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Monday, January 21, 2008

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.
SECTION 8
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.
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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.
SECTION 9
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)
SECTION 10
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.
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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.
SECTION 11
IS IT ILLEGAL AND AN UNCONSTITUTIONAL PRACTICE FOR CPS TO REMOVE CHILDREN BECAUSE THEY WITNESS DOMESTIC VIOLENCE?
Yes it is illegal and an unconstitutional practice to remove children which results in punishing the children and the non-offending parent as stated. In a landmark class action suit in the U.S. District Court, Eastern District of New York, U.S. District Judge Jack Weinsein ruled on Nicholson v. Williams, Case No.: 00-cv-2229, the suit challenged the practice of New York’s City’s Administration for Children’s Services of removing the children of battered mothers solely because the children saw their mothers being beaten by husbands or boyfriends. Judge Weistein ruled that the practice is unconstitutional and he ordered it stopped.
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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.
SECTION 12
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
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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.SECTION 13
SCHOOLS ARE REQUIRED TO OFFER
SPECIAL EDUCATION SERVICES TO HOMESCHOOLERS
Special Education Services Reinstated for Homeschoolers, March 15, 2006
After a legal letter "tug-of-war," the Illinois Department of Education has finally relented. Their General Counsel contacted the Home School Legal Defense Association and has apologized for their erroneous memorandum of 2005 that effectively cut off special needs services to homeschoolers throughout the state.
In December of 2005, several Illinois member families contacted HSLDA because their special education services with their local public schools had been suddenly terminated.
One member family, the Blunts, had received a letter from the Director of Special Education of their local school district. The letter stated that according to the federal Individuals with Disabilities Education Act
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(IDEA) of 2004, the school district was no longer required to offer special education services to any private school that was not state recognized.
After having worked with congressional staff on the Education and Workforce Committee and with the legal counsel of the U.S. Department of Education for the last 10 years on this issue, the HSLDA legal staff knew that the letter the family received contained erroneous information. U.S. Department of Education officials have assured us that in states where homeschools are considered private schools, like Illinois, these private school children taught at home have access to special needs educational support through the public schools.
HSLDA Senior Counsel Chris Klicka drafted a letter on behalf of the Blunts explaining the school district's error. He informed school officials that special needs services must be restored to the Blunt family's child.
Shortly after sending the letter, HSLDA received a letter from the school district's attorney. The letter stated that the 2005 memorandum in question had been drafted by the Illinois State Department of Education's Assistant Superintendent as "interim guidance" for Illinois public schools. The memorandum defined eligibility based on whether the student was enrolled in a "state recognized private school."
The memorandum was inaccurate and contradicted federal law.
The issue of whether home-educated students are eligible to receive special education services had already been acknowledged at a federal level. In federal reports regarding issues surrounding those eligible for IDEA, the Federal Director of Special Education in a letter procured by HSLDA stated:
"The determination of whether a home education arrangement constitutes private school placement must be made on the basis of state law. Thus, if home education constitutes enrollment in a private school under state law, then the requirements of Regs. 300.403 and 300.452 apply when deciding whether to provide special education or related services to a child with disabilities who is being educated at home."
The above report makes it crystal clear that if the state recognizes a home education program as a private school in that state, then those home-educated students are eligible for the services.
HSLDA Attorney Chris Klicka sent a letter to the author of the 2005 memorandum explaining that the highest court in Illinois defines home education programs as private schools, and therefore, in Illinois, home-educated students are eligible for special education services. The Illinois Supreme Court held that no accreditation is necessary. Klicka's letter also specifically demanded a response within 10 days and that the memorandum be corrected.
Within the requested time, Klicka received a phone call from the General Counsel and a special director Illinois Department of Education. Somewhat apologetic, they admitted their error, assuring him that they will revise their memorandum soon by removing the offensive language requiring a private school to be "state recognized" before its students could be eligible for special education services.
Illinois special education home school students will once again be able to receive needed educational services.
SECTION 14
FEDERAL RULING UPHOLDS THAT GOVERNMENT OFFICIALS CAN’T ACT IN THE CHILD BEST INTEREST WHEN IT COMES TO SPECIAL-NEEDS CHILDREN.
Under the Individuals with Disabilities in Education Act ("IDEA") it DOES NOT compell the state or boards of educations to test every child, it’s just a funding statute. The only thing the state or board of education in this country can do is OFFER the testing and services and make it available to home school students ... that's it. Parents have the absolute choice and legal option to refuse any testing or services
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that the state has to offer especially if it is funded. Parents can refuse federally funded services and seek out private educators and testing when it comes to the child educational needs..
The boards of educations in the state of Connecticut and the other 49 states have misapplied and abused IDEA and harmed children and families by forcing home school children to be tested when they are not required to do so and acting outside the statute. When parents refused testing because board of educations lack jurisdiction, they would call child protection and file a false report. Follow the money trail, the boards of educations get funding by every label they slap on a child, just like child protection.
In short, when a parent desides to home school or private school their children, the state, DCF and the school system lacks all jurisdition and control of the child because the parent acts in the best interest of the child not the government. The state can't act in the child's best interest without the requsite proof of parental unfitness. A child's educational needs has nothing to do with serious abuse and neglect and the courts and CPS/DCF lack jurisdiction.
This is the big lie that child protection is perpetrating across this country. The services that are all federally funded that CPS/DCF gets paid for are to be offered to parents, not forced down parents throats. Parents ultimately make the decision on what services, if any, parents feel what is in the best interest of the child and the entire family, not child protection and their untrained government workers. CPS/DCF workers think they are doing something great when in reality they are harming the most inocent among us. Only parents know what's in the best interest of their child, not the court or the state.
The following ruling upholds the parent's right to reject and refuse services from CPS/DCF, the board of education or any other agency. Thomas M. Dutkiewicz
Eighth Circuit Appeals Court Rules in Favor of Homeschoolers, March 2, 2006
A federal appeals court ruled unanimously in favor of Home School Legal Defense Association ("HSLDA") members Ron and Joann Fitzgerald on Wednesday and held that school districts may not force homeschooled children to submit to special-needs evaluations against their parents' wishes.
The United States Court of Appeals for the Eighth Circuit, which includes Missouri where the Fitzgeralds reside, held that the federal Individuals with Disabilities in Education Act ("IDEA") does not give public schools jurisdiction over homeschooled children who may have special needs. "Where a home-schooled child's parents refuse consent [for an evaluation], privately educate the child, and expressly waive all benefits under the IDEA, an evaluation would have no purpose. . . . [A] district may not force an evaluation under the circumstances in this case."
As reported in the January/February 2005 Court Report, HSLDA has been defending the Fitzgerald family's right to privacy for almost three years. The Fitzgeralds had withdrawn their son, Sean*, from public school after years of disagreement with the school over the provision of special education services. When they started homeschooling Sean, they had his special needs privately evaluated, and they decided to obtain private special education services for him.
