Father wins constitutional appeal after the city seized his child due to mother's neglect

This case arose when the government determined to remove the child, KA, from the plaintiff-father, KW, on the basis that the child's mother was unsuitable to raise KA due to neglect and problems relating to her prior children. KW paid the price for the mother's neglect, as the government separated him from his son for nearly three years. KW, who was never accused of wrongdoing, brought this due process case.

The case is KW v. City of New York, issued on May 19. The government summarily removed the child from KW on the basis that there was no time to obtain a court order. That makes this a Fourth Amendment and due process case, which the district court dismissed on the pleadings. The Court of Appeals (Sack, Perez and Briccetti [D.J.]) notes that while cases allow the government to remove the child without a court order, it needs to prove an immediate risk of harm to the child that makes it impossible to seek court intervention prior to removal. The issue is whether the government has "reasonably sufficient time" to get a court order. On this record, the government had such time, as it did not proceed with the sense of urgency that would normally attend an emergency child removal: after reviewing KW's residence shortly after his son was born, authorities actually allowed KW to remain with his son for the night, though he was required to bring the baby into the offices of the Administration for Children's Services the following morning. The jury could find that the government did have time to get a court order before taking the child into state custody.

Plaintiffs also sufficiently alleges that the lengthy separation between KW and KA violated the Fourth Amendment because they plausibly claim that caseworkers made intentionally false statements about KW in order to obtain the removal order that separated father from son. While there was in fact a removal order, and that may support a probable cause finding against the father, that presumption is overcome by the allegations that authorities acted in bad faith in removing the child.

As for the due process claim, the Court of Appeals notes that the father has a liberty interest in not being separated from his son, one of the oldest constitutional rights in the American system. But the lawsuit plausibly asserts that KW was denied sufficient pre-deprivation notice of the child-seizure and he was further denied an adequate opportunity to defend himself against the allegations against him. 

The City asserted a qualified immunity defense, arguing that they acted in good faith and therefore did not objectively know they were violating the law. But this appeal arises in a Rule 12 motion-to-dismiss context. Courts frown upon such early qualified immunity rulings without adequate discovery. Moreover, the complaint, if true, suggests the government did violate clearly-established case law in proceeding against the father.