What is the current state of the law on emergency removal?

The majority opinion announces a new and incompatible principle: that there is no such emergency, notwithstanding the exigency, if there is or may be time to obtain a court order. None of our cases has held that the availability of the emergency-removal exception depends on whether there is time to obtain judicial pre-authorization. Each of our prior cases requires only that an emergency exist, a fact that is determined by reference to the child's peril, not the case worker's schedule or the court's calendar. This is a sensible formulation, and one that keeps the child welfare worker focused on what matters first in these cases, the child's precarious welfare. "When a child's safety is threatened, that is justification enough for action first and hearing afterward." Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983), quoted in Robison, 821 F.2d at 921.

The error of the majority opinion is to recast a child-welfare emergency in terms of a procedural emergency, i.e., whether the danger to the child is so pressing that no court order is feasible. Thus the majority opinion requires a child welfare worker, at peril of personal liability, to make the additional determination as to whether there is time enough to secure court authorization. An already-difficult calculus is thus complicated by a new and confusing set of standards and risks. Cf. Wilkinson v. Russell, 182 F.3d 89, 105 (2d Cir. 1999) ("[C]ourts must be especially sensitive to the pressurized circumstances routinely confronting case workers, circumstances in which decisions between difficult alternatives often need to be made on the basis of limited or conflicting information." (internal quotation marks omitted)).