Judge rules Iowa DHS practices in removing children are unconstitutional

Parent filed civil lawsuit after daughter was wrongfully placed in foster care

By Trish Mehaffey, The Gazette
Published: July 3 2014 | 7:00 pm - Updated: 3 July 2014 | 7:11 pm in Courts, News, Public Safety, Public Safety Rotator,

A judge ruled Tuesday the Iowa Department of Human Services must stop the way it uses “Safety Plans” and “Voluntary Foster Care Placement Agreements” to remove children from parents.

Jessica Coronado, formerly of Guernsey, filed a civil lawsuit against DHS claiming officials removed her 5-year-old daughter from her custody without evidence of “imminent danger,” which is required under the law, and violated her constitutional rights by placing the child into foster care for more than two weeks in November 2009.

A jury in January found in favor of DHS, but Coronado’s attorney, Martin Diaz, submitted post-trial arguments regarding equitable issues and asked the court to rule on the practice of DHS requiring only one parent to give consent on safety plans and voluntary foster care placement agreements, which restrict a parent’s access to a child and how Coronado’s child was removed.

Sixth Judicial District Judge Ian Thornhill ruled against Coronado’s other claims and let the verdict stand, but he did find that it’s unconstitutional for DHS to use the voluntary agreements signed by only one parent when the agreements interfere with the custodial rights of the other parent and to use the agreements signed by a non-custodial parent or a parent who hasn’t established any custodial rights, according to the ruling.

The use of safety plans is also unconstitutional to remove or keep children from their home without consent of the custodial parent, to prevent a parent's contact with their children without that parent’s consent, to restrict access to a child by a parent who hasn’t signed the plan and to use the plan with non-parents of the child, according to the ruling.

“An injunction is appropriate given that the issues involved in this case pertain specifically to the parent-child relationship, which is a fundamental liberty interest under the U.S. Constitution,” Thornhill said in the ruling.

Diaz said Wednesday the court ruling prevents DHS from using those practices like it has in the past. However, he expects DHS will appeal this matter, so the case is long from over because Coronado also will likely appeal the claims Thornhill denied.

“Our goal was to change the way things were being done at DHS and the judge by his ruling agreed with us – that it was unconstitutional, Diaz said. “We were disappointed he didn’t find in favor of damages and other claims but happy about the equitable issues.”

Amy McCoy, DHS spokesperson, said officials are still reviewing the ruling but may have a comment later.

Coronado’s child Izabella was removed from her home in 2009 while Coronado was in Texas helping her boyfriend, now husband, take care of his ill mother. Robert Nino, Izabella’s father, who didn’t have custody of her, made a sexual abuse allegation, which was unfounded, but DHS allowed Nino to sign the voluntary foster care agreement without getting consent from Coronado, or even contacting her about the removal.

According to trial testimony, Paul LaFauce, the DHS child protective worker also named in the lawsuit, said he was following the agency’s protocols and consulted with his supervisor when he placed Izabella in foster care. LaFauce then placed Izabella into foster care with Nino’s sister and allowed her to sign the Safety Plan.

Diaz claimed in his brief that DHS’s actions contradicted its own practices. According to the testimony of Wendy Rickman, DHS administrator, she said a 2005 audit by the federal government triggered DHS to redesign and restructure its practices to ensure both parents were contacted and signed the voluntary foster care agreements. Government officials conducting the audit were concerned Iowa DHS wasn't "doing enough to make contact with both parents." The policy changed in 2012, she said.

Rickman said the change in policy came about because of the belief, by DHS, that “there was a fundamental constitutional right that each (parent) had to the relationship with the child.”

Rickman also testified about the practice of using safety plans. Safety plans are designed to keep children safe in their home and provides requirements for a parent to follow.

The safety plans aren’t permitted to be used to remove children “out of their home” or to “place children outside of their home,” Rickman said.

Thornhill said the declaratory and injunctive relief is “intended to ensure that DHS does not continue with what it has admitted to be an unconstitutional practice.”

The judge also directed the attorneys to file briefs by July 16, addressing the issue of whether attorney fees will be awarded. He did rule that the costs of the case should be split – one-half to Coronado and the other half to DHS.


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