Friday, April 20, 2012
Parental Rights in Case Law
Protect your children — Know your rights!
If a government agency has involved itself into your family, you are not alone. Many families have been under attack in recent years. It is imperative that you know what rights you have under the protection of the law. Be sure to share these cases with your attorney.
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Parenting rights are God given. They are also protected by the First, Fifth, and Fourteenth Amendments to the Constitution.
In Troxel v. Granville, 99-138 [U.S. 06/05/2000 U.S. Supreme Court, November 1999], the Supreme Court ruled,
[49] The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, "guarantees more than fair process." Washington v. Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Id., at 720;
see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).
[50] The liberty interest at issue in this case -- the interest of parents in the care, custody, and control of their children -- is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own."
Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control."
Additional Information
Parental Rights and the Law
Case Law for Families
What Happened?
Law for Kids
Delaware Cases
Gatekeeping Authorities
Parental Rights (UK)
Parental Rights (HSLDA)
Termination of Parental Rights
We explained in Pierce that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id., at 166.
...There is a presumption that fit parents act in their children's best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents' ability to make the best decisions regarding their children, see, e.g., Reno v. Flores, 507 U. S. 292, 304.
...This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition"); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"); Parham v. J. R., 442 U. S. 584, 602 (1979) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course"); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"); Glucksberg, supra, at 720 ("In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the 'liberty' specially protected by the Due Process Clause includes the righ[t] ... to direct the education and upbringing of one's children" (citing Meyer and Pierce).
In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
Fourth Amendment Rights
Social Services Investigations: The Removal of Children From The Home
Copyright 2001 by The Rutherford Institute, P. O. Box 7482, Charlottesville, VA 22906-7482
Reference No.: E-09
Updated: 2/ 23/ 01
Parents in the United States are subject to increasing government involvement in their lives as they seek to properly raise their children. Administrative agencies of the government, which are created by statute to carry out broad directives such as maintaining the health and welfare of minor children, are given more and more discretion in performing those duties.
Each state, and the federal government, has a social service agency. These agencies have various titles such as Department of Social Services, or Department of Health and Human Services. Regardless of title, each has a division concerned with the protection and welfare of minor children. These are the agencies given the charge of investigating reports of child abuse.
All fifty states have laws which require an individual or organization to report actual or suspected abuse.1 Those who may be compelled to make such reports include schools, churches, day care facilities, and civic clubs such as Boy Scouts and Girl Scouts.2 With these reporting requirements in force, the child protective services division of a state’s social service agency is continually investigating citizens who have been reported under these laws.
1. When may a social worker or law enforcement officer enter a private home to investigate child abuse’
Social service agencies often receive anonymous reports of actual or suspected child abuse. These reports are based on another citizen’s observations, suspicions, and possibly the desire to avoid liability for failing to report abuse. Social service agencies then investigate such reports.
The Fourth Amendment guarantees citizens the right to be secure in their persons, houses, papers, and effect from unreasonable searches and seizures, and states that this right shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized.3
The courts are divided as to whether probable cause or a warrant are required before a social worker is justified in demanding entry into a residence. It is well established that physical entry into the home is the chief evil against which the . Fourth Amendment is directed.4 At the very core [of the Fourth Amendment and the personal rights it secures] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. 5 The Fourth Amendment’s prohibition of unreasonable searches establishes the cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment–subject only to a few specifically established and well-delineated exceptions.6
Case law has established that the state satisfies the reasonableness component for a full-scale search through a showing of probable cause. Probable cause exists when sufficient information warrants the belief that a crime has been committed, and evidence of that crime will be found in the place to be searched.7 Upon a showing of probable cause, a neutral magistrate may issue a warrant. Warrantless searches are only permissible under the well defined exceptions of consent to the search, 8 exigent circumstances, 9 and administrative searches.10 As one case notes, these principles should generally be applied to child abuse cases, as well as all other forms of warrantless invasions of a home:
It is true that the [prior] caselaw applying these principles specifically in the context of a warrantless invasion of a home based on an alleged need to prevent child abuse is relatively sparse. In this context, [defendants] suggest that they were entitled to assume until told otherwise by the courts that child abuse cases would not be controlled by the well established legal principles developed in the context of residential intrusions motivated by less pressing concerns. We reject this suggestion.
As we have noted . . . a prior case on all fours is not necessary; a public official may not manufacture immunity by inventing exceptions to well settled doctrines for which the case law provides no support. It evidences no lack of concern for the victims of child abuse or lack of respect for the problems associated with its prevention to observe that child abuse is not sui generis in this context. The Fourth Amendment caselaw has been developed in a myriad of situations involving very serious threats to individuals and society, and we find no suggestion there that the governing principles should vary depending on the court’s assessment of the gravity of the societal risk involved.11
Consent to Search
Obviously, if a parent or other legal guardian gives consent to search the residence or child, no probable cause or warrant is necessary. Consent must be judged by the totality of circumstances and lack of knowledge of the right to refuse a search cannot, standing alone, invalidate consent.12 Consent must be freely given, and is ineffective if it is extracted under threat of force or under claim of government authority.13 In these contexts, it is not unusual for a parent to engage in a ‘submission to a claim of lawful authority.’14 This occurs when a parent demands a warrant and is informed that the state officials need no warrant and demand entry, despite the parent’s repeated protests and demands for a warrant. Under these cases, no reasonable law enforcement officer could believe that the parent had given legally effective consent to the entry or following search.15 Without legally effective consent the search is unlawful unless it falls within some other exception, such as exigent circumstances.
Exigent Circumstances
Courts use the term “exigent circumstances” as a shorthand for a group of related exceptions to the probable cause and search warrant requirements. These exceptions are established in a line of cases wherein emergency intrusions are undertaken in order to protect or preserve life or to avoid serious bodily injury. “The right of the police to enter and investigate in an emergency . . . is inherent in the very nature of their duties as peace officers, and derives from the common law. “16 However, in order to qualify for the “exigent circumstances” exception to probable cause there must be a showing of true necessity– that is, an imminent and substantial threat to life, health, or property. “17 To put it another way, state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.18
Administrative Searches
When a case involves some type of official intrusion into one’s home, the Fourth Amendment’s protections are called into play. An individual need not be suspected of criminal behavior to invoke the protection of the Fourth Amendment.19 Prior to 1967, the Supreme Court held that administrative searches were not covered by the protections of the Fourth Amendment.20 In 1967, the Supreme Court decided Camara v. Municipal Court, 21 wherein Camara refused to permit San Francisco Public Health inspectors to make a routine annual inspection of his home for possible violations of the city housing code. Criminal charges were made against Camara for refusing to allow an inspection. The Supreme Court, noting that the only way a resident could challenge the inspection was by refusing entry and risking criminal conviction, determined that the practical effect of this system was to leave the occupants subject to the unbridled discretion of the inspector.22 This unbridled discretion was found unconstitutional, and thus, the Court held that a warrant should be sought in such a context.23
The Supreme Court later sanctioned a warrantless caseworker’s visit to the home of a recipient of Aid to Families with Dependent Child, even though it characterized the visit as a “search”24 The Court found that the search was nevertheless reasonable and did not violate the Fourth Amendment since:
1) the family received written notice specifying the date of the visit was received several days in advance;
2) the means of conducting the visit emphasized privacy and minimized any burden upon a homeowner’s right against unreasonable intrusion;
3) the visit was not shown to have as its purpose the obtaining of information as to criminal activity and was not equatable with a criminal investigation, and was not in aid of any criminal proceeding;
4) sources of information other than a home visit would not always assure verification of a dependent child’s actual residence or of actual physical presence in the home or of impending medical needs;
5) the use of search warrant procedures would have seriously objectionable features in the welfare context; and 6) the recipient’s refusal to permit the visit was not a criminal act, the only consequence of such refusal being that the payment of benefits would cease.25
The Court found, in this particular situation, that the caseworker’s home visit was not a search triggering traditional Fourth Amendment protection. Alternatively, the Court found that even assuming that the home visit was a search, it did not offend the Fourth Amendment. The Court reached this result by examining the focus of the home visit requirement. Because the focus of the home visit was the welfare of the child, the intrusion was reasonable even without a warrant or probable cause, due to the visit’s “rehabilitative” and “service” orientation. Additionally, the Court recognized that although the fruits of the caseworker’s home visit might lead to criminal prosecution, it noted that such a result was merely an “expected fact of life and a consequence no greater than that which necessarily ensues upon any other discovery by a citizen of criminal conduct.”26
Courts are divided over whether or not an in-home investigation of child abuse constitutes a search requiring probable cause or a warrant.27 Courts have held that Fourth Amendment jurisprudence is sufficiently well developed to place persons investigating child abuse on notice of its applicability to their work, particularly when those cases involve searches or seizures by or with the participation of police officers, whose conduct is regularly governed by the Fourth Amendment.28 Yet other courts distinguish between social workers and police officers noting:
However, to permit [a police officer investigating a child abuse complaint] to benefit from these critical distinctions by heralding the primacy of the protection of children cannot be supported by the circumstances of this case. What the district court perceived, and what cannot be overlooked, is that defendant’s focus was not so much on the child as it was on the potential criminal culpability of her parents. That focus is the hallmark of a criminal investigation. In contrast, a social worker’s principal focus is the welfare of the child. While a criminal prosecution may emanate from the social worker’s activity, that prospect is not a part of the social worker’s cachet. This distinction of focus justifies a more liberal view of the amount of probable cause that would support an administrative search. 29
Thus, while some cases find that neither probable cause nor warrant are required, others hold that they are required for police and not social workers. Still, the best reasoned case indicates that “caseworkers investigating child abuse, however, like police officers, routinely conduct investigative seizures and searches. Requiring familiarity with the Fourth Amendment will not, therefore, be unduly burdensome.”30
Probable cause requires that a judge “make a practical, commonsense decision whether, given all the circumstances . . . before him . . . there is a fair probability that the facts to which the probable cause determination is addressed exist. “31
Under the probable cause requirement, anonymous reports alone do not justify searches or seizures to further the investigation, but must be supplemented by sufficient corroboration in order to pass constitutional muster.32 Even under the lesser standard of reasonable suspicion, an entirely uncorroborated anonymous tip would generally not provide grounds for a search or seizure.33
In any event, probable cause and a warrant, or, in the alternative, clearly articulated guidelines restricting the unbridled discretion of an investigator, are required in order to permit the search of one’s household. Law enforcement officers and social workers may enter a home without a search warrant if they have a reasonable belief that a child is abused or in imminent danger34 and they may search in a manner that is reasonable in investigating the suspected child abuse or neglect.35
When a social worker or law enforcement officer seeks to enter a home, a parent should ask to see a search warrant. If no warrant has been issued, the social worker or law enforcement officer will be forced to decide whether there is imminent danger to a child inside in order to proceed into the home. Often, the social worker or law enforcement officer will not wish to make such a conclusion if there is no evidence. The state may then either close the investigation or obtain a warrant.
