HA note: The following series will run each weekday this week. It is reprinted with permission from Libby Anne’s blog Love Joy Feminism. Part three of the series was originally published on Patheos on April 20 2013.
Also in this series: Part One, Introduction | Part Two, HSLDA’s Fight Against Child Abuse Reporting | Part Three, HSLDA’s Stonewalling of Child Abuse Investigations | Part Four, HSLDA’s Defense of Child Abuse | Part Five, HSLDA and the Deregulation of Homeschooling
3. HSLDA’s Stonewalling of Child Abuse Investigations
This is the third post in a series on the role the Home School Legal Defense Association (HSLDA) plays in aiding and abetting child abuse. In the last post I wrote about HSLDA’s efforts to decrease the reporting of child abuse; in this post I will write about the role HSLDA has played in encouraging the obstructing of child abuse investigations. In a nutshell, HSLDA encourages its member families to do whatever they have to to prevent social workers from talking to their children alone, has pioneered legal strategies aimed at enabling parents to stonewall child abuse investigations, encourages children and parents alike to regard social workers with fear and suspicion, and portrays child abuse investigations themselves as abusive.
Standard Bearers of the Fourth Amendment
The fourth amendment protects citizens against unreasonable search and seizure; it is because of this amendment that law enforcement must have a warrant to enter your house. HSLDA is adamant in its insistence that the fourth amendment gives parents the right to deny Child Protective Services workers access to their homes and children without a warrant. In fact, HSLDA has been so dogged in pursuing litigation to extend parents’ fourth amendment rights that a legal comment published in UMKC Law Review in 2004 was titled “Standard Bearers of the Fourth Amendment: The Curious Involvement of Home School Advocates in Constitutional Challenges to Child Abuse Investigations.”
Just what is HSLDA’s line on the fourth amendment? Well, in his 2001 testimony urging that the Child Abuse Prevention and Treatment Act (CAPTA) be amended, HSLDA’s Christopher Klicka made the following suggestion:
Specific Declaration of the 4th Amendment Probable Cause Standard: Social workers must be held accountable to the same 4th Amendment standards as the police and other law enforcement authorities. As a condition of receiving federal funds, states should be mandated to declare in their state code that a warrant, supported by probable cause, must be obtained before a social worker can enter the home without consent of the parents.
HSLDA was actually partially successful in its attempt to amend CAPTA: As a result of their efforts, a provision requiring that social workers be trained regarding the requirements of the fourth amendment was added to the bill. Now while HSLDA’s laser focus on the fourth amendment as a way to protect homeschooling families against child abuse investigations may seem fishy, it is true that the fourth amendment does protect families against intrusions of law enforcement without a warrant, so applying this same standard to CPS workers, who serve as government agents, is not really that out there (whether or not I agree with it, of course, is another matter). Where it gets strange is what comes next.
Don’t Let the Social Worker In!
HSLDA insists that requiring social workers to get either the parents’ consent or a warrant before entering a home and interviewing children won’t actually get in the way of child abuse investigations, explaining as follows:
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.
This is very odd given what HSLDA advises its members:
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
In the Stumbo case, when a social worker came to the door to investigate suspected child abuse after a tipster made a report about an unattended naked two year old in the family’s driveway, HSLDA advised the family not to let the social worker in. The Stumbos followed HSLDA’s advice, denying social workers access to their children, and as a result what might have been a simple investigation revealing no suggestions of child abuse and leading to the tip being unsubstantiated and the case dismissed instead turned into a drawn-out court battle that lasted for years.
Growing up in an HSLDA member family, I remember what I was taught was the number one most important thing to remember in case of a social worker coming to the door: Never, never, never let a social worker into the home, and never let the social worker talk to any of the children alone. The reason for this, I was told, was that social workers would fake evidence and plant false memories in children, meaning that if even the most innocent homeschooling family let a social worker into the house they would end up losing custody of their children. I never thought about the reality that, in practice, urging parents against allowing CPS workers into their homes or access to their children might both make the families appear extremely suspicious and serve to impede the investigation and discovery of real and devastating child abuse.
Just What Is Probable Cause?
