CHILD PROTECTIVE SERVICES
AND THE JUVENILE JUSTICE SYSTEM
A guide to protect the constitutional rights of both parents and children as ruled by the Federal Circuit Courts and Supreme Court.
“Know your rights before you talk to anyone from CPS/DCF or let them in your house, they won’t tell you your rights. CPS/DCF can’t do anything without your consent, demand a warrant and speak with an attorney first before speaking with anyone from CPS/DCF, it could cost you your children.”
The United States Court of Appeals for the Ninth Circuit said it best, “The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.”
Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999).
Permanent termination of parental rights has been described as “the family law equivalent of the death penalty in a criminal case.” Therefore, parents “must be afforded every procedural and substantive protection the law allows.” Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54.
“There is no system ever devised by mankind that is guaranteed to rip husband and wife or father, mother and child apart so bitterly than our present Family Court System.”
Judge Brian Lindsay
Retired Supreme Court Judge
New York, New York
“There is something bad happening to our children in family courts today that is causing them more harm than drugs, more harm than crime and even more harm than child molestation.”
Judge Watson L. White
Superior Court Judge
Cobb County, Georgia
Thomas M. Dutkiewicz, President
Connecticut DCF Watch
P.O. Box 3005
Bristol, CT 06011-3005
WE AT CONNECTICUT DCF WATCH ARE NOT ATTORNEYS AND ARE UNABLE TO OFFER ANY LEGAL ADVICE. ANY INFORMATION CONTAINED IN THIS DOCUMENT IS FOR EDUCATIONAL PURPOSES ONLY. IF YOU CHOOSE TO USE ANY OF THIS INFORMATION, YOU DO SO BY YOUR OWN CHOICE, CONVICTION AND RISK. WE ONLY OFFER UP AN OPINION FROM OUR POINT OF VIEW. WE ARE NOT RESPONSIBLE FOR ANY DECISIONS YOU CHOOSE TO MAKE OR FAIL TO MAKE. BEFORE MAKING ANY DECISIONS, SEEK LEGAL ADVICE FROM AN ATTORNEY IN THE AREA OF LAW YOU WISH TO PURSUE.
IT’S UNCONSTITUTIONAL FOR CPS TO CONDUCT AN INVESTIGATION IN THE HOME AND INTERVIEW A CHILD WITHOUT EXIGENT CIRCUMSTANCES
(IMMINENT “PHYSICAL” DANGER) OR PROBABLE CAUSE.
The decision in the case of Doe et al, v. Heck et al (No. 01-3648, 2003 US App. Lexis 7144) will affect the manner in which law enforcement and Child Protective Services (“CPS”) investigations of alleged child abuse or neglect are conducted. The decision of the 7th Circuit Court of Appeals found that the practice of a “no prior consent” interview of a child will ordinarily constitute a “clear violation” of the constitutional rights of parents under the 4th and 14th Amendments to the U.S. Constitution. According to the Court, the investigative interview of a child constitutes a “search and seizure” and, when conducted on private property without “consent, a warrant, probable cause, or exigent circumstances,” such an interview is an unreasonable search and seizure in violation of the rights of the parent, child, and, possibly the owner of the private property.
The mere possibility or risk of harm does not constitute an emergency or exigent circumstance that would justify a forced warrantless entry and a warrantless seizure of a child. Hurlman v. Rice, (2nd Cir. 1991)
A due-process violation occurs when a state-required breakup of a natural family is founded solely on a “best interests” analysis that is not supported by the requisite proof of parental unfitness. Quilloin v. Walcott, 434 U.S. 246, 255, (1978)
HEARSAY STATEMENTS INADMISSIBLE FROM CASE WORKERS,
POLICE COUNSELORS AND PHYSICIANS
A.G.G. v. Commonwealth of Kentucky
The Court of Appeals of Kentucky vacated and remanded a decision by the Barren Circuit Court which terminated parental rights because of sexual abuse. The court found that a child’s statements to a counselor during therapy and a physician during a physical examination were hearsay and inadmissible at trial under the U.S. Supreme Court case, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because the child did not testify at trial and there was no opportunity for cross-examination of the child. Because the child’s statements were inadmissible, the child welfare agency failed to present clear and convincing evidence that the child had been sexually abused. Cite: NO. 2004-CA-001979-ME and NO. 2004-CA-002032-ME, 2005 Ky. App. LEXIS 163 (Ky. Ct. App 2005)
DISTRICT OF COLUMBIA: In re TY.B & In re TI.B
The District of Columbia Court of Appeals reversed a lower court’s order terminating a father’s parental rights to his children, based on that court’s finding of neglect; the appeals court holding that the erroneous termination order was based on inadmissible hearsay testimony. The Court of Appeals concluded that the father adequately preserved his objection to admission of the testimony, and consequently reversed the termination order and remanded the case for further proceedings consistent with its opinion. Cite: No. 01-FS-1307; No. 01-FS-1320; 2005 D.C. App. LEXIS 390 (D.C. July 21, 2005)
TABLE OF CONTENTS
About The Authors 1
SECTION 1 – Never Ever Trust Anyone from CPS/DCF 2
SECTION 2 – Are All CPS Workers in the United States Subject to the 4th And 14th Amendment? 3
SECTION 3 – The Fourth Amendment’s Impact on Child Abuse Investigations 8
SECTION 4 – When Is Consent Not Consent? 8
SECTION 6 – Do Children Have Legal Standing to Sue CPS for Their Illegal Abduction from Their Home and Violating Their 4th and 14th Amendment Rights? 11
SECTION 7 – Summary of Family Rights (Family Association) 12
SECTION 8 – Warrantless Entry 12
SECTION 9 – Due Process 13
SECTION 10 – Seizures (Child Removals) 14
SECTION 11 – Immunity 15
SECTION 12 – Decisions of the United States Supreme Court Upholding Parental Rights as “Fundamental” 16
This is only a guide to your constitutional protections in the context of an investigation of alleged child abuse and neglect by Child Protective Services (“CPS”). Every state has variances of CPS in one form or another. Some are called DCF, DHS, DSS, DCYS, DCFS, HRS, CYS and FIA, collectively known as “CPS” for the purposes of this handbook. The material in this handbook should be supplemented by your own careful study of the 4th and 14th Amendments and other Constitutional protections that are guaranteed even in the context of dealing with CPS.
The intent of this handbook is to inform parents, caregivers and their attorneys that they can stand up against CPS and Juvenile Judges when they infringe upon the rights of both parents and children. As you read this handbook, you will be amazed what your rights are and how CPS conspires with the Assistant Attorney General (“AAG”) who then in turn has the Judge issue warrant/orders that are unlawful and unconstitutional under the law. Contrary to what any CPS officials, the AAG, Juvenile Judge or any social workers may say, they are all subject to and must yield to the 4th and 14th Amendment just like police officers according to the Circuit and District Courts of the United States and the Supreme Court. CPS workers can be sued for violations of your 4th and 14th Amendments, they lose their “immunity” by those “Deprivation of Rights Under the Color of Law” and must be sued in their “Official and Individual” capacity in order to succeed in a §§ 1983 and 1985 civil right’s lawsuit. If the police assisted CPS in that deprivation of rights, they also lose immunity and can be sued for assisting CPS in the violation of both yours and your child’s rights when they illegally abduct your children or enter your home without probable cause or exigent circumstances, which are required under the warrant clause of the 14th Amendment.
ABOUT THE AUTHORS
The authors of this handbook are not attorneys and do not pretend to be attorneys. The authors were victims of a false report and were falsely accused by DCF in Connecticut without a proper investigation being conducted. The authors fought back for 8 months against this corrupt organization whose order of the day was to deny them their 4th, 6th and 14th Amendment rights and to fabricate false charges without evidence.
The author’s goals are to not have another child illegally abducted from their family; that CPS and juvenile judges start using common sense before rushing to judgment and to conduct their investigations the same as police in order to be constitutionally correct and legal; and that CPS MUST by law comply with the “Warrant Clause” as required by the Constitution and the Federal Courts whereas they are “governmental officials” and are subject to the Constitution as are the police. There are NO EXCEPTIONS to the Constitution for CPS.
You as a parent or caregiver MUST know your rights and be totally informed of what you have a legal right to have and to express, whether you are a parent caught up in the very oppressive, abusive and many times unlawful actions of CPS or if you have never been investigated by CPS. Many individuals come to the wrong conclusion that the parents must have been abusive or neglectful for CPS to investigate, this is just a myth. The fact of the matter is that over 80% of the calls phoned into CPS are false and bogus.
Another myth is that CPS can conduct an investigation in your home without your consent and speak to your child without your consent. CPS employees will lie to you and tell you they do not need your consent. The fact of the matter is they absolutely need your consent to come into your home and speak with your children. If there is no “exigent circumstances” (imminent danger) to your children with “probable cause” (credible witness) to support a warrant, CPS anywhere in the United States cannot lawfully enter your home and speak with you and your children. In fact, it is illegal. You can sue the social worker and the police who assist them and both lose immunity from being sued.
If CPS lies to the AAG and the Judge to get a warrant/order and you can prove it, that also is a 4th and 14th Amendment rights violation which is a civil rights violation under § 1983 and conspiracy against rights covered under § 1985. If a CPS official knocks on your door, has no legal warrant, you refuse them entry, and the worker then threatens you with calling the police, this is also illegal and unlawful and both lose immunity. This is coercion, threatening and intimidation tactics even if the police only got the door open so CPS official can gain entry. Both can be sued.
Remember, CPS officials will not tell you your rights. In fact, they are going to do everything in their power including lying to you and threatening you with police presence telling you that you have to let them in. The police may even threaten you to let CPS in because you are obstructing an investigation. Many police officers do not realize that CPS MUST comply with the warrant clause of the 14th Amendment or be sued for violating it.
CPS does not have a legal right to conduct an investigation of alleged child abuse or neglect in a private home without your consent. In fact removing a child from your home without your consent even for several hours is a “seizure” under federal law. Speaking to your children without your consent is also a “seizure” under the law. If CPS cannot support a warrant and show that the child is in immanent danger along with probable cause, CPS cannot enter your home and speak with your children. Remember, anonymous calls into CPS are NEVER probable cause under the Warrant Clause. And even if they got a name and number from the reporter on the end of the phone, that also does not support probable cause under the law. CPS must by law, investigate the caller to determine if he or she is the person who they say they are and that what they said is credible. The call alone, standing by itself, is insufficient to support probable cause under the law. Many bogus calls are made by disgruntle neighbors, ex-spouses, or someone wanting to get revenge. So CPS needs to show the same due diligence as the police to obtain sworn statements. All CPS agencies across the country have an exaggerated view of their power. What you think is or is not abuse or neglect, CPS has a totally different definition. The definition is whatever they want it to be. DCF will lie to you, mark my word, and tell you that they can do anything they want and have total immunity. Tell that to the half dozen social workers currently sitting in jail in California, they lied to the judge. We will discuss in further detail what CPS and the police can and can not do.
THE SUPREME COURT RULED THAT THERE IS A PRESUMPTION
THAT A FIT PARENT ACTS IN THEIR CHILDREN’S BEST INTERESTS
NOT CHILD PROTECTION (CPS) OR YOUR STATE
The United States Supreme Court has stated: “There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason or compelling interest for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children. Reno v. Flores, 507 U. S. 292, 304. The state may not interfere in child rearing decisions when a fit parent is available. Troxel v. Granville, 530 U.S. 57 (2000).
Consequently, the State of Connecticut or any state can not use the “best interest of the child” standard to substitute its judgment for a fit parent and parroting that term is “legally insufficient” to use in the court to force parents to follow some arbitrary standard, case plan or horse and pony show. The State cannot usurp a fit parent’s decision making related to parental spending for their children, i.e. child support without either a demonstration the parent is unfit or there is proven harm to the child. In other words, the state and Child Protective Services can not impose a standard of living dealing with the rearing of children. When they violate this fundamental right, they would be intruding on the family’s life and liberty interest. The 1st Amendment bars such action because the rearing of children and the best interest of children is often based on ones religious beliefs, i.e. the separation of church and state. By the state imposing any standard of living or the rearing of children, they are putting forth a religious standard by their actions i.e. how you act, what to feed the child, how to dress the child, whether or not to home school and so on. The courts and the state lack jurisdiction on what goes on in the house even though they disagree with the choices made by parents, the Plaintiffs term this “parental immunity.” It’s none of the state’s business on how you are to raise your children. In other words, they can not falsely accuse parents of abuse or neglect just because they disagree with the method of child rearing or the standard in which they live.
State Law provisions mandate that the State invade the family, through the judiciary, to examine, evaluate, determine and conclude the terms and nature of the interpersonal relationship, spousal roles, spousal conduct, parental decision making, parenting conduct, parental spending, economic standard of living, occupations, education, savings, assets, charitable contributions and most importantly the intimate emotional, psychological and physical details of the parties and family during their marriage granting the judiciary a broad range of discretion to apply a property stripping statute with a standard of equity. This would be an abuse of the judicial power and the judicial system to intrude into U.S. citizen’s lives and violate their privacy rights. It is not the state’s right or jurisdiction to examine the day to day decisions and choices of citizens and then sit there in judgment and then force parents to follow conflicting standards with threat of harm for noncompliance i.e. abduction of children.
The United States Constitution’s Fourteenth Amendment contains a recognized Right to Privacy. This fundamental Right to Privacy encompasses the Privacy Protected Zone of Parenting. The Plaintiff asserts that DCF policy and Connecticut General Statutes impermissibly infringe the Federal Right to Privacy to the extent they mandate the parent to support his or her children beyond a standard to prevent harm to them. They substitute the State s judgment for the parent’s judgment as to the best interest of his or her children. The challenged statutes do not mandate a review to determine if demonstrable harm exists to the children in determining the amount of support that the parent must provide.
The State is not permitted and lacks jurisdiction to determine care and maintenance, i.e. spending, i.e. child discipline, decisions of a fit parent based on his or her income in an intact marriage other than to prevent harm to a child. There is no basis for the State to have a statute that mandates a fit divorced parent should support their child to a different standard, i.e. the standard of the best interests of a child. Furthermore, the State must not so mandate absent a demonstration that the choice of support provided by the parent has resulted in harm to his or her children.
The U.S. Supreme Court has mandated that the standard for the State to intrude in parenting decisions relating to grandparent visitation is no longer best interests of the child. Troxel v. Granville, 530 U.S. 57; 120 S.Ct. 2054 (2000). This court should recognize the changed standard of State intrusion in parenting should also apply to the context of parents care, control, and maintenance, i.e. spending, i.e. child discipline decisions, on behalf of his or her children.
In conclusion, unless CPS and the Attorney General’s Office can provide the requisite proof of parental unfitness, you’re State, CPS, the Attorney General’s Office and the Juvenile Courts can’t make on behalf of the parents or for the child unless the parent is adjudicated unfit. And as long as there is one fit parent, CPS and the Attorney General’s Office can not interfere or remove a single child.
Child Protection Threats to Take Children Ruled Illegal
By Ofelia Casillas and Matt O’Connor
Chicago Tribune Staff Reporters
A federal judge ruled that Illinois families were deprived of their constitutional rights when state child welfare officials threatened to separate parents from their children during abuse investigations.
In a decision made public Monday, U.S. District Judge Rebecca Pallmeyer found “ample evidence” that families suffered emotional and psychological injuries because the separations lasted “for more than a brief or temporary period.”
The judge didn’t fault the Illinois Department of Children and Family Services for erring on the side of caution in such cases, but she held that parents had a right to know the length of the expected separations and how to contest the restrictions.
In telephone interviews with the Tribune, families described being shocked, paranoid and frightened by the allegations that some thought would result in them losing their children. Parents felt that caseworkers assumed them to be guilty.
A father from Skokie spent almost a year away from his family, and the effects of the rift that developed between them remain years later.
“I don’t think it can ever be repaired. We are all broken up; we are not bonded the way that we used to be,” said the father, who requested that he only be identified by his first name, Patrick. “I cannot get over what they did to me. It devastated my whole entire life. I can never be the same again.”
The ruling shows the dilemma facing the oft-criticized DCFS in its charge to protect children from harm but also keep families together when possible.
At issue are safety plans, part of the wholesale reforms instituted by DCFS after the public uproar over the horrific 1993 death of 3-year-old Joseph Wallace, who was killed by his mentally ill mother after he was returned to her by the state.
In her decision, Pallmeyer essentially held that DCFS had gone too far in protecting children and had eroded the constitutional rights of parents.
The safety plans are supposedly voluntary agreements by parents in most cases to leave their home indefinitely or stay under constant supervision after investigations into child abuse or neglect are launched, often based on tips to DCFS.
But most of the families who testified at a 22-day hearing in 2002 and 2003 said the investigators threatened to take away their children unless they agreed to the safety plans.
“When an investigator expressly or implicitly conveys that failure to accept a plan will result in the removal of the children for more than a brief or temporary period of time, it constitutes a threat sufficient to deem the family’s agreement coerced, and to implicate due process rights,” Pallmeyer wrote in the 59-page opinion.
“Significantly, [DCFS] has not identified a single family that, faced with such an express or implied threat of protective custody, chose to reject the plan,” the judge said.
Pallmeyer gave DCFS 60 days to develop “constitutionally adequate procedures” for families to contest the safety plans.
Diane Redleaf, one of the plaintiffs’ attorneys, said about 10 families were involved in the court case, but that Pallmeyer’s decision would affect thousands of families who agree to safety plans each year.
“Instead of protecting children, the state is actually destroying families and hurting children,” Redleaf said.
Diane Jackson, a DCFS spokeswoman, said Pallmeyer’s review of safety plans was limited to 2002 and before and didn’t consider changes since then.
“We have definitely made changes,” said Jackson, declining to be more specific until DCFS can report to Pallmeyer.
Cook County Public Guardian Robert Harris applauded Pallmeyer’s decision.
No real due process’
“It’s abridging both the children’s and the parents’ rights to have that amorphous safety plan that could go on forever,” he said. “There is no real due process. There is no [procedure] to complain unless you have some money to hire a lawyer.”
