Free The Children Coalition
Setting the Captives Free
LOS ANGELES COUNTY - CALIFORNIA
The County of Los Angeles settled a civil rights action brought by the grandparents of two minors for the warrantless removal of the children from their home in violation of the family’s constitutional rights to familial association free from unwarranted government interference. The County of Los Angeles, while denying the allegations of the complaint, agreed to pay $220,000 to settle the case. Approval of the settlement by the Los Angeles County Board of Supervisors is pending.
San Diego, CA March 13, 2009
RE: Marshall v. County of Los Angeles, et al.
Superior Court of California, County of Los Angeles
Case No. BC 377071
Judge: Hon. Kenneth R. Freeman, Dept. 64
Frank and Ola Marshall, the maternal grandparents of the two minors who were removed from their home and detained in foster care for forty-four days in 2006, alleged that social workers removed the children in the absence of probable cause and without first obtaining a warrant to do so. The Marshalls also alleged that once the children were removed from the home, social workers intentionally fabricated evidence and suppressed material exculpatory evidence, among other things, as part of their effort to continue to detain the children.
The suit also alleged that the policies, practices, or procedures employed by Los Angeles County Social Services in the removal of Plaintiffs’ grandchildren from the their care violated the family’s constitutional rights, under the Fourth and Fourteenth Amendments to the United States Constitution. The alleged unlawful policies, practices or procedures pertained to the removal of children without first obtaining a warrant to do so; the removal of children absent evidence to support a suspicion of imminent danger or serious physical injury; continuing detention of children after learning there was no basis to do so; and, failing to adequately train employees regarding the Constitutional rights of parents and grandparents who have a long standing custodial relationship with their grandchildren.
Los Angeles County and the individual social worker defendants deny any wrongdoing.
Lead counsel Shawn A. McMillan states “Our clients are hopeful this case will cause the County and its Department of Social Services to implement procedures to prevent future similar conduct by County social workers and protect other families.”
San Diego area attorneys Shawn A. McMillan, of the Law Offices of Shawn A. McMillan, APC., Donnie R. Cox and Dennis Atchley of the Law Offices of Donnie E. Cox (Oceanside), and Paul Leehey along with Los Angeles area attorney Robert Howell, of the Law Offices of Howell & Howell were Plaintiffs’ counsel in the case.
For additional information, contact:
Shawn A. McMillan, Esq.
THE LAW OFFICES OF SHAWN A. McMILLAN, A.P.C.
4955 Via Lapiz
San Diego, California 92122
Telephone: (858) 646-0069
Facsimile: (206) 600-4582
Website: www.mcmillan-law.com
Orange County CALIFORNIA
Judge Approves Settlement of Class-action Lawsuit; Full-scale Reform of Tennessee Child Welfare Syst
PRESS RELEASE
Outside experts and independent monitor to guide and enforce comprehensive reform of state's Department of Children's Services.
A federal district judge released his decision today approving a settlement reached by all parties in Brian A. v. Sundquist, the child welfare reform class-action lawsuit in
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The innovative settlement was agreed to in May 2001 by counsel for plaintiff children, Children's Rights, a national non-profit children's advocacy organization, and law firms in
Pursuant to federal court procedure, Judge Todd Campbell, U.S. District Court for the Middle District of Tennessee, held a public fairness hearing on July 20 for all interested parties to the Brian A. settlement to determine if the agreement is a fair, reasonable, and adequate settlement of the lawsuit. His decision, dated July 27 and released today, grants all motions to approve the class action settlement agreement.
"The
"By viewing us as allies rather than adversaries and agreeing to settle this lawsuit, the state will help speed change for its most vulnerable children," said Ira Lustbader, lead attorney for Children's Rights on the case. "Meaningful change for
Approval of the settlement does not end the class-action lawsuit. The district court still has jurisdiction to ensure compliance, enforce all provisions of the settlement, and enter further orders or impose sanctions if necessary.
The independent monitor will have access to all DCS records and the power to collect information and to determine whether the state is making the reforms. Children's counsel will have access to all necessary information to ensure enforcement. If defendants comply with all agreement measures, termination of the Settlement Agreement could be achieved in 2006.
Children's Rights co-counsel in the class-action represent children in every area of Tennessee and include David L. Raybin and Jacqueline B. Dixon of Hollins, Wagster & Yarbrough PC in Nashville; Richard B. Fields in Memphis, John W. Pierotti and Robert Louis Hutton of Glankler Brown PLLC in Memphis, and Wade V. Davies of Ritchie Fels & Dillard in Knoxville.