If HSLDA member families follow HSLDA’s advice, social workers will always have to get warrants to investigate child abuse complaints against homeschooling families. To get a warrant the social worker will have to establish probable cause, and HSLDA is adamant in wanting the strictest standards used in determining just what constitutes probable cause—and that means anonymous tips or “mere suspicion” of child abuse, however earnest or dire, are out.
In the Stumbo case the social worker responded to the parents’ refusal to allow access to their home or children by going to a judge and getting a warrant. HSLDA responded by taking legal action to challenge this warrant—and ultimately won.
In one article, HSLDA offers an example of probable cause: A grandmother calls CPS, providing her name and personal information, and reports that her grandson has been locked in his room for days without food and that she has seen him and he looks pale and weak. HSLDA states that in this case, if the CPS worker can verify the identity and relationship of the caller, he would then have probable cause and could get a warrant. Later, the article states that “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. … Anonymous tips are never probable cause.”
Let’s take a look at how things would work if HSLDA has its way: When a tipster calls CPS to expresses concerns about a homeschooling family, a social worker will be dispatched to the family’s home in an attempt to ascertain whether there is any justification for these concerns. On HSLDA’s advice, the family will turn the social worker away without allowing her access to their home or children in order to investigate the allegations. The social worker can then go to a judge, and must present some form of information that will pass the “test of reliability” and serve as “probable cause”—and this information must all be obtained and presented without any access to the family’s home or children. If the tip is anonymous or the repost rests on “mere suspicions” or the allegations are not deemed to pass the “test of reliability,” regardless of the severity of the accusations, the judge will deny the warrant and the case will be dismissed, all without the social worker ever having any contact with the family’s children. Seen in this way, it’s not hard to see that HSLDA is intent on throwing up any possible roadblock in the path of child abuse investigation.
Don’t Let Them Talk to the Kids!
Perhaps this is the most disturbing part: HSLDA does whatever it has to to keep CPS workers from contact with homeschooling children, rejoicing every time they successfully keep children from private interviews with the social workers sent to investigate child abuse tips a family. In one article in its Home School Court Report, an article that is extremely representative of the stories recorded there, HSLDA exults over a successful case against child abuse investigations as follows:
A Home School Legal Defense Association member family in Jackson County recently contacted us for assistance in a Department of Social Services investigation alleging physical abuse.
The investigation was prompted by a report to DSS alleging inappropriate discipline of their child approximately two years ago. Although the report just covered one child, the social worker insisted that she be allowed to interview all of the children in the home.
HSLDA contacted the social worker, explaining that our members were eager to address the allegations made against them and were prepared to meet with the social worker to respond to questions about the report. However, we clarified that the parents would not discuss any matters beyond the specific allegations, and that they would strenuously oppose subjecting their children to the trauma of any interrogation by social workers.
The family recently received a letter stating that the investigation was terminated as “unfounded.”
In case after case after case after case after case after case, HSLDA makes it clear that allowing social workers to speak with children alone is the absolute worst thing a parent can do, and is something to be avoided at all costs. This is the thing a parent must never do. HSLDA seems completely unaware that sometimes a private interview with a social worker is the only chance an abused child has to speak out about her abuse, and that having a parent or other relative present often impedes abused children’s ability to speak openly of their abuse. But then, HSLDA also seems unaware that any of its member families could possibly abuse their children.
In fact, here is a statement by HSLDA directly addressing the importance of opposing private interviews between children and social workers:
Private interviews with a social worker can be extremely traumatic for a child. Social workers sometimes ask inappropriate, personal, and offensive questions which can destroy a child’s innocence or security. HSLDA works hard to avoid such traumatic interviews wherever possible.
HSLDA isn’t shy, then, about its opposition to letting social workers speak privately with children. In case after case listed in their Court Report and on their website, they crow over how they cowed social workers out of being able to meet one-on-one with homeschooling children. HSLDA may insist that social workers plant stories of abuse and traumatize children during these private interviews, but the simple reality is that HSLDA is working its hardest to cut off any chance abused children might have of actually speaking to social workers about their abuse.
