Court: Photos of your naked kids not a reason for DCS to take children
It was sensational case: Can the state take your kids if you took nude photos of them? In this case, the finding was no. It sets the ground for a debate on when there is a child-abuse emergency.
Mary Jo Pitzl
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 Demaree's Peoria home, removal of their children by the then-Child Protective Services division, and a 10-year string of litigation.
The couple, who defended the pictures as "bath time" photos of their little 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.
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The case sparked widespread debate because of the nature of the alleged offense: Nude photos of little girls who were ages 5, 4 and 1 1/2 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.
What they saw in the photos
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 is 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.
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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.
A child's right to remain at home
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.
"(I)t 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.
Warrant system coming for Arizona
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.
MORE:Arizona courts craft rule on when DCS can remove children from homes
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 on a 24/7 basis. Child-safety investigators can send their requests in electronically.
Reach the reporter at maryjo.pitzl@arizonarepublic.com and follow her on Twitter @maryjpitzl.
About this report
What constitutes child abuse or neglect is just one of the many complex issues of child welfare in Arizona. A three-year grant from the Arizona Community Foundation supports in-depth research on the topic at The Arizona Republic and azcentral.com.
Are you part of the child welfare system? We want to understand your story. Go to childwelfare.azcentral.com.
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