Baby Bath Pics Got Their Kids Taken; Court Says It Was Wrong

An Arizona couple had their three children removed from their custody because authorities suspected the kids were at risk. The father, Anthony Demaree, had dropped off some photos to be printed at Walmart in August 2008, only to have an employee there call the police when he saw nude photographs of Demaree's children — photos that were apparently taken at a family vacation during bath time and play time.

Now, nearly 10 years later, the Ninth Circuit Court of Appeals has ruled that the social workers who took custody of Demaree's daughters, removing them from the parents' care for about a month, acted unconstitutionally.

According to the court document, police started an investigation in 2008 once the photos were discovered. One of the photos showed the three kids, aged 5, 4 and 18 months old at the time, lying down naked on a towel with their buttocks exposed. A police detective, identified in court documents as Jack Krause, asked if Anthony Demaree would be sharing the photos with somebody.

"No, absolutely not!" Demaree responded, according to the documents.

According to the court documents, none of the photographs showed children engaged in sexual activity or showed their genitalia frontally.

"Some of the photos are bath time photos," Lisa Demaree told ABC News in 2009 a year after the investigation had concluded, "but there are a few after the bath. Three of the girls are naked, laying on a towel with their arms around each other, and we thought it was so cute."

The kids were put through forensic and medical exams to investigate possible sexual abuse and the local police department searched the Demarees' home. When the children returned to the home, social worker Laura Pederson,discussed the case with the police detective and after reviewing the evidence, decided to take the children into emergency temporary custody. She conferred with her supervisor, Amy Van Ness, who agreed, the documents say.

The social worker took the kids into custody without obtaining a court order or a warrant, the court documents say. The children first stayed at two separate foster homes and then with their grandparents before returning home after about a month away.

The parents were never charged and the girls' medical exams came back normal.

"In sum, viewing the record most favorably to the Demarees, there was no suspected risk to the children of serious bodily harm, including molestation, imminent or otherwise," a three-judge panel of the Ninth Circuit Court of Appeals said on Tuesday. "Therefore, viewing the record most favorably to the Demarees, the defendants acted unconstitutionally in taking the three children away from home without judicial authorization."

That ruling comes after a lower court granted summary judgement to the two social workers, saying they had qualified immunity that protected them from liability. The ninth circuit reversed the district court's grant of qualified immunity in its ruling.

"The risk identified by the defendants did not include taking photos of a nude child in an exploitative situation and distributing them, because there was no allegation or indication that A.J. and Lisa had distributed, or were likely in the future to distribute, nude pictures of their children to anyone," the panel ruled. "Nor did the identified risk include taking photos of a nude child engaging in sexual conduct, because there was no allegation A.J. and Lisa had ever taken, or were likely to take, photos of their children engaging in sexual conduct. And the risk was not that the Demarees would see their own children, ages five, four, and one-and-a-half, nude, including their genitalia, as caring for children of those ages necessitates doing so."

The couple sued Walmart in 2009 and in a separate complaint, they sued the Arizona Attorney General and the city of Peoria, Arizona. A judge found that Walmart's employees were relieved of liability and the second suit was dismissed.

The couple sued Pederson, Van Ness and Krause in 2011, according to Court House News. The couple reached a settlement with Krause in the suit.

The Arizona Daily Sun notes that the ruling does not end the case. Unless it is overturned, the case will return to a trial judge in Phoenix.

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