Mark Mann v. County of San Diego , 907 F.3d 1154 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK MANN; MELISSA MANN; Nos. 16-56657
N.G.P.M., a minor-by and through 16-56740
their Guardian Ad Litem, Bruce
Paul; M.N.A.M., a minor-by and D.C. No.
through their Guardian Ad Litem, 3:11-cv-00708-
Bruce Paul; N.E.H.M., a minor-by GPC-BGS
and through their Guardian Ad
Litem, Bruce Paul; M.C.G.M., a
minor-by and through their Guardian OPINION
Ad Litem, Bruce Paul,
Plaintiffs-Appellees/
Cross-Appellants,
v.
COUNTY OF SAN DIEGO; SAN DIEGO
COUNTY HEALTH AND HUMAN
SERVICES AGENCY; POLINSKY
CHILDREN’S CENTER,
Defendants-Appellants/
Cross-Appellees.
2 MANN V. CTY. OF SAN DIEGO
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted May 15, 2018
Pasadena, California
Filed October 31, 2018
Before: Kim McLane Wardlaw, Jacqueline H. Nguyen,
and John B. Owens, Circuit Judges.
Opinion by Judge Wardlaw
SUMMARY *
Civil Rights
The panel affirmed in part and reversed in the part the
district court’s summary judgment in an action alleging that
the County of San Diego acted unconstitutionally when it
removed children from their family home under a suspicion
of child abuse, took them to a temporary shelter, and
subjected them to invasive medical examinations, including
a gynecological and rectal exam, without their parents’
knowledge or consent and without a court order authorizing
the examinations.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MANN V. CTY. OF SAN DIEGO 3
The panel held that the County violated the parents’
Fourteenth Amendment substantive due process rights when
it performed the medical examinations without notifying the
parents and without obtaining either the parents’ consent or
judicial authorization. The panel stated that in an emergency
medical situation or when there is a reasonable concern that
material physical evidence might dissipate, the County may
proceed with medically necessary procedures without
parental notice or consent. Neither exception applied in this
case. The panel held that the County’s failure to provide
parental notice or to obtain consent violated the parents’
Fourteenth Amendment rights and the constitutional rights
of other Southern California parents whose children were
subjected to similar medical examinations without due
process. The panel further held that the County violated the
children’s Fourth Amendment rights by failing to obtain a
warrant or to provide these constitutional safeguards before
subjecting the children to these invasive medical
examinations.
COUNSEL
David Brodie (argued) and Caitlin E. Rae, Senior Deputies;
Thomas E. Montgomery, County Counsel; Office of the
County, San Diego, California; for Defendants-
Appellants/Cross-Appellees.
Donnie R. Cox (argued), Law Office of Donnie R. Cox,
Oceanside, California; Paul W. Leehey, Law Office of Paul
W. Leehey, Fallbrook, California; for Plaintiffs-
Appellees/Cross-Appellants.
4 MANN V. CTY. OF SAN DIEGO
OPINION
WARDLAW, Circuit Judge:
We have long recognized the potential conflict between
the state’s interest in protecting children from abusive or
neglectful conditions and the right of the families it seeks to
protect to be free of unconstitutional intrusion into the family
unit, which can have its own potentially devastating and long
lasting effects. Here, San Diego County (County) social
workers removed four children under the age of six from
their family home under a suspicion of child abuse, took
them (as was routine) to Polinsky Children’s Center
(Polinsky) for temporary shelter, and subjected them to
invasive medical examinations, without their parents’
knowledge or consent and without a court order authorizing
the examinations. The family sued the County and others,
alleging violations of the parents’ Fourteenth Amendment
and the children’s Fourth Amendment rights. On cross-
motions for summary judgment, the district court concluded
that the County’s custom and practice of performing the
medical examinations without notifying parents and
excluding parents from those examinations violates the
parents’ Fourteenth Amendment rights. The district court
further concluded, however, that the Constitution did not
require the County to obtain the parents’ consent or a court
order. The district court did not address whether the
children’s Fourth Amendment rights were violated by the
invasive medical examination.
These cross-appeals require us to determine whether the
County violates the Fourth and Fourteenth Amendments
when, absent exigent circumstances or a reasonable concern
that material physical evidence might dissipate, it subjects
children to medical examinations without first notifying
MANN V. CTY. OF SAN DIEGO 5
parents and obtaining parental consent or judicial
authorization for the examinations. 1
I.
Mark and Melissa Mann are the parents of four children:
N.G.P.M., born in 2004, and N.E.H.M., M.C.G.M., and
M.N.A.M., triplets born in 2006. Mark is the director of the
Wesleyan Center for 21st Century Studies at Point Loma
Nazarene University. Melissa is a nurse midwife at Scripps
Hospital. In April 2010, two incidents led to the removal of
the Manns’ children, then ages 6 and 4 (the triplets), from
their family home and their admission to Polinsky.
