Philadelphia, Pa. — A federal appeals court has revived a New Jersey family’s claim that a state child-protection caseworker unlawfully forced her way into their home without a warrant — and, for the first time in the Third Circuit, confirmed that taking children from their parents without a judge’s prior approval violates procedural due process unless the children face imminent harm. The Sept. 16 ruling in O’Bryant v. New Jersey Division of Child Protection and Permanency is a partial but significant win for parents’ rights against CPS overreach in New Jersey, Pennsylvania, Delaware and the U.S. Virgin Islands.
The decision also exposes the wall families keep hitting: even where the court found the family plausibly alleged constitutional violations in the removal of the children, including a newborn, most of the caseworkers walked away under qualified immunity.
A school report, a warrantless entry and a “Family Agreement”
The case, as described in the court’s opinion based on the family’s complaint, began on June 6, 2017, after a school reported that the mother’s partner, Brian Flanders, seemed “upset and agitated” at drop-off. That day, New Jersey Division of Child Protection and Permanency (DCPP) caseworker Alicia Ash arrived at Kindra O’Bryant’s home without a warrant. Flanders refused to let her in, but, according to the complaint, Ash told him he could not refuse, and he let her in.
The next day, while O’Bryant was hospitalized, she signed a “Family Agreement” that she says was coerced — a classic CPS safety plan requiring Flanders to leave the home and stop acting as a caregiver.
Children taken — including a newborn — without a judge
According to the opinion’s account of the allegations, on Aug. 16, 2017 — the day after O’Bryant gave birth — DCPP caseworkers, accompanied by sheriff’s deputies, removed her children on emergency paperwork under New Jersey’s Dodd statute and took them to a DCPP building. Two days later, on Aug. 18, a caseworker took the newborn without a warrant or court order. Hearings were held only afterward, on Aug. 18 and Aug. 21.
A federal district judge in New Jersey dismissed the family’s lawsuit on qualified-immunity grounds. The Third Circuit has now partly reversed.
What the Third Circuit decided
On the warrantless home entry, the panel held that the complaint plausibly alleges a Fourth Amendment violation, that neither the “imminent danger” exception nor the “special needs” doctrine applied, and that Ash is not entitled to qualified immunity because an earlier Third Circuit case, Good v. Dauphin County, had already clearly established the rule. That claim now returns to the district court.
That report is plainly insufficient to allow us to conclude that the children were in imminent danger of abuse or other harm.
U.S. Court of Appeals for the Third Circuit, majority opinion, Sept. 16, 2026
On the removals themselves, the court found the family plausibly alleged both substantive and procedural due-process violations. It confirmed for the first time that removing children without pre-removal judicial authorization violates procedural due process absent imminent harm. But it ruled the caseworkers lacked “fair notice” in 2017 that following New Jersey’s Dodd statute was not enough — so they received qualified immunity on those claims.
The panel also faulted the lower court for relying on facts outside the complaint and treating the agency’s disputed statements as true. Judge Thomas Hardiman concurred in part and dissented in part, arguing the caseworker should have received immunity on the home-entry claim as well.
Why it matters for families facing CPS
In an Oct. 9 column headlined “An Emergency Is Not Whatever CPS Says It Is,” PJ Media writer Maureen Steele highlighted the ruling’s core message: a caseworker’s say-so is not an emergency. The opinion makes the same point in plain terms — a vague school report is not evidence that children are in imminent danger.
For FAN, the ruling cuts both ways. It confirms what parents have argued for years: CPS cannot walk into a home without a warrant on a thin report, and children cannot be taken without a judge absent real, imminent danger. Yet the family’s strongest removal claims were still blocked by qualified immunity — the doctrine that lets government workers escape accountability whenever no earlier court ruling matched their conduct closely enough. Now that the rule is clearly established in the Third Circuit, caseworkers there are on notice.
Key facts
- Case: O’Bryant v. New Jersey Division of Child Protection and Permanency, Nos. 23-1950, 23-1951, 23-1952 (3d Cir., Sept. 16, 2026).
- Panel: Judges Chung (writing for the court), Freeman and Hardiman (concurring in part, dissenting in part).
- Appeal from the U.S. District Court for the District of New Jersey, No. 1:17-cv-07752.
- Held: Fourth Amendment claim over caseworker Alicia Ash’s alleged warrantless home entry may proceed; no qualified immunity.
- Held: Removal without prior judicial authorization violates procedural due process absent imminent harm — but caseworkers received qualified immunity for the 2017 removals.
- Facts described are allegations from the family’s complaint as recounted in the opinion; they have not been proven at trial.
Sources
- U.S. Court of Appeals for the Third Circuit — O’Bryant v. New Jersey Division of Child Protection and Permanency, Nos. 23-1950, 23-1951, 23-1952 (opinion) (2026-09-16)
- PJ Media — An Emergency Is Not Whatever CPS Says It Is (2026-10-09)
- Justia Dockets (U.S. District Court for the District of New Jersey) — O’Bryant v. New Jersey Division of Child Protection and Permanency, No. 1:17-cv-07752 (2017-2023)
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