The school district, however, demanded that the parents permit a public school evaluation for special needs, even though it admitted that it could not force the family to accept any actual services from the public school. An administrative panel agreed with the school district and ordered the family to submit to the evaluation. HSLDA appealed to the federal district court, which agreed with the school district. The Eighth Circuit reversed these decisions.
"This victory is going to help homeschooling families all over the country," said HSLDA litigation counsel James R. Mason III, who argued the case in the Eighth Circuit. "The court recognized that homeschooling parents may provide for the special needs of their children without undue interference from meddling school officials."
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HSLDA is representing another member family in New York where a public school district seeks to evaluate their child.
* Name changed to protect family's privacy.
SECTION
February 2, 2006
Homeschool Graduates Enlisting in the Military Protected by New Law
There is more good news for homeschool graduates seeking to enlist in the Armed Services.
An amendment to Section 522 of Senate Bill 1042, requires the Secretary of Defense to create a uniform policy for recruiting homeschool graduates for all four branches of the Armed Services. Furthermore, the new law makes it clear homeschoolers do not have to obtain a GED which carries the stigma of being a dropout. The bill was signed into law by President Bush last January.
Although there is no discrimination currently being practiced through any formal policies in the military against homeschool graduates, the new law will virtually eliminate the concern that discrimination could happen in the future. The new law specifies that the uniform policy is for the purposes of recruitment and enlistment of homeschoolers. Therefore, the new policy will not discriminate against homeschoolers because the goal is recruitment and not exclusion.
Homeschool graduates who desire a career with any of the four Armed Services are currently designated as "preferred enlistees." This means that homeschool graduates who enlist in the military will be treated as if they are Tier I candidates even though their formal status will remain Tier II. Therefore, homeschoolers will receive the same educational benefits, cash bonuses, and available positions in the Armed Services that they would receive if they were Tier I candidates.
HSLDA has been working with the military for several years to remove discriminatory barriers for homeschool graduates. Beginning in 1998, HSLDA secured a pilot project that lasted six years where homeschoolers were experimentally categorized as Tier I candidates, which is the same status as high school graduates from public schools.
Although the program continued until October, 2004, it was not renewed. HSLDA contacted the Administration and explained our situation. A meeting was arranged for us with the Assistant Secretary of Defense and a few other Pentagon officials a month later.
As a result of the meeting in January 2005, the Department of Defense issued a letter stating that homeschoolers were considered "preferred enlistees" and that there were no "practical limits" to the numbers of homeschoolers who could obtain entrance into the Armed Services. At that point, the Department of Defense, at the highest levels, began working with HSLDA to resolve every problem at the local recruitment level with homeschool graduates. Over time, as the new policy is implemented, local recruiters will be able to properly advise homeschoolers.
As a result of the 1998-2004 pilot project, and the January 2005 directive from the Department of Defense, thousands of homeschoolers are serving our country faithfully in the Armed Services.
SECTION 15
SURREPTITIOUSLY DRUG TESTING OF PREGNANT WOMEN FOR THE ALLEDGED BENEFIT OF THEIR FETUSES ARE NOT ONLY MISGUIDED
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AS A MATTER OF POLICY, THEY ARE UNLAWFUL.
Ferguson v. City of Charleston: Social and Legal Contexts (11/1/2000)
Policing Pregnancy: Ferguson v. City of Charleston
On October 4, 2000, the U.S. Supreme Court heard arguments in Ferguson v. City of Charleston, a case considering the constitutionality of a governmental policy of surreptitiously drug testing pregnant women in a South Carolina hospital, which then reported positive cocaine results to law enforcement officers. Though the legal question is narrow -- whether the Fourth Amendment permits the state, acting without either a warrant or individualized suspicion, to drug test pregnant women who seek prenatal care in a public hospital -- the case points to broader issues concerning the right of pregnant women to be treated as fully autonomous under the Constitution.
In the past several years, the state has increasingly intruded into the lives of pregnant women, policing their conduct in the name of protecting fetuses. Pregnant women have been forced to undergo unwanted cesareans; they've been ordered to have their cervixes sewn up to prevent miscarriage; they've been incarcerated for consuming alcohol; and they've been detained, as in the case of one young woman, simply because she "lack[ed] motivation or [the] ability to seek medical care" (V. Kolder, J. Gallagher, and M. Parsons, "Court-Ordered Obstetrical Interventions," New England Journal of Medicine (1987) 316, No. 19: 1195).
Fortunately, in many of these cases the invasive state actions have been rescinded by higher officials or rejected by the courts. Unfortunately, many of these decisions came too late to prevent unwarranted suffering and to protect women from being deprived of their rights.
When the Supreme Court rules in Ferguson we are hopeful that it will recognize that the Constitution protects pregnant women on an equal basis with all free adults, making it clear that pregnant women are not wards of the state.
The Facts in Ferguson
In 1989, an interagency group consisting of representatives from the City of Charleston Police Department, the Charleston County Solicitor's Office (the prosecutor), and the Medical University of South Carolina (MUSC, a public hospital in Charleston) developed and implemented the Interagency Policy on Cocaine Abuse in Pregnancy. Under the policy, MUSC subjected pregnant women to warrantless searches if they met any one of several criteria, including no or minimal prenatal care; unexplained preterm labor; birth defects or poor fetal growth; separation of the placenta from the uterine wall; a history of drug or alcohol abuse; or intrauterine fetal death.
In the early months of the program, women were immediately arrested after they or their newborns tested positive for cocaine. One woman spent the last three weeks of her pregnancy in jail. During this time she received prenatal care in handcuffs and shackles. Authorities arrested another woman soon after she gave birth; still bleeding and dressed in only a hospital gown, she was handcuffed and taken to the city jail (Petitioners' brief in Ferguson, 6, 7).
In 1990, the prosecutor's office added an "amnesty" component to the policy: women testing positive for cocaine were given the "option" of drug treatment to avoid arrest. If they failed to follow through on treatment or if they tested positive a second time, however, they were arrested.
In October 1994, after the Civil Rights Division of the U.S. Department of Health and Human Services began investigating whether the hospital in carrying out the policy had violated the civil rights of its
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African American patients, MUSC dropped its program. In total, 30 women were arrested under the policy; 29 were African American.
Arguments Against Policing Pregnancy
Punishing women who use drugs during pregnancy deters them from seeking critical prenatal care and entering drug treatment programs. If the goal is to protect fetuses and to help women become drug-free mothers, punitive measures have the opposite effect.
