Myfinal Merged NORemoval USDCrt y Memoranudum Cases Citas Chron Exh Referenced CT RT X3po Mo SWR Canereports Texas Calif v1 - 19jun2015

NO.
___________________ Formatted: Font: (Default) Times New Roman, Font color:

Red
IN THE STATE OF CALIFORNIA Formatted: Left: 0.27", Top: 0.55", Bottom: 0.68"
FOURTH APPELLATE COURT
DIVISION ONE
(SAN DIEGO COUNTY)
IN RE MATTER OF:
MAYANNI J. R. (a Child), by and through APPEAL NO.______________________
ROSEMARY BENSON-ROJAS, as next friend, GEOVANNY A.
ROJAS, “presumed” father; (and BRITTANY ROJAS, B.A. ROJAS, and Superior Court Trial No.: J517192
G. ROJAS, siblings of MAYANNI J. R.,)
PLAINTIFFS, PRIOR CA4/1 APPEAL(S):
v. Third Appeal No..: D056475 from Order
Terminating Parental Rights under § 366.26, Affirmed.
HON. LAURA J. BIRKMEYER, JUDGE, Individually and in her Date: 06/10/2010
capacity, and Remittitur Issued: 08/10/2010
STATE OF CALIFORNIA SAN DIEGO COUNTY SUPERIOR COURT,
DEFENDANTS, Second Appeal No.: D055653 - Extraordinary Petition
for Writ Review from Order setting § 366.26 hearing set
DOROTHY BENSON and under § 366.21 on 07/31/2009.
PRESTON L. PARKER, Timely Filed: August 8, 2009
THIRD-PARTY DEFENDANTS, Date/Decided: 09/25/2009, case dismissed, as no issue
writ mandate, at request of trial attorney for father,
Real Parties in Interest: G.A. Rojas, under Cal. Rul. Court, rule 8.420.
STATE OF CALIFORNIA HON. CYNTHIA A. BASHANT, JUVENILE
PRESIDING JUDGE, HON. YVONNE E. CAMPOS, JUDGE; and SAN First Appeal No.: D054067 - Sade C. Petition from
DIEGO COUNTY H&HSA - DEPT. CHILD WELFARE SERVICES; Disposition Order under § 360(d) and Jurisdiction Order
DIRECTOR OF HEALTH & HUM. SRVCS. AGCY., NICK under § 361.5 on 11/07/2008.
MACCHIONE, AND SOCIAL WORKERS: MARK HOOD, Date/Decided: 02/10/2009, Affirmed.
MATTHEW ROGERS, ET AL.; STATE OF TEXAS 292ND JUDICIAL
DISTRICT COURT, STATE OF TEXAS 305TH JUVENILE COURT;
AND SAN DIEGO ALVARADO PSYCHIATRIC HOSPITAL ; AND
DAVID COLE, ATTORNEY.
Formatted: Font: (Default) Times New Roman, Font color:
NOTICE OF REMOVAL TO UNITED STATES DISTRICT COURT FOR THE Red
NORTHERN DISTRICT OF TEXAS
COMES NOW, the Plaintiffs, ROSEMARY ROJAS, pro se, and notifies the parties and the Court that this cause has been
removed to the jurisdiction of the United States, by stating the following:
1- That, there have been, and continue to be, violations against the civil and constitutional rights of this undersigned by Defs in this
cause, and which have not been duly protected;
2- That, accordingly, and commensurate with certain issues within these state proceedings also giving independent rise to federal
subject-matter jurisdiction, this cause has now been removed to the United States District Court for the NORTHERN District of Texas (at
Dallas, Dallas County);
3- That, as the Court and all parties can clearly confirm, the attached Notice and Warrant regarding Petition For Removal was filed
in said federal court on July, 24, 2015;
4- That, the parties and this Court are hereby given formal notice that the combination of filings made under both this cause now
herewith, as well as within aforementioned federal court, automatically divests this Court of any and all further authority and jurisdiction
Pdf gdrive:myfinal merg NORemoval usdcrt y memorandu cases citas chron exh reference ct rt x3po mo swr canereports tele
v.8/12/2015
v.8/12/2015
over these proceedings – bar none (see 28 USC § 1446(d) and 28 USC § 1332) – and, therefore, there will be NO more hearings, orders, or
any other proceedings held, made, or done within this state cause until, and unless, further notice or order is first made by the judge of said
United States District Court.
Respectfully submitted,
_______________________
ROSEMARY ROJAS (aka Benson)
PLAINTIFF, Pro se
5222 East Side Avenue B
Dallas, Texas 75214
(214)951-6235 (tel.)
Emailing: rosemarybenson43@gmail.com Formatted: Font: (Default) Times New Roman, Font color:
Red
Red
EXHIBIT NO.______ Formatted: Line spacing: single
PETITIONER'S PROPOSED PARENTING PLAN
1. Petitioner and Respondent are the parents of the Child the subject of this “suit”. In the event that the parties do
not reach an agreement on a parenting plan, the following is proposed:
ROSEMARY BENSON-ROJAS AND GEOVANNY A. ROJAS should be appointed Sole Managing Conservator of the Child,
with the rights and duties as set forth in . DOROTHY L. BENSON-PARKER should be appointed Possessory Conservator, Field Code Changed
with the rights and duties as set forth in . Formatted: Font: (Default) Times New Roman, Font color:
[OR:] Red
The parties should be appointed Joint Managing Conservators of the Child.
2. ROSEMARY BENSON-ROJAS AND GEOVANNY A. ROJAS should be awarded the following exclusive rights and Red
duties:
[SELECT ONE OR MORE:]
Red
a. the right to designate the primary residence of the Child [without regard to geographical location/within the following
geographic location: [specification of geographic location]]; Field Code Changed
[AND/OR:] Formatted: Attorney Name, Indent: First line: 0"
b. the right to consent to medical, dental, and surgical treatment involving invasive procedures; Formatted: Attorney Name
[AND/OR:]
c. the right to consent to psychiatric and psychological treatment;
[AND/OR:]
d. the right to receive and give receipt for periodic payments for the support of the Child and to hold or disburse those
funds for the benefit of the Child;
[AND/OR:]
e. the right to represent the Child in legal action and to make other decisions of substantial legal significance concerning
the Child;
[AND/OR:]
f. the right to consent to marriage and to enlistment in the armed forces of the United States;
[AND/OR:]
g. the right to make decisions concerning the Child's education;
[AND/OR:]
h. the right to the services and earnings of the Child;
[AND/OR:]
i. except when a guardian of the Child's estate or attorney ad litem has been appointed for the Child, the right to act as an
agent of the Child in relation to the Child's estate if the Child's action is required by a state, the United States, or a foreign
government.
v.8/12/2015
v.8/12/2015
j. [OPTIONAL: ROSEMARY BENSON-ROJAS AND GEOVANNY A. ROJAS should be awarded the following rights
and duties, jointly with DOROTHY L. BENSON-PARKER:
i. the right to designate the primary residence of the Child[without regard to geographical location/within the following
geographic location: [specification of geographic location]];
[AND/OR:]
ii. the right to consent to medical, dental, and surgical treatment involving invasive procedures; Formatted: Attorney Name, Indent: Left: 0", First line: 0"
[AND/OR:]
iii. the right to consent to psychiatric and psychological treatment;
[AND/OR:]
iv. the right to receive and give receipt for periodic payments for the support of the Child and to hold or disburse those
funds for the benefit of the child;
[AND/OR:]
v. the right to represent the Child in legal action and to make other decisions of substantial legal significance concerning
the Child;
[AND/OR:]
vi. the right to consent to marriage and to enlistment in the armed forces of the United States;
[AND/OR:]
vii. the right to make decisions concerning the Child's education;
[AND/OR:]
viii. the right to the services and earnings of the Child;
[AND/OR:]
ix. except when a guardian of the child's estate or attorney ad litem has been appointed for the child, the right to act as an
government.]
3. [OPTIONAL: ROSEMARY BENSON-ROJAS AND GEOVANNY A. ROJAS should be awarded the following Formatted: Attorney Name, Indent: First line: 0"
independent rights and duties:
a. the right to designate the primary residence of the Child[without regard to geographical location/within the following Formatted: Attorney Name
geographic location: [specification of geographic location]];
[AND/OR:]
b. the right to consent to medical, dental, and surgical treatment involving invasive procedures;
[AND/OR:]
c. the right to consent to psychiatric and psychological treatment;
[AND/OR:]
d. the right to receive and give receipt for periodic payments for the support of the Child and to hold or disburse those Formatted: Attorney Name
funds for the benefit of the child;
[AND/OR:]
e. the right to represent the Child in legal action and to make other decisions of substantial legal significance concerning
the Child;
[AND/OR:]
f. the right to consent to marriage and to enlistment in the armed forces of the United States;
[AND/OR:]
g. the right to make decisions concerning the Child's education;
[AND/OR:]
h. the right to the services and earnings of the Child;
[AND/OR:]
i. except when a guardian of the Child's estate or attorney ad litem has been appointed for the Child, the right to act as an
government.]
4. [[DOROTHY L. BENSON-PARKER/ROSEMARY BENSON-ROJAS AND GEOVANNY A. ROJAS] should have Formatted: Attorney Name, Indent: First line: 0"
possession of and access to the Child as set forth in the Standard Possession Order, /[DOROTHY L. BENSON- Field Code Changed
PARKER/ROSEMARY BENSON-ROJAS AND GEOVANNY A. ROJAS]'s possession of and access to the Child
should be limited and restricted as follows: [description of limitations and restrictions on access and possession].] Formatted: Font: (Default) Times New Roman, Font color:
Red
5. [Petitioner/Respondent] should have periods of electronic communication with the Child, to supplement
[Petitioner/Respondent]'s periods of possession of the Child.
v.8/12/2015
v.8/12/2015
6. [ROSEMARY BENSON-ROJAS AND GEOVANNY A. ROJAS/DOROTHY L. BENSON-PARKER] should be
ordered to pay support for the benefit of the Child in the amount of $[dollar amount of support] per month, until [any
child reaches the age of 18 years of age or graduates from high school, whichever occurs later, or until any child is
otherwise emancipated/the child reaches the age of 18 years of age or graduates from high school, whichever occurs later,
or until the child is otherwise emancipated]. [OPTIONAL: Thereafter, [ROSEMARY BENSON-ROJAS AND
GEOVANNY A. ROJAS/DOROTHY L. BENSON-PARKER]'s child support obligation should be adjusted, in
accordance with .] Field Code Changed
7. The parties should be permanently enjoined from disparaging the other parent or the other parent's spouse or significant Formatted: Font: (Default) Times New Roman, Font color:
other to or in the presence of the Child, or allowing others to do so. Red
8. The parties should be ordered to confer within [number of months] months from the date of entry of the final decree in
this matter, and every [number of months] months thereafter so long as the duty of support exists under the court's order,
to discuss the changing needs of the Child as the [child grows and matures/child grow and mature], in a way that
minimizes the need for future modifications to the final parenting plan.
9. In the event the parties are unable to resolve disputes regarding the changing needs of the Child, prior to commencing
court action to modify the final parenting plan the parties should be ordered to participate in an alternative dispute
resolution procedure, such as mediation or binding or nonbinding arbitration.
10. Attached thereto and incorporated herein for all purposes as Exhibit “NO.______” is a verified statement of Formatted: Attorney Name
ROSEMARY BENSON-ROJAS AND GEOVANNY A. ROJAS's Statement of Income determined in accordance with
the child support guidelines and related provisions prescribed by Tex. Fam. Code Ann. Ch. 154.
11. This proposed parenting plan is proposed in good faith and is in the best interest of the Child the subject of this “suit”.
SIGNED this the [ordinal number] day of [name of month], [identification of year].
ROSEMARY BENSON-ROJAS AND GEOVANNY A. ROJAS
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the [ordinal number] day of [name of
month], [identification of year].
[Notary information per statute]
EXHIBIT NO.______ Formatted: Attorney Name, Left
STATEMENT OF INCOME
Petitioner, Rosemary Rojas, submits this statement of income under oath, in accordance with Tex. Fam. Code Ann. Ch. Formatted: Attorney Name
154.
Monthly Resources:
Formatted: Attorney Name

Wage & Salary Income, including other $[dollar amount of wages and salary $[dollar amount of interest, div
Interest, Dividend, & Royalty Income:
compensation for personal services: income] royalty income]
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
v.8/12/2015
Monthly Deductions: Formatted: Font: (Default) Times New Roman, Font color:
Red


Federal Income Tax (based on the tax
Red
rate for a single person claiming one
Social Security Taxes: $[dollar amount of social security taxes] Formatted: Attorney Name $[dollar amount of federal inco
personal exemption and the standard
deduction): Formatted: Attorney Name
v.8/12/2015
v.8/12/2015
CERTIFICATE OF SERVICE Red
The undersigned hereby certifies that a true and correct copy of the above and foregoing document was served upon all parties
(see Proof of Service – Exh. 1).
In by Fax and/or United States Mail postage prepaid on this 25th of July, 2015.
BY:_________________________________
THOMAS BAILEY
5709 Eastside
Dallas, Texas 75214
www.imporpercustoryorderviaporectectionorder.pdf Formatted: Font: (Default) Times New Roman, Font color:

