U.S. District Judge Justin Walker issued a blistering ruling against qualified immunity for a Kentucky Cabinet of Health and Family Services caseworker and a deputy on July 18. They participated in the illegal strip-search of children whose mother went to get muffins while her children slept in her car on a cool day in 2017. He wrote:
Act One: An “attentive and loving” mother gets muffins for her children. Act Two: There’s a knock on her door and a threat by the government to take away her children. Act Three: Her children are strip searched without cause. America’s founding generation may never have imagined a Cabinet for Health and Family Services. But they knew their fair share of unwelcome constables. And they added a Fourth Amendment to our Constitution to protect against this three-act tragedy.
The children were harassed by child welfare agents after Holly Curry ran into a store to get muffins on the way to karate class and she left her children in a locked car for five to ten minutes. A do-gooder called the police, and when Curry returned to her car, she was informed by the officer that child welfare would be called and a report made. Then the nightmare began. Caseworker Jeanetta Childress and Deputy Michael Furnish forced their way into a private home, without a warrant, under threats of harm to the family, which ended in all six of the Curry children being strip-searched by strangers to “inspect their genitals.”
The judge’s ruling detailed the horror.
Childress and Furnish entered the home.Childress made “inappropriate” comments about the Currys’ family size and religious beliefs. Childress interviewed the two oldest children in a bedroom, separately, while Furnish waited in the hallway. Holly stayed with the rest of the children in another part of the house. At one point, Holly tried calling her husband, but Childress sat on her phone. After the interviews, Childress told Holly that she needed to examine the children for signs of physical injury. Holly and many of the children were crying. Holly and Furnish were present when Childress conducted the searches. Furnish talked to some of the children as Childress examined them. This examination included inspecting each child’s genitals. Of course, state actors cannot target people for extra scrutiny based on their sincerely held religious beliefs.
The initial report was marked “unsubstantiated.” Nonetheless, Childress called both Holly and Josiah when she finished the investigation. Childress told Josiah, “If we ever get a call against your family again, bad things will happen to you and we’ll take your children.”Then, she called Holly and again threatened to remove the children.
Judge Walker was not amused by the illegal behavior of the Kentucky child welfare worker and sheriff’s deputy.
Here, Childress and Furnish had (a) no evidence that removing the Curry children from their parents was in their best interests; (b) no evidence the Currys were unable or unwilling to protect their children; (c) no evidence any of the children were facing death, serious injury, or sexual abuse; (d) no evidence the Currys had repeatedly inflicted physical or emotional harm on their children; and (e) no evidence the children were in immediate danger due to their parents’ refusal to care for them. In other words, not a single statutory prerequisite for an emergency custody order existed, much less the required combination.
Instead, Childress and Furnish knew only two things about the Currys, and both things cut against the grounds for a custody order. First, they knew the Currys had no history with social services. And second, they knew the Curry children had been utterly unharmed while waiting in their climate-controlled car for the time it took Holly to run in a coffee shop. In that situation, no reasonable officer or social worker would think she could get an ex parte custody order.
Under these facts, a jury could find that Holly’s consent was coerced. And clearly established law prohibited Childress and Furnish’s conduct. In 1998, the Sixth Circuit held that an officer’s baseless threat to take a suspect’s child “constituted an objectively improper police action.” Thus, qualified immunity doesn’t shield either Childress or Furnish for entering the Currys’ home without a warrant.
It’s about time that judges started cracking down on violations of due process by child welfare agents. This is not a one-off, but a regular practice that goes completely unchallenged most of the time. The “emergency order” that Childress threatened to get is what reporters have found in Kentucky to be pre-signed, illegal orders, in which no judge is actually consulted before the agents snatch children from their homes.
It is a practice that’s been widely used in Kentucky and highly illegal, but if no one is watching, they get away with it almost every time.
WDRB broke the story of Kentucky’s child welfare agents using the pre-signed orders to take children.
“The system that is currently set up allows for the social workers to call an on-call judge on the phone and then fill out the order themselves, a blank order with a judge’s signature on it,” attorney Karen Faulkner said in an interview before the March 15 policy change. “Children are being illegally taken from their home without judges’ proper authority.”
In some cases, attorneys and some judges claim cabinet workers have used blank copies of the pre-signed child removal orders to take kids from their parents, only later filling in the allegations and other items on the order. The judges and attorneys for the parents don’t see the orders until a hearing three days after the child has been removed.
It’s perhaps lucky that Curry did not insist on a warrant and allowed the trampling of her Fourth Amendment rights in her house, because if Childress had gotten one of the illegal emergency orders, she would have taken the children and the Currys would still be fighting in court.
There is a cancer spreading throughout child welfare agencies across this country and it’s only getting worse. If you have had your rights violated by the Kentucky Cabinet of Health and Family Services, email [email protected]