CACI 3051 Unlawful Removal of Child From Parental Custody Without a Warrant—Essential Factual Elements (42 U.S.C. § 1983)

California Civil Jury Instructions CACI

3051 Unlawful Removal of Child From Parental Custody Without a Warrant—Essential Factual Elements (42 U.S.C. § 1983)

[Name of plaintiff] claims that [name of defendant] wrongfully removed [name of plaintiff]’s child from [his/her/nonbinary pronoun] parental custody because [name of defendant] did not have a warrant. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] removed [name of plaintiff]’s child from [his/her/nonbinary pronoun] parental custody without a warrant;

2.That [name of defendant] was performing or purporting to perform [his/her/nonbinary pronoun] official duties;

3.That [name of plaintiff] was harmed; and

4.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

This instruction is a variation on CACI No. 3021, Unlawful Arrest by Peace Officer Without a Warrant—Essential Factual Elements, and CACI No. 3023, Unreasonable Search or Seizure—Search or Seizure Without a Warrant—Essential Factual Elements, in which the warrantless act is the removal of a child from parental custody rather than an arrest or search. This instruction asserts a parent’s due process right to familial association under the Fourteenth Amendment. It may be modified to assert or include the child’s right under the Fourth Amendment to be free of a warrantless seizure. (See Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1473–1474 [150 Cal.Rptr.3d 735].)

Warrantless removal is a constitutional violation unless the authorities possess information at the time of the seizure that establishes reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury. (Arce, supra, 211 Cal.App.4th at p. 1473.) The committee believes that the defendant bears the burden of proving imminent danger. (See Evid. Code, § 500 [“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”]; cf. Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091, 80 L.Ed.2d 732] [“Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.”].) CACI No. 3026, Affirmative Defense—Exigent Circumstances (to a warrantless search), may be modified to respond to this claim.

If the removal of the child was without a warrant and without exigent circumstances, but later found to be justified by the court, damages are limited to those caused by the procedural defect, not the removal. (See Watson v. City of San Jose (9th Cir. 2015) 800 F.3d 1135, 1139.)

Sources and Authority

“ ‘ “Parents and children have a well-elaborated constitutional right to live together without governmental interference.’ [Citation.] ‘The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.” This ‘right to family association’ requires ‘[g]overnment officials … to obtain prior judicial authorization before intruding on a parent’s custody of her child unless they possess information at the time of the seizure that establishes “reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.” [Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1473, internal citations omitted.)

“ ‘The Fourth Amendment also protects children from removal from their homes [without prior judicial authorization] absent such a showing. [Citation.] Officials, including social workers, who remove a child from its home without a warrant must have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant.’ Because ‘the same legal standard applies in evaluating Fourth and Fourteenth Amendment claims for the removal of children,” we may “analyze [the claims] together.’ ” (Arce, supra, 211 Cal.App.4th at pp. 1473–1474.)

“While the constitutional source of the parent’s and the child’s rights differ, the tests under the Fourteenth Amendment and the Fourth Amendment for when a child may be seized without a warrant are the same. The Constitution requires an official separating a child from its parents to obtain a court order unless the official has reasonable cause to believe the child is in ‘imminent danger of serious bodily injury.’ Seizure of a child is reasonable also where the official obtains parental consent.” (Jones v. County of L.A. (9th Cir. 2015) 802 F.3d 990, 1000, internal citations omitted.)

“This requirement ‘balance[s], on the one hand, the need to protect children from abuse and neglect and, on the other, the preservation of the essential privacy and liberty interests that families are guaranteed under both the Fourth and Fourteenth Amendments of our Constitution.’ ” (Demaree v. Pederson (9th Cir. 2018) 880 F.3d 1066, 1074.)

“[W]hether an official had ‘reasonable cause to believe exigent circumstances existed in a given situation … [is a] “question[] of fact to be determined by a jury.” [Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1475.)

“Under the Fourth Amendment, government officials are ordinarily required to obtain prior judicial authorization before removing a child from the custody of her parent. However, officials may seize a child without a warrant ‘if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.’ ” (Kirkpatrick v. Cnty. of Washoe (9th Cir. 2016) 843 F.3d 784, 790 (en banc).)

“[I]t does not matter whether the warrant could be obtained in hours or days. What matters is whether there is an identifiable risk of serious harm or abuse during whatever the delay period is.” (Demareesupra, 880 F.3d at p. 1079, original italics.)

“The parental right secured by the Fourteenth Amendment ‘is not reserved for parents with full legal and physical custody.’ At the same time, however, ‘[p]arental rights do not spring full-blown from the biological connection between parent and child.’ Judicially enforceable interests arising under the Fourteenth Amendment ‘require relationships more enduring,’ which reflect some assumption ‘of parental responsibility.’ It is ‘[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child,’ that ‘his interest in personal contact with his child acquires substantial protection under the due process clause.’ Until then, a person with only potential parental rights enjoys a liberty interest in the companionship, care, and custody of his children that is ‘unambiguously lesser in magnitude.’ ” (Kirkpatrick, supra, 843 F.3d at p. 789.)

“[A] child is seized for purposes of the Fourth and Fourteenth Amendments when a representative of the state takes action causing a child to be detained at a hospital as part of a child abuse investigation, such that a reasonable person in the same position as the child’s parent would believe that she cannot take her child home.” (Jones, supra, 802 F.3d at p. 1001.)

“An official ‘cannot seize children suspected of being abused or neglected unless reasonable avenues of investigation are first pursued.’ Further, because the ‘scope of the intrusion’ must be ‘reasonably necessary to avert’ a specific injury, the intrusion cannot be longer than necessary to avert the injury.” (Keates v. Koile (9th Cir. 2018) 883 F.3d 1228, 1237, internal citations omitted.)

“[A] jury is needed to determine what a reasonable parent in the [plaintiffs’] position would have believed and whether [defendant]’s conduct amounted to a seizure.” (Jones, supra, 802 F.3d at p. 1002.)

“In sum, although we do not dispute that Shaken Baby Syndrome is a serious, life-threatening injury, we disagree with the County defendants’ assertion that a child may be detained without prior judicial authorization based solely on the fact that he or she has suffered a serious injury. Rather, the case law demonstrates that the warrantless detention of a child is improper unless there is “specific, articulable evidence” that the child would be placed at imminent risk of serious harm absent an immediate interference with parental custodial rights.” (Arce, supra, 211 Cal.App.4th at p. 1481.)

“[I]n cases where ‘a deprivation is justified but procedures are deficient, whatever distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure.’ In such cases, … a plaintiff must ‘convince the trier of fact that he actually suffered distress because of the denial of procedural due process itself.’ ” (Watson, supra, 800 F.3d at p. 1139, internal citation omitted; see Carey v. Piphus (1978) 435 U.S. 247, 263 [98 S.Ct. 1042, 55 L.Ed.2d 252].)

“Lack of health insurance … does not provide a reasonable cause to believe a child is in imminent danger.” (Keatessupra, 883 F.3d at p. 1237.)

“[B]arring a reasonable concern that material physical evidence might dissipate … or that some urgent medical problem exists requiring immediate medical attention, the state is required to notify parents and to obtain judicial approval before children are subjected to investigatory physical examinations.” (Mann v. Cty. of San Diego (9th Cir. 2018) 907 F.3d 1154, 1161.)

Secondary Sources

3 Civil Rights Actions, Ch. 12B, Deprivation of Rights Under Color of State Law—Family Relations, ¶ 12B.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil War Civil Rights Statutes, § 113.14 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection, § 35A.29 et seq. (Matthew Bender)