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.