‘You Won’t Get In a Lawsuit, I Have Judicial Immunity’: Secret Call Between Tennessee Judge and Sheriff Scheming to Illegally Take Black Mother’s Kids After Traffic Stop Exposed
A Black Georgia mother who last year sued Tennessee state troopers, deputies and social workers for taking her five small children away from her after a traffic stop filed an updated complaint alleging that Department of Children’s Services (DCS) workers acted on the strength of an invalid court order improperly procured over the phone from a judge.
Bianca Clayborne, her partner Deonte Williams, and their five children were heading from their hometown in Atlanta to the funeral of a family member in Chicago in February of 2023 when a Tennessee Highway Patrol officer pulled them over in rural Coffee County, for tinted windows and a slowpoke violation (driving in the left lane while not passing).
Claiming to smell marijuana, troopers thoroughly searched the car, finding fewer than five grams, according to an incident report reviewed by Tennessee Lookout, which noted that possession of small amounts of marijuana is a misdemeanor that typically results in a paper citation and a fine in Tennessee.
But troopers decided to arrest Williams, who had admitted to possessing the marijuana, and take him into custody. After some debate, they chose to only issue a citation to Clayborne, who had denied using marijuana, so that she could stay with the children, who included a nursing four-month-old and other children who were 2, 3, 5 and 7 years old, the lawsuit says.
During a two-hour stop at a gas station off the interstate, troopers had concluded that the children were safe in Clayborne’s custody and said that they found no indication they were abused or neglected, the complaint says, drawing on bodycam and dashcam video of the officers on scene.
In one video later reviewed in a deposition, Trooper Donnie Clark told Clayborne she was being “nice and respectful” and complimented her for breastfeeding, which is “healthier for the baby.”
Once the troopers cited Clayborne and chose not to arrest her, she and her children should have been free to leave, according to state law, the lawsuit argues. But instead they told her she needed to follow them as they transported Williams to the jail in their patrol car.
In the justice center parking lot, Clayborne was unexpectedly confronted by three DCS social workers, who said that they needed to interview Clayborne and her children inside the jail, where they also wanted her to undergo a urine test.
Afraid to be separated from her children, she refused to go inside the jail, and eventually agreed to do a urine test inside the car. She removed her pants and underwear and tried to urinate in a small cup as a DCS worker watched and her children squirmed in the backseat, but was unsuccessful, the complaint says.
The social worker then said her failure to complete the test had “made matters worse,” and told Clayborne the children would now be taken into their custody.
The lawsuit says the deputies had no probable cause to detain Clayborne and that DCS had no legal basis to demand she take a drug test.
By that time deputy sheriffs who had arrived on scene had placed spike strips behind Clayborne’s car to prevent her from fleeing.
Clayborne, hysterical about the prospect of losing her children, waited in the car with the doors locked for Williams to bond out of the jail. Then, about six hours into her ordeal, she went inside the jail to assist with his bail and release.
The children were forcibly taken from the mother by law enforcement officers and handed over to DCS workers at that point, while screaming and crying, and put into a white truck, the complaint says.
Clayborne would not be reunited with her children again for 55 days. During the first two weeks the bewildered children were separated from each other and bounced around three different foster homes, until landing in the home of a family friend in Nashville. Clayborne was only allowed to speak to them twice a week via audiovisual calls, the lawsuit says.
At a juvenile court hearing several days after they were separated, Clayborne and Williams were asked to submit to urine drug tests, reported Tennessee Lookout. Williams tested positive for THC, the active ingredient in marijuana. Clayborne, who again asserted she didn’t use the drug, tested negative.
Then they were each asked to submit to rapid hair follicle tests, which came back positive for both: the test had detected methamphetamine, fentanyl and oxycodone. Williams and Clayborne denied using those drugs. A Lookout investigation found that the rapid hair follicle test was not court-admissible, according to Coffee County’s own administrator.
An expert said the machines can be unreliable and positive tests should be rerun in certified labs.
Yet DCS relied on those test results in court as part of their petition seeking a ruling that the children had been “severely abused.” The judge ordered the children to remain in state custody for another 25 days.
What Clayborne and her attorneys didn’t know at that point was that the court order that deputies and social workers had initially relied upon to seize the children was invalid, the amended complaint now argues.
Through the discovery process since the lawsuit was originally filed, her attorneys learned that the plan to separate the family was made during a private, ex parte phone call between a DCS manager and General Sessions Court Judge Greg Perry that reportedly took place while Clayborne was at the jail with her kids. (Ex parte communication occurs between a judge and one party without the knowledge or presence of the other party in a legal dispute, and is generally barred to ensure fairness and impartiality.)