David Raybin in
For the first time in any court ordered settlement, a state child welfare agency will be measured by both quantitative results (size of caseloads, worker-child contact, etc.) and qualitative outcomes for children (moving among fewer foster homes and staying less time in foster care) The state will be assessed by how well they achieve desirable outcomes for children.
Major terms of the Settlement Agreement in Brian A. v. Sundquist include the following:
*A Technical Assistance Committee of five national experts in the child welfare field to assist in meaningful implementation of the requirements of the settlement agreement.
*An Independent Monitor with authority to require reports on implementation of the agreement, the status of children in foster care and compliance with the agreement.
*For the first time, a Quality Assurance Program that DCS must develop and implement statewide, including a separate quality assurance unit.
*Requirements to ensure no disparate treatment of, or impact on, African-American children.
*A system for receiving, screening and investigating reports of child abuse and neglect of foster children, with sufficient number of workers to ensure that all reports are investigated in the manner and within time frames provided by law.
*Regional services in every region of the state that include a full range of community- based services to support and preserve families of foster children in state custody, and to enable children to be reunified with their families safely and as quickly as possible.
*Time periods within which children must be moved through the adoption process.
*Maximum limits on the number of foster children's cases handled by a single case worker, and maximum limits on number of case workers overseen by a single supervisor.
Children's Rights works throughout the
EXCULPATORY EVIDENCE
Exculpatory evidence is the evidence favorable to the defendant in a criminal trial, which clears or tends to clear the defendant of guilt[1]. It is the opposite of inculpatory evidence, which tends to prove guilt.
In many countries[citation needed] such as the United States, police or prosecutor must disclose to the defendant any exculpatory evidence they possess. Failure to disclose can result in the dismissal of a case.
In the Brady v. Maryland decision, the U.S. Supreme Court held that such a requirement follows from constitutional due process and is consistent with the prosecutor's duty to seek justice.[
- ^ James W. H. McCord, Sandra L. McCord (2001). Criminal Law And Procedure For The Paralegal: A Systems Approach. Thomson Delmar Learning. p. 454. ISBN 0766819655.
Refer to case California v. Trombetta, 467 U.S. 479 (1984
Brady v. Maryland, 373 U.S. 83 (1963), was a United States Supreme Court case in which the prosecution had withheld from the criminal defendant certain evidence. The defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Maryland prosecuted Brady and a companion, Boblit, for murder. Brady admitted being involved in the murder, but claimed Boblit had done the actual killing. The prosecution had withheld a written statement by Boblit confessing that he had performed the act of killing by himself. The Maryland Court of Appeals had affirmed the conviction and remanded the case for a retrial only of the question of punishment.
The court held that withholding evidence violates due process "where the evidence is material either to guilt or to punishment"; and the court determined that under Maryland state law the withheld evidence could not have exculpated the defendant but was material to the level of punishment he would be given. Hence the Maryland Court of Appeals' ruling was affirmed.
Police officers who lie are often called as "Brady cops", as because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement officials involved in their case has a sustained record for knowingly lying in an official capacity.[1]
Brady material consists of exculpatory or impeaching information that is material to the guilt or innocence or to the punishment of a defendant. The term comes from the U.S. Supreme Court case, Brady v. Maryland,[1] in which the Supreme Court ruled that suppression by the prosecution of evidence favorable to a defendant who has requested it violates due process. Following Brady, the prosecutor must disclose evidence or information that would prove the innocence of the defendant. Evidence that would serve to reduce the defendant's sentence must also be disclosed by the prosecution.
[edit] Examples
- The prosecutor must disclose an agreement not to prosecute a witness in exchange for the witness's testimony.[2]
- The prosecutor must disclose leniency (or preferential treatment) agreements made with witnesses in exchange for testimony.[3]
- The prosecutor must disclose exculpatory evidence known only to the police. This imposes a duty on the prosecutor to review the police's investigatory files and disclose anything that tends to prove the innocence of the defendant.[4]
GEORGIA v. RANDOLPH
Georgia v. Randolph, 547 U.S. 103 (2006), is a case in which the Supreme Court of the United States held that police without a search warrant could not constitutionally search a house in which one resident consents to the search while another resident objects. The court distinguished the case from the "co-occupant consent rule" announced in United States v. Matlock, 415 U.S. 164 (1974), which permitted one resident to consent in the co-occupant's absence. The case proved yet another battle in the ongoing contest between proponents of the "Originalist" and the "Living Constitution" philosophies on the Court (and within American jurisprudence).
