Opinion

Cheesman v. DSHS Region 1/DCFS Childrens Administration

Court
District Court, E.D. Washington
Filed
Jan 27, 2021
Cited by
0 cases
Authority
More cited than 32.3%

holding that it is in the interest of 6 both parents and children that parents have ultimate authority to make medical decisions for their children unless “neutral fact finder” 7 determines, through due process hearing, that parent is not acting in 8 child's best interests

How later courts described this case

  • holding that it is in the interest of 6 both parents and children that parents have ultimate authority to make medical decisions for their children unless “neutral fact finder” 7 determines, through due process hearing, that parent is not acting in 8 child's best interests

Written by the judges who cited it.

The opinion

1

2 FILED IN THE

U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

3 UNITED STATES DISTRICT COURT

Jan 27, 2021

4 EASTERN DISTRICT OF WASHINGTON

SEAN F. MCAVOY, CLERK

5

6 RUTH ANN CONDE CHEESMAN, and No. 1:18-CV-03013-SAB

7 ROY D. CHEESMAN,

8 Plaintiffs, ORDER DENYING MOTION

9 v. FOR SUMMARY JUDGMENT

10 TABITHA A. SNYDER,

11 Defendant.

12

13 Before the Court is Defendant’s Motion for Summary Judgment, ECF No.

14 84. The motion was heard without oral argument. Plaintiffs are representing

15 themselves in this matter. Defendant is represented by Jacob Brooks.

16 In support of her motion for summary judgment, Defendant argues that she

17 is entitled to qualified immunity because no constitutional violation occurred, and

18 if there was a constitutional violation, she is entitled to qualified immunity because

19 (1) a Washington State statute explicitly provides that a Child Protective Services

20 (“CPS”) social worker may authorize medical examinations within the 72 hours a

21 child can be held before a shelter care hearing is required, and (2) Ninth Circuit

22 cases that have held parental notification and/or court order was necessary before a

23 child can be taken for a medical examination involved dramatically different

24 factual scenarios and would not put a reasonable official on notice she was

25 violating Plaintiffs’ rights by acting as she did in this case.

26 Facts

27 In its previous Order granting, in part, and denying, in part, Defendants’

28 Motion for Summary Judgment, ECF No. 53, the Court set forth the applicable

1 facts and will not recite them in detail. The surviving claim asserted against

2 Defendant Snyder involves her decision to take Plaintiffs’ children to the

3 emergency room for a physical examination without first consulting the parents or

4 letting the parents be present in the exam room.

5 Qualified Immunity

6 Defendant is entitled to qualified immunity if, resolving all disputes of fact

7 and credibility in favor of the party asserting the injury, (1) the facts adduced show

8 that Defendant’s conduct did not violate a constitutional right, or (2) the right was

9 not clearly established at the time of the violation. Demaree v. Pederson, 887 F.3d

10 870, 878 (9th Cir. 2018) (quotation omitted) (describing the two-pronged test of

11 Saucier v. Katz, 533 U.S. 194 (2001)). The Court may begin its analysis with either

12 prong. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

13 For a right to be clearly established, “existing precedent must have placed

14 the statutory or constitutional question beyond debate.” Kirkpatrick v. Cty. of

15 Washoe, 843 F.3d 784, 792 (9th Cir. 2016) (en banc) (quoting Ashcroft v. al-Kidd,

16 563 U.S. 731, 741 (2011)). To meet this standard, existing precedent must be

17 “particularized” to the facts of the case, as “immunity protects all but the plainly

18 incompetent or those who knowingly violate the law.” White v. Pauly, __ U.S. __,

19 137 S. Ct. 548, 551–52 (2017) (internal quotation marks and citation omitted).

20 “The purpose of this doctrine is to recognize that holding officials liable for

21 reasonable mistakes might unnecessarily paralyze their ability to make difficult

22 decisions in challenging situations, thus disrupting the effective performance of

23 their public duties.” Mueller v. Auker, 576 F.3d 979, 993 (9th Cir. 2009). While

24 social workers have absolute immunity when they make “discretionary, quasi-

25 prosecutorial decisions to institute court dependency proceedings to take custody

26 away from parents,” they have no such immunity for actions taken while

27 conducting investigations. Beltran v. Santa Clara Cty., 514 F.3d 906, 908-09 (9th

28 Cir. 2008).

1 Clearly Established Constitutional Rights

2 In 2000, the Ninth Circuit made the following observations:

3 The right to family association includes the right of parents to make

4 important medical decisions for their children, and of children to have

those decisions made by their parents rather than the state. See Parham

5 v. J.R., 442 U.S. 584, 602 (1979) (holding that it is in the interest of

6 both parents and children that parents have ultimate authority to make

medical decisions for their children unless “neutral fact finder”

7 determines, through due process hearing, that parent is not acting in

8 child's best interests); see also Calabretta v. Floyd, 189 F.3d 808 (9th

Cir.1999) (holding that “[t]he government's interest in the welfare of

9

children embraces not only protecting children from physical abuse,

10 but also protecting children's interest in the privacy and dignity of their

homes and in the lawfully exercised authority of their parents.”). We

11

agree with the Second Circuit which held, in van Emrik v. Chemung

12 County Dept. of Social Servs., that the “Constitution assures parents

that, in the absence of parental consent, [physical examinations] of

13

their child may not be undertaken for investigative purposes at the

14 behest of state officials unless a judicial officer has determined, upon

notice to the parents, and an opportunity to be heard, that grounds for

15

such an examination exist and that the administration of the procedure

16 is reasonable under all the circumstances.” 911 F.2d 863, 867 (2nd Cir.

