Investigations v. Rights

Investigations v. Rights


by Linda J. Martin
August 2001

 

This article was previously published in one of our Link sites
Fight CPS and Win.

It is republished here with the kind consent of the author.

 

 

Child protection investigation practices are meeting head-on with upholders of U.S. Constitutional Rights in courts across the nation. The people say, "It is time for a change!"

Do you have to allow a child protection investigator into your home if someone calls in an anonymous tip to report something? If you don't, what are the repercussions? These are questions I was recently asked in the course of my work as a family rights activist.

The answer should be simple. Search and seizure is covered by the Fourth Amendment to the United States Constitution, the most basic law of our land, which clearly says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [1]

Of course, in the law, nothing remains simple for long.

If a child protection caseworker shows up with a law enforcement officer in your yard bearing a search and seizure warrant, then yes, you have to let them in and give them anything listed on the warrant. If not the officers will break down your front door and walk in anyway. As the Grateful Dead sang in their popular song, "Truckin'" - "If you've got a warrant I guess you're gonna' come in." Personally, I like my front door and would simply open it if given a chance, but I've heard of search warrant entries where unlocked doors were broken down by law enforcement officers, just for the sport, I guess. I hope this isn't the norm.

Because of the long-term habit of child protection caseworkers to ignore the Fourth Amendment in child welfare investigations, using coercion and intimidation to gain entry into homes of people who are not aware of their rights, they have become bold enough to press court action against parents who dare to deny what they ask. Usually they do not get warrants. In some areas laws have been passed on the unconstitutional assumption that parents accused of child abuse should have no right to privacy. Likewise, parents who have had the right to privacy in their home violated by caseworkers can sue, have sued, and will continue to sue until this problem is resolved.

Believing themselves to be immune from all prosecution, child protection caseworkers have forged ahead bullying innocent parents and doing whatever they wanted for about twenty-one years since the passing of the Adoption Assistance and Child Welfare Act of 1980 and even before, when it was common for Native Americans to be prime targets instead of just poor citizens in general. The U.S. 9th Circuit Court of Appeals disagreed with total immunity in Wallis v. City of Escondido, a 1999 case. Judge Reinhardt wrote, "Immunity under S 1983 is governed by federal law; state law cannot provide immunity from suit for federal civil rights violations." [2]

Because of the decision in Wallis v. City of Escondido, the door is wide open for federal civil rights lawsuits to be filed against child protection workers. I found the appellate decision in Mabe v. San Bernadino County especially interesting because everyone was found to be immune from prosecution except caseworker Karen Perry, who is left as sole defendant to take the fall on her own. Perry may have based her decisions on what her supervisor told her to do, but the appeals court decided the supervisor and other caseworkers couldn't be blamed. [3]

At the present time a 1999 California case, Calabretta v. Floyd, holds that child protection caseworkers cannot violate the Fourth Amendment by coercing entry without a warrant. Originally the parents sued after a coerced entry, a forced private interview with a twelve-year-old child who was asked to strip the three-year-old, and a forced strip search of a three-year-old child. [4]

This case was taken to the U.S. 9th Circuit Court of Appeals by two of the defendants: caseworker Jill Floyd of the Yolo County Department of Social Services and police officer Nicholas Schwall of the Woodland California Police Department. They wanted the court to give a ruling on whether or not social workers and police officers are entitled to qualified immunity from prosecution for coerced entry while investigating a child abuse report, interrogation of a child, and a strip search of a child. In this case, all these things were done without a search warrant and in the absence of any emergency circumstances. The

Appeals Court
reasoned that it was not an emergency since the caseworker waited 14 days after receiving a report to take action on it.

The decision, written by Appellate Court Judge Kleinfeld, is clear in its intent to bar social worker entry into homes when there are no emergency circumstances. Kleinfeld wrote: "Appellants [YoloCountyCA caseworker Jill Floyd and her co-defendant, Nicholas Schwall] urge us to adopt a principle that 'a search warrant is not required for home investigatory visits by social workers.' They claim qualified immunity on the ground that there is no clearly established principle to the contrary." Kleinfeld disagreed with this reasoning entirely. After examining a number of cases they had cited, Kleinfeld concluded, "Appellants presented no evidence they did 'consider the need for a search warrant.' They both imagined incorrectly that no search warrants were necessary to enter houses for child abuse investigations."

