Wednesday, January 19, 2022

Lessons from two child welfare court decisions

Update, May 7, 2021: To his credit, during a virtual hearing of the Philadelphia City Council Special Committee on Child Separations on May 6 a top lawyer for the city's Department of Human Services says that, when it comes to the Philadelphia case discussed below, "we might have gotten it wrong" and "The Supreme Court came down in the right way."

1. Yes, families DO have Fourth Amendment rights when the family police are at the door.

2. No, caseworkers cannot evade accountability by claiming they were too stupid to know they’re not allowed to lie in documents used in court.

 The Pennsylvania Supreme Court has issued a scathing rebuke to Philadelphia’s family police agency, the Department of Human Services, rejecting the idea that its caseworkers are effectively exempt from the Fourth Amendment to the United States Constitution and a similar clause in Pennsylvania’s constitution.  On the contrary, said the court: 

We expressly hold that there is no ‘social worker exception’ to compliance with constitutional limitations on an entry into a home without consent or exigent circumstances. 

Across the country in Colorado, a federal court has rejected still another claim by family police caseworkers that somehow they have what amounts to a right to lie. 

The two cases have something in common: Both reflect the arrogance of a system with near-absolute power and no real accountability, a system in which people see their cause as so noble that it can justify violating everything from the Fourth Amendment to the Ninth Commandment.*

The Philadelphia story 

On May 22, 2019, Philadelphia’s family policing agency, the Department of Human Services, received a call, apparently anonymous, from someone alleging that three weeks earlier a family had been sleeping outside the offices of the Philadelphia Housing Authority – suggesting that the family was homeless.  Then, on May 21, the caller said, the mother was back allegedly with one of her two children, outside the authority’s offices for eight hours and it was “unknown” if the child was fed during that time. 

A Philadelphia agency that helps homeless families contacted the mother who said no, she is not homeless.  She is, however, an activist who regularly protested outside the Housing Authority offices.  Further suggesting the family was not homeless: The caller who made the neglect report gave the family police the family’s home address. 

The mother says her children were not with her during her protest on May 21, and the call to DHS was retaliation for her political activity.  But even had the children been with her, does DHS think families should be required to notify family police and/or the general public whenever they feed their children?  Had mom had her child with her, would she have been expected to yell “Hey, look everyone!  I’m feeding my child!  Don’t call the family police on me!” – or face an allegation that it was “unknown” if a child was fed?  Does DHS think any time a child decides the food in the school cafeteria is too “gross” and decides to skip lunch – which might mean he doesn’t eat for eight hours – the school and/or the parents are guilty of neglect? 

Based solely on these allegations, DHS demanded to enter and inspect the family home (a somewhat odd demand when the allegation is homelessness). When the parents refused, DHS came back with police.  The parents still refused.  

The good news: DHS didn’t simply cry “emergency!” and tell the cops to break down the door and take the kids – you know, the way they do it in Arizona. 

The bad news: They didn’t do the right thing: apologize and just go away. Instead, they dragged the family into court and sought an order forcing them to let DHS in.  Despite the fact that the only witness to testify at the hearing, a DHS caseworker, contradicted some of the allegations in the case, the court readily agreed; illustrating once again that judges in family policing cases are far more prone to wield rubber-stamps than gavels. 

The court’s decision was based on the allegations and the mother’s “demeanor” when she testified (I’ll get back to that). The court order not only allowed the family police to poke and pry all over the house but also specifically barred the mother from recording the interaction. 

The inspection took place and found nothing wrong.  The allegations were false.  The family had endured the trauma for no reason and a family police caseworker wasted time that could have been spent on a case in which children really were in danger. 

The mother appealed the decision allowing the family police to barge into the family home.  A mid-level appeals court overturned the ban on recording interviews but upheld everything else.  The Pennsylvania Supreme Court strongly disagreed. 

DHS’ argument was the argument family policing agencies always make. It boils down to: We’re not like those other police, we’re just kindly caseworkers who are here to help – and besides our cause is so noble that if you interfere with us in any way children might be hurt!  So we should be able to do what we want when we want to whomever we want.

