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NICOLE STEDNITZ*

Ending Family Trauma Without

Compensation: Drafting § 1983
Complaints for Victims of Wrongful
Child Abuse Investigations
Introduction .................................................................................... 1424 
I. The Greene Family .............................................................. 1428 
II. Constitutional Sources of the Rights of Parent and Child ... 1431 
A. Fourteenth Amendment Protections ............................. 1431 
B. Fourth Amendment Protections ................................... 1434 
III. Section 1983 Litigation for CPS Violations
of Familial Rights ................................................................ 1436 
A. Section 1983 Lawsuits ................................................. 1437 
B. Impact of Qualified Immunity...................................... 1437 
IV. The Ninth Circuit’s Fourth Amendment Holding
in Greene Is Vacated ........................................................... 1439 
V. Legal Theories of Liability Against CPS for
Constitutional Violations ..................................................... 1442 
VI. Section 1983 Litigation Post-Camreta ................................ 1444 
 
* J.D. Candidate 2012, University of Oregon School of Law; B.A. in Political Science,
History, University of California–Los Angeles; Associate Editor, Oregon Law Review,
2011–2012. I would like to thank Professors Megan G. Thompson and Leslie Harris for
their guidance and support in writing this Comment. I am also thankful to the practitioners
who exposed me to family law and § 1983 litigation during my clerkship opportunities, as
well as to Mikel R. Miller for being generous with his time. Finally, I am grateful for the
unconditional love and encouragement of my partner, Ryan Dibble, J.D.; my parents, Mike
and Kathy Stednitz; my siblings; and my uncle, Michael Reilly.

[1423]
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1424 OREGON LAW REVIEW [Vol. 90 1423

A. The Greenes’ § 1983 Complaint .................................. 1444 

B. Additional § 1983 Complaint Allegations for
Consideration ............................................................... 1445 
Conclusion ...................................................................................... 1448 
Addendum ...................................................................................... 1448 

INTRODUCTION

I n 2007, the U.S. Department of Health and Human Services

estimated that Child Protective Services agencies across the
country investigated 3.2 million claims of child abuse or neglect
1
involving approximately 5.8 million children during the fiscal year.
Yet, only one quarter of these investigations produced sufficient
2
evidence to substantiate the claim of abuse or neglect. Thus, Child
3
Protective Services (CPS) agencies across the nation investigated
millions of individuals for suspected child abuse in 2007 only to
eventually determine that insufficient evidence existed to substantiate
abuse claims. CPS may find insufficient evidence of child abuse
during its investigations for several reasons, oftentimes because
4
parents may be wrongfully accused or evidence of abuse may be
particularly difficult to obtain. Yet, in the process of conducting these
child abuse investigations, well-intentioned CPS caseworkers might
cause real and substantial harm to some families when CPS interferes
with familial relationships based on unsubstantiated claims of child
5
abuse.
 
1 U.S. DEP’T OF HEALTH & HUMAN SERVS., ADMIN. ON CHILDREN, YOUTH, &
FAMILIES, CHILD MALTREATMENT 2007 ch. 2 (2009), available at http://www.acf.hhs.gov
/programs/cb/pubs/cm07/chapter2.htm.
2 Id.
3 The use of the term “CPS” throughout this Comment will refer to a state agency
responsible for protecting children from abuse because the title of agencies differ in each
state yet perform a similar role. CPS utilizes the expertise of police detectives who
specialize in juveniles in coordination with its investigation of abuse. Many lawsuits
against CPS involve allegations of constitutional violations of individual rights stemming
from investigations of child abuse.
4 Some parents who are accused or suspected of committing child abuse have children
who have a rare genetic disorder, such as spinal muscular atrophy, that causes children’s
bones to be extremely fragile and fracture easily. E.g., Susan Donaldson James, Rare
Disease Mimics Child Abuse and Tears Family Apart, ABC NEWS, Apr. 4, 2012,
http://abcnews.go.com/Health/false-child-abuse-charges-trigger-murder-suicide-
colorado/story?id =16074344#.T4HrlBxFuEs.
5 Doriane Lambelet Coleman, Storming the Castle to Save the Children: The Ironic
Costs of a Child Welfare Exception to the Fourth Amendment, 47 WM. & MARY L. REV.
413, 417 (2005) (arguing that CPS agencies may actually cause more aggregate harm to
children than aggregate help to children).
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2012] Ending Family Trauma Without Compensation 1425

CPS decision making deserves rigorous and focused examination

because of the crucial role that CPS serves, which is to protect the
nation’s children from neglect and abuse. Families have historically
been protected from arbitrary governmental interference and should
be able to remain physically together absent good reason, such as
6
neglect or abuse. Child abuse investigations operate in a framework
that requires the maintenance of a proper balance of protecting the
nation’s children from neglect and abuse against protecting the
constitutional rights of parents and their children. However, CPS
officials sometimes engage in severely intrusive conduct in
investigating child abuse or removing children from parental care.
The impacts of a child abuse investigation on a family can be very
traumatic, especially for the children. For example, there is evidence
of a “prevalence of heightened PTS [post traumatic stress] symptoms
in a nationally representative sample of children for whom a child
welfare investigation occurred and who subsequently were placed in
7
out-of-home care.” Even children who were permitted to remain in
their original home during a child abuse investigation were more
8
likely to exhibit increased PTS symptoms. Similarly, the impacts of
a child abuse investigation can be significant for the parents, in part
because of the stigma associated with being the subject of a child
abuse investigation or receiving services aimed at decreasing child
9
maltreatment.
In 2005, Sarah Greene’s two minor daughters were removed from
her home for over three weeks and subjected to questioning and
10
invasive medical examination of their genitals. A State of Oregon
CPS caseworker named Bob Camreta asked a public school employee
to remove one of the girls, S.G., from her classroom and interviewed
her about suspected abuse in a private office for two hours in the
11
presence of an armed sheriff. After CPS removed Ms. Greene’s
daughters from her custody for over three weeks, Ms. Greene filed a
legal action under § 1983 of the Civil Rights Act, personally and as

 
6
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).
7
David J. Kolko et al., Posttraumatic Stress Symptoms in Children and Adolescents
Referred for Child Welfare Investigation, 15 CHILD MALTREATMENT 48, 49 (2010).
8 Id.
9 Catherine A. Faver et al., Services for Child Maltreatment: Challenges for Research
and Practice, 21 CHILD. & YOUTH SERVICES REV. 89, 102 (1999).
10 Greene v. Camreta, No. Civ. 05-6047-AA, 2006 WL 758547, at *1–2 (D. Or. Mar.
23, 2006).
11 Id. at *1.
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1426 OREGON LAW REVIEW [Vol. 90 1423