Red
Red
v.8/12/2015
v.8/12/2015
a restraining order is an official accusation Formatted: Font: Times New Roman, Font color: Red
............................................... 34 Formatted: Left: 0.27", Top: 0.55", Bottom: 0.68"
Restraining order abuse is the act of
requesting an unmerited restraining Formatted: Font: (Default) Times New Roman, Font color:
Red
order against an ...................... 34
Systemic ....................................... 1 Formatted: Font: Times New Roman, Font color: Red
testimony ...................................... 1 Formatted: Font: (Default) Times New Roman, Font color:
Red
Red
Red
v.8/12/2015
v.8/12/2015
Lower state courts have been either unwilling or unable to protect ongoing, recurring, continuous violations of Plaintiffs’ parent-child relationship guaranteed under California and Red
Texas state and these United States Constitutional 1st, 4th, 5th Formatted: Left: 0.27", Top: 0.55", Bottom: 0.68"
rights to free speech, unlawful medical restraint, illegal ICPC across-state-lines, 3 anti-SLAPP--void on the face Protective Order under the Domestic Violence Act at 18 U.S.C. 2265,
in which these lower state trial courts have granted for nondomestic parties settling a civil dispute involving the custody of child, M.J.R., by nonparty Agency public officials--
specifically, the Director of H&HSA, Nick Macchione, and social workers, Mark Hood, QASM--state of California county employees; and the Maternal Grandmother in a Texas
Protective Order based on sworn Court testimony,
The contested disposition hearing was held on July 27 and 31, 2012.5 The court first heard testimony Formatted: Font: (Default) Times New Roman, Font color:
Which include Red
1. The “Systemic” statements made by Judge Laura J. Birkmeyer. Formatted: Font: (Default) Times New Roman, Font color:
2. The false statements made by Judge Laura J. Birkmeyer, that: Red
“ Formatted: Font: (Default) Times New Roman, Font color:
3. CT:171 roger CT:135 ICPC HIPPA 300(b) ICWA ICPC UCCJEA pkra aggravated Visitation 362.1 1983 litigation commerce slapps perjury false tamper with judicial Red
Machinery adopted Absence find abandon mob Affidavit the unfit parent false dv
4. tamper Evid (ct 49-50 gaf: 40) Nov7-swr the nonfit parent "not be slected:date return feb242009, self-recuse, irrelevant personam, ministerial duty, 235 jurisdiction, Red
misrepAD, AD-misrep/ICPC/ftc/false dv po/slapp po evidence pendant jurisBORcase, BOR-wrongful
5. BOR-colateral attack(post-ss170.3denied vsod) VSOD, barlaches, recurrent harm, pub policy, fundingRisk, bich, BIC-EMER TEMP ORDER, WO BICH, SHAM PO-VIC Formatted: Font: (Default) Times New Roman, Font color:
Red
FALS DVO, FALSESATEMENT RT409, INTESTED CT382-604, JV250-28 USC 2265, NO SMJ/PERSONAM, FTC-TAMPER JDMAC
6. countOneTWo, no joinder, unplead, nonfinalk, nondiscreionary, deemed dq, never untimely, void is void, cermonial, divested that which, onlyone rea ULPL-hood ljb, prior
jdu YEC, april2/jv180signed/blank(see bradfiled statements/jul or nov/388vistadenied
7. felder-rockerfeld, young, abstension, domesticUSDjuriss 1441/3661/diver/uccjea/fedQ:icpc--who has juris, fastersppedingbullet--silencelambs1strt, pc-rela, ch rts act, UAAct,
AFHSA, IAC-livingston, fundamentfairness, mob fa unfair, b-e-c-k-e-n mob:wrongjur
8. juPrsumfollow, eitherchoose ignor abide by or indenpendect, arbitray capricias, inherentmalischias, judnot: vsod, bor, ccfs, swansworth-sd cps blisteringJudgWarsaw?, fourth-
child sttements anti-herself, void void void, fraudTollsNoTime, exceptionToDelay,
Disgused PO, vic Fals DVPO, PO created condictions/Orozco, substan DPC rts granteed, txIcpC 135, 135-260H.S.rports, TDM(promises)mtg & TeleVisitaOrder/SWR, swr/388,
RTjul impeach swr, "not ready trial"-jul RT.1-16sealed & jul RT4-7? 7
Create conditions, baltazar juris-no vista--noFRS de unreasonable(icwa photoRosebud i10 i30transf inreMichelle Rosebud a tribe, ct.13, 533 6-9, "knows not indian child") wo
Ord/Hr(hoodfiled/allegas/unpled po amended_300b ct 1-4Peti 4thAug. Pre-depreva)
Po to change custody or visitation under cal law,
§ 5[a] Mother of child to be adopted—Absence of finding of valid consent or abandonment by mother
Formatted: Font: (Default) Times New Roman, 10 pt, Font
“THE UNFIT PARENT:S color: Red
“FALSE DV” TX SAPPCR Formatted: Font: (Default) Times New Roman, Font color:
Cita *****see"autotext1-..." TOC/INDEX: .pdf[iles]; icwa1-issues1-cases1-icpc1-uccjea1-pkra1-;"388.1-" notes;vsod1-usd1-appeals1-;Exhs1--attc's;po1- ;socal1-&sotex1- legnotes; Red
BOR1- txpo1- calpo1- wic1- ;dated1- oy dates1-; issues1-300b1-rogers1-hood1-**** Formatted: Right: 0", Space After: 0 pt, Line spacing:
Ljb1-;cab1-;hood1-;bradfeld1-;388.1-;visitation1-;smalls1-;tdm1-;mgm1-;h.s.1- oy hs1-;vsod1-;BOR1-;TEXFALSEPO1-;SHAMPO1-;60b1-;vsov[vacate set aside or void]1-;292nd1- single
;5th1-; 305th1-;305thA-11-01268.1-;CPShotline1-;mgp's1-[misrep/lied to by crt];cole1-;
Verified Stqtemnt of Disqualification
Bor1
Texfalsepo1
v.8/12/2015
v.8/12/2015
388
387 362 TDM
Mgm1
Maturanl Grandmother
Msgf
Objection to Foreign sister-state judgment
Invalied The Order Terminating Jurisdiction After conclusion of the testimony, the juvenile court issued its findings. The court first concluded that the Agency established by a Formatted ...
preponderance of the evidence that return of A.J. to Jamie at that time would create a substantial As to risk of detriment to A.J.'s safety, protection and emotional well-being. the
disposition, the court ordered A.J. to be placed with Joshua in Hawaii, and The court found termination of that it was in her best interests to do so. The court jurisdiction appropriate
because there was “not a protective issue.” explained: “I can't find by clear and convincing evidence that closing the case today would be likely to recreate the conditions that led to
the Court assuming jurisdiction in the first place, and that there is a need for family maintenance services.” More specifically, the court remarked that Joshua “came across as solid
and credible, as conscientious, earnest, and as remorseful” for not being involved The court found that he had already been very proactive with A.J. earlier. with A.J. since
he learned of the dependency, and is committed to fulfilling her The court observed that A.J. has shown greatly improved behavior since needs. That said, the court acknowledged
that A.J. needed Joshua came into her life. structure and continuing services, and that the transition period was critical. Accordingly, instead of terminating jurisdiction immediately,
the juvenile court set an additional hearing several weeks into the future to ensure that everything was in place for A.J.'s move to Hawaii, and to allow the parties to work out custody
orders.6 In connection with the planned hearing, the Agency filed two addendum The first stated that after visiting with her San Diego family reports. members, A.J. moved Formatted ...
to Hawaii on August 12, 2012, was enrolled in therapy and A.J.'s therapist had spoken with Joshua and his wife had already begun school. In the second report, the to explain in
more detail her therapeutic needs. Agency stated it had contacted A.J.'s teacher in Hawaii, and that A.J.'s new The therapist had spoken with her San Diego therapist about A.J.'s
needs. Agency also reported that A.J. had been adjusting well since moving to Hawaii. A.J. stated that she was “very happy” and feels “safe” and “loved” there, and was able to
speak with Jamie whenever she wanted. At the continued hearing held on September 20, 2012, the juvenile court first found that Joshua is A.J.'s presumed father pursuant to Family
Code section The court then adopted the proposed custody orders with 7611, subdivision (d). Those orders provided that the parents would share some small modifications. joint
legal custody of A.J., and that physical custody would be divided 90 Finally, the court percent/10 percent between Joshua and Jamie respectively. confirmed its decision to terminate
jurisdiction, again stating, “I don't think there's a protective issue at this point.”
Filed a Bill of Review in Texas Court attacking Adoption Decree on grounds that underlying tpr judgment was made by a dq j, disqtn at the time tpr final j was entered and order was
not final becuase void ab initio under calccp 170.1-170.5 (attching09-12
wrongfulAD1-;$700chs1-;texicpc1-;texicpcAdminstatros;
SOL1-;UNITESATES MARCHAL FORMS; SDSHEREFF website; public policy1-;dv, etc funding {see "madamus hurdles relief"; recurrent harm; right relif; extaordinarey Formatted: Font: (Default) Times New Roman, Font color:
releif/execption to delay1-; presumptionweapo Red
lbj1 cab1 hood1 bradfeld1 bradfield1 slapps x 3; 1strt1-;14.1-;pc-rela1-;ftc1-;truth in evidence{tampering iwth swr gaff etc - avoid appellate scrutiny & public & hide evidence from
appeallate attorneys for mob oy fa; tampering with official documents of clerk reporter's certified? records;
On January 12, 2012,
On Novebermer 19, 2012, Plaintiff filed a reqruested to “access to A-01268” under…in 305th
On July 9, 2012, 292nd denied pauper's,
On November 19, 2012, 305th BOR pend/dominantjuris/dismissed case for lack prosecution; antislapp tex po prevented and chill effect to rt to bor day in court created rebuttal
presumption in BOR 1stfiled
J517192: various grounds releif; Order 0ct16,2012 denied vsod; VSOD; 409; 382-604; PO HRGS X 8 (SEE MO dates 382-604; abuse govt doj printed docs; 352 evidenc rule, frap
102 evid rule; loss jurisdiction icpc illegal; icpc wo juris ct.135; ct135 wo 388
On July 31, 2009, Cal PO x 2 prevented fRS rea efforts see Oral Tr. Jul 31-
On August 20, 2009 - Dec 21, 2009; SWR-08262008 pre-deprevation order and rea efforts before removal vio ASFHA oy sec 673; icpc reg7 over 2yrs; reg7 wo osch or bich or 388
387 362.1 notice parents; post-tpr
v.8/12/2015
v.8/12/2015
Post-adoption agency legal custodians; 2011 pre-adoptin Dallas DPD report visit mgps no Crt Order per DPD officer for custody; nonfinal tpr order voidale VIA BOR (See ses 329
equeitable BOR); preclsuvie effect 10/16/2012 Order adjudicated vsod no divest
a-01268-xx in 2011, siste-state-for-jujmnt
x-41470-XX on or about 10 May, 2011, On November 19, 2012, Petitoner fildanOrginl Bill of Reveiw, a collateral attack of the VSOD and a direct attack of the Adoption Decree,
which was made on the basis of underlying invalid tpr bydjudg
292nd12-00084-?? goodwin larrymitchell, untimelly denid pauper's, rea adoptin, piched, pattern, intimate partner requirment, reacent indient 9 yers ago, drugga?, lift hand strike or
tuouch offensively?no, coa april ? 2013, dissd?, void lack juridiction,ftc,60b
On april 9, 2013, 5thcoa timelyfiled noa onT.R.C.P. § 32 late ontexsted paplea
letr 5/4/2015 contempt in 10 days, est new paymnt plan, affidavit idigency for atty rep in contempt proceedings? , cert copy file rec?, dpd reports?, jury?No--over$500/180day13-cv-
00434-??, COA, dismissed lkup, Pauper's Plea Untimely denied
292ndletr 5/4/2015 contempt in 10 days, est new paymnt plan, affidavit idigency for atty rep in contempt proceedings? , cert copy file rec?, dpd reports?, jury?No--
over$500/180day13-cv-00434-??, COA, dismissed lkup, Pauper's Plea Untimely denied
Inre JOSHUA effectively mooted vsod matter is res judicata recurring harm; orozco substan dpc & created conditions; 388 wo bich; reqauest bich or transition court supervision return
child home via habeas corpus (cf. llehman-habeas chcustody jurisd usdct 9
All PO x 3 anti-slapp chill effect, deny rt acess courts in tex oy calif to obtain tpr-avoid icpc-differ jurisd AD/2011pending PO x 2 in cali); and PO x 1 in Texas to deny BOR fraud on
Court/wrognful adoption scrutiny v Eqauitalbe BOR-reasonforAdoption/PO
Perjury/impeach sworn affidafit expose' lied PO reason "adopted my daughters child alcohol and ... vs. ; PO avoid expose mispre and wrongful icpc icwa abandonment, financial,
chObligor, whereabouts, secreted pend-3yr suspen visation not all claims/parties
QUESTIONS FOR LAID: PPO-INTERLOUCTORY FINAL IN CHILD CUSTODY DECSION FINAL VIA INTERLOCUTORY 3 YEAR ORDER (CANT JUDICATE
CHCUSTODY IN A PO) FJ SAID ALL ORDERS NOT IN CONFILECT WITH THIS...TPR REMAINS IN EFFECT (3YR DV PPO WOULD WITHSTAND A FJ DE CHCUS/TPR
QUESTIONS FOR LAID: ILLEGAL ASL; FOUR YEAR TOLL TIME TO FILE WRONGFUL TEXAS ADOPTION????
Intersection / disruption AD via ICWA intervention is bic adoptive mgps aging, financial, chSupport obicgor $700 terminated unexpected/lied to in TR Oral rec si continue recieve
post-adoption obociator ss earned wages income survivo ssdi beneficiry
Based on preliminary h.s. (ct 135 reg7 illegal placement icpc order before obtained "chins" jurisdiction over child especially light of H.s. financial reported only... income age wages
estimated unsubstantied over wage earning age capacity y high risk med \
High at risk return to fc system; chins jurisdiction based on "unsubstantied" cane report, removal without court order, eminent, nonlicensed social worker, immenent medical Hight risk
diagnosis recent hospitalsza mgm msgf, mini stroke residual,respectvly
Denial visit, false DV ORDER 2/22/13 pening BOR filed 11/19/12 first crt appearnce dec 2012 reset pos 1/09/2013 informed court of post-filing bor that a PO in another cort was filed
judge shannon said refile- dismissed lack prsecution later final docketed
Viola uccjea, wrongfully brought into this state to obtain more favorable jurisdiction "forum shopping" also called the "unbridled key" to obtain a more favorable juriscition; 3yr po in
cali allow secrtive or lied abandonment as basis adotopntion, Colevio
Icpc rules child not in pre-adoptive home witouth icpc prior to sending state receiv icpc approval in this case post-tpr agency fj order that child placed in that state's legal adoption
agency custody, in an independent adoption and presmable as Gal for c 22
Especially in light Judicial Notice taken: Cole's prior outof court settlement for 25,000 Ortiz case in texas for worngful adoption in which father still never recovered a reversal adoptin
but won outcourt settlement 25,000 for david cole attorney for an 23
And Owner of Flower Adoptios Agency in Texas. In year 2012, mob deiscovered that dallas cournty court records show a case filed by pparker in same 305th court cn A-01268,
stlyed Ex Parte Preston Parker, the document was denied by the Judge who issued the
Review by mother motion filed in Nov 2012 requewst access and disclosure of the case, the decision made, and reason for case matter since this case was in the same juveinle court
that granted the final Adoption Decree filed uner the same case number assig 26
v.8/12/2015
v.8/12/2015
To my BOR case filed that month and the reason stateed im my motion for request to access disclsore the file to assist in my BOR case filed pending in her 305 court under same
assigned case number so presuably same subject matter and parties, namely my ch
Autotext *****see"autotext1-..." TOC/INDEX: .pdf[iles]; icwa1-issues1-cases1-icpc1-uccjea1-pkra1-;"388.1-" notes;vsod1-usd1-appeals1-;Exhs1--attc's;po1- ;socal1-&sotex1-
legnotes; BOR1- txpo1- calpo1- wic1- ;dated1- oy dates1-; issues1-300b1-rogers1-hood1-****
*****See"autotext"{TOC/INDEX}: .pdf[iles]; icwa1-issues1-cases1-icpc1-uccjea1-pkra1-;"388.1-" notes;vsod1-usd1-appeals1-;Exhs1--attc's;po1- ;socal1-&sotex1- legnotes; BOR1-
txpo1- calpo1- wic1- ;dated1- oy dates1-; issues1-300b1-rogers1-hood1-****
Chron
Orozco crated conditions, baltazar,adgerson_1983civrt & ICPC, michelle-agemgps, inre icwa..., eli-icpc-1983lit/ mandamus
DISCUSSIONThe Juvenile Court Properly Exercised Its Discretion in Terminating The Juvenile's Court's Analysis Followed Proper Legal Standards Formatted ...
JurisdictionA. and Its Findings Are Supported by Substantial Evidence Jamie's principal contention on appeal is that the juvenile court erred in terminating jurisdiction
without making a specific determination, under section 361.2, that continued supervision was unnecessary in this case—a determination Jamie insists the trial court could
not have made under the facts of this case. We conclude the juvenile court evaluated the Agency's We disagree. recommendation to terminate jurisdiction under the legal
standard applicable at the time, and its finding that no protective issue exists that would warrant retaining jurisdiction is supported by substantial evidence.7 ction 361.2, the Formatted ...
statute Jamie argues controls here, provides as follows:When a court orders removal of a child pursuant to Section 361, the “(a) court shall first determine whether
there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section
300, who desires to assume If that parent requests custody, the court shall place custody of the child. the child with the parent unless it finds that placement with that
parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. [¶] (b) If the court places the child with that parent it may do any of
the following: [¶] (1) Order that the parent become legal and physical The court may also provide reasonable visitation by custodian of the child. The court shall then
terminate its jurisdiction over the noncustodial parent. [¶] (2) Order that the parent assume custody subject to the the child․ [¶] (3) Order that the parent assume
jurisdiction of the juvenile court․ 361.2, subds.(a) custody subject to the supervision of the juvenile court.” (§ & (b)(1)-(3).) Joshua certainly qualified as a noncustodial,
nonoffending parent, and the Despite court found that placement with him would be in A.J.'s best interests. these factual similarities with the circumstances described in
section 361.2, however, that provision did not apply at the time the juvenile court announced “[O]nly a presumed father is entitled to assume immediate custody” its ruling.
(In re Zacharia D. (1993) 6 Cal.4th 435, 454, 24 under section 361.2. At the time the court ordered that A.J. be Cal.Rptr.2d 751, 862 P.2d 751.) placed with her father in
Hawaii, and indicated its intention to terminate jurisdiction, it had found that Joshua was a mere biological father, not the For this reason, as Jamie contends, section 361.2
did not presumed father. govern the juvenile court's analysis. Another basis for terminating jurisdiction is found in section 364, which applies when a child is not removed
from the physical custody of his or her parent under section 300, and requires the court to terminate jurisdiction at the six-month review hearing unless it determines that
“continued supervision is 364, subds.(c) necessary.” (§ & Although A.J.'s case had proceeded (a).) to the six-month review stage at the time the juvenile court terminated
jurisdiction, section 364 did not apply because A.J. had been removed from the custody of her mother under section 300. Plainly, Joshua's request for custody and
termination of jurisdiction did not fit neatly within the parameters of either section 361.2 or section 364. However, “[t]he fundamental premise of dependency law is to
serve the best (See, e.g., In re Samuel G. (2009) 174 interests of the dependent child.” The law provides the juvenile Cal.App.4th 502, 510, 94 Cal.Rptr.3d 237.) courts
with the necessary tools and guidelines, as well as broad discretion, to make appropriate orders regarding dependent children consistent with this “ ‘The juvenile court has
broad discretion to determine foundational principle. what would best serve and protect the child's interest and to fashion a (In re [Citation.]” dispositional order in
accordance with this discretion.’ Gabriel L. (2009) 172 Cal.App.4th 644, 652, 91 Cal.Rptr.3d 193; accord, In re Corey A. (1991) 227 Cal.App.3d 339, 346, 277 Cal.Rptr.
782 [at section 300 dispositional hearing, the “paramount concern” in deciding where child will live 362.4 [providing that when juvenile is the child's best interest]; see
also § court terminates its jurisdiction and a custody order has been entered, it may 245.5 [Juvenile court “may make additional protective or other orders]; § direct all such
orders to the parent, parents, or guardian of a minor ․ as the court deems necessary and proper for the best interests of or for the rehabilitation of the minor.”].) Pursuant to
this inherent authority, the juvenile court found by “clear and convincing evidence ․ that it is in [A.J.'s] best interest to be placed [with I am satisfied by the case law, Rules
of Court, and statute as well Joshua]. as the legislative scheme and the policy underlying it that the Court does have the authority to terminate jurisdiction at this time and
to terminate mother's The court also found “that services because of the placement with a parent.” The court went on to explain the evidence there is not a protective
issue.” supporting these findings, including the following: (1) that although Joshua made “a huge error” in not contacting Jamie and A.J. earlier, he has since “grown up,
v.8/12/2015
v.8/12/2015
changed, gotten himself into therapy, which is impressive, to deal with all of this”; (2) Joshua came across as “solid and credible, as conscientious, earnest, and as
remorseful”; (3) he demonstrated commitment to He's taken on the role of parent․ A.J., “respect[s] her as a child with needs. He's jumped into action,” talking to service Formatted ...
providers and getting his family involved; and (4) A.J.'s behavioral issues had improved significantly and she wants to be with him. The Agency's assessments and the
testimony at the disposition hearing, Significantly, summarized previously, amply support the court's findings. Instead, she argues that, rather than properly Jamie does
not argue otherwise. evaluating under section 361.2 whether continuing supervision was necessary, the court used the wrong legal standard in concluding as follows: “I
can't find by clear or convincing evidence that closing the case today would be likely to recreate the conditions that led to the Court assuming jurisdiction in the first I
cannot make place, and that there is a need for family maintenance services. So for that reason and other reasons, the Court finds it is that finding. This language appears
to track that of appropriate to terminate jurisdiction.” section 364, which provides that the trial court shall terminate its jurisdiction unless it determines that “conditions
still exist which would justify initial assumption of jurisdiction under Section 300, or that those 364, subd. conditions are likely to exist if supervision is withdrawn.” (§ (c).)
Nevertheless, in As explained previously, section 364 did not apply here. In the absence of a our view, Jamie's argument exalts form over substance. directly
applicable statute, the court explained at length why the record presented no protective issue, which, after all, is the fundamental basis for (See In re Janet T.
exercising dependency jurisdiction in the first place. (2001) 93 Cal.App.4th 377, 391, 113 Cal.Rptr.2d 163 [before the court may exercise dependency jurisdiction under
section 300, there must be evidence that 300 generally child is exposed to substantial risk of harm]; see also § [exercising dependency jurisdiction requires showing that
there is a substantial Logically, the court's analysis and conclusions imply risk of harm to child].) a finding that there was no need for the court's continuing supervision to
The trial court found Joshua to be a ensure A.J.'s safety and well-being. committed, responsible parent who could provide a stable, loving and safe home for A.J. and who
had taken the necessary steps to see that A.J. would receive As explained, all the services, education and health care that she needed. substantial evidence supports these
findings. In these circumstances, the fact that the juvenile court did not expressly state “there is no need for continuing supervision,” is no grounds for reversing its
otherwise proper ruling.8 (See In re Janee W. (2006) 140 Cal.App.4th 1444, 1452, 1453, 45 Cal.Rptr.3d 445 [court's use of the language of section 364 instead section Formatted ...
361.2 to terminate jurisdiction was harmless, where “all the evidence before the court showed that continuing supervision of the minors was no longer required”]; see also
People v. Geier (2007) 41 Cal.4th 555, 582, 61 Cal.Rptr.3d 580, 161 P.3d 104 [appellate court reviews the correctness of the court's ruling, not its reasoning, “and, if the
ruling was correct on any The fact that the court did not use those precise words ground, we affirm”].) does not mean, as Jamie contends, that it employed a less rigorous
standard in placing A.J. with a mere a biological father than would be required for The court found, based on substantial placement with a presumed father. evidence, that
there was no protective issue presented by A.J.'s placement with Jamie fails to explain how this is any less demanding a standard than Joshua. one requiring a finding that
continued supervision is unnecessary, or what additional evidence would be required to meet this latter standard than had already been presented to the juvenile court. Jamie
responds, however, that the court did not give due consideration to a number of factors that, in her view, mandated retention of dependency These include the fact that A.J.
had jurisdiction and ongoing supervision. only recently met her father, that father had prior brushes with the law, that Joshua's wife spanked A.J. once and that A.J. had a
history of behavioral On the contrary, The evidence does not bear out Jamie's contention. issues. viewed in its entirety, the record shows the court was aware of and
considered these issues, and determined they were insufficient to warrant continuing jurisdiction.Joshua demonstrated, to the satisfaction of the court, that he was very
remorseful for not entering A.J.'s life sooner, and the court found his efforts Joshua's visits with to assume the parental role were swift and impressive. Joshua h
ad learned important lessons about A.J. had been very successful. setting limits with A.J. The court found he had not only “respected [A.J.] as a child with needs,” but had Formatted ...
taken the necessary steps to ensure those needs would Importantly, the trial court observed that, despite their be met in Hawaii. relatively short period together, A.J. had
thrived with her father in her life. Although she was once a girl “who was “She has improved in all spheres.” running helter-skelter out of the cabins and couldn't be
controlled,” since her father came on the scene, the negative manifestations of A.J.'s behavior issues Significantly, A.J. was “adamant” about have “dramatically
diminished.” wanting to go live with him in Hawaii, telling the social worker she felt “safe” and “loved” there.Joshua voluntarily reported to the Agency that he had
been a heavy drinker in his 20's and as a result, had been charged twice with driving under the However, he completed a drug treatment program influence, in
2004 and in 2007. Joshua also and there is no dispute he has remained sober ever since. self-reported that he had been charged with “making terrorist threats” to a
Notwithstanding this security guard while on a construction job in 2008. rather ominous-sounding charge, the incident involved a single argument between Joshua and a
coworker, during which Joshua held in his hand a hammer that he Joshua was given a deferred never actually used against the coworker. sentence, completed anger
v.8/12/2015
v.8/12/2015
management classes and community service requirements The Agency confirmed that he had and paid the required restitution/fines. completed the terms of his probation, Formatted ...
and that this incident would be expunged There is no evidence of any other criminal from his record as of May 2013. history, and no evidence indicating that such conduct
would likely be repeated. As for the spanking incident, this was a onetime punishment that amounted to The evidence showed the use of this discipline one slap on
the bottom. followed earlier, unsuccessful attempts to convince A.J. to stop the offending Other appropriate forms of discipline (time-outs, for example) had behavior.
The Agency was satisfied the stepmother understood been used in Joshua's home. Even A.J. the importance of avoiding this form of discipline in the future. agreed the
discipline was appropriate under the circumstances, and it appeared to have no lasting adverse impact on her. This evidence belies Jamie's contention that the juvenile court
necessarily would have retained jurisdiction had it applied what Jamie contends was the proper legal standard.9 The court expressly recognized that the concerns raised by Formatted ...
Jamie demonstrated a need to ensure that all proper educational and therapeutic services were in place by the time A.J. moved to Hawaii, but critically, these did not rise to
As the court the level of justifying continued dependency jurisdiction. And as far explained: “These are issues, but they are not protective issues. as we all would like or I
would like the Court to be able to observe and to monitor, there is not a legal basis for doing this.” 10 Still, rather than (Italics added.) immediately terminating Formatted ...
jurisdiction, the court gave the parties almost an additional two months to ensure that all satisfactory arrangements for A.J.'s care and education in Hawaii had been
successfully put in place before That delay enabled the court to receive additional finalizing its order. For this reason, Jamie's reports about how A.J. was faring in her
new home. suggestion that the court's decision to terminate jurisdiction was unduly hasty also fails. Jamie's Arguments Concerning the Role of the Interstate Compact on
B. Placement of Children (ICPC) in the Court's Decision to Terminate Jurisdiction Are Unfounded Jamie argues that one of the reasons the trial court “hastily
terminated jurisdiction” is that it was concerned if it did not do so, Hawaii would not accept placement of A.J. in that state, since the Agency had not yet complied The
with the procedures required by the ICPC, Family Code section 7901 et seq. ICPC, Jamie argues, in fact posed no conflict that required the court to Had the juvenile court
not misapprehended the impact terminate jurisdiction. of that law on this case, Jamie contends, it would have continued its jurisdiction to ensure the placement with Joshua
posed no risks for A.J. We Nothing reject these contentions as speculative and lacking factual support. in the record suggests the ICPC factored at all in the juvenile court's
final Moreover, as we have explained, the record decision to terminate jurisdiction. otherwise supports the order terminating jurisdiction, regardless of any concerns the
court may or may not have had about the role of the ICPC here. The ICPC governs the interstate placement of children, and generally requires that no child may be sent to
another state for placement “in foster care or as a preliminary to a possible adoption ” unless the sending agency has first 7901, Art. 3, subd. (a), (Fam.Code, § complied
with the law's requirements. There has been some debate about whether the ICPC applies to italics added.) California law holds it does not. out-of-state placements
with a parent. (See, e.g., In re C.B. (2010) 188 Cal.App.4th 1024, 1032, 116 Cal.Rptr.3d 294 [notice provisions of the ICPC do not apply to a placement with a parent];
Cal. Rules of Court, rule 5.616(b)(1)(A) [“A court ․ placing a child with his or her parent is not a placement requiring compliance with this rule.”].) Most other states,
however, apparently do apply the ICPC in the event of placement with a (See, e.g., parent, at least if the sending court retains its jurisdiction. Seiser & Kumli, Cal. Juvenile
Courts Practice & Procedure (2012 ed.) 2.128[3], p. 2–373 [“If the court determines that a non-custodial parent is a § non-offending parent and an appropriate caretaker, it
may restore physical custody of the child to that parent and dismiss its jurisdiction without As one court observed, there are a invoking the (ICPC).”], italics added.)
number of “potentially thorny practical issues arising out of the lack of (In re C.B., supra, 188 Cal.App.4th at p. 1036, 116 uniformity in this area.” Cal.Rptr.3d 294
[mentioning, in particular, the potential illegality of California sending a child to live with a parent in an ICPC state without complying with the law].) At the July 20, 2012,
hearing during which the juvenile court granted Joshua's section 388 petition and set the contested disposition hearing, the court observed that “we don't have an ICPC or
any arrangement in Hawaii for The Agency responded that if the court were to follow courtesy supervision.” its recommendation and terminate jurisdiction “we would not
have the issues with regards to ICPC,” but “if ․ the Court ruled differently, then we would have to seek the assistance of Hawaii to try and expedite the ICPC under the The
court instructed the Agency to look into “whether or not circumstances.” Hawaii would object while the ICPC is pending to visitation or detention with the father in
Hawaii.” During closing arguments at the disposition hearing, the Agency informed the court that A.J.'s social worker unsuccessfully attempted to contact CWS in Hawaii
to determine how it would view the placement of A.J. in Hawaii vis-à-vis the ICPC. The Agency nevertheless argued that Hawaii could “potentially view this as an illegal
placement,” and that A.J. “would be sent back to California if we place her there without an ICPC in place, which we don't have at this At that point, the court asked for
clarification that this “would time.” happen if this Court asked for courtesy supervision or some involvement from ․ The Agency responded affirmatively, adding if CWS
did not provide Hawaii.” courtesy supervision and the court retained jurisdiction, that would “force the [A]gency to monitor the case from afar,” which in the Agency's
view would constitute illegally practicing social work out of state. Notwithstanding these exchanges, the juvenile court proceeded to issue its extensive factual findings
and its tentative ruling that jurisdiction would be terminated, without once referencing the ICPC. The court also made no mention of the ICPC when it confirmed its
v.8/12/2015
v.8/12/2015
decision to terminate jurisdiction in September The written orders reflecting the court's ruling terminating 2012. Additionally, the Agency jurisdiction also make no Formatted ...
mention of that law. presented no definitive evidence substantiating its argument that CWS would not accept placement of A.J. in that state if jurisdiction were retained, or
that CWS would refuse the Agency's request for courtesy supervision absent ICPC procedures.11 Accordingly, Jamie's assertion that the court terminated jurisdiction in Formatted ...
significant part due to potential ICPC complications lacks factual foundation in the record, even assuming the law favored termination of jurisdiction to avoid those
complications.
Jamie argues, however, that the ICPC clearly was material to the juvenile court's ruling because, but for the concerns raised by that law, “it is likely the trial court would not Formatted ...
have terminated jurisdiction” in view of the evidence showing Joshua's past brushes with the law, A.J.'s history of behavioral issues This argument, too, and the short time
period Joshua has been in A.J.'s life. is pure speculation, and is belied by the court's explicit factual findings indicating that these matters posed no protective issues
warranting continuing We have concluded these findings are supported by substantial jurisdiction. evidence, and Jamie's arguments regarding the ICPC give us no cause
to revisit that conclusion. DISPOSITION The order terminating jurisdiction is affirmed. FOOTNOTES 1Jamie originally appealed . the juvenile court's custody orders Formatted ...
and its order placing A.J. with her father However in her opening brief, as well as its order terminating jurisdiction. We she states she is appealing only the order
terminating jurisdiction. therefore deem abandoned her appeal of the juvenile court's other orders. Because Jamie does not appeal A.J.'s placement with Joshua or the court's
denial of her request to return A.J. to her care, our summary of the complex factual and procedural history of this case is focused on matters relevant to the trial court's
termination of jurisdiction. 7Generally, we review . orders terminating the juvenile court's jurisdiction under an abuse of (Bridget A. v. Superior Court (2007)
148 Cal.App.4th 285, discretion standard. The court's factual findings are reviewed for 300, 55 Cal.Rptr.3d 647.) (See, e.g., In re Austin P. (2004) 118
Cal.App.4th 1124, substantial evidence. 1134, 13 Cal.Rptr.3d 616 (Austin P.) [appellate court reviewed record for substantial evidence indicating whether there was a need
for continuing To the extent an appeal challenges whether the juvenile court supervision].) based its order terminating jurisdiction on the correct legal authority, we
(Bridget A., at p. 301, 55 Cal.Rptr.3d 647.) review that issue de novo. 8For the same reason, we . reject Jamie's suggestion that once Joshua was found to be the Formatted ...
presumed father, the court should have reevaluated its plan to terminate jurisdiction under the Effectively, the court made all applicable standards of section 361.2.
necessary findings during its initial ruling, and no purpose would have been served by the court revisiting its earlier findings. 9Jamie's reliance on Austin . In that Formatted ...
case, the nonoffending, noncustodial father and the P. is misplaced. stepmother had been aware of Austin's abuse by his mother, but had not taken (Austin P., supra,
118 Cal.App.4th at p. 1134, 13 steps to protect him. In addition, there was conflict among the father, stepmother Cal.Rptr.3d 616.) (Ibid.) Finally, Austin was far more
and mother that does not exist here. bonded with his mother than with his father, and wanted to reunify with her. (Ibid.) Here, by contrast, although A.J. clearly loves her
mother, has bonded with her, and had some ambivalence about leaving her, she had grown very close to her father and expressed an “adamant” wish to live with him.
10According to Jamie, . these statements indicate the juvenile court was conflicted about whether to We disagree. place A.J. out of state without continuing court Formatted ...
supervision. In our view, the court was merely explaining the difference between matters requiring the ongoing attention and care of Joshua as the new custodial parent, and
facts demonstrating the existence of risks to A.J.'s health and safety arising from that placement—risks that would justify retaining dependency The record in this case
shows the latter risks did not exist. jurisdiction. Notwithstanding the natural desire of the court to monitor the situation to ensure that all would continue to go well for
A.J., the court recognized it had no legal basis for maintaining that involvement.
11In its July 25, 2012, . addendum report, the Agency included a statement from Kelly Key, San Diego County's ICPC liaison, who indicated that if no ICPC were in Formatted ...
place, there would be no “obligation” for CWS to provide any support services, and “many No jurisdictions will not comply” with a request for courtesy supervision.
declaration or other evidence from CWS was included in the record; however, far from indicating that a lack of cooperation was likely, CWS already had approved Joshua's
home as suitable for A.J.'s placement.
A.J. was reported to be a bright, spirited little girl with some behavioral She displayed a temper, was disobedient and had trouble following the issues. A.J. had been Formatted ...
placed with a nonrelated extended family member, but in rules. April 2012, the caregiver requested that A.J. be removed from her care because of A.J.'s unsafe behaviors,
including leaving the home and attempting to injure A.J. was removed to Polinsky on April 6, 2012, with the intention herself. On April 30, that she be placed in an
Intensive Treatment Foster Care home. 2012, the Agency filed a section 387 petition requesting the court order a higher level of care for A.J. The court ordered A.J.'s
continued detention at Polinsky, set a jurisdiction and disposition hearing for May 2012 and scheduled the six- and 12–month review hearings.
WE CONCUR:McDONALD, J.AARON, J."One of the key elements of any interstate compact is uniformity in interpretation. Uniformity, however, is lacking with respect Formatted: Font: (Default) Times New Roman, Font color:
to the issue of whether the [Interstate Compact on the Placement of Children] applies to the placement of a child with a natural parent ...." (Butler, Child Welfare—Outside Red
v.8/12/2015
v.8/12/2015
the Interstate Compact on the Placement of Children— Placement of a Child With a Natural Parent (1992) 37 Villanova L.Rev. 896, 916, fn. omitted.)As we will discuss,
California cases have consistently held that the Interstate Compact on Placement of Children (ICPC; Fam. Code, § 7900 et seq.) does not apply to an out-of-state placement
with a parent. They have even gone so far as to invalidate statewide rules and regulations that urported to make the ICPC apply. Other jurisdictions that have taken the same
position include Arkansas (Arkansas Dept. of Human Services v. Huff (2002) 347 Ark. 553, 562-564 [65 S.W.3d 880, 886-888]), New Hampshire (In re Alexis O. (2008)
157 N.H. 781, 788-791 [959 A.2d 176, 182-185]), New Jersey (State, DYFS v. K.F. (2002) 353 N.J.Super. 623, 631-636 [803 A.2d 721, 726-729]), Washington (In re
Dependency of D.F.-M. (2010) 157 Wn.App. 179, 182-191 [236 P.3d 961]), and the Third Circuit (McComb v. Wambaugh (3d Cir. 1991) 934 F.2d 474, 481). This brings
California into conflict with those jurisdictions holding that the ICPC does apply to an out-of-state placement with a parent. These include Alabama (D.S.S. v. Clay County
Dept. of Human Resources (Ala.Civ.App. 1999) 755 So.2d 584, 590), Arizona (Arizona Dept. of Economic Security v. Leonardo (2001) 200 Ariz. 74, 79-83 [22 P.3d 513,
518-522]), Delaware (Green v. Division of Family Services (Del. 2004) 864 A.2d 921, 926-928), Massachusetts (Adoption of Warren (1998) 44 Mass.App.Ct. 620, 623-624
[693 N.E.2d 1021, 1024-1025]), Mississippi (K.D.G.L.B.P. v. Hinds Couty DHS (Miss. 2000) 771 So.2d 907, 913), New York (Faison v. Capozello (N.Y.App.Div. 2008) 50
A.D.3d 797, 797-798 [856 N.Y.S.2d 179, 179-180]), and Oregon (State ex rel. Juvenile Dept. of Clackamas County v. Smith (1991) 107 Or.App. 129, 132, fn. 4 [811 P.2d
145, 147]).1 We find the decisions in California and elsewhere holding that the ICPC does not apply to be far better reasoned than those holding that it does. Accordingly,
we see no reason not to follow our sister California courts. We are publishing this opinion, however, to point out that the resulting lack of uniformity is dysfunctional, that
courts and rule makers have not been able to fix it, and hence that it may call for a multistate legislative response. I FACTUAL AND PROCEDURAL BACKGROUND
A. THE BEGINNING OF THE DEPENDENCY.B.B with respect to the father was that "[t]he father failed to protect his children, despite the mother's substance abuse
history and prior arrests for being under the influence of a controlled substance, [in that] the father left the [s]tate and allowed his children to remain in the mother's care."
(Allegation b-4.) 2On September 2, 2009, the social worker contacted the father by telephone. The father said he knew that the mother had two prior drug-related
arrests, but he added that she did not use drugs when he was around. He said he had gone to work outside the state "to make a better life for his family ...." He was making
about $6,000 a month. His paychecks were sent to the mother, who in turn sent him small sums, as needed. He wanted the whole family to move to the Gulf area. In the
jurisdictional/dispositional report, the social worker concluded that there was insufficient evidence to sustain Allegation b-4: "[T]he family concurs that the father left the
state to provide a better life for his family.... [T]hey were supposed to [go] to ... [the Gulf area] to reside with the father.... [H]e was not aware of [the] mother's recent
substance abuse and felt that the mother and children were safely staying with the maternal great grand[-]mother until he was able to move them to [the Gulf area]." m in the
custody of the father. C. THE JURISDICTIONAL HEARING.In November 2009, at the jurisdictional hearing, counsel for the Department asked the juvenile court to find
Allegation b-4 true. Counsel for the father pointed out that the social worker had concluded that it was not supported b A discussion of the ICPC ensued. Counsel for the
Department argued that the juvenile court could not place the children out of state with the father unless it complied with the ICPC. Counsel for the father argued that the
ICPC did not apply to a placement with a parent. Counsel for the Department agreed that the ICPC did not apply to a placement with a nonoffending, noncustodial parent,
but she argued that the father was an offending parent. The juvenile court continued the hearing. On January 21, 2010, at the continued dispositional hearing, counsel for the
Department reported that, according to the Alabama ICPC coordinator, the children could not be placed in Alabama other than pursuant to the ICPC. The juvenile court
ordered the Department to initiate a priority ICPC placement of the children in Alabama. It continued the dispositional hearing so it could review the status of the ICPC
process.
E. THE ICPC STATUS REVIEW HEARING. As of the continued hearing, on February 3, 2010, Alabama had not yet responded to the ICPC notice. Counsel for the Formatted: Font: (Default) Times New Roman, Font color:
Department argued that "mother and father need ... to remain here in California awaiting ICPC before they relocate to Alabama Counsel for the father argued again that the Red
ICPC did not apply. Counsel for the mother and counsel for the minors concurred. After hearing argument, the juvenile court stated: "We make efforts all the time here to
try to find a way down a mountain in order to reunite families.... The way down this mountain is to, in theory, allow father to go out of the state and mother remain here.
What's the protection? We still have jurisdiction. If mother leaves the state, I issue warrants for her and the children. We bring them back.... "... This is the best thing for this
family. Pursuant to [Welfare and Institutions Code section] 390, I will set aside my finding[] that [Allegation] b-4 ... is true, rendering the father a non offending father."
Counsel for the Department objected, citing Code of Civil Procedure section 1008. The juvenile court responded: "A simple [petition under Welfare and Institutions Code
section] 388 would cure that. It's still going to be my order ...." The juvenile court authorized the father to leave California with the children. It ordered, however, that his
custody of the children be subject to supervision by the Department. It also ordered him to participate in family maintenance services and specifically to participate in Al-
Anon. It ordered the mother not to leave California. II THE DENIAL OF A STAY* III THE APPLICATION OF THE ICPC The Department contends that the
v.8/12/2015
v.8/12/2015
juvenile court erred by placing the children with the father out of state without complying with the ICPC. The juvenile court acted on the assumption that the ICPC does not
apply to an out-of-state placement with a noncustodial, nonoffending parent; it set aside Allegation b-4 to make the father a nonoffending parent, and thus to obviate the
need to comply with the ICPC. The Department argues that the ICPC does apply to an out-of-state placement with a noncustodial, nonoffending parent, at least when, as
here, the juvenile court orders further supervision and services for that parent. Alternatively, the Department argues that the father was both a custodial parent and, in light
of the true finding on Allegation b-4—which, it argues, the juvenile court should not have set aside—an offending parent. The parents, on the other hand, contend the ICPC
does not apply to an out-of-state placement with a parent at all. (1) "Interstate compacts, like the ICPC, àre formal agreements among and between states that have the
characteristics of both statutory law and contractual agreements. They are enacted by state legislatures that adopt reciprocal laws that substantively mirror one another.'
[Citation.] The ICPC has been enacted in all fifty states, the District of Columbia and the U.S. Virgin Islands. [Citation.]" (In re Alexis O., supra, 157 N.H. at p. 784.)
California adopted the ICPC in 1974. (Civ. Code, former § 264 et seq.; Stats. 1974, ch. 956, § 1, p. 1992.) "`The purpose of the ICPC is to facilitate cooperation between
participating states in the placement and monitoring of dependent children. [Citation.]'" (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 458 [114 Cal.Rptr.2d 320].) The
key provisions of the ICPC state: "Before sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary
to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the
child in the receiving state." (Fam. Code, § 7901, art. 3, subd. (b), italics added.) "The child shall not be sent, brought, or caused to be sent or brought into the receiving state
until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be
contrary to the interests of the child." (Id., subd. (d).) (We will refer to these as the notice provisions.) "Sending agency" is defined as any person or other entity that "sends,
brings, or causes to be sent or brought any child to another ... state." (Fam. Code, § 7901, art. 2, subd. (b).) "Receiving state" is defined as "the state to which a child is sent,
brought, or caused to be sent or brought ... for placement...." (Fam. Code, § 7901, art. 2, subd. (c).)"Placement" is defined as "the arrangement for the care of a child in a
family free or boarding home or in a child-caring agency or institution...." (Fam. Code, § 7901, art. 2, subd. (d).)(2) In our view, the notice provisions do not apply to a
placement with a parent. Admittedly, the definition of "placement" is somewhat ambiguous. "Family free home" is not a term of art, and its meaning is by no means clear on
its face. Even assuming, however, that a "family free home" can include the home of a parent, and therefore that a "placement" can include a placement with a parent, the
notice provisions do not apply unless the placement is "in foster care or as a preliminary to a possible adoption." Thus, the notice provisions would not apply to an out-of-
state placement with a parent. In 1978, the Attorney General came to the same conclusion. (61 Ops.Cal.Atty.Gen. 535, 540 (1978).)3 The California courts have
consistently followed this view. First, Tara S. v. Superior Court (1993) 13 Cal.App.4th 1834 [17 Cal.Rptr.2d 315] (Fourth Dist., Div. One) held that the ICPC does not
apply to an out-of-state placement with a parent. It explained that the ICPC is "limit[ed] ... to foster care and possible adoption—neither of which would involve natural
parents." (Tara S., at p. 1837.) Next, In re Johnny S. (1995) 40 Cal.App.4th 969 [47 Cal.Rptr.2d 94] (Sixth Dist.) likewise held that the ICPC does not apply to an out-of-
state placement with a parent. (Johnny S., at pp. 976-977.) Finally, In re John M. (2006) 141 Cal.App.4th 1564 [47 Cal.Rptr.3d 281] (Fourth Dist., Div. One) held that
"[p]lacement with an out-of-state parent need not follow ICPC procedure...." (Id. at pp. 1573-1575.) Various rule-making bodies, however, have battled to extend the
ICPC to a placement with a parent. One such body is the Association of Administrators of the Interstate Compact on the Placement of Children (the Association).
The ICPC authorizes the Association "to promulgate rules and regulations to carry out more effectively the terms and provisions of this compact." (Fam. Code, §
7901, art. 7; see also <http://icpc.aphsa.org/Home/about.asp> [as of Sept. 27, 2010].) In 1978, the Association adopted its regulation III. Regulation III defined
"placement" for purposes of the ICPC as "includ[ing] the arrangement for the care of a child in the home of his parent... when the sending agency is any entity other than a
parent, relative, or non-agency guardian...." (Available at Tex. Dept. of Family & Protective Services, Child Protective Services Handbook, Appen. 9110-B,
<http://www.dfps.state.tx.us/handbooks /CPS/Files/CPS_px_9110b.jsp> [as of Sept. 27, 2010].) It also provided that the notice provisions of the ICPC applied to any
placement as defined either by the ICPC or by regulation III. (<http://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_px_9110b.jsp>.) In McComb v. Wambaugh,
supra, 934 F.2d 474, however, the court invalidated this aspect of regulation III. First, it held, based on the text of the ICPC, that "the Compact applies only to substitutes for
parental care such as foster care or arrangements preliminary to adoption." (934 F.2d at p. 480.) "[T]he Compact does not apply to parental placements." (Id. at p. 481.)
Thus, regulation III "expands the scope of the Compact...." (Ibid.) "À regulation cannot be upheld if it is contrary to the statute under which it was promulgated.' [Citation.]
No regulation can override legislative intent and extend beyond the legislative scheme. [Citation.] `[I]n any conflict between a statute and a regulation purporting to
implement the statutes provision, the regulation must, of course, give way.' [Citations.] Reviewed under the above standard, the regulation as it might be applied here is of
no effect and the statutory language must govern." (Ibid.imilarly, chapter 31-510 of California's "Child Welfare Services Program Manual of Policies and Procedures"4
v.8/12/2015
v.8/12/2015
provides that the ICPC's notice provisions apply to an out-of-state placement in the home of a parent. (Available at
<http://www.dss.cahwnet.gov/ord/entres/getinfo/pdf/cws4.pdf> [as of Sept. 27, 2010].) In 1995, however, In re Johnny S., supra, 40 Cal.App.4th 969, citing McComb v.
Wambaugh, supra, 934 F.2d at p. 481, invalidated this provision: "These regulations were promulgated by an executive agency pursuant to its rulemaking authority. To the
extent that regulations conflict with statutes or decisional law, the law controls the regulations. [Citation.] The ICPC ... requirement of advance approval from the receiving
state for a placement is clearly limited to cases of placement ìn foster care or as a preliminary to a possible adoption....' [Citation.] Regulations requiring such advance
approval for placement with a parent are neither binding nor persuasive in light of the limitations expressed in the statute itself." (Johnny S., at p. 978.) In 1996, the
Association carved out one exception to its overall position that the ICPC should apply to an out-of-state placement with a parent: It recommended that the ICPC should not
apply to an out-of-state placement with a nonoffending, noncustodial parent, provided the sending state does not retain jurisdiction. (Seiser & Kumli, Cal. Juvenile Courts
Practice and Procedure (2006 ed.) § 2.128[3], p. 2-252 (Seiser & Kumli).) Effective January 1, 1999, the Judicial Council adopted former rule 1428 of the California Rules
of Court (Rule 1428). Former Rule 1428 was designed, in part, to implement the Association's 1996 recommendation. (Seiser & Kumli, supra, § 2.128[3], p. 2-252.) It has
since been renumbered as California Rules of Court, rule 5.616 (Rule 5.616), without any relevant substantive change. Accordingly, Rule 5.616(b)(1) now provides: "(A)
A court directing or making an award of custody to a parent of the child is not a placement within the meaning of this rule, unless the sending court retains dependency
jurisdiction over the child or the order or award requests or provides for supervision or other services or places some other condition or restriction on the conduct of the
parent. "(B) Except in cases in which a child is placed with a parent and jurisdiction has been terminated or in cases in which dependency is maintained only to provide
services to or impose conditions on the noncustodial parent remaining in the sending jurisdiction, the following situations constitute a placement and the compact must be
applied: "(i) An order causing a child to be sent or brought to another party in a compact jurisdiction without a specific date of return to the sending jurisdiction; or "(ii) An
order causing a child to be sent or brought to another party in a compact jurisdiction with a return date more than 30 days from the start of the visit or beyond the ending
date of a school vacation period." (3) In re John M., supra, 141 Cal.App.4th 1564, however, held that "to the extent that [R]ule 1428 requires ICPC compliance in the case
of an out-of-state placement with a parent, it is ineffective." (Id. at p. 1575.) "The Judicial Council is empowered to àdopt rules for court administration, practice and
procedure.' [Citation.] `[R]ules of court are supposed to assist in interpreting and implementing the legislative scheme for dependent minors. In cases of conflict or
ambiguity the statutory language, and Supreme Court decisions interpreting those statutes, must control over the rules.' [Citations.] Rule 1428 attempts to expand the
application of the ICPC to placements with out-of-state parents. It thus conflicts with the statutory language, which controls over the rule." (Ibid.) Although In re John M.
involved former Rule 1428, it applies equally to Rule 5.616(b)(1).5 In this case, the juvenile court seemed to read Rule 5.616 to mean that the application of the notice
provisions of the ICPC turned on whether the father could be deemed a nonoffending, noncustodial parent. That was why it set aside Allegation b-4. Under Rule
5.616(b)(1)(A), however, any out-of-state placement with a parent—even a nonoffending, noncustodial parent—is subject to the notice provisions of the ICPC, provided the
sending court either (1) retains jurisdiction over the child or (2) places some condition or restriction on the conduct of the out-of-state parent. Here, the juvenile court did
retain jurisdiction. Moreover, it required the father to attend Al-Anon and to participate in family maintenance services. Accordingly, if Rule 5.616(b)(1) was valid, then the
juvenile court erred by failing to comply with the ICPC. (4) Rule 5.616(b)(1), however, was not valid. Under Tara S., Johnny S., and John M., an out-of-state placement
with a parent is never subject to the ICPC. Thus, the juvenile court did not err by failing to comply with the ICPC. We therefore need not decide whether the juvenile court
erred in setting aside Allegation b-4. The ICPC simply did not apply, regardless of whether the father was an offending or a nonoffending parent. The juvenile court did the
right thing, even if for the wrong reasons. Any error in setting aside Allegation b-4 is harmless.6 In sum, we agree with the California case law cited above; even if we did
not, we might well adhere to it as a matter of stare decisis. We are publishing this opinion, however, to point out that there are potentially thorny practical issues arising out
of the lack of uniformity in this area. First, the sending agency may inadvertently violate the law of the receiving state. The ICPC provides: "The sending, bringing, or
causing to be sent or brought into any receiving state of a child in violation of the terms of this compact shall constitute a violation of the laws respecting the placement of
children of both the state in which the sending agency is located or from which it sends or brings the child and of the receiving state. A violation may be punished or
subjected to penalty in either jurisdiction in accordance with its laws." (Fam. Code, § 7901, art. 4.) This, in turn, may jeopardize the placement. Here, counsel for the
Department advised the juvenile court that the Alabama authorities had taken the position that the children could not be placed there until "full completion of the ICPC."
(See D.S.S. v. Clay County Dept. of Human Resources, supra, 755 So.2d at p. 590.) Counsel further advised the court that "placing a child in a state without approval from
the receiving state ... can prevent us from having any other future placements in their state." Second, the Association has consistently taken the position that the ICPC should
apply to an out-of-state placement with a parent. Its opinion deserves respect; it has overwhelming expertise in this area. And it does not take an expert to conclude that
v.8/12/2015
v.8/12/2015
there should be some way for one state to ask another state to supervise a placement with a parent. Although we have concluded that the ICPC does not provide for this, and
that the Association and the Judicial Council do not have the legal authority to bring this about on their own, it may be time for a 50-state effort to extend the ICPC to this
situation. IV DISPOSITION The order appealed from is affirmed. Ramirez, P. J., and Miller, J., concurred. FOOTNOTES* Pursuant to California Rules of Court, rules
8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II. 1. Florida cannot seem to make up its mind. (Compare State, Dept. of Children &
Family Services v. L.G. (Fla.Dist.Ct.App. 2001) 801 So.2d 1047, 1051-1052 [First Dist.] with H.P. v. Department of Children & Families (Fla.Dist.Ct.App. 2003) 838
So.2d 583, 585-586 [Fifth Dist.] and Department of Children & Families v. Benway (Fla.Dist.Ct.App. 1999) 745 So.2d 437, 439 [Fifth Dist.].) 2. This allegation was
numbered b-3 in the original complaint and b-4 in the amended complaint. We will refer to it as Allegation b-4 throughout for consistency and clarity. * See footnote, ante,
page 1024. 3. As the Attorney General cautioned, other requirements of the ICPC are not necessarily limited to placements in foster care or for adoption. (61
Ops.Cal.Atty.Gen., supra, at p. 544.) These would include the requirement that the sending agency retain jurisdiction over the child. (Ibid., citing Fam. Code, § 7901, art. 5,
subd. (a).) In this case, however, there is no claim that the juvenile court has failed to comply with these requirements or has made compliance with them impossible. For
example, the juvenile court intended to retain jurisdiction. Only the notice provisions are at issue. 4. The manual has the status of a statewide regulation. (Cal. Code Regs.,
tit. 22, div. 2, pt. 1.) 5. Indeed, but for a quirk of timing, the Judicial Council might not have even adopted Rule 5.616(b)(1). Rule 5.616 was adopted on June 30, 2006, but it
did not go into effect until January 1, 2007. (Historical Notes, 23 pt. 1B West's Ann. Court Rules (2006 ed.) foll. rule 5.616, p. 594.) Meanwhile, on August 16, 2006, In re
John M. was decided. Thus, Rule 5.616(b)(1) was essentially dead on arrival. 6. The Department has not argued that the order setting aside Allegation b-4 was prejudicial in
any respect other than in its impact on the ICPC issue.
icpcDISCUSSIONThe Juvenile Court Properly Exercised Its Discretion in Terminating The Juvenile's Court's Analysis Followed Proper Legal Standards Formatted ...
JurisdictionA. and Its Findings Are Supported by Substantial Evidence Jamie's principal contention on appeal is that the juvenile court erred in terminating jurisdiction
without making a specific determination, under section 361.2, that continued supervision was unnecessary in this case—a determination Jamie insists the trial court could
not have made under the facts of this case. We conclude the juvenile court evaluated the Agency's We disagree. recommendation to terminate jurisdiction under the
legal standard applicable at the time, and its finding that no protective issue exists that would warrant retaining jurisdiction is supported by substantial evidence.7 ction Formatted: Font: (Default) Times New Roman, Font color:
361.2, the statute Jamie argues controls here, provides as follows:When a court orders removal of a child pursuant to Section 361, the “(a) court shall first Red
determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the Formatted ...
provisions of Section 300, who desires to assume If that parent requests custody, the court shall place custody of the child. the child with the parent unless it finds that
placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. [¶] (b) If the court places the child with that
parent it may do any of the following: [¶] (1) Order that the parent become legal and physical The court may also provide reasonable visitation by custodian of the
child. The court shall then terminate its jurisdiction over the noncustodial parent. [¶] (2) Order that the parent assume custody subject to the the child․ [¶] (3) Order
that the parent assume jurisdiction of the juvenile court․ 361.2, subds.(a) custody subject to the supervision of the juvenile court.” (§ & (b)(1)-(3).) Joshua certainly
qualified as a noncustodial, nonoffending parent, and the Despite court found that placement with him would be in A.J.'s best interests. these factual similarities with
the circumstances described in section 361.2, however, that provision did not apply at the time the juvenile court announced “[O]nly a presumed father is entitled to
assume immediate custody” its ruling. (In re Zacharia D. (1993) 6 Cal.4th 435, 454, 24 under section 361.2. At the time the court ordered that A.J. be Cal.Rptr.2d
751, 862 P.2d 751.) placed with her father in Hawaii, and indicated its intention to terminate jurisdiction, it had found that Joshua was a mere biological father, not the
For this reason, as Jamie contends, section 361.2 did not presumed father. govern the juvenile court's analysis. Another basis for terminating jurisdiction is found in
section 364, which applies when a child is not removed from the physical custody of his or her parent under section 300, and requires the court to terminate jurisdiction at
the six-month review hearing unless it determines that “continued supervision is 364, subds.(c) necessary.” (§ & Although A.J.'s case had proceeded (a).) to the six-
month review stage at the time the juvenile court terminated jurisdiction, section 364 did not apply because A.J. had been removed from the custody of her mother under
section 300. Plainly, Joshua's request for custody and termination of jurisdiction did not fit neatly within the parameters of either section 361.2 or section 364.
However, “[t]he fundamental premise of dependency law is to serve the best (See, e.g., In re Samuel G. (2009) 174 interests of the dependent child.” The law provides