For more on how HSLDA teaches parents to deal with CPS workers—and more on the fear and suspicion with which HSLDA encourages parents to view CPS workers—take a minute to read this play in two acts involving “Mr. Innocent,” “Mr. Wise,” “Little Eager,” and “Orwell,” the social worker. This play is an excellent peek into exactly how I was taught growing up to view social workers and deal with CPS investigations. And you may have guessed it already—the goal is to avoid allowing CPS to speak privately with the children.
Child Abuse Investigations as Abusive to Children
HSLDA also has a track record of arguing that children must be protected from child abuse investigations. For example, in explaining opposition to mandatory reporting laws HSLDA has said the following:
HSLDA has seen firsthand how malicious or ignorant child abuse and neglect allegations have destroyed innocent families. A family has few protections against the power of CPS agencies. And even if a CPS investigation is closed as unfounded, the trauma to a young child, to an innocent family as a stranger (albeit maybe a well-intentioned stranger) enters the home and threatens to remove the children, is lasting and profound.
And, after winning one case, HSLDA reported as follows:
Elated by this sudden victory after months of worry, the Willittses returned to normal life. Their refusal to back down – even in the face of relentless intimidation – had protected their children from a traumatic interview and their family from any further invasion of privacy. We thank God for the positive resolution of this case.
HSLDA often describes CPS investigations as abusive toward families, thus co-opting the rhetoric of abuse. I’m unsure of whether HSLDA is aware of how insensitive this makes them look—or if they’re aware that even HSLDA member families can be abusive. Either way, the idea that child abuse investigations are this horribly abusive thing that families and children must be protected against at all costs serves in practice to aid abusive parents seeking to hide the evidence of their abuse and minimizes the abuse that many children suffer every day at the hands of their parents.
Teaching Children (and Parents) to Fear Social Workers
I would suggest that whatever “trauma” is in fact suffered by homeschooled children interviewed by CPS workers is the result of HSLDA literature urging children to be afraid of social workers. When I was a child, I was terrified of CPS workers, viewing them as an evil boogeyman out to take me away from my parents at the drop of a hat. Where did I get this fear? From HSLDA. In spades. HSLDA sows fear among homeschooling parents and children because that fear is what keeps its coffers full—after all, if homeschooling parents are not afraid, they will not buy HSLDA’s legal insurance.
In fact, HSLDA founder Michael Farris even wrote a horror novel called Anonymous Tip, which detailed the story of a woman whose daughter was removed from her custody by a conniving social worker who faked evidence after a child abuse tip called in by the woman’s deadbeat ex. I’m sure I’m not the only homeschooler who read Farris’s novel and took it very, very seriously—and the play I referenced earlier was likely taken similarly seriously.
Through its books, email alerts, and magazine, HSLDA plants a fear of social workers and CPS investigations deep in the heart of both parents and children—even leading them to believe that CPS workers commonly remove children from their parents without justification, and that this could happen to them too—and then crows to the rooftops about the trauma that results from child abuse investigations. If HSLDA wasn’t sowing this fear in the first place, parents and children wouldn’t be frightened to death when social workers show up at the door to investigate a complaint and make sure everything is alright.
But there’s more to this, too. When HSLDA teaches children to be afraid of social workers, it is teaching them to see their helpline as the enemy. CPS workers ought to be seen as friends and supporters of children, there to listen to kids and help protect them from abuse. Sure, there may be the random bad social worker, but by and large social workers are dedicated individuals who believe deeply in helping children. Social work isn’t something you go into for the money. And yet, HSLDA is busy teaching children to view social workers as objects of terror, which of course means that homeschooled children won’t see social workers as people they can trust and go to when they need help.
This Isn’t Hypothetical
I think it’s important to realize that this isn’t some abstract hypothetical we’re talking about. In early 2012 a fifteen year old homeschooled Wisconsin girl was found starving, walking alone along the side of the road, having escaped the prison cell her basement room had become.
The girl, now 15, was found by a passerby earlier this month as she walked in her pajamas and barefoot along a McFarland road. Authorities said the girl weighed 70 pounds.
The complaint states the girl’s face appeared sunken with her collarbones sticking out, and that she was”gorging” on food after authorities got her to care. The complaint states the girl gained 17 pounds in a matter of days.
