New CPS/DCYF Cases - Filed or Decided

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AFRA

In Hernandez v. Foster, 657 F.3d 463 (October 7, 2011) the 7th Circuit Court of Appeals declared that having probable cause to remove a child is not enough to do an emergency removal; there must also be exigent circumstances, otherwise the case must be brought to a judge for a pre-removal order. This is a constitutional due process ruling so should be good in every jurisdiction. This was done as a warning shot to agency workers who do removals first and then seek to have petitions filed after the fact--the 7th Circuit granted qualified immunity in the specific case because the law wasn't yet clearly established, but it declared that from now on the law is clear on this point. We were remanded to the federal trial court on the coerced safely plan claims and the withholding of the child after the State's Attorney refused to file a petition.

So a federal civil rights suit on a removal after return could be considered where there is no exigency.

In In re A.B., the Supreme Court of Washington held that a parent has a constitutional due process right not to have the State terminate his or her relationship with a natural child "absent a finding of current parental unfitness." In re A.B., 232 P.3d 1104, 1113 (Wash. 2010) ("The first question here is whether a parent has a due process right not to have the State terminate his or her relationship with a natural child in the absence of an express or implied finding that he or she, at the time of trial, is currently unfit to parent the child. According to the United States Supreme Court, this court, and our Court of Appeals, the answer is yes.").

In In re Alonza D., Jr. & Shaydon S., the Court of Appeals of Maryland held that, "the record does not reflect through evidentiary support . . . how a continued parental relationship would have caused a detriment to the children, and the trial judge made no findings to that effect." In re Alonza D., Jr. & Shaydon S., A.2d 536, 551 (Md. Ct. App. 2010). Moreover, the Court said that, "[b]ecause the record [was] silent in this regard, and because parental rights are among those deemed fundamental, we cannot say that exceptional circumstances warranted the termination of Mr. D.'s parental rights." Id. at 551-552 (emphasis added). To come to this conclusion, the Court relied on the "majority view" of its "sister states," which said that:

Because of the presumption that natural parents are fit to raise their children and/or because natural parents have a fundamental constitutional right to raise their children, or both, there must first be a finding that the natural parents are unfit, or extraordinary circumstance detrimental to the welfare of the child must first be determined to exist, before the "best interests of the child" test may be applied when private third-parties dispute custody with natural parents. Id. at 547 (quoting McDermott v. Dougherty, 869 A.2d 751 (Md. Ct. App. 2005)).

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