“They’re not your children anymore.” Notes on news coverage of a landmark lawsuit

Yesterday’s post was, in effect, a guest blog.  The Complaint filed by the Family Justice Law Center, the New York University School of Law Family Defense Clinic and two private law firms – especially the introductory section – reads like great journalism.  So I reprinted that part, in full.

Given its pitch-perfect portrayal of how the New York City Administration for Children’s Services treats children and families, it’s no wonder it generated at least nine ten 11 news stories, including: 

 The New York Times, New York Daily News, NY1 News (a video interview), WNYC Public Radio (an audio interview),  Gothamist, Mother Jones, The Imprint, Courthouse News Service, Scripps News, the New York Law Journal, and Reason 

Here’s a closer look at some of the coverage. 

The New York Times 

In what was, mostly, a very good story, the Times not only offered an excellent overview, it zeroed in on something it’s neglected before: how much what the lawsuit appropriately calls ACS’ “Coercive Tactics” harm the children ACS is supposed to protect. 

So the Times tells us that one plaintiff 

Ms. Gould, who is Black, said her family has been permanently affected by its experience with A.C.S. All three of her children are now in therapy.  She said one investigator asked her 6-year-old daughter if she was suicidal. Her daughter had not previously known the word. “From that day on, she started saying — when they would come — she felt suicidal.” 

Another couple told the Times that 

Their daughter, once outgoing and cheerful, has been in therapy … and blames herself for the investigations. Ms. Azar explained that her daughter, Y.A. … had been asked to write a story about the home investigations. In the story, Ms. Azar said, Y.A. had written, “I am a bad kid” and “I need to behave at school or Mommy and Daddy will be arrested.” 

Ms. Azar … said she often wondered while investigators were in her home, “What was happening with all the kids that actually needed your attention?” 

But old journalistic habits die hard.  In spite of all that, the Times couldn’t resist framing the issue the way family police agencies always want it framed, claiming that ACS 

has the difficult task of weighing the civil rights of families against the safety of children. 

Indeed, that’s the framing ACS used in its boilerplate statement in response to the suit. 

But really, New York Times?  How did what happened to Ms. Gould’s child make that child safer?  How is Y.A. safer?  And why didn’t that question Ms. Azar asked, “What was happening with all the kids that actually needed your attention?” make you wonder if inundating the system with false reports and poverty cases makes all children less safe? 

The Times then offers ACS a ready-made excuse: 

When tragedies happen, A.C.S. is frequently blamed for not having stepped in more aggressively. Those rare cases where children have died after investigators intervened minimally or not at all can make it difficult to dial back the agency’s powers. 

Blamed by whom?  Demagogic politicians, sure.  Bu for decades their false framing was amplified by media who minimized or ignored dissenting voices.  At worst, media are the ones who lead demands for agencies like ACS to “step[] in more aggressively.”  The Times is a lot better about this than it used to be – though it still hasn’t apologized for stoking groundless fears that COVID would cause a “pandemic of child abuse.”  Maybe if all journalists stopped doing things like that, it wouldn’t be quite so hard for agencies like ACS to do the right thing.  (Not that the fact that doing the right thing is hard is any excuse.) 

The Times also makes sure to convey ACS’ standard excuse that they have to investigate every report they receive from the state hotline.  But has any reporter for the Times or anywhere else ever asked ACS if it has sought a change in state law to allow it to screen out reports?  Or does ACS prefer a system that allows it to engage in maximum feasible buck-passing? 

The Brian Lehrer Show 

On WNYC Public Radio’s Brian Lehrer Show, David Shalleck-Klein of the Family Justice Law Center emphasized the point about who is hurt by this kind of family policing: 

ACS creates a false construction, which is they put child safety on one side of the ledger and families' rights on the other. That is false and it's actually dangerous for children because it fosters and perpetuates a culture of ACS using these invasive and distressing and degrading tactics. 

You can listen to the full interview with Shalleck-Klein and one of the plaintiffs, Shalonda Curtis-Hackett here: 

 

They also were interviewed on Inside City Hall on NY1. 

And for this story from Scripps News:

The Imprint 

UPDATE, March 5, 2024: Children's Rights has just brought some very good, constructive litigation.  I have a post about it here.

