Parent Attorney Trial Notebook for Deprivation Cases in Georgia’s Juvenile Courts- In Jackson County Georgia This is Not Happening
May 3, 2010yvonnemason
http://www.fcs.uga.edu/childfamilypolicy/proj/parentattorney.pdf
As most parents who have lost children to Child Protective Services know, lawyers as a general rule have no clue as to what to do or how to handle the case. Most of them are not trained, have not been trained and have no desire to be trained on how to get children back who have been snatched by Child Protective Services. They don’t know how to fight the case because they are totally lost in the quagmire. They don’t understand it is not a criminal case, yet the parent is accused of a felony. Now that charge is never sent to criminal court, it is in family court. Which is full of corruption, greed, collusion and abuse on the part of the court, and child protective services. It is all about the money.
That being said, this manual is a step by step manual to teach your attorney and you how to proceed with the case. In my experience with Jackson County Ga Public Defender’s office, they have no clue and when something is brought to their attention like the panel is open and they are allowed to be there in fact are supposed to be there. The public defender is being paid by your tax money. They are paid to repesent you and to fight your case to the fullest- not to just give it lip service or to hang you out to dry when it suits them because they don’t know what they are doing. It is time for them to work and to step up to the plate.
I am not a lawyer, I don’t pretend to be, however, I am smart enough to know that if I don’t know how to do something to go find it. I did. This manual and many more like it. Each parent should add this to the other information I have given you. Your Attorney works for you. He can’t just bail because he doesn’t know something. It is time for them to earn those tax dollars.
When you go before the panel you have the right to have your attorney present, if he is to busy or to lazy to go with you and to field the questions that are going to be thrown at you, then he needs to not get paid. He doesn’t have the right to tell you to get another attorney. He needs to do his job. They use that as a cop out.
The manual which was sponsored and supported by The Supreme Court of Georgia’s Committee on Justice for Children and The Georgia Public Defender Standard Council States:
“The purpose of these standards is to provide attorneys representing parents with a general guide to appropiate and zealous advocacy on behalf of clients in juvenile court deprivation and termination of parental rights cases.
Performance Standard 1:
The primary and most fundamental obligation of a family defender is to provide zealous and effective representation for his or her client at all stages of the juvenile court proceedings. The parent attorney’s duty is to promote and protect the parents expressed interest.
Standard 2:
Deprivation and termination of parental rights cases should not be taken on without the adequate experience and knowledge necessary to represent the client zealously.
2.1 Before practing in juvenile court, parent attorney should be proficient in applicable substantive and procedural Georgia juvenile law and federal laws relating to child abuse and neglect and should have appropriate experience, skills and training necessary to represent parents.
a. at a minimum parent attorney should observe at least ten hours of juvenile court including every stage of a deprivation/TPR proceeding. Parent attorney should obtain a minimum of six hours per year of training in relevant areas of practice.
b. It is highly recommended that parent attorney either work with a mentor before taking a case or have a mentor available to consult on a case.
2.2 Parent Attorney should be knowledgeable about and seek ongoing training in the following areas
a. DFCS policies and procedures
b.Federal Regulations relating to DFCS and foster care;
c. Services available to children and parents through the juvenile court and community
d. Child development
e. Adoption process/benefits available
f.Substance abuse, addiction recovery stages
g.Causes and available treatment for child abuse and neglect
h. Effective communication skills to communicate with child witnesses
i.Cultural competency
j.State and Federal government benefits
k Immigration laws relating to child welfare and child custody
l.Interstate Compact on Placement of Children
m. Medical and Dental Care
n.Domestic Violence
o. Disablities
2.5 Before agreeing to act as parent attorney or accepting appointment by a court, parent attorney has an obligation to make sure he/she has available sufficient time, resources, knowledge and experience to offer effective representation to a client in a particular matter. If it later appears that parent attorney is unable to offer effective representation in the case, he/she should move to withdraw.
2.7 If parent attorney is an Assistant Public Defender and parent attorney’s caseload becomes so large that he/she is unable to satisfactorily meet these performance standards, he/she shall inform the Circuit Public Defender’ for parent attorney’s judicial circuit and the court or courts before whom parent attorney’s cases are pending. If the Circuit Public Defender determines that the caseloads for the entire office are so large that parent attorney is unable to satisfactorily meet these performance standards, the Circuit Public Defender shall inform the court or courts before whom cases are pending and the Director of the Georgia Public Defender Standards Council.”
Which brings me to my next point. That being the Review Hearings also known as Panels.
Panels are made up of volunteers from the community and are approved by the Judge. They get to rake the parent over the coals. At this panel is the Caseworker, the supervisor, the foster parent, the guardian et litem and the COSA person. They all get their turn at the parent. According this manual the parent attorney is supposed to attend. It is considered a review hearing.
It states: Georgia Standards for Parent Attorney at Review Hearings.
Performance Standard 12
Parent Attorney’s Duty at Review Hearing
Commentary:
“Review hearings are court proceedings that take place after disposition in which the court reviews the status of the case. In many counties, this hearing is delegated to citizen review panels which do a full review of the case and make recommendations to the judge. The judge will then review the same case on paper and with the panel’s recommendations and will issue an order incorporating those recommendations, if appropriate.12.1 For Citizen review panels parent attorney should:
a. Request notice of the panel hearing
b. Prepare for and participate in the meeting when warranted;
c. If necessary, provide information in writing to the panel;
d. Discuss the proceeding with the client before and after the review;
e. Have client collect information on progress made on case plan and goals achieved to present to DFCS prior to the review, and to the panel at the review
f. Review the report of the panel and request judicial review or in-court review if needed
g. Confirm that the citizen review panel does not make any additional caseplan goals with a court hearing
12.2 For Judicial Review the Attorney should:
a. Request notice of the court date
b.Attend each review
c.Talk to service providers or others who may help client
d.Explore whether child can now be returned home or ensure that the current placement is still appropriate and the lest restrictive
e. Modify or increase the visitation schedule, as needed
f. Ensure the agency is making reasonable efforts by providing services to eliminate the need for placement of the child
g. Explore whether any additional court orders need to be mde to move the case toward successful completion
i. Determine whether the current custody order has expired
j.Explore the current permanency plan for the child and ensure that it is appropriate
k modify deadlines and timelines as needed
l Make a record of caseworkers changes.
12.3 Parent Attorney should request a review when court intervention is necessary to resolve a dispute in such matters as visitation, placement or services
12.4 Parent Attorney should request a review when any event occurs that may significantly affect the need for continued placement
12.5 Parent attorney should move the court to return the children or extend visitation in the least restrictive alternative if the client is meeting t he requirements of the case plan
12.6 Parent Attorney should move the court to require DFCS to provide services if they are not being provided. “
This is just a short list in the manual. Jackson County Public Defender’s office has not done any of these. They refuse to go to the panel with Samantha on May 19th – she was told they couldn’t go. According to their own manual they are supposed to go. They are supposed to work that panel just like they would if they were in front of the judge. They are to get her information- ie job searches, etc.
This is just another piece of the travesty and collusion that is going on in that county. If they are not experienced then they need to be educated, if they are not willing to do it then they need to assign her to someone who is. They are not truthful with their client. She is entitled to have him with her at that panel. She is entitled to an attorney who will fight for her. She is entitled to her public defender because she is indigent. She is entitled to the best defense she can get – she should not be given shoddy representation just because she is poor.
Each of you parents go to this site and print this manual. It will save your life and maybe those of your children who have been stolen.
http://protectingourchildrenfrombeingsold.wordpress.com/2010/05/03/parent-attorney-trial-notebook-for-deprivation-cases-in-georgias-juvenile-courts-in-jackson-county-georgia-this-is-not-happening/
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
TAKING A CLOSER LOOK AT CHILD PROTECTION SERVICES: DR. FLETCHER BROTHERS AND FREEDOM VILLAGE LEADING THE WAY
If This Article were not So True it would be laughable
May 3, 2010yvonnemason
TAKING A CLOSER LOOK AT CHILD PROTECTION SERVICES: DR. FLETCHER BROTHERS AND FREEDOM VILLAGE LEADING THE WAY
By Rick Kern
The black market teems with the sinister bustle of self-satisfied profiteers as they cash in from the shadows. Among the nation’s most enterprising entrepreneurs, their backrooms, alleys and restaurants host countless underhanded business transactions where the players move in and out like phantoms as they continue to sink to new lows and broker all kinds of seedy deals. Their inventory includes the usual goods and services -old standards such as harlotry, marijuana and other illicit drugs, electronics, bootlegged CDs and DVDs and on and on it goes. If someone wants it, someone else will find a way to sell it -there’s gold in them there cesspools.
And as is typical of even this squalid underside of corporate America, the roost is ruled by the law of supply and demand. But there is an alarming demand for one item so shocking that even the most artful brokers can’t keep the shelves stocked. What is this latest craze sweeping America -break out the Rolaids, sit down and buckle your seatbelts. It is our children. The foster care system is big business and business is booming big across the country. In fact, the cheerful chime of the cash registers has echoed so loud that our neighbors to the north have opened their own franchise, granting their counterpart of the United States’ Child Protection Services, (CPS), benignly dubbed the Children’s Aid Society, (CAS), powers so broad that they out-muscle and eclipse even the sweeping reach of our own Department of Social Services.
Tongue and cheek aside the problem is real, graphic and driven hard by our bourgeoning godlessness, ever declining moral standards and the devastating breakdown of the family. The issues facing Child Protection Services are complex and varied. Like most government agencies, they are under staffed, under funded and over burdened with profoundly consequential problems. Still, there is much more to the mix, but you have to dig down to the bottom of the sewer to get to it. Among those emerging on the local front as a force to reckoned with against these heartbreaking inequities is Pastor Fletcher Brothers, Founder and Director of Freedom Village USA. Established in 1974 the organization has been transforming the lives of troubled teens for some 30 years and catalogs a remarkable anthology of success stories. At any given time the group houses over 150 teens on its sprawling campus and addresses every problem imaginable including drug and alcohol addiction, rebellion, prostitution and even suicide with the love and grit necessary for struggling victims to get their lives back on track. And while Senator Hillary Clinton may not have had Freedom Village in mind when she wrote It Takes a Village, the comprehensive program has revolutionized thousands of shattered lives creating a mosaic of hope and stability among our nation’s traumatized youth that has earned Brothers even the grudging admiration of his many detractors.
Pastor Brothers learned of the widespread problems within the Social Services system by getting up-close-and-personal with the jagged edges of the many lives left shattered by it. They are not statistics that find a home on his desk, but savaged young lives that find a home in his heart. “Don’t get me wrong,” he declares in his typically forceful manner, “we need a system to protect children and there are many wonderful people working within it. But the system that is supposed to be protecting them is now part of the problem, the system’s out of control.”
He should know he has cradled its victims in his arms and brushed their tears away with his hands while crying his own. There are the stories, each more heartrending than the one before it. M, now a 23 year-old Freedom Village resident spent seven years in the system as M’s lesbian mother (along with her lover) was approved to be a foster parent and hosted children in an environment that rats would run from. She suffered every type of cruelty and neglect imaginable as the “foster parents” continually abused drugs and alcohol. According to M the children repeatedly endured beatings, primarily from her mother’s lover, and she was also sexually abused. The refrigerator was kept locked and things only grew worse whenever anyone complained or cried.
M estimates that during the course of her mother’s tenure as a foster parent, Child Protection Services visited their home over 200 times to evaluate the quality of the care being received by the children who resided there. She explains that she would sit on the steps during these visits with ripped clothes, unkempt hair, dirty, bruised and scratched wondering why the CPS workers could not see what was going on.
A, now 19 years-old, had similar experiences including foster parents as an infant who left her alone with only her young brother for two days. She wasn’t changed or bathed regularly and wound up hospitalized as a result of the care (or lack thereof) given her in the state approved home. When she was older she was placed in a foster home where she was continually locked in her room and rarely allowed to do anything. She was beaten frequently and even pushed down the stairs.
The stories reverberate like an aching echo throbbing through life after broken life. There is 15 year-old C who was in eight different foster homes and abused in four of them. And J, also 15 years-old, who spent nearly half of her life navigating the deadly reefs of the foster care system. Of the 26 foster homes she drifted through, J estimates that 17 of them were abusive. The same can be said for Z, aged 17, who endured unspeakable horrors in 17 of the 20 foster homes he lived in.
The nightmares are not confined to Western New York but have polluted the entire system. For example, in Superior Court of Arizona, Maricopa County, a class action lawsuit, Bogutz v. Arizona, was filed on behalf of foster children in 1994. It is emblematic of the alarming scope of sexual abuse of children in state care. The suit charged that more than 500 of an estimated 4,000 foster children had been sexually abused while in state care. The action also alleged, that “the acts and omissions of Defendants were done in bad faith, with malice, intent or deliberate indifference to and/or reckless disregard for the health, safety and rights of the Plaintiffs.”
As might be expected, the problems related to foster placements in Arizona are not confined to sexual abuse. Like the victims at Freedom Village, studies have shown that during a two-year period, one foster child died on average every seven and a half weeks in the state of Arizona. Four of them were reported as having been “viciously beaten to death” by their foster parents,” (Jeff Jacoby, “Catastrophe in Foster Care,” Boston Globe, July 18, 1995).
Similar tragedies have been reported from every corner of the country. Both Tai Aguirre, Executive Producer and host of Talk Radio’s Could YOU Be Next and The Charlotte World, an alternative news publication that publishes more stories each week than any other alternative news outlet, are among the media sources that have covered the disgraceful government sanctioned abduction of one year old Shaday Fasinro. The outrage occurred on Dec. 15, 2000 when social workers and police officers came into the couple’s home in the evening and took the terrified baby away. Aguirre quotes Yinka Fasinro the child’s distraught father on his web site, (www.couldyoubenext.com), “Agents from the Department of Social Services and police pushed their way in and forced our baby from our arms.”
According to Angie Vineyard’s disturbing story in The Charlotte World, the travesty was driven not by abuse or neglect that had been carefully investigated and documented, but by Yinka and Vanessa Fasinro’s religious convictions which “led them to a vegetarian diet, breast-feeding, and skepticism about vaccinations for their baby.” “These same convictions also led social workers to their door,” Vineyard reports, “who took their baby from them.” Interestingly, the couple is reported to embrace the Christian faith and Yinka is not Mr. but Rev. Fasinro, reflecting mounting concerns that a disproportionate number of Christians are finding themselves in the Department of Social Services’ crosshairs. Ms. Vineyard also covered a related, glaring scandal in Mecklenburg County, North Carolina that explains the how the well-intentioned system feeds off of itself in the hands of corrupt men.
A Charlotte World exclusive entitled The Fight For Spencer, was prefaced by the ominous warning, “Across the Carolinas, Christian families are battling local departments of social services for custody of their children and other basic parental rights.” Vineyard wrote, “After battling the Department of Social Services (DSS) in court for an entire year, a Christian couple has finally been given full custody of their oldest son. A hearing judge for the clerk of Mecklenburg County Superior Court ruled on February 19 that 18-year-old Spencer should immediately go home with his parents, Jack and Kathy Stratton.” The Strattons were allegedly victims of not just a deeply flawed system, but of Richard “Jake” Jacobsen, a predatory Director of the Department of Social Services (DDS) in Mecklenburg County who is accused by some of running an unthinkable money-making scam by franchising the very children he has been hired to protect. “There is a government run and sponsored black and interracial child slave trade operation in Mecklenburg County in which black and interracial children are illegally kidnapped from their parents, labeled “special needs” because they are black or interracial and then held for years in state custody while Mecklenburg County collects an estimated $30,000 to $150,000 per child per year,” claims the Family Rights Association on their web site. “We have first hand documentation of this racketeering operation because we are an interracial couple whose 10 children were illegally kidnapped from another county on January 30, 2001 by this Mecklenburg County cartel.” The charges continue, “The man hired to run this multi-billion dollar operation is Mecklenburg DSS Director Richard “Jake” Jacobsen, a man who was removed from the same position as DSS Director in San Diego, California in 1992 after two Grand Juries found his administration guilty of stealing children and committing other atrocities in San Diego.”
If the allegations are on target it is just another grim reminder that no system can be greater than the integrity of those who staff it. In 1997, Congress passed the Adoption and Safe Families Act a provision intended to expedite the removal of endangered children from perilous living conditions. Additionally, it provided financial incentives to states to encourage them to find adoptive or other permanent homes for foster children, especially those with special needs.
Under the “Adoption Incentive Payment” section of the act, a state can receive as much as $4,000 for adopting out a child. Under a subsequent provision, technical assistance is offered “through grants or contracts?to assist states and local communities to reach their targets for increased numbers of adoptions.” This financial assistance can be used to expedite the termination of parental rights and “encourage the fast tracking of children who have not attained 1 year of age into pre-adoptive placements.” Technical assistance is also appropriated to the courts to the tune of a whopping $5,000,000 for each fiscal year.
Most applaud the spirit of the law, to move children from foster homes into permanent adoptive placements thus establishing a greater level of stability. But the obvious danger is that the very governing state agency entrusted with protecting children from dangerous environments and working with parents to reunite their families, is also given fat bonuses by the federal government if they push to terminate parental rights and increase their adoption numbers. The counter productive potential of the kick-backs in the hands of unprincipled men is obvious and lend plausibility to the sinister allegations against the Mecklenburg DSS Director. Talk Radio’s Could YOU Be Next? also covered the Stratton nightmare on its web site, saying “A sworn affidavit by witness Gaston County Patrol Officer Jeannette Seagle states that “there was no need for the removal of the children.”
South Carolina apparently got gold fever and joined the rush as well. The Charlotte World also reported in a feature, Christian Family Ripped Apart that “with virtually no warning, the Greenville Department of Social Services came into Bill and Debbie Rettew’s home, removed 15 of their 18 children and placed them in foster homes.” The family, which was so talented and exemplary that Bill Rettew was named Father of the Year, (an honor reportedly bestowed by the South Carolina Attorney General), and invited to appear on Focus on the Family to meet Founder and president Dr. James Dobson and sing on his weekly radio broadcast. And while such an excessive seizure begs countless questions, in light of the federal incentives the internal dynamics of the Rettew family shed no small light on the subject. As the Charlotte World explains: “Having given birth to Will and Autumn, now 32 and 24, the Rettews felt strongly that it was their Christian mission to care for children others might not want. So they became foster parents and eventually adopted multi-racial kids and children with medical problems. Every one of their adopted 18 have physical, emotional or mental disabilities. The reasons the children were taken into DSS custody remain unclear since Family Court Judge Amy Sutherland placed a gag order on the Rettews and DSS officials, prohibiting them from discussing the case.”
