CALABRETTA v FLOYD
9715385
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Analysis
Facts
Opinion
Counsel
Footnotes
The Strip Search
ROBERT CALABRETTA, individually and as parent and natural guardian of Tamar and Natalie Calabretta, minor children; SHIRLEY CALABRETTA, individually and as parent and natural guardian of Tamar and Natalie Calabretta, minor children, Plaintiffs-Appellees,
v.No. 97-15385
JILL FLOYD, individually and in her D.C. No. official capacity as a Caseworker CV-95-00345-LKK/ of Yolo County Department of PAN Social Services; YOLO COUNTY OPINION DEPARTMENT OF SOCIAL SERVICES; NICHOLAS SCHWALL, individually and in his official capacity with Woodland Police Department; RUSSELL SMITH, individually and in his official capacity as Chief of Police of the Woodland Police Department; WOODLAND POLICE DEPARTMENT, Defendants-Appellants.
Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted June 8, 1998--San Francisco, California Filed August 26, 1999
Before: J. Clifford Wallace, Thomas G. Nelson and Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Kleinfeld
COUNSEL
J. Scott Smith, Angelo, Kilday and Kilduff, Sacramento, California, for the defendants-appellants.
Michael P. Farris, Home School Legal Defense Association, Paeonian Springs, Virginia, for the plaintiffs-appellees.
Stephen Bailey (briefed), Placerville, California, for the plaintiffs-appellees.
Thomas R. Yanger (briefed), Deputy Attorney General, Sac- ramento, California, for amicus State of California Ex Rel. Eloise Anders, Director of the California State of Social Ser- vices.
Kevin T. Snider (briefed), United States Justice Foundation, Escondido, California, for amicus United States Justice Foun- dation and Christian Action Network.
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OPINION
KLEINFELD, Circuit Judge:
This case involves whether a social worker and a police officer were entitled to qualified immunity, for a coerced entry into a home to investigate suspected child abuse, inter- rogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency.
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Facts
The two individual defendants moved for summary judg- ment based on qualified immunity. The district judge denied it.
Some individual called the Department of Social Services October 27, 1994, with the information that gave rise to this case. The report says that the caller was anonymous, but the report redacts names, thus it is not clear whether the caller gave her name but the Department treated her as anonymous, or whether she refused to give her name. The caller said that she was once awakened by a child screaming "No Daddy, no" at 1:30 A.M. at the Calabretta home. Then two days ago she (or someone else, possibly a Department of Social Services employee - it is not clear from the report) heard a child in the home scream "No, no, no" in the late afternoon. The caller said that the children "are school age and home studied" and that "this is an extremely religious family."
The report was put into the in box of defendant Jill Floyd, a social worker in the Department. She checked the Depart- ment files to see whether the Calabretta family had any "priors," or had ever been on welfare, and ascertained that they had no priors and had never been on welfare. She did not attempt to interview the person who had called in the report.
On October 31, four days after the call, the social worker went to the Calabretta home to investigate. Mrs. Calabretta, the children's mother, refused to let her in. The children were standing at the door with their mother, and the social worker noted on her report that they "were easily seen and they did not appear to be abused/neglected."
The social worker was about to go on vacation, so she requested that someone else be assigned to the case, but the investigation had not been completed when she returned. On November 10, fourteen days after the call and ten days after the first visit, the social worker returned to the Calabretta house with a policeman. She did not tell the police dispatcher about the specific allegations, just that she needed police assistance to gain access so that she could interview the chil- dren. Officer Nicholas Schwall met the social worker at the Calabretta house, knowing nothing about the case except that he had been assigned to assist her. She told him that they had received a report of the children crying, and he understood her to mean that they might have been beaten.
The policeman knocked, Mrs. Calabretta answered, and the policeman said they were checking on the children's welfare because someone had reported children crying. Mrs. Cala- bretta did not open the door, and said she was uncomfortable letting them in without her husband at home. The police offi- cer had the opinion that in any check on the welfare of chil- dren "there is an exigent circumstance" so no search warrant is needed. Mrs. Calabretta and Officer Schwall disagreed in their depositions on whether Officer Schwall told her that if she did not admit them, then he would force their way in. Appellants concede that for purposes of appeal, the entry must be treated as made without consent.
The social worker then took Mrs. Calabretta's twelve year old daughter into one room while the policeman stayed with the mother in another. The twelve year old did not remember any of the children screaming "No, Daddy, no, " but did recall that at about the date of the report, her little brother hurt him- self in the backyard and screamed "no, no, no. " The social worker asked what kind of discipline the parents used, and understood the twelve year old to be saying that the parents used "a round, wooden dowel, very, very thin wooden dowel," about "twice as big . . . as a pen. " The three year old came into the room at that point and said "I get hit with the stick too." The twelve year old told her, according to the social worker's report, "that her parents do not discipline indiscriminately, only irreverence or disrespect. " The social worker wrote in her report "Minor is extremely religious - made continual references to the Lord and the Bible. " The social worker testified that any physical means of disciplining children "raises a red flag" for her, and "I always counsel or advise parents on other ways of discipline before they resort to corporal punishment."
While the mother was still with the policeman in the other room, the social worker told the twelve year old to pull down the three year old girl's pants. She wanted to look at the three year old's buttocks to see whether there were marks. The twelve year old did not do so, and the three year old started crying. The mother heard her daughter crying and ran in. The twelve year old said "she wants me to take down Natalie's pants." The social worker said "I understand you hit your children with objects," and went on to say "It's against the California state law to hit your children with objects. And I found out that you hit your children with objects. And I need to see Natalie's bottom to see if there are bruises there." The policeman said "I'll leave you alone to do this" and backed off. The social worker said "The rod of correction?" Mrs. Calabretta answered, "Oh, it's just a little stick," referring to "a little Lincoln log, piece of Lincoln log roofing, nine inches long." Mrs. Calabretta "explained the Biblical basis of its use" to the social worker. The social worker repeated "It's against California law to hit your children with objects. This is break- ing the law. And I insist on seeing her bottom." The three year old was screaming and fighting to get loose, the mother looked at the social worker to see whether she would relent, but she did not, and the mother pulled down the three year old's pants in obedience to the social worker's order.
There were no bruises or marks on the three year old's bot- tom. The social worker then insisted on seeing the piece of Lincoln log roofing, and Mrs. Calabretta showed it to her. The social worker then decided not to interview or examine the buttocks of any of the other children. She "had a brief conver- sation with the mother in which we discussed her looking into alternative forms of discipline."
The Calabrettas sued the social worker and policeman and other defendants for damages, declaratory relief and an injunction under 28 U.S.C. S 1983. The defendants moved for summary judgment on grounds of qualified immunity. The district court denied the defendants' motion, and the social worker and police officer appeal.
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Analysis
We have jurisdiction over interlocutory appeals from deni- als of summary judgments denying qualified immunity. 1 On summary judgment, "even in a qualified immunity case, we must assume the nonmoving party's version of the facts to be correct."2 Those facts must, of course, be established by evi- dence cognizable under Federal Rule of Civil Procedure 56. In this case, although the parties disagree on some details, the disagreements are not material to the outcome. We review denial of the qualified immunity claim de novo.3
A. The coerced entry
The social worker and police officer concede that for pur- poses of appeal, they should be treated as having entered the Calabretta home without consent. They argue that the district court erred in holding that their nonconsensual entry required special exigency or a search warrant. Their theory is that an administrative search to protect the welfare of children does not carry these requirements, and the social worker was doing just what she was supposed to do under state administrative regulations. They claim immunity for entry into the home, interviewing the twelve year old, and strip searching the three year old.
[1] "[G]overnment officials performing discretionary func- tions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."4 The right the official is alleged to have violated must have been "clearly established" in an appropri- ately particularized sense. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlaw- fulness must be apparent."5 The "relevant question . . . is the objective (albeit fact-specific) question whether a reasonable officer could have believed [the] warrantless search to be law- ful, in light of clearly established law and the information the searching officers possessed. [The officer's] subjective beliefs about the search are irrelevant."6 "Specific binding precedent is not required to show that a right is clearly established for qualified immunity purposes."
[2] The facts in this case are noteworthy for the absence of emergency. The social worker and her department delayed entry into the home for fourteen days after the report, because they perceived no immediate danger of serious harm to the children. The police officer was there to back up the social worker's insistence on entry against the mother's will, not because he perceived any imminent danger of harm. The report that led to the investigation could have indicated a problem, but was not especially alarming. A child screaming "no, Daddy, no" late at night could mean that the father was abusing the child. But in a household where the father puts the children to bed, these words are often screamed at bedtime, and also in the middle of the night after a child has gotten up to go to the bathroom, get a drink of water, check the televi- sion, and enter his parents' room to say that he cannot sleep, when the father puts the child to bed the second time. The other scream, "no, no, no," likewise may mean abuse, or may mean that a child around two is developing a normal, healthy sense of separateness of herself as an individual and perhaps does not care for her mother's choice of vegetable. The tip- ster's reference to religion might imply that the tip arose from religious differences between the tipster and the Calabretta family. Had the information been more alarming, had the social worker or police officer been alarmed, had there been reason to fear imminent harm to a child, this would be a dif- ferent case, one to which we have no occasion to speak.
