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A federal judge Wednesday threw out a lawsuit accusing two state caseworkers of violating families' civil rights by taking children away from their parents for too long without a hearing.

U.S. District Judge Leon Holmes said the state Department of Human Services employees who were accused of not doing enough to ensure quick hearings to speed up the process of reuniting torn-apart families were not to blame for the delays.

"Under Arkansas law, the circuit court, not the DHS social worker, is charged with providing a hearing," Holmes said, citing Arkansas Code Annotated 9-27-315(a). It requires a circuit court to hold a probable cause hearing within five business days of the issuance of an ex-parte order granting the state emergency custody of a child, to determine whether probable cause to issue the emergency order continues to exist.

Earlier this year, parents of children who were temporarily taken into protective custody last year in Grant and White counties sued caseworkers Chelsea Smith and Stacy Houck, as well as their supervisors, contending that the seizures of the children were unconstitutional.

The parents said they were deprived of an opportunity to be heard in a timely matter after the children were seized, and that the caseworkers weren't properly trained and supervised. The parents also asked to represent a class of similarly situated parents to challenge the constitutionality of state laws.

According to court documents, Smith, acting on behalf of the department, seized the two children of Katelyn Webb after a juvenile-court judge in Grant County jailed their mother on June 28, 2017, for contempt of court, ordering her to be jailed for five days. The case was in juvenile court because one of Webb's children was repeatedly absent or late to school. Webb was held in contempt of court after she continued to fail to take her child to school, despite several admonishments from the court, and failed to attend scheduled hearings or arrived late.

The documents show the department was unable to find relatives who could take the children during the five days their mother was in jail. They say the department also couldn't complete a home assessment, partly because Webb was in jail and partly because she refused to supply a urine sample.

On July 5, a department attorney filed a petition to retain emergency custody of the children, and a hearing was set for July 12. However, the judge canceled the hearing, for reasons not in the record. It was reset for July 20, but Webb appeared only to decline representation by an attorney that the court had appointed to represent her, prompting the hearing to be postponed until July 26.

At that hearing, the judge found that the department had probable cause to remove the children from the home initially, but allowed them to return home that day.

"None of this delay can be attributed to Smith," Holmes wrote in his order Wednesday.

In the White County case, court documents show that Houck took protective custody of three children on May 1, 2017, and a department attorney filed a petition for emergency custody on the same day.

The petition was granted May 5, and a probable cause hearing was set for May 8. It wasn't completed that day, however, and the court allowed the children of Jerimey Lay and Tabitha Lay to remain in custody until May 10, with the intention of letting them return home with a safety plan that day unless their guardian ad litem -- an attorney appointed to represent the children -- objected.

The ad-litem attorney objected, so the conclusion of the hearing was postponed until May 12, and as a result, the children went home that day.

Holmes said the chronology shows that "Houck was not responsible for the delay in conducting the probable cause hearing. ... The delay, which was minimal, was caused by the need to obtain additional evidence and then by the ad litem's objection, not by any action by Houck."

According to Holmes' order, Arkansas law authorizes designated department employees to take a child into protective custody for up to 72 hours under certain circumstances, including when there is immediate danger to the child's health or physical well-being. The employee must provide notice to the parent and initiate procedures for obtaining a hearing. The court can issue an order for emergency custody, but the law requires the court to hold a hearing within five business days of that order.

The lawsuit complained that because the law allows a child to be taken for up to three days without a court order, followed by five business days if the court issues an emergency order, that could result in the child being taken away for 10 days before a hearing, or in the event of a holiday, 11 days before a hearing.

"It is well established that parents have a right to a prompt hearing after their child is taken into protective custody," Holmes said, adding, "No bright-line rule exists, however, for deciding whether a post-deprivation hearing is sufficiently prompt." He noted that the 8th U.S. Circuit Court of Appeals, which oversees federal cases in Arkansas, has previously said that "17 days was not a prompt hearing."

Holmes said there is "no binding authority," however, and that he won't, "under the guise of interpreting the constitution, create a rule that would render the Arkansas statutes facially invalid."

In an order he issued three months earlier, Holmes threw out most of the lawsuit's claims but allowed one of Webb's claims against Smith and her supervisors, in their individual capacities only, to proceed on the question of her failure to initiate prompt judicial proceedings.

After both sides asked Holmes to revisit that order for different reasons, and after hearing arguments Monday from the plaintiffs' attorney, Lucien Gillham of Benton, and the state's attorney, Maryna Jackson, Holmes said Wednesday that he had erred in allowing even the individual-capacity claim to proceed, as "Smith did her job promptly."

Metro on 06/21/2018

Print Headline: Lawsuit over seized kids thrown out; Two caseworkers not to blame for slow reuniting of families, judge rules

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