According to the complaint, the girl told authorities Drabek-Chritton often denied her food, while Chritton claimed food would trigger diabetic reactions and render the girl prone to violence. Court documents state Drabek, two small children in the household, and Chritton and Drabek-Chritton would eat normally, while the girl would scavenge for food from garbage and go days at a time without eating. Her stepmother, Drabek-Chritton, was listed in court records as 370 pounds. Authorities said there was no evidence to support family claims of the girl’s alleged medical conditions, including eating disorders.
It seems there had been child abuse tips lodged against this family in the past:
“It also appears that the family in the past was not cooperative with the department of human services or the city of Madison police department,” Moeser said. Court documents state Chritton and Drabek-Chritton refused social workers access to their home during at least one investigation, and refused staff access to Drabek and the girl at times when both were minors. State and county officials were unavailable to comment on whether court actions were considered or attempted to overcome parental objections during investigations, with officials citing confidentiality rules.
I don’t know whether this homeschooling family was an HSLDA member family, but I do know that they step by step followed the course of action HSLDA recommends families follow in dealing with child abuse investigations, and that following HSLDA’s advice enabled them to hide their abuse of their daughter, abuse that only came to light when the girl physically escaped the hell her home had become. HSLDA’s policies for the handling of child abuse investigations aren’t just hypothetical—they have real world implications and affect real children’s lives in profoundly negative ways.
HSLDA may not see itself as doing everything in its power to obstruct child abuse investigations, but that is in practice what it is indeed doing. HSLDA urges its members against allowing social workers to investigate allegations of child abuse without a warrant and at the same time is working to increase the standards of what counts as “probable cause,” thus making it harder for social workers to get warrants to investigate abuse. At the same time, HSLDA does everything in its power to avoid letting social workers personally interview children, thus cutting off any possibility children who are being abused by their parents have of speaking out about that abuse. Meanwhile, HSLDA keeps homeschooled children so scared silly of social workers that it is more than likely that many abused homeschooled children wouldn’t report their own abuse if they had the chance. Meanwhile, HSLDA paintsthe child abuse investigations themselves as the problem, and as a dire threat to children.
Instead of doing its utmost to obstruct child abuse investigations, why doesn’t HSLDA instead urge its members to comply with investigations in order to dispel allegations of abuse? Why not focus on ensuring that CPS follows their own best practices and rules, thus minimizing false positives in child abuse investigations, rather than viewing CPS as the enemy to be opposed and obstructed? Or for that matter, why deal with child abuse allegations in the first place? Why not stick with the accusations that deal directly with homeschooling, such as ensuring that local officials know state law and that member families comply with those laws?
There are many possible responses to these questions, of course. Perhaps protecting parental rights against any limitations whatsoever is HSLDA’s primary goal, with homeschooling merely a tool to this end, and perhaps this has led to HSLDA defending parents against investigations of child abuse. Perhaps HSLDA’s definition of child abuse does not elide with the CPS’s definition of child abuse. Perhaps many HSLDA member families do have something to hide, and HSLDA knows it. Perhaps HSLDA’s focus on the primacy of parental rights means that the organization is not actually interested in doing things to protect children against abuse at the hands of their parents.
As one last example of how HSLDA views child abuse accusations and investigations, let me quote from an HSLDA article on Japanese homeschoolers:
Recent revisions to the Juvenile Law have strengthened child abuse reporting laws. There is now the possibility for neighbors of homeschool families to give notice to the Child Consultation Center (Zidoh-Sohdan-shyo in Japanese) that homeschooled children are abused by their parents. Regrettably, the Child Consultation Centers in each district are now required to investigate each and every abuse notice. Unsubstantiated abuse claims are expected to increase and to affect homeschool families adversely.
In case it is not already clear, HSLDA considers Child Protective Services investigations simply annoyances homeschoolers should not have to deal with rather than seeing them as important means of locating and helping abused children. Once again, it’s like HSLDA is completely unaware that some homeschooling families might actually physically abuse their children, or that some homeschooled children might be in need of help. HSLDA would probably deny these allegations, of course, and would point to statements deploring child abuse, calling for “true” child abusers to be prosecuted, and arguing that the corporal punishment parents employ should be “reasonable.” In the next segment of this series we will examine HSLDA’s ideas about just what actually constitutes child abuse.