Appellants urge us to adopt a principle that "a search war- rant is not required for home investigatory visits by social workers." They claim qualified immunity on the ground that there is no clearly established principle to the contrary. The principle they urged is too broad. Anderson requires more par- ticularized analysis, to determine whether, in these particular circumstances, notably the absence of emergency, a reason- able official would understand that they could not enter the home without consent or a search warrant.8
[3] In our circuit, a reasonable official would have known that the law barred this entry. Any government official can be held to know that their office does not give them an unre- stricted right to enter peoples' homes at will. We held in White v. Pierce County9, a child welfare investigation case, that "it was settled constitutional law that, absent exigent cir- cumstances, police could not enter a dwelling without a war- rant even under statutory authority where probable cause existed."10 The principle that government officials cannot coerce entry into people's houses without a search warrant or applicability of an established exception to the requirement of a search warrant is so well established that any reasonable officer would know it. Under White, appellants' claim, that "a search warrant is not required for home investigatory visits by social workers," is simply not the law.
[4] Appellants urge that White speaks only to police, not social workers. That is an invalid distinction. In the case at bar, the social worker used a police officer to intimidate the mother into opening the door. Also, there is no reason why White would be limited to one particular kind of government official. The Fourth Amendment preserves the "right of the people to be secure in their persons, houses . . . . " without lim- iting that right to one kind of government official. It is not as though all reasonable people thought any government official could enter private houses against the occupants' will, without search warrant or special exigency, and then White said that police officers could not, without speaking about social work- ers. Rather, everyone knew that the government could not so enter houses, and White said that principle was well estab- lished, in the context of a child abuse investigation. Appel- lants' argument that they be allowed qualified immunity because White did not speak expressly about social workers is of the kind that Anderson rejects, "[t]hat is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . ."11
There is a distinction between White and the case at bar, but the distinction is of no help to appellants. In White, there was a special exigency. Someone had called in a report that the seven year old had several welts on his back. The boy and his father talked to the police officer at the door, and the boy tried to show the officer his back, but the father would not allow him to. Based on the report, and the father's violent and abu- sive response when questioned, the officer thought that if he delayed to get a warrant, the father would injure the child or remove him from the house before the officer returned with the warrant. We held that "the deputies had probable cause to believe the child had been abused and that the child would be injured or could not be taken into custody if it were first nec- essary to obtain a court order."12
By contrast, in the case at bar, the report did not describe any evidence of physical abuse, and the social worker and police officer did not perceive any danger of injury to the children or loss of evidence if they secured a warrant. On her first visit four days after the call, ten days prior to her return with the police officer, the social worker wrote "Minors were easily seen and they did not appear to be abused/neglected." The only reason the social worker and police officer did not seek a search warrant was that their subjective opinion was that they did not need one.
Appellants argue that Baker v. Racansky13 limits White to the principle that compliance with a constitutionally permissi- ble state statute entitles the government officials to immunity. That is not correct. We did not limit White at all in Baker, but merely held that it did the claimants in that case no good. Baker is not on point, because it did not involve any kind of home search, and did not turn on any child welfare exception to normal search and seizure law.
In Baker, we held that social workers were entitled, in the particular circumstances of that case, to qualified immunity for their decision to take a child into protective custody. We noted that at the time, "there was no binding Ninth Circuit or Supreme Court precedent which clearly established when state officials could or could not take a child into temporary protective custody."14 That, of course, distinguishes Baker from the case at bar, where at the time there was binding Ninth Circuit precedent, White, which clearly established that the general law of search warrants applied to child abuse investigations. Baker also differs from the case at bar in that the investigators reasonably believed that the child was in imminent danger of abuse if they did not act. A neighbor's children reported to their mother, and to the social worker, that the child's father had sexually abused them, and one of them had a vaginal rash that corroborated the accusation. When the social workers asked the father's own child if his father did anything sexual with him, the child denied it but "started walking around the room . . . would crawl up in his chair . . . went into the corner of the room, put his head in between his legs, raised his legs up, put his arms up toward his head like this, curled up."15 The social workers thought the denial was false, because of the child's bizarre behavior when he made the denial, and thought that the mother would not be able to protect the child when the father was released from jail.
Appellants argue that other circuits have allowed broader qualified immunity, so the social worker and police officer could not have been expected to know that they were acting unconstitutionally. They cite Darryl H. v. Coler ,16 Wildauer v. Frederick Cnty.,17 and Franz v. Lytle,18 and some out of circuit district court and state court decisions to show that there is no well-established right to privacy from inspections by social workers. It is not clear that a conflict among other circuits would create qualified immunity where clearly established law in this circuit would preclude it,19 but even if it could, these cases would not establish such an open question about coerced entry.
Darryl H. involves strip searches of children, not warrant- less entries into homes, and is discussed below with respect to the strip search. Wildauer involves an entry into a home, but there was apparent consent and no express objection, no criminal aspect to the investigation, no entry of a parental home to investigate parents' treatment of their children, and no investigatory purpose. The householder had nine "foster children" living with her (apparently the children were not placed there pursuant to custody orders), and two sets of par- ents had complained that she would not give their children back despite the absence of any custodial claim. When the social worker appeared, the householder gave two children back and said there were two more she could not find, and invited the social worker in to help look for them. The social worker came back with a nurse because many of the children were disabled and the house looked unhygienic to the social worker, but the purpose of the second look, to which no objection was made, was to see whether the children should stay there, not to investigate any crime.
We are unable to see why appellants cite Franz v. Lytle.20 A neighbor told the police that a woman was leaving her two year old unsupervised and not changing her urine-soaked dia- pers. The Tenth Circuit held that the investigating police offi- cer was not entitled to qualified immunity, for having the neighbor take off the child's diaper so that he could examine and feel the baby's vaginal area, and under the guise of inves- tigating for sexual molestation, threatening to take the baby into protective custody to make the parents bring the baby to a hospital for further vaginal examination (which revealed no evidence of sexual molestation, a crime for which there was no evidence). The case would not have given the police offi- cer and social worker in the case at bar any reason to think their entry into the Calabretta house and strip search of the three year old was constitutionally permissible, because to the extent that Franz was in any way analogous, the police officer lost on his qualified immunity claim.
One other circuit has spoken on facts analogous to those in the case at bar. Good v. Dauphin County Social Services,21 like our decision in White, holds that a social worker and police officer were not entitled to qualified immunity for insisting on entering her house against the mother's will to examine her child for bruises. Good holds that a search war- rant or exigent circumstances, such as a need to protect a child against imminent danger of serious bodily injury, was neces- sary for an entry without consent, and the anonymous tip claiming bruises was in that case insufficient to establish spe- cial exigency. In our case, the anonymous tip did not even allege bruises.
Appellants also argue that the doctrine allowing certain kinds of administrative searches without warrants or special exigency applies to social workers' entries into homes for child protection. That proposition is too broad for the kind of particularized examination of conduct in particular circum- stances required by Anderson. We need not decide whether in some circumstances that doctrine might apply, because it does not apply in the circumstances of this case.
The starting point for administrative searches is Camara v. Municipal Court.22 The case involved a routine municipal housing code inspection of an apartment house, yet the Court held that the Fourth Amendment requirement of a search war- rant, consent, or exigent circumstances applied. The require- ment of probable cause was diluted in the circumstances, so a warrant would be easy to obtain if an occupant would not let an inspector in without it, but a search warrant was neces- sary in the absence of special exigency or consent, despite the lack of any criminal investigatory purpose. Our analysis in White is consistent with Camara, and Camara is of no help to appellants.
Appellants argue that Wyman v. James,23 establishes that where a social worker enters a house to investigate the wel- fare of a child, Fourth Amendment standards do not apply. It does not. Wyman holds that the state may terminate welfare where a mother refuses to allow a social worker to visit her home to see whether the welfare money is being used in the best interests of the child for whom it is being paid. It does not hold that the social worker may enter the home despite the absence of consent or exigency. Wyman distinguishes Camara on the ground that in Wyman, "the visitation in itself is not forced or compelled."24 In the case at bar, by contrast, the entry into the home was forced and compelled.
[5] New Jersey v. T.L.O.25 holds that the Fourth Amend- ment does apply to a school administrator search of a stu- dent's purse, but that in the special context of in-school searches, the Fourth Amendment did not require a warrant or probable cause. It has no bearing on searches of a home. Appellants would have us read T.L.O. as a blanket suspension of ordinary Fourth Amendment requirements where children are involved. The Court's opinion does not support so broad a reading. The court emphasized that it was "the school setting" that "requires some easing of the restrictions to which searches by public authorities are ordinarily subject."26 Of course there are occasions when Fourth Amendment restric- tions on entry into homes are relaxed. We emphasize that in this case the officials entered without a warrant or consent simply because they thought they had a right to do so, and thought that the Fourth Amendment did not apply to entries into homes where children were involved. This was not a case where the officials coercing entry into the home recognized some special exigency creating imminent risk to the child. White v. Pierce County27 establishes that a special exigency excuses a warrantless entry where the government officers have probable cause to believe that the child has been abused and that the child would be injured or could not be taken into custody if it were first necessary to obtain a court order.