This is the second significant ruling by Pallmeyer to go against DCFS stemming from the same lawsuit. In 2001, she found that DCFS investigators often made findings of child abuse on little evidence, unfairly blacklisting professionals accused of wrongdoing. The judge extended new protections to teachers, day-care providers, nannies, social workers and others who work directly with children. Those protections are intended to keep the falsely accused from losing their jobs.
As part of assessing whether a child is in danger, DCFS specialists determine whether one of 15 safety factors is present, including if a household member is violent or sexual abuse is suspected. For DCFS to determine a child to be unsafe requires the finding of only one safety factor, some of which require little or no evidence of risk of harm–a fact that drew the criticism of plaintiffs.
But Pallmeyer defended that practice, concluding that “it is not improper for DCFS to err on the side of caution given the significant state interest in protecting children from harm.”
But the plans can’t remain in place indefinitely, she held.
According to the decision, one day-care worker accused of improperly touching a child was forced out of his own home for nearly a year before a judge at an administrative hearing cleared him of the charges–based in part on information available early on.
Patrick, the father from Skokie, spent 11 months away from his three children and his wife, missing their birthdays and a wedding anniversary.
Even though the allegations concerned his workplace, a DCFS investigator threatened to put his children–a boy, then 10, and two girls, then 12 and 13–in a foster home unless he moved out of their home, Patrick said Monday.
He went home, grabbed a few belongings and later moved in with his sister in Chicago.
“I was put out on the street,” said Patrick, crying. “I was just totally violated.”
It wasn’t until a month later that he was able to explain the circumstances to his children after the caseworker allowed a visit.
Soon, the father was able to see his children at church and later had supervised visits. The goodbyes were heart-wrenching, Patrick recalled.
“I would have to come here after my wife got off work, and then I would have to leave,” the father said. “It was really emotional every time I left, every single night. And my kids didn’t understand why I had to leave. They were very confused and very hurt. They still are.”
At the time, his son was acting up at school. His daughters cried in class, their grades falling, he said.
After he was cleared of the allegations in December 2001, Patrick was unable to find a job in child care, despite about a decade of experience. The lengthy separation changed his relationship with his family, he said.
“I never got any type of apology, any type of thing to say your kids might be messed up, let us give you counseling,” Patrick said of DCFS.
In another case, James Redlin, a teacher, was accused by a passenger of inappropriately touching his son, Joey, then 6, who suffers from a mild form of autism, during a Metra train ride to the Field Museum in the summer of 2000.
Joey’s mother, Susan Redlin, said Monday that her husband was tickling their son, carrying the boy on his lap and holding him up to look out the window.
DCFS required that the father not act as an independent caretaker for his son until the case was resolved, effectively leaving the family “prisoners” in their own home, according to the court ruling.
Joey’s mother, responsible for supervising her son under the safety plan, has multiple sclerosis and uses a wheelchair. “My husband and son could not be out of my sight,” she said.
The husband was cleared of wrongdoing by September. Until then, father and son were forced to forgo trail hikes, carnival adventures, movie outings–and plans to teach Joey how to ride a bike.
“It made Jim awfully leery of being alone with Joey, even hugging him, even holding hands,” Susan Redlin said. “That was the worst. If I enjoy hugging my [son], am I a pervert?”
Just Sunday, Susan Redlin said, she was out with her son and was about to swat him jokingly on the rear when she stopped herself.
“I did not do that,” she said. “What if someone is watching?”
The Social Worker At Your Door: 10 Helpful Hints
By Christopher J. Klicka, Senior Counsel for the
Home School Legal Defense Association
More and more frequently, home schoolers are turned in on child abuse hotlines to social service agencies. Families who do not like home schoolers can make an anonymous phone call to the child abuse hotline and fabricate abuse stories about home schoolers. The social worker then has an obligation to investigate. Each state has a different policy for social workers, but generally they want to come into the family’s home and speak with the children separately. To allow either of these to occur involves great risk to the family.
The home school parent, however, should be very cautious when an individual identifies himself as a social worker. In fact, there are several tips that a family should follow:
1. Always get the business card of the social worker. This way, when you call your attorney or Home School Legal Defense Association, if you are a member, the attorney will be able to contact the social worker on your behalf. If the situation is hostile, HSLDA members should immediately call our office and hand the phone out the door so an HSLDA lawyer can talk to the social worker. We have a 24 hour emergency number.
2. Find out the allegations. Do not fall for the frequently used tactic of the social worker who would tell the unsuspecting victims that they can only give you the allegations after they have come into your home and spoken to your child separately. You generally have the right to know the allegations without allowing them in your home.
3. Never let the social worker in your house without a warrant or court order. All the cases that you have heard about where children are snatched from the home usually involve families waiving their Fourth Amendment right to be free from such searches and seizures by agreeing to allow the social worker to come inside the home. A warrant requires “probable cause” which does not include an anonymous tip or a mere suspicion. This is guaranteed under the Fourth Amendment of the U.S. Constitution as interpreted by the courts. (In extremely rare situations, police may enter a home without a warrant if there are exigent circumstances, i.e., police are aware of immediate danger or harm to the child.)
However, in some instances, social workers or police threaten to use force to come into a home. If you encounter a situation which escalates to this level, record the conversation if at all possible, but be sure to inform the police officer or social worker that you are doing this. If entry is going to be made under duress you should say and do the following: “I am closing my front door, but it is unlocked. I will not physically prevent you from entering, and I will not physically resist you in any way. But you do not have my permission to enter. If you open my door and enter, you do so without my consent, and I will seek legal action for an illegal entry.”
4. Never let the social worker talk to your children alone without a court order. On nearly every other incident concerning our members, HSLDA has been able to keep the social worker away from the children. On a few occasions, social workers have been allowed to talk with children, particularly where severe allegations are involved. In these instances, an attorney, chosen by the parent, has been present. At other times, HSLDA had children stand by the door and greet the social worker, but not be subject to any questioning.
5. Tell the official that you will call back after you speak with your attorney. Call your attorney or HSLDA, if you are a member.
6. Ignore intimidations. Normally, social workers are trained to bluff. They will routinely threaten to acquire a court order, knowing full well that there is no evidence on which to secure an order. In 98 percent of the contacts that HSLDA handles, the threats turn out to be bluffs. However, it is always important to secure an attorney in these matters, since there are occasions where social workers are able to obtain a court order with flimsy evidence. HSLDA members should call our office in such situations.
7. Offer to give the officials the following supporting evidence:
a. a statement from your doctor, after he has examined your children, if the allegations involve some type of physical abuse;
b. references from individuals who can vouch for your being good parents;
c. evidence of the legality of your home school program. If your home school is an issue, HSLDA attorneys routinely assist member families by convincing social workers of this aspect of an investigation.
8. Bring a tape recorder and/or witnesses to any subsequent meeting. Often times HSLDA will arrange a meeting between the social worker and our member family after preparing the parents on what to discuss and what not to discuss. The discussion at the meeting should be limited to the specific allegations and you should avoid telling them about past events beyond what they know. Usually, anonymous tips are all they have to go on, which is not sufficient to take someone to court. What you give them can and will be used against you.
9. Inform your church, and put the investigation on your prayer chain. Over and over again, HSLDA has seen God deliver home schoolers from this scary scenario.
10. Avoid potential situations that could lead to a child welfare investigation.
a. Conduct public relations with your immediate neighbors and acquaintances regarding the legality and success of home schooling.
b. Do not spank children in public.
c. Do not spank someone else’s child unless they are close Christian friends.
d. Avoid leaving young children at home alone.
In order for a social worker to get a warrant to come and enter a home and interview children separately, he is normally required, by both statute and the U.S. Constitution, to prove that there is some “cause.” This is a term that is synonymous with the term “probable cause”. “Probable cause” or cause shown is reliable evidence that must be corroborated by other evidence if the tip is anonymous. In other words, an anonymous tip alone and mere suspicion is not enough for a social worker to obtain a warrant.
There have been some home-schooled families who have been faced with a warrant even though there was not probable cause. HSLDA has been able to overturn these in court so that the order to enter the home was never carried out. Home School Legal Defense Association is committed to defending every member family who is being investigated by social workers, provided the allegations involve home schooling. In instances when the allegations have nothing to do with home schooling, HSLDA will routinely counsel most member families on how to meet with the social worker and will talk to the social worker to try to resolve the situation. If it cannot be resolved, which it normally can be in most instances by HSLDA’s involvement, the family is responsible for hiring their own attorney.
HSLDA is beginning to work with states to reform the child welfare laws to guarantee more freedom for parents and better protection for their parental rights. HSLDA will be sending out Alerts to its members in various states where such legislation is drafted and submitted as a bill.
For further information on how to deal with social workers, HSLDA recommends Home Schooling: The Right Choice, which was written with the intention of informing home school parents of their rights in order to prevent them from becoming a statistic. Federal statistics have shown that up to 60 percent of children removed from homes, upon later review, should never have been removed. The child welfare system is out of control, and we need to be prepared. To obtain The Right Choice or join the Home School Legal Defense Association, call 540-338-5600, or write HSLDA, P.O. Box 3000, Purcellville, VA 20134.
The Fourth Amendment’s Impact on Child Abuse Investigations
Michael P. Farris
President, Patrick Henry College
General Counsel, Home School Legal Defense Association (HSLDA)
The United States Court of Appeals for the Ninth Circuit said it best, “The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.” Calabretta v. Floyd, 189 F.3d 808 (1999).
This statement came in a case which held that social workers who, in pursuit of a child abuse investigation, invaded a family home without a warrant violate the Fourth Amendment rights of both children and parents. Upon remand for the damages phase of the trial, the social workers, the police officers, and the governments that employed them settled this civil rights case for $150,000.
The facts in the Calabretta case are fairly typical for the kind of situation we see almost daily at Home School Legal Defense Association. An anonymous call came into a hotline manned by social workers in Yolo County, California. The tipster said that he/she had heard a child’s voice coming from the Calabretta home or property which cried out, “No, daddy, no.” This same tipster said that an unnamed neighbor had told her that she had heard a child cry out from the back yard, “No, no, no” on another occasion.
The tipster added that the family was home schooling their children and noted that the family was very religious. During the course of discovery in the civil rights case, we found that the social worker listed the home schooling and religious information not as merely general background facts but as “risk factors” in her internal reports.
The social worker came to investigate the matter four days after receiving the call. Acting on the advice HSLDA gives all its members, Mrs. Calabretta refused to let the social worker into the home because she did not have a warrant.
The social worker returned to her office and requested that another worker be sent to follow up while she was on vacation. Since this was not done, ten days later, she returned to the home with a police officer and demanded that Mrs. Calabretta allow them to enter. The police officer informed Mrs. Calabretta that they did not need a warrant for any child abuse investigation and when she still refused to allow entry he told her that they would enter with or without her consent.
Not wanting a physical confrontation with a police officer, Mrs. Calabretta opened the door and allowed the social worker and the police officer to enter. A partial strip search was done of one of the young Calabretta children, and an interview was conducted with the family’s 12 year old daughter.
The social worker, police officer, and their government agencies moved to dismiss claiming that there was no violation of any clearly established constitutional right. Both the federal district court and the Ninth Circuit disagreed with these arguments.
Contrary to the assumption of hundreds of social workers that we have interacted with at HSLDA, the Ninth Circuit held that the Fourth Amendment applies just as much to a child abuse investigation as it does to any criminal or other governmental investigation. Social workers are not exempt from the requirements of the Fourth Amendment when they act alone. They are not exempt from its rules if they are accompanied by a police officer. And police officers are not exempt from the requirement even if all they do is get the front door open for the social worker.
What are the requirements of the Fourth Amendment?
The general rule is that unreasonable searches and seizures are banned. But the second part of the rule is the most important in this context. All warrantless searches are presumptively unreasonable.
There are two and only two recognized exceptions to the requirement of having a warrant for the conduct of a child abuse investigation:
1. The adult in charge of the premises gives the social worker his/her free and voluntary consent to enter the home.
2. The social worker possesses evidence that meets two standards:
(a) it satisfies the legal standard of establishing probable cause; and
(b) the evidence demonstrates that there are exigent circumstances relative to the health of the children.
If a police officer says, “If you don’t let us in your home we will break down your door”—a parent who then opens the door has not given free and voluntary consent. If a social worker says, “If you don’t let me in the home I will take your children away”—a parent who then opens the door has not given free and voluntary consent. Threats to go get a “pick up order” negate consent. Any type of communication which conveys the idea to the parent that they have no realistic alternative but to allow entry negates any claim that the entry was lawfully gained through the channel of consent.
It should be remembered that consent is only one of the three valid ways to gain entry: (warrant, consent, or probable cause and exigent circumstances.) There is nothing improper about saying, “We have a warrant you must let us in” or “We have solid evidence that your child is in extreme danger, you must let us in.” Such statements indicate that the social worker is relying on some theory other than consent to gain lawful entry. Of course, the social worker must indeed have a warrant if such a claim is made. And, in similar fashion, if a claim is made that the entry is being made upon probable cause of exigent circumstances, then that must also be independently true.
Probable Cause & Exigent Circumstances
The Fourth Amendment does not put a barrier in the way of a social worker who has reliable evidence that a child is in imminent danger. For example, if a hotline call comes in and says, “My name is Mildred Smith, here is my address and phone number. I was visiting my grandchildren this morning and I discovered that one of my grandchildren, Johnny, age 5, is being locked in his bedroom without food for days at a time, and he looked pale and weak to me”—the social worker certainly has evidence of exigent circumstances and is only one step away from having probable cause.
Since the report has been received over the telephone, it is possible that the tipster is an imposter and not the child’s grandmother. A quick verification of the relationship can be made in a variety of ways and once verified, the informant, would satisfy the legal test of reliability which is necessary to establish probable cause.
However, a case handled by HSLDA in San Bernadino County, California, illustrates that even a grandparent cannot be considered a per se reliable informant.
A grandfather called in a hotline complaint with two totally separate allegations of sexual abuse. The first claim was that his son, who was a boarder in an unrelated family’s home, was sexually abusing the children in that home. The second claim concerned his daughter and her husband. The claim here was that the husband was sexually abusing their children. These were two separate allegations in two separate homes.
The social workers went to the home of the unrelated family first to investigate the claims about the tipster’s son. They found the claims to be utterly spurious. They had gained entry into the home based on the consent of the children’s parents.
The following day they went to the home of the tipster’s daughter. The daughter had talked to her brother in the meantime and knew that her father had made a false report about him. When the social workers arrived at her home, she informed them that they were in pursuit of a report made by a known false reporter—her father. Moreover, she informed the social workers that she had previously obtained a court order requiring her father to stay away from her family and children based on his prior acts of harassment.
Despite the fact that the social workers knew that their reporter had been previously found to be unreliable—they insisted that they would enter the family home without consent.
In a civil rights suit we brought against the social workers and police officers, they settled the matter with a substantial payment to the family in satisfaction of their claims that the entry was in violation of their civil rights because the evidence in their possession did not satisfy the standard of probable cause.
It is not enough to have information that the children are in some form of serious danger. The evidence must also pass a test of reliability that our justice system calls probable cause.
In the first appellate case I ever handled in this area, H.R. v. State Department of Human Resources, 612 So. 2d 477 (Ala. Ct. App. 1992); the court held that an anonymous tip standing alone never amounts to probable cause. The Calabretta court held the same thing, as have numerous other decisions which have faced the issue directly.
On the surface, this places the social worker in a dilemma. On the one hand, state statutes, local regulations, and the perception of federal mandates seem to require a social worker to conduct an investigation on the basis of an anonymous tip. But, on the other hand, the courts are holding in case after case that if you do enter a home based on nothing more than an anonymous tip you are violating the Fourth Amendment rights of those being investigated. What do you do?
The answer is: Pay attention to the details of each set of the rules.
First and foremost, keep in mind that the ultimate federal mandate is the Constitution of the United States. No federal law can condition your receipt of federal funds on the basis that you violate some other provision of the Constitution. South Dakota v. Dole, 514 U.S. 549 (1995).
Second, realize that the mandate to conduct an investigation does not require you to enter every home. Even if your rules or statutes seem to expressly require entry into every home, such rules and statutes must be construed in a manner consistent with the Constitution. The net requirement is this: if your laws and regulations seem to require entry into every home, then social workers should be instructed to add this caveat: “when it is constitutional for me to do so.”
Obviously, nothing in the Constitution prevents a social worker from going to a home and simply asking to come in. If the parent or guardian says “yes”, there is no constitutional violation whatsoever—provided that there was no coercion.
This covers the vast majority of investigations. The overwhelming response of people being investigated is to allow the social worker to enter the home and conduct whatever investigation is reasonably necessary.
The second alternative is to seek a warrant or entry order. The Fourth Amendment itself spells out the evidence required for a warrant or entry order. No warrant shall issue but on probable cause. The United States Supreme Court has held that courts may not use a different standard other than probable cause for the issuance of such orders. Griffin v. Wisconsin, 483 U.S. 868 (1987).
If a court issues a warrant based on an uncorroborated anonymous tip, the warrant will not survive a judicial challenge in the higher courts. Anonymous tips are never probable cause.
This was the essence of the decision in the case of H.R. v. Alabama. In that case, the social worker took the position that she had to enter every home no matter what the allegation.
In court, I gave her some improbable allegations involving anonymous tipsters angry at government officials demanding that social workers investigate these officials for abusing their own children. Her position was that she had to enter the home of all those who were reported. The trial judge sustained her position and held that the mere receipt of a report of child abuse or neglect was sufficient for the issuance of an entry order. However, the trial judge’s decision was reversed by the Alabama Court of Appeals. That court held that the Alabama statute’s requirement of “cause shown” had to be read in the light of the Fourth Amendment. An anonymous tip standing alone did not meet the standard of cause shown.
If a social worker receives an anonymous tip, he/she can always go to the home and ask permission for entry. If permission is denied, then the social worker—if he/she believes it is justified—can seek independent sources to attempt to verify the tipster’s information. For example, if a tipster says, that the child is covered with bruises from head to toe, contact could be made with the child’s teacher to see if he/she has ever seen such bruises. If the teacher says “Yes, I see them all the time,” then the report has been corroborated and upon that kind of evidence the social worker probably has the basis for either the issuance of a warrant or an entry on the basis of exigent circumstances if it is not possible to get a warrant in a reasonable time.