the juvenile Cal.App.4th 502, 510, 94 Cal.Rptr.3d 237.) courts with the necessary tools and guidelines, as well as broad discretion, to make appropriate orders regarding
dependent children consistent with this “ ‘The juvenile court has broad discretion to determine foundational principle. what would best serve and protect the child's
v.8/12/2015
v.8/12/2015
interest and to fashion a (In re [Citation.]” dispositional order in accordance with this discretion.’ Gabriel L. (2009) 172 Cal.App.4th 644, 652, 91 Cal.Rptr.3d 193; Formatted ...
accord, In re Corey A. (1991) 227 Cal.App.3d 339, 346, 277 Cal.Rptr. 782 [at section 300 dispositional hearing, the “paramount concern” in deciding where child will
live 362.4 [providing that when juvenile is the child's best interest]; see also § court terminates its jurisdiction and a custody order has been entered, it may 245.5
[Juvenile court “may make additional protective or other orders]; § direct all such orders to the parent, parents, or guardian of a minor ․ as the court deems necessary and
proper for the best interests of or for the rehabilitation of the minor.”].) Pursuant to this inherent authority, the juvenile court found by “clear and convincing evidence ․
that it is in [A.J.'s] best interest to be placed [with I am satisfied by the case law, Rules of Court, and statute as well Joshua]. as the legislative scheme and the policy
underlying it that the Court does have the authority to terminate jurisdiction at this time and to terminate mother's The court also found “that services because of the
placement with a parent.” The court went on to explain the evidence there is not a protective issue.” supporting these findings, including the following: (1) that
although Joshua made “a huge error” in not contacting Jamie and A.J. earlier, he has since “grown up, changed, gotten himself into therapy, which is impressive, to deal
with all of this”; (2) Joshua came across as “solid and credible, as conscientious, earnest, and as remorseful”; (3) he demonstrated commitment to He's taken on the role
of parent․ A.J., “respect[s] her as a child with needs. He's jumped into action,” talking to service providers and getting his family involved; and (4) A.J.'s behavioral
issues had improved significantly and she wants to be with him. The Agency's assessments and the testimony at the disposition hearing, Significantly, summarized
previously, amply support the court's findings. Instead, she argues that, rather than properly Jamie does not argue otherwise. evaluating under section 361.2 whether
continuing supervision was necessary, the court used the wrong legal standard in concluding as follows: “I can't find by clear or convincing evidence that closing the
case today would be likely to recreate the conditions that led to the Court assuming jurisdiction in the first I cannot make place, and that there is a need for family
maintenance services. So for that reason and other reasons, the Court finds it is that finding. This language appears to track that of appropriate to terminate
jurisdiction.” section 364, which provides that the trial court shall terminate its jurisdiction unless it determines that “conditions still exist which would justify initial
assumption of jurisdiction under Section 300, or that those 364, subd. conditions are likely to exist if supervision is withdrawn.” (§ (c).) Nevertheless, in As explained
previously, section 364 did not apply here. In the absence of a our view, Jamie's argument exalts form over substance. directly applicable statute, the court
explained at length why the record presented no protective issue, which, after all, is the fundamental basis for (See In re Janet T. exercising dependency
jurisdiction in the first place. (2001) 93 Cal.App.4th 377, 391, 113 Cal.Rptr.2d 163 [before the court may exercise dependency jurisdiction under section 300, there must
be evidence that 300 generally child is exposed to substantial risk of harm]; see also § [exercising dependency jurisdiction requires showing that there is a substantial
Logically, the court's analysis and conclusions imply risk of harm to child].) a finding that there was no need for the court's continuing supervision to The trial court
found Joshua to be a ensure A.J.'s safety and well-being. committed, responsible parent who could provide a stable, loving and safe home for A.J. and who had taken the
necessary steps to see that A.J. would receive As explained, all the services, education and health care that she needed. substantial evidence supports these findings. In
these circumstances, the fact that the juvenile court did not expressly state “there is no need for continuing supervision,” is no grounds for reversing its otherwise proper
ruling.8 (See In re Janee W. (2006) 140 Cal.App.4th 1444, 1452, 1453, 45 Cal.Rptr.3d 445 [court's use of the language of section 364 instead section 361.2 to terminate Formatted: Font: (Default) Times New Roman, Font color:
jurisdiction was harmless, where “all the evidence before the court showed that continuing supervision of the minors was no longer required”]; see also People v. Geier Red
(2007) 41 Cal.4th 555, 582, 61 Cal.Rptr.3d 580, 161 P.3d 104 [appellate court reviews the correctness of the court's ruling, not its reasoning, “and, if the ruling was Formatted ...
correct on any The fact that the court did not use those precise words ground, we affirm”].) does not mean, as Jamie contends, that it employed a less rigorous standard
in placing A.J. with a mere a biological father than would be required for The court found, based on substantial placement with a presumed father. evidence, that there
was no protective issue presented by A.J.'s placement with Jamie fails to explain how this is any less demanding a standard than Joshua. one requiring a finding that
continued supervision is unnecessary, or what additional evidence would be required to meet this latter standard than had already been presented to the juvenile court.
Jamie responds, however, that the court did not give due consideration to a number of factors that, in her view, mandated retention of dependency These include the fact
that A.J. had jurisdiction and ongoing supervision. only recently met her father, that father had prior brushes with the law, that Joshua's wife spanked A.J. once and that
A.J. had a history of behavioral On the contrary, The evidence does not bear out Jamie's contention. issues. viewed in its entirety, the record shows the court was
aware of and considered these issues, and determined they were insufficient to warrant continuing jurisdiction.Joshua demonstrated, to the satisfaction of the court, that
he was very remorseful for not entering A.J.'s life sooner, and the court found his efforts Joshua's visits with to assume the parental role were swift and impressive.
Joshua had learned important lessons about A.J. had been very successful. setting limits with A.J. The court found he had not only “respected [A.J.] as a child with
needs,” but had taken the necessary steps to ensure those needs would Importantly, the trial court observed that, despite their be met in Hawaii. relatively short period
v.8/12/2015
v.8/12/2015
together, A.J. had thrived with her father in her life. Although she was once a girl “who was “She has improved in all spheres.” running helter-skelter out of the cabins Formatted ...
and couldn't be controlled,” since her father came on the scene, the negative manifestations of A.J.'s behavior issues Significantly, A.J. was “adamant” about have
“dramatically diminished.” wanting to go live with him in Hawaii, telling the social worker she felt “safe” and “loved” there.Joshua voluntarily reported to the
Agency that he had been a heavy drinker in his 20's and as a result, had been charged twice with driving under the However, he completed a drug treatment
program influence, in 2004 and in 2007. Joshua also and there is no dispute he has remained sober ever since. self-reported that he had been charged with
“making terrorist threats” to a Notwithstanding this security guard while on a construction job in 2008. rather ominous-sounding charge, the incident involved a single
argument between Joshua and a coworker, during which Joshua held in his hand a hammer that he Joshua was given a deferred never actually used against the coworker.
sentence, completed anger management classes and community service requirements The Agency confirmed that he had and paid the required restitution/fines.
completed the terms of his probation, and that this incident would be expunged There is no evidence of any other criminal from his record as of May 2013. history, and
no evidence indicating that such conduct would likely be repeated. As for the spanking incident, this was a onetime punishment that amounted to The evidence
showed the use of this discipline one slap on the bottom. followed earlier, unsuccessful attempts to convince A.J. to stop the offending Other appropriate forms of
discipline (time-outs, for example) had behavior. The Agency was satisfied the stepmother understood been used in Joshua's home. Even A.J. the importance of
avoiding this form of discipline in the future. agreed the discipline was appropriate under the circumstances, and it appeared to have no lasting adverse impact on her.
This evidence belies Jamie's contention that the juvenile court necessarily would have retained jurisdiction had it applied what Jamie contends was the proper legal
standard.9 The court expressly recognized that the concerns raised by Jamie demonstrated a need to ensure that all proper educational and therapeutic services were in Formatted: Font: (Default) Times New Roman, Font color:
place by the time A.J. moved to Hawaii, but critically, these did not rise to As the court the level of justifying continued dependency jurisdiction. And as far explained: Red
“These are issues, but they are not protective issues. as we all would like or I would like the Court to be able to observe and to monitor, there is not a legal basis for Formatted ...
doing this.” 10 Still, rather than (Italics added.) immediately terminating jurisdiction, the court gave the parties almost an additional two months to ensure that all
satisfactory arrangements for A.J.'s care and education in Hawaii had been successfully put in place before That delay enabled the court to receive additional finalizing Red
its order. For this reason, Jamie's reports about how A.J. was faring in her new home. suggestion that the court's decision to terminate jurisdiction was unduly hasty
also fails. Jamie's Arguments Concerning the Role of the Interstate Compact on B. Placement of Children (ICPC) in the Court's Decision to Terminate Formatted ...
Jurisdiction Are Unfounded Jamie argues that one of the reasons the trial court “hastily terminated jurisdiction” is that it was concerned if it did not do so, Hawaii
would not accept placement of A.J. in that state, since the Agency had not yet complied The with the procedures required by the ICPC, Family Code section 7901 et seq.
ICPC, Jamie argues, in fact posed no conflict that required the court to Had the juvenile court not misapprehended the impact terminate jurisdiction. of that law on this
case, Jamie contends, it would have continued its jurisdiction to ensure the placement with Joshua posed no risks for A.J. We Nothing reject these contentions as
speculative and lacking factual support. in the record suggests the ICPC factored at all in the juvenile court's final Moreover, as we have explained, the record decision
to terminate jurisdiction. otherwise supports the order terminating jurisdiction, regardless of any concerns the court may or may not have had about the role of the ICPC
here. The ICPC governs the interstate placement of children, and generally requires that no child may be sent to another state for placement “in foster care or as a
preliminary to a possible adoption ” unless the sending agency has first 7901, Art. 3, su Why does the New ICPC require individuals involved in private
and independent adoptions to make a request for an assessment through the public child placing agency in the sending state and
upon completion require approval from the public child placing agency in the receiving state for interstate adoptions?
The New ICPC requires that an assessment for a private or independent adoption be requested through the public child placing agency in the
sending state and upon completion, approval by the public child placing agency in the receiving state to provide both the sending and
receiving states with proper notice of an interstate adoption. This procedure ensures that children placed across state lines are afforded the
protections which are required by federal and state law and guaranteed under the New ICPC. The rules which will govern the administrative
processes used in interstate placements will be established under the principles of the Model State Administrative Procedures Act. The key to
rules and regulation developed through this process is for private, public and government entities to be actively involved so that the resultant
v.8/12/2015
v.8/12/2015
product is as simple, fair, and efficient as possible. Clearly the joint effort and cooperation of all involved will help to expedite safe and
timely interstate placements.
For example, hypothetically, the process for requesting an assessment can occur by providing notice that an assessment is needed within a
particular state by submitting a request electronically and receiving verification of the request electronically. Furthermore, the private
placement agency could be at liberty to use an approved (licensed) agency/worker from an official list to conduct the assessment within the
receiving state, thereby not increasing the workload of existing state staff or creating the need for states to increase their child welfare staff.
Upon completion of the assessment, the public agency in the receiving state could provide approval or denial electronically within a set
(specified) number of days to the sending state and private or independent agents involved. The Interstate Commission could determine
through the rules and regulations how and when the ICPC offices would function through this process.
Back to Top Formatted ...
bd. (a), (Fam.Code, § complied with the law's requirements. There has been some debate about whether the ICPC applies to italics added.) California law holds it Formatted ...
does not. out-of-state placements with a parent. (See, e.g., In re C.B. (2010) 188 Cal.App.4th 1024, 1032, 116 Cal.Rptr.3d 294 [notice provisions of the ICPC do not
apply to a placement with a parent]; Cal. Rules of Court, rule 5.616(b)(1)(A) [“A court ․ placing a child with his or her parent is not ng which the juvenile court granted
Joshua's section 388 petition and set the contested disposition hearing, the court observed that “we don't have an ICPC or any arrangement in Hawaii for The Agency
responded that if the court were to follow courtesy supervision.” its recommendation and terminate jurisdiction “we would not have the issues with regards to ICPC,”
but “if ․ the Court ruled differently, then we would have to seek the assistance of Hawaii to try and expedite the ICPC under the The court instructed the Agency to look
into “whether or not circumstances.” Hawaii would object while the t would view the placement of A.J. in Hawaii vis-à-vis the ICPC. The Agency nevertheless argued
that Hawaii could “potentially view this as an illegal placement,” and that A.J. “would be sent back to California if we place her there without an ICPC in place, which
we don't have at this At that point, the court asked for clarification that this “would time.” happen if this Court asked for courtesy supervision or some involvement
from ․ The Agency responded affirmatively, adding if CWS did not provide Hawaii.” courtesy supervision and the court retained jurisdiction, that would “force the
[A]gency to monitor the case from afar,” which in the Agency's view would constitute illegally practicing social work out of state. Notwithstanding these exchanges,
the juvenile court proceeded to issue its extensive factual findings and its tentative ruling that jurisdiction would be terminated, without once referencing the
ICPC. The court also made no mention of the ICPC when it confirmed its decision to terminate jurisdiction in September The written orders reflecting the court's ruling
terminating 2012. Additionally, the Agency jurisdiction also make no mention of that law. presented no definitive evidence substantiating its argument that CWS
would not accept placement of A.J. in that state if jurisdiction were retained, or that CWS would refuse the Agency's request for courtesy supervision absent ICPC
procedures.11 Accordingly, Jamie's assertion that the court terminated jurisdiction in significant part due to potential ICPC complications lacks factual foundation in the Formatted: Font: (Default) Times New Roman, Font color:
record, even assuming the law favored termination of jurisdiction to avoid those complications. Red
Jamie argues, however, that the ICPC clearly was material to the juvenile court's ruling because, but for the concerns raised by that law, “it is likely the trial court would Formatted: Font: (Default) Times New Roman, Font color:
not have terminated jurisdiction” in view of the evidence showing Joshua's past brushes with the law, A.J.'s history of behavioral issues This argument, too, and the Red
short time period Joshua has been in A.J.'s life. is pure speculation, and is belied by the court's explicit factual findings indicating that these matters posed no Formatted ...
protective issues warranting continuing We have concluded these findings are supported by substantial jurisdiction. evidence, and Jamie's arguments regarding
the ICPC give us no cause to revisit that conclusion. DISPOSITION The order terminating jurisdiction is affirmed. FOOTNOTES 1Jamie originally appealed . the Formatted ...
juvenile court's custody orders and its order placing A.J. with her father However in her opening brief, as well as its order terminating jurisdiction. We she states she
is appealing only the order terminating jurisdiction. therefore deem abandoned her appeal of the juvenile court's other orders. Because Jamie does not appeal A.J.'s
placement with Joshua or the court's denial of her request to return A.J. to her care, our summary of the complex factual and procedural history of this case is focused on
matters relevant to the trial court's termination of jurisdiction. 7Generally, we review . orders terminating the juvenile court's jurisdiction under an abuse of
v.8/12/2015
v.8/12/2015
(Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, discretion standard. The court's factual findings are reviewed for 300, 55 Cal.Rptr.3d 647.) (See, Formatted ...
e.g., In re Austin P
. (2004) 118 Cal.App.4th 1124, substantial evidence. 1134, 13 Cal.Rptr.3d 616 (Austin P.) [appellate court reviewed record for substantial evidence indicating whether Formatted ...
there was a need for continuing To the extent an appeal challenges whether the juvenile court supervision].) based its order terminating jurisdiction on the correct legal
authority, we (Bridget A., at p. 301, 55 Cal.Rptr.3d 647.) review that issue de novo. 8For the same reason, we . reject Jamie's suggestion that once Joshua was found Formatted ...
to be the presumed father, the court should have reevaluated its plan to terminate jurisdiction under the Effectively, the court made all applicable standards of section
361.2. necessary findings during its initial ruling, and no purpose would have been served by the court revisiting its earlier findings. 9Jamie's reliance on Austin Formatted ...
. In that case, the nonoffending, noncustodial father and the P. is misplaced. stepmother had been aware of Austin's abuse by his mother, but had not taken
(Austin P., supra, 118 Cal.App.4th at p. 1134, 13 steps to protect him. In addition, there was conflict among the father, stepmother Cal.Rptr.3d 616.) (Ibid.
) Finally, Austin was far more and mother that does not exist here. bonded with his mother than with his father, and wanted to reunify with her. (Ibid.) Here, by Formatted ...
contrast, although A.J. clearly loves her mother, has bonded with her, and had some ambivalence about leaving her, she had grown very close to her father and expressed
an “adamant” wish to live with him.
10According to Jamie, . these statements indicate the juvenile court was conflicted about whether to We disagree. place A.J. out of state without continuing court Formatted: Font: (Default) Times New Roman, Font color:
supervision. In our view, the court was merely explaining the difference between matters requiring the ongoing attention and care of Joshua as the new custodial parent, Red
and facts demonstrating the existence of risks to A.J.'s health and safety arising from that placement—risks that would justify retaining dependency The record in this Formatted ...
case shows the latter risks did not exist. jurisdiction. Notwithstanding the natural desire of the court to monitor the situation to ensure that all would continue to go well
for A.J., the court recognized it had no legal basis for maintaining that involvement.
11In its July 25, 2012, . addendum report, the Agency included a statement from Kelly Key, San Diego County's ICPC liaison, who indicated that if no ICPC were in Formatted: Font: (Default) Times New Roman, Font color:
place, there would be no “obligation” for CWS to provide any support services, and “many No jurisdictions will not comply” with a request for courtesy supervision. Red
declaration or other evidence from CWS was included in the record; however, far from indicating that a lack of cooperation was likely, CWS already had approved Formatted ...
Joshua's home as suitable for A.J.'s placement.
A.J. was reported to be a bright, spirited little girl with some behavioral She displayed a temper, was disobedient and had trouble following the issues. A.J. had been Formatted ...
placed with a nonrelated extended family member, but in rules. April 2012, the caregiver requested that A.J. be removed from her care because of A.J.'s unsafe
behaviors, including leaving the home and attempting to injure A.J. was removed to Polinsky on April 6, 2012, with the intention herself. On April 30, that she be
placed in an Intensive Treatment Foster Care home. 2012, the Agency filed a section 387 petition requesting the court order a higher level of care for A.J. The court
ordered A.J.'s continued detention at Polinsky, set a jurisdiction and disposition hearing for May 2012 and scheduled the six- and 12–month review hearings.
WE CONCUR:McDONALD, J.AARON, J."One of the key elements of any interstate compact is uniformity in interpretation. Uniformity, however, is lacking with
respect to the issue of whether the [Interstate Compact on the Placement of Children] applies to the placement of a child with a natural parent ...." (Butler, Child
Welfare—Outside the Interstate Compact on the Placement of Children— Placement of a Child With a Natural Parent (1992) 37 Villanova L.Rev. 896, 916, fn.
omitted.)As we will discuss, California cases have consistently held that the Interstate Compact on Placement of Children (ICPC; Fam. Code, § 7900 et seq.) does not
apply to an out-of-state placement with a parent. They have even gone so far as to invalidate statewide rules and regulations that urported to make the ICPC apply. Other
jurisdictions that have taken the same position include Arkansas (Arkansas Dept. of Human Services v. Huff (2002) 347 Ark. 553, 562-564 [65 S.W.3d 880, 886-888]),
New Hampshire (In re Alexis O. (2008) 157 N.H. 781, 788-791 [959 A.2d 176, 182-185]), New Jersey (State, DYFS v. K.F. (2002) 353 N.J.Super. 623, 631-636 [803
A.2d 721, 726-729]), Washington (In re Dependency of D.F.-M. (2010) 157 Wn.App. 179, 182-191 [236 P.3d 961]), and the Third Circuit (McComb v. Wambaugh (3d
Cir. 1991) 934 F.2d 474, 481). This brings California into conflict with those jurisdictions holding that the ICPC does apply to an out-of-state placement with a parent.
These include Alabama (D.S.S. v. Clay County Dept. of Human Resources (Ala.Civ.App. 1999) 755 So.2d 584, 590), Arizona (Arizona Dept. of Economic Security v.
Leonardo (2001) 200 Ariz. 74, 79-83 [22 P.3d 513, 518-522]), Delaware (Green v. Division of Family Services (Del. 2004) 864 A.2d 921, 926-928), Massachusetts
(Adoption of Warren (1998) 44 Mass.App.Ct. 620, 623-624 [693 N.E.2d 1021, 1024-1025]), Mississippi (K.D.G.L.B.P. v. Hinds Couty DHS (Miss. 2000) 771 So.2d 907,
913), New York (Faison v. Capozello (N.Y.App.Div. 2008) 50 A.D.3d 797, 797-798 [856 N.Y.S.2d 179, 179-180]), and Oregon (State ex rel. Juvenile Dept. of
v.8/12/2015
v.8/12/2015
Clackamas County v. Smith (1991) 107 Or.App. 129, 132, fn. 4 [811 P.2d 145, 147]).1 We find the decisions in California and elsewhere holding that the ICPC does not
apply to be far better reasoned than those holding that it does. Accordingly, we see no reason not to follow our sister California courts. We are publishing this opinion,
however, to point out that the resulting lack of uniformity is dysfunctional, that courts and rule makers have not been able to fix it, and hence that it may call for a
multistate legislative response. I FACTUAL AND PROCEDURAL BACKGROUND A. THE BEGINNING OF THE DEPENDENCY.B.B with respect to the father
was that "[t]he father failed to protect his children, despite the mother's substance abuse history and prior arrests for being under the influence of a controlled substance,
[in that] the father left the [s]tate and allowed his children to remain in the mother's care." (Allegation b-4.) 2On September 2, 2009, the social worker contacted
the father by telephone. The father said he knew that the mother had two prior drug-related arrests, but he added that she did not use drugs when he was around. He said
he had gone to work outside the state "to make a better life for his family ...." He was making about $6,000 a month. His paychecks were sent to the mother, who in turn
sent him small sums, as needed. He wanted the whole family to move to the Gulf area. In the jurisdictional/dispositional report, the social worker concluded that there
was insufficient evidence to sustain Allegation b-4: "[T]he family concurs that the father left the state to provide a better life for his family.... [T]hey were supposed to
[go] to ... [the Gulf area] to reside with the father.... [H]e was not aware of [the] mother's recent substance abuse and felt that the mother and children were safely staying
with the maternal great grand[-]mother until he was able to move them to [the Gulf area]." m in the custody of the father. C. THE JURISDICTIONAL HEARING.In
November 2009, at the jurisdictional hearing, counsel for the Department asked the juvenile court to find Allegation b-4 true. Counsel for the father pointed out that the
social worker had concluded that it was not supported b A discussion of the ICPC ensued. Counsel for the Department argued that the juvenile court could not place the
children out of state with the father unless it complied with the ICPC. Counsel for the father argued that the ICPC did not apply to a placement with a parent. Counsel for
the Department agreed that the ICPC did not apply to a placement with a nonoffending, noncustodial parent, but she argued that the father was an offending parent. The
juvenile court continued the hearing. On January 21, 2010, at the continued dispositional hearing, counsel for the Department reported that, according to the Alabama
ICPC coordinator, the children could not be placed in Alabama other than pursuant to the ICPC. The juvenile court ordered the Department to initiate a priority ICPC
placement of the children in Alabama. It continued the dispositional hearing so it could review the status of the ICPC process.
E. THE ICPC STATUS REVIEW HEARING. As of the continued hearing, on February 3, 2010, Alabama had not yet responded to the ICPC notice. Counsel for the
Department argued that "mother and father need ... to remain here in California awaiting ICPC before they relocate to Alabama Counsel for the father argued again that
the ICPC did not apply. Counsel for the mother and counsel for the minors concurred. After hearing argument, the juvenile court stated: "We make efforts all the time
here to try to find a way down a mountain in order to reunite families.... The way down this mountain is to, in theory, allow father to go out of the state and mother
remain here. What's the protection? We still have jurisdiction. If mother leaves the state, I issue warrants for her and the children. We bring them back.... "... This is the
best thing for this family. Pursuant to [Welfare and Institutions Code section] 390, I will set aside my finding[] that [Allegation] b-4 ... is true, rendering the father a non
offending father." Counsel for the Department objected, citing Code of Civil Procedure section 1008. The juvenile court responded: "A simple [petition under Welfare
and Institutions Code section] 388 would cure that. It's still going to be my order ...." The juvenile court authorized the father to leave California with the children. It
ordered, however, that his custody of the children be subject to supervision by the Department. It also ordered him to participate in family maintenance services and
specifically to participate in Al-Anon. It ordered the mother not to leave California. II THE DENIAL OF A STAY* III THE APPLICATION OF THE ICPC The
Department contends that the juvenile court erred by placing the children with the father out of state without complying with the ICPC. The juvenile court acted on the
assumption that the ICPC does not apply to an out-of-state placement with a noncustodial, nonoffending parent; it set aside Allegation b-4 to make the father a
nonoffending parent, and thus to obviate the need to comply with the ICPC. The Department argues that the ICPC does apply to an out-of-state placement with a
noncustodial, nonoffending parent, at least when, as here, the juvenile court orders further supervision and services for that parent. Alternatively, the Department argues
that the father was both a custodial parent and, in light of the true finding on Allegation b-4—which, it argues, the juvenile court should not have set aside—an offending
parent. The parents, on the other hand, contend the ICPC does not apply to an out-of-state placement with a parent at all. (1) "Interstate compacts, like the ICPC, àre
formal agreements among and between states that have the characteristics of both statutory law and contractual agreements. They are enacted by state legislatures that
adopt reciprocal laws that substantively mirror one another.' [Citation.] The ICPC has been enacted in all fifty states, the District of Columbia and the U.S. Virgin Islands.
[Citation.]" (In re Alexis O., supra, 157 N.H. at p. 784.) California adopted the ICPC in 1974. (Civ. Code, former § 264 et seq.; Stats. 1974, ch. 956, § 1, p. 1992.) "`The
purpose of the ICPC is to facilitate cooperation between participating states in the placement and monitoring of dependent children. [Citation.]'" (In re Emmanuel R.
(2001) 94 Cal.App.4th 452, 458 [114 Cal.Rptr.2d 320].) The key provisions of the ICPC state: "Before sending, bringing, or causing any child to be sent or brought into a
v.8/12/2015
v.8/12/2015
receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving
state written notice of the intention to send, bring, or place the child in the receiving state." (Fam. Code, § 7901, art. 3, subd. (b), italics added.) "The child shall not be
sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in
writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child." (Id., subd. (d).) (We will refer to these as the notice
provisions.) "Sending agency" is defined as any person or other entity that "sends, brings, or causes to be sent or brought any child to another ... state." (Fam. Code, §
7901, art. 2, subd. (b).) "Receiving state" is defined as "the state to which a child is sent, brought, or caused to be sent or brought ... for placement...." (Fam. Code, §
7901, art. 2, subd. (c).)"Placement" is defined as "the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution...."
(Fam. Code, § 7901, art. 2, subd. (d).)(2) In our view, the notice provisions do not apply to a placement with a parent. Admittedly, the definition of "placement" is
somewhat ambiguous. "Family free home" is not a term of art, and its meaning is by no means clear on its face. Even assuming, however, that a "family free home" can
include the home of a parent, and therefore that a "placement" can include a placement with a parent, the notice provisions do not apply unless the placement is "in foster
care or as a preliminary to a possible adoption." Thus, the notice provisions would not apply to an out-of-state placement with a parent. In 1978, the Attorney
General came to the same conclusion. (61 Ops.Cal.Atty.Gen. 535, 540 (1978).)3 The California courts have consistently followed this view. First, Tara S. v. Superior
Court (1993) 13 Cal.App.4th 1834 [17 Cal.Rptr.2d 315] (Fourth Dist., Div. One) held that the ICPC does not apply to an out-of-state placement with a parent. It
explained that the ICPC is "limit[ed] ... to foster care and possible adoption—neither of which would involve natural parents." (Tara S., at p. 1837.) Next, In re Johnny S.
(1995) 40 Cal.App.4th 969 [47 Cal.Rptr.2d 94] (Sixth Dist.) likewise held that the ICPC does not apply to an out-of-state placement with a parent. (Johnny S., at pp. 976-
977.) Finally, In re John M. (2006) 141 Cal.App.4th 1564 [47 Cal.Rptr.3d 281] (Fourth Dist., Div. One) held that "[p]lacement with an out-of-state parent need not
follow ICPC procedure...." (Id. at pp. 1573-1575.) Various rule-making bodies, however, have battled to extend the ICPC to a placement with a parent. One such
body is the Association of Administrators of the Interstate Compact on the Placement of Children (the Association). The ICPC authorizes the Association "to
promulgate rules and regulations to carry out more effectively the terms and provisions of this compact." (Fam. Code, § 7901, art. 7; see also
<http://icpc.aphsa.org/Home/about.asp> [as of Sept. 27, 2010].) In 1978, the Association adopted its regulation III. Regulation III defined "placement" for purposes of
the ICPC as "includ[ing] the arrangement for the care of a child in the home of his parent... when the sending agency is any entity other than a parent, relative, or non-
agency guardian...." (Available at Tex. Dept. of Family & Protective Services, Child Protective Services Handbook, Appen. 9110-B,
<http://www.dfps.state.tx.us/handbooks /CPS/Files/CPS_px_9110b.jsp> [as of Sept. 27, 2010].) It also provided that the notice provisions of the ICPC applied to any
placement as defined either by the ICPC or by regulation III. (<http://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_px_9110b.jsp>.) In McComb v. Wambaugh,
supra, 934 F.2d 474, however, the court invalidated this aspect of regulation III. First, it held, based on the text of the ICPC, that "the Compact applies only to substitutes
for parental care such as foster care or arrangements preliminary to adoption." (934 F.2d at p. 480.) "[T]he Compact does not apply to parental placements." (Id. at p.
481.) Thus, regulation III "expands the scope of the Compact...." (Ibid.) "À regulation cannot be upheld if it is contrary to the statute under which it was promulgated.'
[Citation.] No regulation can override legislative intent and extend beyond the legislative scheme. [Citation.] `[I]n any conflict between a statute and a regulation
purporting to implement the statutes provision, the regulation must, of course, give way.' [Citations.] Reviewed under the above standard, the regulation as it might be
applied here is of no effect and the statutory language must govern." (Ibid.imilarly, chapter 31-510 of California's "Child Welfare Services Program Manual of Policies
and Procedures"4 provides that the ICPC's notice provisions apply to an out-of-state placement in the home of a parent. (Available at
<http://www.dss.cahwnet.gov/ord/entres/getinfo/pdf/cws4.pdf> [as of Sept. 27, 2010].) In 1995, however, In re Johnny S., supra, 40 Cal.App.4th 969, citing McComb v.
Wambaugh, supra, 934 F.2d at p. 481, invalidated this provision: "These regulations were promulgated by an executive agency pursuant to its rulemaking authority. To
the extent that regulations conflict with statutes or decisional law, the law controls the regulations. [Citation.] The ICPC ... requirement of advance approval from the
receiving state for a placement is clearly limited to cases of placement ìn foster care or as a preliminary to a possible adoption....' [Citation.] Regulations requiring such
advance approval for placement with a parent are neither binding nor persuasive in light of the limitations expressed in the statute itself." (Johnny S., at p. 978.) In 1996,
the Association carved out one exception to its overall position that the ICPC should apply to an out-of-state placement with a parent: It recommended that the ICPC
should not apply to an out-of-state placement with a nonoffending, noncustodial parent, provided the sending state does not retain jurisdiction. (Seiser & Kumli, Cal.
Juvenile Courts Practice and Procedure (2006 ed.) § 2.128[3], p. 2-252 (Seiser & Kumli).) Effective January 1, 1999, the Judicial Council adopted former rule 1428 of the
California Rules of Court (Rule 1428). Former Rule 1428 was designed, in part, to implement the Association's 1996 recommendation. (Seiser & Kumli, supra, §
v.8/12/2015
v.8/12/2015
2.128[3], p. 2-252.) It has since been renumbered as California Rules of Court, rule 5.616 (Rule 5.616), without any relevant substantive change. Accordingly, Rule
5.616(b)(1) now provides: "(A) A court directing or making an award of custody to a parent of the child is not a placement within the meaning of this rule, unless the
sending court retains dependency jurisdiction over the child or the order or award requests or provides for supervision or other services or places some other condition or
restriction on the conduct of the parent. "(B) Except in cases in which a child is placed with a parent and jurisdiction has been terminated or in cases in which
dependency is maintained only to provide services to or impose conditions on the noncustodial parent remaining in the sending jurisdiction, the following situations
constitute a placement and the compact must be applied: "(i) An order causing a child to be sent or brought to another party in a compact jurisdiction without a specific
date of return to the sending jurisdiction; or "(ii) An order causing a child to be sent or brought to another party in a compact jurisdiction with a return date more than 30
days from the start of the visit or beyond the ending date of a school vacation period." (3) In re John M., supra, 141 Cal.App.4th 1564, however, held that "to the extent
that [R]ule 1428 requires ICPC compliance in the case of an out-of-state placement with a parent, it is ineffective." (Id. at p. 1575.) "The Judicial Council is empowered
to àdopt rules for court administration, practice and procedure.' [Citation.] `[R]ules of court are supposed to assist in interpreting and implementing the legislative
scheme for dependent minors. In cases of conflict or ambiguity the statutory language, and Supreme Court decisions interpreting those statutes, must control over the
rules.' [Citations.] Rule 1428 attempts to expand the application of the ICPC to placements with out-of-state parents. It thus conflicts with the statutory language, which
controls over the rule." (Ibid.) Although In re John M. involved former Rule 1428, it applies equally to Rule 5.616(b)(1).5 In this case, the juvenile court seemed to read
Rule 5.616 to mean that the application of the notice provisions of the ICPC turned on whether the father could be deemed a nonoffending, noncustodial parent. That was
why it set aside Allegation b-4. Under Rule 5.616(b)(1)(A), however, any out-of-state placement with a parent—even a nonoffending, noncustodial parent—is subject to
the notice provisions of the ICPC, provided the sending court either (1) retains jurisdiction over the child or (2) places some condition or restriction on the conduct of the
out-of-state parent. Here, the juvenile court did retain jurisdiction. Moreover, it required the father to attend Al-Anon and to participate in family maintenance services.
Accordingly, if Rule 5.616(b)(1) was valid, then the juvenile court erred by failing to comply with the ICPC. (4) Rule 5.616(b)(1), however, was not valid. Under Tara
S., Johnny S., and John M., an out-of-state placement with a parent is never subject to the ICPC. Thus, the juvenile court did not err by failing to comply with the ICPC.
We therefore need not decide whether the juvenile court erred in setting aside Allegation b-4. The ICPC simply did not apply, regardless of whether the father was an
offending or a nonoffending parent. The juvenile court did the right thing, even if for the wrong reasons. Any error in setting aside Allegation b-4 is harmless.6 In sum,
we agree with the California case law cited above; even if we did not, we might well adhere to it as a matter of stare decisis. We are publishing this opinion, however, to
point out that there are potentially thorny practical issues arising out of the lack of uniformity in this area. First, the sending agency may inadvertently violate the law of
the receiving state. The ICPC provides: "The sending, bringing, or causing to be sent or brought into any receiving state of a child in violation of the terms of this
compact shall constitute a violation of the laws respecting the placement of children of both the state in which the sending agency is located or from which it sends or
brings the child and of the receiving state. A violation may be punished or subjected to penalty in either jurisdiction in accordance with its laws." (Fam. Code, § 7901, art.
4.) This, in turn, may jeopardize the placement. Here, counsel for the Department advised the juvenile court that the Alabama authorities had taken the position that the
children could not be placed there until "full completion of the ICPC." (See D.S.S. v. Clay County Dept. of Human Resources, supra, 755 So.2d at p. 590.) Counsel
further advised the court that "placing a child in a state without approval from the receiving state ... can prevent us from having any other future placements in their state."
Second, the Association has consistently taken the position that the ICPC should apply to an out-of-state placement with a parent. Its opinion deserves respect; it has
overwhelming expertise in this area. And it does not take an expert to conclude that there should be some way for one state to ask another state to supervise a placement
with a parent. Although we have concluded that the ICPC does not provide for this, and that the Association and the Judicial Council do not have the legal authority to
bring this about on their own, it may be time for a 50-state effort to extend the ICPC to this situation. IV DISPOSITION The order appealed from is affirmed.
Ramirez, P. J., and Miller, J., concurred. FOOTNOTES* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with
the exception of part II. 1. Florida cannot seem to make up its mind. (Compare State, Dept. of Children & Family Services v. L.G. (Fla.Dist.Ct.App. 2001) 801 So.2d
1047, 1051-1052 [First Dist.] with H.P. v. Department of Children & Families (Fla.Dist.Ct.App. 2003) 838 So.2d 583, 585-586 [Fifth Dist.] and Department of Children
& Families v. Benway (Fla.Dist.Ct.App. 1999) 745 So.2d 437, 439 [Fifth Dist.].) 2. This allegation was numbered b-3 in the original complaint and b-4 in the amended
complaint. We will refer to it as Allegation b-4 throughout for consistency and clarity. * See footnote, ante, page 1024. 3. As the Attorney General cautioned, other
requirements of the ICPC are not necessarily limited to placements in foster care or for adoption. (61 Ops.Cal.Atty.Gen., supra, at p. 544.) These would include the
requirement that the sending agency retain jurisdiction over the child. (Ibid., citing Fam. Code, § 7901, art. 5, subd. (a).) In this case, however, there is no claim that the
v.8/12/2015
v.8/12/2015
Formatted ...
Formatted ...
juvenile court has failed to comply with these requirements or has made compliance with them impossible. For example, the juvenile court intended to retain jurisdiction. Formatted ...
Only the notice provisions are at issue. 4. The manual has the status of a statewide regulation. (Cal. Code Regs., tit. 22, div. 2, pt. 1.) 5. Indeed, but for a quirk of timing,
Formatted ...
the Judicial Council might not have even adopted Rule 5.616(b)(1). Rule 5.616 was adopted on June 30, 2006, but it did not go into effect until January 1, 2007.
(Historical Notes, 23 pt. 1B West's Ann. Court Rules (2006 ed.) foll. rule 5.616, p. 594.) Meanwhile, on August 16, 2006, In re John M. was decided. Thus, Rule Formatted ...
5.616(b)(1) was essentially dead on arrival. 6. The Department has not argued that the order setting aside Allegation b-4 was prejudicial in any respect other than in its Formatted ...
impact on the ICPC issue.
Formatted ...
A.J. first learned about her biological father about five years previously, when she found a picture of him, but her mother had encouraged her to forget A.J. Formatted ...
was very excited to see the pictures and hear the letters from about him. her father and his family members, and she was eager to visit with them. Joshua first visited Formatted ...
San Diego in late May 2012 to meet and begin to establish a Joshua and relationship with A.J. By all accounts, this visit was a success. A.J. was very A.J. visited daily Formatted ...
both at Polinsky and at a nearby park. Joshua acted comfortable with her father and enjoyed his visits immensely. appropriately with his daughter and was fully
engaged when playing with her. After the initial visitations, A.J. was comfortable with short, unsupervised During his visit, Joshua visits, and she and Joshua went to Formatted ...
SeaWorld together. was brought up-to-date on A.J.'s medical needs (particularly those resulting from kidney surgery she underwent in September 2011), and was made Formatted ...
aware that He she would need ongoing therapy to deal with the physical abuse in her past. was also able to meet with A.J.'s teacher to learn about her academic and Formatted ...
Joshua and the Agency began to plan an behavioral performance in school. extended visit for A.J. in Hawaii. The Agency proposed that A.J. spend a week to 12 days
Formatted ...
with Joshua in Hawaii before the scheduled July hearing date, in order to more fully assess the Jamie objected to the visit, suitability of A.J.'s placement with
her father. arguing that it would impede her reunification with A.J., and that the proposed On length of the visit was too great given A.J.'s limited exposure to Formatted ...
Joshua. June 20, 2012, the juvenile court found the visit to be appropriate, and that a longer visit was warranted to give A.J. “a sense as to the family and what Formatted ...
life
Formatted ...
A.J. visited her father from June 24 to July 15, 2012, accompanied by the A.J. was very Again, the visit was successful. Agency's social worker. When asked Formatted ...
by her social comfortable with her father and his family there. worker, A.J. was “adamant” that she wanted to live in Hawaii with her father and The State of Formatted ...
have frequent contact with her mother and family in California. Hawaii Department of Human Services, Child Welfare Services (CWS) approved Joshua's home as a
Formatted ...
residence for A.J. The Agency recommended that the court A.J.'s court-appointed place A.J. with Joshua and terminate jurisdiction. special advocate also recommended
placement with Joshua, but did not recommend termination of jurisdiction at that time. At the initial six-month review hearing held on July 16, 2012, Joshua Formatted ...
indicated he was Formatted ...
Formatted ...
@2010 California Code Family Code Part 5. Interstate Compact On Placement Of Children FAMILY.CODE SECTION 7900-7912
7900. The Interstate Compact on Placement of Children as set forth Formatted ...
in Section 7901 is hereby adopted and entered into with all other Formatted ...
jurisdictions joining therein. Formatted ...
Formatted ...
Formatted ...
7901. The provisions of the interstate compact referred to in Formatted ...
Section 7900 are as follows:
Formatted ...
INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN Formatted ...
Article 1. Purpose and Policy Formatted ...
It is the purpose and policy of the party states to cooperate with
Formatted ...
v.8/12/2015
v.8/12/2015
each other in the interstate placement of children to the end that:
(a) Each child requiring placement shall receive the maximum
opportunity to be placed in a suitable environment and with persons
or institutions having appropriate qualifications and facilities to
provide a necessary and desirable degree and type of care.
(b) The appropriate authorities in a state where a child is to be
placed may have full opportunity to ascertain the circumstances of
the proposed placement, thereby promoting full compliance with
applicable requirements for the protection of the child.
(c) The proper authorities of the state from which the placement
is made may obtain the most complete information on the basis on
which to evaluate a projected placement before it is made.
(d) Appropriate jurisdictional arrangements for the care of
children will be promoted.
Article 2. Definitions
As used in this compact:
(a) "Child" means a person who, by reason of minority, is legally
subject to parental, guardianship, or similar control.
(b) "Sending agency" means a party state, or officer or employee
thereof; subdivision of a party state, or officer or employee
thereof; a court of a party state; a person, corporation,
association, charitable agency, or other entity which sends, brings,
or causes to be sent or brought any child to another party state.
(c) "Receiving state" means the state to which a child is sent,
brought, or caused to be sent or brought, whether by public
authorities or private persons or agencies, and whether for placement
with state or local public authorities or for placement with private
agencies or persons.
(d) "Placement" means the arrangement for the care of a child in a
family free or boarding home or in a child-caring agency or
institution but does not include any institution caring for the
mentally ill, mentally defective or epileptic or any institution
primarily educational in character, and any hospital or other medical
facility.
Article 3. Conditions for Placement
(a) No sending agency shall send, bring, or cause to be sent or
brought into any other party state any child for placement in foster
care or as a preliminary to a possible adoption unless the sending
agency shall comply with each and every requirement set forth in this
article and with the applicable laws of the receiving state
v.8/12/2015
v.8/12/2015
governing the placement of children therein.
(b) Before sending, bringing, or causing any child to be sent or
brought into a receiving state for placement in foster care or as a
preliminary to a possible adoption, the sending agency shall furnish
the appropriate public authorities in the receiving state written
notice of the intention to send, bring, or place the child in the
receiving state. The notice shall contain:
(1) The name, date, and place of birth of the child.
(2) The identity and address or addresses of the parents or legal
guardian.
(3) The name and address of the person, agency, or institution to
or with which the sending agency proposes to send, bring, or place
the child.
(4) A full statement of the reasons for the proposed action and
evidence of the authority pursuant to which the placement is proposed
to be made.
(c) Any public officer or agency in a receiving state which is in
receipt of a notice pursuant to paragraph (b) of this article may
request of the sending agency, or any other appropriate officer or
agency of or in the sending agency's state, and shall be entitled to
receive therefrom, supporting or additional information as it may
deem necessary under the circumstances to carry out the purpose and
policy of this compact.
(d) The child shall not be sent, brought, or caused to be sent or
brought into the receiving state until the appropriate public
authorities in the receiving state shall notify the sending agency,
in writing, to the effect that the proposed placement does not appear
to be contrary to the interests of the child.
Article 4. Penalty for Illegal Placement
The sending, bringing, or causing to be sent or brought into any
receiving state of a child in violation of the terms of this compact
shall constitute a violation of the laws respecting the placement of
children of both the state in which the sending agency is located or
from which it sends or brings the child and of the receiving state. A
violation may be punished or subjected to penalty in either
jurisdiction in accordance with its laws. In addition to liability
for any punishment or penalty, any violation shall constitute full
and sufficient grounds for the suspension or revocation of any
license, permit, or other legal authorization held by the sending
agency which empowers or allows it to place, or care for children.
v.8/12/2015
v.8/12/2015
Article 5. Continuing Jurisdiction
(a) The sending agency shall retain jurisdiction over the child
sufficient to determine all matters in relation to the custody,
supervision, care, treatment, and disposition of the child which it
would have had if the child had remained in the sending agency's
state, until the child is adopted, reaches majority, becomes
self-supporting, or is discharged with the concurrence of the
appropriate authority in the receiving state. That jurisdiction shall
also include the power to effect or cause the return of the child or
its transfer to another location and custody pursuant to law. The
sending agency shall continue to have financial responsibility for
support and maintenance of the child during the period of the
placement. Nothing contained herein shall defeat a claim of
jurisdiction by a receiving state sufficient to deal with an act of
delinquency or crime committed therein.
(b) When the sending agency is a public agency, it may enter into
an agreement with an authorized public or private agency in the
receiving state providing for the performance of one or more services
in respect of that case by the latter as agent for the sending
agency.
(c) Nothing in this compact shall be construed to prevent a
private charitable agency authorized to place children in the
receiving state from performing services or acting as agent in that
state for a private charitable agency of the sending state; nor to
prevent the agency in the receiving state from discharging financial
responsibility for the support and maintenance of a child who has
been placed on behalf of the sending agency without relieving the
responsibility set forth in paragraph (a) of this article.
Article 6. Institutional Care of Delinquent Children
A child adjudicated delinquent may be placed in an institution in
another party jurisdiction pursuant to this compact but no such
placement shall be made unless the child is given a court hearing on
notice to the parent or guardian with opportunity to be heard, before
being sent to the other party jurisdiction for institutional care
and the court finds that both of the following exist:
(a) Equivalent facilities for the child are not available in the
sending agency's jurisdiction.
(b) Institutional care in the other jurisdiction is in the best
interest of the child and will not produce undue hardship.
Article 7. Compact Administrator
v.8/12/2015
v.8/12/2015
The executive head of each jurisdiction party to this compact
shall designate an officer who shall be general coordinator of
activities under this compact in his or her jurisdiction and who,
acting jointly with like officers of other party jurisdictions, shall
have power to promulgate rules and regulations to carry out more
effectively the terms and provisions of this compact.
Article 8. Limitations
This compact shall not apply to:
(a) The sending or bringing of a child into a receiving state by
his or her parent, stepparent, grandparent, adult brother or sister,
adult uncle or aunt, or his or her guardian and leaving the child
with any such relative or nonagency guardian in the receiving state.
(b) Any placement, sending or bringing of a child into a receiving
state pursuant to any other interstate compact to which both the
state from which the child is sent or brought and the receiving state
are party, or to any other agreement between said states which has
the force of law.
Article 9. Enactment and Withdrawal
This compact shall be open to joinder by any state, territory, or
possession of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, and, with the consent of Congress, the
government of Canada or any province thereof. It shall become
effective with respect to any of these jurisdictions when that
jurisdiction has enacted the same into law. Withdrawal from this
compact shall be by the enactment of a statute repealing the same,
but shall not take effect until two years after the effective date of
the statute and until written notice of the withdrawal has been
given by the withdrawing state to the Governor of each other party
jurisdiction. Withdrawal of a party state shall not affect the
rights, duties, and obligations under this compact of any sending
agency therein with respect to a placement made before the effective
date of withdrawal.
Article 10. Construction and Severability
The provisions of this compact shall be liberally construed to
effectuate the purposes thereof. The provisions of this compact shall
be severable and if any phrase, clause, sentence, or provision of
this compact is declared to be contrary to the constitution of any
party state or of the United States or the applicability thereof to
any government, agency, person, or circumstance is held invalid, the
validity of the remainder of this compact and the applicability
v.8/12/2015
v.8/12/2015
thereof to any government, agency, person, or circumstance shall not
be affected thereby. If this compact shall be held contrary to the
constitution of any state party thereto, the compact shall remain in
full force and effect as to the remaining states and in full force
and effect as to the state affected as to all severable matters.
7901.1. (a) Within 60 days of receipt of a request from another
state to conduct a study of a home environment for purposes of
assessing the safety and suitability of placing a child in the home,
a county child welfare agency shall, directly or by contract, do both
of the following:
(1) Conduct and complete the study.
(2) Return a report to the requesting state on the results of the
study. The report shall address the extent to which placement in the
home would meet the needs of the child.
(b) Except as provided in subdivision (c), in the case of a home
study commenced on or before September 30, 2008, if the agency fails
to comply with subdivision (a) within the 60-day period as a result
of circumstances beyond the control of the agency, the agency shall
have 75 days to comply with subdivision (a). The agency shall
document the circumstances involved and certify that completing the
home study is in the best interests of the child. For purposes of
this subdivision, "circumstances beyond the control of the agency"
include, but are not limited to, the failure of a federal agency to
provide the results of a background check or the failure of any
entity to provide completed medical forms, if the background check or
records were requested by the agency at least 45 days before the end
of the 60-day period.
(c) Subdivision (b) shall not be construed to require the agency
to have completed, within the applicable period, the parts of the
home study involving the education and training of the prospective
foster or adoptive parents.
(d) The agency shall treat any report described in subdivision (a)
that is received from another state, an Indian tribe, or a private
agency under contract with another state, as meeting any requirements
imposed by the state for the completion of a home study before
placing a child in the home, unless, within 14 days after receipt of
the report, the agency determines, based on grounds that are specific
to the content of the report, that making a decision in reliance on
the report would be contrary to the welfare of the child.
(e) A county is not restricted from contracting with a private
v.8/12/2015
v.8/12/2015
agency for the conduct of a home study described in subdivision (a).
(f) The department shall work with counties to identify barriers
to meeting the timeframes specified in this section and to develop
recommendations to reduce or eliminate those barriers.
7902. Financial responsibility for a child placed pursuant to the
Interstate Compact on the Placement of Children shall be determined
in accordance with Article 5 of the compact in the first instance.
However, in the event of partial or complete default of performance
thereunder, the provisions of other state laws also may be invoked.
7903. The phrase "appropriate public authorities" as used in
Article 3 of the Interstate Compact on the Placement of Children
means, with reference to this state, the State Department of Social
Services, and that department shall receive and act with reference to
notices required by Article 3 of the compact.
7904. The phrase "appropriate authority in receiving state" as used
in paragraph (a) of Article 5 of the Interstate Compact on the
Placement of Children, with reference to this state, means the State
Department of Social Services.
905. The officers and agencies of this state and its subdivisions
having authority to place children are hereby empowered to enter into
agreements with appropriate officers or agencies of or in other
party states pursuant to paragraph (b) of Article 5 of the Interstate
Compact on the Placement of Children. Any such agreement which
contains a financial commitment or imposes a financial obligation on
this state or subdivision or agency thereof is not binding unless it
has the approval in writing of the Controller in the case of the
state and of the chief local fiscal officer in the case of a
subdivision of the state.
7906. Any requirements for visitation, inspection, or supervision
of children, homes, institutions, or other agencies in another party
state which may apply under the law of this state shall be deemed to
be met if performed pursuant to an agreement entered into by
appropriate officers or agencies of this state or a subdivision
thereof as contemplated by paragraph (b) of Article 5 of the
Interstate Compact on the Placement of Children.
7906.5. (a) Within 60 days after an officer or agency of this
state, or its political subdivision, receives a request from another
state to conduct a study of a home environment for purposes of
assessing the safety and suitability of placing a child, who is in
the custody of the requesting state, in the home, the county child
v.8/12/2015
v.8/12/2015
welfare agency shall, directly or indirectly, do both of the
following:
(1) Conduct and complete the home study.
(2) Return to the requesting state a report on the results of the
home study, which shall address the extent to which placement in the
home would meet the needs of the child.
(b) A licensed private adoption agency may agree to provide the
services listed in subdivision (a), and upon that agreement, shall
comply with the requirements of paragraphs (1) and (2) of subdivision
(a).
(c) Notwithstanding subdivision (a), in the case of a home study
commenced on or before September 30, 2008, if the county fails to
comply with subdivision (a) within the 60-day period as a result of
circumstances beyond the control of the state, including, but not
limited to, failure by a federal agency to provide the results of a
background check or failure of any entity to provide completed
medical forms requested by the state at least 45 days before the end
of the 60-day period, the county shall have 75 days to comply with
subdivision (a) if the county documents the circumstances involved
and certifies that completing the home study is in the best interest
of the child.
(d) Nothing in this section shall be construed to require the
county to have completed, within the applicable period, those
portions of the home study concerning the education and training of
the prospective foster parent or adoptive parent.
(e) The county shall treat any report described in subdivision (a)
that is received from another state, an Indian tribe, or a private
agency under contract with another state, as meeting any requirements
imposed by the state for the completion of a home study before
placing a child in the home, unless, within 14 days after receipt of
the report, the county determines, based on grounds that are specific
to the content of the report, that making a decision in reliance on
the report would be contrary to the welfare of the child.
(f) A county is not restricted from contracting with a private
agency for the conduct of a home study described in subdivision (a).
7907. No provision of law restricting out-of-state placement of
children for adoption shall apply to placements made pursuant to the
Interstate Compact on the Placement of Children.
v.8/12/2015
v.8/12/2015
7907.3. The Interstate Compact on the Placement of Children shall
not apply to any placement, sending, or bringing of an Indian child
into another state pursuant to a transfer of jurisdiction to a tribal
court under Section 1911 of the Indian Child Welfare Act (25 U.S.C.
Sec. 1901 et seq.).
7907.5. (a) A child who is born in this state and placed for
adoption in this state with a resident of this state is not subject
to the provisions of the Interstate Compact on the Placement of
Children.
(b) A child who is born in this state and placed for adoption with
a person who is not a resident of this state is subject to the
provisions of the Interstate Compact on the Placement of Children,
regardless of whether the adoption petition is filed in this state.
In interstate placements, this state shall be deemed the sending
state for any child born in the state.
7908. A court having jurisdiction to place delinquent children may

