A Davis County couple plans to appeal a federal court judge's decision that social workers cannot be held personally liable when they remove children from their homes.
U.S. District Judge Dee Benson was sympathetic to Connie and James Roska's case but held that as long as the caseworkers are following the law, they have immunity.
The Roska's son, Rusty, was taken into state custody in 1998 when Division of Child and Family Services caseworkers accused Connie Roska of having a psychological disorder called Munchausen Syndrome by proxy. They said the mother was causing her son to be sick on purpose to bring attention to herself and also accused her of giving him all kinds of illegal drugs.
The boy was ultimately found to have gall bladder problems, a rare form of chronic gastrointestinal pain and a rarer still intestinal parasite. His symptoms are now under control with medication and he is again living with his parents.
The Roska's filed suit in 1999, charging the state violated their Fourth Amendment rights to unlawful search and seizure.
The case was scheduled for a jury trail, but Wednesday Benson ordered summary judgment in favor of the DCFS officials.
Benson wrote that "no search warrant was obtained" when caseworkers seized Rusty, and "it is questionable whether exigent circumstances existed to permit a warrantless search."
Benson also said the state law in this case "may have unconstitutional problems of its own, but the court was not asked to address that question."
Benson's decision came as a surprise to Connie Roska, who was preparing herself for a trial.
"I was shocked nobody told me," she said. "But I know I'm in the right. I know what (the state caseworkers) did was wrong."
The Roskas believe Benson's ruling left an opening for the 10th Circuit Court of Appeals in Denver to reach a different conclusion.
"And case law in the 10th Circuit is in our favor," said the couple's attorney, Steve Russell. "(The appellate court) has ruled that a state cannot take a child from its parents without filing something and giving notice, unless there's an emergency."
But state attorneys say Benson's ruling "makes sense."