CHILD PROTECTIVE SERVICES AND THE JUVENILE JUSTICE SYSTEM
A guide to protect the constitutional rights of both parents and children.
“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 ADVISE FROM AN ATTORNEY IN THE AREA OF LAW YOU WISH TO PURSUE.
IT’S UNCONSTITUTIONAL FOR CPS TO CONDUCT AN INVESTIGATION AND INTERVIEW A CHILD ON PRIVATE PROPERTY WITHOUT EXIGENT CIRCUMSTANCES 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 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 due-process violation occurs when a state-required breakup of a natural family is founded solely on a “best interests” analysis that is not upported by the requisite proof of parental unfitness.
Quilloin v. Walcott, 434 U.S. 246, 255, (1978)
HEARSAY STATEMENTS INADMISSIBLE FROM CASE WORKERS OR POLICE
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 they 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.
NEVER EVER TRUST ANYONE FROM CPS/DCF
You MUST understand that CPS will not give you or your spouse a 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 ‘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.
[b]Perpetrators of Maltreatment
160/ 59 Abuse Physical
112/ 13 Abuse Sexual
410/ 241 Abuse Neglect
14/ 12 Abuse Medical
6.4/ 1.5 Neglect Fatalities
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 SOLELY BECAUSE THEY SAW A PARENT WAS A VICTIM OF 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.
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)
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