922 KAR 1:330 § 2(5)(f) and Cabinet Abuse Investigation Did Not Violate Parents’ Constitutional Rights – Published Opinion from United States Court of Appeals for the Sixth Circuit

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Clark v. Stone

After a child abuse investigation and a no-discipline order was entered by a juvenile court, Parents brought official capacity claims against several Cabinet for Health and Family Services (“Cabinet”) employees, seeking declaratory and injunctive relief from 922 KAR 1:330 § 2(5)(f), which provides guidance to Cabinet social workers such that reports of abuse, neglect, or dependency that are without an injury, mark, bruise, or substantial risk of harm do not require investigation or assessment, asserting that the regulation chilled the exercise of their constitutional right to dictate how to raise their children, and they fear future false prosecution for child abuse if they use corporal punishment. The district court dismissed the claims for lack of Article III standing. The Sixth Circuit affirmed, holding that the claims were too speculative to satisfy Article III standing requirements. To have Article III standing, the plaintiff must satisfy three elements: (1) the plaintiff must have suffered an “injury in fact”; (2) that injury must have been “caused” by the defendant’s conduct; and (3) the injury must be “redressable” by a favorable decision. The issue in this case was the “injury in fact” element, which in cases dealing with declaratory and injunctive relief, must show actual present harm or a significant possibility of future harm in order to demonstrate the need for pre-enforcement review—it must be certain impending and not speculative future injury. Parents failed to demonstrate that their rights will be violated in the future as a result of the regulation, and the mere subjective fear that they will be subjected against to an allegedly illegal action is not sufficient to confer standing.

Parents argued that the Cabinet employees violated their due process rights under the Fourteenth Amendment by depriving them of their parental liberty interest in disciplining their children, asserting that the no-discipline order interfered with their right to use reasonable corporal punishment. The Cabinet employees argued they are entitled to absolute immunity because the juvenile court entered the order, and qualified immunity because there is no clearly established right to use corporal punishment. The district court found the Cabinet employees were entitled to absolute and qualified immunity and dismissed the claim. The Sixth Circuit held that the district court did not err in dismissing the claim. When examining a substantive due process claim the Court applies a two-part test: (1) whether the plaintiff has shown a deprivation of a constitutionally protected liberty interest, then (2) whether the government’s discretionary conduct that deprived that interest was constitutionally repugnant. At issue here is the first prong. Parents pointed to no case law from either the Supreme Court or the Sixth Circuit that indicates there is a clearly established right to use corporal punishment that leaves marks. Case law allows the use of reasonable corporal punishment, and nothing in Kentucky law conflicts with that premise. KRS 503.110 specifically allows parents to use physical force for discipline. But this is not an unlimited right. Parents offered no authority that corporal punishment leaving marks is reasonable and thus a protected right.

Parents argued that the Cabinet employees violated their Fourth Amendment rights by entering their home without a warrant and without an applicable exception to the warrant requirement. The Cabinet employees argued that they did not violate the Fourth Amendment because they entered the home pursuant to orders from the juvenile court, and even if they did violate the Fourth Amendment, they are entitled to qualified immunity. The district court dismissed the claim. The Sixth Circuit held that the district court did not err in dismissing the claim. The entry into the home did violate the Fourth Amendment because the order of the juvenile court fell below the requirements of a valid warrant. Thus, the question is whether a reasonable social worker would have known based on the particular circumstances that their actions were violating the Clark’s constitutional rights. While it is established that a social worker needs a warrant to search a home, the boundaries of that requirement are not clearly established. Social workers may rely upon the good faith instruction of police officers about the legality of their entry. The juvenile court stated in open court, maybe in error, that the Fourth Amendment did not apply, and it was not unreasonable for the Cabinet employees to reply upon instruction from a judge.

Parents argued that the Cabinet employees violated their First Amendment right to film the home visits and that they were retaliated against for exercising this right. The Cabinet employees argued the right does not exist or is not clearly established and that Parents were unable to demonstrate a causal connection between their request not to be recorded and the alleged retaliatory actions. Parents were able to record the home visit and did not allege a retaliatory action for doing so other than the continuation of the investigation beyond the first visit. The Sixth Circuit held the district court did not err in dismissing this claim. To assert a First Amendment retaliation claim, plaintiffs must establish that: (1) they engaged in constitutionally protected speech, (2) an adverse action taken against them caused an injury that would chill a person of ordinary firmness from continuing the speech, and (3) that action was motivated at least in part by the protected speech. Plaintiffs must “be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. Parents did not cite any cases showing the right to film social workers nor that such right is clearly established. Thus, the Cabinet employees were entitled to qualified immunity. However, even if they were not, Parents’ arguments failed because Parents did not allege facts that would demonstrate that a retaliatory action was taken against them motivated by their demand to record the home visits.

Parents argued that the institution and continuation of the investigation were acts of religious hostility that violated that First Amendment. The Cabinet employees argued that they were not aware of the Parents’ religious beliefs prior to the beginning of the investigation, and that the Free Exercise Clause does not excuse Parents from adhering to otherwise valid child-safety laws. The Sixth Circuit held that the district court did not err in dismissing this claim. The Supreme Court has repeatedly found that although targeting religious beliefs is never acceptable, a generally applicable law that incidentally burdens one’s free exercise rights will typically be upheld. The challenged regulation would overcome strict scrutiny. The state certainly has a compelling interest in protecting children from physical abuse, and the regulation is written such that it explicitly does not prohibit corporal punishment that does not leave marks, bruises, etc. Thus, the regulation is narrowly tailored and serves a compelling government interest. Furthermore, Parents did not plausibly allege that the regulation was discriminatorily applied against them because of their religious beliefs.

Digested by Nathan R. Hardymon

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