The claim, filed by the family's attorney on Feb. 11, states that Mountain View officers and a Santa Clara County social worker showed up at the family's door on Jan. 28 to investigate the report of possible sexual assault, but refused to tell the parents what the allegations were. The child and parents were separated and the child was interrogated during the incident, according to the claim.
Officers told the family that their child's injury would need to be examined by a female paramedic at the home, which the Lothers did not consent to, the claim alleges. The alternative, they were told, was for their daughter to be removed from the home and evaluated at a hospital.
The girl was forcefully held down and examined for several minutes, the parents told ABC7. She continues to have nightmares about the incident and her grades have suffered, they said.
Robert Powell, the San Jose-based attorney who filed the claim on behalf of the family, told the Voice that officers and the social worker both mishandled the situation, failing to explain from the outset why they were even at the home. The family should have been informed that the girl spoke of her injury at the school, prompting a call to CPS through the county's Department of Family & Children's Services.
"The social worker is supposed to tell them why they are there and they refused to do that," he said. "We had one of the cops saying, 'We don't do that.'"
Had the social worker and responding officers described the nature of the report, the parents could have explained from the outset that their child had fallen at a park and hurt herself. The parents also offered the contact information of another parent who could corroborate the story, Powell said, which should have been the end of the police call. Instead, the officers gave the family an ultimatum: allow the medical exam or have CPS to take their child away for an exam, Powell said.
These kinds of incidents are not rare, Powell said. Officers frequently cross the line in child abuse investigations, he said, noting one case in Kentucky where a family's children — all under the age of 5 — were strip-searched by police during a child abuse investigation without a warrant and little reason to suspect wrongdoing.
"This is not necessarily an aberrant case, but this is the insanity that is Child Protective Services," he said.
In an email, Mountain View police spokeswoman Katie Nelson said the claim filed against the city prevents the department from commenting on the specific details of the incident. But she said the story aired by ABC7 news on June 6 "does not give a full picture of the investigation."
"As much as we would like to correct the inaccuracies from the report, we can't speak to the specifics regarding the investigation," she said, adding that residents with questions or concerns are encouraged to reach out to the police department.
Law enforcement agencies in Santa Clara County have consistent policy manuals stating that suspected victims of child abuse should not be detained involuntarily for the purposes of an interview or physical exam without the consent of a parent or guardian. Exceptions exist for exigent circumstances, including an immediate need to address a medical issue or a belief that the child is at risk of harm if the interview or exam is not completed.
"They violated policy, but they also violated common sense," Powell said.
In cases of known or suspected child sexual assault, California law states that consent from parents or legal guardians is not a requirement for a physical examination or collection of evidence, provided a CPS agency signs documentation granting temporary guardianship. "Local procedures" for obtaining consent from CPS must be followed, according to the state's penal code.
The claim is seeking $1 million for emotional distress, past and future medical and mental health treatment, punitive damages and attorney fees. Powell said the city attorney's office has contacted him to discuss the possibility of an early resolution.
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