2. When may a child be interviewed’
In most child abuse investigations, an interview of the child is necessary to give a social worker information about the situation from the child’s perspective.36 The Fourth Amendment is not violated when school administrators question a student in order to determine whether there is “reason to believe” that a child is abused.37 One court has noted that there is a distinction between questioning by the school teachers or administrator and a full-blown investigation by the child protective service.38 Similarly, where caseworkers arranged for a psychologist to examine an allegedly abused child, a court found that this did not violate the parents’ rights.39 Courts have held that a social worker’s interview with the child may actually be less intrusive than that social worker interviewing a family’s neighbors or the child’s teachers or friends. This is due to the stigma that may attach to a family when third parties are interviewed.40
3. When may a child be physically searched’
“The state protects its children from neglect, ill treatment, and abuse, by statutes providing for the removal of ill-treated children from their present custodian to another, or by statutes providing for punishment of the offender. On occasion, the right of an individual to be free from unreasonable search and seizure may conflict with the state’s interest in protecting juveniles.”41
In balancing these interests, a court must examine whether the officials “are justified in requiring submission to a physical search, and whether the means and procedures employed respect relevant Fourth Amendment standards of reasonableness.”42 “A search of a child’s person . . . no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy.”43 As one court noted, “it does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity.” 44 While a physical examination conducted as part of a child abuse investigation has the purported purpose of protecting the child, 45 a strip search, for the child, is “akin to sexual abuse.” 46
The courts, however, are not in agreement whether probable cause and a warrant are necessary prior to a strip search of a child. In Darryl H. v. Coler, 47 the Seventh Circuit Court of Appeals found that the visual inspection conducted by government officials of those parts of the human body usually covered by clothing implicates Fourth Amendment concerns where the search was conducted by caseworkers in an attempt to discern whether a child had been the victim of child abuse. The Darryl H. court determined that the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, but requires a balancing of the need for the particular search against the invasion of the personal rights that the search entails. The Court used two inquires:
(1) was the action “justified at its inception;” and
(2) was the conduct of the search “reasonably related in scope to the circumstances which justified the interference in the first place.” 48
The court concluded:
we cannot say that the Constitution requires that a visual inspection of the body of a child who may have been the victim of child abuse can only be undertaken when the standards of probable cause or a warrant are met. On this point, we believe the district court was correct.49
The court held that visual inspections of the unclothed bodies of children for evidence of child abuse could be justified without a warrant or probable cause upon a showing of reasonableness by “balancing . . . the need for the particular search against the invasion of personal rights that the search entails.”50 The court concluded that the searches in question could be conducted without meeting the strictures of probable cause or the warrant requirement because the caseworker’s discretion was circumscribed by hot-line standards established in the Department of Child & Family Services Handbook. The court in Darryl H., noted the guidelines may not be sufficient to ensure that a search is necessary and reasonable, however: 51
As our analysis in the companion case reveals, we are not yet convinced that the hot-line criteria alone are sufficient to ensure that a search is necessary and reasonable. In this case, by the time the visual inspection of the children was undertaken, the caseworker was in possession of information which cast serious doubt on the validity of the charge. The children’ s home situation revealed no evidence of abuse; the children themselves denied any mistreatment; there was some evidence that the complainant was, in light of her earlier disagreement with the parents, not entirely objective. More importantly, it appears that additional information could have been obtained quite easily and without creating any appreciable embarrassment for the children or the parents. The principal’ s only source of information that Lee H. was tied up for punishment was the report of an undisclosed number of children in one of the primary grades. There is no indication in the record that the caseworker made any effort to corroborate the principal’s complaint by discrete inquiry of faculty members who had frequent contact with the students to ascertain the basis, if any, for this allegation.52
The court did not, however, reach definitively the question whether the searches at issue were reasonable. Later, the Seventh Circuit decided a similar case finding that caseworkers were immune from claims under the Fourth Amendment because its application to child abuse investigations was unsettled.53
Conversely, liability was found in the cases of Tenenbaum v. Williams, 54 Franz v. Lytle, 55 and Good v. Dauphin County Social Servs.,56 wherein both probable cause and warrants were required before intrusive examinations of children for evidence of abuse were permitted. In Tenenbaum, the federal court for the Eastern District of New York found that both probable cause and a warrant were necessary, absent consent or exigent circumstances, prior to Child Welfare Administration officials arranging for doctors to conduct a medical examination of a child’ s genitalia.57 The court in Tenenbaum distinguished the search from the search in the Darryl H. case:
While this court does not necessarily disagree with the holding in Darryl H., it regards the examination in the present case as categorically different from the examination conducted in that case. . . .Requiring a warrant for a mere visual inspection (following an emergency removal based on probable cause)–particularly of asexual parts of the anatomy–could frustrate child welfare workers in their efforts to uncover child abuse by converting a quick inspection into a time-consuming procedure.58
Similarly, in Franz, the Tenth Circuit held that a warrant issued on probable cause was required before a police officer investigating alleged child abuse could constitutionally probe a child’ s genitals for evidence of abuse and subject her to a medical examination by a doctor.59 The Franz court distinguished visual inspections, such as those in Darryl H., and those inspections involving touching a child’ s nude body, such as occurred in Franz.60 In Good, the Third Circuit held that a strip search of a child as part of an investigation of abuse was constitutional only if conducted pursuant to a warrant issued on probable cause, absent consent or exigent circumstances.61 Other types of examinations of children, including investigatory x-rays, may violate the Constitution’ s Due Process requirements:
We believe the Constitution assures parents that, in the absence of parental consent, x-rays of their child may not be undertaken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances. 62
4. When may a law enforcement officer or social worker take a child into emergency protective custody’
The Fourteenth Amendment to the United States Constitution provides that ‘no person shall be deprived of life, liberty, or property without the due process of law.’ 63 There is both procedural 64 and substantive 65 protection afforded parents by the Fourteenth Amendment to ensure their familial relationship will not be subject to unwarranted state intrusion. 66 These protections are not only provided to “perfect parents.” “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents. . . . .” 67
When the state seeks to remove a child from the care of its parents, it is an infringement of this parental liberty which requires that the state provide the parents with due process of law. 68 Due process of law does not, however, require a state to provide parents with a hearing or other procedure before taking a child into custody. 69 Courts have held that the state’ s temporary assertion of custodial authority in the face of a reasonably perceived emergency does not violate due process.70 “When a child’s safety is threatened, that is justification enough for action first and hearing afterwards.” 71 Thus, while the courts have acknowledged that a parent’s rights to retain care and custody over their children are fundamental, they have also held that the state has a compelling interest in the health and safety of its children which may justify interference with that care and custody. 72
The Supreme Court has never answered the question of whether probable cause, or some lesser standard governs the removal of children in cases of suspected abuse or neglect, although some lower courts have indicated that “probable cause” is the appropriate standard. 73
All fifty states give some degree of authority to social services personnel investigating child abuse to take a child into emergency protective custody without the parent’s consent and without a court order.74 However, a judicial hearing to review the state’s action must be provided within a specified amount of time; usually between 48 and 96 hours. Most states provide that a child may be taken from the home if there is a reasonable belief that a child is in imminent danger.75 States differ on who may actually take physical custody, however.
Some states allow a law enforcement officer or a social worker to take a child into emergency protective custody, and others allow only a law enforcement officer to do so.76
A strip search, or other intrusive examination, unsupported by probable cause and a warrant, will rarely be justified once a child has been removed from the alleged emergency situation.77 Even if a child is removed from the home based on probable cause to believe that an emergency exits, that circumstance ceases when the child is removed from the parents’ custody. The child is then no longer in what is perceived to be harm’ s way, and thereafter, due process requires notice to the parents and judicial authorization before the child can be subjected to intrusive examinations.78
When a social worker or law enforcement officer seeks to take custody, a parent should ask to see a court order. If the social worker or law enforcement officer does not possess a court order they will be forced to determine whether the child is in imminent danger in order to proceed with the removal of the child into protective custody. Often a social worker or law enforcement officer will not wish to make such a conclusion and will leave the home. The investigation may be closed if there is no evidence of imminent danger, or the investigator may obtain a court order. In either case, the parent has forced the state to accord him/ her due process before the removal of the child occurs.
5. What happens after a child is taken into ‘emergency protective custody’
Emergency protective custody is a temporary measure taken by the state because of an emergency situation. A court will review the state’s action within a specified period of time. 79 At this hearing the state must justify its action by showing its belief that the child was in imminent danger was reasonable. 80 If the court finds that the state’s action was indeed reasonable, the state may ask the court to issue an order for prolonged custody of the child. The state may then seek to have the child placed in a state run foster care home.
Unlike the removal of a child into emergency protective custody, the state may not retain custody for a prolonged period of time without making “reasonable efforts” to reunite the family. 81 Such “reasonable efforts” may include counseling services for the child, or the family. 82
If the state determines that no reunification is possible, after it has made reasonable efforts to that end, then it may ask a court to terminate the parents rights. If the court does terminate these rights, the child then becomes a ward of the state and is placed in permanent foster care. Since such an action is a final decision about the parents’ fundamental right to retain custody and care over their children, the state must present “clear and convincing evidence” of its need to do so to the court. 83 The “clear and convincing evidence” standard is a high burden for the state to meet. This demonstrates that a court will not look lightly on a permanent deprivation of fundamental parental rights. A court ultimately will determine what is in the best interest of the child. Some things a court may consider in making such a determination are: the parents’ ability to care for the physical, mental, and emotional needs of the child; acts of abuse; parents’ excessive use of intoxicating substances; and parents’ efforts to reunite the family. 84
6. When should parents contact an attorney’
Parents who have not come under investigation for child abuse should not necessarily establish a client relationship with an attorney (this could be costly), but it would be a wise precaution to identify an attorney with experience in dealing with social services. If a social service agency seeks to enter the home to investigate a report of child abuse, interview the child, or physically examine the child without a search warrant or court order, the parent should contact an attorney before allowing the state agent to enter their home. This will give the parent access to sound advice, and will also force the state to consider its actions carefully.