12
next friend for her two daughters, against Mr. Camreta, the county
13
sheriff, the county sheriff’s office, and the school district.
In 2009, the Ninth Circuit unanimously reversed and remanded the
14
district court’s dismissal of the Greenes’ complaint on two grounds.
First, the Ninth Circuit reversed the district court’s order granting
summary judgment to the defendants because a genuine issue of
material fact existed regarding Mr. Camreta’s alleged
15
misrepresentations surrounding the juvenile court’s removal order.
Second, the Ninth Circuit held that Mr. Camreta’s exclusion of Ms.
Greene from her daughters’ medical examinations violated the
16
Greenes’ clearly established Fourteenth Amendment rights.
However, the Ninth Circuit affirmed the district court’s grant of
summary judgment to the defendants based on qualified immunity,
despite the fact that the Ninth Circuit also concluded that Mr. Camreta
17
and the county sheriff violated S.G.’s Fourth Amendment rights.
Specifically, the Ninth Circuit held that Mr. Camreta violated S.G.’s
Fourth Amendment right to be free from unreasonable search and
seizure when Mr. Camreta conducted an interview at S.G.’s
elementary school for abuse investigation purposes absent a court
18
order, warrant, parental consent, or exigent circumstances. In other
words, the Ninth Circuit determined that S.G.’s Fourth Amendment
rights were not clearly established and that Mr. Camreta faced no civil
liability for constitutional violations of S.G.’s autonomy, as Mr.
19
Camreta was entitled to qualified immunity.
Additionally, the Ninth Circuit reversed the district court’s
dismissal of the Greenes’ Fourteenth Amendment claims, finding that
the Greenes suffered Fourteenth Amendment constitutional violations

 
12 The Greenes’ complaint named Mr. Camreta as a defendant only in his individual
capacity. Under the Eleventh Amendment, states and state employees operating in an
official capacity are immune from suit unless a state has consented to be sued. Because
Mr. Camreta was an employee of the State of Oregon, he was not named in the Greenes’
complaint in his official capacity, and neither was Mr. Camreta’s employer. The
complaint, however, named the county sheriff in his individual and official capacity, as
well as the sheriff’s employer, because the Eleventh Amendment does not bar suit against
local government defendants.
13 Greene, 2006 WL 758547, at *1–2.
14 Greene v. Camreta, 588 F.3d 1011, 1037 (9th Cir. 2009).
15 Id.
16 Id.
17 Id. at 1030.
18 Id.
19 Id. at 1033.
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2012] Ending Family Trauma Without Compensation 1427

20
by Mr. Camreta. Counsel for Mr. Camreta appealed the Ninth
Circuit’s adverse Fourth Amendment decision to the U.S. Supreme
Court. The Supreme Court granted certiorari to Mr. Camreta, even
though Mr. Camreta technically “won” in the court below on
21
qualified immunity grounds. In 2011, the Supreme Court issued a
somewhat anticlimactic opinion that vacated the Ninth Circuit’s
holding that Mr. Camreta violated S.G.’s Fourth Amendment rights
by committing an unlawful seizure at S.G.’s school without parental
22
consent, court order, or exigent circumstances. Because the Ninth
Circuit’s Fourth Amendment holding has no more precedential value,
the Supreme Court’s decision may have had the effect of hampering
families’ ability to recover compensation for Fourth Amendment
violations endured by suspected victims of child abuse in the course
of child abuse investigations.
Part I of this Comment discusses the factual background of the
Greene family’s § 1983 lawsuit based on CPS’s conduct during the
child abuse investigation. Part II examines the Fourteenth and Fourth
Amendments as constitutional sources of the rights of parent and
child. Although there are additional legal avenues an attorney might
pursue against CPS, such as state claims of false imprisonment,
intentional infliction of emotional distress, or malicious prosecution,
this Comment focuses on federal constitutional violations. Part III
explains how CPS’s conduct may be analyzed as the basis for a §
1983 lawsuit and how an adverse qualified immunity ruling may
preclude a family from obtaining any compensation.
Part IV discusses the Ninth Circuit’s decision, Greene v. Camreta,
which was vacated by the Supreme Court solely for justiciability
reasons. Though the Ninth Circuit’s Fourth Amendment holding in
Greene expanded the scope of constitutionally violative CPS conduct
for which families may be entitled to compensation, attorneys may no
longer rely on this Ninth Circuit holding because it was vacated. An
essential element of the Supreme Court’s decision in Camreta v.
Greene, however, was that the Ninth Circuit’s Fourth Amendment
holding was vacated on a purely procedural basis without addressing
its merits. Because of this rather unique procedural posture, it is
plausible that another panel of judges in the Ninth Circuit could
reestablish a strict Fourth Amendment standard in the child abuse
 
20 Id. at 1037.
21 Camreta v. Greene, 131 S. Ct. 2020, 2026–28 (2011).
22 Id. at 2026–27.
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1428 OREGON LAW REVIEW [Vol. 90 1423

investigation context. Part V of this Comment explores the legal

theories of liability that attorneys representing families, such as the
Greenes, who are harmed by wrongful CPS conduct might utilize in
obtaining compensation for violations of the rights of parent and child
based on binding precedent in the Ninth Circuit. Last, Part VI
concludes with a discussion of specific types of allegations attorneys
might consider in drafting a § 1983 complaint against CPS in the
wake of the Supreme Court’s Camreta decision.

I
THE GREENE FAMILY
CPS officials in Oregon became involved with the Greene family
23
in early 2003. The Greenes’ case was heard after the defendants
filed motions for summary judgment on each of the Greenes’ claims,
so the district court evaluated all factual inferences in the light most
24
favorable to the Greenes. On February 12, 2003, Nimrod Greene,
Ms. Greene’s husband and the father of her two daughters, was
25
arrested for sexual abuse of an unrelated seven-year-old boy. The
sheriff reported to CPS the circumstances surrounding Mr. Greene’s
arrest and indicated that Mr. Greene was possibly abusing his two
26
young daughters. On February 21, 2003, Mr. Greene was released
from jail, and the assigned CPS caseworker, Bob Camreta, became
concerned about Mr. Greene’s unsupervised access to his two young
27
daughters.
Three days after Mr. Greene was released from jail, on February
24, 2003, Mr. Camreta visited Ms. Greene’s oldest daughter, S.G.,
28
who was nine years old, at her elementary school. With the
assistance of school employees who retrieved S.G. from her
classroom, Mr. Camreta questioned S.G. in a private office on school
29
grounds in the presence of an armed sheriff for two hours. S.G.
claimed during the interview that her dad touched her all over because
30
he hugged and kissed her and gave her piggyback rides. S.G.
 
