Tuesday, November 30, 2021
Monday, November 29, 2021
Information for You that Might Prove Your Case.
1. Moreover, although drugs are illegal, a parent’s criminal activity does not authorize the government to separate a family through child neglect statutes.* Kozey v. Quarles, No. 3:04 CV 1724 MRK, 2005 WL 2387708*
2. Finding no exigent circumstances among evidence of cluttered home, the developmental delays of the children, and the lack of educational and medical care for the children because there was no showing of “imminent or likely harm” to the children. *Walsh v. Erie Cnty. Dep’t Job & Family Servs., 240 F. Supp. 2d 731, 740, 749-50 (N.D. Ohio 2003)*
3. Although the federal circuit courts have developed different standards to identify exigent circumstances justifying seizure of a child from his home in the absence of a court order, parental drug use fails to constitute exigent circumstance under any of these standards. Because exigent circumstances require the immediate threat of harm to the child, rather than a mere possibility of harm occurring to the child. *Gates v. Texas Dep’t Protective & Regulatory Servs., 537 F.3d 404, 428-29 (5th Cir. 2008)*
4. Cases in which parents misuse drugs or alcohol but do not neglect their child fail to justify such drastic state intervention. The lack of causation between parental drug use and harm to a child, the child’s interest in staying with his natural family, and the bleak outlook for a child in the foster care system demonstrate that the government’s interest does not outweigh the individual privacy interests of a child in cases involving drug use. “[T]he desire to avoid a domestic dispute cannot form a reasonable basis for depriving [a child] of his fourth and fourteenth amendment rights.” *Wooley v. City of Baton Rouge, 211 F.3d 913, 925-26 (5th Cir. 2000)*
5. Coercive or intimidating behavior supports a reasonable belief that compliance is compelled. * Cassady v. Tackett*
6. "Consent" that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. *Florida v. Bostick (S. Ct. 1991)*
7. Neglect statutes that identify drug use or possession as forms of neglect justifying removal of a child from a home fail to constitute exigent circumstances. Drugs use or possession does not cause direct harm to a child and is not a guarantee of direct harm to a child, but merely poses a possibility of harm to a child. This possibility of harm is not an exigency. *Tenenbaum, 193 F.3d at 594*
8. Under any of these standards, however, parental drug use fails to constitute an exigent circumstance, for it does not put a child in “immediate jeopardy, ”nor does it pose the threat that the child is “likely to experience serious bodily harm.” *Good, 891 F.2d at 1094.*
9. The mere presence of drugs, or prior use, does not pose the same threat to a child. As the Second Circuit has warned, “if the mere ‘possibility’ of danger constituted an emergency, officers would ‘always’ be justified in making a forced entry and seizure of a child whenever the child was in the presence of a person who had . . . a history that heightens the possibility of danger to the child.” *United States v. Venters, 539 F.3d 801, 808-09 (7th Cir. 2008)*
10. Courts should not accept the standard set by neglect statutes that mere possession, or even use, of narcotics constitutes neglect because it does not necessarily cause “real physical or emotional harm” to the child, nor does it mean that the child is in imminent danger. Furthermore, neglect statutes that incorporate drug use into their definitions of neglect do not fulfill their purpose of protecting children because the immorality of a particular behavior does not necessarily lead to harm. *Roe v. Conn, 417 F. Supp. 769, 779 (M.D. Ala. 1976).*
11. Unlike abuse, which involves some form of negative parental action, child neglect typically presents in the form of parental omissions, and therefore, cases of neglect are substantially less likely to warrant immediate action. *New York v. Burger, 482 U.S. 691, 727 (1987)*
12. Evidence of an increased likelihood of harm to a child does not constitute actual or imminent threat of harm to a child. “Imminent danger . . . must be near or impending, not merely possible.” *Nicholson v. Scoppetta (2004)*
13. A due-process violation occurs when a state-required breakup of a natural family is founded solely on a "best interests" analysis that is not supported by the requisite proof of parental unfitness. *Quilloin v. Walcott (1978) 434 U.S. 246, 255*
14. Coercion can be mental as well as physical. *Blackburn v. Alabama 361 U.S. 199, 206 (1960)*
15. If neglect statutes conflict with the Fourth Amendment, they must be deemed invalid “[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents.” *Stanley v. Illinois, 405 U.S. 645, 652 (1972)*