7. Conclusion
Today, individuals and organizations are required by law to report actual or suspected child abuse. Various penalties may attach for failure to report. These laws lead individuals and organizations to report even the most attenuated suspicions to avoid liability under the reporting laws. When a state agency receives a report of neglect or abuse they must investigate and are given the authority by statute to remove a child from the home if conditions demand it. This kind of discretionary authority to override fundamental parental rights is a cause for concern.
Parents should be aware of their state’s provisions regarding child abuse investigation and removal of a child into protective custody. Parents should know just how much time can pass by law before the state must provide judicial review of a removal. Please see the provisions and citations for each state in the endnotes of this paper for this information. Parents may obtain more specific details by contacting local and state agencies. 85 Knowledge of the limits within which government agencies must work will allow parents to assert their rights when such limits are transgressed.
State Law Regarding Removal of Children from the Parents’ Custody:
Alabama
A law enforcement officer, social worker, or doctor may take a child into protective custody if the child is in imminent danger. Judicial review must occur within 72 hours. Ala. Code ‘ 26-14-6 (2000).
Alaska A social worker may take a child into protective custody as the department determines necessary. A petition must be filed with the court within 12 hours, and a hearing must occur within 48 hours excluding weekends and holidays. Alaska Stat. 47.10.142 (2001) and Alaska Children In Need of Aid Ct. R. 10( a)( 1) (2001).
Arizona A law enforcement officer or social worker may take a child into protective custody if the child is suffering or will suffer abuse. Judicial review must occur within 48 hours excluding weekends and holidays. Ariz. Rev. Stat. Ann. 8-802, 8-821, 8-822 (2001).
Arkansas A law enforcement officer, social worker, or doctor may take a child into protective custody if the child is in immediate danger of severe maltreatment. Judicial review must occur within 72 hours, or on the next business day in the event of a weekend or holiday. Ark. Stat. Ann. 12-12-516 (Michie Supp. 2000).
California A law enforcement officer may take a child into protective custody if he/ she has reasonable cause to believe that a child is in imminent danger. Petition to court must be filed within 48 hours excluding non-judicial days. Cal. Welf. & Inst. Code 303, 305, 313 (West 1984 & Supp. 2000).
Colorado A law enforcement officer may take a child into protective custody when it is necessary for the protection of the child, or an emergency situation exists. Judicial review must occur within 72 hours excluding weekends and holidays. Colo. Rev. Stat. 19-3-401,403,405 (Supp. 2000).
Connecticut A law enforcement officer or social worker may take a child into protective custody if he/ she has probable cause to believe the child is in immediate physical danger. Petition must be filed with the court within 96 hours. Conn. Gen. Stat. Ann. 17a-101g (1999).
Delaware A police officer or physician may take a child into protective custody if he/ she reasonably suspects the child is in imminent danger. A social worker may take a child into protective custody only from a school, day care facility or child care facility. A petition must be filed with the court “forthwith.” Del. Code Ann. tit. 16 907 (Supp. 2000).
Florida A law enforcement officer or social worker may take a child into protective custody if he/ she has reasonable grounds to do so. A hearing must occur within 24 hours. Fla. Stat. Ann. 39.401, 402 (West 1988 & Supp. 2000).
Georgia A law enforcement officer may take a child into protective custody if he/ she has reasonable grounds to believe that the child is suffering from injury or is in immediate danger. Judicial review must occur within 72 hours excluding weekends and holidays. Ga. Code Ann. 15-11- 45, 49 (2000).
Hawaii A law enforcement officer may take a child into protective custody if in his/ her discretion it is necessary and appropriate under the circumstances. Petition must be filed with the court within three working days excluding weekends and holidays. Haw. Rev. Stat. 587-21 (Michie 2000).
Idaho A law enforcement officer may take a child into protective custody if a child is endangered in his/ her circumstances and prompt removal is necessary. Judicial review must occur within 48 hours excluding weekends and holidays. Idaho Code 16-1612 (Supp. 2000).
Illinois A law enforcement officer may take a child into protective custody if he/ she has reasonable cause to believe a child may be in danger. Judicial review must occur within 48 hours excluding weekends and holidays. Ill. Ann. Stat. Ch. 705, 405/ 2-5,/ 2-9 (Smith Hurd 1992 & Supp. 2000).
Indiana A law enforcement officer, probation officer or caseworker may take a child into protective custody if there is probable cause of immediate danger, and no time to obtain a court order. Judicial review must occur within 48 hours excluding weekends and holidays. Burns Ind. Code Ann. 31-34-2-1, 31-34-2-2, 31-34-2-3 (Supp. 2000).
Iowa A law enforcement officer may take a child into protective custody if the child is in imminent danger. A petition must be filed with the court within 3 days. Iowa Code Ann. 232.79 (West 1985 & Supp. 2001).
Kansas A law enforcement officer may take a child into protective custody if he/ she has probable cause to believe the child will be harmed. Judicial review must occur within 48 hours excluding weekends and holidays. Kan. Stat. Ann. 38-1524, 38-1527 (1999).
Kentucky A law enforcement officer may take a child into custody if he/ she has reasonable grounds to believe the child is in imminent danger. An emergency custody order must be requested of the court within 12 hours. Ky. Rev. Stat. Ann. 620.040( 5)( c) (Supp. 2000).
Louisiana A law enforcement officer may take a child into protective custody if he/ she has a reasonable belief that the child is in imminent danger. A social worker must obtain a court order before taking a child into protective custody. La. Children’s Code art. 621 (West 2000).
Maine A social worker may take a child into protective custody if the child is threatened with serious harm. Judicial review must occur within 72 hours. Me. Rev. Stat. Ann. tit. 19A 1748 (Supp. 2000).
Maryland A social worker, accompanied by a law enforcement officer, may take a child into protective custody if such action is required to protect the child, or continuation in the home is contrary to the welfare of the child, and removal is reasonable due to an emergency situation. Judicial review must occur on the next court day. Md. Cts. & Jud. Proc. Code. 3-815, Md. Rule 11-112 (1999).
Massachusetts A social worker may take a child into protective custody if he/ she reasonably believes such action to be necessary. A petition must be filed with the court on the next court day. Mass. Gen. Laws. Ann. ch. 119, 51B( 3) (West Supp. 2000).
Michigan A law enforcement officer or county agent (social worker) may take a child into protective custody if the child’s surroundings endanger his/ her health. Judicial review must occur within 24 hours excluding Sundays and holidays. Mich. Comp. Laws Ann. 712A. 14 (West 1993 & Supp. 2000) (and Mich. Ct. R. 5.965 (West 2000)).
Minnesota A law enforcement officer may take a child into protective custody if he/ she has a reasonable belief that the child’ s health is in imminent danger. A petition must be filed with the court within 72 hours. Minn. Stat. Ann. 260C. 175 (2000).
Mississippi A law enforcement officer or social worker may take a child into protective custody if they have probable cause to believe a child is in immediate danger. The child may be held no longer than 24 hours without a court order. Miss. Code. Ann. 43-21-303 (1981 & Supp. 2000).
Missouri A law enforcement officer or doctor may take a child into protective custody if they have reasonable cause to believe the child is in imminent danger. The child may be held no longer than 24 hours without a court order. Mo. Ann. Stat. 210.125 (West 1999).
Montana A law enforcement officer, or social worker may take a child into protective custody if they have reason to believe the child is in immediate danger. The state must file a petition with the court within 48 hours. Mont. Code Ann. 41-3-301 (2000).
Nebraska A law enforcement officer may take a child into protective custody if the child is endangered in his/ her surroundings and immediate removal is necessary. Judicial review must occur within 48 hours. Neb. Rev. Stat. 43-248,250 (2000).
Nevada A law enforcement officer or social worker may take a child into protective custody if he or she has reasonable cause to believe that immediate action is necessary to protect the child from injury, abuse or neglect. Judicial review must occur within 72 hours excluding weekends and holidays. Nev. Stat. Rev. 432b. 390,470 (2000).
New Hampshire A law enforcement officer may take a child into protective custody if the child is in imminent danger. A social worker must obtain a court order first. A hearing must occur within 24 hours excluding Sundays and Holidays. N. H. Rev. Stat. Ann. 169-C: 6 (2000).
New Jersey A doctor may take a child into protective custody if he/ she has a reasonable belief that a child is in danger. A social worker may take a child into protective custody with the consent of the parents, or with a court order which will issue on the social worker’s reasonable belief that the child is in imminent danger. Judicial review must occur on the next court day. N. J. Rev. Stat. Ann. 9: 6-8.29, 8.31 (2000).
New Mexico A law enforcement officer may take a child into protective custody if he/ she has reasonable grounds to believe that the child is in imminent danger. A petition must be filed with the court within 48 hours. N. M. Stat. Ann. 32A-3B-3, 4 (2000).
New York A law enforcement officer of social worker may take a child into protective custody if there is reasonable cause to believe the child is in imminent danger, and there is no time to get a court order. A petition must be filed with the court “forthwith,” and a hearing must occur “as soon as practicable.” N. Y. Fam. Ct. Act 1024, 1026-27 (2000).
North Carolina A law enforcement officer or social worker may take a child into protective custody if he or she has reasonable grounds to believe that a child is in imminent danger. A petition must be filed with the court within 12 hours. N. C. Gen. Stat.. ‘ 7B-500, 501 (2000).
North Dakota A law enforcement officer or juvenile supervisor may take a child into protective custody if he/ she has reasonable grounds to believe the child is in imminent danger. Judicial review must occur within 96 hours. N. D. Cent. Code ‘ 27-20-13,17 (2000).
Ohio A law enforcement officer may take a child into protective custody if he/ she has reasonable grounds to believe a child is in imminent danger. Judicial review must occur within 72 hours. Ohio Rev. Code Ann. ‘ 2151.31,314 (Anderson 2000).
Oklahoma A law enforcement officer may take a child into protective custody if he/ she has a reasonable belief that the child’s surroundings are such as to endanger the welfare of the child. Judicial review must occur within 2 judicial days. Okla. Stat. Ann. tit. 10, 7003-2.1 (1999).
