Ninth Circuit Partly Reverses Infant-Seizure Ruling

LAS VEGAS (CN) – A baby’s biological father had no custody rights when Washoe County social workers seized an infant from its drug-addicted mother, the Ninth Circuit ruled.

Jamie Kirkpatrick in 2009 accused the county and three social workers of violating his daughter’s Fourth Amendment and his 14th Amendment rights when they seized two-day-old infant B.W. from her mother without a warrant or due process.

A divided Ninth Circuit on Friday, sitting en banc, affirmed the Nevada District Court ruling that Kirkpatrick’s 14th Amendment rights were not violated, as he did not have any parental rights at the time.

But the panel reversed and remanded the ruling on B.W.’s Fourth Amendment claim.

Writing for the majority, Judge Mary H. Murguia said B.W.’s mother had a history of drug abuse and had two other children placed into the care of the Washoe County Department of Social Services.

The mother, Rachel Whitworth, gave birth to B.W. via Caesarean section at a Reno hospital on July 15, 2008. Whitworth admitted she used methamphetamine throughout the pregnancy, and B.W. tested positive for methamphetamine after her birth.

Whitworth told hospital staff she had two other children in the custody of the Department of Social Services, which had a permanent plan in place to terminate Whitworth’s parental rights for her other children due to Whitworth’s refusal to abide by her case plan, lack of housing, and inability to care for her children, Judge Murguia wrote.

Whitworth participated in a protective custody hearing by telephone on July 18, during which Murguia said the court found that leaving B.W. in Whitworth’s care would be contrary to the infant’s welfare due to Whitworth’s continued drug use.

Although he was not certain he was the biological father and did not sign an affidavit of paternity at the time, Kirkpatrick was present B.W.’s birth and left his contact information to schedule a paternity test with the Department.

The paternity test determined that Kirkpatrick is B.W.’s biological father, and Murguia said he continued to maintain visits and sought custody after B.W. suffered a large bruise on her forehead while she was in foster care.

When B.W.’s foster family no longer could care for her or her stepsiblings, Kirkpatrick sought custody. He obtained it on Dec. 31, 2009.

Kirkpatrick subsequently sued the Washoe County Department of Social Services, saying B.W.’s rights were violated, preventing her from being with her biological father.

But parental rights secured by the 14th Amendment are “‘not reserved for parents with full legal and physical custody’” and “non-custodial parents have a reduced liberty interest in the companionship, care, custody and management of their children,” Murguia wrote.

But Murguia said B.W.’s constitutional rights were violated as she has the right to be free from unreasonable searches and seizures and the right to be with her parents.

“Seizing a child without a warrant is excusable only when officials ‘have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that it would take to obtain a warrant,’” Murguia wrote.

“The social workers here lacked cause to forgo a warrant if they had adequate time to pursue one through the ordinary judicial process.”

The judge found that Kirkpatrick raised a “genuine dispute” on whether B.W. was in imminent danger of serious bodily harm and whether a warrant should have been issued.

The mother’s lack of employment and a place to live did not justify the actions of the social workers, Murguia wrote.

“A rational jury presented with this evidence could find that B.W. was under no immediate threat of serious physical injury, and, therefore, that the social workers violated her Fourth Amendment rights by removing her from her mother under non-exigent circumstances.”

A question remains whether Washoe County has an unconstitutional policy of seizing infants, so summary judgment is not warranted in favor of Washoe County.

The panel, with one dissenting opinion and one partially dissenting opinion, affirmed that Washoe County and three defendant social workers did not violate B.W.’s Fourth Amendment and Kirkpatrick’s 14th Amendment rights.

But the panel reversed the summary judgment for Washoe County on whether it has an unconstitutional policy of removing infants from parents in “non-exigent circumstances” and remanded the matter.

The 11-judge en banc panel, presided over by Chief Judge Sydney Thomas, heard oral arguments on June 22 in San Francisco.