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Child Protective Services and Fundamental Familial Rights
ROUGH DRAFT OF MATERIALS STUDENTS
Justice Leah Ward Sears Class
UGA Law School
Introduction: The Right to Family Integrity and Privacy
The law is clear and settled that there is a fundamental right to family integrity
and privacy older than the Constitution itself,1 a “private realm of family life which the
state cannot enter.”2 There is also no doubt that this fundamental freedom protects
families from unwarranted intrusion by government child protective service agencies.3
Indeed, as the Supreme Court held in Troxel v. Granville:4
“[S]o long as a parent adequately cares for his or her children (i.e., is fit),
there will normally be no reason for the State to inject itself into the
private realm of the family to further question the ability of that parent to
make the best decisions concerning the rearing of that parent's children.”
Failure to observe that “zone of privacy” exposes the state to a claim that it has
violated the family’s Fourth,5 Fifth,6 and Fourteenth7 amendment rights under the
Constitution. Troxel and its precedental ancestors and progeny make clear that the state
cannot forcibly separate parent and child for any significant period of time without a
court hearing,8 clear and convincing evidence of parental unfitness,9 and provision of
counsel to the parent.10 But, as many lower courts have held, none of these protections
prohibits the state from pursuing its responsibility to protect children from abuse and
neglect, and “[t]he right to familial integrity . . . does not include a right to remain free
from child abuse investigations.”11 So while the “so long” part of the Troxel formula is
clear, the question not answered by that or other Supreme Court decisions is what
happens when the claim is made that the parent is not fit. The following questions often
arise:
 Under what conditions may the state intervene to investigate whether the parent
is unfit, and what actions may it take during that investigation?
1
Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Pierce v. Society of Sisters, 268 U.S. 510, 535-36
(1926); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923).
2
Prince v. Massachusetts, 321 U.S. 158, 166, (1944).
3
Cite.
4
530 U.S. 57, 68-69 (U.S. 2000); accord Stanley v. Illinois [cit].
5
cites
6
cites
7
cites
8
cite
9
cite
10
cite
11
Croft v. Westmoreland County, 103 F3d 1123, 1125 (3rd Cir. 1997); see also cites.
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 What evidence is necessary to justify state intervention in the family short of
separating parent and child?
 What is the threshold level of state intervention at which the protections of
Troxel, Stanley, et al. kick in?
These questions are especially pressing for child protective service agencies as
well as welfare attorneys and judges. Increasingly, child protective practice nationwide
emphasizes less reliance on foster care and expanded use of alternative response systems,
family preservation programs and voluntary “safety plans” and “safety resources.” These
practices are intended to be less intrusive and emphasize cooperation between the agency
and the family. But because the agency’s intervention is backed by the power of the
government, some have expressed concern that these more “family-centered” practices
can improperly intrude on family rights without extending to families the due process
protections and court oversight they would otherwise have if the agency took the
additional step of placing the child in foster care.12
Examining current social work and child protective service practices within the
state of Georgia, this article attempts to determine when child protective agency
intervention reaches a level at which procedural due process protections apply and how
one might properly balance the state’s interest in protecting children against the family’s
interest in freedom from government interference.
Current Child Protective Services Policy and Practice
The “traditional” model of child protective services practice suggests that when
the agency receives a report of abuse or neglect, it investigates and, if it believes
intervention is warranted, the juvenile or family court is called and a petition alleging
deprivation or dependency is filed. While the case decisions are somewhat inconsistent,
the general rule is that the state may not separate a child from his or her family without a
court order or reasonable evidence showing the child is in imminent danger or harm or
abuse.13
In reliance on that model, states and the federal government have enacted
numerous protections for parents and children subjected to interventions by government
child protective service agencies. In Georgia, the juvenile court is the court of “exclusive
jurisdiction” for children alleged to be without a fit parent or guardian.14 If a child is
removed due to allegations that he or she is deprived, the court must hold a preliminary
hearing on the issue within 72 hours.15 The parties in court have the right to attorneys,
See, e.g., Sinden, “Won't Mom Cooperate?: A Critique of Informality in Child Welfare Proceedings,” 11
Yale J.L & Feminism 339 (1998); Pearson, “Cooperate Or We'll Take Your Child: The Parents' Fictional
Voluntary Separation Decision And A Proposal For Change,” 65 Tenn. L. Rev. 835 (1998).