On Monday, April 6, 2010, N.E.H.M.’s preschool
director called Mark Mann after observing a red mark on her
lower back. Mark went to the preschool and explained that
he had struck N.E.H.M. with a wooden spoon the night
before in a misguided effort to calm her. The preschool
director told Mark that as a mandatory reporter, she was
required to report the incident to the San Diego County
Health and Human Services Agency (HHSA). With Mark
in the room, the director reported the incident on HHSA’s
child abuse hotline and indicated that Mark was cooperative.
In the following days, HHSA social workers interviewed
Mark, Melissa, and the children at their home. Mark and
Melissa agreed to receive supportive services and each
signed a voluntary safety plan, which, among other things,
prohibited Mark from using physical discipline on the
1
Following the district court’s determination of Monell liability,
Monell v. Department of Social Services, 436 U.S. 658 (1978), the
parties settled all but the Monell claim against the County.
Consequently, we consider only the claims against the County.
6 MANN V. CTY. OF SAN DIEGO
children and required the presence of a third party when help
was needed to adequately care for the children.
During one of these visits, social workers noticed that
M.N.A.M. had a bruise on his forehead. Melissa explained
that M.N.A.M. had hit his head on a kitchen countertop.
When the social workers asked to photograph the bruise,
however, Melissa protested that it felt “manipulative,” but
later that day she apologized to the social workers and
volunteered to take N.E.H.M and M.N.A.M. to Rady
Children’s Hospital for a “Suspected Child Physical Abuse
and Neglect Examination.” The next day, the children’s
examining physician concluded that N.E.H.M.’s red mark
was consistent with Mark’s explanation, and that
M.N.A.M.’s bruise was “most likely accidental.”
Despite Mark and Melissa’s cooperation, the social
workers decided to prepare a dependency application in
order to remove the Mann children from their home. The
social workers omitted exculpatory evidence from the
application 2—evidence that the district court later concluded
would have rendered the application insufficient to support
a protective custody warrant. Relying on the flawed
application, the juvenile court issued a warrant authorizing
the removal of the children on April 12, 2010, and the
County removed the Mann children from their home and
took them to Polinsky later that day. Upon their admission
to Polinsky, the children met with a nurse who performed a
2
The application excluded, for example, Mark and Melissa’s
agreement to take the children to Rady Children’s Hospital, and
Melissa’s suggestion that the children be taken to a physician. It also
said that Melissa had been “confrontational and hostile” and “had
refused to cooperate” with the social workers.
MANN V. CTY. OF SAN DIEGO 7
cursory examination, checking the children’s vital signs and
their heads for lice, as well as made sure they had no urgent
medical needs. 3
The next day, April 13, 2010, Mark and Melissa
appeared at a detention hearing at the juvenile court, where
the County asked them to sign a “Consent for Treatment –
Parent” form. The standardized form authorized treatment
only if the treatment was “recommended by a licensed
physician . . . .” The form permitted the parents to indicate
whether they preferred treatment by “Private Physician” or
“Other Licensed Hospital/Medical Facility.” Mark Mann
signed the form and indicated that, if treatment was
necessary, they preferred it to be provided by the children’s
private physician at Scripps Health.
Meanwhile at Polinsky, while the Manns were appearing
in court, a doctor, Nancy Graff, performed a ten- to fifteen-
minute medical examination of each of the Mann children
that included a twenty-two point assessment of general
appearance, behavior, mental status, and specific parts of the
body (e.g., skin, head, and eyes). The examination also
included a gynecological and rectal exam, which involved a
visual and tactile inspection of the children. For the
gynecological exam, Dr. Graff testified that she asked the
girls to “kind of drop their legs into a frog leg situation,” and
“separate[d] the labia and look[ed] at the hymen . . . .” Staff
also administered tuberculosis tests, requiring pricks of the
children’s skin, and the children gave blood and urine
samples for drug screening. If staff observed signs of abuse,
the County required them to photograph the abuse for the
3
The Manns do not challenge the constitutionality of this initial
cursory examination, and this opinion addresses only the subsequent
medical examinations of the children.
8 MANN V. CTY. OF SAN DIEGO
children’s records. No one notified Mark and Melissa that
their children were examined.
Since at least November 2003, the County routinely
performed this medical examination on children admitted to
Polinsky after a juvenile court order authorized it to “obtain
a comprehensive health assessment as recommended by the
American Academy of Pediatrics (AAP), including a mental
status evaluation, for a child prior to the detention hearing
. . . .” 4 The County, however, excluded from its examination
practices verbal children re-admitted to Polinsky within a
short period of time, reasoning that such children are able to
tell County officials about any abuse they experienced
between their last discharge and their readmission.
