9.24.2020

Mom left kids in the van to get muffins. Then came a social worker and strip searches.

 

On a mild day in March 2017, Elizabethtown police officers warned Holly Curry about leaving her six young children unattended in the family’s van outside Cobbler’s Cafe, where she had briefly stopped for coffee and muffins on the way to youth karate class.

They also reported her to the local office of the Kentucky Cabinet for Health and Family Services.

The next day, despite Curry’s tearful, repeated protests, social service worker Jeanetta Childress and Hardin County sheriff’s Deputy Michael Furnish entered her home to investigate the family for possible child abuse and neglect.

Childress and Furnish warned Curry about possibly taking the children from their home and putting them in state custody, according to court records. Next, the kids were strip searched for signs of injury. The two oldest children privately were questioned in a bedroom about their mother’s mental state.

After Childress finally concluded the children were safe — the Curry family previously had a clean record, she acknowledged — she said, “We’re just going to consider this an oopsy daisy.”

The Curry family wasn’t so quick to drop the matter. They filed a civil rights lawsuit in U.S. District Court in Louisville against Childress, Furnish and their employers.

Last week, Judge Justin Walker handed down a fiery opinion denouncing the government’s actions in the Curry home and clearing the case for trial.

The state health cabinet and the Hardin County sheriff’s office have been dismissed as defendants. But Walker stripped the social worker and deputy of the legal shield that public officials ordinarily enjoy through “qualified immunity,” because, he wrote, what they did was “so clearly unconstitutional.”

“To hold otherwise would permit social workers to strip search children as a matter of course in every investigation,” wrote Walker, who recently was elevated from the district court in Louisville to a high-profile seat on the U.S. Circuit Court of Appeals for the District of Columbia. 

“Incredibly, Childress repeatedly testified that she believed she should ‘automatically’ strip search any child who was four or under.”

The Fourth Amendment to the U.S. Constitution protects Americans from unreasonable searches and seizures, particularly in their homes, he wrote in his Aug. 18 order and opinion.

“Act One: An ‘attentive and loving’ mother gets muffins for her children,” Walker wrote in his summary of the episode. “Act Two: There’s a knock on her door and a threat by the government to take away her children. Act Three: Her children are strip searched without cause.”

“America’s founding generation may never have imagined a Cabinet for Health and Family Services. But they knew their fair share of unwelcome constables. And they added a Fourth Amendment to our Constitution to protect against this three-act tragedy,” Walker wrote.

Childress directed questions from the Herald-Leader to an attorney at the Cabinet for Health and Family Services, who did not respond to requests for comment. A cabinet spokeswoman also did not respond; nor did the Hardin County sheriff’s office or its attorney.

The Home School Legal Defense Association, which represents the Curry family in court, said Walker’s ruling is significant because “here we have a federal judge saying this sort of behavior is clearly unconstitutional.”

“It’s not as uncommon as you would think — or as you would hope — for a CPS investigator to want to get into the home, no matter what. They want to get into the home to perform what they call body checks, or what we call strip searches,” said James Mason, an attorney with the Home School Legal Defense Association.

“They’re not accustomed to being told ‘No,’” Mason said. “When they are told no, going to get a police officer is very common, and they will then work to overcome the family’s resistance to entry.”

This is only the latest legal setback for the Cabinet for Health and Family Services. Another U.S. District Court judge, William O. Bertelsman, has stripped the cabinet’s social workers and supervisors of their qualified immunity in two separate lawsuits out of Northern Kentucky over the past year.

In one case, a social worker extensively investigated a family and threatened to take away their newborn baby after the mother ate bagel chips with poppy seeds and falsely tested positive for opiate use. In the other, a social worker spent three months investigating a single mother for abuse, denying her care and control of her daughter, because of a bruise on the girl’s backside caused by the bite of a 3-year-old daycare playmate.

“While the state certainly has an interest in preventing child abuse, that interest does not permit social workers to circumvent the procedural protections afforded by state law, (such as) reasonable cause requirements and mandated hearings,” Bertlesman wrote in his opinion and order concerning the backside bruise case. “A reasonable jury could thus find that defendants’ conduct violated a clearly established procedural right.”