Appellants also argue that the coerced entry into the home was primarily to protect the children, not investigate crime, pursuant to California regulations. It is not clear why this would excuse them from compliance with the Fourth Amend- ment, in light of the Camara holding that administrative inspections of buildings are "significant intrusions upon the interests protected by the Fourth Amendment," even though not criminal, so in the absence of emergency, warrants should be obtained if consent is refused.28 We held, years before the coerced entry into the Calabretta home, that even in the con- text of an administrative search, "[n]owhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved . . . . Therefore, we have been adamant in our demand that absent exigent circum- stances a warrant will be required before a person's home is invaded by the authorities."29
[6] Nor did the California statutes and regulations direct the social worker or police officer to coerce entry into the home without a warrant or special exigency, or suggest that no war- rant was needed in that circumstance. The statutes 30 appellants cite say nothing about entering houses without consent and without search warrants. The regulations they cite require social workers to respond to various contacts in various ways, but none of the regulations cited31 say that the social worker may force her way into a home without a search warrant in the absence of any emergency. A possibly related regulation, in the chapter on "Report of Child Abuse Investigative Procedures," does speak to search warrants, but not at all helpfully to appellants. It says that the "child protective official" receiving a report should "consider the need for a search warrant."32 This administrative regulation would tend to put the social worker on notice that she might need a search warrant, not that she was exempt from any search warrant requirements. Appellants presented no evidence they did "consider the need for a search warrant." They both imagined incorrectly that no search warrants were necessary to enter houses for child abuse investigations.
We conclude that on appellants' first issue, whether they were protected by qualified immunity regarding their coerced entry into the Calabrettas' home, the district court was right. They were not.
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The strip search
Appellants second issue on appeal is whether they were entitled to qualified immunity for the social worker's requir- ing the twelve year old to talk to her in a separate room and requiring the mother to pull down the three year old's pants. They argue that there is no authority on point in the Ninth Cir- cuit, and the Seventh Circuit held in Darrell H. v. Coler33 that such a visual inspection is shielded by qualified immunity. They also argue that there are so many reports of child abuse that the social workers cannot bear any additional restrictions on how they conduct their investigations. In their memoran- dum in support of summary judgment filed in the district court, appellants did not argue that they were entitled to quali- fied immunity for the interview with the twelve year old. Because this claim was not raised in the district court, it can- not be raised for the first time on appeal34 and we have no occasion to pass on the question. The argument in the district court was limited to the proposition that the social worker vio- lated no clearly established law in strip searching the three year old, so that is the only issue we consider.
Darryl H. is not entirely supportive of appellants' position. The strip search was conducted at the children's school, and did not involve an official takeover of the family home. The Seventh Circuit reversed a summary judgment in the social workers' favor on constitutionality of the search. The opinion says that "nude physical examination is a significant intrusion into the child's privacy" and even where the child is too young to have the same subjective sense of bodily privacy as an older child, the nude body search affects "legitimate expec- tations of the parents . . . , protected by the fourteenth amend- ment, that their familial relationship will not be subject to unwarranted state intrusion."35 Although a warrant or probable cause was not needed, in the Seventh Circuit's view, reason- ableness was under the Fourth Amendment, and there were issues of fact that precluded summary judgment regarding reasonableness. Although in Darryl H., as in the case at bar, the social worker ordered the mother to strip the child, there was a genuine issue of fact about whether the mother did so consensually or in response to coercion. Also, not much checking had been done on the validity of the tip, the children denied abuse, and there was evidence that the tipster might not be fair and objective.
Darryl H. offers some support to appellants because it held that the social workers were entitled to qualified immunity. But the strip search was not done during an unconstitutional entry into the home, and the information supporting a strip search was much stronger in Darryl H. than in the case at bar. The school principal reported "Lee H., age six, was tied up for punishment. Lee and his sister, Marlena, age seven, were thin and not allowed to eat lunch at school, and the children's clothes and bodies were dirty."36 The principal told the social worker that "both parents were usually angry when they came to school . . . that other students indicated Lee was tied up for punishment," but "that bruises had never been observed on the children."37 Thus, in Darryl H., the social workers had substantial reason to believe that the children were malnour- ished, dirty, and abusively disciplined.
[7] By contrast with Darryl H., in the case at bar the social worker had little reason to believe that the three year old was abused. The tip itself included a reference to the Calabrettas' religious views that might suggest that the tipster was moti- vated by religious differences. Even if the tip was entirely accurate, a benign explanation of "no, Daddy, no " and "no, no, no" was at least as likely as any punishment, let alone abusive punishment. The social worker had noted on her first visit that "Minors were easily seen and did not appear to be abused/neglected." The twelve year old had already explained away the screaming and told the social worker that the chil- dren were not abusively disciplined. The social worker's nota- tions refer to the religiosity of the household, but surely a family's religious views cannot justify social workers invad- ing the household and stripping the children. The social worker plainly expressed the view to the mother that use of any object to spank a child, such as the "rod " (a nine inch Lin- coln log) was illegal, and she did have reason to believe that such an object was used, but appellants have cited no author- ity for the proposition she was right that California law pro- hibits use of any object to discipline a child. The statutes we have found prohibit "cruel or inhuman" corporal punishment or injury resulting in traumatic condition.38 While some pun- ishment with some objects might necessarily amount to cruel or inhuman punishment, a token "rod" such as a nine inch Lincoln log would not. A social worker is not entitled to sacri- fice a family's privacy and dignity to her own personal views on how parents ought to discipline their children.
The Third Circuit held, in factual circumstances much more similar than Darryl H. to the case at bar, that the social work- ers lacked qualified immunity for strip searching small chil- dren. In Good v. Dauphin County Social Services,39 an anonymous tipster told Social Services that a seven year old girl had bruises on her body and said she got them in a "fight with her mother." As with Calabretta, a social worker and police officer insisted on entry, claiming that they needed no search warrant to investigate child abuse.
Good reversed a summary judgment in the social worker's and police officer's favor on qualified immunity, and held that they were not entitled to qualified immunity. Even though there was no case in point, the Third Circuit held that the gen- eral proposition was clearly established that the government may not "conduct a search of a home or strip search of a per- son's body in the absence of consent, a valid search warrant, or exigent circumstances."40 Good cited a Seventh Circuit case for the proposition that "It does not require a constitu- tional scholar to conclude that a nude search of a thirteen- year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity."41 Good holds that under Anderson, "a public official may not manufacture immunity by inventing exceptions to well settled doctrines for which the case law provides no support."42
Good distinguishes Darryl H. on the ground that in Darryl H. the social workers acted pursuant to state guidelines but they did not in Good (nor did they in the case at bar), and because "the strip search in this case came in the context of a forced entry into a residence" at about 10 P.M. 43 Good held that "the propriety of the strip search cannot be isolated from the context in which it took place," referring to the coerced entry into the home.44
The Tenth Circuit has likewise held that a police officer conducting a strip search of a small child in the context of a child abuse investigation lacked qualified immunity. Franz v. Lytle,45 discussed above, held that a police officer who insisted on looking at a two year old's vagina, and having a doctor look at it, to assure the absence of sexual abuse, lacked qualified immunity for the strip search. The Tenth Circuit rejected the officer's arguments that there was no case directly in point establishing the unconstitutionality, that this was an administrative search, and that such great latitude should be allowed for child protection, and held that a tip that the baby was going around with urine soaked diapers and uns- upervised was not sufficient reason to allow this search. The Tenth Circuit said that the social interest in child protection included not only protection against child abuse, but also "the child's psychological well-being, autonomy, and relationship to the family or caretaker setting."46
[8] This case is like Good, not Darryl H. The strip search cannot be separated from the context in which it took place, the coerced entry into the home. An unlawful entry or search of a home does not end when the government officials walk across the threshold. It continues as they impose their will on the residents of the home in which they have no right to be. There is not much reason to be concerned with the privacy and dignity of the three year old whose buttocks were exposed, because with children of that age ordinarily among the parental tasks is teaching them when they are not sup- posed to expose their buttocks. But there is a very substantial interest, which forcing the mother to pull the child's pants down invaded, in the mother's dignity and authority in rela- tion to her own children in her own home. The strip search as well as the entry stripped the mother of this authority and dig- nity. The reasonable expectation of privacy of individuals in their homes includes the interests of both parents and children in not having government officials coerce entry in violation of the Fourth Amendment and humiliate the parents in front of the children. An essential aspect of the privacy of the home is the parent's and the child's interest in the privacy of their relationship with each other.
[9] The social worker had already established that, as against the weak tip, "no, Daddy, no," and "no, no, no," the children did not appear to be neglected or abused, the twelve year old said that they were not, and the object with which they were disciplined was a token "rod" consisting of a nine inch Lincoln log. By the time the social worker forced the mother to pull down the child's pants, the investigation had contracted to the social worker's personal opinion that any discipline of a child with an object must be against the law, and her puzzling mention of the family's religiosity. The gov- ernment's interest in the welfare of children embraces not only protecting children from physical abuse, but also protect- ing children's interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.
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AFFIRMED. the end
FOOTNOTES
1 Act Up!/Portland v. Bagley, 988 F.2d 868, 870 (9th Cir. 1993).
2 Liston v. County of Riverside , 120 F.3d 965, 977 (9th Cir. 1997).
3 Act Up!/Portland, 988 F.2d at 871.
4 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
5 Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal citation omitted).
6 Id. at 641.
7 Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir. 1988).
