Facts

Plaintiff Jennifer Franet shared custody of her two children, Sage, age 4, and Zachary, age 7, with her ex-husband. In mid-July, 2001, Sage and Zachary began therapy as part of a court-ordered counseling program. On August 2, Franet informed the therapist that she had certain hygiene concerns about Sage when Sage visited her father. Franet stated that Sage often would come home with dirty underwear and a rash. The therapist spoke to the father about this and filed a report on August 6 with Child Protective Services. On August 7, defendant social worker Karen Castro requested that Franet bring Sage in for an interview at the Child Abuse Listening Interviewing Coordination Center (CALICO). The interview took place on August 14. Sage said that her father held her tightly and that he touched her on many parts of her body in a manner that she did not like. The interviewer determined that Sage and the father both were fully clothed during such episodes but never got Sage to describe exactly what happened. The next day, on August 15, Castro had Sage undergo a sexual assault exam at a local hospital. Castro concluded that Sage had been sexually abused by her father for a long time and informed Franet. The day following that exam, defendant social worker Joan Hintzen filed a juvenile court dependency petition seeking termination of the custody rights of both parents, which was later dismissed. In the interim, Castro arranged for immediate removal of both Sage and Zachary without getting a warrant. They were placed in foster care in the Midwest. Franet's initial contact with the children was limited to one-minute phone calls three times a week, and a one-hour supervised visit nine days after their removal. Pursuant to Welfare & Institutions Code Section 313, a petition must be filed in juvenile court within 48 hours of the time of seizure. Release is required if the petition is not filed within that time. Hintzen conceded certain misrepresentations in the petition, including misrepresenting the date the children were removed to make the petition appear timely. On October 12, a juvenile court reviewed the facts uncovered in the county's investigation and found that Sage was a "medically healthy child" with mild redness in the vaginal area possibly due to bad hygiene. There was no real evidence that Sage had been subjected to sexual molestation or other improper conduct. The judge ordered that Sage and Zachary be returned to Franet. Franet filed suit against Alameda County, Castro and Hintzen claming the removal violated Franet's civil rights and that the sexual assault exam had been conducted without Franet's consent. Franet alleged violations of her Fourth Amendment rights against unreasonable searches and seizure and her Fourteenth Amendment rights that protect against child removals without due process of law.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that there were numerous errors on defendants' part including failure to comply with specific procedural requirements regarding the removal of the two children. Franet claimed that the social workers had adequate time prior to removal to apply for a warrant, as required by law, but chose not to. Franet also contended that the county hadn't bothered to obtain any warrants at all in the nearly 4,000 seizures of children within the last three years. Franet also contended that Sage's remarks about her father related to his habit of restraining her during temper tantrums and therefore did not justify removal. Franet further contended that the social workers violated CALICO regulations by not conducting face-to-face interviews with the children and parents before the CALICO interview and that the interview itself was conducted contrary to established practices, which avoid leading and compound question in favor of open-ended questions. Franet denied that she gave her consent for the sexual assault exam and further claimed that Hintzen failed to inform the juvenile court that Sage twice denied any improper conduct by her father. Plaintiff's experts testified that the CALICO interview was ineffective because it was below standards and not in accordance with standard protocol.

DEFENDANTS' CONTENTIONS:
The defendants argued that reasonable cause existed for removal pending the investigation. Castro and Hintzen contended that they were immune from liability because they acted properly under the circumstances based upon their understanding that Sage would occasionally come home with redness in the vaginal area and that she had difficulty both with walking and with urinating. Castro contended that she consulted with an assistant district attorney who was present at Sage's interview, a police officer, and Hintzen's supervisor, all of whom approved of the decision for immediate removal. A defense expert testified that although the CALICO interview was below today's standards, it was appropriate under the standards applicable at the time.

Settlement Discussions

Franet offered to settle for $475,000 plus $475,000 in attorney fees. The defendants offered $20,000.

Specials in Evidence

$9600

Damages

The plaintiff claimed lost wages, lost future wages (based upon effect upon retirement calculations) and compensatory damages for her physical injury and emotional pain and suffering.

Injuries

Franet claimed that she suffered a nervous breakdown, including a brief psychotic episode occurring 12 days after the removal of the children, and that she was hospitalized for five days. Her expert testified that the nervous breakdown was due to the removal. Defendants' expert testified that although the removal was stressful, this should have been alleviated by the comfort to Franet in knowing that the children were free from the alleged sexual abuse by the father. Defendants' expert further testified that there was no known literature or evidence that removal of children and placement in foster care could trigger a psychotic episode or a nervous breakdown.

Result

The jury returned a verdict for the plaintiff. The court awarded a total of $1,220,000, comprised of $50,000 for Sage's sexual assault claim, $600,000 for Sage's wrongful removal, $400,000 for Zachary's wrongful removal, and $85,000 for each of the custody removals. Hintzen was dismissed as a defendant on the basis of immunity.

Other Information

The plaintiff will move for attorney fees.

Deliberation

five hours

Poll

8-0

Length

11 days