Child welfare workers who took away a child from its mother during an investigation into her possible drug use enjoy immunity from suit because there was no notice that they were violating a clear constitutional right.

The case grew out of an unfortunate case of domestic violence where the mother attempted to abscond with the baby to a private residence without prior approval from the Division of Child Protection and Permanency.

Unfortunate Circumstances

Another unfortunate case of domestic violence. The mother who brought the suit originally applied to get a restraining order on her husband who had inflicted such severe injuries on her that she was left in the hospital to recuperate. In response to the petition, he replied that the mother — Mammaro — was using drugs and neglecting the child. She submitted to a drug test, which tested positive twice for marijuana.

Meanwhile, the DCPP had filed a petition to get Mammaro temporary guardianship and had placed Mammaro in a domestic violence home. Interaction with her children was under the watchful eye of DCPP. But when she was denied extended stay in that area, she absconded with her child and stayed at a private home not approved by the DCPP. DCPP had the police immediately arrive to take Mammaro’s child away.

Suit and Decisions

Mammaro successfully challenged the removal in superior court and the child was returned. Mammaro sued the DCPP and other relevant parties under a variety of theories including violations of due process. All theories were dismissed at the Circuit level except the due process claim, finding that removal of a child from approved housing was a violation of due process.

The circuit court was not convinced. The relevant language of the opinion is as follows: “there was no concensus of authority that temporarily removing a child after the parent takes the child from approved housing violates substantive due process.” In fact, SCOTUS has never found a substantive due process violation based on temporary removal of a child — no matter what the circumstances.

Mammaro cited Croft v. Westmoreland County, a 1997 Third Circuit case that stood for the general rule that parents may leave approved housing and take children unless there is reasonable evidence that the child is abused or in danger of being so. But the circuit found that Croft didn’t have the circumstances of positive drug tests, nor allegations of child neglect. As such, the circuit would not hear Mammaro’s arguments.

So there it is, family law attorneys focusing on guardianships and child services should be familiar with the idea that Child Protective Services may come and temporarily take one’s child without implicating due process concerns unless there are concerns of immediate child harm.

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