Oregon A law enforcement officer or a social worker may take a child into protective custody if he or she has reason to believe the child may be harmed. Judicial review must occur within 24 hours excluding weekends and holidays. Or. Rev. Stat. Ann. 419B. 020, 150, 155 (1998).
Pennsylvania A law enforcement officer may take a child into protective custody if he/ she has reasonable grounds to believe that a child is in imminent danger. Judicial review must occur within 72 hours. 42 Pa. Cons. Stat. Ann. 6324, 6332 (2000).
Rhode Island A law enforcement officer, social worker, or doctor may take a child into protective custody if he or she has reasonable cause to believe the child is in imminent danger. The child may be held no longer than 48 hours without a court order. R. I. Gen. Laws 40-11-5 (2000).
South Carolina A law enforcement officer may take a child into protective custody if he/ she has probable cause to believe that a child is in imminent danger from abuse or neglect. A petition must be filed with the court on or before the next working day. S. C. Code. Ann. 20-7-610 (2000).
South Dakota A law enforcement officer, or court services officer may take a child into protective custody if he or she has a reasonable belief that the child may be in imminent danger and there is no time to obtain a court order first. Judicial review must occur within 48 hours excluding weekends and holidays. S. D. Codified Laws Ann. 26-7A-12, 26 -7A-14 (2000).
Tennessee A law enforcement officer or social worker with reasonable grounds to believe that a child is neglected, or faces an imminent threat may take a child into protective custody. Judicial review must occur within 3 days excluding weekends and holidays. Tenn. Code. Ann. 37-1-113,114, 117 (2000).
Texas A law enforcement officer or social worker may take a child into protective custody if there are facts which would lead a reasonable person to believe there is an immediate danger to the child. Judicial review must occur on the next working day. Tex. Fam. Code. Ann. 262.104 (West 1996 & Supp. 2001).
Utah A peace officer with reasonable grounds may take a child into protective custody if it would be unsafe to leave the child in the home. Judicial review must occur within 48 hours excluding weekends and holidays. Utah Code Ann. 78-3a-113, 301 (2000).
Vermont A law enforcement officer may take a child into protective custody if he/ she obtains a court order. A court order will issue based upon the officer’s reasonable belief that the child is in immediate danger. Judicial review must occur within 48 hours. Vt. Stat. Ann. tit. 33, 5510, 5513, 5515 (2001).
Virginia A law enforcement officer, social worker, or doctor may take a child into protective custody if an imminent danger to the child exists, and there is no time to obtain a court order. Judicial review must occur within 72 hours. Va. Code 63.1-248.9 (2000).
Washington A law enforcement officer or doctor may take a child into protective custody if he or she has probable cause to believe a child may be injured, or is in imminent danger. Judicial review must occur within 72 hours excluding weekends and holidays. Wash. Rev. Code. Ann. 26.44.050,056 and 13.34.060 (2000).
West Virginia A law enforcement officer may take a child into protective custody if the child is believed to be neglected or abused. Judicial review must occur within 96 hours. W. Va. Code 49-6-9 (2000).
Wisconsin A law enforcement officer may take a child into protective custody if he/ she has reasonable grounds to believe a child is in imminent danger. Judicial review must occur within 24 hours excluding weekends and holidays. Wisc. Stat. 938.19 (2000).
Wyoming A law enforcement officer may take a child into protective custody if he/ she has reasonable grounds to believe that a child is in danger. Judicial review must occur within 72 hours. Wyo. Stat. 14-3-208, 14-6-205, 209 (Supp. 2000).
ENDNOTES
1. Danny R. Veilleux, Validity, Construction, and Application of State Statute Requiring Doctor or Other Person to Report Child Abuse, 73 A. L. R. 4th (1989) & Supp. (1994).
2. This list is not comprehensive, and will vary from state to state.
3. U. S. Const. Amend. IV.
4. United States v. United States District Court, 407 U. S. 297, 313 (1972).
5. Silverman v. United States, 365 U. S. 505, 511 (1961). See also Payton v. New York, 445 U. S. 573, 586 (1980)(‘ It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.’); Coolidge v. New Hampshire, 403 U. S. 443, 474-75 (1970)(‘ It is accepted, at least as a matter of principle, that a search or seizure carried out on a suspect’ s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.”).
6. Mincey v. Arizona, 437 U. S. 385, 390 (1978) quoting Katz v. United States, 389 U. S. 347, 357 (1967).
7. Beck v. Ohio, 379 U. S. 89, 91 (1964).
8. Schneckloth v. Bustamonte, 412 U. S. 218, 222 (1973).
9. Mincey, 437 U. S. at 390.
10. Camara v. Municipal Court of San Francisco, 387 U. S. 523 (1967).
11. Good v. Dauphin County Social Services, 891 F. 2d 1087, 1094 (3rd Cir. 1989) (citations omitted); Franz v. Lytle, 997 F. 2d 784, 792 (10th Cir. 1993)( same).
12. Schneckloth, 412 U. S. at 233; Immigration and Naturalization Service v. Delgado, 466 U. S. 210, 104 S. Ct. 1758 (1984).
13. Schneckloth, 412 U. S. at 233 (‘[ I] f under all the circumstances it has appeared that the consent was not given voluntarily–that it was coerced by threats or force, or granted only in submission to a claim of lawful authority–then we have found the consent invalid and the search unreasonable.’); Amos v. U. S., 255 U. S. 313, 317 (1921)(‘[ T] he contention that the constitutional rights of defendants were waived when his wife admitted to his home the Government officers, who came, without search warrant, demanding admission to make search of it under Government authority, cannot be entertained . . . . for it is perfectly clear that under the implied coercion here presented, no such waiver was intended or effected.’).
14. Schneckloth, 412 U. S. at 233; Good, 891 F. 2d at 1095.
15. Good, 891 F. 2d at 1095.
16. See Good, 891 F. 2d at 1093; United States v. Barone, 330 F. 2d 543, 545 (2d Cir.), cert. denied, 377 U. S. 1004 (1964). See also Mincey, 437 U. S. at 392.
17. Good, 891 F. 2d at 1094; People v. Smith, 7 Cal. 3d 282, 286, 101 Cal. Rptr. 893, 895, 496 P. 2d 1261, 1263 (1972).
18. Good, 891 F. 2d at 1094.
19. Camara, 387 U. S. 523.
20. Frank v. Maryland, 359 U. S. 360 (1959). Frank held that health officials did not need a search warrant to enter a residence and investigate sanitation conditions. In 1967, the landmark companion cases, Camara, and See v. Seattle, 387 U. S. 541 (1967), reversed Frank and held that administrative inspections of commercial and non-commercial premises are generally subject to the warrant requirement of the Fourth Amendment.
21. Camara, 387 U. S. 523 (1967).
22. Id., at 532-33.
23. Id., at 532-33; accord Marshall v. Barlow’ s, 436 U. S. 307, 320-21 (1978)( OSHA’ s warrantless inspection program invalid because of the unbridled discretion invested in government officials who could ‘roam at will’ throughout any industrial establishment to look for health and safety violations).
24. Wyman v. James, 400 U. S. 309 (1971).
25. Id.; 86 Am. Jur. 2d Searches and Seizures ‘ 105 (1993).
26. Id., 400 U. S. at 323.
27. Compare Tenenbaum v. Williams, 862 F. Supp. 962, 976 (E. D. N. Y. 1994), cert. denied City of New York v. Tenenbaum, 529 U. S. 1098 (2000)(‘ Therefore, the court concludes that the probable cause and warrant requirements apply to child abuse searches and seizures under the Fourth Amendment.’); Good, 891 F. 2d at 1092 (‘ The decided case law made it clear that the state may not, consistent with the prohibition of unreasonable searches and seizures found in the Fourth and Fourteenth amendments, conduct a search of a home or strip search of a person’ s body in the absence of consent, a valid search warrant, or exigent circumstances.’); Franz v. Lytle, 997 F. 2d 784, 791 (10th Cir. 1993)(‘[ T] he Fourth Amendment draws a bright line around these facts, not as refined to address the concerns of an administrative setting like the school search in T. L. O. v. New Jersey, but in its application to a criminal setting in which only a showing of probable cause, absent consent or exigency, can establish the reasonableness of the search.’); Parents of Two Minors v. Bristol Division of the Juvenile Court Department, 397 Mass. 846, 494 N. E. 2d 1306 (1986)( While no determination regarding federal constitutional rights to be free from non-emergency home visits by employees of the DSS investigating anonymous reports of child abuse, Supreme Court found that Juvenile Court judge did not have authority to order plaintiffs to submit to such a visit); with Donald M. v. Matava, 668 F. Supp. 703, 709 (D. Mass. 1987)(‘[ Case law] demonstrate[ s] that there was, and remains, a substantial question whether warrantless home visits by social workers investigating claims of child abuse violate the Fourth Amendment.’); Darryl H. v. Coler, 801 F. 2d 893, 901 (7th Cir. 1986)(‘ On this record, we believe that the district judge was correct in holding that the searches in question here could be conducted without meeting the strictures of probable cause or the warrant requirement,’ where DCFS Handbook criteria may supply ‘reasonableness’ where they circumscribe caseworker’ s discretion); E. Z. v. Coler, 603 F. Supp. 1546, 1555-60 (N. D. Ill. 1985)( no constitutional violation where social worker investigating child abuse report made warrantless home visit without informing parents of right to refuse entry and asserted statutory authority to enter home); Wildauer v. Frederick County, 993 F. 2d 369 , 372 (4th Cir. 1993)(‘[ I] nvestigative home visits by social workers are not subject to the same scrutiny as searches in the criminal context.’). See also, Michael R. Beeman, Notes, Investigating Child Abuse: The Fourth Amendment and Investigatory Home Visits, 89 COLUM. L. REV. 1034, 1051-53 (1989) (arguing that Wyman is inapposite to child abuse investigation searches and seizures).
28. Tenenbaum, 862 F. Supp. at 977; Franz, 997 F. 2d 784; Good, 891 F. 2d at 1094.
29. Franz, 997 F. 2d at 791. Additional considerations in the Franz case included ‘the uncontroverted facts he was in uniform and carrying a gun at all times; he recorded his meeting with Mrs. Franz, following police policy; he filed standard KBI reports of his investigation; and he informed his superior officer he was investigating a possible child molestation.’ Id.