The Imprint also has a good story, one that avoids the trap the Times fell into.  Instead, the story quotes Prof. Dorothy Roberts, who explains: 

“A promising trend that this lawsuit is part of is recognizing that enforcing parents’ constitutional rights is critical to an approach to child welfare that truly benefits children. You cannot support children by terrorizing their families.” 

The Imprint story added some useful context – but not quite enough.  So the story rightly points out that

For decades, class-action lawsuits have been a major vehicle for reform in child welfare systems nationwide. But typically, they aim to fix poor conditions for children living in foster care. Legal experts say it is particularly rare for groups of parents, such as those in the Gould case, to seek systemic changes to the investigation and surveillance process, asserting their rights before a foster care removal. 

But then things get a little weird.  They quote one of the people most responsible for the fact that these suits have been so rare: Ira Lustbader, litigation director for the group that calls itself Children’s Rights.  For reasons discussed below, he gets the award for sheer chutzpah for this comment: 

“As with any landmark case like this, in an issue area that’s appropriately emerging as truly urgent, I think you’re going to see a lot of people take notice of this legal attack — and quite frankly because it’s deserved.  This is the time.” 

The story goes on to point out that 

The national nonprofit pioneered class-action lawsuits on behalf of foster children, and now has open litigation in more than 20 states on behalf of children poorly served by the government, including those in other systems, such as juvenile justice. 

What the story does not say is that not one of those suits, nor any other Children’s Rights has ever brought addresses the harm done by needless investigations and needless removals.  On the contrary, in state after state they’ve largely brought essentially the same old McLawsuit in an effort to “fix” foster care.  This almost never makes systems better, sometimes makes them worse and makes everything worse by distorting the entire national debate on “child welfare.”  Their approach to litigation is so awful that the foremost family defense attorney in Michigan, Prof. Vivek Sankaran, told the Detroit News the best thing Children’s Rights could do in that state, where it has a longstanding consent decree, is to get the hell out. 

The two people most responsible for failure after failure, year after year, are Ira Lustbader and his former boss, Marcia Lowry, who founded Children’s Rights, then left to form A Better Childhood, a group that brings McLawsuits that are as bad or worse. 

Year after year, over and over, they told us that a lawsuit like the one that these better lawyers just brought was impossible.  They claimed you can only sue for children already in the system. 

This was never true.  The settlements in R.C. v. Hormsby, which, for a while, successfully rebuilt the Alabama system to safely emphasize family preservation and Nicholson v. Scoppetta, which curbed the practice of taking children from survivors of domestic violence prove that. (NCCPR Board Members served as co-counsel for plaintiffs in both those suits.)  But while CR now does outstanding public policy work, its litigation is the same-old same-old.  

Of course, CR could argue that bringing a suit is no guarantee you will win.  But failing to bring a suit is a guarantee that you will lose. 

“Now is the time” for this better litigation, says Lustader.  Well, yes.  But last year also was the time.  And the year before.  And the year before that, going back decades.  But Ira and Marcia Lowery stood in the way.  All of which prompts one question: Since you say “now is the time,” Ira, and now that other lawyers have shown you how it’s done, when are you going to start bringing lawsuits like this? 

UPDATE: Turns out he has a pretty good answer.  Check out the update here.

Other stories 

● Courthouse News Service  cited two other key passages from the lawsuit complaint.  During the course of one of many investigations, without any court hearing or any approval from a judge, Curtayasia Tayor said an ACS caseworker told her the children were  “no longer your children.”  Instead, she was told, they had become “clients of ACS to whom she could not talk without ACS’s permission.” 

The story also noted another part of the complaint, in which an ACS caseworker, cited in an internal ACS report, likened the two-month investigation process to “being stopped and frisked for sixty days.” 

● Still don’t think ACS workers should be called the family police?  Maybe that’s too kind.  In an interview with Gothamist, Shalleck-Klein points out that “ACS falls short of what even the NYPD is doing when searching New Yorkers’ homes.”

In the New York Law Journal, the founder of the Family Defense Clinic (and President of NCCPR) Prof.-emeritus Martin Guggenheim calls this litigation potentially 

one of the most important lawsuits in the field in the last fifty years.  This civil rights case is unprecedented and has the potential to end ACS’s widespread practice of engaging in lawless home invasions that terrorize parents and children.

