In a Utah case that pitted parental rights against the responsibility of government to investigate child abuse, a federal appeals court Tuesday came down on the side of government.
Those interests clashed two years ago after a Washington County deputy sheriff received an alleged eyewitness report that a 7-year-old child had been sexually abused by her father.Recognizing the need in such cases to interview the child outside the presence of the parents, the county had adopted a policy to question alleged victims of child abuse at school.
But in this case, the child was home-schooled. So, Sheriff Glenwood Humphries, deputy county attorney W. Brent Langston and a state child welfare official consulted Juvenile Court Judge Joseph Jackson, who suggested they seek an order to temporarily remove the child from her home pending a hearing.
After obtaining the order from Jackson, uniformed officers took the child to a shelter home, where she was held for almost 18 hours. She was returned to her home after the investigation revealed no evidence of child abuse.
The mother, identified only as J.B., then filed a lawsuit against Washington County, arguing it could have used a less disruptive procedure. The suit alleged that county employees violated her and her daughter's rights to procedural due process and equal protection and interfered with their familial association rights.
It also questioned the county's consultation with the judge; said court documents didn't explain why the girl, L.B., was being taken to a shelter or provide enough information to prepare for a hearing; and said the county's efforts to obtain an untainted interview ultimately failed because the father spoke with L.B. privately before she was removed from her home.
A U.S. district court judge rejected the claims. With help from the Rutherford Institute (a national conservative, nonprofit civil liberties organization), the mother then took the case to the 10th Circuit Court of Appeals in Denver.
The three-judge appeals panel clearly struggled with the issues raised by the case.
Writing for the court, Judge Robert Henry said, "This is a difficult case, pitting the fundamental rights of parents and families - rights that are . . . `consonant with the right of privacy' - against the awesome responsibilities of a county to investigate child abuse, a most reprehensible and ever-increasing problem."
However, in a 32-page opinion affirming the district court decision, the judges said Washington County did not violate the family's constitutional rights.
Attorney Matthew Hilton said the case was fundamentally about whether an anonymous complaint justifies the removal of a child from the family home without justification or notification.
"Despite the court's agonizing over these rights, it has still allowed the heavy hand of government to intrude into our homes and families on the mere suspicion of wrongdoing," Hiltons said.
While conceding a risk of separating the family in error, the judges said there was also an enormous risk of tainting the interview with the child or leaving the child in an abusive situation.
They noted that the mother, J.B., admitted that if officers had simply asked to interview L.B., she "wouldn't say yes." That "belies" her claim that officials should have requested permission to conduct the interview in the home, the judges said.
However, they added that interference with family rights requires a careful balancing of interests. Applying terms from a U.S. Supreme Court opinion, the appeals court said Washington County had a " `traditional' and `transcendent interest' in protecting children within the county from abuse."
They also rejected J.B.'s assertion that the county lacked probable cause to seize her child because the informant's statement contained inaccurate information.
The judges said the Supreme Court has not yet decided whether the temporary removal of children in cases of suspected abuse or neglect is governed by the probable cause standard.
But, they said, "It could be argued that such removal is based on special needs beyond the normal need for law enforcement and therefore permissible in the absence of probable cause."
The county could have used less intrusive procedures, such as interviewing the girl sooner without requiring an overnight stay at the shelter home, the court said. But under the balancing test, even that defect did not violate the family's rights, the court ruled.