Social Worker Sued for Taking Child Without Warrant

Will DSS Have to Change Its Tactics? 

By Atty. J. Edward Pawlick
February 5, 2001 

A mother has been allowed to sue a social worker for taking her 14-year-old daughter without a warrant under a ruling by a U.S. Court of Appeals that covers California and other western states.

The action could have violated due process under the 14^th Amendment to the U.S. Constitution, the court said.

"This case will impact the unconstitutional actions by social workers in Massachusetts," said Attorney Gregory Hession of Belchertown. "I have some files that I will probably be appealing immediately."

The attorney cautioned that it will be a long and arduous process before such a ruling is made in Massachusetts. However, if the U.S. Court of Appeals in Boston refuses to change its previous rulings and continues to allow a child to be taken from its parents without a court order, this would cause a conflict in the federal courts which would probably cause the U.S. Supreme Court to resolve the matter.

“It won’t be quick and easy, but this now gives us a glimmer of hope that the children of Massachusetts will finally obtain justice in our courts and not be torn from their families on the decision of one social worker,” Hession said.

Other lawyers caution, however, that even if such a ruling is made here it may not solve our problems. They point out that with our new system of Family Courts, the judges are a part of the system and could quickly “rubber stamp” any request for a warrant that is made to them. Many of them are former social workers themselves and will not question anything that is done by their former colleagues.

But, nonetheless, all DSS workers would be well served to follow the new decision because they do not want to be the one who is sued for the “test case,” lawyers caution.

Child Must Be In “Imminent Danger”
Last weeks decision held that a warrant must be obtained unless the social worker has “information at the time of the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger of serious bodily injury…’”

Whether there was “reasonable cause” about imminent danger is a question for a jury to decide said the court.

It held that even though a juvenile court ruled two days after the seizure of the girl that there was substantial danger to her physical well-being and there were no services that would have allowed her to remain safely in her mother’s home, that did not excuse the action of the social worker.

The case was first reported to social services on July 19, 1995, when they learned that the girl was claiming that her stepfather was fondling her at night in her bed. On August 17, the social worker interviewed both the mother and daughter. The mother denied the charges and said that the girl made up stories and embellished facts and the girl said that nothing further had happened to her since the case was first reported. On August 21 a committee at the Department of Social Services recommended that the girl be removed from her home. The social worker did so with the help of a sheriff’s deputy later that day.

In holding that the social worker could have waited a few more hours and obtained a warrant before entering the house, the court said, “First, and most importantly, [the social worker] opted to leave [the girl] in the residence after interviewing [the girl and her mother] about the alleged molestation. [The social worker] told [the girl] at the end of the interview on August 17, 1995, that she would see if [the girl] needed to be removed from the home. This demonstrates [the social worker’s] intent to delay the removal, which causes a serious question about [the social worker’s] reasonable belief that [the girl] was in imminent danger on August 21, 1995…”

The court said, “The constitutional right of parents and children to live together without governmental interference is well established. [citation] The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.”

Massachusetts Courts Have Poor Record
It is undisputed that both state and federal courts in Massachusetts have a poor record in civil rights in recent years.

The most embarrassing event occurred in 1995 when the U.S. Supreme Court gave a rare 9-0 ruling in favor of Atty. Chester Darling in the South Boston parade case, which involved freedom of speech issues, even though 11 state and federal judges had held against him in Massachusetts. (The only judge to hold in his favor in our state was Joseph R. Nolan of the SJC.)

Then last spring, Judge Allan van Gestel was a laughing stock across the whole country as he entered a gag order stopping anyone from talking about the Fistgate scandal or distributing a tape recording of what had happened there. When the national media ridiculed him (the Boston media were strangely quiet) and Fox News challenged him in court, he realized his serious mistake. But he continued the unconstitutional order against the two whistle-blowing parents who had exposed the scandal. It is still in existence against those two people today.

At the current time, the SJC continues its taking of money from the clients of lawyers across the Commonwealth in order to pay the salaries of its favorite poverty lawyers who are very selective in the poor people that they will represent. At the very least, the practice is very suspect and the U.S. Supreme Court has already sent a message that it is unconstitutional. The Ninth Circuit sent an even stronger message last month that the practice is not legal. But the SJC is waiting until it gets a “direct order” from a federal court before it stops the practice and stops taking the money.

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Full text:   The court is the U.S. Court of Appeals for the Ninth Circuit. The name of the case is Mabe v. San Bernardino County, Department of Public Social Services, 98-56561.

Click here to read the full text of the opinion.