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No qualified immunity for baseless investigations & safety plans in the Sixth Circuit

When you’re being investigated for a crime, you have rights. You have the right to remain silent, and the right against unreasonable search and seizure of your property. If you are arrested, you have the right to an attorney, a trial where you can confront the witnesses against you, and afterwards the right to an appeal. We value these rights because we know from centuries of experience they are necessary to limit the abuse of state power, even if they are often insufficient when needed most.

If you’re investigated for child abuse, however, your rights are far less clear. You typically do not have the right to remain silent; you may never find out the identity of the person who called in the initial abuse report against you; and your children, home, and person can be searched based on that anonymous report with no clear way of challenging the search in the moment, and no way to limit the use of anything found later if the original search was unreasonable. You are not arrested at the end of a child abuse investigation, but your children can be. We call it removal, but it’s state custody just the same. And your failure to cooperate can lead to your children’s removal all by itself. Florida Statutes include in the definition of “harm” to a child when a parent:

Makes the child unavailable for the purpose of impeding or avoiding a protective investigation unless the court determines that the parent, legal custodian, or caregiver was fleeing from a situation involving domestic violence.

§ 39.01, Fla. Stat. Ann.

Courts and policymakers have become more aware of these dynamics and their constitutional implications. An upcoming article by Josh Gupta-Kagan at University of South Carolina School of Law adds a new dimension to this story: the use of voluntary safety planning in lieu of removal. Writes Gupta-Kagan:

While informal custody changes [through safety plans] can sometimes serve children’s and families’ interests by preventing state legal custody, this hidden foster care system raises multiple concerns, presciently raised in Supreme Court dicta in 1979. State agencies infringe on parents’ and children’s fundamental right to family integrity with few meaningful due process checks. Agencies avoid legal requirements to make reasonable efforts to reunify parents and children, licensing requirements intended to ensure that kinship placements are safe, and requirements to pay foster care maintenance payments to kinship caregivers.

America’s Hidden Foster Care System, upcoming in 72 Stanford Law Review 841 (2020).

To my knowledge, Florida DCF doesn’t publish stats on how many families are under safety plans. We can get a rough estimate by comparing the investigation numbers to the removal numbers. From February 2019 to February 2020, Florida DCF received 359,329 intakes. Of those, 247,406 were accepted for investigation (69%). Of those, 21,420 investigations (9%) resulted in verification for at least one child in the investigation. There were about 36,589 kids in those verified investigations, but only 15,422 children (42%) were actually removed.

So what happened to the 21,000 kids who were verified maltreated but not removed that year? I would guess, for many of them, safety plans. Done cooperatively with the parents, they can help support a family through difficult times. Done coercively, they can separate a family indefinitely without any meaningful recourse. That brings us to the case.

Holly Schulkers ate some chips

This case begins in February 2017, when Holly Schulkers of Kentucky ate some chips and went to the hospital for scheduled induced labor. It ends with her being coerced into a safety plan that required supervised contact with her children for months, she alleges, with no factual or legal basis whatsoever. The story in between is the worst form of standard child welfare investigation procedure.

Here’s a little of that in-between. Holly tested “presumptively positive” for opioids, but said she had taken some of her daughter’s prescription cough medication and had eaten poppy seed chips — specifically, according to a news story on the case, Everything Bagel chips. The hospital never did a confirmatory test, but let her breastfeed and noted no problems in her care of the baby. They did, however, order an umbilical cord test just in case and called in the social worker. The social worker notified child welfare, and the baby stayed in the hospital an extra 72 hours to watch for signs of withdrawal. Apparently none came.

Both a second urine test and the umbilical cord test would eventually come back negative. The child welfare people would know that. But still, they insisted on a safety plan: Holly Schulkers was to have no unsupervised contact with any child, and if she violated that restriction then all of her children would be removed and the case would be brought to court. Note the order there — first removed, then reviewed.

The Schulkers hired an attorney who advised Holly to take a hair follicle test. It was also negative. The attorney advised child welfare that the Schulkers could not be held to a safety plan with no factual basis. Child welfare, meanwhile, went to the older Schulkers children’s school and interviewed them alone in a room, resulting in them coming home scared that their mother would be arrested and they would be taken to foster care.