place a delinquent child in an institution in another state pursuant
to Article 6 of the Interstate Compact on the Placement of Children
and shall retain jurisdiction as provided in Article 5 of the
compact.
7908.5. For the purposes of an interstate adoption placement, the

term "jurisdiction" as used in Article 5 of the Interstate Compact on
the Placement of Children means "jurisdiction over or legal
responsibility for the child." It is the intent of the Legislature
that this section make a technical clarification to the Interstate
Compact on the Placement of Children and not a substantive change.
7909. "Executive head" as used in Article 7 of the Interstate

Compact on the Placement of Children means the Governor. The Governor
shall appoint a compact administrator in accordance with the terms
of Article 7 of the compact.
7910. Approval of an interstate placement of a child for adoption

shall not be granted by the compact administrator if the placement is
v.8/12/2015
v.8/12/2015
in violation of either Section 8801 of this code or Section 273 of
the Penal Code.
7911. The Legislature finds and declares all of the following:

(a) The health and safety of California children placed by a
county social services agency or probation department out of state
pursuant to the provisions of the Interstate Compact on the Placement
of Children are a matter of statewide concern.
(b) The Legislature therefore affirms its intention that the State
Department of Social Services has full authority to require an
assessment and placement recommendation by a county multidisciplinary
team prior to placement of a child in an out-of-state group home, to
investigate allegations of child abuse or neglect of minors so
placed, and to ensure that out-of-state group homes, accepting
California children, meet all California group home licensing
standards.
(c) This section is declaratory of existing law with respect to
the Governor's designation of the State Department of Social Services
to act as the compact administrator and of that department to act as
the single state agency charged with supervision of public social
services under Section 10600 of the Welfare and Institutions Code.
7911.1. (a) Notwithstanding any other provision of law, the State

Department of Social Services or its designee shall investigate any
threat to the health and safety of children placed by a California
county social services agency or probation department in an
out-of-state group home pursuant to the provisions of the Interstate
Compact on the Placement of Children. This authority shall include
the authority to interview children or staff in private or review
their file at the out-of-state facility or wherever the child or
files may be at the time of the investigation. Notwithstanding any
other provisions of law, the State Department of Social Services or
its designee shall require certified out-of-state group homes to
comply with the reporting requirements applicable to group homes
licensed in California pursuant to Title 22 of the California Code of
Regulations for each child in care regardless of whether he or she
is a California placement, by submitting a copy of the required
reports to the Compact Administrator within regulatory timeframes.
The Compact Administrator within one business day of receiving a
v.8/12/2015
v.8/12/2015
serious events report shall verbally notify the appropriate placement
agencies and within five working days of receiving a written report
from the out-of-state group home, forward a copy of the written
report to the appropriate placement agencies.
(b) Any contract, memorandum of understanding, or agreement
entered into pursuant to paragraph (b) of Article 5 of the Interstate
Compact on the Placement of Children regarding the placement of a
child out of state by a California county social services agency or
probation department shall include the language set forth in
subdivision (a).
(c) The State Department of Social Services or its designee shall
perform initial and continuing inspection of out-of-state group homes
in order to either certify that the out-of-state group home meets
all licensure standards required of group homes operated in
California or that the department has granted a waiver to a specific
licensing standard upon a finding that there exists no adverse impact
to health and safety. Any failure by an out-of-state group home
facility to make children or staff available as required by
subdivision (a) for a private interview or make files available for
review shall be grounds to deny or discontinue the certification. The
State Department of Social Services shall grant or deny an initial
certification or a waiver under this subdivision to an out-of-state
group home facility that has more than six California children placed
by a county social services agency or probation department by August
19, 1999. The department shall grant or deny an initial
certification or a waiver under this subdivision to an out-of-state
group home facility that has six or fewer California children placed
by a county social services agency or probation department by
February 19, 2000. Certifications made pursuant to this subdivision
shall be reviewed annually.
(d) Within six months of the effective date of this section, a
county shall be required to obtain an assessment and placement
recommendation by a county multidisciplinary team for each child in
an out-of-state group home facility. On or after March 1, 1999, a
county shall be required to obtain an assessment and placement
recommendation by a county multidisciplinary team prior to placement
of a child in an out-of-state group home facility.
(e) Any failure by an out-of-state group home to obtain or
maintain its certification as required by subdivision (c) shall
preclude the use of any public funds, whether county, state, or
v.8/12/2015
v.8/12/2015
federal, in the payment for the placement of any child in that
out-of-state group home, pursuant to the Interstate Compact on the
Placement of Children.
(f) (1) A multidisciplinary team shall consist of participating
members from county social services, county mental health, county Formatted: Font: (Default) Times New Roman, Font color:
probation, county superintendents of schools, and other members as Red
determined by the county.
(2) Participants shall have knowledge or experience in the Red
prevention, identification, and treatment of child abuse and neglect
cases, and shall be qualified to recommend a broad range of services Formatted: Font: (Default) Times New Roman, Font color:
Red
related to child abuse or neglect.
(g) (1) The department may deny, suspend, or discontinue the Formatted: Font: (Default) Times New Roman, Font color:
certification of the out-of-state group home if the department makes Red
a finding that the group home is not operating in compliance with the Formatted: Font: (Default) Times New Roman, Font color:
requirements of subdivision (c). Red
(2) Any judicial proceeding to contest the department's Formatted: Font: (Default) Times New Roman, Font color:
determination as to the status of the out-of-state group home Red
certificate shall be held in California pursuant to Section 1085 of Formatted: Font: (Default) Times New Roman, Font color:
the Code of Civil Procedure. Red
(h) This section shall not impact placements made pursuant to
Chapter 26.5 (commencing with Section 7570) of Division 7 of Title 1 Red
of the Government Code relating to seriously emotionally disturbed
children.
Red
(i) Only an out-of-state group home authorized by the Compact
Administrator to receive state funds for the placement by a county Formatted: Font: (Default) Times New Roman, Font color:
Red
social services agency or probation department of any child in that
out-of-state group home from the effective date of this section shall Formatted: Font: (Default) Times New Roman, Font color:
be eligible for public funds pending the department's certification Red
under this section. Formatted: Font: (Default) Times New Roman, Font color:
Red
Red
tpr The Order Terminating Jurisdiction After conclusion of the testimony, the juvenile court issued its findings. The court first concluded that the Agency established by Formatted: Font: (Default) Times New Roman, Font color:
a preponderance of the evidence that return of A.J. to Jamie at that time would create a substantial As to risk of detriment to A.J.'s safety, protection and emotional well- Red
being. the disposition, the court ordered A.J. to be placed with Joshua in Hawaii, and The court found termination of that it was in her best interests to do so. The court Formatted: Font: (Default) Times New Roman, Font color:
jurisdiction appropriate because there was “not a protective issue.” explained: “I can't find by clear and convincing evidence that closing the case today would be likely to Red
recreate the conditions that led to the Court assuming jurisdiction in the first place, and that there is a need for family maintenance services.” More specifically, the court
remarked that Joshua “came across as solid and credible, as conscientious, earnest, and as remorseful” for not being involved The court found that he had Red
already been very proactive with A.J. earlier. with A.J. since he learned of the dependency, and is committed to fulfilling her The court observed that A.J. has shown
greatly improved behavior since needs. That said, the court acknowledged that A.J. needed Joshua came into her life. structure and continuing services, and that the Formatted: Font: (Default) Times New Roman, Font color:
Red
v.8/12/2015
v.8/12/2015
transition period was critical. Accordingly, instead of terminating jurisdiction immediately, the juvenile court set an additional hearing several weeks into the future to Formatted ...
ensure that everything was in place for A.J.'s move to Hawaii, and to allow the parties to work out custody orders.6 In connection with the planned hearing, the Agency Formatted: Font: (Default) Times New Roman, Font color:
filed two addendum The first stated that after visiting with her San Diego family reports. members, A.J. moved to Hawaii on August 12, 2012, was enrolled in Red
therapy and A.J.'s therapist had spoken with Joshua and his wife had already begun school. In the second report, the to explain in more detail her therapeutic needs.
Formatted ...
Agency stated it had contacted A.J.'s teacher in Hawaii, and that A.J.'s new The therapist had spoken with her San Diego therapist about A.J.'s needs. Agency also
reported that A.J. had been adjusting well since moving to Hawaii. A.J. stated that she was “very happy” and feels “safe” and “loved” there, and was able to speak with
Jamie whenever she wanted. At the continued hearing held on September 20, 2012, the juvenile court first found that Joshua is A.J.'s presumed father pursuant to Family
Code section The court then adopted the proposed custody orders with 7611, subdivision (d). Those orders provided that the parents would share some small
modifications. joint legal custody of A.J., and that physical custody would be divided 90 Finally, the court percent/10 percent between Joshua and Jamie respectively.
confirmed its decision to terminate jurisdiction, again stating, “I don't think there's a protective issue at this point.”
Supporting doucmentation: Formatted: Font: (Default) Times New Roman, Font color:
Supporting legal autority, case precedent, unpub California 4/1 opinions Red
The DISCUSSIONThe Juvenile Court Properly Exercised Its Discretion in Terminating The Juvenile's Court's Analysis Followed Proper Legal Standards Formatted: Font: (Default) Times New Roman, Font color:
JurisdictionA. and Its Findings Are Supported by Substantial Evidence Jamie's principal contention on appeal is that the juvenile court erred in terminating Red
jurisdiction without making a specific determination, under section 361.2, that continued supervision was unnecessary in this case—a determination Jamie insists Formatted ...
the trial court could not have made under the facts of this case. We conclude the juvenile court evaluated the Agency's We disagree. recommendation to
terminate jurisdiction under the legal standard applicable at the time, and its finding that no protective issue exists that would warrant retaining jurisdiction is
supported by substantial evidence.7 ction 361.2, the statute Jamie argues controls here, provides as follows:When a court orders removal of a child pursuant to Formatted ...
Section 361, the “(a) court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions
arose that brought the child within the provisions of Section 300, who desires to assume If that parent requests custody, the court shall place custody of the child.
the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the
child. [¶] (b) If the court places the child with that parent it may do any of the following: [¶] (1) Order that the parent become legal and physical The court may
also provide reasonable visitation by custodian of the child. The court shall then terminate its jurisdiction over the noncustodial parent. [¶] (2) Order that the
parent assume custody subject to the the child․ [¶] (3) Order that the parent assume jurisdiction of the juvenile court․ 361.2, subds.(a) custody subject to the
supervision of the juvenile court.” (§ & (b)(1)-(3).) Joshua certainly qualified as a noncustodial, nonoffending parent, and the Despite court found that placement
with him would be DISCUSSIONThe Juvenile Court Properly Exercised Its Discretion in Terminating The Juvenile's Court's Analysis Followed Proper Legal
Standards JurisdictionA. and Its Findings Are Supported by Substantial Evidence Jamie's principal contention on appeal is that the juvenile court erred in
terminating jurisdiction without making a specific determination, under section 361.2, that continued supervision was unnecessary in this case—a determination
Jamie insists the trial court could not have made under the facts of this case. We conclude the juvenile court evaluated the Agency's We disagree.
recommendation to terminate jurisdiction under the legal standard applicable at the time, and its finding that no protective issue exists that would warrant
retaining jurisdiction is supported by substantial evidence.7 ction 361.2, the statute Jamie argues controls here, provides as follows:When a court orders removal of a Formatted ...
child pursuant to Section 361, the “(a) court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the
events or conditions arose that brought the child within the provisions of Section 300, who desires to assume If that parent requests custody, the court shall place
custody of the child. the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or
emotional well-being of the child. [¶] (b) If the court places the child with that parent it may do any of the following: [¶] (1) Order that the parent become legal
and physical The court may also provide reasonable visitation by custodian of the child. The court shall then terminate its jurisdiction over the noncustodial
parent. [¶] (2) Order that the parent assume custody subject to the the child․ [¶] (3) Order that the parent assume jurisdiction of the juvenile court․ 361.2,
subds.(a) custody subject to the supervision of the juvenile court.” (§ & (b)(1)-(3).) Joshua certainly qualified as a noncustodial, nonoffending parent, and the
Despite court found that placement with him would be
The Cynthia A. Bashant prior particiaption in the case in which she particpated in the fraud-on-the-court Protective Order s
Red
v.8/12/2015
v.8/12/2015
Antislapp estoppel relianc
Slapps
Initial ustody deter or mod ch cus visita or cust, not adoption, pkra, forum shopping, cej, initial cus determina, adoption action, a-01268-xx
Jv517192
IN RE: MAYANNI J.R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Defs, v. JESSE H.,
Defendant and Appellant.
Sdsco
www.sdsheriff.net Formatted ...
www.wahtisfraudonthecourt.com Formatted ...
www.backtothewellkpodvArmstrong.com
www.swrFraudtamperingwithOfficialRecordb4COA Formatted ...
www.dominantjurisdiction.com Formatted ...
www.estoppelprieliance.com Formatted ...
affidiaveit@mob.pdf
www.170.1-179.5.com Formatted ...
timelyfiledExtraOrderPetRevew onaug82009 Formatted ...
www.slawhouse.com Formatted ...
www.san-diego-adi.com
Formatted ...
www.sdlg.com
www.sandiego.ca.gov Formatted ...
www.sandiego.county.ca.gov Formatted ...
rosemarybenson43@gmail.com
Formatted ...
www.nunn orozco Urias v. Harris Farms, deemed, 3 options, timely w
www.victoim void of fact restsraining order Formatted ...
chron@stickynotesonphone Formatted ...
notes@phone(s)1
Formatted ...
notes@phonePantexch
notes@ Formatted ...
photos
(CT:. visitation logs 192-200
([CT: 171 Cirriculum Vitae Matt rogers
[CT: [Exh. "..."] my irs 2002 70K
Inrefogarty
inreShawnMcMillanccase
inreSwartworth blishter@pdf Formatted ...
www.dov
Formatted: Font: Times New Roman, Font color: Red
Restraining order abuse is the act of requesting an unmerited restraining order against anVerbatim Formatted ...
DallaUse my locationAuto-detected Formatted: Font color: Red
Formatted ...
v.8/12/2015
v.8/12/2015
Enter locatio Set
o Red
About 5,360,000 results (0.64 seconds)
Showing results for protective order abuse Formatted: Font: (Default) Times New Roman, Font color:
Red
Search instead for protectiveorderabuse.com
However, Restraining orders can also include orders prohibiting contact with your children. Therefore, if child custody and Red
visitation are affected by the restraining orders, YOU MUST RESPOND IMMEDIATELY! If you do not the court will make Formatted: Font: (Default) Times New Roman, Font color:
broad-based restraining orders that are difficult to modify later on. Furthermore, restraining orders are often sought by women Red
who are either contemplating a divorce or child custody battle or have already filed for divorce and want an advantage in court Formatted: Font: (Default) Times New Roman, Font color:
when it comes to determining issues of child custody and visitation. Red
If you have been recently served with temporary restraining orders or a notice of hearing requesting such orders, stay away Formatted: Font: (Default) Times New Roman, Font color:
from the requesting party until you go to court, no matter how ridiculous the allegations. Get a friend, family member or Red
attorney to handle all correspondence regarding all issues until the time of the hearing. Formatted: Font color: Red
There are two ways to get the answers and help you need:
First, I have written a book called the Fathers Rights Survival Guide. This simple, easy to understand guide contains a Formatted: Font color: Red
section on Restraining Orders and Domestic Violence issues. This section will answer all of the questions you may have about Formatted: Font color: Red
how to respond to false allegations and other steps you can take to help your case. Therefore, before you spend a dime on an Formatted: Font color: Red
attorney or other legal services learn how the system works. Learn how the domestic violence system works. You can be sure
your Ex has! The information is good in all 50 States. Formatted: Font color: Red
To learn more about the Fathers Rights Survival Guide and how you can obtain a copy now simply click here. Formatted ...
Second, I am very excited about a new way to help my clients. It's called The Advocate Plan. This plan is a "one on one" Formatted ...
relationship with me. I become your personal advocate. When you get court papers, a letter from the ex's attorney, have
Formatted ...
questions and/or concerns I will be there to provide answers and tell you exactly what must be done. Whatever the issue you
will always have someone to contact for specific answers and guidance. This plan includes the Fathers Rights Survival Guide. Formatted ...
This is the best Fathers Rights legal help any man can get! Formatted ...
To learn more about The Advocate Plans just click here!
Formatted ...
- See more at: http://www.fathersrightsinc.com/restrain.htm#sthash.vIIsmHO5.dpuf
Scholarly articles for protective order abuse Formatted: Font color: Red
Protective orders and domestic violence: Risk factors … - Carlson - Cited by 162 Formatted ...
… abusers for compliance with a protective order - Carroll - Cited by 255 Formatted ...
… of politeness in protective order interviews with Latina … - Trinch - Cited by 27
Formatted ...
Search Results Formatted ...
1. Restraining Order Abuse and Vexatious Litigation, part one Formatted ...
breakingtheglasses.blogspot.com/.../restraining-order-abuse-and-vexatio...
Formatted ...
o Cached
o Similar Formatted ...
What is Restraining Order Abuse? The type of restraining order referred to here is the civil protection order used in cases Formatted ...
where domestic abuse has been ... Formatted ...
v.8/12/2015
v.8/12/2015
2. Abuse Of Protection Orders by Charles E. Corry, Ph.D. Formatted ...
www.dvmen.org/dv-16.htm
o Cached Formatted ...
It is undetermined what percentage of protection orders in domestic violence and abuse cases are based on false claims.
Estimates range from a low of 5% (by ...
3. TALKING BACK to restraining orders | THEY'RE NOT JUST ... Formatted ...
 restrainingorderabuse.com/About This Blog Formatted ...
 What Is Restraining Order Abuse? Formatted ...
 Index of Posts Formatted ...
 Restraining Order Q & A Formatted ...
 Glossary of Legal Terms Formatted ...
 Restraining Orders: An R.S.V.P. to Abusers Formatted ...
 What Is a Narcissist? Formatted ...
 What Is a Sociopath (or Psychopath)? Formatted ...
 What Is Perjury? Formatted ...
 Names for Restraining Orders and What They Mean Formatted ...
RSS Subscribe: RSS feed Formatted ...
TALKING BACK to restraining orders Formatted ...
THEY’RE NOT JUST ABUSED; THEY’RE ALSO ABUSIVE
Formatted ...
Courtroom Fraud and Smear Campaigns: The Full Machiavelli
Posted on June 11, 2015
2 Formatted ...
v.8/12/2015
v.8/12/2015
Formatted: Font color: Red
“False Accusations, Distortion Campaigns, and Smear Campaigns can all be used with or without a grain of truth, and
have the potential to cause enormous emotional hurt to the victim or even impact [his or her] professional or personal
reputation and character.”
—“False Accusations and Distortion Campaigns” Formatted: Font color: Red
There are several fine explications on the Internet about the smear campaigns of false accusers. Some sketch method and Formatted: Font color: Red
v.8/12/2015
v.8/12/2015
motive generally; some catalog specific damages that ensue when lies are fed to the police and courts.
This survey of “adverse impacts” is credited to lies told by people with borderline personality disorder. Conducting “distortion
campaigns” isn’t exclusive to BPDs, however, and the “adverse impacts” are the same, irrespective of campaigners’ particular
cognitive kinks.
The valuable role of the police and courts in the prosecution of campaigns to slander, libel, and otherwise bully and defame Formatted: Font color: Red
can’t be overstated. They’re instrumental to a well-orchestrated character assassination.
Lies can be told to anyone, of course, and lies told to anyone can have toxic effects. The right lie told in a workplace, for
example, can cost someone a job and impair or imperil a career.
Lies told to police and judges—especially judges—they’re the real wrecking balls, though. False allegations of threat or abuse
are handily put over in restraining order or domestic violence procedures, and they endure indefinitely (and embolden accusers Formatted: Font color: Red
to tell further lies, which are that much more persuasive). Formatted: Font color: Red
Among the motives of false accusation are blame-shifting (cover-up), attention, profit, and revenge (all corroborated by the Formatted: Font color: Red
FBI). Lying, however, may become its own motive, particularly when the target of lies resists. The appetite for malice, once Formatted: Font color: Red
rewarded, may persist long after an initial (possibly impulsive) goal is realized. Smear campaigns that employ legal abuse may
go on for years, or indefinitely (usually depending on the stamina of the falsely accused to fight back).
v.8/12/2015
v.8/12/2015
Legitimation of lies by the court both encourages lying and reinforces lies told to others. Consider the implications of this
pronouncement: “I had to take out a restraining order on her.” Who’s going to question whether the grounds were real or the
testimony was true? Moreover, who’s going to question anything said about the accused once that claim has been made? It’s
open season.
In the accuser’s circle, at least—which may be broad and influential—no one may even entertain a doubt, and the falsely Formatted: Font color: Red
accused can’t know who’s been told what and often can’t safely inquire. Formatted: Font color: Red
Judgments enable smear and distortion campaigners to slander, libel, and otherwise bully with impunity, because their targets
have been discredited and left defenseless (judges may even punish them for lawfully exercising their First Amendment rights
and effectively gag them). The courts, besides, may rule that specific lies are “true,”
thereby making the slanders and libels impervious to legal relief.

