By Jordan Steffen
Barely two weeks after state officials announced a plan to reduce the number of children who die after entering Colorado's child welfare program, the same agency began work Friday to relax rules dictating when caseworkers must investigate reports of abuse and neglect.
The Colorado Department of Human Services is proposing a change that would remove a rule requiring that county social workers automatically open an investigation if they receive three reports of child abuse or neglect within two years — and the first two referrals were not investigated. Instead, social workers would examine prior contacts with the child — such as any actions taken and services provided — to determine whether an investigation is warranted.
Julie Krow, head of the department's Office of Children, Youth and Families, and Judy Rodriguez, assistant director of the Division of Child Welfare, presented the proposal at Friday's meeting of the State Board of Human Services.
The rule change could help conserve limited resources and allow social workers to focus on cases that may be more severe, Rodriguez said.
"Supervisors look at each case and approve or disapprove a referral," Rodriguez said. "They are the ones who know their communities."
Opponents of the rule change said the proposal is based on anecdotes instead of data.
"In a time when we've had 43 child deaths, one would think that we would be trying to figure out how to address our own accountability," said Stephanie Villafuerte, executive director of the Rocky Mountain Children's Law Center. "We don't need to be worrying about giving discretion to the caseworkers, but we should figure out what went wrong in the discretion that was already given."
An investigation by The Denver Post in January showed that in the past five years, 43 children died after entering the state's child welfare system. In every one of the deaths — which occurred in 18 counties — social workers repeatedly failed to complete basic functions, according to a review of state investigative reports.
In 17 of those cases, county social workers failed to start an investigation after a report of abuse or neglect warranted one.
Friday's discussion occurred less than a month after the department opened its second child fatality review this year — an Adams County boy allegedly killed by his grandmother.
Such an investigation is opened whenever a child's death is a result of abuse or neglect and there was contact with the child welfare system during the two previous years.
Board members are selected by Gov. John Hickenlooper and operate outside of the department. The board holds public hearings on the first Friday of every month to discuss proposed changes to the rules that regulate county child welfare departments.
Friday, board members expressed mixed responses to the proposed rule changes. Some said they worried that changing the rule could result in children falling through the cracks, while others advocated for more county control.
"We're trusting people to make the first judgment, we're trusting them to make the second, but for some reason we're not trusting them to make the third," said Stephen Johnson, board member and county commissioner for Larimer County.
REAL Colorado, an initiative of Colorado Counties Inc., suggested the rule change to the state department last fall.
The board approved the proposal to go forward to a final adoption hearing, scheduled for April 6. Before then, the board requested data about who is making the referrals and how many each county receives.
Source http://www.denverpost.com/news/ci_20092427
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 workers. Show all posts
Showing posts with label social workers. Show all posts
Monday, March 5, 2012
Friday, February 10, 2012
The High Cost of Foster Care Abuse
FLUSHING, NY, February 09, 2012
More than 500,000 children in the U.S. reside in some form of foster care. Within one year of their initial placement, at least 15 percent of them will experience neglect, abuse, or other harmful conditions. Six times as many children die in foster care than in the general population. Children in placement are also far more likely to suffer physical and sexual abuse than other children. In group homes, where many of the residents abuse each other, there is more than ten times the rate of physical abuse and 28 times the rate of sexual abuse as in the general population. And these are just the reported cases. Since foster care agencies cannot always be relied upon to police themselves, the actual rates are likely to be much higher.
Lawsuits are a necessary consequence of foster care abuse. Often, they provide the only means for victims to seek monetary compensation for grievous harm. They are also instrumental in publicizing these tragedies, forcing state and private foster care providers to account for their actions and, hopefully, rectify them. Here is a sampling of recent foster care abuse lawsuits:
A Florida mother accused state and local child care providers of failing to protect her son from sexual abuse. Placed at age 10, the child was moved to 11 different foster homes in an 18 month period and twice attempted suicide.
Three young Maryland men filed suit against an agency that had notice of a sexually abusing foster father but failed to take action. The agency specialized in placements for children and adolescents with mental disabilities as well as brain and spinal cord injuries.
A lawsuit on behalf of a young girl repeatedly raped in foster care over a period of ten months was filed in Philadelphia. The rapist, who was not supposed to be residing in the home, was the foster mother's teen-aged son.
Lawyers in Colorado sued agency social workers on behalf of three boys placed in an adoptive home. Although the adoptive parents knew the boys had been abused in their biological home, social workers failed to warn them of just how heinous and extensive the abuse had been. The children engaged in incestuous acts with each other, necessitating strenuous efforts on the part of the adoptive parents to prevent the abuse. Ultimately, the strain of caring for the children caused the adoptive parents to divorce.
The payout for such lawsuits can be quite substantial. New Jersey has spent $51.7 million in 317 lawsuits brought on behalf of abused foster children dating as far back as 1996. Since 2005, the Oklahoma Department of Human Services (DHS) has paid out more than $3.4 million in civil lawsuit settlements. In a recently settled class action lawsuit involving foster care abuse, Oklahoma DHS spent $7 million in outside attorney fees in defense of the lawsuit, with $2 million more set aside for future costs. Additional class action lawsuits are pending on behalf of thousands of foster children in Rhode Island, Massachusetts and Texas. Even when such cases do not result in monetary awards to the original plaintiffs, attorney fees can run well into the millions.
Foster care abuse exacts an enormous toll in emotional, psychological and physical damage. Lawsuits filed on behalf of these injured children, while essential, are prohibitively expensive for state and local governments. In a better world, all those tens of millions would be spent on preventing the very problems that put children in foster care in the first place. Sometimes, the price for the harm that results from the remedy is just too high.
Written by Ruth C. Stern on behalf of Orlow, Orlow & Orlow, New York Personal Injury Lawyers located at 7118 Main Street, Flushing, NY 11367
Phone: 212-203-4053
http://www.orlowlaw.com
More than 500,000 children in the U.S. reside in some form of foster care. Within one year of their initial placement, at least 15 percent of them will experience neglect, abuse, or other harmful conditions. Six times as many children die in foster care than in the general population. Children in placement are also far more likely to suffer physical and sexual abuse than other children. In group homes, where many of the residents abuse each other, there is more than ten times the rate of physical abuse and 28 times the rate of sexual abuse as in the general population. And these are just the reported cases. Since foster care agencies cannot always be relied upon to police themselves, the actual rates are likely to be much higher.
Lawsuits are a necessary consequence of foster care abuse. Often, they provide the only means for victims to seek monetary compensation for grievous harm. They are also instrumental in publicizing these tragedies, forcing state and private foster care providers to account for their actions and, hopefully, rectify them. Here is a sampling of recent foster care abuse lawsuits:
A Florida mother accused state and local child care providers of failing to protect her son from sexual abuse. Placed at age 10, the child was moved to 11 different foster homes in an 18 month period and twice attempted suicide.
Three young Maryland men filed suit against an agency that had notice of a sexually abusing foster father but failed to take action. The agency specialized in placements for children and adolescents with mental disabilities as well as brain and spinal cord injuries.
A lawsuit on behalf of a young girl repeatedly raped in foster care over a period of ten months was filed in Philadelphia. The rapist, who was not supposed to be residing in the home, was the foster mother's teen-aged son.
Lawyers in Colorado sued agency social workers on behalf of three boys placed in an adoptive home. Although the adoptive parents knew the boys had been abused in their biological home, social workers failed to warn them of just how heinous and extensive the abuse had been. The children engaged in incestuous acts with each other, necessitating strenuous efforts on the part of the adoptive parents to prevent the abuse. Ultimately, the strain of caring for the children caused the adoptive parents to divorce.
The payout for such lawsuits can be quite substantial. New Jersey has spent $51.7 million in 317 lawsuits brought on behalf of abused foster children dating as far back as 1996. Since 2005, the Oklahoma Department of Human Services (DHS) has paid out more than $3.4 million in civil lawsuit settlements. In a recently settled class action lawsuit involving foster care abuse, Oklahoma DHS spent $7 million in outside attorney fees in defense of the lawsuit, with $2 million more set aside for future costs. Additional class action lawsuits are pending on behalf of thousands of foster children in Rhode Island, Massachusetts and Texas. Even when such cases do not result in monetary awards to the original plaintiffs, attorney fees can run well into the millions.
Foster care abuse exacts an enormous toll in emotional, psychological and physical damage. Lawsuits filed on behalf of these injured children, while essential, are prohibitively expensive for state and local governments. In a better world, all those tens of millions would be spent on preventing the very problems that put children in foster care in the first place. Sometimes, the price for the harm that results from the remedy is just too high.
Written by Ruth C. Stern on behalf of Orlow, Orlow & Orlow, New York Personal Injury Lawyers located at 7118 Main Street, Flushing, NY 11367
Phone: 212-203-4053
http://www.orlowlaw.com
Monday, January 30, 2012
Policy violations in Colorado social-services system found amid deaths of 43 children
By Jordan Steffen
In the past five years, 43 Colorado children died from abuse or neglect after entering the child welfare program. Every one of those deaths was marked by a policy violation or sparked concern in the way the case was handled by county social workers.
Investigations completed by the Colorado Department of Human Services since 2007 indicate that social workers in 18 counties repeatedly failed to complete basic functions — such as interviews or follow-ups on assessments — in 43 cases where a child later died from abuse or neglect.
In 40 percent of those deaths — 17 children — county social workers failed to start or did not accept an assessment after a referral warranted an investigation for abuse or neglect.
The state department opens an investigation whenever a child's death is a result of abuse or neglect and there was contact with the county child welfare system during the two years before the child's death, said spokeswoman Liz McDonough.
Before 2011, an investigation was opened if a child entered the system five years before the death.
Human Services' latest investigation will be into the death of 3-year-old Caleb Pacheco, whose body was found tucked underneath a Sterling mobile home last week. His mother, Juanita Kinzie, 24, is in custody and faces one count of first-degree murder in her son's death.
In 2011, 21 child-fatality reports were launched in Colorado. Two have been completed. Reports become public after they are finished and if they show policy violations or concerns. The Denver Post obtained all 43 public reports completed in the past five years.
Most of the reports included multiple referrals and assessments.
According to The Post's findings:
There were 27 instances in which county social workers failed to contact, interview or follow up with victims, caregivers, reporting parties or other adults involved in an referral.
There were 32 instances in which social workers did not document unsafe conditions, prior incidents or other concerns in their assessments.
There were 33 occasions during which assessments were not started in a timely manner, were completed incorrectly or left open beyond the allotted time frame.
In five cases, social workers failed to account for other children or caregivers living in the home, and communication difficulties across county departments and other systems — such as law enforcement — hindered an investigation in five cases.
One of the reports was on 7-year-old Chandler Grafner, who was starved by his foster parents, Jon Phillips and Sarah Berry, in 2007.
In December, a federal judge ruled that the Denver social workers who were involved with his case were not immune from a lawsuit filed by the boy's relatives. Phillips was sentenced to life in Chandler's death and Berry to 48 years.
Caleb's family members say they last saw the boy in January 2011. During the year he was missing, the boy's family said they called social services in three counties more than 70 times.
Human Services cannot release details about Caleb's case or confirm whether his family contacted county departments because the investigation into the boy's death is ongoing, and a Logan County judge issued a gag order in the case, McDonough said.
Dr. Kim Bundy-Fazioli, an associate professor at Colorado State University's School of Social Work, said the family's claims about unanswered calls for help are a concern.
"When families aren't making progress, there is a lot of chaos, and it can be overwhelming for case workers and service providers," Bundy-Fazioli said.
"You never know who to interview or who to trust, but it's not an excuse not to intervene."
Bundy-Fazioli also was concerned about decreased funding for county programs and increased caseloads for overwhelmed social workers, who often have to make judgment calls on high-priority cases and investigations.
Each of Colorado's 64 county departments are being asked to do more with less, said Becky Miller Updike, ombudsman with the Office of Colorado's Child Protection. Often, families in the most dire situations are also more transient, making it harder to track children through school systems and other county departments.
"We have to cut back dollars from our counties every year, causing us to ask them to do more with less," Miller Updike said.
Source http://www.denverpost.com/frontpage/ci_19844865
In the past five years, 43 Colorado children died from abuse or neglect after entering the child welfare program. Every one of those deaths was marked by a policy violation or sparked concern in the way the case was handled by county social workers.
Investigations completed by the Colorado Department of Human Services since 2007 indicate that social workers in 18 counties repeatedly failed to complete basic functions — such as interviews or follow-ups on assessments — in 43 cases where a child later died from abuse or neglect.
In 40 percent of those deaths — 17 children — county social workers failed to start or did not accept an assessment after a referral warranted an investigation for abuse or neglect.
The state department opens an investigation whenever a child's death is a result of abuse or neglect and there was contact with the county child welfare system during the two years before the child's death, said spokeswoman Liz McDonough.
Before 2011, an investigation was opened if a child entered the system five years before the death.
Human Services' latest investigation will be into the death of 3-year-old Caleb Pacheco, whose body was found tucked underneath a Sterling mobile home last week. His mother, Juanita Kinzie, 24, is in custody and faces one count of first-degree murder in her son's death.
In 2011, 21 child-fatality reports were launched in Colorado. Two have been completed. Reports become public after they are finished and if they show policy violations or concerns. The Denver Post obtained all 43 public reports completed in the past five years.
Most of the reports included multiple referrals and assessments.
According to The Post's findings:
There were 27 instances in which county social workers failed to contact, interview or follow up with victims, caregivers, reporting parties or other adults involved in an referral.
There were 32 instances in which social workers did not document unsafe conditions, prior incidents or other concerns in their assessments.
There were 33 occasions during which assessments were not started in a timely manner, were completed incorrectly or left open beyond the allotted time frame.
In five cases, social workers failed to account for other children or caregivers living in the home, and communication difficulties across county departments and other systems — such as law enforcement — hindered an investigation in five cases.
One of the reports was on 7-year-old Chandler Grafner, who was starved by his foster parents, Jon Phillips and Sarah Berry, in 2007.
In December, a federal judge ruled that the Denver social workers who were involved with his case were not immune from a lawsuit filed by the boy's relatives. Phillips was sentenced to life in Chandler's death and Berry to 48 years.
Caleb's family members say they last saw the boy in January 2011. During the year he was missing, the boy's family said they called social services in three counties more than 70 times.
Human Services cannot release details about Caleb's case or confirm whether his family contacted county departments because the investigation into the boy's death is ongoing, and a Logan County judge issued a gag order in the case, McDonough said.
Dr. Kim Bundy-Fazioli, an associate professor at Colorado State University's School of Social Work, said the family's claims about unanswered calls for help are a concern.
"When families aren't making progress, there is a lot of chaos, and it can be overwhelming for case workers and service providers," Bundy-Fazioli said.
"You never know who to interview or who to trust, but it's not an excuse not to intervene."
Bundy-Fazioli also was concerned about decreased funding for county programs and increased caseloads for overwhelmed social workers, who often have to make judgment calls on high-priority cases and investigations.
Each of Colorado's 64 county departments are being asked to do more with less, said Becky Miller Updike, ombudsman with the Office of Colorado's Child Protection. Often, families in the most dire situations are also more transient, making it harder to track children through school systems and other county departments.
"We have to cut back dollars from our counties every year, causing us to ask them to do more with less," Miller Updike said.
Source http://www.denverpost.com/frontpage/ci_19844865
Saturday, January 7, 2012
Foster mother gets life for torture, murder - California
MARTINEZ, Calif. -- A judge Friday morning sentenced Antioch woman Shemeeka Davis to life in prison for torturing and abusing her two foster children and for murdering one of them.
Shemeeka Davis, 41, was sentenced to 25 years to life in prison for the torture and murder of 15-year-old Jazzmin Davis and to life in prison with the possibility of parole for the torture of her twin brother, who survived years of abuse.
Davis, the aunt of Jazzmin and her brother, wept loudly throughout today's hearing and as the sentence was handed down.
"I'd like to say that I'm very sorry," she said between sobs. "This was never my intention ... and I wish I could change everything."
On Sept. 2, 2008, Jazzmin's naked, gaunt and scarred body was found on the floor inside the Antioch home where for years, the only mother she had known abused her and her brother.
Police said that when she died, the teen was 5 foot 7 feet tall and weighed about 78 pounds.
A coroner's report found that she died from a combination of repeated physical abuse and malnutrition, Deputy District Attorney Satish Jallepalli said.
