PROTECTIVE CUSTODY WARRANTS

by Brandi L. Harper, Esq.

Family law issues can turn into 1983 claims especially in the instance of placing a child in protective custody when certain procedures are not followed.  Special circumstances regarding notice to non-custodial can often arise.  The court in Burke v. County of Alameda recognized that these matters place in direct conflict the right of families to be free of arbitrary government interference and the legitimate role of the state in protecting children from abuse. 

THE FACTS

A teenage girl lives with her mother and stepfather.  She also has a relationship with her biological father who calls and visits her.  The teenager runs away from home.  She is gone for two weeks and ultimately returns on her own accord.  After returning the police interview her to determine the circumstances of her running away.   During the interview the teenager tells the police that her stepfather physically and sexually abuses her.  The most recent physical abuse occurred when the girl returned after running away.  Her stepfather hit her with an open hand approximately 20 times, leaving red marks.  The girl also claims that her mother is aware of the abuse.  The sexual abuse consists of her step-dad grabbing her breasts when he hugs her and pinching her butt.  Her stepfather also makes sexual comments to her including calling her a “big titty momma”.  The officer also interviewed the mother who acknowledged the comments but denied the other actions.

The Officer’s Actions

Based on the interviews with girl and the mother the officer advised the mother and step-father that he was removing the teenager from their home and placing her in protective custody.  The officer did not obtain a protective custody warrant before doing so.  Further, he did not discuss alternatives to removal with the mother or contact the biological father for possible placement with him.

The Lawsuit

The mother, stepfather, and father filed suit under §1983 claiming that removing the teenager from the home without a warrant interfered with their constitutional right of familial association.   They also sued the County for failure to train in regards to protective custody warrants.  The Plaintiffs and Defendants both filed motions for summary judgment.  The court granted the defendants motion for summary judgment and denied plaintiffs motion.

The Court of Appeals Decision 

Was Removal appropriate?

As noted in Wallis v. Spencer 202 F.3d 1136, parents and children have a well-elaborated right to live together without government interference.  Therefore, Government officials may not remove children from parents’ custody without due process.  There is one exception in which officials may remove children.  This is when there is reasonable cause to believe that a child is in imminent danger in the home.  Thus, in considering whether the officers’ actions were appropriate in removing the teenager from the home the court in this case looked at two factors:  reasonable cause and imminent danger.

The first factor is that of reasonable cause.  An officer must have reasonable cause based on specific articulable evidence that a child is in imminent danger in order to remove child.  The question to be answered, therefore, is whether the evidence in this case created reasonable cause.

Here, the parents allege that the child was lying and therefore the evidence could not give rise to reasonable cause.  However, the Court notes that in Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs. 237 F.3d 1101, it was held that a victim’s report of abuse is compelling evidence.  The court held that even if the child was lying, the information provided gave rise to reasonable cause.

Imminent Danger

Even if reasonable cause exists to remove, the danger facing the child must be imminent.  Here, the Court compares this case to the Mabe Case, where it was found that there was no threat of imminent danger.   In Mabe, the alleged abuse happened at a set time every night, and had not happened in the month prior to removal.  In addition, after the initial complaint, the officer waited four days before removing the child without due process.

The Court distinguishes this case, noting that there was no set time of day when the girl was abused, and the officer removed the child from custody immediately following the complaint.  These two facts left it up to the jury to decide if indeed imminent danger existed.  However, the court also noted that because of the threat of physical violence if the parents found out about the complaint, summary judgment was appropriate on this issue.

Was placement into child protective services appropriate?

Both the mother and father believed that, even if the child should have been removed, she should have been placed in the custody of either of them, as they were not implicated in the abuse.  Indeed, the scope of government action must be in justifiable relation to the need for action.  Wallis.  Thus, only that amount of government intrusion which is necessary to take the child out of immediate harm’s way is appropriate.

As to the mother, the court held that summary judgment was appropriate on this issue.  Even though she was not implicated in any wrongdoing, Mabe held that when a mother isn’t properly protecting a child from abuse in the household, removal from that household is appropriate.

As to the father, the Court held that the Dad raised triable issue of fact on this issue.  The court stated that a parent with custodial rights of the child has rights to the child, despite the fact that the child may not live with that parent.  The court determined that “custody rights” does not necessarily implicate a live-with relationship.  Thus, a non household parent has rights, though those rights are slightly diminished.  The court does not specify in which ways those rights are diminished.  Nevertheless, the court holds that it is a question for the jury whether or not the father should be notified and have the child placed in his custody.

Qualified Immunity

The only triable issue raised by the appeal was whether Dad had a right to be notified.  Thus, no other rights were potentially violated.  However, because previous cases were not clear on what custody meant to the rights of parents, Qualified Immunity was appropriate.  Previously, it was reasonable to believe that only those parents residing in the same household with children had any rights.  However, after this case that assumption is no longer valid, and a non-household parent should at the very least be notified, and possibly have a child placed in his/her custody.

Monnell Liability

Again, because the dad raised a triable issue of fact, County must defend against it on that claim.  Summary Judgment on Monell claims on other issues was appropriate.

Discussion

Ultimately, the case stands for the proposition that officers must take complaints of child abuse seriously, and must take action that is reasonably required.  Often, this requires government officials to make judgment calls based on the information before them.  The court states quite clearly that Complaints of abuse from children are articulable evidence and give rise to a reasonable cause to believe that a child may be in eminent harm.  Whether or not that harm is actually imminent is still something that will have be decided on a case by case basis.  As noted by the court, only the fact that there was a real threat of physical violence on the child for her complaint provided that imminence to allow summary judgment.  Otherwise, the question of imminence is to be decided by a trier of fact.  Finally, the court provides that parents that do not live with the child may still have rights when it involves a child that they have a custodial agreement on.  Thus, government officials must take care when removing a child, and make sure that parents with custodial rights are notified of removal.  Additionally, those parents may also have the right to have the child placed with them, rather than in child protective custody.

This holding did not seem to change much, but certainly clarified the law in this area such that those officials claiming qualified immunity need to be aware.