October 3, 2014–San Diego, CA–(UPDATED February 15, 2015 BELOW)–A United States District Judge this week issued a “blistering” Order against San Diego County Child Protective Services workers, and their employer, the County of San Diego, for CPS’s unwarranted removal of the two children of Joanna and Steven Swartwood from their home for two days. Excerpts and analysis from the order granting summary judgment in the case by Judge Thomas Whelan:
“Plaintiffs filed this lawsuit after D.S. and R.S. were removed from their home without a warrant and subjected to medical exams, which included a urine test and examination of their genitalia, without notice to Steven or Joanna.”
“Plaintiffs contend Defendants’ conduct in removing the children, continuing to detain the children, and conducting the medical exams violated their Fourth Amendment and Fourteenth Amendment rights and are suing under 42 U.S.C. § 1983 [and state law.]”
CPS’s Illegal Seizure of the Swartwood Children, Subsequent Illegal Battery of Children
On the afternoon of May, 16, 2011 Ms. Swartwood received a phone call from their children’s daycare alerting Ms. Swartwood to “redness” on her youngest child’s (aged one) face, and that the redness had appeared at about 11:00 a.m. The day care advised the “redness” was caused either by a fall on the day care’s trampoline or an allergic reaction. Mr. Swartwood picked the children up from day care and returned home, where Ms. Swartwood examined the redness and called Kaiser’s nurse line. The nurse advised Ms. Swartwood to take the child to see a physician at the next available appointment, which was the following day, May 17, at 4:30 p.m.
At the appointment the examining physician Dr. Andrea Siano stated the redness appeared to be “inflicted and non-accidental”, and advised the Swartwoods to take the child to the emergency room. The Swartwoods did and the emergency room physician agreed with Siano’s conclusion that the injuries appeared to be “non-accidental.” The physician recommended “further testing” including a cranial x-ray. The Swartwoods discussed the risks of radiation with the physician, who stated he was not alarmed at the injury because the child showed no symptoms other than redness, and that under the circumstances he would not subject his child to the x-ray. Three other pediatricians agreed. The Swartwoods declined further testing and went home. CPS later reported—inaccurately—that the Swartwoods had left the hospital “AMA”—“against medical advice.”
Dr. Siano also reported the marks to Child Protective Services worker Patience Owens, including Ms. Swartwood’s report about the daycare call and timing, as well as information that the Swartwood’s older child had recently been “hesitant” to attend the day care. Owens interviewed the Swartwoods and later stated she then had no suspicions that the injuries were caused by the Swartwoods.
That evening CPS sent a second social worker, Maya Bryson, and three uniformed police officers to interview the Swartwoods. Bryson “demanded” that the Swartwoods wake their children so that she could take photos of them. The Swartwoods contended Bryson
forc[ed] them to “strip their children for her inspection,” and afterward, by forcibly removing the children “with the express intent to have them examined and tested . . . in an attempt to obtain further evidence against the family.”
The Swartwoods complied, waking the children. Bryson instructed the children to undress, whereupon she examined and took photos of their unclothed bodies.
Bryson interviewed the Swartwoods who related to Bryson facts consistent with the daycare report—that the injuries occurred while the children were at daycare, reported by the daycare worker to be caused possibly by a rash or a fall on the trampoline. Bryson asked the Swartwoods why they didn’t take the child to the emergency room “immediately.” Mr. Swartwood stated because other than the redness, “she seemed fine.” Ms. Swartwood stated she did immediately call the nurse line, gave details, and was instructed to make an appointment, which she did. The Swartwoods denied using physical discipline or any other activity which would have led to the injuries while the children were in their care.
Bryson concluded from her interview that the children were in danger with the Swartwoods. Referring to the redness, she wrote that the child
had extensive, serious facial injuries that had been, according to doctors, intentionally inflicted and her caretakers (her parents) could not explain how she got injured.”