Statements that are “true” aren’t defamatory. The man or woman, for instance, who’s wrongly found guilty of domestic Formatted: Font color: Red
violence (and entered into a police database) may be called a domestic abuser completely on the up and up (to friends, family, Formatted: Font color: Red
or neighbors, for example, or to staff at a child’s school).
Lies become facts that may be shared with anybody and publicly (court rulings are public records). Smear campaigners don’t Formatted: Font color: Red
limit themselves to court-validated lies, either, but it seldom comes back to bite them once a solid foundation has been laid. Formatted: Font color: Red
Some so-called high-conflict people, the sorts described in the epigraph, conduct their smear or distortion campaigns brazenly Formatted: Font color: Red
and confrontationally. Some poison insidiously, spreading rumors behind closed doors, in conversation and private
correspondence. As Dr. Tara Palmatier has remarked, social media also present them with attractive and potent platforms (and
many defss to this blog report being tarred on Facebook or even mobbed, i.e., bullied by multiple parties, including strangers). Formatted: Font color: Red
v.8/12/2015
v.8/12/2015
Even when false accusers’ claims are outlandish and over the top, like these posted on Facebook by North Carolinian Marty
Tackitt-Grist, they’re rarely viewed with suspicion—and almost never if a court ruling (or rulings) in the accusers’ favor can be
asserted. The man accused in this comment to ABC’s 20/20 is a retiree with three toy poodles and a passion for aviation who
couldn’t “hack” firewood without pain, because his spine is deformed. He is a retired lawyer, but he wasn’t “disbarred” and
hasn’t “embezzled” (or, for that matter, “mooned” anyone). He has, however, been jailed consequent to insistent and serial
falsehoods from his patently disturbed neighbor…who’s a schoolteacher.
For Crazy, social media websites are an endless source of attention, self-promotion, self-aggrandizement, and a sophisticated
weapon. Many narcissists, histrionics, borderlines, and other self-obsessed, abusive personality types use Facebook, Twitter,
and the like to run smear campaigns, to make false allegations, to perpetrate parental alienation, and to stalk and harass their
targets while simultaneously portraying themselves as the much maligned victim, superwoman, and/or mother of the year.
(A defs to this blog who’s been relentlessly harried by lies for two years, who’s consequently homeless and penniless, and
who’s taken flight to another state, recently reported that a woman who’d offered her aid suddenly and inexplicably defriended
her on Facebook and shut her out without a word. Her “friend” had evidently been gotten to.)
(An advocate for legal reform who was falsely accused in court last year by her husband and succeeded in having the Formatted: Font color: Red
allegations against her dismissed reports that he afterwards circulated it around town that she tried to kill him.) Formatted: Font color: Red
v.8/12/2015
v.8/12/2015
I was falsely accused in 2006 by a woman who had nightly hung around outside of my house for a season. She was married and
concealed the fact. Then she lied to conceal the concealment and the behavior that motivated the concealment. She has
sustained her fictions (and honed them) for nearly 10 years: “The Evolution of a Lie: How Covering Up an Impulsive Formatted: Font color: Red
Deception Can Turn into a Decade of Legal Abuse.” People like this build tissues of lies, aptly and commonly called webs. Formatted: Font color: Red
Their infrastructures are visible, but many strands may not be…and the spinners never stop spinning.
The personality types associated with chronic lying are often represented as serpentine, arachnoid, or vampiric. This ironically
feeds into some false accusers’ delusions of potency. Instead of shaming them, it turns them on.
I was last in court with my accuser in 2013. I have an exhibit entered into evidence by her attorney that’s over 200 pages long,
and it contains correspondence of mine to many parties over a seven-year period that aimed to counteract my accuser’s fictions.
I wrote to all and sundry…and to no avail. Over nine years of my life have been burned up for absolutely nothing, a freak Formatted: Font color: Red
collision with a screwball and her friends (whom my family and I had only ever treated kindly, tolerantly, and trustingly). Formatted: Font color: Red
My last courtroom experience, however, yielded an unanticipated reward: the opportunity to see behind the scenes. My
accuser’s exhibits included private correspondences to her from others, others I had tried to communicate the truth to. (These
correspondences are now public records).
Here’s a sample:
While I don’t have the benefit of knowing what the writer of this 2008 email was told by my accuser, I can draw a pretty clear
impression, as I’m sure you can.
That writer, “Cheryl,” is Dr. Cheryl Lyn Walker, the director of a reputed research facility, and her name is followed by this Formatted: Font color: Red
series of letters: Ph.D., A.T.S., F. A. A. A. S. I don’t know what two-thirds of those abbreviations stand for, but I feel Formatted: Font color: Red
comfortable assuming they indicate Cheryl is an intelligent and accomplished scientist.
(My false accuser, who was Cheryl’s protégée in 2008, is also a scientist.)
Now appreciate that there was nothing in whatever I told Cheryl that inspired the email of hers above that would have been any
less lucid than anything I’ve written here. I know myself, and I know t’s were crossed and i’s were dotted, that the grammar
was sound, that the tone was civil, that the diction showed education, and that I must have labored over the message for hours.
There were no bloody fingerprints, no mentions of demonic voices, and no expressed interest in knowing anything about my
accuser (some woman I found standing outside of my house one day and knew for all of three months).
v.8/12/2015
v.8/12/2015
Cheryl, who reports that she has enjoyed the company and companionship of several Nobel Laureates, would seem to have
been a discerning audience.
That whatever I said evidently struck her as “bizarre” shows that it wouldn’t have mattered what I said or how I said it. The
conviction was that I was a violent stalker, and that conviction had been cemented…by lies. (If I’m remembering, the word
stalker was actually used in another piece of correspondence in my accuser’s exhibit to the court, possibly written by the same
woman.)
Had I known for a certainty, or had I been informed by Cheryl or another of her sisterhood, that I was being represented as a
stalker (years after I had last had any communication with my accuser), I might have had grounds for a civil action. This
exemplifies how falsely obtained court rulings provide smear campaigners with a shield from behind which to conduct
skulduggery.
v.8/12/2015
v.8/12/2015
(In my 2013 trial, the most recent of several, a research scientist with
credentials very similar to Cheryl’s—he is also a professional scientist, a departmental director, and a professor at Texas
A&M—testified for my accuser. Like Cheryl, this man, Michael, was someone I’d never met, yet he also expressed grave
concerns for my accuser’s safety, apparently based on what she’d told him. Michael described special security measures that
his agency had taken to protect her safety…in another state, from which he testified by phone. Even people who may consider
themselves “scrupulous investigators,” like Cheryl and Mike, yield to social conditioning; they see what they expect to or are
expected to see. In cases, they volunteer to be the tools of fraudsters, who characteristically have commanding personalities.)
I know from corresponding with many others who’ve endured the same traumas I have that they’ve been induced to do the
same thing I did: write to others to defend the truth and hope to gain an advocate to help them unsnarl a skein of falsehoods that
propelled them face-first into a slough of despond. (Why people write, if clarification is needed, is because there is no other
way to articulate what are often layered and “bizarre” frauds.)
I know with heart-wrenching certainty, also, that these others’ honest and plaintive missives have probably been received with
exactly the same suspicion, contempt, and apprehension that mine were. It’s a hideous irony that attempts to dispel false
accusations are typically perceived as confirmations of them, including by the court. To complain of being called a stalker, for
example, is interpreted as an act of stalking. There’s a kind of awful beauty to the synergy of procedural abuse and lies. (Judges
v.8/12/2015
v.8/12/2015
Formatted ...
Formatted ...
Formatted ...
pat bullies on the head and send them home with smiles on their faces.)
Formatted ...
Smear campaigns wrap up false accusations authorized by the court with a ribbon and a bow.
Formatted ...
Copyright © 2015 RestrainingOrderAbuse.com
Formatted ...
*The name Machiavelli, referenced in the title of this post, is associated with the use of any means necessary to obtain political
Formatted ...
dominion (i.e., power and control). Psychologists have adapted the name to characterize one aspect of a syzygy of
virulent character traits called “The Dark Triad.” Formatted ...
About these ads Formatted ...

<a Formatted ...
href="//adserver.adtechus.com/adlink/3.0/9534.1/3219698/0/170/ADTECH;loc=300;key=key1+key2+key3+key4;grp=[group]" Formatted ...
target="_blank"><img
Formatted ...
src="//adserver.adtechus.com/adserv/3.0/9534.1/3219698/0/170/ADTECH;loc=300;key=key1+key2+key3+key4;grp=[group]"
border="0" width="300" height="250"></a> Formatted ...
Share this: Formatted ...
Formatted ...
 Twitter3
Formatted ...
 Facebook7
Formatted ...
Like this:
Formatted ...
Related
Formatted ...
Shifting Blame: DARVO, Personality Disorders, and Restraining Order AbuseIn "Restraining order abuse" Formatted ...
Restraining Orders Based on Fraud Falsely Imprison Defendants Whether They’re Incarcerated or NotIn "Restraining order Formatted ...
abuse"
Formatted ...
“perjury and sociopaths”: On the Challenges of Contesting Restraining Orders Sought by the Mentally Aberrant, Deranged, or Formatted ...
IllIn "Restraining order abuse"
Formatted ...
Tagged: blame-shifting, bullying, character assassination, chronic lying, control, cover-up, Dark Triad, DARVO, defamation,
Formatted ...
distortion, distortion campaigns, false accusations, fraud, high-conflict people, libel, Machiavellianism, malice, perjury,
personality disorders, profit, restraining order fraud, revenge, science, scientific sisterhood, serial fraud, slander, smear Formatted ...
campaigns, social media, whisper campaigns Formatted ...
Posted in: Restraining order abuse
Formatted ...
← Low and Outside: An Umpire’s Story of Restraining Order Abuse (by an Underhand Screwball)
There Are No “Sides” to a Story That’s BS: How Restraining Order Policy Turns Lies into Realities → Formatted ...
2 Responses “Courtroom Fraud and Smear Campaigns: The Full Machiavelli” → Formatted ...
Formatted ...
Formatted ...
1. Formatted ...
Pdf gdrive:myfinal merg NORemoval usdcrt y memorandu cases citas chron exh reference ct rt x3po mo swr canereports tele Formatted ...
v.8/12/2015 Formatted ...
Formatted ...
Formatted ...
v.8/12/2015 Formatted ...
Formatted ...
Formatted ...
Formatted ...
Formatted ...
Formatted ...
Formatted ...
Formatted ...
Formatted ...
Moderator Formatted: Font color: Red
June 12, 2015 Formatted: Font color: Red
This kind of thing is among the reasons I’ve never trusted the ethical faculties of biologists:
For years, NYBC used these chimpanzees in medical research, infecting many of them with hepatitis viruses.
After decades of confinement, these chimpanzees do not have the skills to survive in the wild. They are
completely reliant on humans for survival, but despite previously committing to the lifetime care of these
chimpanzees, NYBC recently withdrew all funding for the care of the chimpanzees in March. Effectively
they have left these poor chimpanzees to suffer from dehydration and starvation.
v.8/12/2015
v.8/12/2015
Reply Formatted ...
o
Moderator Formatted ...
June 12, 2015 Formatted ...
One of my accuser’s scientist friends, who joked about animal experimentation in my home, told me that Formatted ...
people in her field experimented on chimps…no problem. When it came time to kill them, though, they got
squeamish. There are apparently specialist “primate killers” who take care of these uncomfortable
experimental conclusions.
Reply Formatted ...
Leave a Reply Formatted ...
9ec2e64df6 /2015/06/11/cour guest Formatted ...
Enter your comment here... Enter your comment here... Formatted: Font color: Red
Formatted ...
Formatted ...
Formatted ...
Formatted ...
1434729272
Formatted ...
1434729272998
Formatted ...
DISCLAIMER Formatted ...
The information and opinions contained in this blog are for general guidance on matters of interest only and are provided with Formatted ...
the understanding that its author and contributors are not engaged in rendering legal or other professional advice. Information Formatted ...
herein is provided “as is” and is neither represented nor intended as a substitute for an attorney’s services.
Formatted ...
Search
Search for: Formatted: Font color: Red
FEATURED POSTS Formatted ...

Formatted ...
Panties, Perfidy, and Pubescent Ph.D.’s: Some Reflections on Science, “Stalking,” and the Motives for Legal Abuse
Formatted ...
Guest Post by Melissa Harvey, Founder of the Kayden Jayce Foundation, Which Seeks Community Aid to Support Formatted ...
Disadvantaged Parents and Children in Family Crises Formatted: Font color: Red
v.8/12/2015
v.8/12/2015
“perjury and sociopaths”: On the Challenges of Contesting Restraining Orders Sought by the Mentally Aberrant, Formatted: Font color: Red
Deranged, or Ill Formatted: Font color: Red
PERJURY: BS-ing the Court, the Frequency of False Allegations, and the Fraudulent Abuse of the Civil Restraining Formatted: Font color: Red
Order Formatted: Font color: Red
A Victory for Free Speech: Matthew Chan Prevails in His First Amendment Appeal of a Lifetime Restraining Order Formatted: Font color: Red
SUPPORT THIS BLOG Formatted: Font color: Red