Recent studies done in hospitals and health-care centers in San Diego, Chicago, and Detroit, for example, indicate that when pregnant women fear that they will be prosecuted for their drug use, they do not seek prenatal care and will even choose to deliver their babies at home (D. Roberts, Killing the Black Body, NY: Pantheon Books (1997), 192). Indeed, MUSC's policy appears to have driven drug-using women out of the health-care system in that region, isolating them in their drug use rather than helping them have healthy pregnancies and healthy babies (L.G. Tribble et al., Analysis of a Hospital Maternal Cocaine Testing Policy: In Association with Prenatal Care Utilization Patterns, 1993).
The punitive approach to drug use during pregnancy also stops women from participating in drug-treatment programs. In another high-profile South Carolina case, involving the Easely Baptist Medical Center, a young woman, Cornelia Whitner, was arrested for "endangering the life of her unborn child" and sentenced to eight years in prison after she gave birth to a healthy baby boy whose urine, nonetheless, tested positive for cocaine. Following the publicity surrounding this case, two drug-treatment programs in Columbia, SC, reported a precipitous drop in the number of pregnant women entering their facilities. One clinic found that between 1996 and 1997, it admitted 80 percent fewer pregnant women than it had a year earlier; the other saw 54 percent fewer pregnant women during the same time period (L. Paltrow, "Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, Albany Law Review (1999) 62, No. 999: n.147).
Recognizing that criminalizing maternal drug use is bad medicine and bad public policy, with potentially tragic consequences for pregnant women, their fetuses, and their families, numerous medical and public-health organizations have denounced the practice. These include the American Medical Association, the American Academy of Pediatrics, the Association of Reproductive Health Professionals, the American Medical Women's Association, the American College of Obstetricians and Gynecologists, the American Public Health Association, the American Nurses Association, the American Society on Addiction Medicine, the National Council on Alcoholism and Drug Dependence, the National Association of Social Workers, and the March of Dimes, among other prominent groups.
Pregnant women enjoy the same constitutional rights as other competent adults.
Pregnant women have as great a right to privacy, bodily integrity, and autonomy as other free adults. This means that the state cannot subject women to warrantless, suspicionless, nonconsensual searches just because they are pregnant. MUSC's drug testing policy did just that.
Imagine if the tides were turned, and the state began testing men of child-bearing age for illegal drug use because they did not have annual physicals or had a history of substance abuse. Imagine further that officials arrest and take into custody in the name of their unborn children those men with positive toxicology reports. Given that recent studies have linked male drug use to sperm abnormalities that can cause birth defects, this is not such a far-fetched scenario (I. Pollard, "Substance Abuse and Parenthood: Biological Mechanisms-Bioethical Challenges," Women and Health (2000) 30, No. 3: 1-24). It is doubtful, however, that law enforcement working in tandem with medical providers would consider implementing such a practice. And surely if they did, the courts would rightfully hold such policies unconstitutional. The rules, however, seem to change when it comes to pregnant women, though the Constitution does not.
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It is hard to imagine subjecting fathers or soon-to-be fathers to the same level of state interference in their private lives as we do pregnant women. We do not strip fathers of their constitutional rights, even when their behavior may have deleterious effects on their offspring. We do not, for example, arrest fathers and remove them from their families if they smoke two packs of cigarettes a day around their children and their pregnant wives, though there is ample evidence that exposure -- even prenatal exposure -- to second-hand smoke can have serious long-term health effects.
Pregnant women, on the other hand, have been arrested or threatened with arrest for consuming not just illegal substances, such as cocaine, but legal substances as well. There are at least two recent incidents of state authorities arresting women for consuming alcohol during pregnancy: one in South Carolina, the other in Wyoming (Paltrow, 1042; R. Roth, Making Women Pay: The Hidden Costs of Fetal Rights, Ithaca, NY: Cornell University Press (2000), 150). And in case the message to pregnant women was not clear, officials in the South Carolina Department of Alcohol and Other Drug Abuse Services recently distributed literature advising pregnant women that "it's . . . a crime in South Carolina" to "smoke, drink . . . or engage in other activities that risk harming" the fetus. Though in May of 2000, the state attorney general hastily recalled the pamphlet and issued a statement that only pregnant women who use illegal drugs would be prosecuted, the official responsible for redrafting the recalled material has indicated that he "has not decided whether to make reference to nicotine or alcohol abuse as potentially criminal" in the rewritten document (American Civil Liberties Union amicus brief in Ferguson, 18).
These and other state policies aimed at policing pregnant women assume that pregnant women are different from other competent adults, that in becoming pregnant, women somehow become wards of the state or forfeit their constitutional rights. The Constitution, however, protects all of us, pregnant women included.
Although drug use crosses all racial and class lines, poor women of color have overwhelmingly been the ones targeted and arrested for using drugs while pregnant.
MUSC's own records indicate that among its pregnant patients equal percentages of white and African American women consumed illegal drugs (Roberts, 172). However, of the 30 women arrested under the interagency drug-testing policy, 29 were African American (Petitioners' brief in Ferguson, 13). These numbers are in line with national statistics. In a 1990 study published in the New England Journal of Medicine, for example, researchers found that 15.4 percent of white women and 14.1 percent of African American women used drugs during pregnancy. African American women, however, were 10 times more likely than white women to be reported to authorities (I. Chasnoff, H. Landress, and M. Barrett, "Prevalence of Illicit Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," New England Journal of Medicine (1990) 322, No. 17: 1202-6).
There are many factors contributing to these discrepancies, with race and class prejudices playing a major role in all of them. Because poor women of color are far more likely to give birth at public institutions and have more contact with state agencies, their drug use is far more likely than that of middle-class white women to be detected and reported.
In addition, a number of the criteria used to trigger testing under the MUSC policy had little to do with drug use per se and had much more to do with poverty. For example, the hospital tested women who received little or no prenatal care. Yet, with fewer resources and less connection to the medical community than middle-class women, poor women are more likely to delay seeking prenatal care until relatively late in pregnancy or to obtain no prenatal care at all. Inadequate prenatal care can, in turn, result in unexplained preterm labor, birth defects or poor fetal growth, separation of the placenta from the uterine wall, or intrauterine fetal death, all conditions that the MUSC policy also identified as grounds for testing pregnant patients.
Moreover, a drug-testing policy that targets crack cocaine, a drug more prevalent among inner-city communities of color, rather than other substances like methamphetamines, a drug used more often by white rural and suburban women, will unfairly result in the arrests of women of color (Roberts, 177). The singling out of cocaine is not justified on medical grounds. Studies on drug use during pregnancy 16
consistently show that the abuse of other substances, both legal and illegal, can harm fetal development as much as or more than cocaine (American Medical Association amicus brief in Ferguson, 15, 16; Public Health Association et al., amicus brief in Ferguson, 29).
In practice, therefore, MUSC's policy was a form of racial profiling. By both design and implementation, the policy led inevitably to the identification and punishment of drug use by pregnant, low-income women of color, leaving other pregnant users free of the threat of warrantless, suspicionless, nonconsensual drug testing.