Jazzmin's twin brother was also found to be scarred and severely malnourished, but survived and testified during Davis' trial last summer.
At the end of the trial last June, a jury convicted Davis of first-degree murder, torture and felony child abuse charges and found her legally sane at the time she committed the crimes, despite her dual plea of not guilty and not guilty by reason of insanity.
Defense attorney Betty Barker argued throughout the trial that Davis suffers from severe mental illnesses, including psychotic delusions, which prevented her from forming the intent to torture the twins.
Jallepalli agreed that Davis is mentally ill, but argued that she chose to keep hurting the children and covered up the abuse because she knew it was wrong -- skipping the twins' doctor's appointments and keeping them home from school.
She had taken custody of the twins - who were born to a crack-addicted mother - shortly after they were born, raising them in addition to her three biological children.
A week before Jazzmin died, Davis was granted legal guardianship of the twins.
But Jallepalli said during Davis' trial that there was a clear difference in how she treated her niece and nephew.
The twins were not allowed to eat with her biological children and were not given the same food, if any at all, he said.
Davis would also lock the pair in a closet for long periods of time, forcing them to urinate and defecate on the floor.
When the twins were about 9 years old, Davis began beating them with belts.
Jallepalli said during the trial that over the years, Davis used electrical cords, a wooden rod and a belt with an attached padlock to beat the children and sometimes burned them with an iron.
As the beatings escalated, Davis stopped taking her nephew to doctor appointments to be treated for sickle cell anemia. In the year before Jazzmin's death, she also kept the teen home from school and even kept her from leaving the house, Jallepalli said.
Social workers who monitored the twins' care throughout their lives never noticed or reported the abuse, attorneys said.
The San Francisco Human Services Agency, which was in charge of overseeing the twins' care, agreed last year to a $4 million settlement with Jazzmin's brother.
The Antioch Unified School District agreed to settle with the teen for $750,000 and has implemented changes to its attendance policy.
Before handing down the sentence in Contra Costa County Superior Court today, Judge Susanne Fenstermache heard emotional statements from several of Davis' family members, who requested leniency.
"I've known her all my life, and I know that she's not a monster ... we will continue to pray for her and support her," said one man, Davis' cousin.
Jallepalli read two letters from other family members of the twins addressed to the court, including an aunt who wrote, "I can't begin to imagine how my niece felt during that last attack ... please have no mercy for sentencing."
The prosecutor also read entries from Jazzmin's journal in the months leading up to her death in which she wrote how much she loved her foster mother and wanted to make her happy.
In a later entry, Jazzmin described being "in big trouble" for failing to clean the bathroom.
"I'm going to lose all my privileges and end up in the same position I started in ... I'm so confused ... someone help," she wrote. Before handing down the sentence, the judge told Davis that she didn't consider her a monster.
"This is a sad day for everyone," Fenstermache said. "I know you wish you could undo this ... but it's been done."
Davis will be 69 years old when she becomes eligible for parole, attorneys said.
http://abclocal.go.com/kgo/story?section=news/local/east_bay&id=8493857
Shemeeka Davis, 41, was sentenced to 25 years to life in prison for the torture and murder of 15-year-old Jazzmin Davis and to life in prison with the possibility of parole for the torture of her twin brother, who survived years of abuse.
Davis, the aunt of Jazzmin and her brother, wept loudly throughout today's hearing and as the sentence was handed down.
"I'd like to say that I'm very sorry," she said between sobs. "This was never my intention ... and I wish I could change everything."
On Sept. 2, 2008, Jazzmin's naked, gaunt and scarred body was found on the floor inside the Antioch home where for years, the only mother she had known abused her and her brother.
Police said that when she died, the teen was 5 foot 7 feet tall and weighed about 78 pounds.
A coroner's report found that she died from a combination of repeated physical abuse and malnutrition, Deputy District Attorney Satish Jallepalli said.
Jazzmin's twin brother was also found to be scarred and severely malnourished, but survived and testified during Davis' trial last summer.
At the end of the trial last June, a jury convicted Davis of first-degree murder, torture and felony child abuse charges and found her legally sane at the time she committed the crimes, despite her dual plea of not guilty and not guilty by reason of insanity.
Defense attorney Betty Barker argued throughout the trial that Davis suffers from severe mental illnesses, including psychotic delusions, which prevented her from forming the intent to torture the twins.
Jallepalli agreed that Davis is mentally ill, but argued that she chose to keep hurting the children and covered up the abuse because she knew it was wrong -- skipping the twins' doctor's appointments and keeping them home from school.
She had taken custody of the twins - who were born to a crack-addicted mother - shortly after they were born, raising them in addition to her three biological children.
A week before Jazzmin died, Davis was granted legal guardianship of the twins.
But Jallepalli said during Davis' trial that there was a clear difference in how she treated her niece and nephew.
The twins were not allowed to eat with her biological children and were not given the same food, if any at all, he said.
Davis would also lock the pair in a closet for long periods of time, forcing them to urinate and defecate on the floor.
When the twins were about 9 years old, Davis began beating them with belts.
Jallepalli said during the trial that over the years, Davis used electrical cords, a wooden rod and a belt with an attached padlock to beat the children and sometimes burned them with an iron.
As the beatings escalated, Davis stopped taking her nephew to doctor appointments to be treated for sickle cell anemia. In the year before Jazzmin's death, she also kept the teen home from school and even kept her from leaving the house, Jallepalli said.
Social workers who monitored the twins' care throughout their lives never noticed or reported the abuse, attorneys said.
The San Francisco Human Services Agency, which was in charge of overseeing the twins' care, agreed last year to a $4 million settlement with Jazzmin's brother.
The Antioch Unified School District agreed to settle with the teen for $750,000 and has implemented changes to its attendance policy.
Before handing down the sentence in Contra Costa County Superior Court today, Judge Susanne Fenstermache heard emotional statements from several of Davis' family members, who requested leniency.
"I've known her all my life, and I know that she's not a monster ... we will continue to pray for her and support her," said one man, Davis' cousin.
Jallepalli read two letters from other family members of the twins addressed to the court, including an aunt who wrote, "I can't begin to imagine how my niece felt during that last attack ... please have no mercy for sentencing."
The prosecutor also read entries from Jazzmin's journal in the months leading up to her death in which she wrote how much she loved her foster mother and wanted to make her happy.
In a later entry, Jazzmin described being "in big trouble" for failing to clean the bathroom.
"I'm going to lose all my privileges and end up in the same position I started in ... I'm so confused ... someone help," she wrote. Before handing down the sentence, the judge told Davis that she didn't consider her a monster.
"This is a sad day for everyone," Fenstermache said. "I know you wish you could undo this ... but it's been done."
Davis will be 69 years old when she becomes eligible for parole, attorneys said.
http://abclocal.go.com/kgo/story?section=news/local/east_bay&id=8493857
Colorado appeals court allows abused siblings to sue social workers
By Felisa Cardona
Three siblings severely abused in the home of their biological mother and later in foster care can pursue their lawsuit against Adams County social workers who allegedly failed to protect them and deceived their adoptive parents about the extent of their problems, the Colorado Court of Appeals ruled Thursday.
In the summer of 2002, the siblings — then ages 9, 6 and 3 — were adopted by a couple who only learned about the history of abuse on the eve of the adoption. The children were engaging in incestuous acts with each other, and one of them had to be removed from their home because she was suicidal.
The fallout of the abuse was so egregious that the adoptive parents installed alarms in the children's rooms to prevent them from abusing each other. The couple ended up divorcing, blaming the failure of the marriage on the stress caused by the children's emotional problems.
The names of the parents and siblings are being withheld by The Denver Post because the children are victims of sexual abuse and naming their adoptive parents would identify them.
The adoptive parents sued the Adams County Department of Social Services, asserting that social workers had a duty to fully disclose the background of the children. But the parents lost their case when a jury decided that the social workers were not "willful and wanton" in failing to inform them of the history of abuse.
Thursday's ruling allows lawyers for the children to proceed to trial with different claims — that the siblings' rights to be free from harm were violated by the workers entrusted to protect them.
"Evidence was presented at the first trial about the extraordinary challenges these children would face as a result of the defendants' conduct, and unfortunately it all seems to be coming to pass," said attorney Jordan Factor, who argued the case at the Colorado Court of Appeals.
Adams County argued that the social workers, Joan Forsmark, Cathy O'Donnell and Angela Lytle, were protected from the lawsuit by the state's governmental immunity law.
The court disagreed and concluded that Lytle, who as a division director of child welfare supervised O'Donnell and Forsmark, acted "recklessly."
"Lytle increased the children's vulnerability to the danger by not preparing the (adoptive parents) to deal with their extraordinary emotional needs, and by continuing to support the children's adoption as a sibling group, despite the revelations of incest, which distinguished them from the type of children the (adoptive parents) had indicated they were ready to adopt," the court's opinion reads. "This conduct put the children at substantial risk of serious, immediate, and proximate harm that was known to or suspected by Lytle at the time of the adoption. Such allegations show that Lytle acted recklessly in conscious disregard of that risk. And such conduct, when viewed in total, is conscience shocking."
Adams County Attorney Hal Warren declined to comment on the merits of the claims because the case is heading to trial.
Warren is reviewing the court's ruling to decide whether an appeal to the state Supreme Court is possible.
O'Donnell is still employed by the county. Forsmark has since retired. Lytle works for the Arapahoe County Department of Human Services.
The decision Thursday comes a month after a federal judge ruled that social workers in Denver were not immune from a lawsuit in the case of 7-year-old Chandler Grafner, who was starved to death by his foster parents.
In that case, the judge noted the neglect of Chandler by social services was also "conscious-shocking" and that a complaint of child abuse made by a teacher's aide a month before his death was not thoroughly investigated by Denver Human Services.
Factor, one of the siblings' lawyers in the Adams County case, said he hopes the rulings will have an impact on the quality of care for children.
"Each circumstance is a little different, and this adds to the mix of circumstances in which the courts consistently say that children in the custody of the state of Colorado have a right to be kept safe from harm," he said. "It is a case that has an opportunity to do real justice."
http://www.denverpost.com/news/ci_19685387
Three siblings severely abused in the home of their biological mother and later in foster care can pursue their lawsuit against Adams County social workers who allegedly failed to protect them and deceived their adoptive parents about the extent of their problems, the Colorado Court of Appeals ruled Thursday.
In the summer of 2002, the siblings — then ages 9, 6 and 3 — were adopted by a couple who only learned about the history of abuse on the eve of the adoption. The children were engaging in incestuous acts with each other, and one of them had to be removed from their home because she was suicidal.
The fallout of the abuse was so egregious that the adoptive parents installed alarms in the children's rooms to prevent them from abusing each other. The couple ended up divorcing, blaming the failure of the marriage on the stress caused by the children's emotional problems.
The names of the parents and siblings are being withheld by The Denver Post because the children are victims of sexual abuse and naming their adoptive parents would identify them.
The adoptive parents sued the Adams County Department of Social Services, asserting that social workers had a duty to fully disclose the background of the children. But the parents lost their case when a jury decided that the social workers were not "willful and wanton" in failing to inform them of the history of abuse.
Thursday's ruling allows lawyers for the children to proceed to trial with different claims — that the siblings' rights to be free from harm were violated by the workers entrusted to protect them.
"Evidence was presented at the first trial about the extraordinary challenges these children would face as a result of the defendants' conduct, and unfortunately it all seems to be coming to pass," said attorney Jordan Factor, who argued the case at the Colorado Court of Appeals.
Adams County argued that the social workers, Joan Forsmark, Cathy O'Donnell and Angela Lytle, were protected from the lawsuit by the state's governmental immunity law.
The court disagreed and concluded that Lytle, who as a division director of child welfare supervised O'Donnell and Forsmark, acted "recklessly."
"Lytle increased the children's vulnerability to the danger by not preparing the (adoptive parents) to deal with their extraordinary emotional needs, and by continuing to support the children's adoption as a sibling group, despite the revelations of incest, which distinguished them from the type of children the (adoptive parents) had indicated they were ready to adopt," the court's opinion reads. "This conduct put the children at substantial risk of serious, immediate, and proximate harm that was known to or suspected by Lytle at the time of the adoption. Such allegations show that Lytle acted recklessly in conscious disregard of that risk. And such conduct, when viewed in total, is conscience shocking."
Adams County Attorney Hal Warren declined to comment on the merits of the claims because the case is heading to trial.
Warren is reviewing the court's ruling to decide whether an appeal to the state Supreme Court is possible.
O'Donnell is still employed by the county. Forsmark has since retired. Lytle works for the Arapahoe County Department of Human Services.
The decision Thursday comes a month after a federal judge ruled that social workers in Denver were not immune from a lawsuit in the case of 7-year-old Chandler Grafner, who was starved to death by his foster parents.
In that case, the judge noted the neglect of Chandler by social services was also "conscious-shocking" and that a complaint of child abuse made by a teacher's aide a month before his death was not thoroughly investigated by Denver Human Services.
Factor, one of the siblings' lawyers in the Adams County case, said he hopes the rulings will have an impact on the quality of care for children.
"Each circumstance is a little different, and this adds to the mix of circumstances in which the courts consistently say that children in the custody of the state of Colorado have a right to be kept safe from harm," he said. "It is a case that has an opportunity to do real justice."
http://www.denverpost.com/news/ci_19685387
Monday, December 12, 2011
Social workers fired in Marlboro County CPS case - concerning Edna Hunt
by Tonya Brown
NewsChannel 15 has learned two Marlboro County Department of Social Services employees were fired in connection with the child abuse case of Edna Hunt.
State DSS officials will only say they let the employees go after an evaluation of their work in the Hunt investigation and other cases they've handled.
Last week, we learned DSS was conducting a child protective services investigation prior to Hunt's death.
We have requested more information through the Freedom of Information Act to find out if the employees violated any procedures, according to state and federal policy, for child protective investigations.
In October, Hunt died following cardiac arrest in Bennettsville.
Hunt's mother and her mother's boyfriend are charged with homicide by child abuse.
Police say Hunt had bruises and burns all over her body.
Officers say a post mortem examination showed she had been abused for some time.
DSS officials say the Director of the Marlboro County DSS resigned shortly after the child's death, but they aren't saying if his resignation had anything to do with their internal investigation.
Marlboro County Coroner, Tim Brown, says he's expecting final autopsy results on Hunt to be in sometime this week.
He will release those results when they come in.
Source http://www.carolinalive.com/news/story.aspx?id=696491
NewsChannel 15 has learned two Marlboro County Department of Social Services employees were fired in connection with the child abuse case of Edna Hunt.
State DSS officials will only say they let the employees go after an evaluation of their work in the Hunt investigation and other cases they've handled.
Last week, we learned DSS was conducting a child protective services investigation prior to Hunt's death.
We have requested more information through the Freedom of Information Act to find out if the employees violated any procedures, according to state and federal policy, for child protective investigations.
In October, Hunt died following cardiac arrest in Bennettsville.
Hunt's mother and her mother's boyfriend are charged with homicide by child abuse.
Police say Hunt had bruises and burns all over her body.
Officers say a post mortem examination showed she had been abused for some time.
DSS officials say the Director of the Marlboro County DSS resigned shortly after the child's death, but they aren't saying if his resignation had anything to do with their internal investigation.
Marlboro County Coroner, Tim Brown, says he's expecting final autopsy results on Hunt to be in sometime this week.
He will release those results when they come in.
Source http://www.carolinalive.com/news/story.aspx?id=696491
Sunday, December 11, 2011
Mother who won't give up faces prison - California
By JON CASSIDY
SANTA ANA – The state took Niveen Ismail's son and gave him to somebody else.
Now authorities are trying to lock her up, charging her with going too far to get him back.
Ismail, of Newport Beach, went to trial in Orange County Superior Court this week on a single charge of solicitation to kidnap - the result of a December 2009 meeting with a private investigator and an undercover police officer who was wearing a wire. The charge carries three years.
In the meantime, she is waging her own battle in federal court with civil rights lawsuits that question why California is the only state not to follow a Supreme Court ruling on how to terminate parental rights.
In the criminal case, the prosecution says Ismail asked the investigator to kidnap her then 7-year-old son, Anthony, from his foster family and take him to Mexico or France, where Ismail would pick him up and return to her native Egypt.