TELL YOUR STORY Formatted: Font color: Red
This blog was viewed 212,007 times in 2014. Comments by visitors, in contrast, were fewer than 500. Formatted: Font color: Red
For the public to be aware of procedural abuses, it has to hear about them. (The blog author’s own story is here, a budding Formatted: Font color: Red
novelist’s is here, a former businesswoman and part-time superhero’s is here, and a former lawyer’s is here.)
Call yourself whatever you want (or nothing at all). Email addresses are strictly confidential, and providing one is optional (but
will allow you to be notified of others’ responses and to dialogue immediately if you wish). Formatted: Font color: Red
The Communications Decency Act exempts this blog’s author from any liability for what you say. Use of an accuser’s name Formatted: Font color: Red
or likeness is advised against, however, for your own protection. Otherwise, civility is the only constraint upon your speech. Formatted: Font color: Red
v.8/12/2015
v.8/12/2015
Grant Dossetto, who was denied the dream job he’d toiled in college to realize by a malicious restraining order, has Formatted: Font color: Red
turned his talents to creative writing. The Hopping Bird (which has been praised in Kirkus Reviews) is his first novel.
SIGN A PETITION TO END RESTRAINING ORDER ABUSES Formatted: Font color: Red
OR START ONE OF YOUR OWN LIKE MS. BETTY KRACHEY OF KODAK, TN
v.8/12/2015
v.8/12/2015
AUTHOR’S NOTE
Click on the title of the blog (“Talking back...”) or here to browse all posts. Or see the Index for titles and brief summaries. Formatted: Font color: Red
See this post, especially, which summarizes much of what these topical editorials concern and may be of value to anyone Formatted: Font color: Red
desperate to explain to a family member, friend, significant other, teacher, spiritual adviser, counselor, employer, attorney, or
journalist how s/he’s been wrongly represented and injured. Few people who haven't been abused by them know restraining
orders are abused; fewer still how they’re abused or why. Formatted: Font color: Red
Those with restraining order cases pending are prompted to consult the blog’s Q & A page. Corrections to its author’s Formatted: Font color: Red
interpretations and grudging knowledge, incidentally, are always welcomed. Formatted: Font color: Red
Since laws concerning restraining orders, their implementation and customs, and different means to combat them can vary from
state to state, visitors are also urged to investigate and familiarize themselves with the rules that obtain in their home
jurisdictions.
They’re further urged to secure the counsel of a qualified, reliable, and ethical attorney if at all within their means (some do
exist).
The restraining order racket is a rigged game that tends to reward inveterate liars and their invertebrate minions.
The truth won’t set you free.
v.8/12/2015
v.8/12/2015
STOP FALSE ALLEGATIONS OF DOMESTIC VIOLENCE
RELATED READING
 ! Please report broken links HERE Formatted ...
 "1 in 5: Debating the Most Controversial Sexual Assault Statistic" (Tessa Berenson, Time Magazine, 2014) Formatted ...
 "12 Things to Know If You’re Falsely Accused" (Michelle Gesse, Shave Magazine) Formatted ...
 "13 Signs Your Wife or Girlfriend Is a Borderline or a Narcissist" (Dr. Tara Palmatier, 2009) Formatted ...
 "209A Restraining Orders Defense" (Massachusetts) Formatted ...
 "5 Differences between a True Victim & False Victim of Narcissistic Abuse" Formatted ...
 "5 Feminist Myths That Will Not Die" (Dr. Christina Hoff Sommers, Time Magazine, 2014) Formatted ...
 "5 Legal Rights Women Have That Men Don’t" (Janet Bloomfield, ThoughtCatalog.com, 2014) Formatted ...
 "8 Tips for Dealing with a Narcissist in Family Court" (Tina Swithin, Huffington Post, 2013) Formatted ...
 "85 Secrets Fathers Need to Know to Survive the Corrupt Divorce Courts and Save Their Children" (PDF) Formatted ...
 "A Better Feminism for 2015" (Cathy Young, Time Magazine, 2014) Formatted ...
 "A Closer Look at Men Who Sustain Intimate Terrorism by Women" (Denise Hines and Emily Douglas, National Formatted: Font color: Red
Institutes of Health) Formatted: Font color: Red
 "A Degraded Justice: Instruments of Perjury in the Family Court" (Louise Malenfant; Submission to the Standing Formatted: Font color: Red
Committee on Justice and Social Policy Reviewing Bill 117, The Domestic Violence Protection Act; 2000) (PDF)
 "A letter to…the girl who accused me of rape when I was 15" (The Guardian, 2014) Formatted ...
 "A Nightmare of False Accusation That Could Happen to You" (Law Professor Emeritus Alan Dershowitz, The Wall Formatted: Font color: Red
Street Journal, 2015) Formatted: Font color: Red
 "A note on restraining orders" (Attorney and Connecticut state representative Jonathan Cesolini, Norwich Bulletin, Formatted: Font color: Red
2014)
 "A Review of Research on Women’s Use of Violence with Male Intimate Partners" (Suzanne Swan et al., Violence Formatted: Font color: Red
and Victims, 2008) (PDF)
 "A Short History of Child Protection in America" (John Myers, Family Law Quarterly, 2008) (PDF)
Formatted ...
 "A Sign of Hope for the Falsely Accused" (Barbara Kay, National Post, 2013) Formatted ...
v.8/12/2015
v.8/12/2015
 "A story of domestic violence unlike any you’ve ever heard" (Assistant DAs Anna Lee Mcnelis and Brandon Formatted: Font color: Red
Grunewald, The Prosecutor, 2013) Formatted: Font color: Red
 "A teacher’s battle to restore shattered reputation: B.C. case offers a window into the handling of teacher misconduct Formatted: Font color: Red
allegations" (Douglas Quan, Edmonton Journal, 2014)
 "A Temporary Restraining Order Has Been Filed Against Me – What Should I Do?" Formatted ...
 "Abuse of process: False or misleading evidence about family violence" (Australian Law Reform Commission) Formatted ...
 "Abuse of Protection Orders" Formatted ...
 "Abuse of Temporary Restraining Orders Endangers Real Victims" (Wendy McElroy, The Independent Institute, Formatted: Font color: Red
2005) Formatted: Font color: Red
 "Abusegate: mother of all scandals?" (Carey Roberts, 2010) Formatted ...
 "Abusegate: teaching women to falsely accuse" (Carey Roberts, 2010) Formatted ...
 "Accountability and Oversight of Federally-Funded Domestic Violence Programs: An Analysis" (SAVE, 2010) (PDF) Formatted ...
 "Accused facing false allegations of rape must be protected: Delhi court" (Firstpost New Delhi, 2013) Formatted ...
 "Advice: Defending yourself against lies in a restraining order" Formatted ...
 "AG to court: Exonerate falsely accused Hampton man" (Associated Press, 2013) Formatted ...
 "Aggressive police questioning may boost false accusations, study finds" (Wendy Gillis, The Toronto Star, 2015) Formatted ...
 "Amicus brief in Chan v. Ellis, where a judge ordered a Web site operator to remove all posts about a particular Formatted: Font color: Red
person" (Law Professor Eugene Volokh, The Washington Post, 2014) (On restraining orders and the First
Amendment) Formatted: Font color: Red
 "An Assault Upon Our Civil Rights" (SAVE, 2013) (PDF) Formatted ...
 "An Epidemic of Prosecutor Misconduct" (Center for Prosecutor Integrity, 2013) (PDF) Formatted ...
 "An Immodest Proposal: Domestic Violence Groups Claim the Use of Logic by Men is Abuse" (Dr. Tara Palmatier, Formatted: Font color: Red
Shrink4Men.com, 2011) Formatted: Font color: Red
 "An Introduction to Class Action Procedure in the United States" (Law Professor Janet Alexander) (PDF) Formatted ...
 "Are Abuse Shelters Helping the True Victims of Domestic Violence?" (SAVE, 2010) (PDF) Formatted ...
 "Are Domestic Violence Statistics Bogus?" (Wendy McElroy, Reason.com, 2014) Formatted ...
 "Are Fathers’ Rights a Factor in Male Suicide?" (Wendy McElroy, FoxNews.com, 2002) Formatted ...
 "Are Men Society’s Scapegoats?" (Vicki Larson, Huffington Post, 2011) Formatted ...
 "Are Men’s Issues Just Myths?" (Canadian Association for Equality) Formatted ...
v.8/12/2015
v.8/12/2015
 "Are Women Who Make False Allegations of Abuse Against Their Husbands More Likely to Murder Their Formatted: Font color: Red
Children?" (Dr. Tara Palmatier, Shrink4Men.com, 2011) Formatted: Font color: Red
 "Are You A Good Liar? Gullible?: Deception and Communication Competence" Formatted ...
 "Arrest Policies for Domestic Violence" (SAVE, 2010) (PDF) Formatted ...
 "Arrested Federal Judge Keeps Getting $200K Salary" (Jay Reeves, Associated Press, 2014) Formatted ...
 "As Falsely Accused Man Sits in Jail, A Woman’s Rape Accusations Fall Apart on Damning Video" (Kara Pendleton, Formatted: Font color: Red
IJReview, 2015) Formatted: Font color: Red
 "Australia: How false allegations are treated in the Family Law Act" (Manisharaj Kaur Pannu, Mondaq.com, 2014) Formatted ...
 "‘Absurd’ Letterman Restraining Order Tossed" (People Magazine, 2005) Formatted ...
 "‘Any liar can get an order by merely asserting fear’: Why Chapter 209A Must Be Revamped to Protect Against the Formatted: Font color: Red
Issuance of Unnecessary Abuse Prevention Orders" (Brittany Pierce, New England Law Review, 2012) Formatted: Font color: Red
 "‘Did Your Father Touch You?’" (New York Magazine, 2014) Formatted ...
 "‘Hands off’: Sex, Feminism, Affirmative Consent, and the Law of Foreplay" (Dan Subotnik, Review of Law and Formatted: Font color: Red
Social Justice, 2007) (PDF) Formatted: Font color: Red
 "‘High Conflict People’ Drive Disputes at Home, School, Work: Some high conflict people have borderline or Formatted: Font color: Red
narcissistic personality disorder" (Randi Kreger and attorney Bill Eddy, Psychology Today, 2012)
 "‘Woman scorned’ is jailed for false testimony about Lower Merion cop" (MainLineMediaNews.com, 2013) Formatted ...
 "“Georgia Supreme Court Rules That Internet Posts about Someone Don’t Constitute ‘Stalking’" (Attorney Oscar Formatted: Font color: Red
Michelen, CourtroomStrategy.com, 2015) Formatted: Font color: Red
 "Backlash: Women Bullying Women at Work" (Mickie Meece, The New York Times, 2009) Formatted ...
 "Bad Research Leads to Bad Law" (Wendy McElroy, LewRockwell.com, 2005) Formatted ...
 "Biting the D.V. Bullet: Are Domestic-Restraining Orders Trampling on Second Amendment Rights?" (Seton Hall Formatted: Font color: Red
Law Review, 2011) (PDF) Formatted: Font color: Red
 "Boys’ campus trap: The danger of false accusations" (Karol Markowicz, New York Post, 2015) Formatted ...
 "BPD Distortion Campaigns" (On false allegations by those with borderline or narcissistic personality disorder) Formatted ...
 "Brief of Amici Curiae of the Electronic Frontier Foundation and Professor Aaron H. Caplan in Support of Appellant" Formatted: Font color: Red
(Chan v. Ellis, 2014) Formatted: Font color: Red
 "Brown University Student Speaks Out on What It’s Like to Be Accused of Rape" (Cathy Young, The Daily Beast, Formatted: Font color: Red
2014)
 "California Coalition Files Motion to Enjoin All California Domestic Violence Restraining Orders as First Formatted: Font color: Red
v.8/12/2015
v.8/12/2015
Amendment Violation and Tool of Racketeering" Formatted: Font color: Red
 "California Parents File Federal Racketeering Lawsuit against Family Court Judges; Charge Criminal Extortion, Formatted: Font color: Red
Bribery, Abuse of Office" (National Coalition for Men, 2013) Formatted: Font color: Red
 "Can a domestic violence restraining order be vacated or dismissed? You bet it can!" (New Jersey attorney Bruce Formatted: Font color: Red
Matez)
 "Can Male Victims of Domestic Violence Get the Help They Need?" (Denise Hines, 2009) (PDF) Formatted ...
 "Celebrity Cook Tells of Nightmare over False Sex Claims by the Man She Fired" (Robert Mendick, The Telegraph, Formatted: Font color: Red
2014) Formatted: Font color: Red
 "Characteristics of False Stalking Reports" (L. P. Sheridan and E. Blaauw, Criminal Justice and Behavior, 2004) Formatted: Font color: Red
(PDF)
 "Civil Protection Order: How Is This Piece of Paper Going To Protect Me?" (Dolores Baker, Criminal Justice Formatted: Font color: Red
Institute, 2002) (PDF)
 "Coaching, Truth Induction, and Young Maltreated Children’s False Allegations and False Denials" (Thomas Lyon et
al., National Institutes of Health, 2008)
 "Colleges become the victims of progressivism" (George Will, The Washington Post, 2014)
Formatted ...
 "Columbia Student: I Didn’t Rape Her" (Cathy Young, The Daily Beast, 2015)
Formatted ...
 "Commentary: Getting at the Truth about Pathological Lying" (Don Grubin, Journal of the American Academy of Formatted: Font color: Red
Psychiatry and the Law, 2005) (PDF)
 "Complicated Allegations" (Gary Chandler, Letter to the editor, The New Yorker, 2012) Formatted ...
 "Compulsive liar who cried rape 11 times is jailed: Her last victim was an innocent man who she simply Formatted ...
THEY'RE NOT JUST ABUSED; THEY'RE ALSO ABUSIVE (by Moderator) Formatted: Font: (Default) Times New Roman, Font color:
4. In His Own Words: Restraining Order Abuse - A Voice for Men Red
www.avoiceformen.com/.../in-his-own-words-restraining-order-abuse/ Formatted ...
o Cached
Formatted ...
o Similar
Oct 22, 2013 - Today's In His Own Words shines a spotlight on what has become a national disgrace — restraining order Formatted ...
abuse by women, lawyers, the courts ...
5. The Worst Thing A Woman Can Do In Divorce Proceedings ... Formatted ...
www.huffingtonpost.com/.../the-worst-thing-a-wom...
The Huffington Post
Apr 13, 2011 - Orders of Protection are critical to the safety of many. ... horrible stories where people are abused or
murdered despite having an order in place.
v.8/12/2015
v.8/12/2015
6. [PDF]The Use and Abuse of Restraining Orders - SAVE: Stop ... Formatted ...
www.saveservices.org/downloads/VAWA-Restraining-Orders
judges seldom require proof of abuse, and statutes invoke a “preponderance of evidence” standard. In California, for example,
a restraining order appears to be ...
7. Domestic Violence Restraining Orders Formatted ...
fvlc.org/.../restraining-orders/domestic-viole...
Family Violence Law Center
In order to qualify for a domestic violence restraining order you must have one ... a restraining order without “reasonable
proof” that abuse has been committed.
8. What if the abuser files a protective order or criminal case ... Formatted ...
www.masslegalhelp.org/what-if-the-abuser-files-a-protect...
MassLegalHelp
But sometimes abusive people are able to get protective orders against their victims. If you try to get a protective order and
the person who abused you also asks ...
9. Epidemic of Restraining / Protection Order Abuse by women ... Formatted ...
▶ 3:56 Formatted ...
www.youtube.com/watch?v=Rrbjp7fGoiQ
Jul 31, 2013 - Uploaded by FatherlessAmerica
This is truly an epidemic problem which is completely unconstitutional and which without any evidence or even ...
10. Restraining order - Wikipedia, the free encyclopedia Formatted ...
https://en.wikipedia.org/wiki/Restraining_order
A restraining order is a protection order used by a court to protect a person or entity, ... the abuser to not hurt or threaten Formatted: Font: (Default) Times New Roman, Font color:
someone ("cease abuse" provisions). Red
Formatted ...
Searches related to protective order abuse
abuse of restraining order Formatted ...
restraining order abuse 101 Formatted ...
divorce and restraining orders Formatted ...
orders of protection and divorce
restraining order during divorce Formatted ...
file restraining order before divorce Formatted ...
restraining order with children Formatted ...
a restraining order is an official accusation, made against the subject, of malicious action or intent. It is the legal statement that
Formatted ...
v.8/12/2015
v.8/12/2015
the court recognizes the subject as a damaging harassing nuisance, or physical threat to the holder of the order due to evidence
that the subject either has previously exhibited this behavior toward the holder, or has been conclusively shown to have intent
do so in the future. If there is not such a confirmed threat, there is nothing to prevent, and no point in obtaining or granting a
restraining order. A restraining order is not merited when the individual named is not a threat to the person filing the request.
While eventually the truth may come out, the falsely accused husband or wife will spend weeks defending himself or herself Formatted: Font: Times New Roman, Font color: Red
against the false allegations, not only in criminal court (where most restraining orders are issued), but also in the family and
probate court where the divorce and child custody proceedings are handled. In the end, it may be months before the falsely
accused parent is permitted to see or have contact with his or her children! At that point, there is no telling what type of damage
may have been done to the parent/child relationship. Thus, the restraining order is often times used as a legal tactic to gain an
advantage in child custody proceedings. It is a page out of the dirty lawyer’s handbook.
What can be done about this abuse of the system? Plainly and simply, there needs to be law in Massachusetts that makes it a
crime to fabricate allegations of abuse. There are other states that are considering this very proposal. At the time of the writing
of this article, the only remedy that the falsely accused person has in Massachusetts is to commence a civil action for slander,
libel and/or defamation of character against the person making the false allegations. In the majority of cases, this remedy is
completely ineffective, as a civil lawsuit would take many years, cost thousands of dollars in attorneys’ fees and, in the end,
most likely won’t be collectible, as most accusers do not have sufficient assets to cover a civil judgment. Opponents of this
position argue that it will deter real victims of domestic violence from obtaining restraining orders for fear that they themselves
could face criminal prosecution. This argument falls flat, however, as actual victims of abuse will have sufficient evidence to
support their claims. In addition, it should be noted that the time spent on fabricated allegations of abuse actually deludes the
effectiveness of restraining orders for the actual victims of abuse.
One last note-I know what you are thinking ladies; her story is so stereotypical…the husband is the one who is making the
money, and it is the wife who is falsely accusing the husband. Well, in reality, in most cases it is the wife who makes the
complaint of abuse; however, in the actual case that I handled (on which this article is based), the roles were reversed-it was the
wife who worked full-time and it was the husband who fabricated allegations of abuse by the wife against the children, thereby
depriving the children of their mother for several weeks. Thus, no matter what your role is in a relationship and regardless of
what type of relationship you may be in (whether it be a heterosexual or same-sex relationship), you may become the victim of
the abuse of restraining orders unless and until the law is changed.
Ch
Restraining order abuse is the act of requesting an unmerited restraining order against an individual, and/or the misuse of that Formatted: Font: Times New Roman, Font color: Red
order for any sort harassment, malicious mischief against the subject, or personal gain for the holder, rather than its intended
purpose of protection. For a more complete description and discussion on the topic of restraining orders, check out Talking Formatted: Font: Times New Roman, Font color: Red
back to restraining orders. Formatted: Font: Times New Roman, Font color: Red
An individual awarded a restraining order in an alleged domestic abuse case has significant capacity to abuse the state's Formatted: Font: Times New Roman, Font color: Red
protection. The holder can manipulate circumstances, fudge facts, and even outright lie to achieve the arrest of the subject. Any
time the holder of the order alleges to law enforcement that the subject has violated any of the conditions of the order
(including fleeting proximity at the maximum allowed distance) the police are required to arrest the subject for the alleged
violation regardless of existence, level, or lack of evidence offered by the involved parties.
v.8/12/2015
v.8/12/2015
How Are Restraining Orders Abused by Women in Domestic Conflicts?
Abuse of the restraining order may take one or more of few different paths.
Just in Case
Obtaining an unmerited restraining order is easy for a woman. At this time, the system is designed to favor the decision to err
on the side of the female, on the basis that it is better to hand out multiple unmerited temporary restraining orders and let the
courts sort them out than to risk leaving one woman unprotected from her abuser. When break-ups are less than amicable,
women are often encouraged by friends and family to file, "just in case," under the assumption that all men are potential
domestic abusers. Failure of a man to comply with all of his ex's wishes during a break-up is interpreted by her feminist friends
and family as an indication that he is abusing, or intends to abuse her. Communicating or demonstrating the expectation that
the estranged couple will view each other as a fellow human beings with equal rights and equal responsibilities and treat each
other with any level of fairness and consideration will be viewed as failure to comply.
Upon ending a relationship, the restraining order abuser will be encouraged to file a request for a restraining order against her
ex. When she does this, an "emergency" temporary restraining order will be put into place pending the hearing to determine the
validity of the request. The holder does not have to offer any credible evidence at this time. All she has to do is state reasons
why she feels harassed or threatened, the veracity and/or validity of which will rarely be questioned. She may do this on her
own, but in many instances this is done with the assistance of a domestic violence advocate.
Having an advocate is an advantage, as it lends credibility to the request regardless of any other evidence. Even claims that
would have been questioned in the absence of an advocate will be accepted if an advocate is present. The clerk of courts will
assume that the woman is an abuse victim, because she is making use of abuse victim's services.
Once the temporary order has been granted, the status of the subject in the eyes of the legal system and the view of law
enforcement is changed from "some guy we never heard of" to "perpetrator." He is guilty of abuse until such time as his name
is completely cleared, and even then if he is accused again, this incident will still be seen as evidence of a pattern of behavior.
False Allegations
Once a restraining order is in place, the holder can have the subject arrested at any time, regardless of evidence, by calling law
enforcement and alleging any type of contact. The holder does not have to provide any evidence of the subject's guilt. In some
jurisdictions, it does not even matter if the subject can prove his innocence. Due to the legal environment created by the activity
of women-centered domestic abuse shelters and feminist organizations, the initial outcome of this type of complaint is largely
predetermined.
The actions of law enforcement with respect to alleged domestic violence are dictated not by an officer's assessment of the
situation, but by federal, state, and local law, and precinct policy. They often have little leeway, if any, to make a judgement
call as to whether the complaint is genuine or false. Police in some areas must even arrest an accused violator when there is
physical, demonstrative proof that the alleged victim's account is impossible, such as an irrefutable alibi involving great
distance, or a physical condition that precludes the occurrence of the alleged activity. The holder of a restraining order can
v.8/12/2015
v.8/12/2015
make an transparently false allegation, and the subject will still be arrested.
Methods of handling domestic complaints vary. Some districts follow full arrest procedures, with rights read and lawyers
called, whenever there is a complaint. Others state that they are only "taking the accused in for questioning." This allows
officers who have been led to suspect domestic abuse to hold the accused for several hours without an attorney, try to get a
confession through intimidation, and fail to read him his rights. Regardless, officers will take to accused in to be "processed."
He can look forward to being at the police station for several hours, and may only be released after posting bail, even if he was
not arrested, and even if he can conclusively prove his innocence during questioning.
House of Cards
The order holder will now use the false allegation as evidence in the hearing to determine the validity of the restraining order.
The allegation of violation will be presented as proved by virtue of its own existence; because she said he did it, he's guilty.
The logic presented for using that allegation as evidence in favor of the need for a restraining order will be that the holder's
claim that subject has all ready violated the order, "proves" the necessity of having it. Even when the accuser has no evidence
at all to back up her allegations, if the accused is unable to irrefutably prove his innocence of either the allegations on which
the order is based, or the allegation of having violated it, a judge will deem the order valid.
Later, when the allegation of violation is tried, the holder will use the judgement in favor of granting the restraining order as
evidence that the accused has a malicious or violent pattern of behavior, which will be offered in support of her claim that the
order was violated. She will play damsel in distress for the court, with requests made for concessions limiting the defense's
ability to counter her arguments, all due to her alleged fear of the accused. The accused will be presumed guilty until proven
innocent. In the absence of evidence outside the allegations, the hearing will result in a conviction. A concrete, irrefutable alibi
or other indisputable proof that the violation did not happen is necessary to assure that the hearing will not result in a wrongful
conviction.
"Mantrapment"
An abuser not satisfied with, or afraid to be caught making, an unsupported false allegation, will attempt to manufacture
evidence to support her claim. This may be done in one of three basic ways.
 The Accidental Terrorist Formatted: Font: Times New Roman, Font color: Red
This is when the holder of a restraining order stretches interpretation of its stipulations to include her right to never experience
even chance, fleeting, or peripheral contact with the subject, and files a violation complaint over circumstances which were not
a result of actions taken by the subject, or neglect on his part. Examples would be her experience of spotting him in a public
place where he is not legally barred from going, of being in the presence of someone who has him on speaker phone, her
awareness of calls made to the subject's phone by their children from her home, or her exposure to material from his
conversations with a third party online due to the design and function of a site they are both using, such as social sites and
message boards.
The way restraining orders are intended to work, if the subject finds himself unpredictably and unintentionally present in the
same public or common area as the holder, he must leave immediately. The intent of the order is not to require the subject to
become able to predict and avoid the holder's every move, but to require him to refrain from seeking and initiating contact. In
v.8/12/2015
v.8/12/2015
most states, by immediately leaving the area upon learning of the holder's presence, the subject is in technical compliance with
the order.
However, due to the legal and social environment created by domestic abuse prevention advocates and feminists, if a violation
complaint is filed, law enforcement will make an arrest, not an interpretation or assessment. Worse, in some states, even
unpredictable, accidental and unavoidable contact can be ruled by a judge to be a violation. The subject of a restraining order
can be convicted of violating it even if he did not actively contact the holder.
The accidental terrorist method can be a sign of either intentional restraining order abuse, peripheral restraining order abuse
(influenced by others with an agenda or bias), or simple, basic paranoia on the part of the holder. To the subject, it does not
matter which is the case. The result is the same, penalizing him for the crime of continuing to exist after the termination of a
relationship with a woman.
 The Trapdoor Spider Formatted: Font: Times New Roman, Font color: Red
The holder of a restraining order can falsely create a condition of violation by placing herself within the subject's known or
mandated travel pattern (locations like his workplace, where he goes to school, or near a facility he has been required by the
court to visit) so that the subject will be unwittingly tricked into an approach she can document. Just as a trapdoor spider hides
until its prey is nearby and then pounces, the holder can await the unwitting approach of the order's subject and then spring her
trap by documenting his proximity and having him arrested for being there, even though he did not actively seek her out. A set-
up violation like that can take place even in the subject's previously existing regular pattern of movement, even with proof that
the holder of the order had no reason to be there and the subject had no reason to expect her... even with evidence that she went
out of her way to initiate contact. Again, in some states, even if the location is a place where the subject is required to be and
the holder is not, it's still considered a violation.
 Trapper, the Unfriendly Ghost Formatted: Font: Times New Roman, Font color: Red
In some areas, the holder of a restraining order can control the subject's freedom of movement, or even get him arrested, by
approaching him. By initiating proximity herself, she can force him out of an open area on the basis that his remaining there
would constitute a violation. She can also or trap him in an enclosed space on the basis that going past her in order to get out
would be a violation. In some states, even contact known to be initiated by the holder instead of the subject is considered a
violation of the order by the subject. In those areas, the holder can blatantly and openly approach the subject, then have him
arrested for violating the proximity terms of the order.
Who's Stalking Now Formatted: Font: Times New Roman, Font color: Red
Along the lines of Mantrapment, this method of abuse involves an individual intent on using a restraining order to control the
subject. An abuser with a restraining order can, in some communities, so severely restrict the subject's ability to go move
outside of his own residence that he is left with little or no freedom. All she has to do is frequent locations that are part of his
regular routine.
By establishing a repeated, frequent, but unpredictable presence at a location, the holder of a restraining order effectively turns
the place into a "no-go zone" for the subject, because he knows that at any time, without warning, she might be there. If she
sees him there, she can have him arrested and prosecuted for violating the order. By doing this with multiple locations, a
v.8/12/2015
v.8/12/2015
controlling restraining order abuser can effectively consign the subject to anything from having to use complicated,
inconvenient travel routes in order to go about his daily life (travel to and from work, obtain basic necessities like groceries and
toiletries, do his banking, and pay his bills, seek medical care) to effective house arrest.
This is a greater possibility in smaller communities where there may very few each of any given type of business the subject
may want or need to patronize, or organizations whose meetings he may want to attend. It can also be an increased likelihood if
the subject has limited or no transportation, and is therefore restricted to travel within walking distance from his home, or in a
predetermined pattern (like a bus route.) However, even when he does have access to a greater number and variety of locations,
a highly motivated or vindictive Unfriendly Ghost can, by keeping track of the subject's movements and choosing to frequent
his regular haunts, create a situation wherein it is not legally safe for him to leave his home.
Vexatious Litigation
A restraining order abuser who is a vexatious litigant will use an influx of multiple false allegations and other legal maneuvers Formatted: Font: Times New Roman, Font color: Red
to harass her ex, and to manipulate the family court system to her advantage. Formatted: Font: Times New Roman, Font color: Red
The method is simple, easy to use, and extremely hard to defend against.
It begins right after obtaining the temporary restraining order. Once the order has been granted, the holder will wait until she
knows the subject has been served, and then file a false or contrived complaint of an alleged violation. The false complaint can
be anything from simple, benign contact such as a phone call or violating the edge of the prohibited distance limit, to a claims
of rape or other form of assault. The contrived complaint can range from falling into the Mantrapment categories to Unfriendly
Ghost behavior wherein the complaint filed is about contact which resulted from a direct, deliberate approach or other blatant
stalking behavior on the part of the restraining order holder rather than anything the subject did.
Once there is an allegation of violation, the vexatious litigant will begin filing motions, starting with a motion to delay the
hearing to determine the validity of the restraining order.
This is because if the restraining order request is struck down, any violation charges not involving physical assault will be
dropped. However, if the alleged violation goes to trial first and a conviction is won, even if the restraining order request is
later struck down, the conviction will stick.
In the case of allegations of assault, the vexatious litigant will, as described under the House of Cards heading, want to use her
initial request for the restraining order and the court's choice to grant the temporary order as "evidence" of the accused's alleged
violent nature. Yes, she's basically saying "See, because I said I'm scared of him, that proves he hit me!" Yes, many courts will
buy that because of the convoluted way it's presented, and because of the legal and political environment created by feminist
groups, in which the woman must always be unconditionally believed if the listener does not want to be accused of blaming the
victim. Then, as further described, the vexatious litigant will use the conviction to justify having the restraining order when the
hearing for that comes up.
If the first attempt at this fails, the unmerited restraining order/false allegation one-two punch may be repeated by a vexatious
litigant several times, until either an order from the court stops her, or she succeeds in jailing her victim. Each time the accused
is able to defeat false allegations in court, the vexatious litigant will come back with more. Each time she files new allegations,
v.8/12/2015
v.8/12/2015
the vexatious litigant will cite previous allegations as evidence that the accused has exhibited an alleged pattern of behavior,
the impression of which is supposed to bias the court in favor of a guilty verdict this time. Yes, that means she will be arguing
"Your honor, the proof that I'm telling the truth this time is that I've made lots of false allegations like this before." Yes, judges
do fall for that. This is the method of choice for domestic abuse advocate organizations to win convictions for their clients
when there is no other basis for allegations of abuse. They simply inundate the court with a stream of repeated allegations until
they reach a point where the accused is convicted simply on the basis that an individual accused that many times must have
done something.
During this process, the vexatious litigant will violate laws with impunity, and she will will not limit her legal harassment to
false allegations. In addition to filing false police reports, she will perjure herself and may suborn perjury from her witnesses.
She will stalk her victim online and in person, seeking information that she can use to make her false allegations appear
credible. She will slander her victim verbally and in many cases online. She will file frivolous civil suits gainst her victim for
damages related to her allegations of abuse, including those cases which have all ready ended in acquittal. This will force the
victim to defend himself all over again, as the "not guilty" verdict will not be considered sufficient to prove that he didn't
commit the alleged abuse for which she is suing him.
She will file motions to control everything her victim might do, from putting a hold on his finances to legally restraining him
from moving or selling his possessions, even if she was never married to him, and in some areas, even if she has never
cohabitated with him. She may demand information that does not exist, such as records or documentation she claims to have
seen of incidents that never happened or circumstances that don't exist.
An example would be a request for nonexistent photographs or video of an alleged incident, which cannot be produced because
the incident did not occur and therefore could not have been photographed or videotaped. Another example would be demands
for drug-rehab or mental health treatment records from a victim who has never had drug rehab or mental health treatment.
The demand serves the purpose of simultaneously creating the false impression that the victim is being uncooperative with the
court, and that he has a shady history (previous incidents, drug use or mental illness). After such demands have been made, no
amount of denial on the victim's part is sufficient to erase the impression that he is either a habitual offender, an addict, or
mentally unstable.
Following those demands, the vexatious litigant may try to use the victim's inability to produce the non-existent information as
a basis upon which to file a complaint against him for obstruction of justice, or to persuade a judge to find him in contempt of
court on the basis that the inaction is a refusal to comply, rather than evidence that the information demanded does not exist.
In the course of attempting to have her victim jailed, the vexatious litigant will expand her harassing behavior well beyond her
victim. She will attempt to intimidate and harass his witnesses and anyone else she perceives as supporting him. She will
demand information to which she has no legal right, sometimes including information which is legally protected in order to
prevent witness intimidation, such as witnesses' addresses and other personal information. She may file frivolous legal
complaints or civil suit against his witnesses. She may publicly slander and harass his witnesses. She may physically assault his
witnesses. She may attack his lawyer's standing by filing false complaints with the Bar association.
v.8/12/2015
v.8/12/2015
In many cases, the victim and his witnesses will have no legal recourse, and the vexatious litigant will never be prosecuted for
breaking the law. Any actions taken to hold the vexatious litigant responsible for her behavior will be treated by her advocates
as an attack on the system put into place to protect women from domestic abuse.
Family court judges and prosecuting attorneys are elected politicians. They cannot afford to be painted as victim blamers or
accused of condoning domestic abuse against women. They cannot afford to create the chance that their having supported an
accused domestic abuser, even one who has been acquitted, will be brought to the public's attention during an election year.
Even though they can support their actions with the facts of the case, there is no chance of a positive public perception of the
insinuations and allegations their opponents will make. They know that domestic abuse is such a hot-button issue that it won't
matter if they can prove that they were right. Just being accused will hurt their chances for re-election. In effect, the vexatious
litigant is public-image kryptonite to these elected officials, to be avoided at all costs, including having to live with the
knowledge that they have thrown the real victim under the bus to protect themselves. Unless legal action forces them to attend
to the vexatious litigant's actions, her violations of the law will be ignored.
Biological Mother appeal from an order of the district court granting custody of their two grandchildren to the motherand Red
stepmother of the children. The Mother raise nine points on appeal which we consolidate and discuss as follows: (1) whether Formatted: Font: (Default) Times New Roman, Font color:
the trial court abused its discretion in the hearing following remand; (2) whether the trial court's order entered after remand Red
exceeded the court's jurisdiction; (3) whether the trial court erred in rejecting the findings of fact submitted by Mother; and (4)
whether the findings of fact adopted by the trial court were supported by substantial evidence. We affirm the order of the trial
court. During the pendency of this appeal, Mayanni J.R. reached the age of majority; thus, we dismiss as moot, Mother' appeal
concerning the custody of Michael. See Romine v. Romine, 100 N.M. 403, 404, 671 P.2d 651, 652 (1983). Formatted: Font: (Default) Times New Roman, Font color:
This is the second appeal to this court involving the custody of the children. See Normand v. Ray, 107 N.M. 346, 758 P.2d 296 Red
(1988). Defs Dorothy Parker (father) is the natural motherof Rosemary Rojas, born December 17, 1971, and Geovanny Rojas, Formatted: Font: (Default) Times New Roman, Font color:
born September 29, 1974. The motherwas divorced in Texas from Rosemary Benson Rojas, the children's mother, in 1974; the Red
divorce decree awarded custody of the children to the mother. In 1975, custody of the children was transferred by the mother to Formatted: Font: (Default) Times New Roman, Font color:
the grandmother, Dorothy Benson. Thereafter, in 1978, the motherpetitioned the Texas [785 P.2d 746] court for custody of the Red
children; Mother contested the transfer of custody. Following a jury trial, the Texas court ordered custody of the children be
transferred to the father. Red
In contravention of the Texas order changing custody of the children, the Mother moved with the children to another city
without informing the motherand kept their whereabouts secret. In 1985, Mother initiated adoption proceedings in New Mexico Formatted: Font: (Default) Times New Roman, Font color:
Red
and did not inform the trial court that the Texas decree had awarded custody of the children to the father. Mother told the court
that the motherhad abandoned the children and could not be located. Acting on the statements of the Mother, the New Mexico Formatted: Font: (Default) Times New Roman, Font color:
court entered an order terminating the father's parental rights and granted a decree of adoption to the Mother. Red
In 1986, the mothermarried Mother. Thereafter, in 1987, the motherdiscovered the location of the children in New Mexico and Formatted: Font: (Default) Times New Roman, Font color:
filed a petition for writ of habeas corpus seeking custody. Following a hearing, in September, 1987, the trial court granted the Red
writ directing that custody of the children be surrendered to the father, finding that the 1978 Texas judgment placing custody of Formatted: Font: (Default) Times New Roman, Font color:
the children in the motherwas valid and enforceable and that the New Mexico decree of adoption was void because it had been Red
fraudulently procured by Mother. Following an appeal by Mother, this court upheld the trial court's order granting the writ of
habeas corpus and voided the decree of adoption. The opinion of this court, however, directed that the cause be remanded "with
v.8/12/2015
v.8/12/2015
instructions to the trial court to hold a hearing to take evidence and enter an appropriate order to determine what custodial
arrangement will be in the best interests of the minor children. In all other respects, the trial court judgment is affirmed." Id. at
349, 758 P.2d at 299.
Following entry of the mandate of this court and remand, the trial court held an evidentiary hearing and adopted findings of
fact and conclusions of law. On March 20, 1989, the trial court entered an order determining among other things, that "the best
interests of the two children would be served by continuing their custody with the [motherand stepmother]," and that the
Mother "should be given reasonable rights of supervised visitation with both [children]."
I. HEARING ON REMAND
Mother assert that in conducting the hearing after remand the trial court abused its discretion when it did not require physical
presence of both children for an in-camera interview by the court pursuant to NMSA 1978, Section 40-4-9 (Repl. Pamp. 1989).
In view of our determination that Mother' appeal is moot as to Mayanni J.R., we address the issue raised by Mother as it relates
to MJR, now age fifteen. Formatted: Font: (Default) Times New Roman, Font color:
Section 40-4-9 provides in part, that in cases where a judgment or decree is entered awarding the custody of a minor: Red
(B) If the minor is fourteen years of age or older, the court shall consider the desires of the minor as to with whom he wishes to Formatted: Font: (Default) Times New Roman, Font color:
live before awarding custody of such minor.(C) Whenever testimony is taken from the minor concerning his choice of Red
custodian, the court shall hold a private hearing in his chambers. The judge shall have a court reporter in his chambers who Formatted: Font: (Default) Times New Roman, Font color:
shall transcribe the hearing; however, the court reporter shall not file a transcript unless an appeal is taken. Red
Although the provisions of Section 40-4-9 direct that the trial court shall consider the desires of a minor over fourteen years of Formatted: Font: (Default) Times New Roman, Font color:
age concerning custody, under the statute, the trial court is not conclusively bound to award custody according to such Red
preference. Merrill v. Merrill, 82 N.M. 458, 460, 483 P.2d 932, 934 (1971); Stone v. Stone, 79 N.M. 351, 352, 443 P.2d 741,
742 (1968); see also Schuermann v. Schuermann, 94 N.M. 81, 607 P.2d 619 (1980). Instead, the controlling inquiry of the Red
court in any child custody dispute involves a balancing of all relevant factors and determining [785 P.2d 747] the best interests
of the child. See Schuermann v. Schuermann.
Red
In Merrill, this court observed:The prevailing and correct rule, concerning the proper weight to be given to the expressed wish
of minors, whose custody is at issue, is that set forth in Annot. 4 A.L.R.3d 1396 at 1402 (1965), where it is stated that:"* * * Formatted: Font: (Default) Times New Roman, Font color:
Red
when a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment * * *." their wishes
concerning their own custody are a factor to be considered by the court in arriving at its conclusion on the issue, but it is in no Formatted: Font: (Default) Times New Roman, Font color:
sense controlling. (citation omitted). Id. at 459-60, 483 P.2d at 933-34. Red
In proceedings involving an award of child custody, the trial court is vested with wide discretion, and the court's conclusion Formatted: Font: (Default) Times New Roman, Font color:
concerning the best interests of a child will not be overturned on appeal absent proof that the decision of the trial court Red
amounted to a manifest abuse of discretion under the evidence. Fitzsimmons v. Fitzsimmons, 104 N.M. 420, 423, 722 P.2d 671, Formatted: Font: (Default) Times New Roman, Font color:
674 (Ct.App.), writ quashed, 104 N.M. 378, 721 P.2d 1309 (1986). Red
Following this court's remand of the case to the trial court, the testimony of the two children was presented by deposition at the Formatted: Font: (Default) Times New Roman, Font color:
custody hearing. The deposition testimony of Andrew, taken in Las Cruces on December 27, 1988, indicated that he was Red
fourteen years of age on September 29 and that he was living in California with his father, stepmother, stepbrother, stepsister, a
half-sister, and his brother Michael. Andrew expressed love for his Mother and somewhat mixed feelings concerning his Red
motherand stepmother. Andrew stated his preference was to live with his Mother; he also testified that while living in Texas
with his Mother, they had not discussed with him the efforts of his motherto obtain custody of the children, nor had his Mother
Red
ever informed him, in any detail, of matters concerning his father.
After the issuance of the writ of habeas corpus in August, 1987, custody of the children was transferred to the motherand Formatted: Font: (Default) Times New Roman, Font color:
Red
v.8/12/2015
v.8/12/2015
stepmother. Thereafter, the family moved to Germany where the motherwas serving in the United States Army. The family
currently resides in California.
The evidence indicates that the children lived with their Mother for over ten years after the Mother intentionally defied the
Texas child custody order. Considering the length of time that the children were separated from their motherand the intentional
action taken by the Mother limiting any contact or exchange of meaningful information concerning the children's motherfor
over ten years, it was not an abuse of discretion for the trial court to decline to follow Andrew's preference as to the award of
custody and in ascertaining the best interests of the children. In determining that custody of Andrew should remain with his
motherand stepmother, the trial court also found that the Mother should be permitted visitation.
Examination of the record indicates that the depositions of both children were admitted into evidence and considered by the
trial court. There is no evidence that the children's preferences as to custody were not freely given and that the depositions were
not sensitively conducted.
Mother argue that the trial court erred in denying their motion to require the attendance of the children at the hearing. Mother
contend that it is mandatory under Section 40-4-9(C) that the court conduct an in-camera hearing in order to ascertain the
desires and feelings of the children concerning the award of custody. Although Section 40-4-9(C) provides that in custody
proceedings concerning a minor's choice of custodian "the court shall hold a private hearing in his chambers" whenever
testimony is taken from a minor, this provision does not preclude presentation of deposition testimony by a child. The language
of Section 40-4-9 evinces a legislative directive that rather than subject children to adversarial proceedings in open court, they
should be interviewed in chambers concerning their preferences as to custody. The statute's [785 P.2d 748] clear import is to
minimize emotional trauma affecting children in custody proceedings and to protect the child from the tug and pull of
competing custodial interests. We do not deem the statute to be mandatory; rather, we conclude the holding of such in-camera
hearing is a matter entrusted to the sound discretion of the trial court. Because Mother were permitted to depose both boys and
to elicit testimony concerning their preferences as to the award of custody, and there is no showing this testimony was inhibited
or not freely given, we find no error in the trial court's denial of the motion for an in-camera hearing.
Mother also contend that the trial court erred in not permitting them to have a clinical psychologist evaluate the boys
concerning their placement and their best interests. However, the trial court did not prevent the Mother from presenting a
psychologist's expert testimony concerning the best interests of the children. Instead, the court expressly stated that Mother
could utilize an expert whose testimony relied on information obtained from the children's depositions and who could present
testimony in the form of opinion based upon hypothetical questions.
Although we agree with Mother that testing and evaluating the children would have been preferable, Mother have not shown
that the alternatives authorized by the court unfairly restricted the presentation of expert testimony or resulted in any actual
prejudice. Mother presented the testimony of Dr. Howard Daniels, a psychologist, who testified that the children loved their
Mother and had closely bonded with them. His stated opinion was that the best interests of the children would be to permit
them to reside with the Mother.
In determining the best interests of the children in child custody proceedings, the trial court is not limited to a consideration of
the children's expressed preferences, but may also consider, among other things, the children's interaction and interrelationship
with their parents and siblings, as well as the children's adjustment to their home, school and community and the mental and
physical health of the respective parties. Section 40-4-9(A). The court must evaluate these factors in light of the children's age,
the developing relationship between the children and their parents, and how well the child is developing physically, mentally
and emotionally. In determining the best interests of the children, the trial court could also properly consider the Mother'
previous history of lack of candor in the adoption proceedings and their prior disregard of the Texas court order concerning the
v.8/12/2015
v.8/12/2015
transfer of custody of the children. See Lopez v. Lopez, 97 N.M. 332, 334, 639 P.2d 1186, 1188 (1981); see also Alfieri v. Formatted: Font: (Default) Times New Roman, Font color:
Alfieri, 105 N.M. 373, 379, 733 P.2d 4, 10 (Ct.App. 1987); see generally Annotation, Alienation of Child's Affections As Red
Affecting Custody Award, 32 A.L.R.2d 1005 (1953); Annotation, Award of Custody of Child Where Contest is Between Child's Formatted: Font: (Default) Times New Roman, Font color:
Mother and Grandparent, 29 A.L.R.3d 366 (1989); Note, A Limitation on Grandparental Rights in New Mexico: Christian Red
Placement Service v. Gordon, 17 N.M.L.Rev. 207 (1987). Formatted: Font: (Default) Times New Roman, Font color:
Under the circumstances discussed above, we find no abuse of discretion by the trial court in its denial of the motion for an in- Red
camera hearing requiring the boys to appear and testify in person nor in its denial of a psychologist testing and evaluating the
boys at the custody hearing. Red
II. PROCEEDINGS ON REMAND
Mother argue that the trial court exceeded its jurisdiction in conducting the hearing on remand and that the trial court erred in Formatted: Font: (Default) Times New Roman, Font color:
Red
considering facts adduced at the habeas corpus proceeding conducted by the court. This court's mandate following the prior
appeal from the order granting habeas corpus directed that the trial court hold a hearing, take evidence, and enter an appropriate Formatted: Font: (Default) Times New Roman, Font color:
order to determine what custodial arrangement would be in the best interests of the minor children. Red
On remand the trial court has only such jurisdiction with respect to an issue appealed as is conferred by the opinion and [785 Formatted: Font: (Default) Times New Roman, Font color:
P.2d 749]mandate of the appellate court. Hughes v. Hughes, 101 N.M. 74, 75, 678 P.2d 702, 703 (1984); Apodaca v. Unknown Red
Heirs, 98 N.M. 620, 624-25, 651 P.2d 1264, 1268-69 (1982). The opinion of this court detailed facts previously determined by Formatted: Font: (Default) Times New Roman, Font color:
the trial court and which this court found controlling on appeal. Red
Under the prior findings adopted by the trial court in the habeas corpus action, and as set forth in our prior opinion, the Formatted: Font: (Default) Times New Roman, Font color:
motherfiled suit against the Mother in Texas seeking award of custody of the children. The findings adopted by the court Red
included a determination that following trial a decree was entered awarding custody to the father; the Mother left with the
children without informing the motherof their whereabouts; over the next few years the Mother moved to several different Red
cities hiding the children's location from their father; the father's efforts to locate the children were unsuccessful; Mother filed
proceedings to adopt the children in New Mexico and did not inform the New Mexico court of the 1978 Texas decree awarding Red
custody of the children to the father; and Mother informed the New Mexico court that the motherhad abandoned the children
and that he could not be located. The prior opinion of this court determined that "[s]ubstantial evidence in the record supports Formatted: Font: (Default) Times New Roman, Font color:
Red
the trial court's conclusion that the adoption judgment [secured by Mother] was obtained through fraud." 107 N.M. at 348, 758
P.2d at 298. Formatted: Font: (Default) Times New Roman, Font color:
In carrying out this court's mandate, the trial court's focus necessarily involved a determination as to the best interests of the Red
children at the time of the hearing on mandate; the trial court, however, was not required to disregard evidence presented at the Formatted: Font: (Default) Times New Roman, Font color:
prior hearing and which this court relied upon in rendering its opinion on appeal. Although we agree that as a general rule Red
custodial rights should be determined by current evidence, Greene v. French, 97 N.M. 493, 495, 641 P.2d 524, 526 (Ct.App. Formatted: Font: (Default) Times New Roman, Font color:
1982), in view of the fact that the conduct of the Mother over an extended period precluded any meaningful contact by the Red
motherwith both boys during their formative years, the trial court could properly consider such facts, as well as the prior Formatted: Font: (Default) Times New Roman, Font color:
conduct of the Mother in determining the best interests of the children. Red
The trial court did not exceed its jurisdiction following issuance of this court's mandate.
III. DENIAL OF REQUESTED FINDINGS Red
Mother also assert that the trial court erred in refusing to adopt their requested findings of fact and that certain findings
Formatted ...
submitted by them were supported by uncontradicted evidence.
The requested findings of fact submitted by Mother, among others, provided that the interaction and interrelationship between Formatted ...
the children and Mother was positive; that the children were happy during the time they were in the physical custody of Formatted ...
v.8/12/2015
v.8/12/2015
Mother; that the Mother were good caretakers of the children; that the interaction and interrelationship between the children,
the motherand stepmother and step-siblings was not loving; that in the children's minds, Mother are their parents; that after
custody was awarded to the motherand stepmother contact between the children and the Mother was discouraged; that the
children were required to care for their own physical needs; and that Andrew was unhappy in the present custodial setting.
It is not error for a trial court to refuse to adopt findings favorable to an unsuccessful party and that contradict other findings
adopted by the trial court. Cowan v. Chalamidas, 98 N.M. 14, 16, 644 P.2d 528, 530 (1982). Moreover, the trial court need not Formatted: Font: (Default) Times New Roman, Font color:
adopt findings of fact touching on every material fact; it is sufficient if the findings of the trial court address those ultimate Red
findings of fact necessary to support its decision. Sanchez v. Sanchez, 84 N.M. 498, 500, 505 P.2d 443, 445 (1973). "Ultimate Formatted: Font: (Default) Times New Roman, Font color:
facts" are those facts which are essential and determinative facts upon which the trial court's conclusions are based. Goldie v. Red
Yaker, 78 N.M. 485, 488, 432 P.2d 841, 844 (1967).[785 P.2d 750] Formatted: Font: (Default) Times New Roman, Font color:
In view of the actual finding adopted by the trial court that the best interest of Andrew would be to continue his custody with Red
his motherand stepmother, it was not error to refuse to adopt the findings of fact and conclusions of law submitted by Mother.
IV. SUFFICIENCY OF EVIDENCE Red
Lastly, Mother challenge the sufficiency of evidence to support the findings of fact adopted by the trial court underlying the
court's conclusion that the best interest of Andrew requires that he continue to reside with his motherand stepmother. Formatted: Font: (Default) Times New Roman, Font color:
Red
Mother attack the findings of the trial court based upon their contentions that specific findings adopted by the court are
irrelevant to its determination of the best interests of the boys, and that other findings entered by the court have no basis in the Formatted: Font: (Default) Times New Roman, Font color:
record or are not supported by substantial evidence. Red
Findings 1 and 2, adopted by the trial court, found that during the time the boys were in the custody of the Mother, from 1985 Formatted: Font: (Default) Times New Roman, Font color:
to 1987, the boys did not attend public school; instead, they were educated by Mother who used materials supplied by a home Red
study correspondence school. The court also found that "the value of this education is unknown." Mother argue these findings Formatted: Font: (Default) Times New Roman, Font color:
are contradicted by the record and relate to prior matters outside the relevant time-frame for determining the best interests of Red
the children. We disagree. The depositions of both children indicated that they had been taught at home while residing with Formatted: Font: (Default) Times New Roman, Font color:
Mother, that they were currently attending schools in California, and that generally their academic progress had improved Red
during the time that they resided with their motherand stepmother. The court's findings concerning the children's education
were relevant and supported by evidence in the record. The fact that Mother have testified that they would send the children to Red
public school if custody were awarded to them did not render irrelevant the findings adopted by the court. The burden of
showing that facts existing at the present time are materially different from those adduced at a former hearing rests upon the Red
party making the claim. Gulf States Equip. Co. v. Toombs, 317 S.W.2d 554, 556 (Tex.Civ.App. 1958).
The trial court also found that, based on the Mother' past conduct, if custody of the children were awarded to the Mother, the Formatted: Font: (Default) Times New Roman, Font color:
Red
best educational interests of the children, or future compliance with court decrees could not be assured. Mother argue that there
is no basis in the evidence to support these findings and that the trial court apparently relied upon evidence presented at the Formatted: Font: (Default) Times New Roman, Font color:
previous habeas corpus hearing as a predicate for such findings. On remand from this court, the plans of the parties concerning Red
the future education of the children was a relevant inquiry. In evaluating this factor the trial court properly considered the Formatted: Font: (Default) Times New Roman, Font color:
adequacy of the education provided during the time the children were in the custody of the Mother. Similarly, in considering Red
the best interests of Andrew and in evaluating the probability that the Mother would comply with future court decrees, the trial
court could properly consider the Mother' disregard for the Texas child custody decree and the Mother' fraudulent procurement
of the New Mexico adoption decree. In Lopez, this court recognized that a parent's demonstrated lack of cooperation and
refusal to follow prior court orders concerning child visitation may, in appropriate cases, constitute grounds for change of
custody. Id. at 334, 639 P.2d at 1188; see also Alfieri v. Alfieri, 105 N.M. at 379, 733 P.2d at 10.
v.8/12/2015
v.8/12/2015
The challenged findings were material and relevant to the trial court's determination of the best interests of Andrew. Formatted: Font: (Default) Times New Roman, Font color:
Mother further challenge as unsupported by the evidence, the trial court's findings that the motherand stepmother have Red
provided appropriate housing or environment for the two boys, or that they are appropriate parents. The court's findings have Formatted: Font: (Default) Times New Roman, Font color:
support in the record. Among other evidence, the deposition testimony of both boys described their current home, school [785 Red
P.2d 751] participation, and the parenting practices of the motherand stepmother. This evidence, together with the reasonable Formatted: Font: (Default) Times New Roman, Font color:
inferences properly drawn therefrom, constituted substantial evidence to support the trial court's findings. Red
Additionally, Mother contend that the court abused its discretion in finding that Michael prefers to live in California with his
motherand stepmother and that Andrew prefers to live in New Mexico with Mother; and that in light of the mixed wishes Red
expressed by the children, it would not be beneficial to separate them. Under this point Mother reassert their argument that the
court erred in rejecting proposed findings of fact submitted by them and which were supported by uncontradicted testimony. In
Red
considering this argument, we are further mindful of the fact that the older son is now an adult.
In reviewing challenges to the findings of the trial court, a reviewing court does not reweigh evidence or determine the Formatted ...
credibility of the witnesses, but ascertains whether the evidence, viewed in a light most favorable to the prevailing party, Formatted ...
reveals the existence of substantial evidence to support the court's decision; if so, the decision must be affirmed. Alfieri v. Formatted ...
Alfieri, 105 N.M. at 377, 733 P.2d at 8. Findings of fact are to be liberally construed so as to uphold the judgment of the trial
court, and findings are sufficient if a fair consideration of all of them taken together justifies the judgment of the trial court. Formatted ...
State ex rel. Goodmans Office Furnishings, Inc. v. Page & Wirtz Constr. Co., 102 N.M. 22, 24, 690 P.2d 1016, 1018 (1984). Formatted ...
Even where specific findings adopted by the trial court are shown to be erroneous, if they are unnecessary to support the Formatted ...
judgment of the court and other valid material findings uphold the trial court's decision, the trial court's decision will not be
Formatted ...
overturned. Specter v. Specter, 85 N.M. 112, 114, 509 P.2d 879, 881 (1973). Moreover, in proceedings involving determination
of the best interest of the children, the court may also consider the possible adverse effect of custody changes upon the Formatted ...
children. Seeley v. Jaramillo, 104 N.M. 783, 786, 727 P.2d 91, 94 (Ct.App. 1986). Formatted ...
Here, the trial court adopted findings that Plaintiffs were providing a beneficial environment for the children, that the scholastic
Formatted ...
performance of the children was improving while in the custody of Defss, and that the parenting provided by Defss was
appropriate and beneficial. These ultimate findings were sufficient to support the trial court's order awarding custody. Formatted ...
We have reviewed the record and determine the trial court's findings and conclusions continuing custody in the motherand Formatted ...
stepmother are supported by substantial evidence and were not contrary to law.
Formatted ...
The appeal of Mother as to Mayanni J.R. is dismissed as moot; in all other respects the judgment of the trial court is affirmed.
Defss are awarded their costs on appeal. Formatted ...
Formatted ...
Formatted ...
Formatted ...
NO. ________
IN THE COURT OF CRIMINAL APPEALS Formatted ...
OF TEXAS Formatted ...
In re Formatted ...
CHARLES DEAN HOOD,
Formatted ...
Relator-Plaintiff
ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS Formatted ...
OR, IN THE ALTERNATIVE, Formatted ...
v.8/12/2015
v.8/12/2015
ORIGINAL PETITION FOR WRIT OF PROHIBITION,
AND MOTION FOR STAY OF EXECUTION
THIS IS A DEATH PENALTY CASE.
MR. HOOD IS SCHEDULED TO BE EXECUTED
ON JUNE 17, 2008.
A. Richard Ellis Gregory W. Wiercioch
75 Magee Avenue 430 Jersey Street
Mill Valley, CA 94941 San Francisco, CA 94114
(415) 389-6771 (415) 285-2472
(415) 389-0251 (fax) (415) 185-2472 (fax)
Texas Bar No. 06560400 Texas Bar No. 00791925
Counsel for Charles Dean Hood
-i-
IDENTIFICATION OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 52.3(a), undersigned counsel sets out a list of all
parties, and the names and addresses of all counsel.
Nathaniel Quarterman, Director of the Texas Department of
Criminal Justice, Institutional Corrections Division. Defs.
Edward L. Marshall, Chief, Postconviction Litigation Division,
Office of the Attorney General, 330 W. 15th Street, 8th Floor,
William P. Clements Building, Austin, Texas 78701. Counsel for
Defs.
John Roach, Sr., Criminal District Attorney, Collin County, Texas.
Jeffrey Garon, Assistant District Attorney, Collin County District
Attorney’s Office, 201 S. McDonald, Suite 324, McKinney, Texas
75069.
Charles Dean Hood, No. 000982, Texas Department of Criminal
Justice, Death Row, Polunsky Unit, 3872 F.M. 350 South, Livingston,
Texas 77351. Relator-Plaintiff.
Gregory W. Wiercioch, 430 Jersey Street, San Francisco, California
94114. Counsel for Relator-Plaintiff.
A. Richard Ellis, 75 Magee Avenue, Mill Valley, California 94941.
Counsel for Relator-Plaintiff.
-ii-
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . i
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
v.8/12/2015
v.8/12/2015
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
JUDGE HOLLAND’S INTIMATE RELATIONSHIP WITH DISTRICT
ATTORNEY O’CONNELL CONSTITUTIONALLY DISQUALIFIED HER
FROM PRESIDING OVER MR. HOOD’S TRIAL AND DEPRIVED HIM OF
HIS RIGHT TO A FAIR AND IMPARTIAL TRIBUNAL . . . . . . . . . . . . . . . . . . 9
A. TEXAS CONSTITUTIONAL GROUNDS . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Judge Holland had a personal and direct interest in the
outcome of Mr. Hood’s case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2. Public confidence in the integrity of the judiciary is
severely eroded by an extended intimate relationship
between a judge and an elected district attorney trying a
case in her courtroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. FEDERAL CONSTITUTIONAL GROUNDS . . . . . . . . . . . . . . . . . . . . . . 17
C. DISQUALIFICATION SURVIVES SILENCE . . . . . . . . . . . . . . . . . . . . . 19
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
-iii-
APPENDIX
Exhibit 1: Judgment of Conviction and Sentence (Sept.
7, 1990).
Exhibit 2: Order Setting Execution (Apr. 16, 2008).
Exhibit 3: Affidavit of Matthew Goeller (June 3, 2008).
Exhibit 4: Declaration of David K. Haynes (June 5, 2008).
Exhibit 5: Affidavit of Tena S. Francis (June 5, 2008).
-1-
NO. ________
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
In re
CHARLES DEAN HOOD,
Relator-Plaintiff
ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS
OR, IN THE ALTERNATIVE,
ORIGINAL PETITION FOR WRIT OF PROHIBITION,
AND MOTION FOR STAY OF EXECUTION
During the capital murder trial of Plaintiff-Relator Charles Dean Hood,
Presiding Judge Verla Sue Holland was involved in a long-term intimate
relationship with the Collin County District Attorney, Tom O’Connell, who took
an active role in the courtroom prosecuting Mr. Hood. Neither Judge Holland nor
District Attorney O’Connell disclosed the existence of this relationship before,
during, or after the trial. Judge Holland never moved to recuse herself. Under
v.8/12/2015
v.8/12/2015
Article V, § 11 of the Texas Constitution, Judge Holland was absolutely
disqualified from presiding over the trial. Because the court lacked jurisdiction,
1 If this Court should have any doubt as to the appropriate relief in this case, it is not limited by
the denomination of Mr. Hood’s current petition. See State ex. rel. Wade v. Mays, 689 S.W.2d
893, 897 (Tex. Crim. App. 1985) (“In determining the specific nature of the extraordinary relief
sought, this Court will not be limited by the denomination of Plaintiff’s pleadings, but will look
to the essence of the pleadings, including the prayers, as well as the record before us.”). Mr.
Hood has filed, simultaneously with this Original Petition, an Application for Writ of Habeas
Corpus pursuant to Article 11.071. The claims raised in the Article 11.071 application are based
on the same allegations he brings here.
-2-
the judgment of conviction and sentence against Mr. Hood is null and void. Judge
Holland’s participation in the case also violated the Eighth and Fourteenth
Amendments to the Federal Constitution. The absence of an impartial judge is a
structural defect in the trial proceedings, and reversal of Mr. Hood’s conviction
and sentence is automatic, without consideration of harmless error. Accordingly,
the Court should issue a writ of habeas corpus and grant Mr. Hood relief from his
unconstitutional conviction and sentence.
In the alternative, the Court should issue a writ of prohibition barring
Nathaniel Quarterman, Director of the Texas Department of Criminal Justice,
Institutional Corrections Division, and his agents from carrying out Mr. Hood’s
execution scheduled for June 17, 2008. Because Judge Holland’s unconstitutional
participation in Mr. Hood’s capital murder trial rendered his conviction and
sentence null and void, the State of Texas is without authority to execute Mr.
Hood.1
2 Citations to the reporter’s record of the capital murder trial are noted as “__ RR __.” Citations
to the clerk’s record of the trial are designated as “__ CR __.”
-3-
STATEMENT OF THE CASE
Mr. Hood, the Relator-Plaintiff, was convicted of capital murder and
sentenced to death in 1990 by the Hon. Verla Sue Holland of the 296th Judicial
District Court of Collin County, Texas. 2 CR 381-84 (Ex. 1); 56 RR 1676-77.2
On April 16, 2008, the Hon. Curt B. Henderson of the 219th Judicial District
Court, sitting in the 296th Judicial District Court, signed an order setting Mr.
Hood’s execution for June 17, 2008. Ex. 2. Mr. Hood is currently confined on
Death Row in the Polunsky Unit of the Institutional Corrections Division of the
Texas Department of Criminal Justice, located in Livingston, Texas. Defs
Nathaniel Quarterman is the Director of the Institutional Corrections Division of
the Texas Department of Criminal Justice. Mr. Hood seeks a writ of habeas
corpus ordering Mr. Quarterman to release him from the unconstitutional restraint
v.8/12/2015
v.8/12/2015
on his liberty. In the alternative, Mr. Hood seeks a writ of prohibition barring Mr.
Quarterman and his agents from carrying out Mr. Hood’s execution on June 17,
2008, because the judgment of conviction and sentence entered by the Hon. Verla
Sue Holland, the former presiding judge of the 296th Judicial District Court, is
null and void.
-4-
STATEMENT OF JURISDICTION
This Court has original habeas corpus jurisdiction under Article V, § 5 of
the Texas Constitution and Article 4.04 of the Texas Code of Criminal Procedure.
Disqualification on constitutional grounds may be raised in a collateral attack,
even after the judgment is beyond appeal. Fry v. Tucker, 202 S.W.2d 218, 221-22
(Tex. 1947); In re Gonzalez, 115 S.W.3d 36, 39 (Tex. App. 2003); Zarate v. Sun
Operating, Ltd, Inc., 40 S.W.3d 617, 621 (Tex. App. 2001). No statute limits the
authority or jurisdiction of this Court to consider an original habeas application.
See ex rel. Wilson v. Briggs, 351 S.W.2d 892, 894 (Tex. Crim. App. 1961) (“The
original jurisdiction of this court to issue writs of habeas corpus is unlimited.”).
This Court has original jurisdiction to issue a writ of prohibition under
Article V, § 5 of the Texas Constitution and Article 4.04 of the Texas Code of
Criminal Procedure. Because this Court may issue a writ of mandamus to correct
an order that a judge had no power to render and that was, therefore, void, Urbish
v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex. 1986), it has similar
authority to issue a writ of prohibition to bar a defs from carrying out an act
based on a null and void judgment. If an order is void, then a relator need not
show that he did not have an adequate appellate remedy. In re Dickason, 987
S.W.2d 570, 571 (Tex. 1998); In re Union Pacific Resources Co., 969 S.W.2d
3 See 16 RR 182 (voir dire of Juror Huff); 17 RR 388 (voir dire of Juror Ensminger); 18 RR 447
(voir dire of Juror Thompson); 18 RR 520 (voir dire of Juror Van Duren); 20 RR 806 (voir dire
of Juror Kerin); 20 RR 833 (voir dire of Juror Baker); 24 RR 1273 (voir dire of Juror Mathews);
-5-
427, 428 (Tex. 1998).
ISSUES PRESENTED
This Original Petition presents two issues for the Court’s review:
1. Was Judge Holland disqualified under Article V, § 11 of the
Texas Constitution from presiding over Mr. Hood’s capital
murder trial?
2. Did Judge Holland’s participation in Mr. Hood’s trial deprive
him of his right to a fair and impartial tribunal under the Eighth
and Fourteenth Amendments to the United States Constitution?
STATEMENT OF FACTS
In 1990, Mr. Hood was convicted of capital murder and sentenced to death
v.8/12/2015
v.8/12/2015
for killing Ronald Williamson and Tracie Lynn Wallace in the same criminal
transaction. His trial took place before the Hon. Verla Sue Holland of the 296th
Judicial District Court of Collin County, Texas. Tom O’Connell, the elected
District Attorney of Collin County actively participated in the prosecution of Mr.
Hood. Paired with assistant district attorney John Schomburger, O’Connell
addressed panels of venirepersons in general voir dire and individually questioned
numerous potential jurors, including every venireperson who eventually served on
Mr. Hood’s jury.3 He conducted the cross-examination of the defense witnesses at
24 RR 1317 (voir dire of Juror Epstein); 26 RR 1559 (voir dire of Juror K. Smith); 26 RR 1599
(voir dire of Juror Balthis); 28 RR 1854 (voir dire of Juror L. Smith); 34 RR 2535 (voir dire of
Juror St. John).
-6-
both the guilt-innocence and punishment stages of the trial. See 45 RR 910 (crossexamination
of Kelly King); 54 RR 1483 (cross-examination of Deborah Lacroix);
54 RR 1497 (cross-examination of Michael Todd); 54 RR 1567 (crossexamination
of Sandra Hood). He delivered the rebuttal argument to the jury at
the guilt-innocence closing. 46 RR 969-85. At the sentencing charge conference,
he persuaded the court to overrule Mr. Hood’s Penry I objection to the former
special issues. 54 RR 1594-96. During punishment phase closing arguments,
District Attorney O’Connell spoke last to the jury, urging them to sentence Mr.
Hood to death. 55 RR 1657-71. After the jury convicted Mr. Hood of capital
murder and answered the former special issues affirmatively, Judge Holland
sentenced him to death the next day. 2 CR 381-84 (Ex. 1); 56 RR 1676-77.
While Judge Holland was presiding over Mr. Hood’s trial, she was involved
in a long-term intimate relationship with District Attorney O’Connell. A former
assistant district attorney who worked in the office at that time stated that, in 1987,
“[i]t was common knowledge in the District Attorney’s Office, and the Collin
County Bar, in general, that the District Attorney, Mr. Tom O’Connell, and the
Presiding Judge of the 296th District Court, Judge Verla Sue Holland, had a
4 District Attorney O’Connell filed for divorce in 1985. His divorce from Patricia O’Connell was
finalized in 1986. Judge Holland and Earl Holland were divorced in 1987. Earl Holland told
friends that Judge Holland’s affair with District Attorney O’Connell “was the precipitating factor
in his decision to file for divorce.” Alan Berlow, Ardor in the Court, Salon.com News, June 24,
2005, located at www.salon.com/news/feature/2005/06/24/texas_court_affair/index.html.
-7-
romantic relationship.” Ex. 3 (Affidavit of Matthew Goeller). The former
assistant district attorney said that the relationship continued through Mr. Hood’s
1990 capital murder trial and that it ended around 1993. Id. Several other persons
associated with the legal profession in Collin County stated that they had heard
about the relationship. See Ex. 4 at 1 (Declaration of David Haynes) (“At the time
v.8/12/2015
v.8/12/2015
of the trial, I was aware of rumors concerning a romantic relationship between the
trial judge, Verla Sue Holland, and the Collin County District Attorney, Tom
O’Connell.”); Ex. 5 at 1-3 (Affidavit of Tena S. Francis) (recounting conversations
with Judge Holland’s ex-husband and defense paralegal Janet Heitmiller about
rumors of the relationship).
By the time of Mr. Hood’s trial, both Judge Holland and District Attorney
O’Connell were divorced from their spouses.4 However, neither Judge Holland
nor District Attorney O’Connell chose to make the relationship public. Instead,
they made a calculated decision to keep it secret, engaging in various subterfuges
to dispel any suspicion. See, e.g., id. at 3 (recounting conversation with local
attorney who said Judge Holland and District Attorney O’Connell would often
5 Before she became a district court judge in 1981, Holland worked as an assistant district
attorney for O’Connell. See Norman v. State, 588 S.W.2d 340, 342 (Tex. Crim. App. 1979)
(listing Holland and O’Connell as counsel of record for the State); Jewell v. State, 583 S.W.2d
314, 314 (Tex. Crim. App. 1978) (same); Smith v. State, 571 S.W.2d 917, 917 (Tex. Crim. App.
1978) (same); Howell v. State, 563 S.W.2d 933, 934 (Tex. Crim. App. 1978) (same).
6 Judge Holland did not preside over Mr. Hood’s habeas corpus proceedings. She left the 296th
District Court in 1996 after she was elected to the Court of Criminal Appeals of Texas. She
served on this Court from 1997 until 2001.
-8-
take her bailiff to lunch with them so that “the lunch would not appear to be
romantic in nature”); id. (stating that District Attorney O’Connell’s son would
drop him off at Judge Holland’s house so that he would not have to leave his car in
her driveway).
Several examples of Judge Holland’s behavior indicate favoritism toward
District Attorney O’Connell. Judge Holland appointed O’Connell to an inordinate
number of high-fee guardian ad litem cases. Id. at 3-4. Judge Holland also
appointed O’Connell to a number of civil cases from 1983-86, a period when
O’Connell had lost his bid for re-election as district attorney. Id. at 4.5 Finally,
Judge Holland served as an informal advisor on O’Connell’s campaign steering
committee and urged him to switch his party affiliation from Democrat to
Republican to increase his chances of returning to office. Id.6
-9-
ARGUMENT
JUDGE HOLLAND’S INTIMATE RELATIONSHIP WITH
DISTRICT ATTORNEY O’CONNELL CONSTITUTIONALLY
DISQUALIFIED HER FROM PRESIDING OVER MR.
HOOD’S TRIAL AND DEPRIVED HIM OF HIS RIGHT TO A
FAIR AND IMPARTIAL TRIBUNAL.
A. TEXAS CONSTITUTIONAL GROUNDS
v.8/12/2015
v.8/12/2015
The Texas Constitution sets out the grounds for judicial disqualification:
No judge shall sit in any case wherein the judge may be interested, or
where either of the parties may be connected with the judge, either by
affinity or consanguinity, within such a degree as may be prescribed
by law, or when the judge shall have been counsel in the case.
Tex. Const. Art. V, § 11. If a judge is constitutionally disqualified, he or she lacks
jurisdiction to hear the case and, therefore, any judgment rendered is void and a
nullity. Davis v. State, 956 S.W.2d 555, 558 (Tex. Crim. App. 1997); Buckholts
Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982); Fry, 202 S.W.2d at
220. The rule applies in criminal, as well as civil, cases. A criminal conviction is
void if the judge was constitutionally disqualified. Ex parte Vivier, 699 S.W.2d
862, 863-64 (Tex. Crim. App. 1985) (per curiam). Moreover, a party cannot
waive, even by consent, the issue of constitutional disqualification. Gamez v.
State, 737 S.W.2d 315, 318 (Tex. Crim. App. 1987); Lee v. State, 555 S.W.2d 121,
124 (Tex. Crim. App. 1977). It is a matter that can be raised at any time, by any
-10-
party, including on the court’s own motion. Fry, 202 S.W.2d at 222.
1. Judge Holland had a personal and direct interest in the
outcome of Mr. Hood’s case.
The Texas Constitution calls for the mandatory disqualification of a judge
“in any case wherein the judge may be interested.” Tex. Const. Art. V, § 11. To
be disqualifying, a judge’s interest in the result of the litigation “must necessarily
affect him to his personal or pecuniary loss or gain.” Ex parte Kelly, 10 S.W.2d
728, 729 (Tex. Crim. App. 1928); see Cameron v. Greenhill, 582 S.W.2d 775, 776
(Tex. 1979) (“It is a settled principle of law that the interest which disqualifies a
judge is that interest, however small, which rests upon a direct pecuniary or
personal interest in the result of the case presented to the judge or court.”). The
interest must be “direct, real, and certain, not merely incidental, remote,
contingent, or possible.” Kelly, 10 S.W.2d at 729. If any doubt exists about a
judge’s interest, a court should resolve that doubt in favor of disqualification.
Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 559 (Tex. App. 1993).
The constitutional disqualification provision rests upon the notion that “[a]n
independent, unbiased, disinterested, fearless judiciary is one of the bulwarks of
American liberty, and nothing should be suffered to exist that would cast a doubt
or shadow of suspicion upon its fairness and integrity.” Cotulla State Bank v.
7 Moreover, the Texas Constitution’s use of the term “may be interested” suggests that
disqualification is called for even if the judge’s interest cannot be precisely or definitively
determined. Gulf Maritime, 858 S.W.2d at 559.
-11-
Herron, 202 S.W. 797, 798 (Tex. App. 1918).7
v.8/12/2015
v.8/12/2015
Judge Holland’s interest in the result of Mr. Hood’s capital murder trial was
neither too remote nor too speculative to support constitutional disqualification.
Judge Holland’s intimate relationship with District Attorney O’Connell created a
situation where she naturally would be inclined to adopt his interests as her own or
be solicitous and supportive of his interests.
District Attorney O’Connell wanted, of course, to secure a capital murder
conviction and death sentence against Mr. Hood. To this end, he did not simply
hand over the case to an underling while he remained behind a desk in his office.
Instead, he actively participated in the prosecution, questioning potential jurors,
cross-examining witnesses, and arguing before the jury. He put his professional
reputation, and the prestige of his office, at stake in a special way when he decided
to try the case himself. Participating as a front-line prosecutor, he indicated the
importance of the case and of a conviction and death sentence, along with his
belief in the strength of the State’s case. The nature of the charges and sentence
sought made it more likely that District Attorney O’Connell’s constituents were
aware of the case and his involvement in it. It would have been a damaging blow
-12-
for him personally to try an important case like Mr. Hood’s and lose. On the other
hand, obtaining a death verdict would enhance his credentials and those of his
office. His tenure in office – his professional livelihood – depended on successful
outcomes, especially in death penalty cases.
Judge Holland would have been concerned about handing District Attorney
O’Connell a galling defeat in such a highly visible case. Her role in his election
campaigns made her attuned to his professional and personal interests. Her longterm,
intimate relationship with him made these interests her own. Under these
circumstances, it is inconceivable to assert that Judge Holland did not have a
direct and real interest in the outcome of Mr. Hood’s trial.
2. Public confidence in the integrity of the judiciary is severely
eroded by an extended intimate relationship between a
judge and an elected district attorney trying a case in her
courtroom.
This Court has recognized that bias unrelated to a judge’s “interest” in the
outcome of the litigation can constitute a ground for disqualification. The Court
has held that for judicial bias to be disqualifying it must be of “such a nature and
to such an extent as to deny a defendant due process of law.” McClenan v. State,
661 S.W.2d 108, 109 (Tex. Crim. App. 1983), overruled on other grounds,
DeLeon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004). The standard for
-13-
assessing judicial bias in this context is whether the allegation of lack of
impartiality is grounded on facts that would create doubts concerning the judge’s
v.8/12/2015
v.8/12/2015
impartiality – not in the mind of the judge herself, or even, necessarily, in the mind
of the party filing the motion, but rather in the mind of a reasonable person with
knowledge of all the circumstances involved. Kemp v. State, 846 S.W.2d 289, 305
(Tex. Crim. App. 1992) (citing Chitimacha Tribe of Louisiana v. Harry L. Laws
Co., 690 F.2d 1157, 1165 (5th Cir. 1982)); see McClenan, 661 S.W.2d at 109
(same).
Requiring courts to evaluate judicial bias under an objective standard
signifies that this ground for constitutional disqualification is less concerned with
the reality of bias than with its appearance. Irresponsible or improper conduct by
judges diminishes public confidence in the integrity of the judiciary. Although the
Texas Constitution’s disqualification provision seeks to ensure fairness to
individual litigants, it also fosters a broader concern:
Public policy demands that the judge who sits in a case act with
absolute impartiality. Beyond the demand that a judge be impartial,
however, is the requirement that a judge appear to be impartial so
that no doubts or suspicions exist as to the fairness or integrity of the
court. The judiciary must strive not only to give all parties a fair trial
but also to maintain a high level of public trust and confidence. The
legitimacy of the judicial process is based on the public’s respect and
on its confidence that the system settles controversies impartially and
fairly. Judicial decisions rendered under circumstances that suggest
-14-
bias, prejudice, or favoritism undermine the integrity of the courts,
breed skepticism and mistrust, and thwart the very principles on
which the judicial system is based. The judiciary must be extremely
diligent in avoiding any appearance of impropriety and must hold
itself to exacting standards lest it lose its legitimacy and suffer a loss
of public confidence.
Sun Exploration & Production Co. v. Jackson, 783 S.W.2d 202, 206 (Tex. 1989)
(Spears, J., concurring) (emphases in original, citations omitted).
In light of this rationale for disqualification, the test is not whether Judge
Holland believed herself capable of disregarding her romantic relationship with
District Attorney O’Connell, but whether a reasonable person would believe that
she could disregard it. See In re K.E.M., 89 S.W.3d 814, 829 (Tex. App. 2002).
The answer, of course, is a resounding “no.” When a judge is involved in a longterm
intimate relationship with an attorney who is appearing before her, the
judge’s impartiality is certainly suspect, even without evidence that the
relationship actually resulted in any impropriety.
An intimate relationship like the one shared between Judge Holland and
District Attorney O’Connell not only implies a special willingness of the judge to
v.8/12/2015
v.8/12/2015
accept the prosecutor’s representations and arguments, but also suggests extensive
personal contacts beyond the confines of the courtroom. The reasonable onlooker
would have grave concerns about the frequency and nature of these contacts, the
-15-
lengthy duration of the relationship, the numerous opportunities for ex parte
communications during these contacts, Judge Holland’s sense of personal
obligation to District Attorney O’Connell, and her desire to support and advance
his professional interests. Moreover, Judge Holland’s failure to disclose the
relationship – in fact, her strenuous efforts to conceal it – strongly indicates to the
objective observer that the relationship did, indeed, affect her impartiality. See In
re Gerard, 631 N.W.2d 271, 280 (Iowa 2001). It certainly demonstrates that she
believed reasonable persons would find the existence of the relationship troubling.
The substantially-out-of-the-ordinary relationship between Judge Holland and
District Attorney O’Connell gives rise to a reasonable question about the judge’s
impartiality. This is not a case of personal acquaintanceship or a strictly
professional friendship between a judge and an attorney who practices in her
courtroom.
It is fair to conclude that the average person on the street, when confronted
with these circumstances, would reasonably conclude that Judge Holland’s
participation in the case seriously undermined the public’s confidence in the
integrity of the courts. Identifying instances of actual prejudice is irrelevant when
the public perceives Mr. Hood may not have received a fair trial because of the
judge’s intimate relationship with the prosecuting attorney. A reviewing court
-16-
might believe a judge in this situation and be satisfied that no impropriety
occurred – but a court lacks the power to impose that conclusion on members of
the public by judicial fiat. The relationship creates an indelible appearance of
partiality. See, e.g., In re Chrzanowski, 636 N.W.2d 758, 764 (Mich. 2001)
(finding that, although no evidence existed that judge’s disproportionate number
of indigent defense appointments to attorney with whom she was having an
intimate relationship resulted in any actual prejudice, “such conduct did have a
negative effect on the appearance of propriety in judicial decision making and the
integrity of the judicial office in general”); Gerard, 631 N.W.2d at 278 (holding
that it was “immaterial” that judge’s intimate relationship with county attorney
may not have had a detrimental impact on defendants, because “once the public
learned of the judge’s relationship with the State’s attorney who appeared before
him daily, the appearance of bias was very real”); United States v. Berman, 28
M.J. 615, 618 (U.S.A.F. 1989) (disqualifying from six cases judge who had
intimate, sexual relationship with a prosecuting attorney, because the relationship
creates appearance of partiality). In short, an objective onlooker would be
v.8/12/2015
v.8/12/2015
extremely troubled by what happened in this case.
-17-
B. FEDERAL CONSTITUTIONAL GROUNDS
In addition to violating the Texas Constitution, Judge Holland’s
participation in Mr. Hood’s case violated his Eighth and Fourteenth Amendment
rights under the United States Constitution. A defendant’s right to be tried by an
impartial tribunal is sacrosanct, regardless of the evidence against him. Tumey v.
Ohio, 273 U.S. 510, 535 (1927). In Tumey, the Supreme Court held that “[e]very
procedure which would offer a possible temptation to the average man as a judge
. . . not to hold the balance nice, clear, and true between the state and the accused
denies the latter due process of law.” 273 U.S. at 532. In In re Murchison, the
Supreme Court recognized that Tumey’s “stringent rule” may sometimes result in
the disqualification of judges who have no actual bias, because due process
demands avoidance of “even the probability of unfairness.” 349 U.S. 133, 136
(1955). To satisfy this requirement, the Court explained that:
[N]o man can be a judge in his own case and no man is permitted to
try cases where he has an interest in the outcome. That interest
cannot be defined with precision. Circumstances and relationships
must be considered.
Id. Murchison concluded that “to perform its high function in the best way, justice
must satisfy the appearance of justice.” Id. (internal quotation marks omitted).
Elaborating on Murchison, the Supreme Court later found that a judge “not only
-18-
must be unbiased but also must avoid even the appearance of bias.”
Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150
(1968). Due process requires disqualification when the circumstances “might Formatted: Font: (Default) Times New Roman, Font color:
create an impression of possible bias.” Id. at 149 (emphases added). In short, due Red
process does not require a showing that a judge is biased in fact. Rather, due
process is concerned with the “average” judge’s ability to be – and appear to be –
impartial. Finally, because the entire conduct of the trial from beginning to end is
affected by the presence of a biased judge, a violation of this due process right
constitutes a structural defect in the trial mechanism and reversal is required
without consideration of the harmless error doctrine. Arizona v. Fulminante, 499
U.S. 279, 309 (1991).
Judge Holland’s participation in Mr. Hood’s case violated the Federal
Constitution for the same reasons that it violated the Texas Constitution: First, her
intimate relationship with District Attorney O’Connell indicates bias in fact,
because she had a direct and personal interest in the outcome of the case. Second,
an “average” judge would be unable to resist the temptation, caused by the
relationship, “not to hold the balance nice, clear, and true between the state and the
v.8/12/2015
v.8/12/2015
accused.” Tumey, 273 U.S. at 532. By presiding over Mr. Hood’s trial and
refusing to recuse herself, Judge Holland created an appearance of impropriety and
-19-
an impression of possible bias. This structural defect in the trial mechanism
requires automatic reversal of Mr. Hood’s conviction and sentence.
C. DISQUALIFICATION SURVIVES SILENCE. Formatted: Font: (Default) Times New Roman, Font color:
Mr. Hood would face a nearly impossible task if he had to break the wall of Red
silence that has surrounded and protected Judge Holland and District Attorney
O’Connell for nearly two decades now. Fortunately, he does not. Unlike recusal,
disqualification does require any “procedural ‘tip-toeing.’” Gulf Maritime, 858
S.W.2d 556, 560. “Disqualification . . . is a different creature in that it survives
silence.” Id. It may be raised at any time. Buckholts, 632 S.W.2d at 148. To
avoid the prospect of declaring null and void convictions that long ago became
final, the disqualification provision of the Texas Constitution places an affirmative
duty on judges – not litigants – to make themselves aware of the consequences of
their relationships and conduct. See Gulf Maritime, 858 S.W.2d at 562. In
essence, a judge’s duty of recusal is self-enforcing.
Placing that burden on a litigant like Mr. Hood is unreasonable and unfair.
Who would better know of potentially disqualifying conduct than those engaged in
the conduct themselves? Who would better know of a potential conflict of interest
than the parties sharing that interest? Who was in the better position, long before
trial, to be aware that the interest might be problematic? These concerns are
8 District Attorney O’Connell is not blameless in this matter. Separate from Judge Holland, he
had a constitutional duty under Brady to disclose to the defense before trial the existence of his
intimate relationship with her.
especially apt in Mr. Hood’s case, where Judge Holland and District Attorney
O’Connell took numerous precautions and engaged in various subterfuges to
ensure that their relationship remained concealed. This behavior demonstrates a
calculated nondisclosure. As the Gulf Maritime court explained: “Reason is over
extended when we require parties to lawsuits to seek a back door, covert, indirect
method of determining whether a trial judge is disqualified. That burden rests
more fairly upon those with knowledge of potential impediment.” 858 S.W.2d at
562. For this reason, whenever a party raises the issue of judicial disqualification,
no matter how informally, a court should fully investigate the matter and refuse to
sustain an objection merely to the form in which the party presents the challenge.
Pinchback v. Pinchback, 341 S.W.2d 549, 553 (Tex. App. 1961). Judges should
keep in mind the need to disclose unusual degrees of social affiliation. When
circumstances arise that may lead a reasonable person to question a judge’s
impartiality in a particular matter, a judge has a constitutional obligation to put the
v.8/12/2015
v.8/12/2015
potentially disqualifying facts on the record or recuse herself. Judge Holland did
neither.
PRAYER FOR RELIEF