30. Tenenbaum, 862 F. Supp. at 976.
31. Illinois v. Gates, 462 U. S. 213, 238 (1983); Tenenbaum, 862 F. Supp. at 975.
32. Gates, 462 U. S. at 241-43; Tenenbaum, 862 F. Supp. at 976. Tenenbaum states that ‘[a] busive or neglectful conduct witnessed by neighbors and other identified individuals, and signs of abuse in the appearance and behavior of children detected by teachers and child care workers, routinely provide probable cause to believe that a child has been abused or neglected.’ Tenenbaum, 962 F. Supp. at 975.
33. Alabama v. White, 496 U. S. 325, 329 (1990); Tenenbaum, 862 F. Supp. at 976.
34. Mark Hardin, Legal Barriers in Child Abuse Investigations, 63 WASH. L. REV. 493, 520 (1988).
35. Id., note 8.
36. Darryl H., 801 F. 2d at 901-902.
37. Picarella v. Terrizzi, 893 F. Supp. 1292, 1302 (M. D. Pa. 1995); Landstrom v. Ill. Dept of Children & Family Serv., 892 F. 2d 670 (7th Cir. 1990); Darryl H., 801 F. 2d 893.
38. Picarella, 893 F. Supp. at 1300.
39. Fitzgerald v. Williamson, 787 F. 2d 403, 408 (8th Cir. 1986).
40. Darryl H., 801 F. 2d at 901-902; E. Z., 603 F. Supp. at 1561.
41. Deborah Sprenger, Annotation: Physical Examination of Child’ s Body for Evidence of Abuse as Violative of Fourth Amendment or as Raising Fourth Amendment Issue, 93 ALR Fed. 530, 531 (1989).
42. Id.
43. New Jersey v. T. L. O., 469 U. S. 325, 337-38 (1985); Good, 891 F. 2d at 1093.
44. Doe v. Renfrow, 631 F. 2d 91, 92-93 (7th Cir. 1980), cert. denied, 451 U. S. 1022 (1981).
45. Hardin, supra note 34, at 568.
46. Tenenbaum, 862 F. Supp. at 973 (quoting Shatz, Donovan & Hong, The Strip Search of Children and the Fourth Amendment, 26 U. S. F. L. REV. 1, 11-14 (1991)).
47. Darryl H., 801 F. 2d at 902.
48. Id. at 903 (quoting Terry v. Ohio, 392 U. S. 1, 19-20 (1968)).
49. Id. at 902.
50. Id. at 902-03.
51. Id. at 907. Cf. Camara, 387 U. S. at 532-33 (lack of guidelines invalidates administrative search exception to probable cause and warrant requirement); accord, Marshall v. Barlow’ s, 436 U. S. 307, 320-21 (1978)( OSHA’ s warrantless inspection program invalid because of the unbridled discretion invested in government officials who could ‘roam at will’ throughout any industrial establishment to look for health and safety violations). See also Wildberger v. State, 74 Md. App. 107, 536 A. 2d 718 (1988)(‘ reasonableness’ standard substituted for probable cause and warrant standard in strip search case); Donald M. v. Matava, 889 F. Supp. 703 (D. C. Mass. 1987) later proceeding, 668 F. Supp. 714 (D. C. Mass. 1987)( same).
52. Darryl H., 801 F. 2d at 907.
53. Landstrom, 892 F. 2d at 676-77. In Landstrom, parents sued a school district charging violation of their rights in the course of a child-abuse investigation, when one child who had complained of discomfort in the part of the body normally covered by clothing, was stripped searched. The court determined that each of the individual defendants in the case was entitled to either qualified or unlimited immunity, due to his or her position in the school district, but acknowledged that the search did in fact raise Fourth Amendment issues.
54. 862 F. Supp. 962 (E. D. N. Y. 1994).
55. 997 F. 2d 784 (10th Cir. 1993).
56. 891 F. 2d 1087 (3d Cir. 1989).
57. Tenenbaum, 862 F. Supp. at 977-78.
58. Id. at 978.
59. The facts of Franz, 997 F. 2d 784, are set forth at Franz v. Lytle, 791 F. Supp. 827, 829 (D. Kan.1992).
60. Franz, 997 F. 2d at 790-91.
61. Good, 891 F. 2d at 1092-93.
62. Van Emrik v. Chemung County Dep’ t of Social Servs., 911 F. 2d 863, 867 (2d Cir. 1990). Cf. Chayo v. Kaladjian, 844 F. Supp. 163, 169 (S. D. N. Y. 1994)(‘ The instant case [Chayo] is distinguishable . . . [from van Emrik] because the x-ray examination [of the Chayo child] were ordered not by the caseworkers but by Dr. Ibrahm Ahmed, a pediatric resident at St. Vincent’s Hospital, and for medical rather than investigative purposes.’).
63. U. S. Const., amend XIV.
64. Santosky v. Kramer, 455 U. S. 745, 754 (1982).
65. Moore v. City of East Cleveland, 431 U. S. 494, 499 (1977) (plurality).
66. Santosky, 455 U. S. at 753; Quillion v. Walcott, 434 U. S. 246,255 (1978); Stanley v. Illinois, 405 U. S. 645, 651 (1972). Prince v. Massachusetts, 321 U. S. 158,166 (1944); Pierce v. Society of Sisters, 268 U. S. 510,534-535 (1925); Meyer v. Nebraska, 262 U. S. 390,399 (1923). Such liberty interests is ‘substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents.’ Smith v. Organization of Foster Families, 431 U. S. 816, 847 (1977); Wildauer, 993 F. 2d at 373. Several courts have explicitly held that foster parents do not have a constitutionally protected liberty interest in a continued relationship with their foster child. Wildauer, 993 F. 2d at 373; McComb v. Wambaugh, 934 F. 2d 474, 483 (3d Cir. 1991); Renfro v. Cuyahoga County Dep’t of Human Servs., 884 f. 2d 943, 944 (6th Cir. 1989); Backlund v. Barnhart, 778 F. 2d 1386, 1390 (9th Cir. 1985); Drummond v. Fulton County Dep’ t of Family & Children’ s Servs., 563 F. 2d 1200, 1206 (5th Cir. 1977)( en banc), cert. denied 437 U. S. 910 (1978).
67. Santosky, 455 U. S. at 753.
68. Jordan by Jordan v. Jackson, 15 F. 3d 333, 342-346 (4th Cir. 1994)(” The State’s removal of a child from his parent’s home indisputably constitutes an interference with a liberty interest of the parents and thus triggers the procedural protections of the 14th amendment. . . . Forced separation of parent from child, even for a short time, represents a serious impingement on those rights.”)
69. “It is well settled that the requirements of process may be delayed where emergency action is necessary to avert imminent harm to a child.” Jordan by Jordan, 15 F. 3d at 343 (citing Weller v. Department of Social Servs., 901 F. 2d 387,393 (4th Cir. 1990); Doe v. Hennepin County, 858 F. 2d 1325,1329 (8th Cir. 1988), cert denied 490 U. S. 1108 (1989); Donald v. Polk County, 836 F. 2d 376,380-81 (7th Cir. 1988); Hooks v. Hooks, 771 F. 2d 935,942 (6th Cir. 1985); Duchesne v. Sugarman, 566 F. 2d 817, 826 (2d Cir. 1977)).
70. Cecere v. City of New York, 967 F. 2d 826, 830 (2d Cir. 1992).
71. Lossman v. Pekarske, 707 F. 2d 288, 291 (7th Cir. 1983). See also Doe v. Connecticut Dep’ t of Child and Youth Servs., 911 F. 2d 868 (2d Cir. 1990); Chayo v. Kaladjian, 844 F. Supp. 163 (S. D. N. Y. 1994).
72. Jordan by Jordan, 15 F. 3d at 346 (” These substantial private interests are not without public counterpart in the context of protective custody by the state. The State (commonwealth) as parens patriae also has at stake compelling interests -those in the safety and welfare of its children.”); Lassiter v. Department of Social Services, 452 U. S. 18, 27 (1981); Santosky, 455
U. S. at 766; and Parham v. R., 442 U. S. 584, 603 (1979). A “State is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.” Santosky, 455 U. S. at 766-67.
73. Some cases have indicated that ‘probable cause’ is the standard. See Doe, 712 F. Supp. at 284 (‘ The emergency removal of John Doe requires ‘probable cause’ to believe that he was in immediate physical danger from his surroundings and that removal was necessary to insure his safety.’), aff’ d, 911 F. 2d 868 (2nd Cir. 1990); Van Emrik, 911 F. 2d at 867; Tenenbaum, 862 F. Supp. at 974.
74. See discussion of individual state laws regarding the state removal of children from their parents’ custody at the end of this brief.
75. Id.
76. See specific state provisions in particular state as provided above.
77. See e. g., Tenenbaum, 862 F. Supp. at 977-78 (invasive search of child, given the fact that the emergency which justified her removal no longer existed, was not justified at the time of the investigatory medical examination). ‘In the rare event that investigating officials reasonably believe that evidence of abuse is likely to disappear before a warrant can be obtained exigent circumstances arguably would permit an intrusive examination without a warrant. Cf. Schmerber v. California, 384 U. S. 757, 770-71 (1966)( evanescent nature of defendant’ s blood-alcohol level permitted blood test without a warrant).’ Tenenbaum, 862 F. Supp. at 977, n. 12.
78. Tenenbaum, 862 F. Supp. at 972.
79. Id., at note 27.
80. State’s standards for removal into protective custody will vary.
81. Adoption Assistance and Child Welfare Act 42 U. S. C. ‘ 671 (a)( 15) (West Supp. 1997). If a state fails to make “reasonable efforts,” it will not receive federal funding to subsidize its care of the particular child. This statute does not create a private right of action for parents and it’ s provisions are merely Congress’ s ‘hortatory’ instructions to the states, rather than mandatory. Suter v. Artist M., 112 S. Ct. 1360, 1365 (1992); Wildauer, 993 F. 2d at 373.
82. 45 C. F. R. ‘ 1357.15( e)( 2) (1994).
83. Santosky, 455 U. S. at 767 (1982).
84. This is not a comprehensive list, but is rather, a summary, intended to provide a general conception of things which a court may consider.