The DCS social workers did not present any testimony or proof to Judge Perry or file any pleadings in the court before removing the children, the lawsuit says. Instead, they relied upon the “secret” phone call between the judge and a DCS manager who had not talked to Clayborne or her children and who was not present at the jail.
In a subsequent call that was recorded, Judge Perry then called Coffee County Sheriff’s Department Investigator James Sherrill on his cellphone to discuss removing the children.
“Well, the problem is mama is not going to give them up without a fight,” Sherrill told Perry. “If we get in the middle of this, there’s going to be a damn lawsuit for sure.”
Perry then suggested arresting Clayborne for disorderly conduct, then assured the deputy, “You won’t get in a lawsuit because … I’ve got judicial immunity.
“Verbal order good enough?” Sherrill asked. “Absolutely,” Perry replied.
But the plaintiffs insist that is not so.
“Tennessee law does not permit children to be taken from their parents based on a private phone call to a judge. … DCS must file a proper petition and make factual allegations under oath to support the drastic relief of removing a child from their family — and the law requires that removal can only happen after procuring a valid court order,” the lawsuit says.
The only legal exception permitting child services staff to bypass a written court order is during emergent circumstances, which weren’t present in this case, attorneys for Clayborne argue.
They say DCS officials, after the children were removed, then tried to “cover their tracks” by submitting false and inaccurate paperwork to make it look like they had submitted a petition to the judge before he issued his verbal order.
They also cite prejudicial ex parte emails between a DCS lawyer and the judge the day before the family had its first hearing in which the lawyer characterized the plaintiffs “as racists, as violent and aggressive people” and advised the judge on how to keep the family from suing in federal court.
“These public officials illegally tore apart and terrorized Clayborne’s family,” the lawsuit says. “They acted outrageously and unlawfully. Their actions caused severe emotional trauma to Clayborne and each of her five children.”
Clayborne suffered from anxiety, depression and mental anguish during the 55 days of forced separation from her children, cried herself to sleep and could hardly get out of bed, the complaint says. She rented a hotel room in Tennessee in order to stay close to them and to fight to get them back.
The children cried for their mother and father while being held in foster care, and feared they would never see their parents again, the lawsuit says. They continue to have problems sleeping and one child who was potty trained now wets the bed.
Her son D.W., who is now 7 years old, “begs his mom, ‘Please don’t let them come back and take us.’”
Clayborne was reunited with her children on April 13, 2023. On August 15, 2023, Williams pled guilty to a simple marijuana possession charge, and the citation for possession against Clayborne was dismissed.
Her lawsuit claims the state troopers engaged in illegal search and seizure of her car, her person and her children without probable cause, and that troopers, deputies and DCS workers illegally restrained her and her children, amounting to false arrest and false imprisonment. All of the private communications and misleading documents exchanged between the judge, deputies and DCS officials that led to her children’s removal are rife with due process violations, she contends.
Clayborne seeks a jury trial to determine compensatory, nominal and punitive damages.
In its legal filings, attorneys representing Coffee County denied that the county or any of its sheriff’s office employees violated any of Clayborne’s state or Constitutional rights.
They argued that the new claims in the plaintiffs’ amended complaint, filed on February 26, are barred by a statute of limitations, as is plaintiffs’ effort to add four more deputy sheriffs to the list of named defendants. They further argue that the county’s deputy sheriffs are not liable due to qualified immunity.
In their answer to the original complaint, defendants’ counsel posited that “a reasonable officer would assume he could rely upon the representation of DCS workers, other officers on the scene, and court orders which provided him the necessary authority to execute” the order and take the children.
U.S. District Judge Clifton Corker ruled in August that three DCS workers who sought to be dismissed from the suit on immunity grounds could be found liable for their conduct in obtaining the emergency order and violating Clayborne’s Fourth Amendment protections against unlawful searches and seizures. The judge also allowed Clayborne’s claims of false arrest and false imprisonment against the DCS workers to go forward, Lookout reported.
Most of the defendants named in the amended complaint, filed in U.S. District Court for the Eastern District of Tennessee, have until April 28 to respond.
A spokesperson for the Tennessee Attorney General’s Office, which is representing the Department of Children’s Services, said it could not comment “due to the active litigation.” Coffee County Sheriff’s Department did not immediately respond to a request for comment.