16. “A showing of harm to the child . . . as a prerequisite for coercive state intervention,” statutes incorporating drug use focus on parental behavior and thus “subvert themselves.” “By preserving references to parental misconduct . . . as factors to consider in neglect determinations, statutory law . . . undermines the express requirement that harm to the child be a sine qua non of intervention.” The result of this is that “such cases often begin to resemble criminal proceedings against errant parents.”* Dolgin, supra note 62, at 1227.*
17. The assumption that drug use constitutes neglect inappropriately shifts the focus from the welfare of the child to the behavior of the parent. The parenting, not the supposed quality of the individual who is the parent, should be at issue. *See Dolgin, supra note 62, at 1213, 1235-36; Wald, supra note 304, at 1034;*
18. “Such knee-jerk intervention signals a return to the discredited practice of focusing on the repugnance of parental conduct. . . . Whether prior parental conduct is blameworthy or repulsive should not be of concern to the child welfare system.” *Robin-Vergeer, supra note 314, at 760*
19. A trial court cannot terminate a parent's rights absent this finding of unfitness. Parental deficiencies alone do not render a parent currently unfit, "the proper inquiry is
whether the existing parental deficiencies, or other conditions, prevent the parent from providing for the child's basic health, welfare, and safety. *In re Parental Rights to K.MM, 186 Wn.2d 466, 493, 379 P.3d 75 (2016).*
20. The court explained "absent some tangible evidence of abuse or neglect, the Courts do not authorize fishing expeditions into citizens' houses. Mere parroting of the phrase "best interest of the child" without supporting facts and a legal basis is insufficient to support a Court order based on reasonableness or any other ground." *North Hudson DYFS v. Koehler Family (2001)*
21. An officer who obtains a warrant through materially false statements which result in an unconstitutional seizure may be held liable personally for his actions under section 1983. Aponte Matos v. Toledo Davilla (1st Cir. 1998)
22. Defendants could not lawfully seize child without a warrant or the existence of probable cause to believe child was in imminent danger of harm. Where police were not informed of any abuse of the child prior to arriving at caretaker's home and found no evidence of abuse while there, seizure of the child was not objectively reasonable and violated the clearly established Fourth Amendment rights of the child. *Wooley v. City of Baton Rouge (5th Cir. 2000)*
23. Miller recognized the fundamental liberty interests by parents in the care, custody and management of their children, an interest which must be balanced against the State's interest in protecting children suspected of being abused. *174 F.3d at 373, 374. Citing Croft and Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982),*
24. To act "under color of state law" means the social workers acted beyond the bounds of lawful authority, but in such a manner that the unlawful acts were done while the official was purporting or pretending to act in the performance of their official duties. In other words, the unlawful acts must consist of an abuse or misuse of power which is possessed by the official only because they are an official. *Wallis v. Spencer, 202 F.3d 1126, 1140 (9th Cir. 2000)*
25. An unreasonable belief of imminent harm to a child will render a seizure unreasonable.
26. Right to Procedural Due Process Violated: The state denied the plaintiff the fundamental right to a fair procedure before having their child removed by the intentional use of fraudulent evidence during the procedure. *Morris v. Dearborne (5th Cir. 1999)*
27. Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government.* Elrod v. Burns (96 S. Ct. 1976)*
28. The social workers committed a misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law.
29. Plaintiff's clearly established right to meaningful access to the courts would be violated by suppression of evidence and failure to report evidence.* Chrissy v. Miss. Department of Public Welfare (5th Cir. 1991)*
30. Child removals are "seizures" under the Fourth Amendment. Seizure is unconstitutional without court order or exigent circumstances. Court order obtained based on knowingly false information violates fourth amendment. *Brokaw v. Mercer County (7th Cir. 2000)*
31. A child has a constitutionally protected interest in the companionship and society of his or her parent. *Ward v. San Jose (9th Cir. 1992)*
32. The social workers and court officials consisted of two or more persons whom conspired to injure, oppress, threaten, and intimidate the mother and her minor child, in the free exercise or enjoyment of any right or privilege secured to the mother by the Constitution or the laws of the United States, (or because of his/her having exercised the same).
