Sixth Circuit Ruling Prompts Tennessee DCS to Stop Removing Endangered Children from Homes Without a Formal Hearing.

Submitted by Charlton Stanley (aka Otteray Scribe), Guest Blogger

Tennessee Department of Children's Services Logo
Tennessee Department of Children’s Services Logo

6th Circut logo

On an August afternoon in 2008, Hickman County, TN resident Robert Andrews was working on a trailer in his yard when two deputy sheriffs pulled up in front of his house, along with three caseworkers from the Tennessee Department of Children’s Services. They approached Mr. Andrews and asked permission to go inside his home. They did not have any kind of warrant or court order, so Andrews told them they did not have permission to enter his home.

Despite his refusal, all three caseworkers and one of the deputies entered the home and searched the place. They also took each of his four children aside for interviews out of his earshot. Then the officials left. Neither Andrews nor his wife, Patti, was ever accused of a crime in connection with the visit. They were not afforded the opportunity to contact a lawyer or have a lawyer present for the interrogations of the children. At no time before or since that incident was any member of the Andrews family ever accused of any crime in connection with that visit.

In March 2002, a police officer in Cuyahoga County, Ohio kicked in Nancy Kovacic’s door, allowing caseworkers to enter her home and seize her two children. The children were placed in foster care, where they stayed 10 months. There were no criminal charges of any kind against Nancy Kovacic. Her attorney, Jay Crook, told reporters, “Caseworkers can’t just make a judgment call and say, ‘Well, I don’t like this, and with the power of the state, I’m taking these children,’ ”

The children are now grown and were part of the lawsuit. They report being abused while in foster care. They have been in therapy for several years due to the trauma of being removed from their mother. Mr. Crook added, “Without that neutral arbiter, that magistrate, that judge; even over the phone, you have lost all your due process safeguards.”

Those events at the Andrews home led to a lawsuit against the caseworkers. There was also a similar lawsuit from another family in Ohio. Both cases ended up in front of the Sixth Circuit. The U.S. Court of Appeals for the Sixth Circuit used the cases to specify that caseworkers, like police, are agents of the State, and therefore controlled by the Fourth Amendment to the Constitution. This is the first time a Federal appeals court has specified that caseworkers from children’s services departments must abide by the Constitution.

More over the flip, including the full text of both Sixth Circuit decisions.

This issue has bothered me for many years. My former daughter in law was a caseworker with the state children’s services, and she often bragged on how many children she had removed from homes with no probable cause other than some vague complaint and in her opinion the kids were not being cared for properly. That she, of all people, would be the judge of who is a lousy parent is another story for another time. There are a number of really good reasons she became my ex-daughter in law.

But, back to the story at hand. Before the Sixth Circuit ruling, Tennessee caseworkers could decide, sua sponte, to remove a child from a home; however, they were required to petition a court within three days (72 hours) for a judicial hearing on whether the removal of the children was justified. The Sixth Circuit decision makes it abundantly clear that policy is unconstitutional.

Tenn. DCS attorney Douglas Diamond
Tenn. DCS attorney Douglas Diamond

The Tennessee DCS’s lead counsel, Douglas Diamond, says it is his opinion that caseworkers can no longer remove a child from a unless there is a full formal court hearing. He did say there may be “exigent circumstances” which are very narrowly defined as an immediate, identifiable risk of harm that is “serious, immediate, physical or specific.” Under Mr. Diamond’s definition, that excludes even a complaint of sexual or physical abuse, for example by medical personnel, even if there are observable injuries visible on a child.

Davidson Co. Tenn. Juvenile Court Judge Sophia Crawford
Davidson Co. Tenn. Juvenile Court Judge Sophia Crawford

Within hours of the Federal court ruling, Tennessee juvenile court judges had a solution to the problem in place. Davidson County (Nashville) Juvenile Court Judge Sophia Crawford said in an interview with Nashville media that she and other juvenile court judges are willing to issue temporary, emergency ex parte orders. Judge Crawford said that could be done over the phone. The emergency order could even be done by email or text message, according to Tennessee juvenile court judges if a caseworkers attested to a child being in danger. In a sweeping move by Juvenile judges across the state, the judges provided DCS officials personal cellphone numbers. They also designated on-call staff members during overnight.

