A case decided November 10, 2009 by the Ninth Circuit Court of Appeals could have an enormous impact on fathers’ rights to their children. (Note: The case is not yet published, so I can’t provide a link to it.) It holds that even a divorced father with no right of physical custody must be given the opportunity to have custody of his child before a child protective agency can place it in foster care. Failure to do so by a county child protective agency can subject the county to a suit for damages by the father under the federal civil law governing deprivation of constitutional rights.
To put it bluntly, this is a huge win for non-custodial parents.
The opinion in Burke, et al vs. County of Alameda California, et al now governs everyone within the jurisdiction of the Ninth Circuit which encompasses California, Alaska, Washington, Oregon, Hawaii, Idaho, Arizona, Nevada, Montana and the territories of Guam and the Northern Marianna Islands. Unless overturned by the United States Supreme Court, Burke is binding precedent throughout the Ninth Circuit.
The Ninth is the largest federal circuit and one of the most influential on the others. Of course the opinion in Burke doesn’t govern cases in other circuits, but, given that it was a case of first impression (i.e. a similar case had never been decided before by that circuit) there, it may well be looked to by other circuits in deciding similar cases. It may also be looked to by the Supreme Court should a similar case reach that level.
David and Melissa Burke lived together and apparently were married. Melissa’s 14-year-old daughter “B.F.” lived with them. She was the natural daughter of Melissa and Clifton Farina who had divorced some years before. David was her stepfather and Clifton was a non-custodial dad. Frustratingly enough, the opinion doesn’t tell us whether Clifton had an order of visitation, but it seems that he did not because the opinion says that he had no right of physical custody. Nevertheless, he saw his daughter fairly often even though B.F. testified that his new wife didn’t like her and being around her was uncomfortable for the girl. Melissa had sole physical custody of B.F.
When B.F. complained to an Alameda County Sheriff’s officer that David hit her repeatedly and often fondled her breasts, the officer, without a warrant, removed her from the Burke home and placed her with the county child protective services agency. CPS in turn placed her in some form of protective care.
David, Melissa and Clifton Farina sued Alameda County and the sheriff’s deputy under federal statute 42 U.S.C. 1983 which allows civil suits against municipal and state entities which “under color of law” deprive someone of their constitutional rights. The trial court granted the county’s motion for summary judgment, holding that neither the Burkes nor Farina had any claim against the county on which they could prevail at trial. The Ninth Circuit agreed that the Burkes had no claim and that the sheriff’s deputy was immune from suit.
But the circuit court reversed the trial court as to Clifton Farina. It said that, even though he had no right of physical custody, Alameda County could not lawfully ignore Clifton as a possible custodian of B.F. Failure by the county to “explore the possibility of putting B.F. in his care” violated his constitutional right to a familial relationship and association with his daughter. His case was returned to the trial court so a jury could hear and decide his claim for damages against the county.
On this blog, both Glenn and I have written about the outrageous preference on the part of CPS agencies for foster care over father care. Those agencies routinely bypass fathers altogther and place children in foster care. I reported on an Urban Institute study that showed that, even though CPS agencies know who the father is in some 88% of cases that come before them, attempts to contact him are made in barely over half those cases. Glenn has written about a girl to whom Orange County, California lied repeatedly over many years, solely to keep her from her father and in foster care.
In short, after this case, CPS agencies can no longer do that without getting sued. The Burke opinion is not clear on exactly what a county must do to comply with it. But as I see it, they’ll have to make diligent efforts to locate the father and assess whether his care would be superior to that of a foster home. If it would be, he would get custody. In short, when taking a child from its custodial parent due to abuse or neglect, a state within the Ninth Circuit’s jurisdiction may no longer simply ignore the non-custodial parent.
Thanks to Ned for the heads-up.
Lisa Scott’s RealFamilyLaw.com
Shared Parenting Advocate/Family Law Attorney Lisa Scott’s RealFamilyLaw.com exposes the truth about what is happening in our family law system. Lisa, the all-time leader in appearances on His Side with Glenn Sacks, says that she was “tired of having her stuff rejected by elitist bar publications and politically-correct newspapers” and decided to start her own website. RealFamilyLaw.com