The day after the Mann children were subjected to this
medical examination, they were released from Polinsky to
the custody of their paternal grandmother, who resided in the
family home until the dependency proceedings were
resolved. Months later, after a trial, the juvenile court
dismissed the dependency petition, concluding that it was
unsupported by sufficient evidence. Mark and Melissa were
never notified that their children had been examined, and did
not suspect that any medical examinations had taken place
until N.G.P.M. told Melissa that “two ladies at the college
[Polinsky] said they needed to touch me down there,” and
4
The 2007 order authorizing the examinations expired in January
2011, and the parties have not included an updated court order in the
record. The Polinsky medical examination purported to follow the
guidelines prescribed by the AAP for the “Health Care of Young
Children in Foster Care.” The AAP guidelines instruct that “whenever
possible, confirmation should be obtained from the birth parents” and
“birth parents should be encouraged to be present at health care visits
and to participate in health care decisions.” The County did not follow
these guidelines.
MANN V. CTY. OF SAN DIEGO 9
demonstrated what she was required to do for the
gynecological and rectal exam.
The Mann family filed suit against the County in April
2011, alleging violations of the Fourth and Fourteenth
Amendments pursuant to 42 U.S.C. § 1983 against the social
workers and the County, as well as asserting state law
claims. The Manns contended that the County violated their
Fourteenth Amendment rights and the children’s Fourth
Amendment rights by: (1) performing the medical
examinations in the absence of exigency, valid parental
consent, or court order specific to the child examined, and
(2) failing to notify the parents of the examinations so that
they may be present.
While the Manns’ case was pending before the district
court, the County settled a second case with a different
Southern California family, not party to this suit, who had
also alleged that the County’s practices of conducting the
Polinsky medical examinations without parental notice and
outside the presence of parents violated the Constitution.
See Swartwood v. Cty. of San Diego, 84 F. Supp. 3d 1093,
1098–104 (S.D. Cal. 2014). 5 To settle that lawsuit, the
County proposed “modifying its consent forms, including to
provide notification to parents and guardians of their right to
be present at the exams;” “modifying the Polinsky
Children’s Center’s facilities and procedures to allow for
parental presence at examinations upon request;” and
“modifying the Agency’s requests to the Juvenile Court for
child-specific orders authorizing exams and treatment of
children, if parents refuse to consent to the examinations.”
Swartwood v. Cty. of San Diego, No. CV 12-1665 W
(BGSx), Petition For Approval of Minors’ Interest in
5
The Manns’ motion for judicial notice is GRANTED.
10 MANN V. CTY. OF SAN DIEGO
Settlement of Action, Dkt. No. 98-1, at 6–7. The County did
not appeal the judgment in the Swartwood case, and the
district court’s final order approving the minor’s
compromise omitted these remedial measures. 6 Id., Dkt.
Nos. 100, 101, 103.
Notwithstanding the Swartwood court-approved
settlement, the County contested the Manns’ claims. In
November 2015, the district court granted in part the
County’s motion for summary judgment and granted in part
the Manns’ cross-motion for summary judgment. The
district court determined that the County had a policy of
6
Both the County and the Manns’ attempts to use the Swartwood
settlement as a procedural weapon fail. The Manns argue that the County
should be collaterally estopped from re-litigating whether the Polinsky
medical examinations violate parents’ constitutional rights. We have
“hesitate[d] to give preclusive effect to the previous litigation of a
question of law by estoppel against a state party when no state law
precedent compels that we do so,” Coeur D’Alene Tribe of Idaho v.
Hammond, 384 F.3d 674, 689 (9th Cir. 2004), and we decline to do so
here. “Rather than risk that an important legal issue is inadequately
considered” in a district court settlement, we decide the issue for the first
time for our Circuit. Id. at 690.
Nor does the Swartwood settlement render this appeal moot, as the
County argues. The County’s decision to change its practice of
conducting medical examinations without parental knowledge or
consent falls under the “voluntary cessation” exception to the mootness
doctrine. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000). The County has not demonstrated that it
is legally bound to continue use of its new consent forms or its new
practices, and the district court order approving the Swartwood minor’s
compromise does not mention the County’s proposed remedial
measures. Notably, the County has maintained throughout this litigation
that it is not constitutionally bound to provide notice and consent. Even
more importantly, the Manns seek monetary relief, for which they are
eligible regardless of the County’s current practices.
MANN V. CTY. OF SAN DIEGO 11
barring parents from the Polinsky medical examinations.7
And, although the district court concluded that the
Fourteenth Amendment required the County to notify Mark
and Melissa of the Polinsky medical examinations and to
include them during the examinations, it also concluded that
the County was not constitutionally obligated to obtain the
parents’ consent or a court order to conduct the
examinations.