It is my opinion that the welfare of children is absolutely consistent with our constitutional requirements. Children are not well-served if they are subjected to investigations based on false allegations. Little children can be traumatized by investigations in ways that are unintended by the social worker. However, to a small child all they know is that a strange adult is taking off their clothing while their mother is sobbing in the next room in the presence of an armed police officer. This does not seem to a child to be a proper invasion of their person—quite different, for example, from an examination by a doctor when their mother is present and cooperating.
The misuse of anonymous tips are well-known. Personal vendettas, neighborhood squabbles, disputes on the Little League field, are turned into maliciously false allegations breathed into a hotline. From my perspective, there is no reason whatsoever in any case, for a report to be anonymous. There is every reason to keep the reports confidential. The difference between an anonymous report and a confidential report is obvious. In an anonymous report the social worker or police officer does not know who the reporter is and has no evidence of the reliability of their report. There is no policy reason for keeping social workers or police officers in the dark.
On the other hand, there is every reason to keep the name of the reporter confidential. There are a great number of reasons that the person being investigated shouldn’t know who made the call.
Moreover, precious resources are diverted from children who are truly in need of protection when social workers are chasing false allegations breathed into a telephone by a malicious anonymous tipster. If such a tipster is told: “May we please have your name, address, and phone number? We will keep this totally confidential,” it is highly probable that the vast majority of reports made in good faith will give such information. It is also probable that those making maliciously false allegations will simply hang up.
Children are well-served when good faith allegations are investigated. They are equally well-served if malicious allegations can be screened out without the need for invasion.
NEVER EVER TRUST ANYONE FROM CPS/DCF
You MUST understand that CPS will not give you or your spouse any Miranda warning nor do they have too. If CPS shows up at your door and tells you they need to speak with you and your children, you have the legal right to deny them entry under the 4th and 14th Amendment. But before they leave, you should bring your children to the door but never open it, instead show them the children are not in imminent danger and that they are fine. If you do not at least show them your children, they could come back with an unlawful and unconstitutional warrant even though your children are not in imminent danger.
Everything CPS sees and hears is written down and eventually given to the AAG for your possible prosecution. You also need to know that if the focus of the investigation is on your spouse or significant other you may think you may not be charged with anything and that you are the non-offending spouse, WRONG. If your spouse gets charged with anything, you are probably going to get charged with allowing it to happen. So if a spouse lies and makes things up, he/she is also confessing that he allowed whatever he/she alleges.
What you say will more then likely not be written down the way you said it or meant it. For example, a female CPS worker asks the wife, “Does your husband yell at the children?” your response could be once in a while. Then they ask, “Does he yell at you and argue with you. Your response could be “yes we argue sometimes and he may raise his voice.” The next question is, “Does your husband drink alcohol?” Your response could be “yes he has several drinks a week.” Now let’s translate those benign responses and see what CPS may write in her paperwork. “When the father drinks, he yells at children and wife and wife is a victim of domestic violence.” This is a far cry on what really took place in that conversation. CPS routinely will take what you say out of context and actually lie in their reports in order to have a successful prosecution of their case. They have an end game in mine and they will misrepresent the facts and circumstances surrounding what may or may not have happened.
Something similar happened to the authors where DCF employees lied in front of the judge. They said the husband was a victim of domestic violence even though all five members of the family stated clearly that there was never any domestic violence. The husband would like to know when this occurred because it did not happen when he was there. They will also misrepresent the condition of your home even if you were sick or injured and did not have a chance to straighten anything out. CPS will not put anything exculpatory in the record so anyone that reads her notes will read that the house was a mess and cluttered. Never give them a chance to falsify the record or twist your words. The best advice we can offer is before letting any CPS official in your home, if you choose to do so, is to tell them you want your attorney there when they come and schedule a time for the meeting.
Remember, CPS could care less about your rights or your children’s constitutional rights. Removing a child from a safe home is more harmful then most alleged allegations as stated by many judges. They will lie and say they have to come in and you have to comply. Remember CPS has no statutory authority to enter your home when no crime has been committed. They are trained to lie to you to get in any way they can and this comes from interviewing employees at DCF. Do not sign anything or agree to anything even if you are not guilty and you agree to go through some horse and pony show. That will be used against you as if you admitted to it. The case plan or whatever they call it in your state is essentially a plea of guilty to the charges. If you agree to it and sign it, you are admitting to the abuse and/or neglect allegations and to the contents of the record. You are assisting them in their case against you and in your own prosecution if you sign their agreements, case plan or menu. Demand a trial at the very first hearing and never stipulate to anything. Force them to prove you are guilty. Do not willingly admit to it by signing a case plan. Due to ignorance and/or incompetence, your attorney may tell you to sign their agreement so you can get your children back sooner. Do not believe it. This will only speed up the process of terminating your parental rights.
ARE ALL CPS WORKERS IN THE UNITED STATES
SUBJECT TO THE 4TH AND 14TH AMENDMENT?
Yes they are. The Fourth Amendment is applicable to DCF investigators in the context of an investigation of alleged abuse or neglect as are all “government officials.” This issue is brought out best in Walsh v. Erie County Dept. of Job and Family Services, 3:01-cv-7588. If it is unlawful and unconstitutional for the police who are government officials, likewise it is for CPS employees who are also government officials.
The social workers, Darnold and Brown, argued that “the Fourth Amendment was not applicable to the activities of their social worker employees.” The social workers claimed, “entries into private homes by child welfare workers involve neither searches nor seizures under the Fourth Amendment, and thus can be conducted without either a warrant or probable cause to believe that a child is at risk of imminent harm.” The court disagreed and ruled: “Despite the defendant’s exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose request to enter, however benign or well-intentioned, are met by a closed door.” The Court also stated “The Fourth Amendment’s prohibition on unreasonable searches and seizures applies whenever an investigator, be it a police officer, a DCF employee, or any other agent of the state, responds to an alleged instance of child abuse, neglect, or dependency.” (Emphasis added) Darnold and Brown’s first argument, shot down by the court. The social workers then argued that there are exceptions to the Fourth Amendment, and that the situation with the Walsh children was an “emergency.” Further, the “Defendants argue their entry into the home, even absent voluntary consent, was reasonable under the circumstances.” They point to the anonymous complaint about clutter on the front porch; and the plaintiff’s attempt to leave.
These circumstances, the defendants argue, created an ‘emergency situation’ that led Darnold and Brown reasonably to believe the Walsh children were in danger of imminent harm. (This is the old “emergency” excuse that has been used for years by social workers.) The Court again disagreed and ruled: “There is nothing inherently unusual or dangerous about cluttered premises, much less anything about such vaguely described conditions that could manifest imminent or even possible danger or harm to young children. If household ‘clutter’ justifies warrantless entry and threats of removal of children and arrest or citation of their parents, few families are secure and few homes are safe from unwelcome and unjustified intrusion by state officials and officers.” The Court went on to rule, “They have failed to show that any exigency that justifies warrantless entry was necessary to protect the welfare of the plaintiff’s children. In this case, a rational jury could find that ‘no evidence points to the opposite conclusion’ and a lack of ‘sufficient exigent circumstances to relieve the state actors here of the burden of obtaining a warrant.’ The social workers’ second argument, shot down by the court.
The social workers, Darnold and Brown, then argued that they are obligated under law to investigate any reported case of child abuse, and that supersedes the Fourth Amendment. The social workers argued, “Against these fundamental rights, the defendants contend that Ohio’s statutory framework for learning about and investigation allegations of child abuse and neglect supersede their obligations under the Fourth Amendment. They point principally to § 2151.421 of the Ohio Revised code as authority for their warrantless entry into and search of the plaintiff’s home. That statute imposes a duty on certain designated professionals and persons who work with children or provide child care to report instances of apparent child abuse or neglect.” This is the old “mandatory reporter” excuse.
The Court disagreed and ruled: “The defendant’s argument that the duty to investigate created by § 2151.421(F)(1) exempts them from the Fourth Amendment misses the mark because, not having received a report described in § 2151.421(A)(1)(b), they were not, and could not have been, conducting an investigation pursuant to § 2151.421(F)(1).” The social worker’s third argument, shot down by the court.
The Court continues with their chastisement of the social workers: “There can be no doubt that the state can and should protect the welfare of children who are at risk from acts of abuse and neglect. There likewise can be no doubt that occasions arise calling for immediate response, even without prior judicial approval. But those instances are the exception. Otherwise child welfare workers would have a free pass into any home in which they have an anonymous report or poor housekeeping, overcrowding, and insufficient medical care and, thus perception that children may be at some risk.” The Court continues: “The anonymous phone call in this case did not constitute a ‘report’ of child abuse or neglect.” The social workers, Darnold and Brown, claimed that they were immune from liability, claiming qualified immunity because “they had not had training in Fourth Amendment law.” In other words, because they thought the Fourth Amendment did not bind them, they could not be sued for their “mistake.”
The police officers, Chandler and Kish, claimed that they could not be sued because they thought the social workers were not subject to the Fourth Amendment, and they were just helping the social workers. The Court disagreed and ruled: “That subjective basis for their ignorance about and actions in violation of the Fourth Amendment does not relieve them of the consequences of that ignorance and those actions.” The Court then lowers the boom by stating: “The claims of defendants Darnold, Brown, Chandler and Kish of qualified immunity are therefore denied.”
THE 9TH CIRCUIT COURT SAID, PARENTS HAVE THE CONSTITUTIONAL RIGHT
TO BE LEFT ALONE BY CPS AND THE POLICE.
The 9th Circuit Court of Appeals case, Calabretta v. Floyd, 9th Cir. (1999) “involves whether a social worker and a police officer were entitled to qualified immunity, for a coerced entry into a home to investigate suspected child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency.”
The court did not agree that the social worker and the police officer had “qualified immunity” and said, “the facts in this case are noteworthy for the absence of emergency.” No one was in distress. “The police officer was there to back up the social worker’s insistence on entry against the mother’s will, not because he perceived any imminent danger of harm.” And he should have known better. Furthermore, “had the information been more alarming, had the social worker or police officer been alarmed, had there been reason to fear imminent harm to a child, this would be a different case, one to which we have no occasion to speak. A reasonable official would understand that they could not enter the home without consent or a search warrant.”
The 9th Circuit Court of Appeals defines the law and states “In our circuit, a reasonable official would have known that the law barred this entry. Any government official (CPS) can be held to know that their office does not give them unrestricted right to enter people’s homes at will. We held in White v. Pierce County (797 F. 2d 812 (9th Cir. 1986), a child welfare investigation case, that ‘it was settled constitutional law that, absent exigent circumstances, police could not enter a dwelling without a warrant even under statutory authority where probable cause existed.’ The principle that government officials cannot coerce entry into people’s houses without a search warrant or applicability of an established exception to the requirement of a search warrant is so well established that any reasonable officer would know it.”
And there we have it: “Any government official can be held to know that their office does not give them an unrestricted right to enter peoples’ homes at will. … The fourth Amendment preserves the ‘right of the people to be secure in their persons, houses … ’ without limiting that right to one kind of government official.” (emphasis added)
In other words, parents have the constitutional right to exercise their children’s and their 4th and 5th Amendment’s protections and should just say no to social workers especially when they attempt to coerce or threaten to call the police so they can conduct their investigation. “A social worker is not entitled to sacrifice a family’s privacy and dignity to her own personal views on how parents ought to discipline their children.” (The Constitution and the Bill of Rights were written to protect the people from the government, not to protect the government from the people. And within those documents, the people have the constitutional right to hold the government accountable when it does deny its citizens their rights under the law even if it is CPS, the police, or government agency, or local, state, or federal government.)
The Court’s reasoning for this ruling was simple and straight forward: “The reasonable expectation of privacy of individuals in their homes includes the interests of both parents and children in not having government officials coerce entry in violation of the Fourth Amendment and humiliate the parents in front of the children. An essential aspect of the privacy of the home is the parent’s and the child’s interest in the privacy of the relationship with each other.”
PARROTING OF THE PHRASE “BEST INTEREST OF THE CHILD” WITHOUT SUPPORTING FACTS OR A LEGAL BASIS IS LEGALLY INSUFFICIENT TO SUPPORT A WARRANT OR COURT ORDER TO ENTER A HOME.
In North Hudson DYFS v. Koehler Family, filed December 18, 2000, the Appellate court granted the emergency application on February 6, 2001, to stay DYFS illegal entry that was granted by the lower court because DYFS in their infinite wisdom thought it was their right to go into the Koehler home because the children were not wearing socks in the winter or sleep in beds. After reviewing the briefs of all the parties, the appellate court ruled that the order to investigate the Koehler home was in violation of the law and must be reversed. The Court explained, “[a]bsent some tangible evidence of abuse or neglect, the Courts do not authorize fishing expeditions into citizens’ houses.” The Court went on to say, “[m]ere parroting of the phrase ‘best interest of the child’ without supporting facts and a legal basis is insufficient to support a Court order based on reasonableness or any other ground.” February 14, 2001.
In other words, a juvenile judge’s decision on whether or not to issue a warrant is a legal one, it is not based on “best interest of the child” or personal feeling. The United States Supreme Court has held that courts may not use a different standard other than probable cause for the issuance of such orders. Griffin v. Wisconsin, 483 U.S. 868 (1987). If a court issues a warrant based on an uncorroborated anonymous tip, the warrant will not survive a judicial challenge in the higher courts. Anonymous tips are never probable cause. “[I]n context of a seizure of a child by the State during an abuse investigation . . . a court order is the equivalent of a warrant.” (Emphasis added) Tenenbaum v. Williams, 193 F.3d 581, 602 (2nd Cir. 1999). F.K. v. Iowa district Court for Polk County, Id.”
THE U.S COURT OF APPEALS FOR THE 7TH CIRCUIT RECENTLY
RULED THAT CHILD ABUSE INVESTIGATIONS HELD ON PRIVATE PROPERTY
AND INTERVIEW OF A CHILD WITHOUT CONSENT UNCONSTITUTIONAL.
The decision in the case of Doe et al, v. Heck et al (No. 01-3648, 2003 US App. Lexis 7144) will affect the manner in which law enforcement and child protective services investigations of alleged child abuse or neglect are conducted. The decision of the 7th Circuit Court of Appeals found that this practice, that is “no prior consent” interview of a child, will ordinarily constitute a “clear violation” of the constitutional rights of parents under the 4th and 14th Amendments to the U.S. Constitution. According to the Court, the investigative interview of a child constitutes a “search and seizure” and, when conducted on private property without “consent, a warrant, probable cause, or exigent circumstances,” such an interview is an unreasonable search and seizure in violation of the rights of the parent, child, and, possibly the owner of the private property.
Considering that one critical purpose of the early stages of an investigation is to determine whether or not the child is in danger, and if so, from who seems to require a high threshold level of evidence to commence the interview of a child, whether the child is on private or public property.
“In our circuit, a reasonable official would have known that the law barred this entry. Any government official can be held to know that their office does not give them an unrestricted right to enter peoples’ homes at will. We held in White v. Pierce County a child welfare investigation case, that ‘it was settled constitutional law that, absent exigent circumstances, police could not enter a dwelling without a warrant even under statutory authority where probable cause existed.’ The principle that government officials cannot coerce entry into peoples’ houses without a search warrant or applicability of an established exception to the requirement of a search warrant is so well established that any reasonable officer would know it.” “We conclude that the Warrant Clause must be complied with. First, none of the exceptions to the Warrant Clause apply in this situation, including ‘exigent circumstances coupled with probable cause,’ because there is, by definition, time enough to apply to a magistrate for an ex parte removal order. See State v. Hatter, 342N.W.2d 851, 855 (Iowa 1983) (holding the exigent circumstances exception to the Warrant Clause only applies when ‘an immediate major crisis in the performance of duty afforded neither time nor opportunity to apply to a magistrate.’). Second, as noted by the Second Circuit, ‘[I]n context of a seizure of a child by the State during an abuse investigation . . . a court order is the equivalent of a warrant.’ Tenenbaum v. Williams, 193 F.3d 581, 602 (2nd Cir. 1999). F.K. v. Iowa district Court for Polk County, Id.”
Another recent 9th Circuit case also held that there is no exception to the warrant requirement for social workers in the context of a child abuse investigation. ‘The [California] regulations they cite require social workers to respond to various contacts in various ways. But none of the regulations cited say that the social worker may force her way into a home without a search warrant in the absence of any emergency.’ Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999) Calabretta also cites various cases form other jurisdictions for its conclusion. Good v. Dauphin County Social Servs., 891 F.2d 1087 (3rd Cir. 1989) held that a social worker and police officer were not entitled to qualified immunity for insisting on entering her house against the mother’s will to examine her child for bruises. Good holds that a search warrant or exigent circumstances, such as a need to protect a child against imminent danger of serious bodily injury, was necessary for an entry without consent, and the anonymous tip claiming bruises was in the case insufficient to establish special exigency.
The 9th Circuit further opined in Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000), that ‘[b]ecause the swing of every pendulum brings with it potential adverse consequences, it is important to emphasize that in the area of child abuse, as with the investigation and prosecution of all crimes, the state is constrained by the substantive and procedural guarantees of the Constitution. The fact that the suspected crime may be heinous – whether it involves children or adults – does not provide cause for the state to ignore the rights of the accused or any other parties. Otherwise, serious injustices may result. In cases of alleged child abuse, governmental failure to abide by constitutional constraints may have deleterious long-term consequences for the child and, indeed, for the entire family. Ill-considered and improper governmental action may create significant injury where no problem of any kind previously existed.’ Id. at 1130-1131.”
This was the case involving DCF in Connecticut. Many of their policies are unlawful and contradictory to the Constitution. DCF has unlawful polices giving workers permission to coerce, intimidate and to threatened innocent families with governmental intrusion and oppression with police presences to squelch and put down any citizen who asserts their 4th Amendment rights by not allowing an unlawful investigation to take place in their private home when no imminent danger is present.
DCF is the “moving force” behind the on-going violations of federal law and violations of the Constitution. This idea of not complying with the 4th and 14th Amendments is so impregnated in their statutes, policies, practices and customs. It affects all and what they do. DCF takes on the persona of the feeling of exaggerated power over parents and that they are totally immune. Further, that they can do basically do anything they want including engaging in deception, misrepresentation of the facts and lying to the judge. This happens thousands of times every day in the United States where the end justifies the mean even if it is unlawful, illegal and unconstitutional.
