Walsh V Erie County CPS still Another Case of Violation of 4th Amendment Rights by CPS


William Webb

Cherri Webb

Yukon, Oklahoma

IN THE DISTRICT COURT OF CANADIAN COUNTY

STATE OF OKLAHOMA

OKLAHOMA DHS,

(on behalf of the minor children

May, John, and Ann)

Plaintiff

versus

WILLIAM WEBB and CHERRIE WEBB

Defendants

Case No. JD 2004– 19

DEFENDANT’S MOTION TO DISMISS

Defendants, Cherrie and William Webb (parents of the minor children John,
Mary, and Ann of Oklahoma) respectfully request that, under the provisions of 12
O.S. §2012, this Court dismiss the above-styled and numbered case on the
following grounds:

1 Failure to show cause within the prefixed timeframe or anytime thereafter.

2 Violation of the Webb Family’s Constitutionally guaranteed and protected rights.

3 Failure to comply with DHS Policy.

4 Perpetrating fraud upon the Court.

5 DHS interference in the Webb family is a continuing danger.

Defendants Webb and Webb would further show the Court that they have filed a
Brief in support of this Motion.

Respectfully submitted,

________________________

William Webb

Cherrie Webb

Memorandum of Authorities In Support of Motion to Dismiss

Statement of the Case

Plaintiff Canadian County DHS Child welfare specialist , Gabrielle Smart,
entered the residence of William and Cherrie Webb on March 11 2004 at 430AM
with five police officers. She did not present any identification. The police officers
admitted that they did not have a warrant and that they were removing the minor
children Trevour Webb and Caitlin Reed from the home and placing them into
protective custody. Neither the police officers or Gabrielle Smart gave a reason
for this action. Oklahoma City Police Officer Raines threatened the Webb
parents that they would be arrested if they resisted or did not assist the police in
the removal of the children from the home.

Claim

DHS alleges that the minor children are deprived based on physical and
emotional abuse by the mother and failure to protect by the father.

Defendant

William and Cherrie Webb are parents of the minor children, Celeste
Bessenbacher, Caitlin Reed and Trevour Webb

Relief Sought

The relief DHS requests is have the minor children placed in DHS custody and
the Webbs to pay child support.. The Webbs are requesting the immediate
dismissal of this action as well as return of their 17yo daughter who is currently in
Canadian County DHS Custody.

DEFENDANT’S POSITION

It is Defendant’s position that:

The seizure of the children by Gabrielle Smart,child protective services and the
Oklahoma City police department was a violations of the Webbs 4th Amendment
Rights.

The entry into the Webb home for the purpose of “protective custody” of the
children in the home violated the 4th and 14th Amendments rights of the Webbs.

That Gabrielle Smart violated Oklahoma DHS Policy and US Federal Law and
Oklahoma state statutes by failing to identify herself with proper documentation.

That law enforcement officers failed to obtain a warrant before entering the
Webb home failed to reveal the reason for the removal of the children from the
Webb home.

“Best interest of the children” is not served when children are coerced from their
beds based on false and unsubstantiated allegations of child abuse.

Ten judicial days is adequate for substantiation of any allegations requiring
protective custody and emergency removal of children from their home.

By not immediately informing the Webbs of the allegations against them, the
Oklahoma City Police officers and Gabrielle Smart violated the 6th Amendment
rights of the Webbs.

By not conducting a thorough and proper investigation, Canadian County DHS
has violated the order of this Court as well as departmental procedure and
practices.

By not following through with the proposed “safety plan”, Canadian County DHS
has shown that harassment of the Webbs is of greater importance than
monitoring the well-being of stated minor children.

By actively promoting distance between the minor child CeLeste with her siblings
and parents, Canadian County DHS has created trauma and harm for the Webb
family.

By allowing CeLeste Bessenbacher to continue a relationship with an older
unsavory character, Canadian County DHS has placed her well-being and future
in peril.

The following arguments and authorities are presented in support of Defendant’s

position.