DCS officials declined the offer of the state’s juvenile court judges, apparently on the instructions of DCS lead counsel Douglas Diamond.

Judge Crawford is quoted as saying,

“Myself and magistrates are available on a 24-hour basis to address any problems or questions that arise as the department works to protect children. We’ve gone over and above by reminding them (DCS) we are available on a 24-hour basis for any issue that requires a court order of protection of children. As a juvenile court judge, I feel comfortable that we can do what we need to, but I don’t have any control over the policies and procedures of the department.”

One local attorney who is often appointed as a guardian ad litem in DCS cases, Rob Huddleston, says the Department is being overly cautious. Huddleston says the new rules are already affecting the safety of Tennessee children. He pointed out an instance from just a few days ago where a baby was born addicted to drugs. Previously, it would have been possible to declare a medical emergency and seize the child before it went home. By happy accident, because of a dispute between the parents, Rob Huddleston had already been appointed by the court as guardian ad litem. He was able to get an emergency order from a local judge without DCS intervention. The emergency order will give the court time to schedule a full hearing with the family, DCS and Huddleston as the child’s legal representative. Huddleston was quoted as saying,

“I think they are being overly cautious. I do not agree with how they are reading the Sixth Circuit opinion. I think they are trying to protect caseworkers from liability instead of protecting children. My sense is this policy is going to be short-lived until something tragic happens.”

None of the other states subject to the Sixth Circuit’s jurisdiction have gone as far as Tennessee in limiting DCS caseworkers ability to remove children under dependency and neglect laws.

Since the ruling, Ohio has implemented safeguards similar to the ones turned down by the Tennessee DCS. The Cuyahoga County prosecutor’s office explained that caseworkers can seek emergency temporary orders from a judge. That can be done over the phone or by email. Caseworkers are required to appear in court on the next business day for an emergency in-person hearing. At that hearing the parent(s) have the opportunity to present their side to the judge.

The other states under the 6th Circuit jurisdiction, Kentucky and Michigan, have implemented rules similar to those in Ohio. Tennessee remains the holdout. And as Mr. Huddleston observed, it appears to this interested observer that DCS counsel Douglas Diamond may be more concerned with protecting caseworkers than the kids.

I don’t want to go into much detail here, but I actually have some skin in this game. One of our kids is adopted. A social worker from children’s services had been working with a family with a new baby. While making a home visit, the social worker offered to change the diaper when she noticed the child’s bottom was somewhat deformed. Grabbing the seven-month-old and the mother, they drove to the emergency room. The ER doctor told the social worker and mother there was a mass in there that needed immediate attention and referred them to a major medical center about 90 miles away. The social worker drove her own car, and from all accounts broke every speed limit on the trip because the baby started having seizures in the car. Upon examination at the medical center, the doctors discovered a very large tumor which needed immediate surgery. By that time the father had arrived. The parents said they did not want the surgery, they were going to take the baby home. The doctors and social worker inquired if the objection was due to religious reasons. They said no, they didn’t want to have to spend time away from home. The medical staff told them the baby was not going anywhere and declared a medical emergency. Security arrived and made sure the baby was escorted to surgery immediately. After the surgery, the medical staff informed the parents the tumor was malignant, and they had not been able to remove all of it. A large chunk of the cancerous tumor remained. Because of this, chemotherapy must be started immediately. Again the parents objected, wanting to take the baby home. Again, security intervened, and the state took custody. The parents went home and did not return. Five months later, we found out about the baby who had been abandoned at the Children’s Cancer Clinic. My wife was the Head Nurse of the oncology (cancer) unit at one of the largest hospitals in the state. She was more than qualified to take care of a child with cancer. We got her as a foster child. The prognosis was grim, with no chance of surviving longer than five to eighteen months. Two years later we adopted her. She is now a mature adult, tough, strong-minded and opinionated.

