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The Water Cooler
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Cops Barge Into Calif. Parents Home, Take Their Baby After They Seek 2nd Medical Op.
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<blockquote data-quote="Billybob" data-source="post: 2183324" data-attributes="member: 1294"><p>Yes the system has saved lives, should that excuse the scandals, criminal activity, and lack of accountability we've seen,(and paid for through the many lawsuits). Should it excuse a system that reverses the burden of proof regarding innocent till proven guilty?</p><p></p><p>As for the statute you posted that was part of the rewrite of the "Children's Code" that was brought about possibly by some things revealed at the legislative hearings that proceeded the class action lawsuit, the question is why was it changed, were things being done improperly or illegally?</p><p>And will it stand up to the "exigent circumstances" requirements laid out in the Roskas case in the 10th. Circuit. That decision says;</p><p></p><p>In Roska, parents and siblings of a Utah child removed by DCFS brought a ¤1983 civil rights lawsuit alleging, among other claims, that DCFS and the Attorney General's Office had violated their rights by removing the child without a warrant. <strong>In reviewing the trial court's dismissal of the suit on immunity grounds</strong>, the Roska court applied the Fourth Amendment's warrant requirement to child welfare cases and held that, absent exigent circumstances, state child protection workers could not legally remove a child from his or her home without a warrant. The court stated:</p><p></p><p> We find no special need that renders the warrant requirement impracticable when social workers enter a home to remove a child, absent exigent circumstances....Simply put, unless the child is in imminent danger, there is no reason that it is impracticable to obtain a warrant before social workers remove a child from the home.</p><p>"unless the child is in imminent danger, there is no reason that it is impracticable to obtain a warrant before social workers remove a child from the home".</p><p>Is "in imminent danger the same as "reasonable suspicion" that imminent danger exists? Is an imminent safety threat the same as imminent danger?</p><p></p><p></p><p>328 F.3d at 1242. The Court reiterated the well-established principle that the exigent circumstances exception to the warrant requirement "is narrow, and must be 'jealously and carefully drawn.'" Id. at 1240 (quoting U.S. v. Anderson, 154 F.3d 1225, 1233 (10th Cir. 1998)). Indeed, the Roska court held that even a social worker's decision to seek legal advice prior to removing a child negated the existence of exigent circumstances, and made proper removal contingent on a warrant. Id. at 1242.</p><p></p><p>Second, the Court ruled that in order to protect a parent's Fourteenth Amendment due process right to maintain his or her family free from state government interference, the State could not remove a child from his home without first providing the parents with notice and a hearing. While an exception was made for "extraordinary situations," the Court narrowly defined such situations as "emergency circumstances," such as where there is "an immediate threat to the safety of a child." Id. at 1245.</p><p></p><p><a href="http://webster.utahbar.org/barjournal/2004/06/roska_and_the_warrant_requirem.html" target="_blank">http://webster.utahbar.org/barjournal/2004/06/roska_and_the_warrant_requirem.html</a></p></blockquote><p></p>
[QUOTE="Billybob, post: 2183324, member: 1294"] Yes the system has saved lives, should that excuse the scandals, criminal activity, and lack of accountability we've seen,(and paid for through the many lawsuits). Should it excuse a system that reverses the burden of proof regarding innocent till proven guilty? As for the statute you posted that was part of the rewrite of the "Children's Code" that was brought about possibly by some things revealed at the legislative hearings that proceeded the class action lawsuit, the question is why was it changed, were things being done improperly or illegally? And will it stand up to the "exigent circumstances" requirements laid out in the Roskas case in the 10th. Circuit. That decision says; In Roska, parents and siblings of a Utah child removed by DCFS brought a ¤1983 civil rights lawsuit alleging, among other claims, that DCFS and the Attorney General's Office had violated their rights by removing the child without a warrant. [B]In reviewing the trial court's dismissal of the suit on immunity grounds[/B], the Roska court applied the Fourth Amendment's warrant requirement to child welfare cases and held that, absent exigent circumstances, state child protection workers could not legally remove a child from his or her home without a warrant. The court stated: We find no special need that renders the warrant requirement impracticable when social workers enter a home to remove a child, absent exigent circumstances....Simply put, unless the child is in imminent danger, there is no reason that it is impracticable to obtain a warrant before social workers remove a child from the home. "unless the child is in imminent danger, there is no reason that it is impracticable to obtain a warrant before social workers remove a child from the home". Is "in imminent danger the same as "reasonable suspicion" that imminent danger exists? Is an imminent safety threat the same as imminent danger? 328 F.3d at 1242. The Court reiterated the well-established principle that the exigent circumstances exception to the warrant requirement "is narrow, and must be 'jealously and carefully drawn.'" Id. at 1240 (quoting U.S. v. Anderson, 154 F.3d 1225, 1233 (10th Cir. 1998)). Indeed, the Roska court held that even a social worker's decision to seek legal advice prior to removing a child negated the existence of exigent circumstances, and made proper removal contingent on a warrant. Id. at 1242. Second, the Court ruled that in order to protect a parent's Fourteenth Amendment due process right to maintain his or her family free from state government interference, the State could not remove a child from his home without first providing the parents with notice and a hearing. While an exception was made for "extraordinary situations," the Court narrowly defined such situations as "emergency circumstances," such as where there is "an immediate threat to the safety of a child." Id. at 1245. [url]http://webster.utahbar.org/barjournal/2004/06/roska_and_the_warrant_requirem.html[/url] [/QUOTE]
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