Monday, October 18, 2010

Supreme Court will decide if “children’s rights” include the Constitution’s #4


            The U.S. Supreme Court has agreed to hear an appeal by Oregon’s Department of Human Services (DHS) of a ruling by the 9th Circuit U.S. Court of Appeals declaring that “children’s rights” include the right to be free from unreasonable search and seizure.

            The Court of Appeals also ruled that when a little girl is being stripsearched and having her genitals photographed by a total stranger, she also has a right to have her mother present to comfort her.  DHS doesn’t like that, either.

            So here’s what this case really is about:  Does a child have a right to be free from traumatic interrogations by total strangers when there is so little justification that a child welfare agency can’t even get a warrant?  Do children have a right to be free from weeks of needless foster care when a caseworker may have lied to obtain the right to take the children away? (More on that below.)  And does a young child at least have the right to have her mother present during an extremely traumatic medical exam?

            DHS thinks the answer to all of these questions should be “no.”  You can bet the overwhelming majority of child protective services agencies feel the same way.  Which means DHS and its counterparts really are seeking the the right to inflict nearly unlimited state-sanctioned child abuse.

            Indirectly, the case raises one more issue: Almost all of the questions in dispute in this case could have been quickly and easily resolved if only agencies like DHS were required to tape record all interviews in child protective services investigations – I don’t mean elaborate videotaping, a simple microcassette tape recorder (or digital equivalent) would be enough.


            The full opinion from the Court of Appeals in the case, now called Camreta v. Greene, is well worth reading, if only because, right at the outset, the court refuses to be suckered by the party line child protective services agencies use whenever they want to trample on civil liberties: The one that says: If you support civil liberties you’re putting parents rights ahead of children’s rights – only if you trample on those liberties are you somehow standing up for “children’s rights.”

The Court of Appeals wasn’t fooled.  On the contrary, the court recognized that  Fourth Amendment (and Fourteenth Amendment) rights are a vital protection for the children themselves.

            Citing a law review article on the topic, the decision notes that:

Of the 3.6 million investigations conducted by state and local agencies in 2006, only about a quarter concluded that the children were indeed victims of abuse. … This discrepancy creates the risk that “in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help.”

            In this case, the family alleges that a DHS caseworker, accompanied by an armed deputy sheriff, went to a child’s school, interrogated the nine-year-old for two hours and badgered her into accusing her father of sexual abuse.  The girl claims she finally gave in to get the interview over with.  The caseworker denies this, saying the interrogation lasted one hour and the statements were made freely.  Too bad there’s no tape recording so we’d know one way or the other.


            If these allegations are true, then the tactics are frighteningly similar to the widespread badgering of children during the wave of hysteria over alleged “mass molestation” at day care centers which swept through the country during the 1980s; the McMartin Preschool being the most notorious case.  Nearly every conviction in these cases ultimately was overturned – often because tape recordings revealed how children had been badgered and coerced.  (Sadly, with the passage of time, those abuses are being forgotten and, in some cases, starting to be repeated.)

            In the Oregon case, the family alleges that the illegal, warrantless interrogation set off a cascade of other errors, though it is not clear if the Supreme Court will be reviewing those as well. [UPDATE: The Supreme Court will review only the issues surrounding the initial interrogation of the child.  That's good news - it means the Court of Appeals' excellent ruling on the subsequent issues discussed below is not being challenged.  Now the question is whether child welfare agencies in Oregon, California and the other western states where the ruling is binding will, in fact, obey the law.]
            ●After the interviews, the caseworker went to the mother and said she had to kick Dad out of the house during the investigation or he’d take away the children.  Mom says she told the caseworker this would be difficult for her but she’d do it.  The caseworker went to court and claimed Mom said exactly the opposite.  It appears somebody lied – and once again there is no tape recording.

            ●Then the caseworker ordered the nine-year-old and her sister to undergo sexual abuse examinations at a place called the KIDS Intervention & Diagnostic Service Center.  In other words, the children were stripsearched, had their genitals photographed and so on.

            Mom wanted to be with the children to comfort them.  But, in what the family alleges was a violation of the mother’s – and the children’s  - Fourteenth Amendment rights, the caseworker banned mom not only from the room, but from the entire building.  (On this, it appears, there is no dispute.)