● And Mother Jones explains that 

The indicators of poverty overlap with the indicators of neglect, putting poor families at greater risk. The system also allows abusive ex-partners to weaponize the hotline by making false reports. 

“ACS MADE IT CLEAR—EITHER I LET THEM SEARCH MY HOME OR THEY WERE TAKING MY KIDS.”

The New York City Administration for Children's Services Uses Highly Coercive Tactics to Illegally Search Tens of Thousands of Families’ Homes Every Year. 

I didn’t write the headline and subhead above.  Rather they are the headline and subhead that begin a lawsuit against New York City’s family police agency, the Administration for Children’s Services.  The lawsuit was filed by the Family Justice Law Center, the New York University School of Law Family Defense Clinic and two private firms. 

But unlike most legal documents, this one reads like a good magazine article.  So I’ve reprinted the overview that begins the lawsuit, known as a “preliminary statement” in full, except for footnotes and paragraph numbers.  If that whets your appetite for more, you can read the entire document here. 

You can read news accounts about the lawsuit in The New York Times, New York Daily News, NY1 News (a video interview), Gothamist, Mother Jones, The Imprint, Courthouse News Service, and Reason

  Ebony Gould, et. al., v. The City of New York, 
Preliminary Statement

             One night, without warning, a mother in New York City hears a knock on the door. Her children are home with her. The family is cooking. or playing, or sleeping. 

            When the mother opens the door, two government investigators are standing outside, loudly demanding to be let inside. She is surprised and confused. She asks what this is about. The investigators command the mother. You have to let us in.  We need to look in your home. 

            The mother has no choice, it seems. Terrified, she reluctantly opens the door and steps aside, and the investigators walk into her home. It is clear that there is no present danger to anyone in the home, but still the investigators search the home top to bottom. They look inside medicine cabinets, under beds, in closets and dresser drawers, in the refrigerator, and in cupboards.  The mother does not know why this is happening. The children are scared by these strangers combing through their home.  

              

The investigators demand to see the children's bodies under their clothes. They tell the mother to leave them alone in a room with her children. The investigators command the children. Lift up your shirt.  Pull down your pants.  I need to see your chest, your legs, your back. The children are afraid, but they comply. Their mother cannot protect them from these strangers. The mother fears that if she does not acquiesce to the investigators' demands, they will take her children at any moment. Her fear is reasonable; the investigators are telling her that might happen. 

            The investigators leave as abruptly as they arrived. They have threatened to return, even though they found no evidence that the children are in danger. There seem to be no rules and no laws to protect the mother and her children from this intrusion. 

            The City of New York’s Administration for Children's Services (”ACS”) conducts this kind of invasive and traumatic entry and search inside families’ homes more than 50,000 times a year. That means every day, well over 100 New York City families experience this harrowing violation. 

            As part of its routine investigations into families, ACS has a widespread custom, policy, and practice of entering and searching families’ homes by using coercive tactics (the "Coercive Tactics") to make parents feel that they have no choice but to allow caseworkers to enter and search their homes. For example, ACS caseworkers lie to parents about their rights, threaten to call the police, and even threaten to take the parents’ children away if the caseworkers are not permitted to enter and search the home. ACS conducts the overwhelming majority of these entries and searches without a court order, without voluntary consent, and in the absence of any emergency. 

            Duiring these searches, ACS routinely rummages through entire homes and conducts untrammeled inspections of families’ most private spaces. ACS performs these sprawling searches irrespective of whether these intimate spaces have any connection to whatever allegations have been made about that particular family. 

            These coerced searches rarely result in determinations that the children require any protection. Less than 7% of investigations lead ACS to file petitions in Family Court alleging that parents committed wrongdoing of any kind. 

            Nor do these coerced searches enhance child safety. As ACS has acknowledged, data from the first years of the COVID-19 pandemic show that there is no increase in child maltreatment when ACS drastically reduces the number of home entries and searches.            

            The trauma inflicted by ACS predominantly and disproportionately falls on Black and Hispanic families. More than 80% of the parents and children subjected to ACS investigations are Black or Hispanic. One out of every two Black children in New York City has been subjected to an ACS investigation by the time they reach the age of 18. ACS has acknowledged the racial impact of its investigations—an ACS-commissioned report describes a “predatory system that specifically targets Black and Brown parents.”

