April 10 2013 09:49 AM

Examinations on children taken from parents is questioned on civil-rights grounds

Illustration by Adam Vieyra

    When abused and neglected kids are taken to the county-run Polinsky Children's Center, medical professionals perform examinations that include inspections of their genitalia. To some people, the screenings are invasive, and some federal court opinions have suggested that children's civil rights are violated in certain strip searches.

    Oceanside attorney Donnie Cox, who sues the county when he believes it has improperly taken a child from a family,says the county's examination protocols are too intrusive.

    "When they bring a child into Polinsky, they will strip that child naked," Cox told CityBeat. "Parents are not allowed to be part of the examination or be there, and they make no effort" to contact the parent.

    State governments have an interesting dilemma on their hands: When social workers investigate physical or sexual abuse, child-welfare agencies can remove children from a home, but circuit courts have said that there are times when procedures, like strip searches of children, violate constitutional rights unless there's parental consent, a warrant or other circumstances. Federal court cases provide some direction on what is and isn't permitted, but the Supreme Court hasn't directly ruled on the matter. 

    In San Diego County, the implications are far-reaching. Each year, more than 2,000 children—typically abused or neglected—cycle through Polinsky, formally known as the A.B. and Jessie Polinsky Children's Center.

    Oftentimes, kids stay at Polinsky for only a few weeks and can be as young as toddlers. They routinely undergo medical examinations shortly after intake.

    Cox believes that the exams are fishing expeditions, but health officials cite benefits to the screenings, such as finding previously unknown medical problems.

    CityBeat's request to inspect county child-welfare policies was not immediately fulfilled. County spokespeople and the chief of the county's Probation Department didn't respond to multiple requests for comment. Assistant County Counsel Deborah McCarthy declined to comment.

    Cox believes that a 2011 Supreme Court decision, Camreta v. Greene, reaffirmed a finding by a federal appeals court that a state or county can't do certain kinds of examinations without consent or a court order. That appeal, Wallis v. Spencer in the U.S. Ninth Circuit Court of Appeals, reversed a lower court's decision that gave immunity to the city of Escondido for liability involving body-cavity examinations. In evaluating for sexual abuse, a physician performed the examinations in a hospital. The court, however, noted it agreed with a Second Circuit decision that found investigatory physical examinations can't be conducted in the absence of parental consent unless a judicial officer has been involved.

    In 2003, Judge John Houston, a U.S. District Court judge for the Southern District of California, wrote a decision in a case in which county officials sought judgment without a trial.The case involved the county removing two girls, 4 and 6 years old, from a family after a teacher recorded the youngest saying her vagina was sore because her father tickled her there. A child-welfare worker questioned the mother's fitness to assume custody.

    In the case, county officials did not dispute that children "are subjected" to a physical examination upon arrival without parental consent or notification. Instead, the county has used what's known as a "general consent order." The order, in this case issued in 1998 by a Superior Court judge, permits physical exams for children who are in temporary custody of the county, under certain circumstances: Parents or guardians can't be located, the child is an infant or not yet able to speak and the child appears in need of treatment.

    Houston wrote that a medical examination that includes inspecting a child's external genitalia is significantly intrusive. "Although the county's interest in protecting the health of the children in Polinksky[sic] is important," he wrote, "it does not overweigh the invasive nature of the medical examinations performed without consent when the parent is available to authorize it."

    Rebecca Gudeman, a lawyer with the Oakland-based National Center for Youth Law, said Houston's comments are not binding and could just be extraneous language in a broader decision.

    Saint Louis University School of Law professor Teri Dobbins Baxter investigated the balance between child-welfare actions and the Fourth Amendment's protection against unreasonable searches for a 2012 article in the William & Mary Bill of Rights Journal, titled "Constitutional Limits on the Right of Government Investigators to Interview and Examine Alleged Victims of Child Abuse or Neglect." Baxter wrote that the U.S. Third Circuit Court of Appeals found that to justify a strip search of a child, a social worker must obtain a warrant or a court order supported by probable cause, receive parental consent or identify "exigent"circumstances, such as serious bodily injury or to protect or preserve life.

    The nation's highest court has provided some direction on what is and isn't constitutional when medical professionals are involved. Baxter's article said the Supreme Court in 2001 raised some Fourth Amendment concerns in Ferguson v. City of Charleston. The case dealt with a local hospital that took urine samples of pregnant women as part of a drug-screening program, which the group of female plaintiffs said was done without their consent. The article suggested that the arrangement raised constitutional issues because law-enforcement officers were involved in several steps of the process.

    As part of her analysis, Baxter wrote that social workers should be allowed to inspect a child's genitals only pursuant to a warrant or probable cause; that the inspection should be done only in the presence of parents—provided they won't interfere with the examination—and that children should consent if they understand the nature of the allegations and need for examination.

    "You have these regulations that may be constitutional; they may not be," Baxter told CityBeat. "We only know when they get challenged and go to the courts. So, aside from what the courts have done, you can have a situation where there's a regulation or even procedures or guidelines set up by a particular state that have never been challenged."

    Cox's lawsuit that raises the medical-examination issue was filed in 2011 and makes several additional claims stemming from the county's removal of four children from their family home on grounds of physical abuse.

    In a deposition in that case, Dr. Nancy Graff, a medical director at the Polinsky Children's Center, states that the examination includes inspection of external genitalia, hymen and rectum. Cox says the examinations are county procedure.

    "There's no question that their policy and practice is unconstitutional," Cox said. To comply with the Constitution, a government agency needs parental consent, a court order for that child, an immediate medical necessity or "exigent" circumstance, such as preserving evidence in a known rape case, he said. 

    He said the county is using children as pieces of evidence. 

    Rady Children's Hospital contracts with the county to provide medical services at Polinsky. Charles Wilson, executive director of Rady's Chadwick Center for Children and Families, said the purpose of examinations is medical health, adding that they're similar to a thorough medical examination in any good pediatric checkup.

    He wrote in an email that the screenings have uncovered medical issues with children that their medical charts had not cited, such as skin problems, developmental delays, scoliosis, heart murmurs, visual impairments, asthma, diabetes and sexually transmitted diseases in teenagers, as well as physical-development issues such as one leg being shorter than another.

    The hospital also performs forensic medical examinations at the Chadwick Center that can reveal evidence of sexual abuse. 

    "If your child was in Polinsky, you would want other children being brought in to be examined, too, to be sure they weren't bringing in communicable diseases," Wilson said. "I think the county is actually being very wise."

    Write to davidt@sdcitybeat.com or follow him on Twitter at: @cityscrub


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