85. Addresses:
Alabama
Dept. of Public Health
434 Monroe St.
Montgomery, AL 36130
(205) 242-5095
www.alapubhealth.org/
201 Monroe St.
Montgomery, AL 36104
(334) 206-5300
Georgia
Division of Public Health
47 Trinity Ave., SW
Atlanta, GA 30334
(404) 894-7505
www.ph.dhr.state.ga.us
Two Peachtree St., NW
Atlanta, GA 30303-3186
(404) 657-2700
Maryland
Dept. of Health and Mental Hygiene
201 West Preston St.,
Fifth floor
Baltimore, MD 21201
(410) 225-6500
www.dhmh.state.md.us/
(410) 767-6860
New Jersey State Dept. of Health
P. O. Box 360
John Fitch Plaza
Trenton, NJ 08625-0360
(609) 292-7834
www.state.nj.us.health/
South Carolina Department of Health & Environmental Control
2600 Bull Street
Columbia, SC 29201
(803) 734-5000
www.dhhs.state.sc.us/
Alaska Division of Public Health
P. O. Box 110610
Juneau, AK 99811-0610
(907) 465-3090
www.hss.state.ak.us/dph/dph_home.htm
Hawaii Dept. of Health
1250 Punchbowl St.
Honolulu, HI 96813
(808) 586-4410
www.hawaii.gov/health
Massachusetts Dept. of Public Health
150 Tremont St. Tenth floor
Boston, MA 02111
(617) 727-0201
www.state.ma.us/dph
250 Washington St.
Boston, MA 02108-4619
(617) 624-6000
New Mexico Public Health Division
Dept. of Health and Environment
1190 St. Francis Dr.
P. O. Box 26110
Santa Fe, NM 87502-6110
(505) 827-2389
www.health.state.nm.us/
(505) 827-2613
South Dakota Department of Health
445 E. Capital Avenue
Pierre, SD 57501
(605) 773-3364
www.state.sd.us/health
1 (800) 738-2301
Arizona Dept. Of Health Services
1740 West Adams St.
Phoenix, AZ 85007
(602) 542-1062
www.state.az.us/health
Idaho Division of Health
Towers Building, Fourth Floor
450 West State St.
Boise, ID 83720-0036
(208) 344-5945
http://www2.state.id.us/dhw/hwgd_www/home.html
(208) 334-5500
Michigan Dept. of Public Health
3423 N. Logan St.
P. O. Box 30195
Lansing, MI 48909
(517) 335-8024
www.mdch.state.mi.us/
New York State Public Health Division
Empire State Plaza, Corning Tower
Albany, NY 12237
(518) 474-0180
www.health.state.ny.us/
Tennessee Health Services
Cordell Hull Building, 3rd Floor
425 5th Avenue, North
Nashville, TN 37247
(615) 741-3111
www.state.tn.us/health
Arkansas Dept. of Health
State Health Building
4815 West Markham St .
Little Rock, AR 72205
(501) 661-2111
http://health.state.ar.us/
Illinois Dept. of Public Health
535 West Jefferson St .
Springfield, IL 62761
(217) 782-4977
www.idph.state.il.us/
Minnesota Dept. of Health
717 Delaware St. SE
Box 64975
Minneapolis, MN 55164
(612) 623-5510
www.health.state.mn.us/
(651) 215-5800
North Carolina Health Services Office
P. O. Box 27687
Raleigh, NC 27611
(919) 733-4984
www.dhhs.state.nc.us/
Texas Dept. of Health
1100 W. 49th St.
Austin, Tx 78756-3199
(512) 458-7375
www.tdh.texas.gov/
(512) 458-7111
California Dept. of Health Services
714 P St., Room 1253
(916) 657-1425
www.dhs.cahwnet.gov/
Indiana State Board of Health
1330 W. Michigan St.
P. O. Box 1964
Indianapolis, IN 46206
(317) 633-8400
www.state.in.us/isdh/index.html
2 North Meridian St.
Indianapolis, IN 46204
(317) 233-1325
Mississippi Dept of Health
P. O. Box 1700
Jackson, MS 39215
(610) 960-7948
www.msdh.state.ms.us/
(601) 576-7400
North Dakota Dept. of Health
600 East Boulevard Ave
Bismarck, ND 58505
(701) 224-4619
www.ehs.health.state.nd.us/ndhd/
(701) 328-2372
Utah Dept. of Health
PO. Box 1010
Salt Lake City, UT
84114-1010
(801) 358-6101
http://hlunix.ex.state.ut.us
Colorado Dept. of Health
4300 Cherry Creek Dr. South
OEA-PR-A5
Denver, CO 80246-1530
(303) 692-2020
www.cdphe.state.co.us/cdphehom.asp
Iowa Dept. of Public Health
Lucas State Office Building
East 12th and Walnut St
Des Moines, IA 50319-0075
(515) 281-4958
www.idph.state.ia.us/
(515) 281-5787
Missouri Dept. of Health
P. O. Box 570
Jefferson City, MO 65102
(314) 751-6001
www.health.state.mo.us/
(573) 751-6400
Ohio Dept. of Health
246 Nort h High St.
Columbus, OH 43216-0118
(614) 466-2253
www.odh.state.oh.us/
(614) 466-3543
Vermont Dept. of Health
108 Cherry Street
Burlington, VT 05402-0070
(802) 863-7280
www.state.vt.us/health
(802) 863-7200
1 (800) 464-4343
Connecticut Dept. of Health Services
150 Washington St.
Hartford, CT 06106
(203) 566-8401
www.state.ct.us/dph
410 Capitol Ave.
P. O. Box 340
Hartford, CT 06134
(860) 509-8000
Kansas Dept. of Health and Environment
Office of Public Information
Landon State Office Building
900 SW Jackson, Tenth Floor
Topeka, KS 66612
(913) 296-6231
www.kdhe.state.ks.us/
Montana Dept of Public Health and Human Services
A107 Cogswell Building
Helena, MT 59620
(406) 444-1374
www.dphhs.state.mt.us/
Oklahoma Dept. of Health
1000 NE Tenth St .
P. O. Box 53551
Oklahoma City, OK 73117
(405) 271-5601
www.health.state.ok.us/
Virginia Dept of Health
Box 2448
Richmond, VA 23218
(804) 786-3561
www.vah.state.va.us/
Delaware Division of Public Health
P. O. Box 637
Dover, DE 19903
(302) 739-3008
www.state.de.us/dhss/irm/dph/
Kentucky Dept. for Health Services
275 East Main St.
Frankfort, KY 40621
(502) 564-3970
http://publichealth.state.ky.us/
Nebraska Dept. of Health & Human Services
P. O. Box 95044
Lincoln, NE 68509-5044
(402) 471-2133
www.hhs.state.ne.us/hew/hewindex.htm
(402) 471-2306
Oregon Health Division
800 NE Oregon St.
Portland, OR 97232
(503) 731-4000
www.ohd.hr.state.or.us/
Washington State Dept. of Social and Health Services
Mail Stop OB-44
Olympia, WA 98504
(206) 753-3395
www.doh.wa.gov/
State Dept. of Health
1112 SE Quince St.
P. O. Box 47890
Olympia, WA 98504
1 (800) 525-0127
District of Columbia Commission of Public Health
801 N. Capitol St., NE
Washington, D. C. 20002
(202) 673-7700
Louisiana Office of Public Health Services
P. O. Box 60630
New Orleans, LA 70160
(504) 568-5052
www.dhh.state.la.us/
1201 Capitol Access Rd.
P. O. Box 629
Baton Rouge, LA 70821-0629
(225) 342-9500
Nevada State Health Division
505 E. King St. Room 201
Casron City, NV 89710
(702) 687-4740
www.state.nv.us/health
(775) 684-4200
Pennsylvania Dept. of Health Health & Welfare Building
P. O. Box 90
Harrisburg, PA 17108
(717) 787-1783
www.health.state.pa.us/
1 (877) PA HEALTH
West Virginia Bureau of Public Health
Building 3, Room 519
State Capitol Complex
Charleston, WV 25305
(304) 558-2971
www.wvdhhr.org/
Florida Dept. of Health and Rehabilitative Services
1317 Winewood Blvd.
Tallahassee, FL 32399
(904) 488-4854
www.doh.state.fl.us
Maine Bureau of Health
151 Capitol St .
Statehouse Station 11
Augusta, ME 04333
(207) 287-3201
http://janus.state.me.us/dhs/boh/
(207) 287-8016
New Hampshire Division of Public Health Services
Health and Human Services Building
6 Hazen Drive
Concord, NH 03301
(603) 217-4501
www.dhhs.state.nh.us/
Dept. of Health & Human Services
129 Pleasant St.
Concord, NH 03301-6805
1 (800) 852-3345
Rhode Island Dept. of Health
3 Capitol Hill
Providence, RI 02908
(401) 277-2231
www.health.state.ri.us/
(401) 222-2231
Wisconsin Division of Health
P. O. Box 7850
Madison, WI 53707
(608) 267-2832
www.dhfs.state.wi.us
Dept. of Health & Family Services
1 W. Wilson St.
Madison, WI 53702
(608) 266-1865
Wyoming Dept. of Health
117 Hathaway Building
Cheyenne, WY 82002
(307) 777-7439
http://wdhfs.state.wy.us/
(307) 777-7656
Tuesday, April 3, 2012
Secret memo reveals CPS in 'meltdown' with huge backlog of cases giving criminals 'get out of jail free cards'
By DAILY MAIL REPORTER
UPDATED: 07:25 EST, 23 February 2010
Criminals are being handed 'get out of jail free cards' because of chaos in parts of the Crown Prosecution Service.
A confidential memo written by a senior prosecutor in London warned that one CPS unit was in 'meltdown'.
It described large backlogs of cases in the south-east London office and pointed to individual offenders escaping justice despite compelling evidence.
The exasperated barrister, writing in July last year, said: 'I'm sorry to have to be blunt, but the unit is (in) meltdown...
'We are now in the ludicrous position of having open-and-shut cases dismissed; e.g. where the defendant was seen on CCTV to be placing tracksuits into a foil box!
'What's more we are at the total mercy of the local defence firms with regard to effective trials...
'Cases were five deep across the whole desk; they've now been "relocated" to the cupboard. Out of sight is out of mind I guess.'
The email, published by the Independent, was sent eight months after the appointment of Keir Starmer QC as the new Director of Public Prosecutions and head of the CPS.
More...