8 Anderson, 483 U.S. at 640-41.
9 White v. Pierce County, 797 F.2d 812 (9th Cir. 1986).
12 White, 797 F.2d at 815.
13 Baker v. Racansky, 887 F.2d 183 (9th Cir. 1989).
19 See Garcia v. Miera, 817 F.2d 650, 658 (10th Cir. 1987).
20 Franz v. Lytle. 997 F.2d 784 (10th Cir. 1993).
21 Good v. Dauphin County Social Servs., 891 F.2d 1087 (3d Cir. 1989).
22 Camara v. Municipal Court, 387 U.S. 523 (1967).
23 Wyman v. James, 400 U.S. 309 (1971).
24 Id. at 317.
25 New Jersey v. T.L.O., 469 U.S. 325 (1985).
26 T.L.O., 469 U.S. at 340.
27 White v. Pierce County, 797 F.2d 812, 815 (9th Cir. 1986).
28 Camara v. Municipal Court, 387 U.S. 523, 534, 539-40 (1967).
29 Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir. 1990).
30 Cal. Welfare & Inst. Code SS 16501(a) & 16208. Though appellants cite S 16208, the Code says that section was repealed.
31 DSS Regulations SS 31-105.1, 31.105.11, 31.120.1, 31-125.2, & 31- 130.2.
32 Cal. Admin. Code tit. 11, S 930.60.
33 Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).
34 Marx v. Loral Corp., 87 F.3d 1049, 1055 (9th Cir. 1996) ("Generally, an appellate court will not consider arguments not first raised before the district court unless there were exceptional circumstances.") (citation omitted).
35 Darryl H., 801 F.2d at 901.
38 Cal. Penal Code, tit. 1, SS 11165.3 & 11165.4.
39 Good v. Dauphin County Social Services, 891 F.2d 1087 (3d Cir. 1989).
40 Id. at 1092.
41 Id. at 1093, citing Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980).
42 Good, 891 F.2d at 1094.
43 Id. at 1096.
44 Id. at 1096, n. 6.
45 Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993).
46 Id. at 792-93.
http://www.bountylicenserecovery.com/calabretta.html
Isabella Brooke Knightly and Austin Gamez-Knightly
In Memory of my Loving Husband, William F. Knightly Jr. Murdered by ILLEGAL Palliative Care at a Nashua, NH Hospital
Monday, May 3, 2010
DHS, Concilio and the full-court press against this story
DHS, Concilio and the full-court press against this story
By REGINA MEDINA
Philadelphia Daily News
medinar@phillynews.com 215-854-5985
When the Department of Human Services learned that the Daily News was pursuing a story about a 16-year-old girl in DHS care who had a late-term abortion in New Jersey, it began a legal battle against the People Paper, and a provider agency began to pressure one of the story's main sources.
* The girl and her attorney, child-advocate Robin Banister, requested a temporary restraining order against the Daily News April 21 in Common Pleas Court, asking that the girl's name not be published.
Judge Paul P. Panepinto approved the order the same day and added other details not to be published, including the location of the girl's school and foster home, and the name of her birth mother or those of any other direct relatives. He later allowed for the birth mother's name to be published.
An attorney for the Daily News said yesterday that the newspaper is appealing the judge's order.
"The First Amendment guarantees the Daily News' right to publish whatever details it sees fit," said the lawyer, David Laigaie. "However, within its journalistic prerogative it could tell the story without invading the juvenile's privacy."
* The foster mother said that since word got out that the Daily News was working on a story, she has been called constantly by representatives of Concilio, the provider agency that subcontracts with DHS.
Zenaida Maravi, family-services director at Concilio, told the foster mother not to speak to reporters or to allow any "new faces" into her house, the foster mother said.
* Maravi and another Concilio employee entered the foster home at 9:30 p.m. April 20 without announcing their presence, the foster mother said. When she learned that they were in her house, the foster mother looked for them in the teen's room, but when she tried to enter, they shut the door in her face while the teen remained with them in the room, the foster mother said.
* Maravi has told colleagues at the agency that "the [Daily News] story is not going to run," sources said.
The teen told her foster mother that "DHS is going to stop the news," according to the foster mother.
http://www.philly.com/dailynews/local/20100503_DHS__Concilio_and_the_full-court_press_against_this_story.html
By REGINA MEDINA
Philadelphia Daily News
medinar@phillynews.com 215-854-5985
When the Department of Human Services learned that the Daily News was pursuing a story about a 16-year-old girl in DHS care who had a late-term abortion in New Jersey, it began a legal battle against the People Paper, and a provider agency began to pressure one of the story's main sources.
* The girl and her attorney, child-advocate Robin Banister, requested a temporary restraining order against the Daily News April 21 in Common Pleas Court, asking that the girl's name not be published.
Judge Paul P. Panepinto approved the order the same day and added other details not to be published, including the location of the girl's school and foster home, and the name of her birth mother or those of any other direct relatives. He later allowed for the birth mother's name to be published.
An attorney for the Daily News said yesterday that the newspaper is appealing the judge's order.
"The First Amendment guarantees the Daily News' right to publish whatever details it sees fit," said the lawyer, David Laigaie. "However, within its journalistic prerogative it could tell the story without invading the juvenile's privacy."
* The foster mother said that since word got out that the Daily News was working on a story, she has been called constantly by representatives of Concilio, the provider agency that subcontracts with DHS.
Zenaida Maravi, family-services director at Concilio, told the foster mother not to speak to reporters or to allow any "new faces" into her house, the foster mother said.
* Maravi and another Concilio employee entered the foster home at 9:30 p.m. April 20 without announcing their presence, the foster mother said. When she learned that they were in her house, the foster mother looked for them in the teen's room, but when she tried to enter, they shut the door in her face while the teen remained with them in the room, the foster mother said.
* Maravi has told colleagues at the agency that "the [Daily News] story is not going to run," sources said.
The teen told her foster mother that "DHS is going to stop the news," according to the foster mother.
http://www.philly.com/dailynews/local/20100503_DHS__Concilio_and_the_full-court_press_against_this_story.html
Did DHS pressure teen to get abortion?
Did DHS pressure teen to get abortion?
By REGINA MEDINA
Philadelphia Daily News
medinar@phillynews.com 215-854-5985
A DEPARTMENT OF Human Services caseworker pressured a pregnant Mayfair teenager to undergo a late-term abortion by threatening to take away either her toddler or her unborn baby if she had the child, according to the teen's foster mother.
The alleged strong-arm tactic happened one day after DHS learned of the pregnancy, when the girl was about 22 weeks pregnant, according to her foster mother and the girl's social worker, Marisol Rivera.
The foster mother did not want to be identified in order to protect the girl's identity.
The Daily News also learned that:
* DHS got a Family Court judge's order allowing it to take the girl for an abortion, after the girl's birth mother refused to approve the procedure.
* By the time DHS arranged for the abortion - in March - the girl was 24 weeks pregnant. She had to undergo the procedure in New Jersey because abortions in Pennsylvania are illegal at 24 weeks.
* Although it is DHS policy that a DHS worker accompany any minor who has a court-ordered medical procedure, this did not happen on the girl's first attempt to have the abortion. That attempt failed when the clinic wouldn't accept her Medicaid card and wanted cash, according to the foster mother. A DHS worker did accompany the girl on a later, successful, attempt.
* Rivera, the girl's social worker, said that she was fired by Concilio, which subcontracted with DHS to provide care, after she initially refused to accompany the teen for the abortion.
"They hired me to work in child protection, not to kill children," Rivera told the Daily News.
DHS officials said that they could not discuss the case because of medical-privacy laws. Attempts to talk to the teenager were unsuccessful.
But a source familiar with the case insisted that the girl was not coerced and that her foster mother, whose first language is Spanish, did not understand the conversation between the girl and the DHS worker, Cynthia Brown.
Brown declined to comment.
Abortions are a little-known aspect of DHS's oversight of children in its custody.
Donald F. Schwarz, the city's deputy mayor for Health and Opportunity, who oversees DHS, said that the agency "is supposed to take a neutral position and not supposed to be involved in the decision making" regarding an abortion.
Between September 2006 and March 31, Schwarz said, 335 minors under DHS care became pregnant. Of those, 119 resulted in abortions. Of those abortions, 54 were done by judge's order.
Eight of the abortions were performed out of state, Schwarz said.
Although federal and state law forbid the use of federal or state money for abortions, and DHS is a recipient of state and federal aid, that money is not used to pay for abortions, Schwarz said.
He said that money only from the city budget is used to pay for the procedures.
Art Caplan, director of the Center of Bioethics at the University of Pennsylvania, said that if the foster mother's allegations are true, the DHS worker was acting unethically.
"You can't or shouldn't be threatening to break up a family depending upon whether somebody gets an abortion or not," Caplan said. "That is . . . unethical practice, it's not even common sense."
Richard Wexler, executive director of the National Coalition for Child Protection Reform, said: "If DHS's behavior is as described, it is shameful and inexcusable. . . . Sadly, this is not surprising . . . . This kind of bungling, this is not unusual in child-welfare systems. Especially in Philadelphia."
Short-lived joy
The pregnant teen was excited about having the baby, her foster mother said. She learned that she was carrying a boy and told her 1-year-old daughter that she was going to have a little brother. She even talked about a name for the baby.
The teen's birth mother, who wanted to be identified only as Deborah M., also said that her daughter was excited to have a baby.
