Divided Circuit Finds Infant Improperly Seized

     SAN FRANCISCO (CN) – Nevada social workers improperly seized an infant from her drug-addicted mother in July 2008 before placing the child in foster care, the Ninth Circuit ruled on Friday.
     But the ruling wasn’t a complete victory for plaintiff Jamie Kirkpatrick, the father of the child, as he failed to convince the three-judge appellate panel to overturn a ruling the child’s seizure did not also violate his constitutional rights.
     According to court documents, Rachel Whitworth gave birthday to a baby girl, identified as B.W., in a Reno, Nevada hospital on July 15, 2008. Whitworth told hospital personnel that she used methamphetamine throughout her pregnancy and as recently as two days before the child’s birthday.
     She also informed them that her two other children were already in the custody of the Washoe County Department of Social Services.
     The next day, the documents said, a social worker with WCDSS informed the hospital that Whitworth was an active methamphetamine user who lacked both stable housing and the wherewithal to care for an infant.
     The case worker asked the hospital to place a hold on the baby’s discharge, and a day later took the child to stay with the foster parent of her two siblings. All of this was done without judicial authorization, the court documents said.
     Nevada’s Second Judicial Court then held a protective custody hearing at which it was determined that B.W. should remain in protective custody due to her mother’s ongoing drug use.
     At the time, plaintiff Jamie Kirkpatrick thought he might be the girl’s farther, but because Whitworth said there were other potential candidates, his paternity was by no means certain. It wasn’t until the baby was taken from the hospital that a paternity test confirmed he was her father.
     In October 2009, Kirkpatrick sued Washoe County and three social workers in a bid to get his daughter back, but U.S. District Judge Howard McKibben denied his motion for summary judgment, and decided the case in favor of the defendants.
     Kirkpatrick appealed.
     In a ruling announced July 10, U.S. Circuit Judge Jay Bybee said the infant’s removal “creates at least an inference of an unconstitutional, unofficial custom in Washoe County” and that the defendants had offered no evidence that the danger to the girl was so imminent they couldn’t take the time to secure judicial authorization.
     As a result, Bybee said, the county was not entitled to summary judgment, nor were two of the three social worker defendants. The panel did affirm the summary judgment in favor of the third social worker, finding she was not involved in the decision to take the child.
     Bybee, who was joined in the majority by U.S. Circuit Judge Stephen Reinhardt, held that because Kirkpatrick’s paternity was so much in question, he did not have a constitutionally recognized liberty interest in his relationship with B.W. at the time she was taken into custody.
     “We have recognized that the constitutional interest in a biological parent’s relationship with his child persists even when that relationship is, as a practical matter, quite attenuated,” Bybee wrote.
     In this case, however, the majority held that while Kirkpatrick was certainly under no obligation to confirm his paternity, because he didn’t do so, “he cannot claim the constitutional entitlements that have been allocated to biological parents when he did not seek to establish that he was B.W.’s father.”
     In a dissent, U.S. Circuit Judge Alex Kozinski said the majority ignored the Supreme Court’s admonition that qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.
     Kozinski said the majority imposed personal liability on two child protective service workers whose actions were anything but malicious or incompetent.
     “There simply is no evidence in the record that the informal ‘hold’ would have prevented Rachel from leaving the hospital and taking B.W. with her,” Kozinski wrote. “Because the hospital didn’t have the lawful authority to restrain Rachel or B.W., it was at least possible that mother and daughter could have left while a warrant application was pending. Reasonable minds might disagree as to the precise quantum of risk faced by B.W., but, under the circumstances, it was hardly malicious or ‘plainly incompetent’ of [the social workers] to temporarily take B.W. out of harm’s way.”
     “I worry that future babies will pay with their lives because social workers hesitate to take them into custody based on today’s decision,” he said.
     Attorneys for the parties did not immediately respond to a request for comment on the Ninth Circuit’s ruling.

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