I. The Right to Familial Association

In Troxel v. Granville, 530 U.S. 57, 65 (2000), the Supreme Court of the United States recognized that "the interest of parents in the care, custody, and control of their children -- is perhaps the oldest of the fundamental liberty interests." “Parents and children have a well-elaborated constitutional right to live together without governmental interference.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000). “Our cases hold that the Fourteenth, First, and Fourth Amendments provide a guarantee ‘that parents will not be separated from their children without due process of law except in emergencies.’” Keates v. Koile, 883 F.3d 1228, 1236 (2018) (citing Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107–09 (9th Cir. 2001)).

Government agents can, and do, violate the right to familial association in a variety of ways, described below, all of which is actionable under 42 U.S.C. § 1983.

II. Right to Be Free from Warrantless Seizures

Government agents, whether they be social workers or law enforcement, violate the rights of parents and children when they seize and detain children from their parents without parental consent and without a court order.

The only exception is where the government agent possesses information, at the time of the seizure and after reasonable investigation, that establishes reasonable cause to believe that:

    1. the child is in imminent danger of serious bodily injury, and

    2. the scope, degree, and duration of the intrusion are reasonably necessary to avert the specific injury at issue. 

The requirement to obtain a warrant in the absence of parental consent was clearly established as far back as the year 2000 with the decision in Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000). Yet, it may surprise you that government agents, including child protective services social workers and police officers, routinely seize and detain children from their parents without any evidence of exigent circumstances. 

III. Right to Be Free from Acts of Judicial Deception

The constitutional right to be free from the knowing presentation of false or perjured evidence in juvenile dependency proceedings is clearly established. Hardwick v. Cty. Of Orange, 844 F.3d 1112, 1118 (9th Cir. 2017). “No official with an IQ greater than room temperature in Alaska” could claim that he or she did not know that judicial deception violated both state and federal law. Ibid. “Government perjury and the knowing use of false evidence are absolutely and obviously irreconcilable with the Fourteenth Amendment’s guarantee of Due Process. . . There are no circumstances in a dependency proceeding that would permit government officials to bear false witness against a parent.” Id. at 1119. See also Casey N. v. Cty. Of Orange, 86 Cal. App. 5th 1158, 1162, 302 Cal. Rptr. 3d 827 (2022) [“We publish this case for two reasons. First, we reiterate the need for sufficient and appropriate training for all Agency employees. Second, we reinforce the absolute necessity of complete, accurate, and honest reports by the Agency in dependency cases, given the juvenile court’s reliance on the knowledge and expertise of the Agency in making its decisions.”]

The forms of deception can range from the omission (concealment) of exculpatory information in warrant affidavits and court reports submitted in support of the detention or continued detention of children from their parents, which is perhaps the most common form of dishonesty, to outright fabrication of evidence and misrepresentation of facts. 

IV. Right of Parents and Children to Be With One Another During Medical Examinations

The right to family association includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state. Wallis ex rel. Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 1999). In the absence of parental consent, physical examinations of a child may not be undertaken for investigative purposes by state officials without a court order, issued after notice to the parents and an opportunity to be heard. 

Any exception applies where the government agent has a reasonable concern that that material physical evidence might dissipate, or that some urgent medical problem exists requiring immediate attention. However, the general rule is that the state is required to notify parents and to obtain judicial approval before children are subjected to investigatory physical examinations.

Are related, but separate, issue commonly arises when children are subjected to medical treatment after removal from their parents. Parents have a well-established right “arising from the liberty interest in family association to be with their children while they are receiving medical attention.” Wallis, supra, 202 F.3d 1126, 1142. Children “have a corresponding right to the love, comfort, and reassurance of their parents while they are undergoing medical procedures, including examinations.” Id.

 In sum, government agencies are required to: 

     1. notify the parents of a medical examination of their children;

     2. obtain parental consent or a court order in advance of the medical examination; and

     3. permit the parent to be present at the examination.

V. Right to Adequate Care and Safety While In Custody

The Constitution’s Fourteenth Amendment protects a foster child’s interest in social worker supervision and protection. Tamas v. Dep't of Soc. & Health Servs., 630 F.3d 833, 842-843 (9th Cir. 2010). This constitutional right clearly establishes that once the government assumes custody and care of a child, it owes that child a duty to provide reasonable safety and security, and at least minimally-adequate care and supervision, including but not limited to health care.

The ways in which children who are ripped away from their families can suffer horrific injuries and abuse while placed in foster care, in group homes, or in "medically fragile" homes are infinite.