In an article entitled, The Real Abuse, appearing in” National Review, (April 12, 1993), psychologist and author Dr. Seth Farber lamented “Only a small minority of these children have been separated from parents who are dangerous to them. The overwhelming majority have been separated from loving and responsible parents. One does not need to be a child psychologist to realize the devastating effect of removing a child from parents with whom he or she is deeply bonded.”
But what if those children were not only ruthlessly and unnecessarily stripped from their homes, but subsequently placed in same-sex households! WorldNetDaily.com ran a blockbuster expose last summer that loosely probed the probability of gay couples being supplied with children from heterosexual parents through the Social Services system (posted July 1, 2004). “The vast majority will come, because they already do come, from pre-existing heterosexual families,” wrote Stephen Baskerville. “In Massachusetts,” he continued, “Forty percent (40%), of the children adopted have gone to gay and lesbian families,” according to Democratic state Senator Therese Murphy.”
According to Pastor Brothers, Child Protection Services can, through the extremely broad powers granted them, be on your doorstep demanding your children based upon an anonymous complaint. And the way the system works, the agency removes the children first (to get them out of harm’s way), and asks questions later. However, the questions asked and the way they are posed can be insidious causing the protracted placement of your children into the foster care system until the truth can be ascertained and addressed by an overburdened court system. But by then the damage is done, potentially causing emotional damage and financial ruin for children and parents who incur costly legal expenses fighting the system to regain custody of their kids.
In her Parents Guide to the System, Cheryl Barnes, National Director of CPSWatch, a grassroots watchdog that advocates on behalf of victims of the SSD, notes some of the creative ways CPS workers “stack” their affidavits. The petition may read, “there’s a hole in the kitchen floor” when the truth is “there’s a tear in the linoleum.” Or the petition will read, “child was covered with bruises” when the truth is “the child has minor scrapes and bruises on shins from climbing trees.” And in an Oscar winning spin the petition reads, “home was piled to the ceiling with clutter,” when the truth is that “the parents were packing to move.”
The courts may be doing their jobs returning sixty to sixty-five percent (60 to 65%) of the children to their homes after declaring that the complaint (which can be a two-minute anonymous phone call remember) is Unfounded. However, Pastor Brothers notes that some seventy percent (70%) of those return on mind-altering drugs, usually prescribed via DSS physicians/mental heath professionals to help the children who have been traumatized because they have been torn from their homes and forced to live with strangers. In San Antonio, Texas the figure was closer to eighty-five percent (85%) according to an investigative report done by a television station there.
His counsel, “The average Christian doesn’t know their rights,” he says. “The minute you let the Department of Social Services in your house you’re surrendering your rights as a parent, you’re letting the Devil in your house.” Accordingly, he has begun an aggressive thrust to enlist Christians in Pre-Paid Legal Services, a bourgeoning program that offers a complex of attractive legal services for extremely reasonable fees. For more information about Freedom Village USA, one of the finest foster care facilities in New York State, call them at: 1-(800) 842-8679.
WORD NEWS
Christian News Buffalo, NY
http://protectingourchildrenfrombeingsold.wordpress.com/2010/05/03/if-this-article-were-not-so-true-it-would-be-laughable/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+HowChildProtectionServicesBuysAndSellsOurChildren+(How+Child+Protection+Services+Buys+and+Sells+Our+Children)&utm_content=FeedBurner
May 3, 2010yvonnemason
TAKING A CLOSER LOOK AT CHILD PROTECTION SERVICES: DR. FLETCHER BROTHERS AND FREEDOM VILLAGE LEADING THE WAY
By Rick Kern
The black market teems with the sinister bustle of self-satisfied profiteers as they cash in from the shadows. Among the nation’s most enterprising entrepreneurs, their backrooms, alleys and restaurants host countless underhanded business transactions where the players move in and out like phantoms as they continue to sink to new lows and broker all kinds of seedy deals. Their inventory includes the usual goods and services -old standards such as harlotry, marijuana and other illicit drugs, electronics, bootlegged CDs and DVDs and on and on it goes. If someone wants it, someone else will find a way to sell it -there’s gold in them there cesspools.
And as is typical of even this squalid underside of corporate America, the roost is ruled by the law of supply and demand. But there is an alarming demand for one item so shocking that even the most artful brokers can’t keep the shelves stocked. What is this latest craze sweeping America -break out the Rolaids, sit down and buckle your seatbelts. It is our children. The foster care system is big business and business is booming big across the country. In fact, the cheerful chime of the cash registers has echoed so loud that our neighbors to the north have opened their own franchise, granting their counterpart of the United States’ Child Protection Services, (CPS), benignly dubbed the Children’s Aid Society, (CAS), powers so broad that they out-muscle and eclipse even the sweeping reach of our own Department of Social Services.
Tongue and cheek aside the problem is real, graphic and driven hard by our bourgeoning godlessness, ever declining moral standards and the devastating breakdown of the family. The issues facing Child Protection Services are complex and varied. Like most government agencies, they are under staffed, under funded and over burdened with profoundly consequential problems. Still, there is much more to the mix, but you have to dig down to the bottom of the sewer to get to it. Among those emerging on the local front as a force to reckoned with against these heartbreaking inequities is Pastor Fletcher Brothers, Founder and Director of Freedom Village USA. Established in 1974 the organization has been transforming the lives of troubled teens for some 30 years and catalogs a remarkable anthology of success stories. At any given time the group houses over 150 teens on its sprawling campus and addresses every problem imaginable including drug and alcohol addiction, rebellion, prostitution and even suicide with the love and grit necessary for struggling victims to get their lives back on track. And while Senator Hillary Clinton may not have had Freedom Village in mind when she wrote It Takes a Village, the comprehensive program has revolutionized thousands of shattered lives creating a mosaic of hope and stability among our nation’s traumatized youth that has earned Brothers even the grudging admiration of his many detractors.
Pastor Brothers learned of the widespread problems within the Social Services system by getting up-close-and-personal with the jagged edges of the many lives left shattered by it. They are not statistics that find a home on his desk, but savaged young lives that find a home in his heart. “Don’t get me wrong,” he declares in his typically forceful manner, “we need a system to protect children and there are many wonderful people working within it. But the system that is supposed to be protecting them is now part of the problem, the system’s out of control.”
He should know he has cradled its victims in his arms and brushed their tears away with his hands while crying his own. There are the stories, each more heartrending than the one before it. M, now a 23 year-old Freedom Village resident spent seven years in the system as M’s lesbian mother (along with her lover) was approved to be a foster parent and hosted children in an environment that rats would run from. She suffered every type of cruelty and neglect imaginable as the “foster parents” continually abused drugs and alcohol. According to M the children repeatedly endured beatings, primarily from her mother’s lover, and she was also sexually abused. The refrigerator was kept locked and things only grew worse whenever anyone complained or cried.
M estimates that during the course of her mother’s tenure as a foster parent, Child Protection Services visited their home over 200 times to evaluate the quality of the care being received by the children who resided there. She explains that she would sit on the steps during these visits with ripped clothes, unkempt hair, dirty, bruised and scratched wondering why the CPS workers could not see what was going on.
A, now 19 years-old, had similar experiences including foster parents as an infant who left her alone with only her young brother for two days. She wasn’t changed or bathed regularly and wound up hospitalized as a result of the care (or lack thereof) given her in the state approved home. When she was older she was placed in a foster home where she was continually locked in her room and rarely allowed to do anything. She was beaten frequently and even pushed down the stairs.
The stories reverberate like an aching echo throbbing through life after broken life. There is 15 year-old C who was in eight different foster homes and abused in four of them. And J, also 15 years-old, who spent nearly half of her life navigating the deadly reefs of the foster care system. Of the 26 foster homes she drifted through, J estimates that 17 of them were abusive. The same can be said for Z, aged 17, who endured unspeakable horrors in 17 of the 20 foster homes he lived in.
The nightmares are not confined to Western New York but have polluted the entire system. For example, in Superior Court of Arizona, Maricopa County, a class action lawsuit, Bogutz v. Arizona, was filed on behalf of foster children in 1994. It is emblematic of the alarming scope of sexual abuse of children in state care. The suit charged that more than 500 of an estimated 4,000 foster children had been sexually abused while in state care. The action also alleged, that “the acts and omissions of Defendants were done in bad faith, with malice, intent or deliberate indifference to and/or reckless disregard for the health, safety and rights of the Plaintiffs.”
As might be expected, the problems related to foster placements in Arizona are not confined to sexual abuse. Like the victims at Freedom Village, studies have shown that during a two-year period, one foster child died on average every seven and a half weeks in the state of Arizona. Four of them were reported as having been “viciously beaten to death” by their foster parents,” (Jeff Jacoby, “Catastrophe in Foster Care,” Boston Globe, July 18, 1995).
Similar tragedies have been reported from every corner of the country. Both Tai Aguirre, Executive Producer and host of Talk Radio’s Could YOU Be Next and The Charlotte World, an alternative news publication that publishes more stories each week than any other alternative news outlet, are among the media sources that have covered the disgraceful government sanctioned abduction of one year old Shaday Fasinro. The outrage occurred on Dec. 15, 2000 when social workers and police officers came into the couple’s home in the evening and took the terrified baby away. Aguirre quotes Yinka Fasinro the child’s distraught father on his web site, (www.couldyoubenext.com), “Agents from the Department of Social Services and police pushed their way in and forced our baby from our arms.”
According to Angie Vineyard’s disturbing story in The Charlotte World, the travesty was driven not by abuse or neglect that had been carefully investigated and documented, but by Yinka and Vanessa Fasinro’s religious convictions which “led them to a vegetarian diet, breast-feeding, and skepticism about vaccinations for their baby.” “These same convictions also led social workers to their door,” Vineyard reports, “who took their baby from them.” Interestingly, the couple is reported to embrace the Christian faith and Yinka is not Mr. but Rev. Fasinro, reflecting mounting concerns that a disproportionate number of Christians are finding themselves in the Department of Social Services’ crosshairs. Ms. Vineyard also covered a related, glaring scandal in Mecklenburg County, North Carolina that explains the how the well-intentioned system feeds off of itself in the hands of corrupt men.
A Charlotte World exclusive entitled The Fight For Spencer, was prefaced by the ominous warning, “Across the Carolinas, Christian families are battling local departments of social services for custody of their children and other basic parental rights.” Vineyard wrote, “After battling the Department of Social Services (DSS) in court for an entire year, a Christian couple has finally been given full custody of their oldest son. A hearing judge for the clerk of Mecklenburg County Superior Court ruled on February 19 that 18-year-old Spencer should immediately go home with his parents, Jack and Kathy Stratton.” The Strattons were allegedly victims of not just a deeply flawed system, but of Richard “Jake” Jacobsen, a predatory Director of the Department of Social Services (DDS) in Mecklenburg County who is accused by some of running an unthinkable money-making scam by franchising the very children he has been hired to protect. “There is a government run and sponsored black and interracial child slave trade operation in Mecklenburg County in which black and interracial children are illegally kidnapped from their parents, labeled “special needs” because they are black or interracial and then held for years in state custody while Mecklenburg County collects an estimated $30,000 to $150,000 per child per year,” claims the Family Rights Association on their web site. “We have first hand documentation of this racketeering operation because we are an interracial couple whose 10 children were illegally kidnapped from another county on January 30, 2001 by this Mecklenburg County cartel.” The charges continue, “The man hired to run this multi-billion dollar operation is Mecklenburg DSS Director Richard “Jake” Jacobsen, a man who was removed from the same position as DSS Director in San Diego, California in 1992 after two Grand Juries found his administration guilty of stealing children and committing other atrocities in San Diego.”
If the allegations are on target it is just another grim reminder that no system can be greater than the integrity of those who staff it. In 1997, Congress passed the Adoption and Safe Families Act a provision intended to expedite the removal of endangered children from perilous living conditions. Additionally, it provided financial incentives to states to encourage them to find adoptive or other permanent homes for foster children, especially those with special needs.
Under the “Adoption Incentive Payment” section of the act, a state can receive as much as $4,000 for adopting out a child. Under a subsequent provision, technical assistance is offered “through grants or contracts?to assist states and local communities to reach their targets for increased numbers of adoptions.” This financial assistance can be used to expedite the termination of parental rights and “encourage the fast tracking of children who have not attained 1 year of age into pre-adoptive placements.” Technical assistance is also appropriated to the courts to the tune of a whopping $5,000,000 for each fiscal year.
Most applaud the spirit of the law, to move children from foster homes into permanent adoptive placements thus establishing a greater level of stability. But the obvious danger is that the very governing state agency entrusted with protecting children from dangerous environments and working with parents to reunite their families, is also given fat bonuses by the federal government if they push to terminate parental rights and increase their adoption numbers. The counter productive potential of the kick-backs in the hands of unprincipled men is obvious and lend plausibility to the sinister allegations against the Mecklenburg DSS Director. Talk Radio’s Could YOU Be Next? also covered the Stratton nightmare on its web site, saying “A sworn affidavit by witness Gaston County Patrol Officer Jeannette Seagle states that “there was no need for the removal of the children.”
South Carolina apparently got gold fever and joined the rush as well. The Charlotte World also reported in a feature, Christian Family Ripped Apart that “with virtually no warning, the Greenville Department of Social Services came into Bill and Debbie Rettew’s home, removed 15 of their 18 children and placed them in foster homes.” The family, which was so talented and exemplary that Bill Rettew was named Father of the Year, (an honor reportedly bestowed by the South Carolina Attorney General), and invited to appear on Focus on the Family to meet Founder and president Dr. James Dobson and sing on his weekly radio broadcast. And while such an excessive seizure begs countless questions, in light of the federal incentives the internal dynamics of the Rettew family shed no small light on the subject. As the Charlotte World explains: “Having given birth to Will and Autumn, now 32 and 24, the Rettews felt strongly that it was their Christian mission to care for children others might not want. So they became foster parents and eventually adopted multi-racial kids and children with medical problems. Every one of their adopted 18 have physical, emotional or mental disabilities. The reasons the children were taken into DSS custody remain unclear since Family Court Judge Amy Sutherland placed a gag order on the Rettews and DSS officials, prohibiting them from discussing the case.”
In an article entitled, The Real Abuse, appearing in” National Review, (April 12, 1993), psychologist and author Dr. Seth Farber lamented “Only a small minority of these children have been separated from parents who are dangerous to them. The overwhelming majority have been separated from loving and responsible parents. One does not need to be a child psychologist to realize the devastating effect of removing a child from parents with whom he or she is deeply bonded.”
But what if those children were not only ruthlessly and unnecessarily stripped from their homes, but subsequently placed in same-sex households! WorldNetDaily.com ran a blockbuster expose last summer that loosely probed the probability of gay couples being supplied with children from heterosexual parents through the Social Services system (posted July 1, 2004). “The vast majority will come, because they already do come, from pre-existing heterosexual families,” wrote Stephen Baskerville. “In Massachusetts,” he continued, “Forty percent (40%), of the children adopted have gone to gay and lesbian families,” according to Democratic state Senator Therese Murphy.”
According to Pastor Brothers, Child Protection Services can, through the extremely broad powers granted them, be on your doorstep demanding your children based upon an anonymous complaint. And the way the system works, the agency removes the children first (to get them out of harm’s way), and asks questions later. However, the questions asked and the way they are posed can be insidious causing the protracted placement of your children into the foster care system until the truth can be ascertained and addressed by an overburdened court system. But by then the damage is done, potentially causing emotional damage and financial ruin for children and parents who incur costly legal expenses fighting the system to regain custody of their kids.
In her Parents Guide to the System, Cheryl Barnes, National Director of CPSWatch, a grassroots watchdog that advocates on behalf of victims of the SSD, notes some of the creative ways CPS workers “stack” their affidavits. The petition may read, “there’s a hole in the kitchen floor” when the truth is “there’s a tear in the linoleum.” Or the petition will read, “child was covered with bruises” when the truth is “the child has minor scrapes and bruises on shins from climbing trees.” And in an Oscar winning spin the petition reads, “home was piled to the ceiling with clutter,” when the truth is that “the parents were packing to move.”
The courts may be doing their jobs returning sixty to sixty-five percent (60 to 65%) of the children to their homes after declaring that the complaint (which can be a two-minute anonymous phone call remember) is Unfounded. However, Pastor Brothers notes that some seventy percent (70%) of those return on mind-altering drugs, usually prescribed via DSS physicians/mental heath professionals to help the children who have been traumatized because they have been torn from their homes and forced to live with strangers. In San Antonio, Texas the figure was closer to eighty-five percent (85%) according to an investigative report done by a television station there.
His counsel, “The average Christian doesn’t know their rights,” he says. “The minute you let the Department of Social Services in your house you’re surrendering your rights as a parent, you’re letting the Devil in your house.” Accordingly, he has begun an aggressive thrust to enlist Christians in Pre-Paid Legal Services, a bourgeoning program that offers a complex of attractive legal services for extremely reasonable fees. For more information about Freedom Village USA, one of the finest foster care facilities in New York State, call them at: 1-(800) 842-8679.
WORD NEWS
Christian News Buffalo, NY
http://protectingourchildrenfrombeingsold.wordpress.com/2010/05/03/if-this-article-were-not-so-true-it-would-be-laughable/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+HowChildProtectionServicesBuysAndSellsOurChildren+(How+Child+Protection+Services+Buys+and+Sells+Our+Children)&utm_content=FeedBurner
Russian Orphanage Offers Love, but Not Families
Russian Orphanage Offers Love, but Not Families
James Hill for The New York Times
At Orphanage No. 11. in Moscow, the rooms are filled with toys. , But what the orphanage does not have are many visits from potential parents.
By CLIFFORD J. LEVY
Published: May 3, 2010
MOSCOW — There is nothing dreary about Orphanage No. 11. It has rooms filled with enough dolls and trains and stuffed animals to make any child giggly. It has speech therapists and round-the-clock nurses and cooks who delight in covertly slipping a treat into a tiny hand. It has the feel of a place where love abounds.
Multimedia
Back Story With The Times's Clifford J. Levy
What it does not have are many visits from potential parents.
