In Kirkpatrick v. County of Washoe, published December 9, 2016, the 9th Circuit Court of Appeals, sitting en banc, affirmed in part and reversed in part summary judgment in favor of defendants sued by an infant child and her father under 42 U.S.C. section 1983. The infant was born prematurely by cesarean section. The mother admitted she used methamphetamine throughout her pregnancy. The infant tested positive for meth. The mother had two other children who were in the custody of social services. A court had approved a plan to terminate the mother's parental rights for the older children. Social services put a hold on the newborn to prevent her from being discharged. The mother was still permitted to interact with the newborn. The mother failed to feed the infant on a schedule or to change her diapers. The plaintiff father was present at the time of the birth. He had been told by the mother that he might be the father. He left town soon after the birth. Two days after the infant's birth, the hospital discharged her into social services's care. Social services did not attempt to obtain a warrant before assuming custody. Later, the plaintiff was adjudged the father, and eventually obtained custody of the infant. He and the infant sued the county and the social workers involved for removing the child from the hospital without a warrant. The district court granted summary judgment, determining that only the father had raised claims and that he had failed to show that his constitutional rights were violated.
The majority decision of the en banc panel affirmed summary judgment on behalf of the social workers, but reversed it as to the county. The panel determined that the suit asserted the rights of both the father and the infant. The court ruled that the father failed to show that any of his 4th or 14th Amendment constitutional rights were violated, because he had no parental relationship with the newborn when she was taken. His biological relationship alone was insufficient. The panel determined that there was a material issue of fact on whether the infant's 4th Amendment rights had been violated. Removal of a child without a warrant is constitutionally permitted only when the child would be in imminent danger during the time that obtaining a warrant could take. Since the infant and mother were in the hospital, the mother was recovering, and the hospital had a hold on discharging the child, a jury could determine that a warrant was necessary. But the workers were entitled to qualified immunity, because no published case had established that no imminent danger was present under the circumstances the workers faced. On the other hand, there was a triable issue of fact on whether the county could be held liable for failure to train. The county did not train its workers that they needed a warrant to remove children from parents, and as a practice did not use warrants. Although a pattern of constitutional violations is usually necessary to show an unconstitutional failure to train, this was one of the rare situations were a single instance was sufficient.
There were multiple concurring and dissenting opinions in the decision.
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