Roska case, and why it is important

This case changed many things for DCFS here in Utah, however the ruling in Roska is not being followed to this day. Read this case.

www.utahbar.org/utah-bar-journal/article/roska-and-the-warrant-requirement-in-utah-child-protection-law/

Roska and the Warrant Requirement in Utah Child Protection Law
Posted on June 1, 2004 by staff
by John E. Laherty
In April of 2003, the Tenth Circuit Court of Appeals decision Roska ex rel. Roska v. Peterson, et al. bestowed upon Utah parents unprecedented legal protection against the removal of their children by state social workers.1 Prior to the decision, Utah’s child welfare laws authorized DCFS to remove a child from his or her home without a warrant, and without providing the parent with any pre-removal due process, whenever there was “a substantial danger to the physical health or safety of the minor” justifying removal. When an employee of the Utah Division of Child and Family Services (“DCFS”) felt this standard was met, the removal process was a relatively simple one. The worker staffed the case with other DCFS personnel, ran the facts by the Division’s legal counsel at the Attorney General’s office, and, if the general consensus supported removal, the worker removed the child from the home. The State was not required to obtain prior judicial approval, nor were parents provided an opportunity to contest the removal beforehand. Instead, Utah law only afforded judicial review of the agency’s decision – a “shelter hearing” in juvenile court – within seventy-two hours after the child had been taken into the State’s custody. Roska put an end to this process in the vast majority of child welfare cases, on two separate constitutional grounds.

The Roska Decision
In Roska, parents and siblings of a Utah child removed by DCFS brought a ¤1983 civil rights lawsuit alleging, among other claims, that DCFS and the Attorney General’s Office had violated their rights by removing the child without a warrant. In reviewing the trial court’s dismissal of the suit on immunity grounds, the Roska court applied the Fourth Amendment’s warrant requirement to child welfare cases and held that, absent exigent circumstances, state child protection workers could not legally remove a child from his or her home without a warrant. The court stated:

We find no special need that renders the warrant requirement impracticable when social workers enter a home to remove a child, absent exigent circumstances….Simply put, unless the child is in imminent danger, there is no reason that it is impracticable to obtain a warrant before social workers remove a child from the home.

328 F.3d at 1242. The Court reiterated the well-established principle that the exigent circumstances exception to the warrant requirement “is narrow, and must be ‘jealously and carefully drawn.’” Id. at 1240 (quoting U.S. v. Anderson, 154 F.3d 1225, 1233 (10th Cir. 1998)). Indeed, the Roska court held that even a social worker’s decision to seek legal advice prior to removing a child negated the existence of exigent circumstances, and made proper removal contingent on a warrant. Id. at 1242.
Second, the Court ruled that in order to protect a parent’s Fourteenth Amendment due process right to maintain his or her family free from state government interference, the State could not remove a child from his home without first providing the parents with notice and a hearing. While an exception was made for “extraordinary situations,” the Court narrowly defined such situations as “emergency circumstances,” such as where there is “an immediate threat to the safety of a child.” Id. at 1245.
Utah Law After Roska: 3 Paths to Removal
The Utah Legislature amended the state’s child removal laws to conform to Roska and, as of May 2003, Utah law prohibits the State from removing a child without a warrant unless “exigent circumstances” exist. Utah Code ¤ 62A-4a-202.1.2 Further, the court may not issue a removal warrant without first providing the child’s parent with notice and an opportunity to be heard, unless providing such notice and opportunity would place the child in immediate risk of harm. Utah Code ¤78-3a-106(2).
Interestingly, while the Roska court limited its Fourth Amendment holding to the facts before it – namely, where a child is removed from his or her physical home – Utah’s legislature declined to do so. Instead, Utah law now appears to require a warrant whenever a child is taken into custody absent exigent circumstances regardless of where the removal physically occurs.
Path 1: Exigent Circumstances, No Warrant
The practical effect of these laws is to create three distinct categories of removals. First, there are those cases in which “exigent circumstances” exist, such that the delay required to obtain a

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