Government Liability Update

Jury Instruction to Defer to Prison Officials Limited to Evidence Treatment Results from Security Concerns

In Shorter v. Baca, published July 16, 2018, the 9th Circuit reversed the denial of a new trial motion after a jury trial that resulted in a defense verdict.  When the plaintiff, a pretrial detainee, arrived at the county women's jail, a social worker diagnosed her with a mood disorder.  She was placed in the unit for mentally ill women.  The plaintiff presented uncontroverted evidence that the county had a policy of shackling the women to steel tables in the middle of an indoor recreation room as the recreation for the women, and that jail officials as a matter of routine would chain prisoners, naked, to their cell doors for hours at a time without access to food, water, or a toilet if they did not comply with required searches.  The only justification offered for curtailing the plaintiff's meals, showers, and recreation was a concern about overcrowding and understaffing in the facility. The court gave a 9th Circuit model jury instruction that the jury must give deference to jail officials in deciding the plaintiff's conditions of confinement and excessive search claims.

The 9th Circuit held that the deference instruction should not have been given.  The instruction ordinarily should be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy.  That was not the case for the claim that the jail curtailed the plaintiff's meals, showers, or recreation.  The appellate court further ruled that the instruction should not have been given as to the plaintiff's complaint that the search procedure of chaining naked prisoners to doors for hours.  While there was evidence this procedure was partially security-based, substantial evidence supported the plaintiff's argument that the procedure was an unnecessary, unjustified, and exaggerated response to the need for security.  The deference instruction should not be given under those circumstances either.

Social Worker Violates Clearly-Established Law by Removing Child from Parent without Warrant Based on Parent's Lack of Insurance to Pay for Inpatient Mental Treatment

In Keates v. Koile, published March 6, 2018, the 9th Circuit Court of Appeals reversed in part a district court's dismissal of a mother's and daughter's suit against multiple Arizona child protective services employees.  The complaint alleged that the mother took the 13-year-old daughter to a clinic, where she stated she had been sad, had contemplated suicide in the past, but was not currently experiencing suicidal ideation. The clinic referred the mother to the emergency room of a hospital. The hospital rejected the mother's plans for caring for the daughter at home, and decided to send her to a mental hospital.  The mother initially refused to provide contact information, because she did not have health insurance and was concerned that she was going to be billed for expensive inhouse treatment.  Someone at the hospital called CPS and reported that the minor was suffering severe depression and had attempted suicide, and that the mother could not formulate a safety plan.  The child was kept overnight.  A defendant social worker interviewed the minor without the mother present.  The minor told the social worker her only complaint about her mother was that she yelled, screamed, and cussed.  The minor denied having attempted suicide.  The social worker then issued a temporary custody notice, allowing him to take the child away from her mother and put her into CPS custody.  The daughter was strapped to a gurney, and delivered by ambulance to a mental hospital.  The intake nurse found the daughter's suicide risk to be low.  The social worker concluded that the mother could not care for the daughter.  CPS filed a dependency petition.  When the daughter was discharged, she was put in a foster home and not reunited with her mother for four months.  The district court dismissed the complaint because it concluded that based on the facts alleged the defendants--social workers involved in the case--were entitled to qualified immunity.

The 9th Circuit ruled that the social worker who issued the temporary custody notice and recommended the dependency petition was not entitled to qualified immunity.  It is clearly established that the rights of parents and children to familial association under the Fourteenth, First, and Fourth Amendments are violated if a state official removes children from their parents without their consent or a court order, unless, after reasonable investigation, the available information establishes reasonable cause to believe the child is in imminent danger of serious bodily injury; and the scope, degree, and duration are reasonably necessary to avert the specific injury at issue.  Detaining a minor and removing her from her mother's custody merely because the mother does not have health insurance and is reluctant to pay for inpatient treatment is not an emergency that permits removing a child without a warrant.  The court upheld dismissal of the complaint against the other CPS workers named, because the allegations of their involvement did not state a plausible case that they were sufficiently involved to render them liable.

