Search for Cancer Girl Wasn’t Illegal, Court Says

(CN) - Social workers in Texas didn't conduct an illegal search when they entered a family's home without a warrant and looked for a 12-year-old girl whose parents refused to allow radiation treatment for her cancer, the 5th Circuit ruled.

The New Orleans-based court ruled that social worker Linda Kim Garcia and on-call supervisor Claire Trainer were entitled to qualified immunity from the family's claim that the search was illegal.

Garcia was acting on information that Edward and Michelle Wernecke refused to take their daughter in for radiation treatment, despite doctor's orders. Suspecting medical neglect, the girl's physicians had referred the case to the Texas Department of Family and Protective Services (TDFPS).

Garcia said she called Mrs. Wernecke several times, urging her to make an appointment for her daughter. When the couple failed to act, Garcia won temporary custody of the girl.

Garcia, a colleague and two Nueces County deputy constables entered the Werneckes' home without a warrant and searched for their daughter. The Werneckes also lived with three sons.

While there, Garcia noted what she described as "deplorable" and "unsanitary" living conditions, including piles of paper, food, trash and clothes; and medications and syringes sitting on the kitchen counter and dining room table.

The Werneckes disputed this description of their home, saying the house was merely cluttered, and the medications for their daughter had been safely stored.

Nonetheless, Garcia obtained an order to remove all three boys from the home.

The Werneckes fought back with a lawsuit against TDFPS, Nueces County, the two constables, and six social workers, including Garcia and Trainer.

Garcia and Trainer unsuccessfully moved to have the claims against them dismissed based on qualified immunity.

The 5th Circuit panel partially reversed, saying Garcia and Trainer were entitled to immunity on the illegal search claims, and Trainer wasn't directly involved in the allegedly illegal seizure.

But because Garcia was involved in removing the boys from the home, the court said she wasn't entitled to immunity on the illegal seizure claim. Viewing the circumstances in the light most favorable to the Werneckes, the court found the boys' removal unnecessary.

"The presence of medications and syringes in the home, in child-proof containers and under parental supervision, does not rise to the level of exigency," Judge Carolyn Dineen King wrote. "Nor does mere clutter in the home."

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