To be continued.
Most children in less cases than straight up starvation won’t even try or think of trying to escape out of fear.. or in many cases not even realizing that what’s being done to them isn’t normal.
While I’ve agreed with a lot of what you guys have written, I’m going to have to strongly disagree with this one. First you need to keep in mind what HSLDA is – The Homeschool LEGAL DEFENSE Association. They are fundamentally an organization of criminal defense attorneys who represent homeschoolers. It is a defense attorney’s job to advise his clients how to exercise their rights to the maximum extent possible in order to defend them against criminal charges. To do anything less would be to commit malpractice.
If there is anything criminal defense attorneys agree upon, it is to advise their clients to NEVER TALK TO THE POLICE (or any other form of law enforcement), because the old saying that anything you say can and will be used against you is very true. A criminal defense attorney would NEVER advise his client to “cooperate” with a criminal investigation by waiving his 4th amendment rights and allowing investigators free access to his home.
Likewise the attorney would advise a client not to allow his family members to speak to investigators and make potentially incriminating statements. Any competent criminal defense attorney would advise his client to shut up, exercise their right to remain silent, and not give any information to law enforcement or allow them access to any physical location without a warrant. Otherwise you might as well just have your client confess right there and then. There’s place for pleading guilty if it truly is the client’s best option, but the default is to have your client admit to nothing and force the state to prove their case as best they can.
In advising their clients to stand on their rights and refuse to speak to investigators or allow them access to their homes without a warrant, HSLDA is doing nothing more or less than would be expected of any competent criminal defense attorney. It would be malpractice to advise anything else. Does that mean some people that are actually guilty of child abuse go free, and that terrible cases of genuine child abuse go undetected and unprosecuted? Absolutely. But that’s an unfortunate side effect of living in a society that gives rights to people under investigation by the state for committing a crime. If people exercise those rights, in can mean guilty people go unpunished and victims may fail to receive help. But that is a tradeoff we as a society have decided to make in order to protect people’s rights. You’re problem here is not with HSLDA, but with the concept of 4th amendment rights in general and criminal defense attorneys who advise their clients to take full advantage of them.
Also remember HSLDA’s history. They were born at a time when governmental abuse of homeschoolers was a very real problem. Homeschooling was still illegal in many states, and even in states where it was legalized homeschoolers were frequently subject to persecution coming in the form of baseless child abuse accusations. I don’t know if this is still the case, but at the time CPS often really was the boogey man we were raised to fear. HSLDA’s horror stories were real enough, and some homeschoolers really did have their children taken away because of totally bogus trumped up child abuse charges. It is unfortunate that in HSDLA’s zealous efforts to fight such things they may have inadvertently protected some real abusers as well, but that doesn’t make it wrong to defend people against child abuse allegations that really are false, or to provide people with the tools they need to exercise their rights.
Maybe we could catch a lot more child abusers if accused criminals didn’t have rights, but a lot more innocent people would be punished along with the guilty. We as a society have decided it is better to have some guilty people go unpunished than to make innocent people suffer for crimes they never committed. So if you believe HSLDA is wrong here, your problem is with that societal bargain, not HSLDA.
I don’t think you have the right to keep your child away from a social worker. Your child is not your property.
Also, citation needed on homeschooled children being taken away because of bogus child abuse charges.
You must have voted for Obama. I guess you believe the Government owns everything and everyone.
I can’t believe that someone believes that statement, that you don’t have the right to keep your child away from a social worker, because your child is not really your child. Clear thinking people do not give birth to children in order to hand them over to the state.
Actually, if the HSLDA is legal defense for HOME SCHOOLERS, and I read again and again that both parents and children are termed “Home Schoolers,” then the HSLDA should be equally concerned with representing both the parents and the CHILDREN. Which again brings you back to the fact that, if they concern themselves with issues of child abuse at all, they defend against false accusations on the one hand and ADVOCATE for children’s protection on the other. The best way to do this? Comply with laws designed to do exactly that. CPS is the organization designed to protect the children; the only time they need to be interfered with is in cases where they are not following their own best-practices. If HSLDA wants to propose that CPS is the enemy, then they should propose some rational alternative that still protects children from child abuse. NOT try to completely subvert the only nationwide system that is created for that purpose.
