Los Angeles Times
Wednesday, September 15, 1999 

Parents' Rights Upheld in Child Abuse Inquiries; Justices rule that
authorities searching for evidence must get family consent or a judge's
order before an invasive examination of a minor.

By: HENRY WEINSTEIN -- TIMES LEGAL AFFAIRS WRITER 

A federal appeals court in San Francisco ruled Tuesday that government
officials investigating possible child abuse cannot conduct an invasive
bodily search of a child without parental permission unless a judge has
ruled in advance that such a search is warranted.

Saying that government authorities sometimes abuse the rights of children
in seeking to protect them from abuse, the court, in its 2-1 decision,
said children "have a right to the love, comfort and reassurance of their
parents while they are undergoing medical procedures, including
examinations particularly those . . . that are invasive or upsetting,"
such as vaginal and anal examinations.

Specifically, the U.S. 9th Circuit Court of Appeals held that parents have
a right to be present or in a nearby waiting room in cases in which judges
permit such searches. 

In his majority opinion, Judge Stephen Reinhardt wrote that the case,
stemming from allegations of child abuse in San Diego County, involved "a
conflict between the legitimate role of the state in protecting children
from abusive parents, and the rights of children and parents to be free
from arbitrary and undue governmental interference." 

Reinhardt stressed that child abuse is an important problem that was
ignored for too long. However, he said that as the pendulum has swung in
recent years there have been adverse consequences and the fact that "a
suspected crime may be heinous--whether it involves children or
adults--does not provide cause for the state to ignore the rights of the
accused or any other parties." 

The decision stems from a 1991 case in which Escondido authorities seized
a 5-year-old girl and a 2 1/2-year-old boy from their parents. The court
said authorities took the children in the middle of the night, soon after
the mother's sister, "who had a long history of delusional disorders and
was confined to a mental institution," told her therapist that her
brother-in-law was abusing the children and planned to kill his son as
part of a satanic ritual. 

The therapist told government child protection workers what her patient
said, setting off an investigation that led to seizure of the children. 
When questioned by authorities, the 5-year-old denied that she had been
abused. It also turned out that police officers had not checked on whether
there was a court order authorizing seizure of the children, and there was
none. "In fact, child protection officials had not reached a decision on
whether to seek protective custody of the children when the police picked
them up," Reinhardt wrote. 

Three days after authorities took the children into custody, a detective
took the children to a hospital and ordered an evidentiary physical
examination. No court order had been obtained and the parents were not
notified in advance. 

A doctor conducted internal body cavity examinations of the children and
took photographs. "A social worker who observed the examinations reported" 
that the daughter "was very upset and asked for her parents," Reinhardt
wrote. The judge also noted that the girl, "clutching a security blanket
and a stuffed animal . . . tearfully asked whether her parents wanted her
back or were trying to 'get rid of her.' " 

San Diego County officials kept the children for 2 1/2 months until a
thorough investigation revealed that there was no basis for the
allegations of abuse. In addition, according to Tuesday's ruling, the
doctor who conducted the examination and said she found evidence of abuse
falsely stated that another doctor supported her findings. In fact, the
other doctor "concluded that there was no evidence of abuse and that there
were alternative, normal physiological explanations" for what the first
doctor observed, Reinhardt wrote. 

"No one now contends that either child was ever sexually or physically
abused, that there was ever any evidence of any abuse by their parents,"
or that the father ever had any intention of sacrificing his son,
Reinhardt wrote. 

The judge also noted that there never was any allegation that the mother
had molested the children, yet government officials never considered the
possibility of temporarily removing the mother and the children from the
father while conducting an investigation of the allegations. 

Enormous damage can be done to children, said UC Berkeley law professor
Joan H. Hollinger, when they are forcibly taken from their parents in
circumstances such as those of the Escondido case. "It's important to
enunciate that children, as well as their parents, have a right to be left
alone unless there is a very good reason for invading their family
privacy," Hollinger said. 

USC law professor Erwin Chemerinsky said the ruling is important in a
field of growing judicial attention. "There are many reports of children's
services departments acting out of the most noble of motives but violating
parents' rights and children's rights. This case is important in
clarifying some of the limits on government behavior," Chemerinsky said. 

Tuesday's decision is the latest development in a long legal saga. The
parents filed a federal civil rights case in 1992. They settled with some
of the defendants. But the city of Escondido contended that it was immune
from any liability, and Marilyn L. Huff, a federal trial judge in San
Diego, agreed. 

The 9th Circuit reversed that decision, saying the family is entitled to a
trial for damages on their allegations of civil rights violations,
abduction of the children and infliction of emotional distress. In
particular, the court said a jury should decide whether the city of
Escondido had a policy of picking up children without verifying the
existence of a court order and without reasonable cause. 

In a dissent, Judge Pamela A. Rymer acknowledged that "sending this issue
[the Escondido city policy] back for trial is within the ballpark." 

However, Rymer balked at permitting the family to seek damages because of
alleged violations related to the medical examinations. "We have no
business inventing an issue and a constitutional right or two to resolve
it," she wrote. 

Paul F. Leehey of Fallbrook, one of the family's lawyers, said he was
pleased with the decision. "My clients want to state their case to a
jury," the attorney said. 

"Imagine having someone from the government tell you you are a satanic
sacrificer [of children] and then telling you you are a molester and then
for more than two months you can only see your children for one hour a
week. Then [after a Juvenile Court ruling] they are brought back to you
with no apology and you are billed for their time in foster homes. It
really is bizarre. I hope it doesn't happen to anyone else," Leehey said. 

Mark Waggoner, assistant city attorney for Escondido, declined to comment. 

The ruling comes on the heels of another 9th Circuit decision in late
August that found fault with a Yolo County social worker who suspected
child abuse. With the assistance of a police officer, the social worker
forced her way into a home in Woodland and conducted a strip search of a
12-year-old girl. 

In that case, the 9th Circuit ruled 3 to 0 that social workers cannot
enter a home to look for signs of suspected child abuse unless there is an
emergency or they have a search warrant.