Third Circuit Chief Slams New Jersey|on ‘Schrodinger’s Cat’ of Drug Tests

PHILADELPHIA (CN) - The chief of the Third Circuit berated an attorney for New Jersey on Wednesday for equivocating about the drug-test results of a mother whose child the state seized.

Though Michelle Mammaro tested positive for marijuana, the results for cocaine use were so borderline that the test manufacturer advises them to be considered negative.

New Jersey's brief indicated a positive result for cocaine as evidence for Mammaro's parental impropriety, however, leading Chief Judge Theodore McKee to pounce on Assistant Attorney General Michael Walters at the hearing.

"Did you write the brief?" the judge asked.

"I was involved in writing the brief," Walters said.

"I'm sure you were involved in it. Did you write it or just sign off on it?"

"Oh, no, I reviewed it and made edits."

After admitting that Mammaro tested negative for cocaine, Walters said he agreed that the brief "was inartful."

"Inartful? Damn! Inartful!" Judge McKee said. "Was it positive or negative?"

"I guess it would be inconclusive."

"Inconslusive. Cat's out of the bag and now it's inconclusive. This is like Schrödinger's Cat. It's like alive and dead at the same time?"

When caseworkers seized her 19-month-old daughter in October 2011, Mammaro claims that the state credited a report from her abusive husband.

Indeed Mammaro says she was recovering in the hospital from domestic abuse when her husband and his brother told the New Jersey Division of Youth and Family Services that she was abusing drugs.

In January, a federal judge ruled that Mammaro could pursue her claims against the individual caseworkers, but not the agency itself, if she could prove that their removal of her daughter passed a certain threshold of bad faith and senselessness.

Appealing that decision, New Jersey argues that the child's apprehension was a mistake based on good intentions, and that New Jersey social workers properly saw fit to investigate, and temporarily remove, a child from a possible drug user.

State employees have qualified immunity from civil liability to let them to do their jobs with a lesser threat of legal action than other workers - mere negligence is not sufficient.

Judge Thomas Ambro asked Kenneth Rosellini, Mammaro's lawyer, about the potential ill outcome if they allowed her to continue her suit.

"The consequences of this case, if we were to rule on your facts, means that the next time a caseworker goes in, or the next times, plural, they're going to say, wait a minute, we better not go in, we better hold off, we better hold off, and then something happens where the child ends up in a hospital brain-dead," Ambro said.

Rosellini countered that "the state has no interest in investigating parents for abuse and neglect unless there's substantive evidence of abuse or neglect, which there wasn't."

But the judges pressed him on how the workers' mistake could rise above the level of negligence.

"It has to shock the conscience," Judge Ambro said. "It's hard for me to believe here that this is anything than negligence. They overreacted."

Noting that Mammaro's child was removed for days, Ambro said, "It's hard to say that violates a constitutional right."

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