Bryson walked outside the home, called a co-worker Wendy Curiel. The two decided both children should be taken into protective custody immediately.
The Swartwoods pleaded with Bryson to call the daycare to confirm they injuries occurred there. Bryson refused. The Swartwoods offered to allow Bryson to deliver the children to their grandparents, but Bryson insisted on taking the children to the Polinsky Children’s Center. She later explained her refusal to make a call to the day care by noting that she was a “standby worker” and that her role was “not to conduct a lengthy investigation which could take numerous hours or even days.”
Now midnight, Bryson took the children to Polinsky—a County “emergency shelter and group home” for children. At 2:00 a.m. the nursing staff examined both children “for things that were contagious or need medical attention immediately.” The older child (aged three–who was not injured) had urine taken for drug testing, and the Polinsky staff taped a plastic bag around the younger child’s genitals to take a urine sample for similar drug testing. Results from both children were negative for drugs.
Both children were given extensive “22-item” full body examinations by Dr. Wendy Wright, a “child abuse specialist,” that included examination “including the children’s genitalia and rectum.” The reports indicate the children were “uncooperative.”
The next day the younger child was sent to a “skeletal exam.” CPS was aware that the parents had specifically declined the examination, but the child was tested anyway, and the results were normal. CPS later claimed Ms. Swartwood had “consented” to the exam. Judge Whelan found this untrue.
CPS was meanwhile at work to determine “whether the children, whose last name is Swartwood, should be returned to their parents care.” Susan Solis, a supervisor for the “Court Intervention Unit”, who assigned the case to Kelly Rollins. Rollins conducted several interviews, and attempted to obtain “consent” from Ms. Swartwood that the County could provide “treatment” to the children in any county facility “if the treatment is recommended” by a physician. Ms. Swartwood agreed, and also agreed to permit the children to be treated by the children’s regular pediatrician. Ms. Swartwood declined permission for the skeletal exam (which the County performed anyway).
Rollins spoke with family members and others who expressed no concern about the Swartwoods injuring their child. Rollins interviewed the day care owners who confirmed the report about the child being injured on the trampoline by a collision with another child’s knee or the netting around the device. The owner added that the child was seen crying after the incident and had a red face immediately after the trampoline incident. Rollins confirmed the child had no marks when she arrived at daycare in the morning.
Rollins and Solis remained unconvinced about the trampoline explanation, and continued to wonder if one of the Swartwoods had grabbed their one-year-old’s face just before entering daycare so that the marks weren’t visible at drop-off, but appeared only later. They spoke with a County lawyer, who interviewed the physicians. Both physicians stated that if the marks were caused by the parents before drop-off the redness would have showed up right away.
Based on the evidence, County counsel decided not to proceed with a juvenile court petition, and the children were returned home. After further inestigation, the daycare eventually lost its license.
The Swartwoods sued the County, Polinsky, and the three CPS workers Bryson, Curiel, and Solis for assault and battery of their children and violation of the family’s state and federal civil rights under various theories. After initial discovery, both the Swartwoods and defendants moved for summary judgment.
The social workers conceded they lacked a warrant to remove the children, but claimed the decision was legal because the children were in imminent danger of serious harm. They argued that the doctors had concluded (inaccurately) that the injuries were “intentionaly inflicted” and the parents “could not explain” how the injuries occurred (inaccurate), did not seek medical attention the same day (inaccurate), left the hospital “AMA” (inaccurate), and were “still considering taking the children back to day care the next day” (inaccurate), that the children were in danger in the Swartwoods’ home.
Judge Whelan disagreed:
The primary problem with Defendants’ argument is that there was no basis to believe Steven or Joanna caused R.S.’s injuries” and that “without such an indication, there is simply no basis for a government official to believe the child is in imminent danger from the parents.”