We can tell you stories for hours where CPS employees committed criminal acts and were prosecuted and went to jail and/or were sued for civil rights violations. CPS workers have lied in reports and court documents, asked others to lie, and kidnapped children without court orders. They even have crossed state lines impersonating police, kidnapping children and then were prosecuted for their actions. There are also a number of documented cases where the case worker killed the child.
It is sickening how many children are subject to abuse, neglect and even killed at the hands of Child Protective Services. The following statistics represent the number of cases per 100,000 children in the United States and includes DCF in Connecticut. This information is from The National Center on Child Abuse and Neglect (NCCAN) in Washington.
Perpetrators of Maltreatment
Abuse Neglect Medical
CPS 160 112 410 14 6.4
Parents 59 13 241 12 1.5
Imagine that, 6.4 children die at the hands of the very agencies that are supposed to protect them and only 1.5 at the hands of parents per 100,000 children. CPS perpetrates more abuse, neglect, and sexual abuse and kills more children then parents in the United States. If the citizens of this country hold CPS to the same standards that they hold parents too. No judge should ever put another child in the hands of ANY government agency because CPS nationwide is guilty of more harm and death than any human being combined. CPS nationwide is guilty of more human rights violations and deaths of children then the homes from which they were removed. When are the judges going to wake up and see that they are sending children to their death and a life of abuse when children are removed from safe homes based on the mere opinion of a bunch of social workers.
THE FOURTH AMENDMENT’S IMPACT ON CHILD ABUSE INVESTIGATIONS.
The United States Court of Appeals for the Ninth Circuit said it best, “The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.” Calabretta v. Floyd, 189 F.3d 808 (1999).
This statement came in a case, which held that social workers who, in pursuit of a child abuse investigation, invaded a family home without a warrant violating the Fourth Amendment rights of both children and parents. Upon remand for the damages phase of the trial, the social workers, police officers, and governments that employed them settled this civil rights case for $150,000.00.
Contrary to the assumption of hundreds of social workers, the Ninth Circuit held that the Fourth Amendment applies just as much to a child abuse investigation as it does to any criminal or other governmental investigation. Social workers are not exempt from the requirements of the Fourth Amendment when they act alone. They are not exempt from its rules if they are accompanied by a police officer. Police officers are not exempt from the requirement even if all they do is get the front door open for the social worker; this would be intimidation, coercion and threatening. The general rule is that unreasonable searches and seizures are banned. But the second part of the rule is the most important in this context. All warrantless searches are presumptively unreasonable.
WHEN IS CONSENT NOT CONSENT?
If a police officer says, “If you don’t let us in your home we will break down your door” –a parent who then opens the door has not given free and voluntary consent. If a social worker says, “if you don’t let me in the home, I will take your children away” –a parent who then opens the door has not given free and voluntary consent. If a social worker says, “I will get a warrant from the judge or I will call the police if you do not let me in” negate consent. ANY type of communication, which conveys the idea to the parent that they have no realistic alternative, but to allow entry negates any claim that the entry was lawfully gained through the channel of consent. DCF’s policy clearly tells the social worker that they can threaten parents even if the parents assert their 4th Amendment rights.
Consent to warrantless entry must be voluntary and not the result of duress or coercion. Lack of intelligence, not understanding the right not to consent, or trickery invalidate voluntary consent. Schneckloth v. Bustamonte, 412 US 218 (1973). One’s awareness of his or her right to refuse consent to warrantless entry is relevant to the issue of voluntariness of alleged content. Lion Boulos v. Wilson, 834 F. 2d 504 (9th Cir. 1987). “Consent” that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. Florida v. Bostick, 501 US 429 (1991). Coercive or intimidating behavior supports a reasonable belief that compliance is compelled. Cassady v. Tackett, 938 F. 2d (6th Cir. 1991). Coercion can be mental as well as physical. Blackburn v. Alabama, 361 US (1960)
PROBABLE CAUSE & EXIGENT CIRCUMSTANCES
The Fourth Amendment does not put a barrier in the way of a social worker who has reliable evidence that a child is in imminent danger. For example, if a hot line call comes in and says, “My name is Mildred Smith, here is my address and phone number. I was visiting my grandchildren this morning and I discovered that one of my grandchildren, Johnny, age 5, is being locked in his bedroom without food for days at a time, and he looked pale and weak to me” – the social worker certainly has evidence of exigent circumstances and is only one step away from having probable cause.
Since the report has been received over the telephone, it is possible that the tipster is an imposter and not the child’s grandmother. A quick verification of the relationship can be made in a variety of ways and once verified, the informant, would satisfy the legal test of reliability, which is necessary to establish probable cause. Anonymous phone calls fail the second part of the two-prong requirement of “exigent circumstances” and “probable cause” for a warrant or order. Anonymous phone calls cannot stand the test of probable cause as defined within the 14th Amendment and would fail in court on appeal. The social worker(s) would lose their qualified immunity for their deprivation of rights and can be sued. Many social workers and Child Protection Services (“CPS”) lose their cases in court because their entry into homes was in violation of the parents civil rights because the evidence in their possession did not satisfy the standard of probable cause.
It is not enough to have information that the children are in some form of serious danger. The evidence must also pass a test of reliability that our justice system calls probable cause. In H.R. v. State Department of Human Resources, 612 So.2d 477 (Ala. Ct. App. 1992); the court held that an anonymous tip standing alone never amounts to probable cause. The Calabretta court held the same thing, as have numerous other decisions, which have faced the issue directly. The Fourth Amendment itself spells out the evidence required for a warrant or entry order. No warrant shall be issued but on probable cause. The United States Supreme Court has held that courts may not use a different standard other than probable cause for the issuance of such orders. Griffin v. Wisconsin, 483 U.S. 868 (1987). If a court issues a warrant based on an uncorroborated anonymous tip, the warrant will not survive a judicial challenge in the higher courts. Anonymous tips are never probable cause.
Children are not well served if they are subjected to investigations base on false allegations. Little children can be traumatized by investigations in ways that are unintended by the social worker. However, to a small child all they know is that a strange adult is taking off their clothing while their mother is sobbing in the next room in the presence of an armed police officer. This does not seem to a child to be a proper invasion of their person –quite different, for example, from an examination by a doctor when their mother is present and cooperating. The misuse of anonymous tips is well known. Personal vendettas, neighborhood squabbles, disputes on the Little League field, child custody battles, revenge, nosey individuals who are attempting to impose their views on others are turned into maliciously false allegations breathed into a hotline.
“Decency, security and liberty alike demand that government officials shall be subject to the rules of conduct that are commands to the citizen. In a government of laws, existence of government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for the law. It invites every man to become a law unto himself. It invites anarchy. U.S. v. Olmstead, 277 U.S. 438 (1928), Justice Brandeis.
We the people of the United States are ruled by law, not by feelings. If the courts allow states and their agencies to rule by feelings and not law, we become a nation without law that makes decisions based on subjectivity and objectivity. CPS has been allowed to bastardize and emasculate the Constitution and the rights of its citizens to be governed by the rule of men rather then the rule of law. It is very dangerous when governmental officials are allowed to have unfettered access to a citizen’s home. It is also very dangerous to allow CPS to violate the confrontation clause in the 6th Amendment were CPS hides, conceals and covers up the accuser/witness who makes the report. It allows those individuals to have a safe haven to file fraudulent reports and CPS aids and abets in this violation of fundamental rights. All citizens have the right to know their accuser/witness in order to preserve the sanctity of the rule of law and that the Constitution is the supreme law of the land.
IS IT ILLEGAL AND AN UNCONSTITUTIONAL PRACTICE FOR CPS TO REMOVE CHILDREN BECAUSE THEY WITNESS DOMESTIC VIOLENCE?
Yes it is illegal and an unconstitutional practice to remove children which results in punishing the children and the non-offending parent as stated. In a landmark class action suit in the U.S. District Court, Eastern District of New York, U.S. District Judge Jack Weinsein ruled on Nicholson v. Williams, Case No.: 00-cv-2229, the suit challenged the practice of New York’s City’s Administration for Children’s Services of removing the children of battered mothers solely because the children saw their mothers being beaten by husbands or boyfriends. Judge Weistein ruled that the practice is unconstitutional and he ordered it stopped.
ARE PARENTS GUILTY OF MALTREATMENT OR EMOTIONAL NEGLECT
IF THE CHILD WITNESSES DOMESTIC VIOLENCE?
“Not according to Judge Weistein’s ruling and to the leading national experts.”
During the trial, several leading national experts testified on the impact on children of witnessing domestic violence, and the impact on children of being removed from the non-offending parent. Views of Experts on Effects of Domestic Violence on Children, and defining witnessing domestic violence by children as maltreatment or emotional neglect is a mistake. A “great concern [regarding] how increased awareness of children’s exposure [to domestic violence] and associated problems is being used. Concerned about the risk adult domestic violence poses for children, some child protection agencies in the United States appear to be defining exposure to domestic violence as a form of child…Defining witnessing as maltreatment is a mistake. Doing so ignores the fact that large numbers of children in these studies showed no negative development problems and some showed evidence of strong coping abilities. Automatically defining witnessing as maltreatment may also ignore battered mother’s efforts to develop safe environments for their children and themselves.” Ex. 163 at 866.
EFFECTS OF REMOVALS ON CHILDREN AND NON-OFFENDING PARENT.
Dr. Wolf testified that disruptions in the parent-child relationship might provoke fear and anxiety in a child and diminish his or her sense of stability and self. Tr. 565-67. He described the typical response of a child separated from his parent: “When a young child is separated from a parent unwillingly, he or she shows distress … At first, the child is very anxious and protests vigorously and angrily. Then he falls into a sense of despair, though still hyper vigilant, looking, waiting, and hoping for her return …” A child’s sense of time factors into the extent to which a separation impacts his or her emotional well-being. Thus, for younger children whose sense of time is less keenly developed, short periods of parental absence may seem longer than for older children. Tr 565-65. See also Ex. 141b.
For those children who are in homes where there is domestic violence, disruption of that bond can be even more traumatic than situations where this is no domestic violence. Dr. Stark (Yale New Haven Hospital researcher) asserted that if a child is placed in foster care as a result of domestic violence in the home, then he or she may view such removal as “a traumatic act of punishment … and [think] that something that [he] or she has done or failed to do has caused this separation.” Tr. 1562-63. Dr. Pelcovitz stated that “taking a child whose greatest fear is separation from his or her mother and in the name of ‘protecting’ that child [by] forcing on them, what is in effect, their worst nightmare, … is tantamount to pouring salt on an open wound.” Ex. 139 at 5.
Another serious implication of removal is that it introduces children to the foster care system, which can be much more dangerous and debilitating than the home situation. Dr. Stark testified that foster homes are rarely screened for the presence of violence, and that the incidence of abuse and child fatality in foster homes is double that in the general population. Tr 1596; Ex. 122 at 3-4. Children in foster care often fail to receive adequate medical care. Ex. 122 at 6. Foster care placements can disrupt the child’s contact with community, school and siblings. Ex. 122 at 8.
DO CHILDREN HAVE LEGAL STANDING TO SUE CPS FOR THEIR ILLEGAL ABDUCTION FROM THEIR HOME AND VIOLATING THEIR 4TH AND 14TH AMENDMENT RIGHTS?
Yes they do, children have standing to sue for their removal after they reach the age of majority. Parents also have legal standing to sue if CPS violated their 4th and 14th Amendment rights. Children have a Constitutional right to live with their parents without government interference. Brokaw v. Mercer County, 7th Cir. (2000) A child has a constitutionally protected interest in the companionship and society of his or her parents. Ward v. San Jose, 9th Cir. (1992) State employees who withhold a child from her family infringe on the family’s liberty of familial association. K.H. through Murphy v. Morgan, 7th Cir. (1990)
The forced separation of parent from child, even for a short time, represents a serious infringement upon the rights of both. J.B. v. Washington county, 10th Cir. (1997) Parent’s interest is of “the highest order.” And the court recognizes “the vital importance of curbing overzealous suspicion and intervention on the part of health care professionals and government officials.” Thomason v. Scan Volunteer Services, Inc., 8th Cir. (1996)
You must protect you and your child’s rights. CPS has no legal right to enter your home or speak to you and your child when there in no imminent danger present. Know your choices; you can refuse to speak to any government official whether it is the police or CPS as long as there is an open criminal investigation. They will tell you that what they are involved in is a civil matter not a criminal matter. Don’t you believe it. There is nothing civil about allegations of child abuse or neglect. It is a criminal matter disguised as a civil matter. Police do not get involved in civil matters if it truly is one. You will regret letting them in your home and speaking with them like the thousands of other parents who have gone through this. When you ask a friend, family member or someone at work what to do, they will tell you if you agree to services, CPS will leave you alone or you can get your kids back. That is an incorrect assumption.
Refusing them entry is NOT hindering an investigation, it is a Fourth Amendment protection. CPS or the juvenile judge cannot abrogate that right as long as your children are not in imminent danger. Tell them to go packing. DO NOT sign anything, it will come back to be used against you in any possible kangaroo trial. Your children’s records are protected by FERPA and HIPAA regarding your children’s educational and medical records. They need a lawful warrant like the police under the “warrant clause” to seize any records. If your child’s school records contain medical records, then HIPAA also applies. When the school or doctor sends records to CPS or allows them to view them without your permission, both the sender and receiver violated the law. You need to file a HIPAA complaint on the sender and the receiver. (See PDF version http://www.hhs.gov/ocr/howtofileprivacy.pdf and a Microsoft Word version http://www.hhs.gov/ocr/howtofileprivacy.doc.) Remember, you only have 180 days from the time you found out about it. Tell them they need a lawful warrant to make you do anything. CPS has no power; do not agree to a drug screen or a psychological evaluation.
SCHOOLS ARE REQUIRED TO OFFER
SPECIAL EDUCATION SERVICES TO HOMESCHOOLERS
Special Education Services Reinstated for Homeschoolers, March 15, 2006
After a legal letter “tug-of-war,” the Illinois Department of Education has finally relented. Their General Counsel contacted the Home School Legal Defense Association and has apologized for their erroneous memorandum of 2005 that effectively cut off special needs services to homeschoolers throughout the state.
In December of 2005, several Illinois member families contacted HSLDA because their special education services with their local public schools had been suddenly terminated.
One member family, the Blunts, had received a letter from the Director of Special Education of their local school district. The letter stated that according to the federal Individuals with Disabilities Education Act (IDEA) of 2004, the school district was no longer required to offer special education services to any private school that was not state recognized.
After having worked with congressional staff on the Education and Workforce Committee and with the legal counsel of the U.S. Department of Education for the last 10 years on this issue, the HSLDA legal staff knew that the letter the family received contained erroneous information. U.S. Department of Education officials have assured us that in states where homeschools are considered private schools, like Illinois, these private school children taught at home have access to special needs educational support through the public schools.
HSLDA Senior Counsel Chris Klicka drafted a letter on behalf of the Blunts explaining the school district’s error. He informed school officials that special needs services must be restored to the Blunt family’s child.
Shortly after sending the letter, HSLDA received a letter from the school district’s attorney. The letter stated that the 2005 memorandum in question had been drafted by the Illinois State Department of Education’s Assistant Superintendent as “interim guidance” for Illinois public schools. The memorandum defined eligibility based on whether the student was enrolled in a “state recognized private school.”
The memorandum was inaccurate and contradicted federal law.
The issue of whether home-educated students are eligible to receive special education services had already been acknowledged at a federal level. In federal reports regarding issues surrounding those eligible for IDEA, the Federal Director of Special Education in a letter procured by HSLDA stated:
“The determination of whether a home education arrangement constitutes private school placement must be made on the basis of state law. Thus, if home education constitutes enrollment in a private school under state law, then the requirements of Regs. 300.403 and 300.452 apply when deciding whether to provide special education or related services to a child with disabilities who is being educated at home.”
The above report makes it crystal clear that if the state recognizes a home education program as a private school in that state, then those home-educated students are eligible for the services.
HSLDA Attorney Chris Klicka sent a letter to the author of the 2005 memorandum explaining that the highest court in Illinois defines home education programs as private schools, and therefore, in Illinois, home-educated students are eligible for special education services. The Illinois Supreme Court held that no accreditation is necessary. Klicka’s letter also specifically demanded a response within 10 days and that the memorandum be corrected.
Within the requested time, Klicka received a phone call from the General Counsel and a special director Illinois Department of Education. Somewhat apologetic, they admitted their error, assuring him that they will revise their memorandum soon by removing the offensive language requiring a private school to be “state recognized” before its students could be eligible for special education services.
Illinois special education home school students will once again be able to receive needed educational services.
FEDERAL RULING UPHOLDS THAT GOVERNMENT OFFICIALS CAN’T ACT IN THE CHILD BEST INTEREST WHEN IT COMES TO SPECIAL-NEEDS CHILDREN.
Under the Individuals with Disabilities in Education Act (“IDEA”) it DOES NOT compell the state or boards of educations to test every child, it’s just a funding statute. The only thing the state or board of education in this country can do is OFFER the testing and services and make it available to home school students … that’s it. Parents have the absolute choice and legal option to refuse any testing or services that the state has to offer especially if it is funded. Parents can refuse federally funded services and seek out private educators and testing when it comes to the child educational needs..
The boards of educations in the state of Connecticut and the other 49 states have misapplied and abused IDEA and harmed children and families by forcing home school children to be tested when they are not required to do so and acting outside the statute. When parents refused testing because board of educations lack jurisdiction, they would call child protection and file a false report. Follow the money trail, the boards of educations get funding by every label they slap on a child, just like child protection.
In short, when a parent desides to home school or private school their children, the state, DCF and the school system lacks all jurisdition and control of the child because the parent acts in the best interest of the child not the government. The state can’t act in the child’s best interest without the requsite proof of parental unfitness. A child’s educational needs has nothing to do with serious abuse and neglect and the courts and CPS/DCF lack jurisdiction.
