Originally Published: January 24, 2018 5:59 a.m.
PHOENIX — A federal appeals court has given new legal protections for parents whose only “offense” is taking pictures of their babies’ butts.
In an often strongly worded opinion, a three-judge panel of the 9th Circuit Court of Appeals said there is evidence that two Arizona child welfare workers violated the rights of a couple by removing their three children from their home simply because they had taken photos of the girls without clothing. The judges said there is a well-establish and overwhelming right of parents to control their children without government supervision.
Tuesday’s ruling, unless overturned, clears the way for the couple to sue the state workers who made the removal decision without seeking a court order. The judges said all the evidence showed the parents had done nothing wrong and that the children were in no immediate danger, if any danger at all.
The case dates from 2008, when a Walmart employee, developing photos, saw several pictures of naked children and called police. According to court records, the pictures involved the couple’s daughters, then age 5, 4, and 1 1/2, nude and lying on towels.
A detective interviewed the parents and asked about one shot which had some genitalia showing, though not frontally. The father responded that’s not going in the album and he would not share it with anyone. And when the detective asked the father why he would take the photo in the first place, he responded, “So when we look back on ‘em years later, look at their cute little butts.”
The detective took the children for medical exams which showed no signs of abuse. They then were brought back to the parents, though police did get a warrant to seize computers, printers, photographs, cell phones, undeveloped film, cameras and various media.
Laura Pederson, an investigator for Child Protective Services (now Department of Child Safety) took the children into emergency temporary custody, taking them to foster homes and later to their grandparents where they stayed for about a month before being returned to their parents.
The juvenile court never found the children had been abused or neglected; neither parent was ever arrested or charged with a crime.
The parents subsequently sued the police officer, Pederson and her supervisor, Amy Van Ness, who had approved taking the children. The police officer settled out of court.
In Tuesday’s ruling, the judges said there are “narrow circumstances” when the government can remove a child from a home without a court order. That generally covers situations when officials have “reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant.”
That, the judges said, was not the case here. Instead the only expressed concern was that the children could be subject to future criminal sexual exploitation because the parents had taken what the social workers described as “sexually explicit pictures of all three children.”
The court also pointed out there was no allegation the parents had distributed the pictures or had ever taken or were likely to take photos of children in sexual situations.
“There was no suspected risk to the children of serious bodily harm, including molestation, imminent or otherwise,” the judges wrote. And that, they concluded, provides evidence that the defendants acted unconstitutionally in removing the children without a court order.
In a separate concurring opinion, Judge Marsha Berzon said she wanted to emphasize why courts must “scrupulously guard a child’s constitutional right to remain at home” absent a court order or true emergency situation.
“Taking a child from his or her home, family, and community constitutes a separate trauma, in and of itself,” she wrote. Berzon said that’s why the law requires “close judicial supervision of even temporary governmental interference in the parent-child relationship.”
Tuesday’s ruling does not end the case. Unless overturned, it returns the case to a trial judge in Phoenix to hear the parents’ claims that their constitutional rights were violated and to consider what compensation the couple might receive for damages they suffered, if any.