13
See, e.g., Tenenbaum v. Williams, , 193 F.3d 581, 594 (2d Cir. 1999).
14
OCGA § 15-11-28(a)(1).
15
OCGA § 15-11-49(c)(3).
12
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including free attorneys if they are indigent.16 The parties are have the rights to present
evidence and cross-examine witnesses17 and rights of the children in such cases include
the right to a guardian ad litem.18 Children may not be separated from their parent or
guardian for any significant length of time without a court finding, by clear and
convincing evidence, that the parent is unfit and that the parent’s lack of fitness is
harmful to the child.19 These statutory and judicially-created rights ensure the child and
the family are afforded appropriate substantive and procedural due process when the
state’s child protective service agency intervenes in their lives.
Increasingly, however, children are neither taken into foster care nor are families
brought before the court to answer the agency’s charges. In Georgia, for example, foster
care rolls dropped by 40% between 2004 and 2009 based in large part on concerted
efforts to use alternative response mechanisms and family preservation programs. The
agency’s reliance on the juvenile court dropped in response. Between fiscal years 2007
and 2009 in one suburban metropolitan county, dependency case filings dropped by
44%.20 Over half of child maltreatment reports are now handled through an alternative
response known as “diversion,” whereby families are referred to outside services.21
Among those family preservation practices are the use of “safety plans” and
“safety resources.” A safety plan is a voluntary agreement by the parent to take specific
steps to keep the child safe or refrain from doing something that is endangering the child.
These plans are sometimes as simple as an agreement to place childproof locks on a
cabinet, but they may be as complicated as ensuring that all visitation between a child and
parent is supervised by an agency-approved adult. A “safety resource” plan goes even
further. In it, the parent agrees to place the child with a friend, neighbor, or relative until
a CPS investigation is complete or until the problems that resulted in CPS involvement
are resolved. Sometimes the child remains in the home with an approved parent or
relative while the parent accused of neglect or abuse moves out.
Whether these safety plan and safety resource agreements are truly “voluntary”
has been the subject of both scholarly debate22 and extensive litigation.23 This article will
16
OCGA § 15-11-6. A federal court has determined the right to an attorney extends to the child involved
in the proceeding. Kenny A. v. Perdue, 356 F. Supp. 2d 1353, 1355 (N.D. Ga. 2005).
17
OCGA § 15-11-7.
18
OCGA § 15-11-9.
19
E.g., In the Int. of D.S., 283 Ga. App. 767, 769 (2007).
20
Statistics received in electronic communication from Gwinnett Juvenile Court to author July, 2009.
21
“Reducing the Foster Care Rolls: Are We Using the Right Tools?” Office of the Child Advocate, State
of Georgia, July 2009, available at
http://oca.georgia.gov/vgn/images/portal/cit_1210/62/38/145957858Safety%20Resource%20Report%20FI
NAL.pdf
22
See supra n. ___
23
E.g., Dupuy v. Samuels, 465 F.3d 757, 761 (7th Cir. 2006), a class action contesting as unconstitutional
Illinois’ use of safety plans. A full history of the litigation and its fallout is available at
www.familydefensecenter.net
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not focus on the voluntariness issue, because asking that question naturally presumes that
government child protective workers had the right to intervene in the family’s life to
begin with. This article, rather, inquires into the conditions under which the government
can justifiably request or require a parent or child to engage with the Department’s
investigative or service efforts absent a court order.
