California Civil Jury Instructions (CACI) (2017)

3051. Unlawful Removal of Child From Parental Custody Without a Warrant—Essential Factual Elements (42 U.S.C. § 1983)

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3051.Unlawful Removal of Child From Parental Custody Without
a Warrant—Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] wrongfully removed
[name of plaintiff]’s child from [his/her] parental custody because [name
of defendant] did not have a warrant. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] removed [name of plaintiff]’s child from
[his/her] parental custody without a warrant;
2. That [name of defendant] was performing or purporting to
perform [his/her] official duties;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2016
Directions for Use
This instruction is a variation on CACI No. 3021, Unlawful Arrest by Peace Offıcer
Without a Warrant—Essential Factual Elements, and CACI No. 3023,
Unreasonable Search—Search Without a Warrant—Essential Factual Elements, in
which the warrantless act is the removal of a child from parental custody rather
than an arrest or search. This instruction asserts a parent’s due process right to
familial association under the Fourteenth Amendment. It may be modified to assert
or include the child’s right under the Fourth Amendment to be free of a warrantless
seizure. (See Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455,
1473−1474 [150 Cal.Rptr.3d 735].)
Warrantless removal is a constitutional violation unless the authorities possess
information at the time of the seizure that establishes reasonable cause to believe
that the child is in imminent danger of serious bodily injury and that the scope of
the intrusion is reasonably necessary to avert that specific injury. (Arce, supra, 211
Cal.App.4th at p. 1473.) The committee believes that the defendant bears the
burden of proving imminent danger. (See Evid. Code, § 500 [“Except as otherwise
provided by law, a party has the burden of proof as to each fact the existence or
nonexistence of which is essential to the claim for relief or defense that he is
asserting.”]; cf. Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091, 80
L.Ed.2d 732] [“Before agents of the government may invade the sanctity of the
home, the burden is on the government to demonstrate exigent circumstances that
overcome the presumption of unreasonableness that attaches to all warrantless
home entries.”].) CACI No. 3026, Affırmative Defense—Exigent Circumstances (to
a warrantless search), may be modified to respond to this claim.
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If the removal of the child was without a warrant and without exigent
circumstances, but later found to be justified by the court, damages are limited to
those caused by the procedural defect, not the removal. (See Watson v. City of San
Jose (9th Cir. 2015) 800 F.3d 1135, 1139.)
Sources and Authority
• “ ‘ “Parents and children have a well-elaborated constitutional right to live
together without governmental interference.’ [Citation.] ‘The Fourteenth
Amendment guarantees that parents will not be separated from their children
without due process of law except in emergencies.” This ‘right to family
association’ requires ‘[g]overnment officials . . . to obtain prior judicial
authorization before intruding on a parent’s custody of her child unless they
possess information at the time of the seizure that establishes “reasonable cause
to believe that the child is in imminent danger of serious bodily injury and that
the scope of the intrusion is reasonably necessary to avert that specific injury.”
[Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1473, internal citations
omitted.)
• “ ‘The Fourth Amendment also protects children from removal from their
homes [without prior judicial authorization] absent such a showing. [Citation.]
Officials, including social workers, who remove a child from its home without a
warrant must have reasonable cause to believe that the child is likely to
experience serious bodily harm in the time that would be required to obtain a
warrant.’ Because ‘the same legal standard applies in evaluating Fourth and
Fourteenth Amendment claims for the removal of children,” we may “analyze
[the claims] together.’ ” (Arce, supra, 211 Cal.App.4th at pp. 1473−1474.)
• “While the constitutional source of the parent’s and the child’s rights differ, the
tests under the Fourteenth Amendment and the Fourth Amendment for when a
child may be seized without a warrant are the same. The Constitution requires
an official separating a child from its parents to obtain a court order unless the
official has reasonable cause to believe the child is in ‘imminent danger of
serious bodily injury.’ Seizure of a child is reasonable also where the official
obtains parental consent.” (Jones v. County of L.A. (9th Cir. 2015) 802 F.3d
990, 1000, internal citations omitted.)
• “[W]hether an official had ‘reasonable cause to believe exigent circumstances
existed in a given situation . . . [is a] “question[] of fact to be determined by a
jury.” [Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1475.)
• “Importantly, ‘social workers who remove a child from its home without a
warrant must have reasonable cause to believe that the child is likely to
experience serious bodily harm in the time that would be required to obtain a
warrant.’ ” (Kirkpatrick v. County of Washoe (9th Cir. 2015) 792 F.3d 1184,
1194, original italics.)
• “[A] child is seized for purposes of the Fourth and Fourteenth Amendments
when a representative of the state takes action causing a child to be detained at
a hospital as part of a child abuse investigation, such that a reasonable person
CIVIL RIGHTS CACI No. 3051
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in the same position as the child’s parent would believe that she cannot take her
child home.” (Jones, supra, 802 F.3d at p. 1001.)
• “[A] jury is needed to determine what a reasonable parent in the [plaintiffs’]
position would have believed and whether [defendant]’s conduct amounted to a
seizure.” (Jones, supra, 802 F.3d at p. 1002.)
• “In sum, although we do not dispute that Shaken Baby Syndrome is a serious,
life-threatening injury, we disagree with the County defendants’ assertion that a
child may be detained without prior judicial authorization based solely on the
fact that he or she has suffered a serious injury. Rather, the case law
demonstrates that the warrantless detention of a child is improper unless there is
“specific, articulable evidence” that the child would be placed at imminent risk
of serious harm absent an immediate interference with parental custodial
rights.” (Arce, supra, 211 Cal.App.4th at p. 1481.)
• “[I]n cases where ‘a deprivation is justified but procedures are deficient,
whatever distress a person feels may be attributable to the justified deprivation
rather than to deficiencies in procedure.’ In such cases, . . . a plaintiff must
‘convince the trier of fact that he actually suffered distress because of the denial
of procedural due process itself.’ ” (Watson, supra, 800 F.3d at p. 1139, internal
citation omitted; see Carey v. Piphus (1978) 435 U.S. 247, 263 [98 S.Ct. 1042,
55 L.Ed.2d 252].)
Secondary Sources
3 Civil Rights Actions, Ch. 12B, Deprivation of Rights Under Color of State Law--
Family Relations, ¶ 12B.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection,
§ 35A.29 et seq. (Matthew Bender)
3052–3059. Reserved for Future Use
CACI No. 3051 CIVIL RIGHTS
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