Lawsuit: Iowa DHS UPDATED

“A mother who is suing the Iowa Department of Human Services for placing her child in foster care based on a false allegation takes her case before a Johnson County jury Tuesday, arguing the policy used for removal is a violation of Iowa law and unconstitutional.

Jessica Wilbur Coronado of El Paso, Tx., formerly of Guernsey, filed the lawsuit in 2010 against Iowa Department of Human Services abuse investigator, Paul LaFauce, and director Charles Palmer, claiming LaFauce and the agency violated her constitutional rights when they placed her 5-year-old daughter Izabella in foster care based on documents signed by the child’s non-custodial father in November 2009.

The father, Robert Nino of Marshalltown, who had no custodial or visitation rights, took the girl for a weekend visit while Coronado was out of town and he filed a sexual abuse complaint against Coronado. Nino then signed a “voluntary foster care placement agreement” with DHS without Coronado’s consent and the child was put in foster care for nearly two weeks.

DHS will argue a parent signed the placement agreement and LaFauce and DHS were protecting the safety of the child within the law, according to the lawsuit.

Natalie Cronk, Coronado’s attorney at the time, told The Gazette about Izabella’s removal Nov. 18, 2009 to raise public awareness as Coronado was attempting to bring home her daughter. The sexual abuse allegation was unfounded but DHS, even after Cronk filed a petition for the child’s return, refused to return Izabella to her mother.

In a follow up article, Cronk told a reporter that after the first article ran in 2009, DHS contacted Coronado and said Izabella would be returned if she signed a “safety plan,” which had nothing to do with the original allegation. A safety plan is designed to keep a child safe in their home and provides requirements for a parent or legal guardian to follow, Cronk said.

Coronado claims in the lawsuit DHS’s practice of taking possession of children by voluntary foster care placement agreements and through safety plans, without obtaining the consent of the custodial parent, is unconstitutional.

The suit contends the voluntary foster care placement agreements used in the context of child removals or child abuse investigations is improper and not according to statute. The agreements are to be used when a parent, guardian, or custodian of a child with developmental or intellectual disabilities request placement of a child in foster family care for a more than 30 days, according to Iowa code.

Coronado is asking for the jury to award damages for pain and suffering and for attorney fees and expenses and punitive damages against Lafauce to deter this conduct in the future, Martin Diaz, Coronado’s attorney said last week.

Diaz will also submit an argument to the judge, separate from the jury trial testimony, regarding the voluntary foster care placement agreements and safety plans.

The trial is expected to last all week. Jury selection begins 9 a.m. Tuesday in Johnson County District Court.”

Trial starts Tuesday in mother’s lawsuit against DHS[The Gazette 1/27/14 By Trish Mehaffey]

 REFORM Puzzle Piece

Update: “A Johnson County jury found in favor last week for the Iowa Department of Human Services in a lawsuit brought by a mother whose child was put into foster care based on a false abuse allegation made by the non-custodial father in 2009.

 

Jessica Coronado, formerly of Guernsey, claimed a DHS child protective worker removed her 5-year-old daughter from her custody without evidence of “imminent danger,” which is required under the law, and violated her constitutional rights by placing the child into foster care for more than two weeks in November of 2009.

 

According to trial testimony, Paul LaFauce, a DHS child protective worker, said he was following the agency’s protocols and consulted with his supervisor when he placed Izabella Nino in foster care.

 

The legal battle regarding DHS’ actions is not over. Martin Diaz, Coronado’s attorney, submitted post trial argument to 6^th Judicial District Judge Ian Thornhill last Wednesday for a ruling regarding the violation of constitutional rights and other DHS practices.

 

Diaz said Monday there was “undisputed” evidence at trial that Izabella wasn’t in imminent danger and Coronado, who has legal custody of the child, had not given her consent to place the child in foster care. Diaz said that’s a “clear violation” of constitutional law.

 

Diaz said the crux of their argument is that “each parent has an independent constitutional right to care, custody and control of their child, unless the state can show the child is in imminent danger.”

 

“We are pleased with the verdict, ” DHS spokesperson Amy McCoy said Monday. “Child welfare is one of state government’s most difficult jobs. Each case is complex and involves tough decisions. The DHS and all of its partners, including the courts, work together in an effort to protect children.”

 

According to trial testimony, any sexual or physical abuse allegation was unfounded following two exams by University of Iowa Hospitals and Clinics and the Children’s Protection Center in Cedar Rapids. LaFauce then asked the father, Robert Nino, to sign the agreement without informing Coronado. He claimed the father could give his consent on behalf of the child and mother by signing a “voluntary foster care placement agreement.”

 

LaFauce testified he was concerned about the safety of the child. He initially didn’t know Robert Nino had no custodial or legal rights. He just knew Coronado, wasn’t in town.

 

Coronado was out of town helping her boyfriend, now husband, with his ill mother in Texas, according to testimony. Izabella remained in Iowa with her grandmother, where both she and Coronado lived, because of school. Coronado stayed in daily contact with her daughter.