Revealed: Member of gang that stabbed Matalan manager to death was on bail after killing boy, 17, in mobile phone robbery
The author is withering about an email allegedly sent by Mr Starmer about the 'essence' of the service.
He wrote: 'And to top it all off, I've just had a ridiculous email from the DPP about "Capturing the essence of the new organisation"...
'I can see stable yard... and the essence of this particular part of the organisation is currently being forked out of the horse boxes.'
An email outlining a senior prosecutor's concerns was sent eight months before Keir Starmer was appointed Director of Public Prosecutions and CPS chief
Last month a series of nine inspection reports into the CPS in London were published and none of the boroughs inspected achieved a rating of 'good'.
Lewisham, Greenwich, Tower Hamlets, Hackney and Redbridge were rated 'poor' and Bexley, Waltham Forest, Havering and Barking and Dagenham were rated 'fair'.
The overall conviction rate in London is 72.7 per cent, compared with a national average of 80.6 per cent.
Stephen Wooler, Chief Inspector of the CPS, said he had 'serious concerns' about the preparation of court files which was affecting conviction rates in the capital.
A CPS spokesman said: 'This email was written by a lawyer who left the CPS before many of the recent improvements were introduced.
'It was written eight months ago, shortly after staff had moved into the police station, so it was a time of some upheaval. Our staff are now telling us that they are well settled in that location.
'Since that time we have been urgently working to improve our performance in the area and in London generally.
'We're recruiting more prosecutors and paralegal officers and have moved 45 members of staff to the front line to improve preparation of cases and to ensure hearings operate as smoothly as possible.'
Child-welfare task force hears CPS' past failures
By Mary K. Reinhart, The Arizona Republic
A gubernatorial task force began its work Wednesday to improve the state's child-welfare system by hearing about failed efforts of the past.
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The Arizona Child Safety Task Force members appeared eager to embrace creation of a separate, specially trained investigative unit to prioritize Child Protective Services calls as well as other changes rejected during previous reforms in 2003 and 2008.
Maricopa County Attorney Bill Montgomery, who chairs the committee, set the stage with an opening statement that decried the return of children to abusive families.
"We are not getting it right. … It is time for us to consider a different approach," Montgomery said. "It is time for us to stop asking CPS to remove children from harm and then march them right back into a dangerous situation to reunify a family."
This is the third effort in the past eight years at some kind of child-welfare overhaul, each spurred by a spate of high-profile child deaths, including several that have been the subject of prior CPS reports.
Those who testified before the task force, and several of the committee members themselves, had been part of those efforts and said new laws and policies, for the most part, had been watered down, ignored or reversed in the ensuing years.
"There is a great deal of resistance from people who are wedded to the status quo," said Mark Faull, Montgomery's chief deputy, who testified about the 2003 reform efforts.
Montgomery said that during his first 11 months in office, 16 children have died as a result of abuse, four of whom had been involved with CPS. He wants investigators with law-enforcement training to handle the most serious child-abuse cases.
Arizona Department of Economic Security Director Clarence Carter, who oversees CPS and is vice chairman of the task force, said six children with prior CPS reports have been killed by a parent or caregiver during his seven months on the job.
During his opening statement, Carter named each child: Janie Buelna, Anays Carimbocas, Justin Oaks, Danielle Martinez-Sepulveda, Kyleb Freeman and Jacob Gibson.
"We cannot make a system that will end all child tragedies, but we can honor (their) memories," he said, by being "deliberate, methodical, strategic, courageous and unflinching in our pursuit of the best system possible."
State law and CPS policy require that caseworkers and law enforcement work together on cases in which criminal conduct is suspected. But Carter acknowledged, under intense questioning from committee members, that "there are times when the application of that is not consistent."
Statewide, three-fourths of the 2,233 child-abuse cases that rose to the level of potential criminal conduct, according to CPS, were jointly investigated during the past fiscal year. Local law enforcement declined to investigate or was not available in most of those lacking joint investigations.
Former Sen. Jonathon Paton, R-Tucson, said 2008 reform efforts were "watered down" to satisfy then-Gov. Janet Napolitano. As a result, a parent accused of abuse can still attend meetings with the victim.
This team-decision making, as it's called, is part of the effort to find out whether the family can be reunited.
Carter said it makes no sense to have a policy that allows the parent and child to be together in abuse cases. And he said that's an example of how the child-welfare system has been packed with policies over the years that are sometimes unnecessary or nonsensical.
"(Putting the child and parent together) makes no sense at all," Carter said. "And if somebody requires me to do that, then they can have this job."
During the afternoon session, Arizona State University law professor Sarah Buel, who heads ASU's Diane Halle Center for Family Justice, described several programs across the country that help reunite families, prevent and reduce child abuse and save money.
"The vast majority of these cases involve domestic violence," Buel said. "If Mom addresses that issue, so many other things fall into place."
Montgomery said he intends to form small groups so task-force members can work on specific issues outside the public-meeting format and present their findings to the full committee.
The next meeting is set for 9a.m. on Nov.29. The task force will focus on law enforcement and CPS training and services available to families.
A third meeting has been tentatively scheduled for Dec.7, primarily to provide more time for public comment. Montgomery limited public remarks to one minute for each speaker.
For more information about reprints & permissions, visit our FAQ's. To report corrections and clarifications, contact Standards Editor Brent Jones. For publication consideration in the newspaper, send comments to letters@usatoday.com. Include name, phone number, city and state for verification. To view our corrections, go to corrections.usatoday.com.
Tucson mother arrested for child abuse
1/21/12
Tucson mother arrested for child abuse
Detectives from the Tucson Police Department arrested 23-year old Ashley Kammerer, on January 12, 2012, after they presented their completed investigation to the Pima County Grand Jury, on one count of class two felony Child Abuse.
According to the police statement, in late September, 2011, the Tucson Police Department’s Dependent Child Unit began an investigation that originated with a complaint from staff at a local hospital. Hospital staff reported that the victim, a then 22-month old boy, was brought into the hospital weighing only 14 ½ pounds. Despite contributing medical conditions, hospital staff were convinced that the boy’s low weight could only result from not being provided sufficient nourishment.
Detectives began their investigation and determined that the victim lived with his mother, Kammerer, who was his primary caregiver. The victim suffered from medical conditions that required special feeding, and Kammerer was not providing the necessary care. The victim was placed in temporary custody with Child Protective Services, and has nearly doubled in weight in the past four months.
Kammerer was booked into the Pima County Jail.
CPS Releases Reports Of Family Contacts In Child Death Cases
From The KOLD News 13 Newsroom
Child Protective Services is releasing new information on how they were involved in the lives of three Tucson children before they died.
CPS has come under scrutiny in the case of 4-year-old Ariana and 5-year-old Tyler Payne. Ariana was found dead in a storage bin earlier this year. Tyler's body has never been found.
Their father, Christopher Payne, is accused in both their deaths.
CPS documents show caseworkers went to Payne's home several times, but they never encountered any signs of abuse. The other case involved 5-year-old Brandon Williams. Police say he was beaten to death earlier this year.
His mother, Diane Marsh, and roommate Flower Thompson are accused of killing him.
CPS workers investigated a report of neglect, but didn't find any abuse. The report says CPS tried numerous times to find Marsh, but lost contact with her and the child.
State representative Jonathan Paton says the summaries CPS released are inadequate.
"In this case the children are dead so there's no way that we're really protecting anyone except for possibly those who killed them or the agency."
Paton is working to have all the documents released to find out how the system can prevent other children from being victimized.
Mom Of 5 Kiyana Higgins Arrested For Child Abuse After 1YO Daughter Dies
TUCSON (KGUN9-TV) - Tucson Police say it’s a severe case of child abuse that may have caused the death of a one-year-old girl.
A 23-year-old Kiyana Higgins is behind bars as police wait for autopsy results to see if the baby died at the hands of her own mother. Detectives say her 3-year-old brother remains in serious condition at a local hospital, with similar signs of abuse.
Detectives are continuing the investigation as they interview the three other children – all under the age of 10 – as well as three adult family members who also live in the home.
A phone call from the 1800 block of S. Kitt Place Thursday morning alarmed Tucson Fire so much, they called Tucson Police. Medical personnel noticed signs of physical abuse on the one-year-old who had seizure-like behavior.
“They did what we like to call a scoop and run. They packed her into the ambulance and raced her to the hospital,” said Sgt. Matt Ronstadt, a TPD spokesperson.
All attempts to revive her failed; the baby girl died shortly after arriving at the hospital.
Police then arrested Higgins for two counts of child abuse, class 2 felonies, connected to the suspected abuse of the two children. Ronstadt said detectives are still investigating whether the three other children were physically abused but would not elaborate on the signs or kind of physical abuse.
9 On Your Side asked if the three other adults in the home could also be charged.
“Detectives certainly haven’t ruled out the possibility that there may be somebody else involved,” Ronstadt said, adding that they could also be charged for knowing about the abuse and not reporting it.
Another concern is the long-term adverse impact on the children who may not have been physically abused, but have experienced trauma in the home.
Rosie Dyer, a Supervisor at Casa de los Niños, said the children will need counseling to learn how to trust adults again and there is a possibility the children may act out what they saw.
“It can be intergenerational and the parents of these children may have experienced that in their lives. So you know, you want to stop that cycle and get help,” Dyer said.
Dyer added that the three adults living in the home may have refrained from calling authorities about the abuse because it could be the norm for the family – and that others may also experience anger issues.
[...]
The situation is still shocking to many people in the community, including Tomas Martinez. He called KGUN9 News to offer the family free funeral services at his chapel. He said it’s the least he can do to help out in such a tragic situation
“My stomach sort of turned realizing this was an innocent child that could not complain to anybody, could not be heard,” Martinez said. “I feel tremendously for the other children. It’s a sad situation.”
Ronstadt said there may be more charges pending for the Higgins, depending on the outcome of the investigation and autopsy.
http://www.kgun9.com/news/local/137324883.html
Mother's threat to kill child not enough to warrant a phone call?
The call to the Child Protective Services hotline came in on Aug. 3, 2004: a mother was thinking of killing herself and her young son.
Within a day, CPS decided the boy was in no danger.
Instead of doing an actual investigation – things like pulling her psychiatric records or contacting the boy's father – the case manager and his supervisor decided that what the mother really needed was better coping skills.
And so, after three months of working with a parent aid, CPS pronounced the mother a much improved coper and closed the case.
