What is the Fourth Amendment?
Why is the Fourth Amendment often cited in Child Protective Services cases?
The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
U.S. District Judge Earl H. Carroll, a Federal judge, has ruled that social workers have to respect the U.S. Constitution regarding privacy and parental rights, and if they don’t they may be held liable. The ruling comes in an Arizona case in which social workers, accompanied by Maricopa County deputy sheriffs, made unsupported threats to place a family’s children in custody and arrest the parents if they were not allowed to make what ended up being an allegedly illegal search of the family’s home.
Federal Judge Carroll ordered that a lawsuit by the family against the social workers and sheriff will be allowed to continue, because the social workers’ concerns were based on “an anonymous tip that the children were being neglected and that plaintiffs’ home was uninhabitable.” Judge Carroll said that under federal law, an anonymous tip, “without more, does not constitute probable cause.” Loudermilk v. Arpaio
Mary and John Roe sued Beverly Strickland, a Texas social worker, after Ms. Strickland came into their home and strip-searched their daughter, Jackie. The social worker was responding to an anonymous tip making non-emergency allegations. She found no evidence of abuse or neglect. A Federal District Court ruling held that the law in such instances was clearly established; the Fourth Amendment applies to social services investigations and this worker should have known that the search violated the family’s rights. CPS/DFCS Social Workers, like police officers, must have a warrant based on probable cause, consent, or there must be an immediate threat to life or limb. Mary Roe v. CPS
CPS Social Workers need a warrant to enter your home
In order for an officer of the court** to enter your home against your will, be it a social worker or police officer, he or she must have a warrant in their hand when they step through your door. If someone has evidence that you have committed a crime, such evidence must be presented to a judge, while under oath or affirmation, and the judge must decide whether that evidence contains sufficient “probable cause” for issuance of a warrant.
**Who can be an “Officer of the Court?”
An “officer of the court” is a title applied to someone who works in the legal system. Most people would assume that only a lawyer or a judge are considered to be an officer of the court, but this is not the case. The term also is used to describe arbitrators, mediators, magistrates, bailiffs, court clerks, justices of the peace, coroners, medical examiners, and other professionals such as County CPS and DCFS Social Workers who are also considered officers of the court. The use of their skills, equipment and experience is often required to make a decision, elevating their status from witness to officer. An “officer of the court” often is someone who makes decisions and has an impact on the outcome of a case. Social Workers often have an impact on a Juvenile Dependency case and it often requires the help of a skilled and experienced Juvenile Dependency Attorney to balance or counter that often-times family destroying “impact.”
8 Tips When a CPS/DCFS Social Worker is at Your Door
Below are 8 Tips on how to handle a CPS social worker or police officer at your door who are investigating allegations of child abuse or child neglect.
1) – If you are phoned or contacted in person by a CPS or DCFS Social Worker and told that there is an allegation made against you, inquire with the social worker the exact nature of the complaint against you. Furthermore, request them to give you the actual state statute number or local ordinance code that you have allegedly violated. Write it down. If you are surprised at your door, and don’t have a pen and paper, politely ask their forgiveness while you gather writing material, excuse yourself for “a minute” calmly close, and quietly lock the door (don’t be obvious), and go get something to write on. Return and make precise notes.
2) – Identify the social worker(s) and/or police officer(s)persons at your door. Ask them for their business card(s) and write down their badge numbers. You already have your pen and paper at this point.
3) – If you have advanced notice or suspect that you are being investigated and expect a home visit you might be able to document the front door or in-home conversation with a video camera or audio tape recorder. It is not unlawful to conceal the camera or recorder so that the social worker or police officer is unaware of the taping. Many parents use such devices to protect their children from abuse from baby sitters. This type of recording on your own property is never illegal, no matter what you are told by the social worker or police officer. In California it is illegal to record a telephone call without the consent of all parties to the conversation. Penal Code § 632. That said, if you were to video tape yourself while talking on the phone so that your side of the conversation was recorded that might be useful to remember exactly what you said.
4) – If the CPS / DCFS Social Worker asks to come into your home politely inform them that you’d rather not have them in. If they insist, coerce, or threaten you with some consequence for keeping them out, stand your ground. If they persist ask the social worker or police officer if they have a warrant or court order that gives them the authority to enter your home against your will. If the social worker or police officer insists that they do not need a warrant under the circumstances, tell them again that you will be glad to cooperate and allow them to enter your home if they possess a warrant or court order signed by a judge or magistrate. If a police officer then demands that you step out of the way and insists they are entering your home, it would be advisable to step aside or you might end up arrested. The abuse of authority can be addressed later without you ending up in a jail cell.
5) – These same legal rights protect you should an officer of the court such as a CPS/DCFS social worker, or police officer attempt to convince or coerce you to do anything against your will. For example, you should not assume that you HAVE TO drive to and show up at the offices of the county social worker; nor should you be coerced to “bring your children into the CPS or DCFS offices to be interviewed” without being served with a legal court order to do so. Only a judge or magistrate, presented with evidence that you have committed a crime, can issue an order that you are obligated to obey or comply with. Unfortunately, 90% of people will mistakenly comply with such “orders” as they seem “mandatory” – all the while the CPS social workers are building a case against you with your help and your willing cooperation. If such requests are being made of you it might be time to seek legal counsel as it is likely that the social workers are, in fact, building a case against you.
6) – If the CPS social worker or police officer uses force to enter your home against your will, it is in your best interest to NOT RESIST. Even if the forced entry into your home is unwarranted, you should not physically resist the officer of the court. Instead, advise the social worker or police officer that they do not have your permission to enter, and that if they continue entry into your home without your permission, you will pursue legal action against them. If you were clued in that this visit was coming and the forced intrusion were recorded on a video or sound recorder, such evidence would be very helpful for your attorney and very helpful for you and your kids.
7) – Attempt to record all of your telephone conversations with any CPS or DCFS employees. Recording devices for standard phones can be found at Radio Shack. For Smart Phones, there are APPs available to record the calls, you can even place calls using your computer with Skype and use Skype recorders such as found HERE or HERE. In California, it is unlawful to record a telephone conversation without the consent of both parties. Therefore before continuing with the conversation ask the CPS social worker if he or she agrees that you record the call. If they refuse, and you absolutely feel compelled to talk to social workers by phone, you could use your smart phone, tape recorder or video camera to record only your side of the conversation which might be useful for your attorney later on if the social workers actually end up taking your child/children from you.
8) – Compile a list of emergency telephone numbers that will be readily accessible to you should any confrontation with a CPS / DCFS social worker or police over the raising of your children, the discipline of your children, or any abuse or neglect of your children. In addition to a written list, take a few minutes and program these emergency phone numbers into your cell phone as Speed Dial Numbers. For example: your spouse’s work number, a neighbor who is on your side and would be willing (ahead of time) to come over and witness the interaction of you and the social worker, and a Juvenile Dependency and Criminal Defense lawyer who will be immediately available if your children are forcibly taken from you; if your children are taken from their school without your knowledge, or should you be arrested by the police.