This is the big lie that child protection is perpetrating across this country. The services that are all federally funded that CPS/DCF gets paid for are to be offered to parents, not forced down parents throats. Parents ultimately make the decision on what services, if any, parents feel what is in the best interest of the child and the entire family, not child protection and their untrained government workers. CPS/DCF workers think they are doing something great when in reality they are harming the most inocent among us. Only parents know what’s in the best interest of their child, not the court or the state.
The following ruling upholds the parent’s right to reject and refuse services from CPS/DCF, the board of education or any other agency. Thomas M. Dutkiewicz
Eighth Circuit Appeals Court Rules in Favor of Homeschoolers, March 2, 2006
A federal appeals court ruled unanimously in favor of Home School Legal Defense Association (“HSLDA”) members Ron and Joann Fitzgerald on Wednesday and held that school districts may not force homeschooled children to submit to special-needs evaluations against their parents’ wishes.
The United States Court of Appeals for the Eighth Circuit, which includes Missouri where the Fitzgeralds reside, held that the federal Individuals with Disabilities in Education Act (“IDEA”) does not give public schools jurisdiction over homeschooled children who may have special needs. “Where a home-schooled child’s parents refuse consent [for an evaluation], privately educate the child, and expressly waive all benefits under the IDEA, an evaluation would have no purpose. . . . [A] district may not force an evaluation under the circumstances in this case.”
As reported in the January/February 2005 Court Report, HSLDA has been defending the Fitzgerald family’s right to privacy for almost three years. The Fitzgeralds had withdrawn their son, Sean*, from public school after years of disagreement with the school over the provision of special education services. When they started homeschooling Sean, they had his special needs privately evaluated, and they decided to obtain private special education services for him.
The school district, however, demanded that the parents permit a public school evaluation for special needs, even though it admitted that it could not force the family to accept any actual services from the public school. An administrative panel agreed with the school district and ordered the family to submit to the evaluation. HSLDA appealed to the federal district court, which agreed with the school district. The Eighth Circuit reversed these decisions.
“This victory is going to help homeschooling families all over the country,” said HSLDA litigation counsel James R. Mason III, who argued the case in the Eighth Circuit. “The court recognized that homeschooling parents may provide for the special needs of their children without undue interference from meddling school officials.”
HSLDA is representing another member family in New York where a public school district seeks to evaluate their child.
* Name changed to protect family’s privacy.
February 2, 2006
Homeschool Graduates Enlisting in the Military Protected by New Law
There is more good news for homeschool graduates seeking to enlist in the Armed Services.
An amendment to Section 522 of Senate Bill 1042, requires the Secretary of Defense to create a uniform policy for recruiting homeschool graduates for all four branches of the Armed Services. Furthermore, the new law makes it clear homeschoolers do not have to obtain a GED which carries the stigma of being a dropout. The bill was signed into law by President Bush last January.
Although there is no discrimination currently being practiced through any formal policies in the military against homeschool graduates, the new law will virtually eliminate the concern that discrimination could happen in the future. The new law specifies that the uniform policy is for the purposes of recruitment and enlistment of homeschoolers. Therefore, the new policy will not discriminate against homeschoolers because the goal is recruitment and not exclusion.
Homeschool graduates who desire a career with any of the four Armed Services are currently designated as “preferred enlistees.” This means that homeschool graduates who enlist in the military will be treated as if they are Tier I candidates even though their formal status will remain Tier II. Therefore, homeschoolers will receive the same educational benefits, cash bonuses, and available positions in the Armed Services that they would receive if they were Tier I candidates.
HSLDA has been working with the military for several years to remove discriminatory barriers for homeschool graduates. Beginning in 1998, HSLDA secured a pilot project that lasted six years where homeschoolers were experimentally categorized as Tier I candidates, which is the same status as high school graduates from public schools.
Although the program continued until October, 2004, it was not renewed. HSLDA contacted the Administration and explained our situation. A meeting was arranged for us with the Assistant Secretary of Defense and a few other Pentagon officials a month later.
As a result of the meeting in January 2005, the Department of Defense issued a letter stating that homeschoolers were considered “preferred enlistees” and that there were no “practical limits” to the numbers of homeschoolers who could obtain entrance into the Armed Services. At that point, the Department of Defense, at the highest levels, began working with HSLDA to resolve every problem at the local recruitment level with homeschool graduates. Over time, as the new policy is implemented, local recruiters will be able to properly advise homeschoolers.
As a result of the 1998-2004 pilot project, and the January 2005 directive from the Department of Defense, thousands of homeschoolers are serving our country faithfully in the Armed Services.
SURREPTITIOUSLY DRUG TESTING OF PREGNANT WOMEN FOR THE ALLEDGED BENEFIT OF THEIR FETUSES ARE NOT ONLY MISGUIDED
AS A MATTER OF POLICY, THEY ARE UNLAWFUL.
Ferguson v. City of Charleston: Social and Legal Contexts (11/1/2000)
Ferguson v. City of Charleston
On October 4, 2000, the U.S. Supreme Court heard arguments in Ferguson v. City of Charleston, a case considering the constitutionality of a governmental policy of surreptitiously drug testing pregnant women in a South Carolina hospital, which then reported positive cocaine results to law enforcement officers. Though the legal question is narrow — whether the Fourth Amendment permits the state, acting without either a warrant or individualized suspicion, to drug test pregnant women who seek prenatal care in a public hospital — the case points to broader issues concerning the right of pregnant women to be treated as fully autonomous under the Constitution.
In the past several years, the state has increasingly intruded into the lives of pregnant women, policing their conduct in the name of protecting fetuses. Pregnant women have been forced to undergo unwanted cesareans; they’ve been ordered to have their cervixes sewn up to prevent miscarriage; they’ve been incarcerated for consuming alcohol; and they’ve been detained, as in the case of one young woman, simply because she “lack[ed] motivation or [the] ability to seek medical care” (V. Kolder, J. Gallagher, and M. Parsons, “Court-Ordered Obstetrical Interventions,” New England Journal of Medicine (1987) 316, No. 19: 1195).
Fortunately, in many of these cases the invasive state actions have been rescinded by higher officials or rejected by the courts. Unfortunately, many of these decisions came too late to prevent unwarranted suffering and to protect women from being deprived of their rights.
When the Supreme Court rules in Ferguson we are hopeful that it will recognize that the Constitution protects pregnant women on an equal basis with all free adults, making it clear that pregnant women are not wards of the state.
The Facts in Ferguson
In 1989, an interagency group consisting of representatives from the City of Charleston Police Department, the Charleston County Solicitor’s Office (the prosecutor), and the Medical University of South Carolina (MUSC, a public hospital in Charleston) developed and implemented the Interagency Policy on Cocaine Abuse in Pregnancy. Under the policy, MUSC subjected pregnant women to warrantless searches if they met any one of several criteria, including no or minimal prenatal care; unexplained preterm labor; birth defects or poor fetal growth; separation of the placenta from the uterine wall; a history of drug or alcohol abuse; or intrauterine fetal death.
In the early months of the program, women were immediately arrested after they or their newborns tested positive for cocaine. One woman spent the last three weeks of her pregnancy in jail. During this time she received prenatal care in handcuffs and shackles. Authorities arrested another woman soon after she gave birth; still bleeding and dressed in only a hospital gown, she was handcuffed and taken to the city jail (Petitioners’ brief in Ferguson, 6, 7).
In 1990, the prosecutor’s office added an “amnesty” component to the policy: women testing positive for cocaine were given the “option” of drug treatment to avoid arrest. If they failed to follow through on treatment or if they tested positive a second time, however, they were arrested.
In October 1994, after the Civil Rights Division of the U.S. Department of Health and Human Services began investigating whether the hospital in carrying out the policy had violated the civil rights of its African American patients, MUSC dropped its program. In total, 30 women were arrested under the policy; 29 were African American.
Arguments Against Policing Pregnancy
Punishing women who use drugs during pregnancy deters them from seeking critical prenatal care and entering drug treatment programs. If the goal is to protect fetuses and to help women become drug-free mothers, punitive measures have the opposite effect.
Recent studies done in hospitals and health-care centers in San Diego, Chicago, and Detroit, for example, indicate that when pregnant women fear that they will be prosecuted for their drug use, they do not seek prenatal care and will even choose to deliver their babies at home (D. Roberts, Killing the Black Body, NY: Pantheon Books (1997), 192). Indeed, MUSC’s policy appears to have driven drug-using women out of the health-care system in that region, isolating them in their drug use rather than helping them have healthy pregnancies and healthy babies (L.G. Tribble et al., Analysis of a Hospital Maternal Cocaine Testing Policy: In Association with Prenatal Care Utilization Patterns, 1993).
The punitive approach to drug use during pregnancy also stops women from participating in drug-treatment programs. In another high-profile South Carolina case, involving the Easely Baptist Medical Center, a young woman, Cornelia Whitner, was arrested for “endangering the life of her unborn child” and sentenced to eight years in prison after she gave birth to a healthy baby boy whose urine, nonetheless, tested positive for cocaine. Following the publicity surrounding this case, two drug-treatment programs in Columbia, SC, reported a precipitous drop in the number of pregnant women entering their facilities. One clinic found that between 1996 and 1997, it admitted 80 percent fewer pregnant women than it had a year earlier; the other saw 54 percent fewer pregnant women during the same time period (L. Paltrow, “Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, Albany Law Review (1999) 62, No. 999: n.147).
Recognizing that criminalizing maternal drug use is bad medicine and bad public policy, with potentially tragic consequences for pregnant women, their fetuses, and their families, numerous medical and public-health organizations have denounced the practice. These include the American Medical Association, the American Academy of Pediatrics, the Association of Reproductive Health Professionals, the American Medical Women’s Association, the American College of Obstetricians and Gynecologists, the American Public Health Association, the American Nurses Association, the American Society on Addiction Medicine, the National Council on Alcoholism and Drug Dependence, the National Association of Social Workers, and the March of Dimes, among other prominent groups.
Pregnant women enjoy the same constitutional rights as other competent adults.
Pregnant women have as great a right to privacy, bodily integrity, and autonomy as other free adults. This means that the state cannot subject women to warrantless, suspicionless, nonconsensual searches just because they are pregnant. MUSC’s drug testing policy did just that.
Imagine if the tides were turned, and the state began testing men of child-bearing age for illegal drug use because they did not have annual physicals or had a history of substance abuse. Imagine further that officials arrest and take into custody in the name of their unborn children those men with positive toxicology reports. Given that recent studies have linked male drug use to sperm abnormalities that can cause birth defects, this is not such a far-fetched scenario (I. Pollard, “Substance Abuse and Parenthood: Biological Mechanisms-Bioethical Challenges,” Women and Health (2000) 30, No. 3: 1-24). It is doubtful, however, that law enforcement working in tandem with medical providers would consider implementing such a practice. And surely if they did, the courts would rightfully hold such policies unconstitutional. The rules, however, seem to change when it comes to pregnant women, though the Constitution does not.
It is hard to imagine subjecting fathers or soon-to-be fathers to the same level of state interference in their private lives as we do pregnant women. We do not strip fathers of their constitutional rights, even when their behavior may have deleterious effects on their offspring. We do not, for example, arrest fathers and remove them from their families if they smoke two packs of cigarettes a day around their children and their pregnant wives, though there is ample evidence that exposure — even prenatal exposure — to second-hand smoke can have serious long-term health effects.
Pregnant women, on the other hand, have been arrested or threatened with arrest for consuming not just illegal substances, such as cocaine, but legal substances as well. There are at least two recent incidents of state authorities arresting women for consuming alcohol during pregnancy: one in South Carolina, the other in Wyoming (Paltrow, 1042; R. Roth, Making Women Pay: The Hidden Costs of Fetal Rights, Ithaca, NY: Cornell University Press (2000), 150). And in case the message to pregnant women was not clear, officials in the South Carolina Department of Alcohol and Other Drug Abuse Services recently distributed literature advising pregnant women that “it’s . . . a crime in South Carolina” to “smoke, drink . . . or engage in other activities that risk harming” the fetus. Though in May of 2000, the state attorney general hastily recalled the pamphlet and issued a statement that only pregnant women who use illegal drugs would be prosecuted, the official responsible for redrafting the recalled material has indicated that he “has not decided whether to make reference to nicotine or alcohol abuse as potentially criminal” in the rewritten document (American Civil Liberties Union amicus brief in Ferguson, 18).
These and other state policies aimed at policing pregnant women assume that pregnant women are different from other competent adults, that in becoming pregnant, women somehow become wards of the state or forfeit their constitutional rights. The Constitution, however, protects all of us, pregnant women included.
Although drug use crosses all racial and class lines, poor women of color have overwhelmingly been the ones targeted and arrested for using drugs while pregnant.
MUSC’s own records indicate that among its pregnant patients equal percentages of white and African American women consumed illegal drugs (Roberts, 172). However, of the 30 women arrested under the interagency drug-testing policy, 29 were African American (Petitioners’ brief in Ferguson, 13). These numbers are in line with national statistics. In a 1990 study published in the New England Journal of Medicine, for example, researchers found that 15.4 percent of white women and 14.1 percent of African American women used drugs during pregnancy. African American women, however, were 10 times more likely than white women to be reported to authorities (I. Chasnoff, H. Landress, and M. Barrett, “Prevalence of Illicit Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida,” New England Journal of Medicine (1990) 322, No. 17: 1202-6).
There are many factors contributing to these discrepancies, with race and class prejudices playing a major role in all of them. Because poor women of color are far more likely to give birth at public institutions and have more contact with state agencies, their drug use is far more likely than that of middle-class white women to be detected and reported.
In addition, a number of the criteria used to trigger testing under the MUSC policy had little to do with drug use per se and had much more to do with poverty. For example, the hospital tested women who received little or no prenatal care. Yet, with fewer resources and less connection to the medical community than middle-class women, poor women are more likely to delay seeking prenatal care until relatively late in pregnancy or to obtain no prenatal care at all. Inadequate prenatal care can, in turn, result in unexplained preterm labor, birth defects or poor fetal growth, separation of the placenta from the uterine wall, or intrauterine fetal death, all conditions that the MUSC policy also identified as grounds for testing pregnant patients.
Moreover, a drug-testing policy that targets crack cocaine, a drug more prevalent among inner-city communities of color, rather than other substances like methamphetamines, a drug used more often by white rural and suburban women, will unfairly result in the arrests of women of color (Roberts, 177). The singling out of cocaine is not justified on medical grounds. Studies on drug use during pregnancy consistently show that the abuse of other substances, both legal and illegal, can harm fetal development as much as or more than cocaine (American Medical Association amicus brief in Ferguson, 15, 16; Public Health Association et al., amicus brief in Ferguson, 29).
In practice, therefore, MUSC’s policy was a form of racial profiling. By both design and implementation, the policy led inevitably to the identification and punishment of drug use by pregnant, low-income women of color, leaving other pregnant users free of the threat of warrantless, suspicionless, nonconsensual drug testing.
Punishing pregnant women for drug use sets the state on a slippery slope. What’s to stop the state from arresting women for drinking alcohol or smoking cigarettes while pregnant? Where will we draw the line?
In recent years, pregnant women have been forced to undergo an array of medical procedures without their consent and have been imprisoned for alcohol use, unruliness, and mental illness, all in the name of protecting fetal health. Below are a few examples:
• In Massachusetts, a lower court ordered a pregnant woman’s cervix sewn up against her will to prevent a possible miscarriage. The woman was ultimately spared from undergoing the procedure by the Supreme Court of Massachusetts, which vacated the lower court’s order because it had not adequately considered the woman’s constitutional right to privacy (See Taft v. Taft, 446 N.E. 2d 395, 396, 397 (Mass. 1983)).
• In Illinois, a pregnant woman was advised that, because of an insufficient flow of oxygen to the fetus, the fetus could be born dead or severely retarded if she did not immediately undergo a cesarean. When the woman opposed the surgery on religious grounds, the office of the State’s Attorney sought a court order compelling her to submit to the cesarean. Rejecting the state’s argument, the appellate court held that a woman’s “right to refuse invasive medical treatment, derived from her rights to privacy, bodily integrity, and religious liberty, is not diminished during pregnancy.” The woman ultimately gave birth by vaginal delivery to a normal, healthy — though somewhat underweight — baby boy (In re Baby Doe, 632 N.E.2d 332, 329 (Ill. App. Ct. 1994)).
• In Washington, DC, a young pregnant woman, severely ill with cancer, several times mouthed the words “I don’t want it done” when told that a court had ordered her to undergo a cesarean and that she likely would not survive the operation. The cesarean was nonetheless performed; the baby died within a few hours of birth; and the woman died two days later. An appellate court ultimately reversed the order that authorized the involuntary surgery, but not in time to help the woman or her family (In re A.C., 573 A.2d 1235, 1241 (D.C. 1990)).
• In Wyoming, officials arrested a pregnant woman because of alcohol use and charged her with felony child abuse. She spent time in jail before a judge dismissed the charge (Roth, 150).
• In Wisconsin, officials held a pregnant sixteen-year-old in secure detention for the sake of fetal development because the young woman tended “to be on the run” and to “lack motivation or ability to seek medical care” ( Kolder, et al., 1192, 1195).
• In California, a deputy district attorney, concerned about a pregnant woman’s mental state but lacking sufficient evidence to have her committed for psychiatric treatment, instead obtained a juvenile court order declaring her fetus a dependent child of the state and detaining the woman pending birth. An appellate court ultimately held that the district attorney had impermissibly manipulated the juvenile laws to detain the pregnant woman and released her when she was approximately seven months pregnant (In re Steven S., 126 Cal. App. 3d 23, 27, 30-31 (Cal. Ct. App. 1981)).
State actions to police pregnant women for the alleged benefit of their fetuses are not only misguided as a matter of policy, they are unlawful.
In Ferguson, the question is whether the Fourth Amendment of the Constitution permits a public hospital to subject women to drug testing, the results of which are reported to the police, without a warrant, without individualized suspicion, and without the woman’s consent. The answer is no.
The government may dispense with the protections normally demanded under the Fourth Amendment prior to a search — securing a warrant or having an individualized suspicion of criminal conduct — only if the search falls within a “special needs” exception. To satisfy that exception, the governmental policy must be unrelated to law enforcement, and the person being searched must have a diminished expectation of privacy.