At the time the social worker first discovered the lump, no one knew the tumor had grown so large it was cutting off the child’s ability to eliminate body waste, and circulation was being cut off. She literally had only hours to live at the time of the emergency surgery. Under the new Tennessee DCS rules, she would have died.  Obviously, a balance must be struck between the arbitrary and capricious whims of individual caseworkers and protecting safety and welfare of children. And all the while, protecting the Constitutional rights of everyone concerned. It is a balancing act.

The two Sixth Circuit decisions are at the links below:

Andrews, et al. v. Hickman County, Tenn., et al. (Decided and Filed: December 3, 2012 )

Kovacic et al. v. Cuyahoga County. et al. (Decided and Filed: July 31, 2013)

29 thoughts on “Sixth Circuit Ruling Prompts Tennessee DCS to Stop Removing Endangered Children from Homes Without a Formal Hearing.”

  1. it’s a system run by humans, it cannot be perfect or right every time. all you can do is try not to make the same mistake twice.

    great post OS

  2. Concur Anonymously Yours;

    If the case worker is in a bad mode that week – or seeks to “catch up” to the newsworthiness of another case worker; they are known of flexing beyond the realm of common sense.

  3. Caseworkers have to much credibility….. It’s a value system….. I’ve seen the worst….. Coming from the caseworkers….

  4. Both of the Sixth Circuit cases involve one issue and one issue only: government immunity from doing wrong.

    These cases involve both degress of government immunity when they do wrong:

    1) absolute immunity
    2) conditional immunity

    The court was in no position to change those doctrines under the facts of the cases they reviewed.

    But it understood the current doctrine, the degrees of immunity, and the facts of each case, and applied them well.

    When caseworkers or police violate the constitunion rights of citizens, that is not the fault of the citizen.

    Nevertheless, our current law says government officials can violated our rights without being held accountable, either under absolute immunity, or unded conditional immunity.

    Both cases involved those defenses, and in one case the violation of a citizen family’s rights was washed away under the doctrine of absolute immunity, and in the other case not.

    In both cases the police working with the case workers asserted conditional immunity without success.

    Both cases involved interlocutory appeals, not final judgment appeals.

  5. Chuck,

    A wonderful, balanced guest blog made more compelling because of your daughter’s experience. Child Protective Services in dear to me because I spent the 8 best years of my career immersed in it. CPS workers are generally totally dedicated to their mission. However, sometimes they mis judge a situation and overstep the bounds. In NY all removals of children, except in the direst of emergencies must be ordered through Family Court and this is how it should be. The responsibility to remove a child is a grave one and independent oversight is needed. Then too there are some really bad workers either through temperament or an over self-righteous attitude. That children could be removed in the State of Tennessee based only on the say so of a worker or even supervisor is the wrong way to run the system and guarantees injustice. This is why this is a good ruling.

    In my personal experience, with literally hundreds of removals, I never ran into a situation that called for immediate action without court approval, yet I am aware of such situations occurring. Usually in a situation like that a CPS lawyer will get in touch with a judge to get a removal order. There are time when I had to go in with my worker and police backup to enforce a removal order.

    A problem in NYC in CPS would occur after a much publicized case had reached the media. We would sometimes get direct orders from the Commissioner’s Office to remove in a given instance. I always hated that because often it was the politics and CYA of the administration. I had one situation where my worker and I refused such an order on the grounds that the case didn’t warrant removal. They merely sent in others to do the job. The children were in foster care for at least 6 months before the case was adjudicated as unfounded.

    After many years of politician’s derision of Civil Service their are many who unknowingly deride the system. The truth is that the civil service system often protects the public. The reason for this is that if you know the rules and regulations guiding your job, you can’t be fired by an Administration that is awash in political expediency. In the case I mentioned, backing my worker I could defy the Commissioner and not suffer any consequences because I was following the regs.