There are lots of other details in the opinion, such as a supervisor calling Holly to accuse her of heroin usage, which she denied; a nurse stating that Holly showed her the bag of chips; and a supervisor telling the investigator to release the Schulkers from the safety plan, but the investigator never doing so. The result was a two-month safety planned separation from her children. And a lawsuit.

Holly Schulkers sued the social workers

It is more accurate to say that the entire Schulkers family, kids included, sued the social workers. If the facts above seem very heavily against the child welfare professionals, that’s for a reason. Prior to taking the case to trial, the defendants moved for dismissal and summary judgment. In a dismissal, the court assumes that all the pleaded facts are true. In a summary judgment, the court takes all conflicting facts in whatever light is most favorable to the other party (the Schulkers in this case). If both motions are denied, then the case goes to trial. More often, though, the case goes to settlement. To sum up the assumed-true facts:

(1) The hospital staff believed the pre-delivery test of Holly’s urine was a false positive and were permitting Holly to continue to breastfeed the baby;

(2) Holly’s second confirmatory urine test results were negative; and

(3) the results of the umbilical cord testing were also negative.

Therefore, the court notes, “Plaintiffs allege that Defendants did not have any plausible suspicion that the Schulkers’ children were subjected to abuse or neglect at the time they conducted the interviews.” This isn’t the case of an investigation based on an anonymous source or flimsy evidence. This is a case about an investigation based on no evidence at all after the doctors determined the drug tests were negative. The question is whether state actors who engage in baseless investigations can be forced to go to trial and defend their actions, or whether they are protected by the constitution from being sued in the first place.

The defendants’ arguments for summary judgment were not particularly interesting. The decision notes a few times that the defendants kept inviting the court to view the facts in the light most favorable to them, which is not how summary judgment works. There was clearly a dispute about the evidence, and disputes about evidence go to trial.

The motion to dismiss, though, would mean no trial at all. State agents are cloaked in sovereign immunity, which significantly limits their ability to be sued for mundane, everyday governmental mishaps. To permit a lawsuit, the courts must consider whether the state agent violated the person’s constitutional rights and whether the right that was violated was “clearly established” in the law. The state officials have to be on notice that what they’re doing is a constitutional violation. That usually means some prior case has already ruled on similar facts or legal principles. That also means you hope that your case isn’t the first.

But this one was. Surprise.

The Sixth Circuit ruled

The court started by acknowledging that the prior case law in the Sixth Circuit wasn’t clear on the question of what basis is required for children to be detained and questioned by child welfare professionals. The Supreme Court, however, has given the circuit courts discretion to address the constitutional question in the first instance when necessary to “promote the development of constitutional precedent,” and “promote clarity in the legal standards for official conduct, to the benefit of both the officers and the general public.” That’s what the court did.

Interviewing kids in school

First, the court found that the children were clearly “seized” as the term is understood under the Fourth Amendment. They were in a closed room, alone with a government official, and not free to leave. The social workers did not try to argue this point. That seems wise, given their age, but other courts around the country have not been as sure about whether a child is seized if questioned while at school, where they are already, in a way, seized from their parents’ custody by the state. (It seems like sitting in a classroom for social studies and being held in the principal’s office for a custodial interrogation are not the same thing, but I’m not a federal judge.)

The court then reviewed a few competing legal standards for whether a seizure for questioning is reasonable — the same type of analysis that goes into probable cause and stop-and-frisk cases — and found that none of the standards would render the facts here ok. In legal speak, once the state knew that the drug tests all were negative, it “did not have any significant interest in interviewing the children.” At the very least, a social worker “must have reasonable suspicion of child abuse before conducting an in-school interview without a warrant or consent.”