Punishing pregnant women for drug use sets the state on a slippery slope. What's to stop the state from arresting women for drinking alcohol or smoking cigarettes while pregnant? Where will we draw the line?
In recent years, pregnant women have been forced to undergo an array of medical procedures without their consent and have been imprisoned for alcohol use, unruliness, and mental illness, all in the name of protecting fetal health. Below are a few examples:
• In Massachusetts, a lower court ordered a pregnant woman's cervix sewn up against her will to prevent a possible miscarriage. The woman was ultimately spared from undergoing the procedure by the Supreme Court of Massachusetts, which vacated the lower court's order because it had not adequately considered the woman's constitutional right to privacy (See Taft v. Taft, 446 N.E. 2d 395, 396, 397 (Mass. 1983)).
• In Illinois, a pregnant woman was advised that, because of an insufficient flow of oxygen to the fetus, the fetus could be born dead or severely retarded if she did not immediately undergo a cesarean. When the woman opposed the surgery on religious grounds, the office of the State's Attorney sought a court order compelling her to submit to the cesarean. Rejecting the state's argument, the appellate court held that a woman's "right to refuse invasive medical treatment, derived from her rights to privacy, bodily integrity, and religious liberty, is not diminished during pregnancy." The woman ultimately gave birth by vaginal delivery to a normal, healthy -- though somewhat underweight -- baby boy (In re Baby Doe, 632 N.E.2d 332, 329 (Ill. App. Ct. 1994)).
• In Washington, DC, a young pregnant woman, severely ill with cancer, several times mouthed the words "I don't want it done" when told that a court had ordered her to undergo a cesarean and that she likely would not survive the operation. The cesarean was nonetheless performed; the baby died within a few hours of birth; and the woman died two days later. An appellate court ultimately reversed the order that authorized the involuntary surgery, but not in time to help the woman or her family (In re A.C., 573 A.2d 1235, 1241 (D.C. 1990)).
• In Wyoming, officials arrested a pregnant woman because of alcohol use and charged her with felony child abuse. She spent time in jail before a judge dismissed the charge (Roth, 150).
• In Wisconsin, officials held a pregnant sixteen-year-old in secure detention for the sake of fetal development because the young woman tended "to be on the run" and to "lack motivation or ability to seek medical care" ( Kolder, et al., 1192, 1195).
• In California, a deputy district attorney, concerned about a pregnant woman's mental state but lacking sufficient evidence to have her committed for psychiatric treatment, instead obtained a juvenile court order declaring her fetus a dependent child of the state and detaining the woman pending birth. An appellate court ultimately held that the district attorney had impermissibly manipulated the juvenile laws to detain the pregnant woman and released her when she was approximately seven months pregnant (In re Steven S., 126 Cal. App. 3d 23, 27, 30-31 (Cal. Ct. App. 1981)).
17
State actions to police pregnant women for the alleged benefit of their fetuses are not only misguided as a matter of policy, they are unlawful.
In Ferguson, the question is whether the Fourth Amendment of the Constitution permits a public hospital to subject women to drug testing, the results of which are reported to the police, without a warrant, without individualized suspicion, and without the woman's consent. The answer is no.
The government may dispense with the protections normally demanded under the Fourth Amendment prior to a search -- securing a warrant or having an individualized suspicion of criminal conduct -- only if the search falls within a "special needs" exception. To satisfy that exception, the governmental policy must be unrelated to law enforcement, and the person being searched must have a diminished expectation of privacy.
In this case, however, law enforcement officials were intimately involved in creating and implementing MUSC's policy: women who tested positive for cocaine were arrested and prosecuted, or threatened with these consequences, in case after case.
Moreover, the notion that women have a diminished expectation of privacy when they are pregnant is at odds with our strong constitutional tradition of respecting pregnant women's privacy rights. Nothing in U.S. law permits the state to step in to ensure that women "behave" themselves during pregnancy. The Constitution does not permit such an assault on women's privacy and equality.
Though the question before the U.S. Supreme Court in Ferguson concerns the Fourth Amendment, the restraints imposed on pregnant women in this and other contexts, all in the purported interest of the fetus, raise additional legal concerns. While both men and women engage in conduct that may be harmful to a fetus, only women -- by virtue of their pregnancies -- are targeted for punitive measures. By singling out women in this manner, the state discriminates against them, potentially violating both the Equal Protection Clause of the Fourteenth Amendment of the Constitution and various civil rights laws. By the same token, policies, like MUSC's, that target women of color may violate constitutional and statutory prohibitions against race discrimination. Finally, efforts by the state to protect the fetus by confining women -- whether to a hospital or jail -- or by compelling medical treatment -- whether the woman is strapped to a gurney for a forced cesarean section, tied into stirrups for a pelvic exam, or involuntarily hospitalized during delivery -- violate the guarantee of liberty of the Due Process Clause of the Federal Constitution.
SECTION 16
CENTRAL REGISTRY RULED UNCONSTITUTIONAL
SEATTLE POST-INTELLIGENCER
http://seattlepi.nwsource.com/national/1110AP_Child_Abuse_Registry.ht Thursday, November 3, 2005 · Last updated 6:23 p.m. PT
Court rejects Mo. child abuse registry By DAVID A. LIEB ASSOCIATED PRESS WRITER JEFFERSON CITY, Mo. -- A judge declared Missouri's child abuse registry unconstitutional Thursday, ruling that suspected offenders deserved a court-like hearing before being listed. The registry is kept secret from the general public, but is used by child care providers and others to screen
18
current and potential employees. Circuit Judge Richard Callahan concluded that people's reputations and professional careers were damaged when their names were placed in the child abuse registry before a due-process hearing. The Department of Social Services said it was likely to appeal the case to the Missouri Supreme Court. Callahan suspended the effect of his judgment pending an appeal. Callahan's ruling stemmed from a 2002 instance of alleged sexual abuse at the Faith House child care facility in St. Louis. Although they were not accused of abuse themselves, founder Mildred Jamison and nurse Betty Dotson were listed on the child abuse registry based on probable cause of neglect. The decision was upheld by the Department of Social Services' Child Abuse and Neglect Review Board, which holds only informal hearings, not ones following judicial procedures. Decisions by the review panel can be appealed to a judge, but the listing occurred before that happened. Callahan said it violated constitutional due-process rights to list people on the registry prior to holding a hearing before a neutral decision-maker in which witnesses are under oath, can be cross-examined and can be compelled to testify. He also said the hearings must use a tougher-to-prove criterion of "preponderance of the evidence" instead of "probable cause" - a change already made by a 2004 law. Jamison said Callahan's ruling was "wonderful, because many people don't know what the due process is. Their names go on, and they don't know about the appeals process or any of that." Dotson could not be reached for comment.
