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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowTwo DCS caseworkers who allegedly threatened a couple with a CHINS proceeding if they did not submit their child to a blood draw must face the parents’ civil lawsuit, the 7th Circuit Court of Appeals has ruled, overturning a lower court finding that the caseworkers were protected by qualified immunity.
Judge Michael Scudder wrote for the unanimous appellate panel that reinstated and remanded the case of Lelah Jerger, et al. v. Shannon Blaize, et al., 21-3011.
Parents Lelah and Jade Jerger sued the Indiana Department of Child Services in 2018 for alleged violations of their 14th Amendment rights, as well as alleged violations of their daughter, J.J.’s, Fourth Amendment rights.
J.J. began experiencing seizures at 15 months old, and doctors at Riley Hospital in Indianapolis diagnosed her with epilepsy. During at least one seizure, the child turned blue and lost consciousness for about 15 seconds.
Doctors prescribed Keppra to treat J.J.’s condition, but her parents delayed filling the prescription until they could get a second opinion. In the meantime, they treated the seizures with CBD oil prescribed by a chiropractic neurologist.
When the Jergers had not filled the Keppra prescription after several months, a Riley social worker called DCS to report medical neglect. The social worker claimed multiple doctors had recommended Keppra, but the Jergers refused to give it to her because of its potential side effects.
Caseworker Allicyn Garrett visited the Jergers’ home the next day, and Lelah acknowledged her initial concerns about the medication. However, the mother also said she and her husband had finally begun giving J.J. the prescribed medication a few days earlier after getting a second opinion.
Garrett then consulted with her supervisor, Shannon Blaize, and ultimately asked the Jergers to sign a safety plan agreeing to administer Keppra to the child and to take her in for a blood test that same day.
The Jergers declined to sign the plan but did take J.J. in for a blood draw the next day. The test confirmed their claim that the child had begun the medication.
“But what happened in between Garrett’s presentation of the Safety Plan and the eventual blood test gave rise to this litigation and remains the subject of serious debate,” Scudder wrote.
According to the Jergers, they took J.J. for a blood draw because Garrett had threatened them with J.J. being adjudicated as a child in need of services, which would mean they could lose their rights to make medical decisions on her behalf. Thus, they filed a federal lawsuit alleging the DCS investigation and demand for a blood test amounted to constitutional violations.
Both parties moved for summary judgment, and the Indiana Southern District Court ultimately ruled for the caseworkers. Although the court determined the caseworkers did not “coerce” the Jergens into the blood draw, it also determined they were entitled to qualified immunity, regardless.
In vacating that judgment, the 7th Circuit noted, “To our eye, both the summary judgment briefs submitted in the district court and now the competing arguments pressed on appeal expose material disagreement on the issue of consent — whether the Jergers chose of their own volition to take J.J. for the blood draw or whether that decision was the product of coercion.
“… If the facts, as represented by the Jergers, portray a clearly established constitutional violation, the district court’s decision cannot stand,” Scudder wrote. “… We have hard time aligning the district court’s conclusions with these principles.”
Specifically, the appellate court pointed to three issues: Lelah’s testimony that Garrett said J.J. “would” become a CHINS if they didn’t take her for a blood draw; the Jergers’ testimony that Garrett said they did not have time to consult a lawyer before taking J.J. for a blood draw; and the Jergers’ testimony that they were met by police when they arrived at the hospital for the blood draw.
“A reasonable jury, crediting the Jergers’ perspective on these three matters, could find that the DCS case workers employed coercion to get Lelah and Jade to go through with the blood draw on September 22,” Scudder wrote. “Foremost, Lelah could have heard Garrett’s admonition that J.J. ‘would become a Child in Need of Services’ as a statement informing her and her husband of a certain outcome — that the impending CHINS court proceeding, with which they were unfamiliar, was sure to result in them losing their right to make medical decisions for their daughter.
“… On that understanding, the Jergers could have concluded that they had no real choice but to take J.J. for the blood draw,” the judge continued. “Lelah and Jade’s testimony that they had no time to seek legal advice to better understand their rights and DCS’s authority only adds to that conclusion, as does their perspective on why the police were present at the hospital upon their arrival with J.J.
“Taking these facts together, the Jergers paint a picture of coercion, not ‘freely and voluntarily given’ consent,” he concluded. “… Thus, without the consent Blaize and Garrett rely on, and no other proffered justification for the search, the Jergers have done enough to create a jury question on whether the DCS defendants violated their and J.J.’s constitutional rights.”
Noting the defendants disagreed with the Jergers’ account, Scudder reiterated that “(s)ummary judgment is not available in the face of this factual tug-of-war.”
“Nor is qualified immunity where the parties dispute facts material to the consent question,” he added.
As a final note, the 7th Circuit opined that “it seems that much of the disagreement between the parties … might have been avoided by the DCS case workers taking steps to better inform the Jergers about the legal proceedings the state intended to commence and what rights the Jergers would have before and during those proceedings.”
“In no way are we suggesting that the case workers shouldered any affirmative obligation to advise the Jergers,” Scudder wrote. “But tapping the brake pedal long enough to convey objective and accurate information to the Jergers about DCS’s intentions and their rights in any impending CHINS proceedings may have kept this difficult situation from ever getting to a courthouse.”
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