Children's rights violated by invasive medical exams in child abuse investigation, 9th Circuit rules

By Karen Kidd | Nov 13, 2018

SAN FRANCISCO – San Diego County acted unconstitutionally in its removal in 2010 of a couple's children under child abuse suspicion and then subjected the children to invasive medical examinations without their parents' consent, a federal appeals court ruled recently.

In its unanimous 25-page opinion handed down Oct. 31, the U.S. 9th Circuit Court of Appeals three-judge panel concluded San Diego County violated the Fourth Amendment when it failed to obtain a warrant or provide other constitution safeguard to the children of Mark and Melissa Mann. The medical procedures to which the children had been subjected included gynecological and rectal exams at the Polinsky Children's Center, according to the opinion.

Polinsky Children's Center also is a named defendant in the case.

The appeals court's finding extended beyond the Mann family, according to the opinion.

"The county's continued failure to provide parental notice and obtain consent for the Polinsky medical examinations has harmed families in Southern California for too long," the opinion said. "Here, the county subjected the Mann children to invasive medical examinations unbeknownst to their parents, who were meanwhile trying to cooperate with the county’s investigation."

The county's actions deprived the Manns of "their right to raise their children without undue interference from the government," as well as their rights to make medical decisions on behalf of their children and the family's right to privacy, the opinion said.

"Although we must balance these fundamental rights against the state's interest, we conclude that the county is constitutionally required to provide parental notice and obtain parental consent or judicial authorization for the protection of parents' and children's rights alike before subjecting the children to these invasive medical examinations," the opinion said.

Appeals Court Judge Kim McLane Wardlaw wrote the opinion in which Judge Jacqueline H. Nguyen and Judge John B. Owens concurred.

The appeals court's decision reversed part of an earlier decision by the U.S. District Court for California's Southern District.

San Diego County social workers removed the Manns' four children from their home in April 2010 after the social workers omitted exculpatory evidence from the dependency application, according to the background portion of the opinion. The district court later found the omitted evidence "would have rendered the application insufficient to support a protective custody warrant," the opinion said.

The children were returned to the Manns' custody after a juvenile court dismissed the dependency petition, finding it was not supported by sufficient evidence. The Manns filed their lawsuit in April of the following year.

San Diego County violated the Mann children's Fourth Amendment rights with it didn't get a warrant or provide constitutional safeguards before subjecting the children to the invasive medical exams, according to the appeals court's opinion.

"Because the county’s interest in protecting children's health does not outweigh the significant intrusion into the children's somewhat diminished expectation of privacy, the county's policy of subjecting children to the Polinsky medical examinations without parental notice and consent is unreasonable," the opinion said.

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