A female Navy officer is suing San Diego County Health and Human Services for removing her two-year-old son from her care while she was on duty and placing him in a youth home where he was subject to invasive examinations.
The mother, Katy Evans, a first class Navy petty officer, filed the lawsuit in federal court on the same day her attorneys filed a class-action lawsuit against the county department and several of its employees.
According to the two complaints, Evans, a 15-year Navy veteran and mother of four, was on duty aboard a naval ship for a routine 24-to-72-hour assignment. During that time, Evans’s roommate watched the two-year-old, known as D.C.
Evans had split from the boy's father and at one point had gotten a restraining order against him after what the lawsuit says was an attempted plot to kill her in July 2013. In May 2014, during a father-son visitation, the boy returned home with a bruise over his left ear. As a result, Health & Human Services staff members were ordered to supervise father-and-son visits.
In August 2014, when Evans was at sea, the boy fell and scraped his forehead while under Evans’s roommate's care. A day later, the boy went to see his father. It was then, says the lawsuit, the father requested that the boy get checked for signs of child abuse. In addition to the scrape on the boy’s forehead, child protective services staff located another small bruise near his ear. The following day the boy was taken from Evans’s home and placed in the Polinsky Children's Center in Kearny Mesa.
It was there, claim Evans’s attorneys, that employees conducted several invasive examinations on the boy.
"...[O]n or about the next morning, August 23, 2014,” reads the complaint, “D.C. was subjected to a full physical examination, including a genital and anal exam, at Polinsky without the express consent of Plaintiff and without her presence. There were no exigent circumstances necessitating the exam, particularly since D.C. had been examined by physicians at Chadwick Center the day before. From August 2014 to July of this year Evans has been separated from her child. Much of that time she has had to defend herself against child abuse allegations.
"Plaintiff has suffered, and will continue to suffer damages, including, but not limited to, physical injuries and/or severe emotional distress, and other damages to be shown according to proof, as a result of these violations of her personal and civil rights of freedom of speech and association, due process, familial association, and to security in her person and home.”
Class Action Lawsuit
Evans’s lawsuit was filed in conjunction with a class-action lawsuit filed on behalf of her son. The lawsuit claims invasive and highly intrusive examinations are performed on minor children without parental permission.
While in the custody of the county, employees at Polinsky and other group homes are required to check children for signs of physical or sexual abuse. The 22-point physical examinations typically require the minor to undress, give urine samples, and have their genitals and rectum inspected for signs of abuse.
"Defendant has instituted and enforced a policy, practice and custom pursuant to which children removed from their homes by [the Health & Human Services Agency] and placed and detained at Polinsky, a County emergency shelter and group home, were subjected to invasive and/or intrusive physical examinations without the consent or presence of their parent(s) or legal guardian(s), without any order or warrant for such examinations, and without exigent circumstances, all in violation of Plaintiff’s and the Class’s civil rights, including those set forth in clear and established law.
"Children have a Constitutional right to the love, comfort, and reassurance of their parents while they are undergoing medical procedures. Therefore, Plaintiff and the members of the Class had a Constitutional right to have their parents or legal guardians present during the physical examinations they endured upon admittance to Polinsky."
Health & Human Services has been down this road before
In September 2014, United States District Court judge Thomas Whelan ruled that the removal of two minor children from their parents’ custody without a warrant had violated the family's 14th Amendment rights.
In that case, the family had taken their two children (ages three and one) to a daycare center in 2011. One of the children fell on the trampoline, and when the parents picked them up they noticed the child's face was red. They took the child to the doctor and then — on the advice of a nurse — to the hospital to make sure it was not an allergic reaction.
Doctors deemed the redness non-accidental and a possible inflicted injury. Without any additional symptoms, the parents refused to undergo a C/T scan or x-rays due to fear of radiation. As mandated by law, the hospital contacted child protective services to report the redness.
Later that night, after being discharged from the hospital, a worker from child protective services visited the home with three police officers. After an interview, the worker removed the children from the home and transported them to the Polinsky Child Center. Once there, in the early morning hours, the children underwent extensive examinations. At 3:45 that morning, a nurse tied a plastic baggie around the one-year-old's genitals in order to collect a urine sample.
On the following day, the doctors who had examined the children at the hospital, before they were removed from the home, called the county's child protective services to complain about the removal. A doctor told the social worker “she had no concerns whatsoever regarding the family” and the parents were "very attentive with appropriate concerns.”
The Judge's Order
In September 2012, U.S. federal judge Whelan ruled that the county workers violated the family's 14th Amendment rights.
"There is no dispute that [the social workers] did not have a warrant when they removed [the children] from [their] home. Thus, [the social workers] violated Plaintiffs’ constitutional rights unless, at the time of removal, they believed [the children] were in imminent danger of serious bodily injury from [their parents] and that the scope of the intrusion was reasonably necessary to avert the specific injury.
"The primary problem with [the county's] argument is that there was no basis to believe [the parents caused the] injuries. The Supreme Court 'has frequently emphasized the importance of the family,' referring to the right to 'raise one’s children' as 'essential,' a 'basic civil right of man,' and 'far more precious...than property rights’…. The reason is obvious: without such an indication, there is simply no basis for a government official to believe the child is in imminent danger from the parents.
Whelan also commented on the county policy of excluding parents from examinations.
"Given the fundamental rights at stake, this Court reads the County’s ability to exclude parents from their child’s exam as an exception to the general rule that parents must be allowed to attend…. However, under the County’s policy, the exception has become the general rule. It admits that all parents are excluded from their child’s exam because of where the County has chosen to conduct its medical exams.
“Even more troubling, the evidence clearly establishes that — at the time of [the children's] medical exams — the County had known for approximately seven years...that the location where it conducted the medical exams violated the family’s constitutional rights, yet the County did nothing to relocate the exam room. For these reasons, the Court finds the County’s justification insufficient, and that its policy was the moving force in violating the family’s constitutional rights."
The case of Navy Petty Officer Evans as well as her son's class action lawsuit will move forward in federal court.