Points and Authorities in Support of Dismissal

Tables of Authorities Cited herein:

List of Constitional provisions cited herein:

14th Amendment 1

Warrant Clause of the 4th amendment. 1

List of Cases cited herein:

K.H. through Murphy v. Morgan, 7th Cir. (1990) 1

Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999)
1

Hurlman v. Rice (2nd Cir. 1991)
1

Troxel et vir. v. Granville certiorari to the supreme court of washington No. 99-
138. Argued January 12, 2000–Decided June 5, 2000 1

Walsh v. Erie County Dept. of Job and Family Services 1

List of statutes cited herein:

340:75-3-8. Investigation protocol 1

Washington Rev. Code §26.10.160(3) permits “[a]ny person” to petition for
visitation rights “at any time” 1

§ 2151.421 of the Ohio Revised code 1

——————————————————————————–

1. The seizure of the children by Gabrielle Smart,child protective services and
the Oklahoma City police department was a violations of the Webbs 4th
Amendment Rights.

The United States Court of Appeals for the Ninth Circuit said it best:

“The government’s interest in the welfare of children embraces not only
protecting children from physical abuse, but also protecting children’s interest in
the privacy and dignity of their homes and in the lawfully exercised authority of
their parents.” Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999)

CPS MUST by law comply with the “Warrant Clause” as required by the
Constitution and the Federal Courts whereas they are “governmental officials”
and are subject to the Constitution as are the police. There are NO
EXCEPTIONS to the Constitution for DHS.

According to Walsh v. Erie County Dept. of Job and Family Services, 3:01-cv-
7588.

The social workers argued, “the Fourth Amendment was not applicable to the
activities of their social worker employees.” The social workers claimed, “entries
into private homes by child welfare workers involve neither searches nor seizures
under the Fourth Amendment, and thus can be conducted without either a
warrant or probable cause to believe that a child is at risk of imminent harm.”

The court disagreed and ruled:

“Despite the defendant’s exaggerated view of their powers, the Fourth
Amendment applies to them, as it does to all other officers and agents of the
state whose request to enter, however benign or well-intentioned, are met by a
closed door.”

The Court also stated “The Fourth Amendment’s prohibition on unreasonable
searches and seizures applies whenever an investigator, be it a police officer, a
DCFS employee, or any other agent of the state, responds to an alleged
instance of child abuse, neglect, or dependency.” The social worker’s first
argument, shot down by the court. The social workers then argued that there are
exceptions to the Fourth Amendment, and that the situation was an “emergency.”
They state, the “Defendants argue their entry into the home, even absent
voluntary consent, was reasonable under the circumstances. They point to: the
anonymous complaint about clutter on the front porch; and the plaintiff’s attempt
to leave.

These circumstances, the defendants argue, created an ‘emergency situation’
that led Darnold and Brown reasonably to believe the Walsh children were in
danger of imminent harm. (Thus is the old “emergency” excuse that has been
used for years by social workers.) The Court again disagreed and ruled:

“There is nothing inherently unusual or dangerous about cluttered premises,
much less anything about such vaguely described conditions that could manifest
imminent or even possible danger or harm to young children. If household ‘clutter’
justifies warrant less entry and threats of removal of children and arrest or
citation of their parents, few families are secure and few homes are safe from
unwelcome and unjustified intrusion by state officials and officers.”

The Court went on to rule, “They have failed to show that any exigency that
justifies warrantless entry was necessary to protect the welfare of the plaintiff’s
children. In this case a rational jury could find that ‘not evidence points to the
opposite conclusion’ and a lack of ‘sufficient exigent circumstances to relieve the
state actors here of the burden of obtaining a warrant.”

2. The entry into the Webb home for the purpose of “protective custody” of the
children in the home violated the 4th and 14th Amendments rights of the Webbs

Walsh v. Erie County Dept. of Job and Family Services, 3:01-cv-7588.

The social workers then argued that they are obligated under law to investigate
any reported case of child abuse, and that supersedes the Fourth Amendment.
They argued, “Against these fundamental rights, the defendants contend that
Ohio’s statutory framework for learning about and investigation allegations of
child abuse and neglect supersede their obligations under the Fourth
Amendment. They point principally to § 2151.421 of the Ohio Revised code as
authority for their warrantless entry into and search of the plaintiff’s home. That
statute imposes a duty on certain designated professionals and persons who
work with children or provide child care to report instances of apparent child
abuse or neglect.”

The Court disagreed and ruled: “The defendant’s argument that the duty to
investigate created by § 2151.421(F)(1) exempts them from the Fourth
Amendment misses the mark because, not having received a report described in
§ 2151.421(A)(1)(b), they were not, and could not have been, conducting an
investigation pursuant to § 2151.421(F)(1).” The social worker’s third argument,
shot down by the court.