 

LaFauce admitted in testimony that Izabella wasn’t in “imminent danger,” be he went ahead and asked Robert Nino to sign the voluntary placement agreement without the consent of Coronado. He then asked Nino’s sister, who was designated as the foster parent for Izabella, sign a “safety plan,” which parents usually sign as a condition set by DHS to keep a child safe in the home.

 

Diaz in the post-trial argument, also asked the court to rule on the DHS practice of using the voluntary agreements as a way to remove children from parents without going through court. Two parents are required to sign the agreements, according to testimony presented during the hearing on Wednesday. He said the safety plans also are supposed to be a tool to keep a child in the home but it’s been common practice for DHS to use these in placing a child with a third party or foster care home.

 

Diaz said he and DHS have 45 days to submit further briefs in the case and then the judge is expected to make his ruling in a few months. Thornhill could overturn the verdict or let it stand. Diaz said he will likely appeal if it stands.”

 

[The Gazette 2/10/14 by Trish Mehaffey]

Update 2:“A  judge ruled Tuesday the Iowa Department of Human Services must stop the way it uses “Safety Plans” and “Voluntary Foster Care Placement Agreements” to remove children from parents.

Jessica Coronado, formerly of Guernsey, filed a civil lawsuit against DHS claiming officials removed her 5-year-old daughter from her custody without evidence of “imminent danger,” which is required under the law, and violated her constitutional rights by placing the child into foster care for more than two weeks in November 2009.

A jury in January found in favor of DHS, but Coronado’s attorney, Martin Diaz, submitted post-trial arguments regarding equitable issues and asked the court to rule on the practice of DHS requiring only one parent to give consent on safety plans and voluntary foster care placement agreements, which restrict a parent’s access to a child and how Coronado’s child was removed.

Sixth Judicial District Judge Ian Thornhill ruled against Coronado’s other claims and let the verdict stand, but he did find that it’s unconstitutional for DHS to use the voluntary agreements signed by only one parent when the agreements interfere with the custodial rights of the other parent and to use the agreements signed by a non-custodial parent or a parent who hasn’t established any custodial rights, according to the ruling.

The use of safety plans is also unconstitutional to remove or keep children from their home without consent of the custodial parent, to prevent a parent’s contact with their children without that parent’s consent, to restrict access to a child by a parent who hasn’t signed the plan and to use the plan with non-parents of the child, according to the ruling.

“An injunction is appropriate given that the issues involved in this case pertain specifically to the parent-child relationship, which is a fundamental liberty interest under the U.S. Constitution,” Thornhill said in the ruling.

Diaz said Wednesday the court ruling prevents DHS from using those practices like it has in the past. However, he expects DHS will appeal this matter, so the case is long from over because Coronado also will likely appeal the claims Thornhill denied.

“Our goal was to change the way things were being done at DHS and the judge by his ruling agreed with us – that it was unconstitutional, Diaz said. “We were disappointed he didn’t find in favor of damages and other claims but happy about the equitable issues.”

Amy McCoy, DHS spokesperson, said officials are still reviewing the ruling but may have a comment later.

Coronado’s child Izabella was removed from her home in 2009 while Coronado was in Texas helping her boyfriend, now husband, take care of his ill mother. Robert Nino, Izabella’s father, who didn’t have custody of her, made a sexual abuse allegation, which was unfounded, but DHS allowed Nino to sign the voluntary foster care agreement without getting consent from Coronado, or even contacting her about the removal.

According to trial testimony, Paul LaFauce, the DHS child protective worker also named in the lawsuit, said he was following the agency’s protocols and consulted with his supervisor when he placed Izabella in foster care. LaFauce then placed Izabella into foster care with Nino’s sister and allowed her to sign the Safety Plan.

Diaz claimed in his brief that DHS’s actions contradicted its own practices. According to the testimony of Wendy Rickman, DHS administrator, she said a 2005 audit by the federal government triggered DHS to redesign and restructure its practices to ensure both parents were contacted and signed the voluntary foster care agreements. Government officials conducting the audit were concerned Iowa DHS wasn’t “doing enough to make contact with both parents.” The policy changed in 2012, she said.

Rickman said the change in policy came about because of the belief, by DHS, that “there was a fundamental constitutional right that each (parent) had to the relationship with the child.”

Rickman also testified about the practice of using safety plans. Safety plans are designed to keep children safe in their home and provides requirements for a parent to follow.

The safety plans aren’t permitted to be used to remove children “out of their home” or to “place children outside of their home,” Rickman said.

Thornhill said the declaratory and injunctive relief is “intended to ensure that DHS does not continue with what it has admitted to be an unconstitutional practice.”

The judge also directed the attorneys to file briefs by July 16, addressing the issue of whether attorney fees will be awarded. He did rule that the costs of the case should be split – one-half to Coronado and the other half to DHS.”

 

Judge rules Iowa DHS practices in removing children are unconstitutional [The Gazette 7/3/14 by Trish Mehaffey]