Thursday, September 30, 2010

Foster care in Los Angeles: LA Times discovers civil liberties issues in child welfare – sort of

"I was never told I could refuse their search, and the tone and level of authority of my attackers made me feel that it would be dangerous to even try."

                The quote comes from Darlene McDade-White, who says she was a victim of an illegal search by the Los Angeles County Department of Children and Family Services.  Her story was told yesterday in the Los Angeles Times.

                When I saw the headline on Garrett Therolf’s story about the case – “Child welfare official alleges warrantless search” – my first, fleeting, thought was: Wow, someone at DCFS is coming to McDade-White’s aid and demanding civil liberties be respected in child abuse investigations - and the L.A. Times is covering the story!


                I was wrong on both counts.


                Darlene McDade-White is not a child who was, say, pulled out of her class and interrogated in the principal’s office by a caseworker who suspected she’d been abused.  She was a not a child who was stripsearched by a caseworker looking for bruises.  Nor was she a child forced to undergo a terribly traumatic examination for sexual abuse based on someone’s anonymous call to a child abuse hotline.

                Nor is Darlene McDade-White a parent whose child had to endure any of those things.  Nor did she have to endure a warranteless search of her home by DCFS workers checking to see if there was enough food in the cupboards as they prepared to confuse poverty with “neglect.”

                Indeed, it’s highly unlikely that any of those things ever will happen to Darlene McDade-White, or anyone in her family.  Because Darlene McDade-White actually works for DCFS.  In fact, she’s their lead internal affairs investigator.   She’s the “child welfare official” mentioned in the headline.

                McDade-White  was a victim of a different kind of search.  She says the allegedly illegal search was conducted by other DCFS workers.  They searched her purse, allegedly looking for evidence that McDade-White might be the one who leaked information about child abuse fatalities to the Times.  They found no such evidence.

                And that, of course, is why this search is the one that caught the attention of the Times
If the allegations are true, the harm to McDade-White is not trivial. But she is an adult.  And the harm to her does not come close to the harm that unreasonable searches and seizures, based on no more than an anonymous call to a hotline, do, routinely, to children all over the country.

That call is all it takes to send caseworkers to any home where they will demand immediate entry and the right not only to search the home, but sometimes the right to stripsearch the child looking for bruises.  (Policies vary across the country – in some places the caseworker does it herself, in others the child may be taken to a doctor – but the child still will be stripsearched by a total stranger, they’ll just call it a “medical exam.”)

That doesn’t mean DCFS and its counterparts should stop investigating allegations of child abuse.  It does mean that, as I’ve discussed before on this Blog, here and here,  “children’s rights” should include the Constitution’s #4 – the one about being free from unreasonable search and seizure.  In other words: At least meet the minimal standards required to get a judge to issue a warrant.

Although the 9th U.S. Circuit Court of Appeals, which covers California, repeatedly has ruled, most recently last December, that warrants are required if parents don’t give consent, (with the same exceptions as in criminal cases), there is no requirement to give families the equivalent of a Miranda warning.  Indeed, what McDade-White said of her own situation, applies so perfectly to families confronted by DCFS workers that it's worth repeating:

I was never told I could refuse their search, and the tone and level of authority of my attackers made me feel that it would be dangerous to even try.

And unlike the situation with McDade-White and her purse, if a family says no to a warrantless search by a child protective services agency, the caseworker can call law enforcement, claim the case is an emergency and get the child removed on the spot. 

But those kinds of warrantless searches, which occur over and over in LA County, and everyplace else in America, never have attracted the attention of the Times.  Apparently, Garrett Therolf and his colleagues are interested in violations of Amendment #4 only when they might impinge, even indirectly, on the Times’ rights under Amendment #1.