Your rights in dealing with Child Protective Services.
You need to know your rights in dealing with Child Protective Services before you talk to anyone from Child Protective Services (CPS). The social worker will not tell you your rights.
As a parent or care giver you should know your rights in dealing with Child Protective Services. Many individuals assume, incorrectly, that there must be some sort of abuse or neglect in order for CPS to conduct an investigation. The fact of the matter is that a majority of calls to CPS are false and bogus.
Click on this link to learn more about Child Protective Services (CPS): Child Protective Services
Dealing with Child Protective Services and consent.
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 in your home and speak with your children. If there is no “exigent circumstances” (imminent danger) to your children with “probable cause” (credible witnesses) to support a warrant, CPS cannot lawfully enter your home and speak with you and your children.
CPS cannot do anything without your consent. The United States Court of Appeals for the Ninth Circuit has stated: “The government’s interest [CPS] 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)].
Should a police officer be at your door and demand entry or threaten to take action if you deny entry, the 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 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
Dealing with Child Protective Services use of coercive tactics.
The CPS social worker has not duty and will not tell you your rights. In fact they are going to do everything in their power to investigate a claim which can include threatening you with police presence and telling you that you are required to let them in your home or see your child. 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 14th Amendment which requires a warrant or a warrant exception.
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 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 imminent danger along with probable cause, CPS cannot enter your home and speak with your children. Remember, anonymous calls into CPS cannot be used as probable cause to secure a warrant. CPS must, by law, investigate the caller to determine to see if he or she is the person who they say they are and that what they said is credible.
Dealing with Child Protective Services when CPS is at the Door.
The CPS social worker has not duty and will not give you or your spouse a Miranda warning (the right to have an attorney present, remain silent, or that why you say will be used against you). If a CPS social worker 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. However, before the social worker leaves, you should bring your children to the door to prove that they are not in any imminent danger. 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.
Your Rights in Dealing with Child Protective Services during an “Investigation.”
It’s unconstitutional for CPS to conduct an investigation or to interview your child, on private property, without first determining probable cause (a crimes is being committed or the child is in danger) or without exigent circumstances (there exists a safety or health issue affecting the child). Your right to not submit to an investigation or interview continues to exist unless there is a real and actual danger.
Everything the CPS social worker sees and hears is written down, reviewed by the agency, and could be forwarded to the district attorney for criminal prosecution. Realize that even if an investigation is focused on your spouse or significant other that you could still be charged with a crime. You face the possibility of being charges should your spouse or significant other be charged with a crime. The CPS social worker may take what you say out of context and actually file an inaccurate report which could lead to prosecution of the case.
Before talking the social worker or letting any CPS official in your home, you should tell them that you want your attorney to be present – and not say anything else. Additionally, you should not sign any document or agree to anything before consulting an attorney.
Dealing with Child Protective Services and your right to be left alone.
The 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 9th Circuit Court of Appeals 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: “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.”
In short, parents and care givers have the constitutional right to exercise their children’s and their 4th and 5th Amendment 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 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.”
Dealing with Child Protective Services and the warrant exception.
The 9th Circuit has held that there is no exception to the warrant requirement for social workers in the context of a child abuse investigation. California regulations do require social workers to respond to complaints submitted but none of the regulations state that the social worker may force their way into a home without a search warrant in the absence of any emergency. [Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999)]. 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].
As the United States Court of Appeals for the Ninth Circuit has stated: “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 was made, by the court, in a case which held that social workers who were investigating a complaint of child abuse invaded a family home without a warrant violated 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 $150,000.00.
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. Likewise, 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.
Dealing with Child Protective Services and the warrantless entry.
Police officers and social workers are not immune for 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. The protection offered by the 4th 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 made to obtain a warrant, when the false statements were necessary to the finding of probable cause on which the warrant was based, violates the 4th Amendment’s warrant requirement. The warrant clause contemplates the warrant applicant be truthful: “no warrant shall issue, but on probable cause, supported by oath or affirmation.” A warrant application cannot be materially false or made in reckless disregard of the 4th Amendment’s warrant clause. Moreover, a search must not exceed the scope of the search authorized in a warrant.
Dealing with Child Protective Services, probable cause and exigent circumstances.
The 4th Amendment does not prevent a social worker, who has reliable evidence that a child is in imminent danger, from taking action. The key here is that the social worker must have reliable (i.e. verifiable) information. Anonymous tips often fail this test and the misuse of anonymous tips is well known. Personal vendettas, neighborhood squabbles, and revenge often result into someone making false allegations about a parent and/or child.
Dealing with Child Protective Services and family rights.
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)]. A state employee (CPS social worker) who withholds a child from her family may infringe on the family’s liberty of familial association.
Dealing with Child Protective Services and due process.
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 exparte 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 4th Amendment. 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)].
For purposes of the 4th 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)].
Dealing with Child Protective Services and the social worker’s immunity.
The State of California cannot provide immunity from suit for Federal civil rights violations. State laws providing immunity from suit for child abuse investigators has no application to suits under § 1983. [Wallis v. Spencer, (9th 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 investigating claims of child abuse are entitled only to qualified immunity. Assisting in the use of information known to be false in order 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. Police officers are 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)].
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)].
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