The U.S. 6th Circuit Court of Appeals in June struck down part of Bertelsman’s qualified immunity decision in the poppy seed case, but it upheld another part, returning the case to him to continue with the pretrial phase.

‘Get the police’

In her deposition in the lawsuit, Curry said she stopped for muffins at Cobbler’s Cafe as a sweet bribe to pacify her children on their way to karate practice. (There were six kids, ages 1 to 6, with the youngest being two sets of twins.) She left them in the van outside the cafe for five to 10 minutes with the doors locked and the engine and fan running. The temperature that morning was in the 60s.

She emerged with muffins to find several police officers standing next to her van. Elizabethtown police Officer Matt McMillen sternly warned Curry that children younger than 8 should not be left unattended. Then he sent her on her way to karate.

But McMillen also decided to cite Curry for neglect. He filed a JC-3 form, a standard abuse and neglect report, with the social workers at the Elizabethtown office of the Kentucky Department for Community Based Services.

In hindsight, McMillen said in his own deposition in the lawsuit, he regrets that.

“If done again today, I would not cite her,” the officer said.

However, once McMillen filed his report, the system swung into action. The case was assigned to Childress, who drove to the Curry home the following afternoon.

Josiah Curry, Holly’s husband, was a U.S. Army major and an attorney with the Judge Advocate General’s Corps. He was out of town on business. So Holly was alone with the kids when Childress knocked on the front door and announced that she was investigating a possible case of child abuse or neglect based on the van incident.

In her deposition, Curry said Childress tried to walk right into the home, but Curry closed the door on her.

“Childress was combative. Holly told her that she could not enter without a warrant,” Curry’s lawyers wrote in one court filing. “Childress replied that she had to get in the home to see the kids, then turned around and said, ‘I’ll have to go get the police then.’”

According to court records and her own deposition, Childress next met with Furnish, the deputy, at the Hardin County sheriff’s office. She wanted a police escort.

“I told (Furnish) that I was having a hard time getting in the – the home and I just really needed in there to, you know, interview the kids and, you know, see what – what was up,” Childress said.

It’s standard procedure for social workers to call in law enforcement if parents stop them at the door, Childress said.

“If people don’t want you in their home, there could be a safety concern,” Childress testified. “That’s the procedure that you go through, you go get the police.”

Furnish told attorneys in his deposition that in his two years with the sheriff’s office, he could recall assisting social workers “maybe 40 to 50 times,” including two or three previous home visits with Childress.

Back at the family’s front door, now standing alongside a deputy, Childress said she urged Curry to do this “the easy way.” The hard way could mean losing her children, the officials warned. They explained that they could get an emergency court order to let them place the kids in state custody.

“There was — I would not call it conversation — at the point after Officer Furnish said, ‘We’ll come back and take all six of your children,’ in unison, Ms. Childress and Officer Furnish began yelling louder and louder, “What’s it gonna be? What’s it gonna be? What’s it gonna be?’” Curry said.

“And I eventually raised my left hand and started crying and said, ‘Fine, we can do this,’” she said.

The small group entered the house.

In his order allowing the case to proceed to trial, Walker said the evidence indicates that Curry did not voluntarily consent for the officials to enter her home, Rather, he said, Childress and Furnish bullied their way in.

“First, they knew the Currys had no history with social services,” the judge wrote. “And second, they knew the Curry children had been utterly unharmed while waiting in their climate-controlled car for the time it took Holly to run in a coffee shop.”

“In that situation, no reasonable officer or social worker would think she could get an ex parte custody order. And clearly established law prohibited Childress and Furnish’s conduct,” Walker wrote. “Under these facts, a jury could find that Holly’s consent was coerced.”

Strip searching kids

Once inside the house, Childress wanted to examine the children for signs of harm.

Social workers at the Cabinet for Health and Family Services refer to these exams as TEN-4 checks, with the TEN standing for “torso, ears and neck.” The idea is to look for bruises, burns or other injuries in places that children — especially very young children — typically would not hurt themselves through ordinary childhood accidents.

