Is it constitutional for a caseworker to lie in court?

If that question comes across to you as one with an obvious answer, consider that a court case on the subject is one stop away from the U.S. Supreme Court.

The U.S. Court of Appeals for the Ninth Circuit heard Hardwick v. Vreeken last week, an extension of a long-running court battle involving Deanne Fogarty-Hardwick, her two daughters, and the child welfare system in Orange County, Calif.

You can click here to read about the history of the case, which began with a custody battle, involved child welfare workers committing “judicial deception” to facilitate the removal of the daughters from Deanne, and has resulted so far in more than $10 million in judgments against Orange County.

A three-judge panel from the Ninth Circuit court last week heard oral arguments in the appeal of a case involving Preslie Hardwick, one of the daughters, versus Marcia Vreeken, one of the Orange County caseworkers found in previous lawsuits to have intentionally deceived the court.

Attorneys for Vreeken have appealed to the Ninth Circuit based on the argument that while state code might instruct caseworkers not to lie, there is no case law or precedent to suggest that their lying is unconstitutional.

Here is the basic argument on behalf of the caseworkers. As government workers, they are entitled to qualified immunity from prosecution in federal court unless a two-prong test can be passed. First, constitutional rights must have been violated.

Second, attorneys argued, it must be clearly established that the government workers know “without a doubt” that their actions would be a violation of law.

They argued that, in this case, at the time the removal occurred in 2000, state law and federal case precedent did not clearly establish to caseworkers that lying and/or presenting false evidence would deprive Ms. Fogarty-Hardwick of her constitutional rights.

Now, Youth Services Insider would caution anyone, at any time, from reading too much into the judge’s questions and reactions during oral arguments. But suffice to say, the judges were skeptical of this argument, in particular Judge Stephen Trott, a longtime member of the court appointed by Ronald Reagan in 1987.

“How in the world could a person in the shoes of your clients possibly believe that it was appropriate to use perjury and false evidence” to remove a child from a parent, Trott asked. “How could they possibly not be in notice that you can’t do that?”

They might have been based on ethical guidelines and morality, but not based on clearly established law, attorneys argued.

“You mean due process is somehow consistent with a government worker introducing perjured testimony and false evidence?” Trott asked. “I can’t even believe for a microsecond that a caseworker wouldn’t understand you can’t lie and put in false evidence.”

The oral arguments are 23 minutes long and can be viewed by clicking here. It certainly sounds from the discussion as though the judges are not impressed with the notion that, absent a precedent here, workers could have reasonably believed it was okay to make up stuff to influence a child welfare removal.

If they rule against Vreeken, and this is appealed, perhaps we will see a Supreme Court case that sets once and for all that child welfare caseworkers violate constitutionally guaranteed rights of parents if they lie to affect a removal.