But in a videotape of the meeting played in court Thursday, Ismail never appeared to instruct anyone to kidnap her son, although the audio is garbled at times. A potential kidnapping plan is discussed, but Ismail says on tape at least seven times that she just wants to go with another plan: surveillance on her son's foster family in hopes of digging up or manufacturing dirt.
After she insists on Plan A – surveillance – the undercover officer encourages her to give him $2,000 to get a fake passport for Anthony, so that they can at least get started with Plan B, kidnapping, according to the tape. She agrees and emails him a photo of Anthony to use, but then backs out, agreeing only to give him $500 to start surveillance, according to the tape.
As she left that December meeting to go to the bank, she was arrested by Newport Beach police, who had been listening in, according to court records.
The meeting with the private investigator and undercover officer came just a few weeks after Ismail got word that the U.S. Supreme Court had denied her appeal of the legal proceedings that took her son away. (Later, in 2010 and 2011, she filed civil rights lawsuits against most of the agencies involved, which are pending.)
Deputy District Attorney Beth Costello said that Ismail "resorted to the illegal" after her appeals over the adoption case were exhausted.
Ismail's son was taken by the Orange County Social Services Agency in 2005 after she left him home alone, according to court records. Huntington Beach police found her preschool-age son alone in his crib after a neighbor heard him crying.
Social workers came in to take the boy. Ismail, a single mother, had gone to work even though her child care arrangement fell through that day, her attorney, Ann Cunningham said.
In supervised visits, Ismail failed to set boundaries – not giving Anthony time-outs, allowing him a cookie when he didn't finish his meal, social workers reported, court records said.
A fair-haired boy with almond eyes and a winsome smile, Anthony was placed with a "fost-adopt" family in Lake Forest, three months after he was taken from Ismail, and has been with them ever since.
In her lawsuit, Ismail accuses the social workers of deciding early on to adopt her son out to another family and thwart any chance at reunification by incessant fault-finding, such as:
She fed him a tuna fish sandwich during a bowling outing, and tuna got on the ball return.
Her toilet water was blue.
She ordered him an IHOP International Breakfast meal rather than something from the Kids Menu.
At Dave and Busters, on a mid-week afternoon, she allowed her son to use the men's room by himself, while she and a social worker waited by the door.
That last incident was cited by the judge in deciding to terminate reunification efforts, according to Ismail and Cunningham. Taking her son to an establishment with a bar was said to be evidence of bad judgment.
Ismail is arguing that the way California severs parental rights is unconstitutional.
In California, a parent's rights can be effectively terminated before anyone has to present "clear and convincing" evidence that they should be, according to a law journal article that she cites in her lawsuits.
The other 49 states follow a Supreme Court precedent that requires a court to find "clear and convincing evidence" of a parent's unfitness before terminating his or her rights. California follows a looser "preponderance of the evidence" standard. That means a mother loses her child if the court rules it's more likely than not she's a bad one.
The California Supreme Court has decided that the U.S. Supreme Court standard doesn't apply here. By the time a California court considers a mother's rights, they are outweighed by the child's bonds with a new family.
Ismail argues that point in her lawsuits, but first she has her kidnapping case, which continues on Monday.
In November 2009, Ismail called several private investigators, prosecutors allege. One of them, Robert Young, had a history as a police informant.
Young testified Thursday that Ismail approached him with a plan either to dig up dirt on the foster couple or to plant something incriminating. At the end of the meeting, she mentioned a Plan B: kidnapping her son and taking him abroad, he said. Young said he'd have to talk to his partner. Then he called the police, and set up another meeting with Ismail, bringing Newport Beach police officer Neal Schuster, who was posing as his partner.
On tape, the "investigators" say they'd be willing to help her get her son back.
"It's not like we haven't done stuff like this in the past," one says.
"Seriously, can you do Plan B," Ismail asks early on. "What if I ask you to fly him to Libya, or France," she asks later.
Otherwise, she continually steers the conversation back to Plan A, saying she'd need a few more weeks to decide about Plan B.
"I think we're going to go with the first one," Ismail tells him. "If A fails.... I was hoping to do A.... Go with A.... I was hoping A would work.... You don't think A would work?.... Maybe you can work on A for a couple weeks.... Why don't you think about Plan A first.... If you want B, that would take at least a month of preparation for me.... I'm really thinking I want to go with A.... We'll start off with A and if that doesn't work out for you.... A would be good.... I'm still debating what to do."
The prosecution needs to prove that kidnapping was actually requested, not just discussed, according to the state's jury instructions for the charge she is facing.
Source http://www.ocregister.com/news/ismail-330857-court-son.html
SANTA ANA – The state took Niveen Ismail's son and gave him to somebody else.
Now authorities are trying to lock her up, charging her with going too far to get him back.
Ismail, of Newport Beach, went to trial in Orange County Superior Court this week on a single charge of solicitation to kidnap - the result of a December 2009 meeting with a private investigator and an undercover police officer who was wearing a wire. The charge carries three years.
In the meantime, she is waging her own battle in federal court with civil rights lawsuits that question why California is the only state not to follow a Supreme Court ruling on how to terminate parental rights.
In the criminal case, the prosecution says Ismail asked the investigator to kidnap her then 7-year-old son, Anthony, from his foster family and take him to Mexico or France, where Ismail would pick him up and return to her native Egypt.
But in a videotape of the meeting played in court Thursday, Ismail never appeared to instruct anyone to kidnap her son, although the audio is garbled at times. A potential kidnapping plan is discussed, but Ismail says on tape at least seven times that she just wants to go with another plan: surveillance on her son's foster family in hopes of digging up or manufacturing dirt.
After she insists on Plan A – surveillance – the undercover officer encourages her to give him $2,000 to get a fake passport for Anthony, so that they can at least get started with Plan B, kidnapping, according to the tape. She agrees and emails him a photo of Anthony to use, but then backs out, agreeing only to give him $500 to start surveillance, according to the tape.
As she left that December meeting to go to the bank, she was arrested by Newport Beach police, who had been listening in, according to court records.
The meeting with the private investigator and undercover officer came just a few weeks after Ismail got word that the U.S. Supreme Court had denied her appeal of the legal proceedings that took her son away. (Later, in 2010 and 2011, she filed civil rights lawsuits against most of the agencies involved, which are pending.)
Deputy District Attorney Beth Costello said that Ismail "resorted to the illegal" after her appeals over the adoption case were exhausted.
Ismail's son was taken by the Orange County Social Services Agency in 2005 after she left him home alone, according to court records. Huntington Beach police found her preschool-age son alone in his crib after a neighbor heard him crying.
Social workers came in to take the boy. Ismail, a single mother, had gone to work even though her child care arrangement fell through that day, her attorney, Ann Cunningham said.
In supervised visits, Ismail failed to set boundaries – not giving Anthony time-outs, allowing him a cookie when he didn't finish his meal, social workers reported, court records said.
A fair-haired boy with almond eyes and a winsome smile, Anthony was placed with a "fost-adopt" family in Lake Forest, three months after he was taken from Ismail, and has been with them ever since.
In her lawsuit, Ismail accuses the social workers of deciding early on to adopt her son out to another family and thwart any chance at reunification by incessant fault-finding, such as:
She fed him a tuna fish sandwich during a bowling outing, and tuna got on the ball return.
Her toilet water was blue.
She ordered him an IHOP International Breakfast meal rather than something from the Kids Menu.
At Dave and Busters, on a mid-week afternoon, she allowed her son to use the men's room by himself, while she and a social worker waited by the door.
That last incident was cited by the judge in deciding to terminate reunification efforts, according to Ismail and Cunningham. Taking her son to an establishment with a bar was said to be evidence of bad judgment.
Ismail is arguing that the way California severs parental rights is unconstitutional.
In California, a parent's rights can be effectively terminated before anyone has to present "clear and convincing" evidence that they should be, according to a law journal article that she cites in her lawsuits.
The other 49 states follow a Supreme Court precedent that requires a court to find "clear and convincing evidence" of a parent's unfitness before terminating his or her rights. California follows a looser "preponderance of the evidence" standard. That means a mother loses her child if the court rules it's more likely than not she's a bad one.
The California Supreme Court has decided that the U.S. Supreme Court standard doesn't apply here. By the time a California court considers a mother's rights, they are outweighed by the child's bonds with a new family.
Ismail argues that point in her lawsuits, but first she has her kidnapping case, which continues on Monday.
In November 2009, Ismail called several private investigators, prosecutors allege. One of them, Robert Young, had a history as a police informant.
Young testified Thursday that Ismail approached him with a plan either to dig up dirt on the foster couple or to plant something incriminating. At the end of the meeting, she mentioned a Plan B: kidnapping her son and taking him abroad, he said. Young said he'd have to talk to his partner. Then he called the police, and set up another meeting with Ismail, bringing Newport Beach police officer Neal Schuster, who was posing as his partner.
On tape, the "investigators" say they'd be willing to help her get her son back.
"It's not like we haven't done stuff like this in the past," one says.
"Seriously, can you do Plan B," Ismail asks early on. "What if I ask you to fly him to Libya, or France," she asks later.
Otherwise, she continually steers the conversation back to Plan A, saying she'd need a few more weeks to decide about Plan B.
"I think we're going to go with the first one," Ismail tells him. "If A fails.... I was hoping to do A.... Go with A.... I was hoping A would work.... You don't think A would work?.... Maybe you can work on A for a couple weeks.... Why don't you think about Plan A first.... If you want B, that would take at least a month of preparation for me.... I'm really thinking I want to go with A.... We'll start off with A and if that doesn't work out for you.... A would be good.... I'm still debating what to do."
The prosecution needs to prove that kidnapping was actually requested, not just discussed, according to the state's jury instructions for the charge she is facing.
Source http://www.ocregister.com/news/ismail-330857-court-son.html
Saturday, December 10, 2011
Denver Human Services defends two caseworkers sued child Chandler Grafner's starvation death
By Felisa Cardona
Two social workers who were supervising 7-year-old Chandler Grafner's case before he starved to death are still working for Denver Human Services.
Margaret Booker and Mary Peagler are supervisors with the child welfare division of DHS, said agency spokeswoman Revekka Balancier.
Booker supervises the foster care and adoptive family recruitment and support efforts, and Peagler supervises interns and the family visitation program.
On Wednesday, U.S. District Judge William J. Martinez denied a motion to dismiss a wrongful-death lawsuit filed against them by Chandler's estate and his biological parents.
The judge noted that the neglect of Chandler by social services was "conscience-shocking" and that a complaint of child abuse made by a teacher's aide a month before the boy's May 6, 2007, death wasn't thoroughly explored by DHS.
Balancier defended the caseworkers, saying DHS is made up of hundreds of caseworkers and support staff who make it their life's work to help keep children safe.
"The death of a child at the hands of an abuser is a terrible and tragic loss for our community and is deeply felt by every member of our staff," she wrote in an e-mail. "We have confidence that each of our workers performs their duties with grave attention to the safety needs of children, compassion for families who are in crisis and experienced decision making in the complex task of making sure our children's needs are being met."
At the time of Chandler's death, Booker was responsible for investigating claims related to child maltreatment and deciding whether further investigation was warranted. Peagler was in charge of Chandler's case file.
In their motion to dismiss, they claimed that the Jefferson County Department of Human Services was legally responsible for Chandler's care because that agency initially placed him with stepfather Jon Phillips, who abused him.
Martinez disagreed that DHS caseworkers were not directly responsible for Chandler's care.
The judge cited a previous 10th U.S. Circuit Court of Appeals ruling regarding a wrongful-death lawsuit against a caseworker in New Mexico who was in charge of overseeing the adoption of a girl with severe spina bifida.
The 3-year-old girl, Grace Bogey, was beaten to death weeks after her adoption and complaints raised by her nurse, who suspected she was being abused.
In that case, the 10th Circuit overturned a lower court's decision to dismiss a lawsuit against the girl's caseworker who failed to conduct a home visit when the girl's grandfather moved in and the living situation changed.
Martinez said that case was "remarkably similar" to Chandler's case, though he noted that in his view the Denver case was even more egregious in that DHS received complaints from Chandler's school and failed to investigate.
"Chandler died from starvation and dehydration and, at the time of his death was twenty pounds underweight for his age," Martinez wrote in his opinion. "These injuries, by their nature, occur over a period of time. Had Defendants property exercised their professional judgement in response to the April 17, 2007, referral, these injuries may well have been avoided."
Though Martinez paved the way for a jury trial against the caseworkers, a previous ruling dismissed the case against Denver Human Services and the Jefferson County Department of Human Services, based on government immunity.
Chandler was living with Phillips and his girlfriend, Sarah Berry, at the time of his death. Phillips was sentenced to life without parole for first-degree murder, and Berry is serving a 48-year prison sentence for second-degree murder.
Source http://www.denverpost.com/news/ci_19502308
Two social workers who were supervising 7-year-old Chandler Grafner's case before he starved to death are still working for Denver Human Services.
Margaret Booker and Mary Peagler are supervisors with the child welfare division of DHS, said agency spokeswoman Revekka Balancier.
Booker supervises the foster care and adoptive family recruitment and support efforts, and Peagler supervises interns and the family visitation program.
On Wednesday, U.S. District Judge William J. Martinez denied a motion to dismiss a wrongful-death lawsuit filed against them by Chandler's estate and his biological parents.
The judge noted that the neglect of Chandler by social services was "conscience-shocking" and that a complaint of child abuse made by a teacher's aide a month before the boy's May 6, 2007, death wasn't thoroughly explored by DHS.
Balancier defended the caseworkers, saying DHS is made up of hundreds of caseworkers and support staff who make it their life's work to help keep children safe.
"The death of a child at the hands of an abuser is a terrible and tragic loss for our community and is deeply felt by every member of our staff," she wrote in an e-mail. "We have confidence that each of our workers performs their duties with grave attention to the safety needs of children, compassion for families who are in crisis and experienced decision making in the complex task of making sure our children's needs are being met."
At the time of Chandler's death, Booker was responsible for investigating claims related to child maltreatment and deciding whether further investigation was warranted. Peagler was in charge of Chandler's case file.
In their motion to dismiss, they claimed that the Jefferson County Department of Human Services was legally responsible for Chandler's care because that agency initially placed him with stepfather Jon Phillips, who abused him.
Martinez disagreed that DHS caseworkers were not directly responsible for Chandler's care.
The judge cited a previous 10th U.S. Circuit Court of Appeals ruling regarding a wrongful-death lawsuit against a caseworker in New Mexico who was in charge of overseeing the adoption of a girl with severe spina bifida.
The 3-year-old girl, Grace Bogey, was beaten to death weeks after her adoption and complaints raised by her nurse, who suspected she was being abused.
In that case, the 10th Circuit overturned a lower court's decision to dismiss a lawsuit against the girl's caseworker who failed to conduct a home visit when the girl's grandfather moved in and the living situation changed.
Martinez said that case was "remarkably similar" to Chandler's case, though he noted that in his view the Denver case was even more egregious in that DHS received complaints from Chandler's school and failed to investigate.
"Chandler died from starvation and dehydration and, at the time of his death was twenty pounds underweight for his age," Martinez wrote in his opinion. "These injuries, by their nature, occur over a period of time. Had Defendants property exercised their professional judgement in response to the April 17, 2007, referral, these injuries may well have been avoided."
Though Martinez paved the way for a jury trial against the caseworkers, a previous ruling dismissed the case against Denver Human Services and the Jefferson County Department of Human Services, based on government immunity.
Chandler was living with Phillips and his girlfriend, Sarah Berry, at the time of his death. Phillips was sentenced to life without parole for first-degree murder, and Berry is serving a 48-year prison sentence for second-degree murder.
Source http://www.denverpost.com/news/ci_19502308
Sunday, November 27, 2011
Obese Third Grader Taken From Mom, Placed in Foster Care
A Cleveland third grader who weighed more than 200 pounds was taken from his mother after officials reportedly said she did not do enough to help the boy, who suffered from a weight-related health issue, to lose weight.
“They are trying to make it seem like I am unfit, like I don’t love my child,” the boy’s mother, who was not identified, told the Cleveland Plain Dealer. “It’s a lifestyle change and they are trying to make it seem like I am not embracing that. It is very hard, but I am trying.”
Officials first became aware of the boy’s weight after his mother took him to the hospital last year while he was having breathing problems, the newspaper reported. The child was diagnosed with sleep apnea and began to be monitored by social workers while he was enrolled in a program called “Healthy Kids, Healthy Weight” at the Rainbow Babies & Children’s Hospital.