SECTION 17
SUPREME COURT RULED THAT GOVERNMENT OFFICIALS
MUST HAVE CONSENT OF BOTH PARENTS TO ENTER HOME
Police and DCF must have the consent of both parents or parties to enter a home. If one parent or party present denies entry, the police and DCF can't enter based on one consenting party but must yield to the non-consenting party. All occupants must give consent.
Thomas Dutkiewicz, President, Connecticut DCF Watch
High Court Trims Police Power to Search Homes
By Charles Lane Washington Post Staff Writer Thursday, March 23, 2006; A01
The Supreme Court narrowed police search powers yesterday, ruling that officers must have a warrant to look for evidence in a couple's home unless both partners present agree to let them in.
The 5 to 3 decision sparked a sharp exchange among the justices. The majority portrayed the decision as striking a blow for privacy rights and gender equality; dissenters said it could undermine police efforts against domestic violence, the victims of which are often women. 19
The ruling upholds a 2004 decision of the Georgia Supreme Court but still makes a significant change in the law nationwide, because most other lower federal and state courts had previously said that police could search with the consent of one of two adults living together.
Now, officers must first ask a judicial officer for a warrant in such cases. Quarrels between husbands and wives, or boyfriends and girlfriends, keep police busy around the country; in the District, almost half of the 39,000 violent crime calls officers answered in 2000 involved alleged domestic violence.
Justice David H. Souter's majority opinion said that the consent of one partner is not enough, because of "widely shared social expectations" that adults living together each have veto power over who can come into their shared living space. That makes a warrantless search based on only one partner's consent "unreasonable" and, therefore, unconstitutional.
"[T]here is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders," Souter wrote.
Chief Justice John G. Roberts Jr., writing his first dissent since joining the court in October, said the ruling's "cost" would be "great," especially in domestic dispute situations.
Roberts wrote that the ruling made no sense, given that the court had previously said it is constitutional for police to enter a house with the permission of one partner when the other is asleep or absent. Those rulings were unchanged by yesterday's decision.
Just by agreeing to live with someone else, a co-tenant has surrendered a good deal of the privacy that the Constitution's Fourth Amendment was designed to protect, Roberts noted.
"The majority's rule apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects," he wrote.
But Souter called that argument a "red herring," saying that the police would still have legal authority to enter homes where one partner was truly in danger.
"[T]his case has no bearing on the capacity of the police to protect domestic victims," Souter wrote. "No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists."
Souter said Roberts was guilty of declaring that "the centuries of special protection for the privacy of the home are over."
Souter's opinion was joined by Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen G. Breyer.
Breyer backed Souter with a separate opinion noting that his decisive fifth vote was cast on the understanding that Souter's analysis applies to cases such as this one, Georgia v. Randolph , No. 04-1607, in which the police were searching for evidence of a crime, rather than intervening in a violent dispute.
"[T]oday's decision will not adversely affect ordinary law enforcement practices," Breyer wrote.
The case arose out of a 2001 quarrel over child custody at the home of Janet and Scott Randolph in Americus, Ga. When officers arrived, she told them where they could find his cocaine. An officer asked Scott Randolph for permission to search the house. He refused, but Janet Randolph said yes -- and led them to a straw covered in cocaine crystals. Scott Randolph was arrested and indicted on charges of cocaine possession. 20
Georgia's Supreme Court ultimately ruled that the evidence should be suppressed because it was gathered without a warrant.
Justices Antonin Scalia and Clarence Thomas also dissented. Justice Samuel A. Alito Jr. did not vote because he was not yet on the court in November, when the case was argued.
The main battle between Souter and Roberts was accompanied by a skirmish between Stevens and Scalia, who used the case as an opportunity to make points in the court's long-running dispute over Scalia's view that the Constitution should be interpreted in light of the Framers' original intent.
In a brief concurring opinion, Stevens noted that the court's ruling was based on the concept that neither a husband nor a wife is "master" of the house in the eyes of the law. But at the time the Bill of Rights was drafted, he wrote, only a husband's consent or objection would have been taken into account.
Thus, he wrote, "this case illustrates why even the most dedicated adherent to an approach . . . that places primary reliance on a search for original understanding would recognize the relevance of changes in our society."
Scalia fired back at "Justice Stevens' 'attempted critique' of originalism,' " arguing that the court's ruling would probably not benefit women.
"Given the usual patterns of domestic violence," he noted, "how often can police be expected to encounterthe situation in which a man urges them to enter the home while a woman simultaneously demands they stay out?"
© 2006 The Washington Post Company
SECTION 18
HAIR FOLLICLE DRUG TESTING RULED UNCONSTITUTIONAL
DEBORAH M., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DARYL W., Real Party in Interest.
D045854
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
128 Cal. App. 4th 1181; 27 Cal. Rptr. 3d 757; 2005 Cal. App. LEXIS 681; 2005 Cal. Daily Op. Service 3617; 2005 Daily Journal DAR 4927
April 29, 2005, Filed
PRIOR HISTORY: [***1] Proceedings in prohibition after superior court order compelling hair follicle drug test. Superior Court of San Diego County, No. ED24070, Alan Clements, Judge.
PROCEDURAL POSTURE: Petitioner mother sought a writ of prohibition, challenging an order of respondent, the Superior Court of San Diego County (California), that compelled her to submit to a hair follicle drug test. The mother had sought to have her child support amended. In response, real party in interest father had filed an order to show cause seeking a change in custody and visitation, as well as an order for drug testing.
21
OVERVIEW: At issue was whether Cal. Fam. Code § 3041.5(a) permitted courts in custody and visitation proceedings to order drug testing by means of a hair follicle test of a parent whom the trial court had determined engaged in habitual, frequent, or continual illegal use of controlled substances. In granting a writ of prohibition, the court held that § 3041.5(a) required any court-ordered drug testing to conform to federal drug testing procedures and standards, and at present those federal standards only allowed for urine tests. The language of § 3041.5(a) and its statutory history demonstrated that only urine tests were allowed because the language "least intrusive method of testing" in § 3041.5(a) did not show an intent by the legislature to allow any type of available testing. To pass constitutional muster, the intrusiveness of the testing had to be weighed, along with an individual's legitimate expectation of privacy, the nature and immediacy of the government concern at issue, and the efficacy of drug testing in meeting that concern. Thus, the only reasonable interpretation of the clause was that if and when additional tests were permitted, the least intrusive method had to be used.
OUTCOME: The court issued a writ of prohibition, directing the trial court to vacate its order compelling a hair follicle drug test.