             ACS's widespread use of the Coercive Tactics to enter and search families’ homes violates the Fourth Amendment. There are three ways caseworkers may search a family’s home to conduct investigations consistent with the Fourth Amendment: (1 ) obtain a court order, (2) act upon exigent circumstances that require an immediate search of the home, or (3) obtain voluntary consent. Warrantless home searches like those ACS conducts tens of thousands of times a year are “presumptively unreasonable.” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (internal quotation marks omitted). 

            Under the New York Family Court Act, ACS has the ability “at all hours” to obtain court orders to enter and search families’ homes. These orders must be supported by “probable cause” and “specify which action may be taken and by whom.” 

            ACS chooses to almost never seek these court orders. Across the nearly 53,000 investigations ACS conducted last year, it sought only 222 court orders to search families’ homes. Even assuming ACS completed only one home search during each investigation (it typically conducts several), ACS sought court orders for just 0.4% of home entries. This means over 99.5% of home searches that ACS conducts are 'presumptively unreasonable” under the Fourth Amendment. 

            ACS rarely attempts to justify its warrantless home searches by relying on exigent
circumstances. Of course, ACS can enter families’ homes without a court order or consent when it has grounds to believe a child is in imminent danger. But this case is not about the thankfully infrequent emergencies when warrantless searches are necessary to protect a child's safety. This case is about the overwhelming majority of ACS's more than 50,000 warrantless home searches every year—affecting more than 90,000 children and 70,000 caretakers—where no emergency grounds exist, even assuming the allegations under investigation are true. These allegations are typically non-urgent and frequently involve common occurrences, such as a child missing school without a doctor's note, a child seen playing in a hallway, or a parent disagreeing with a school's recommendation for special education services.

             In the absence of exigent circumstances, rather than seeking court orders, ACS caseworkers frequently gain entry into and search families’ homes through coercion, untruths, and threats. For instance, ACS caseworkers misrepresent and withhold information from parents about their rights, threaten to involve the police (i.e., government agents with the ability to use force), and even directly threaten to take parents' children away in order to improperly enter and search families’ homes. Caseworkers routinely employ these Coercive Tactics multiple times during the same investigation. 

            ACS's rampant use of the Coercive Tactics to conduct warrantless home searches is well known to Defendant City of New York. These practices have been meticulously documented by ACS's own internal reports, the agency’s staff and the informational materials ACS provides to parents, as well as by academics, reports and testimony of advocates and investigated parents, and in several prior lawsuits. 

            Nonetheless, ACS fails to provide anything close to adequate training to its caseworkers about families’ Fourth Amendment rights during home searches. Instead of ensuring that its staff follows the law, ACS has created and continues to foster a regime of coerced acquiescence by using tactics that inculcate fear in parents that unless they cede to ACS’s demands, their children will be taken. Indeed, an ACS internal report describes how the agency creates pernicious incentives for caseworkers to “be invasive and not tell parents their rights." 

            Plaintiffs are nine parents who were subjected to ACS's Coercive Tactics. These Coercive Tactics misled and intimidated Plaintiffs into believing they had no choice but to permit ACS's warrantless home entries and searches in non-exigent circumstances. ACS deployed an array of Coercive Tactics over the course of the numerous home searches experienced by Plaintiffs: ACS threatened to take Plaintiffs' children away if they did not let ACS into their homes; ACS threatened to call the police if Plaintiffs refused consent to entry; ACS told Plaintiffs the searches were required” or that ACS “needed” to search their homes; ACS abused and misrepresented its authority; ACS did not meaningfully inform Plaintiffs of their rights to refuse, limit, or revoke consent for ACS's home searches; and ACS made public scenes at Plaintiffs' front doors to intimidate Plaintiffs into letting them in. 

Plaintiff's’ experiences are not isolated or unusual. They are consistent with and indicative of ACS’s widespread and customary practice of deploying highly Coercive Tactics to conduct warrantless searches of families’ homes in non-exigent circumstances in violation of the Fourth Amendment. 