CPS Investigations and Fundamental Rights: Some General Rules
The Fourth Amendment protects individuals from unreasonable searches or
seizures of their person or property. In the context of the police officer’s interaction with
a suspected criminal, the Supreme Court has passed on the facts and law of so many
police-citizen interactions that the rules are fairly clear. The Fourth Amendment does not
prohibit a police officer from knocking on the front door of a house and asking whether
the homeowner would mind answering questions. A police officer’s stop of a vehicle or
brief detention, questioning, and search of an individual, however, requires justification:
a reasonable, articulable suspicion, based on facts, that the individual has committed or is
committing a crime.24 And a police officer cannot enter a person’s home without consent
or a warrant unless probable cause, combined with exigent circumstances, justify
warrantless entry.25 Exigent circumstances are, generally, limited to situations in which
there is imminent threat to a person inside the home or, as one Circuit holds,
“.circumstances that would cause a reasonable person to believe that entry was necessary
to prevent . . . destruction of relevant evidence, the escape of the suspect, or some other
consequence improperly frustrating legitimate law enforcement efforts.”26
While less often the focus of court inquiry, child protective services investigations
and actions are often evaluated using language similar to that used in Fourth Amendment
analyses.27 Such similarity is to be expected. The Fourth Amendment preserves the right
to be free from warrantless searches by the government, without limiting that right to one
type of official.28 The Supreme Court has itself described the Fourth and Fifth
Amendment as “protection against all governmental invasions `of the sanctity of a man's
home and the privacies of life’.”29 Numerous federal cases have questioned whether
child protective services investigations were supported by “reasonable suspicion”30 or by
“reasonable and articulable evidence giving rise to a reasonable suspicion that a child has
been abused or is in imminent danger of abuse.”31 Others have analyzed whether a
24
Terry v. Ohio, 392 U.S. 1.
Payton v. New York, 445 U.S. 573, 586 (U.S. 1980).
26
United States v. Brooks, 367 F.3d 1128, 1135 (9th Cir. Cal. 2004).
27
Wooley v. City of Baton Rouge, 211 F.3d 913, 925 (5th Cir. 2000) ("Identical fourth amendment
standards apply in both the criminal and civil contexts."); Franks v. Smith, 717 F.2d 183, 186 (5th Cir.
1983) ("A section 1983 action can also lie against others, such as social workers, where actions by them
were taken in their official capacity as state employees.").
28
Michael C. v. Gresbach, 526 F.3d 1008, 1016 (7th Cir. Wis. 2008)
29
Griswold v. Connecticut, cite
30
cites
31
Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. Pa. 1997)
25
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warrantless intrusion into a home for purposes of a child protective services investigation
was justified by “exigent circumstances.”32
As noted above, the propriety of child protective service investigations and
interventions are also analyzed pursuant to Fifth and Fourteenth Amendment interests of
the family in privacy and familial integrity. Thus, in Gomes v. Wood, the 10th Circuit
Court of Appeals emphasized that in ordinary circumstances due process requires the
parents receive prior notice and a hearing.33 In determining whether intervention without
a court order was warranted, however, that court and others as a general rule fall back on
Fourth Amendment concepts of whether the “search” or “seizure” of the child was
reasonable and justified by the circumstances. In the following sections we examine how
different “levels” of familial intrusion by child protective service agencies are addressed
by the Courts.
Searches of and Interviews With Children
Child protective service agency policies often call for children who are suspected
victims of abuse to be interviewed at the first possible opportunity. These policies also
often call for children to be undressed and examined for bruises. Such contacts without
parental permission raise serious Fourth and Fourteenth Amendment issues.
Interviewing a child at a school without parental permission raises both Fourth
Amendment and family liberty interests, and the time, place, and manner of the interview
can impact its constitutionality. For example, an interview of a child at a private school
may violate the Fourth Amendment, while the same interview of a child at a public
school may not. In Doe v. Heck, 34 parents sued after child protective services workers,
accompanied by police, interviewed their 11 year-old son at his private school after
receiving complaints that children there were subjected to excessive corporal punishment.
The social workers interviewed the child over the school’s objections about punishments
he received at school and at home. The 7th Circuit held that the child’s and family’s
Fourth Amendment rights and privacy rights had been violated.
To determine whether the interview was inappropriate, the Court looked to the
parents’ subjective and objective expectations of privacy for their child while at the
school. The Court held:
“[W]hile [the child. may not have exhibited a subjective expectation of
privacy in [the private school’s] premises, we have held that such a
showing is unnecessary when the search or seizure at issue is of a young
child,” the Court wrote. And by “entrusting him to the care of the school's
32
Gates v. Tex. Dept. Prot. and Reg. Svcs., 537 F.3d 404 (5th Cir. 2008).
Gomes v. Wood, 451 F3d 1122 (2006).