Few of its children will ever be adopted — by Russians or foreigners. When they reach age 7 and are too old for this institution they will be shuttled to the next one, reflecting an entrenched system that is much better at warehousing children — and profiting from them — than finding them families.
The case of a Russian boy who returned alone to Moscow, sent back by his American adoptive mother, has focused intense attention on the pitfalls of international adoption.
But the outcry has obscured fundamental questions about why Russia has so many orphans and orphanages in the first place.
In recent days, senior Russian officials have begun to acknowledge how troubled their system is.
The chairwoman of the parliamentary committee on family and children, Yelena B. Mizulina, spotlighted what she said was a shocking statistic: Russia has more orphans now, 700,000, than at the end of World War II, when an estimated 25 million Soviet citizens were killed.
Ms. Mizulina noted that for all the complaints about the return of the boy, Artyom Savelyev, by his adoptive mother in Tennessee, Russia itself has plenty of experience with failed placements. She said 30,000 children in the last three years inside Russia were sent back to institutions by their adoptive, foster or guardianship families.
“Specialists call such a boom in returns a humanitarian catastrophe,” she said.
She reeled off more figures. The percentage of children who are designated orphans is four to five times higher in Russia than in Europe or the United States. Of those, 30 percent live in orphanages. Most of them are children who have been either given up by their parents or removed from dysfunctional homes by the authorities.
Her comments offered a sense of the frustration over the state of Russia’s orphanage system, which has long been resistant to reform.
Over the years, proposals to reduce the system’s size — the deinstitutionalization that occurred decades ago in the United States and elsewhere — have gone nowhere.
Despite the horror stories recounted about Russian orphanages, social welfare experts say that conditions in many are not terrible; some are excellent. The more pressing issue is the warehousing of young children in large-scale facilities, which experts say can hold back their social and intellectual development.
But the system’s defenders said that until the government figures out how to cut down on social problems like drug and alcohol abuse to improve family life, there is no alternative.
“It would be a lot better if there were no orphanages, and every child were happy in the family that he or she has,” said the director of Orphanage No. 11, Lidiya Y. Slusareva. “But if there are bad families, then it is better that the children are here.”
The scrutiny of the Russian system comes as Russian and American diplomats are working out new rules for adoptions.
Russian officials, who have often seemed embarrassed that their country cannot care for all its children and has to give some up to foreigners, demanded the new rules after Artyom was returned.
The Foreign Ministry said adoptions by Americans would be suspended until an agreement is reached. It is not entirely clear whether adoptions are actually frozen, or whether the process is just being dragged out.
In recent years, the Russian government has repeatedly pledged to bolster efforts to help families stay together, to increase the number of children who are adopted and to expand foster care. But it has not had notable success.
Indeed, while Russia has its share of social problems, the large number of orphans stems in part from a policy that does not place a high value on keeping families together.
The Russian government spends roughly $3 billion annually on orphanages and similar facilities, creating a system that is an important source of jobs and money on the regional level — and a target for corruption.
As a result, it is in the interests of regional officials to maintain the flow of children to orphanages and then not to let them leave, child welfare experts said. When adoptions are permitted, families, especially foreign families, have to pay large fees and navigate a complex bureaucracy.
“The system has one goal, which is to preserve itself,” said Boris L. Altshuler, chairman of Right of the Child, an advocacy group in Moscow, and a member of a Kremlin advisory group.
“That is why the process of adoption in Russia is like going through the circles of hell,” he said. “The system wants these children to remain orphans.”
He said that in 2008, 115,000 children in Russia were designated as without parental care, typically after being removed from their homes by caseworkers. Only 9,000 children were returned to their parents that year. In the United States, where reuniting families is a primary goal, the percentage is far higher, he said.
Over all, 13,000 children were officially adopted in 2008 — 9,000 by Russians and 4,000 by foreigners, officials said.
The system’s stagnation can be seen at Orphanage No. 11, which houses 45 to 50 children. Most have health or behavior difficulties, but the staff coaxes wonders from them.
In the auditorium on a recent day, a group rehearsed a dance wearing 18th-century ball costumes, then went back to the dressing room before returning in Russian peasant outfits for a traditional dance. It was hard not to be charmed.
Even so, only a single child has been adopted from the orphanage this year.
Since the Soviet Union’s collapse in 1991, a total of 74 children have been adopted — an average of about four a year, said the director, Ms. Slusareva, who plays no role in their placement. The total comprises 20 adoptions to Russians, 24 to Americans and 30 to other foreigners.
The case of Artyom at first spurred a strong reaction, with some Russians saying that a country whose population is shrinking should never send its children abroad.
But Ms. Slusareva did not agree. The primary goal, she said, should be to locate good homes for these children — preferably in Russia, but if not there, then elsewhere.
“The hardest thing is when a child asks, ‘When will a mama come for me?’ ” she said. “So the best moment for me is when a child leaves the orphanage with a family.”
A version of this article appeared in print on May 4, 2010, on page A1 of the New York edition.
http://www.nytimes.com/2010/05/04/world/europe/04adopt.html
James Hill for The New York Times
At Orphanage No. 11. in Moscow, the rooms are filled with toys. , But what the orphanage does not have are many visits from potential parents.
By CLIFFORD J. LEVY
Published: May 3, 2010
MOSCOW — There is nothing dreary about Orphanage No. 11. It has rooms filled with enough dolls and trains and stuffed animals to make any child giggly. It has speech therapists and round-the-clock nurses and cooks who delight in covertly slipping a treat into a tiny hand. It has the feel of a place where love abounds.
Multimedia
Back Story With The Times's Clifford J. Levy
What it does not have are many visits from potential parents.
Few of its children will ever be adopted — by Russians or foreigners. When they reach age 7 and are too old for this institution they will be shuttled to the next one, reflecting an entrenched system that is much better at warehousing children — and profiting from them — than finding them families.
The case of a Russian boy who returned alone to Moscow, sent back by his American adoptive mother, has focused intense attention on the pitfalls of international adoption.
But the outcry has obscured fundamental questions about why Russia has so many orphans and orphanages in the first place.
In recent days, senior Russian officials have begun to acknowledge how troubled their system is.
The chairwoman of the parliamentary committee on family and children, Yelena B. Mizulina, spotlighted what she said was a shocking statistic: Russia has more orphans now, 700,000, than at the end of World War II, when an estimated 25 million Soviet citizens were killed.
Ms. Mizulina noted that for all the complaints about the return of the boy, Artyom Savelyev, by his adoptive mother in Tennessee, Russia itself has plenty of experience with failed placements. She said 30,000 children in the last three years inside Russia were sent back to institutions by their adoptive, foster or guardianship families.
“Specialists call such a boom in returns a humanitarian catastrophe,” she said.
She reeled off more figures. The percentage of children who are designated orphans is four to five times higher in Russia than in Europe or the United States. Of those, 30 percent live in orphanages. Most of them are children who have been either given up by their parents or removed from dysfunctional homes by the authorities.
Her comments offered a sense of the frustration over the state of Russia’s orphanage system, which has long been resistant to reform.
Over the years, proposals to reduce the system’s size — the deinstitutionalization that occurred decades ago in the United States and elsewhere — have gone nowhere.
Despite the horror stories recounted about Russian orphanages, social welfare experts say that conditions in many are not terrible; some are excellent. The more pressing issue is the warehousing of young children in large-scale facilities, which experts say can hold back their social and intellectual development.
But the system’s defenders said that until the government figures out how to cut down on social problems like drug and alcohol abuse to improve family life, there is no alternative.
“It would be a lot better if there were no orphanages, and every child were happy in the family that he or she has,” said the director of Orphanage No. 11, Lidiya Y. Slusareva. “But if there are bad families, then it is better that the children are here.”
The scrutiny of the Russian system comes as Russian and American diplomats are working out new rules for adoptions.
Russian officials, who have often seemed embarrassed that their country cannot care for all its children and has to give some up to foreigners, demanded the new rules after Artyom was returned.
The Foreign Ministry said adoptions by Americans would be suspended until an agreement is reached. It is not entirely clear whether adoptions are actually frozen, or whether the process is just being dragged out.
In recent years, the Russian government has repeatedly pledged to bolster efforts to help families stay together, to increase the number of children who are adopted and to expand foster care. But it has not had notable success.
Indeed, while Russia has its share of social problems, the large number of orphans stems in part from a policy that does not place a high value on keeping families together.
The Russian government spends roughly $3 billion annually on orphanages and similar facilities, creating a system that is an important source of jobs and money on the regional level — and a target for corruption.
As a result, it is in the interests of regional officials to maintain the flow of children to orphanages and then not to let them leave, child welfare experts said. When adoptions are permitted, families, especially foreign families, have to pay large fees and navigate a complex bureaucracy.
“The system has one goal, which is to preserve itself,” said Boris L. Altshuler, chairman of Right of the Child, an advocacy group in Moscow, and a member of a Kremlin advisory group.
“That is why the process of adoption in Russia is like going through the circles of hell,” he said. “The system wants these children to remain orphans.”
He said that in 2008, 115,000 children in Russia were designated as without parental care, typically after being removed from their homes by caseworkers. Only 9,000 children were returned to their parents that year. In the United States, where reuniting families is a primary goal, the percentage is far higher, he said.
Over all, 13,000 children were officially adopted in 2008 — 9,000 by Russians and 4,000 by foreigners, officials said.
The system’s stagnation can be seen at Orphanage No. 11, which houses 45 to 50 children. Most have health or behavior difficulties, but the staff coaxes wonders from them.
In the auditorium on a recent day, a group rehearsed a dance wearing 18th-century ball costumes, then went back to the dressing room before returning in Russian peasant outfits for a traditional dance. It was hard not to be charmed.
Even so, only a single child has been adopted from the orphanage this year.
Since the Soviet Union’s collapse in 1991, a total of 74 children have been adopted — an average of about four a year, said the director, Ms. Slusareva, who plays no role in their placement. The total comprises 20 adoptions to Russians, 24 to Americans and 30 to other foreigners.
The case of Artyom at first spurred a strong reaction, with some Russians saying that a country whose population is shrinking should never send its children abroad.
But Ms. Slusareva did not agree. The primary goal, she said, should be to locate good homes for these children — preferably in Russia, but if not there, then elsewhere.
“The hardest thing is when a child asks, ‘When will a mama come for me?’ ” she said. “So the best moment for me is when a child leaves the orphanage with a family.”
A version of this article appeared in print on May 4, 2010, on page A1 of the New York edition.
http://www.nytimes.com/2010/05/04/world/europe/04adopt.html
The 9th Circuit Rules for Families Two recent rulings favor family rights over government intrusion
CPS WATCH
The 9th Circuit Rules for Families
Two recent rulings favor family rights over government intrusion
Two recent federal court rulings establish clearly the rights of families to be free of unwarranted government intrusion into their daily lives. The rulings further established that government officials may be held personally libel in a court of law for overstepping their authority and trampling the sanctity of the family.
In the first case, Calabretta vs. Floyd, a social worker and police officer coerced entry into the Calabretta home by threatening to beat the door down if the mother refused to let them in. Once in the home, the social worker questioned the family's 12 year old daughter outside the presence of her mother and strip searched her 3 year old sister.
The court upheld that in the absence of "exigent circumstances", a government official may not enter a home with out a search warrant, specifically stating, "Any government official can be held to know that their office does not give them an unrestricted right to enter peoples' homes at will." And that families have a "well-established right to privacy from inspections by social workers."
An important part of this case is the fact that the social; worker and the police officer were held personally liable for their actions. They couldn't hide behind their position.
CPS watch urges families to keep a copy of this case near the door. If a social worker or a police officer tries to enter your home without a search warrant,give them a copy of this case, pointing out that they may be held personally liable forcoercing or forcing entry into your home. They will consider their actions more carefully when made aware of the fact that their agency won't be able to bail them out if they violate your rights. It is one thing to think the agency may be sued or may even fire you, it is quite another thing to think you personally may lose your home or be ordered to pay a substantial amount of damages.
To read and/or print the full decision
In the second case Wallis vs City of Escondido, a relative in a mental facility phoned police claiming the family planned to sacrifice their son to Satan on an upcoming cult holiday. Without conducting further investigation, police removed the families two children without a court order and placed them in a county run facility.
Several days later, without obtaining judicial authorization and without notifying their parents, police took the children to a hospital for the performance of highly intrusive anal and virginal physical examinations.
The court upheld that the police didn't have reasonable cause to remove the children without an investigation or a court order. Further more, in the absence of court order, parental permission is required to take children for a physical exam.
To read and/or print the full decision
NOTE: Calbretta Vs Floyd case citation in the 9th Circuit Court of Appeals docket number 97133585. Wallis Vs City of Escondido case citation in the 9th Circuit Court of Appeals, docket number 9755579.
http://www.bountylicenserecovery.com/cpswatch.html
The 9th Circuit Rules for Families
Two recent rulings favor family rights over government intrusion
Two recent federal court rulings establish clearly the rights of families to be free of unwarranted government intrusion into their daily lives. The rulings further established that government officials may be held personally libel in a court of law for overstepping their authority and trampling the sanctity of the family.
In the first case, Calabretta vs. Floyd, a social worker and police officer coerced entry into the Calabretta home by threatening to beat the door down if the mother refused to let them in. Once in the home, the social worker questioned the family's 12 year old daughter outside the presence of her mother and strip searched her 3 year old sister.
The court upheld that in the absence of "exigent circumstances", a government official may not enter a home with out a search warrant, specifically stating, "Any government official can be held to know that their office does not give them an unrestricted right to enter peoples' homes at will." And that families have a "well-established right to privacy from inspections by social workers."
An important part of this case is the fact that the social; worker and the police officer were held personally liable for their actions. They couldn't hide behind their position.
CPS watch urges families to keep a copy of this case near the door. If a social worker or a police officer tries to enter your home without a search warrant,give them a copy of this case, pointing out that they may be held personally liable forcoercing or forcing entry into your home. They will consider their actions more carefully when made aware of the fact that their agency won't be able to bail them out if they violate your rights. It is one thing to think the agency may be sued or may even fire you, it is quite another thing to think you personally may lose your home or be ordered to pay a substantial amount of damages.
To read and/or print the full decision
In the second case Wallis vs City of Escondido, a relative in a mental facility phoned police claiming the family planned to sacrifice their son to Satan on an upcoming cult holiday. Without conducting further investigation, police removed the families two children without a court order and placed them in a county run facility.
Several days later, without obtaining judicial authorization and without notifying their parents, police took the children to a hospital for the performance of highly intrusive anal and virginal physical examinations.
The court upheld that the police didn't have reasonable cause to remove the children without an investigation or a court order. Further more, in the absence of court order, parental permission is required to take children for a physical exam.
To read and/or print the full decision
NOTE: Calbretta Vs Floyd case citation in the 9th Circuit Court of Appeals docket number 97133585. Wallis Vs City of Escondido case citation in the 9th Circuit Court of Appeals, docket number 9755579.
http://www.bountylicenserecovery.com/cpswatch.html
U.S. 9th Circuit Court of Appeals WALLIS v CITY OF ESCONDIDO
U.S. 9th Circuit Court of Appeals
WALLIS v CITY OF ESCONDIDO
9755579
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Analysis
Facts
Opinion
Counsel
Footnotes
Conclusion
Dissenting Judge
Procedural History
LAUREN WALLIS, by and through her Guardian Ad Litem, REBECCA LYNN WALLIS, Guardian Ad Litem; JESSIE WALLIS, by and through his Guardian Ad Litem, WILLIAM LAWRENCE WALLIS, Guardian Ad Litem; REBECCA LYNN WALLIS; WILLIAM LAWRENCE WALLIS, Plaintiffs-Appellants,
No. 97-55579
v.
D.C. No.
MARY SPENCER, M.D.; CANDACE CV-93-00135-MLH
YOUNG, PH.D.; RACHEL STECKS; CITY OF SAN DIEGO; CITY OF ESCONDIDO; CHILD PROTECTIVE SERVICES, A DIVISION OF THE SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES; WELLS GARDNER; CATHY MCLENNON; CANELA CAVEDA; SUSAN GOULIAN; GRACE GOODALL; and DOES 1 through 300, Inclusive,
Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
November 6, 1998--Pasadena, California
Filed September 14, 1999
Before: Myron Bright,* Stephen Reinhardt, and Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Reinhardt
Dissent by Judge Rymer
COUNSEL
Paul Leehey, Fallbrook, California, and Donnie Cox, Carlsbad, California, for the plaintiffs-appellants.
Jeffrey Epp, City Attorney, and Mark Wagoner, Assistant City Attorney, Escondido, California, for the defendant.
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OPINION
REINHARDT, Circuit Judge:
This case involves a conflict between the legitimate role of the state in protecting children from abusive parents, and the rights of children and parents to be free from arbitrary and undue governmental interference. Such conflicts occur with increasing frequency these days. The problem of child abuse is a critical one, with deep personal and social costs. For too long, intra-familial sexual abuse was considered to be a "private" matter. Today, the law is changing. As we develop a greater awareness of the extent and severity of this difficult and painful problem, society has finally begun to treat intra- familial child abuse as a serious criminal offense.
Because the swing of every pendulum brings with it potential trial adverse consequences, it is important to emphasize that in the area of child abuse, as with the investigation and prosecution of all crimes, the state is constrained by the substantive and procedural guarantees of the Constitution. The fact that the suspected crime may be heinous -- whether it involves children or adults -- does not provide cause for the state to ignore the rights of the accused or any other parties. Other- wise, serious injustices may result. In cases of alleged child abuse, governmental failure to abide by constitutional constraints may have deleterious long term consequences for the child and, indeed, for the entire family. Ill considered and improper governmental action may create significant injury where no problem of any kind previously existed.
Here, the plaintiffs two young children and their parents have sued the City of Escondido, among others, for violations of their constitutional rights. Escondido police officers, evidently acting on the basis of a non-existent court order, seized the children, aged two and five, placed them in a county run institution, and several days later, without obtaining judicial authorization and without notifying their parents, took them to a hospital for the performance of highly intrusive anal and vaginal physical examinations. The children were not returned to their parents for approximately two and one half months. All of this occurred after a mental patient who had a long history of delusional disorders and was confined to a mental institution told her therapist a fantastic tale of Satanic witchcraft within her family and an impending child sacrifice. The district court initially granted the City's motion for summary judgment on the erroneous theory that the action was collaterally stopped by a preliminary ruling of the juvenile court referee, and we reversed. Subsequently, the district court again granted the City summary judgment, this time on the merits. Again, we reverse.
