District Court Dismisses Civil Rights Claim of Unlawful State Removal of Minor Children from Home
A Section 1983 civil rights plaintiff who raises a due process claim for the state’s warrantless removal of her children from the home faces huge obstacles of proof and an almost insurmountable legal obstacle in the qualified immunity defense. The State of New Mexico has wide discretion to remove children from their parents’ home, without court order, when they assert an emergency. In an opinion from the United States District Court of New Mexico, Magistrate Judge Karen Molzen detailed the law that stands in the way of a successful due process claim. Arrendo v. Locklear, et al., 03cv156 KBM/LCS (May 6, 2005, Docket # 110)(no link is available).
Judge Molzen, in a forty page opinion, dismissed the parents’ claim that the Children Youth and Family Division (CYFD) social workers and law enforcement officers deprived them of their Fourteenth Amendment due process rights when they took their eleven month old daughter and their five year old daughter from their home without court order.
The opinion applies Rosca ex rel. Roska v. Peterson, 328 F.3d 1230 (10th CIr. 2003). In Roska, the Tenth Circuit held that the state may not remove chidren from a home without a court order unless there is an "immediate threat" to the safety of the child. The Court stated that the mere possibility of danger was not sufficient for the removal of children.
In Arrendo, the mother had brought the eleven month old into the emergency room twice in one week. One visit was for a broken arm and the other visit was for some type of hip injury(as it turned out, the emergency room doctor misdiagnosed the hip injury as a fracture). Medical personnel contacted CYFD, who in turn contacted law enforcement, and reported suspicions of physical abuse. After some investigation and disagreement about whetheh the children were in danger, CYFD removed the children from the home. Judge Molzen found that all state actors enjoyed qualified immunity for their decision to remove the children without court order.
The two critical legal aspects of the case are Judge Molzen's interpretation of Rosca to the effect that no court order is required for removal, even if time permits, when CYFD reasonably decides an emergency exists and Judge Molzen's decision that the question of whether an emergency existed is a legal question for the court.
Judge Molzen's decision is loaded with case cites from across the country. The opinion contains a wealth of knowledge and is a must read for the lawyer contemplating such a claim.