In a rare move, a San Diego federal judge reversed a jury verdict that had cleared county social workers of fault for their conduct in an investigation into child abuse allegations against a family.

U.S. District Court Judge Roger Benitez also concluded that a longstanding county policy allowing investigators to interview children at their school without the consent of parents or a court order was at fault.

That conclusion could have large implications for the county, potentially allowing families subjected to similar treatment over the years to sue the county, lawyers said.

The ruling came in the lawsuit filed by Sara Dees and her two young daughters, each of whom was caught up in a brief investigation by Child Welfare Services workers in 2013.

They contended that a county social worker violated their rights when she questioned both the children, then 9 and 5, at their school without the knowledge or consent of the parents in early 2013.

In February, after a week long trial, a jury found in favor of the county.

But last week, Benitez reversed that decision – a step judges do infrequently. In a 20-page ruling Benitez concluded that “the clear weight of the evidence does not support the verdict.”

He then took a further step and said he would set a date for a new trial – one to determine how much in monetary damages the county would have to pay. A hearing to set that date is scheduled for Thursday.

The ruling also has potentially larger impact. The judge concluded that a county policy in place for years that allows social workers to conduct interviews at schools of children suspected to be abuse victims – or their siblings, who were not victims – was the underlying cause that led to the violation of the family’s rights.

That part of the ruling could open the county to lawsuits from children and their families who, over the years, have been interviewed at schools without a social worker getting a court order, warrant, or consent from the families, or in instances where there was not an immediate threat to the safety of the child — known as an “exigent circumstance.”

San Diego, along with other counties, routinely conducts such interviews, said Donnie Cox, the Oceanside lawyer who represented the family. He said while state law allows such interviews San Diego County uses it more aggressively than most other counties.

“This has broad implications,” Cox said. “It potentially exposes the county to liability in all those cases where they interviewed a child where there were not exigent circumstances, a warrant, court order, or imminent danger of injury to a child.”

County Communications Director Michael Workman said the county planned to appeal, and declined further comment because the case was still ongoing.

The lawsuit centered on a short investigation by social workers in February and March, 2013. Dees lived with her two young daughters, her husband Robert Dees and his two daughters from a previous marriage in San Diego.

It started on Feb. 7, 2013 when Child Welfare Services got a investigative referral that Robert Dees had taken naked photos of his 11-year-old daughter, Benitez wrote. The girl said she wanted the photos taken to document her physical appearance as it changed during puberty.

In addition to investigating the circumstances of the 11-year-old, social workers also sought to find out if Sara Dees’s two younger children were also in danger of abuse, court records say.

Nothing came of the referrals, however. By Feb. 21 San Diego police, who had opened an investigation, had closed it and told county social workers that both the police and District Attorney would not be pursuing any case.

“That should have been the end,” Benitez wrote. “It was not.”

Five days later social worker Caitlin McCann went to the school where Sara Dees’s two young daughter attend, he wrote. She spoke to the older child for about five minutes.McCann testified at the trial she made the visit to make sure the children were okay and to “wrap up” the investigation.

McCann did not ask for consent from Sara or the children’s father to speak with them, Benitez wrote. One of the children became upset and was screaming down the hallway “CPS is here, CPS is here” after the interview, he recounted.

County policy says that when interviewing children at school who are either the alleged victims of abuse or siblings, parental consent is not needed.

While McCann said she was checking on the status of the kids, Cox said the technique is often used to “dig up evidence” against parents.

The investigation was closed three weeks later, with all allegations determined to be unfounded. But Sara Dees sued, alleging the nonconsensual interviews violated the rights of her children, and her own rights to parent her children under the 14th amendment — a legal doctrine known as familial rights.

While the jury sided with the county, Benitez saw it differently. He ruled that the child’s rights were violated during the interview because she was effectively “seized” under the law — unable to leave, not free to decline to speak with McCann.

“A reasonable nine-year-old child who is called out of class by school officials for the purpose of meeting with a social worker who has already disturbed the child’s family life, and who is not advised that she may refuse to speak with the social worker, will feel compelled to talk to the social worker and remain there until dismissed,” he wrote.

Interviewing the children — identified by their initials “L” and “G” in court records — without permission of parents and with no indication they were in danger also violated Sara Dees’s rights, he wrote.

“The evidence is clear that McCann purposely went to the one place she knew she could find L or G and question L or G without Sara knowing,” he wrote. “Because of the County’s policy, that place was the children’s school.”

Shawn MacMillan, a lawyer who frequently represents parents in suits against county social workers, said the county has been on notice since 2010 that school site interviews are problematic. A federal appeals court held in 2010 that such interviews without a warrant, court order or parental consent were unconstitutional.

“They’ve known that this is a potential problem for a long time, and they’ve done nothing about it,” he said.

from Joanne;