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Court Revives Suit Against County Over Warrantless Removal of Children

By TINA BAY, Staff Writer

http://www.metnews.com/articles/2007/roge053007.htm

Evidence that children were suffering from bottle rot and malnutrition
did not necessarily constitute a medical exigency justifying their
warrantless removal from their home, the Ninth U.S. Circuit Court of
Appeals ruled yesterday.

Reversing summary judgment rulings by U.S District Judge David F. Levi
of the Eastern District of California, the court reinstated a lawsuit by
a San Joaquin County couple.

Thomas and Nicole Rogers, for themselves and on behalf of their children
Shelby and Thomas Jr., brought a civil rights action against the county,
the City of Lodi and a social worker alleging that the removal of the
youngsters. from the family residence in September 2001 violated their
Fourth and Fourteenth Amendment rights.

The children were taken into custody by county Child Protective Services
social worker Charlotta Royal, who determined they had been neglected
for some time and faced an imminent risk to their physical health and
safety. The girl was three and the boy five at the time.

Authorities say the Rogers family had first come to the agency’s
attention in August 2001 when two individuals reported that the children
appeared to be suffering from neglect, based on observations such as
Thomas Jr.’s loss of teeth due to bottle rot and their home’s dirty,
maggot-infested condition. The reports were classified as requiring a
10-day response as opposed to emergency attention.

Royal initially attempted to visit the Rogers’ residence on Aug. 31 but
found no one home. She departed without leaving a message or note and
returned one week later, at an hour when the whole family was home and
just waking up.

Accompanied by Lodi police officers whom she had summoned, Royal entered
the Rogers’ home and found that Shelby had been inside a locked bedroom.
The mother said she locked her in her room at night to prevent her from
roaming the house and getting into things while the family was sleeping.

Thomas Jr. also emerged from a bedroom with a thumb lock on the outside,
but the mother told Royal his door had not been locked. Based on her
questioning, the social worker concluded that the children’s mother was
lying to her about the locks.

Evidence Royal found of neglect included the fact that the children had
not yet been toilet trained and were still wearing diapers, and that
Thomas Jr. was suffering from severe bottle rot that had left him with
missing or yellowing teeth.

Additionally, she discovered the family lacked medical insurance, that
the children appeared very pale as though they suffered from sunlight
and vitamin deficiency, and that Shelby’s unkempt hair was thinning,
possibly indicating malnutrition.

The social worker also noted the presence of multiple bruises on the
children’s legs and a scratch on the girl’s face, which the parents said
were sustained from falls at the auto shop in which they worked. The
parents allegedly took the kids to work with them every day, a fact
which Royal believed but viewed as cause for concern.

Royal’s other observations included piles of dirty clothing scattered
about, an overflowing garbage receptacle, stains on the walls resembling
feces and vomit, and mattresses for the children that lacked frames and
were covered with dirty bedding.

Five guns were also found in the parents’ bedroom.

After speaking with the parents for about two hours and hearing their
explanations, Royal decided the children should immediately be removed
and placed in the county’s custody for the sake of their safety.
Without offering the parents any alternatives like medical referrals
that would allow the children to stay at home, and without obtaining a
warrant, she called for a car seat and had the children transported to
Lodi Memorial Hospital for examination.

According to a doctor’s evaluation, the children had “poor hygiene” but
were “alert” and “playful.” Their visit was characterized as a routine
medical clearance prior to county placement rather than an emergency.

After obtaining a medical clearance, the youngsters were placed in a
shelter and separated from their parents for about two weeks. They were
returned home after their parents made required changes.

Ruling on Royal’s summary judgment motion and the family’s motion for
partial summary judgment as to the social worker, Levi found that the
conditions discovered by Royal at the Rogers’ home did not present an
imminent risk of serious bodily harm. Nonetheless, he concluded Royal
was entitled to qualified immunity because the application of the law to
medical neglect was not clearly established

Since there was no caselaw specifically analyzing exigency in cases of
bottle rot and malnutrition, Levi reasoned, social workers would not be
able to make an assessment about the imminence of threat resulting from
medical neglect in the Rogers’ situation. On this basis, the judge ruled
in favor of Royal.

But the appellate panel said Levi was mistaken.

Judge Stephen Reinhardt wrote for the court:

“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 would not understand the Rogers children to
be facing imminent danger during the few hours it would take to obtain a
warrant for their removal, he said.

“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,” the judge said.

But, he concluded, there was “no support at all” in the record for the
conclusion that the children faced an imminent risk of serious bodily harm.

The Rogers’ appellate attorney, David J. Beauvais, told the MetNews he
was pleased with the court’s ruling.

“There was a lot of overstatement in this case, a lot of exaggeration,”
he said.

Noting that Levi’s decision had been published, he added:

“The district court ruled medical neglect was such an esoteric concept
that social workers would not be able to clearly assess whether or not
the child was in imminent danger, he said. “That to me was an extremely
dangerous precedent & I’m glad the Ninth Circuit corrected it.”

Counsel for San Joaquin County could not be reached for comment.

The case is Rogers v. County of San Joaquin, 05-16071.

CURRENTLY CHILD PROTECTIVE SERVICES VIOLATES MORE CIVIL RIGHTS ON A
DAILY BASIS THEN ALL OTHER AGENCIES COMBINED INCLUDING THE NATIONAL
SECURITY AGENCY/CENTRAL INTELLIGENCE AGENCY WIRETAPPING PROGRAM....

CPS Does not protect children...
It is sickening how many children are subject to abuse, neglect and even
killed at the hands of Child Protective Services.

every parent should read this .pdf from
connecticut dcf watch...

http://www.connecticutdcfwatch.com/8x11.pdf

http://www.connecticutdcfwatch.com

Number of Cases per 100,000 children in the US
These numbers come from The National Center on
Child Abuse and Neglect in Washington. (NCCAN)
Recent numbers have increased significantly for CPS

*Perpetrators of Maltreatment*

Physical Abuse CPS 160, Parents 59
Sexual Abuse CPS 112, Parents 13
Neglect CPS 410, Parents 241
Medical Neglect CPS 14 Parents 12
Fatalities CPS 6.4, Parents 1.5

Imagine that, 6.4 children die at the hands of the very agencies that
are supposed to protect them and only 1.5 at the hands of parents per
100,000 children. CPS perpetrates more abuse, neglect, and sexual abuse
and kills more children then parents in the United States. If the
citizens of this country hold CPS to the same standards that they hold
parents too. No judge should ever put another child in the hands of ANY
government agency because CPS nationwide is guilty of more harm and
death than any human being combined. CPS nationwide is guilty of more
human rights violations and deaths of children then the homes from which
they were removed. When are the judges going to wake up and see that
they are sending children to their death and a life of abuse when
children are removed from safe homes based on the mere opinion of a
bunch of social workers.

BE SURE TO FIND OUT WHERE YOUR CANDIDATES STANDS ON THE ISSUE OF
REFORMING OR ABOLISHING CHILD PROTECTIVE SERVICES ("MAKE YOUR CANDIDATES
TAKE A STAND ON THIS ISSUE.") THEN REMEMBER TO VOTE ACCORDINGLY IF THEY
ARE "FAMILY UNFRIENDLY" IN THE NEXT ELECTION...