March 24, 2015

Appeals Court Lets Arizona Social Workers off the Hook

James R. Mason, III
Senior Counsel

Jim Mason Senior Counsel Jim Mason is a member of HSLDA’s litigation team. He and his wife homeschool their children.
Read more >>

The United States Court of Appeals for the Ninth Circuit excused two Arizona social workers from liability for threatening to take John and Tiffany Loudermilk’s children into state custody if they didn’t immediately consent to a search of their home.

This case began in early 2005 when Child Protective Services (CPS) received an anonymous report that “dad is a handy man” and that there were “exposed wires and missing stair rails” inside the Loudermilks’ home. Sixty-one days later, the assigned caseworker called in sick. Her supervisor, Rhonda Cash, decided “I want to go hit this report of Brenda’s.” Before ever seeing the home she had her trainee call the sheriff’s department, because “it’s necessary at times to call in law enforcement if you have an uncooperative family.”

Soon two social workers, six deputies, and five marked government vehicles descended on the Loudermilks’ home. Rhonda Cash and one of the deputies demanded to be allowed inside the home to confirm that there were no safety hazards. The Loudermilks declined to allow them inside, citing their Fourth Amendment rights, and called HSLDA attorney T.J. Schmidt for assistance.

Schmidt quickly concluded that there was no legal justification for Ms. Cash to enter the Loudermilks’ home based on the two-month-old anonymous report. He spoke to Ms. Cash, her state attorney, and one of the deputies.

The deputy conferred with his sergeant and withdrew his demand to be allowed inside. They did not believe the circumstances amounted to an emergency.

But Rhonda Cash was not deterred. Instead of leaving when law enforcement no longer supported her demand, she escalated the encounter. She told the Loudermilks that she would take their children into state custody if they did not let her in immediately. She said this in the presence of the children.

And her trainee began filling out a Temporary Custody Notice, the form that would have authorized them to seize the children without first asking a judge.

Faced with the choice of losing their Fourth Amendment rights or losing their children, the Loudermilks did what any of us would do—they allowed Ms. Cash to enter their home. Once inside, Ms. Cash confirmed that the alleged safety hazards did not exist—and she looked inside their refrigerator—presumably in search of exposed wiring and missing stair rails.

The Court of Appeals assumed that the social workers violated the Loudermilks’ rights. But it held that they were immune from liability, because Ninth Circuit case law “does not clearly establish that consent to a limited search is involuntary when given after the consenting party has had the opportunity to consult with an attorney.”

This opinion is hard to swallow. The Court is saying that because no Ninth Circuit case has ever dealt with similar facts, the social workers were therefore entitled to believe that the Loudermilks had consented voluntarily because they had spoken to their lawyer. We asked the Court to reconsider, but it declined to do so last week.

This result is deeply disappointing.

It allows CPS workers to continue to coerce parents into cooperating by threatening to take away their children. It endorses their tactic of calling in the police to intimidate parents in their own home. And it sharply discourages parents from seeking legal counsel to find out what their rights are.

Sadly, this all-too-common approach by CPS workers causes real harm to children.

“State officials cause real harmin their quest to protect children, including fear, humiliation, shame, and emotional devastation, not to mention the loss of the children’s and sometimes also their families’ Fourth Amendment rights and the fundamental interests these implicate,” writes Doriane Lambelet Coleman, professor of law at Duke University, in her William and Mary Law Review article, Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment.

This is why we at HSLDA take cases like this one. We do not believe that CPS workers are bad people. And we do not believe that there should never be investigations. But we do believe that those investigations should always show a healthy respect for civil rights.

All too often, we have seen how the system of CPS investigations can needlessly harm children when the investigators do not understand or respect the legal rights of those they investigate. As Professor Coleman summarizes in her article, “[I]n the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help.”

We will be asking the Supreme Court to review the case. Please pray for favor—the Supreme Court only takes about one percent of cases every year. Our petition is due in June.

And if you are not already a member of HSLDA won’t you please consider joining today.

Case Timeline—A post script

The search of the Loudermilks’ home happened on March 9, 2005. If you are wondering why I am still reporting about it, here’s how the case has wended its weary way through the courts:

The case was filed in March of 2006. Defendants moved to dismiss in August of 2006, which the trial court denied in September of 2007. Then discovery took place and the defendants filed a motion for summary judgment in April of 2009, which the trial court denied in April of 2010. The deputies appealed but the social workers didn't. The social-worker part of the case was put on hold while the deputies' appeal was heard. The court of appeals ruled in the deputies' favor on November 1, 2011.  We asked the court to rehear the case, which it denied, then asked the Supreme Court to take the case, which it denied in March of 2012. Back in the trial court before a new judge, the social workers were allowed to renew their motion for summary judgment, which was granted on September 19, 2012. Then we appealed. Briefing was completed in the court of appeals in June of 2013, all according to a schedule dictated by the court, but oral argument was not scheduled by the court until December 12, 2014. Our petition for rehearing was denied on March 16, 2015.