            Plaintiffs, on behalf of themselves and others similarly situated, bring this lawsuit to end these unconstitutional and unconscionable wrongs.

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:

Philadelphia: 

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.  

Colorado: 

See this story from Colorado Politics

Supreme Court to hear the case for full Fourth Amendment rights for kids

           Tomorrow, the U.S. Supreme Court hears its first major child protective services case in more than 21 years.  We review the issues in our monthly Blog for Youth Today.  And there is a more detailed discussion of the case on this special website.

Foster care, family preservation and civil liberties: When you want to trample on the Fourth Amendment, who ya gonna call?

Say you work for a county sheriff's department and you suspect that a couple is growing marijuana in their home. But you don't have enough evidence to get a search warrant. As Karl Malden used to say in those American Express commercials: What will do you – what will you do?

The dilemma arose in Sarasota County, Florida. And Sheriff's deputies there came up with what they thought was the perfect answer: Pretend they were from the one government agency to which that pesky Fourth Amendment never seems to apply. Pretend to be from the agency that can enter any home based on no more than an anonymous telephone tip. Pretend to be from an agency so powerful that, even if technically, people have the right to refuse, they'd be too terrified to invoke it.

Yes, that's right. The deputies pretended to be from child protective services, in this case, the Florida Department of Children and Families, and they pretended to be looking not for pot, but for child abuse.

According to the Sarasota Herald Tribune, the deputies told the couple they were investigating an anonymous tip about a child living in unfit conditions – and, they said, the couple had no right to refuse them entry.

It was all a lie, but once inside they found enough evidence to get a warrant, ultimately they found marijuana plants and drug paraphernalia. A circuit judge has ruled that illegal – and thrown out the tainted evidence. Because, after all, adults have Fourth Amendment rights.

But not children. Laws and court decisions vary from state to state, but as a practical matter, even if, technically, a parent can refuse entry to a child protective services worker, as a practical matter she'll just run to court, claim that the refusal itself puts the child in imminent danger and get the court not only to let her in, but also to take away the children. (Indeed, she may not even need to go to court – she could simply exercise her "emergency" power to declare the child endangered, call the cops to let her in, and then leave with the child.)

In Florida, state law instructs caseworkers to simply run to court (or seek "other legal authority," whatever that is) whenever a family won't let them in. Judges are practically invited to rubber-stamp those requests. There is no requirement to show "probable cause" as there would be if, say, police wanted to search a home in connection with the murder of a child by a stranger. Nothing more than the existence of the investigation itself is required to force children to endure traumatic investigations, stripsearches as investigators or medical personnel look for bruises, and, quite possibly, removal from everyone they know and love.

At least one Florida judge has made clear that he will gladly order children subjected to any or all of this based on nothing more than a caseworker's say-so. Indeed, the judge, James Seals, did just that, in a case where the trauma inflicted on the children by his decision probably was exceptionally severe.

The case involved the family of six-year-old Coralrose Fullwood, who was raped and murdered. After the murder, Coralrose's parents and siblings moved into the home of grandparents. The parents were suspects at the time (someone else ultimately was charged). But instead of removing the parents from that home, DCF removed the children – without even giving them a chance to say goodbye. At precisely the time they needed the comfort of family most, while grieving for their sister, it was torn from them.

The grandfather understood that. A former police officer himself, he called his lawyer, who told him he didn't have to let the DCF workers in without a court order.

So they ran to Seals, who promptly obliged – and made clear his view that DCF always is entitled to enter a home based on no more than the fact that someone called the state hotline and the hotline passed on the case for investigation.

Seals even sent an e-mail to 12 people who serve with him on a "court-media committee." In the e-mail he is critical of the grandparents – but he asked the recipients, including the journalists, to keep secret the fact that he was speaking out on a case he'd heard – and criticizing one of the parties.

The largest paper in the region, the Fort Myers News-Press obliged; indeed, the News-Press even parroted Seals' view as its own in an editorial. Fortunately the Charlotte Sun, which apparently was not on the original distribution list, was not inclined to let Seals criticize the grandparents while hiding behind anonymity.

The Sun reported that in the e-mail Judge Seals explained that the law requires DCF to investigate any complaint forwarded by the hotline, and to see the child. "DCF does not have to present the judge with evidence that the children were actually being harmed," Seals wrote. "The only showing required was that they were denied access to the children."