1990). Barring a reasonable concern that material physical evidence

17

might dissipate, see Schmerber v. State of Cal., 384 U.S. 757, 770, or

18 that some urgent medical problem exists requiring immediate attention,

the state is required to notify parents and to obtain judicial approval

19

before children are subjected to investigatory physical examinations.

20

Moreover, parents have a right arising from the liberty interest in

21 family association to be with their children while they are receiving

22 medical attention (or to be in a waiting room or other nearby area if

there is a valid reason for excluding them while all or a part of the

23

medical procedure is being conducted). Likewise, children have a

24 corresponding right to the love, comfort, and reassurance of their

parents while they are undergoing medical procedures, including

25

examinations—particularly those, such as here, that are invasive or

26 upsetting. The interest in family association is particularly compelling

at such times, in part because of the possibility that a need to make

27

medical decisions will arise, and in part because of the family's right to

28 be together during such difficult and often traumatic events.

1 Wallis v. Spencer, 202 F.3d 1126, 1141-42 (9th Cir. 2000).

2 In a footnote, the Wallis court noted:

3

We note that the claims of each family member must be assessed

4 separately. Here, nothing in the record before us suggests that Becky

Wallis was anything other than a fit and loving mother. As the Third

5

Circuit recently held, a state has no interest whatever in protecting

6 children from parents unless it has some reasonable evidence that the

parent is unfit and the child is in imminent danger. Croft, 103 F.3d at

7

1125. The government may not, consistent with the Constitution,

8 interpose itself between a fit parent and her children simply because of

the conduct—real or imagined—of the other parent.

9

10 Id. at 1142, n.14.

11

Discussion

12 Defendant argues that because a Washington statute authorizes a medical

13 examination, no constitutional violations occurred. The Court disagrees. The

14 statute in question provides for “routine medical and dental examination and care,

15 and all necessary emergency care.” Wash. Rev. Code § 13.34.060. The record is

16 clear that the purpose of the examination was for investigatory purposes, not for

17 routine medical and examination care.

18 Defendant asserts she did not notify Plaintiff Ruth Ann Cheesman because

19 she believed Plaintiff did not show any willingness to protect her children from

20 Plaintiff Roy Cheesman’s abuse. Whether her decision to not notify Plaintiffs was

21 reasonable or justified because of exigent circumstances is for the jury to decide.

22 Moreover, it is immaterial that less egregious procedures than those

23 identified in Wallis were used during the examination of Plaintiffs’ children. See

24 Mann v. Cty. of San Diego, 907 F.3d 1154, 1160-61 (9th Cir. 2018) (“A parent’s

25 due process right to notice and consent is not dependent on the particular

26 procedures involved in the examination, or the environment in which the

27 examinations occur, or whether the procedure is invasive, or whether the child

28

1 demonstrably protests the examinations. Nothing in Wallis or Greene suggests that

2 the Fourteenth Amendment liberty interest only applies when a magnifying scope

3 is used. (quotation omitted) The amount of trauma associated with a medical

4 examination, particularly for young children, is difficult to quantify and depends

5 upon the child’s developmental level, previous trauma exposure, and available

6 supportive resources, among other factors. Given this reality, a parent’s right to

7 notice and consent is an essential protection for the child and the parent, no matter

8 what procedures are used.”).

9 Defendant is not entitled to qualified immunity because at the time of the

10 incident in question, it was clearly established a state official violates a parents’

11 Fourteenth Amendment substantive due process rights when it causes medical

12 examinations to be performed without notifying the parents about the examinations

13 and without obtaining either the parents’ consent or judicial authorization.

14 Mediation

15 In September 2020, the Court struck the November 16, 2020 trial date due to

16 the pending Motion for Summary Judgment and COVID-19 restrictions on jury

17 trials. Those restrictions continue to exist. Before the Court sets a trial date, it will

18 order that the parties participate in mediation. The parties can select their own

19 mediator, or they can use a magistrate judge or other district court judges in the

20 Eastern District of Washington. Within two weeks from the date of this Order, the

21 parties shall file a status certificate with the Court indicating which option they

22 have decided to use.

23 //

24 //

25 //

26 //

27 //

28 //

1 Accordingly, IT IS HEREBY ORDERED:

1. Defendant’s Motion for Summary Judgment, ECF No. 84, is DENIED.

2. The parties are ordered to participate in mediation. Within ten (10) days

from the date of this Order, the parties shall file a joint status certificate indicating

their plan and schedule for mediating this matter.

IT IS SO ORDERED. The Clerk of Court is directed to enter this Order

and forward copies to Plaintiffs and counsel.

DATED this 27th day of January 2021.

I

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Shockey Ere thar

Stanley A. Bastian

United States District Judge

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ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT ~6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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