In this case, however, law enforcement officials were intimately involved in creating and implementing MUSC’s policy: women who tested positive for cocaine were arrested and prosecuted, or threatened with these consequences, in case after case.
Moreover, the notion that women have a diminished expectation of privacy when they are pregnant is at odds with our strong constitutional tradition of respecting pregnant women’s privacy rights. Nothing in U.S. law permits the state to step in to ensure that women “behave” themselves during pregnancy. The Constitution does not permit such an assault on women’s privacy and equality.
Though the question before the U.S. Supreme Court in Ferguson concerns the Fourth Amendment, the restraints imposed on pregnant women in this and other contexts, all in the purported interest of the fetus, raise additional legal concerns. While both men and women engage in conduct that may be harmful to a fetus, only women — by virtue of their pregnancies — are targeted for punitive measures. By singling out women in this manner, the state discriminates against them, potentially violating both the Equal Protection Clause of the Fourteenth Amendment of the Constitution and various civil rights laws. By the same token, policies, like MUSC’s, that target women of color may violate constitutional and statutory prohibitions against race discrimination. Finally, efforts by the state to protect the fetus by confining women — whether to a hospital or jail — or by compelling medical treatment — whether the woman is strapped to a gurney for a forced cesarean section, tied into stirrups for a pelvic exam, or involuntarily hospitalized during delivery — violate the guarantee of liberty of the Due Process Clause of the Federal Constitution.
CENTRAL REGISTRY RULED UNCONSTITUTIONAL
Thursday, November 3, 2005 • Last updated 6:23 p.m. PT
Court rejects Mo. child abuse registry
By DAVID A. LIEB
ASSOCIATED PRESS WRITER
JEFFERSON CITY, Mo. — A judge declared Missouri’s child abuse registry unconstitutional Thursday, ruling that suspected offenders deserved a court-like hearing before being listed.
The registry is kept secret from the general public, but is used by child care providers and others to screen current and potential employees.
Circuit Judge Richard Callahan concluded that people’s reputations and professional careers were damaged when their names were placed in the child abuse registry before a due-process hearing.
The Department of Social Services said it was likely to appeal the case to the Missouri Supreme Court. Callahan suspended the effect of his judgment pending an appeal.
Callahan’s ruling stemmed from a 2002 instance of alleged sexual abuse at the Faith House child care facility in St. Louis. Although they were not accused of abuse themselves, founder Mildred Jamison and nurse Betty Dotson were listed on the child abuse registry based on probable cause of neglect.
The decision was upheld by the Department of Social Services’ Child Abuse and Neglect Review Board, which holds only informal hearings, not ones following judicial procedures. Decisions by the review panel can be appealed to a judge, but the listing occurred before that happened.
Callahan said it violated constitutional due-process rights to list people on the registry prior to holding a hearing before a neutral decision-maker in which witnesses are under oath, can be cross-examined and can be compelled to testify.
He also said the hearings must use a tougher-to-prove criterion of “preponderance of the evidence” instead of “probable cause” – a change already made by a 2004 law.
Jamison said Callahan’s ruling was “wonderful, because many people don’t know what the due process is. Their names go on, and they don’t know about the appeals process or any of that.”
Dotson could not be reached for comment.
SUPREME COURT RULED THAT GOVERNMENT OFFICIALS
MUST HAVE CONSENT OF BOTH PARENTS TO ENTER HOME
Police and DCF must have the consent of both parents or parties to enter a home. If one parent or party present denies entry, the police and DCF can’t enter based on one consenting party but must yield to the non-consenting party. All occupants must give consent.
Thomas Dutkiewicz, President, Connecticut DCF Watch
High Court Trims Police Power to Search Homes
By Charles Lane
Washington Post Staff Writer
Thursday, March 23, 2006; A01
The Supreme Court narrowed police search powers yesterday, ruling that officers must have a warrant to look for evidence in a couple’s home unless both partners present agree to let them in.
The 5 to 3 decision sparked a sharp exchange among the justices. The majority portrayed the decision as striking a blow for privacy rights and gender equality; dissenters said it could undermine police efforts against domestic violence, the victims of which are often women.
The ruling upholds a 2004 decision of the Georgia Supreme Court but still makes a significant change in the law nationwide, because most other lower federal and state courts had previously said that police could search with the consent of one of two adults living together.
Now, officers must first ask a judicial officer for a warrant in such cases. Quarrels between husbands and wives, or boyfriends and girlfriends, keep police busy around the country; in the District, almost half of the 39,000 violent crime calls officers answered in 2000 involved alleged domestic violence.
Justice David H. Souter’s majority opinion said that the consent of one partner is not enough, because of “widely shared social expectations” that adults living together each have veto power over who can come into their shared living space. That makes a warrantless search based on only one partner’s consent “unreasonable” and, therefore, unconstitutional.
“[T]here is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders,” Souter wrote.
Chief Justice John G. Roberts Jr., writing his first dissent since joining the court in October, said the ruling’s “cost” would be “great,” especially in domestic dispute situations.
Roberts wrote that the ruling made no sense, given that the court had previously said it is constitutional for police to enter a house with the permission of one partner when the other is asleep or absent. Those rulings were unchanged by yesterday’s decision.
Just by agreeing to live with someone else, a co-tenant has surrendered a good deal of the privacy that the Constitution’s Fourth Amendment was designed to protect, Roberts noted.
“The majority’s rule apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects,” he wrote.
But Souter called that argument a “red herring,” saying that the police would still have legal authority to enter homes where one partner was truly in danger.
“[T]his case has no bearing on the capacity of the police to protect domestic victims,” Souter wrote. “No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists.”
Souter said Roberts was guilty of declaring that “the centuries of special protection for the privacy of the home are over.”
Souter’s opinion was joined by Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen G. Breyer.
Breyer backed Souter with a separate opinion noting that his decisive fifth vote was cast on the understanding that Souter’s analysis applies to cases such as this one, Georgia v. Randolph , No. 04-1607, in which the police were searching for evidence of a crime, rather than intervening in a violent dispute.
“[T]oday’s decision will not adversely affect ordinary law enforcement practices,” Breyer wrote.
The case arose out of a 2001 quarrel over child custody at the home of Janet and Scott Randolph in Americus, Ga. When officers arrived, she told them where they could find his cocaine. An officer asked Scott Randolph for permission to search the house. He refused, but Janet Randolph said yes — and led them to a straw covered in cocaine crystals. Scott Randolph was arrested and indicted on charges of cocaine possession.
Georgia’s Supreme Court ultimately ruled that the evidence should be suppressed because it was gathered without a warrant.
Justices Antonin Scalia and Clarence Thomas also dissented. Justice Samuel A. Alito Jr. did not vote because he was not yet on the court in November, when the case was argued.
The main battle between Souter and Roberts was accompanied by a skirmish between Stevens and Scalia, who used the case as an opportunity to make points in the court’s long-running dispute over Scalia’s view that the Constitution should be interpreted in light of the Framers’ original intent.
In a brief concurring opinion, Stevens noted that the court’s ruling was based on the concept that neither a husband nor a wife is “master” of the house in the eyes of the law. But at the time the Bill of Rights was drafted, he wrote, only a husband’s consent or objection would have been taken into account.
Thus, he wrote, “this case illustrates why even the most dedicated adherent to an approach . . . that places primary reliance on a search for original understanding would recognize the relevance of changes in our society.”
Scalia fired back at “Justice Stevens’ ‘attempted critique’ of originalism,’ ” arguing that the court’s ruling would probably not benefit women.
“Given the usual patterns of domestic violence,” he noted, “how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands they stay out?”
© 2006 The Washington Post Company
HAIR FOLLICLE DRUG TESTING RULED UNCONSTITUTIONAL
DEBORAH M., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DARYL W., Real Party in Interest.
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
128 Cal. App. 4th 1181; 27 Cal. Rptr. 3d 757; 2005 Cal. App. LEXIS 681; 2005 Cal. Daily Op. Service 3617; 2005 Daily Journal DAR 4927
April 29, 2005, Filed
PRIOR HISTORY: [***1] Proceedings in prohibition after superior court order compelling hair follicle drug test. Superior Court of San Diego County, No. ED24070, Alan Clements, Judge.
PROCEDURAL POSTURE: Petitioner mother sought a writ of prohibition, challenging an order of respondent, the Superior Court of San Diego County (California), that compelled her to submit to a hair follicle drug test. The mother had sought to have her child support amended. In response, real party in interest father had filed an order to show cause seeking a change in custody and visitation, as well as an order for drug testing.
OVERVIEW: At issue was whether Cal. Fam. Code § 3041.5(a) permitted courts in custody and visitation proceedings to order drug testing by means of a hair follicle test of a parent whom the trial court had determined engaged in habitual, frequent, or continual illegal use of controlled substances. In granting a writ of prohibition, the court held that § 3041.5(a) required any court-ordered drug testing to conform to federal drug testing procedures and standards, and at present those federal standards only allowed for urine tests. The language of § 3041.5(a) and its statutory history demonstrated that only urine tests were allowed because the language “least intrusive method of testing” in § 3041.5(a) did not show an intent by the legislature to allow any type of available testing. To pass constitutional muster, the intrusiveness of the testing had to be weighed, along with an individual’s legitimate expectation of privacy, the nature and immediacy of the government concern at issue, and the efficacy of drug testing in meeting that concern. Thus, the only reasonable interpretation of the clause was that if and when additional tests were permitted, the least intrusive method had to be used.
OUTCOME: The court issued a writ of prohibition, directing the trial court to vacate its order compelling a hair follicle drug test.
SUMMARY OF FAMILY RIGHTS (FAMILY ASSOCIATION)
The state may not interfere in child rearing decisions when a fit parent is available. Troxel v. Granville, 530 U.S. 57 (2000).
A child has a constitutionally protected interest in the companionship and society of his or her parent. Ward v. San Jose (9th Cir. 1992)
Children have standing to sue for their removal after they reach the age of majority. Children have a constitutional right to live with their parents without government interference. Brokaw v. Mercer County (7th Cir. 2000)
The private, fundamental liberty interest involved in retaining custody of one’s child and the integrity of one’s family is of the greatest importance. Weller v. Dept. of Social Services for Baltimore (4th Cir. 1990)
A state employee who withholds a child from her family may infringe on the family’s liberty of familial association. Social workers can not deliberately remove children from their parents and place them with foster caregivers when the officials reasonably should have known such an action would cause harm to the child’s mental or physical health. K.H. through Murphy v. Morgan (7th Cir. 1990)
The forced separation of parent from child, even for a short time (in this case 18 hours); represent a serious infringement upon the rights of both. J.B. v. Washington County (10th Cir. 1997)
Absent extraordinary circumstances, a parent has a liberty interest in familial association and privacy that cannot be violated without adequate pre-deprivation procedures. Malik v. Arapahoe Cty. Dept. of Social Services (10 Cir. 1999)
Parent interest is of “the highest order,” and the court recognizes “the vital importance of curbing overzealous suspicion and intervention on the part of health care professionals and government officials.” Thomason v. Scan Volunteer Services, Inc. (8th Cir. 1996)
Police officers and social workers are not immune from coercing or forcing entry into a person’s home without a search warrant. Calabretta v. Floyd (9th Cir. 1999)
The mere possibility of danger does not constitute an emergency or exigent circumstance that would justify a forced warrantless entry and a warrantless seizure of a child. Hurlman v. Rice (2nd Cir. 1991)
A police officer and a social worker may not conduct a warrantless search or seizure in a suspected child abuse case absent exigent circumstances. Defendants must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonable necessary to alleviate the threat. Searches and seizures in investigation of a child neglect or child abuse case at a home are governed by the same principles as other searches and seizures at a home. Good v. Dauphin County Social Services (3rd Cir. 1989)
The Fourth Amendment protection against unreasonable searches and seizures extends beyond criminal investigations and includes conduct by social workers in the context of a child neglect/abuse investigation. Lenz v. Winburn (11th Cir. 1995)
The protection offered by the Fourth Amendment and by our laws does not exhaust itself once a warrant is obtained. The concern for the privacy, the safety, and the property of our citizens continues and is reflected in knock and announce requirements. United States v. Becker, 929 F.2d 9th Cir.1991)
Making false statements to obtain a warrant, when the false statements were necessary to the finding of probable cause on which the warrant was based, violates the Fourth Amendment’s warrant requirement. The Warrant Clause contemplates that the warrant applicant be truthful: “no warrant shall issue, but on probable cause, supported by oath or affirmation.” Deliberate falsehood or reckless disregard for the truth violates the Warrant Clause. An officer who obtains a warrant through material false statements which result in an unconstitutional seizure may be held liable personally for his actions under § 1983. This warrant application is materially false or made in reckless disregard for the Fourth Amendment’s Warrant Clause. A search must not exceed the scope of the search authorized in a warrant. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the Fourth Amendment’s requirement ensures that the search will be carefully tailored to its justifications. Consequently, it will not take on the character of the wide-ranging exploratory searches the Framers of the Constitution intended to prohibit. There is a requirement that the police identify themselves to the subject of a search, absent exigent circumstances. Aponte Matos v. Toledo Davilla (1st Cir. 1998)
Child’s four-month separation from his parents could be challenged under substantive due process. Sham procedures don’t constitute true procedural due process. Brokaw v. Mercer County (7th Cir 2000)
Post-deprivation remedies do not provide due process if pre-deprivation remedies are practicable. Bendiburg v. Dempsey (11th Cir. 1990)
Children placed in a private foster home have substantive due process rights to personal security and bodily integrity. Yvonne L. v. New Mexico Dept. of Human Services (10th Cir. 1992)
When the state places a child into state-regulated foster care, the state has duties and the failure to perform such duties may create liability under § 1983. Liability may attach when the state has taken custody of a child, regardless of whether the child came to stay with a family on his own which was not an officially approved foster family. Nicini v. Morra (3rd Cir. 2000)
A social worker who received a telephone accusation of abuse and threatened to remove a child from the home unless the father himself left and who did not have grounds to believe the child was in imminent danger of being abused engaged in an arbitrary abuse of governmental power in ordering the father to leave. Croft v. Westmoreland Cty. Children and Youth Services (3rd Cir. 1997)
Plaintiff’s were arguable deprived of their right to procedural due process because the intentional use of fraudulent evidence into the procedures used by the state denied them the fight to fundamentally fair procedures before having their child removed, a right included in Procedural Due Process. Morris v. Dearborne (5th Cir. 1999)
When the state deprives parents and children of their right to familial integrity, even in an emergency situation, the burden is on the state to initiate prompt judicial proceedings for a post-deprivation hearing, and it is irrelevant that a parent could have hired counsel to force a hearing. K.H. through Murphy v. Morgan, (7th Cir. 1990)
When the state places a child in a foster home it has an obligation to provide adequate medical care, protection, and supervision. Norfleet v. Arkansas Dept. of Human Services, (8th Cir. 1993)
Children may not be removed from their home by police officers or social workers without notice and a hearing unless the officials have a reasonable belief that the children were in imminent danger. Ram v. Rubin, (9th Cir. 1997)
Absent extraordinary circumstances, a parent has a liberty interest in familial association and privacy that cannot be violated without adequate pre-deprivation procedures. An ex parte hearing based on misrepresentation and omission does not constitute notice and an opportunity to be heard. Procurement of an order to seize a child through distortion, misrepresentation and/or omission is a violation of the Forth Amendment. Parents may assert their children’s Fourth Amendment claim on behalf of their children as well as asserting their own Fourteenth Amendment claim. Malik v.Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)
Plaintiff’s clearly established right to meaningful access to the courts would be violated by suppression of evidence and failure to report evidence. Chrissy v. Mississippi Dept. of Public Welfare, (5th Cir. 1991)
Mother had a clearly established right to an adequate, prompt post-deprivation hearing. A 17-day period prior to the hearing was not prompt hearing. Whisman V. Rinehart, (8th Cir. 1997)
SEIZURES (CHILD REMOVALS)
Police officers or social workers may not “pick up” a child without an investigation or court order, absent an emergency. Parental consent is required to take children for medical exams, or an overriding order from the court after parents have been heard. Wallis v. Spencer, (9th Cir 1999)
Child removals are “seizures” under the Fourth Amendment. Seizure is unconstitutional without court order or exigent circumstances. Court order obtained based on knowingly false information violates Fourth Amendment. Brokaw v. Mercer County, (7th Cir. 2000)
Defendant should’ve investigated further prior to ordering seizure of children based on information he had overheard. Hurlman v. Rice, (2nd Cir. 1991)
Police officer and social worker may not conduct a warrantless search or seizure in a suspected abuse case absent exigent circumstances. Defendants must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat. Searches and seizures in investigation of a child neglect or child abuse case at a home are governed by the same principles as other searches and seizures at a home. Good v. Dauphin County Social Services, (3rd Cir. 1989)
Defendants could not lawfully seize a child without a warrant or the existence of probable cause to believe the child was in imminent danger of harm. Where police were not informed of any abuse of the child prior to arriving at caretaker’s home and found no evidence of abuse while there, seizure of the child was not objectively reasonable and violated the clearly established Fourth Amendment rights of the child. Wooley v. City of Baton Rouge, (5th Cir. 2000)
For purposes of the Fourth Amendment, a “seizure” of a person is a situation in which a reasonable person would feel that he is not free to leave, and also either actually yields to a show of authority from police or social workers or is physically touched by police. Persons may not be “seized” without a court order or being placed under arrest. California v. Hodari, 499 U.S. 621 (1991)
Where the standard for a seizure or search is probable cause, then there must be particularized information with respect to a specific person. This requirement cannot be undercut or avoided simply by pointing to the fact that coincidentally there exists probable cause to arrest or to search or to seize another person or to search a place where the person may happen to be. Yabarra v. Illinois, 44 U.S. 85 (1979)
An officer who obtains a warrant through material false statements which result in an unconstitutional seizure may be held liable personally for his actions under § 1983. Aponte Matos v. Toledo Davilla, 1st Cir. 1998)
Social workers (and other government employees) may be sued for deprivation of civil rights under 42 U.S.C. § 1983 if they are named in their ‘official and individual capacity’. Hafer v. Melo, (S.Ct. 1991)
State law cannot provide immunity from suit for Federal civil rights violations. State law providing immunity from suit for child abuse investigators has no application to suits under § 1983. Wallis v. Spencer, (9th Cir. 1999)
If the law was clearly established at the time the action occurred, a police officer is not entitled to assert the defense of qualified immunity based on good faith since a reasonably competent public official should know the law governing his or her conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
Immunity is defeated if the official took the complained of action with malicious intention to cause a deprivation of rights, or the official violated clearly established statutory or constitutional rights of which a reasonable person would have known. McCord v. Maggio, (5th Cir. 1991)