The Court continues with their chastisement of the social workers:

“There can be no doubt that the state can and should protect the welfare of
children who are at risk from acts of abuse and neglect. There likewise can be
no doubt that occasions arise calling for immediate response, even without prior
judicial approval. But those instances are the exception. Other wise child welfare
workers would have a free pass into any home in which they have an
anonymous report or poor housekeeping, overcrowding, and insufficient medical
care and, thus perception that children may be at some risk.”

The Court continues: “The anonymous phone call in this case did not constitute
a ‘report’ of child abuse or neglect.” The social workers, Darnold and Brown,
claimed that they were immune from liability, claiming qualified immunity because
“they had not had training in Fourth Amendment law.” The police officers,
Chandler and Kish, claimed that they couldn’t be sued because they thought the
social workers were not subject to the Fourth Amendment, and they were just
helping the social workers. The Court disagreed and ruled: “That subjective
basis for their ignorance about and actions in violation of the fourth Amendment
does not relieve them of the consequences of that ignorance and those actions.”
The Court also stated: “The claims of defendants Darnold, Brown, Chandler and
Kish of qualified immunity are therefore denied.”

Police officers and social workers are not immune for coercing or forcing entry
into a person’s home without a search warrant. Calabretta v. Floyd (9th Cir. 1999)

The mere possibility of danger does not constitute an emergency or exigent
circumstance that would justify a forced warrantless entry and a warrantless
seizure of a child. Hurlman v. Rice (2nd Cir. 1991)

Police officer and social worker may not conduct a warrantless search or seizure
in a suspected child abuse case absent exigent circumstances. Defendants must
have reason to believe that life or limb is in immediate jeopardy and that the
intrusion is reasonable necessary to alleviate the threat. Searches and seizures
in investigation of a child neglect or child abuse case at a home are governed by
the same principles as other searches and seizures at a home. Goodv. Dauphin
County Social Services (3rd Cir. 1989)

Both Canadian County DHS and Oklahoma City Police Department officers
lacked subject matter jurisdiction. When deciding to place the Webb children into
protective custody, the Oklahoma City Police officers did not consider that the
child was not being truthful with her allegations. They did not consider the
previously filed police reports in two different cities. They did not investigate that
the runaway child would lie to protect the people who harboured her, contributed
to her delinquency and assisted her in her inappropriate behavior and duplicity.

3. That Gabrielle Smart violated Oklahoma DHS Policy and US Federal Law and
Oklahoma state statutes by failing to identify herself with proper documentation.

INSTRUCTIONS TO STAFF 340:75-3-8

1) In every contact, the CW worker makes the disclosures in (A) – (D) of this
paragraph to all persons being interviewed. Information which must be disclosed,
before proceeding with the investigation protocol, includes:

(A) employee identification card;

(B) the agency represented;

(C) the lawful purpose of the investigation; and

(D) answers to questions that the person may have.

4. That law enforcement officers failed to obtain a warrant before entering the
Webb home failed to reveal the reason for the removal of the children from the
Webb home.

The 9th Circuit Court of Appeals case, Calabretta v. Floyd, 9th Cir. (1999)
“involves whether a social worker and a police officer were entitled to qualified
immunity, for a coerced entry into a home to investigate suspected child abuse,
interrogation of a child, and strip search of a child, conducted without a search
warrant and without a special exigency.”

Both Canadian County DHS and Oklahoma City Police Department officers
lacked subject matter jurisdiction.

5. “Best interest of the children” is not served when children are coerced from
their beds based on false and unsubstantiated allegations of child abuse.

The police officers placed the runaway, Mary, into their custody at 12:15AM on
March 11th, 2004. They did not come to the Webb home until 4 hours later. If
there was “imminent danger” and a need for protective custody, the children that
were in the home could have been picked up via dispatched officers immediately.
The fact that it was nearly 5 hours later, shows that the Oklahoma City Police
Department could have obtained a warrant.

At this point, an investigation should have begun to corroborate allegations of
child abuse. The Webb family has never been interviewed by the Oklahoma City
Police Department. Canadian County DHS has had ample opportunity to
interview the two children that remain at home, but have not done so.

Ten judicial days is adequate for substantiation of any allegations requiring
protective custody and emergency removal of children from their home.