23 Greene v. Camreta, No. Civ. 05-6047-AA, 2006 WL 758547, at *1 (D. Or. Mar. 23,
2006).
24 Id. at *3.
25 Id. at *1.
26 Id.
27 See id.
28 Greene v. Camreta, 588 F.3d 1011, 1016–17 (9th Cir. 2009).
29 Id. at 1017.
30 Id.
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2012] Ending Family Trauma Without Compensation 1429

testified that Mr. Camreta was dissatisfied with her statements to him
31
that her father’s touchings were not improper. S.G. stated that, after
Mr. Camreta consistently rejected the answers she gave, she
32
eventually began to say yes to whatever Mr. Camreta asked. Mr.
Camreta did not obtain a court order, a warrant, or consent from Ms.
33
Greene for the interview of S.G. at her school.
At the end of the school interview, Mr. Camreta suspected that
S.G. was the victim of abuse by her father and sent her back to her
34
classroom. Next, Mr. Camreta visited the Greenes’ home to discuss
35
the interview he had conducted with S.G. at her school. Both of
36
S.G.’s parents denied any abuse and agreed to abide by a safety plan
in which Mr. Greene would not have unsupervised contact with his
37
daughters while an investigation was under way. On March 6,
2003, Mr. Greene was indicted on a total of six counts of felony
38
sexual assault against S.G. and the unrelated seven-year-old boy.
On March 11, 2003, over two weeks after Mr. Camreta interviewed
S.G. at her elementary school, Mr. Camreta petitioned the juvenile
court for an order removing the children from the family home,
alleging that Ms. Greene would not protect her children from Mr.
39
Greene. Mr. Camreta removed both of the Greene children from the
40
family home and took them into protective custody that same day.
The juvenile court held an emergency shelter hearing the next day,
41
and both Mr. and Ms. Greene attended with counsel. The juvenile
court placed the children in temporary protective custody, ordered
medical examinations of the children, barred Ms. Greene from
discussing the abuse allegations with her children, ordered Mr.
Greene to avoid contact with his children, and stated that the children

 
31
Id.
32
Id.
33 Id. at 1016–17.
34 Id. at 1018.
35 Id.
36 A safety plan is an agreement that a CPS caseworker establishes with caregivers of
children suspected of abuse in order to keep the children in the home but isolated from a
suspected abuser.
37 Greene, 588 F.3d at 1018.
38 Id.
39 Id. at 1018–19.
40 Id. at 1019.
41 Id.
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1430 OREGON LAW REVIEW [Vol. 90 1423

should return to Ms. Greene as soon as an appropriate safety plan was

42
established.
On March 20, 2003, while S.G. and K.G. were still in protective
custody, Ms. Greene’s five-year-old daughter, K.G., was scheduled
43
for a medical examination at a health clinic. Ms. Greene waited in
the clinic lobby, intending to be present with K.G. during the
examination, but clinic employees insisted that Ms. Greene must
44
leave the premises at Mr. Camreta’s request. Ms. Greene was not
permitted access to be with or near her daughter during the medical
examination. Similarly, on March 31, 2003, S.G. was scheduled to
undergo her medical examination, but Ms. Greene was again refused
45
access to be with or near S.G. during the examination. During
S.G.’s examination, S.G. told the doctors that what she had told Mr.
46
Camreta about her father’s improper touchings was not true. The
clinic determined that the results of both girls’ medical examinations
were inconclusive as to sexual abuse, and both children were returned
to Ms. Greene’s custody on the same day that S.G.’s examination
47
occurred.
Mr. Greene stood trial on the criminal charges of sexual abuse
against the seven-year-old boy and S.G., but the jury was unable to
48
reach a verdict. Instead of facing retrial, Mr. Greene entered an
49
Alford plea on the charge for abuse of the seven-year-old boy. The
charges against Mr. Greene for the sexual abuse of S.G. were
50
dismissed. As a result of CPS’s child abuse investigation, Ms.
Greene’s daughters lived in foster care for over three weeks,
interacted with Ms. Greene for only prearranged, supervised
visitations, and experienced invasive medical examinations of their
genitals without the comfort of their mother.

 
42
Id.
43
Id.
44 Id.
45 Id.
46 Id.
47 Id. at 1019–20.
48 Id. at 1020.
49 Id. at 1020 & n.3 (stating that an Alford plea means that a defendant maintains one’s
innocence on the charge but admits that sufficient evidence exists from which a fact finder
could find guilt).
50 Id. at 1020.
STEDNITZ 7/24/2012 2:17 PM

2012] Ending Family Trauma Without Compensation 1431

II
CONSTITUTIONAL SOURCES OF THE RIGHTS OF PARENT AND CHILD
Families are guaranteed significant protections under the
Fourteenth Amendment and the Fourth Amendment to the
Constitution. These constitutional protections are deeply rooted in the
historical autonomy afforded to individuals who comprise a familial
unit by virtue of their relation to one another. In the Ninth Circuit,
one very important note that has been overlooked by attorneys is that
the proverbial door remains open to the argument that CPS conduct
that serves as a basis for a child’s Fourth Amendment violation can be
the same conduct that serves a basis for the parent’s Fourteenth
51
Amendment claim. Attorneys who represent families who have
been subjected to wrongful child abuse investigations by CPS should
analyze CPS conduct under a number of legal theories in order to
plead claims in a complaint that will give families the best
opportunity to recover compensation. Strengthening existing and
developing new legal avenues for families to utilize in their lawsuits
against CPS will increase families’ chances of recovering
compensation and will serve as a proper deterrent that maintains the
delicate balance of protecting children from harm against protecting
the constitutional rights of parent and child.

A. Fourteenth Amendment Protections

The Supreme Court has recognized that the Due Process Clause of
the Fourteenth Amendment protects parents’ liberty interest in the
52
care, custody, and control of their children. The Due Process
Clause says that no state shall “deprive any person of life, liberty, or
53
property, without due process of law.” Not only has the Court
consistently guarded the parent–child relationship from arbitrary
governmental interference, this protected liberty interest is one of the
oldest unenumerated rights recognized by the Court under the Due

 
51 Greene v. Camreta, No. Civ. 05-6047-AA, 2006 WL 758547, at *6 n.1 (D. Or. Mar.
23, 2006) (explaining that Count 3 of the Greenes’ complaint alleged that Mr. Camreta’s
school seizure was a violation of S.G.’s Fourth Amendment rights and rejecting the
Greenes’ argument raised only in response to the defendants’ motions for summary
judgment that Count 3 also alleged that the school seizure violated S.G.’s Fourteenth
Amendment rights).
52 Troxel v. Granville, 530 U.S. 57, 77 (2000) (Souter, J., concurring).
53 U.S. CONST. amend XIV, § 1.
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1432 OREGON LAW REVIEW [Vol. 90 1423

54
Process Clause. The Court has discussed this right as a tradition in
the “history and culture of Western civilization” that protects parental
decision making concerning the upbringing and education of
55
children. Part of Western civilization’s concept of the family is the
idea that it is a unit wherein parents have broad authority over their
56
children. Yet the parents’ interest in the care, custody, and control
of their children is not absolute because the government has a parens
57
patriae interest in promoting children’s welfare in abuse-free
58
environments.
The Due Process Clause protects both an individual’s procedural
rights—to notice and an opportunity to be heard when parental rights
59
may be affected —and substantive rights to make decisions on
60
behalf of their child. In the family law context, the government
may deprive individuals of the fundamental right of care, custody, and
control only when the state has substantial reason to separate family
members from one another:
Officials may remove a child from the custody of its parent without
prior judicial authorization only if the information they possess at
the time of the seizure is such as provides reasonable cause to
believe that the child is in imminent danger of serious bodily injury
and that the scope 61 of the intrusion is reasonably necessary to avert
that specific injury.
When CPS assesses allegations of child abuse, it must continually
62
evaluate the substance and credibility of evidence. The procedural
 