33. It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder her free exercise or enjoyment of any rights so secured.
34. Absent extraordinary circumstances, a parent has a liberty interest in familial association and privacy that cannot be violated without adequate pre-deprivation procedures. *Malik v. Arapahoe Cty. Department of Social Services (10th Cir. 1999)*
35. The Court held that where abusive government action by a member of the executive branch is alleged, "only the most egregious official conduct 522*522 can be said to be arbitrary in the constitutional sense.” *.Id. at 375, quoting County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).*
36. State employee who withhold a child from their family may infringe on the family's liberty of familial association. Social workers could not deliberately remove children from their parents and place them with foster caregivers when the officials reasonably should have known such an action would cause harm to the child's mental or physical health. *K.H. through Murphy v. Morgan (7th Cir. 1990)*
37. Under this standard, executive action will not expose the official to liability unless it is "so ill-conceived or malicious that it `shocks the conscience.'" Id. The Court emphasized that Croft was simply an application of the traditional substantive due process "shocks the conscience" standard. *Miller, 174 F.3d at 376.*
38. Stating that only in rare circumstances can allegations of neglect be so severe or credible that an investigation into the allegations is not required for removal; *Brokaw, 235 F.3d at 1011*
39. A defendant in a civil rights case is not entitled to any immunity if he or she gave false information either in support of an application for a search warrant or in presenting evidence to a prosecutor on which the prosecutor based his or her charge against the plaintiff.*Young v. Biggers (5th Cir. 1991)*
40. The Court held that the CYS caseworker, acting on an anonymous tip with multiple layers of hearsay, without any corroborating evidence, and without any evidence that convinced her one way or another that there was any sexual abuse involved, had insufficient justification for such a drastic infringement on parental and children's rights (familial integrity), and so was an arbitrary abuse of government power.
41. The Court noted that there are cases in which a child protective agency is justified in removing either a child or the parent from the home, "even where later investigation proves no abuse occurred."* Id. at 1126 *
42. Fourth Amendment protection against unreasonable searches and seizures extends beyond criminal investigations and includes conduct by social workers in the context of a child neglect/abuse investigation. *Lenz v. Winburn (11th Cir. 1995)*
43. Court held that an anonymous tip standing alone never amounts to probable cause. *H.R. v. State Department of Human Resources (Ala. Ct. App. 1992) *
44. Defendant should've investigated further prior to ordering seizure of children based on information he had overheard. The mere possibility of danger does not constitute an emergency or exigent circumstances that would justify a forced warrantless entry and a warrantless seizure of a child. *Hurlman v. Rice (2nd Cir. 1991)*
45. In context of a seizure of a child by the State during an abuse investigation...a court order is the equivalent of a warrant.' *193 F.3d 581, 602 (2nd Cir. 1999) and F.K. v. Iowa district Court for Polk County, Id. Tenenbaum v. Williams (2nd Cir. 1999) and F.K. v. Iowa *
46. Child protection workers are subject to the 4th and 14th Amendment in the context of an investigation of alleged abuse or neglect as are all "government officials". The court ruled "despite the defendant's (child protection worker) exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose request to enter, however benign or well-intentioned, are met by a closed door." "The Fourth Amendment's prohibition on unreasonable searches and seizures applies whenever an investigator, be it a police officer, a DCFS employee, or any other agent of the state, responds to an alleged instance of child abuse, neglect, or dependency".*3:01-cv-7588. Walsh v. Erie County Department of Job and Family Services.*
47. The Court focused on "whether the information available to the defendants at the time would have created an objectively reasonable suspicion of abuse justifying the degree of inference with the parents' rights as the child's parents." In the absence of such reasonable grounds, the governmental intrusions of this nature "are arbitrary abuses of power." Due process requires the trial court to explicitly or implicitly find by clear, cogent, and convincing evidence that the parent is currently unfit. *A.B., 168 Wn.2d at 918-19.*
48. Mere drug possession amounts to neither probable cause nor exigent circumstances. Therefore, neglect statutes that explicitly designate drug abuse as child neglect lead to unlawful seizures within the meaning of the Fourth Amendment and should be struck down as unconstitutional. *Brokaw v. Mercer Cnty., 235 F.3d 1000, 1010 (7th Cir. 2000)*
Wednesday, November 24, 2021
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