All three cases, Wallis v. City of Escondido, Mabe v. San Bernadino County, and Calabretta v. Floyd, were heard in the U.S. 9th Circuit Court of Appeals, so the cases are binding legal precedent for the following states: California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii. You can find these cases on the web - see the references at the foot of this article. The cases make interesting reading, giving many details on what happened when the caseworkers showed up at the door.

Despite the clear ruling in Calabretta v. Floyd, a North Carolina appeals court recently ruled that the Fourth Amendment doesn't apply to caseworkers! In that case, a two-year-old child exited her country home stark naked early in the morning in an attempt to catch up with a kitten. She was outside only a few moments when her brother took her back indoors. The parents believe that a passing school bus driver was the likely source of a call to child welfare agents. [5]

Caseworker Tasha Lowery, an employee of the Cleveland County Department of Social Services, responded to this call by driving out to the Stumbo's rural residence. She demanded to interview all the children in private. Mr. and Mrs. Stumbo refused to allow a private interview with the children on Fourth Amendment grounds. The Department of Social Services filed charges saying the parents had interfered with a child abuse investigation. The Stumbos also claim the caseworker demanded entry to the home, however caseworker Lowery denies that she asked to go inside.

The Stumbo's attorney claimed in their appeal "that entry into the household by a social worker is a 'search,' and a private interview of a juvenile by a social worker is a 'seizure,' both requiring probable cause under the Fourth Amendment". Judge Hudson, speaking for the North Carolina Appeals Court, declared: "this case involves neither a search nor a seizure and, therefore, does not implicate respondents' Fourth Amendment rights."

To show how weak this decision is, Judge Greene, in a dissenting opinion, wrote: "Because I believe the investigation ordered in this case…constitutes a search within the meaning of the Fourth Amendment, I dissent…. An interview of a reported victim child… without the consent of the child's parents, constitutes a seizure of the child within the meaning of the Fourth Amendment." He further states, "'seizure' under the Fourth Amendment occurs when government actors 'by means of [a] physical force or show of authority... in some way restrain the liberty of a citizen'."

If two judges in the same court can't agree on what constitutes search and seizure, clearly there is a good chance the decision will be overturned in the higher court. The Stumbo's attorneys filed a notice of appeal with the Supreme Court of North Carolina on June 19, 2001.

I do not give legal advice because I am not an attorney, however I have no qualms telling you what I'd do if a child protective investigator showed up at my door. If caseworkers wanted to come into my house, I'd tell them they are not allowed entry into my home without a warrant because they are government agents. If they violated my rights, I'd sue. I would allow them to talk to my children in front of witnesses, who would be their parents and an attorney who I would hire to represent them. This is for the protection of the children. After all, if anyone is detained, it is the children, and most of them find this very traumatic. They are taken from their homes, parents, friends, pets, possessions, grandparents, aunts, uncles, and more. Many even lose their siblings in state custody, which causes an enormous measure of emotional pain. [6]

Sometimes CPS agents show up to investigate on nothing more than an anonymous referral possibly called in by some demented person who sees evil everywhere. Many other referrals come from retaliation attempts. The source of the tip should be considered.

In recent case law, Florida v. J.L. (March 28, 2000), the U.S. Supreme Court affirmed that anonymous tips are not sufficient grounds to constitute probable cause for a search. Judge Ginsburg, writing for the Supreme Court, stated, "Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call.…" [7]

According to statistics from the U.S. Health and Human Services website, in 1999 (the most recent reporting year as of this writing in 2001) 54.7% of all child abuse or neglect reports are received from professionals like teachers, doctors, nurses, law enforcement, and therapists. The remaining 45.3% of the reports come from the general public, community members, ex-spouses and their families, angry neighbors, and other non-professional sources.

