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June 3, 2002


The opinion of the court was delivered by: Bernard Zimmerman, United States Magistrate Court Judge.


In their amended complaint, plaintiffs assert violations of 42 U.S.C. § 1983 against social workers Carolyn Black ("Black") and Katherine Moore ("Moore"), and Alameda County Social Services Agency ("County"), based on the temporary removal and detention of the plaintiff children ("children") from their plaintiff mother's ("mother") custody without a warrant.*fn1 Now before the Court are the parties' cross motions for summary judgment. Defendants move for summary judgment, asserting that plaintiffs have insufficient evidence to prove a violation under § 1983, and that in any event, Black and Moore are entitled to immunity for their actions. In opposition, plaintiffs filed a cross motion. While their motion is not altogether clear, I construe it as seeking a ruling that Black and Moore violated plaintiffs' constitutional rights and that the County has an illegal policy of removing children from their parents' custody without a warrant and absent exigent circumstances.

Immediately after the initial removal of the children, the case was assigned to Dependency Investigator Moore to investigate the allegations of abuse and determine whether a California Welfare & Institutions Code § 300 Juvenile Dependency Petition should be filed. Black advised Moore that the children had been removed based on her conclusion that they were in danger of emotional harm. On April 21, 2000, Moore interviewed the mother, and on April 22, 2000, Moore interviewed the children. During Moore's investigation, the children remained in the County's custody. Based on these interviews and a review of the court referral, Moore concluded that the children were emotionally harmed and filed a § 300 dependency petition on April 25, 2000. The children were returned to the mother by agreement reached on August 11, 2000.

Federal Rule of Civil Procedure 56 mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. When the parties submit cross-motions for summary judgment, "[e]ach motion must be considered on its own merits" and "the court must review the evidence submitted in support of each cross-motion." Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).

Section 1983 creates a cause of action against any person who, acting under color of state law, deprives a person of her constitutional rights. See 42 U.S.C. § 1983. An exploration of plaintiffs' constitutional rights begins with the Fourth Amendment, which generally bans warrantless searches and seizures in a person's dwelling unless there exist exigent circumstances. See Kyllo v. U.S., 533 U.S. 27, 31 (2001); Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Payton v. New York, 445 U.S. 573, 588-90 (1980). "`At the very core' of the Fourth Amendment `stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" Kyllo, 533 U.S. at 31 (quoting Silverman v. U.S., 365 U.S. 505, 511 (1961)). In addition to the Fourth Amendment, "[t]he Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies." Mabe v. San Bernardino County, 237 F.3d 1101, 1107 (9th Cir. 2001) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). See also Wallis v. Spencer, 202 F.3d 1126, 1136-37 (9th Cir. 2000) (cases cited therein). Applied to the family home, these constitutional principles mean that social workers "may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury." Wallis, 202 F.3d at 1138. See also Calabretta v. Floyd, 189 F.3d 808, 813-14 (9th Cir. 1999); Ram v. Rubin, 118 F.3d 1306, 1310-11 (9th Cir. 1997), cert. denied, 522 U.S. 1045 (1998).

California has codified this rule in Cal. Welf. & Inst. Code § 306, which provides in relevant part:

(a) Any social worker in a county welfare department . . . may do all of the following:
(2) Take into and maintain temporary custody of, without a warrant, a minor who has been declared a dependent child of the juvenile court under Section 300 or who the social worker has reasonable cause to believe is a person described in subdivision (b) or (g) of Section 300, and the social worker has reasonable cause to believe that the minor has an immediate need for medical care or is in immediate danger of physical or sexual abuse or the physical environment poses an immediate threat to the child's health or safety.

Cal. Welf. & Inst. Code § 306(a)(2). California has also enacted regulations which require that warrantless removals be carried out pursuant to § 306. (Defs.' Req. for Judicial Notice, Ex. A ("Div. 31 Regs."), Reg. 31-135.) The County has adopted these regulations and trains new social workers in accordance with them. (Beauvais Decl., DeAngelis Dep. at 40:22-41:3.)

Black does not claim that she had a belief that the children were in imminent danger of physical harm when she removed them without a warrant. Instead, she claims that while in the house, she developed a concern that the children "were in imminent danger of emotional harm." (Black Decl. at 3:15.) Recognizing the rules discussed above, defendants do not dispute that Black removed the children from their home in violation of state law, since state law does not have an exception for emotional harm. See Cal. Welf. & Inst. Code § 306(a)(2). Nonetheless, defendants claim that removing children believed to be subject to emotional harm does not violate the Constitution, a predicate for plaintiffs' federal claims. Alternatively, defendants contend that even if plaintiffs' constitutional rights were violated, those rights were not clearly established at the time of the removal and therefore Black is entitled to qualified immunity. In their cross motion, plaintiffs seek a determination that Black violated their constitutional rights when she removed the children.

Defendants have made no showing to support the establishment of an emotional harm exception to the constitutional rule. It is not hard to understand why no such showing was made since it is difficult to conceive of situations in which there is no concern for the child's physical safety, yet the concern for the child's emotional health is so immediate that there is no time to obtain a warrant for his removal. Unlike physical harm, such as a beating, which can have immediate and dire consequences, emotional harm by its nature does not carry the same immediacy. For all these reasons, I conclude that Black violated the plaintiffs' constitutional rights when she removed the children from their home based solely on her belief that they were in imminent danger of emotional harm.*fn3 I also conclude that these rights were clearly established at the time of the removal, given the relevant case law and the explicit language of the California statue.*fn4 Frankly, it is difficult to conceive how a social worker, whose work is directly governed by state law and regulation, could claim to have a reasonable belief that a warrantless removal that is expressly prohibited by state law and regulation is somehow permitted by the Constitution.

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