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HSLDA: SPECIAL REPORT - Practical Ways to Reform the Child Welfare System

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    SPECIAL REPORT a division of Home School Legal Defense Association March 6, 2000 Practical Ways to Reform the Child Welfare System In recent years it has
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      SPECIAL REPORT

      a division of Home School Legal Defense Association
      March 6, 2000

      Practical Ways to Reform the Child Welfare System

      In recent years it has become frighteningly common for homeschoolers to be wrongfully accused of abuse and neglect on hotlines to state child welfare departments. Individuals who do not like home schoolers can simply make an anonymous phone call and fabricate abuse stories about their neighbors. Social workers then have a legal obligation to investigate. Some statistics show that up to 60 percent of children removed from their homes by social workers were taken away from their parents without probable cause of abuse. Over 70 percent of investigations are not substantiated.1 Under this system, which ignores due process of law, many innocent families are subjected to harassment.

      Each state has different policies regarding social workers. However, social workers usually want to enter the family’s home and interrogate the children separately. To allow either exposes the family to great risk. Every week, Home School Legal Defense Association (HSLDA) attorneys counsel member families and intervene to protect them from social worker “fishing expeditions.” Unfortunately, the child welfare system sometimes ends up abusing the very families it is supposed to help. To address this problem,HSLDA is working to reform state child welfare laws. We support legislation which would protect families by forcing social workers to abide by the same laws regular law enforcement officials must obey.

      The five areas most in need of reform are:

      1. Anonymous Tips: Child welfare laws should be amended to require all reporters of child abuse to give their names, addresses and phone numbers. This will curtail false reporting and end harassment stemming from anonymous tips.
      2. False Reporting: Child welfare laws should be amended to make false reporting at least a class C misdemeanor.
      3. Probable Cause/Warrant: Social workers must be held accountable to the same Fourth Amendment standards as the police. A warrant must be obtained before a social worker can enter the home without consent of the parents.
      4. Access to Records: Many times home schoolers who are investigated by social workers are denied access to the records of their investigation. Child welfare laws should be amended to allow victims of the system to inspect their records in order to seek recourse.
      5. Prohibition of the Violation of Parent’s Constitutional Rights: The recognition of parental rights is important to create an even playing field during child welfare investigations.

      As long as social workers continue to operate outside the bounds of the Constitution, the privacy and parental rights of all Americans will be jeopardized. These amendments to state laws will provide parents with significant protection from child abuse investigations.

      Court Decisions Upholding Fourth Amendment Rights
      In the Face of Social Worker Investigations

      HSLDA has defended many home school parents from unconstitutional investigations by social workers. Below are excerpts from significant appellate court cases which HSLDA won, clarifying the rights of parents when faced with an investigation by a social worker.

      1. H.R. v. Department of Human Resources, 609 SE 2d 477, (1993).

      The Alabama Court of Appeals vindicated an innocent home school mom, the victim of an anonymous tip, by striking down a lower court order that allowed the social worker to enter the home. The court declared:

      We suggest, however, that the power of the courts to permit invasions of the privacy protected by our federal and state constitutions, is not to be exercised except upon a showing of reasonable or probable cause to believe that a crime is being or about to be committed or a valid regulation is being or about to be violated ...

      The “cause shown” [in this case] was unsworn hearsay and could, at best, present a mere suspicion. A mere suspicion is not sufficient to rise to reasonable or probable cause.


      Although home schoolers have continued to fight back in the courts to protect themselves, statutory changes in state child welfare codes will be more effective in preventing abuse by the system before it happens.

      2. Calabretta v. Yolo County Department of Social Services, No. CIV S-95-0345 U.S. District Court, Eastern District of California (1997).

      This Fourth Amendment right case was originally filed February 24, 1995, by HSLDA on behalf of Robert and Shirley Calabretta in the Eastern District of California federal court. A Yolo County policeman and social worker had forced their way in the home over the objections of the mother. Based simply on an anonymous tip, the tipster merely said she heard a cry in the night of "No, Daddy, no!" from the Calabretta home. After the coerced entry, interrogation of the children, and the strip search of a three-year-old, no evidence of abuse was found and the officials ended the investigation.

