Mann v. Cnty. of San Diego

Decision Date31 October 2018
Docket NumberNos. 16-56657,16-56740,s. 16-56657
Citation907 F.3d 1154
CourtU.S. Court of Appeals — Ninth Circuit
Parties Mark MANN; Melissa Mann; N.G.P.M., a minor-by and through their Guardian Ad Litem, Bruce Paul; M.N.A.M., a minor-by and through their Guardian Ad Litem, Bruce Paul; N.E.H.M., a minor-by and through their Guardian Ad Litem, Bruce Paul; M.C.G.M., a minor-by and through their Guardian Ad Litem, Bruce Paul, Plaintiffs-Appellees/ Cross-Appellants, v. COUNTY OF SAN DIEGO; San Diego County Health and Human Services Agency; Polinsky Children's Center, Defendants-Appellants/ Cross-Appellees.

David Brodie (argued) and Caitlin E. Rae, Senior Deputies; Thomas E. Montgomery, County Counsel; Office of the County, San Diego, California; for Defendants-Appellants/Cross-Appellees.

Donnie R. Cox (argued), Law Office of Donnie R. Cox, Oceanside, California; Paul W. Leehey, Law Office of Paul W. Leehey, Fallbrook, California; for Plaintiffs-Appellees/Cross-Appellants.

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

WARDLAW, Circuit Judge:

We have long recognized the potential conflict between the state's interest in protecting children from abusive or neglectful conditions and the right of the families it seeks to protect to be free of unconstitutional intrusion into the family unit, which can have its own potentially devastating and long lasting effects. Here, San Diego County (County) social workers removed four children under the age of six from their family home under a suspicion of child abuse, took them (as was routine) to Polinsky Children's Center (Polinsky) for temporary shelter, and subjected them to invasive medical examinations, without their parents' knowledge or consent and without a court order authorizing the examinations. The family sued the County and others, alleging violations of the parents' Fourteenth Amendment and the children's Fourth Amendment rights. On cross-motions for summary judgment, the district court concluded that the County's custom and practice of performing the medical examinations without notifying parents and excluding parents from those examinations violates the parents' Fourteenth Amendment rights. The district court further concluded, however, that the Constitution did not require the County to obtain the parents' consent or a court order. The district court did not address whether the children's Fourth Amendment rights were violated by the invasive medical examination.

These cross-appeals require us to determine whether the County violates the Fourth and Fourteenth Amendments when, absent exigent circumstances or a reasonable concern that material physical evidence might dissipate, it subjects children to medical examinations without first notifying parents and obtaining parental consent or judicial authorization for the examinations.1

I.

Mark and Melissa Mann are the parents of four children: N.G.P.M., born in 2004, and N.E.H.M., M.C.G.M., and M.N.A.M., triplets born in 2006. Mark is the director of the Wesleyan Center for 21st Century Studies at Point Loma Nazarene University. Melissa is a nurse midwife at Scripps Hospital. In April 2010, two incidents led to the removal of the Manns' children, then ages 6 and 4 (the triplets), from their family home and their admission to Polinsky.

On Monday, April 6, 2010, N.E.H.M.'s preschool director called Mark Mann after observing a red mark on her lower back. Mark went to the preschool and explained that he had struck N.E.H.M. with a wooden spoon the night before in a misguided effort to calm her. The preschool director told Mark that as a mandatory reporter, she was required to report the incident to the San Diego County Health and Human Services Agency (HHSA). With Mark in the room, the director reported the incident on HHSA's child abuse hotline and indicated that Mark was cooperative. In the following days, HHSA social workers interviewed Mark, Melissa, and the children at their home. Mark and Melissa agreed to receive supportive services and each signed a voluntary safety plan, which, among other things, prohibited Mark from using physical discipline on the children and required the presence of a third party when help was needed to adequately care for the children.

