Cheesman v. DSHS Region 1/DCFS Childrens Administration et al, No. 1:2018cv03013 - Document 100 (E.D. Wash. 2021)
Court Description: ORDER DENYING 84 MOTION FOR SUMMARY JUDGMENT. Signed by Chief Judge Stanley A Bastian. (TR, Case Administrator)
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’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 1:18-cv-03013-SAB 1 ECF No. 100 filed 01/27/21 PageID.1121 Page 3 of 6 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 important medical decisions for their children, and of children to have those decisions made by their parents rather than the state. See Parham v. J.R., 442 U.S. 584, 602 (1979) (holding that it is in the interest of both parents and children that parents have ultimate authority to make medical decisions for their children unless “neutral fact finder” determines, through due process hearing, that parent is not acting in 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 children embraces not only protecting children from physical abuse, but also protecting children's interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.”). We agree with the Second Circuit which held, in van Emrik v. Chemung County Dept. of Social Servs., that the “Constitution assures parents that, in the absence of parental consent, [physical examinations] of their child may not be undertaken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents, and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances.” 911 F.2d 863, 867 (2nd Cir. 1990). Barring a reasonable concern that material physical evidence might dissipate, see Schmerber v. State of Cal., 384 U.S. 757, 770, or that some urgent medical problem exists requiring immediate attention, the state is required to notify parents and to obtain judicial approval before children are subjected to investigatory physical examinations. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, parents have a right arising from the liberty interest in family association to be with their children while they are receiving 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 medical procedure is being conducted). Likewise, children have a corresponding right to the love, comfort, and reassurance of their parents while they are undergoing medical procedures, including examinations—particularly those, such as here, that are invasive or upsetting. The interest in family association is particularly compelling at such times, in part because of the possibility that a need to make medical decisions will arise, and in part because of the family's right to be together during such difficult and often traumatic events. ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 1:18-cv-03013-SAB ECF No. 100 filed 01/27/21 PageID.1122 Page 4 of 6 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 separately. Here, nothing in the record before us suggests that Becky Wallis was anything other than a fit and loving mother. As the Third Circuit recently held, a state has no interest whatever in protecting 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 1125. The government may not, consistent with the Constitution, interpose itself between a fit parent and her children simply because of the conduct—real or imagined—of the other parent. 4 5 6 7 8 9 10 Id. at 1142, n.14. 11 12 Discussion 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 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 1:18-cv-03013-SAB ECF No. 100 filed 01/27/21 PageID.1123 Page 5 of 6 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. Mediation 14 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 // ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 1:18-cv-03013-SAB ECF No. 100 filed 01/27/21 PageID.1124 Page 6 of 6 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Defendant’s Motion for Summary Judgment, ECF No. 84, is DENIED. 3 2. The parties are ordered to participate in mediation. Within ten (10) days 4 from the date of this Order, the parties shall file a joint status certificate indicating 5 their plan and schedule for mediating this matter. 6 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order 7 and forward copies to Plaintiffs and counsel. 8 DATED this 27th day of January 2021. 9 10 11 12 13 14 Stanley A. Bastian United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6
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