ROBBINS v. WILKIE, 433 f. 3d 755
-
WILKIE v. ROBBINS (No. 06-219) 433 F. 3d 755, reversed and remanded. Syllabus. Opinion ... 433 F. 3d 755, 761 (2006) (citing Mitchell v. Forsyth, 472 U. S. 511, ...www.law.cornell.edu/supct/html/
06- - 76k - Cached219.ZO.html -
WILKIE v. ROBBINS (No. 06-219) 433 F. 3d 755, reversed and remanded. Syllabus. Opinion ... WILKIE et al. v. ROBBINS. certiorari to the united states court of ...www.law.cornell.edu/supct/html/
06- - Cached219.ZS.html -
Robbins v. Wilkie, 300 F.3d 1208 (10th Cir. 2002) (hereinafter Robbins I) ... See generally Robbins v. Wilkie, 252 F. Supp. 2d 1286 (D. Wyo. 2003) ...caselaw.lp.findlaw.com/data2/circs/
10th/ - 142k - Cached048016p.pdf -
97k - Adobe PDF - View as html... Appellee's Supplemental Appendix at 852, Robbins v. Wilkie, 433 F.3d 755 (10th Cir. ... Robbins v. Wilkie, 433. F.3d 755, 760 (10th Cir. ...harvardlawreview.org/issues/121/...
/ leadingcases/wilkie_v_robbins.pdf -
... of plaintiff Harvey Frank Robbins, Wilkie v. Robbins, 127 S. Ct. 2588 (2007) ... decision, we VACATE our judgment in Robbins v. Wilkie, 433 F.3d 755 (10th Cir. ...ca10.washburnlaw.edu/cases/2007/08/
04- - Cached8016.htm -
415k - Adobe PDF - View as html433 F. 3d 755, reversed and remanded. S. OUTER , ... v. Robbins, 179 F. 3d 1268, 1269 (CA10 1999). According ... private property, 433 F. 3d, at 765–767, and ...www.njeminentdomain.com/
Wilkie v Robbins_06-219.pdf -
117k - Adobe PDF - View as html... WILKIE, et al., Petitioners, v. HARVEY ... Robbins v. Wilkie, 433 F.3d 755 (10th Cir. 2006) .9 ... Robbins v. Wilkie, 433 F.3d. 755, 766 (10th Cir. 2006) ...www.scotusblog.com/movabletype/
archives/ PCL.pdf
HEARSAY EVIDENCE
QUALIFIED IMMUNITY
Written by:
Thomas M. Dutkiewicz, President
Connecticut DCF Watch
P.O. Box 3005
Bristol, CT 06011-3005
860-833-4127
**POSTED WITH THE EXPRESS CONSENT OF MR. DUTKIEWICZ.
Social workers (and other government employees) may be sued for deprivation of civil rights under 42 U.S.C. § 1983 if they are named in their ‘official and individual capacity’. Hafer v. Melo, (S.Ct. 1991)
State law cannot provide immunity from suit for Federal civil rights violations. State law providing immunity from suit for child abuse investigators has no application to suits under § 1983. Wallis v. Spencer, (9th Cir. 1999)
If the law was clearly established at the time the action occurred, a police officer is not entitled to assert the defense of qualified immunity based on good faith since a reasonably competent public official should know the law governing his or her conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
Immunity is defeated if the official took the complained of action with malicious intention to cause a deprivation of rights, or the official violated clearly established statutory or constitutional rights of which a reasonable person would have known. McCord v. Maggio, (5th Cir. 1991)
A defendant in a civil rights case is not entitled to any immunity if he or she gave false information either in support of an application for a search warrant or in presenting evidence to a prosecutor on which the prosecutor based his or her charge against the plaintiff. Young v. Biggers, (5th Cir. 1991)
Police officer was not entitled to absolute immunity for her role in procurement of a court order placing a child in state custody where there was evidence officer spoke with the social worker prior to social worker’s conversation with the magistrate and there was evidence that described the collaborative worker of the two defendants in creating a “plan of action” to deal with the situation. Officer’s acts were investigative and involved more that merely carrying out a judicial order. Malik v. Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)
Individuals aren’t immune for the results of their official conduct simply because they were enforcing policies or orders. Where a statute authorizes official conduct which is patently violation of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity. Grossman v. City of Portland, (9th Cir. (1994)