Of all the reports received (2,973,798 reports in 1999) only 18% were found to be substantiated or indicated cases of child abuse or neglect. 1,177,874 reports were screened out immediately, and 1,005,620 were investigated and eventually found to be unsubstantiated. Amazingly, at least 28.3% of the children placed in foster homes or other state custody facilities had charges in their cases unsubstantiated. I could give you a more accurate number, but only 28 of the states reported this incriminating statistic to the federal Health and Human Services agency. That's quite a startling error rate, especially in such a sensitive matter as separating children from their parents. [8]

While child protective investigators were pursuing a massive number of false and unsubstantiated reports, children who were truly in need of help were unnoticed by the system. Meanwhile thousands of parents complain that their children were taken for trivial reasons such as minor neglect based on poverty issues, having nothing to do with the actual criminal act of child abuse. This disparity in itself shows the absolute futility of a system where people are hired to try to do the work of God. The job is an impossible task, no matter what the training, no matter how pure the original motive. There will probably always be a very small percentage of children injured by their parents or other caretakers. It is tragic and heartbreaking, but it is a fact. Child protection agencies, twenty-one years young, are part of an expensive, failed experiment. [9] The task of investigating and prosecuting child abusers should be given back to law enforcement.

There is no doubt that child welfare in America is big business. As of September 1, 1999 there were 581,000 children in U.S. government custody. [10] Compare this with the size of a major city. Orlando, Florida has a population of 185,951 according to the year 2000 census data. There are enough children in government custody today to fill Orlando three times over. [11]

Child protection agents show up on a surprised family's porch to investigate, hoping to get the evidence they need to take away kids. Not allowing them into the home helps to prevent them from listing such "evidence" as a pile of dirty laundry or sink full of dishes. Don't help them, don't give them verbal or written statements of any kind, and you're much safer from unnecessary state tyranny. Anything you say can be misunderstood, misconstrued, exaggerated, and used against you in juvenile court.

After reading this, you may wonder how likely it is for this to happen to the children you know. According to government statistics, up to 7.8% of the households with children in the United States were named in child welfare referrals in 1999 (2,973,988 referrals per 38,022,115 households with children under age 18). [8] The 7.8% figure may be slightly too high as some of the households could have been reported more than once. Using a more modest 5% figure, multiplying it by the 18 years of childhood, we come up with a 90% chance that a household with children will at some time be brought to the attention of the child protection system. The threat may never seem real unless it is your door they show up at. If you are living at or near poverty level, or if you have a special needs child, your children are more at risk of unjust detention because of the way child welfare funding is set up in our country.

 


References:

[1] United States Constitution
http://www.findlaw.com/casecode/constitution/

[2] Wallis v. City of Escondido
http://laws.findlaw.com/9th/9755579.html

[3] Mabe v. San Bernadino County
http://laws.lp.findlaw.com/9th/9856561.html

[4] Calabretta v. Floyd
http://laws.findlaw.com/9th/9715385.html

[5] In re Stumbo
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals2001/&invol=000408-1
http://www.hslda.org/legal/state/nc/19990915Stumbo/default.asp
http://www.worldnetdaily.com/news/article.asp?article_id=22854

[6] "You Took Him" - a poem by John Francis Dunn
http://www.writtenbyme.com/content/49716

[7] Florida v. J.L.
http://laws.findlaw.com/us/000/98-1993.html

[8] National Clearinghouse on Child Abuse and Neglect Information
http://www.calib.com/nccanch/

[9] Twenty-one years - based on time elapsed from the passing of the Adoption
Assistance and Child Welfare Act of 1980 until the time of this writing in 2001.

[10] AFCARS Report (Adoption and Foster Care Analysis and Reporting System)
Interim FY 1999 Estimates as of June 2001
http://www.acf.dhhs.gov/programs/cb/publications/afcars/june2001.htm

[11] U.S. Census Bureau
http://www.census.gov/dmd/www/databank.html

 


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© 2001 by Linda J. Martin, who can be reached online through her website at http://www.geocities.com/fightcpsandwin
Permission is granted to freely distribute this article on the internet as long as it is kept in one piece and this copyright notice is included in its entirety. One copy can be freely printed and shared with others. Print publishers, please contact author first.

 

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