A defendant in a civil rights case is not entitled to any immunity if he or she gave false information either in support of an application for a search warrant or in presenting evidence to a prosecutor on which the prosecutor based his or her charge against the plaintiff. Young v. Biggers, (5th Cir. 1991)
Police officer was not entitled to absolute immunity for her role in procurement of a court order placing a child in state custody where there was evidence officer spoke with the social worker prior to social worker’s conversation with the magistrate and there was evidence that described the collaborative worker of the two defendants in creating a “plan of action” to deal with the situation. Officer’s acts were investigative and involved more that merely carrying out a judicial order. Malik v. Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)
Individuals aren’t immune for the results of their official conduct simply because they were enforcing policies or orders. Where a statute authorizes official conduct which is patently violation of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity. Grossman v. City of Portland, (9th Cir. (1994)
Social workers were not entitled to absolute immunity for pleadings filed to obtain a pick-up order for temporary custody prior to formal petition being filed. Social workers were not entitled to absolute immunity where department policy was for social workers to report findings of neglect or abuse to other authorities for further investigation or initiation of court proceedings. Social workers investigating claims of child abuse are entitled only to qualified immunity. Assisting in the use of information known to be false to further an investigation is not subject to absolute immunity. Social workers are not entitled to qualified immunity on claims they deceived judicial officers in obtaining a custody order or deliberately or recklessly incorporated known falsehoods into their reports, criminal complaints and applications. Use of information known to be false is not reasonable, and acts of deliberate falsity or reckless disregard of the truth are not entitled to qualified immunity. No qualified immunity is available for incorporating allegations into the report or application where official had no reasonable basis to assume the allegations were true at the time the document was prepared. Snell v. Tunnel, (10 Cir. 1990)
Police officer is not entitled to absolute immunity, only qualified immunity, to claim that he caused plaintiff to be unlawfully arrested by presenting judge with an affidavit that failed to establish probable cause. Malley v. Briggs, S.Ct. 1986)
Defendants were not entitled to prosecutorial immunity where complaint was based on failure to investigate, detaining minor child, and an inordinate delay in filing court proceedings, because such actions did not aid in the presentation of a case to the juvenile court. Whisman v. Rinehart, (8th Cir. 1997)
Case worker who intentionally or recklessly withheld potentially exculpatory information from an adjudicated delinquent or from the court itself was not entitled to qualified immunity. Germany v. Vance, (1st Cir. 1989)
Defendant was not entitled to qualified immunity or summary judgment because he should’ve investigated further prior to ordering seizure of children based on information he had overheard. Hurlman v. Rice, (2nd Cir. 1991)
Defendants were not entitled to qualified immunity for conducting warrantless search of home during a child abuse investigation where exigent circumstances were not present. Good v. Dauphin County Social Services, (3rd Cir 1989)
Social workers were not entitled to absolute immunity where no court order commanded them to place plaintiff with particular foster caregivers. K.H through Murphy v. Morgan, (7th Cir. 1991)
DECISIONS OF THE UNITED STATES SUPREME COURT UPHOLDING
PARENTAL RIGHTS AS “FUNDAMENTAL”
Paris Adult Theater v. Slaton, 413 US 49, 65 (1973)
In this case, the Court includes the right of parents to rear children among rights “deemed fundamental.” Our prior decisions recognizing a right to privacy guaranteed by the 14th Amendment included only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty . . . This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing . . . cf . . . Pierce v. Society of Sisters; Meyer v. Nebraska . . . nothing, however, in this Court’s decisions intimates that there is any fundamental privacy right implicit in the concept of ordered liberty to watch obscene movies and places of public accommodation. [emphasis supplied]
Carey v. Population Services International, 431 US 678, 684-686 (1977)
Once again, the Court includes the right of parents in the area of “child rearing and education” to be a liberty interest protected by the Fourteenth Amendment, requiring an application of the “compelling interest test.” Although the Constitution does not explicitly mention any right of privacy, the Court has recognized that one aspect of the liberty protected by the Due Process Clause of the 14th Amendment is a “right of personal privacy or a guarantee of certain areas or zones of privacy . . . This right of personal privacy includes the interest and independence in making certain kinds of important decisions . . . While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage . . . family relationships, Prince v. Massachusetts, 321 US 158 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 US 510 (1925); Meyer v. Nebraska, 262 US 390 (1923).’ [emphasis supplied]
The Court continued by explaining that these rights are not absolute and, certain state interests . . . may at some point become sufficiently compelling to sustain regulation of the factors that govern the abortion decision . . . Compelling is, of course, the key word; where decisions as fundamental as whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by a compelling state interest, and must be narrowly drawn to express only those interests. [emphasis supplied]
Maher v. Roe, 432 US 464, 476-479 (1977)
We conclude that the Connecticut regulation does not impinge on the fundamental right recognized in Roe … There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy … This distinction is implicit in two cases cited in Roe in support of the pregnant woman’s right under the 14th Amendment. In Meyer v. Nebraska. . . the Court held that the teacher’s right thus to teach and the right of parents to engage in so to instruct their children were within the liberty of the 14th Amendment . . . In Pierce v. Society of Sisters . . . the Court relied on Meyer . . . reasoning that the 14th Amendment’s concept of liberty excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The Court held that the law unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of the children under their control …
Both cases invalidated substantial restrictions of constitutionally protected liberty interests: in Meyer, the parent’s right to have his child taught a particular foreign language; in Pierce, the parent’s right to choose private rather than public school education. But neither case denied to a state the policy choice of encouraging the preferred course of action … Pierce casts no shadow over a state’s power to favor public education by funding it — a policy choice pursued in some States for more than a century … Indeed in Norwood v. Harrison, 413 US 455, 462, (1973), we explicitly rejected the argument that Pierce established a “right of private or parochial schools to share with the public schools in state largesse,” noting that “It is one thing to say that a state may not prohibit the maintenance of private schools and quite another to say that such schools must as a matter of equal protection receive state aid” … We think it abundantly clear that a state is not required to show a compelling interest for its policy choice to favor a normal childbirth anymore than a state must so justify its election to fund public, but not private education. [emphasis supplied]
Although the Maher decision unquestionably recognizes parents’ rights as fundamental rights, the Court has clearly indicated that private schools do not have a fundamental right to state aid, nor must a state satisfy the compelling interest test if it chooses not to give private schools state aid. The Parental Rights and Responsibilities Act simply reaffirms the right of parents to choose private education as fundamental, but it does not make the right to receive public funds a fundamental right. The PRRA, therefore, does not in any way promote or strengthen the concept of educational vouchers.
Parham v. J.R., 442 US 584, 602-606 (1979).
This case involves parent’s rights to make medical decisions regarding their children’s mental health. The lower Court had ruled that Georgia’s statutory scheme of allowing children to be subject to treatment in the state’s mental health facilities violated the Constitution because it did not adequately protect children’s due process rights. The Supreme Court reversed this decision upholding the legal presumption that parents act in their children’s best interest. The Court ruled:
Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is “the mere creature of the State” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.” Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) … [other citations omitted] . . . The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has been recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries 447; 2 J. Kent, Commentaries on American Law 190. As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents “may at times be acting against the interests of their children” … creates a basis for caution, but it is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child’s best interest … The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition. [emphasis supplied]
Parental rights are clearly upheld in this decision recognizing the rights of parents to make health decisions for their children. The Court continues by explaining the balancing that must take place:
Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized (See Wisconsin v. Yoder; Prince v. Massachusetts). Moreover, the Court recently declared unconstitutional a state statute that granted parents an absolute veto over a minor child’s decisions to have an abortion, Planned Parenthood of Central Missouri v. Danforth, 428 US 52 (1976), Appellees urged that these precedents limiting the traditional rights of parents, if viewed in the context of a liberty interest of the child and the likelihood of parental abuse, require us to hold that parent’s decision to have a child admitted to a mental hospital must be subjected to an exacting constitutional scrutiny, including a formal, adversary, pre-admission hearing.
Appellees’ argument, however, sweeps too broadly. Simply because the decision of a parent is not agreeable to a child, or because it involves risks does not automatically transfer power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments … we cannot assume that the result in Meyer v. Nebraska, supra, and Pierce v. Society of Sisters, supra, would have been different if the children there had announced or preference to go to a public, rather that a church school. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parent’s authority to decide what is best for the child (See generally Goldstein, Medical Case for the Child at Risk: on State Supervention of Parental Autonomy, 86 Yale LJ 645, 664-668 (1977); Bennett, Allocation of Child Medical Care Decision — Making Authority: A Suggested Interest Analyses, 62 Va LR ev 285, 308 (1976). Neither state officials nor federal Courts are equipped to review such parental decisions. [emphasis supplied]
Therefore, it is clear that the Court is recognizing parents as having the right to make judgments concerning their children who are not able to make sound decisions, including their need for medical care. A parent’s authority to decide what is best for the child in the areas of medical treatment cannot be diminished simply because a child disagrees. A parent’s right must be protected and not simply transferred to some state agency.
City of Akron v. Akron Center for Reproductive Health Inc., 462 US 416, 461 (1983)
This case includes, in a long list of protected liberties and fundamental rights, the parental rights guaranteed under Pierce and Meyer. The Court indicated a compelling interest test must be applied. Central among these protected liberties is an individual’s freedom of personal choice in matters of marriage and family life … Roe … Griswold … Pierce v. Society of Sisters … Meyer v. Nebraska … But restrictive state regulation of the right to choose abortion as with other fundamental rights subject to searching judicial examination, must be supported by a compelling state interest. [emphasis supplied]
Santosky v. Kramer, 455 US 745, 753 (1982)
This case involved the Appellate Division of the New York Supreme Court affirming the application of the preponderance of the evidence standard as proper and constitutional in ruling that the parent’s rights are permanently terminated. The U.S. Supreme Court, however, vacated the lower Court decision, holding that due process as required under the 14th Amendment in this case required proof by clear and convincing evidence rather than merely a preponderance of the evidence.
The Court, in reaching their decision, made it clear that parents’ rights as outlined in Pierce and Meyer are fundamental and specially protected under the Fourteenth Amendment. The Court began by quoting another Supreme Court case:
In Lassiter [Lassiter v. Department of Social Services, 452 US 18, 37 (1981)], it was “not disputed that state intervention to terminate the relationship between a parent and a child must be accomplished by procedures meeting the requisites of the Due Process Clause”. . . The absence of dispute reflected this Court’s historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the 14th Amendment … Pierce v. Society of Sisters … Meyer v. Nebraska.
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state … When the state moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. [emphasis supplied]
Lehr v. Robertson, 463 US 248, 257-258 (1983)
In this case, the U.S. Supreme Court upheld a decision against a natural father’s rights under the Due Process and Equal Protection Clauses since he did not have any significant custodial, personal, or financial relationship with the child. The natural father was challenging an adoption. The Supreme Court stated: In some cases, however, this Court has held that the federal constitution supersedes state law and provides even greater protection for certain formal family relationships. In those cases … the Court has emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed. Thus, the liberty of parents to control the education of their children that was vindicated in Meyer v. Nebraska … and Pierce v. Society of Sisters … was described as a “right coupled with the high duty to recognize and prepare the child for additional obligations” … The linkage between parental duty and parental right was stressed again in Prince v. Massachusetts … The Court declared it a cardinal principle “that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” In these cases, the Court has found that the relationship of love and duty in a recognized family unit is an interest in liberty entitled to Constitutional protection … “State intervention to terminate such a relationship … must be accomplished by procedures meeting the requisites of the Due Process Clause” Santosky v. Kramer … [emphasis supplied]
It is clear by the above case that parental rights are to be treated as fundamental and cannot be taken away without meeting the constitutional requirement of due process.
Board of Directors of Rotary International v. Rotary Club of Duarte, 481 US 537 (1987)
In this case, a Californian civil rights statute was held not to violate the First Amendment by requiring an all male non-profit club to admit women to membership. The Court concluded that parents’ rights in child rearing and education are included as fundamental elements of liberty protected by the Bill of Rights.
The Court has recognized that the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights … the intimate relationships to which we have accorded Constitutional protection include marriage … the begetting and bearing of children, child rearing and education. Pierce v. Society of Sisters … [emphasis supplied]
Michael H. v. Gerald, 491 U.S. 110 (1989)
In a paternity suit, the U.S. Supreme Court ruled: It is an established part of our constitution jurisprudence that the term liberty in the Due Process Clause extends beyond freedom from physical restraint. See, e.g. Pierce v. Society of Sisters … Meyer v. Nebraska … In an attempt to limit and guide interpretation of the Clause, we have insisted not merely that the interest denominated as a “liberty” be “fundamental” (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society. As we have put it, the Due Process Clause affords only those protections “so rooted in the traditions and conscience of our people as to be ranked as fundamental” Snyder v. Massachusetts, 291 US 97, 105 (1934). [emphasis supplied] The Court explicitly included the parental rights under Pierce and Meyer as “fundamental” and interests “traditionally protected by our society.”
Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)
One of the more recent decisions which upholds the right of parents is Employment Division of Oregon v. Smith, which involved two Indians who were fired from a private drug rehabilitation organization because they ingested “peyote,” a hallucinogenic drug as part of their religious beliefs. When they sought unemployment compensation, they were denied because they were discharged for “misconduct.”
The Indians appealed to the Oregon Court of Appeals who reversed on the grounds that they had the right to freely exercise their religious beliefs by taking drugs. Of course, as expected, the U.S. Supreme Court reversed the case and found that the First Amendment did not protect drug use. So what does the case have to do with parental rights?
After the Court ruled against the Indians, it then analyzed the application of the Free Exercise Clause generally. The Court wrongly decided to throw out the Free Exercise Clause as a defense to any “neutral” law that might violate an individual’s religious convictions. In the process of destroying religious freedom, the Court went out of its way to say that the parents’ rights to control the education of their children is still a fundamental right. The Court declared that the “compelling interest test” is still applicable, not to the Free Exercise Clause alone:
[B]ut the Free Exercise Clause in conjunction with other constitutional protections such as … the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U.S.205 (1972) invalidating compulsory-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school.19 [emphasis supplied]
In other words, under this precedent, parents’ rights to control the education of their children is considered a “constitutionally protected right” which requires the application of the compelling interest test. The Court in Smith quoted its previous case of Wisconsin v. Yoder:
Yoder said that “The Court’s holding in Pierce stands as a charter for the rights of parents to direct the religious upbringing of their children. And when the interests of parenthood are combined with a free exercise claim … more than merely a reasonable relationship to some purpose within the competency of the State is required to sustain the validity of the State’s requirement under the First Amendment.” 406 U.S., at 233.20 [emphasis supplied]
Instead of merely showing that a regulation conflicting with parents’ rights is reasonable, the state must, therefore, reach the higher standard of the “compelling interest test,” which requires the state to prove its regulation to be the least restrictive means.
Hodgson v. Minnesota, 497 U.S. 417 (1990)
In Hodgson the Court found that parental rights not only are protected under the First and Fourteenth Amendments as fundamental and more important than property rights, but that they are “deemed essential.”
The family has a privacy interest in the upbringing and education of children and the intimacies of the marital relationship which is protected by the Constitution against undue state interference. See Wisconsin v Yoder, 7 406 US 205 … The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” In other words, under this precedent, parents’ rights to control the education of their children is considered a “constitutionally protected right” which requires the application of the compelling interest test. The Court in Smith quoted its previous case of Wisconsin v. Yoder:
Yoder said that “The Court’s holding in Pierce stands as a charter for the rights of parents to direct the religious upbringing of their children. And when the interests of parenthood are combined with a free exercise claim … more than merely a reasonable relationship to some purpose within the competency of the State is required to sustain the validity of the State’s requirement under the First Amendment.” 406 U.S., at 233.20 [emphasis supplied]
Instead of merely showing that a regulation conflicting with parents’ rights is reasonable, the state must, therefore, reach the higher standard of the “compelling interest test,” which requires the state to prove its regulation to be the least restrictive means.
Parham, 442 US, at 603, [other citations omitted]. We have long held that there exists a “private realm of family life which the state cannot enter.” Prince v Massachusetts …
A natural parent who has demonstrated sufficient commitment to his or her children is thereafter entitled to raise the children free from undue state interference. As Justice White explained in his opinion of the Court in Stanley v Illinois, 405 US 645 (1972) [other cites omitted]:
“The court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v Nebraska, … ‘basic civil rights of man,’ Skinner v Oklahoma, 316 US 535, 541 (1942), and ‘[r]ights far more precious … than property rights,’ May v Anderson, 345 US 528, 533 (1953) … The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v Nebraska, supra.” [emphasis supplied]
The Court leaves no room for doubt as to the importance and protection of the rights of parents.
H.L. v. Matheson, 450 US 398, 410 (1991)
In this case, the Supreme Court recognized the parents’ right to know about their child seeking an abortion. The Court stated: In addition, constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.
Ginsberg v. New York, 390 US 629 (1968) … We have recognized on numerous occasions that the relationship between the parent and the child is Constitutionally protected (Wisconsin v. Yoder, Stanley v. Illinois, Meyer v. Nebraska) … “It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom includes preparation for obligations the state can neither supply, nor hinder.” [Quoting Prince v. Massachusetts, 321 US 158, 166, (1944)]. See also Parham v. J.R.; Pierce v. Society of Sisters … We have recognized that parents have an important “guiding role” to play in the upbringing of their children, Bellotti II, 443 US 633-639 … which presumptively includes counseling them on important decisions.
This Court clearly upholds the parent’s right to know in the area of minor children making medical decisions.