The boy lost a few pounds, but recently began to gain some back, the Cleveland Plain Dealer reported. At that point, the Department of Children and Family Services asked a juvenile court for custody of the boy, citing his soaring weight as a form of medical neglect, according to the newspaper.
Taking obese children from their families has become a topic of intense debate over the past year after one high-profile pediatric obesity expert made controversial comments in the Journal of the American Medical Association advocating the practice in acute cases.
“In severe instances of childhood obesity, removal from the home may be justifiable, from a legal standpoint, because of imminent health risks and the parents’ chronic failure to address medical problems,” Dr. David Ludwig co-wrote with Lindsey Murtagh, a lawyer and researcher at Harvard’s School of Public Health.
A trial is set for the boy’s ninth birthday next month to determine whether his mother will regain custody.
But one family who has been in the same position as the Ohio family told ABC News they disagreed with the practice when “Good Morning America” spoke with them in January.
“Literally, it was two months of hell. It seemed like the longest two months of my life,” mother Adela Martinez said.
Her daughter, 3-year-old Anamarie Regino, weighing 90 pounds, was taken from her parents and placed into foster care a decade ago.
Anamarie didn’t improve at all in foster care, and she was returned to her parents. The young girl was later diagnosed with a genetic predisposition.
“They say it’s for the well-being of the child, but it did more damage than any money or therapy could ever to do to fix it,” Martinez said.
Anamarie Regino, who is now a teenager, agreed.
“It’s not right, what [Dr. Ludwig] is doing, because to get better you need to be with your family, instead of being surrounded by doctors,” she said.
When told of the Regino case, Ludwig said his solution of state intervention did not always work.
“Well, state intervention is no guarantee of a good outcome, but to do nothing is also not an answer,” he said.
ABC News’ Dan Harris and Mikaela Conley contributed to this report
Source http://abcnews.go.com/blogs/health/2011/11/27/obese-third-grader-taken-from-family-placed-in-foster-care/
“They are trying to make it seem like I am unfit, like I don’t love my child,” the boy’s mother, who was not identified, told the Cleveland Plain Dealer. “It’s a lifestyle change and they are trying to make it seem like I am not embracing that. It is very hard, but I am trying.”
Officials first became aware of the boy’s weight after his mother took him to the hospital last year while he was having breathing problems, the newspaper reported. The child was diagnosed with sleep apnea and began to be monitored by social workers while he was enrolled in a program called “Healthy Kids, Healthy Weight” at the Rainbow Babies & Children’s Hospital.
The boy lost a few pounds, but recently began to gain some back, the Cleveland Plain Dealer reported. At that point, the Department of Children and Family Services asked a juvenile court for custody of the boy, citing his soaring weight as a form of medical neglect, according to the newspaper.
Taking obese children from their families has become a topic of intense debate over the past year after one high-profile pediatric obesity expert made controversial comments in the Journal of the American Medical Association advocating the practice in acute cases.
“In severe instances of childhood obesity, removal from the home may be justifiable, from a legal standpoint, because of imminent health risks and the parents’ chronic failure to address medical problems,” Dr. David Ludwig co-wrote with Lindsey Murtagh, a lawyer and researcher at Harvard’s School of Public Health.
A trial is set for the boy’s ninth birthday next month to determine whether his mother will regain custody.
But one family who has been in the same position as the Ohio family told ABC News they disagreed with the practice when “Good Morning America” spoke with them in January.
“Literally, it was two months of hell. It seemed like the longest two months of my life,” mother Adela Martinez said.
Her daughter, 3-year-old Anamarie Regino, weighing 90 pounds, was taken from her parents and placed into foster care a decade ago.
Anamarie didn’t improve at all in foster care, and she was returned to her parents. The young girl was later diagnosed with a genetic predisposition.
“They say it’s for the well-being of the child, but it did more damage than any money or therapy could ever to do to fix it,” Martinez said.
Anamarie Regino, who is now a teenager, agreed.
“It’s not right, what [Dr. Ludwig] is doing, because to get better you need to be with your family, instead of being surrounded by doctors,” she said.
When told of the Regino case, Ludwig said his solution of state intervention did not always work.
“Well, state intervention is no guarantee of a good outcome, but to do nothing is also not an answer,” he said.
ABC News’ Dan Harris and Mikaela Conley contributed to this report
Source http://abcnews.go.com/blogs/health/2011/11/27/obese-third-grader-taken-from-family-placed-in-foster-care/
Monday, October 31, 2011
Title IV-D Federal Funding and ZERO Accountability
Blog authors note:
The below talks about federal money and divorcing parents. The same scenario accounts for IV-E funding involving children who are removed by CPS.
-----
Various Fathers, Mothers, and former father-PI's have told me that for every child placed in Foster Care, the States receive between $4,000-6,000 (per month) that the child remains under the State's foster care / Replacement Parent Protection Plan #1 (RPPP-1). The States also receive a similar amount for each child placed in adoption, or RPPP-2. And since the Majority of the Money that the State receives from the Feds does NOT go to the Replacement Parent, but rather to the State, there is a Financial Incentive for the States to place as many children as possible in one of their two Replacement Parent Protection Plans: and for this reason, THAT is exactly what is going on -- in Many cases -- with little or no justification.
My understanding is that the States receive from two-thirds to three-fourths of the Money, and the other 1/3 to 1/4 goes to RPPP-1 or RPPP-2. Therefore, the more children who are taken away from their parents, the More Money the States receive to feed their growing Monster.
See the Links below for more on how Title IV-D Federal Funding of Child Support Services, Child Protective Services, and Family Courts has turned a natural tendency to obtain More Money and Power and what it can purchase for me and my family, into a Nightmare for Divorcing Parents: and especially those who Don't Want to share the Kids, but instead to nitpick and lie about the other parent and seek Sole Legal Custody. This has given birth to Monster-Gov: with an insatiable appetite for More Children and Parents, and All their Assets: and a Free for All for state and private licensed "clinical" social workers, Family Law attorneys, psychologists, marriage and family therapists, and last but not least, State and local budgets.
Go to this link, http://www.earthage.org/familycourtcrooks/title_iv-d-federal-funding.htm, and there are several other links that explain all of this very well.
The below talks about federal money and divorcing parents. The same scenario accounts for IV-E funding involving children who are removed by CPS.
-----
Various Fathers, Mothers, and former father-PI's have told me that for every child placed in Foster Care, the States receive between $4,000-6,000 (per month) that the child remains under the State's foster care / Replacement Parent Protection Plan #1 (RPPP-1). The States also receive a similar amount for each child placed in adoption, or RPPP-2. And since the Majority of the Money that the State receives from the Feds does NOT go to the Replacement Parent, but rather to the State, there is a Financial Incentive for the States to place as many children as possible in one of their two Replacement Parent Protection Plans: and for this reason, THAT is exactly what is going on -- in Many cases -- with little or no justification.
My understanding is that the States receive from two-thirds to three-fourths of the Money, and the other 1/3 to 1/4 goes to RPPP-1 or RPPP-2. Therefore, the more children who are taken away from their parents, the More Money the States receive to feed their growing Monster.
See the Links below for more on how Title IV-D Federal Funding of Child Support Services, Child Protective Services, and Family Courts has turned a natural tendency to obtain More Money and Power and what it can purchase for me and my family, into a Nightmare for Divorcing Parents: and especially those who Don't Want to share the Kids, but instead to nitpick and lie about the other parent and seek Sole Legal Custody. This has given birth to Monster-Gov: with an insatiable appetite for More Children and Parents, and All their Assets: and a Free for All for state and private licensed "clinical" social workers, Family Law attorneys, psychologists, marriage and family therapists, and last but not least, State and local budgets.
Go to this link, http://www.earthage.org/familycourtcrooks/title_iv-d-federal-funding.htm, and there are several other links that explain all of this very well.
Monday, September 5, 2011
Recent tragedies cast doubt on Montana's child-protection services
When CPS fails the children, which seems quite often, the children suffer or die. Why can't CPS get it right? Why do they take children from homes on false allegations yet leave other children in homes where abuse really is ocurring? Why?
-----
The name October Perez was on the radar of state social workers months before it made its way into headlines about her tragic death.
The 2-year-old died in June from injuries prosecutors allege were caused by abuse.
Perez's body was bruised, multiple bones were broken, her brain was swollen and she had suffered severe head trauma. She spent two days in a Salt Lake City hospital, then was taken off life support after being declared brain dead. Her mother's then-boyfriend, David Wayne Hyslop, was charged in the death of Perez. Hyslop pleaded not guilty to deliberate homicide, and a trial has been set for October.
Caseworkers from the Child and Family Services Division of the Montana Department of Public Health and Human Services had visited the house where Perez lived at least three times. Two of those visits were to investigate allegations of abuse involving the toddler, according to Child and Family Services documents obtained by the Tribune.
How the division handled the Perez case is being investigated by the Department of Public Health and Human Services, according to the agency's director.
"We've had people put on administrative leave during the investigation," Director Anna Whiting Sorrell said.
Sorrell added that other workers in the department made employment decisions, but she declined to elaborate, or to say who was put on administrative leave.
"I'm working hard every day to look at and examine this situation and circumstances around this case," Sorrell said.
From almost the moment Perez died of alleged abuse, questions swirled regarding what Child and Family Services knew about her home situation, and whether anything could or should have been done before her death.
It wasn't the first time such questions were asked.
In September 2010, 4-year-old Kiera Pulaski was found dead in Missouri less than three months after her 1-year-old half brother Darby Hodges died in Kalispell under mysterious circumstances. Family members said Child and Family Services was alerted to concerns about the children's safety before they died.
In 2009, after Kendra Bernardi's daughter went blind as a result of being slammed against a crib, she said the child protection system failed the child, Seraphina Bernardi. Alicia Jo Hocter eventually was convicted of beating the child and was sentenced to 30 years in prison. Court documents from the initial investigation indicate Child and Family Services caseworkers received five reports regarding the conditions Seraphina Bernardi and Hocter's newborn daughter lived in prior to the abuse taking place in February 2009.
Perez's death spurred a petition drive organized by Blaine County child advocate and school superintendent Lisa Stroh, as well as members of Perez's family. The petition, which called for changes in the state's child welfare system, garnered about 3,000 signatures and eventually got the attention of Gov. Brian Schweitzer. On Aug. 3, a handful of Perez's family members met with Schweitzer and Sorrell.
"They did not feel that they were listened to (by Child and Family Services workers)," Sorrell said.
According to Child and Family Services documents, three earlier allegations of maltreatment of Perez were listed as unsubstantiated. April Hall, Perez's paternal grandmother, said that Child and Family Services caseworkers also investigated a claim of abuse involving Perez's 5-year-old half brother, which he reported in April to a teacher at Head Start. That report also was found to be unsubstantiated, Hall said.
Division documents describe caseworkers first going to the home where Perez lived based on allegations that the children were in a "filthy" environment. No allegations of abuse were mentioned. Social workers checked the home, deemed that Perez was safe, and closed the case, according to the documents.
The first time Hall called the division was in January, when she noticed bruises on Perez's body that seemed to come and go. While Hall said she couldn't know for sure what caused the injuries, it was unsettling enough for her to call the child abuse hotline.
"It was just getting pretty obvious that there were things, and it wasn't natural," she said. "A child doesn't constantly have bruises on them."
What followed was a series of visits to the home where Perez lived, followed by increasing frustration from family members who kept reporting abuse but couldn't get the girl out of an environment they thought was unsafe.
"We were treated like low-lifes who didn't know what we were talking about," said Hall's sister, Mary Leibrand, who also talked to Child and Family Services social workers about Perez. "The longer we worked with them, the more pathetic it got."
Child and Family Services was back at the home in February to investigate a fracture of Perez's left arm. The break was discovered after the child was taken to the emergency room when Hall and Perez's maternal grandmother saw Perez crying uncontrollably.
X-rays revealed a fracture to Perez's left forearm, plus a healed fracture to her right forearm that an orthopedic surgeon determined to be as old as 6 weeks, the documents state.
Great Falls Police were called that same day to investigate whether Perez's injuries were caused by abuse. However, after medical professionals at Benefis Health System were unable to determine whether the fractures were caused by abuse, the police dropped the investigation. Child and Family Services listed the initial abuse claim as unsubstantiated.
"It was determined by physicians that October's buckle fracture to her left arm was caused by an accident, not by a grab or twist," the division's report states.
In every investigation, caseworkers are required to make a decision on the merit of the initial report of maltreatment, as well as on the child's safety. Although the report of abuse was found to be unsubstantiated, the caseworker made another decision regarding Perez's safety. The child was determined to be in "impending danger," which is worse than "safe," but not as severe as "present danger" under the division's guidelines.
About two months later, the division was called to investigate the abuse allegation from Perez's half-brother. The boy told a teacher at Head Start, and the teacher reported it to Child and Family Services. Hall said a caseworker checked the boy for bruises and interviewed him, but eventually decided that the report was unsubstantiated. Without division intervention, the boy was sent to live with his father in Phoenix on April 9.
Later that month, a Child and Family Services worker paid another visit to the home to investigate reports that Perez had bruises on her forehead and cheeks and some of her teeth were falling out. The caseworker who visited the home noted bruises on the girl's head but was told by someone whose name was redacted from the report the Tribune received that those bruises were from Perez running into a countertop. The maltreatment reports were found to be unsubstantiated, but Perez was again found to be in "impending danger."
During this time, Perez's biological father, Michael Arndt, was stationed in Afghanistan with the Army. He retained Great Falls attorney David Dennis in an effort to gain custody of his daughter because he thought she was in danger. Dennis wrote a letter dated June 3 to Perez's caseworker, expressing his concern about the division's visits to the girl's home.
"It is my understanding that you are conducting home visits and monitoring October's care," the letter reads. "If this is the case, I am at a loss to understand how the department can justify subjecting October to further injury."
Toward the end of the letter, Dennis wrote: "She is suffering daily, and in danger of serious injury."
By the end of the month, Hall would learn while on a trip to New York City that her granddaughter was in the hospital and probably wouldn't survive.
"Every person tells me: 'April, you did everything right,'" she said. "If I did everything right, why is my baby dead?"
While questions piled up about the division's involvement with Perez before her death, it wasn't the first time a family asked those type of questions.
Tommy Hodges, who paid for the funerals of his son and stepdaughter within three months of each other, said he made Child and Family Services aware of his concerns about each child's safety.
In April 2010, Hodges was stationed at an Army base in Georgia when he placed a call to Child and Family Services asking if someone could check on the welfare of his son, Darby, and Darby's half-sister, Kiera Pulaski. Hodges had just separated from his wife, who then moved back home to Kalispell from Georgia. The response he received from the division surprised him.
"They said they don't do that kind of thing," Hodges said. "I thought that is exactly what they do."
On June 27, 2010, Darby was found dead in his crib. The cause of death was officially listed as undetermined, but his autopsy revealed bruises on his forehead and fractures of two of his ribs. His death is under investigation.
After Darby's death, Kiera was placed in a foster home for three days as a precaution, Hodges said. After that, she was placed back into the custody of her mother, who moved to Republic, Mo., shortly after Darby's death.
Hodges called Child and Family Services in Montana to express his concerns about Kiera's safety. He again was told there was nothing the division could do. On Sept. 17, 2010, Kiera died from what an autopsy determined was blunt-force trauma to her head. She was found dead in a hotel room in Missouri, with bruises on her chin, right ear, shoulder and knees.
Her death also is under investigation.
No one has been charged in the deaths of Darby Hodges or Kiera Pulaski, but Tommy Hodges, who now lives in Shelby, is convinced their deaths could have been prevented. So is his mother, Cheryl Hodges.
"All I wanted was for them to stop by and check it out," Tommy Hodges said of the first contact he made with Child and Family Services. "They just brushed it off."
"Everything slipped through the cracks," Cheryl Hodges added.
In accordance with state law, Children and Family Services is not allowed to comment on specific cases and actions taken by the department.
However, Cory Costello, field services director for Child and Family Services, said, speaking generally, that child protection specialists don't make decisions in a vacuum.
If a caseworker is sent to a call for child protective services because of a complaint the centralized intake division received, he or she is required to make contact with supervisors, if possible, before removing the child from a home. Sometimes that doesn't happen immediately.
"The first priority is to determine if the child is safe," Costello said. "Major decision points are staffed with a supervisor."