The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.” Mabe v. San Bernardino Cnty., Dept. of Pub. Soc. Serv.s, 237 F.3d 1101, 1107 (9th Cir. 2001). “Officials violate this right if they remove a child from the home absent 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.” Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007) (citations and internal quotation marks omitted). . . . “The Fourth Amendment also protects children from removal from their homes absent such a showing.” Rogers, 487 F.3d at 1294.
The Judge found that the CPS workers refused to take simple steps to confirm the Swartwood’s report that the injuries occurred at the day care, and noted several inconsistencies in the CPS workers’ reports, such as the parents leaving “AMA.” The court held the social workers to the same standard as police in observing citizen rights—police may not seize a person unless that have probable cause to believe imminent harm. Social workers responsible for protecting children are governed by the same rule.
The court’s detailed analysis is instructive to parents facing a CPS worker and well worth a close read. The take-away is that the children were never in jeopardy in their parents’ care, and that CPS overstepped their roles when substituting their own “armchair quarterbacking” for the parents’ judgment in how to care for their child’s injury. Judge Whelan’s analysis concluded that this was improper invasion of the Swartwoods’ parental rights.
The social workers also argued that they were immune because there was no prior law applying to the specific situation the workers faced—removal when a child suffered “intentional” injuries, and the social worker cannot eliminate the parents as the cause. Judge Whelan disagreed, finding that social workers are responsible for knowing the general nature of the law regarding warrantless removal and imminent danger, even if there is not a case identical to the specific situation they were in. The Swartwoods were only required to prove that the interference with their parental rights was “unwarranted.” The social workers’ argument for a “shock the conscience” standard to establish liability was incorrect.
The Swartwoods also brought suit against the Polinsky center for the medical exams, claiming they were non-consensual invasions of the child’s privacy and the parents’ and children’s rights to one another’s presence and comfort during a traumatic medical procedure. Judge Whelan agreed.
[P]arents and children maintain clearly established familial rights to be with each other during potentially traumatic medical examinations; and second, this right may be limited in certain circumstances to presence nearby the examinations, if there is some “valid reason” to exclude family members from the exam room during a medical procedure.
Judge Whelan’s opinion found that the Polinsky center’s (third) physical examination of the children’s bodies, including “private parts”, was a highly invasive forensic medical examination, and that Polinsky’s conducting the examination without parental consent or presence violated their rights. The County’s excuses that the exams were “brief” and that the parents would “interfere with” the exam were not convincing. The County’s “consent” form signed by Ms. Swartwood also did not hold water because it was misleading, directed at “consent” to conduct a medical procedure—not a forensic examination–and therefore ineffective as “consent.” Judge Whelan characterized the form as “an exercise in misdirection.”
The Swartwoods prevailed on two critical issues. They have stated that with key legal issues now decided, they will enter negotiations with the County and other defendants.
The case exemplifies how poorly-trained and undisciplined social workers can pose serious risks to child safety and well-being. The Swartwood children were never in danger until CPS stepped in with clumsy, thoughtless, indeed gestapo-like tactics. Bryson’s judgment in
removing the children because she “couldn’t eliminate” the parents as criminals is offensive to the most fundamental of our nation’s liberties of innocence until proven otherwise. The cases cited by Judge Whelan were decided fifteen years ago or more. No living American could possibly claim to be unaware of these laws, and that a CPS worker who must live under them claims otherwise indicates a severe problem with San Diego County’s training and oversight of workers such as Bryson, Solis, and Curiel.
Equally as troubling was the diagnosis of Siano and Wright–highly-educated professionals who hold themselves out as “specialists” in forensic medicine for determining the existence of child abuse. Unlike the social workers who lack formal medical or legal training, Siano and Wright are elite, highly trained and operating in a stable, scientific environment with millions of dollars of equipment at their disposal–including even telephones that can call a daycare worker. To see these women make what appears to be leap from diagnosis of physical trauma to a conclusion of “intentional and non-accidental” without interviewing witnesses is the rank amateur logic of a teenage Nancy Drew fan. It is perhaps a caution that just because a professional has acquired specialized education and experience, without a highly-disciplined, critical mind, they are no better thinkers than a Joe Sixpack. In fact, far more dangerous when we trust their defective judgment.