54 Troxel, 530 U.S. at 65 (plurality opinion); see also Wisconsin v. Yoder, 406 U.S.
205, 232 (1972); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Meyer v. Nebraska, 262
U.S. 390, 400 (1923).
55 Wisconsin, 406 U.S. at 232.
56 Parham v. J.R., 442 U.S. 584, 602 (1979).
57 Parens patriae is a doctrine by which the government has the authority to act on
behalf of an individual who cannot legally act on their own behalf.
58 Santosky v. Kramer, 455 U.S. 745, 766 (1982).
59 Troxel, 530 U.S. at 65–66 (plurality opinion) (citing Washington v. Glucksberg, 521
U.S. 702, 719–20 (1997), for the proposition that the Fourteenth Amendment’s Due
Process Clause “guarantees more than fair process” because it includes a substantive
component that “provides heightened protection against government interference with
certain fundamental rights and liberty interests”).
60 Id. at 66.
61 Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000).
62 OFFICE ON CHILD ABUSE & NEGLECT, CHILD PROTECTIVE SERVICES: A GUIDE FOR
CASEWORKERS ch. 6 (2003), available at http://www.childwelfare.gov/pubs/usermanuals
/cps/cpsf.cfm (instructing CPS workers that “[a]fter interviewing all parties and gathering
all relevant information, CPS caseworkers must determine whether maltreatment has
occurred and can be substantiated”).
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2012] Ending Family Trauma Without Compensation 1433

requirements for interfering with parents’ interests of care, custody,

and control of their children will vary depending on the degree of
63
impact of the government action on the liberty interest. Thus,
procedural requirements will be stricter when the government seeks to
permanently terminate parental rights, compared to when the
64
government seeks to adjust a parent’s custody or visitation order.
In the Ninth Circuit, parents are entitled to significant protections
under the Fourteenth Amendment to exercise autonomy over their
children. In Wallis v. Spencer, a case involving a § 1983 lawsuit
brought by a family based on a botched CPS abuse investigation, CPS
received a report from a therapist regarding a patient who was being
hospitalized in a psychiatric facility and had an extensive history of
65
dissociative and multiple personality disorders. The patient told her
therapist about wild allegations that her minor nephew was
66
endangered by an impending secretive satanic sacrifice. In addition
to having a history of psychiatric conditions, the patient had
previously lodged a false child abuse claim against her sister’s family
regarding this specific nephew, which caused strain and eventual
termination of a relationship between the hospitalized patient and her
67
sister’s family. CPS used the hospitalized patient’s allegation about
satanic sacrifice as a basis to initiate a severely flawed child abuse
investigation in which both of the Wallis’s children were separated
from non-abusive parents for over two months and subjected to
68
invasive medical examinations of their genitals. CPS removed the
children from the family home without a warrant, court order, or any
indication that the children were in imminent danger, and subjected
the Wallis children, ages two and five, to invasive medical
69
examinations without parental knowledge or consent.
In Wallis, the Ninth Circuit stated that parents have the right not to
be separated from their children by the government without due
70
process of law except in emergencies. The court explained that the
evidence CPS obtained to substantiate child abuse in no way provided
a basis for removing the children from the care of their mother
 
63 See Santosky, 455 U.S. at 753–54.
64 Id.
65 Wallis, 202 F.3d at 1131.
66 Id.
67 Id.
68 Id. at 1132–35.
69 Id.
70 Id. at 1136.
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1434 OREGON LAW REVIEW [Vol. 90 1423

because the source of danger was alleged to be that of only the

71
children’s father. The court stated that a close family member’s
disclosure of abuse usually lends more credence to an allegation than
a stranger’s report of abuse; however, CPS’s decision to act on the
allegations of a hospitalized family member, based on the nature of
the allegations and factual uncertainty of information that CPS
72
possessed at the time of removal, was extraordinary. The court
emphasized that, absent threat of destruction of material evidence or
medical need, CPS must both notify parents and seek judicial
authorization before subjecting children to an invasive medical
73
examination. The court discussed that reason may exist to exclude
parents from a child’s medical examination in some circumstances,
but stated that the parent has a right to be nearby, such as in a waiting
74
room, during the examination. The court emphasized that the
constitutional claims of each family member should be assessed
separately and recognized a corresponding parent–child liberty
75
interest protected by the Fourteenth Amendment. Of particular
importance, the court made sure to clarify that parents can sue CPS
for Fourteenth Amendment violations based on conduct that includes
76
subjecting children to invasive medical examinations.

B. Fourth Amendment Protections

The Fourth Amendment to the Constitution provides another
source of protection to families, the children in particular, that may be
implicated by CPS conduct. The Fourth Amendment guarantees
people the right “to be secure in their persons . . . against
77
unreasonable searches and seizures” by government officials. The
Supreme Court incorporated Fourth Amendment protections to the
states through the Due Process Clause of the Fourteenth
78
Amendment. When a law enforcement official engages in a
significant interview of a child or subjects a child to a physical
examination for evidence of abuse, the official’s conduct may

 
71 Id. at 1140–41.
72 Id. at 1140.
73 Id. at 1141.
74 Id. at 1141–42.
75 Id.
76 Id. at 1141.
77 U.S. CONST. amend. IV.
78 Mapp v. Ohio, 367 U.S. 643, 654–55 (1961).
STEDNITZ 7/24/2012 2:17 PM

2012] Ending Family Trauma Without Compensation 1435

79
implicate the child’s Fourth Amendment search and seizure rights.
Generally, a search involves any investigation by CPS officials in the
discharge of their duties where information or evidence is obtained in
80
furtherance of the investigation. CPS officials have engaged in a
seizure for Fourth Amendment purposes if a reasonable person, in
light of all of the circumstances of the incident, would not believe that
81
he or she is free to leave.
Twenty-six years ago, the Supreme Court addressed the
constitutionality of a search conducted by public school officials who
searched a minor student’s purse on school grounds after the student
82
was caught smoking cigarettes in the school bathroom. In New
Jersey v. T.L.O., the Supreme Court held constitutional a vice
principal’s search of a fourteen-year-old student’s purse that revealed
marijuana, smoking paraphernalia, cash, and a list of names of people
83
who owed the student money. The Supreme Court held that the
search by school officials was constitutional in the absence of a
search warrant or probable cause because a contrary result would
hamper the ability of schools to discipline students in the officials’
84
control. Subsequent Supreme Court decisions have upheld the
narrowness of T.L.O., distinguishing searches conducted by school
officials acting under their own authority from searches conducted in
85
conjunction with a law enforcement entity.
In the Ninth Circuit, the landmark Fourth Amendment case in the
child abuse investigation context is Calabretta v. Floyd from 1999,
which applied traditional Fourth Amendment protections to CPS
conduct in child abuse investigations, meaning that CPS must obtain a
search warrant or parental consent or determine that special exigency
86
exists before engaging in a search of seizure. In Calabretta, a CPS
caseworker received a report that a neighbor’s child was screaming in
 