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Facts
In September, 1991, Bill and Becky Wallis lived in San Diego with their five year old daughter Lauren and their two year old son, Jessie. At that time, Bill had worked at the Lucky Supermarket in San Marcos for over ten years; Becky had worked for a similar period of time at Lucky's in the nearby community of Escondido. Although Bill and Becky Wallis maintained relationships with their parents, the family had had no contact with Becky's sister, Rachel Stecks, for the previous 18 months. Rachel, who suffers from a long history of psychiatric problems, including severe dissociative and multiple personality disorders, had made a false report to the San Diego County Child Protective Services ("CPS") in April of 1990, alleging that Bill was sexually abusing Lauren. CPS had investigated the report and found that there was no credible evidence to support the allegations and no action was taken against the Wallises. Bill and Becky remained angry at Rachel, however, and terminated their relationship with her.
The following year, Rachel was hospitalized in a psychiatric facility because she was suicidal and was afraid that she would be murdered. She reported to her therapist in the hospital, Candace Young, that Bill Wallis was planning to sacrifice his young son Jessie to Satan at the "Fall Equinox ritual," and that Bill had told her that Jessie's ritual murder would be covered up by staging a car accident in which his body would be burned. Rachel also told Young that both her parents were in a satanic cult, and that Bill Wallis was also in the cult, but that Becky was not, and indeed "might not know" about her husband's and parents' cult membership. Rachel recounted her recently recovered memory "of being with her father in the woods, with him wearing a cult robe reciting hypnotically. On the third full moon after two blue moons a child will be killed.' " Rachel believed that this incident occurred in 1970, some 20 years before Jessie's birth. One of Rachel's "alter" multiple personalities told Young that the incantation referred to Jessie and meant that he would be sacrificed to Satan on the "Fall Equinox," supposedly one of the Satanic "High Holidays."2 In 1991, the Fall Equinox evidently fell upon September 23, one day before Jessie's third birthday.
Young, a marriage and family counselor, was at the time a mandated reporter of child abuse under California law. Rachel's tale (and that of her alters) apparently caused Young some concern; in any event, she telephoned Sue Plante at CPS on September 17, 1991. Plante told Young that she needed more information before she could refer the matter to the child abuse investigation unit. After two days, Young sent Plante a letter. Plante then phoned the child abuse hotline, on September 19, 1991. The referral filled out by the hotline worker by now a third hand account of a story told by an institutionalized mental patient indicates that Rachel reported to her therapist that Bill Wallis was going to sacrifice Jessie to Satan on September 23, 1991. The referral also says that Rachel was currently hospitalized for psychiatric reasons, and that she has "multiple personality and decompensates during cult holidays." In addition, the referral clearly states that, according to the mental patient, Becky "may not know of husband's cult activity," and noted where Bill and Becky worked.
Plante also called her supervisor, who advised her to contact the Escondido Police Department, which she did. The Police Department, in turn, assigned the case to Officer Brian Knodel. Plante told Knodel the contents of the referral from Young, including the fact that Rachel wasn't sure that her sister Becky knew about the cult, and also that Young had told her that Rachel's father owned a boat docked in San Diego called "Witch Way." The next day, Knodel reported to Plante that he could not locate the family at the address provided by Rachel because it was over a year old likely due to the fact that Bill and Becky had cut off contact with Rachel after her earlier false report to CPS and that he did not attempt to find them at their jobs "because he did not want to alert them to the possibility that we were trying to find the child to intervene."
Plante wrote up her recommendations for the CPS case- worker who would be assigned to the matter, stating that she felt "we have no choice but to take the children into protective custody until an investigation can be done." Plante later testified, however, that she had no recollection of telling anyone at the Escondido Police Department or at CPS that the children should be picked up. On September 20, 1991, CPS assigned Karen Cabico to be the "emergency response social worker." In that capacity, she was the case-worker charged with deciding whether the circumstances warranted removing the Wallis children from their home and placing them in foster care. Cabico's notes from September 20 show that she communicated with both Knodel and Plante during the effort to locate the family's home. At some point that day, Plante told Cabico that a district attorney named Jane Via told Plante that "we have enough to pick up the kids."
Also on September 20, Knodel wrapped up his involvement in the matter by recommending to his superiors at the Police Department that "this case be submitted to investigations or be followed up by CPS case worker Sue Plante." The Police Department assigned the case to juvenile detectives Diana Pitcher and Ralph Claytor, who continued to search for the family. Cabico testified that she never told Pitcher or anyone else at the Police Department that it was authorized to pick up Lauren or Jessie, but that she did not know whether anyone else at CPS told the police to do so. Pitcher testified that she had no discussion with anyone from CPS about any allegations of sexual abuse concerning either Wallis child, and that all of her conversations with Plante and Cabico involved the supposed "ritual murder" of Jessie. Pitcher also contacted Young, who reiterated the tale told to her by her institutionalized patient. Pitcher later said that "in her mind" she believed Rachel's story because Young had some "expertise " in the area of ritualistic abuse.
Pitcher and Claytor both contend that CPS workers Plante and Cabico told them though neither officer can recall the precise facts or circumstances that "there was a pickup order." Pitcher testified at her deposition that she did not believe she was responsible for investigating the case, but "was really looking at just picking up the children on the order." She testified that she "knew" that there was a court order though she never saw one and repeated that she was not conducting an investigation but only enforcing the supposed order. Claytor also testified that he was involved in investigating the location of the children in order to enforce the CPS pickup order, but that he was not involved in any investigation of abuse. Pitcher's supervisor, Ken Burkett, also testified that he believed that there was a juvenile court order to pick up the children that had previously been obtained by CPS, and that the Police Department picked them up as it would "normally" do in that circumstance. It is undisputed that no order ever existed and that CPS had not yet even reached a decision about whether to seek protective custody of the children when the police picked them up.
During discovery, Pitcher, Claytor, and Burkett all testified that, at the time the Wallis children were seized, the Police Department had in effect a practice of taking "at face value" telephonic representations from CPS that there was a court order to remove children from their parents' custody. Claytor testified that "it was not unusual for CPS workers to call and ask for our units to respond to a particular scene, and tell them that `we have a petition that's been filed,' or kids have already been made a ward of the court in response to a petition. That happened fairly often." Burkett, the supervisor, testified that the Police Department did nothing to verify that a pickup order existed because there's been a longstanding agreement between law enforcement agencies, that if I tell you I have a search warrant, up until recent times, you would be taken at face value that you did, in fact, have a search warrant. Same way as when I call down to verify that there is a warrant in the system for some- one and make the arrest, I don't physically see it.
Unlike arrest warrants, however, court orders to seize children were not at that time part of any computerized database and there was no established procedure for verifying such orders, by xerox, fax, computer, or otherwise. Indeed, Pitcher testified that in September of 1991 the Department had a settled practice of not confirming CPS representations that there was a court order to pick up children. Pitcher was identified by the Police Department as the person most knowledgeable about the Department's practices regarding taking protective custody of minors, and she was deposed as such.
On September 21 and 22, the police continued to look for the family in order to enforce the purported court order, but still did not go to either parent's place of work. An officer finally went to the Lucky's in Escondido on the afternoon of September 22 and discovered that Becky did in fact work there and that she was scheduled to work that evening. The manager of the Lucky's did not have a current home address for Becky. At some point that day, the police also discovered that a boat called "Witch's Way" was berthed at a harbor in the city of Oceanside. They made no inquiry, however, as to the name of the person or persons who owned or used the boat. The officers decided to have a "stake out " in the parking lot of the Escondido Lucky's grocery store. When Becky got off work late that night, three unmarked police cars followed her. Becky later said that she had become frightened when she realized that she was being followed, and even went to the Escondido police station in an effort to get help; however, she was afraid to get out of her car, and drove around in a panic for two hours. At that point, the police realized that their "surveillance had been compromised," and pulled her over in the parking lot of a 7-11 store. There, according to Detective Supervisor Burkett, the officers identified themselves, told her that they needed to "check on" the children, and said that if she took them to her house, they would be able to "sit down and talk about it." Burkett testified, however, that when the officers made these statements to Becky, they did not want only to "check on" the children or talk with the Wallises but they intended to pick up the children based on their belief that there was a court order to do so. In response to the officers' representations, Becky took the officers to the family's home and agreed to their entry.
When Becky arrived at her house, accompanied by the police, at around midnight, her children were asleep. The children appeared well-cared for, and Detective Claytor acknowledged that there was no sign of anything suspicious. Nevertheless, Pitcher decided to "interview" Lauren. She required Bill and Becky to awaken Lauren so that she could question her. According to Pitcher, the sleepy five year old was "evasive," but told her that they had to move from the apartment in which they had previously lived because of "spiders on the walls." Although Pitcher acknowledged that she had no information from any source that Lauren had ever been sexually abused, she asked her whether "anybody had ever given her bad touches or abused her." Lauren denied that anyone had.
Pitcher then told the parents that their children were being taken away from them. She testified that she took custody of Lauren and Jessie "because of the order . . .because of the investigation that had already taken place in CPS. " She stated that she "did not know the specifics of how they[CPS] laid the groundwork to get the kids removed." Pitcher did not interview Becky or Bill because "we had an order and so I wasn't that concerned with it." According to Detective Burkett, who was also present at the time, the police probably told Bill and Becky that there was a court order requiring the police to pick up the children. At 1:00 a.m. on September 22, 1991, Detectives Pitcher and Claytor took Lauren and Jessie to the Hillcrest Receiving Home, a county institution. The children were not allowed to see their parents and cried for them constantly. Lauren and Jessie were not returned to their parents for two and one-half months.
Three days after the children were removed from their home, Detective Pitcher picked them up from the county institution and took them to Palomar Hospital, where she ordered, on behalf of the Escondido Police Department, an evidentiary physical examination of both children. No court order was obtained prior to this examination, which was performed in order to determine whether either child had been sexually abused. Nor were the parents notified in advance that the examinations would be conducted. They were not given any opportunity to object to the intrusive examinations, to suggest conditions under which they might take place, or to be present when they occurred. Pitcher testified that she took the children for the examinations "as the officer who had placed the children in protective custody, or at the request of Child Pro- tective Services, or both." CPS insists that the exams were conducted at the City's behest, and the medical report form reflects that the Escondido Police Department was the "requesting agency."
The medical procedures, conducted by Dr. Mary Spencer, included internal body cavity examinations of the children, vaginal and anal. Dr. Spencer also took photographs of both the inside and outside of Lauren's vagina and rectum and Jessie's rectum. These examinations were conducted on Jessie's third birthday. A social worker who observed the examinations reported, not surprisingly, that Lauren was very upset by the procedures and asked for her parents. Following the examinations, Dr. Spencer reported to Wells Gardner, CPS's "court intervention worker" that the results disclosed medical evidence that both children had been molested, and that Dr. Susan Horowitz, a specialist from Children's Hospital's Sexual Abuse Unit concurred with her findings. On September 25, 1991, Gardner filed a petition in Juvenile Court alleging that Bill was going to sacrifice Jessie to Satan and that both children had been sexually abused. The Juvenile Court referee specifically rejected the allegations regarding occult sacrifice as a basis for retaining custody of the children, but determined that Dr. Spencer's report provided sufficient evidence of sexual abuse to keep them in county custody. Bill and Becky were granted only one supervised visit per week.
Two months went by. Then, on November 25, Dr. Horowitz sent Gardner a letter that changed the lives of the Wallis family. It informed CPS that Dr. Spencer's statement in her report that Dr. Horowitz supported the finding of sexual abuse was false. In fact, Dr. Horowitz wrote, as of the time of Dr. Spencer's report, she (Dr. Horowitz) had not had access to the records of Dr. Spencer's examination, had not performed a full review, and had not offered any conclusion. Dr. Horowitz's letter further stated that she now had reviewed the full file and, based on all the evidence, she did not agree with Dr. Spencer's conclusion that the children had been abused. To the contrary, Dr. Horowitz concluded that there was no evidence of abuse and that there were alternative, normal physiological explanations for what Dr. Spencer had observed. Dr. Horowitz's explanations were based on Lauren's history of vaginal irritation and infection, as documented in her medical records, as well as other information contained in those records. Gardner, to his credit, immediately released the children to their maternal grandmother, and moved swiftly to dismiss the case in Juvenile Court. On December 6, 1991, Lauren and Jessie were returned by court order to the custody of their parents. No one now contends that either child was ever sexually or physically abused, that there was ever any evidence of any abuse by their parents, or that Bill Wallis had ever had any intention of sacrificing Jessie to Satan.
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PROCEDURAL HISTORY
All four members of the Wallis family joined in an action alleging the violation of their federal constitutional rights to be free from unreasonable, arbitrary, and undue intrusions on their privacy, person, and home, as well as setting forth various state law claims. CPS, the County, and several other defendants settled with the Wallises; the district court then granted summary judgment to the remaining defendants. The Wallises appealed the district court's ruling. In an unpublished disposition, we reversed as to the City of Escondido, holding that the Wallises' action was not precluded by the juvenile court referee's decision to retain the children in tem- porary custody on the basis of Dr. Spencer's false report of sexual abuse. We remanded the matter for further proceedings.
The district court granted the City's second motion for summary judgment on the theory that none of the Wallises' constitutional rights were violated because the Police Department had reasonable cause to remove the children from their parents' custody with or without a court order, and that the officers had, therefore, acted reasonably. The court then said that even if the Wallises' rights were violated, they had not offered any facts or evidence proving that the Police Depart- ment had a policy that caused the violation. The district judge also concluded that the City was immune from any state law remedy because the police officers were "reasonable" both in removing the children from their parents' custody and in sub- jecting them to the investigatory body cavity examinations. Then, despite the fact that the Wallis family did not sue any officers in their individual capacities, the district court went on to conclude that even if the Wallises' constitutional rights had been violated, the officers were entitled to both absolute and qualified immunity, and that this personal immunity was transferrable to the City itself: "Consequently the city is entitled to qualified immunity for their actions in regards to all S 1983 actions alleged by plaintiff." The Wallises appealed.
Analysis
I. Constitutional Claims
[1] The Wallises allege that the City of Escondido, through the actions of its Police Department, violated the family's constitutional rights by the unlawful removal of Lauren and Jessie from their home in the middle of the night and by the subsequent unlawful detention of the children, including the invasive vaginal and anal examinations. A municipality like the City can be sued for "constitutional deprivations visited pursuant to governmental custom." Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978). In order to avoid summary judgment, a plaintiff need only show that there is a question of fact regarding whether there is a city custom or policy that caused a constitutional deprivation. Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994); Jackson v. Gates, 975 F.2d 648 (9th Cir. 1992) (city may be liable when its policy is the moving force behind constitutional vio- lation). The Wallises are entitled to prevail on this appeal, therefore, if they introduced sufficient evidence to show that there is an issue of material fact as to whether (1) their consti- tutional rights were violated; and (2) the violations were caused by a Police Department custom or practice. 5
A. The Alleged Violations
[2] The Wallises argue that the seizure and removal of the children from their parents' custody in the middle of the night pursuant to a non-existent court order violated their rights under the Constitution. Parents and children have a well- elaborated constitutional right to live together without govern- mental interference. Santosky v. Kramer, 455 U.S. 745 , 753 (1982); Stanley v. Illinois, 405 U.S. 645 (1972); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534 -35 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). That right is an essential liberty interest protected by the Fourteenth Amendment's guarantee that parents and children will not be separated by the state without due process of law except in an emergency. Stanley, 405 U.S. at 651 ; Campbell v. Burt , 141 F.3d 927 (9th Cir. 1998); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1996); Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir. 1991); Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1988); accord, J.B., 127 F.3d at 927; Croft , 103 F.3d at 1125; Hurlman v. Rice, 927 F.2d74, 79 (2d Cir. 1991); Duchesne v. Sugarman, 556 F.2d 817, 824 (2d Cir. 1977). The Wallises have produced more than enough evidence to create a genuine issue of material fact as to whether the removal of the children from their parents' custody was violative of their constitutional rights.
1. The Non-Existent "Pick-Up" Order
[3] It is now beyond dispute that no court authorized anyone to remove Lauren and Jessie from their home on September 21, 1991. The Wallises contend that the City's police officers removed the children on the basis of a nonexistent court order, and have produced substantial evidence that this is what actually happened. Detectives Pitcher, Claytor, and Burkett all testified that they were told by someone at CPS that there was a "pick-up" order and that their task was to locate the family and enforce the order. Detective Pitcher tes- tified in her deposition that she told Bill and Becky Wallis that she was taking their small children away in the middle of the night "because of the order . . . because of the investiga- tion that had already taken place in CPS." Detective Burkett confirmed that the officers probably told Bill and Becky that there was an order requiring the removal of the children. Indeed, the only evidence that could be construed as offering any other reason for the "pick-up" is Detective Pitcher's subsequent statements that appear to contradict her earlier testimony.6
The testimony of CPS workers regarding what they told the police is somewhat different. Sue Plante testified that she could not recall telling the officers that there was a court order to remove the children; her contemporaneous notes indicate, however, that it is possible that she did advise the police to pick them up. Karen Cabico, the official caseworker, flatly denied conveying any such information to the police; her notes report, however, a phone call from Plante informing her that a district attorney had stated that there was enough evi- dence to "pick up the kids."
[4] The City does not seriously challenge the contention that the officers took custody of Lauren and Jessie because they mistakenly believed that there was an outstanding court order. Nor on this appeal do they separately argue that either a mistaken belief that a court order exists, or reliance on an erroneous statement to that effect from a social service agency worker, satisfies the requirement for a court order or provides reasonable cause, in itself, for the seizure of the children.7 Instead, confronted with the fact that there was no court order to remove the children from their parents' control, the City contends that the removals were nonetheless lawful, essentially because the facts of which the police were aware regarding the impending Satanic sacrifice of Jessie provided "reasonable cause" to seize the children. 8
2. Reasonable Cause and Imminent Danger
[5] Officials may remove a child from the custody of its parent without prior judicial authorization only if the informtion they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury. Good, 891 F.2d at 1093 (citing Mincey v. Arizona, 437 U.S. 385, 393 (1978)); see also Campbell, 141 F.3d at 927; Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993); Hurlman v. Rice , 927 F.2d 74, 80 (2d Cir. 1991) (collecting cases). The existence of reason- able cause, and the related questions, are all questions of fact to be determined by the jury. McKenzie v. Lamb , 738 F.2d 1005, 1008 (9th Cir. 1984) (per Kennedy, J.); Smiddy v. Varney, 665 F.2d 261, 265 (9th Cir. 1981) (per Sneed, J.) Summary judgment in favor of the defendants is improper unless, viewing the evidence in the light most favorable to the plaintiffs, it is clear that no reasonable jury could conclude that the plaintiffs' constitutional rights were violated.