340:75-3-8. Investigation protocol

Revised 7-12-01

(a) Purpose of investigation. The investigation begins the process of direct
involvement with the family. It sets the stage for problem identification, service
provision, and the development of a helping relationship. The investigation takes
into account the dynamic nature of the family situation and looks beyond the
allegation to identify risk of harm to the children. The CW worker’s investigation
is directed toward identifying and understanding the elements that create risk.
The investigation must be as thorough as possible as it relates to risk and must
consider the alleged abuse or neglect, each child, the PRFC, and family
functioning.

(3) In summary, the CW worker’s interview is aimed at obtaining information
regarding the alleged abuse or neglect, the functioning of the child(ren), the
parents, and the family. Information regarding the alleged abuse or neglect
includes:

(A) what happened;

(B) when and where it occurred;

(C) the child’s current condition;

(D) other effects of abuse or neglect; and

(E) who else has information.

Within the 10(ten) judicial days. Canadian County DHS workers refused to
interview collateral contacts that would present exculpatory information and
evidence that allegations were made in bad faith. According to DHS Policy 340:
75-3-8 (k) :

(k) Interviewing collateral contacts. A collateral contact is an individual who has
or is likely to have pertinent information about the child(ren) and the family.
Interviews with collaterals are necessary in conducting a thorough investigation
and in assessing risk. Collaterals may include relatives, neighbors, law
enforcement, teachers, physicians, nurses, or other informed individuals. Minor
collaterals are not interviewed without first obtaining permission from their parent
(s).

By not immediately informing the Webbs of the allegations against them, the
Oklahoma City Police officers and Gabrielle Smart violated the 6th Amendment
rights of the Webbs.

Children may not be removed from their home by police officers or social workers
without notice and a hearing unless the officials have a reasonable belief that the
children were in imminent danger. Ram v. Rubin, (9th Cir. 1997)

Absent extraordinary circumstances, a parent has a liberty interest in familial
association and privacy that cannot be violated without adequate pre-deprivation
procedures. An exparte hearing based on misrepresentation and omission does
not constitute notice and an opportunity to be heard. Procurement of an order to
seize a child through distortion, misrepresentation and/or omission is a violation
of the Forth Amendment. Parents may assert their children’s Fourth Amendment
claim on behalf of their children as well as asserting their own Fourteenth
Amendment claim. Malik v.Arapahoe Cty. Dept. of Social Services, (10th Cir.
1999)

By not conducting a thorough and proper investigation, Canadian County DHS
has violated the order of this Court as well as departmental procedure and
practices.

Children are not well served if they are subjected to investigations base on false
allegations. Little children can be traumatized by investigations in ways that are
unintended by the social worker. However, to a small child all they know is that a
strange adult is taking off their clothing while their mother is sobbing in the next
room in the presence of an armed police officer. This does not seem to a child to
be a proper invasion of their person –quite different, for example, from an
examination by a doctor when their mother is present and cooperating. The
misuse of anonymous tips is well known. Personal vendettas, neighborhood
squabbles, disputes on the Little League field, child custody battles, revenge,
nosey individuals who are attempting to impose their views on others are turned
into maliciously false allegations breathed into a hotline.

By not following through with the proposed “safety plan”, Canadian County DHS
has shown that harassment of the Webbs is of greater importance than
monitoring the well-being of stated minor children.

The Court ordered DHS to initiate a “safety plan” in order to grant the minor
children Caitlin Reed and Trevour Webb to their parents physical custody. The
plan was written and signed by the Webbs, but never initiated by DHS. DHS has
visited the Webb children at their home twice since March 12,2004. The
children’s attorney has not called or visited the children at the home. There have
been no phone calls to the Webb home. The safety plan stated that the
Comprehensive Home-Based Services was to initiate contact with the Webb
family within five days. This has not occurred to date. DHS has failed to comply
with all parts of the safety plan.

By actively promoting distance between the minor child CeLeste with her siblings
and parents, Canadian County DHS has created trauma and harm for the Webb
family.

Children have a Constitutional right to live with their parents without government
interference. Brokaw v. Mercer County, 7th Cir. (2000) A child has a
constitutionally protected interest in the companionship and society of his or her
parents. Ward v. San Jose, 9th Cir. (1992) State employees who withhold a child
from her family infringe on the family’s liberty of familial association. K.H. through
Murphy v. Morgan, 7th Cir. (1990)On May 25th, 2004 Marvla Robinson stated
that Mary had a choice in whether or not to pursue family visitation. Mary has
attended 4- H functions. She has been visited by persons that her parents do not
approve of and who encouraged her delinquent behavior.