79 Doe v. Heck, 327 F.3d 492, 509 (7th Cir. 2003); see also White v. Pierce Cnty., 797
F.2d 812, 813–14 (9th Cir. 1986).
80 Heck, 327 F.3d at 510; Greene v. Camreta, No. Civ. 05-6047-AA, 2006 WL 758547
at *3–4 (D. Or. Mar. 23, 2006) (explaining that, because S.G.’s school counselor escorted
her to Mr. Camreta’s interview in a private office, Mr. Camreta’s interview of S.G. was a
seizure because S.G., as a reasonable nine-year-old child, would not feel free to leave the
interview).
81 United States v. Mendenhall, 446 U.S. 544, 554 (1980).
82 New Jersey v. T.L.O., 469 U.S. 325, 328 (1985).
83 Id. at 327–28.
84 Id. at 340.
85 Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2643 (2009); Ferguson
v. City of Charleston, 532 U.S. 67, 79 n.15 (2001).
86 Calabretta v. Floyd, 189 F.3d 808, 813–14 (9th Cir. 1999).
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the middle of the night, saying “no Daddy, no.” Based on this
information, the CPS caseworker and a police officer visited the
family home, entered the home without consent, and conducted
88
interviews and examinations of the children. The CPS caseworker
suspected that the children were victims of abusive spanking, spoke to
the children in a bedroom out of parental presence, and asked a
twelve-year-old child to remove the three-year-old’s pants to expose
89
the child’s buttocks. The mother of the children heard the three-
year-old crying and rushed in to the bedroom, where the CPS
90
caseworker then ordered the mother to remove her child’s pants.
The mother hesitated but complied with the CPS caseworker’s
instructions, and the child’s buttocks revealed no apparent bruises,
91
markings, or other signs of abuse. The Ninth Circuit held that it
was settled law that CPS caseworkers are barred from entering family
homes for the purpose of a child abuse investigation without a
92
warrant, exigent circumstances, or parental consent. In 2009, ten
years after the Calabretta decision, the Ninth Circuit analyzed the
Fourth Amendment implications of Mr. Camreta’s seizure of S.G. in
her public elementary school without parental consent, court order, or
exigent circumstances.

III
SECTION 1983 LITIGATION FOR CPS VIOLATIONS
OF FAMILIAL RIGHTS

State and local authorities establish agencies responsible for

protecting vulnerable members of the community, such as children
and the elderly, from abuse and neglect. One branch of these
agencies typically investigates reports of child abuse. CPS
caseworkers receive reports of child abuse, screen the credibility of
reports, investigate abuse, remove children from abusive
environments, and initiate appropriate family and criminal law actions
against abusers, often in coordination with local law enforcement
93
agencies. When a CPS child abuse investigation wrongfully
 
87
Id. at 810.
88
Id. at 810–12.
89 Id. at 811.
90 Id. at 811–12.
91 Id. at 812.
92 Id. at 813.
93 OFFICE ON CHILD ABUSE & NEGLECT, supra note 62 (describing the considerations
and factors evaluated by CPS caseworkers in child abuse investigations).
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2012] Ending Family Trauma Without Compensation 1437

intrudes on a family’s constitutional rights, the family may decide to

initiate a § 1983 lawsuit against CPS to recover compensation for
enduring constitutional violations. However, when a family files a
§ 1983 lawsuit, defendants may be entitled to assert the affirmative
defense of qualified immunity for unconstitutional conduct before the
94
lawsuit proceeds to trial. Thus, a finding of qualified immunity
precludes a plaintiff from obtaining compensation and may preclude
95
the plaintiff from litigating the action entirely.

A. Section 1983 Lawsuits

A § 1983 lawsuit is a legal remedy available to individuals
pursuant to a federal statute that waives the government’s immunity
from suit for civil rights violations. Congress permits individuals to
file suit against the government under 42 U.S.C. § 1983 to seek
redress for violations of constitutional rights committed by
96
government officials. Section 1983 of Title 42 provides:
Every person who, under color of . . . State or Territory . . . subjects
. . . any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution97and
laws, shall be liable to the party injured in an action at law . . . .
Before filing suit against CPS, attorneys representing families should
identify whether the parent or child’s constitutional rights have been
violated, whether the Fourth or Fourteenth Amendment protections
were violated, and which CPS conduct violated the individual’s
rights. Even where there are constitutional violations, families may
be barred from recovery if the court accepts the defense that the state
actors qualify for qualified immunity. Therefore, attorneys should
plead that CPS violated family members’ constitutional violations in a
manner that gives family members the best opportunity to recover
compensation in light of anticipated qualified immunity defenses.

B. Impact of Qualified Immunity

Qualified immunity is an affirmative defense to a civil action that
may be asserted against public officials engaging in a discretionary

 
94
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
95
Id.
96 Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1290–91 (9th Cir. 2007); Kelson v.
City of Springfield, 767 F.2d 651, 654–55 (9th Cir. 1985).
97 42 U.S.C. § 1983 (2006).
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function of their employment. Public official defendants are
immune from § 1983 lawsuits “[u]nless the plaintiff’s allegations
99
state a claim of violation of clearly established law.” Qualified
immunity balances two important competing interests: “the need to
hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties
100
reasonably.” The Supreme Court has established a two-pronged
test for determining whether public official defendants are immune
from suit for wrongful conduct: (1) whether the plaintiff alleges a
violation of a constitutional right and (2) whether the plaintiff’s right
101
was clearly established at the time. A “clearly established” right is
one that is “sufficiently clear that a reasonable official would
102
understand that what he is doing violates that right.”
Although qualified immunity is technically an affirmative defense,
in the Ninth Circuit, the plaintiff bears the burden of demonstrating
that the right allegedly violated was clearly established at the time of
103
the incident. If the court determines that government officials are
entitled to qualified immunity, the damages claims against the
officials can be dismissed without a court ever deciding the merits of
104
the suit. In such an instance, the case would be dismissed before a
family is able to tell their story to a jury. The Court’s two-pronged
test is intended to avoid a practical problem of qualified immunity:
that the legal standards will be unclear governing whether official
105
conduct violated a clearly established right.
Attorneys representing families harmed by CPS should frame the
allegations in a § 1983 complaint in a manner that most persuasively
shows that a reasonable official would understand that the conduct
violated a “clearly established” right. For example, in Greene, the
Ninth Circuit rejected the argument that Mr. Camreta should have
known that S.G.’s Fourth Amendment right to be free from
unreasonable seizure at her school was “clearly established” because
 
98Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
99Mitchell, 472 U.S. at 526.
100 Pearson v. Callahan, 555 U.S. 223, 231 (2009).
101 Id. at 232, 236.
102 Anderson v. Creighton, 483 U.S. 635, 640 (1987).
103 Galen v. Cnty. of Los Angeles, 477 F.3d 652, 665 (9th Cir. 2007) (citing Davis v.
Scherer, 468 U.S. 183, 197 (1984)).
104 Pearson, 555 U.S. at 231.
105 Wilson v. Layne, 526 U.S. 603, 609 (1999) (explaining that clarity in the legal
standards for official conducts benefits both officers and the public).
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2012] Ending Family Trauma Without Compensation 1439

there was no case law regarding child abuse investigations that was
“directly applicable,” as Calabretta and Wallis “both involved
106
children seized or searched in their homes.” Although the Ninth
Circuit stated that a plaintiff does not need to show that a right was
clearly established with a case “directly on point,” the court
concluded that neither Calabretta nor Wallis reasonably put Mr.
Camreta on notice that the warrantless school interview of a child
107
could violate the Fourth Amendment. Considering that qualified
immunity can eliminate a family’s ability to recover compensation
and that the courts might interpret prior precedent narrowly, like the
court did with respect to Calabretta and Wallis because of factual
differences in the location of the seizure in Greene, attorneys will best
serve families by pleading the allegations in a complaint in a manner
that demonstrates that the family members’ rights were as clearly
established as possible.