SECTION 19
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)

SECTION 20
WARRANTLESS ENTRY
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)
SECTION 21
DUE PROCESS
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)
23
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)
SECTION 22
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)
24
Defendant should’ve investigated further prior to ordering seizure of children based on information he had overheard. Hurlman v. Rice, (2nd Cir. 1991)
Police officer and social worker may not conduct a warrantless search or seizure in a suspected abuse case absent exigent circumstances. Defendants must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat. Searches and seizures in investigation of a child neglect or child abuse case at a home are governed by the same principles as other searches and seizures at a home. Good v. Dauphin County Social Services, (3rd Cir. 1989)
Defendants could not lawfully seize a child without a warrant or the existence of probable cause to believe the child was in imminent danger of harm. Where police were not informed of any abuse of the child prior to arriving at caretaker’s home and found no evidence of abuse while there, seizure of the child was not objectively reasonable and violated the clearly established Fourth Amendment rights of the child. Wooley v. City of Baton Rouge, (5th Cir. 2000)
For purposes of the Fourth Amendment, a “seizure” of a person is a situation in which a reasonable person would feel that he is not free to leave, and also either actually yields to a show of authority from police or social workers or is physically touched by police. Persons may not be “seized” without a court order or being placed under arrest. California v. Hodari, 499 U.S. 621 (1991)
Where the standard for a seizure or search is probable cause, then there must be particularized information with respect to a specific person. This requirement cannot be undercut or avoided simply by pointing to the fact that coincidentally there exists probable cause to arrest or to search or to seize another person or to search a place where the person may happen to be. Yabarra v. Illinois, 44 U.S. 85 (1979)
An officer who obtains a warrant through material false statements which result in an unconstitutional seizure may be held liable personally for his actions under § 1983. Aponte Matos v. Toledo Davilla, 1st Cir. 1998)
SECTION 23
IMMUNITY
Social workers (and other government employees) may be sued for deprivation of civil rights under 42 U.S.C. § 1983 if they are named in their ‘official and individual capacity’. Hafer v. Melo, (S.Ct. 1991)
State law cannot provide immunity from suit for Federal civil rights violations. State law providing immunity from suit for child abuse investigators has no application to suits under § 1983. Wallis v. Spencer, (9th Cir. 1999)
If the law was clearly established at the time the action occurred, a police officer is not entitled to assert the defense of qualified immunity based on good faith since a reasonably competent public official should know the law governing his or her conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
Immunity is defeated if the official took the complained of action with malicious intention to cause a deprivation of rights, or the official violated clearly established statutory or constitutional rights of which a reasonable person would have known. McCord v. Maggio, (5th Cir. 1991)
A defendant in a civil rights case is not entitled to any immunity if he or she gave false information either in support of an application for a search warrant or in presenting evidence to a
25
prosecutor on which the prosecutor based his or her charge against the plaintiff. Young v. Biggers, (5th Cir. 1991)
Police officer was not entitled to absolute immunity for her role in procurement of a court order placing a child in state custody where there was evidence officer spoke with the social worker prior to social worker’s conversation with the magistrate and there was evidence that described the collaborative worker of the two defendants in creating a “plan of action” to deal with the situation. Officer’s acts were investigative and involved more that merely carrying out a judicial order. Malik v. Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)
Individuals aren’t immune for the results of their official conduct simply because they were enforcing policies or orders. Where a statute authorizes official conduct which is patently violation of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity. Grossman v. City of Portland, (9th Cir. (1994)
Social workers were not entitled to absolute immunity for pleadings filed to obtain a pick-up order for temporary custody prior to formal petition being filed. Social workers were not entitled to absolute immunity where department policy was for social workers to report findings of neglect or abuse to other authorities for further investigation or initiation of court proceedings. Social workers investigating claims of child abuse are entitled only to qualified immunity. Assisting in the use of information known to be false to further an investigation is not subject to absolute immunity. Social workers are not entitled to qualified immunity on claims they deceived judicial officers in obtaining a custody order or deliberately or recklessly incorporated known falsehoods into their reports, criminal complaints and applications. Use of information known to be false is not reasonable, and acts of deliberate falsity or reckless disregard of the truth are not entitled to qualified immunity. No qualified immunity is available for incorporating allegations into the report or application where official had no reasonable basis to assume the allegations were true at the time the document was prepared. Snell v. Tunnel, (10 Cir. 1990)
Police officer is not entitled to absolute immunity, only qualified immunity, to claim that he caused plaintiff to be unlawfully arrested by presenting judge with an affidavit that failed to establish probable cause. Malley v. Briggs, S.Ct. 1986)
Defendants were not entitled to prosecutorial immunity where complaint was based on failure to investigate, detaining minor child, and an inordinate delay in filing court proceedings, because such actions did not aid in the presentation of a case to the juvenile court. Whisman v. Rinehart, (8th Cir. 1997)
Case worker who intentionally or recklessly withheld potentially exculpatory information from an adjudicated delinquent or from the court itself was not entitled to qualified immunity. Germany v. Vance, (1st Cir. 1989)
Defendant was not entitled to qualified immunity or summary judgment because he should’ve investigated further prior to ordering seizure of children based on information he had overheard. Hurlman v. Rice, (2nd Cir. 1991)
Defendants were not entitled to qualified immunity for conducting warrantless search of home during a child abuse investigation where exigent circumstances were not present. Good v. Dauphin County Social Services, (3rd Cir 1989)
Social workers were not entitled to absolute immunity where no court order commanded them to place plaintiff with particular foster caregivers. K.H through Murphy v. Morgan, (7th Cir. 1991)

SECTION 20
WARRANTLESS ENTRY
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)
SECTION 21
DUE PROCESS
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)
23
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)
SECTION 22
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)
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Defendant should’ve investigated further prior to ordering seizure of children based on information he had overheard. Hurlman v. Rice, (2nd Cir. 1991)
Police officer and social worker may not conduct a warrantless search or seizure in a suspected abuse case absent exigent circumstances. Defendants must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat. Searches and seizures in investigation of a child neglect or child abuse case at a home are governed by the same principles as other searches and seizures at a home. Good v. Dauphin County Social Services, (3rd Cir. 1989)
Defendants could not lawfully seize a child without a warrant or the existence of probable cause to believe the child was in imminent danger of harm. Where police were not informed of any abuse of the child prior to arriving at caretaker’s home and found no evidence of abuse while there, seizure of the child was not objectively reasonable and violated the clearly established Fourth Amendment rights of the child. Wooley v. City of Baton Rouge, (5th Cir. 2000)
For purposes of the Fourth Amendment, a “seizure” of a person is a situation in which a reasonable person would feel that he is not free to leave, and also either actually yields to a show of authority from police or social workers or is physically touched by police. Persons may not be “seized” without a court order or being placed under arrest. California v. Hodari, 499 U.S. 621 (1991)
