Appeals court sides with state in cancer girl case

McALLEN, TX The 5th U.S. Circuit Court of Appeals reversed a lower ruling and said a Department of Family and Protective Services case worker had qualified immunity in 2005 when she entered the Agua Dulce home of the girl, Katie Wernecke.

"Based on the information available, DFPS took logical and prudent steps to protect the health and safety of Katie Wernecke and her siblings," said Darrell Azar, spokesman for the Department of Family and Protective Services. "The outcome of the appeal is mixed and the agency is reviewing its legal options."

Katie Wernecke's parents, Edward and Michelle Wernecke, sued the state worker and several others in 2007 alleging violations of their Fourth Amendment protections against unreasonable search and seizure.

In court documents, Edward Wernecke said he allowed the constables into his home but not Linda Kim Garcia, an investigative specialist with the state agency. They were looking for his daughter, who he said was not there.

Neither the Werneckes nor their lawyer immediately returned phone calls to The Associated Press for comment Thursday.

Katie Wernecke was diagnosed with Hodgkin's disease, a form of cancer affecting the lymph nodes, in January 2005. She underwent and responded well to chemotherapy. But court records show that in May 2005, her doctors recommended she also receive radiation treatments to prevent a reoccurrence. Her parents refused, so her doctor notified state protective services.

Garcia told Wernecke's mother that she needed to schedule an appointment for her daughter's radiation treatment. When the mother didn't make the appointment, Garcia requested and received an order from a Nueces County judge to take Katie Wernecke into protective custody.

In its opinion released Tuesday, the three-judge appeals court panel said Garcia was able to enter the home to look for Katie Wernecke without a search warrant because she had a court order to take the girl into protective custody. The U.S. District Court had rejected Garcia's argument that her actions were protected by the qualified immunity given to public employees acting in the course of their duties.

Garcia found the Werneckes living in "deplorable" conditions, according to court records. Paper, food, trash and clothes sat in piles throughout the home, and medications and syringes were within the reach of children, the records show.

But the court considered Edward Wernecke's description of the home as merely "cluttered" and accepted his explanation that he had been in the process of preparing his daughter's various medications for the week when Garcia arrived.

Edward Wernecke refused to agree to a plan that would have allowed two of his sons to stay in the home if he cleaned it up. When the plan didn't happen and an attempt to take the boys to their grandparents' home failed, Garcia took the two boys into state custody with her supervisor's approval.

The appeals court affirmed the lower court's decision that Garcia did not have immunity from the allegation that she improperly took the two Wernecke boys.

"The warrantless seizure of the Wernecke boys -- in the absence of any imminent danger -- was a constitutional violation," the appeals judges wrote.

Investigators later learned that Katie Wernecke was hiding at a family ranch several hours away with her mother and youngest brother.

Finally, the appeals court ruled that Garcia's supervisor was not liable because she had only passed on a decision from her boss to seize the boys.

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