IV
THE NINTH CIRCUIT’S FOURTH AMENDMENT HOLDING
IN GREENE IS VACATED

In Greene, the Ninth Circuit held that Mr. Camreta’s school

interview violated S.G.’s constitutional rights under the Fourth
Amendment, relying partly on its earlier Calabretta decision, which
involved an unconstitutional CPS examination of a child at a family
108
home. The Ninth Circuit held “that in the context of the seizure of
a child pursuant to a child abuse investigation,” the Fourth
Amendment requires that CPS caseworkers and law enforcement
officials obtain either a warrant, court order, parental consent, or
109
determine that exigent circumstances exist. Although this holding
was the only aspect of the Ninth Circuit’s Greene decision that was
vacated by the Supreme Court, attorneys in the Ninth Circuit should
analyze three arguments that the Greene family raised against CPS
when drafting a § 1983 complaint on behalf of a family.
First, the Ninth Circuit held that Mr. Camreta violated Ms.
Greene’s clearly established rights under the Fourteenth
Amendment’s interest in the care, custody, and control of her

 
106 Greene v. Camreta, 588 F.3d 1011, 1031 (9th Cir. 2009).
107 Id.
108 Id. at 1022–23.
109 Id. at 1030.
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children. “The government may not, consistent with the
Constitution, interpose itself between a fit parent and her children
simply because of the conduct—real or imagined—of the other
111
parent.” The court held that CPS violated Ms. Greene’s
substantive due process rights to be present with her children during
112
the invasive medical examination of each daughter. The Ninth
Circuit explained that Ms. Greene’s Fourteenth Amendment rights to
comfort her children were at their “apex” during the medical
examinations, and Mr. Camreta’s decision to exclude Ms. Greene
from not only the medical examinations but also the entire clinic
113
facility violated Ms. Greene’s clearly established rights. The Ninth
Circuit reversed the district court’s finding that Mr. Camreta was
entitled to summary judgment on Ms. Greene’s Fourteenth
Amendment claims because Ms. Greene successfully proved that her
right to be near or present with her children for the medical
114
examinations was clearly established.
Second, the Ninth Circuit held that CPS similarly violated S.G. and
K.G.’s Fourteenth Amendment rights to be comforted by Ms. Greene
115
during the medical examinations. The Ninth Circuit reiterated the
importance of protecting the child’s right of family association to be
near “the love, comfort, and reassurance of their parents” during
medical examinations, invasive examinations of a child’s genitals in
116
particular, unless there is valid reason to exclude the parents. The
Ninth Circuit cited Wallis when it reaffirmed the importance of
protecting the Fourteenth Amendment rights of family members:
“The interest in family association is particularly compelling at such
times, in part because of the possibility that a need to make medical
decisions will arise, and in part because of the family’s right to be
117
together during such difficult and often traumatic events.”
Third, the Ninth Circuit explained in a footnote that it essentially
agreed with the district court’s conclusion that Ms. Greene could not
proceed under the theory that Mr. Camreta’s school interview of S.G.
was a violation of Ms. Greene’s Fourteenth Amendment rights
 
110 Id. at 1037.
111 Id. at 1036 (quoting Wallis v. Spencer, 202 F.3d 1126, 1142 n.14 (2000)).
112 Id.
113 Id.
114 Id.
115 Id. at 1036.
116 Id. (quoting Wallis, 202 F.3d at 1142).
117 Id. (quoting Wallis, 202 F.3d at 1142).
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118
because this was not explicitly pleaded in the complaint. The court
explained in a footnote that “[t]he Greenes have not argued that the
school seizure of S.G. violated [Ms. Greene’s] familial rights under
the Fourteenth Amendment, although they have made such a claim
with respect to the subsequent removal order and physical
119
examinations.” The court’s footnote may suggest that the Greenes
could have proceeded under this legal theory had an allegation been
included in the complaint.
In 2011, the Supreme Court reviewed the Ninth Circuit’s holding
in Greene that S.G.’s Fourth Amendment rights were violated, which
was the first case addressing the issue of state intrusion on family
autonomy in the child abuse investigation context in over twenty
120
years. The Attorney General of Oregon, John Kroger, petitioned
the Supreme Court for certiorari to reverse the Ninth Circuit’s holding
because it “creates the very real risk that children will go unprotected
because child-protection workers and law-enforcement officers
121
cannot interview them about allegations of child sexual abuse.”
An overwhelming majority of states concurred with Oregon that the
Ninth Circuit’s Fourth Amendment holding in Greene was critically
harmful to CPS’s ability to effectively investigate child abuse. Forty-
one additional states, including every state within the Ninth Circuit,
joined to file an amicus brief to the Supreme Court in support of a
122
reversal of the Ninth Circuit’s Fourth Amendment holding.
In Camreta, the Supreme Court vacated the Ninth Circuit’s Fourth
Amendment holding because Mr. Camreta’s issue on appeal was
123
deemed moot. The Supreme Court held that the issue was moot
because S.G. no longer had a “plaintiff’s usual stake in preserving the
court’s holding” because the Greene family had relocated to Florida
and S.G. was then months away from becoming an adult on her
 
118
Id. at 1022 n.6.
119
Id.
120 See Idaho v. Wright, 497 U.S. 805 (1990).
121 Petition for Writ of Certiorari at 13, Camreta v. Greene, 131 S. Ct. 2020 (2011) (No.
09-1454), 2010 WL 2190432 at *13.
122 Brief of the States of Arizona et al. as Amici Curiae in Support of Petitioners at 1–2,
Camreta v. Greene, 131 S. Ct. 2020 (2011) (Nos. 09-1454, 09-1478), 2010 WL 5168883 at
*1–2 (including the states of Arizona, Alabama, Alaska, Arkansas, California, Colorado,
Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana,
Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota,
Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah,
Vermont, Washington, West Virginia, Wisconsin, and Wyoming).
123 Camreta, 131 S. Ct. at 2033–34.
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eighteenth birthday. Because the Greene family had no intention
of returning to Oregon and S.G. was nearly an adult, the Court
concluded that S.G. “faces not the slightest possibility of being seized
in a school in the Ninth Circuit’s jurisdiction as part of a child abuse
125
investigation.” In other words, the Ninth Circuit’s Fourth
Amendment holding in Greene was vacated on a purely procedural
basis, and the Court did not analyze the merits of the issue. The other
holdings from Greene continue to bind CPS agency conduct in the
Ninth Circuit. However, regarding the Ninth Circuit’s vacated Fourth
Amendment holding, a panel of judges on the Ninth Circuit could
again impose the same strict Fourth Amendment requirement in the
context of child abuse investigations.

