11-Member Panel Hears Case on Child-Taking

     SAN FRANCISCO (CN) — A Nevada county’s practice of removing children in imminent danger without a warrant drew great scrutiny Wednesday before a Ninth Circuit panel sitting en banc.
     An 11-judge panel led by Chief Judge Sidney Thomas heard oral arguments from attorneys representing plaintiff Jamie Kirkpatrick, three defendant Washoe County social workers and Washoe County during the morning hearing.
     Arguing on behalf of Kirkpatrick, who has custody of the child, attorney David Beauvais said the Washoe County Department of Social Services, or WCDSS, violated Kirkpatrick’s civil rights and caused potential harm to B.W., a baby girl, by removing the infant without a warrant and while the Reno hospital placed a hold on her discharge, at the request of social workers.
     Beauvais said B.W. was safe while in the hospital, there was no evidence of any imminent danger that B.W. might suddenly be taken from the hospital, and the mother, Rachel Whitworth, stayed two days beyond the date B.W. was removed due to her recovery from the C-section delivery.
     One panel member said Whitworth consented to WCDSS removing B.W., which might have negated the need for a warrant. Another panel judge suggested it is okay for a social worker to be wrong about a perceived risk of imminent danger, so long as they were not unreasonable in reaching that conclusion.
     Beauvais countered that it’s “speculative to suggest the mother would have left with the baby,” especially after undergoing a C-section.
     “She was hasty,” the Oakland, Calif., attorney said. “Public officials are expected to know the law,” and the social worker was “oblivious to the warrant requirement and admitted there was no immediate risk” to B.W. while at the hospital, he added.
     Beauvais said Whitworth has two other children in foster care and a toxicology screen affirmed the presence of methamphetamine. That information should have been given to a local magistrate judge to make a ruling on whether to remove B.W. from her mother, the attorney argued.
     Whitworth gave birth to B.W. on July 15, 2008, at the hospital and admitted to using methamphetamine throughout her pregnancy and as recently as two days before giving birth.
     The next day, WCDSS told the hospital the mother was an active user of methamphetamine, had no stable housing or ability to care for B.W., and had the hospital place a hold on discharging the infant.
     A day later, defendant social workers declared B.W. to be in imminent danger and removed her from the hospital without any judicial authorization, according to court documents. B.W. was placed in the same foster home as her two siblings.
     Court records indicate the removal occurred without judicial approval, and Beauvais argued the WCDSS’ lack of a policy in such matters is unconstitutional.
     “I’m asking this court to write an opinion that says whenever government officials are engaged in repetitive activity that implicates constitutional rights, that they need a policy” to avoid violating civil rights, Beauvais told the panel.
     He said there was no guidance whatsoever for social workers, and called it “outrageous conduct…not to train their social workers on when they can and cannot make a seizure.”
     Beauvais said several social workers testified they don’t have a policy for obtaining warrants when seizing babies, even if there is no imminent danger.
     The panel also questioned whether Kirkpatrick has any legal rights as B.W.’s father.
     Kirkpatrick’s co-counsel, attorney Jeffrey Friedman, of Reno, said Kirkpatrick established his paternity two weeks after WCDSS seized B.W.
     Friedman said Kirkpatrick now has custody of B.W. and a court order affirming his rights as the girl’s father.
     The panel asked for a copy of the court order, and Friedman said he will make it available.
     Representing three defendant social workers, Reno attorney Brian Brown argued B.W. was born five weeks early, there was methamphetamine in her system, and Whitworth admitted to using the drug two days before giving birth.
     “The totality of circumstances that she faced showed that the child was at imminent risk…because the custody of the child remained with the mother” and hospital staff said Whitworth did not properly care for or feed B.W., Brown argued.
     The panel questioned whether it was possible for the infant to be in imminent danger while the hospital agreed to place a hold on her release.
     While hospital staff did place a hold on her release, Brown said the hospital did nothing to enforce it, such as posting someone at the room door to ensure Whitworth or someone else did not leave with B.W.
     Brown also argued the social workers did as they were trained to do by WCDSS, and that gives them qualified immunity.
     When told many other communities obtain warrants in such matters, Brown agreed but said that is not the policy in Washoe County.
     “I’m not defending that,” Brown said. “I’m telling you…that there was not a mechanism in place. My worker’s hands were tied.”
     He said one worker had to make a judgment of potential imminent danger and if she thought there was a potential for imminent danger, the county’s policy is to remove the child.
     Brown said the circumstances indicated a potential of imminent danger to B.W. upon her release from the hospital, and the social worker was bound to act by removing the child based on that potential.
     The panel questioned how B.W. could be in imminent danger while in the hospital, and Brown said there was a chance Whitworth would give permission for a relative or someone else to take the infant from the hospital.
     He also said the hospital only informally agreed to place an administrative hold on B.W. until she was placed in foster care, did not post anyone at the hospital room door, and there was no way to enforce the hold.
     Washoe County Deputy District Attorney Herbert Kaplan represented WCDSS at the hearing and told the panel the county does not have a policy in place for obtaining warrants to remove children.
     Instead, WCDSS trains its social workers to determine whether or not a child faces imminent danger, and then removes the child without needing a warrant.
     A panel member suggested the lack of a policy for obtaining a warrant might be enough to grant summary judgment against the county.
     Kaplan countered that the county’s policy is to remove children only when facing imminent danger, which negates the need for a mechanism or policy of obtaining warrants and training social workers in how to go about getting warrants.
     After nearly an hour and a half of oral arguments, the panel concluded the hearing.
     After the county removed B.W., Kirkpatrick in October 2009 sued Washoe County and three social workers to get his daughter back.
     U.S. District Judge Howard McKibben said there was no evidence at the time showing Kirkpatrick is B.W.’s biological father and that others might be the father. He denied Kirkpatrick’s motion for summary judgment.
     Kirkpatrick appealed the decision to the Ninth Circuit. He seeks damages for possible harm caused to B.W.

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