34
327 F3d 492 (7th Cir. 2003)
33
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officials in loco parentis, the [parents] manifested a subjective expectation
of privacy in the premises of the school.”35
The 7th Circuit reaffirmed Heck’s holding in the context of physical examinations for
bruises in Michael C. v. Gresbach.36
In the public school setting, child protective service workers are likely to have
more leeway to interview students and to examine them, as the parents may not have as
high an expectation of privacy in a public school setting as in a private. Even in the
public school setting, child examinations that are overly intrusive or that are not
sufficiently supported by evidence may violate the rights of parent or child. Few cases to
date, however, have given clear guidance on how courts reviewing interviews and
searches of children in the public school setting should balance the child’s or family’s
privacy rights against the state’s obligations to investigate abuse. In Darryl H. v. Coler,37
the appellate court refused to dig into the details of the issue when determining whether a
preliminary injunction should issue barring a child protection agency from performing
searches of children at school. The Court did, however, caution that intrusive
examinations of children that exposed their private areas were suspect, and that while a
physical examination of a young or nonverbal child might be considered reasonable, a
similar search of an older child who can communicate might not. As the court noted:
The test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application. In each case it requires a
balancing of the need for the particular search against the invasion of
personal rights that the search entails. Courts must consider the scope of
the particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is conducted.38
In Coler, the Court refused at that stage of the litigation to impose a probable
cause or warrant requirement on interviews with or physical examinations of children in
the public school setting.
Other courts have taken a harder stance on these issues, especially when the
intrusion is more significant. Even where an examination or questioning of the child
might occur in a place where there is no family expectation of privacy, there are limits to
what the agency can require of the child without parental permission. Thus, the Second
Circuit has held a child protection agency violated the rights of parents of a child with a
broken leg when it independently ordered the hospital to perform additional x-rays on the
35
Id. at 512; accord Word of Faith Fellowship, Inc. v. Rutherford County Dep't of Soc. Servs., 329 F. Supp.
2d 675, 687 (W.D.N.C. 2004).
36
526 F.3d 1008, 1018 (7th Cir. Wis. 2008)
37
801 F.2d 893, 895 (7th Cir. Ill. 1986)
38
Darryl H. v. Coler, 801 F.2d 893, 902-903 (7th Cir. Ill. 1986)
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child to check for prior abusive injuries.39 Likewise, New York officials violated a
family’s integrity rights when, without a court order, they took the daughter from school
to a gynecologist to be examined for possible sexual abuse.40 In Roe v. Tex. Dep't of
Protective & Regulatory Servs.,41 the Fifth Circuit held that a body cavity search of a
suspected child victim of sexual abuse is not permissible absent a court order, parental
consent, or probable cause.
Perhaps the most instructive decision comes not from litigation over a child abuse
investigation but from the Supreme Court’s recent opinion in Safford Unified School
District #1 v. Redding,42 where the Court reiterated that an examination of a child in a
public school be “reasonably related in scope to the circumstances which justified the
interference” and “not excessively intrusive in light of the age and sex of the student and
the nature of the [investigation]."43
These cases clarify that the state may well violate a family’s privacy interests
when it interviews or examines a child without parental permission. Whether the state is
justified may depend on the facts. Did the parents send their child to a public school, or
did they seek less government scrutiny by choosing a private school? Were officials
viewing parts of the child’s body that his or her friends might see or requiring the child to
expose private areas? Did the activities occur on a school campus, or did officials take
the child elsewhere without telling the parents? Is the child old enough to make his or
her own decisions independent of the family, or is the child so young that the only way to
determine whether abuse occurred to inspect the child?
Entry into Homes
The Courts have most strongly supported the right to family privacy and integrity
when child protective service workers without a warrant or court order have attempted to
enter the family home in their investigation efforts. The recent Fifth Circuit case of Gates
v. Texas. Dep't of Protective & Regulatory Services44 presents a prime example. There,
social workers accompanied by police insisted on entering the Gates’ home to interview
their children as part of a child abuse investigation. The Court began by noting that
"physical entry of the home is the chief evil against which the Fourth Amendment is
directed . . . . Pursuant to our Fourth Amendment law, warrantless searches of a person's
home are presumptively unreasonable unless the person consents, or unless probable
cause and exigent circumstances justify the search."45 Finding no consent, the Court also
39
Van Emrik v. Chemung County Dep't of Social Services, 911 F.2d 863, 867 (2d Cir. N.Y. 1990).