V
LEGAL THEORIES OF LIABILITY AGAINST CPS FOR CONSTITUTIONAL
VIOLATIONS
To maximize opportunity for recovering compensation for families
whose constitutional rights have been violated by CPS conduct in the
course of child abuse investigations in the Ninth Circuit, attorneys
should methodically consider the manner in which alleged
government intrusions in family autonomy might be framed and
pleaded in the complaint. Attorneys should articulate all of the
potentially viable ways in which specific wrongful CPS conduct may
have violated family members’ rights. Next, attorneys should
consider all of the ways in which the conduct may have violated
whose and which constitutional rights, especially in light of the
plaintiff’s burden to demonstrate that the plaintiff’s right was “clearly
established” if the defendants assert qualified immunity. Regarding
whose constitutional rights have been violated by wrongful CPS
conduct, constitutional violations should be evaluated in one of three
ways: as rights of the parent, the child, or both the parent and child.
First, CPS action can be challenged as intruding upon the parents’
liberty interest in an autonomous family relationship guaranteed by
the Fourteenth Amendment. In § 1983 lawsuits that allege
constitutional violations by CPS, the Fourteenth Amendment may be
implicated in child abuse investigation lawsuits because a parent’s
right to care, custody, and control of a child has been violated. The
Greenes, for example, successfully proved to the Ninth Circuit that
 
124 Id. at 2034.
125 Id.
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2012] Ending Family Trauma Without Compensation 1443

Mr. Camreta violated Ms. Greene’s Fourteenth Amendment rights by

excluding Ms. Greene from her daughter’s medical examinations.
In the Ninth Circuit, the right to care, custody, and control has been
extended to apply specifically to a child’s medical care and treatment
126
in the context of a child abuse investigation under Wallis. The
right to care, custody, and control of children protects parents’ rights
to make vital medical decisions on behalf of their children, rather than
127
the state making these decisions. Even where valid reason exists to
exclude parents from being physically present while their child is
undergoing medical treatment, the Ninth Circuit holds that parents
128
have a right to be in a nearby waiting room. The Ninth Circuit
emphasized that the autonomy of the parent–child relationship is
especially important when a child is subjected to a medical procedure
129
that is potentially invasive or upsetting.
Second, CPS action might implicate an interrogated child’s Fourth
Amendment right to be free from unreasonable search and seizure,
such as S.G.’s right to be free from seizure at her school, which was
the issue the Supreme Court granted certiorari to in Camreta but did
not address on its merits. A CPS interview of a child may be
considered a Fourth Amendment seizure in the child abuse
investigation context depending on the reasonableness of CPS action
in light of the facts and circumstances. Further, when CPS subjects a
child to medical or physical examinations for the purpose of
discovering evidence of abuse, the examination might constitute a
Fourth Amendment search of the child. Thus, the Fourth Amendment
issue is framed from the perspective of the child’s autonomy that is
violated, independent of the parent–child right to care, custody, and
control.
Third, because of the unique status of parent and child recognized
under the law, attorneys might encounter facts that permit the family
to argue that the same CPS conduct violates both the parents’ and the
child’s constitutional rights. For example, when CPS conduct
violates the parents’ Fourteenth Amendment right to care, custody,
and control, attorneys could argue that the same CPS conduct also
violates the child’s Fourteenth Amendment right to remain in parental
care, custody, and control. The Ninth Circuit has discussed the right

 
126 Wallis v. Spencer, 202 F.3d 1126, 1142 (9th Cir. 2000).
127 Id.
128 Id.
129 Id.
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to care, custody, and control as an associational right that applies to

both parents and children—each has the right to be together as an
130
autonomous familial unit. Thus, children have a Fourteenth
Amendment right, the corollary of parents’ rights under the
Fourteenth Amendment, to remain in the care, custody, and control of
their parents, free from government interference, unless the state has
sufficient reason to interfere in the family relationship. Although the
Ninth Circuit has recognized an associational aspect of the right of
parental care, custody, and control by holding that children have a
corresponding liberty interest to be surrounded by the love, comfort,
131
and reassurance of their parents, the notion that children have an
interest to remain in parental control under the Fourteenth
Amendment is not as widely utilized as the parental right to care,
custody, and control. Courts are not specifically rejecting this
argument; rather, it appears that attorneys are not drafting Fourteenth
Amendment violations in § 1983 complaints with specific allegations
that the same CPS conduct violates the Fourteenth Amendment rights
of both the parent and the child.

VI
SECTION 1983 LITIGATION POST-CAMRETA
When considering filing a § 1983 suit against CPS in the wake of
the Supreme Court’s Camreta decision, attorneys for families harmed
by CPS investigations in the Ninth Circuit should plead the three
arguments raised in the family’s complaint in Greene, as well as
consider three additional arguments, which are discussed below.

A. The Greenes’ § 1983 Complaint

The first constitutional violation alleged by the Greene family in its
§ 1983 complaint was that Mr. Camreta subjected S.G. to a two-hour
interview at her elementary school without parental consent, warrant,
court order, or exigent circumstances, in violation of S.G.’s Fourth
132
Amendment rights. Although the Supreme Court vacated the
Ninth Circuit’s Fourth Amendment holding that was favorable to
harmed families, attorneys should argue, when applicable, that CPS
conduct violated a child’s Fourth Amendment rights in order to
 
130
Id.
131
Id.
132 Joint Appendix at 26, Camreta, 131 S. Ct. 2020 (2011) (Nos. 09-1454, 09-1478),
2010 WL 5096737 at *26 (Count 3 of the Complaint).
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2012] Ending Family Trauma Without Compensation 1445

redevelop a strict Fourth Amendment standard for CPS conduct in the

child abuse investigation context. With Greene having been vacated,
attorneys in the Ninth Circuit may only rely on Fourth Amendment
case law where CPS’s conduct involved a search or seizure of a child
in the family home without a warrant, court order, exigent
133
circumstances, or parental consent. If the Fourth Amendment
violation, however, occurs at a location other than the family home,
such as a public school, there is currently no Ninth Circuit case law
directly on point. Nonetheless, based on the sound reasoning in
Greene, it is plausible that another panel of judges in the Ninth
Circuit will re-establish a strict Fourth Amendment requirement that
protects children’s right to be free from unreasonable search and
seizure, whether in a public school, private school, daycare center, or
other factual circumstance.
Second, the Greene family alleged that Ms. Greene’s Fourteenth
Amendment due process rights were violated because Mr. Camreta’s
removal of her children interfered in her right to care, custody, and
134
control. Notice that the family raised a Fourteenth Amendment
violation argument against Mr. Camreta for removal of the children
135
from the perspective of the parent only, not the child. Third, the
Greene family alleged that Mr. Camreta and the clinic that performed
the medical examinations violated the Fourteenth Amendment rights
of Ms. Greene and her two daughters to be together during the
136
medical examination by excluding Ms. Greene from the premises.