In the Eleventh Circuit, which includes Florida, a somewhat similar situation to the Schulkers’ occured in Loftus v. Clark-Moore. In that 2012 case a father filed a private petition for dependency against the mother and then did not like the onslaught of investigation by DCF that his petition invited. He sued the state, alleging, among other things, that the questioning of his children at school without his consent was a violation of the Fourth Amendment. The Eleventh Circuit held that there was no clearly defined right against the questioning of children at school. In the Eleventh Circuit “a state official may seize a student at a school so long as the seizure is ‘justified at its inception’ and is ‘reasonably related in scope to the circumstances which justified interference in the first place.'” For the Loftus father, it was justified by his own dependency petition.

A jury will have to determine whether the social workers who questioned the Schulkers actually had reasonable suspicion at the time they interviewed the kids. The real facts are typically much messier than the assumed true ones. And this doesn’t mean that investigators can’t question children — it just means they need reasonable suspicion, parental consent, or a court order. That’s really not that much to ask the state to comply with prior to locking children in a room and grilling them about their parents. (See Shanta Trivedi’s The Harm of Child Removal.)

Involuntary safety plans

The Schulkers also brought suit for violation of their Fourteenth Amendment right to parent their children. They argued two violations here: one was substantive, one was procedural. Both were accepted by the court.

The substantive right was easy. Parents have a right to parent their children, and the state has a duty to protect those children. The balance of parents’ rights gives way when the state has reason to believe the children are maltreated. The whole child welfare system lives in this balance. But in this case, at least under the assumed facts, the state had no reason to believe the children were maltreated at all. Under the assumed facts, the hospital called the case in and later determined the drug test was a false positive. The state’s interest in the Schulkers family ended there.

The state tried to argue that a safety plan for supervised contact during the investigation did not cause a deprivation of rights because it was not a removal or termination. But the court didn’t bite. An order from a state agency to have only supervised contact with your own kids for an indefinite period of time is an infringement on your right to freely parent. If done inappropriately, that can be unconstitutional.

The Eleventh Circuit has only issued one opinion related to parental rights and child welfare safety plans. In Maddox v. Stephens, out of Georgia, a medically fragile child was released by the hospital to a paternal grandmother who was trained to provide care. The mother was going to be trained but was booted from the hospital after an altercation. The case worker quickly drafted a safety plan for the child to remain with the grandmother while trying to figure out which county to file a deprivation petition in. The Eleventh Circuit held that the facts didn’t shock the conscious: first, because the state had no control over the hospital releasing the child; and second, because permitting someone who wasn’t trained to have custody would have been worse. The safety plan was actually based on safety. The case provides no guidance on how the court would rule on a safety plan entered with no factual basis.

Back to Kentucky, the arguments on procedural due process were next. The Schulkers argued that they did not voluntarily enter the safety plan because they did so only based on the threat that the children would be removed if they didn’t. That doesn’t sound wrong — warning you about the legal consequences of your actions is not a threat — but in this case it wasn’t true. The evidence, at least at this stage, was that the state had no intention of removing the children. A supervisor even told an investigator to release the family. So, why did the social workers require the safety plan? The Schulkers say to draw down federal dollars for the case.

Even more interesting is the argument that the Schulkers had no meaningful way to challenge the plan except to violate it and risk having their children put into foster care. That’s not due process. The family repeatedly requested for the safety plan to be dissolved and were repeatedly told no even after a supervisor approved releasing them. The defendants say the Schulkers could have filed a “service appeal,” but there is nothing in the record to indicate anyone ever told them that at the time and some evidence that an investigator gave them info on a different procedure that would not apply until after the children were deemed abused. The court did not rule on the constitutionality of the actual process — it ordered a trial to determine whether the family had a meaningful way to challenge the safety plan or not. The assumed true facts were that they did not.

And that’s the next step of this saga. Though the named parties here are the social workers, the real defendant is Kentucky. The parties might go to trial, but more likely they will settle the case for some reasonable amount of money and, hopefully, a commitment from the Commonwealth to update its procedures to formalize the process for safety plans. That might include automatic expiration dates, a chance for formal administrative or judicial review, and a clear statement of rights. It might also include a commitment to support policy change that would clarify the procedure for the temporary detention of children for questioning. Other states should probably look at their laws, too. Given the expansion of pre-removal safety plans, this lawsuit could very easily travel.

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