A parent has a substantive due process right to the enjoyment and upbringing of his child. The state can violate this right when it removes the child from the parent. But what must a parent show in order to state a case? Today the Eighth Circuit squarely addressed that question, though it's answer is clumsy: and it will ensure that malicious social workers escape liability. Thus spoke the court in this wind-up:
We have previously recognized that parents have an important but limited substantive due process right in the care and custody of their children. The right is limited because the state has a potentially conflicting, compelling interest in the safety and welfare of the children. The liberty interest in familial relations is limited by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves. The right is important because of the need to curb overzealous suspicion and intervention on the part of health care professionals and government officials, particularly where the effect of such overzealousness may have the effect of discouraging parents or caretakers from communicating with doctors or seeking appropriate medical attention for children with real or potentially life-threatening conditions.
Abdouch, slip op. at 7. The panel continued:
The net result of these competing interests is that we must weigh the interests of the state and child against those of the parents to determine whether a constitutional violation has occurred. Under this balancing test, the officials’ actions must have been based on a reasonable suspicion of abuse and must not have been disproportionate under the circumstances. The difficulty in the present case is not whether such a reasonable suspicion can be found, but rather, whether the actions taken by the defendants and the resulting disruption to plaintiffs’ familial relations with the child were so disproportionate under the circumstances as to rise to the level of a constitutional deprivation.
Id. at 8. That's a tough case to make. And because it's so squishy, a social worker can always argue that his conduct was ever so different from conduct held to be unconstitutional in another case, and thus will almost always be able to argue for qualified immunity. The panel recognized this, but didn't seem to care:
The need to continually subject the assertion of this abstract substantive due process right to a balancing test which weighs the interest of the parent against the interests of the child and the state makes the qualified immunity defense difficult to overcome. Even where this balancing reveals a constitutional violation, qualified immunity still applies unless the constitutional violation was so clear that an objectively reasonable official under the circumstances would have recognized the disproportionality or lack of reasonable suspicion.
Id. This is qualified immunity in theory, absolute immunity in fact.
