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making use of a copy of a superseded custody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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