(CN) – A Ninth Circuit panel rebuked the County of San Diego Wednesday for taking a couple’s children away and subjecting them to invasive gynecological and rectal exams as part of a child abuse investigation.
“The county’s continued failure to provide parental notice and obtain consent for the Polinsky medical examinations has harmed families in Southern California for too long,” U.S. Circuit Judge Kim McLane Wardlaw wrote for the panel in a 25-page opinion.
According to the panel, the county violated Mark and Melissa Mann’s constitutional rights when it removed their children and subjected them to medical exams without the couple’s knowledge or consent and without a court order.
Mann family attorney Donnie Cox said in a phone interview the ruling didn’t surprise him.
“We’ve been telling the county for the last 20 years their policies and practices with regard to physical exams were unconstitutional and they just ignored us,” Cox said.
The Manns gained national attention after they appeared on the reality series “Supernanny” in 2009, which depicted the parents of four young children learning new discipline techniques after they claimed a parenting class offered at their church taught them to hit their kids with a wooden spoon.
But their use of corporal punishment may not have stopped after the show aired.
In 2010, social workers investigated child abuse reports when someone at the preschool the Manns’ four-year-old triplets attended noticed a welt on one of them.
The San Diego County Health and Human Services Agency investigated, removing the Manns’ then-six-year-old and the triplets from the home, despite the parents’ cooperation, according to Wardlaw’s summary of the case.
Each of the Mann children received a short medical exam with a 22-point assessment of their appearance, behavior, mental status and body. The exam included a gynecological and rectal exam, with visual and tactile inspection.
The Manns didn’t know about the exams – which the county routinely performed on kids admitted to the Polinsky Children’s Center since at least 2003 – until one of their girls told Melissa Mann that “two ladies at the college [Polinsky] said they needed to touch me down there” and demonstrated what she was required to do for the gynecological and rectal exam.
In 2013, U.S. District Judge Gonzalo Curiel found the county violated the parents’ Fourteenth Amendment right to due process when it conducted the medical exams without notifying them and excluded them from being present. But Curiel ultimately ruled that the Constitution does not require the county to obtain the parents’ consent or a court order.
The Ninth Circuit disagreed.
The panel rejected the county’s argument the medical examinations were not investigatory and were conducted in a “light, pleasant atmosphere,” pointing out the exams “are not routine pediatric exams” and are investigatory because the “physician is looking for signs of physical and sexual abuse.”
“Parental notice and consent is even more warranted when examinations have dual purposes than when the purpose is purely for health reasons,” the panel noted.
It also pointed out the American Academy of Pediatrics guidelines the county follows “ironically” recommend that parents “be encouraged to be present at health care visits and to participate in health care decisions.”
“The amount of trauma associated with a medical examination, particularly for young children, is difficult to quantify and depends upon the child’s developmental level, previous trauma exposure, and available supportive resources, among other factors. Given this reality, a parent’s right to notice and consent is an essential protection for the child and the parent, no matter what procedures are used,” Wardlaw wrote.
Only in emergency cases or in a situation where there is a “reasonable concern that material physical evidence might dissipate,” could parental notice and consent be voided.
But the panel said that wasn’t the case for the Mann family.
The panel also found the medical examinations violated the children’s Fourth Amendment right against unreasonable searches and seizures.
“Children removed from their parents’ custody have a legitimate expectation of privacy in not being subjected to medical examinations without their parents’ notice and consent,” Wardlaw wrote.
“N.G.P.M.’s description of the examination to Melissa indicates that even at six years old, she knew that the examination had exposed something private,” Wardlaw noted, referring to the Manns’ daughter by the initials used in court documents.
“This order puts to rest once and for all whether parents have rights to make medical decisions for children. The parents do not lose the right to make important medical decisions for their child just because a social worker has decided to remove the child – it takes a judicial officer to do that,” Cox said.
David Brodie, an attorney with County Counsel who argued the case before the Ninth Circuit, did not return a phone call requesting comment.