"Someone who went to go get an ultrasound, [found] out it's a boy, they give the boy a name, that's somebody who wants to have that baby," Deborah M. said. "But the next thing I know, she's going for the abortion."
The teen's foster mother - who is fluent in Spanish and understands basic English - said that she was present when DHS worker Brown discussed the pregnancy with the teen in the living room of her home.
The conversation occurred the day after the girl's ultrasound, the foster mother said.
She said that Brown told the pregnant teenager that DHS would separate her children if she had the second child.
"She said that if she decided to have the infant she wasn't going to let her have both babies, that I know [despite the language barrier]," the foster mother said. "They wouldn't be together."
During the conversation, Brown was "upset" and "agitated," the foster mother said, and the teen began to cry.
In an interview conducted in Spanish, the foster mother said that she had been listening to the two from the top of the stairs, but rushed down when the teen began crying.
She asked Brown, "Is there a problem?"
"Of course, there is a problem," the foster mother said Brown told her. "This girl is 16 years old, she's in school, she already has a baby. Yes, there is a problem."
By the next day, the teen was determined to get an abortion, the foster mother said.
Rivera, the girl's social worker, said, "Ever since DHS went there [to the foster home], the only alternative that she saw was abortion."
Deborah M., the girl's birth mother, said that she believed the foster mother's allegations because she'd witnessed Brown bullying her daughter once before.
Brown had discovered that the teen had not been taking her child to day care.
Brown, she said, rushed up close to the teen's face and said, "If you don't put your baby in day care, I'm gonna take your baby."
Deborah M. said that she then ordered Brown out of her home, and that she left.
Caring for pregnancies
Schwarz said that when DHS is alerted to a child's pregnancy, "the youth and her caseworker discuss the [youth's] plans regarding her pregnancy."
DHS offers counseling, family planning and other pregnancy-related services such as prenatal care, abortion and adoption, he said.
Rivera said that when she telephoned Brown with news that the teen was pregnant, the DHS worker was "shocked."
"Oh, my God, but that girl has to study," Rivera recalled Brown saying.
The teen's birth mother and the foster mother said that they separately heard conversations between Brown and the teen where the word "abortion" was mentioned.
Both said that they heard no mention of other alternatives, they told the Daily News.
Rivera said that after the teen's confrontation with Brown, she counseled the girl about her pregnancy, including alternatives such as adoption.
Rivera said that she and Concilio's Family Services Supervisor, Zenaida Maravi, told the teen that she could keep both children if she carried the pregnancy to term.
The teen remained silent to their comments, Rivera said.
Getting the abortion
On March 10, the day after DHS secured the court order for the abortion, Concilio supervisor Maravi told the teen's foster mother that she must take the girl to an abortion clinic. The foster mother, who arranged for a relative to drive them, said that she was reluctant to go, believing that the girl was too far along for the procedure.
But when they arrived at the clinic, which the foster mother could not identify, it would not accept the teen's Medicaid card as payment, the foster mother said.
Six days later, on March 16, Brown, the DHS caseworker, took the teen to the Cherry Hill Women's Center without alerting the pregnant teen's foster mother or Rivera, the women said.
Rivera and the foster mother believed the clinic performed an abortion. A common procedure for late-term abortions is dilation and extraction. The procedure usually takes two or three days. On the first day, doctors inject a substance into the fetus to stop its heart as well and begin the dilation process. The woman typically goes home and returns the next day so that the fetus can be extracted.
The pregnant teen had left for school late that morning, out of character for the girl, the foster mother said. By 7 p.m., the teenager hadn't arrived home and the foster mother called Rivera in a panic. The social worker told her to call police by 10 p.m. if she wasn't home by then.
The girl arrived home around 8:30 p.m.
"What happened?" the foster mother asked her.
"The baby is dead," the teen answered. The teen told her that Brown had taken her out of school to get an abortion in New Jersey.
The next day, Concilio provided a van to take the girl back to the clinic for the second day of the procedure, according to Rivera.
Rivera initially refused to accompany the teen, but when she learned that the first step of the procedure had already been performed, she relented.
"That baby had to be taken out of her," Rivera said. "It couldn't stay in there much longer. It was against my will, but I had no other option. Instead of one dying, two were going to die [if the procedure was not completed]."
Rivera is fired
Rivera said that when she initially refused to take the teen to the clinic, Maravi, her supervisor,threatened to fire her for insubordination.
Rivera wrote a memo to Concilio's human-relations director complaining about the threat.
She was fired on April 14 for "deficiencies in your job performance" in a letter signed by Joanna Otero-Cruz, Concilio's executive director.
Rivera says she believes that she was fired for complaining about her supervisor's threat.
"The decision to terminate the life of the child had been made by another, I had nothing to do with it," Rivera told the Daily News. "I told [Maravi] that my religious beliefs, my moral beliefs would not allow me to participate in an action like this one. And at no moment when Concilio hired me did they tell me that I would participate in that."
Rivera and other Concilio employees said that the agency seemed wary of involvement in the teen's late-term abortion.
At a March 12 meeting of Concilio's foster-care staff, Maravi told the group, "Concilio will not become involved in that situation. DHS will resolve it," Rivera said.
But the following week, two Concilio employees and a Concilio van were used to take the teen to the abortion clinic.
Maravi said she could not discuss the case. Otero-Cruz did not return a phone call.
http://www.philly.com/dailynews/top_story/20100503__SHAMEFUL__PRESSURE_.html?page=1&c=y
By REGINA MEDINA
Philadelphia Daily News
medinar@phillynews.com 215-854-5985
A DEPARTMENT OF Human Services caseworker pressured a pregnant Mayfair teenager to undergo a late-term abortion by threatening to take away either her toddler or her unborn baby if she had the child, according to the teen's foster mother.
The alleged strong-arm tactic happened one day after DHS learned of the pregnancy, when the girl was about 22 weeks pregnant, according to her foster mother and the girl's social worker, Marisol Rivera.
The foster mother did not want to be identified in order to protect the girl's identity.
The Daily News also learned that:
* DHS got a Family Court judge's order allowing it to take the girl for an abortion, after the girl's birth mother refused to approve the procedure.
* By the time DHS arranged for the abortion - in March - the girl was 24 weeks pregnant. She had to undergo the procedure in New Jersey because abortions in Pennsylvania are illegal at 24 weeks.
* Although it is DHS policy that a DHS worker accompany any minor who has a court-ordered medical procedure, this did not happen on the girl's first attempt to have the abortion. That attempt failed when the clinic wouldn't accept her Medicaid card and wanted cash, according to the foster mother. A DHS worker did accompany the girl on a later, successful, attempt.
* Rivera, the girl's social worker, said that she was fired by Concilio, which subcontracted with DHS to provide care, after she initially refused to accompany the teen for the abortion.
"They hired me to work in child protection, not to kill children," Rivera told the Daily News.
DHS officials said that they could not discuss the case because of medical-privacy laws. Attempts to talk to the teenager were unsuccessful.
But a source familiar with the case insisted that the girl was not coerced and that her foster mother, whose first language is Spanish, did not understand the conversation between the girl and the DHS worker, Cynthia Brown.
Brown declined to comment.
Abortions are a little-known aspect of DHS's oversight of children in its custody.
Donald F. Schwarz, the city's deputy mayor for Health and Opportunity, who oversees DHS, said that the agency "is supposed to take a neutral position and not supposed to be involved in the decision making" regarding an abortion.
Between September 2006 and March 31, Schwarz said, 335 minors under DHS care became pregnant. Of those, 119 resulted in abortions. Of those abortions, 54 were done by judge's order.
Eight of the abortions were performed out of state, Schwarz said.
Although federal and state law forbid the use of federal or state money for abortions, and DHS is a recipient of state and federal aid, that money is not used to pay for abortions, Schwarz said.
He said that money only from the city budget is used to pay for the procedures.
Art Caplan, director of the Center of Bioethics at the University of Pennsylvania, said that if the foster mother's allegations are true, the DHS worker was acting unethically.
"You can't or shouldn't be threatening to break up a family depending upon whether somebody gets an abortion or not," Caplan said. "That is . . . unethical practice, it's not even common sense."
Richard Wexler, executive director of the National Coalition for Child Protection Reform, said: "If DHS's behavior is as described, it is shameful and inexcusable. . . . Sadly, this is not surprising . . . . This kind of bungling, this is not unusual in child-welfare systems. Especially in Philadelphia."
Short-lived joy
The pregnant teen was excited about having the baby, her foster mother said. She learned that she was carrying a boy and told her 1-year-old daughter that she was going to have a little brother. She even talked about a name for the baby.
The teen's birth mother, who wanted to be identified only as Deborah M., also said that her daughter was excited to have a baby.
"Someone who went to go get an ultrasound, [found] out it's a boy, they give the boy a name, that's somebody who wants to have that baby," Deborah M. said. "But the next thing I know, she's going for the abortion."
The teen's foster mother - who is fluent in Spanish and understands basic English - said that she was present when DHS worker Brown discussed the pregnancy with the teen in the living room of her home.
The conversation occurred the day after the girl's ultrasound, the foster mother said.
She said that Brown told the pregnant teenager that DHS would separate her children if she had the second child.
"She said that if she decided to have the infant she wasn't going to let her have both babies, that I know [despite the language barrier]," the foster mother said. "They wouldn't be together."