The Manns and the County then settled most of their
claims and dismissed all claims against the social workers.
This settlement did not include the Monell claim concerning
the Polinsky medical examinations. The County timely
appealed this claim, contending that the Fourth and
Fourteenth Amendments did not require it to provide
advance notice to the parents. The Manns cross-appealed,
arguing that the Fourth and Fourteenth Amendments
required not only advance notice to parents but also consent
or a court order to conduct the examinations. Thus the issue
before us is whether the County’s practice of not notifying
parents and not obtaining either parental consent or judicial
authorization in advance of the Polinsky medical
examinations violates the Fourth and Fourteenth
Amendments.
II.
The Manns contend that the Polinsky medical
examinations violate their privacy rights, which are
protected as a matter of substantive due process under the
Fourteenth Amendment. The Mann children, through
7
The County no longer disputes this point as it did before the district
court.
12 MANN V. CTY. OF SAN DIEGO
guardian ad litem Bruce Paul, assert that the Polinsky
medical examinations violate their constitutional right to be
free from unreasonable searches under the Fourth
Amendment. 8 We first address the parents’ Fourteenth
Amendment claims and then turn to the children’s Fourth
Amendment claims. 9
A.
We conclude that the County violates parents’
Fourteenth Amendment substantive due process rights when
it performs the Polinsky medical examinations without
notifying the parents about the examinations and without
obtaining either the parents’ consent or judicial
authorization. See Wallis v. Spencer, 202 F.3d 1126, 1141
(9th Cir. 2000). “The right to family association includes the
right of parents to make important medical decisions for
their children, and of children to have those decisions made
by their parents rather than the state.” Id. (citing Parham v.
8
Although the Mann children are also protected by the privacy
guarantees of the Fourteenth Amendment, the Supreme Court has
instructed that their claims are best analyzed under the Fourth
Amendment, which provides an “explicit textual source of constitutional
protection” for their claims that they were subjected to an unreasonable
search. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998).
9
We note that three district courts in the Southern District of
California have already found certain of the County’s practices
concerning the Polinsky medical examinations unconstitutional. See
Parkes v. Cty. of San Diego, 345 F. Supp. 2d 1071, 1091–95 (S.D. Cal.
2004) (concluding that the County’s policy of failing to notify or obtain
consent from the children’s parents to conduct the Polinsky medical
examinations violated the Fourth and Fourteenth Amendments);
Reynolds v. Cty. of San Diego, 224 F. Supp. 3d 1034, 1062–69 (S.D. Cal.
2016) (concluding that the County’s policy of excluding parents from
the Polinsky medical examinations was unconstitutional); Swartwood,
84 F. Supp. 3d at 1116–24.
MANN V. CTY. OF SAN DIEGO 13
J.R., 442 U.S. 584, 602 (1979), and Calabretta v. Floyd,
189 F.3d 808 (9th Cir. 1999)). In our 2000 decision in
Wallis, we agreed with the Second Circuit that the
Constitution assures parents that, in the
absence of parental consent, [physical
examinations] of their child may not be
undertaken for investigative purposes at the
behest of state officials unless a judicial
officer has determined, upon notice to the
parents, and an opportunity to be heard, that
grounds for such an examination exist and
that the administration of the procedure is
reasonable under all the circumstances.
Id. (quoting van Emrik v. Chemung Cty. Dep’t of Soc. Servs.,
911 F.2d 863, 867 (2d Cir. 1990)). We held that “[b]arring
a reasonable concern that material physical evidence might
dissipate . . . or that some urgent medical problem exists
requiring immediate medical attention, the state is required
to notify parents and to obtain judicial approval before
children are subjected to investigatory physical
examinations.” Id.
The County counters by attempting to distinguish Wallis
on the ground that its holding applies only to investigatory
medical examinations. The County claims that the Polinsky
medical examinations are not investigatory. Rather, it
argues, the examinations are conducted to assess the child’s
“mental health” and are conducted in a “light, pleasant
atmosphere.” But, as the district court found, there is no
dispute here that the Polinsky medical examinations are
investigatory because the “physician is looking for signs of
physical and sexual abuse.” Dr. Graff, who examined the
Mann children and was the co-medical director of Polinsky,
14 MANN V. CTY. OF SAN DIEGO
testified that she and her staff “look closely for any evidence
of physical abuse” and document any evidence they find.
The Polinsky medical examinations are not routine pediatric
exams. Notably, the County exempts verbal children from
the Polinsky medical examinations under certain
circumstances because they can adequately describe
potential abuse, irrespective of their immediate medical
needs. That these examinations may serve dual purposes
does not negate the investigatory character of the
procedures.