B. Additional § 1983 Complaint Allegations for Consideration

In addition to the arguments advanced in Greene, attorneys should
consider pleading three additional arguments. First, attorneys should
argue that the same CPS conduct can violate both a child’s right to
care, custody, and control protected by the Fourteenth Amendment as
well as the child’s Fourth Amendment right to be free from
unreasonable search and seizure. Though the Greenes clearly alleged
against the school district that the school interview violated S.G.’s
137
Fourth and Fourteenth Amendment rights, the Greenes did not
allege that Mr. Camreta or the sheriff violated S.G.’s Fourteenth
 
133 Wallis, 202 F.3d at 1136; Calabretta v. Floyd, 189 F.3d 808, 812–13 (9th Cir. 1999).
134 Joint Appendix, supra note 132, at 27 (Count 5).
135 See id.
136 Id. at 28 (Count 7).
137 Id. at 25–26 (Count 2).
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138
Amendment rights during the school interview. The Greenes’
complaint could have included an allegation that Mr. Camreta’s
school interview violated S.G.’s Fourteenth Amendment right to
remain in the care, custody, and control of her parents.
In fact, counsel for the Greenes unsuccessfully argued in
responding to the defendant’s motions for summary judgment that
S.G.’s Fourth Amendment violation claim against Mr. Camreta for
the school interview implicitly included an allegation of a violation of
139
S.G.’s Fourteenth Amendment rights. The district court rejected
this argument, finding that even if the Greenes pleaded the school
interview as a violation of S.G.’s Fourteenth Amendment rights, it
would still analyze the interview only as a violation of S.G.’s Fourth
140
Amendment rights. The court denied the Greene family the ability
to recover under the Fourteenth Amendment because “the challenged
conduct falls under a more specific constitutional right,” which is the
141
Fourth Amendment in this case. The court’s ruling was based on
two cases involving § 1983 actions, each brought by a plaintiff
against the government for investigatory conduct in pursuit of
142
suspected criminal defendants. The district court decided that the
cases were dispositive of the allegations Ms. Greene filed on behalf of
143
S.G., despite the fact that S.G. was a suspected victim of crime.
Attorneys should revive this argument because the district court’s
ruling on this issue seems at odds with Ninth Circuit case law
regarding both parent and child Fourteenth Amendment rights to care,
custody, and control. Recall that in Camreta, the Supreme Court
vacated only the Fourth Amendment holding, so the Ninth Circuit
continues to be bound by its holding in Greene that Mr. Camreta
violated Ms. Greene’s Fourteenth Amendment rights by excluding her
from her daughters’ medical examinations despite the existence of a
court order for the medical examinations. In addition to Greene, there
 
138See id. at 26 (Count 3 alleged violations against Mr. Camreta and the sheriff for
violating S.G.’s Fourth Amendment rights during the school interview, while omitting an
allegation that the school interview violated S.G.’s Fourteenth Amendment right to remain
in parental care, custody, and control; Count 4 alleged violations against the sheriff for
violating S.G.’s Fourth Amendments during the school seizure.).
139 Greene v. Camreta, No. Civ. 05-6047-AA, 2006 WL 758547, at *6 n.1 (D. Or. Mar.
23, 2006).
140 Id.
141 Id. at *6.
142 Id. (citing Albright v. Oliver, 510 U.S. 266, 272–75 (1994); Graham v. Connor, 490
U.S. 386, 394–95 (1989)).
143 Id.
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2012] Ending Family Trauma Without Compensation 1447

is older Ninth Circuit precedent in Wallis that the Fourteenth

Amendment guarantees that parents have a right to be with their
children during medical procedures, and children have a
corresponding right to be near their parents during medical
144
procedures absent valid reason.
Next, attorneys may argue that the same CPS conduct that violated
the parent’s Fourteenth Amendment rights also violated the child’s
Fourteenth Amendment rights, due to the unique constitutional
protection that has been historically afforded to parent and child. The
Greene family’s complaint did not contain an allegation that the
school interview violated either Ms. Greene’s or S.G.’s associational
Fourteenth Amendment rights. Although the Ninth Circuit has
recognized the associational aspect of the Fourteenth Amendment
with regard to the child less frequently, arguing that both children and
parents can file suit for violations of family autonomy under the
protections of the Fourteenth Amendment is a viable legal claim that
should not be overlooked when drafting a § 1983 complaint against
CPS.
Finally, attorneys should argue that CPS conduct that violates a
child’s Fourth Amendment rights is the same wrongful conduct that
also violates a parent’s Fourteenth Amendment right to care, custody,
and control of children. The Greene family alleged only that Mr.
Camreta’s school interview violated S.G.’s Fourth Amendment rights
and did not allege that Mr. Camreta’s school interview interfered with
Ms. Greene’s Fourteenth Amendment right to the care, custody, and
145
control of her children. The Ninth Circuit noted in a footnote that
the Greenes failed to specifically plead this allegation against the
146
defendants regarding the school interview, which is unfortunate
because the family contemplated using this theory against a different
aspect of CPS’s conduct in the child abuse investigation, namely the
removal and medical examinations of K.G. and S.G. This issue has
never been argued in the Ninth Circuit, so attorneys should look for
opportunities to incorporate this legal theory into case law so that
families have a greater opportunity to recover compensation. For this
argument, it seems logical that the Ninth Circuit might be more
inclined to reestablish strong protections for the autonomy of the
relationship between parent and child, especially when the factual
 
144 Greene v. Camreta, 588 F.3d 1011, 1036–37 (9th Cir. 2009).
145 See Joint Appendix, supra note 132, at 26 (Count 3).
146 Greene, 2006 WL 758547, at *6 n.1.
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circumstances of CPS’s unconstitutional conduct violated the rights of

a young child or a non-abusive plaintiff-parent, which was the factual
circumstances for the plaintiffs in Greene, Wallis, and Calabretta.

CONCLUSION
It is clear that CPS agencies and caseworkers serve a difficult and
crucial role in society in carrying out the mission of protecting the
nation’s children from neglect and abuse. However, liability gaps
exist whereby some undeserving family members are being separated
from one another and traumatized by government actors while those
responsible are able to escape punishment and accountability.
Obtaining compensation for victims of wrongful child abuse
investigations may begin to provide families with a small semblance
of validation or closure. The way in which attorneys frame CPS’s
conduct, in terms of whose and which rights are violated in
anticipation of qualified immunity defenses, is vital to drafting a
§ 1983 complaint that gives families the best odds of recovering
compensation.
ADDENDUM
As of May 1, 2012, the Greenes continue their legal fight for
compensation in a federal court in Oregon on the two claims that the
Ninth Circuit reversed and remanded, which were against Mr.
Camreta for alleged misrepresentations in obtaining the removal order
and against the health center for Fourteenth Amendment violations
during the performance of the medical examinations on S.G. and
147
K.G.

 
147 Interview with counsel for the Green family, Mikel R. Miller, Attorney at Law, Law
Office of Mikel R. Miller (May 1, 2012).