    There is, however, another issue that plagues Child Protective Services. In this era of government by anti-taxation demagogues, the Foster Care System is underfunded everywhere and sometimes a child is worse of in the care of the State. Many people simply do not get the concept that you get what you pay for. Many others could care less about abused and neglected children because they generally come from poorer backgrounds and/or are people of color. You’ve made an excellent starting point for a discussion that is complex and nuanced. Bravo!

  6. Ninth Circuit cases changed the landscape where I practice in the late 90s. As child welfare agencies are county operated, the response to the changes in the law have varied. However, they generally have implemented warrant procedures when immediate action seems prudent, but exigent circumstances may not exist.

  7. When it comes to protecting children if we must err let it be on the side of protecting the child. However, I’m not condoning the overreach of those with some governmental authority, such as state employed social workers, parole officers and the like. A little bit of power sometimes corrupts those with a lack of morals.

  8. Laser,
    As you know, my oldest son is a physician. I asked him one day why he thought she had survived when there is an expected 100% fatality rate for that particular cancer. Without even looking up from what he was doing, he replied, “Because she is too damn stubborn to die.”

  9. Kudos to you Otteray; for telling the person tale that endears U.S. all more to you (as you writing, wit and character exhibited had me already as a fan).

    Your daughter’s life was saved by good people going above and beyond.

    KUDOs to your wife and your daughter’s indomitable will to live.

  10. Courts in every state are set up to hear requests for warrants for arrest on short notice, including wee hours of the night in some places. There is room for kids in this matrix. A case worker is a “state actor” under Title 42 United States Code Section 1983 and may be subject to suit for damages, for declaratory judgment and injunctive relief.

  11. This subject is near and dear to me.

    Thanks Otteray.

    One time a friend of mine had a son who had been hit in the eye with a baseball. The incident happened during school hours and was recorded where the kid was taken to the hospital.

    His mother was a well known nurse.

    A few days later, while walking into her house with her boyfriend, a rude/ crude neighbor asked the nurses boyfriend to come to a party that night and point blank said that “c–t” of yours is note invited; right in front of the nurse.

    When the boyfriend defended his girl and told the girl that he wouldn’t go to a party or meal or anything with the snooty (but extremely good looking spoiled rich brat); she responded that I’m calling CPS and reporting you for beating her child.

    The guy was arrested and the kid taken away.

    Even with the nurses father being a Colonel. Judges, Doctors and a very Very well known politico signing letters of reasoning to CPS and such. Combined with the fact there was a report of the from the school and the hospital of how the black eye occurred. AND multiple witnesses to who made the threat and verification of the call coming from the spoil brats home.

    It was a week and $40,000 in legal fees before the storm calmed;
    and everything was returned to semi-normal.

    The nurse had to move away from the family home of 3 generations.

    Again – thanks Otteray!

    We DO need a formal process to make sure such a dramatic change in the status quo of a family dynamic is called for.

    There should also be a formal process citizens can call upon;
    when CPS is being derelict of duty.

  12. Actually, I like that we have government to protect children from brutal, violent parents, even if it “stifles their courage.”

  13. Great job OS!
    I agree that while we must make sure the rights of the parents are protected, when you have children involved, additional steps or procedures must be allowed when there is a risk of danger or damage to the child.

  14. Considering your own skin in the game (both child and former daughter-in-law), this is a remarkably balanced presentation. Tennessee needs to rethink the matter.

  15. I grew up hearing my father talk about the children he came into contact with as a social worker with our child protective services. It’s a tough line to walk, folks, and it shouldn’t just be up to the caseworker’s discretion.

  16. Great post! The courts can be righteous but if a government bureaucrat w/ the power to take away your children is not righteous, you are SCREWED. The more government, the more abuse of power. “We’re from the government and we’re here to help.” I applaud the courage of the caseworker who saved your daughter. Unfortunately, bureaucracies do not foster true courage, they stifle it.

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