      At the trial level, District Court Judge Lawrence K. Karlton ruled that unless there is evidence of an emergency, a social worker and police officer investigating a report of child abuse must have a warrant. The Court clarified that the Fourth Amendment applies just as much to child abuse investigations as it does to any other government search and seizure. An anonymous tip or mere suspicion is not enough to meet the standard of probable cause.

      Although the government appealed, the Ninth Circuit U.S. Court of Appeals, on August 26, 1999, unanimously affirmed the lower court decision. Judge Andrew J. Kleinfeld wrote the opinion for the three judge panel. The court declared that the social worker’s act of forcing the mother to pull down the three-year-old’s pants:

      “invaded...the mother’s dignity and authority in relation to her own children in her own home. The strip search as well as the entry stripped the mother of this authority and dignity. The reasonable expectation of privacy of individuals in their homes includes the interests of both parents and children in not having government officials coerce entry in violation of the Fourth Amendment and humiliate the parents in front of the children.”

      This landmark decision of Calebretta v. Floyd, et al, makes it perfectly clear that social workers are bound to obey the U.S. Constitution when investigating child abuse cases. With respect to the Fourth Amendment, the Ninth Circuit settled the social worker question once and for all. No longer can social workers enter a home without either a warrant or probable cause of an emergency. Child Protective Services agencies are not exempted from the Fourth Amendment’s prohibitions against illegal searches and seizures.

      Model Legislation for Child Abuse & Neglect Investigations

      Penalty for False Reporting

      “Any person who knowingly or maliciously makes a false report of any type of child abuse or neglect shall be guilty of a Class C misdemeanor and shall be fined five hundred dollars (500) for making a false report. Such person shall also be liable to any injured party for compensatory and punitive damages.” [Alabama, S. 679]

      Requirements for Social Workers to Obtain a Warrant

      “In the absence of imminent danger, prior to entrance into a home, to remove a child, or for any other reason for which they might seek entrance into a home without consent of the parents, employees of the Department of Human Resources shall be held to the same standard as law enforcement personnel, and shall be required to obtain a warrant, similar in form to a search warrant, issued only on affidavit sworn to before the issuing judge or magistrate authorized by law to issue search warrants and arrest warrants, establishing grounds for issuing the warrant on probable cause, or shall be required to file a dependency petition and receive a pre-adjudication removal order from a judge of competent jurisdiction.” [Alabama, S. 679]

      Prohibition of Anonymous Tips

      “The division shall not investigate any such report unless the person making such a report provides to the division such person’s name, address and telephone number. The division shall not require the taking of a telephone number if the person making the report does not have a telephone.” [Missouri, H.B. 30]

      The Right to Obtain Investigation Records

      “Any person who is the subject of an unfounded report or complaint made pursuant to this chapter who believes that such report or complaint was made in bad faith or with malicious intent may petition the circuit court in the jurisdiction in which the report or complaint was made for the release to such person of the records of the investigation. Such petition shall specifically set forth the reasons such person believes that such report or complaint was made in bad faith or with malicious intent. Upon the filing of such petition, the court shall request and the department shall provide to the court its records of the investigation for the court’s in camera review. The petitioner shall be entitled to present evidence to support his petition. If the court determines that there is a reasonable question of fact as to whether the report or complaint was made in bad faith or with malicious intent and that disclosure of the identity of the complaint would not be likely to endanger the life or safety of the complainant, it shall provide to the petitioner a copy of the records of the investigation. The original records shall be subject to discovery in any subsequent civil action regarding the making of a complaint or report in bad faith or with malicious intent.” [Virginia Code section 63.1-248.5:1 (C)]

      Government Agency Violation of Parents’ “Fundamental Rights” Prohibited.

      Child protective services “shall not contradict the fundamental rights of parents to direct the education and upbringing of their children.” [1997 Tex. Gen. Laws 1022]
      (b) No state agency may adopt rules or policies or take any other action which violates the fundamental right and duty of a parent to direct the upbringing of the parent’s child. [1997 Tex. Gen. Laws 1225]

      Prepared by Chris Klicka, Senior Counsel for Home School Legal Defense Association
      Copyright 2003, Home School Legal Defense Association. Reprint permission is granted.


      1 U.S. Department of Health and Human Services, Children's Bureau, Investigations by Disposition (1999)

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