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Court rules against child caseworkers
Lawsuit: A boy, then 12, was removed from his parents; a judge says the workers may be liable
By Kirsten Stewart
The Salt Lake Tribune
Salt Lake Tribune

Utah child welfare caseworkers violated state law when they removed a 12-year-old Davis County boy from his home in 1999 - and the workers can be held personally liable, a federal appeals court has said in an unusual ruling.
Caseworkers should have offered services to Connie and James Roska "to prevent removal" of their son Rusty, wrote Judge Michael R. Murphy of the 10th U.S. Circuit Court of Appeals in Denver.
Neglecting to do so, especially after the boy's doctor warned removal would be harmful, constitutes a violation of Utah law, which presumes it is in the best interest of a child to be raised in the care of his parents, Murphy wrote.
The Thursday ruling is the latest twist in a nearly seven-year legal battle, and frees the Roskas to seek damages before a jury.
"We're close to the end now. I want my time in court," said Connie Roska, vowing Friday to pursue her lawsuit against the Utah Division of Child and Family Services caseworkers: Melinda Sneddon, Shirley Morrison and Colleen Lasater. Morrison no longer works for the division.
The lawsuit seeks $15 million in punitive damages. Roska said the money would help pay mounting legal bills, but her main desire is to prevent other families from going through "the same turmoil."
"I can't tell you how horrible it is when a sick son gets ripped out of your arms and you get accused of being the one who is making him sick," she said.
Roska's lawyer, Steven Russell, said any award of damages would be "groundbreaking," because "we're asking them to decide what's it worth when the state comes in and takes your child."
But first, child welfare officials may ask for a review by the full 10th Circuit bench. Friday's ruling was crafted by three judges and contained a lengthy dissent by Judge Terrence L. O'Brien.
The Roska suit centers on the May 28, 1999, removal of Rusty Roska from his Layton home.
Social workers and school officials believed the boy was a victim of Munchausen's Syndrome by Proxy, a condition in which a parent acts as if a child is ill, or even causes the child's illness to get attention from doctors. Rusty had lost 70 pounds in a year, was in a wheelchair and had been fed through a tube. School officials expressed concern that he might die if the state did not intervene.
The Roskas said their son suffers from chronic pain syndrome caused by problems with his gallbladder and kidneys. But doctors interviewed by caseworkers could not diagnose the boy's ailment.
The caseworkers tried but were unable to reach Rusty's primary care provider, Judith Gooch. But on the day of the removal, Gooch warned caseworkers by phone that removing the boy would "destroy this family emotionally and Rusty may never recover."
Nevertheless, two workers took Rusty into protective care. He was returned to his family after a hearing one week later.
Rusty is now 19, living in the same home with his parents and working in retail.
"I just wanted to roll over and die that day," he said recalling the day he was removed. "I thought I would never see my parents again."
The Roskas sued, alleging that caseworkers failed to get a warrant and failed to use less intrusive methods as required by law. The suit was thrown out by U.S. District Judge Dee Benson in 2002, but it has since bounced back and forth on appeals.
In its latest appeal, the state argued the caseworkers are entitled to immunity against the Roskas' lawsuit because state law permitted removals without a warrant.
But Murphy, one of the Utah judges on the court, said caseworkers "failed to actually comply" with the law, which directs them to make "reasonable efforts" to offer services first.
In a dissenting opinion, O'Brien argued emergency removal was warranted because Munchausen's by Proxy "is one of the more dangerous forms of abuse" with "substantial risk of mortality."
But the majority opinion countered that three investigations by child protective workers and doctors at Primary Children's Medical Center and the University of California, Los Angeles failed to prove that Connie Roska suffered from the syndrome.
It is not immediately clear how the ruling will affect DCFS practices. Utah law has since been amended, and now there must be an emergency before caseworkers can move in without a warrant.
Also uncertain is whether the state will indemnify the caseworkers and pay damages. "We need to read the lawsuit and . . . talk to the attorneys," said DCFS spokeswoman Carol Sisco.