John and Ann have been denied an opportunity to participate in interactions with
their sibling.

By allowing Mary to continue a relationship with an older unsavory character,
Canadian County DHS has placed her well-being and future in peril.

On Thursday, June 25, 2004. We were informed that CeLeste was in Oklahoma
City with an older Muslim male that we had and still insist that she not associate.
Our daughter is in danger of being unduly controlled and even abused by this
man, and involved in a co-dependent relationship that is not healthy or safe for a
girl of her age and inexperience. CPS is preventing the Webbs from protecting
their daughter even from her own mistakes, as is the right and duty of a parent,
and which any parent of any teen knows is most often the subject of great
rebellion from the child. Still it is our duty and right to set the rules and control her
relationships in her best interest. Since CPS is failing to protect her from those
teenaged impulses which could carry lifelong or even life threatening
implications. There is the REAL AND PRESENT PROBABLUILITY THAT SHE
WILL BE PREGNANT and even possibly beaten or otherwise harmed as a direct
result of the CPS malfeasance.

TROXEL et vir. v. GRANVILLE certiorari to the supreme court of
washington No. 99-138. Argued January 12, 2000–Decided June 5, 2000

Washington Rev. Code §26.10.160(3) permits “[a]ny person” to petition for
visitation rights “at any time” and authorizes state superior courts to grant such
rights whenever visitation may serve a child’s best interest. Petitioners Troxel
petitioned for the right to visit their deceased son’s daughters. Respondent
Granville, the girls’ mother, did not oppose all visitation, but objected to the
amount sought by the Troxels. The Superior Court ordered more visitation than
Granville desired, and she appealed. The State Court of Appeals reversed and
dismissed the Troxels’ petition. In affirming, the State Supreme Court held, inter
alia, that §26.10.160(3) unconstitutionally infringes on parents’ fundamental right
to rear their children. Reasoning that the Federal Constitution permits a State to
interfere with this right only to prevent harm or potential harm to the child, it found
that §26.10.160(3) does not require a threshold showing of harm and sweeps too
broadly by permitting any person to petition at any time with the only requirement
being that the visitation serve the best interest of the child.

The facts presented by DHS do not support the petition for custody

About yvonnemason

Background:  The eldest of five children, Yvonne was born May 17, 1951 in Atlanta, Georgia. Raised in East Point, Georgia, she moved to Jackson County, Ga. until 2006 then moved to Port St. Lucie, Florida where she currently makes her home.  Licensed bounty hunter for the state of Georgia. Education:  After a 34 year absence, returned to college in 2004. Graduated with honors in Criminal Justice with an Associate’s degree from Lanier Technical College in 2006. Awards:  Nominated for the prestigious GOAL award in 2005 which encompasses all of the technical colleges. This award is based not only on excellence in academics but also leadership, positive attitude and the willingness to excel in one’s major. Affiliations:  Beta Sigma Phi Sorority  Member of The Florida Writer’s Association – Group Leader for St Lucie County The Dream:  Since learning to write at the age of five, Yvonne has wanted to be an author. She wrote her first novel Stan’s Story beginning in 1974 and completed it in 2006. Publication seemed impossible as rejections grew to 10 years. Determined, she continued adding to the story until her dream came true in 2006. The Inspiration:  Yvonne’s brother Stan has been her inspiration and hero in every facet of her life. He was stricken with Encephalitis at the tender age of nine months. He has defied every roadblock placed in his way and has been the driving force in every one of her accomplishments. He is the one who taught her never to give up The Author: Yvonne is currently the author of several novels, including:  Stan’s Story- the true story of her brother’s accomplishments, it has been compared to the style of Capote, and is currently being rewritten with new information for re-release.  Tangled Minds - a riveting story about a young girl’s bad decision and how it taints everyone’s life around her yet still manages to show that hope is always possible. This novel has been compared to the writing of Steinbeck and is currently being written as a screenplay. This novel will be re-released by Kerlak Publishing in 2009  Brilliant Insanity – released by Kerlak Publishing October 2008  Silent Scream – Released by Lulu.com October 2008- Slated to be made into a movie Yvonne’s Philosophy in Life - “Pay it Forward”: “In this life we all have been helped by others to attain our dreams and goals. We cannot pay it back but what we can do is ‘pay it forward’. It is a simple
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