Absent Imminent Danger, Social Workers Not Entitled to Qualified Immunity for Removing Children from Home without Court Order or Warrant

In Demaree v. Pederson, published January 23, 2018, a divided panel of the 9th Circuit Court of Appeals reversed summary judgment granted to two Child Protective Services social workers in a 42 U.S.C. section 1983 case.  One of the plaintiffs dropped off photos at a store to be printed.  A worker noted that there were nude photos of children, and contacted the police.  Police interviewed the parents, who stated they had photographed their daughters, ages 1-1/2 to 5, nude as keepsakes and would not share them.  The police took the daughters to medical and physical exams, which disclosed no abuse.  The police obtained a search warrant and searched the plaintiffs' house.  A defendant social worker spoke with one of the investigating officers, who told the worker that he expected charges would be brought against the parents.  The social worker consulted with her supervisor (another defendant) and decided to take the children into emergency temporary custody without obtaining a court order or warrant.  The parents were never arrested or charged with a crime, and the children were returned to them after a month.  The district court granted the defendants summary judgment based on qualified immunity.

The 9th Circuit majority determined that, viewing the facts in the light most favorable to the plaintiffs, the defendants were not entitled to qualified immunity.  Because the social workers did not have reasonable cause to believe the children were at imminent risk of serious bodily injury or molestation, taking the children violated the parents' and children's constitutional right under the Fourth Amendment to live together without governmental interference.  The Fourth Amendment requires government officials to obtain prior judicial authorization before removing a child from a parent, unless, in an emergency, officials have reasonable cause to believe that the child is likely to experience serious bodily harm in the time required to obtain a warrant.  No facts showed such a danger here.  Further, the law clearly established that the social workers' actions would violate the Fourth Amendment.  Ninth Circuit case law published at the time of the incident established that under worse circumstances than those here, removing a child from a parent's custody without court authorization violated the Fourth Amendment.  The law established beyond debate that the children could not be removed absent evidence of imminent danger to the child of serious bodily injury, and that the facts here did not meet the standard.

One judge dissented from denial of qualified immunity, on the ground that the incident happened on the Saturday of a holiday weekend, there were allegations of serious abuse, and the law was not clearly established that under those circumstances removing the children without court authorization would violate the Constitution.

Public Entity May Not Retaliate against Employee for Disclosing Entity's Potential Fraud upon the Court

In Whitehall v. County of San Bernardino, published November 15, 2017, the Fourth District Court of Appeal, Division 2, affirmed a trial court order denying the defendant county's Anti-SLAPP special motion to strike the plaintiff social worker's whistleblower suit under Labor Code section 1102.5.  The deputy director of Children and Family Services instructed the plaintiff to withhold photographs of a home being investigated for a baby's death, from which four other children were removed, and to provide other photographs that had been altered.  The plaintiff gave the assigned deputy county counsel a disc with all of the photographs obtained from the police.  She was concerned that the dependency court was not being given an accurate picture of the home.  Soon after, plaintiff was removed from the case and was instructed not to discuss the case with the new social worker on the case.  The plaintiff then learned the original social worker on the matter had been fired.  A new trial, assigned to a different judge, was ordered on the ground that the previous social worker had lied, and the evidence previously provided to the court was marked confidential with instructions that the new judge not view it.  The plaintiff decided to file a motion with the court stating that a fraud had been perpetrated upon it.  She consulted with an attorney, who prepared the filing.  She and two other social workers filed the motion.  Six days later, the plaintiff was placed on administrative leave.  The county stated she was put on leave while it investigated her for potential improper release of confidential information.  Two months later, the county decided to terminate the social worker.  She resigned first.  She then filed the whistleblower suit.

The appellate court held that the trial court properly denied the county's anti-SLAPP motion.  The appellate court disagreed with the trial court's ruling that the suit arose out of protected activity by the county in investigating the potential release of confidential information.  The plaintiff's cause of action did not arise from the investigation, but from the alleged retaliatory adverse employment action, which is not protected activity.  The appellate court agreed with the trial court's ruling that the plaintiff showed a sufficient chance of prevailing; the timing of the administrative leave, coming six days after the plaintiff's report, shows at least minimal merit to the retaliation claim.  Further, the plaintiff's disclosure of confidential information to the court cannot be deemed public disclosure of confidential information where county CFS is deemed an arm of the court, and dependency cases are maintained confidential by the court.  The county was not immune from liability under Government Code sections 820.2 or 815.2/821.6, because the action was brought against the county, not an employee, and as a matter of public policy actions against a public entity for claims of discharge from or termination of employment based on whistleblower claims are not barred by governmental immunity.  The court held that privilege did not apply to either presentation of false or manipulated evidence, or retaliation against an employee for disclosing a possible fraud upon the court.  In the context presented, the administrative leave was an adverse employment action.  Finally, the appellate court rejected the defense that the plaintiff acted with unclean hands.