Social workers were not entitled to absolute immunity for pleadings filed to obtain a pick-up order for temporary custody prior to formal petition being filed. Social workers were not entitled to absolute immunity where department policy was for social workers to report findings of neglect or abuse to other authorities for further investigation or initiation of court proceedings. Social workers investigating claims of child abuse are entitled only to qualified immunity. Assisting in the use of information known to be false to further an investigation is not subject to absolute immunity. Social workers are not entitled to qualified immunity on claims they deceived judicial officers in obtaining a custody order or deliberately or recklessly incorporated known falsehoods into their reports, criminal complaints and applications. Use of information known to be false is not reasonable, and acts of deliberate falsity or reckless disregard of the truth are not entitled to qualified immunity. No qualified immunity is available for incorporating allegations into the report or application where official had no reasonable basis to assume the allegations were true at the time the document was prepared. Snell v. Tunnel, (10 Cir. 1990)
Police officer is not entitled to absolute immunity, only qualified immunity, to claim that he caused plaintiff to be unlawfully arrested by presenting judge with an affidavit that failed to establish probable cause. Malley v. Briggs, S.Ct. 1986)
Defendants were not entitled to prosecutorial immunity where complaint was based on failure to investigate, detaining minor child, and an inordinate delay in filing court proceedings, because such actions did not aid in the presentation of a case to the juvenile court. Whisman v. Rinehart, (8th Cir. 1997)
Case worker who intentionally or recklessly withheld potentially exculpatory information from an adjudicated delinquent or from the court itself was not entitled to qualified immunity. Germany v. Vance, (1st Cir. 1989)
Defendant was not entitled to qualified immunity or summary judgment because he should’ve investigated further prior to ordering seizure of children based on information he had overheard. Hurlman v. Rice, (2nd Cir. 1991)
Defendants were not entitled to qualified immunity for conducting warrantless search of home during a child abuse investigation where exigent circumstances were not present. Good v. Dauphin County Social Services, (3rd Cir 1989)
Social workers were not entitled to absolute immunity where no court order commanded them to place plaintiff with particular foster caregivers. K.H through Murphy v. Morgan, (7th Cir. 1991)
CALABRETTA v. FLOYD
DUE PROCESS
Written by:
Thomas M. Dutkiewicz, President
Connecticut DCF Watch
P.O. Box 3005
Bristol, CT 06011-3005
860-833-4127
*** POSTED WITH THE EXPRESS CONSENT OF MR. DUTKIEWICZ.
DUE PROCESS
Child’s four-month separation from his parents could be challenged under substantive due process. Sham procedures don’t constitute true procedural due process. Brokaw v. Mercer County (7th Cir 2000)
Post-deprivation remedies do not provide due process if pre-deprivation remedies are practicable. Bendiburg v. Dempsey (11th Cir. 1990)
Children placed in a private foster home have substantive due process rights to personal security and bodily integrity. Yvonne L. v. New Mexico Dept. of Human Services (10th Cir. 1992)
When the state places a child into state-regulated foster care, the state has duties and the failure to perform such duties may create liability under § 1983. Liability may attach when the state has taken custody of a child, regardless of whether the child came to stay with a family on his own which was not an officially approved foster family. Nicini v. Morra (3rd Cir. 2000)
A social worker who received a telephone accusation of abuse and threatened to remove a child from the home unless the father himself left and who did not have grounds to believe the child was in imminent danger of being abused engaged in an arbitrary abuse of governmental power in ordering the father to leave. Croft v. Westmoreland Cty. Children and Youth Services (3rd Cir. 1997)
Plaintiff’s were arguable deprived of their right to procedural due process because the intentional use of fraudulent evidence into the procedures used by the state denied them the fight to fundamentally fair procedures before having their child removed, a right included in Procedural Due Process. Morris v. Dearborne (5th Cir. 1999)
When the state deprives parents and children of their right to familial integrity, even in an emergency situation, the burden is on the state to initiate prompt judicial proceedings for a post-deprivation hearing, and it is irrelevant that a parent could have hired counsel to force a hearing. K.H. through Murphy v. Morgan, (7th Cir. 1990)
When the state places a child in a foster home it has an obligation to provide adequate medical care, protection, and supervision. Norfleet v. Arkansas Dept. of Human Services, (8th Cir. 1993)
Children may not be removed from their home by police officers or social workers without notice and a hearing unless the officials have a reasonable belief that the children were in imminent danger. Ram v. Rubin, (9th Cir. 1997)
