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7th Circuit upholds qualified immunity for DCS workers

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Although sympathetic to a couple whose child was temporarily removed from the family’s home on child abuse concerns – a removal that was subsequently found not to be supported by probable cause – the 7th Circuit Court of Appeals affirmed summary judgment for Department of Child Services employees on qualified immunity grounds.

In Mark Siliven, et al. v. Indiana Department of Child Services, et al., No. 10-2701, parents Mark and Teresa Siliven sued the Indiana Department of Child Services, case manager Amber Luedike, and Terry Suttle, director of the Wayne County DCS, claiming the defendants committed federal constitutional and state law violations. Teresa brought her son home from daycare and discovered bruises on his arm. The Silivens filed a child abuse report, suspecting their daycare provider of abuse.

During the investigation by DCS, Luedike found a DCS file from five years earlier indicating that Mark had been accused of abusing his then-15-year-old stepdaughter. That same day, which was a Friday, she and Suttle decided to remove C.S. from the home but did not have a court order. They arranged for Teresa to take C.S. to his grandmother’s house in Ohio. At a hearing held on the following Monday, the judge held that no probable cause existed to believe that C.S. was in physical danger. C.S. returned home and the investigation was eventually closed.

This appeal concerns summary judgment on qualified immunity grounds granted to Luedike and Suttle on the federal constitution claims. The District judge used the second prong of the two-part analysis set forth in Saucier v. Katz, 533 U.S. 194 (2001), and didn’t decide whether the defendants’ conduct violated the Silivens’ constitutional rights. Instead, the court concluded that the constitutional rights allegedly violated weren’t “clearly established” at the time of the initial investigation and removal.

The 7th Circuit focused on the first prong of the test in its review. It held that probable cause existed to remove C.S. from his father’s custody, so there was no violation of the Fourth Amendment. The defendants knew there was physical evidence of abuse, that Mark had access to his son during the timeframe in which the injuries could have occurred, and there was a prior substantiated report of child abuse against him.

“We conclude that those facts were sufficient to warrant a prudent caseworker in believing that C.S. was in danger,” wrote Judge Joel Flaum. “Our determination of reasonableness is influenced, in large part, by the fact that C.S. remained with his mother at all relevant times.”

The judge also pointed out that the defendants, instead of putting C.S. in foster care, allowed his mother to take him to his grandmother’s home in Ohio.

“We do not intend to characterize the degree of interference as minimal, far from it. But we believe the state’s legitimate interest in protecting children warranted that lesser degree of intrusion in this case,” the opinion states.

The fact that C.S. remained with his mother during the weekend in Ohio influenced the judges to hold there was no substantive due process violation. They also rejected the Silivens’ claim that C.S.’s removal without a hearing violated the due process clause of the 14th Amendment.

“We are not unsympathetic to the Silivens. One can only imagine their frustration when, after reporting potential abuse of their child by a third party, the investigation came to focus on them. However, for the reasons stated above, we conclude that the particular interference with the Silivens’ constitutional rights that occurred here was reasonable in view of the facts known by defendants and the state’s strong interest in protecting children from abuse,” wrote the judge.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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