Vernonia School District 47J v. Acton, 132 L.Ed.2d 564, 115 S.Ct. 2386 (1995)
In Vernonia the Court strengthened parental rights by approaching the issue from a different point of view. They reasoned that children do not have many of the rights accorded citizens, and in lack thereof, parents and guardians possess and exercise those rights and authorities in the child’s best interest:
Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination—including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. See Am Jur 2d, Parent and Child § 10 (1987).
Troxel v. Granville, 530 U.S. 57 (2000)
In this case, the United States Supreme Court issued a landmark opinion on parental liberty. The case involved a Washington State statute which provided that a “court may order visitation rights for any person when visitation may serve the best interests of the child, whether or not there has been any change of circumstances.” Wash. Rev. Code § 26.10.160(3). The U.S. Supreme Court ruled that the Washington statute “unconstitutionally interferes with the fundamental right of parents to rear their children.” The Court went on to examine its treatment of parental rights in previous cases: In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children…Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and this case clearly upholds parental rights. In essence, this decision means that the government may not infringe parents’ right to direct the education and upbringing of their children unless it can show that it is using the least restrictive means to achieve a compelling governmental interest.
Crawford v. Washington No. 02-9410. Argued November 10, 2003
Decided March 8, 2004
certiorari to the Supreme Court of Washington
Petitioner was tried for assault and attempted murder. The State sought to introduce a recorded statement that petitioner’s wife Sylvia had made during police interrogation, as evidence that the stabbing was not in self-defense. Sylvia did not testify at trial because of Washington’s marital privilege. Petitioner argued that admitting the evidence would violate his Sixth Amendment right to be “confronted with the witnesses against him.” Under Ohio v. Roberts, 448 U. S. 56, that right does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability,’ ” a test met when the evidence either falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” Id., at 66. The trial court admitted the statement on the latter ground. The State Supreme Court upheld the conviction, deeming the statement reliable because it was nearly identical to, i.e., interlocked with, petitioner’s own statement to the police, in that both were ambiguous as to whether the victim had drawn a weapon before petitioner assaulted him.
Held: The State’s use of Sylvia’s statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Pp. 5-33.
(a) The Confrontation Clause’s text does not alone resolve this case, so this Court turns to the Clause’s historical background. That history supports two principles. First, the principal evil at which the Clause was directed was the civil-law mode of criminal procedure, particularly the use of ex parte examinations as evidence against the accused. The Clause’s primary object is testimonial hearsay, and interrogations by law enforcement officers fall squarely within that class. Second, the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination. English authorities and early state cases indicate that this was the common law at the time of the founding. And the “right … to be confronted with the witnesses against him,” Amdt. 6, is most naturally read as a reference to the common-law right of confrontation, admitting only those exceptions established at the time of the founding. See Mattox v. United States, 156 U. S. 237, 243. Pp. 5-21.
(b) This Court’s decisions have generally remained faithful to the Confrontation Clause’s original meaning. See, e.g., Mattox, supra. Pp. 21-23.
(c) However, the same cannot be said of the rationales of this Court’s more recent decisions. See Roberts, supra, at 66. The Roberts test departs from historical principles because it admits statements consisting of ex parte testimony upon a mere reliability finding. Pp. 24-25.
(d) The Confrontation Clause commands that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. Roberts allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability, thus replacing the constitutionally prescribed method of assessing reliability with a wholly foreign one. Pp. 25-27.
(e) Roberts’ framework is unpredictable. Whether a statement is deemed reliable depends on which factors a judge considers and how much weight he accords each of them. However, the unpardonable vice of the Roberts test is its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. Pp. 27-30.
(f) The instant case is a self-contained demonstration of Roberts’ unpredictable and inconsistent application. It also reveals Roberts’ failure to interpret the Constitution in a way that secures its intended constraint on judicial discretion. The Constitution prescribes the procedure for determining the reliability of testimony in criminal trials, and this Court, no less than the state courts, lacks authority to replace it with one of its own devising. Pp. 30-32.
147 Wash. 2d 424, 54 P. 3d 656, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed an opinion concurring in the judgment, in which O’Connor, J., joined.
THE CONSTITUTIONAL RIGHT TO BE A PARENT
Below are excerpts of case law from state appellate and federal district courts and up to the U.S. Supreme Court, all of which affirm, from one perspective or another, the absolute Constitutional right of parents to actually BE parents to their children.
The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).
The several states have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).
Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government. Elrod v. Burns, 96 S Ct 2673; 427 US 347, (1976).
Law and court procedures that are “fair on their faces” but administered “with an evil eye or a heavy hand” was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).
Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982).
Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .
The liberty interest of the family encompasses an interest in retaining custody of one’s children and, thus, a state may not interfere with a parent’s custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).
Parent’s right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).
Parent’s interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent, who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584, (1980).
The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).
Father enjoys the right to associate with his children which is guaranteed by this amendment (First) as incorporated in Amendment 14, or which is embodied in the concept of “liberty” as that word is used in the Due Process Clause of the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973).
“Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in person. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody.” May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).
A parent’s right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.
The Court stressed, “the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection.” A parent’s interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).
Parent’s rights have been recognized as being “essential to the orderly pursuit of happiness by free man.” Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).
The U.S. Supreme Court implied that “a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255^Q56, (1978).
The U.S. Court of Appeals for the 9th Circuit (California) held that the parent-child relationship is a constitutionally protected liberty interest. (See; Declaration of Independence –life, liberty and the pursuit of happiness and the 14th Amendment of the United States Constitution — No state can deprive any person of life, liberty or property without due process of law nor deny any person the equal protection of the laws.) Kelson v. Springfield, 767 F 2d 651; US Ct App 9th Cir, (1985).
The parent-child relationship is a liberty interest protected by the Due Process Clause of the 14th Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct App 7th Cir WI, (1985).
No bond is more precious and none should be more zealously protected by the law as the bond between parent and child.” Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).
A parent’s right to the preservation of his relationship with his child derives from the fact that the parent’s achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child’s corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595^Q599; US Ct App (1983).
A parent’s right to the custody of his or her children is an element of “liberty” guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App Div (1983).
Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S Ct 1879; 466 US 429.
Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored. The state cannot be permitted to classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440 US 268, (1979).
The United States Supreme Court held that the “old notion” that “generally it is the man’s primary responsibility to provide a home and its essentials” can no longer justify a statute that discriminates on the basis of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).
Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).
State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. Gross v. State of Illinois, 312 F 2d 257; (1963).
The Constitution also protects “the individual interest in avoiding disclosure of personal matters.” Federal Courts (and State Courts), under Griswold can protect, under the “life, liberty and pursuit of happiness” phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).
The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah’s Constitution, Article 1 § 1. In re U.P., 648 P 2d 1364; Utah, (1982).
The rights of parents to parent-child relationships are recognized and upheld. Fantony v. Fantony, 122 A 2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982). State’s power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of 14th Amendment…Fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights…Fourteenth Amendment encompasses and applied to states those preexisting fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights with it: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The United States Supreme Court in a long line of decisions has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental “liberty” interests protected by the Constitution. Thus, the decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the “Constitutional underpinning of … a recognition that the “liberty” protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life.” The non-custodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 USC § 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F.2d 1328, (1981).
FROM THE COLORADO SUPREME COURT, 1910
In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and controlling question by which the court must be guided. This rule is based upon the theory that the state must perpetuate itself, and good citizenship is essential to that end. Though nature gives to parents the right to the custody of their own children, and such right is scarcely less sacred than the right to life and liberty, and is manifested in all animal life, yet among mankind the necessity for government has forced the recognition of the rule that the perpetuity of the state is the first consideration, and parental authority itself is subordinate to this supreme power. It is recognized that: ‘The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated by its duty of protection, to consult the welfare, comfort and interest of such child in regulating its custody during the period of its minority.’ Mercein v. People, 25 Wend. (N. Y.) 64, 103, 35 Am. Dec. 653; McKercher v. Green, 13 Colo. App. 271, 58 Pac. 406. But as government should never interfere with the natural rights of man, except only when it is essential for the good of society, the state recognizes, and enforces, the right which nature gives to parents [48 Colo. 466] to the custody of their own children, and only supervenes with its sovereign power when the necessities of the case require it.
The experience of man has demonstrated that the best development of a young life is within the sacred precincts of a home, the members of which are bound together by ties entwined through ‘bone of their bone and flesh of their flesh’; that it is in such homes and under such influences that the sweetest, purest, noblest, and most attractive qualities of human nature, so essential to good citizenship, are best nurtured and grow to wholesome fruition; that, when a state is based and build upon such homes, it is strong in patriotism, courage, and all the elements of the best civilization. Accordingly these recurring facts in the experience of man resulted in a presumption establishing prima facie that parents are in every way qualified to have the care, custody, and control of their own offspring, and that their welfare and interests are best subserved under such control. Thus, by natural law, by common law, and, likewise, the statutes of this state, the natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be entrusted with their care, control, and education, or when some exceptional circumstances appear which render such custody inimicable to the best interests of the child. While the right of a parent to the custody of its infant child is therefore, in a sense, contingent, the right can never be lost or taken away so long as the parent properly nurtures, maintains, and cares for the child. Wilson v. Mitchell, 111 P. 21, 25-26, 48 Colo. 454 (Colo. 1910)
The U.S. Supreme Court has consistently protected parental rights, including it among those rights deemed fundamental. As a fundamental right, parental liberty is to be protected by the highest standard of review: the compelling interest test. As can be seen from the cases described above, parental rights have reached their highest level of protection in over 75 years. The Court decisively confirmed these rights in the recent case of Troxel v. Granville, which should serve to maintain and protect parental rights for many years to come.
As long as CPS is allowed to have an exaggerated view of their power andis allowed by state officials and the courts to exploit that power and abuse it against both children and parents, they will both be continually harmed. The constitution is there for two primary reasons, 1) to restrict the power of the government and 2) to protect the people from the government, not the government from the people. And the constitution is there to prohibit certain activity from government officials and that prohibition does not apply to one type or kind of official but to ANY government official whether it is the police, CPS or FBI.
ARE SUPERVISORS LIABLE FOR HIS OR HER CULPABLE ACTION OR INACTION IN THE SUPERVISION, OR CONTROL OF HIS OR HER SUBORDINATES; FOR HIS OR HER ACQUIESCENCE IN THE CONSTITUTIONAL DEPRIVATION OR FOR CONDUCT THAT SHOWED A RECKLESS OR CALLOS INDIFFERENCE TO THE RIGHTS OF OTHERS?
Section 1983 places liability on ANY person who “subjects, or causes to be subjected” another to a constitutional deprivation. See 42 U.S.C. § 1983. This language suggests that there are two ways a defendant may be liable for a constitutional deprivation under § 1983: (1) direct, personal involvement in the alleged constitutional violation on the part of the defendant, or (2) actions or omissions that are not constitutional violations in themselves, but foreseeably leads to a constitutional violation. The Court of Appeals for the Ninth Circuit offered a most cogent discussion of this issue in Arnold v. International Bus. Machines Corp., 637 F.2d 1350 (9th Cir. 1981):
A person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made…. Moreover, personal participation is not the only predicate for section 1983 liability. Anyone who “causes” any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury. Id. at 1355 (emphasis added) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)).
A supervisor is liable under § 1983 if s/he “does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which [s/]he is legally required to do.” Causing constitutional injury. Johnson v. Duffy, 588 F. 2d 740, 743-44 (9th Cir. 1978). A supervisor is liable for “his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation …; for conduct that showed a reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F. 3d 1087, 1093 (9th Cir. 1997)
A supervisor can be liable in his individual capacity if “he set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known would cause others to inflict the constitutional injury.” Larez v. City of Los Angeles, 946 F. 2d 630, 646 (9th Cir. 1991). “Supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in constitutional injuries they inflict.” Slakan v. Porter, 737 F. 2d 368, 373 (4th Cir. 1984). “We have explained the nature of the causation required in cases of this kind in Johnson v. Duffy, 588 F. 2d 740 (9th Cir. 1978). There, we held that for purposes of § 1983 liability the requisite causal chain can occur through the ‘setting in motion [of] a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.’ Id. at 743-44. There is little question here that Cooper and Roderick should have known that falsely placing the blame for the initial Ruby Ridge incident on Harris would lead to the type of constitutional injuries he suffered.” Harris v. Roderick, 126 F. 3d 1189 (9th Cir. 1997).
CAN A PRIVATE CITIZEN BE HELD LIABLE UNDER § 1983 EVEN THOUGH PRIVATE CITIZENS CANNOT ORDINARILY BE HELD LIABLE UNDER § 1983?
While a private citizen cannot ordinarily be held liable under § 1983 because that statute requires action under color of state law, if a private citizen conspires with a state actor, then the private citizen is subject to § 1983 liability. Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir 2001) quoting Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992) “To establish § 1983 liability through a conspiracy theory, a plaintiff must demonstrate that: (1) a state official and private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights, and (2) those individual(s) were willful participants in joint activity with the State or its agents.” Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (internal quotation and citations omitted). Not only did both Bonnie Maskery and the state Defendants conspire to harm Mrs. Dutkiewicz because she practiced Wicca, Maskery continued to conspire with state Defendants by manufacturing evidence and lying in order to deny the Plaintiffs their due process rights to a fair trial. Plaintiff told state Defendants in writing and over the phone that Maskery was a fraud and impersonating a therapist prior to submitting the petition to the court yet the state Defendants willfully filed the fraudulent petition.
“In this case, C.A. alleged just such a conspiracy between Weir and Karen, and Deputy Sheriff James Brokaw. Specifically, C.A. asserted that Weir and Karen conspired with James, who was a deputy sheriff, in July 1983 to file false allegations of child neglect in order to cause the DCFS to remove C.A. from his home and to thereby cause C.A.’s parents to divorce, because of the religious beliefs and practices of C.A’s family. [FN 12] While Weir and Karen claim that C.A.’s allegations are too vague to withstand dismissal under 12(b)(6), C.A has alleged all of the necessary facts: the who, what, when, why and how. No more is required at this stage.” Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir 2001)
“Alternatively, Weir and Karen seek cover in the various proceedings instituted as a result of their complaint: a formal petition for adjudication of wardship, a court hearing, investigatory conferences held by the DCFS, adjudication of wardship by the court, and a dispositional hearing by the court, seemingly arguing that because a court determined that C.A. should remain in foster care, that demonstrates that their complaints of neglect were justified. But, assuming that Weire, Karen and Deputy Sheriff James Brokaw knew the allegations of child neglect were false, then these proceedings actually weaken their case because that means they succeeded in the earlier stages of their conspiracy –they created upheaval in C.A’s family by having him removed from his home and by subjected his family to governmental interference. Moreover, as we have held in the criminal context, ‘[i]f police officers have been instrumental in the plaintiff’s continued confinement or prosecution, they cannot escape liability by pointing to the decisions of prosecutors or grand jurors or magistrates to confine or prosecute him.’ Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.1988).” Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir 2001)
IS WICCA / WICCAN A CONSTITUTIONALLY PROTECTED RELIGION?
Wiccan and other Neopagan groups have been recognized by governments in the US and Canada and given tax-exempt status. Wiccan priests and priestesses have been given access to penitentiaries in both countries, and the privilege of performing handfastings/marriages. On March 15, 2001, the list of religious preferences in the United States Air Force Personnel Data System (MilMod) was augmented to include: Dianic Wicca, Druidism, Gardnerian Wicca, Pagan, Seax Wicca, Shamanism, and Wicca.
Judge J. Butzner of the Fourth Circuit Federal Appeals Court confirmed the Dettmer v Landon decision (799F 2nd 929) in 1986. He said: “We agree with the District Court that the doctrine taught by the Church of Wicca is a religion.” Butzner J. 1986 Fourth Circuit. A case was brought in 1983 in the U.S. District Court in Michigan. The court found that 3 employees of a prison had restricted an inmate in the performance of his Wiccan rituals. This “deprived him of his First Amendment right to freely exercise his religion and his Fourteenth Amendment right to equal protection of the laws.” Dettmer vs. Landon: concerns the rights of a Wiccan inmate in a penitentiary. Lamb’s chapel v. Center Moriches Union Free School District: concerns the rental of school facilities after hours by a religious group. It is abundantly clear that none of the State Defendants can claim that one’s First Amendment right was not clearly established.
ARE “MANDATED REPORTERS” STATE ACTORS?
“As the district court correctly found, insofar as the Hospital was acting in the latter capacity – as part of the reporting and enforcement machinery for CWA, a government agency charged with detection and prevention of child abuse and neglect – the Hospital was a state actor.” “[C]onduct that is formally ‘private’ may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action . . . In certain instances the actions of private entities may be considered to be infused with ‘state action’ if those private parties are performing a function public or governmental in nature and which would have to be performed by the Government but for the activities of the private parties. Perez v. Sugarman, 499 F2d 761, 764-65 (2d Cir. 1974)(quoting Evans v. Newton, 382 U.S. 296, 299 (1966)” Mora P. v. Rosemary McIntyre, (Case No.: 98-9595) 2nd Cir (1999).
CAN THE STATE SHIELD A “STATE ACTOR” FROM LIABILITY UNDER SECTION 1983?
No they cannot. State-conferred immunity cannot shield a state actor form liability under § 1983. See Martinez v. California, 444 U.S. 277, 284 n. 8 (1980) (“Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 … cannot be immunized by state law.”) [cite omitted]. Indeed, a regime that allowed a state immunity defense to trump the imposition of liability under § 1983 would emasculate the federal statute.
Section 1983 imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution and laws. K & A Radiologic Tech. Servs., Inc. v. Commissioner of the Dep’t of Health, 189 F.3d 273, 280 (2nd Cir 1999) (quoting Blessing v. Freestone, 520 U.S. 329, 340 !997). “[T]he core purpose of § 1983 is ‘to provide compensatory relief to those deprived of their federal rights by state actors’.” Hardy v. New York City Health & Hosps. Corp., 164 F.3d 789, 795 (2nd Cir. 1999) (quoting Felder v. Casey, 487 U.S. 131, 141 (1988)). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Id. (quoting, inter alia, West v. Atkins, 487 U.S. 42, 49 (1988)) (other citations and internal quotation marks omitted)
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