Where the standard for a seizure or search is probable cause, then there must be particularized information with respect to a specific person. This requirement cannot be undercut or avoided simply by pointing to the fact that coincidentally there exists probable cause to arrest or to search or to seize another person or to search a place where the person may happen to be. Yabarra v. Illinois, 44 U.S. 85 (1979)
An officer who obtains a warrant through material false statements which result in an unconstitutional seizure may be held liable personally for his actions under § 1983. Aponte Matos v. Toledo Davilla, 1st Cir. 1998)
SECTION 23
IMMUNITY
Social workers (and other government employees) may be sued for deprivation of civil rights under 42 U.S.C. § 1983 if they are named in their ‘official and individual capacity’. Hafer v. Melo, (S.Ct. 1991)
State law cannot provide immunity from suit for Federal civil rights violations. State law providing immunity from suit for child abuse investigators has no application to suits under § 1983. Wallis v. Spencer, (9th Cir. 1999)
If the law was clearly established at the time the action occurred, a police officer is not entitled to assert the defense of qualified immunity based on good faith since a reasonably competent public official should know the law governing his or her conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
Immunity is defeated if the official took the complained of action with malicious intention to cause a deprivation of rights, or the official violated clearly established statutory or constitutional rights of which a reasonable person would have known. McCord v. Maggio, (5th Cir. 1991)
A defendant in a civil rights case is not entitled to any immunity if he or she gave false information either in support of an application for a search warrant or in presenting evidence to a
25
prosecutor on which the prosecutor based his or her charge against the plaintiff. Young v. Biggers, (5th Cir. 1991)
Police officer was not entitled to absolute immunity for her role in procurement of a court order placing a child in state custody where there was evidence officer spoke with the social worker prior to social worker’s conversation with the magistrate and there was evidence that described the collaborative worker of the two defendants in creating a “plan of action” to deal with the situation. Officer’s acts were investigative and involved more that merely carrying out a judicial order. Malik v. Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)
Individuals aren’t immune for the results of their official conduct simply because they were enforcing policies or orders. Where a statute authorizes official conduct which is patently violation of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity. Grossman v. City of Portland, (9th Cir. (1994)
Social workers were not entitled to absolute immunity for pleadings filed to obtain a pick-up order for temporary custody prior to formal petition being filed. Social workers were not entitled to absolute immunity where department policy was for social workers to report findings of neglect or abuse to other authorities for further investigation or initiation of court proceedings. Social workers investigating claims of child abuse are entitled only to qualified immunity. Assisting in the use of information known to be false to further an investigation is not subject to absolute immunity. Social workers are not entitled to qualified immunity on claims they deceived judicial officers in obtaining a custody order or deliberately or recklessly incorporated known falsehoods into their reports, criminal complaints and applications. Use of information known to be false is not reasonable, and acts of deliberate falsity or reckless disregard of the truth are not entitled to qualified immunity. No qualified immunity is available for incorporating allegations into the report or application where official had no reasonable basis to assume the allegations were true at the time the document was prepared. Snell v. Tunnel, (10 Cir. 1990)
Police officer is not entitled to absolute immunity, only qualified immunity, to claim that he caused plaintiff to be unlawfully arrested by presenting judge with an affidavit that failed to establish probable cause. Malley v. Briggs, S.Ct. 1986)
Defendants were not entitled to prosecutorial immunity where complaint was based on failure to investigate, detaining minor child, and an inordinate delay in filing court proceedings, because such actions did not aid in the presentation of a case to the juvenile court. Whisman v. Rinehart, (8th Cir. 1997)
Case worker who intentionally or recklessly withheld potentially exculpatory information from an adjudicated delinquent or from the court itself was not entitled to qualified immunity. Germany v. Vance, (1st Cir. 1989)
Defendant was not entitled to qualified immunity or summary judgment because he should’ve investigated further prior to ordering seizure of children based on information he had overheard. Hurlman v. Rice, (2nd Cir. 1991)
Defendants were not entitled to qualified immunity for conducting warrantless search of home during a child abuse investigation where exigent circumstances were not present. Good v. Dauphin County Social Services, (3rd Cir 1989)
Social workers were not entitled to absolute immunity where no court order commanded them to place plaintiff with particular foster caregivers. K.H through Murphy v. Morgan, (7th Cir. 1991)
Parham, 442 US, at 603, [other citations omitted]. We have long held that there exists a “private realm of family life which the state cannot enter.” Prince v Massachusetts ...
A natural parent who has demonstrated sufficient commitment to his or her children is thereafter entitled to raise the children free from undue state interference. As Justice White explained in his opinion of the Court in Stanley v Illinois, 405 US 645 (1972) [other cites omitted]:
“The court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v Nebraska, ... ‘basic civil rights of man,’ Skinner v Oklahoma, 316 US 535, 541 (1942), and ‘[r]ights far more precious ... than property rights,’ May v Anderson, 345 US 528, 533 (1953) ... The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v Nebraska, supra.” [emphasis supplied]
The Court leaves no room for doubt as to the importance and protection of the rights of parents.
H.L. v. Matheson, 450 US 398, 410 (1991)
In this case, the Supreme Court recognized the parents’ right to know about their child seeking an abortion. The Court stated: In addition, constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.
Ginsberg v. New York, 390 US 629 (1968) ... We have recognized on numerous occasions that the relationship between the parent and the child is Constitutionally protected (Wisconsin v. Yoder, Stanley v. Illinois, Meyer v. Nebraska) ... “It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom includes preparation for obligations the state can neither supply, nor hinder.” [Quoting Prince v. Massachusetts, 321 US 158, 166, (1944)]. See also Parham v. J.R.; Pierce v. Society of Sisters ... We have recognized that parents have an important “guiding role” to play in the upbringing of their children, Bellotti II, 443 US 633-639 ... which presumptively includes counseling them on important decisions.
This Court clearly upholds the parent’s right to know in the area of minor children making medical decisions.
Vernonia School District 47J v. Acton, 132 L.Ed.2d 564, 115 S.Ct. 2386 (1995)
In Vernonia the Court strengthened parental rights by approaching the issue from a different point of view. They reasoned that children do not have many of the rights accorded citizens, and in lack thereof, parents and guardians possess and exercise those rights and authorities in the child’s best interest:
Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination—including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. See Am Jur 2d, Parent and Child § 10 (1987).
Troxel v. Granville, 530 U.S. 57 (2000)
In this case, the United States Supreme Court issued a landmark opinion on parental liberty. The case involved a Washington State statute which provided that a "court may order visitation rights for any person when visitation may serve the best interests of the child, whether or not there has been any change of circumstances." Wash. Rev. Code § 26.10.160(3). The U.S. Supreme Court ruled that the Washington statute "unconstitutionally interferes with the fundamental right of parents to rear their children." The Court went on to examine its treatment of parental rights in previous cases: In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children…Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) 32
("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and this case clearly upholds parental rights. In essence, this decision means that the government may not infringe parents' right to direct the education and upbringing of their children unless it can show that it is using the least restrictive means to achieve a compelling governmental interest.
