Page 1 of 1

No county immunity; non-custodial parent's rights

Posted: Tue Apr 06, 2010 11:50 pm
by LindaJM
David Burke v. County of Alameda, 08-15658, 11-10-2009

Ninth District Court of Appeals

A non-custodial father, Clifton Farina, may sue the county because he was not contacted to take custody; instead the county detained his teenage daughter who had been abused by her step-father.

"The intrusion on Farina’s right of familial association
presents us with a question of first impression because B.F.
did not reside with Farina. In Brittain v. Hansen, this circuit
recognized that non-custodial parents have a reduced liberty
interest in the companionship, care, custody, and management
of their children. 451 F.3d 982, 992 (9th Cir. 2006). The “interest
is unambiguously lesser in magnitude than that of a parent
with full legal custody.” Id. Although Melissa and Farina
shared joint legal custody of B.F., the record indicates that
Melissa had sole physical custody. However, even if Farina’s
interest in B.F.’s companionship was somehow reduced, he
was not without any interest in the custody and management
of B.F. We therefore extend the holding in Wallis to parents
with legal custody, regardless of whether they also possess
physical custody of their children."

Also, the county is not immune.

"...local government units are not entitled to
the qualified-immunity defense, Hervey v. Estes, 65 F.3d 784,
791 (9th Cir. 1995)"

Re: Imminent Danger

"To take a child into protective custody
without a warrant, the officer must have reasonable
cause to believe that harm will occur in the period of time it
would take to procure a warrant and remove the child from
the home. See Rogers v. County of San Joaquin, 487 F.3d
1288, 1294-95 (9th Cir. 2007); see also Mabe, 237 F.3d at

"On the question of imminence, we find Mabe, 237 F.3d at
1104-05, to be particularly instructive. In Mabe, the inappropriate
sexual touching, somewhat similar to the conduct in
this case, occurred only at night and had not occurred in the
month prior to removal of the child. Id. In addition, there was
a four-day delay between the social worker’s interview with
the child in the home and the eventual removal. Id. During
that interview, the social worker obtained all of the information
that justified the removal four days later. For the Mabe
court, the delay, due entirely to the defendant’s actions, was
a significant indication that the degree of imminence required
to justify warrantless removal was absent. Id."