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5 ABA Juv. & Child Welfare L. Rep. 1 (1986-1987)

handle is hein.journals/chilawpt5 and id is 1 raw text is: -ABA JUVENILF & CHILDWELFARE VOL. V, No. 1 March 1986 CIVIL RIGHTS AND LIBERTIES Civil Rights; Police Police Officer Is Jointly And Severally Liable For Mother's Abduction Of Child In Violation Of Custody Order. Shields v. Martin, 706 P.2d 21 (Idaho 1985). While in the midst of a custody battle with her ex-husband, the mother enlisted the aid of a police officer to gain custody of the child. The two went to the day care center where, making use of a copy of a superseded custody decree, the mother obtained the child and took him from the day care center. The police officer erroneously advised the day care center operator that the document was valid and binding and that the child should be relinquished. He also told the day care operator that she :ould not call the father before delivery of the child to the mother. Subseqjently, after regaining custody of the child, the father sued the police officer for the violation of his civil rights and the mother for her tortious deprivation of his right of custody. At trial, the court refused to instruct on the issue of joint and several liability. The jury awarded separate verdicts against the police officer and the mother but in differ- ing amounts. The Idaho Supreme Court reversed. The court found, as a matter of law, that the two defendants were joint tortfeasors whose com- bined acts caused the father to be denied his right of custody. The mother's flight from the state, with the child, was a wholly foreseeable consequence of the abduction. Thus, the police officer was jointly liable for all com- pensatory damages awarded against the mother on the state law theory. The police officer could not be held accountable, however, for punitive damages that had specifically been assessed against the mother. CommentiThe reviewing court also upheld the father's constitutional claim against the police officer even though the officer's con- duct was no more than negligent. Citing United States Supreme Court precedent, the Idaho court concluded that negligent conduct may constitute a due process violation where there existed no adequate state tort remedy. Since the Idaho Torts Claims Act afforded complete personal immunity to the officer on the state tort theory, the trial court had not erred in allowing the father to submit his due process claim to the jury. Civil Rights; Police Police Officer May Be Sued For False Im- prisonment Where He Could Have Reasonably Obtained Court Order Prior To Removal Of Child From Home. Spurrell v. Bloch, 40 Wash. App. 854, 701 P.2d 529 (1985). One morning, an eleven-year-old asked her mother if she could stay home from school due to an earache. The mother, a licensed practical nurse, consented. The mother also instructed the daughter to provide care for her younger sisters during the school day. As a consequence, the mother and father left home for work without taking the younger girls to their regular babysitter. Later that morning, the school nurse called the home and spoke to the eleven-year-old about her earache. The nurse also learned that the child's parents were not home. Concerned for the girls, the nurse made a report to the Children's Protective Services who thereafter contacted the police department. A police of- ficer was dispatched to the home and took the girls into custody. No attempt was made to contact the childrens' parents even though the older daughter had offered the police of- ficer her father's telephone number. The parents thereafter sued the police officer and others upon various theories Including false imprisonment. The trial court dismissed the action. The Washington Court of Appeals re- versed. In assessing the claim, the court observed that the police officer possessed a qualified immunity from false imprisonment if he was 1) carrying out a statutory duty; 2) acting according to procedures set by statutes or supervisors; and 3) acting reasonably. Ap- plying the second standard, the court found that the police officer was not carrying out his duties according to RCW 26.44.050 which prohibited the taking of a child into custody, without benefit of a court order, unless the child's safety was in immediate jeopardy. At his deposition, the police officer conceded that a court order could have been obtained prior to removal of the girls without harm coming to them. The fact that the police of- ficer may have been acting pursuant to departmental policy did not justify a devia- tion from the his statutory duties. As a continud on next ppe HIGHLIGHTS Legal Analysis: The Legacy of Baby Doe 13 In the Courts: Civil Rights and Liberties Washington court holds police subject to false imprisonment suit where they failed to obtain court order before removing child 1 Texas court upholds public school no pass, no play statute 3 Juvenile justice Kanscs court permits waiver hearing where represented juvenile not present 5 Florida court finds portions of criminal rules of procedure not applicable to juvenile court 7 Child Welfare and Custody Maine court decides confiden- tiality statute prohibits a ency from revealing identityof putative father . 8 Missouri court agrees that prior abuse of older siblings may be grounds for parental rights termination 9 Legislation Report: Developments in State Child Abuse Laws, 1985 14 From the ABA 16

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