But supervisors aren't the only ones who are involved. If a child is removed, child protection specialists have 48 hours to file an affidavit with the court to grant temporary custody of a child to the department.
Even then, if it's a case of physical abuse or neglect, medical records and examinations have to be sought, and usually police are involved.
"There's quite a lot of information," Costello said. "We do what we have to do to keep a child safe."
But if a judge rules that the department doesn't have enough information to take temporary custody of a child, that child is returned to the home at the end of the 48-hour period.
"People worry then if a child will be safe," she said. "There are all these checks and balances, which support the rights of individuals."
Montana received a grade of "C" in terms of legal representation for abused and neglected children in the second edition of a report called Child's Right to Counsel, which was produced by First Star and the Children's Advocacy Institute.
That's not surprising to Kristina Davis, executive director of the Montana Children's Defense Fund.
During the 2011 session, Montana legislators signed onto a resolution supporting the efforts of the Parental Rights Amendment to the U.S. Constitution.
The proposed federal amendment argues that federal and state governments shouldn't be able to interfere with aparent's right to parent a child.
Even though it was only a resolution, Davis said that sort of thinking — that government shouldn't intervene — makes it difficult to advance the cause of improving child protective services and the state's ability to act in the best interest of children when their parents can't or won't.
Montana also is one of 10 states that earned an "F" on a report card from First Star and the Children's Advocacy Institute when it comes to publicly disclosing child fatalities or near fatalities as a result of abuse and/or neglect.
Montana law states that not only is it a violation of confidentiality for any member of the child death review team to release information from its findings, it is also a misdemeanor crime.
National advocates say reporting of this data is crucial to understanding and developing policy that better strengthens child-protection laws.
"We're really protecting these kids to death," said Teresa Huizar, executive director of the National Children's Alliance. "I would like to see every state improve their performance."
Costello said laws in Montana are designed so that the department can intervene only when abuse and neglect happens, rather than before.
"It's more of an after-the-fact response mechanism," she said.
Costello said child-protection specialists — and the entire agency — have to work within the confines of the law, even if it's a law they don't feel is strong enough.
In the face of criticism that reuniting children with their parents — especially those that have been abusive — isn't the best policy, Costello said those critics need to listen to the children who have been a part of the system.
"When you talk to children, they will tell you they want to be connected to their roots," she said. "Even if they have been abused and neglected, they still love their parents."
Lisa Stroh was shocked when she read about Perez's death in the newspaper.
A couple of days later she found out that she was distantly related to the girl through marriage. As word got out that Child and Family Services had made contact with Perez on allegations of abuse before her death, the Blaine County schools superintendent felt like she was reading a familiar story.
As an educator, Stroh is required to report abuse if she suspects it, but she said she found herself running into walls at the division numerous times.
"I've made referrals that they've refused to take because I didn't know the birth dates of the kids," Stroh said. "If they do take a referral, they'll never tell you if they've even acted on it."
Even before Perez's death, Stroh decided that the system needed major changes. She said as much in a letter addressed to the Department of Public Health and Human Services.
"The role of this department is to keep children safe, and the people involved are not responsive when there is a critical need," she wrote in the letter, dated Oct. 26, 2010.
"After the experience I have gotten with (Child and Family Services), I will not only hesitate to report in the future, but I will also lobby my legislators and governor to have a complete audit and revision of the delivery model, because I do not believe it is meeting the tremendous needs of Montana's young people," Stroh wrote.
She said changes in the model are needed more than ever now.
While Stroh cited a lack of urgency from people who took her calls to the statewide hotline, she also faulted the system's framework for what she sees as a failure to protect children such as Perez.
"Most of the people that work for this agency truly care about children," Stroh said. "However, they are working within a system that does not have the proper checks and balances in place. Therefore, children are falling through the cracks."
Source http://www.greatfallstribune.com/article/20110904/NEWS01/109040302/Recent-tragedies-cast-doubt-Montana-s-child-protection-services?odyssey=mod%7Cnewswell%7Ctext%7CFrontpage%7Cp
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The name October Perez was on the radar of state social workers months before it made its way into headlines about her tragic death.
The 2-year-old died in June from injuries prosecutors allege were caused by abuse.
Perez's body was bruised, multiple bones were broken, her brain was swollen and she had suffered severe head trauma. She spent two days in a Salt Lake City hospital, then was taken off life support after being declared brain dead. Her mother's then-boyfriend, David Wayne Hyslop, was charged in the death of Perez. Hyslop pleaded not guilty to deliberate homicide, and a trial has been set for October.
Caseworkers from the Child and Family Services Division of the Montana Department of Public Health and Human Services had visited the house where Perez lived at least three times. Two of those visits were to investigate allegations of abuse involving the toddler, according to Child and Family Services documents obtained by the Tribune.
How the division handled the Perez case is being investigated by the Department of Public Health and Human Services, according to the agency's director.
"We've had people put on administrative leave during the investigation," Director Anna Whiting Sorrell said.
Sorrell added that other workers in the department made employment decisions, but she declined to elaborate, or to say who was put on administrative leave.
"I'm working hard every day to look at and examine this situation and circumstances around this case," Sorrell said.
From almost the moment Perez died of alleged abuse, questions swirled regarding what Child and Family Services knew about her home situation, and whether anything could or should have been done before her death.
It wasn't the first time such questions were asked.
In September 2010, 4-year-old Kiera Pulaski was found dead in Missouri less than three months after her 1-year-old half brother Darby Hodges died in Kalispell under mysterious circumstances. Family members said Child and Family Services was alerted to concerns about the children's safety before they died.
In 2009, after Kendra Bernardi's daughter went blind as a result of being slammed against a crib, she said the child protection system failed the child, Seraphina Bernardi. Alicia Jo Hocter eventually was convicted of beating the child and was sentenced to 30 years in prison. Court documents from the initial investigation indicate Child and Family Services caseworkers received five reports regarding the conditions Seraphina Bernardi and Hocter's newborn daughter lived in prior to the abuse taking place in February 2009.
Perez's death spurred a petition drive organized by Blaine County child advocate and school superintendent Lisa Stroh, as well as members of Perez's family. The petition, which called for changes in the state's child welfare system, garnered about 3,000 signatures and eventually got the attention of Gov. Brian Schweitzer. On Aug. 3, a handful of Perez's family members met with Schweitzer and Sorrell.
"They did not feel that they were listened to (by Child and Family Services workers)," Sorrell said.
According to Child and Family Services documents, three earlier allegations of maltreatment of Perez were listed as unsubstantiated. April Hall, Perez's paternal grandmother, said that Child and Family Services caseworkers also investigated a claim of abuse involving Perez's 5-year-old half brother, which he reported in April to a teacher at Head Start. That report also was found to be unsubstantiated, Hall said.
Division documents describe caseworkers first going to the home where Perez lived based on allegations that the children were in a "filthy" environment. No allegations of abuse were mentioned. Social workers checked the home, deemed that Perez was safe, and closed the case, according to the documents.
The first time Hall called the division was in January, when she noticed bruises on Perez's body that seemed to come and go. While Hall said she couldn't know for sure what caused the injuries, it was unsettling enough for her to call the child abuse hotline.
"It was just getting pretty obvious that there were things, and it wasn't natural," she said. "A child doesn't constantly have bruises on them."
What followed was a series of visits to the home where Perez lived, followed by increasing frustration from family members who kept reporting abuse but couldn't get the girl out of an environment they thought was unsafe.
"We were treated like low-lifes who didn't know what we were talking about," said Hall's sister, Mary Leibrand, who also talked to Child and Family Services social workers about Perez. "The longer we worked with them, the more pathetic it got."
Child and Family Services was back at the home in February to investigate a fracture of Perez's left arm. The break was discovered after the child was taken to the emergency room when Hall and Perez's maternal grandmother saw Perez crying uncontrollably.
X-rays revealed a fracture to Perez's left forearm, plus a healed fracture to her right forearm that an orthopedic surgeon determined to be as old as 6 weeks, the documents state.
Great Falls Police were called that same day to investigate whether Perez's injuries were caused by abuse. However, after medical professionals at Benefis Health System were unable to determine whether the fractures were caused by abuse, the police dropped the investigation. Child and Family Services listed the initial abuse claim as unsubstantiated.
"It was determined by physicians that October's buckle fracture to her left arm was caused by an accident, not by a grab or twist," the division's report states.
In every investigation, caseworkers are required to make a decision on the merit of the initial report of maltreatment, as well as on the child's safety. Although the report of abuse was found to be unsubstantiated, the caseworker made another decision regarding Perez's safety. The child was determined to be in "impending danger," which is worse than "safe," but not as severe as "present danger" under the division's guidelines.
About two months later, the division was called to investigate the abuse allegation from Perez's half-brother. The boy told a teacher at Head Start, and the teacher reported it to Child and Family Services. Hall said a caseworker checked the boy for bruises and interviewed him, but eventually decided that the report was unsubstantiated. Without division intervention, the boy was sent to live with his father in Phoenix on April 9.
Later that month, a Child and Family Services worker paid another visit to the home to investigate reports that Perez had bruises on her forehead and cheeks and some of her teeth were falling out. The caseworker who visited the home noted bruises on the girl's head but was told by someone whose name was redacted from the report the Tribune received that those bruises were from Perez running into a countertop. The maltreatment reports were found to be unsubstantiated, but Perez was again found to be in "impending danger."
During this time, Perez's biological father, Michael Arndt, was stationed in Afghanistan with the Army. He retained Great Falls attorney David Dennis in an effort to gain custody of his daughter because he thought she was in danger. Dennis wrote a letter dated June 3 to Perez's caseworker, expressing his concern about the division's visits to the girl's home.
"It is my understanding that you are conducting home visits and monitoring October's care," the letter reads. "If this is the case, I am at a loss to understand how the department can justify subjecting October to further injury."
Toward the end of the letter, Dennis wrote: "She is suffering daily, and in danger of serious injury."
By the end of the month, Hall would learn while on a trip to New York City that her granddaughter was in the hospital and probably wouldn't survive.
"Every person tells me: 'April, you did everything right,'" she said. "If I did everything right, why is my baby dead?"
While questions piled up about the division's involvement with Perez before her death, it wasn't the first time a family asked those type of questions.
Tommy Hodges, who paid for the funerals of his son and stepdaughter within three months of each other, said he made Child and Family Services aware of his concerns about each child's safety.
In April 2010, Hodges was stationed at an Army base in Georgia when he placed a call to Child and Family Services asking if someone could check on the welfare of his son, Darby, and Darby's half-sister, Kiera Pulaski. Hodges had just separated from his wife, who then moved back home to Kalispell from Georgia. The response he received from the division surprised him.
"They said they don't do that kind of thing," Hodges said. "I thought that is exactly what they do."
On June 27, 2010, Darby was found dead in his crib. The cause of death was officially listed as undetermined, but his autopsy revealed bruises on his forehead and fractures of two of his ribs. His death is under investigation.
After Darby's death, Kiera was placed in a foster home for three days as a precaution, Hodges said. After that, she was placed back into the custody of her mother, who moved to Republic, Mo., shortly after Darby's death.
Hodges called Child and Family Services in Montana to express his concerns about Kiera's safety. He again was told there was nothing the division could do. On Sept. 17, 2010, Kiera died from what an autopsy determined was blunt-force trauma to her head. She was found dead in a hotel room in Missouri, with bruises on her chin, right ear, shoulder and knees.
Her death also is under investigation.
No one has been charged in the deaths of Darby Hodges or Kiera Pulaski, but Tommy Hodges, who now lives in Shelby, is convinced their deaths could have been prevented. So is his mother, Cheryl Hodges.
"All I wanted was for them to stop by and check it out," Tommy Hodges said of the first contact he made with Child and Family Services. "They just brushed it off."
"Everything slipped through the cracks," Cheryl Hodges added.
In accordance with state law, Children and Family Services is not allowed to comment on specific cases and actions taken by the department.
However, Cory Costello, field services director for Child and Family Services, said, speaking generally, that child protection specialists don't make decisions in a vacuum.
If a caseworker is sent to a call for child protective services because of a complaint the centralized intake division received, he or she is required to make contact with supervisors, if possible, before removing the child from a home. Sometimes that doesn't happen immediately.
"The first priority is to determine if the child is safe," Costello said. "Major decision points are staffed with a supervisor."
But supervisors aren't the only ones who are involved. If a child is removed, child protection specialists have 48 hours to file an affidavit with the court to grant temporary custody of a child to the department.
Even then, if it's a case of physical abuse or neglect, medical records and examinations have to be sought, and usually police are involved.
"There's quite a lot of information," Costello said. "We do what we have to do to keep a child safe."
But if a judge rules that the department doesn't have enough information to take temporary custody of a child, that child is returned to the home at the end of the 48-hour period.
"People worry then if a child will be safe," she said. "There are all these checks and balances, which support the rights of individuals."
Montana received a grade of "C" in terms of legal representation for abused and neglected children in the second edition of a report called Child's Right to Counsel, which was produced by First Star and the Children's Advocacy Institute.
That's not surprising to Kristina Davis, executive director of the Montana Children's Defense Fund.
During the 2011 session, Montana legislators signed onto a resolution supporting the efforts of the Parental Rights Amendment to the U.S. Constitution.
The proposed federal amendment argues that federal and state governments shouldn't be able to interfere with aparent's right to parent a child.
Even though it was only a resolution, Davis said that sort of thinking — that government shouldn't intervene — makes it difficult to advance the cause of improving child protective services and the state's ability to act in the best interest of children when their parents can't or won't.
Montana also is one of 10 states that earned an "F" on a report card from First Star and the Children's Advocacy Institute when it comes to publicly disclosing child fatalities or near fatalities as a result of abuse and/or neglect.
Montana law states that not only is it a violation of confidentiality for any member of the child death review team to release information from its findings, it is also a misdemeanor crime.
National advocates say reporting of this data is crucial to understanding and developing policy that better strengthens child-protection laws.
"We're really protecting these kids to death," said Teresa Huizar, executive director of the National Children's Alliance. "I would like to see every state improve their performance."
Costello said laws in Montana are designed so that the department can intervene only when abuse and neglect happens, rather than before.
"It's more of an after-the-fact response mechanism," she said.
Costello said child-protection specialists — and the entire agency — have to work within the confines of the law, even if it's a law they don't feel is strong enough.
In the face of criticism that reuniting children with their parents — especially those that have been abusive — isn't the best policy, Costello said those critics need to listen to the children who have been a part of the system.
"When you talk to children, they will tell you they want to be connected to their roots," she said. "Even if they have been abused and neglected, they still love their parents."
Lisa Stroh was shocked when she read about Perez's death in the newspaper.
A couple of days later she found out that she was distantly related to the girl through marriage. As word got out that Child and Family Services had made contact with Perez on allegations of abuse before her death, the Blaine County schools superintendent felt like she was reading a familiar story.
As an educator, Stroh is required to report abuse if she suspects it, but she said she found herself running into walls at the division numerous times.
"I've made referrals that they've refused to take because I didn't know the birth dates of the kids," Stroh said. "If they do take a referral, they'll never tell you if they've even acted on it."
Even before Perez's death, Stroh decided that the system needed major changes. She said as much in a letter addressed to the Department of Public Health and Human Services.
"The role of this department is to keep children safe, and the people involved are not responsive when there is a critical need," she wrote in the letter, dated Oct. 26, 2010.
"After the experience I have gotten with (Child and Family Services), I will not only hesitate to report in the future, but I will also lobby my legislators and governor to have a complete audit and revision of the delivery model, because I do not believe it is meeting the tremendous needs of Montana's young people," Stroh wrote.
She said changes in the model are needed more than ever now.
While Stroh cited a lack of urgency from people who took her calls to the statewide hotline, she also faulted the system's framework for what she sees as a failure to protect children such as Perez.
"Most of the people that work for this agency truly care about children," Stroh said. "However, they are working within a system that does not have the proper checks and balances in place. Therefore, children are falling through the cracks."
Source http://www.greatfallstribune.com/article/20110904/NEWS01/109040302/Recent-tragedies-cast-doubt-Montana-s-child-protection-services?odyssey=mod%7Cnewswell%7Ctext%7CFrontpage%7Cp
Sunday, August 21, 2011
Meeting on Laura Cummings Law to be Held Monday
BUFFALO, NY - Local lawmakers say they will press even harder for passage of what is known as the Laura Cummings law to make sure social services workers can better protect vulnerable people. They're frustrated it has not been approved so far.