Crawford v. Washington No. 02-9410. Argued November 10, 2003
Decided March 8, 2004
certiorari to the Supreme Court of Washington
Petitioner was tried for assault and attempted murder. The State sought to introduce a recorded statement that petitioner's wife Sylvia had made during police interrogation, as evidence that the stabbing was not in self-defense. Sylvia did not testify at trial because of Washington's marital privilege. Petitioner argued that admitting the evidence would violate his Sixth Amendment right to be "confronted with the witnesses against him." Under Ohio v. Roberts, 448 U. S. 56, that right does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears "adequate 'indicia of reliability,' " a test met when the evidence either falls within a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness." Id., at 66. The trial court admitted the statement on the latter ground. The State Supreme Court upheld the conviction, deeming the statement reliable because it was nearly identical to, i.e., interlocked with, petitioner's own statement to the police, in that both were ambiguous as to whether the victim had drawn a weapon before petitioner assaulted him.
Held: The State's use of Sylvia's statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Pp. 5-33.
(a) The Confrontation Clause's text does not alone resolve this case, so this Court turns to the Clause's historical background. That history supports two principles. First, the principal evil at which the Clause was directed was the civil-law mode of criminal procedure, particularly the use of ex parte examinations as evidence against the accused. The Clause's primary object is testimonial hearsay, and interrogations by law enforcement officers fall squarely within that class. Second, the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination. English authorities and early state cases indicate that this was the common law at the time of the founding. And the "right ... to be confronted with the witnesses against him," Amdt. 6, is most naturally read as a reference to the common-law right of confrontation, admitting only those exceptions established at the time of the founding. See Mattox v. United States, 156 U. S. 237, 243. Pp. 5-21.
(b) This Court's decisions have generally remained faithful to the Confrontation Clause's original meaning. See, e.g., Mattox, supra. Pp. 21-23.
(c) However, the same cannot be said of the rationales of this Court's more recent decisions. See Roberts, supra, at 66. The Roberts test departs from historical principles because it admits statements consisting of ex parte testimony upon a mere reliability finding. Pp. 24-25.
(d) The Confrontation Clause commands that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. Roberts allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability, thus replacing the constitutionally prescribed method of assessing reliability with a wholly foreign one. Pp. 25-27.
(e) Roberts' framework is unpredictable. Whether a statement is deemed reliable depends on which factors a judge considers and how much weight he accords each of them. However, the unpardonable vice of the Roberts test is its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. Pp. 27-30.
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(f) The instant case is a self-contained demonstration of Roberts' unpredictable and inconsistent application. It also reveals Roberts' failure to interpret the Constitution in a way that secures its intended constraint on judicial discretion. The Constitution prescribes the procedure for determining the reliability of testimony in criminal trials, and this Court, no less than the state courts, lacks authority to replace it with one of its own devising. Pp. 30-32.
147 Wash. 2d 424, 54 P. 3d 656, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed an opinion concurring in the judgment, in which O'Connor, J., joined.
SECTION 25
THE CONSTITUTIONAL RIGHT TO BE A PARENT
Below are excerpts of case law from state appellate and federal district courts and up to the U.S. Supreme Court, all of which affirm, from one perspective or another, the absolute Constitutional right of parents to actually BE parents to their children.
The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).
The several states have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).
Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government. Elrod v. Burns, 96 S Ct 2673; 427 US 347, (1976).
Law and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).
Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982).
Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .
The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus, a state may not interfere with a parent's custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).
Parent's right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).
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Parent's interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent, who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584, (1980).
The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).
Father enjoys the right to associate with his children which is guaranteed by this amendment (First) as incorporated in Amendment 14, or which is embodied in the concept of "liberty" as that word is used in the Due Process Clause of the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973).
"Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in person. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody." May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).
A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.
The Court stressed, "the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection." A parent's interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).
Parent's rights have been recognized as being "essential to the orderly pursuit of happiness by free man." Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).
The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother and is no longer living with his child" could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255^Q56, (1978).
The U.S. Court of Appeals for the 9th Circuit (California) held that the parent-child relationship is a constitutionally protected liberty interest. (See; Declaration of Independence --life, liberty and the pursuit of happiness and the 14th Amendment of the United States Constitution -- No state can deprive any person of life, liberty or property without due process of law nor deny any person the equal protection of the laws.) Kelson v. Springfield, 767 F 2d 651; US Ct App 9th Cir, (1985).
The parent-child relationship is a liberty interest protected by the Due Process Clause of the 14th Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct App 7th Cir WI, (1985).
No bond is more precious and none should be more zealously protected by the law as the bond between parent and child." Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).
A parent's right to the preservation of his relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595^Q599; US Ct App (1983).
A parent's right to the custody of his or her children is an element of "liberty" guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App Div (1983).
Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S Ct 1879; 466 US 429.
Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored. The state cannot be permitted to classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440 US 268, (1979).
The United States Supreme Court held that the "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials" can no longer justify a statute that discriminates on the basis of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).
Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).
State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. Gross v. State of Illinois, 312 F 2d 257; (1963).
The Constitution also protects "the individual interest in avoiding disclosure of personal matters." Federal Courts (and State Courts), under Griswold can protect, under the "life, liberty and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).
The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution, Article 1 § 1. In re U.P., 648 P 2d 1364; Utah, (1982).
The rights of parents to parent-child relationships are recognized and upheld. Fantony v. Fantony, 122 A 2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982). State's power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of 14th Amendment...Fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights...Fourteenth Amendment encompasses and applied to states those preexisting fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights with it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The United States Supreme Court in a long line of decisions has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental "liberty" interests protected by the Constitution. Thus, the decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the "Constitutional underpinning of ... a recognition that the "liberty" protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom
36
of personal choice in certain matters of marriage and family life." The non-custodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 USC § 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F.2d 1328, (1981).
FROM THE COLORADO SUPREME COURT, 1910
In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and controlling question by which the court must be guided. This rule is based upon the theory that the state must perpetuate itself, and good citizenship is essential to that end. Though nature gives to parents the right to the custody of their own children, and such right is scarcely less sacred than the right to life and liberty, and is manifested in all animal life, yet among mankind the necessity for government has forced the recognition of the rule that the perpetuity of the state is the first consideration, and parental authority itself is subordinate to this supreme power. It is recognized that: 'The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated by its duty of protection, to consult the welfare, comfort and interest of such child in regulating its custody during the period of its minority.' Mercein v. People, 25 Wend. (N. Y.) 64, 103, 35 Am. Dec. 653; McKercher v. Green, 13 Colo. App. 271, 58 Pac. 406. But as government should never interfere with the natural rights of man, except only when it is essential for the good of society, the state recognizes, and enforces, the right which nature gives to parents [48 Colo. 466] to the custody of their own children, and