Tenenbaum v. Williams, 193 F.3d 581, 605 (2d Cir. N.Y. 1999).
41
299 F.3d 395, 407-408 (5th Cir. Tex. 2002)
42
___ U.S. ___, 129 S. Ct. 2633 (U.S. 2009)
43
Id., slip op. at ___
44
537 F.3d 404, 421 (5th Cir. Tex. 2008)
45
Id., 527 F3d at ___ (internal citation and punctuation omitted).
40
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rejected any suggestion that social workers were justified in entering by “exigent
circumstances”:
“Turning to the facts of this case, we agree with the Gateses that there
were no exigent circumstances present at the time of the defendants' initial
entry into the Gateses' house that would have permitted the warrantless
intrusion. First, . . .the alleged abuser, was not at home, so there was no
immediate danger to the children. Also, at that time, TDPRS was not
aware of any allegations that Gary had abused any of his children besides
Travis, other than his unusual discipline methods. We further note that
none of the TDPRS employees treated these interviews as emergencies. . .
. . [T]the interviews conducted at the Gateses' home were routine, nonemergency interviews. In fact, the TDPRS employees went to lunch after
interviewing [other children in the family] at school without taking any
emergency measures. . . . Thus, at the time the individual defendants
approached the house, the only evidence of danger to the Gates children
was a one-time incident involving only [one child] and the questionable
discipline methods. These facts do not give rise to an `immediate danger’
supporting a warrantless entry into the Gateses' house. Indeed, the stated
purpose of entering the house was to interview the children, not to guard
them against some sort of immediate danger.”
Other courts have expressed the view, laid out in Gates, that the need to quickly
investigate a case, or general concern over a child’s safety do not constitute “exigent
circumstances” under the law.46 The courts are fairly in agreement that, absent an
emergency, the Fourth Amendment prohibits warrantless entry into a home even when
the purposes of that entry are to determine whether a child has suffered abuse.
Safety Plans
Current CPS practices often involve encouraging a parent to voluntarily agree
pursuant to a “safety plan” to take some action that will reduce the risk of harm to a child
pending the agency’s investigation or the institution of appropriate family services. As
noted above, some critics complain that these interventions are not truly voluntary. In
one noted case, the Court went further and questioned whether, under the circumstances,
the agency was even justified by the circumstances in requiring the father to move out of
the home temporarily.
Croft v. Westmoreland County Children and Youth Services, a Third Circuit case,
stemmed from an ultimatum given by a social worker that an accused father move out of
46
Good v. Dauphin County Social Services for Children & Youth, 891 F.2d 1087, 1096 (3d Cir. Pa. 1989);
Calabretta v. Floyd, 189 F.3d 808, 817 (9th Cir. Cal. 1999);. [more cites?]
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his home pending a child sexual abuse investigation or lose the child to foster care. In
Croft, the evidence on which the worker relied was an anonymous tip that the father was
sexually abusing the child and that the child “left the house naked at night and went to a
neighbor’s house and told the neighbors she was sleeping with mommy and daddy.”
When interviewed, the father confirmed only that the child on one occasion walked out of
their house at night and went the nanny’s house next door. The child confirmed that
event and “gave no indication that she had ever been sexually abused.” While the social
worker could not determine that abuse occurred, she believed that some inconsistencies
in the statements of the father and mother raised “red flags.” Her agency’s policy was
that if the social worker could not determine whether abuse occurred, she must attempt to
separate the child and accused pending the investigation. The Court held that an
anonymous tip and minor inconsistencies in the parents’ statements did not give the
social worker cause to demand that the father leave the home. The agency’s action was
unwarranted, the Court held, because the social worker “lacked objectively reasonable
grounds to believe the child had been sexually abused or was in imminent danger of
sexual abuse.”47 “An anonymous tip may justify investigation but will not provide
reasonable grounds for removal of a family member absent independent, articulable
criteria of reliability; and certainly not when all evidence is to the contrary,” the Court
held.48
Safety plans may also be subject to scrutiny on the basis that they are overly
broad. In Ault v. Speicher,49 the district court relied on binding precedent to declare
appropriate a safety plan that required a mother to leave her children with the
grandparents. It cautioned, however, that the plan -- which she was told would be in
place until the Department agreed otherwise and which severely limited her visitation
with the children – was suspect because it was not an “efficient” or “properly tailored”
means to the government’s justified end of protecting the children.