The law is based on the case of Laura Cummings who's own mother admitted killing her in January 2010 in their North Collins home where she was also abused by one of her brothers.
The bill, which was spurred by a 2 On Your Side investigation, would require workers from Child and Adult Protective Services to get a court order to enter a home to check on an individual after they are twice denied access. It would also go after anyone who would deny such access and that may be why the bill stalled in the Assembly according to one State Senator who sponsored the measure.
Senator George Maziarz said, "It would have made it a crime for individuals to deny access to an individual that they were harming. And I think that criminal penalty is what slowed this thing down and stopped it in the New York State Assembly. And we're gonna try to put some pressure on the Assembly when we go back...we will be going back in September."
Maziarz says the measure did pass in the State Senate and the Governor was expected to sign it. He and other members of the local delegation in the Senate and Assembly will hold a press conference on this subject Monday morning in Buffalo.
Source http://www.wgrz.com/news/article/131742/37/Meeting-on-Laura-Cummings-Law-to-be-Held-Monday
Monday, August 8, 2011
ROGERS v. COUNTY OF SAN JOAQUIN, No. 05-16071
In May 2007, the United States 9th Circuit Court of Appeals found in ROGERS v. COUNTY OF SAN JOAQUIN, No. 05-16071 that a CPS social worker who removed children from their natural parents and placed them into foster care without obtaining judicial authorization, was acting without due process and without exigency (emergency conditions) violated the 14th Amendment and Title 42 United State Code Section 1983. The Fourteenth Amendment to the United States Constitution says that a state may not make a law that abridges "... the privileges or immunities of citizens of the United States" and no state may "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Title 42 United States Code Section 1983 states that citizens can sue in federal courts any person that acting under a color of law to deprive the citizens of their civil rights under the pretext of a regulation of a state.
United States Court of Appeals,Ninth Circuit
ROGERS v. COUNTY OF SAN JOAQUIN
Thomas ROGERS; Nicole Rogers, an individual; Steven Kahncock, Guardian ad litem for minors Thomas R. Rogers and Shelby Rogers, Plaintiffs-Appellants, v. COUNTY OF SAN JOAQUIN; Charlotta Royal, individually and in her official capacity as social worker for the County of San Joaquin Human Services Agency; Denise West, individually and in her official capacity as social worker for the County of San Joaquin Human Services Agency; City of Lodi; Dennis Lewis, individually and in his capacity as police officer for the City of Lodi, Defendants-Appellees.
No. 05-16071.
Argued and Submitted April 16, 2007. -- May 29, 2007
Before: WARREN J. FERGUSON, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.
David J. Beauvais, Oakland, CA, for the plaintiffs-appellants.Daniel C. Cederborg, Office of the County Counsel, County of San Joaquin, Stockton, CA, for the defendants-appellees.
The Rogers family brought this action under 42 U.S.C. § 1983, alleging that the conduct of social worker Charlotta Royal in removing the Rogers children from their home without a warrant violated their Fourth and Fourteenth Amendment rights. Both parties filed motions for summary judgment, although the Rogerses' was as to liability only. The district court granted Royal's motion on the basis of qualified immunity. Because we hold that it was clearly established that warrantless removal of children is permissible only in cases of exigency, and that it would have been apparent to a reasonable social worker that no exigency existed in this case, we reverse both the grant of summary judgment to Royal and the denial of partial summary judgment to the Rogerses.
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2001, San Joaquin County Child Protective Services received a report of child neglect in the Rogers home. The caller stated that three-year-old Shelby Rogers (“Shelby”) and five-year-old Thomas Rogers, Jr. (“Tommy”) were not toilet-trained, were locked in their rooms at night and in a room at their parents' business during the day, were not receiving medical or dental care, that Tommy had lost his teeth due to bottle rot, that Shelby was still being fed with a bottle, that their home was dirty and maggot-infested, and that there were unsecured guns in the home. The intake unit did not view this report as requiring an emergency response, but rather classified it as warranting a response within ten days.1 Three days later, before any action had been taken to investigate the report, Child Protective Services received a second, similar report regarding the Rogers children and likewise classified it as requiring a ten-day response.
On August 31, Royal, a social worker with Child Protective Services, visited the Rogers home, but, finding no one there, departed without leaving a message or a note. She returned a week later, on September 7 at 8:30 a.m. Observing that the family was home, Royal called for the assistance of Lodi Police and waited for the officers to arrive before making contact with the family. Officer Dennis Lewis and at least one other police officer responded.
The family was just getting up when Royal and the officers entered their home.2 Royal claimed that following her entry she heard Shelby knocking and asking for her mother from inside a bedroom. The mother, Nicole Rogers (“Nicole”), claims, however, that Shelby was neither knocking nor calling for her.
Officer Lewis asked to see the whole family. Nicole went to Shelby's bedroom and unfastened a latch-type lock to open the door. Shelby emerged from the room dressed in a diaper that, according to Royal, appeared to be soiled. Nicole then retrieved Tommy from his bedroom. Tommy emerged wearing pajamas and a pull-up diaper. Royal saw a thumb lock similar to those used in bathroom doors on the outside of Tommy's bedroom door. Royal believed that both children had been locked in their bedrooms, but Nicole testified that Tommy's bedroom door was not locked. The father, Thomas Rogers (“Thomas”), also got out of bed to talk with Royal and Officer Lewis.
Royal asked why the children had locks on their bedroom doors. Nicole testified that she told Royal that they had never locked Tommy's door, that his room had a lock on the door when they moved into the house, and that they had simply never removed it. According to her testimony, she also stated that they locked Shelby in her room at night because otherwise she would roam the house and get into things while the rest of the family was sleeping. However, Royal testified that Nicole first stated that she locked the children in their rooms only when she showered, and that only after Royal pointed out that Nicole had not been showering when they arrived did she say that she locked Shelby in at night. Royal testified that she believed Nicole had tried to lie to her and that this concerned her. She said that she was also concerned about the children being locked in their bedrooms because it could result in injury due to lack of supervision or as a result of a fire, and could restrict their access to the bathroom. Royal told the Rogerses that they would have to remove the locks. Nicole testified that she agreed to do so, but Royal contended that the Rogerses did not respond to her statement.
Royal asked why the children were still in diapers. The Rogerses testified that they replied that they were “working with” Tommy, and that while they put a pull-up diaper on him at night, he was “doing good during the day.” They said that Shelby was not yet toilet-trained. Royal testified, however, that Nicole told her that “she hadn't had time” to toilet-train the children.
Royal and Officer Lewis inspected Tommy's mouth. Tommy suffered from severe bottle rot. Several of his teeth were missing and his remaining teeth were yellow and showed signs of decay. His mother acknowledged during her deposition that Tommy's mouth had looked “horrible.” Nicole told Royal that Tommy had never complained of pain. She said that a dentist had told her that Tommy needed surgery, and she had scheduled an appointment but cancelled it out of fear that Tommy would be harmed, after she and her husband saw a television program about a child dying while under general anesthesia. Royal testified that she believed that this meant the Rogerses were unwilling to take Tommy to the dentist.
Royal asked if the family had medical insurance. According to Nicole, she answered that they did not have medical insurance at the moment but that she was waiting for an application, at which point Royal asked for proof that she had ever had insurance and Nicole showed her old membership cards for Kaiser. Nicole testified that Royal then asked her if the cards were active and she replied that they were not. Royal, however, stated that Nicole first told her that they had medical insurance and then attempted to deceive her by showing her inactive cards when she asked for proof. This, according to Royal, caused her further to doubt Nicole's honesty.
Royal observed that the children had multiple circular bruises on their legs. Nicole stated that the children were always falling down. Royal also observed that Shelby had a large scratch on the side of her face. Nicole and Thomas told Royal that Shelby sustained the scratch when she fell off a chair at their workplace. They explained that they worked in an auto shop in San Leandro and that they took the children with them to work every day. Royal testified that she did not think that the children were being physically abused. She was concerned, however, that, because the children were taken to their parents' place of business every day, they were isolated and would not be seen by pre-school teachers or others who would be required to report suspected abuse.
Royal also observed that Shelby had unkempt hair that appeared to be thin and missing in some areas and that both children were very pale. She believed that the thinning hair could indicate malnutrition and the pale skin could be due to a vitamin deficiency or lack of sunlight. She observed, however, that the refrigerator and kitchen cabinets were well stocked with food and that the bathroom had the necessary toiletries. She told the Rogerses that the children looked very pale and sickly, and that they could be suffering from a vitamin deficiency or from lack of sunlight. Nicole responded that their pale complexion and Shelby's thin hair were due to the fact that their father has pale skin and fine hair.
The parties dispute the condition of the Rogers home. Royal and Officer Lewis stated that they observed piles of dirty dishes and an overflowing garbage receptacle in the kitchen, as well as piles of dirty clothing scattered about the kitchen, living room and bedrooms. Thomas testified, however, that the garbage receptacles were only partly full. He also testified that the reason for the piles of clothing was that the washer and dryer were broken.
Royal stated that she observed that the children had dirty bedding and mattresses without frames. In Shelby's room, she saw clothing that she believed was dirty scattered on the floor. The Rogerses do not dispute that the children did not have bedframes, but testified that the clothing and bedding were clean. Thomas also testified that Shelby's clothes were on the floor because she had a habit of pulling them out of her dresser to play dress-up. In Tommy's room, Royal observed a brown substance that she believed to be feces smeared on the wall and a substance that she thought was rat droppings on the floor. Officer Lewis observed what he thought was vomit in the bottom drawer of a night stand. Tommy told Royal that the substance on the wall was a smashed graham cracker. The Rogerses testified that the alleged rat droppings on the floor actually consisted of small grains of filling that came out of a broken hacky sack ball, and the purported vomit, like the smears on the wall, was the remains of broken graham crackers.
There were five guns in the Rogerses' bedroom, four of which were unloaded and stored in the closet, and one of which was loaded and kept in the dresser next to the Rogerses' bed. Thomas testified that ammunition for the guns remained in the closet in a childproof container. Nicole testified that the gun in the dresser had a trigger lock with a key, and the key was located in a jewelry box mounted on the wall.
Royal stated that after her conversation with the Rogerses and her observations of the condition of the home, she believed that the Rogers children had been neglected for some time and that there was an imminent risk to their physical health and safety. Based on this opinion, Royal chose to remove them from their home immediately and place them in the custody of Child Protective Services.3 Royal did not offer the Rogerses alternative accommodations, medical referrals for the children, or services from the agency whereby the children could remain at home. Royal also did not obtain a warrant.
Royal called for a car seat and, when it arrived, transported the children to Lodi Memorial Hospital. She testified that Tommy complained of mouth pain while at the hospital. She also testified that an attending nurse stated that the children appeared to be malnourished and suffering from a vitamin deficiency. The doctor who saw the children stated in his evaluation that both were “alert” and “playful,” but had “poor hygiene.” The doctor wrote that Tommy had “many teeth missing” and that Shelby's hair was “sparse, brittle.” The doctor also wrote that the purpose of the visit was “medical clearance prior to [Child Protective Services] placement” and classified the visit as routine rather than emergency.
After the medical clearance the children were placed in a shelter. Tommy did not receive any dental care that day or at any time while in the County's custody. The children were returned to their parents on September 20, 2001, after the Rogerses made changes to their home and lifestyle as required by Child Protective Services, obtained medical insurance, and arranged for Tommy to have oral surgery. As a result of their time in custody, according to their mother, the children became concerned about being separated from their parents. Nicole further testified that Tommy, in particular, “lost trust in people in general” because of the experience.
The Rogerses appealed the grant of summary judgment to Royal as well as the denial of their own motion for partial summary judgment as to Royal.
JURISDICTION
The grant of summary judgment is a final order and thereby gives us jurisdiction over both the grant of summary judgment to Royal and the denial of partial summary judgment to the Rogerses. See Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 694 (9th Cir.1992). We have declined to exercise our jurisdiction over denials of summary judgment when reviewing orders granting summary judgment where the record has not been fully developed. Id. at 694 n. 2. Such is not the case here. Moreover, both sides agree that the denial of the Rogerses' motion is properly before us on appeal.
QUALIFIED IMMUNITY
I. Constitutional violation:
In assessing a claim of qualified immunity, we must first decide whether “the [official's] conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “Parents and children have a well-elaborated constitutional right to live together without governmental interference.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir.2000). “The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.” Mabe v. San Bernardino County, Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir.2001). Officials violate this right if they remove a child from the home absent “information at the time of the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.’ ” Id. at 1106 (quoting Wallis, 202 F.3d at 1138). The Fourth Amendment also protects children from removal from their homes absent such a showing. Doe v. Lebbos, 348 F.3d 820, 827 n. 9 (9th Cir.2003). Officials, including social workers, who remove a child from its home without a warrant must have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant. Mabe, 237 F.3d at 1108.
Serious allegations of abuse that have been investigated and corroborated usually give rise to a “reasonable inference of imminent danger sufficient to justify taking children into temporary custody” if they might again be beaten or molested during the time it would take to get a warrant. Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir.1997). However, an official's prior willingness to leave the children in their home militates against a finding of exigency, as does information that the abuse occurs only on certain dates or at certain times of day. Mabe, 237 F.3d at 1108; Wallis, 202 F.3d at 1140.
Under this standard, the district court correctly concluded that Tommy's bottle rot, the children's malnourishment, and the disorderly conditions in the home did not present an imminent risk of serious bodily harm. This is so whether the disputed factual questions are resolved in favor of appellants or defendants.
At oral argument, Royal conceded that she could have obtained a warrant within hours. There is no indication in the record that so short a delay could have resulted in a significant worsening of the children's physical conditions or an increase in the prospects of long-term harm. Royal testified that she thought, after seeing Tommy's mouth, that he could have an abscess and that he almost certainly had an infection. However, she does not assert that she believed that his condition would worsen if she delayed taking him into custody in order to obtain a warrant. Tommy's teeth may have hurt, but, if so, he had likely been experiencing such pain for a considerable period of time and the “pain” was not so serious that he ceased to be “playful” and “alert.” Under such circumstances, any pain Tommy may have experienced cannot justify a failure to obtain a warrant or the peremptory removal of the children from their parents' custody. Similarly, Royal's testimony, even viewed in the light most favorable to her, does not suggest that the malnourishment in this case was sufficiently serious to justify the children's immediate removal as both were alert and active, and there was no indication of imminent danger. It is worth noting in this respect that when the children eventually reached the hospital, the doctor did not suggest any immediate treatment for Tommy's bottle rot or Shelby's malnutrition.4
Nor do the other circumstances cited by Royal support a finding of exigency, even if her version of all the disputed facts is accepted as true, and even if all of the conditions observed by her are considered collectively. There was no imminent danger of serious bodily harm as a result of Shelby being locked in her room, as this occurred only at night. Cf. Mabe, 237 F.3d at 1108 (concluding that the sexual abuse alleged in that case occurred only at night, so there was time to get a warrant before the child would be in imminent danger). The allegations that the children were also locked up during the day at their parents' workplace, even if true, do not support a finding of imminent risk of serious bodily harm. The chances of accidental injury or of a fire breaking out at the Rogerses' workplace during the few hours that it would take Royal to obtain a warrant were very low. So remote a risk does not establish reasonable cause to believe that the children were in immediate danger.
Similarly, the conditions of the home, even if as unsanitary as Royal asserts, fail to indicate any imminent risk of serious bodily harm. Like the bottle rot, the mess in the Rogers living quarters, to the extent that it may have existed, was a chronic, ongoing problem. The presence of disorderliness and a small amount of droppings, feces, and other matter may increase the risk of eventual illness, but there is no indication in the record of any particular risk that the Rogers children would become seriously ill during the few hours that it would take Royal to obtain a warrant. Likewise, it would have presented no risk to the children to delay the commencement of their toilet-training for a few hours while Royal followed the requisite legal procedures.
Royal also relies on the family's lack of medical insurance and daycare. These conditions present no imminent danger of harm, and Royal does not argue otherwise. Thus, they, too, provide no support for the warrantless removal. It would certainly be preferable for all children to have medical insurance and quality daycare; given the absence of universal provision of such services, however, reliance on factors so closely related to economic status as a justification for removal would border on the unconstitutional.