During the conversation, Brown was "upset" and "agitated," the foster mother said, and the teen began to cry.
In an interview conducted in Spanish, the foster mother said that she had been listening to the two from the top of the stairs, but rushed down when the teen began crying.
She asked Brown, "Is there a problem?"
"Of course, there is a problem," the foster mother said Brown told her. "This girl is 16 years old, she's in school, she already has a baby. Yes, there is a problem."
By the next day, the teen was determined to get an abortion, the foster mother said.
Rivera, the girl's social worker, said, "Ever since DHS went there [to the foster home], the only alternative that she saw was abortion."
Deborah M., the girl's birth mother, said that she believed the foster mother's allegations because she'd witnessed Brown bullying her daughter once before.
Brown had discovered that the teen had not been taking her child to day care.
Brown, she said, rushed up close to the teen's face and said, "If you don't put your baby in day care, I'm gonna take your baby."
Deborah M. said that she then ordered Brown out of her home, and that she left.
Caring for pregnancies
Schwarz said that when DHS is alerted to a child's pregnancy, "the youth and her caseworker discuss the [youth's] plans regarding her pregnancy."
DHS offers counseling, family planning and other pregnancy-related services such as prenatal care, abortion and adoption, he said.
Rivera said that when she telephoned Brown with news that the teen was pregnant, the DHS worker was "shocked."
"Oh, my God, but that girl has to study," Rivera recalled Brown saying.
The teen's birth mother and the foster mother said that they separately heard conversations between Brown and the teen where the word "abortion" was mentioned.
Both said that they heard no mention of other alternatives, they told the Daily News.
Rivera said that after the teen's confrontation with Brown, she counseled the girl about her pregnancy, including alternatives such as adoption.
Rivera said that she and Concilio's Family Services Supervisor, Zenaida Maravi, told the teen that she could keep both children if she carried the pregnancy to term.
The teen remained silent to their comments, Rivera said.
Getting the abortion
On March 10, the day after DHS secured the court order for the abortion, Concilio supervisor Maravi told the teen's foster mother that she must take the girl to an abortion clinic. The foster mother, who arranged for a relative to drive them, said that she was reluctant to go, believing that the girl was too far along for the procedure.
But when they arrived at the clinic, which the foster mother could not identify, it would not accept the teen's Medicaid card as payment, the foster mother said.
Six days later, on March 16, Brown, the DHS caseworker, took the teen to the Cherry Hill Women's Center without alerting the pregnant teen's foster mother or Rivera, the women said.
Rivera and the foster mother believed the clinic performed an abortion. A common procedure for late-term abortions is dilation and extraction. The procedure usually takes two or three days. On the first day, doctors inject a substance into the fetus to stop its heart as well and begin the dilation process. The woman typically goes home and returns the next day so that the fetus can be extracted.
The pregnant teen had left for school late that morning, out of character for the girl, the foster mother said. By 7 p.m., the teenager hadn't arrived home and the foster mother called Rivera in a panic. The social worker told her to call police by 10 p.m. if she wasn't home by then.
The girl arrived home around 8:30 p.m.
"What happened?" the foster mother asked her.
"The baby is dead," the teen answered. The teen told her that Brown had taken her out of school to get an abortion in New Jersey.
The next day, Concilio provided a van to take the girl back to the clinic for the second day of the procedure, according to Rivera.
Rivera initially refused to accompany the teen, but when she learned that the first step of the procedure had already been performed, she relented.
"That baby had to be taken out of her," Rivera said. "It couldn't stay in there much longer. It was against my will, but I had no other option. Instead of one dying, two were going to die [if the procedure was not completed]."
Rivera is fired
Rivera said that when she initially refused to take the teen to the clinic, Maravi, her supervisor,threatened to fire her for insubordination.
Rivera wrote a memo to Concilio's human-relations director complaining about the threat.
She was fired on April 14 for "deficiencies in your job performance" in a letter signed by Joanna Otero-Cruz, Concilio's executive director.
Rivera says she believes that she was fired for complaining about her supervisor's threat.
"The decision to terminate the life of the child had been made by another, I had nothing to do with it," Rivera told the Daily News. "I told [Maravi] that my religious beliefs, my moral beliefs would not allow me to participate in an action like this one. And at no moment when Concilio hired me did they tell me that I would participate in that."
Rivera and other Concilio employees said that the agency seemed wary of involvement in the teen's late-term abortion.
At a March 12 meeting of Concilio's foster-care staff, Maravi told the group, "Concilio will not become involved in that situation. DHS will resolve it," Rivera said.
But the following week, two Concilio employees and a Concilio van were used to take the teen to the abortion clinic.
Maravi said she could not discuss the case. Otero-Cruz did not return a phone call.
http://www.philly.com/dailynews/top_story/20100503__SHAMEFUL__PRESSURE_.html?page=1&c=y
Stranded in the Foster Care System
Stranded in the Foster Care System
unhappygrammy-Another case of Stolen from Relatives and placed in foster care!
Apr 30, 2010 11:00 p.m.
(WXYZ) - We do stories on kids abused in the foster care system. Action news has uncovered cases of foster kids who are loved and cared for by family members, but are still taken away. It's a heart-wrenching saga of children stranded in the system.
The Martins were Jake's foster parents when their niece couldn't care for the little boy.
Action News was there the gut-wrenching day little Jake was taken from the only family he has ever known--that was likely last time they would see him.
Renee Neal's step grandson Immanuel has been in her care since he was born. Now, he's gone.
"I just hope he's not feeling anything like I feel," she says.
Neal will likely never see him again.
Richard McNeil had hoped to adopt his great grandsons. But the state took them away.
"I can't put it into words. Take a mother who just had a baby taken away from her. It's the same feeling," says McNeil.
Records show the state admits all these children were loved and well cared for, but in each case the state decided the kids would be better off with someone else. The man who makes those decisions is Bill Johnson. He heads the Michigan Children's Institute. By law, he could not speak about specific cases when we interviewed him last year after the state took Jake
"...those obviously are people who you lived with, who cared for you and we are going to care for you here," says Johnson, explaining what new foster parents would tell foster kids. "It's sad, you're going to miss them, and the child will adjust."
But some believe it's too much power for just one man. Cases like these are examples of his power. In Jake's case Johnson removed him because Cheryl Martin, his great aunt and former foster mom, had a run in with the law because she was drunk in public. She has since quit drinking. Cheryl and her husband Rob Martin loaned money to a woman who later accused Rob of assault. He was charged though the woman's own daughter told the court her mother has made the same accusations of others she owes money.
"I'm not denying that I made mistakes, but we learn from our mistakes and move on. We don't get our children taken away," says Rob Martin.
The state gave Jake to a couple who planned to adopt him, but Action News has learned that just three months later they changed their mind because Jake was having trouble adjusting. Now, he is with yet another foster family.
"It's so hard, I miss him so much," says Cheryl Martin, crying.
"Whether it's Christmas or birthday, there is no easy date," says Rob Martin.
In Immanuel's case, Renee Neal and the boy's grandpa were his foster parents. When they divorced, Immanuel stayed with Renee. Records show the state had granted Neal the right to adopt Immanuel. Records say it would be in Immanuel's "best interest" to remain in Neal's care.
"I was the only person who had an application in to adopt Immanuel," she says.
But Renee says when she complained about a social worker not getting Immanuel services the worker accused Neal of interfering with Immanuel's visitation with his grandpa--and recommended the adoption be revoked.
"...the only thing I had throughout the whole process was my word against the workers and they won," says Neal.
Now, Immanuel's grandpa is adopting the little boy and Neal has no right to see the seven-year old ever again.
"It's like a death," she says, crying.
Richard McNeil was the foster parent of his two great nephews. He was trying to adopt them when the state removed the boys based on a single accusation.
"I would rather have state police come to my home and do an actual investigation like it's supposed to be done, not some half-baked investigation all slanted one-sided..." he says.
The boys were taken when a nurse's aide accused McNeil's ex-wife of slapping the oldest one. At the time, they were visiting a friend at a nursing home.
"...being accused of this is devastating to me," says Anne McNeil, Richard's ex-wife. "I don't sleep."
The McNeil's say their nephew has attention deficit disorder. sometimes they hold is face to talk to him. They believe that is what the aide saw. The aide did not return our calls.
"What they did is not right. they say, oh the boy's will bounce back. yeah, right, sure," says Richard McNeil.
"I try to think about it as if I was to have a conversation with this child 20 years down the road," says Johnson. "Would I be able to say that the decision I made was something I could defend to the child?"
Johnson decides 2700 of these cases a year--but says only about 10 percent are complex. It's difficult to challenge Johnson. You need money for a lawyer to appeal him in court and the chances of succeeding are slim.
"It has been very rare that I have reversed him," say Wayne County Circuit Court Judge Mary Beth Kelly.
Kelly has presided over hundreds of adoption cases. She says although she often has disagreed with Johnson, the law limits her ability to reverse his decisions.
"...it's a very high legal standard," says Kelly.
"...you have power that is concentrated in the department of human services within specific branch to make life altering decisions for children," says Vivek Sankaran, assistant professor at the Child Advocacy Law Clinic at U-M. He also represents parents who appeal Johnson's decisions.