A fair and impartial tribunal is a bedrock requirement of due process. Judge
Holland’s long-term intimate relationship with the elected district attorney
deprived Mr. Hood of this right. Judge Holland was constitutionally disqualified
from presiding over his capital murder trial. Her participation rendered Mr.
Hood’s conviction and sentence null and void under the Texas Constitution, and
deprived him of his due process right to a fair and impartial tribunal under the
Federal Constitution.
ACCORDINGLY, Mr. Hood asks this Court to:
1. Stay his execution scheduled for June 17, 2008; and
2. Issue a writ of habeas corpus and grant him relief from his
unconstitutional conviction and sentence; or
3. Remand the case to the convicting court for further
proceedings.
In the alternative, Mr. Hood asks this Court to issue a writ of prohibition
barring Defs Nathaniel Quarterman and his agents from carrying out the
execution of Mr. Hood on June 17, 2008. Finally, if the Court has any concerns
about the relief requested, it should stay the execution and set and file the case for
full briefing and oral argument.
respectfully Submitted,
_____________________
A. Richard Ellis Gregory W. Wiercioch
75 Magee Avenue 430 Jersey Street
Mill Valley, CA 94941 San Francisco, CA 94114
(415) 389-6771 (415) 285-2472
(415) 389-0251 (fax) (415) 185-2472 (fax)
Texas Bar No. 06560400 Texas Bar No. 00791925
Counsel for Charles Dean Hood
VERIFICATION
[***REPLACE THIS PAGE WITH NOTARIZED COPY***]
CERTIFICATE OF SERVICE
On this 12th day of June 2008, I hereby certify that a true and correct copy
of this pleading was sent to the following persons by placing it with Federal
Express for overnight delivery:
Edward L. Marshall
v.8/12/2015
v.8/12/2015
Postconviction Litigation Division
Office of the Attorney General
330 W. 15th Street, 8th Floor
William P. Clements Building
Austin, Texas 78701 Formatted: Font: (Default) Times New Roman, Font color:
Red
Debbie Archie
Assistant District Attorney Red
Dallas County District Attorney’s Office
210 S. McDonald, Suite 324 Formatted: Font: (Default) Times New Roman, Font color:
Red
McKinney, Texas 75069
(214 Formatted: Font: (Default) Times New Roman, Font color:
Hon. Cheryl Lee Shannon Red
Dallas County Juvenile 305th Formatted: Font: (Default) Times New Roman, Font color:
Dallas County 292nd District Court Red
133 Inudistirial Blvd. Formatted: Font: (Default) Times New Roman, Font color:
Dallas, Texas 75206 Red
Dallas County Courthouse Red
2100 Bloomdale Road
McKinney, Texas 75071 Red
972-424-1460
Red
12-00084-?? goodwin larrymitchell, untimelly denid pauper's, rea adoptin, piched, pattern, intimate partner requirment, reacent indient 9 yers ago, drugga?, lift hand strike or tuouch Formatted: Font: (Default) Times New Roman, Font color:
Red
offensively?no, coa april ? 2013, dissd?, void lack juridiction,ftc,60b
a-01268-xx in 2011, x-41470-XX on or about 10 May, 2011, On November 19, 2012, Petitoner fildanOrginl Bill of Reveiw, a collateral attack of the VSOD and a direct attack of the Formatted: Font: (Default) Times New Roman, Font color:
Adoption Decree, which was made on the basis of underlying invalid tpr bydjudg 305th Red
www.toc.pdf Red
www.lynch.pdf Formatted: Font: (Default) Times New Roman, Font color:
www.peralta.pdf Red
www.orozco.pdf Formatted: Font: (Default) Times New Roman, Font color:
becken.pdf Red
bor@coele.pdf
A writ of mandamus may issue only where “the duty to be performed is ministerial and the obligation to act peremptory, and clearly defined. The law must not only authorize the Red
demanded action, but require it; the duty must be clear and undisputable.” Ali wm.pdf
www.sec235.pdf
Red
www.phontosofgarmjrmob.dcim.pdf
www.scans220151020141or22014or2013 Formatted: Font: (Default) Times New Roman, Font color:
Red
v.8/12/2015
v.8/12/2015
www.moswrprts Formatted: Font: (Default) Times New Roman, Font color:
www.nickphoto. Red
www.apihospicecaseandhipacaseWarrantsforhospstaff Formatted: Font: (Default) Times New Roman, Font color:
www.crestCAPcase.medretraint Red
www.baylorlawrevinvoladmission/5150 Formatted: Font: (Default) Times New Roman, Font color:
www.dog. Red
Red
Shawn A. McMillan, Esq. (State Bar No. 208529)
COMPLAINT FOR DAMAGES Red
Claim 1: Violation of Federal Civil Red
Rights Red
Claim 2: Monell-Related Claims Formatted: Font: (Default) Times New Roman, Font color:
Red
Claim 3: Violation of State Civil Formatted: Font: (Default) Times New Roman, Font color:
Red
Rights Formatted: Font: (Default) Times New Roman, Font color:
Red
Claim 4: Intentional Infliction of
Emotional Distress
Claim 5: Negligent Infliction of
Emotional Distress
Claim 6: Negligence
Claim 7: Liability for Children's
Tort
Claim 8: False Imprisonment
Claim 9: Assault
Claim 10: Battery
v.8/12/2015
v.8/12/2015
Claim 11: Abuse of Process
Claim 12: Invasion of Privacy
Claim 13: Declaratory Relief
[JURY DEMANDED] 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
25 26 27 28
DONNA GREENSPAN, an individual;
and A.G., a minor, by and through her
guardian ad litem,
Plaintiff,
VS.
COUNTY OF SAN DIEGO, a public
entity;
JENNTFER WILLIAMS, individually;
JOSE PADILLA, individually;
SHELLY PAULE, individually;
DIONNE PUCKETT, individually;
MIKE GREEN, individually;
CITY OF SAN DIEGO, a public entity;
OFFICER J. TANGREDI, individually;
OFFICER G. AVALOS, individually;
OFFICER A. JOHNSON, individually;
and DOES 1 through 100, Inclusive,