[6] Thus, summary judgment was improper here if a material question of fact exists regarding whether (1) there was reasonable cause to believe, on the basis of the information in the possession of the Escondido police officers, that the Wal- lis children faced an immediate threat of serious physical injury or death; or (2) the actions taken by the officers removing the children from their mother and placing them in an institution exceeded the permissible scope of the action necessary to protect them from that immediate threat. We conclude that there are material disputes of fact with respect to both questions.
[7] First, the state may not remove children from their parents' custody without a court order unless there is specific, articulable evidence that provides reasonable cause to believe that a child is in imminent danger of abuse. Croft v. Westmoreland County Children and Youth Servs., 103 F.3d 1123, 1125; Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir. 1997) ("An indictment or serious allegations of abuse which are investigated and corroborated usually gives rise to a reason- able inference of imminent danger."); Good , 891 F.2d 1087, 1093 (3d Cir. 1989) (citing Mincey v. Arizona , 437 U.S. 385, 393 (1978)); see also Campbell, 141 F.3d at 927; Franz, 997 F.2d 784; Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991) (collecting cases). Moreover, the police cannot seize children suspected of being abused or neglected unless reasonable avenues of investigation are first pursued, particularly where it is not clear that a crime has been, or will be, committed. See Sevigny v. Dicksey, 846 F.2d 953, 957 (4th Cir. 1988) (holding that child abuse investigator has duty to investigate information that would have clarified matters prior to separating children from their parents); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (officer has duty to "make a thorough investigation and exercise reasonable judgment before invoking the awesome power of arrest and detention"). Whether a reasonable avenue of investigation exists, however, depends in part upon the time element and the nature of the allegations.
[8] At the time Lauren and Jessie were removed, the police department had received a report from a mental health worker that an institutionalized mental patient, who had an extensive history of severe delusional disorders and multiple personalities, had told a story of anticipated ritual murder by Jessie's father a story that would appear to an objective observer clearly to be founded in mental illness. In fact, Detective Claytor later testified that the allegations "sounded a little bizarre" to him, and that he had expressed that opinion to Detective Pitcher at the time. Applying a reasonable cause standard, the juvenile court judge who subsequently heard the dependency petition in this case explicitly rejected those charges as a basis for removing Lauren and Jessie from their parents' custody. Detective Pitcher, however, stated that "in her mind" she believed the story because it was conveyed to her by Young, an "expert."
The only other facts on which the City relies to demonstrate that the officers had reasonable cause to believe that there was an imminent threat to the children's welfare at the very most help the City establish that a genuine issue of material fact exists and that summary judgment should not be awarded to the Wallises. See McKenzie, 738 F.2d at 1008. Those "facts," taken together with Rachel's tale as reported by Young, do not by any means justify the conclusion that a reasonable jury would be required to find that the officers had reasonable cause for taking the children into custody. The additional "facts" are as follows: First, the City claims that the officers confirmed that Rachel's and Becky's father, David Stecks, owned a boat named "Witch Way." In fact, the police did not confirm any such thing; according to Detective Claytor, who was the officer searching for the boat, he learned only that a boat with a similar name (Witch's Way) was docked in Oceanside. He did not, however, confirm that the boat was owned, or used, by David Stecks, or by any member of Becky's family. Moreover, the police never conducted any investigation whatsoever into how the boat acquired its name, or whether Stecks had anything to do with naming it. Next, the City relies on the fact that the Wallises had moved from the address Rachel supplied, which the City characterizes as "disappearing from where they were supposed to be." An equally valid inference is that the Wallises' change of address demonstrates the unreliability of Rachel's tip, because important information Rachel provided proved false, and because Rachel lacked knowledge regarding important family matters.
Third, Detective Pitcher testified that she accorded significance to five-year-old Lauren's statement about spiders and her "elusive" behavior on being awakened at 1:00 a.m. The Wallises are entitled to the inference that Lauren was drowsy and had nothing adverse to report. In any event, when asked by Pitcher if anyone had ever given her "bad touches," Lauren denied that anyone ever had, which is hardly "elusive."
Finally, we note that the tip itself stated that Becky Wallis was probably unaware that Bill was contemplating harming Jessie and was not part of the "plot" to kill her son.10 Nevertheless, the City acknowledges that its officers did not inter- view Becky because they mistakenly thought they were enforcing a court order. More important, for this reason, the officers also did not undertake any significant investigation into the underlying charge, specifically, the allegation that Jessie would be sacrificed.
[9] Under the circumstances, a jury could reasonably con- clude that the information possessed by the officers was insufficient to give rise to reasonable cause or that the officers' conduct in failing to investigate the mental patient's bizarre tale before acting was not reasonable. While ordinarily a close relative's tip that a child is about to be killed might provide reasonable cause to believe that an emergency exists and justify a seizure of the child without prior judicial authorization, the facts in this case are far from ordinary. They are, indeed, extraordinary in every sense of the word, including the fact that the close relative had a long history of psychiatric disor- ders, was confined to a mental institution, and told a tale that was wholly incredible. In any event, given the factual uncertainty regarding the information actually possessed by the officers at the time they removed the children, the contradictions in Detective Pitcher's testimony and sworn statements, the absence of any significant investigation into the allegations, and the extraordinary nature of the allegations, it cannot be said as a matter of law that reasonable cause existed, or that the officers acted reasonably. Viewing the evidence in the record in the light most favorable to the Wallises, we conclude that a reasonable jury could find that the officers did not have reasonable cause to remove the children without a court order.
3. Permissible Scope of the Removal
[10] Even if state action to protect Jessie against future Satanic sacrifice by his father were reasonable under the circumstances, triable issues of fact would exist regarding whether the scope and degree of the state interference was justified by the alleged exigency. Bell, 441 U.S. at 559; Barlow, 943 F.2d at 1138 ("Police officers can proceed with- out a warrant if they reasonably believe they are confronted with an emergency that threatens life or limb, but the [intrusion] must be strictly circumscribed by the exigencies which justify its initiation."); Franz, 997 F.2d at 791 (intrusion must be "reasonably necessary to alleviate the threat") Good, 891 F.2d at 1093 (under "very limited exception" to warrant rule, intrusion must be reasonably necessary to alleviate the threat of immediate harm); Hebein, 37 F. Supp.2d at 1043 (holding that danger must justify the degree of interference imposed). Merely because some intrusion on a child's protected privacy and security interests may be reasonable does not mean that any intrusion is.
[11] Here, the City asserts that the exigency motivating the officers' decision to remove the children without a court order was the belief that Bill Wallis would sacrifice Jessie to Satan on the "Fall Equinox," which was to occur on September 23, 1991. The City argues in its brief that part of its "reasonable" belief in the credibility of this threat was the information that the "Equinox" is one of the "high holidays " for devil worshipers, "when cultists perform human sacrifices and . . . believe that they derive energy from abusing children on that day." (emphasis added). By the City's own admission, then, the police had no information that Jessie's father's plot extended beyond the Equinox; the imminent danger to Jessie was to occur specifically and only on September 23, 1991, a day after the children's seizure. Thus, there is a genuine issue of material fact as to whether the emergency continued to exist for more than the brief day or two following the time of the children's seizure.
[12] Furthermore, as previously noted, the police had no information whatsoever that implicated the children's mother in any past or future abuse. There is no evidence that the children could not have been taken with their mother to a shelter, or placed under some other form of protective custody with her until after the Equinox, or even until some later date. A genuine issue of material fact exists therefore as to whether the removal of the children from their mother's custody, and their placement in a county institution for an indefinite period, was sufficiently "strictly circumscribed by the exigency that justified" the City's intrusion into the children's lives. Good, 891 F.2d at 1093. Such questions are also to be decided by a jury. McKenzie, 738 F.2d at 1008.
4. Subsequent Conduct
[13] The Wallises contend that the violation of their rights occasioned by the City's removal of the children continued for the more than two month period during which the children were detained. During that time, the children were held in Hillcrest Receiving Home, and moved through at least three different "confidential" foster homes. Their parents were not permitted to know their whereabouts and were only allowed one hour of supervised visitation per week. There is evidence in the record that the children were traumatized by the separation and cried constantly for their parents. The Wallises contended below that the City was liable for all the damages that flowed from this entire ordeal because the City's policy was the legal cause of the separation. The City, in response, contended that it could not be held liable for any detention of the children after their removal was approved by the juvenile court. We leave it to the district court on remand to determine whether any City policy could be held to have caused any vio- lation of the Wallises' rights after the date of the juvenile court hearing. With respect to the fourday period between the removal and the court hearing, only one alleged violation of the Wallises' rights merits separate consideration the subjecting of Lauren and Jessie to invasive vaginal and anal medical examinations at the behest of the Escondido police department.
[14] The right to family association includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state. See Parham v. J.R., 442 U.S. 584, 602 (1979) (holding that it is in the interest of both parents and children that parents have ultimate authority to make medical decisions for their children unless "neutral fact finder" determines, through due process hearing, that parent is not acting in child's best interests); see also Calabretta v. Floyd, _______ F.3d _______ (9th Cir. 1999) (holding that "[t]he gov- ernment's interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children's interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents."). We agree with the Second Circuit which held, in van Emrick v. Chemung County Dept. of Social Servs. , that the "Constitution assures parents that, in the absence of parental consent, [physical examinations] of their child may not be undertaken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents, and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances."11 911 F.2d 863, 867 (2d Cir. 1990). Barring a reasonable concern that material physical evidence might dissipate, see Schmerber, 384 U.S. at 770, or that some urgent medical problem exists requiring immediate attention, the state is required to notify parents and to obtain judicial approval before children are subjected to investigatory physical exami- nations.
[15] Moreover, parents have a right arising from the liberty interest in family association to be with their children while they are receiving medical attention (or to be in a waiting room or other nearby area if there is a valid reason for excluding them while all or a part of the medical procedure is being conducted). Likewise, children have a corresponding right to the love, comfort, and reassurance of their parents while they are undergoing medical procedures, including examinations particularly those, such as here, that are invasive or upsetting. The interest in family association is particularly compelling at such times, in part because of the possibility that a need to make medical decisions will arise, and in part because of the family's right to be together during such diffi- cult and often traumatic events.
5. Conclusion
In light of the above, we conclude that there are genuine issues of fact as to whether the Wallises' constitutional rights were violated when the Escondido police officers took the children into custody, placed them in a county institution, and subjected them to invasive medical procedures. We must still consider, however, whether the City is entitled to summary judgment on the ground that the police officers did not engage in the conduct at issue pursuant to any municipal policy, custom, or practice.
B. Municipal Policy, Custom, or Practice
[16] Next, we must consider whether a material question of fact exists regarding whether the constitutional deprivations (which for purposes of summary judgment we must assume occurred) were caused by a "practice or custom which consti- tutes . . . standard operating procedure." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). The Wallises adduced testimony from Pitcher, Burkett, and Claytor that there was a practice a "longstanding agreement," in Burkett's words of enforcing "orders" to take protective custody of children without ever seeing the order. This is sufficient to raise a gen- uine issue of material fact regarding the existence of a custom or practice of taking children from their homes based on telephone calls from CPS without adequate safeguards to ensure that the removal is legal.
[17] Furthermore, the Wallises presented evidence from which it may reasonably be inferred that the Escondido Police Department customarily took children that it placed at Hillcrest Receiving Home for invasive investigatory examinations at Palomar Hospital without obtaining a court order and with- out notifying their parents. Detective Pitcher, who ordered the investigatory examinations, acknowledged that she may have done so in fulfillment of her function as the juvenile detective who removed the children from their parents' custody, and that there was a contract between Palomar and the Escondido Police Department for the performance of such investigatory examinations. A reasonable inference may be drawn from this evidence that it was "standard operating procedure" to obtain those examinations without seeking judicial authorization or notifying the parents; indeed, given the absence of any individualized suspicion of sexual abuse, it is difficult to imagine, on the basis of the record before us, why else the Wallis children would have been subjected to the invasive examinations.
[18] The Wallises also produced sufficient evidence to create a question of fact for the jury as to whether these customs and practices had a "direct causal link" to the deprivations of the Wallises' constitutional rights detailed above. City of Canton v. Harris, 489 U.S. 378, 385 (1989); Chew v. Gates, 27 F.3d 1432, 1444, 1456 (9th Cir. 1994) (holding that city may properly be held liable where policy is moving force behind constitutional violation); Jackson v. Gates, 975 F.2d 648, 654 (9th Cir. 1992) (holding that city's policy need not be unconstitutional per se, but need only cause a constitu- tional violation). A reasonable jury could readily conclude, viewing the evidence presently in the record in the light most favorable to the Wallises, that the moving force behind the removal of the children from the parents' custody was the pol- icy of accepting telephonic representations from CPS without any procedure for checking on the accuracy or validity of the supposed orders. See McMurray v. Sheahan, 927 F. Supp. 1082, 1090 (N.D. Ill. 1996) (holding county liable for false arrests when it has no system to check validity of warrants on computer system). That would be true whether a CPS employee had erroneously told the police that a pick-up order existed or whether the police mistakenly believed that a CPS employee had made such a statement. Similarly, a reasonable jury could conclude that the investigatory vaginal and anal examinations were performed on the children pursuant to a Police Department custom and practice of instigating body cavity examinations without first notifying the parents and without seeking prior court authorization whenever its offi- cers place children in protective custody.14 [19] The district court incorrectly held that even if the City did have policies that caused the deprivations, it was not lia- ble because any absolute and qualified immunities possessed by the individual officers were somehow transferred to the city itself. There are, however, no personal immunities avail- able vicariously or otherwise to municipal actors under S 1983. Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 166 (1993). It appears that the district court also applied state statutory immunities for child abuse investiga- tions to the federal constitutional claims and concluded that the City is immune from a S 1983 action under a state immu- nity statute. Again, the district court erred. Immunity under S 1983 is governed by federal law; state law cannot provide immunity from suit for federal civil rights violations. Martinez v. California, 444 U.S. 277, 284 (1980); Good v. Dauphin County Social Serv., 981 F.2d 1087, 1090-91 (3d Cir. 1989) (holding that state law providing immunity from suit for child abuse investigators has no application to suits under S 1983). In sum, the City of Escondido has the benefit of neither federal nor state immunity from liability under S 1983 for the alleged violations of the Wallises' constitutional rights.
Appellants' evidence regarding municipal custom and practice is sufficient to permit them to survive summary judgment on the Monell issue. Accordingly, we reverse the district court's grant of summary judgment to the City of Escondido with respect to the Wallises' S 1983 claims.
II. State Law Claims
In addition to their constitutional claims, the Wallises sued the City for abduction, assault, battery, and intentional infliction of emotional distress. The district court granted summary judgment to the City on those claims also, holding that the police had "reasonable cause" to remove the children and to subject them to vaginal and anal examinations, and thus violated no state laws. As discussed above, on the basis of the record before us, whether there was reasonable cause for the removal of Lauren and Jessie from their home is a question of fact for the jury; so, too, as we have fully explained, the City is not entitled to summary judgment regarding the physi- cal examinations.
[20] The officers contend that under Cal. Govt. Code S 820.2, they and under state law, by extension, the City are immune from liability on the state law tort claims.15 The district court concluded that the police had reasonable cause to seize the children and subject them to the invasive medical examinations, it did not reach the question of immunity. Given the conclusions we have reached, however, it is necessary for us to do so.16
[21] Under S 820.2, a public employee cannot be held lia- ble for any injury resulting from "his act or omission where the act or omission was the result of the exercise of discretion vested in him, whether or not such discretion be abused." The City correctly asserts that S 820.2 applies to county social workers engaged in investigating allegations of child abuse, and extends to other public employees whom those social workers "reasonably enlist to assist in the investigation." Newton v. County of Napa, 266 Cal. Rptr. 682, 687 (Cal. App. 1990); Alicia T. v. County of Los Angeles, 271 Cal. Rptr. 513, 519-20 (Cal. App. 1990) (holding that social workers' immu- nity is designed to protect "the continuing exercise of . . . discretion in favor of the protection of minor children"). This immunity provides complete protection for the decision to investigate, to make an "in-person response," and for actions necessary to make a meaningful investigation. It does not extend, however, to non-discretionary actions or to at least some intentional torts committed in the course of making the investigation, such as battery and false imprisonment. Newton, 266 Cal. Rptr. at 687-88.17
[21] Under S 820.2, a public employee cannot be held lia- ble for any injury resulting from "his act or omission where the act or omission was the result of the exercise of discretion vested in him, whether or not such discretion be abused." The City correctly asserts that S 820.2 applies to county social workers engaged in investigating allegations of child abuse, and extends to other public employees whom those social workers "reasonably enlist to assist in the investigation." Newton v. County of Napa, 266 Cal. Rptr. 682, 687 (Cal. App. 1990); Alicia T. v. County of Los Angeles, 271 Cal. Rptr. 513, 519-20 (Cal. App. 1990) (holding that social workers' immu- nity is designed to protect "the continuing exercise of . . . dis- cretion in favor of the protection of minor children"). This immunity provides complete protection for the decision to investigate, to make an "in-person response," and for actions necessary to make a meaningful investigation. It does not extend, however, to non-discretionary actions or to at least some intentional torts committed in the course of making the investigation, such as battery and false imprisonment. Newton, 266 Cal. Rptr. at 687-88.17
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CONCLUSION
Genuine issues of material fact exist as to whether the City of Escondido is liable, under Monell, for violating the Wal- lises' constitutional rights with respect to the removal of the children from their home and the City's subsequent conduct, including the invasive body cavity examinations. In addition, genuine issues of material fact exist regarding the City's assertion of immunity under Cal. Govt. Code S 820.2 with respect to the state causes of action. Given the numerous fac- tual disputes in this case, we conclude that summary judgment was improper, and that the Wallises are entitled to pursue both their federal and state law claims.
