Baby Girl’s Constitutional Rights Potentially Violated by County’s Removal Policy

Kirkpatrick v. County of Washoe (2016)

by David S. Marshall

The U.S. Court of Appeals for the Ninth Circuit has allowed an infant’s constitutional claim against Washoe County, Nevada to proceed to trial. The court did so because her father presented substantial evidence that the county maintained a policy of unconstitutionally seizing children from parents in non-emergency circumstances.

While mother and baby recovered in the hospital from a premature birth by C-section, county social workers met with them to assess whether foster care was appropriate. They determined that the mother’s heavy drug use, unemployment, and unstable living situation dictated the baby girl should be placed in foster care, but they did not obtain a warrant before removing the baby from her mother. After the removal of his two-day-old daughter, the girl’s biological father brought suit against the county, claiming the removal violated his baby’s constitutional rights.

The county moved for summary judgment, arguing that the trial court should dismiss the claim without trial because there was no real issue of fact to decide at a trial. The lower court judge agreed. That judge decided that the biological father had failed to present substantial evidence of a constitutional violation. The father appealed this decision to the Ninth Circuit.

The Fourth and the Fourteenth Amendments of the Constitution protect the parent-child relationship from interference by the state. Under the Fourteenth Amendment, parents have a constitutional right to live with their children, a right that cannot be taken away without proper constitutional procedures. The Fourth Amendment safeguards children’s right not to be physically taken from their parents without a warrant, except in situations where a child is in imminent danger of great bodily harm.

A parent whose child has been taken away without a warrant in the absence of an emergency has a potential constitutional claim on behalf of the child against the municipal entity responsible. The parent must show the municipality failed to properly train its employees and that this omission resulted from a “policy” of deliberate indifference to constitutional rights.

In support of his claim against Washoe County, the father cited testimony by the social workers who removed his infant daughter from her mother in the hospital. These social works testified that they were completely unfamiliar with the process for obtaining a warrant to take custody of a child. One admitted that she never received training on how to obtain a warrant during the two years she had been employed by the county and that she was never instructed by the county that social workers must obtain a warrant in non-emergency situations. She also admitted that a hypothetical child in the same circumstances as the baby girl in this case would not be considered by the county to be in imminent danger.

Relying on this testimony, the Ninth Circuit found that there was sufficient evidence for a reasonable jury to conclude Washoe County was deliberately indifferent to potential violations of children’s constitutional rights. Accordingly, all the evidence on both sides of the question should be heard by a jury at trial to determine whether the county maintained an unofficial policy that violated the constitution. The Ninth Circuit remanded the case for trial.

In Washington, where I do most of my work representing parents in disputes with government social workers, it is not counties that remove children from their parents. Rather, it is an agency of the State of Washington, Child Protective Services, that removes children when there is no parent willing and able to care adequately for the child.