Appeals court: CPS erred in case of photos of nude kids

Arizona child-welfare workers acted illegally a decade ago when they seized three children they believed were victims of sexual exploitation, the San Francisco-based 9th U.S. Circuit Court of Appeals has ruled.

Nude photos A.J. and Lisa Demaree took of their three young girls in 2008 prompted a police investigation, a search of the Demarees’ Peoria home, removal of their children by the thenChild Protective Services division and a 10-year string of litigation.

The couple, who defended the pictures as “bath time” photos of their lit-

tle girls, sued the child-welfare workers, alleging they violated the family’s constitutional rights when they took the children without a court order and absent an emergency situation.

The case sparked widespread debate because of the nature of the alleged offense: nude photos of little girls who were ages 5, 4 and 11⁄2 at the time.

Where some saw the parents’ actions as typical, taking photos that might be shared within a family or placed in a photo album, others saw them as pornographic.

But the case also has implications for a hot-button debate in Arizona: the need for a warrant before child-welfare workers can remove a child from a family’s home.

The case started in 2008, when A.J. Demaree dropped off a memory stick with photos for printing at a local Walmart. An employee processing the order saw the nude photos and reported them to Peoria police.

The photos have not been publicly disclosed. The court described one as showing the three nude on a towel, “focusing on their buttocks but with some genitalia showing.”

A.J. Demaree told police at the time that he had no intention of sharing the photo with anyone, saying it was a keepsake for him and his wife, “so when we look back on ’em years later, look at their cute little butts.”

Police interviewed the parents. Forensic examinations found no sign of sexual abuse of the children.

CPS, as the state’s child-welfare arm was then called, got involved when an investigator met with police, then drove to the Demarees’ home. Based on a pending police investigation of sexual exploitation, as well as her review of the photos, CPS investigator Laura Pederson removed the children to foster homes, citing the risk of further exploitation, court records state.

The children spent two days in foster care, then were moved to their grandparents’ home for a month before returning to their parents. The Maricopa County Juvenile Court found no evidence of abuse or neglect, and neither of the parents was charged with any crime.

The Demarees sued the child-welfare workers, citing the need for a warrant before removing the children. In 2014, U.S. District Court Judge Roslyn Silver dismissed their case, finding the workers had a “qualified immunity” against prosecution.

But when the Demarees took that finding to the appeals court, the panel reversed it on a 2-1 decision. The judges found there was no risk of “imminent physical injury or molestation” to the children that would justify a warrantless removal.

Judge Marsha S. Berzon added a separate statement to underscore that decision.

“It is essential that the courts scrupulously guard a child’s constitutional right to remain at home absent a court order or true exigency,” she wrote. “Taking a child from his or her home, family and community constitutes a separate trauma, in and of itself.”

Judge Jack Zouhary disagreed to the extent that he felt the situation did present a potential emergency situation.

He said Pederson faced a “tough judgment call” of waiting through a three-day holiday weekend to get to a court, or removing the children.

“All involved in the child welfare system would be well served by clear legal standards from this Court to assist social workers in making these difficult decisions,” he wrote.

While the courts wrestle with guidelines for removal, Arizona lawmakers are planning to set their own standards.

It will build upon their work last year, when they passed a law that required the courts to set up a warrant process for child removals. It must be in place by July 1.

Lawmakers and the state Department of Child Safety are still working on language to define what constitutes an emergency that would allow a removal without a court order. A bill is expected in the coming week.

Already, the infrastructure for a warrant court is in place.

The courts have established a system that will be modeled on the DUI court already in place. The system will be based in Maricopa County, where a Juvenile Court judge will be able to review warrant requests 24/7. Child-safety investigators can send their requests in electronically.