Of course a child isn’t your property, but you do have rights of privacy and rights against unwarranted intrusion into your home by law enforcement. Do you deny the existence of the 4th amendment or many clear court precedents for parental rights? And for cases of bogus child abuse charges, see pretty much every HSLDA magazine ever. It does happen. Maybe you think HSLDA was just protecting real abusers every time, and granted it’s impossible to say for sure, but from what I’ve read there’s pretty clear evidence a lot of these cases were bogus. There was also plenty of these types of instances especially in the early days of homeschooling, which is where much of the fear of CPS originates.
I worked with VOCAL
Fourth Amendment also provides protection to families, as it guarantees an individual the right to be secure against forcible entry of his home save in exceptional circumstances. See generally, Payton v. New York, 445 U.S. 573, 584-90, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980); United States v. Manning, 448 F.2d 992, 1000-02 (2d Cir.) (en banc), cert. denied, 404 U.S. 995, 30 L. Ed. 2d 548, 92 S. Ct. 541 (1971). Furthermore, the High Court has held that “seizures inside a home without a warrant are presumptively unreasonable,” Payton v. New York, 445 U.S. at 586.
“Physical entry into the home is the chief evil against which the . . . Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972). “At the very core [of the Fourth Amendment and the personal rights it secures] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 5 L. Ed. 2d 734, 81 S. Ct. 679 (1961). See also Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980) (“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.”); Coolidge v. New Hampshire, 403 U.S. 443, 474-475, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1970) (“It is accepted, at least as a matter of principle, that a search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.'”).
“A search [or seizure] of a child’s person . . . no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy.” New Jersey v. T.L.O., 469 U.S. 325, 337-38, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985). See also Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980), cert. denied, 451 U.S. 1022, 101 S. Ct. 3015, 69 L. Ed. 2d 395. (“It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity.”).
Moreover, except where emergency circumstances exist—as discussed below—a parent’s interest in the custody of his or her children is a constitutionally protected “liberty” of which he or she may not be deprived without due process, generally in the form of a predeprivation hearing. See Robison v. Via, 821 F.2d at 921; see generally Stanley v. Illinois, 405 U.S. 645, 649-58, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972).
“The right of the police to enter and investigate in an emergency . . . is inherent in the very nature of their duties as peace officers, and derives from the common law.” United States v. Barone, 330 F.2d 543, 545 (2d Cir.), cert. denied, 455 U.S. 1003, 102 S. Ct. 1638, 71 L. Ed. 2d 871. See also Mincey v. Arizona, 437 U.S. 385, 392, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978); Wayne v. United States, 115 U.S. App. D.C. 234, 318 F.2d 205, 212 (D.C. Cir.) cert. denied, 375 U.S. 860, 84 S. Ct. 125, 11 L. Ed. 2d 86. (Burger, J., concurring) (“The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.”); II Lafave, Search & Seizure §§ 6.5(d) & 6.6.
Unlike cases involving other “exigent circumstances” exceptions, these cases do not require probable cause to believe a person is subject to arrest or if the tools, fruits or evidence of a crime will be found on the premises to be searched. See United States v. Booth, 455 A.2d 1351, 1354 (D.C. App. 1983); State v. Jones, 45 Ore. App. 617, 608 P.2d 1220, 1222 (1980). However, given the rationale for this very limited exception, the state actors making the seizure must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat. People v. Smith, 7 Cal. 3d 282, 286, 101 Cal. Rptr. 893, 895, 496 P.2d 1261, 1263 (1972) (“The exception must not be permitted to swallow the rule: in the absence of a showing of true necessity—that is, an imminent and substantial threat to life, health, or property—the constitutionally guaranteed right to privacy must prevail.”) (emphasis added); Lafave, supra; see also, Wallis v. Spencer, 202 F.3d 1126, 1136-37 (9th Cir. 2000) ( “Officials may remove a child from the custody of its parents without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.”); Calabretta v. Floyd, 189 F.3d 808, 812, 813-14 (9th Cir. 1999). Courts generally have found that entry of social workers or police officers into a home to inspect or remove a child requires a warrant. Calabretta, 189 F.3d at 813; Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003).