REVERSED and REMANDED for further proceedings consistent with this opinion.
RYMER, Circuit Judge, dissenting:
Whether the summary judgment should be reversed on the only ground urged by the Wallises that there is a triable issue of fact on whether the City had a policy to pick up children without verifying the existence of a court order and with- out reasonable cause is a close question. There is a good argument that, as the district court held, the officers had accumulated reasonable cause in the course of investigating Rachel's allegations, thereby making the nonexistence of the court order immaterial. However, because it is a close ques- tion, sending this issue back for trial is within the ballpark.
But holding that there is a triable issue of fact on a policy with respect to the medical examinations that was never alleged, never argued, and as to which no evidence was ever adduced as to the City the only party left in the case is not in the ballpark.
For sure there is evidence in the record about the examina- tions because Dr. Spencer, CPS, and San Diego County were defendants. However, the Wallises settled their claims against CPS and the County, and Dr. Spencer was dismissed from the case on immunity grounds. The City is the only party to this appeal. Until the majority got its bat on this case, there was no question at all about liability on the part of the City for the medical examinations.
I therefore dissent. The possibility of a City policy with respect to medical examinations of children was invented here; the discussion with respect to it is dicta, as it clearly is not necessary to the decision to reverse; and we have no busi- ness inventing an issue and a constitutional right or two to resolve it. the end
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AFFIRMED. the end
FOOTNOTES
1 The record is not entirely clear as to the ownership of the stores at which they worked during this period, but that fact is of no import.
2 In a subsequent letter to CPS, Young stated with respect to the infor- mation that Jessie would be sacrificed by his father: "A child alter of Rachel's named _______ relayed this information to me, however it is not clear which alter actually received this information from her own and Jessie's father. Unfortuneately, (sic) the alters wish to remain anonymous out of fear of punishment for disclosure." The blank space above refers to the alter personality that requested the therapist preserve his or her anonymity. The therapist complied with that request.
3 As this litigation has progressed over the years, Pitcher's statements about her telephone conversation with Young have grown more elaborate. Thus, at Pitcher's first deposition in May 1994, she stated that she subjectively thought that the report might be credible based solely on the fact that Young and another doctor, to whom Pitcher never spoke, specialized in ritual abuse. Pitcher did not, in that deposition, testify that Young ever told her that this report was credible or that the Wallis children were in any immediate danger. However, when three years later Pitcher submitted an affidavit in support of the defendant's motion for summary judgment, she reported a different version of her conversation with Young one in which Young told her that "in her professional opinion Rachel Stecks's report was . . . true and . . . that she had a real fear for the safety of the Wallis children." The two divergent accounts of this telephone conversation, as offered by Pitcher, in themselves create a question of fact and of credibility that can only be resolved by the jury. Moreover, even if Pitcher's most recent account is accurate, whether this conversation supplied sufficient objective facts and information to justify the seizure is a ques- tion of fact for the jury. See McKenzie v. Lamb , 738 F.2d 1005, 1008 (9th Cir. 1984) (holding that the existence of probable cause in a S 1983 case is a jury question).
4 Once again, Pitcher's testimony has changed as time has passed. In a subsequent deposition and declaration Pitcher offered a different version of these events, insisting that she had conducted an investigation, and had picked up the children after concluding that she had probable cause for such action. Even then, however, she made it clear that at the time she acted she was relying at least in substantial part on a statement from CPS that a pick-up order existed.
5 "The Wallises" refers to all four plaintiffs, except where the context reflects otherwise.
6 See supra note 4.
7 Although we do not consider here the legal consequences of relying on a non-existent order, see note 10, infra , we note that a number of factual issues exist as to what, if anything, the officers were told about a pick-up order for Lauren and Jessie. Such questions are best resolved at trial.
8 The claims of the parents in this regard should properly be assessed under the Fourteenth Amendment standard for interference with the right to family association. Campbell v. Burt, 141 F.3d 927 (9th Cir. 1998); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1991). Because only the chil-dren were subjected to a seizure, their claims should properly be assessed under the Fourth Amendment. Donald v. Polk County, 836 F.2d 376 (7th Cir. 1988); but see J.B. v. Washington County , 127 F.3d 919, 928 (10th Cir. 1997) (noting that there may be circumstances in which a parent has standing to bring a Fourth Amendment claim for the seizure of a minor child). As the same legal standard applies in evaluating Fourth and Four- teenth Amendment claims for the removal of children, we analyze the Wallises' claims together.
9 The City also cites, as a contributing factor in the reasonable cause cal- culus, the "fact" that the officers were told by CPS workers about the "pick-up" order. There are two problems with this suggestion. First, what, if anything, CPS told the officers is a disputed question of material fact. Second, there is a substantial legal question as to whether a mistaken belief as to the existence of a warrant or court order, even when based on an erroneous report from another law enforcement officer, can in itself constitute a contributing factor. In the recent case of Rogers v. Powell, 120 F.3d 446, 453 (3d Cir. 1997), the Third Circuit appears to have answered this question in the negative. In Rogers, a state trooper mistakenly believed, based on a conversation with a probation officer, that there was a warrant for Rogers's arrest. That trooper then told two fellow officers that there was an arrest warrant, and all three arrested Rogers on that basis. The Third Circuit concluded that all three officers violated the plaintiff's Fourth Amendment rights. The court went on to say, however, that the second two officers were entitled to qualified immunity, because it was objectively reasonable for them to believe that they were authorized to rely on the clear and unambiguous statements of a fellow officer.
10 The tip also stated that Bill supposedly told Rachel that Becky would get over the loss of Jessie, saying "She's not going to miss him. Besides, we've got Lauren. It's not like we don't have our hands full with her. She'll forget about him after a while." This part of the tip suggests that there was never any reasonable cause to remove Lauren even if there were reason to remove Jessie. There were no allegations that anyone planned to harm Lauren or that anyone had ever previously harmed Lauren.
11 In our recent decision in Calabretta, we quoted with approval the fol- lowing language: "It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitu- tional rights of some magnitude. More than that: it is a violation of any known principle of human dignity." Calabretta, _______ F.3d at _______ (quoting Good v. Dauphin County Social Services, 891 F.2d at 1093 (in turn quot- ing Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980)).
12 See R. Lazebnik et al., Preparing Sexually Abused Girls for Genital Evaluation, 13 ISSUES IN COMPREHENSIVE PEDIATRIC NURSING 155 (1990) (concluding that vaginal examinations are highly traumatic to little girls, particularly when their mothers are absent). A social worker who observed five year old Lauren's vaginal and anal examination reported that Lauren was upset and "under stress" during the examination and asked for her parents. Later, Lauren appeared for an interview with this same social worker clutching a security blanket and a stuffed animal and tearfully asked whether her parents wanted her back or were trying to "get rid of her."
13 We note that the claims of each family member must be assessed sep- arately. Here, nothing in the record before us suggests that Becky Wallis was anything other than a fit and loving mother. As the Third Circuit recently held, a state has no interest whatever in protecting children from parents unless it has some reasonable evidence that the parent is unfit and the child is in imminent danger. Croft, 103 F.3d at 1125. The government may not, consistent with the Constitution, interpose itself between a fit parent and her children simply because of the conduct -- real or imagined -- of the other parent.
14 While we determine in the text that there is a genuine issue of material fact as to the existence of a municipal custom or practice of subjecting children, taken into custody due to suspected abuse or neglect, to investigatory anal and vaginal examinations without prior judicial authorization and parental notification, we do not intend to imply that it is necessary for the Wallises to establish the existence of a second and independent munic- ipal policy
http://www.bountylicenserecovery.com/wallis.html
WALLIS v CITY OF ESCONDIDO
9755579
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Analysis
Facts
Opinion
Counsel
Footnotes
Conclusion
Dissenting Judge
Procedural History
LAUREN WALLIS, by and through her Guardian Ad Litem, REBECCA LYNN WALLIS, Guardian Ad Litem; JESSIE WALLIS, by and through his Guardian Ad Litem, WILLIAM LAWRENCE WALLIS, Guardian Ad Litem; REBECCA LYNN WALLIS; WILLIAM LAWRENCE WALLIS, Plaintiffs-Appellants,
No. 97-55579
v.
D.C. No.
MARY SPENCER, M.D.; CANDACE CV-93-00135-MLH
YOUNG, PH.D.; RACHEL STECKS; CITY OF SAN DIEGO; CITY OF ESCONDIDO; CHILD PROTECTIVE SERVICES, A DIVISION OF THE SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES; WELLS GARDNER; CATHY MCLENNON; CANELA CAVEDA; SUSAN GOULIAN; GRACE GOODALL; and DOES 1 through 300, Inclusive,
Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
November 6, 1998--Pasadena, California
Filed September 14, 1999
Before: Myron Bright,* Stephen Reinhardt, and Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Reinhardt
Dissent by Judge Rymer
COUNSEL
Paul Leehey, Fallbrook, California, and Donnie Cox, Carlsbad, California, for the plaintiffs-appellants.
Jeffrey Epp, City Attorney, and Mark Wagoner, Assistant City Attorney, Escondido, California, for the defendant.
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OPINION
REINHARDT, Circuit Judge:
This case involves a conflict between the legitimate role of the state in protecting children from abusive parents, and the rights of children and parents to be free from arbitrary and undue governmental interference. Such conflicts occur with increasing frequency these days. The problem of child abuse is a critical one, with deep personal and social costs. For too long, intra-familial sexual abuse was considered to be a "private" matter. Today, the law is changing. As we develop a greater awareness of the extent and severity of this difficult and painful problem, society has finally begun to treat intra- familial child abuse as a serious criminal offense.
Because the swing of every pendulum brings with it potential trial adverse consequences, it is important to emphasize that in the area of child abuse, as with the investigation and prosecution of all crimes, the state is constrained by the substantive and procedural guarantees of the Constitution. The fact that the suspected crime may be heinous -- whether it involves children or adults -- does not provide cause for the state to ignore the rights of the accused or any other parties. Other- wise, serious injustices may result. In cases of alleged child abuse, governmental failure to abide by constitutional constraints may have deleterious long term consequences for the child and, indeed, for the entire family. Ill considered and improper governmental action may create significant injury where no problem of any kind previously existed.
Here, the plaintiffs two young children and their parents have sued the City of Escondido, among others, for violations of their constitutional rights. Escondido police officers, evidently acting on the basis of a non-existent court order, seized the children, aged two and five, placed them in a county run institution, and several days later, without obtaining judicial authorization and without notifying their parents, took them to a hospital for the performance of highly intrusive anal and vaginal physical examinations. The children were not returned to their parents for approximately two and one half months. All of this occurred after a mental patient who had a long history of delusional disorders and was confined to a mental institution told her therapist a fantastic tale of Satanic witchcraft within her family and an impending child sacrifice. The district court initially granted the City's motion for summary judgment on the erroneous theory that the action was collaterally stopped by a preliminary ruling of the juvenile court referee, and we reversed. Subsequently, the district court again granted the City summary judgment, this time on the merits. Again, we reverse.
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Facts
In September, 1991, Bill and Becky Wallis lived in San Diego with their five year old daughter Lauren and their two year old son, Jessie. At that time, Bill had worked at the Lucky Supermarket in San Marcos for over ten years; Becky had worked for a similar period of time at Lucky's in the nearby community of Escondido. Although Bill and Becky Wallis maintained relationships with their parents, the family had had no contact with Becky's sister, Rachel Stecks, for the previous 18 months. Rachel, who suffers from a long history of psychiatric problems, including severe dissociative and multiple personality disorders, had made a false report to the San Diego County Child Protective Services ("CPS") in April of 1990, alleging that Bill was sexually abusing Lauren. CPS had investigated the report and found that there was no credible evidence to support the allegations and no action was taken against the Wallises. Bill and Becky remained angry at Rachel, however, and terminated their relationship with her.
The following year, Rachel was hospitalized in a psychiatric facility because she was suicidal and was afraid that she would be murdered. She reported to her therapist in the hospital, Candace Young, that Bill Wallis was planning to sacrifice his young son Jessie to Satan at the "Fall Equinox ritual," and that Bill had told her that Jessie's ritual murder would be covered up by staging a car accident in which his body would be burned. Rachel also told Young that both her parents were in a satanic cult, and that Bill Wallis was also in the cult, but that Becky was not, and indeed "might not know" about her husband's and parents' cult membership. Rachel recounted her recently recovered memory "of being with her father in the woods, with him wearing a cult robe reciting hypnotically. On the third full moon after two blue moons a child will be killed.' " Rachel believed that this incident occurred in 1970, some 20 years before Jessie's birth. One of Rachel's "alter" multiple personalities told Young that the incantation referred to Jessie and meant that he would be sacrificed to Satan on the "Fall Equinox," supposedly one of the Satanic "High Holidays."2 In 1991, the Fall Equinox evidently fell upon September 23, one day before Jessie's third birthday.
Young, a marriage and family counselor, was at the time a mandated reporter of child abuse under California law. Rachel's tale (and that of her alters) apparently caused Young some concern; in any event, she telephoned Sue Plante at CPS on September 17, 1991. Plante told Young that she needed more information before she could refer the matter to the child abuse investigation unit. After two days, Young sent Plante a letter. Plante then phoned the child abuse hotline, on September 19, 1991. The referral filled out by the hotline worker by now a third hand account of a story told by an institutionalized mental patient indicates that Rachel reported to her therapist that Bill Wallis was going to sacrifice Jessie to Satan on September 23, 1991. The referral also says that Rachel was currently hospitalized for psychiatric reasons, and that she has "multiple personality and decompensates during cult holidays." In addition, the referral clearly states that, according to the mental patient, Becky "may not know of husband's cult activity," and noted where Bill and Becky worked.
Plante also called her supervisor, who advised her to contact the Escondido Police Department, which she did. The Police Department, in turn, assigned the case to Officer Brian Knodel. Plante told Knodel the contents of the referral from Young, including the fact that Rachel wasn't sure that her sister Becky knew about the cult, and also that Young had told her that Rachel's father owned a boat docked in San Diego called "Witch Way." The next day, Knodel reported to Plante that he could not locate the family at the address provided by Rachel because it was over a year old likely due to the fact that Bill and Becky had cut off contact with Rachel after her earlier false report to CPS and that he did not attempt to find them at their jobs "because he did not want to alert them to the possibility that we were trying to find the child to intervene."
Plante wrote up her recommendations for the CPS case- worker who would be assigned to the matter, stating that she felt "we have no choice but to take the children into protective custody until an investigation can be done." Plante later testified, however, that she had no recollection of telling anyone at the Escondido Police Department or at CPS that the children should be picked up. On September 20, 1991, CPS assigned Karen Cabico to be the "emergency response social worker." In that capacity, she was the case-worker charged with deciding whether the circumstances warranted removing the Wallis children from their home and placing them in foster care. Cabico's notes from September 20 show that she communicated with both Knodel and Plante during the effort to locate the family's home. At some point that day, Plante told Cabico that a district attorney named Jane Via told Plante that "we have enough to pick up the kids."
Also on September 20, Knodel wrapped up his involvement in the matter by recommending to his superiors at the Police Department that "this case be submitted to investigations or be followed up by CPS case worker Sue Plante." The Police Department assigned the case to juvenile detectives Diana Pitcher and Ralph Claytor, who continued to search for the family. Cabico testified that she never told Pitcher or anyone else at the Police Department that it was authorized to pick up Lauren or Jessie, but that she did not know whether anyone else at CPS told the police to do so. Pitcher testified that she had no discussion with anyone from CPS about any allegations of sexual abuse concerning either Wallis child, and that all of her conversations with Plante and Cabico involved the supposed "ritual murder" of Jessie. Pitcher also contacted Young, who reiterated the tale told to her by her institutionalized patient. Pitcher later said that "in her mind" she believed Rachel's story because Young had some "expertise " in the area of ritualistic abuse.
Pitcher and Claytor both contend that CPS workers Plante and Cabico told them though neither officer can recall the precise facts or circumstances that "there was a pickup order." Pitcher testified at her deposition that she did not believe she was responsible for investigating the case, but "was really looking at just picking up the children on the order." She testified that she "knew" that there was a court order though she never saw one and repeated that she was not conducting an investigation but only enforcing the supposed order. Claytor also testified that he was involved in investigating the location of the children in order to enforce the CPS pickup order, but that he was not involved in any investigation of abuse. Pitcher's supervisor, Ken Burkett, also testified that he believed that there was a juvenile court order to pick up the children that had previously been obtained by CPS, and that the Police Department picked them up as it would "normally" do in that circumstance. It is undisputed that no order ever existed and that CPS had not yet even reached a decision about whether to seek protective custody of the children when the police picked them up.
During discovery, Pitcher, Claytor, and Burkett all testified that, at the time the Wallis children were seized, the Police Department had in effect a practice of taking "at face value" telephonic representations from CPS that there was a court order to remove children from their parents' custody. Claytor testified that "it was not unusual for CPS workers to call and ask for our units to respond to a particular scene, and tell them that `we have a petition that's been filed,' or kids have already been made a ward of the court in response to a petition. That happened fairly often." Burkett, the supervisor, testified that the Police Department did nothing to verify that a pickup order existed because there's been a longstanding agreement between law enforcement agencies, that if I tell you I have a search warrant, up until recent times, you would be taken at face value that you did, in fact, have a search warrant. Same way as when I call down to verify that there is a warrant in the system for some- one and make the arrest, I don't physically see it.
Unlike arrest warrants, however, court orders to seize children were not at that time part of any computerized database and there was no established procedure for verifying such orders, by xerox, fax, computer, or otherwise. Indeed, Pitcher testified that in September of 1991 the Department had a settled practice of not confirming CPS representations that there was a court order to pick up children. Pitcher was identified by the Police Department as the person most knowledgeable about the Department's practices regarding taking protective custody of minors, and she was deposed as such.