    So, if someone phones in an anonymous, off-the-wall complaint to the hotline and the hotline passes it on, according to Judge Seals, DCF need not have probable cause – or any real cause – to enter the home. Fourth Amendment? What Fourth Amendment?

No wonder those Sheriff's deputies were envious. They can't go to court and say "Your honor, we don't actually have a shred of evidence these people are growing pot in their house, but give us a warrant anyway." They couldn't even do that in search of a child murderer.

Fortunately, in the case of Coralrose Fullwood's siblings, a day after they were removed a wiser judge in another county ordered them returned to their grandparents – and ordered the parents removed instead.

The Florida Department of Children and Families is a wiser, more restrained agency than it was in 2006 but self-restraint is no substitute for due process.

This latest case in Sarasota really is one more reminder that every state needs a law barring the child welfare agency from entering a home without a warrant (or the same "exigent circumstances" exceptions as apply in a criminal case) and a clause specifying that judges may not use denial of entry to a child protective services worker as grounds to order the removal of a child, and may not use the mere existence of an investigation as grounds to force a family to allow a CPS worker in.

I'm sure my fellow liberals will cheer the decision to throw out the tainted evidence in the marijuana case. If only they were equally willing to realize that "children's rights" should include the right to be free from unreasonable search and seizure.

A “child size” Bill of Rights

During the four days of non-stop television coverage after 9/11, there are many moments I will never forget. But the moment I remember most – and the moment when I was proudest to be an American - has no vivid images. It has not been replayed over and over on television.

It happened about two days in: Police in Boston had surrounded a hotel and were waiting to move in on rooms they thought might have been used by the terrorists. They waited and they waited. For awhile, no one could figure out why they weren't moving in. Then a reporter found out: They were waiting for a search warrant.

That was the moment I was proudest to be an American because that was the moment when we showed that, just days after the worst attack on American civilians in our history, we were determined to live our values, to use President Obama's phrase.

Of course that determination waned a lot in the years since. But at least my fellow liberals could be counted on to fight each new infringement on civil liberties. Of course, that's because those whose liberties were being infringed upon were accused merely of plotting to blow up buildings and airplanes and kill thousands of people. The big tactical blunder of Bush and Cheney was failing to whisper in liberals' ears the two magic words that get so many of them to abandon everything they claim to believe in. They failed to accuse all the people rounded up in the wake of 9/11 of – child abuse.

The most recent example of this liberal myopia: The desperate attempt by, mostly, liberals in Texas to gut two court rulings that modestly bolstered children's protection against needlessly being interrogated, stripsearched, and taken from everyone they know and love. They were defeated in their effort to undermine these rulings when a coalition of conservatives and other liberals persuaded Gov. Rick Perry to veto SB 1440, a bill that would have allowed Texas CPS to pretty much enter any house any time it wanted for any reason.

After the bill was vetoed, the Austin American Statesman turned a large chunk of its story into a de facto op ed column by one if the state's leading "liberal" groups, the Center for Public Policy Priorities, to fulminate against the veto. According to the story:

One of the opposition's concerns is that under the bill, they said, the parent would not have gotten a hearing before CPS interviews their child. But [CPPP's Jane] Burstain said that family courts aren't currently required to give parents such hearings for the same reason that criminal courts don't give suspected drug dealers a hearing before their house is searched.

"You don't want to be tipping off abusers," Burstain said. "If you tell the abuser, 'Hey, we're coming to your house,' the abuser has the opportunity to coach the child, to coerce the child into lying." Elsewhere, CPPP has suggested that allowing a hearing first, in any situation, would allow parents to destroy evidence.

Where to begin?

First of all, just as Burstain admits, current Texas law already allows CPS to get court permission to enter homes without giving families a chance to object. But precisely because that is such a drastic infringement on people's rights, and can inflict so much trauma on children, there is supposed to be a reasonably high standard of evidence offered to the judge before she or he gives that permission. As a practical matter, in child abuse cases, the standard is pathetically low – but SB 1440 would have lowered it still further.