Royal also argues that the cumulative effect of all of the problems in the Rogers household placed the children in imminent danger. However, her argument falls far short of the mark. Even viewing the factors cumulatively, we have no doubt that there was no imminent danger to either or both of the Rogers children.
Our conclusion that no exigency existed here is also supported by the fact that the Child Protective Services delayed in investigating the case and in removing the children. See Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir.1999) (holding that a 14-day delay by social workers in entering the family home to investigate a report of abuse is evidence of lack of exigency). Here, the concerned officials classified the case as a ten-day response, indicating that they did not think that any exigency existed. In fact, Royal waited until eleven days after the first referral to visit the house for the first time, and an additional seven days, following the first aborted visit, before returning, for a total delay of eighteen days, four days longer than the delay in Calabretta. That neither Royal nor the other staff members thought that the allegations required immediate action militates against a finding of exigency. When Royal finally returned to the Rogers home, the evidence she observed may, at most, have supported the anonymous tips received by the Services; it is evident, however, that it provided no basis for concern regarding any additional cause of imminent injuries. Royal's actions after seeing the children also tend to support the view that the circumstances were not exigent. Instead of taking prompt action to obtain medical care as we would have expected her to do if she believed that the children faced imminent danger of serious harm to their health, Royal spent close to two hours talking with the family before deciding to remove the children from the parental home. She further delayed in order to wait for someone to bring a car seat rather than calling for an ambulance or other emergency transport. Although Royal did take the children to the hospital when she finally decided to place them in custody, the visit was treated by hospital staff as a routine screening visit, not as an emergency call.
In sum, whether we accept the version of the facts offered by the Rogerses or by Royal, there is no support at all in the record for the conclusion that the Rogers children were likely in imminent danger of serious bodily harm. Thus, we hold that, under any view of the facts, the Rogerses' Fourth and Fourteenth Amendment rights were violated when Royal removed the children without a warrant.
II. Reasonable Official:
In order to assess Royal's claim of qualified immunity, we must conduct a two-part analysis: “1) Was the law governing the official's conduct clearly established? 2) Under that law, could a reasonable [official] have believed the conduct was lawful?” Ram, 118 F.3d at 1310 (quoting Carnell v. Grimm, 74 F.3d 977, 978 (9th Cir.1996)). The law was clearly established at the time of the events in this case that a child could not be removed from the home without prior judicial authorization absent evidence of “imminent danger of serious bodily injury and [unless] the scope of the intrusion is reasonably necessary to avert that specific injury.” Mabe, 237 F.3d at 1106; Wallis, 202 F.3d at 1138; Ram, 118 F.3d at 1310.
Notwithstanding this clearly established law, the district court granted Royal qualified immunity, holding that the application of the law to medical neglect was not clearly established. However, it is not necessary that a case be on “all fours” with the facts of the instant case. A right is clearly established if “[t]he contours of the right[are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Prior to the events in question, we had repeatedly held that a family's rights were violated if the children were removed absent an imminent risk of serious bodily harm. A reasonable social worker would need nothing more to understand that she may not remove a child from its home on the basis of a medical condition that does not present such a risk.
The district court appeared to be concerned that social workers may have difficulty assessing the imminence of a threat from a particular malady. On that basis, it concluded that without a case specifically analyzing exigency in cases of bottle rot and malnutrition social workers would not be able to determine whether those conditions present an imminent risk of serious bodily harm. Even if it might be difficult for a social worker without medical training to assess the imminence of the threat posed by some dangerous maladies, such is not the case here. One need not be a licensed physician to recognize that in the case of a child who is both alert and active neither bottle rot nor malnutrition is the type of condition that will lead to serious injury if not corrected within a matter of hours. A reasonable social worker could reach no other conclusion. Even Royal stated during her deposition that in her opinion bottle rot does not amount to exigency. Thus, because a reasonable social worker would have understood that the children faced no imminent risk of serious bodily harm, as required by clearly established law, the district court erred in granting qualified immunity to Royal and denying partial summary judgment to the Rogerses.
CONCLUSION
Child abuse and neglect are very serious problems. We applaud the efforts of social workers to address these matters and to protect the vulnerable victims of these crimes. “No one can doubt the importance of this goal.” Cf. Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). However, the rights of families to be free from governmental interference and arbitrary state action are also important. Thus, we must balance, on the one hand, the need to protect children from abuse and neglect and, on the other, the preservation of the essential privacy and liberty interests that families are guaranteed under both the Fourth and Fourteenth Amendments of our Constitution.
Assuming Royal's version of the facts, the Rogers children were in a sorry state and suffering from neglect of a type that could, if their parents' conduct was not modified within a reasonable period of time, lead to long-term harm. Still, the conditions here did not present an imminent risk of serious bodily harm. It would have taken Royal only a few hours to obtain a warrant. In removing the reasonable period of time, lead to long-term harm. Still, the conditions here did not present an imminent risk of serious bodily harm. It would have taken Royal only a few hours to obtain a warrant. In removing the Rogers children from their home without obtaining judicial authorization, Royal violated the Rogerses' clearly established Fourth and Fourteenth Amendment rights. The lack of exigency would have been apparent to any reasonable social worker. Accordingly, we conclude that the district court erred in granting qualified immunity to Royal and in denying the Rogerses' motion for partial summary judgment as to Royal.
We REVERSE the grant of summary judgment to Royal and we likewise REVERSE the denial of the Rogerses' partial summary judgment motion with respect to her. We REMAND with instructions to grant partial summary judgment to the Rogerses and for further proceedings consistent with this opinion.
REVERSED and REMANDED.
FOOTNOTES
1. Royal testified that the criteria that separate an emergency response from a ten-day response case varies, but examples of emergency response situations would be physical abuse or sexual abuse when the perpetrator is in the home, or the absence of food from the home.
2. The parties debate whether the Rogerses consented to the entry, but that issue is not before us on appeal. Thus, our decision does not apply to that question, to the extent that it may still be viable in the district court.
3. Royal and Officer Lewis dispute who made the decision to remove the children, with both claiming that the other did so. Royal concedes, however, that this factual dispute is not relevant to the outcome of this appeal because she was ultimately responsible for the decision and could have countermanded it if she had disagreed.
4. Although only the information that Royal had at the time that she made the challenged decision is relevant to the qualified immunity inquiry, the doctor's response is relevant to the question of how serious the children's conditions would have appeared to the reasonable social worker. Baker v. Racansky, 887 F.2d 183, 185 n. 1 (9th Cir.1989).
REINHARDT, Circuit Judge.
United States Court of Appeals,Ninth Circuit
ROGERS v. COUNTY OF SAN JOAQUIN
Thomas ROGERS; Nicole Rogers, an individual; Steven Kahncock, Guardian ad litem for minors Thomas R. Rogers and Shelby Rogers, Plaintiffs-Appellants, v. COUNTY OF SAN JOAQUIN; Charlotta Royal, individually and in her official capacity as social worker for the County of San Joaquin Human Services Agency; Denise West, individually and in her official capacity as social worker for the County of San Joaquin Human Services Agency; City of Lodi; Dennis Lewis, individually and in his capacity as police officer for the City of Lodi, Defendants-Appellees.
No. 05-16071.
Argued and Submitted April 16, 2007. -- May 29, 2007
Before: WARREN J. FERGUSON, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.
David J. Beauvais, Oakland, CA, for the plaintiffs-appellants.Daniel C. Cederborg, Office of the County Counsel, County of San Joaquin, Stockton, CA, for the defendants-appellees.
The Rogers family brought this action under 42 U.S.C. § 1983, alleging that the conduct of social worker Charlotta Royal in removing the Rogers children from their home without a warrant violated their Fourth and Fourteenth Amendment rights. Both parties filed motions for summary judgment, although the Rogerses' was as to liability only. The district court granted Royal's motion on the basis of qualified immunity. Because we hold that it was clearly established that warrantless removal of children is permissible only in cases of exigency, and that it would have been apparent to a reasonable social worker that no exigency existed in this case, we reverse both the grant of summary judgment to Royal and the denial of partial summary judgment to the Rogerses.
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2001, San Joaquin County Child Protective Services received a report of child neglect in the Rogers home. The caller stated that three-year-old Shelby Rogers (“Shelby”) and five-year-old Thomas Rogers, Jr. (“Tommy”) were not toilet-trained, were locked in their rooms at night and in a room at their parents' business during the day, were not receiving medical or dental care, that Tommy had lost his teeth due to bottle rot, that Shelby was still being fed with a bottle, that their home was dirty and maggot-infested, and that there were unsecured guns in the home. The intake unit did not view this report as requiring an emergency response, but rather classified it as warranting a response within ten days.1 Three days later, before any action had been taken to investigate the report, Child Protective Services received a second, similar report regarding the Rogers children and likewise classified it as requiring a ten-day response.
On August 31, Royal, a social worker with Child Protective Services, visited the Rogers home, but, finding no one there, departed without leaving a message or a note. She returned a week later, on September 7 at 8:30 a.m. Observing that the family was home, Royal called for the assistance of Lodi Police and waited for the officers to arrive before making contact with the family. Officer Dennis Lewis and at least one other police officer responded.
The family was just getting up when Royal and the officers entered their home.2 Royal claimed that following her entry she heard Shelby knocking and asking for her mother from inside a bedroom. The mother, Nicole Rogers (“Nicole”), claims, however, that Shelby was neither knocking nor calling for her.
Officer Lewis asked to see the whole family. Nicole went to Shelby's bedroom and unfastened a latch-type lock to open the door. Shelby emerged from the room dressed in a diaper that, according to Royal, appeared to be soiled. Nicole then retrieved Tommy from his bedroom. Tommy emerged wearing pajamas and a pull-up diaper. Royal saw a thumb lock similar to those used in bathroom doors on the outside of Tommy's bedroom door. Royal believed that both children had been locked in their bedrooms, but Nicole testified that Tommy's bedroom door was not locked. The father, Thomas Rogers (“Thomas”), also got out of bed to talk with Royal and Officer Lewis.
Royal asked why the children had locks on their bedroom doors. Nicole testified that she told Royal that they had never locked Tommy's door, that his room had a lock on the door when they moved into the house, and that they had simply never removed it. According to her testimony, she also stated that they locked Shelby in her room at night because otherwise she would roam the house and get into things while the rest of the family was sleeping. However, Royal testified that Nicole first stated that she locked the children in their rooms only when she showered, and that only after Royal pointed out that Nicole had not been showering when they arrived did she say that she locked Shelby in at night. Royal testified that she believed Nicole had tried to lie to her and that this concerned her. She said that she was also concerned about the children being locked in their bedrooms because it could result in injury due to lack of supervision or as a result of a fire, and could restrict their access to the bathroom. Royal told the Rogerses that they would have to remove the locks. Nicole testified that she agreed to do so, but Royal contended that the Rogerses did not respond to her statement.
Royal asked why the children were still in diapers. The Rogerses testified that they replied that they were “working with” Tommy, and that while they put a pull-up diaper on him at night, he was “doing good during the day.” They said that Shelby was not yet toilet-trained. Royal testified, however, that Nicole told her that “she hadn't had time” to toilet-train the children.
Royal and Officer Lewis inspected Tommy's mouth. Tommy suffered from severe bottle rot. Several of his teeth were missing and his remaining teeth were yellow and showed signs of decay. His mother acknowledged during her deposition that Tommy's mouth had looked “horrible.” Nicole told Royal that Tommy had never complained of pain. She said that a dentist had told her that Tommy needed surgery, and she had scheduled an appointment but cancelled it out of fear that Tommy would be harmed, after she and her husband saw a television program about a child dying while under general anesthesia. Royal testified that she believed that this meant the Rogerses were unwilling to take Tommy to the dentist.
Royal asked if the family had medical insurance. According to Nicole, she answered that they did not have medical insurance at the moment but that she was waiting for an application, at which point Royal asked for proof that she had ever had insurance and Nicole showed her old membership cards for Kaiser. Nicole testified that Royal then asked her if the cards were active and she replied that they were not. Royal, however, stated that Nicole first told her that they had medical insurance and then attempted to deceive her by showing her inactive cards when she asked for proof. This, according to Royal, caused her further to doubt Nicole's honesty.
Royal observed that the children had multiple circular bruises on their legs. Nicole stated that the children were always falling down. Royal also observed that Shelby had a large scratch on the side of her face. Nicole and Thomas told Royal that Shelby sustained the scratch when she fell off a chair at their workplace. They explained that they worked in an auto shop in San Leandro and that they took the children with them to work every day. Royal testified that she did not think that the children were being physically abused. She was concerned, however, that, because the children were taken to their parents' place of business every day, they were isolated and would not be seen by pre-school teachers or others who would be required to report suspected abuse.
Royal also observed that Shelby had unkempt hair that appeared to be thin and missing in some areas and that both children were very pale. She believed that the thinning hair could indicate malnutrition and the pale skin could be due to a vitamin deficiency or lack of sunlight. She observed, however, that the refrigerator and kitchen cabinets were well stocked with food and that the bathroom had the necessary toiletries. She told the Rogerses that the children looked very pale and sickly, and that they could be suffering from a vitamin deficiency or from lack of sunlight. Nicole responded that their pale complexion and Shelby's thin hair were due to the fact that their father has pale skin and fine hair.
The parties dispute the condition of the Rogers home. Royal and Officer Lewis stated that they observed piles of dirty dishes and an overflowing garbage receptacle in the kitchen, as well as piles of dirty clothing scattered about the kitchen, living room and bedrooms. Thomas testified, however, that the garbage receptacles were only partly full. He also testified that the reason for the piles of clothing was that the washer and dryer were broken.
Royal stated that she observed that the children had dirty bedding and mattresses without frames. In Shelby's room, she saw clothing that she believed was dirty scattered on the floor. The Rogerses do not dispute that the children did not have bedframes, but testified that the clothing and bedding were clean. Thomas also testified that Shelby's clothes were on the floor because she had a habit of pulling them out of her dresser to play dress-up. In Tommy's room, Royal observed a brown substance that she believed to be feces smeared on the wall and a substance that she thought was rat droppings on the floor. Officer Lewis observed what he thought was vomit in the bottom drawer of a night stand. Tommy told Royal that the substance on the wall was a smashed graham cracker. The Rogerses testified that the alleged rat droppings on the floor actually consisted of small grains of filling that came out of a broken hacky sack ball, and the purported vomit, like the smears on the wall, was the remains of broken graham crackers.
There were five guns in the Rogerses' bedroom, four of which were unloaded and stored in the closet, and one of which was loaded and kept in the dresser next to the Rogerses' bed. Thomas testified that ammunition for the guns remained in the closet in a childproof container. Nicole testified that the gun in the dresser had a trigger lock with a key, and the key was located in a jewelry box mounted on the wall.
Royal stated that after her conversation with the Rogerses and her observations of the condition of the home, she believed that the Rogers children had been neglected for some time and that there was an imminent risk to their physical health and safety. Based on this opinion, Royal chose to remove them from their home immediately and place them in the custody of Child Protective Services.3 Royal did not offer the Rogerses alternative accommodations, medical referrals for the children, or services from the agency whereby the children could remain at home. Royal also did not obtain a warrant.
Royal called for a car seat and, when it arrived, transported the children to Lodi Memorial Hospital. She testified that Tommy complained of mouth pain while at the hospital. She also testified that an attending nurse stated that the children appeared to be malnourished and suffering from a vitamin deficiency. The doctor who saw the children stated in his evaluation that both were “alert” and “playful,” but had “poor hygiene.” The doctor wrote that Tommy had “many teeth missing” and that Shelby's hair was “sparse, brittle.” The doctor also wrote that the purpose of the visit was “medical clearance prior to [Child Protective Services] placement” and classified the visit as routine rather than emergency.
After the medical clearance the children were placed in a shelter. Tommy did not receive any dental care that day or at any time while in the County's custody. The children were returned to their parents on September 20, 2001, after the Rogerses made changes to their home and lifestyle as required by Child Protective Services, obtained medical insurance, and arranged for Tommy to have oral surgery. As a result of their time in custody, according to their mother, the children became concerned about being separated from their parents. Nicole further testified that Tommy, in particular, “lost trust in people in general” because of the experience.
The Rogerses appealed the grant of summary judgment to Royal as well as the denial of their own motion for partial summary judgment as to Royal.