On September 21 and 22, the police continued to look for the family in order to enforce the purported court order, but still did not go to either parent's place of work. An officer finally went to the Lucky's in Escondido on the afternoon of September 22 and discovered that Becky did in fact work there and that she was scheduled to work that evening. The manager of the Lucky's did not have a current home address for Becky. At some point that day, the police also discovered that a boat called "Witch's Way" was berthed at a harbor in the city of Oceanside. They made no inquiry, however, as to the name of the person or persons who owned or used the boat. The officers decided to have a "stake out " in the parking lot of the Escondido Lucky's grocery store. When Becky got off work late that night, three unmarked police cars followed her. Becky later said that she had become frightened when she realized that she was being followed, and even went to the Escondido police station in an effort to get help; however, she was afraid to get out of her car, and drove around in a panic for two hours. At that point, the police realized that their "surveillance had been compromised," and pulled her over in the parking lot of a 7-11 store. There, according to Detective Supervisor Burkett, the officers identified themselves, told her that they needed to "check on" the children, and said that if she took them to her house, they would be able to "sit down and talk about it." Burkett testified, however, that when the officers made these statements to Becky, they did not want only to "check on" the children or talk with the Wallises but they intended to pick up the children based on their belief that there was a court order to do so. In response to the officers' representations, Becky took the officers to the family's home and agreed to their entry.
When Becky arrived at her house, accompanied by the police, at around midnight, her children were asleep. The children appeared well-cared for, and Detective Claytor acknowledged that there was no sign of anything suspicious. Nevertheless, Pitcher decided to "interview" Lauren. She required Bill and Becky to awaken Lauren so that she could question her. According to Pitcher, the sleepy five year old was "evasive," but told her that they had to move from the apartment in which they had previously lived because of "spiders on the walls." Although Pitcher acknowledged that she had no information from any source that Lauren had ever been sexually abused, she asked her whether "anybody had ever given her bad touches or abused her." Lauren denied that anyone had.
Pitcher then told the parents that their children were being taken away from them. She testified that she took custody of Lauren and Jessie "because of the order . . .because of the investigation that had already taken place in CPS. " She stated that she "did not know the specifics of how they[CPS] laid the groundwork to get the kids removed." Pitcher did not interview Becky or Bill because "we had an order and so I wasn't that concerned with it." According to Detective Burkett, who was also present at the time, the police probably told Bill and Becky that there was a court order requiring the police to pick up the children. At 1:00 a.m. on September 22, 1991, Detectives Pitcher and Claytor took Lauren and Jessie to the Hillcrest Receiving Home, a county institution. The children were not allowed to see their parents and cried for them constantly. Lauren and Jessie were not returned to their parents for two and one-half months.
Three days after the children were removed from their home, Detective Pitcher picked them up from the county institution and took them to Palomar Hospital, where she ordered, on behalf of the Escondido Police Department, an evidentiary physical examination of both children. No court order was obtained prior to this examination, which was performed in order to determine whether either child had been sexually abused. Nor were the parents notified in advance that the examinations would be conducted. They were not given any opportunity to object to the intrusive examinations, to suggest conditions under which they might take place, or to be present when they occurred. Pitcher testified that she took the children for the examinations "as the officer who had placed the children in protective custody, or at the request of Child Pro- tective Services, or both." CPS insists that the exams were conducted at the City's behest, and the medical report form reflects that the Escondido Police Department was the "requesting agency."
The medical procedures, conducted by Dr. Mary Spencer, included internal body cavity examinations of the children, vaginal and anal. Dr. Spencer also took photographs of both the inside and outside of Lauren's vagina and rectum and Jessie's rectum. These examinations were conducted on Jessie's third birthday. A social worker who observed the examinations reported, not surprisingly, that Lauren was very upset by the procedures and asked for her parents. Following the examinations, Dr. Spencer reported to Wells Gardner, CPS's "court intervention worker" that the results disclosed medical evidence that both children had been molested, and that Dr. Susan Horowitz, a specialist from Children's Hospital's Sexual Abuse Unit concurred with her findings. On September 25, 1991, Gardner filed a petition in Juvenile Court alleging that Bill was going to sacrifice Jessie to Satan and that both children had been sexually abused. The Juvenile Court referee specifically rejected the allegations regarding occult sacrifice as a basis for retaining custody of the children, but determined that Dr. Spencer's report provided sufficient evidence of sexual abuse to keep them in county custody. Bill and Becky were granted only one supervised visit per week.
Two months went by. Then, on November 25, Dr. Horowitz sent Gardner a letter that changed the lives of the Wallis family. It informed CPS that Dr. Spencer's statement in her report that Dr. Horowitz supported the finding of sexual abuse was false. In fact, Dr. Horowitz wrote, as of the time of Dr. Spencer's report, she (Dr. Horowitz) had not had access to the records of Dr. Spencer's examination, had not performed a full review, and had not offered any conclusion. Dr. Horowitz's letter further stated that she now had reviewed the full file and, based on all the evidence, she did not agree with Dr. Spencer's conclusion that the children had been abused. To the contrary, Dr. Horowitz concluded that there was no evidence of abuse and that there were alternative, normal physiological explanations for what Dr. Spencer had observed. Dr. Horowitz's explanations were based on Lauren's history of vaginal irritation and infection, as documented in her medical records, as well as other information contained in those records. Gardner, to his credit, immediately released the children to their maternal grandmother, and moved swiftly to dismiss the case in Juvenile Court. On December 6, 1991, Lauren and Jessie were returned by court order to the custody of their parents. No one now contends that either child was ever sexually or physically abused, that there was ever any evidence of any abuse by their parents, or that Bill Wallis had ever had any intention of sacrificing Jessie to Satan.
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PROCEDURAL HISTORY
All four members of the Wallis family joined in an action alleging the violation of their federal constitutional rights to be free from unreasonable, arbitrary, and undue intrusions on their privacy, person, and home, as well as setting forth various state law claims. CPS, the County, and several other defendants settled with the Wallises; the district court then granted summary judgment to the remaining defendants. The Wallises appealed the district court's ruling. In an unpublished disposition, we reversed as to the City of Escondido, holding that the Wallises' action was not precluded by the juvenile court referee's decision to retain the children in tem- porary custody on the basis of Dr. Spencer's false report of sexual abuse. We remanded the matter for further proceedings.
The district court granted the City's second motion for summary judgment on the theory that none of the Wallises' constitutional rights were violated because the Police Department had reasonable cause to remove the children from their parents' custody with or without a court order, and that the officers had, therefore, acted reasonably. The court then said that even if the Wallises' rights were violated, they had not offered any facts or evidence proving that the Police Depart- ment had a policy that caused the violation. The district judge also concluded that the City was immune from any state law remedy because the police officers were "reasonable" both in removing the children from their parents' custody and in sub- jecting them to the investigatory body cavity examinations. Then, despite the fact that the Wallis family did not sue any officers in their individual capacities, the district court went on to conclude that even if the Wallises' constitutional rights had been violated, the officers were entitled to both absolute and qualified immunity, and that this personal immunity was transferrable to the City itself: "Consequently the city is entitled to qualified immunity for their actions in regards to all S 1983 actions alleged by plaintiff." The Wallises appealed.
Analysis
I. Constitutional Claims
[1] The Wallises allege that the City of Escondido, through the actions of its Police Department, violated the family's constitutional rights by the unlawful removal of Lauren and Jessie from their home in the middle of the night and by the subsequent unlawful detention of the children, including the invasive vaginal and anal examinations. A municipality like the City can be sued for "constitutional deprivations visited pursuant to governmental custom." Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978). In order to avoid summary judgment, a plaintiff need only show that there is a question of fact regarding whether there is a city custom or policy that caused a constitutional deprivation. Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994); Jackson v. Gates, 975 F.2d 648 (9th Cir. 1992) (city may be liable when its policy is the moving force behind constitutional vio- lation). The Wallises are entitled to prevail on this appeal, therefore, if they introduced sufficient evidence to show that there is an issue of material fact as to whether (1) their consti- tutional rights were violated; and (2) the violations were caused by a Police Department custom or practice. 5
A. The Alleged Violations
[2] The Wallises argue that the seizure and removal of the children from their parents' custody in the middle of the night pursuant to a non-existent court order violated their rights under the Constitution. Parents and children have a well- elaborated constitutional right to live together without govern- mental interference. Santosky v. Kramer, 455 U.S. 745 , 753 (1982); Stanley v. Illinois, 405 U.S. 645 (1972); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534 -35 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). That right is an essential liberty interest protected by the Fourteenth Amendment's guarantee that parents and children will not be separated by the state without due process of law except in an emergency. Stanley, 405 U.S. at 651 ; Campbell v. Burt , 141 F.3d 927 (9th Cir. 1998); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1996); Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir. 1991); Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1988); accord, J.B., 127 F.3d at 927; Croft , 103 F.3d at 1125; Hurlman v. Rice, 927 F.2d74, 79 (2d Cir. 1991); Duchesne v. Sugarman, 556 F.2d 817, 824 (2d Cir. 1977). The Wallises have produced more than enough evidence to create a genuine issue of material fact as to whether the removal of the children from their parents' custody was violative of their constitutional rights.
1. The Non-Existent "Pick-Up" Order
[3] It is now beyond dispute that no court authorized anyone to remove Lauren and Jessie from their home on September 21, 1991. The Wallises contend that the City's police officers removed the children on the basis of a nonexistent court order, and have produced substantial evidence that this is what actually happened. Detectives Pitcher, Claytor, and Burkett all testified that they were told by someone at CPS that there was a "pick-up" order and that their task was to locate the family and enforce the order. Detective Pitcher tes- tified in her deposition that she told Bill and Becky Wallis that she was taking their small children away in the middle of the night "because of the order . . . because of the investiga- tion that had already taken place in CPS." Detective Burkett confirmed that the officers probably told Bill and Becky that there was an order requiring the removal of the children. Indeed, the only evidence that could be construed as offering any other reason for the "pick-up" is Detective Pitcher's subsequent statements that appear to contradict her earlier testimony.6
The testimony of CPS workers regarding what they told the police is somewhat different. Sue Plante testified that she could not recall telling the officers that there was a court order to remove the children; her contemporaneous notes indicate, however, that it is possible that she did advise the police to pick them up. Karen Cabico, the official caseworker, flatly denied conveying any such information to the police; her notes report, however, a phone call from Plante informing her that a district attorney had stated that there was enough evi- dence to "pick up the kids."
[4] The City does not seriously challenge the contention that the officers took custody of Lauren and Jessie because they mistakenly believed that there was an outstanding court order. Nor on this appeal do they separately argue that either a mistaken belief that a court order exists, or reliance on an erroneous statement to that effect from a social service agency worker, satisfies the requirement for a court order or provides reasonable cause, in itself, for the seizure of the children.7 Instead, confronted with the fact that there was no court order to remove the children from their parents' control, the City contends that the removals were nonetheless lawful, essentially because the facts of which the police were aware regarding the impending Satanic sacrifice of Jessie provided "reasonable cause" to seize the children. 8
2. Reasonable Cause and Imminent Danger
[5] Officials may remove a child from the custody of its parent without prior judicial authorization only if the informtion they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury. Good, 891 F.2d at 1093 (citing Mincey v. Arizona, 437 U.S. 385, 393 (1978)); see also Campbell, 141 F.3d at 927; Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993); Hurlman v. Rice , 927 F.2d 74, 80 (2d Cir. 1991) (collecting cases). The existence of reason- able cause, and the related questions, are all questions of fact to be determined by the jury. McKenzie v. Lamb , 738 F.2d 1005, 1008 (9th Cir. 1984) (per Kennedy, J.); Smiddy v. Varney, 665 F.2d 261, 265 (9th Cir. 1981) (per Sneed, J.) Summary judgment in favor of the defendants is improper unless, viewing the evidence in the light most favorable to the plaintiffs, it is clear that no reasonable jury could conclude that the plaintiffs' constitutional rights were violated.
[6] Thus, summary judgment was improper here if a material question of fact exists regarding whether (1) there was reasonable cause to believe, on the basis of the information in the possession of the Escondido police officers, that the Wal- lis children faced an immediate threat of serious physical injury or death; or (2) the actions taken by the officers removing the children from their mother and placing them in an institution exceeded the permissible scope of the action necessary to protect them from that immediate threat. We conclude that there are material disputes of fact with respect to both questions.
[7] First, the state may not remove children from their parents' custody without a court order unless there is specific, articulable evidence that provides reasonable cause to believe that a child is in imminent danger of abuse. Croft v. Westmoreland County Children and Youth Servs., 103 F.3d 1123, 1125; Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir. 1997) ("An indictment or serious allegations of abuse which are investigated and corroborated usually gives rise to a reason- able inference of imminent danger."); Good , 891 F.2d 1087, 1093 (3d Cir. 1989) (citing Mincey v. Arizona , 437 U.S. 385, 393 (1978)); see also Campbell, 141 F.3d at 927; Franz, 997 F.2d 784; Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991) (collecting cases). Moreover, the police cannot seize children suspected of being abused or neglected unless reasonable avenues of investigation are first pursued, particularly where it is not clear that a crime has been, or will be, committed. See Sevigny v. Dicksey, 846 F.2d 953, 957 (4th Cir. 1988) (holding that child abuse investigator has duty to investigate information that would have clarified matters prior to separating children from their parents); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (officer has duty to "make a thorough investigation and exercise reasonable judgment before invoking the awesome power of arrest and detention"). Whether a reasonable avenue of investigation exists, however, depends in part upon the time element and the nature of the allegations.
[8] At the time Lauren and Jessie were removed, the police department had received a report from a mental health worker that an institutionalized mental patient, who had an extensive history of severe delusional disorders and multiple personalities, had told a story of anticipated ritual murder by Jessie's father a story that would appear to an objective observer clearly to be founded in mental illness. In fact, Detective Claytor later testified that the allegations "sounded a little bizarre" to him, and that he had expressed that opinion to Detective Pitcher at the time. Applying a reasonable cause standard, the juvenile court judge who subsequently heard the dependency petition in this case explicitly rejected those charges as a basis for removing Lauren and Jessie from their parents' custody. Detective Pitcher, however, stated that "in her mind" she believed the story because it was conveyed to her by Young, an "expert."
The only other facts on which the City relies to demonstrate that the officers had reasonable cause to believe that there was an imminent threat to the children's welfare at the very most help the City establish that a genuine issue of material fact exists and that summary judgment should not be awarded to the Wallises. See McKenzie, 738 F.2d at 1008. Those "facts," taken together with Rachel's tale as reported by Young, do not by any means justify the conclusion that a reasonable jury would be required to find that the officers had reasonable cause for taking the children into custody. The additional "facts" are as follows: First, the City claims that the officers confirmed that Rachel's and Becky's father, David Stecks, owned a boat named "Witch Way." In fact, the police did not confirm any such thing; according to Detective Claytor, who was the officer searching for the boat, he learned only that a boat with a similar name (Witch's Way) was docked in Oceanside. He did not, however, confirm that the boat was owned, or used, by David Stecks, or by any member of Becky's family. Moreover, the police never conducted any investigation whatsoever into how the boat acquired its name, or whether Stecks had anything to do with naming it. Next, the City relies on the fact that the Wallises had moved from the address Rachel supplied, which the City characterizes as "disappearing from where they were supposed to be." An equally valid inference is that the Wallises' change of address demonstrates the unreliability of Rachel's tip, because important information Rachel provided proved false, and because Rachel lacked knowledge regarding important family matters.
Third, Detective Pitcher testified that she accorded significance to five-year-old Lauren's statement about spiders and her "elusive" behavior on being awakened at 1:00 a.m. The Wallises are entitled to the inference that Lauren was drowsy and had nothing adverse to report. In any event, when asked by Pitcher if anyone had ever given her "bad touches," Lauren denied that anyone ever had, which is hardly "elusive."
Finally, we note that the tip itself stated that Becky Wallis was probably unaware that Bill was contemplating harming Jessie and was not part of the "plot" to kill her son.10 Nevertheless, the City acknowledges that its officers did not inter- view Becky because they mistakenly thought they were enforcing a court order. More important, for this reason, the officers also did not undertake any significant investigation into the underlying charge, specifically, the allegation that Jessie would be sacrificed.
[9] Under the circumstances, a jury could reasonably con- clude that the information possessed by the officers was insufficient to give rise to reasonable cause or that the officers' conduct in failing to investigate the mental patient's bizarre tale before acting was not reasonable. While ordinarily a close relative's tip that a child is about to be killed might provide reasonable cause to believe that an emergency exists and justify a seizure of the child without prior judicial authorization, the facts in this case are far from ordinary. They are, indeed, extraordinary in every sense of the word, including the fact that the close relative had a long history of psychiatric disor- ders, was confined to a mental institution, and told a tale that was wholly incredible. In any event, given the factual uncertainty regarding the information actually possessed by the officers at the time they removed the children, the contradictions in Detective Pitcher's testimony and sworn statements, the absence of any significant investigation into the allegations, and the extraordinary nature of the allegations, it cannot be said as a matter of law that reasonable cause existed, or that the officers acted reasonably. Viewing the evidence in the record in the light most favorable to the Wallises, we conclude that a reasonable jury could find that the officers did not have reasonable cause to remove the children without a court order.
3. Permissible Scope of the Removal
[10] Even if state action to protect Jessie against future Satanic sacrifice by his father were reasonable under the circumstances, triable issues of fact would exist regarding whether the scope and degree of the state interference was justified by the alleged exigency. Bell, 441 U.S. at 559; Barlow, 943 F.2d at 1138 ("Police officers can proceed with- out a warrant if they reasonably believe they are confronted with an emergency that threatens life or limb, but the [intrusion] must be strictly circumscribed by the exigencies which justify its initiation."); Franz, 997 F.2d at 791 (intrusion must be "reasonably necessary to alleviate the threat") Good, 891 F.2d at 1093 (under "very limited exception" to warrant rule, intrusion must be reasonably necessary to alleviate the threat of immediate harm); Hebein, 37 F. Supp.2d at 1043 (holding that danger must justify the degree of interference imposed). Merely because some intrusion on a child's protected privacy and security interests may be reasonable does not mean that any intrusion is.
[11] Here, the City asserts that the exigency motivating the officers' decision to remove the children without a court order was the belief that Bill Wallis would sacrifice Jessie to Satan on the "Fall Equinox," which was to occur on September 23, 1991. The City argues in its brief that part of its "reasonable" belief in the credibility of this threat was the information that the "Equinox" is one of the "high holidays " for devil worshipers, "when cultists perform human sacrifices and . . . believe that they derive energy from abusing children on that day." (emphasis added). By the City's own admission, then, the police had no information that Jessie's father's plot extended beyond the Equinox; the imminent danger to Jessie was to occur specifically and only on September 23, 1991, a day after the children's seizure. Thus, there is a genuine issue of material fact as to whether the emergency continued to exist for more than the brief day or two following the time of the children's seizure.