The County’s attempts to parse a purely non-
investigatory purpose out of the Polinsky medical
examinations are not persuasive, especially because medical
examinations of young children are particularly likely to
have dual purposes as the “investigation of [] abuse for child
protection purposes may uncover evidence of a crime.”
Greene v. Camreta, 588 F.3d 1011, 1026–27, 1029 (9th Cir.
2009), vacated in part as moot 661 F.3d 1201 (9th Cir.
2011). As we observed in Greene, “‘disentangling [the goal
of protecting a child’s welfare] from general law
enforcement purposes’ becomes particularly ‘difficult,’” id.
at 1026 (citation omitted), because California law requires
mandatory reporters such as medical professionals to notify
law enforcement agencies if they identify signs of child
abuse. Cal. Penal Code § 11165.7; see Greene, 588 F.3d at
1028; accord Roe v. Texas Dep’t of Protective & Regulatory
Servs., 299 F.3d 395, 406–07 (5th Cir. 2002) (holding that
social workers’ investigations regarding alleged child abuse
are not “divorced from the State’s general interest in law
enforcement” because they function “as a tool both for
gathering evidence for criminal convictions and for
protecting the welfare of the child”). Because of these legal
obligations, a child’s medical examination may turn
investigatory even if the examination does not begin as such.
MANN V. CTY. OF SAN DIEGO 15
We conclude that the same rules apply to purely
investigatory examinations as to dual-purpose examinations,
where one of the purposes is investigatory. Thus under
Wallis, the County is required to notify the parents and
obtain parental consent (or a court order) in advance of
performing the Polinsky medical examinations, and permit
parents to be present for these examinations because, while
the examinations may have a health objective, they are also
investigatory. Parental notice and consent is even more
warranted when examinations have dual purposes than when
the purpose is purely for health reasons. Ironically, the AAP
guidelines that the County uses to justify its practices state
that “[w]hen appropriate and as a part of the care plan of the
child welfare agency, birth parents should be encouraged to
be present at health care visits and to participate in health
care decisions.” Am. Academy of Pediatrics, Health Care
of Young Children in Foster Care, 109 Pediatrics 536, 538
(2002). And we agree with the Tenth Circuit’s observation
that “parental consent is critical” in medical procedures
involving children “because children rely on parents or other
surrogates to provide informed permission for medical
procedures that are essential for their care.” Dubbs v. Head
Start, Inc., 336 F.3d 1194, 1207 (10th Cir. 2003) (citing Am.
Academy of Pediatrics, Informed Consent, Parental
Permission, and Assent in Pediatric Practice, 95 Pediatrics
314–17 (Feb. 1995)); see also id. (“It should go without
saying that adequate consent is elemental to proper medical
treatment.”).
The district court erred by concluding that the Polinsky
medical examinations were investigatory in nature but
holding that parental consent was not required because the
procedures were not as invasive as those used in Wallis. See
Wallis, 202 F.3d at 1135 (concerning medical procedures
performed on children including internal body cavity
16 MANN V. CTY. OF SAN DIEGO
examinations of the vagina and rectum). The court’s
analysis should have stopped with its determination that the
medical examinations had an investigatory purpose. A
parent’s due process right to notice and consent is not
dependent on the particular procedures involved in the
examination, or the environment in which the examinations
occur, or whether the procedure is invasive, or whether the
child demonstrably protests the examinations. “Nothing in
Wallis or Greene suggests that the Fourteenth Amendment
liberty interest only applies when a magnifying scope is
used.” Swartwood, 84 F. Supp. 3d at 1118. The amount of
trauma associated with a medical examination, particularly
for young children, is difficult to quantify and depends upon
the child’s developmental level, previous trauma exposure,
and available supportive resources, among other factors. 10
Given this reality, a parent’s right to notice and consent is an
essential protection for the child and the parent, no matter
what procedures are used.
Where parental notice and consent are not possible, the
law admits of recognized exceptions to parental rights. In an
emergency medical situation, the County may proceed with
medically necessary procedures without parental notice or
consent to protect the child’s health. See Mueller v. Auker,
700 F.3d 1180, 1187 (9th Cir. 2012) (“[P]arents have a
‘constitutionally protected right to the care and custody of
their children’ and cannot be ‘summarily deprived of that
10
See 2008 Presidential Task Force on Posttraumatic Stress
Disorder and Trauma in Children and Adolescents, Children & Trauma,
AM. PSYCHOLOGICAL ASS’N, (2008), http://www.apa.org/pi/families/re
sources/children-trauma-update.aspx. But see also Wallis, 202 F.3d at
1142 n.13 (citing R. Lazebnik et al., Preparing Sexually Abused Girls
for Genital Evaluation, 13 ISSUES IN COMPREHENSIVE PEDIATRIC
NURSING 155 (1990) (concluding that vaginal examinations may be
particularly traumatic for young girls when their parents are not
present)).