"They're relying on often one-sided information from a specific case worker without hearing, kind of getting the wealth and breadth of information from different parties..."
Sankaran says Michigan is unique in giving one person final say in adoptions. Most states rely on the courts to decide those cases and he believes Michigan should as well.
"...not because judges are perfect, but because we've created open processes," says Sankaran. "We don't have that type of openness right now in Michigan."
In written responses the state says it works hard to get foster kids in good homes and that adoptions increased 10 percent last year--the highest number of adoptions ever in one year. The Martins and Richard McNeil have taken their cases to court. Renee Neal does not have the money to appeal.
http://mobile.wxyz.com/w/main/story/10781036/p1/
unhappygrammy-Another case of Stolen from Relatives and placed in foster care!
Apr 30, 2010 11:00 p.m.
(WXYZ) - We do stories on kids abused in the foster care system. Action news has uncovered cases of foster kids who are loved and cared for by family members, but are still taken away. It's a heart-wrenching saga of children stranded in the system.
The Martins were Jake's foster parents when their niece couldn't care for the little boy.
Action News was there the gut-wrenching day little Jake was taken from the only family he has ever known--that was likely last time they would see him.
Renee Neal's step grandson Immanuel has been in her care since he was born. Now, he's gone.
"I just hope he's not feeling anything like I feel," she says.
Neal will likely never see him again.
Richard McNeil had hoped to adopt his great grandsons. But the state took them away.
"I can't put it into words. Take a mother who just had a baby taken away from her. It's the same feeling," says McNeil.
Records show the state admits all these children were loved and well cared for, but in each case the state decided the kids would be better off with someone else. The man who makes those decisions is Bill Johnson. He heads the Michigan Children's Institute. By law, he could not speak about specific cases when we interviewed him last year after the state took Jake
"...those obviously are people who you lived with, who cared for you and we are going to care for you here," says Johnson, explaining what new foster parents would tell foster kids. "It's sad, you're going to miss them, and the child will adjust."
But some believe it's too much power for just one man. Cases like these are examples of his power. In Jake's case Johnson removed him because Cheryl Martin, his great aunt and former foster mom, had a run in with the law because she was drunk in public. She has since quit drinking. Cheryl and her husband Rob Martin loaned money to a woman who later accused Rob of assault. He was charged though the woman's own daughter told the court her mother has made the same accusations of others she owes money.
"I'm not denying that I made mistakes, but we learn from our mistakes and move on. We don't get our children taken away," says Rob Martin.
The state gave Jake to a couple who planned to adopt him, but Action News has learned that just three months later they changed their mind because Jake was having trouble adjusting. Now, he is with yet another foster family.
"It's so hard, I miss him so much," says Cheryl Martin, crying.
"Whether it's Christmas or birthday, there is no easy date," says Rob Martin.
In Immanuel's case, Renee Neal and the boy's grandpa were his foster parents. When they divorced, Immanuel stayed with Renee. Records show the state had granted Neal the right to adopt Immanuel. Records say it would be in Immanuel's "best interest" to remain in Neal's care.
"I was the only person who had an application in to adopt Immanuel," she says.
But Renee says when she complained about a social worker not getting Immanuel services the worker accused Neal of interfering with Immanuel's visitation with his grandpa--and recommended the adoption be revoked.
"...the only thing I had throughout the whole process was my word against the workers and they won," says Neal.
Now, Immanuel's grandpa is adopting the little boy and Neal has no right to see the seven-year old ever again.
"It's like a death," she says, crying.
Richard McNeil was the foster parent of his two great nephews. He was trying to adopt them when the state removed the boys based on a single accusation.
"I would rather have state police come to my home and do an actual investigation like it's supposed to be done, not some half-baked investigation all slanted one-sided..." he says.
The boys were taken when a nurse's aide accused McNeil's ex-wife of slapping the oldest one. At the time, they were visiting a friend at a nursing home.
"...being accused of this is devastating to me," says Anne McNeil, Richard's ex-wife. "I don't sleep."
The McNeil's say their nephew has attention deficit disorder. sometimes they hold is face to talk to him. They believe that is what the aide saw. The aide did not return our calls.
"What they did is not right. they say, oh the boy's will bounce back. yeah, right, sure," says Richard McNeil.
"I try to think about it as if I was to have a conversation with this child 20 years down the road," says Johnson. "Would I be able to say that the decision I made was something I could defend to the child?"
Johnson decides 2700 of these cases a year--but says only about 10 percent are complex. It's difficult to challenge Johnson. You need money for a lawyer to appeal him in court and the chances of succeeding are slim.
"It has been very rare that I have reversed him," say Wayne County Circuit Court Judge Mary Beth Kelly.
Kelly has presided over hundreds of adoption cases. She says although she often has disagreed with Johnson, the law limits her ability to reverse his decisions.
"...it's a very high legal standard," says Kelly.
"...you have power that is concentrated in the department of human services within specific branch to make life altering decisions for children," says Vivek Sankaran, assistant professor at the Child Advocacy Law Clinic at U-M. He also represents parents who appeal Johnson's decisions.
"They're relying on often one-sided information from a specific case worker without hearing, kind of getting the wealth and breadth of information from different parties..."
Sankaran says Michigan is unique in giving one person final say in adoptions. Most states rely on the courts to decide those cases and he believes Michigan should as well.
"...not because judges are perfect, but because we've created open processes," says Sankaran. "We don't have that type of openness right now in Michigan."
In written responses the state says it works hard to get foster kids in good homes and that adoptions increased 10 percent last year--the highest number of adoptions ever in one year. The Martins and Richard McNeil have taken their cases to court. Renee Neal does not have the money to appeal.
http://mobile.wxyz.com/w/main/story/10781036/p1/
Sunday, May 2, 2010
So much bluster, but foster kids' drug nightmare continues
So much bluster, but foster kids' drug nightmare continues
BY FRED GRIMM
FGRIMM@MIAMIHERALD.COM
Gabriel Myers died for nothing.
His shocking death supposedly galvanized Florida. It would mean something, this suicide of a foster kid who had been drugged into nether-consciousness with antidepressants and antipsychotics never intended for any child, much less a 7-year-old.
A new law would be crafted. State-sponsored zombification of foster kids would be stanched. Something would be done.
More like nothing.
``I was shocked. I was devastated,'' said Mez Pierre, a young survivor of the unrestrained psychotropic regimes used to addle Florida foster kids.
THE PERPLEXING PUSHBACK
Pierre, 23, joined a number of child advocates, state officials, political leaders and judges in the Gabriel Myers Work Group formed by the Department of Children & Families. They met a dozen times over the past year, exploring legislative fixes for this stunning propensity to subdue foster children with adult-strength pharmaceuticals.
The group was born out of our collective shame. Gabriel Myers had been addled with Lexapro, Zyprexa and Symbyax -- a drug cocktail no real parent would countenance. On April 15, 2010, Gabriel locked himself in the bathroom of his Margate foster home, coiled a shower hose around his neck and shocked Florida into . . . nothing.
The widely supported bill designed to regulate the drugging of foster kids disappeared in the House of Representatives this week. Medical and drug-industry lobbyists, and a single powerful legislator, Rep. Paige Kreegel, chairman of the Health Care Services Policy Committee, managed to waylay the bill.
Bernard P. Perlmutter, director of the University of Miami's Children & Youth Law Clinic, was surprised that ``pushback came from doctors and psychiatrists, since the bill did little more than codify existing medical ethics standards and laws regarding consent from a child's parents or judge, and assent from the child, before psychotropic medication could be administered.''
Kreegel feigned unfamiliarity with Myers' case. ``I am shocked that the chairman never heard about Gabriel Myers, especially after the months of work by a task force of leading experts and then work by the Senate,'' said Broward child advocate Andrea Moore. ``Unfortunately, we know there are other children who have been harmed by the unfettered use of these drugs as chemical restraints. If a highly publicized death is not enough to galvanize the Legislature, I do not know what will do it.''
SPIRITS IN SHACKLES
Mez Pierre now understands Florida's priorities: Doctors matter. But foster children . . .
``They sent foster kids a message.'' he said.
``You're just not important enough to protect.''
Pierre, 23, grew up in so-called ``therapeutic'' foster homes from age 5 to 18, shuffling from one zombie warehouse to another, where psychotropic drugs left him perpetually listless, filled his head with strange, often suicidal thoughts and caused serious physical side effects.
The brutal effects ended when he left foster care at age 18 and quit the psychotropics. Without the pills, the supposedly unruly young man has finished three years at Broward College. ``But what happened to me, what happened to Gabriel, it's still going on,'' Pierre said.
And all the work group meetings. All the talk. All the work. As if foster kids mattered.
It came to nothing.
Read more: http://www.miamiherald.com/2010/05/01/1608909/so-much-bluster-but-foster-kids.html#ixzz0mp1mne2N
BY FRED GRIMM
FGRIMM@MIAMIHERALD.COM
Gabriel Myers died for nothing.
His shocking death supposedly galvanized Florida. It would mean something, this suicide of a foster kid who had been drugged into nether-consciousness with antidepressants and antipsychotics never intended for any child, much less a 7-year-old.
A new law would be crafted. State-sponsored zombification of foster kids would be stanched. Something would be done.
More like nothing.