            In an affidavit, the child says:

“I wish my mom could have been there. I felt very scared and alone . . . . [T]hey looked all over my body, and it was very uncomfortable.”

And, indeed, the 9th Circuit, at least, has recognized as much.  Citing a previous decision by the same court, this decision declares that:

“children have a … right to the love, comfort, and reassurance of their parents while they are undergoing medical procedures, including examinations — particularly those ... that are invasive or upsetting. The interest in family association is particularly compelling at such times, in part because of the possibility that a need to make medical decisions will arise, and in part because of the family’s right to be together during such difficult and often traumatic events.”

The KIDS Center assessments involved the visual inspection and photographing of the children’s genitals. This process could certainly be emotionally traumatic to a young girl. …The children’s right to their mother’s comfort and their mother’s right to provide such comfort were thus at their apex. [Emphasis added.]

            Ultimately the KIDS center said it “could not determine” if the children had been abused.  (Some “experts” have a policy of never saying there was not abuse, instead declaring either there was abuse or it’s undetermined; I don’t know if the KIDS Center has such a policy.)  After about three weeks of foster care, the children were returned home.

It is not clear where the father was then or now.  The decision notes that he accepted a plea deal in connection with alleged sexual abuse of another child. (He maintained his innocence, but acknowledged there was enough evidence such that a judge or jury could convict).

            The KIDS Center report also said they worried that the nine-year-old might have recanted her claims “in an attempt to expedite her return home.”

            If so, then that, too, is DHS’ fault.  The agency undermined its own investigation by removing the children.  Had they simply acted to expel the alleged abuser from the home, and never placed the child in foster care, then the child might have been more willing to “disclose” abuse, if indeed there was any.


            You can bet that DHS and its allies will pull out all the stops in trying to scare the Supreme Court into overturning this ruling. They will try to paint a picture of investigators hamstrung by supposedly having to have alleged abusers in the room when children are interviewed or having to get their permission to interview a child.

            Neither is true.

            The court ruled only that DHS is subject to the same limits imposed on police when they are hunting down a child murderer. – like, say, Timothy McVeigh, the terrorist who blew up the federal building in Oklahoma City.

            In the process, he blew up a day care center, killing 15 children; four more died elsewhere in the building.  In order to track down, capture and develop evidence needed to convict McVeigh, the FBI needed to search a car he used, his father’s home and his sister’s home.  In every case, they did what the Constitution requires – they got a warrant first.  (And, by the way, this isn't the only time the government obeyed the Fourth Amendment even in its pursuit of terrorists.)

            So what the U.S. Supreme Court really will be deciding in this case is whether a young child who might be traumatized by an interrogation, stripsearched and undergo an even more traumatic medical examination has as much protection under the U.S. Constitution as did Timothy McVeigh.

            If the Supreme Court says yes, child welfare agencies still will have the right to interview children out of sight of the parents and without getting their permission.  All they have to do is call up a judge and explain why there is “probable cause” that the child has been harmed or is at risk.  They don’t have to wait for the parents to mount a defense – they don’t even have to go to court in person.  Indeed, the great irony in this case is, had DHS simply asked for a warrant, they almost certainly would have gotten one.  In this case there was, indeed, enough reason to suspect abuse to warrant questioning the child (though not badgering her, as she alleges).

            Furthermore, there is always an exception under the Fourth Amendment for “exigent circumstances” – meaning, in child abuse situations, the child is in imminent danger, or the family might flee, for example, and there is no time to get a warrant.

            In this particular case, however, three days passed between the receipt of the report and DHS showing up to interview the child – so it would appear the circumstances were not “exigent.”

            Had DHS simply agreed to abide by the Fourth and Fourteenth Amendments, it could have taken the Oregon taxpayer money it is spending litigating this case all the way to the Supreme Court and spent it on something more useful.  I’m sure the legal fees would more than equal the cost of, say, a cheap little tape recorder for every DHS caseworker.

            In short, there is nothing in the Fourth Amendment of the Fourteenth Amendment that stops DHS and its counterparts around the country from protecting children – at most, these Constitutional protections may curb DHS’ power to traumatize the children it is supposed to protect.

UPDATE: In the days since this first was posted, the family victimized by Oregon DHS has retained NCCPR's volunteer Vice President, Carolyn Kubitschek, to argue their case before the Supreme Court.