Other Courts have held that given sufficient evidence it is appropriate to ask a
parent to vacate the home pending an investigation. An exemplar here is Gottlieb v.
County of Orange50, a Second Circuit case in which the agency asked the parent accused
of child sexual abuse to remove himself from the home pending a 90-day investigation
rather than requiring the agency to seek a Court order. The Court had no problem
validating this arrangement despite the father’s argument that the agency was required
first to seek a Court order. It held:
“When the agency takes the child into its own custody, causing a complete
uprooting, it must promptly seek court approval. There are sound policy
reasons for not imposing such a requirement automatically when, in
preference to having the child removed, the parent has temporarily agreed
to leave the home.”
47
Croft, 103 F.3d at 1127
Cite.
49
2009 U.S. Dist. LEXIS 23495 (S.D. Ill. 2009)
50
84 F.3d 511, 522 (2d Cir. N.Y. 1996)
48
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Such reasons, the Court added, include the benefits of allowing the parties to work
together and take the time to resolve the matter themselves before going to Court.51
Otherwise, the requirement that a hearing be held in three days might, in essence, “gum
up the works” for all parties involved. Such a policy of allowing the parents and the
agency “wiggle room” to determine how best to proceed appears to have been the basis
for the Seventh Circuit decision in Dupuy v. Samuels,52 in which the Court rejected an
outright ban on the use of safety plans.
Taken together, these cases suggest that an agency with reasonable cause to
believe a child is at risk may strongly encourage a parent to agree voluntarily to
temporarily place the children elsewhere, for one parent to leave the home, or to take
measures that will ensure the child is not subjected to harm. However, a safety plan must
be justified by reasonable evidence, and it must be narrowly tailored so as to accomplish
the state’s appropriate purposes without overly burdening the family’s liberty interests.
When Are Family Rights Infringed?
Although child protective services investigations are intrusive, not every
imposition on a family’s integrity amounts to a violation of these fundamental rights. As
the Court noted in Croft,53 “[t]he right to familial integrity . . . does not include a right to
remain free from child abuse investigations.” Where a social worker wrongly told a
noncustodial father he could not visit with his child pending an abuse investigation, and
the only “loss” to the father during that time was one day’s visit, the court in Terry v.
Richardson54 suggested the violation insufficient to be actionable. “It is enough to say
that the deprivation is minor compared with the state's substantial interest in protecting
children . . . from sexual abuse,” the Court wrote. “This disparity affects what process is
due. Where the loss is small, due process does not require elaborate procedures in
advance.”55 Other courts have similarly held that child protection agencies have more
“leeway” in imposing on parental visitation rights than when they seek to remove a child
from the parent’s custody.56
The Balancing Test
Perhaps no better summation can be given of the rules governing child protective
services intervention than that described by the Court in Doe v. Heck:57
51
Id.
Supra n. ___
53
Supra n. 11.
54
346 F.3d 781, 787 (7th Cir. Ill. 2003)
55
346 F.3d at 787.
56
Brittain v. Hansen, 451 F.3d 982, 989-990 (9th Cir. Cal. 2006).
57
Supra, 327 F.3d at 520 (internal citations and punctuation omitted).
52
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Therefore, when analyzing a familial relations claim, a balance must be
reached between the fundamental right to the family unit and the state's
interest in protecting children from abuse.In weighing these competing
interests, we do so under the same reasonableness test used to evaluate
Fourth Amendment claims, under which we are required to consider: (1)
the nature of the privacy interest upon which the action taken by the State
intrudes; (2) the character of the intrusion that is complained of; (3) the
nature and immediacy of the governmental concern at issue; and (4) the
efficacy of the means employed by the government for meeting this
concern. This analytical framework allows courts to determine whether the
governmental action taken was justified at its inception, and reasonably
related in scope to the circumstances which allegedly justified the
interference in the first place. Thus, although child welfare caseworkers
may investigate allegations of child abuse without violating parents'
constitutional right to familial relations, they may not do so arbitrarily.”