Legal research by a reader I could not help and why attorneys are afraid to sue Social Services

Yet another reader contacted me who is trying to sue Social Services, but cannot get an attorney (attorneys are deathly afraid to sue Social Services for fear to lose their licenses and livelihoods).

And, of course, I had to say "no" - because of the alleged (secret) suspension in federal court.

Yet, the reader did not stop at my "no" and sent to me the reader's own research on the subject of lawsuits against social services, together with the reader's own story.

I would like to make that research public - showing that (1) lay people can do their own legal research pretty well, and that (2) attorneys are afraid to take a case suing social services even with all this case law on the side of the victims.

Here are the results of my reader's legal research on the issue of whether CPS can be successfully sued for misconduct.

Thank you, my reader, and I will not publicize your name, e-mail address, or story, for obvious reasons.

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CPS workers are not IMMUNE to the Constitution. Below are a few cases that prove this.

Beltran v. Santa Clara County, 514 F.3d 906, (9th Cir. 2008)
Beltrans sued two caseworkers under 42 U.S.C. ' 1983, charging constitutional violations in removing child from their custody and attempting to place him under the supervision of the state by fabricating evidence. Court overruled Doe v. Lebbos, and reversed the district court's ruling that defendants were entitled to absolute immunity.

Brokaw v. Mercer County, 235 F.3d 1000, (7th Cir. 2000)
In 1983, three-year old A.D. Brokaw was removed from her parents' home based on allegations of child neglect. After she turned eighteen, she sued her paternal grandfather, aunt, and uncle, alleging that they conspired to violate her constitutional rights by reporting false claims of child neglect. A.D. also sued the various state actors and agencies involved in removing her from her parents' custody. The district court held that A.D.'s suit was barred by the Rooker-Feldman doctrine because, in effect, A.D. was challenging the validity of the state removal proceedings. The Eleventh Circuit reversed and remanded.

Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999)
"This case involves whether a social worker and a police officer were entitled to qualified immunity, for a coerced entry into a home to investigate suspected child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency." Can you guess what the answer was? "An unlawful entry or search of a home does not end when the government officials walk across the threshold. It continues as they impose their will on the residents of the home in which they have no right to be."

Chavez v. Board of County Commissioners, 2001-NMCA-065, New Mexico Court of Appeals (2001)
Defendants are deputy sheriffs with the Curry County Sheriff's Department, who were called to assist two social workers from the Children, Youth & Families Department on a "child welfare check" at Plaintiff's home. Plaintiff's son had not been attending elementary school. Thus, one reason for the visit to Plaintiff's home was to investigate suspected truancy or educational neglect. Held: "At the time of entry into Plaintiff's home, it was well-settled that the Fourth Amendment to the United States Constitution prohibited unreasonable searches and seizures and was intended to protect the sanctity of an individual's home and privacy."

Croft v. Westmoreland County Children and Youth Servs., 103 F.3d 1123 (3d Cir. 1997)
Holding that "a state has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse."

Doe v. Gooden, 214 F.3d 952 (8th Cir. 2000)
School district officials can be liable under 1983 if they are deliberately indifferent to acts committed by a teacher that violate a student's constitutional rights.

Franz v. United States, 707 F 2d 582, US Ct App (1983)
"The undesirability of cultural homogenization would lead us to oppose efforts by the state to assume a greater role in children's development, even if we were confident that the state were capable of doing so effectively and intelligently." A brilliant analysis of the fundamental right to be free of unwarranted state interference between the child-parent bond, in this case stemming from the Witness Protection Program.

Good v. Dauphin County Soc. Servs. for Children and Youth, 891 F.2d 1087, (3d Cir. 1989)
"[P]hysical entry into the home is the chief evil against which the ... Fourth Amendment is directed," the Court explained, while adding: "It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." No qualified immunity claim to be found here.

Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, (8th Cir.2003)
Waddle, as Chief Juvenile Officer for the Second Circuit of Missouri, effected the removal of 115 boarding students from Heartland Christian Academy . Waddle had obtained ex parte probable-cause state-court orders to remove some of the boarding students, there were no orders of any kind to remove many of the students who were taken from the school. This case is noted for its brilliant analysis of Eleventh Amendment sovereign immunity, the Rooker-Feldman doctrine, and immunity as an officer of a juvenile court. The court held that: "any single violation of Heartland's federal constitutional rights in this case would be sufficient to sustain Heartland's claim for injunctive relief under ' 1983."

Jones v. Hunt, 410 F.3d 1221 (10th Cir. 2005)
No qualified immunity in this ' 1983 action for alleged violations of Fourth Amendment rights arising from girl's in-school seizure by a deputy sheriff and s Social Worker Supervisor for the New Mexico Children, Youth, and Families Department ("CYFD"). "We conclude that the Fourth Amendment violation as alleged in this case is both obvious and outrageous."

Kelson v. Springfield, 767 F 2d 651, (9th Cir. 1985)
"Supreme Court and Ninth Circuit precedent establish that a parent has a constitutionally protected liberty interest in the companionship and society of his or her child. The state's interference with that liberty interest without due process of law is remediable under section 1983."

Lopkof v. Slater, 103 F.3d 144 (10th Cir. 1996) (Unpublished)
Defendants do not dispute that the law was clearly established that a warrantless search of a private residence is per se unreasonable under the Fourth Amendment unless one of "a few specifically established and well-delineated exceptions" applies. Defendants maintain that because they had "received specific information questioning the safety of children," they acted in an objectively reasonable manner when they entered Lopkoff's private residence. Wrong, and no qualified immunity for these officers.

Loudermilk v. Arpaio, 2007 U.S. Dist. LEXIS 76819 (D. Ariz. September 27, 2007)
With respect to Plaintiffs' claim based on violation of the Fourteenth Amendment, parents and children have a constitutional right to live together without governmental interference and will not be separated without due process of law except in emergencies. Motion to dismiss by CPS worker and others who coerced entry into home denied.

Mabe v. San Bernardino, 237 F.3d 1101 (9th Cir. 2001)
Section 1983 creates a cause of action against any person who, acting under color of state law, violates the constitutional rights of another person. Whether reasonable cause to believe exigent circumstances existed in a given situation, "and the related questions, are all questions of fact to be determined by a jury." Hence, no immunity for social worker under 42 U.S.C. 1983.

NEW! Michael v. Gresbach, (7th Cir. 2008)
The court held that: "a reasonable child welfare worker would have known that conducting a search of a child's body under his clothes, on private property, without consent or the presence of any other exception to the warrant requirement of the Fourth Amendment, is in direct violation of the child's constitutional right to be free from unreasonable searches." No qualified immunity for this CPS caseworker! The court also held that the state statute that allowed for "investigations" on private property without a search warrant was itself unconstitutional as applied.

Malik v. Arapahoe County Dept. of Soc. Servs.191 F.3d 1306, (10th Cir. 1999)
"The defense of qualified immunity protects government officials from individual liability under 42 U.S.C. ' 1983 for actions taken while performing discretionary functions, unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Court also held that: "it was clearly established law that, except in extraordinary circumstances, a parent has a liberty interest in familial association and privacy that cannot be violated without adequate pre-deprivation procedures."

Norfleet v. Arkansas Dept. of Human Servs., 989 F.2d 289 (8th Cir. 1993)
Court denies qualified immunity to the Human Services Director and caseworker involved because the state obligation to provide adequate medical care, protection, and supervision with respect to children placed in foster care was well established as of 1991.

Parkhurst v. Trapp, 77 F.3d 707 (3rd Cir. 1996)
The defendants attempt to avoid the imposition of summary judgment by arguing that, even if their conduct violated the Fourth Amendment, qualified immunity should shield them from liability. Qualified immunity is available to state actors in Section 1983 suits if those actors reasonably believed that their conduct was lawful. However, a good faith belief in the legality of conduct is not sufficient. Held: No qualified immunity.