MANN V. CTY. OF SAN DIEGO 17
custody without notice and a hearing,’ except where ‘the
children are in imminent danger.’”) (quoting Ram v. Rubin,
118 F.3d 1306, 1310 (9th Cir. 1997)). And when there is a
“reasonable concern that material physical evidence might
dissipate,” notice and consent may not be required. See
Wallis, 202 F.3d at 1141. But neither exception applies here.
The County routinely performed the Polinsky medical
examinations after a child’s admission to the facility,
irrespective of any medical emergency or need to preserve
evidence. And here, the County had already photographed
N.E.H.M.’s red mark and M.N.A.M.’s bruise before their
admission to Polinsky, and identified no other evidence it
needed to collect to support its stated basis for the
dependency charge.
There is no indication that providing constitutionally
adequate procedures poses an administrative inconvenience.
Here, had the County wished to notify Mark and Melissa of
the examinations and obtain their consent, it could have
easily done so when they appeared in juvenile court and
signed the form that provided parental consent to future,
medically necessary treatments. 11 And the County’s consent
form adopted in response to the Swartwood litigation
provides parental notice, belying any suggestion that a notice
process would be administratively infeasible. Should a
parent refuse to consent, the County may obtain judicial
authorization for the examination. Because judicial
supervision is almost always required to take a child into
11
The County no longer argues that the “Consent for Treatment –
Parent” form that Mark and Melissa signed supplies valid consent or
notice, as it clearly does not. Because that form does not explain that
Polinsky staff intended to perform (and had likely already performed) a
medical examination of their children and instead asked for consent for
“medical, developmental, dental, and medical health care to be given,”
the form did not adequately apprise Mark and Melissa of the
contemplated procedure.
18 MANN V. CTY. OF SAN DIEGO
protective custody, the County will invariably have a set
time and place to request such judicial approval for the
medical examination.
Nor is the requirement that the County provide parental
notice and obtain consent inconsistent with the County’s
obligation to provide routine or emergency medical care to
children in its custody, or with the 2003 juvenile court order
that specifically authorized the medical examinations.
Accord Sangraal v. City & Cty. of San Francisco, No. C 11-
04884 LB, 2013 WL 3187384, at *14 (N.D. Cal. June 21,
2013). California law requires County social workers to
“notify the parent, guardian, or person standing in loco
parentis of the person, if any, of the care found to be needed
before that care is provided” and permits the County to
provide the care “only upon order of the court in the exercise
of its discretion.” Cal. Welf. & Inst. Code § 369(a). And in
most circumstances, the County may notify the parents,
obtain their consent, and perform the scheduled medical
examinations without interference, as this case illustrates.
We reject the County’s argument that we must also apply
a “shocks the conscience” standard to Mark and Melissa’s
Fourteenth Amendment substantive due process claim under
Monell. Neither Wallis nor Greene applied such a test, and
the County cites no Ninth Circuit authority for the
proposition that this test applies here. As the district court
correctly concluded, Mark and Melissa have a “direct”
Monell claim based on the County’s undisputed policy or
practice of failing to notify parents of the Polinsky medical
examinations, for which they are only required to prove that
the County acted with “the state of mind required to prove
the underlying violation.” Gibson v. Cty. of Washoe, Nev.,
290 F.3d 1175, 1185–86 (9th Cir. 2002), overruled on other
grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th
MANN V. CTY. OF SAN DIEGO 19
Cir. 2016) (distinguishing “direct” from “indirect” Monell
claims, which allege that a municipality violated the
constitution through its omissions and which require a
showing of deliberate indifference). The County’s
deliberate adoption of its policy or practice “establishes that
the municipality acted culpably.” Bd. of Cty. Comm’rs of
Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404–5 (1997)
(“Where a plaintiff claims that a particular municipal action
itself violates federal law, or directs an employee to do so,
resolving the[] issues of fault and causation are
straightforward.”). Our inquiry ends there.
For all these reasons, the County’s failure to provide
parental notice or to obtain consent violated Mark and
Melissa Mann’s Fourteenth Amendment rights and the
constitutional rights of other Southern California parents
whose children were subjected to the Polinsky medical
examinations without due process.
B.
The Mann children possess a Fourth Amendment right
to “be secure in their persons . . . against unreasonable
searches and seizures.” U.S. Const. amend. IV; see also
Wallis, 202 F.3d at 1137 n.8. Because we have concluded
that the Polinsky medical examinations are at least partially
investigatory, the examinations are well within the ambit of
the Fourth Amendment. See Ferguson v. City of Charleston,
532 U.S. 67, 76 n.9 (2001) (“[W]e have routinely treated
urine screens taken by state agents as searches within the
meaning of the Fourth Amendment even though the results
were not reported to the police.”); see also United States v.