It is true that caselaw applying these principles specifically in the context of a warrantless invasion of a home based on an alleged need to prevent child abuse is relatively sparse. In this context, the Government’s actions appear to suggest that they are entitled to assume until told otherwise by the courts that child abuse cases would not be controlled by the well established legal principles developed in the context of residential intrusions motivated by less pressing concerns. Respondents reject this suggestion. It simply cannot be maintained that CPS and police officials did not know that the normal procedure for removal of children from the home involves a judicial decision and that in the absence of a court the child must be in immediate physical danger. See, e.g., Walsh v. Erie County Dep’t of Job and Family Servs., 240 F. Supp. 2d 731, 758-59 (N.D. Ohio 2003) (“Objectively viewed, a state agent whose duties take her into private homes is deemed to know about the basic constitutional constraints on her activities.”); Calabretta, 189 F.3d at 813 (“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.”) Mabe, 237 F.3d at 1107 (“[t]he constitutional right of parents and children to live together without government interference is well established”) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
It evinces no lack of concern for the victims of child abuse or lack of respect for the problems associated with its prevention to observe that child abuse is not sui generis in this context. The Fourth Amendment caselaw has been developed in a myriad of situations involving very serious threats to individuals and society, and Respondents find no suggestion that the governing principles should vary depending on a court’s assessment of the gravity of the societal risk involved. Moreover, Respondents find no indication that the principles developed in the emergency situation cases discussed are ill suited for addressing cases like the one now before the Court.
I have only read this one post, but I think you must have not seen the recent articles about the young family that had their infant taken away for wanting to get their son a second opinion. CPS, law enforcement, and hospital employees meaning well, but severely overreaching.
You can not pick the parts of the constitution that you like, and leave the others, it is a whole document, not a sentence. It is what reigns in our federal government. While my children are not property, I am held liable for their actions till they move out. Liable from a governments point of view, blessed. From Gods point of view.
There have only been two successful cases, argued only at the state level, that have affirmed a constitutional right to homeschool. There is no established constitutional right to homeschool, but you do have rights under statutory law, which are usually made by state legislatures and challenge in state court. You are conflating two very different issues.
Last time I checked a public school requirement and CPS were not mentioned in the constitution either.
Right, which is why compulsory education requirements are vastly different through all fifty states – there is no federal law on truancy. And this is also why CPS is also handled largely by states. The most overarching Federal legislation on child abuse was in CAPTA in 1974 – it funds state CPS agencies and provides a minimum definition of child abuse. But the social workers coming into a house are empowered by state governments, not the Feds. Again, you are using false analogies to make your point.
You are correct that CPS is operating under varying state mandates, and laws. When they attempt to enter my private residence, however they are trampling all over my constitutional rights and freedoms. These issues are very much intertwined and related.
CPS is required to operate within the laws of the state, as well as the laws of the USA.
I do believe CPS does intend to do a good job, but like cops, lawyers, judges, they are human and do make errors. These errors can have life altering consequences for the people they are sworn to protect and serve. That is why we must hold them to a higher standard and that is why the constitution very clearly states the citizens freedoms.
Can you explain to me how the US constitution limits state authority in this instance? Yes, states cannot obviously violate it, but they all have their own constitutions. The 9th and 10th amendments are generally considered the ones that give states powers not listed.
I will also reiterate that you have no established constitutional right to homeschool. You only have rights under statutory law. Unless you live in Michigan – the only state to rule on HS and the constitution.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
You are right about not having a established constitutional right to homeschool. However, it does not say I can not homeschool, either.
No one is talking about banning homeschooling. Posting the fourth amendment does not clarify your argument. And do you realize the US Constitution is not designed to list all the things you CAN’T do, right? That’s what statutory law is for.
The fourth amendment is explicitly clear on how a government entity can enter a private residence. Which is exactly how CPS usually gains access to children, for interviews, welfare checks and such.
This entire blog post, made it very clear that homeschoolers need to be checked on and regulated more, in order to prevent abuse situations. I feel no need to trot my children out just so some beaurocrat can determine if my parenting skills suit them.