No-Contest Plea to Juvenile Court's Dependency Jurisdiction Order, Combined with Discretionary Immunity, Bars Lawsuit against Social Workers for Detaining Children

In Gabrielle A. v. County of Orange,  published on April 19, 2017, the Fourth District Court of Appeal, Division 3, affirmed summary judgment in favor of the County of Orange and a group of social workers in a lawsuit brought by two parents on a variety of causes of action arising from the detention of a newborn child and a two-year-old child for six months.  The children were originally taken from the mother, who gave birth in Orange County while visiting from Los Angeles County without her husband, because the mother was allegedly acting irrationally and aggressively after the birth.  The parents pleaded no contest to a Welfare & Institutions Code section 300 order making the children dependents of the juvenile court.

The appellate court held that the record established that the parents entered into the no-contest plea knowingly.  The no-contest plea removed the premise of the parents' claims that the children were wrongfully detained, removed, and subjected to the juvenile court's jurisdiction due to the alleged misconduct of the social workers.  Further, the social workers and the county were entitled to statutory immunity.  Government Code section 820.2, the discretionary immunity, covers social workers for child placement decisions; and under Government Code section 815.2, the county shares the immunity.  The exception to the immunity under Government Code section 820.21 for social workers who commit perjury, fabricate evidence, or fail to disclose exculpatory evidence did not apply, because the parents' evidence did not raise a triable issue of material fact on whether the social workers acted with malice.  The causes of action for negligent supervision, hiring and retention failed because the nonstatutory causes of action could not be asserted against the county, and the parents failed to raise a triable issue of fact on whether any of the individual defendants could be held liable for those causes of action.  The causes of action under the Bane Act, Unruh Act, and Ralph Act failed because there was no evidence of violence, threat of violence, or discrimination.

Social Workers Are Not Entitled to Absolute or Qualified Immunity for Using Perjury or Fabricated Evidence to Remove Children from Parents

In Hardwick v. County of Orange, published January 3, 2017, the 9th Circuit Court of Appeals affirmed a district court's denial of summary judgment to social workers whom the plaintiff alleged used perjured testimony and fabricated evidence in 1999 to obtain the removal of the plaintiff—then a minor—from her mother. The social workers sought summary judgment based on absolute and qualified immunity.

The appellate panel held that while social workers have absolute immunity for conduct as quasi-prosecutorial advocates in presenting their case, presenting perjury and false evidence to a dependency court falls well outside their quasi-prosecutorial role. Turning to qualified immunity, the panel ruled that it was clearly established in 1999 that using perjury or fabricated evidence in civil proceedings to remove a child from her parent violated the 14th Amendment's guarantee that parents and children will not be separated by the state without due process of law except in an emergency. Case law existing in 1999 clearly established the constitutional right to be free from the knowing presentation of false or perjured evidence in civil court child removal proceedings. "No official with an IQ greater than room temperature in Alaska could claim that he or she did not know that the conduct at the center of this case violated both state and federal law." Further, in 1995 California enacted Government Code section 820.21, which states that civil immunity of social workers does not extend to malicious perjury or fabrication of evidence. Case law holding that the constitutional rights of foster parents concerning foster children were not clearly established did not apply to the clearly-established rights of parents and their children.

Social Workers Entitled to Qualified Immunity for Removing Newborn from Drug-Using Mother without Warrant, but County May Be Liable for Policy of Not Obtaining Warrants

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.

Law Enforcement Agency That Receives Report of Alleged Child Abuse Has Mandatory Duty to Cross-Report It; Officer Who Investigates Those Allegations Does Not

In B.H. v. County of San Bernardino, published November 30, 2015, the California Supreme Court affirmed in part and reversed in part a court of appeal's decision that a sheriff's department and the investigating sheriff's deputy owed no mandatory duty to a child to report a 911 call and the deputy's subsequent investigation to the county's child welfare agency.  A non-mandatory reporter called 911 and told the operator she suspected that the two-year-old plaintiff was being abused.  The operator dispatched the information to the sheriff's department, and requested that an officer look into the matter.  The deputy went to the home, examined the child, and did not conclude that abuse had occurred.  Later, the child was severely injured.  The injuries were likely caused by shaken-baby syndrome.  The plaintiff alleged that Penal Code section 11166, part of the Child Abuse and Neglect Reporting Act, imposed a mandatory duty upon the sheriff's department (Gov. Code, § 815.6) and upon the deputy (for which the sheriff's department would be vicariously liable under Government Code section 815.2) to cross-report the 911 call and the results of the investigation to the child welfare agency.