Attson, 900 F.2d 1427, 1429 (9th Cir. 1990) (recognizing
that the Fourth Amendment includes searches that are
“somehow designed to elicit a benefit for the government in
an investigatory or, more broadly, an administrative
20 MANN V. CTY. OF SAN DIEGO
capacity”), cert. denied, 498 U.S. 961 (1990); accord Dubbs,
336 F.3d at 1206 (collecting cases). Searches conducted
without a warrant are per se unreasonable under the Fourth
Amendment—subject only to a few “specifically established
and well-delineated exceptions.” See Katz v. United States,
389 U.S. 347, 357 (1967). 12
The County contends that the “special needs” exception
to the warrant requirement applies because the Polinsky
medical examinations have at least a secondary purpose of
safeguarding the health of the child and other children at
Polinsky. “Special needs” cases are cases in which “special
needs, beyond the normal need for law enforcement, make
the warrant and probable-cause requirement impracticable.”
See Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls,
536 U.S. 822, 829 (2002) (quoting Griffin v. Wisconsin,
483 U.S. 868, 873 (1987)). Where the special needs
exception applies, we replace the warrant and probable cause
requirement with a balancing test that looks to “the nature of
the privacy interest,” “the character of the intrusion,” and
“the nature and immediacy of the government’s interest.”
Id. at 830–38.
12
The Mann children’s Fourth Amendment claims are not rendered
moot because they are no longer in the custody and control of the County
or Polinsky’s staff. See Camreta v. Greene, 563 U.S. 692, 710–11
(2011), vacating in part 588 F.3d 1011 (9th Cir. 2009). Because the
Mann children are still minors living in San Diego County, they remain
subject to the possible jurisdiction of the County’s child welfare system,
and therefore it is not “absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” United States v.
Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199, 203 (1968).
MANN V. CTY. OF SAN DIEGO 21
We assume, without deciding, that the “special needs”
doctrine applies to the Polinsky medical examinations, 13 but
conclude that the searches are unconstitutional under the
“special needs” balancing test if performed without the
necessary notice and consent. To reach this conclusion, we
balance the children’s expectation of privacy against the
government’s interest in conducting the Polinsky medical
examinations.
Children removed from their parents’ custody have a
legitimate expectation of privacy in not being subjected to
medical examinations without their parents’ notice and
consent. See, e.g., Yin v. California, 95 F.3d 864, 871 (9th
Cir. 1996) (Persons have “a legitimate expectation of
privacy in being free from an unwanted medical
examination, whether or not that examination entails any
particularly intrusive procedures.”); Vernonia Sch. Dist. 47J
v. Acton, 515 U.S. 646, 657 (1995) (concluding that the
collection of a public school student’s urine sample, as well
as its subsequent analysis, are invasions of societally-
sanctioned expectations of privacy, but ultimately
concluding that the search was reasonable). While the
County’s custodial responsibility and authority over the
children diminishes their privacy interests somewhat,
Parham, 442 U.S. at 603, the children nonetheless maintain
a legitimate expectation of privacy.
Importantly, the Polinsky medical examinations are
significantly intrusive, as children are subjected to visual and
13
In Greene, we concluded that the special needs exception does not
apply to investigatory medical examinations of children removed from
their parents’ custody, see 588 F.3d at 1027, but the Supreme Court later
vacated that portion of our opinion as moot, see 661 F.3d 1201 (9th Cir.
2011).
22 MANN V. CTY. OF SAN DIEGO
tactile inspections of their external genitalia, hymen, and
rectum, as well as potentially painful tuberculosis and blood
tests. See Dubbs, 336 F.3d at 1207. Children are forced to
undress and are inspected, by strangers, in their most
intimate, private areas. See Skinner v. Ry. Labor Execs.’
Ass’n, 489 U.S. 602, 604 (1989) (urination is “an excretory
function traditionally shielded by great privacy.”).
N.G.P.M.’s description of the examination to Melissa
indicates that even at six years old, she knew that the
examination had exposed something private. The County’s
argument that the examinations are “minimally intrusive”
because they are “adjusted to the children’s comfort level,”
ignores that the County routinely subjects children to these
objectively intimate and potentially upsetting procedures. 14
And while the County argues that the test results “were used
only for health-related rather than law enforcement
purposes,” the dual purposes of the search necessarily mean
that the examinations could result in the disclosure of
information to law enforcement, which would further intrude
on the children’s privacy. Cf. Earls, 536 U.S. at 833
(reasoning that because test results were kept in confidential
files released to school personnel only on a “need to know”
14
The County’s comparison of the Polinsky medical examination to
the urinary testing in Earls is not persuasive. In Earls, high school
students who had voluntarily joined non-athletic extracurricular
activities were subjected to urinary testing, which involved the student
giving a urinary sample in the privacy of a bathroom stall. Earls,
536 U.S. at 832. Here, children who have been involuntarily removed
from their parents are subjected to visual and tactile inspections of their
genitals and rectum, in addition to other potentially upsetting procedures.