The Fourth Amendment is not “explicitly clear,” nothing in the Constitution is. There are complex legal doctrines behind every clause in the Bill of Rights. No one wants to test your “parenting skills,” we want to test your “teaching skills.”
What is your solution to the abuse you have read about on this blog? Should we just twiddle our thumbs and hope it goes away?
The fourth is clear to me. It may not be to you, feel free to let anyone in your house. I bet if you are ever accused of a wrong doing, you shut up and hire a lawyer, and do your best to keep what ever you can out of the other attorneys hands.
You can make petty comments about abuse if you want and hope it goes away. I can tell you the best thing to prevent abuse is to raise decent children and stop the cycle. If you are the one a child turns to I their time of need, help them. CPS can work within the frame work of the law protecting children and get more done.
Do not think that just because I choose to homeschool my children, I am some class of moron. I choose to school my children because the public school system absoluty failed me, and is a joke. When the collective ” we” regularly churns out MIT bound students, I might rethink homeschooling. At this point, reading and basic math skills is all the ” we” can guarantee.
You assume so many things about me, but you can’t just say “raise better kids.” That’s what this whole movement that hurt SO MANY was all about.
I was accused of child negligence once. When the social worker came to the door, I let her in, she explained what the accusation was, and I knew the source immediately–a very obnoxious relative. We answered the woman’s questions, she saw the conditions our daughter was living in, watched my daughter and I interact, and she sent us a report a few weeks later on her findings–that my daughter was obviously healthy, well-cared for, and loved, with no sign of abuse or neglect. Case closed.
In addition to the claim of neglect, there had been an intimation by the relative that “maybe” my daughter’s father had a history of sexual abuse of children, but he did not, and she investigated the claim thoroughly and found it was baseless.
She did make recommendations. She saw that we were living in a very, very small place, with mold growing in the corners of the walls despite my regular treatments with bleach, so of course she recommended that we ought to have different living arrangements. We were poor–she knew that. It wasn’t child-abuse, it was poverty, and her recommendations were made with that clear caveat. Case was closed immediately. Nothing to hide, nothing to worry about.
My point in mentioning this is that it’s a good example of what CPS encounters are like in most cases of false accusation. The case worker wasn’t out to get us. Even with the highly inflammatory suggestion of sexual abuse, there was no knee-jerk removal of my daughter from my arms, because we really were innocent, UNTIL we were ALSO PROVEN innocent.
Had I not wanted her to see my mold-ridden slum-lord’s apartment, I could as easily have answered her questions at a coffee shop. Fourth Amendment protection was not the issue. THE PROTECTION OF MY DAUGHTER WAS THE ISSUE. I knew that as well as the case-worker did–if ever my child was abused by anyone, I would sure hope that the law was there to protect her.
I think you did not understand what I am saying about raising better children. It has zero to do with any kind of schooling method and has everything to do with parenting. If you were abused as a child, you have a higher likelyhood to repeat that same behavior with your children. I was saying stop the abuse cycle with your children. Learn different parenting skills, learn to never punish your children out of anger or control. Learn what punishment is reasonable. Most of all love and cherish your children. Teach your children compassion.
I assume nothing about you. I think you have a passion about this subject and that’s all.
So you’re answer to “what to do” is just a personal call for action to me, personally? You refuse to admit that there are greater, systemic forces at work that suck unknowing parents into a vortex of fundamentalism? This isn’t about me, personally. This is about a much greater social movement and its repercussions. You should read these three articles about the systemic problems of homeschooling:
The first step in preventing child abuse is to not do it. Yes, if that is a personal call to action, if that is what you are referring to. I will state again that parents who were abused as children are more likely to repeat the cycle. To be blunt, if your mothers boy friend took particular joy in beating the crap out of you, then as a parent you need to know that was not ok then and is not ok now.
I am not sure where there could be a systemic force that sucks unknowing parents into a vortex of fundamentalism. I think that is such baloney. If a parent abuses their children, it is because they are awful parents. I have NEVER been around other homeschool family’s that encouraged each other to harm their children in any way, shape or form.