JURISDICTION
The grant of summary judgment is a final order and thereby gives us jurisdiction over both the grant of summary judgment to Royal and the denial of partial summary judgment to the Rogerses. See Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 694 (9th Cir.1992). We have declined to exercise our jurisdiction over denials of summary judgment when reviewing orders granting summary judgment where the record has not been fully developed. Id. at 694 n. 2. Such is not the case here. Moreover, both sides agree that the denial of the Rogerses' motion is properly before us on appeal.
QUALIFIED IMMUNITY
I. Constitutional violation:
In assessing a claim of qualified immunity, we must first decide whether “the [official's] conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “Parents and children have a well-elaborated constitutional right to live together without governmental interference.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir.2000). “The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.” Mabe v. San Bernardino County, Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir.2001). Officials violate this right if they remove a child from the home absent “information at the time of the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.’ ” Id. at 1106 (quoting Wallis, 202 F.3d at 1138). The Fourth Amendment also protects children from removal from their homes absent such a showing. Doe v. Lebbos, 348 F.3d 820, 827 n. 9 (9th Cir.2003). Officials, including social workers, who remove a child from its home without a warrant must have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant. Mabe, 237 F.3d at 1108.
Serious allegations of abuse that have been investigated and corroborated usually give rise to a “reasonable inference of imminent danger sufficient to justify taking children into temporary custody” if they might again be beaten or molested during the time it would take to get a warrant. Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir.1997). However, an official's prior willingness to leave the children in their home militates against a finding of exigency, as does information that the abuse occurs only on certain dates or at certain times of day. Mabe, 237 F.3d at 1108; Wallis, 202 F.3d at 1140.
Under this standard, the district court correctly concluded that Tommy's bottle rot, the children's malnourishment, and the disorderly conditions in the home did not present an imminent risk of serious bodily harm. This is so whether the disputed factual questions are resolved in favor of appellants or defendants.
At oral argument, Royal conceded that she could have obtained a warrant within hours. There is no indication in the record that so short a delay could have resulted in a significant worsening of the children's physical conditions or an increase in the prospects of long-term harm. Royal testified that she thought, after seeing Tommy's mouth, that he could have an abscess and that he almost certainly had an infection. However, she does not assert that she believed that his condition would worsen if she delayed taking him into custody in order to obtain a warrant. Tommy's teeth may have hurt, but, if so, he had likely been experiencing such pain for a considerable period of time and the “pain” was not so serious that he ceased to be “playful” and “alert.” Under such circumstances, any pain Tommy may have experienced cannot justify a failure to obtain a warrant or the peremptory removal of the children from their parents' custody. Similarly, Royal's testimony, even viewed in the light most favorable to her, does not suggest that the malnourishment in this case was sufficiently serious to justify the children's immediate removal as both were alert and active, and there was no indication of imminent danger. It is worth noting in this respect that when the children eventually reached the hospital, the doctor did not suggest any immediate treatment for Tommy's bottle rot or Shelby's malnutrition.4
Nor do the other circumstances cited by Royal support a finding of exigency, even if her version of all the disputed facts is accepted as true, and even if all of the conditions observed by her are considered collectively. There was no imminent danger of serious bodily harm as a result of Shelby being locked in her room, as this occurred only at night. Cf. Mabe, 237 F.3d at 1108 (concluding that the sexual abuse alleged in that case occurred only at night, so there was time to get a warrant before the child would be in imminent danger). The allegations that the children were also locked up during the day at their parents' workplace, even if true, do not support a finding of imminent risk of serious bodily harm. The chances of accidental injury or of a fire breaking out at the Rogerses' workplace during the few hours that it would take Royal to obtain a warrant were very low. So remote a risk does not establish reasonable cause to believe that the children were in immediate danger.
Similarly, the conditions of the home, even if as unsanitary as Royal asserts, fail to indicate any imminent risk of serious bodily harm. Like the bottle rot, the mess in the Rogers living quarters, to the extent that it may have existed, was a chronic, ongoing problem. The presence of disorderliness and a small amount of droppings, feces, and other matter may increase the risk of eventual illness, but there is no indication in the record of any particular risk that the Rogers children would become seriously ill during the few hours that it would take Royal to obtain a warrant. Likewise, it would have presented no risk to the children to delay the commencement of their toilet-training for a few hours while Royal followed the requisite legal procedures.
Royal also relies on the family's lack of medical insurance and daycare. These conditions present no imminent danger of harm, and Royal does not argue otherwise. Thus, they, too, provide no support for the warrantless removal. It would certainly be preferable for all children to have medical insurance and quality daycare; given the absence of universal provision of such services, however, reliance on factors so closely related to economic status as a justification for removal would border on the unconstitutional.
Royal also argues that the cumulative effect of all of the problems in the Rogers household placed the children in imminent danger. However, her argument falls far short of the mark. Even viewing the factors cumulatively, we have no doubt that there was no imminent danger to either or both of the Rogers children.
Our conclusion that no exigency existed here is also supported by the fact that the Child Protective Services delayed in investigating the case and in removing the children. See Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir.1999) (holding that a 14-day delay by social workers in entering the family home to investigate a report of abuse is evidence of lack of exigency). Here, the concerned officials classified the case as a ten-day response, indicating that they did not think that any exigency existed. In fact, Royal waited until eleven days after the first referral to visit the house for the first time, and an additional seven days, following the first aborted visit, before returning, for a total delay of eighteen days, four days longer than the delay in Calabretta. That neither Royal nor the other staff members thought that the allegations required immediate action militates against a finding of exigency. When Royal finally returned to the Rogers home, the evidence she observed may, at most, have supported the anonymous tips received by the Services; it is evident, however, that it provided no basis for concern regarding any additional cause of imminent injuries. Royal's actions after seeing the children also tend to support the view that the circumstances were not exigent. Instead of taking prompt action to obtain medical care as we would have expected her to do if she believed that the children faced imminent danger of serious harm to their health, Royal spent close to two hours talking with the family before deciding to remove the children from the parental home. She further delayed in order to wait for someone to bring a car seat rather than calling for an ambulance or other emergency transport. Although Royal did take the children to the hospital when she finally decided to place them in custody, the visit was treated by hospital staff as a routine screening visit, not as an emergency call.
In sum, whether we accept the version of the facts offered by the Rogerses or by Royal, there is no support at all in the record for the conclusion that the Rogers children were likely in imminent danger of serious bodily harm. Thus, we hold that, under any view of the facts, the Rogerses' Fourth and Fourteenth Amendment rights were violated when Royal removed the children without a warrant.
II. Reasonable Official:
In order to assess Royal's claim of qualified immunity, we must conduct a two-part analysis: “1) Was the law governing the official's conduct clearly established? 2) Under that law, could a reasonable [official] have believed the conduct was lawful?” Ram, 118 F.3d at 1310 (quoting Carnell v. Grimm, 74 F.3d 977, 978 (9th Cir.1996)). The law was clearly established at the time of the events in this case that a child could not be removed from the home without prior judicial authorization absent evidence of “imminent danger of serious bodily injury and [unless] the scope of the intrusion is reasonably necessary to avert that specific injury.” Mabe, 237 F.3d at 1106; Wallis, 202 F.3d at 1138; Ram, 118 F.3d at 1310.
Notwithstanding this clearly established law, the district court granted Royal qualified immunity, holding that the application of the law to medical neglect was not clearly established. However, it is not necessary that a case be on “all fours” with the facts of the instant case. A right is clearly established if “[t]he contours of the right[are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Prior to the events in question, we had repeatedly held that a family's rights were violated if the children were removed absent an imminent risk of serious bodily harm. A reasonable social worker would need nothing more to understand that she may not remove a child from its home on the basis of a medical condition that does not present such a risk.
The district court appeared to be concerned that social workers may have difficulty assessing the imminence of a threat from a particular malady. On that basis, it concluded that without a case specifically analyzing exigency in cases of bottle rot and malnutrition social workers would not be able to determine whether those conditions present an imminent risk of serious bodily harm. Even if it might be difficult for a social worker without medical training to assess the imminence of the threat posed by some dangerous maladies, such is not the case here. One need not be a licensed physician to recognize that in the case of a child who is both alert and active neither bottle rot nor malnutrition is the type of condition that will lead to serious injury if not corrected within a matter of hours. A reasonable social worker could reach no other conclusion. Even Royal stated during her deposition that in her opinion bottle rot does not amount to exigency. Thus, because a reasonable social worker would have understood that the children faced no imminent risk of serious bodily harm, as required by clearly established law, the district court erred in granting qualified immunity to Royal and denying partial summary judgment to the Rogerses.
CONCLUSION
Child abuse and neglect are very serious problems. We applaud the efforts of social workers to address these matters and to protect the vulnerable victims of these crimes. “No one can doubt the importance of this goal.” Cf. Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). However, the rights of families to be free from governmental interference and arbitrary state action are also important. Thus, we must balance, on the one hand, the need to protect children from abuse and neglect and, on the other, the preservation of the essential privacy and liberty interests that families are guaranteed under both the Fourth and Fourteenth Amendments of our Constitution.
Assuming Royal's version of the facts, the Rogers children were in a sorry state and suffering from neglect of a type that could, if their parents' conduct was not modified within a reasonable period of time, lead to long-term harm. Still, the conditions here did not present an imminent risk of serious bodily harm. It would have taken Royal only a few hours to obtain a warrant. In removing the reasonable period of time, lead to long-term harm. Still, the conditions here did not present an imminent risk of serious bodily harm. It would have taken Royal only a few hours to obtain a warrant. In removing the Rogers children from their home without obtaining judicial authorization, Royal violated the Rogerses' clearly established Fourth and Fourteenth Amendment rights. The lack of exigency would have been apparent to any reasonable social worker. Accordingly, we conclude that the district court erred in granting qualified immunity to Royal and in denying the Rogerses' motion for partial summary judgment as to Royal.
We REVERSE the grant of summary judgment to Royal and we likewise REVERSE the denial of the Rogerses' partial summary judgment motion with respect to her. We REMAND with instructions to grant partial summary judgment to the Rogerses and for further proceedings consistent with this opinion.
REVERSED and REMANDED.
FOOTNOTES
1. Royal testified that the criteria that separate an emergency response from a ten-day response case varies, but examples of emergency response situations would be physical abuse or sexual abuse when the perpetrator is in the home, or the absence of food from the home.
2. The parties debate whether the Rogerses consented to the entry, but that issue is not before us on appeal. Thus, our decision does not apply to that question, to the extent that it may still be viable in the district court.
3. Royal and Officer Lewis dispute who made the decision to remove the children, with both claiming that the other did so. Royal concedes, however, that this factual dispute is not relevant to the outcome of this appeal because she was ultimately responsible for the decision and could have countermanded it if she had disagreed.
4. Although only the information that Royal had at the time that she made the challenged decision is relevant to the qualified immunity inquiry, the doctor's response is relevant to the question of how serious the children's conditions would have appeared to the reasonable social worker. Baker v. Racansky, 887 F.2d 183, 185 n. 1 (9th Cir.1989).
REINHARDT, Circuit Judge.
Tuesday, August 2, 2011
Facts About Foster Care Children Abused With Psychotropic Drugs
FACTS ABOUT FOSTER CARE CHILDREN ABUSED WITH PSYCHOTROPIC DRUGS
Whether under the care of Child Protective Services, Departments of Family and Child Services, or Youth Welfare Offices, foster children—often removed from family homes because of abuse—are furthered abused when they are prescribed psychotropic (mind-altering) drugs. Some US states report that more than 60% of foster children are prescribed mood-altering drugs (at a rate 300% above the national average).
Already troubled over their circumstances, these children are drugged for emotional and behavioral issues, sometimes with tragic outcome.
Take, for example, 7-year-old Gabriel Meyers, who didn’t want soup for lunch one Thursday in April 2009. He was sent to his room after he threw away his soup, kicking his toys around and threatening to kill himself. Around 1 p.m., police responded to a frantic call and found Gabriel had hanged himself.
He’d been prescribed a cocktail of psychiatric drugs, including an antidepressant that the Food and Drug Administration (FDA) warned could lead to children committing suicide.1
Psychiatrists prescribed 93% of the psychotropic medication dispensed to foster youths, according to a 2008 study.2
• In Australia, one in four foster children was taking psychotropic drugs, and in residential homes, where children live in small groups supervised by social workers, the rate of drug use is 50%. Foster children are being medicated with psychotropic drugs at 10 times the rate of other children. 3
• In Ontario, Canada, psychotropic drugs are prescribed to nearly half of the state wards accounting for drug prescriptions at a rate three times that of children in the general population.4
• In 2007, in Texas $37.9 million was spent on psychiatric drugs for foster children.5 Pharmaceutical companies have played a major role in encouraging their increased use on foster care clients. They participate in aggressive marketing, and conduct misleading research about efficacy and safety.6
• The United Nations Convention on Psychotropic Substances 1971 requires governments to protect children, including those in foster care from excessive and unwarranted exposure to psychotropic drugs.
Psychotropic drugs can be prescribed only for medical purposes, yet foster care youth are routinely prescribed drugs for behavioral control.
1“Psychotropic Drug Abuse in Foster Care Costs Government Billions,” Politics Daily, 17 June 2010.
2 Julie Zito, “Psychotropic Medication Patterns Among Youth in Foster Care,” Pediatrics, Vol. 121, No. 1, Jan. 2008, pp. e157-e163.
3 Caroline Overington, “Foster kids medicated for ‘mental health,’” The Australian, 4 Nov. 2008.
4 “Nearly half of children in [Canadian] Crown care are medicated,” Globe and Mail, 9 June 2007.
5 Evelyn Pringle, “Psychiatric Drugging of Children Intolerable-Betrayal of Innocence,” Lawyers and Settlements.com, 8 Mar. 2009.
6 Op. cit. Politics Daily.
Speaking Out
• ”This is child abuse on a grand scale.” — Richard Wexler, head of the Virginia-based National Coalition for Child Protection Reform.
• “We call it the chemical straitjacket.” — Denise Crisp, President of the New South Wales, Australia, Foster Care Association.
• “Children in state foster care systems and juvenile prisons are
particularly at risk of overmedication with psychotropic drugs…and under conditions that constitute egregious [extremely bad] departures from sound medical practice.” — Angela Olivia Burton from CUNY School of Law.
• “All kids in foster care have some story of trauma, like abuse or neglect, so we need to ask the question, ‘How are we dealing with trauma?’” Further, “The fact is that medication does not treat a disorder, it treats the symptoms of the manifestation….” — Charles Manos, School psychologist.
• “We’re taking away their future…By blunting their emotion, we take away children’s ability to relate to people, to trust, love, to care for others or to put themselves in another person’s shoes to see how it feels.” — Neuropsychologist who examined Texas records of children under state care.
• “Child advocates should illuminate that no alternatives were first tried and/or that the treating physician has given the prescription(s) without knowing if less invasive interventions were attempted.”
Guardians must “ensure that psychotropic drugs are not administered improperly to children in foster care as a means of chemical restraint.” — Bob Jacobs from the Advocacy Center for Persons with Disabilities, Inc.
• In 2010, Florida’s Department of Children and Families prohibited foster care children being enrolled in clinical trials for psychotropic drugs. Foster care parents and guardians in any state or country should object to any child under their care being part of a clinical drug experiment.
Angela Olivia Burton, “They Use it Like Candy’ - How the Prescription of Psychotropic Drugs to State-Involved Children Violates International Law,” Social Science Research Network, 3 Apr. 2010,
Carol Marbin Miller, “Mind-altering drugs given to some babies in DCF’s care,” Miami Herald, 17 Sept. 2002.
Caroline Overington, “ONE in four children who have been removed from the care of their parents and placed in foster homes are being heavily medicated to control their emotions and
behaviour,” The Australian, 3 Nov. 2008.
Angela Olivia Burton, “They Use it Like Candy’ - How the Prescription of Psychotropic Drugs to State-Involved Children Violates International Law,” Social Science Research Network, 3
Apr. 2010,
Eileen FitzGerald, “”Growing numbers of children on medication,” NewsTimes, 7 June, 2010.
Vera Sherav, “America’s Over-Medicated Children,” AARP, June, 2005
Bob Jacobs, psychologist, Advocacy Center for Persons with Disabilities, Inc, “Legal Strategies to Challenge Chemical Restraint of Children in Foster Care A Resource for Child Advocates in
Florida.”
“Florida to FDA: No Foster Care Kids in Psychotropic Trials,” Pharmalot, 19 July 2010.
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