Ram v. Rubin, 118 F.3d 1306 (9th Cir. 1997)
Holding "a parent has a constitutionally protected right to the care and custody of his children and he cannot be summarily deprived of custody without notice and a hearing except when the children are in imminent danger." No qualified immunity for social worker who removed child not in imminent danger.

Rogers v. County of San Joaquin, 487 F.3d 1288 (9th Cir. 2007)
Court held: "the rights of families to be free from governmental interference and arbitrary state action are also important. Thus, we must balance, on the one hand, the need to protect children from abuse and neglect and, on the other, the preservation of the essential privacy and liberty interests that families are guaranteed under both the Fourth and Fourteenth Amendments of our Constitution." Section 1983 case reinforces that removal of children from home by caseworker absent either a warrant or exigent circumstances violates those rights, and therefore no qualified immunity applies to caseworker.

Roska v. Peterson, 328 F.3d 1230, (10 Cir. 2003)
Holding no immunity for caseworkers who entered a home lacking either exigency or a warrant, and finding constitutional protection in the right to maintain a family relationship, Court held: "the law is now clearly established that, absent probable cause and a warrant or exigent circumstances, social workers may not enter an individual's home for the purpose of taking a child into protective custody."

Tennenbaum v. Williams, 193 F.3d 581, (2d Cir. 1999)
"We affirm the judgment insofar as it holds that the medical examination violated the Tenenbaums' and Sarah's procedural due-process rights and Sarah's Fourth Amendment rights and awards damages therefor. . . We conclude, however, that there is a triable issue of fact as to whether the defendants' removal of Sarah from school was contrary to the procedural requirements of the Due Process Clause and to Sarah's right to be free from unreasonable seizures under the Fourth Amendment." The Missouri Bar has an informative Courts Bulletin describing the case.

Turner v. Houseman, Docket: 07-6108 (10th Cir. 2008) (Unpublished)
"It was clearly established, at least two years before the events in question, that absent probable cause and a warrant or exigent circumstances, neither police nor social workers may enter a person's home without a valid consent, even for the purpose of taking a child into custody, much less to conduct a search. It was also established that the warrantless seizure and detention of a person without probable cause or exigent circumstances, as alleged in Turner's petition, is unreasonable."

Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000)
"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."

Walsh v. Erie County Dep't of Job & Family Servs., 240 F. Supp. 2d 731, (N.D. Ohio 2003)
"Despite the Defendants' exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose requests to enter, however benign or well-intentioned, are met by a closed door. . . Any agency that expects to send its employees routinely into private homes has a fundamental obligation to ensure that those employees understand the constitutional limits on their authority."

Weller v. Dept of Soc. Servs., 901 F.2d 387, (4th Cir. 1990)
"Substantive due process does not categorically bar the government from altering parental custody rights." What I find interesting about this case is that it was brought pro se, and that he sued a lotmore people than I am.

Whisman v. Rinehart, 119 F.3d 1303 (8th Cir. 1997)
Whismans filed this action against juvenile officers and social workers, claiming they violated plaintiffs' constitutional rights of familial association, denying plaintiffs due process of law. Defendants filed a motion to dismiss, contending that plaintiffs' claims were not actionable under 42 U.S.C. ' 1983. Guess again!

Wooley v. City of Baton Rouge, 211 F.3d 913, (5th Cir. 2000)
Holding that a "childs right to family integrity is concomitant to that of a parent. No qualified immunity for police officers who removed young child in this section 1983 action.

 

And, I can add to the above list of cases the case I brought to trial - and was then (allegedly, secretly) suspended on the eve of that trial and stripped of my attorney fees for 3.5 years of litigation.

Argro v Osborne - here is the decision denying summary judgment.

Remember - Argro v Osborne.  The reason why attorneys in NY are afraid to take cases against CPS.  They are afraid they will be suspended, like I was, for suing CPS.