The Polinsky medical examinations, in context, are far more privacy-
invasive than the testing in Earls.
MANN V. CTY. OF SAN DIEGO 23
basis, this diminished the potential privacy invasion);
Vernonia, 515 U.S. at 658 (same).
While the County’s concern for the health of children in
its custody is important, it has not demonstrated that the
“nature and immediacy” of its interest outweighs the
children’s privacy interests. See Earls, 536 U.S. at 834.
When a child is examined, he or she has already been
admitted to Polinsky and been examined for emergency
medical needs and contagious diseases. 15 While the initial
assessment clearly serves to treat children’s immediate
needs and address potential dangers to other children at
Polinsky, it is less evident how the search at issue does so.
Cf. Mueller, 700 F.3d at 1187. And the County provides no
other interest beyond the health of the child that would make
the need to conduct the search more immediate such that
providing notice and obtaining consent would impede the
provision of necessary medical services.
Nor has the County demonstrated that compliance with
the Fourth Amendment, i.e., providing parental notice and
obtaining consent or judicial authorization, would be
“impracticable.” See Earls, 536 U.S. at 829. To the
contrary, the County’s current policy is to obtain parental
consent and provide advance notice to the parents so that
they can be present at the examination. The County’s
involvement with the juvenile court system throughout the
dependency process provides it with ready access to request
a warrant from the juvenile court if necessary. And as
recognized by the AAP, the Polinsky medical examination
15
Again, the Manns do not contest that the County may perform the
initial medical assessments without parental notice or consent, as those
assessments involve only a cursory observation for satisfactory vital
signs and the absence of lice or fever.
24 MANN V. CTY. OF SAN DIEGO
may even benefit from the involvement of the parents, who
can identify vaccines, medications, allergies, and chronic
diseases that the child may not be able to communicate on
her own. There is no reason to think that parental notice and
consent is “impracticable” in this context.
The Mann children’s experience underscores our
conclusion. Here, the County removed the children from the
family home, and could have sought Mark and Melissa’s
consent at that time. When the children were subjected to
the Polinsky medical examination the next day, Mark and
Melissa were present in court, at which time the County also
could have sought their consent. And there was no suspicion
that the Mann children had been sexually abused or needed
immediate medical attention such that performing the search
was necessary prior to providing Mark and Melissa notice
and obtaining their consent.
Should exigent circumstances, i.e., medical emergency
or the fear of evidence dissipating, necessitate an earlier
examination, the County may perform the examination
without notifying the parent and obtaining consent. But in
general, the County has provided us no compelling reason
why it cannot wait to conduct the Polinsky medical
examinations until it has at least attempted to notify the
parents and obtain consent. See Dubbs, 336 F.3d at 1214–
15 (“While it is certainly true that a properly conducted
physical examination is ‘an effective means of identifying
physical and developmental impediments in children,’ this
supplies no justification for proceeding without parental
notice and consent.” (citation omitted)).
Because the County’s interest in protecting children’s
health does not outweigh the significant intrusion into the
children’s somewhat diminished expectation of privacy, the
County’s policy of subjecting children to the Polinsky
MANN V. CTY. OF SAN DIEGO 25
medical examinations without parental notice and consent is
unreasonable. Thus, we conclude that the County violated
the Mann children’s Fourth Amendment rights by failing to
obtain a warrant or to provide these constitutional safeguards
before subjecting the children to these invasive medical
examinations.
III.
The County’s continued failure to provide parental
notice and obtain consent for the Polinsky medical
examinations has harmed families in Southern California for
too long. Here, the County subjected the Mann children to
invasive medical examinations unbeknownst to their
parents, who were meanwhile trying to cooperate with the
County’s investigation. The Manns were deprived of their
right to raise their children without undue interference from
the government, the right to make medical decisions for their
children, and the right to privacy in their family life. The
Mann children were subjected to invasive, potentially
traumatizing procedures absent constitutionally required
safeguards. Although we must balance these fundamental
rights against the state’s interest, we conclude that the
County is constitutionally required to provide parental notice
and obtain parental consent or judicial authorization for the
protection of parents’ and children’s rights alike.
AFFIRMED IN PART and REVERSED IN PART.