by inventing exceptions to well settled doctrines for which the case law provides no support.” 42
Good distinguishes Darryl H. on the ground that in Darryl H. the social workers acted pursuant to state guidelines but they did not in Good (nor did they in the case at bar), and because “the strip search in this case came in the context of a forced entry into a residence” at about 10 P.M.43 Good held that “the propriety of the strip search cannot be isolated from the context in which it took place,” referring to the coerced entry into the home.44
The Tenth Circuit has likewise held that a police officer conducting a strip search of a small child in the context of a child abuse investigation lacked qualified immunity. Franz v. Lytle,45 discussed above, held that a police officer who insisted on looking at a two year old's vagina, and having a doctor look at it, to assure the absence of sexual abuse, lacked qualified immunity for the strip search. The Tenth Circuit rejected the officer's arguments that there was no case directly in point establishing the unconstitutionality, that this was an administrative search, and that such great latitude should be allowed for child protection, and held that a tip that the baby was going around with urine soaked diapers and unsupervised was not sufficient reason to allow this search. The Tenth Circuit said that the social interest in child protection included not only protection against child abuse, but also “the child's psychological well-being, autonomy, and relationship to the family or caretaker setting.” 46
This case is like Good, not Darryl H. The strip search cannot be separated from the context in which it took place, the coerced entry into the home. An unlawful entry or search of a home does not end when the government officials walk across the threshold. It continues as they impose their will on the residents of the home in which they have no right to be. There is not much reason to be concerned with the privacy and dignity of the three year old whose buttocks were exposed, because with children of that age ordinarily among the parental tasks is teaching them when they are not supposed to expose their buttocks. But there is a very substantial interest, which forcing the mother to pull the child's pants down invaded, in the mother's dignity and authority in relation to her own children in her own home. The strip search as well as the entry stripped the mother of this authority and dignity. The reasonable expectation of privacy of individuals in their homes includes the interests of both parents and children in not having government officials coerce entry in violation of the Fourth Amendment and humiliate the parents in front of the children. An essential aspect of the privacy of the home is the parent's and the child's interest in the privacy of their relationship with each other.
The social worker had already established that, as against the weak tip, “no, Daddy, no,” and “no, no, no,” the children did not appear to be neglected or abused, the twelve year old said that they were not, and the object with which they were disciplined was a token “rod” consisting of a nine inch Lincoln log. By the time the social worker forced the mother to pull down the child's pants, the investigation had contracted to the social worker's personal opinion that any discipline of a child with an object must be against the law, and her puzzling mention of the family's religiosity. The government's interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children's interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.
AFFIRMED.
FOOTNOTES
1. Act Up!/Portland v. Bagley, 988 F.2d 868, 870 (9th Cir.1993).
2. Liston v. County of Riverside, 120 F.3d 965, 977 (9th Cir.1997).
3. Act Up!/Portland, 988 F.2d at 871.
4. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
5. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (internal citation omitted).
6. Id. at 641, 107 S.Ct. 3034.
7. Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir.1988).
8. Anderson, 483 U.S. at 640-41, 107 S.Ct. 3034.
9. White v. Pierce County, 797 F.2d 812 (9th Cir.1986).
10. Id. at 815.
11. Anderson, 483 U.S. at 640, 107 S.Ct. 3034.
12. White, 797 F.2d at 815.
13. Baker v. Racansky, 887 F.2d 183 (9th Cir.1989).
14. Id. at 187.
15. Id. at 189.
16. Darryl H. v. Coler, 801 F.2d 893 (7th Cir.1986).
17. Wildauer v. Frederick County, 993 F.2d 369 (4th Cir.1993).
18. Franz v. Lytle, 997 F.2d 784 (10th Cir.1993).
19. See Garcia v. Miera, 817 F.2d 650, 658 (10th Cir.1987).
20. Franz v. Lytle. 997 F.2d 784 (10th Cir.1993).
21. Good v. Dauphin County Social Servs., 891 F.2d 1087 (3d Cir.1989).
22. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
23. Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971).
24. Id. at 317, 91 S.Ct. 381.
25. New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).
26. T.L.O., 469 U.S. at 340, 105 S.Ct. 733.
27. White v. Pierce County, 797 F.2d 812, 815 (9th Cir.1986).
28. Camara v. Municipal Court, 387 U.S. 523, 534, 539-40, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
29. Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir.1990).
30. Cal. Welfare & Inst.Code §§ 16501(a) & 16208. Though appellants cite § 16208, the Code says that section was repealed.
31. DSS Regulations §§ 31-105.1, 31.105.11, 31.120.1, 31-125.2, & 31-130.2.
32. Cal. Admin. Code tit. 11, § 930.60.
33. Darryl H. v. Coler, 801 F.2d 893 (7th Cir.1986).
34. Marx v. Loral Corp., 87 F.3d 1049, 1055 (9th Cir.1996) ( “Generally, an appellate court will not consider arguments not first raised before the district court unless there were exceptional circumstances.”) (citation omitted).
35. Darryl H., 801 F.2d at 901.
36. Id. at 905.
37. Id.
38. Cal.Penal Code, tit. 1, §§ 11165.3 & 11165.4.
39. Good v. Dauphin County Social Services, 891 F.2d 1087 (3d Cir.1989).
40. Id. at 1092.
41. Id. at 1093, citing Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir.1980).
42. Good, 891 F.2d at 1094.
43. Id. at 1096.
44. Id. at 1096, n. 6.
45. Franz v. Lytle, 997 F.2d 784 (10th Cir.1993).
46. Id. at 792-93.
KLEINFELD, Circuit Judge:
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