The Pennsylvania Supreme Court pointed out, however, that by this reasoning someone accused of mass murder would have more Fourth Amendment protection than a family in which a mother is accused of maybe, possibly not feeding her child for eight hours.  The Supreme Court cited with approval an earlier Pennsylvania case deriding similar claims.  In that decision, the court noted that the sweeping claims of family police agencies 

Would give the state unfettered and absolute authority to enter private homes and disrupt the tranquility of family life on nothing more than an anonymous rumor that something might be amiss.   Despite their exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers or agents of the state whose requests to enter, however benign or well-intentioned, are met with a closed door. 

The Supreme Court also rejected DHS’ claim that being allowed to force their way into a
home and search anywhere and everywhere, through children’s rooms and into closets and cupboards is just, as the agency actually claimed, “a minimally-invasive spot check.”  (Indeed, were that so, one would think DHS would have welcomed a recording documenting their kindness, benevolence and the minimal nature of their intrusion.  Instead, they got the court to specifically prohibit the mother from recording the search.)

In short, even the family police need “probable cause.”  And, the Pennsylvania Supreme Court decision makes clear they sure didn’t have it in this case. 

Recall the allegations: Homelessness and the child may or may not have been fed for one eight-hour period.  As the court explained: 

Having located the family’s home and repeatedly finding Mother and Father there, any allegation of homelessness was rendered moot. If all of this was not sufficient evidence of a lack of homelessness, by the end of the evidentiary hearing DHS unmistakably confirmed that it no longer considered the family to be homeless, as it requested an order to conduct a home visit at the very house where caseworker Richardson had visited twice on the day in question. At that juncture, the only remaining allegation … was that the anonymous reporter had not observed Mother feed one of the children on a single day for approximately eight hours. The DHS caseworker’s characterization of this allegation as “inadequate basic care” was hyperbole. 

As for the mother’s demeanor, the Supreme Court pointed out the obvious: 

[W]e note that Mother’s demeanor may well have been, in whole or in part, a reflection of her frustration based on her view that the entire episode was in retaliation for her  protesting  activities.

Writing in The Imprint, Prof. Vivek Sankaran, director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School summed it up perfectly: 

In many ways, the decision was unexceptional. The Court simply applied decades of Fourth Amendment law to the facts of the case, and ruled that the government had no basis to enter the parents’ home. … None of us would want a social worker to be able to search our home based on such flimsy evidence provided by an anonymous report. 

But this decision is a significant win because all too often, well-established legal rules and principles are discarded by family court judges in the name of protecting children. … In any proceeding involving litigants with power, we would never tolerate this. Think about a medical malpractice claim involving a rich doctor, or a criminal case involving a high-profile defendant. Fraud allegations against a Fortune 500 company. We wouldn’t even allow a slight deviation from the rules. Lawyers would scream. Appellate courts would intervene. The system would move quickly to protect the powerful.     

But in child welfare, not only do we tolerate this, attorneys are often chastised when they demand that well-established processes be followed. … 

Thanks to pressure from family defenders, grassroots family advocacy groups and two members of the Philadelphia City Council, David Oh and Cindy Bass, though it’s still worse than its counterparts in most big cities, DHS is not as bad as it once was.  It is showing a little more self-restraint.  

But this case illustrates why counting on family police to restrain themselves will never work.  DHS’ claim of vast powers to effectively ignore the Fourth Amendment combined with a claim about how this intrusion is no big deal illustrates the urgent need for accountability.  And the fact that a trial court actually bought DHS’ b.s. is one more indication of the urgent need to open court hearings in Philadelphia (and everywhere else they now are closed) to the press and the public. 

The Colorado case 

Family police caseworkers have what is known as “qualified immunity” from civil lawsuits.  In layman’s terms that means you can’t win a suit against them unless their behavior was flagrantly malicious or flagrantly stupid.  In particular, they had to be clearly on notice that what they were doing was illegal and/or unconstitutional. 