``I was shocked. I was devastated,'' said Mez Pierre, a young survivor of the unrestrained psychotropic regimes used to addle Florida foster kids.
THE PERPLEXING PUSHBACK
Pierre, 23, joined a number of child advocates, state officials, political leaders and judges in the Gabriel Myers Work Group formed by the Department of Children & Families. They met a dozen times over the past year, exploring legislative fixes for this stunning propensity to subdue foster children with adult-strength pharmaceuticals.
The group was born out of our collective shame. Gabriel Myers had been addled with Lexapro, Zyprexa and Symbyax -- a drug cocktail no real parent would countenance. On April 15, 2010, Gabriel locked himself in the bathroom of his Margate foster home, coiled a shower hose around his neck and shocked Florida into . . . nothing.
The widely supported bill designed to regulate the drugging of foster kids disappeared in the House of Representatives this week. Medical and drug-industry lobbyists, and a single powerful legislator, Rep. Paige Kreegel, chairman of the Health Care Services Policy Committee, managed to waylay the bill.
Bernard P. Perlmutter, director of the University of Miami's Children & Youth Law Clinic, was surprised that ``pushback came from doctors and psychiatrists, since the bill did little more than codify existing medical ethics standards and laws regarding consent from a child's parents or judge, and assent from the child, before psychotropic medication could be administered.''
Kreegel feigned unfamiliarity with Myers' case. ``I am shocked that the chairman never heard about Gabriel Myers, especially after the months of work by a task force of leading experts and then work by the Senate,'' said Broward child advocate Andrea Moore. ``Unfortunately, we know there are other children who have been harmed by the unfettered use of these drugs as chemical restraints. If a highly publicized death is not enough to galvanize the Legislature, I do not know what will do it.''
SPIRITS IN SHACKLES
Mez Pierre now understands Florida's priorities: Doctors matter. But foster children . . .
``They sent foster kids a message.'' he said.
``You're just not important enough to protect.''
Pierre, 23, grew up in so-called ``therapeutic'' foster homes from age 5 to 18, shuffling from one zombie warehouse to another, where psychotropic drugs left him perpetually listless, filled his head with strange, often suicidal thoughts and caused serious physical side effects.
The brutal effects ended when he left foster care at age 18 and quit the psychotropics. Without the pills, the supposedly unruly young man has finished three years at Broward College. ``But what happened to me, what happened to Gabriel, it's still going on,'' Pierre said.
And all the work group meetings. All the talk. All the work. As if foster kids mattered.
It came to nothing.
Read more: http://www.miamiherald.com/2010/05/01/1608909/so-much-bluster-but-foster-kids.html#ixzz0mp1mne2N
Foster child dies during sleepover
Foster child dies during sleepover
By The Canadian Press
SPRUCE GROVE, Alta. - RCMP are now saying that a 13-year-old foster child was actually on a sleepover at a friend's house when he died.
The boy's death in Stony Plain, Alta., on Friday - the third Alberta child in foster care to have died in the last year - prompted calls from opposition politicians for an inquiry.
But Children's Services Minister Yvonne Fritz says this boy was in a "stable, loving home" for years.
She says the foster family is devastated by the boy's death and are grieving his loss.
Const. Barbara Roy says police are trying to figure out what the boy was doing before they received the call at 9 a.m. on Friday that he was in distress and was having trouble breathing.
She says as far as police know, he had been in bed asleep.
"We're trying to track back to see what he had been doing and speak to people that had been around him, see what was going on," said Roy.
Nonetheless, critics say the recent deaths have them very concerned about the system.
"Too many children have died in the so-called care and custody of the province," said Liberal MLA Harry Chase.
"If the government makes the major decision to pull them out of the custody of their birth parents, then they have to ensure their quality of life and that has not been the case."
Fritz said there will be no public inquiry.
"This situation is one that is very intimate with this family about what has happened with the loss of this young man," said Fritz.
The cause of death will be determined following an autopsy which is scheduled early next week.
RCMP say no arrests have been made and they have no suspects, adding they don't even know yet whether the death was the result of foul play or natural causes.
http://cnews.canoe.ca/CNEWS/Canada/2010/05/02/13796006-cp.html
By The Canadian Press
SPRUCE GROVE, Alta. - RCMP are now saying that a 13-year-old foster child was actually on a sleepover at a friend's house when he died.
The boy's death in Stony Plain, Alta., on Friday - the third Alberta child in foster care to have died in the last year - prompted calls from opposition politicians for an inquiry.
But Children's Services Minister Yvonne Fritz says this boy was in a "stable, loving home" for years.
She says the foster family is devastated by the boy's death and are grieving his loss.
Const. Barbara Roy says police are trying to figure out what the boy was doing before they received the call at 9 a.m. on Friday that he was in distress and was having trouble breathing.
She says as far as police know, he had been in bed asleep.
"We're trying to track back to see what he had been doing and speak to people that had been around him, see what was going on," said Roy.
Nonetheless, critics say the recent deaths have them very concerned about the system.
"Too many children have died in the so-called care and custody of the province," said Liberal MLA Harry Chase.
"If the government makes the major decision to pull them out of the custody of their birth parents, then they have to ensure their quality of life and that has not been the case."
Fritz said there will be no public inquiry.
"This situation is one that is very intimate with this family about what has happened with the loss of this young man," said Fritz.
The cause of death will be determined following an autopsy which is scheduled early next week.
RCMP say no arrests have been made and they have no suspects, adding they don't even know yet whether the death was the result of foul play or natural causes.
http://cnews.canoe.ca/CNEWS/Canada/2010/05/02/13796006-cp.html
children advertised like puppies on BAAF website
children advertised like puppies on BAAF website
By melthemoocher
Children being advertised like PUPPIES on BAAF website “I have just found MY twins on the adoption website the way social services have described them is unreal they are just babies not animals that have just started walking they are not noisey children they need to be at home with there real family not some people who think they can parent a child because they cant have them themselves i might be a young mum but i would never harm my children and they was taken away from me because i was a young SINGLE mum of twins its unfair young single parents should not be a traget its not very often you hear a teen mum harming her child infact on the news its been growen adults killing their children strarving them its disgusting social services should be ashamed and as for SHEENA ADAMS coming into my home and taking my beautiful children away from me half of them doesnt know what its like to be a mum MUMMY LOVES YOU KEISHA-JADE AND KACEY-JAYE WITH ALL MY HEART.” This is from the poor mother who has discovered her children for sale in the forced adoption catalogue courtesy of Cannock Social Services. This mother has obviously not willingly surrendered her children so those in doubt of the barbaric trade of forced adoption take heed. See this mothers beautiful twins here . Do they look abused or neglected ? From:http://staffordshiresocialservices.wordpress.com/2010/04/29/cannock-social-services-advertise-children-like-lost-puppies-on-baaf-website/ THESE TWO CHILDREN HAVE BEEN STOLEN FOR ADOPTION BY CANNOCK SOCIAL SERVICES AND ARE BEING ADVERTISED LIKE LOST PUPPIES ON A BAAF-AFFILIATED WEBSITE. I REPEAT: THESE CHILDREN HAVE BEEN STOLEN. PLEASE DISTRIBUTE THESE PICTURES FAR AND WIDE, WE NEED TO LET THE WORLD KNOW THAT LOCAL AUTHORITIES IN THE UK ARE CRIMINALS AND THE PROOF IS IN THE SCREENGRAB ABOVE!
http://melthemoocher.wordpress.com/2010/05/01/children-advertised-like-puppies-on-baaf-website/
By melthemoocher
Children being advertised like PUPPIES on BAAF website “I have just found MY twins on the adoption website the way social services have described them is unreal they are just babies not animals that have just started walking they are not noisey children they need to be at home with there real family not some people who think they can parent a child because they cant have them themselves i might be a young mum but i would never harm my children and they was taken away from me because i was a young SINGLE mum of twins its unfair young single parents should not be a traget its not very often you hear a teen mum harming her child infact on the news its been growen adults killing their children strarving them its disgusting social services should be ashamed and as for SHEENA ADAMS coming into my home and taking my beautiful children away from me half of them doesnt know what its like to be a mum MUMMY LOVES YOU KEISHA-JADE AND KACEY-JAYE WITH ALL MY HEART.” This is from the poor mother who has discovered her children for sale in the forced adoption catalogue courtesy of Cannock Social Services. This mother has obviously not willingly surrendered her children so those in doubt of the barbaric trade of forced adoption take heed. See this mothers beautiful twins here . Do they look abused or neglected ? From:http://staffordshiresocialservices.wordpress.com/2010/04/29/cannock-social-services-advertise-children-like-lost-puppies-on-baaf-website/ THESE TWO CHILDREN HAVE BEEN STOLEN FOR ADOPTION BY CANNOCK SOCIAL SERVICES AND ARE BEING ADVERTISED LIKE LOST PUPPIES ON A BAAF-AFFILIATED WEBSITE. I REPEAT: THESE CHILDREN HAVE BEEN STOLEN. PLEASE DISTRIBUTE THESE PICTURES FAR AND WIDE, WE NEED TO LET THE WORLD KNOW THAT LOCAL AUTHORITIES IN THE UK ARE CRIMINALS AND THE PROOF IS IN THE SCREENGRAB ABOVE!
http://melthemoocher.wordpress.com/2010/05/01/children-advertised-like-puppies-on-baaf-website/
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