During one of these visits, social workers noticed that M.N.A.M. had a bruise on his forehead. Melissa explained that M.N.A.M. had hit his head on a kitchen countertop. When the social workers asked to photograph the bruise, however, Melissa protested that it felt "manipulative," but later that day she apologized to the social workers and volunteered to take N.E.H.M and M.N.A.M. to Rady Children's Hospital for a "Suspected Child Physical Abuse and Neglect Examination." The next day, the children's examining physician concluded that N.E.H.M.'s red mark was consistent with Mark's explanation, and that M.N.A.M.'s bruise was "most likely accidental."

Despite Mark and Melissa's cooperation, the social workers decided to prepare a dependency application in order to remove the Mann children from their home. The social workers omitted exculpatory evidence from the application2 —evidence that the district court later concluded would have rendered the application insufficient to support a protective custody warrant. Relying on the flawed application, the juvenile court issued a warrant authorizing the removal of the children on April 12, 2010, and the County removed the Mann children from their home and took them to Polinsky later that day. Upon their admission to Polinsky, the children met with a nurse who performed a cursory examination, checking the children's vital signs and their heads for lice, as well as made sure they had no urgent medical needs.3

The next day, April 13, 2010, Mark and Melissa appeared at a detention hearing at the juvenile court, where the County asked them to sign a "Consent for Treatment – Parent" form. The standardized form authorized treatment only if the treatment was "recommended by a licensed physician ...." The form permitted the parents to indicate whether they preferred treatment by "Private Physician" or "Other Licensed Hospital/Medical Facility." Mark Mann signed the form and indicated that, if treatment was necessary, they preferred it to be provided by the children's private physician at Scripps Health.

Meanwhile at Polinsky, while the Manns were appearing in court, a doctor, Nancy Graff, performed a ten- to fifteen-minute medical examination of each of the Mann children that included a twenty-two point assessment of general appearance, behavior, mental status, and specific parts of the body (e.g., skin, head, and eyes). The examination also included a gynecological and rectal exam, which involved a visual and tactile inspection of the children. For the gynecological exam, Dr. Graff testified that she asked the girls to "kind of drop their legs into a frog leg situation," and "separate[d] the labia and look[ed] at the hymen ...." Staff also administered tuberculosis tests, requiring pricks of the children's skin, and the children gave blood and urine samples for drug screening. If staff observed signs of abuse, the County required them to photograph the abuse for the children's records. No one notified Mark and Melissa that their children were examined.

Since at least November 2003, the County routinely performed this medical examination on children admitted to Polinsky after a juvenile court order authorized it to "obtain a comprehensive health assessment as recommended by the American Academy of Pediatrics (AAP), including a mental status evaluation, for a child prior to the detention hearing ...."4 The County, however, excluded from its examination practices verbal children re-admitted to Polinsky within a short period of time, reasoning that such children are able to tell County officials about any abuse they experienced between their last discharge and their readmission.

The day after the Mann children were subjected to this medical examination, they were released from Polinsky to the custody of their paternal grandmother, who resided in the family home until the dependency proceedings were resolved. Months later, after a trial, the juvenile court dismissed the dependency petition, concluding that it was unsupported by sufficient evidence. Mark and Melissa were never notified that their children had been examined, and did not suspect that any medical examinations had taken place until N.G.P.M. told Melissa that "two ladies at the college [Polinsky] said they needed to touch me down there," and demonstrated what she was required to do for the gynecological and rectal exam.

The Mann family filed suit against the County in April 2011, alleging violations of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 against the social workers and the County, as well as asserting state law claims. The Manns contended that the County violated their Fourteenth Amendment rights and the children's Fourth Amendment rights by: (1) performing the medical examinations in the absence of exigency, valid parental consent, or court order specific to the child examined, and (2) failing to notify the parents of the examinations so that they may be present.

While the Manns' case was pending before the district court, the County settled a second case with a different Southern California family, not party to this suit, who had also alleged that the County's practices of conducting the Polinsky medical examinations without parental notice and outside the presence of parents violated the Constitution. See Swartwood v. Cty. of San Diego , 84 F.Supp.3d 1093, 1098–104 (S.D. Cal. 2014).5 To settle that lawsuit, the County proposed "modifying its consent forms, including to provide notification to parents and guardians of their right to be present at the exams;" "modifying the Polinsky Children's Center's facilities and procedures to allow for parental presence at examinations upon...

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