[12] Furthermore, as previously noted, the police had no information whatsoever that implicated the children's mother in any past or future abuse. There is no evidence that the children could not have been taken with their mother to a shelter, or placed under some other form of protective custody with her until after the Equinox, or even until some later date. A genuine issue of material fact exists therefore as to whether the removal of the children from their mother's custody, and their placement in a county institution for an indefinite period, was sufficiently "strictly circumscribed by the exigency that justified" the City's intrusion into the children's lives. Good, 891 F.2d at 1093. Such questions are also to be decided by a jury. McKenzie, 738 F.2d at 1008.
4. Subsequent Conduct
[13] The Wallises contend that the violation of their rights occasioned by the City's removal of the children continued for the more than two month period during which the children were detained. During that time, the children were held in Hillcrest Receiving Home, and moved through at least three different "confidential" foster homes. Their parents were not permitted to know their whereabouts and were only allowed one hour of supervised visitation per week. There is evidence in the record that the children were traumatized by the separation and cried constantly for their parents. The Wallises contended below that the City was liable for all the damages that flowed from this entire ordeal because the City's policy was the legal cause of the separation. The City, in response, contended that it could not be held liable for any detention of the children after their removal was approved by the juvenile court. We leave it to the district court on remand to determine whether any City policy could be held to have caused any vio- lation of the Wallises' rights after the date of the juvenile court hearing. With respect to the fourday period between the removal and the court hearing, only one alleged violation of the Wallises' rights merits separate consideration the subjecting of Lauren and Jessie to invasive vaginal and anal medical examinations at the behest of the Escondido police department.
[14] The right to family association includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state. See Parham v. J.R., 442 U.S. 584, 602 (1979) (holding that it is in the interest of both parents and children that parents have ultimate authority to make medical decisions for their children unless "neutral fact finder" determines, through due process hearing, that parent is not acting in child's best interests); see also Calabretta v. Floyd, _______ F.3d _______ (9th Cir. 1999) (holding that "[t]he gov- ernment's interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children's interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents."). We agree with the Second Circuit which held, in van Emrick v. Chemung County Dept. of Social Servs. , that the "Constitution assures parents that, in the absence of parental consent, [physical examinations] of their child may not be undertaken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents, and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances."11 911 F.2d 863, 867 (2d Cir. 1990). Barring a reasonable concern that material physical evidence might dissipate, see Schmerber, 384 U.S. at 770, or that some urgent medical problem exists requiring immediate attention, the state is required to notify parents and to obtain judicial approval before children are subjected to investigatory physical exami- nations.
[15] Moreover, parents have a right arising from the liberty interest in family association to be with their children while they are receiving medical attention (or to be in a waiting room or other nearby area if there is a valid reason for excluding them while all or a part of the medical procedure is being conducted). Likewise, children have a corresponding right to the love, comfort, and reassurance of their parents while they are undergoing medical procedures, including examinations particularly those, such as here, that are invasive or upsetting. The interest in family association is particularly compelling at such times, in part because of the possibility that a need to make medical decisions will arise, and in part because of the family's right to be together during such diffi- cult and often traumatic events.
5. Conclusion
In light of the above, we conclude that there are genuine issues of fact as to whether the Wallises' constitutional rights were violated when the Escondido police officers took the children into custody, placed them in a county institution, and subjected them to invasive medical procedures. We must still consider, however, whether the City is entitled to summary judgment on the ground that the police officers did not engage in the conduct at issue pursuant to any municipal policy, custom, or practice.
B. Municipal Policy, Custom, or Practice
[16] Next, we must consider whether a material question of fact exists regarding whether the constitutional deprivations (which for purposes of summary judgment we must assume occurred) were caused by a "practice or custom which consti- tutes . . . standard operating procedure." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). The Wallises adduced testimony from Pitcher, Burkett, and Claytor that there was a practice a "longstanding agreement," in Burkett's words of enforcing "orders" to take protective custody of children without ever seeing the order. This is sufficient to raise a gen- uine issue of material fact regarding the existence of a custom or practice of taking children from their homes based on telephone calls from CPS without adequate safeguards to ensure that the removal is legal.
[17] Furthermore, the Wallises presented evidence from which it may reasonably be inferred that the Escondido Police Department customarily took children that it placed at Hillcrest Receiving Home for invasive investigatory examinations at Palomar Hospital without obtaining a court order and with- out notifying their parents. Detective Pitcher, who ordered the investigatory examinations, acknowledged that she may have done so in fulfillment of her function as the juvenile detective who removed the children from their parents' custody, and that there was a contract between Palomar and the Escondido Police Department for the performance of such investigatory examinations. A reasonable inference may be drawn from this evidence that it was "standard operating procedure" to obtain those examinations without seeking judicial authorization or notifying the parents; indeed, given the absence of any individualized suspicion of sexual abuse, it is difficult to imagine, on the basis of the record before us, why else the Wallis children would have been subjected to the invasive examinations.
[18] The Wallises also produced sufficient evidence to create a question of fact for the jury as to whether these customs and practices had a "direct causal link" to the deprivations of the Wallises' constitutional rights detailed above. City of Canton v. Harris, 489 U.S. 378, 385 (1989); Chew v. Gates, 27 F.3d 1432, 1444, 1456 (9th Cir. 1994) (holding that city may properly be held liable where policy is moving force behind constitutional violation); Jackson v. Gates, 975 F.2d 648, 654 (9th Cir. 1992) (holding that city's policy need not be unconstitutional per se, but need only cause a constitu- tional violation). A reasonable jury could readily conclude, viewing the evidence presently in the record in the light most favorable to the Wallises, that the moving force behind the removal of the children from the parents' custody was the pol- icy of accepting telephonic representations from CPS without any procedure for checking on the accuracy or validity of the supposed orders. See McMurray v. Sheahan, 927 F. Supp. 1082, 1090 (N.D. Ill. 1996) (holding county liable for false arrests when it has no system to check validity of warrants on computer system). That would be true whether a CPS employee had erroneously told the police that a pick-up order existed or whether the police mistakenly believed that a CPS employee had made such a statement. Similarly, a reasonable jury could conclude that the investigatory vaginal and anal examinations were performed on the children pursuant to a Police Department custom and practice of instigating body cavity examinations without first notifying the parents and without seeking prior court authorization whenever its offi- cers place children in protective custody.14 [19] The district court incorrectly held that even if the City did have policies that caused the deprivations, it was not lia- ble because any absolute and qualified immunities possessed by the individual officers were somehow transferred to the city itself. There are, however, no personal immunities avail- able vicariously or otherwise to municipal actors under S 1983. Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 166 (1993). It appears that the district court also applied state statutory immunities for child abuse investiga- tions to the federal constitutional claims and concluded that the City is immune from a S 1983 action under a state immu- nity statute. Again, the district court erred. Immunity under S 1983 is governed by federal law; state law cannot provide immunity from suit for federal civil rights violations. Martinez v. California, 444 U.S. 277, 284 (1980); Good v. Dauphin County Social Serv., 981 F.2d 1087, 1090-91 (3d Cir. 1989) (holding that state law providing immunity from suit for child abuse investigators has no application to suits under S 1983). In sum, the City of Escondido has the benefit of neither federal nor state immunity from liability under S 1983 for the alleged violations of the Wallises' constitutional rights.
Appellants' evidence regarding municipal custom and practice is sufficient to permit them to survive summary judgment on the Monell issue. Accordingly, we reverse the district court's grant of summary judgment to the City of Escondido with respect to the Wallises' S 1983 claims.
II. State Law Claims
In addition to their constitutional claims, the Wallises sued the City for abduction, assault, battery, and intentional infliction of emotional distress. The district court granted summary judgment to the City on those claims also, holding that the police had "reasonable cause" to remove the children and to subject them to vaginal and anal examinations, and thus violated no state laws. As discussed above, on the basis of the record before us, whether there was reasonable cause for the removal of Lauren and Jessie from their home is a question of fact for the jury; so, too, as we have fully explained, the City is not entitled to summary judgment regarding the physi- cal examinations.
[20] The officers contend that under Cal. Govt. Code S 820.2, they and under state law, by extension, the City are immune from liability on the state law tort claims.15 The district court concluded that the police had reasonable cause to seize the children and subject them to the invasive medical examinations, it did not reach the question of immunity. Given the conclusions we have reached, however, it is necessary for us to do so.16
[21] Under S 820.2, a public employee cannot be held lia- ble for any injury resulting from "his act or omission where the act or omission was the result of the exercise of discretion vested in him, whether or not such discretion be abused." The City correctly asserts that S 820.2 applies to county social workers engaged in investigating allegations of child abuse, and extends to other public employees whom those social workers "reasonably enlist to assist in the investigation." Newton v. County of Napa, 266 Cal. Rptr. 682, 687 (Cal. App. 1990); Alicia T. v. County of Los Angeles, 271 Cal. Rptr. 513, 519-20 (Cal. App. 1990) (holding that social workers' immu- nity is designed to protect "the continuing exercise of . . . discretion in favor of the protection of minor children"). This immunity provides complete protection for the decision to investigate, to make an "in-person response," and for actions necessary to make a meaningful investigation. It does not extend, however, to non-discretionary actions or to at least some intentional torts committed in the course of making the investigation, such as battery and false imprisonment. Newton, 266 Cal. Rptr. at 687-88.17
[21] Under S 820.2, a public employee cannot be held lia- ble for any injury resulting from "his act or omission where the act or omission was the result of the exercise of discretion vested in him, whether or not such discretion be abused." The City correctly asserts that S 820.2 applies to county social workers engaged in investigating allegations of child abuse, and extends to other public employees whom those social workers "reasonably enlist to assist in the investigation." Newton v. County of Napa, 266 Cal. Rptr. 682, 687 (Cal. App. 1990); Alicia T. v. County of Los Angeles, 271 Cal. Rptr. 513, 519-20 (Cal. App. 1990) (holding that social workers' immu- nity is designed to protect "the continuing exercise of . . . dis- cretion in favor of the protection of minor children"). This immunity provides complete protection for the decision to investigate, to make an "in-person response," and for actions necessary to make a meaningful investigation. It does not extend, however, to non-discretionary actions or to at least some intentional torts committed in the course of making the investigation, such as battery and false imprisonment. Newton, 266 Cal. Rptr. at 687-88.17
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CONCLUSION
Genuine issues of material fact exist as to whether the City of Escondido is liable, under Monell, for violating the Wal- lises' constitutional rights with respect to the removal of the children from their home and the City's subsequent conduct, including the invasive body cavity examinations. In addition, genuine issues of material fact exist regarding the City's assertion of immunity under Cal. Govt. Code S 820.2 with respect to the state causes of action. Given the numerous fac- tual disputes in this case, we conclude that summary judgment was improper, and that the Wallises are entitled to pursue both their federal and state law claims.
REVERSED and REMANDED for further proceedings consistent with this opinion.
RYMER, Circuit Judge, dissenting:
Whether the summary judgment should be reversed on the only ground urged by the Wallises that there is a triable issue of fact on whether the City had a policy to pick up children without verifying the existence of a court order and with- out reasonable cause is a close question. There is a good argument that, as the district court held, the officers had accumulated reasonable cause in the course of investigating Rachel's allegations, thereby making the nonexistence of the court order immaterial. However, because it is a close ques- tion, sending this issue back for trial is within the ballpark.
But holding that there is a triable issue of fact on a policy with respect to the medical examinations that was never alleged, never argued, and as to which no evidence was ever adduced as to the City the only party left in the case is not in the ballpark.
For sure there is evidence in the record about the examina- tions because Dr. Spencer, CPS, and San Diego County were defendants. However, the Wallises settled their claims against CPS and the County, and Dr. Spencer was dismissed from the case on immunity grounds. The City is the only party to this appeal. Until the majority got its bat on this case, there was no question at all about liability on the part of the City for the medical examinations.
I therefore dissent. The possibility of a City policy with respect to medical examinations of children was invented here; the discussion with respect to it is dicta, as it clearly is not necessary to the decision to reverse; and we have no busi- ness inventing an issue and a constitutional right or two to resolve it. the end
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AFFIRMED. the end
FOOTNOTES
1 The record is not entirely clear as to the ownership of the stores at which they worked during this period, but that fact is of no import.
2 In a subsequent letter to CPS, Young stated with respect to the infor- mation that Jessie would be sacrificed by his father: "A child alter of Rachel's named _______ relayed this information to me, however it is not clear which alter actually received this information from her own and Jessie's father. Unfortuneately, (sic) the alters wish to remain anonymous out of fear of punishment for disclosure." The blank space above refers to the alter personality that requested the therapist preserve his or her anonymity. The therapist complied with that request.
3 As this litigation has progressed over the years, Pitcher's statements about her telephone conversation with Young have grown more elaborate. Thus, at Pitcher's first deposition in May 1994, she stated that she subjectively thought that the report might be credible based solely on the fact that Young and another doctor, to whom Pitcher never spoke, specialized in ritual abuse. Pitcher did not, in that deposition, testify that Young ever told her that this report was credible or that the Wallis children were in any immediate danger. However, when three years later Pitcher submitted an affidavit in support of the defendant's motion for summary judgment, she reported a different version of her conversation with Young one in which Young told her that "in her professional opinion Rachel Stecks's report was . . . true and . . . that she had a real fear for the safety of the Wallis children." The two divergent accounts of this telephone conversation, as offered by Pitcher, in themselves create a question of fact and of credibility that can only be resolved by the jury. Moreover, even if Pitcher's most recent account is accurate, whether this conversation supplied sufficient objective facts and information to justify the seizure is a ques- tion of fact for the jury. See McKenzie v. Lamb , 738 F.2d 1005, 1008 (9th Cir. 1984) (holding that the existence of probable cause in a S 1983 case is a jury question).
4 Once again, Pitcher's testimony has changed as time has passed. In a subsequent deposition and declaration Pitcher offered a different version of these events, insisting that she had conducted an investigation, and had picked up the children after concluding that she had probable cause for such action. Even then, however, she made it clear that at the time she acted she was relying at least in substantial part on a statement from CPS that a pick-up order existed.
5 "The Wallises" refers to all four plaintiffs, except where the context reflects otherwise.
6 See supra note 4.
7 Although we do not consider here the legal consequences of relying on a non-existent order, see note 10, infra , we note that a number of factual issues exist as to what, if anything, the officers were told about a pick-up order for Lauren and Jessie. Such questions are best resolved at trial.
8 The claims of the parents in this regard should properly be assessed under the Fourteenth Amendment standard for interference with the right to family association. Campbell v. Burt, 141 F.3d 927 (9th Cir. 1998); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1991). Because only the chil-dren were subjected to a seizure, their claims should properly be assessed under the Fourth Amendment. Donald v. Polk County, 836 F.2d 376 (7th Cir. 1988); but see J.B. v. Washington County , 127 F.3d 919, 928 (10th Cir. 1997) (noting that there may be circumstances in which a parent has standing to bring a Fourth Amendment claim for the seizure of a minor child). As the same legal standard applies in evaluating Fourth and Four- teenth Amendment claims for the removal of children, we analyze the Wallises' claims together.
9 The City also cites, as a contributing factor in the reasonable cause cal- culus, the "fact" that the officers were told by CPS workers about the "pick-up" order. There are two problems with this suggestion. First, what, if anything, CPS told the officers is a disputed question of material fact. Second, there is a substantial legal question as to whether a mistaken belief as to the existence of a warrant or court order, even when based on an erroneous report from another law enforcement officer, can in itself constitute a contributing factor. In the recent case of Rogers v. Powell, 120 F.3d 446, 453 (3d Cir. 1997), the Third Circuit appears to have answered this question in the negative. In Rogers, a state trooper mistakenly believed, based on a conversation with a probation officer, that there was a warrant for Rogers's arrest. That trooper then told two fellow officers that there was an arrest warrant, and all three arrested Rogers on that basis. The Third Circuit concluded that all three officers violated the plaintiff's Fourth Amendment rights. The court went on to say, however, that the second two officers were entitled to qualified immunity, because it was objectively reasonable for them to believe that they were authorized to rely on the clear and unambiguous statements of a fellow officer.
10 The tip also stated that Bill supposedly told Rachel that Becky would get over the loss of Jessie, saying "She's not going to miss him. Besides, we've got Lauren. It's not like we don't have our hands full with her. She'll forget about him after a while." This part of the tip suggests that there was never any reasonable cause to remove Lauren even if there were reason to remove Jessie. There were no allegations that anyone planned to harm Lauren or that anyone had ever previously harmed Lauren.
11 In our recent decision in Calabretta, we quoted with approval the fol- lowing language: "It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitu- tional rights of some magnitude. More than that: it is a violation of any known principle of human dignity." Calabretta, _______ F.3d at _______ (quoting Good v. Dauphin County Social Services, 891 F.2d at 1093 (in turn quot- ing Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980)).
12 See R. Lazebnik et al., Preparing Sexually Abused Girls for Genital Evaluation, 13 ISSUES IN COMPREHENSIVE PEDIATRIC NURSING 155 (1990) (concluding that vaginal examinations are highly traumatic to little girls, particularly when their mothers are absent). A social worker who observed five year old Lauren's vaginal and anal examination reported that Lauren was upset and "under stress" during the examination and asked for her parents. Later, Lauren appeared for an interview with this same social worker clutching a security blanket and a stuffed animal and tearfully asked whether her parents wanted her back or were trying to "get rid of her."
13 We note that the claims of each family member must be assessed sep- arately. Here, nothing in the record before us suggests that Becky Wallis was anything other than a fit and loving mother. As the Third Circuit recently held, a state has no interest whatever in protecting children from parents unless it has some reasonable evidence that the parent is unfit and the child is in imminent danger. Croft, 103 F.3d at 1125. The government may not, consistent with the Constitution, interpose itself between a fit parent and her children simply because of the conduct -- real or imagined -- of the other parent.
14 While we determine in the text that there is a genuine issue of material fact as to the existence of a municipal custom or practice of subjecting children, taken into custody due to suspected abuse or neglect, to investigatory anal and vaginal examinations without prior judicial authorization and parental notification, we do not intend to imply that it is necessary for the Wallises to establish the existence of a second and independent munic- ipal policy
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