Almost three years to the day later, Jennifer Jansma tried to kill herself and succeeded in killing her 8-year-old son Jordan – exactly as she'd described that she would.
Now, the state is asking a judge to toss out the father's lawsuit, saying there's no proof that CPS fell below “the appropriate standard of care.”
This was the appropriate standard of care?
Explains a lot, doesn't it?
Jansma had brought her son to Phoenix from Colorado early in the decade, after splitting with her boyfriend, Woody Drummond, who has since changed his name to Iacovetta. The couple had had a turbulent relationship and a bitter custody battle. A judge gave Jansma custody but ruled that Iacovetta must be promptly informed of major decisions about the boy's health or welfare.
On Aug. 3, 2004, 26-year-old Jansma put 4-year-old Jordan in respite care and checked herself into a mental hospital, explaining that she was thinking of killing herself and her son with an overdose of morphine.
A day later, she was back home when CPS came calling. Jansma, who had morphine on hand to deal with pain from an amputated leg, explained that she was overwhelmed by her son's behavior problems. The boy had recently been kicked out
CPS previously investigated mother accused of killing son with methadone
Posted: Mar 26, 2012 5:22 PM
Updated: Mar 26, 2012 5:22 PM
Posted by Sarah Cantey - email
Donna Rose Smith
RELATED LINKS
Neighbors react to OV mom charged with murder
OV mother charged with murder
ORO VALLEY, AZ (Tucson News Now) -
Tucson News Now has learned that Child Protective Services previously investigated an Oro Valley woman now accused of killing her young son with methadone.
Oro Valley police arrested Donna Rose Smith on March 9 at the home she shares with her parents.
The arrest followed a four week investigation into the death of 18-month-old Patrick Smith.
Officers found the toddler unresponsive after a 911 call brought them to a home Feb. 5.
Patrick was pronounced dead at the hospital.
CPS now says it had contacted Donna Smith about reported child neglect in July 2010.
A CPS release says Smith admitted to using a painkiller that was not prescribed to her during pregnancy, causing Patrick to test positive for opiates at birth.
CPS says Smith did not have the means to independently care for the baby which put him at risk for injury, malnutrition, developmental delays, even death.
CPS says Smith was offered substance abuse treatment, parenting education and professional case management.
Copyright 2012 Tucson News Now. All rights reserved.
Monday, March 19, 2012
Mom's Meth Use May Affect Kids' Behavior
Mom's Meth Use May Affect Kids' Behavior
By Todd Neale, Senior Staff Writer, MedPage Today
Published: March 19, 2012
Reviewed by Dori F. Zaleznik, MD; Associate Clinical Professor of Medicine, Harvard Medical School, Boston.
Action Points
This prospective cohort study found that children 3 and 5 years of age who were exposed to methamphetamines in utero displayed behavior problems more often than matched unexposed controls.
Note that behavior problems were determined by caregiver answers to a questionnaire administered by a study interviewer.
Women who use methamphetamine during pregnancy may be placing their unborn children at risk for behavioral problems during childhood, researchers found.
At ages 3 and 5, children who had been exposed to methamphetamine in the womb had greater emotional reactivity (P=0.006) and higher levels of anxiety and depression (P=0.019) than their unexposed peers, according to Linda LaGasse, PhD, of Brown University in Providence, R.I., and colleagues.
Also, at age 5 only, exposure was associated with externalizing behavior problems (acting out) and attention-deficit/hyperactivity disorder (ADHD) symptoms, the researchers reported online ahead of the April issue of Pediatrics.
"The ability to identify specific behavioral syndromes in children as early as preschool age could lead to the development of preventive intervention programs," they wrote, adding that early intervention "may prevent escalation into delinquency and psychopathology."
Methamphetamine is used by more people around the world than cocaine and opiates combined and, unlike other drugs, methamphetamine is used for the first time more often by women than by men.
That raises concerns about the effects of prenatal exposure to methamphetamine, which has been associated with adverse effects on fetal growth, infant neurobehavior, and fine motor function. Little is known, however, about the potential impact on early childhood behavior.
So the researchers turned to the Infant Development, Environment, and Lifestyle (IDEAL) study, a prospective, longitudinal study of prenatal methamphetamine exposure using participants from Los Angeles, Honolulu, Des Moines, Iowa, and Tulsa, Okla.
Methamphetamine use during pregnancy was either reported by the mothers or confirmed by a meconium screen. Women in the comparison group denied using methamphetamine and had a negative meconium screen.
The current analysis included 166 children who had been exposed to methamphetamine and 164 who had not. They were assessed for behavior problems at ages 3 and 5 using the caregiver-reported Child Behavior Checklist administered by a study interviewer.
After adjustment for numerous potential confounders -- including environmental risk and prenatal exposure to cigarettes, alcohol, and marijuana -- prenatal methamphetamine exposure was associated with some behavior problems in the children.
The significantly greater levels of externalizing and ADHD symptoms in the exposed children at age 5 were the result of decreases in these symptoms in the comparison group, but not in the methamphetamine-exposed group.
Heavy use of methamphetamine -- defined as use at least three days a week during pregnancy -- was associated with attention problems and withdrawn behavior at both ages. Prenatal methamphetamine exposure was not, however, associated with internalizing behavior or total behavioral problems.
The findings on externalizing behaviors in the current study are consistent with studies of prenatal cocaine exposure, despite differences in study populations. The cocaine studies were mostly conducted with inner-city, black, low-income, poorly educated mothers, while the IDEAL study was conducted with mostly non-black, working class, and educated mothers from rural areas.
"Despite adjustment for demographic factors, the population differences suggest that these effects on behavior problems are quite robust and may have substantial public health implications, because problems as noted on the Child Behavior Checklist tend to persist over time and predict later psychopathology and criminal behavior that place tremendous burdens on society," the authors wrote.
They acknowledged that the findings might not be generalizable to all women who use methamphetamine during pregnancy and that the study may be limited by recall bias regarding the use of methamphetamine during pregnancy and by reporting bias regarding children's behavior.
Funding was provided by the National Institute on Drug Abuse and in part by the National Center for Research Resources. The study was funded by the National Institutes of Health.
The authors reported that they had no conflicts of interest.
Primary source: Pediatrics
Source reference:
LaGasse L, et al "Prenatal methamphetamine exposure and childhood behavior problems at 3 and 5 years of age" Pediatrics 2012; 129: 681-688; DOI: 10.1542/peds.2011-2209.
By Todd Neale, Senior Staff Writer, MedPage Today
Published: March 19, 2012
Reviewed by Dori F. Zaleznik, MD; Associate Clinical Professor of Medicine, Harvard Medical School, Boston.
Action Points
This prospective cohort study found that children 3 and 5 years of age who were exposed to methamphetamines in utero displayed behavior problems more often than matched unexposed controls.
Note that behavior problems were determined by caregiver answers to a questionnaire administered by a study interviewer.
Women who use methamphetamine during pregnancy may be placing their unborn children at risk for behavioral problems during childhood, researchers found.
At ages 3 and 5, children who had been exposed to methamphetamine in the womb had greater emotional reactivity (P=0.006) and higher levels of anxiety and depression (P=0.019) than their unexposed peers, according to Linda LaGasse, PhD, of Brown University in Providence, R.I., and colleagues.
Also, at age 5 only, exposure was associated with externalizing behavior problems (acting out) and attention-deficit/hyperactivity disorder (ADHD) symptoms, the researchers reported online ahead of the April issue of Pediatrics.
"The ability to identify specific behavioral syndromes in children as early as preschool age could lead to the development of preventive intervention programs," they wrote, adding that early intervention "may prevent escalation into delinquency and psychopathology."
Methamphetamine is used by more people around the world than cocaine and opiates combined and, unlike other drugs, methamphetamine is used for the first time more often by women than by men.
That raises concerns about the effects of prenatal exposure to methamphetamine, which has been associated with adverse effects on fetal growth, infant neurobehavior, and fine motor function. Little is known, however, about the potential impact on early childhood behavior.
So the researchers turned to the Infant Development, Environment, and Lifestyle (IDEAL) study, a prospective, longitudinal study of prenatal methamphetamine exposure using participants from Los Angeles, Honolulu, Des Moines, Iowa, and Tulsa, Okla.
Methamphetamine use during pregnancy was either reported by the mothers or confirmed by a meconium screen. Women in the comparison group denied using methamphetamine and had a negative meconium screen.
The current analysis included 166 children who had been exposed to methamphetamine and 164 who had not. They were assessed for behavior problems at ages 3 and 5 using the caregiver-reported Child Behavior Checklist administered by a study interviewer.
After adjustment for numerous potential confounders -- including environmental risk and prenatal exposure to cigarettes, alcohol, and marijuana -- prenatal methamphetamine exposure was associated with some behavior problems in the children.
The significantly greater levels of externalizing and ADHD symptoms in the exposed children at age 5 were the result of decreases in these symptoms in the comparison group, but not in the methamphetamine-exposed group.
Heavy use of methamphetamine -- defined as use at least three days a week during pregnancy -- was associated with attention problems and withdrawn behavior at both ages. Prenatal methamphetamine exposure was not, however, associated with internalizing behavior or total behavioral problems.
The findings on externalizing behaviors in the current study are consistent with studies of prenatal cocaine exposure, despite differences in study populations. The cocaine studies were mostly conducted with inner-city, black, low-income, poorly educated mothers, while the IDEAL study was conducted with mostly non-black, working class, and educated mothers from rural areas.
"Despite adjustment for demographic factors, the population differences suggest that these effects on behavior problems are quite robust and may have substantial public health implications, because problems as noted on the Child Behavior Checklist tend to persist over time and predict later psychopathology and criminal behavior that place tremendous burdens on society," the authors wrote.
They acknowledged that the findings might not be generalizable to all women who use methamphetamine during pregnancy and that the study may be limited by recall bias regarding the use of methamphetamine during pregnancy and by reporting bias regarding children's behavior.
Funding was provided by the National Institute on Drug Abuse and in part by the National Center for Research Resources. The study was funded by the National Institutes of Health.
The authors reported that they had no conflicts of interest.
Primary source: Pediatrics
Source reference:
LaGasse L, et al "Prenatal methamphetamine exposure and childhood behavior problems at 3 and 5 years of age" Pediatrics 2012; 129: 681-688; DOI: 10.1542/peds.2011-2209.
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