Absent extraordinary circumstances, a parent has a liberty interest in familial association and privacy that cannot be violated without adequate pre-deprivation procedures. An ex parte hearing based on misrepresentation and omission does not constitute notice and an opportunity to be heard. Procurement of an order to seize a child through distortion, misrepresentation and/or omission is a violation of the Forth Amendment. Parents may assert their children’s Fourth Amendment claim on behalf of their children as well as asserting their own Fourteenth Amendment claim. Malik v.Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)
Plaintiff’s clearly established right to meaningful access to the courts would be violated by suppression of evidence and failure to report evidence. Chrissy v. Mississippi Dept. of Public Welfare, (5th Cir. 1991)
Mother had a clearly established right to an adequate, prompt post-deprivation hearing. A 17-day period prior to the hearing was not prompt hearing. Whisman V. Rinehart, (8th Cir. 1997)
Written by:
Thomas M. Dutkiewicz, President
Connecticut DCF Watch
P.O. Box 3005
Bristol, CT 06011-3005
860-833-4127
*** POSTED WITH THE EXPRESS CONSENT OF MR. DUTKIEWICZ.
DUE PROCESS
Child’s four-month separation from his parents could be challenged under substantive due process. Sham procedures don’t constitute true procedural due process. Brokaw v. Mercer County (7th Cir 2000)
Post-deprivation remedies do not provide due process if pre-deprivation remedies are practicable. Bendiburg v. Dempsey (11th Cir. 1990)
Children placed in a private foster home have substantive due process rights to personal security and bodily integrity. Yvonne L. v. New Mexico Dept. of Human Services (10th Cir. 1992)
When the state places a child into state-regulated foster care, the state has duties and the failure to perform such duties may create liability under § 1983. Liability may attach when the state has taken custody of a child, regardless of whether the child came to stay with a family on his own which was not an officially approved foster family. Nicini v. Morra (3rd Cir. 2000)
A social worker who received a telephone accusation of abuse and threatened to remove a child from the home unless the father himself left and who did not have grounds to believe the child was in imminent danger of being abused engaged in an arbitrary abuse of governmental power in ordering the father to leave. Croft v. Westmoreland Cty. Children and Youth Services (3rd Cir. 1997)
Plaintiff’s were arguable deprived of their right to procedural due process because the intentional use of fraudulent evidence into the procedures used by the state denied them the fight to fundamentally fair procedures before having their child removed, a right included in Procedural Due Process. Morris v. Dearborne (5th Cir. 1999)
When the state deprives parents and children of their right to familial integrity, even in an emergency situation, the burden is on the state to initiate prompt judicial proceedings for a post-deprivation hearing, and it is irrelevant that a parent could have hired counsel to force a hearing. K.H. through Murphy v. Morgan, (7th Cir. 1990)
When the state places a child in a foster home it has an obligation to provide adequate medical care, protection, and supervision. Norfleet v. Arkansas Dept. of Human Services, (8th Cir. 1993)
Children may not be removed from their home by police officers or social workers without notice and a hearing unless the officials have a reasonable belief that the children were in imminent danger. Ram v. Rubin, (9th Cir. 1997)
Absent extraordinary circumstances, a parent has a liberty interest in familial association and privacy that cannot be violated without adequate pre-deprivation procedures. An ex parte hearing based on misrepresentation and omission does not constitute notice and an opportunity to be heard. Procurement of an order to seize a child through distortion, misrepresentation and/or omission is a violation of the Forth Amendment. Parents may assert their children’s Fourth Amendment claim on behalf of their children as well as asserting their own Fourteenth Amendment claim. Malik v.Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)
Plaintiff’s clearly established right to meaningful access to the courts would be violated by suppression of evidence and failure to report evidence. Chrissy v. Mississippi Dept. of Public Welfare, (5th Cir. 1991)
Mother had a clearly established right to an adequate, prompt post-deprivation hearing. A 17-day period prior to the hearing was not prompt hearing. Whisman V. Rinehart, (8th Cir. 1997)
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