Removing Children without a Court order

.... They still allow that?

I guess nothing in child welfare should surprise me anymore, but I admit I was a bit taken aback this week to find there are still jurisdictions that allow the child protection agency to remove a child without first getting a court order. In Hawaii, the Honolulu Civil Beat published a story this week about the fact that most agency removals are without a court order.

I thought by now that most folks would be aware that the Fourth Amendment, which prohibits most warrantless searches and seizures, applies to the “seizure” of one’s child. “"[T]he Fourth Amendment applies equally whether the government official is a police officer conducting a criminal investigation or a caseworker conducting a civil child welfare investigation,” as Professor Eugene Volokh noted in a blog post last year.

This issue was highlighted in a recent exchange among child welfare attorneys in a forum I’m part of. Massachusetts, for example, still allows its Department of Children and Families to remove a child without a court order if there is “reasonable cause” to believe the child is in imminent danger from abuse or neglect. It looks as if that’s also the case in Montana, although they are considering legislation to tighten up the requirements.

Part of the problem may be that many case managers aren’t instructed in the meaning of the Fourth Amendment and don’t realize it applies to child removals. As the Honolulu Civil Beat reported regarding a recent deposition in a lawsuit over the issue:

“Are you familiar with the Fourth Amendment?” attorney Eric Seitz asked the [child welfare agency] assessment worker, referring to the constitutional prohibition against unreasonable searches and seizures.

“I couldn’t tell you what it is,” the worker replied.

In Georgia, as in most states, the agency has to at least obtain a verbal, ex parte order from the juvenile court to remove a child. When I was a judge (a long time ago!), I would get calls at 2 am from social workers requesting a removal. Per our procedures, I’d ask why removal was required, whether there were reasonable alternatives to removal, and what reasonable efforts had been made to avoid removal.

The Fourth Amendment applies to non-consensual home entries, as well. But According to ProPublica, even in States such as New York where a court order is required, CPS obtains a home inspection order very seldom.

If we want the public to respect our child protection agencies, those agencies must in turn respect the rights of parents. Ensuring that CPS workers comply with the requirements of the Fourth Amendment would be a good start.