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Here's a new case out of California that doesn't do the dad any good, but it will help dads in the future (Leagle, 5/26/10). It's a Ninth Circuit Court of Appeals opinion, so it affects parents in Washington, Oregon, California, Alaska, Arizona, Hawaii, Montana, Idaho and Nevada. It holds that a father with joint legal custody but with no physical custody (i.e. visitation rights) of his child has a right to be informed by state officials such as the police and child welfare workers when his child may be suffering abuse. Astonishingly enough, in the case reported, no state, county or municipal official informed the father when his daughter complained of sexual molestation by the father of her mother's boyfriend, physical abuse by the boyfriend or the boyfriend's attempt to coerce her testimony. Daniel James and Gail Sherman had a daughter, whom the court's opinion refers to only as C.J. because she's a minor. Sherman had physical custody and James had visitation. Sherman lived with her boyfriend, Shawn Blair. In February, 2003, C.J. complained to her maternal grandmother that Blair's father had sexually molested her, the grandmother reported the allegation to the sheriff's office who reported it to Child Protective Services. CPS interviewed the girl and Blair's father was charged with a criminal offense. Apparently Blair didn't take kindly to that and allegedly hit C.J. as well as Sherman. He also, according to C.J. attempted to coerce her into changing her testimony. During all of that, James was completely unaware that anything out of the ordinary was going on. In other words, over a ten-month period, Sherman didn't tell him, CPS didn't tell him, the Sheriff's Department of Nevada County didn't tell him and the police department of Grass Valley, California didn't tell him. Finally, in December, C.J. told him and James immediately went to court to try to get a change of custody. He got temporary custody, but ultimately the family court gave custody to C.J.'s maternal grandmother. James sued various state, county and municipal officials under our old friend 28 U.S.C. Sec. 1983 for violations of his civil rights, principally, his Fourteenth Amendment due process right "to participate in the care, custody and management" of his child. The trial court ruled that the police and CPS officials had violated his rights, but tossed out his case anyway because up to that time there had been nothing that clearly established those rights. (The concept of qualified immunity in cases in which a state official is a civil defendant is what got the James defendants off the hook. It holds that public officials can only be liable to civil claimants if they violate a right that's well known and well established. That's a sensible ruling. To make public officials pay for violating rights they can't reasonably know exist would clearly place them in an untenable position. Anything they do could result in a "gotcha" lawsuit later.) Still, the opinion gives us a pretty clear picture of the mindset of CPS employees and police in James's case. Think about it; you're a CPS worker and you get a case in which a girl says she's abused by the father of her mother's boyfriend. You've got a choice - to tell the father or not. What does it say about a person whose job is children's welfare but who doesn't inform the father? It turns out that the trial court had something to say about that.
The district court further determined that James's rights were clearly established "on the basis of common sense."
Well, what's "common sense" to a judge and, I suspect, about 90% of the rest of us wasn't "common sense" to CPS workers. Now, let's remember that this is the same Ninth Circuit that ruled last year that a California CPS agency had violated a non-custodial father's rights when it placed his child in foster care without first attempting placement with him. And of course there's the case of a young woman who sued a CPS agency in San Diego for intentionally keeping all knowledge of her biological father from her throughout the course of her life. Add to all that the fact that the Urban Institute has found that CPS agencies across the country routinely fail to check with fathers before placing children in foster care, and you have a pretty good idea of how CPS workers think. And in Daniel James's case, once CPS employees grew concerned about what was going on at Gail Sherman's house, they,
gave her five options for ensuring C.J.'s safety during the molestation trial: make Blair leave the home so that C.J. could remain there; allow C.J. to live with Proano (the grandmother) without any CPS involvement; sign a voluntary agreement with CPS to place C.J. with Proano; sign a voluntary agreement to place C.J. in a foster home; or let C.J. live with her father, James.
In other words, as far as CPS was concerned, what happened was to be mom's decision. They kept information from James so that he couldn't make his own decisions and pursue his own legal remedies, and allowed Sherman to decide. Which is only to say that they allowed the mother to control the father's rights. Say, haven't we seen that before? So the bottom line is this: Daniel James is out of luck. His suit was disposed of via summary judgment based on qualified immunity. But the reason it was disposed of - that public officials couldn't reasonably have known that their actions violated his rights - is now null and void. Now they do know; it's written in black and white by the Ninth Circuit Court of Appeals. So every future father in those states is protected from this particular depredation by CPS. In the Ninth Circuit at least, slowly but surely, fathers are making inroads into the long history of denial of their parental rights by child welfare agencies.

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