In her deposition, Childress testified that it’s standard procedure to perform TEN-4 checks on children age 4 and younger. She said she chose to also examine the two older children, who were 5 and 6, because she believed that Curry was not being truthful with her about the family’s well-being.

Writing in a court motion, Curry’s lawyers said that Childress “proceeded to strip search the children. Starting with the younger children, she pulled up their pant legs to look at their calves, then unbuttoned their pants, undid the buttons on their onesies, pulled them up to view their chests, stomachs and abdomen area, then undid their diapers and put her fingers down and looked inside.”

For the older children who wore underwear, Childress pulled it aside, looked inside and put her hands down their underwear, the lawyers wrote.

“Deputy Furnish was present while all six children were strip searched,” Curry’s lawyers wrote.

“For five of the six searches, he was within two to three feet of the children, within eyesight of Holly’s oldest daughter and at eye level with the infants. He spoke to the children several times and was watching as Investigator Childress was taking off their clothes and checking their private parts,” the lawyers wrote.

Childress walked the oldest child, a 6-year-old girl, down the hall to a bedroom and took notes while asking her questions about her mother. The girl said her mother was “stressed” and punished the children when they did wrong by taking “stuff” away. Next, she questioned the oldest boy, age 5, who said Curry had previously left the kids in the van unattended.

“He just said that Mom doesn’t want to — doesn’t want to have to fool with them, because they stress her out,” Childress recalled in her deposition. “She didn’t want them to ask for stuff, so that’s why she didn’t take them in.”

The judge wrote in his order last week that the social worker and deputy had no right to strip search the children in violation of their “fundamental dignity.”

“Here, Childress lacked even a shadow of probable cause that the Currys physically abused their children,” the judge wrote.

“No one had ever reported physical abuse. There was no evidence of it. Nothing about their house indicated they lived in dangerous conditions. The children didn’t tell Childress anything that pointed to ‘a substantial chance’ of physical abuse,” he wrote. “In fact, the two oldest children told Childress that their parents didn’t even use corporal punishment.”

Won’t accept ‘No’

Later, Childress did more research, such as interviewing the family babysitter, who had only good things to say about Josiah and Holly Curry. Finally, 43 days after her visit to the house, she called Josiah Curry to give him the all clear. The van incident notwithstanding, there was no evidence of abuse or neglect in the household.

However, Childress ominously added, “If we ever get a call against your family again, bad things will happen to you and we’ll take your children,” according to the Currys’ attorneys.

The episode left sore feelings.

The children used to be “very enthusiastic about police officers,” but not anymore, Holly Curry said in her lawsuit. When the kids see police in a public place these days, they ask to leave. The oldest daughter burst into tears in a grocery store when she saw a uniformed police officer, Holly Curry said.

The Curry family sued in December 2017, alleging violation of their constitutional rights. Apart from financial damages, they asked for a permanent injunction preventing the cabinet from continuing with the tactics used by Childress and Furnish. They also wanted the cabinet to destroy all records created during Childress’ investigation.

“No such investigation should ever have taken place,” the Currys said in their suit.

Today the family lives in another state, following Josiah Curry’s routine Army reassignment.

Mason, of the Home School Legal Defense Association, said his group hears complaints from families around the country who have been targeted by social workers assuming their guilt. As Walker explained in his ruling, there must be probable cause that a child is in imminent danger to justify the aggressive approach used in this case, he said.

“A DCBS investigator, once they start an investigation, they don’t want to be accused of leaving a child in a bad situation. So the investigators are trying to make sure that doesn’t happen,” Mason said.

“However, this sort of thing happens all too often,” he added. “Some of the people I represent, people like Holly Curry, haven’t done anything wrong and they have nothing to hide, but they are willing to say ‘No’ at the front door. When that happens, the DCBS investigators are unwilling to take ‘No’ for an answer.”


Read more here: https://www.kentucky.com/news/politics-government/article245235585.html#storylink=cpy

 - source:  https://www.kentucky.com/news/politics-government/article245235585.html

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