Even had the bill passed, apparently it wouldn't have been enough for CPPP. Comments by Burstain and the group's director, Scott McCown, suggest they want there to be no circumstance under which families could get a hearing first, because then CPS would lose that element of surprise – which they say is just like criminal cases. In fact, in some criminal cases there is a requirement for such hearings. And the difference between child abuse cases and drug cases is explained in a detailed letter, in effect almost a legal brief, from the Texas Home School Coalition urging the veto. THSC notes that this analogy

unwisely assumes that the child is "evidence". The child will not be destroyed, and if a judge, after a contested hearing, decides that the child should be interviewed, expert techniques can be employed to elicit evidence. Also, medical examinations can determine whether the child has been subjected to long term abuse even after time is taken for a fair and contested hearing. Second, parents have no access to original medical records held by medical practitioners and cannot destroy them. Furthermore, because medical professionals have a duty to report abuse, [CPS] already has access to the actual medical professionals. A process which disregards the rights of parents and the emotional impact upon children is not needed in order to get medical information.

Finally, if the [issue is] … tangible evidence in the home-- other than the child— … a criminal investigation should ensue which includes all of the protections to the accused which criminal law provides and this bill does not. In that vein, there are already procedures in place to obtain a legitimate ex parte search warrant, via the criminal justice system.

But there is an even more fundamental problem with this analogy.

If the police mistake your neighbor for a drug dealer, the neighbor no doubt will be traumatized, but at least he's an adult. If CPS, based on no more than an anonymous call, bursts through the door of your neighbor's house because they think he's a child abuser, it's innocent children who suffer.

It is children who will face traumatic questioning. It is children at risk of being stripsearched by strangers looking for bruises. And it is children who risk being torn from everyone they know and love and thrown into the chaos of foster care – where at least one in four is likely to be abused. The younger the child the greater the harm.

One need only recall the hideous conditions the FLDS children endured during the first days after the raid, and the searing statements from the state's own therapists concerning the harm this internment was doing to the children to understand why it is so urgent that children be protected from this unchecked power.

There are conservatives who have a lot to answer for, too, of course, particularly those, like Newt Gingrich, who want to throw poor people's children into orphanages – suggesting that he feels "family values" are strictly a middle-class entitlement.

But for the left, what it all boils down to is this: When it comes to child abuse, too many of my fellow liberals refuse to heed President Obama's call for us to live our values. Indeed, CPPP and too many other liberals apparently believe in a "child size" Bill of Rights. They shrink it by leaving out Amendment #4.

A smidgen of victory for Texas Children

Very good news for Texas children: Texas Governor Rick Perry vetoed SB 1440, the bill discussed in several previous posts to this blog. The governor says the bill "overreaches and may not give due consideration to the Fourth Amendment rights of a parent or guardian." There's no maybe about it. But the problem with the bill is what it would have done to the Fourth Amendment rights of children. The full veto message is here.

Among those probably most disappointed: Some of the reporters covering the bill, particularly, it would seem, the one for the Dallas Morning News, who now is parroting the party line suggesting the opposition is a vast right-wing conspiracy. He even wrongly labels one of the groups leading the opposition, the Parent Guidance Center, a "conservative group." And, of course, if you're for the bill, according to this reporter, you get the coveted label "child advocate" while if you oppose it you're a "parents' rights" group.

The Austin American Statesman was worse, refusing to acknowledge that anyone besides "conservative, libertarian and family-rights organizations" opposed the bill, (at least the reporter said "family"). Then, after a brief quote from the Parent Guidance Center, a huge portion of the story is devoted to comments from the bill's strongest backer, the Center for Public Policy Priorities, which offered up a series of misleading statements (about which more tomorrow). Both of these reporters love to refer to CPPP as a group "which advocates for low- and middle-income Texans" as though the one thing impoverished Texans want most is for their poverty to be confused with neglect and their children to be taken away. (In contrast, the San Antonio Express News didn't sink to cheap stereotyping in its story about several bills vetoed by the governor.)

In fact, this veto shows what can be accomplished when left and right put aside their differences – not forever, just long enough to find common ground and stop a bill that would have hurt children.

But there are limits to this victory. I said in a previous post that the bill effectively reduced the amount of evidence needed for CPS to enter a home from a smidgen to a tenth of a smidgen.

Now, if we can just increase the standard to, say, two or three smidgens.