So, for example, in the Philadelphia case discussed above, it’s possible that the judges put in the statement “We expressly hold that there is no ‘social worker exception’ to compliance with constitutional limitations on an entry into a home without consent or exigent circumstances”  [emphasis added] in order to put caseworkers on notice that they can’t claim qualified immunity if they fail to comply. 

Some readers may recall a California case in which a caseworker actually tried to claim what amounted to a constitutional right to lie.  If, in fact, she lied under oath and provided false evidence to a court (she did not admit it) then it still was o.k., she claimed, because there was nothing explicitly telling her that’s a violation of the rights of the parent who was suing her.

In a decision aptly characterized as an “Epic Dis,” the Ninth Circuit U.S. Court of Appeals soundly rejected this claim, saying, in effect that the worker could be sued under what should probably be called the stupidity exemption to qualified immunity.  

Now the issue has arisen in another federal court. Once again, the immunity claim was dismissed, but this time the “dis” wasn’t quite as epic as it should have been. 

This time the case involved Krystal O’Connell, a Colorado mother convicted of killing her child, in part based on a confession she says was coerced and notes from a caseworker, Marcia Tuggle, in which she claimed O’Connell confessed.  O’Connell served ten years in prison before a new trial was ordered.  Prosecutors declined to try her again.  Her case is now listed in the National Registry of Exonerations. She is now suing a police officer who conducted the criminal investigation and Tuggle, who was conducting a child abuse investigation.  Full details are in this excellent account from Colorado Politics. 

This time, Tuggle, now a former caseworker, argues that if she, in fact, fabricated a confession (she does not admit to doing so) she’s still entitled to qualified immunity because courts have only explicitly said this is prohibited in a criminal investigation or if it’s done during a child abuse investigation then it’s prohibited only if the false statements were used to advance that specific investigation.  

Tuggle argues that in this case she was just there on behalf of child protective services and any alleged fabrication was not used to advance that particular investigation.  As for the fact that her allegedly falsified notes were a factor in a criminal prosecution, well, how could she possibly know that would happen?  Apparently, the fact that the notes she wrote allegedly fabricating a confession were from a joint interview in which the police officer conducting the criminal investigation was asking the questions did not clue her in. 

A federal district court did not buy this.  The judge noted that two prior court rulings in very similar cases “and, frankly common sense” should have made it clear to the caseworker that what she allegedly did was unconstitutional. 

When Tuggle appealed, the Tenth Circuit Court of Appeals noted that caselaw specifies that, in addition to specific court precedent “a right can be clearly established when it is obvious.”  The appellate court decision quotes from a prior decision from the same circuit which declared: 

“After all, some things are so obviously unlawful that they don’t require detailed explanation and sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing.” 

But here’s the scary part.  The decision of the three-judge appellate court panel was not unanimous.  One judge actually bought the caseworker’s claims.  As the dissenter put it: 

As the district court observed, “common sense” should have informed Defendant that “a social worker, like any other public official, cannot knowingly create false information in furtherance of an investigation.” Yet, neither common sense nor our prior case law would have informed Defendant that she could not do so for constitutional reasons, as opposed to some general, moral reason. 

Even if one buys that, it raises another question: 

Why would any “child welfare” agency hire someone who, if, in fact she did what is alleged, didn’t know that fabricating evidence for any kind of investigation is unconstitutional, and/or is so lacking in morality that she would hide behind legal hairsplitting to commit an act even the dissenting judge could not justify on moral grounds?  Unless of course, that is the essence of the culture of the agency itself. 

At a minimum, it would be prudent for Colorado and every other state passed laws explicitly stating that it is illegal to lie in a legal proceeding and illegal to create false evidence – even in a child abuse investigation.  Because clearly, this is a field that has trouble grasping the obvious. 

*-In some faiths it’s the Eighth Commandment.  As the lawyers might say, the circuits are split.

For more about these cases:


Kathleen Creamer of Community Legal Services of Philadelphia discusses this case, another Pennsylvania case,  and other child welfare issues on The Imprint podcast.

See also  The Imprint story, The Volokh Conspiracy blog and the analysis from CLS Philadelphia.  


See this story from Colorado Politics