As a result of these state actors’ ignorance—or disregard—of law, the Swartwood children were exposed to three invasive, humiliating, traumatic, and even painful body examinations and separation from their parents. The Swartwoods themselves were subjected to cruel and inhumane invasion, humiliation, and embarrassment through not only the separation and groundless investigation, but also by the disturbance within their extended family and neighborhood. Having three uniformed officers and a child care worker arrive at your front door demanding that your children undress while photographed, then led away without you in official vehicles undoubtedly caused severe stress and humiliation to the entire family–in their own home and neighborhood. Though the intensity only lasted three days, the scars to this family will undoubtedly remain forever.
The Swartwood’s attorney characterized the opinion as “blistering”–we see Judge Whelan’s decision as fair and measured, yet clearly an indictment of San Diego County’s child protective workers and San Diego County’s “widespread culture of deliberate indifference” to family civil rights. If anything Whelan was too kind.
Yet perhaps the principled opinion of a federal judge will finally bring the point home to the County of San Diego that its family and protective services are themselves among the most grotesque offenders of children’s welfare. Indeed, the only players in this story who aren’t criminals** were the only ones who were accused–and the ones who by far suffered the most: The Swartwood family. God bless them, and may God forgive us for tolerating these practices in our communities. We hope that a jury recognizes the horror this family went through and sends a message to the County, Polinsky, and these thoughtless social workers in the strongest and most certain terms.
If you’ve suffered an invasion of your family’s fundamental rights, California Coalition wants to hear from you.
**Bryson and potentially others would appear to have committed severe felonies. 18 U.S.C. s 242 provides:
“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
Color of law actors such as Bryson and others who may be relying on the present policies of United States Attorneys in casual enforcement of the civil rights criminal code should consider that those policies can change with new Unites States Attorneys and Department of Justice administration. Crimes that today are overlooked, tomorrow could be a life sentence. California Coalition is working toward that day, and hopes that a new administration will invigorate respect for citizen rights.
February 15, 2015–San Diego, CA–The Swartwood’s Legal Case Against the County of San Diego Settles; Yet the Trauma May Never Be Repaired
The San Diego Union Tribune reports here that the Swartwoods have settled their case against the County of San Diego for $1.1 million and “major changes” to the way the County of San Diego and The Polinsky Children’s Center conducts medical examinations of children. This is a rare victory for families ensnared in the dragnet of overzealous child protection social workers and medical “forensic child abuse” professionals who, though trained to protect and heal, are perverted into snoops for police.
In the case of the Swartwoods–who were never charged with a crime–the victory is vindication for their dignity and reputation that was trampled in the terror inflicted by county workers trying to manufacture a case, but no amount of money can repair the trauma the entire family suffered. For parents throughout San Diego, it is a victory as well–a strong message to government workers who exploit vulnerable parents to promote their own careers. The county pays its senior child care workers–including Bryson–over $100,000 per year–physicians of course earn much more. A $1.1 million payout might sound like a heavy penalty, but considering that Bryson, Curiel, Siano, Wright, and Solis all faced federal prison sentences for felonies, likely paid nothing out of their own pockets, and still kept their jobs with probably little more than a slap on the wrist, to others the penalty might seem insufficient. Perhaps the county will now divert its generous salary funding toward education in basic constitutional law.
Sadly, none of the “remedies” can fully repair the three days of sheer terror and months of insult and indignity suffered by the entire Swartwood family, yet hopefully the Swartwoods’ undeserved trauma will lead to more responsible policies by child protection workers to support parents in crisis rather than terrorize them.
Blessings to the Swartwood family and their attorneys for standing up for families in San Diego, and across the nation.