The Supreme Court ruled that the sheriff's department did have a mandatory duty to cross-report the 911 call.  Subdivision (k) of Penal Code section 11166 imposes a mandatory duty to cross-report to the county welfare or probation department every known or suspected instance of child abuse or neglect reported to it that is alleged to have occurred as a result of the action of a person responsible for the child's welfare.  The 911 call was an allegation of child abuse.  The court examined the statute's language, its legislative history, and its purpose, and concluded that the statute imposes a ministerial duty to cross-report allegations of child report that a law enforcement agency receives, such as a 911 call.  The statute therefore imposes a mandatory duty, and violation can give rise to a cause of action under Government Code section 815.6.

The court further concluded, however, that an officer investigating a report of alleged child abuse does not owe a mandatory duty to cross-report the results of her investigation.  If the initial allegations the agency receives are required to be cross-reported, there should be no mandatory requirement to cross-report the results of the investigation.  Further, the statutory provision for reporting investigation results, subdivision (a) of section 11166, only applies when a mandated reporter knows of or observes a child whom the reporter knows or reasonably suspects has been the victim of child abuse or neglect.  Subdivision (a) therefore requires a degree of discretion that subdivision (k) does not.

Physician Not Entitled to Qualified Immunity for Allegedly Coercing Parents to Leave Baby at Hospital Unnecessarily So That She Can Investigate for Child Abuse

In Jones v. County, published September 21, 2015, a divided panel of the 9th Circuit Court of Appeals affirmed a district court decision denying a physician's motion for summary judgment based on qualified immunity.  The physician, the medical director of a public hospital's Suspected Child Abuse and Negligence team, became concerned when a baby who had been brought to the hospital with injuries from falling down stairs, released, and then brought back with rib fractures, had sustained the rib fractures through abuse.  She asked the parents to bring the baby back to be hospitalized for tests, even though the tests could be conducted on an out-patient basis.  When the parents grew concerned, the physician enlisted others to persuade the parents to "play ball" and that if they did not the baby could be detained.  When the baby was checked in, the doctor stationed a "sitter" in the room so that the parents would not be alone with the child.  The parents eventually sued the doctor for violating their constitutional liberty rights to their child.

The majority held that the doctor was not entitled to qualified immunity, because the evidence, viewed in the light most favorable to the parents, showed that a reasonable physician in the plaintiff's position would have known that she was detaining the baby, without a warrant or reasonable cause; and that doing so would violate the parents' 14th Amendment Due Process rights and their 4th Amendment right to be free from unreasonable searches and seizures.  Although existing case law looked at the standards for social workers and police officers detaining children without a warrant or reasonable cause, the court determined that, viewing the facts in the light most favorable to the plaintiffs, the physician was acting as an investigator, not a physician.  

The court also rejected the doctor's arguments she was entitled to summary judgment on the state law claims based on statutory immunity.  The Reporter's Privilege under Penal Code section 11172(a) did not apply, because of the evidence that the doctor was usurping the authority of the Department of Children and Family Services regarding the baby.  Government Code section 820.2 immunity did not apply, because no statute gave the physician discretion to act as she allegedly did.

County and Social Workers Not Liable for Alleged Violation of Due Process Concerning Foster Child Placement

In Marshall v. County of San Diego, published July 22, 2015, the Fourth District Court of Appeal, Division 1, affirmed summary judgment in favor of the defendant county and county social workers in a lawsuit brought by a foster parent under 42 U.S.C. section 1983 alleging violation of her due process rights.  The foster parent alleged that the social workers violated her due process rights by not giving her notice of an ex parte hearing to end the foster placement, by not giving her a report supporting the removal until the day of a hearing on her objection to the removal, and by purportedly making false and misleading statements to the court in the hearing.  She also alleged that a county policy was the moving force behind the constitutional violations.  She had obtained an appellate court writ in the placement proceeding vacating the removal decision based on lack of sufficient notice, and directing that she be provided a new hearing.  At the new hearing, the court declined to remove the child from his new foster placement.

The appellate court ruled that the social workers were entitled to qualified immunity regarding the lack of proper notice.  The facts showed that the plaintiff had notice (verbal notice that complied with statute) and an opportunity to respond (the hearing on the objection) before the child was removed.  The court also affirmed summary adjudication of the claim that the social workers made misrepresentations to the court.  Although her right not to have the placement terminated by judicial misrepresentations was clearly established, the undisputed facts showed no material judicial misrepresentations or misleading statements.  The county was also entitled to summary judgment, because there was no evidence of an unconstitutional county policy that caused her a deprivation of constitutional rights.