Court backs DHHR over mom

CHARLES TOWN – A federal judge has granted a motion for summary judgment in favor of the Department of Health and Human Resources in the case of an area woman whose children were seized by Berkeley County Child Protective Services after it was learned that one of them had fallen behind on immunizations.

[cleeng_content id="751697390" description="Read it now!" price="0.49" t="article"]In 2009, two of the biological children of Ranson resident Amanda Underwood, along with her stepchild, were seized in 2009 following anonymous reports of abuse. Though a subsequent CPS investigation concluded that the allegations were unfounded and rated the household in the lowest category of risk for abuse and neglect, a subsequent investigation found that one child was behind on scheduled immunizations.

Amanda Underwood

Amanda Underwood

It was on that basis that Circuit Judge John Yoder agreed to sign an order granting temporary custody of the children to the DHHR. Underwood later agreed to plead guilty to medically neglecting her children, though she says she was under duress, not having seen her children in weeks and believing the only way she could see them again was to plead guilty.

Federal Judge Joseph Goodwin’s opinion rested primarily on federal deference to state court judgments on issues involving state law, federal immunity granted to state officials acting in an official capacity and the timing with which complaints of legal and constitutional violation were raised.

Last month, Underwood filed a notice of appeal with the Fourth Circuit of Appeals. Neither Underwood’s attorney nor attorneys for the DHHR could be reached.

Goodwin ruled that most of Underwood’s claims against the DHHR were barred by the immunity of state governments from suit in federal court contained in the 11th Amendment.

Goodwin also found that Underwood’s claims of due process violations were precluded from federal review since the Supreme Court of Appeals had already ruled that they were not violated. Federal courts often defer to the judgement of state courts on matters of state law. The state Supreme Court’s ruling had reversed an earlier ruling by Yoder that Underwood’s due process rights had been violated by the DHHR, while upholding the termination.

As the Spirit previously documented, parents appealing custody terminations in West Virginia have an extremely low success rate, with only 1.3 percent of terminations being reversed in 2011. Further, oral arguments were heard by the court in only 2.6 percent of such cases, with the rest being denied in brief memorandum decisions, most of which contain passages that are identical between many different cases. The decision in Underwood’s case was a memorandum decision.

Goodwin further declined to apply the “public interest exception” to the doctrine of deferring to state court rulings when state laws are at issue.

While he noted several issues he called “very concerning” – including that Underwood was not informed of, present for or represented by counsel at the original removal hearing; that there was never a finding that the children were in imminent danger; that she was never informed of or waived her right to a preliminary hearing; and that the children were taken back into custody without a hearing – he said they were “not enough for me to disturb the considered judgment of [the state Supreme Court.]”

Goodwin also dismissed Underwood’s Fourth Amendment claims against CPS caseworker Mary Carper, finding that the right to protection from unreasonable search and seizure did not apply to the seizure of children.

“To the extent Underwood claims harm from her children being taken into allegedly illegal custody and unable to leave [DHHR] custody, this claim fails as a matter of law. The Fourth Amendment right to be free from unreasonable government seizures is a personal one,” Goodwin wrote, citing precedent stating that fourth amendment rights are “personal rights” that she could not assert on her children’s behalf.

“If Underwood intended to state a claim that her Fourth Amendment rights were violated by Carper’s threat of arrest, this claim fails because Underwood was not seized,” he concluded.

Goodwin also dismissed Underwood’s claim that the DHHR is in violation of a consent decree arising from the case of Gibson v. Ginsberg, a 1979 class action lawsuit filed against the Department of Welfare, the DHHR’s precursor. He affirmed the prior ruling of a federal judge that the consent did not apply to Underwood’s case since the children were not yet born in 1979, when the case occurred.

Underwood had also challenged the constitutionality of the state’s abuse and neglect statutes both on their face and as applied in her case, since there had never been a finding that she was an unfit parent and that the only basis for finding that the children had been neglected was her decision to plead guilty to medical neglect.

“Whether or not any particular act of a parent meets the requirements of abuse and neglect is a legal determination to be made by the court, not the parent, particularly a parent who is under duress due to the removal of her children by the state,” her complaint argued.

Goodwin found that the statute is constitutional because it “requires clear and convincing evidence to support a finding that a child is abused or neglected.”

He also ruled that Underwood’s decision to plead guilty had removed the state’s burden to prove that abuse or neglect had taken place, and that the seizure was therefore constitutional.

“[The DHHR] did not introduce evidence that Underwood failed to vaccinate her children for some reason other than a lack of financial means because Underwood did not assert her due process rights in this hearing,” Goodwin wrote.

Goodwin also dismissed Underwood’s claim that several DHHR employees had negligently and wantonly inflicted emotional distress, deferring to the decision of the State Supreme Court.

The Fourth Circuit Court of Appeals has yet to decide whether it will agree to hear Underwood’s case.

 

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