v.8/12/2015
v.8/12/2015
Defendants.
UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF CALIFORNIA
COMPLAINT FOR DAMAGES 1 Plaintiffs, DONNA GREENSPAN ("Donna" or "Donna Greenspan") and 2 A.G., respectfully represent and allege as follows: 3 JURISDICTION 4
1. DONNA GREENSPAN and A.G. bring this civil rights lawsuit
5 pursuant to 42 U.S.C. Section 1983 to redress the deprivation by Defendants, at all 6 times herein acting under color of state law, of rights secured to Plaintiffs under
7 the United States constitution, including the First, Fourth, and Fourteenth 8 Amendments, and under federal and state law where applicable. 9 2. Jurisdiction is conferred on this
Court by 28 U.S.C. sections 10 1343(a)(3) and 1343(a)(4), which provide for original jurisdiction in this Court of 11 all suits brought pursuant to 42 U.S.C. section 1983. Jurisdiction is
also conferred 12 by 28 U.S.C. section 1331 because claims for relief derive from the United States 13 Constitution and the laws of the United States. This Court has supplemental 14
jurisdiction over those claims of Plaintiffs based on state laws, pursuant to 28
15 U.S.C. section 1367. 16 PARTIES 17 3. At all times relevant to this Complaint, Plaintiffs were residents of the ii:i COUNTY OF SAN DIEGO, California. Plaintiff Donna
Greenspan is the mother 19 of minor Plaintiff, A.G. (a fictitious name is used herein to protect the minor's 20 privacy). At the time the incidents giving rise to the causes of action in
this 21 Complaint occurred, A.G. was 6 years old. 22 4. At all times applicable herein, the COUNTY OF SAN DIEGO was 23 and is a public entity ("County" or "County of San
Diego"). 24 5. At all times applicable herein, the SAN DIEGO HEALTH &
25 HUMAN SERVICES AGENCY ("HHSA" or "CPS") was and is a subdivision, 26 entity, or administrative arm of the COUNTY OF SAN DIEGO. 27 6. At all times applicable
herein, social worker JENNIFER WILLIAMS 28 ("Jennifer Williams" or "Williams") was an individual residing, on information
COMPLAINT FOR DAMAGES
1 and belief, in the County of San Diego, and an officer, agent, and/or employee of
2 County and HHSA. Defendant Williams is sued herein in her individual capacity.
3 7. At all times applicable herein, social worker JOSE PADILLA ("Jose
4 Padilla" or "Padilla") was an individual residing, on information and belief, in the
5 County of San Diego, and an officer, agent, and/or employee of County and R, HHSA. Defendant Padilla is sued herein in his individual capacity.
h 8. At all times applicable herein, social worker SHELLY PAULE
v.8/12/2015
v.8/12/2015
8 ("Shelly Paule" or "Paule") was an individual residing, on information and belief,
9 in the County of San Diego, and an officer, agent, and/or employee of County and
10 HHSA. Defendant Paule is sued herein in her individual capacity
11 9. At all times applicable herein, social worker DIONNE PUCKETT
12 ("Dionne Puckett" or "Puckett") was an individual residing, on information and
13 belief, in the County of San Diego, and an officer, agent, and/or employee of
14 County and HHSA. Defendant Puckett is sued herein in her individual capacity.
15 10. At all times applicable herein, social worker MIKE GREEN ("Mike
16 Green" or "Green") was an individual residing, on information and belief, in the
17 County of San Diego, and an officer, agent, and/or employee of County and
18 HHSA. Defendant Green is sued herein in his individual capacity.
19 11. Hereinafter, when referred to collectively, the Defendants in
20 paragraphs 6 through 10, inclusive, will be referred to as Social Worker
21 Defendants.
22 12. At all times applicable herein, the CITY OF SAN DIEGO was and is
23 a public entity ("City" or "City of San Diego").
24 13. At all times applicable herein, the SAN DIEGO POLICE
25 DEPARTMENT ("San Diego Police Department" or "SDPD") was and is a
26 subdivision, entity, or administrative arm of the CITY OF SAN DIEGO.
27 14. At all times applicable herein, OFFICER J. TANGREDI ("Officer
28 Tangredi" or "Tangredi"), was an individual residing, on information and belief, in
3
v.8/12/2015
v.8/12/2015
COMPLAINT FOR DAMAGES 1 the County of San Diego, and an officer, agent, and/or employee of City and
2 SDPD, with badge #3299. Defendant Tangredi is sued herein in his/her/its
3 individual capacity. Defendant Tangredi's full name is unknown to these
4 Plaintiffs, therefore, leave of court will be sought to amend this Complaint once
5 his/her/its full name has been ascertained.
6 15. At all times applicable herein, OFFICER G. AVALOS ("Officer
VA Avalos" or "Avalos"), was an individual residing, on information and belief, in the
8 County of San Diego, and an officer, agent, and/or employee of City and SDPD,
9 with badge #5323. Defendant Avalos is sued herein in his/her/its individual 10 capacity. Defendant Avalos's full name is unknown to these Plaintiffs, therefore, 11 leave of court will
be sought to amend this Complaint once his/her/its full name 12 has been ascertained. 13 16. At all times applicable herein, OFFICER T. SMITH ("Officer Smith" 14 or "Smith"), was
an individual residing, on information and belief, in the County 15 of San Diego, and an officer, agent, and/or employee of City and SDPD, with 16 badge #4888. Defendant Smith is
sued herein in his/her/its individual capacity. 17 Defendant Smith's full name is unknown to these Plaintiffs, therefore, leave of 18 court will be sought to amend this Complaint once
his/her/its full name has been 19 ascertained. 20 17. At all times applicable herein, OFFICER R. CUNANAN ("Officer 21 Cunanan" or "Cunanan"), was an individual residing, on
information and belief, in 22 the County of San Diego, and an officer, agent, and/or employee of City and 23 SDPD, with badge #4863. Defendant Cunanan is sued herein in his/her/its
24 individual capacity. Defendant Cunanan's full name is unknown to these
25 Plaintiffs, therefore, leave of court will be sought to amend this Complaint once 26 his/her/its full name has been ascertained. 27 18. At all times applicable herein, OFFICER J.
CLARK ("Officer Clark"
or "Clark"), was an individual residing, on information and belief, in the County
COMPLAINT FOR DAMAGES 1 of San Diego, and an officer, agent, and/or employee of City and SDPD, with 2 badge #4284. Defendant Clark is sued herein in his/her/its
individual capacity. 3 Defendant Clark's full name is unknown to these Plaintiffs, therefore, leave of 4 court will be sought to amend this Complaint once his/her/its full name has been
5 ascertained.
6 19. At all times applicable herein, OFFICER J. EPPERSON ("Officer 7 Epperson" or "Epperson"), was an individual residing, on information and belief, 8 in the County of San
Diego, and an officer, agent, and/or employee of City and 9 SDPD, with badge #5111. Defendant Epperson is sued herein in his/her/its 10 individual capacity. Defendant Epperson's
full name is unknown to these 11 Plaintiffs, therefore, leave of court will be sought to amend this Complaint once 12 his/her/its full name has been ascertained. 13 20. At all times
applicable herein, OFFICER WILCKEN ("Officer 14 Wilcken" or "Wilcken"), was an individual residing, on information and belief, in 15 the County of San Diego, and an officer,
agent, and/or employee of City and 16 SDPD, with badge #6019. Defendant Wilcken is sued herein in his/her/its 17 individual capacity. Defendant Wilcken' s full name is unknown to
these 18 Plaintiffs, therefore, leave of court will be sought to amend this Complaint once 19 his/her/its full name has been ascertained. 20 21. At all times applicable herein, OFFICER
v.8/12/2015
v.8/12/2015
ULOVEC ("Officer Ulovec" 21 or "Ulovec"), was an individual residing, on information and belief, in the County 22 of San Diego, and an officer, agent, and/or employee of City and
SDPD, with 23 badge #5323. Defendant Ulovec is sued herein in his/her/its individual capacity. 24 Defendant Ulovec's full name is unknown to these Plaintiffs, therefore, leave of
25 court will be sought to amend this Complaint once his/her/its full name has been 26 ascertained. 27 22. At all times applicable herein, OFFICER A. JOHNSON ("Officer 28
Johnson" or "Johnson"), was an individual residing, on information and belief, in
1 the County of San Diego, and an officer, agent, and/or employee of City and
2 SDPD, with badge #3816. Defendant Johnson is sued herein in his/her/its
3 individual capacity. Defendant Johnson's full name is unknown to these
4 Plaintiffs, therefore, leave of court will be sought to amend this Complaint once
5 his/her/its full name has been ascertained.
6 23. Hereinafter, when referred to collectively, the Defendants in
7 paragraphs 14 through 22, inclusive, will be referred to as Police Defendants.
8 24. Defendants DOES 1 through 50 are sued as fictitious names, their
9 true names and capacities being unknown to Plaintiff. When ascertained, Plaintiff
10 will amend this Complaint by inserting their true names and capacities. Plaintiff is
11 informed and believes and thereon alleges that each of the fictitiously named
12 Defendants is responsible in some manner for the occurrences herein alleged, and
13 those Defendants proximately caused, are responsible for and/or legally liable for
14 Plaintiff's damages as herein alleged. Each reference in this complaint to
15 "Defendant," "Defendants," or a specifically named Defendant refers to and
16 includes all Defendants sued under fictitious names. On information and belief,
17 Plaintiff makes all allegations contained in this Complaint against all Defendants,
v.8/12/2015
v.8/12/2015
18 including DOES 1 through 50.
19 25 Whenever in this Complaint reference is made to any act of Defendants, such allegations shall be deemed to mean all named Defendants and DOES 1 through 50, or their
officers, agents, managers, representatives,
22 employees, heirs, assignees, customers, tenants, did or authorized such acts while
23 actively engaged in the operation, management, direction or control of the affairs
24 of Defendants and while acting within the course and scope of their duties, except
25 as specifically alleged to the contrary.
26 26. At all times herein mentioned and with respect to the specific matters
27 alleged in this Complaint, Plaintiff is informed and believes that each Defendant
28 (including DOES 1 through 50), was and is the agent, employee, principal,
COMPLAINT FOR DAMAGES 1 employer and/or co-conspirator of each of the remaining defendants and/or vice 2 versa. In addition, Plaintiffs are informed and believe and on such
basis allege 3 that the defendants named hereinabove, and each of them, are responsible in some 4 manner for the occurrences herein alleged, and that each of the above named
5 defendants conspired with, directed, ratified, approved, aided, abetted, and/or 6 jointly collaborated with each of the remaining defendants in committing the acts
7 herein alleged, and/or failed to prevent such acts when having the power and/or
duty to do so, with full knowledge of said acts.
9 27. Plaintiffs are informed and believe and on such basis allege that each 10 of the above named defendants was acting under color of law in committing the 11 acts herein alleged,
and that in doing the things herein alleged defendants, and 12 each of them, were acting within the course and scope of their duties as employees 13 or agents of each other. 14
COMMON ALLEGATIONS 15 28. In March 2003, Plaintiff Donna Greenspan married Howard 16 Greenspan, her high school sweetheart. Donna and Howard waited until after 17
college to get married, when they were ready to start a family. Naturally, both IN Donna and Howard were exceedingly pleased when they learned that Donna was 19 pregnant. In the
fall of 2005, due to birth complications, an emergency C-section 20 had to be performed, and A.G. was born. Doctors warned Donna and Howard, 21 that having another child could
be very risky, due to the complications suffered 22 during A.G.'s pregnancy. Donna and Howard therefore took great care in 23 nurturing and providing a safe environment for their
only child - A.G. 24 29. By the time he was six years old, A.G., a kindergartner, had
25 developed into an intelligent, sociable and well-adjusted boy. The family had long 26 since bonded, and, together, Donna, Howard, and A.G. constituted a family unit, 27 entitled to
protection under the constitutions of the United States and the State of 28 California, and their related laws. During the day, Donna worked part time as a
7
v.8/12/2015
v.8/12/2015
COMPLAINT FOR DAMAGES 1 member of a business continuity and emergency response team. When Donna had 2 to go to work, she would often rely on Howard, her mother, her
mother-in-law, or 3 a babysitter to take care of A.G. 4 30. On February 22, 2012, while returning from Anaheim to San Diego,
5 Donna placed a call to Howard to tell him she would be back home soon. At the 6 time Donna placed the call, she was less than an hour away from home. During 7 the telephone
conversation, Donna heard a loud banging noise on the other side of 8 the phone, followed by a disconnection of the phone call. Afterwards, Donna 9 placed numerous calls to
Howard, but could no longer reach him by phone. 10 Donna fretted over why Howard would not pick up or return her calls, and worried 11 about her son, as she rushed home. 12 31.
When Donna arrived home, it appeared that the entire house had been 13 ransacked by a team of burglars. Howard and A.G. were nowhere to be found. 14 Donna immediately dialed
9-1-1, and tried her best to control a rising tide of panic 15 as she informed the dispatcher of what she had seen and heard. That, is when 16 Donna saw a business card on the table,
belonging to HHSA social worker, 17 Jennifer Williams. Donna quickly ended the call with the emergency line, and 18 dialed social worker Jennifer Williams. Social worker Williams
informed Donna 19 that she "removed" A.G. and placed him in the care of the Polinsky Children's 20 Center. When Donna demanded to know why her child had been seized, and why
21 the child's mother, Donna, had not been notified, social worker Williams refused 22 to provide an explanation. Only later did Donna learn what happened. 23 32. On February 22,
2012, at approximately 4:00 p.m., while A.G.'s 24 mother was away from home, members of the San Diego Police Department,
25 including, at least, J. Tangredi #3299, G. Avalos #5323, T. Smith #4888, R. 26 Cunanan #4863, J. Clark #4284, and J. Epperson #5111, Wilcken #6019, Ulovec 27 #6767, and A.
Johnson #3816, barged into the Greenspan residence, with guns 28
1 drawn, to execute a search warrant. A.G. was home with his father, Howard 2 Greenspan. 3 33. Members of the San Diego Police Department handcuffed Howard, 4 seated him in a
chair, and began to secure the premises by force of arms. During
5 the search, officers pointed their loaded firearms at both Howard and A.G., with 6 their fingers on the triggers of their weapons. After the officers secured the home,
7 they continued to point their loaded weapons at both Howard and A.G. (a little 8 boy), and began to question Howard harshly. Howard pleaded with the SDPD
9 officers to stop pointing their guns at his six year old little boy, or to at least take
10 their fingers off the triggers of their weapons. However, the officers refused to do
11 so, citing department policy to hold all residents at gunpoint during search and 12 seizure operations. Yet, at no point in time, did A.G. ever represent a threat of 13 immediate
physical harm to any of the police officers in the home. Nor, did the 14 little child, A.G., resist arrest or attempt to escape police custody. Only after 15 Howard put his own head to the
barrel of the gun, pointed at his son, and indicated 16 that he would not cooperate if they continued putting A.G.'s life at risk, did the 17 officers eventually stop targeting A.G. with
their loaded weapons. Plaintiffs are 18 informed and believe and thereon allege that officers held A.G. at gunpoint, as
19 hereinabove alleged, for approximately an hour or more. 20 34. The officers that pointed their loaded firearms at A.G. acted 21 recklessly, by undertaking a completely unnecessary
and unreasonable risk of 22 inflicting grievous bodily injury or death to A.G., a six year old little boy who 23 posed no safety threat at all. Each such officer did so with full knowledge
of the 24 reckless nature of his or her actions, and with the malicious and bad faith intent of
25 coercing Howard to unquestioningly obey their commands and/or to secure a 26 confession to a crime under duress, i.e., the threat of grievous harm to his child 27 A.G. 28 III 9
v.8/12/2015
v.8/12/2015
1 35. Despite witnessing these abhorrent, repugnant, and unlawful actions,
2 the other police officers on scene, who could have stopped their fellow officers
3 from pointing their weapons at A.G., failed to do so. Their failure to intercede
4 and/or prevent the continuing deprivation of Constitutional rights was
5 inexcusable, unjustified, and in gross dereliction of their sworn duties as police
6 officers.
7 36. Sometime after the police entered the home, A.G.'s regular babysitter
8 arrived on the scene to babysit A.G. On information and belief, the babysitter
9 offered to take temporary custody of the child until his mother, Donna, arrived -
10 Howard explained that Donna would be home in about twenty minutes. This was
11 an arrangement Howard Greenspan indicated he consented to as A.G.'s father. San
12 Diego Police Officers refused, and instead called the San Diego County Health
13 and Human Services Agency ("HHSA") to request the dispatch of a social services
14 agent to seize the child.
15 37. Shortly thereafter, HHSA social services agent, Jennifer Williams,
16 arrived on scene. Although she, too, was advised that Donna was on her way
17 home, and that A.G.' s babysitter was willing to take temporary care of A.G. until
18 Donna's arrival, Jennifer Williams jointly collaborated with the Police Defendants
19 by agreeing to and/or concurring with the decision to seize A.G. and transport him
20 to Polinsky Children's Center, a facility under the ownership, management,
21 stewardship and/or control of the County of San Diego. None of the Defendants
v.8/12/2015
v.8/12/2015
22 bothered to contact A.G.'s mother, Donna, or obtain her permission to seize A.G.
23 Social services agent, Jennifer Williams, with the joint collaboration of San Diego
24 police officers, snatched A.G. from the care and custody of Donna Greenspan,
25 without notice or parental consent, in the absence of exigent circumstances, and
26 without judicial authorization. Said seizure was unlawful and in violation of
27 Plaintiffs' Due Process rights, familial association rights, liberty interests, and
28
10
COMPLAINT FOR DAMAGES 1 familial privacy rights, arising under and guaranteed by the First, Fourth, and 2 Fourteenth Amendments of the United States Constitution, among
others. 3 38. Two days later, on February 24, 2012, County social services agent, 4 Jose Padilla, filed a Juvenile Dependency Petition, in relation to the May 22, 2012
detention of A.G. The petition was signed under penalty of perjury in that the
statement, "I declare under penalty of perjury under the laws of the State of 7 California that the foregoing and all attachments are true and correct," appears at 8 the end of the petition,
directly above Jose Padilla' s signature. 9 39. The petition specifically sets out allegations against both parents of 10 A.G. under Welfare and Institutions Code (WIC) §300(b). The
"facts" set out in 11 the petition are false, despite having been verified by Jose Padilla under penalty of 12 perjury; and, he knew at the time he verified the petition that the statements
13 contained therein were false either directly or by omission of critical known 14 exculpatory facts. These include, but are not limited to, the fact that (1) possession 15 of the
marijuana in question was both legal and authorized under both State and M local law, and (2) the marijuana was inaccessible to A.G. Moreover, as described 17 above, Plaintiffs are
informed and believe and thereon allege that at the time Jose 18 Padilla filed the Juvenile Dependency Petition he knew, or had reason to know, 19 the material allegations of the
petition were false, and/or suppressed known 20 exculpatory evidence that was material to the outcome of the case. 21 40. At the time the Juvenile Dependency Petition was filed,
County of 22 San Diego and HHSA were in possession of no specific, articulable evidence 23 giving rise to a reasonable suspicion that A.G. had been abused or neglected by 24
Donna, or that A.G. was in imminent danger of abuse or neglect by Donna.
25 Moreover, and perhaps more importantly the petition, attested to under penalty of 26 perjury, contains false statements of fact which were, on information and belief, 27 known by
Jose Padilla to be false at the time he made them. 28 III
11
COMPLAINT FOR DAMAGES 1 41. Unfortunately, within days after the unlawful seizure, A.G. was 2 sexually molested at the Polinsky Children's Center while under the care and 3
supervision of the County of San Diego. Of course, the County did not itself
4 disclose this to Donna. Rather, on February 25, 2012, during a monitored
5 telephone call between Donna and A.G., A.G. revealed that something "very bad" 6 had happened to him. When Donna pressed her son for details, A.G. became very
v.8/12/2015
v.8/12/2015
7 upset, repeating that it was very bad and that "I didn't want to do it." The 8 monitoring agent(s) or employee(s) of County suddenly disconnected the phone 9 call, preventing Donna
from obtaining additional information. 10 42. Alarmed, Donna immediately rushed off to Polisnky Children's 11 Center to find out what had happened. Social services agents informed
Donna that 12 they had already interviewed A.G. and that, notwithstanding A.G.'s immense 13 distress, "it was just a kiss." (Social services agents intentionally concealed the 14 fact
that it was "just a kiss" to another child's genital area, and that tongue to 15 tongue kissing was also involved.) Said agents informed Donna that A.G. had 16 been provided a new
roommate and that social services agents would monitor the 17 situation. Donna was allowed to see A.G. for only a few minutes but was 18 expressly prohibited from discussing the
incident. Donna left the Polinsky 19 Children's Center overcome with fright, anxiety, and fear for the safety of her 20 child, because the persons exercising custody and control of A.G.
would not tell 21 her what had happened, prevented her from speaking with her child, and were 22 obviously covering something up. 23 43. When Donna informed her husband, what
had transpired that day, Mr. 24 Greenspan immediately contacted the child abuse hotline to report the incident.
25 This all happened on February 25, 2012. 26 44. Donna did not discover all of the sordid details until on or about 27 March 2, 2012. On March 2, 2012, while Donna was taking
A.G. from soccer to 28 go eat, they made an emergency restroom stop. When Donna went to check A.G.'s
12
1 pants to see whether he had to change, A.G. became extremely upset. A.G. stated
2 that it was his private area and he didn't like to have people touch him there.
3 Because the boy was so upset, Donna decided to wait awhile before asking him
4 further questions. Later that evening, when Donna asked A.G. what the earlier
5 episode was all about, A.G. became very distraught and said it was very bad and
6 he didn't want to do it - that "he made me do it."
7 45. Having received no response to the child abuse report, made on
8 February 25, 2012, Donna immediately placed another call to the child abuse
9 hotline and contacted her attorney. Her husband also contacted the San Diego
10 Police Department to determine how best to report the incident to obtain a
11 response.
12 46. On March 5, 2012, Donna filed a formal police report with the San
13 Diego Police Department. Police officers came to Donna's home and interviewed
v.8/12/2015
v.8/12/2015
14 A.G. Afterwards, Donna scheduled an appointment with Chadwick Center for
15 Children & Families for a videotaped forensic interview. Plaintiffs are informed
16 and believe and thereon allege that, but for Donna and her husband taking action,
17 the County would have buried the incident and concealed the true facts of what
18 happened to A.G. from his parents, and were in fact nearly successful in doing so.
19 47. Based on the police department's investigation, Donna learned that,
20 during A.G.'s unlawful detention at Polinsky Children's Center, a substantially
21 older boy that the County assigned as A.G.'s roommate sexually molested A.G.
Said molestation and sexual battery included, but was not limited to, the older boy
23 forcing A.G. to kiss him with his tongue, forcing A.G. to kiss the older boy on his
24 penis over the clothes, and the older boy kissing A.G. on his penis over his
25 clothes. The perpetrator threatened A.G. that, if A.G. ever told anyone what
26 happened, he would kill A.G. and harm his mother.
27 48. Plaintiffs are informed and believe and thereon allege that the
28 County, by and through its agents and employees, knew or had reason to know
13
I that the perpetrator of said molestation was likely to commit sexual battery or had
2 a history of sexual abuse, and as such, represented a danger to younger children.
3 Despite this knowledge, County employees failed to use reasonable care to prevent
4 foreseeable harm to A.G. Further, as the person assuming responsibility for the
5 care and custody of children at Polinsky Children's Center, including the

v.8/12/2015
v.8/12/2015
6 perpetrating child, the County had, at all relevant times, the ability and the duty to
7 exercise control over the child's dangerous propensities, but failed to do so. The
8 failure to exercise such control was inexcusable.
9 49. After the referenced molestation occurred, the County placed A.G.
10 with a different roommate, where A.G. was, again, immediately battered. A.G.'s
11 second roommate ripped a stuffed animal from A.G.'s hands and violently
12 punched him in the face with it. A.G. never consented to such harmful or
13 offensive contact. Consequently, A.G. was harmed, both physically and
14 emotionally. Again, the County failed to use reasonable care to prevent harm to
15 A.G., despite their continuing duty to act reasonably to protect A.G., and despite
16 the fact that A.G. had already been seriously harmed while in the County's
17 custody. Plaintiffs are informed and believe that the County also knew or had
18 reason to know of the second roommate's violent propensities, and, as such, a
19 reasonable person standing in the County's shoes would not have placed A.G.
20 with him. But for the County's failure to exercise reasonable care, A.G. would not
21 have been battered at the hands of another juvenile, which harm was foreseeable.
22 50. As the proximate and actual cause of the County's failure to exercise
23 reasonable care, A.G. has been emotionally damaged in that he continues to suffer
24 from severe fright, worry, apprehension, and fear. A.G. continues to experience
25 nightmares concerning the abuse he sustained and will require long term therapy
26 to undo the substantial harm he has suffered. It is unknown at this time whether
27 A.G. will ever fully recover from the emotional harm he has suffered at the hands
v.8/12/2015
v.8/12/2015
28 of these defendants.
14
51. On or about February 27, 2012, social services agents, Jose Padilla
2 and Shelly Paule, filed a Detention Report, purporting to give "evidence"
3 supporting the false allegations contained in the Juvenile Dependency Petition,
4 mentioned above. Plaintiffs are informed and believe and thereon allege that said
5 social services agents signed the report and submitted it to the juvenile
6 dependency court with the intention that it be accepted into evidence and relied
7 upon by the court in rendering its decisions. Plaintiffs are informed and believe
8 and on such basis allege that it is, and was, the duty of Jose Padilla, Shelly Paule,
9 and all HHSA social services agents to accurately and fully report to the Juvenile
10 Court all evidence discovered during dependency investigations, including
11 exculpatory evidence and conflicting evidence favorable to the parents, and that
12 any reasonable social services agent in similar circumstances would know it is
13 unlawful to fail to adhere to such standard. Social services agents, including Jose
14 Padilla and Shelly Paule, breached their duty by including numerous lies,
15 falsifying evidence, and suppressing exculpatory information in the County's
1101 Detention Report. This includes, but is not limited to, the fact that (1) possession
17 of the marijuana in question was both legal and authorized under both State and
18 local law, and (2) the marijuana was at all times totally inaccessible to A.G. They
19 also failed to mention that A.G. had been sexually battered in Defendants' care,
v.8/12/2015
v.8/12/2015
20 although having been apprised of the incident on February 25, 2012.
21 52. Despite the lack of any evidence that A.G. had suffered any abuse, or
22 that Donna represented any danger to A.G., whatsoever, the County continued to
23 detain A.G. County social services agents demanded that Donna file for a
24 Temporary Restraining Order against her husband, Howard, and to divorce him if
25 she wished to regain custody of her child. Plaintiffs are informed and believe and
26 on such basis allege that the San Diego County HHSA, and its social services
27 agents have a well established policy, custom, usage and practice of making
28 similar such unlawful and outrageous demands of parents. Undeterred by
15
demonstrable evidence that A.G. was better off in the care of his mother than in 2 the dangerous hands of County agents, the County and the Social Worker 3 Defendants maliciously
refused to return A.G. to his mother and/or family home 4 and/or request immediate dismissal of the juvenile case.
5 53. On or about March 21, 2012, the County presented the parents of 6 A.G. with a dilemma: either sign a Waiver of Rights, foregoing several important
7 rights, and sign off on a post-dependency Case Plan, in order to regain immediate 8 custody of A.G.; or, take their chances at a full blown trial, which would take
9 place several weeks - or months later. Pursuant to the deal offered, no plea would 10 be entered, and the County would make a recommendation that dependency be 11 terminated.
However, under the Case Plan, A.G.'s parents would have to give up 12 important constitutional rights, and submit to continued involvement by HHSA in 13 their lives. Given that her
child, A.G., had already been battered at least twice 14 during the short time period that the County had custody of him, and the County's 15 demonstrable willingness to achieve
nefarious ends through trickery and deceit, 16 Donna could not afford to take the chance of losing her child into the "system." 17 She therefore signed the deal. In so doing, she gave up
the (1) right to a trial or 18 hearing; (2) the right to see and hear witnesses who testify; (3) the right to 19 cross-examine witnesses, the social worker or probation officer who prepared
the 20 report, and the persons whose statements are contained in the report; (4) the right 21 to testify on her own behalf and present her own evidence and witnesses; and (5) 22 the
right to assert any privilege against self-incrimination in the proceeding. 23 54. Pursuant to said coerced deal, on or about March 21, 2012, the 24 County, by and through its agents
Dionne Puckett and Mike Green, submitted a
25 Jurisdiction/Disposition Report recommending that dependency be terminated and 26 all further hearings vacated. Notwithstanding said recommendation, the 27
Jurisdiction/Disposition Report contained numerous lies, falsified evidence, and 28 omissions of exculpatory information. In addition, due to the abovementioned
16
v.8/12/2015
v.8/12/2015
COMPLAINT FOR DAMAGES 1 Waiver of Rights, Donna was incapacitated from addressing the lies, falsified 2 I evidence, and omissions of exculpatory facts. 3 55. On or about
March 21, 2012, the County returned A.G. to the care 4 I and custody of his parents.
5 56. Plaintiffs timely filed Cal. Govt. Code §910 Government Claims with
6 the County of San Diego and City of San Diego on July 11, 2012. The County of
7 San Diego provided notice rejection of claim on September 27, 2012. See Exhibit 8 "A". The City of San Diego, likewise, provided notice of rejection of claim in a
9 letter dated August 15, 2012. See Exhibit "B" 10 FIRST CLAIM FOR RELIEF 11 FOR VIOLATION OF FEDERAL CIVIL RIGHTS (42 U.S.C. § 1983) 12 COUNT 1 13
(Familial Association, Privacy, Warrantless Seizure of Child/Unlawful 14 Detention; By All Plaintiffs Against Social Worker Defendants; Police 15 Defendants; and DOES 1
through 50, Inclusive) 16 57. Plaintiffs reallege, and incorporate herein as if set forth in full, all of 17 the preceding paragraphs. 18 58. Plaintiffs, Donna Greenspan and A.G., are
individuals and citizens of 19 the United States, protected by 42 U.S.C. § 1983. 20 59. Plaintiffs are informed and believe and thereon allege that the right to 21 familial association
guaranteed under, without limitation, the First, Fourth, and 22 Fourteenth Amendments is "clearly established" such that a reasonable social 23 services agent in Defendants' situation
would know it is unlawful to remove a 24 child from the care, custody, and control of its parents or to question, threaten,
25 examine, or search a child in the absence of exigent circumstances without first 26 obtaining a warrant to do so. 27 60. Defendants, and each of them, had, at all times relevant
herein, an 28 II affirmative duty and obligation to recognize and conduct themselves in a manner
17
that confirms, provides for, and does not violate the protections guaranteed
Plaintiffs under the United States Constitution, including those under the
3 Fourteenth Amendment, to include without limitation, the protection of parental
4 rights, the right to privacy, family integrity and the right to familial relations.
5 61. Defendants, and each of them, were acting under color of state law
6 when they acted, or knew and agreed and thereby conspired, to violate Plaintiffs'
7 civil rights by, but not limited to, removing, detaining, and continuing to detain,
8 A.G. from the care, custody, and control of his mother, Donna Greenspan, without
9 proper or just cause and/or authority, thereby violating Plaintiffs' rights under the
10 First and Fourteenth Amendment, and as to A.G., rights additionally found under
v.8/12/2015
v.8/12/2015
11 the Fourth and Fourteenth Amendments of the United States Constitution.
12 62. None of the Defendants obtained nor sought a protective custody
13 warrant prior to seizing A.G., nor, did any of the Defendants seek or obtain
14 Plaintiff Donna Greenspan' s consent to remove A.G. Further, none of the
15 Defendants had specific, articulable evidence to support any reasonable basis for
16 believing that A.G. was in immediate danger of sustaining serious bodily injury or
17 death within the time it would have taken to obtain a protective custody warrant.
IN Indeed, Plaintiffs are informed and believe and thereon allege that Defendants, and
19 each of them, purposefully failed to seek a custody warrant, knowing that
20 insufficient grounds or evidence existed to support such application, and/or, as
21 detailed in Plaintiffs' Second Claim for Relief, below, as a result of an
22 unconstitutional policy, custom, or practice of never obtaining warrants prior to
23 seizing children. Reasonable and less intrusive alternative means existed to secure
24 both Plaintiffs' civil rights and security, without the warrantless removal of A.G.,
25 yet these defendants, and each of them, intentionally failed to pursue or even
26 investigate such less intrusive alternative means.
27 63. As to Plaintiff, A.G., Defendants also violated his civil rights by
28 failing to adhere to the requirements of the Fourth Amendment of the United
18
I States Constitution when they seized, detained, questioned, threatened, examined, 2 and/or searched A.G. without the consent of him or his mother, Plaintiff Donna 3 Greenspan, and
without obtaining a prior court order or authorizing warrant.
v.8/12/2015
v.8/12/2015
4 Again, no exigent circumstances existed, which might excuse said failure to obtain
5 parental consent or a court order prior to said seizure, in that Donna did not 6 present an imminent danger of inflicting serious bodily injury to A.G. within the 7 time it would take to
obtain a court order or warrant. 8 64. Said conduct therefore also constitutes a substantive violation of
9 Plaintiffs' rights guaranteed by the First, Fourth, and Fourteenth Amendments to
10 the United States Constitution. Also, by unlawfully seizing and removing A.G. 11 from Plaintiff Donna's care, or conspiring to do the same, without first providing 12 adequate
notice or an opportunity to be heard, Defendants, and each of them, 13 violated Plaintiffs' procedural due process rights.
14 65. Defendants committed these unconstitutional acts without proper 15 justification or authority, and without probable cause, exigency, or court order. 16 (See, Mabe v. County of
San Bernadino (2001) 237 F.3d 1101.) 17 66. Defendants, and each of them, maliciously violated and/or conspired 18 to violate the civil rights of Plaintiffs, including violation of
Plaintiffs' rights
19 found in the Fourteenth Amendment of the United States Constitution, by, but not 20 limited to, removing, detaining, and continuing to detain the minor, A.G., from the 21 care,
custody, and control of his mother, without proper or just cause and/or 22 authority, and by use of coercion, duress, or fraud to obtain evidence. Said acts 23 were taken deliberately,
with callous or reckless indifference to the substantial 24 rights of Plaintiffs, or fueled by an evil motive or intent.
25 67. As a direct and proximate result of these Defendants' misconduct, 26 Plaintiffs have suffered, and will continue to suffer, general and special damages 27 according to proof at
trial, including but not limited to, physical and/or mental 28 anxiety and anguish, among other things. 19
COMPLAINT FOR DAMAGES 1 68. The wrongful and despicable conduct of Social Worker Defendants 2 and Police Defendants, and each of them, as herein alleged was
intentional, done 3 with malice, oppression, or fraud, with a callous or reckless indifference to the 4 rights of Plaintiffs, or motivated by an evil intent, such that Plaintiffs are entitled
5 to recover punitive damages in accordance with law and subject to proof at trial.
6 COUNT 2 7 (Familial Association / Right to Be Free From Dishonesty of Public 8 Employees in Juvenile Court Proceedings, i.e. Perjury, Fabrication of
9 Evidence, Suppression of Exculpatory Evidence; By All Plaintiffs 10 Against Social Worker Defendants; and DOES 1 through 50, inclusive) 11 69. Plaintiffs reallege, and
incorporate herein as if set forth in full, 12 paragraphs 1 through 56, inclusive. 13 70. Plaintiffs are informed and believe and thereon allege that, at all times 14 relevant herein, there
existed a clearly established due process right not to be 15 subjected to false accusations on the basis of false evidence that was deliberately 16 fabricated by the government, such that
a reasonable social services agent in 17 Defendants' situation would know it is unlawful to lie, fabricate evidence, and/or 18 suppress material exculpatory evidence in court reports or
any other document 19 filed with the juvenile court to influence judicial decision making. 20 71. In fact, Defendants, and each of them, had the affirmative and self 21 evident duty to
be truthful, accurate, and complete in petitions, reports, and 22 documents submitted to a sovereign Court with power to adjudicate substantial 23 rights, including parental rights, and
to refrain from using improper and deceptive 24 means to obtain judicial sustention of recommendations seeking to disparage
25 Plaintiffs' liberty interests. 26 72. In doing the things alleged hereinabove, Defendants, and each of 27 them, were acting under color of state law when they acted, or knew and
agreed
and thereby conspired, to knowingly present false allegations, false or coerced
20
v.8/12/2015
v.8/12/2015
I testimony, fabricated evidence, and/or suppress exculpatory evidence, before the
2 Juvenile Court, thereby violating Plaintiffs' rights found in the First and
3 Fourteenth Amendment to the United States Constitution and breaching their duty
4 to Plaintiffs.
5 73. As a direct and proximate result of these Defendants' violations, and
6 in accordance with 42 U.S.C. § 1983, Plaintiffs' civil rights have been violated in
7 that he has suffered, and will continue to suffer, general and special damages in an
8 amount not yet ascertained but which shall be shown according to proof at trial.
9 74. The wrongful and despicable conduct of Social Worker Defendants,
10 and each of them, as herein alleged was intentional, done with malice, oppression,
11 or fraud, with a callous or reckless indifference to the rights of Plaintiffs, or
12 motivated by an evil intent, such that Plaintiffs are entitled to recover punitive
13 damages in accordance with law and subject to proof at trial.
14 COUNT 3
15 (Fourth and Fourteenth Amendment - Failure to Protect; By Plaintiff, A.G.,
16 Against Social Worker Defendants; and DOES 1 through 50, inclusive)
17 75. Plaintiffs reallege, and incorporate herein as if set forth in full,
18 paragraphs 1 through 56, inclusive.
19 76. Plaintiff is informed and believes and thereon alleges once the state
20 assumes wardship of a child, the state owes the child, as part of that person's
21 protected liberty interest, reasonable safety and minimally adequate care. At all
v.8/12/2015
v.8/12/2015
22 times applicable herein, said liberty interest and duty of the state was "clearly
23 established" such that any reasonable social worker would know that a small child,
24 such as A.G., should not be placed in situations where it was reasonably
25 foreseeable that the child would be sexually molested or physically battered by
26 dangerous individuals. Plaintiff is further informed and believes and thereon
27 alleges that the social workers knew or should have known that A.G. was being
28
21
COMPLAINT FOR DAMAGES 1 placed in a situation where he could be sexually molested or physically battered
by dangerous individuals. 3 77. Defendants were acting under color of state law when they breached 4 their duties to A.G., by confining him with an older child of known dangerous
5 propensities and in the absence of adequate supervision. Said public employees 6 did so without proper justification or excuse. Further, the actions of said public 7 employees were
taken with deliberate indifference to Plaintiffs rights. 8 78. By these actions, the San Diego and its agents interfered and/or
attempted to interfere with A.G.'s constitutionally protected liberty interests, and 10 did so without excuse or justification. 11 79. As the direct and proximate result of the
aforementioned actions of 12 County of San Diego agents, Plaintiff has suffered, and will continue to suffer, 13 physical, mental, and emotional injury, all to an extent and in an
amount subject to 14 proof at trial. Plaintiff has also incurred, and will continue to incur, attorneys fees, 15 costs and expenses, including those authorized by 42 U.S.C. section 1988, to
an 16 extent and in an amount subject to proof at trial. 17 80. On information and belief, the aforementioned Social Worker
FI Defendants, and each of them, acted with malice and with the intent to cause 19 injury to Plaintiff, or acted with a willful and conscious disregard of the rights of 20 Plaintiff in a
despicable, vile, and contemptible manner. Therefore, Plaintiff is 21 entitled to an award of punitive damages for the purpose of punishing said Social 22 Worker Defendants, and to
deter them and others from such conduct in the future. 23 COUNT 4 24 (Fourth and Fourteenth Amendment - Excessive Use of Force
25 By Plaintiff, A.G., 26 Against Police Defendants; and DOES 1 through 50, inclusive) 27 81. Plaintiffs reallege, and incorporate herein as if set forth in full, 28 paragraphs 1 through
56, inclusive.
22
COMPLAINT FOR DAMAGES I 82. Plaintiff is informed and believes and thereon alleges that the right of 2 a young child to be free of the use of excessive force by a police officer
is "clearly CC established," such that a reasonable police officer in the above mentioned public
4 employees' situation would know it is unlawful to point, and to keep pointed, a
v.8/12/2015
v.8/12/2015
5 loaded weapon at an unarmed six year old child's face in the circumstances
6 mentioned above.
7 83. Commencing on February 22, 2012 and continuing through the 8 present, City of San Diego public employees, including, without limitation,
9 Defendants, Tangredi, Avalos, Smith, Cunanan, Clark, Epperson, Wilcken, 10 Ulovec, and Johnson, were acting under color of state law when they acted, 11 agreed, and/or
conspired to unlawfully point loaded guns at A.G., or failed to 12 prevent the same. Said public employees did so without proper justification or 13 authority, and without probable
cause that the minor, A.G., presented a danger to 14 the officers' safety. Further, the actions of said public employees were taken with
15 deliberate indifference to Plaintiffs rights. 16 84. Said City of San Diego public employees maliciously conspired to 17 violate the civil rights of Plaintiff, including violation of the
Plaintiff's rights 18 found in the Fourth and Fourteenth Amendment of the United States Constitution, 19 by, but not limited to, using excessive force to terrorize and seize the child
A.G., 20 which was greater than was reasonable under the circumstances. 21 85. By these actions, the City of San Diego and its agents interfered 22 and/or attempted to interfere with
Plaintiffs constitutional rights under the Fourth 23 Amendment, as well as those rights under applicable California Law, rising to the 24 level of a constitutionally protected right. Said
actions constitute an inexcusable
25 deprivation of his liberty interests under the Fourth and Fourteenth Amendments. 26 86. As the direct and proximate result of the aforementioned actions of 27 City of San Diego
agents, Plaintiff has suffered, and will continue to suffer, 28 physical, mental, and emotional injury, all to an extent and in an amount subject to
23
COMPLAINT FOR DAMAGES I proof at trial. Plaintiff has also incurred, and will continue to incur, attorneys fees,
FA costs and expenses, including those authorized by 42 U.S.C. section 1988, to an 3 extent and in an amount subject to proof at trial. 4 87. On information and belief, the
aforementioned Police Defendants,
5 and each of them, acted with malice and with the intent to cause injury to Plaintiff, 6 or acted with a willful and conscious disregard of the rights of Plaintiff in a
7 despicable, vile, and contemptible manner. Therefore, Plaintiff is entitled to an 8 award of punitive damages for the purpose of punishing said Police Defendants, 9 and to deter them
and others from such conduct in the future. 10 SECOND CLAIM FOR RELIEF 11 FOR MONELL-RELATED CLAIMS 12 COUNT 1 13 By All Plaintiffs 14 Against County of
San Diego; Nick Macchione (in his official capacity only); 15 and DOES 1 through 50, inclusive 16 88. Plaintiffs reallege, and to the extent applicable, incorporate herein as 17 if
set forth in full, each of the foregoing paragraphs. 18 89. Defendant County of San Diego, including through its HHSA entity, 19 is a "person" within the meaning of 42 U.S.C. § 1983
and subject to Monell 20 liability. Monell v. Dept. of Social Services (1978) 436 U.S. 658. Defendants, and 21 each of them, acted under color of state law when committing the acts
alleged 22 herein, in violation of Plaintiffs' rights. 23 90. Defendant County of San Diego, including through its entity HHSA, 24 and those Defendants sued in their official capacity
who had supervisory and/or
25 policy making authority, had a duty to Plaintiffs Donna Greenspan and A.G. at all 26 times to establish, implement and follow policies, procedures, customs and/or 27 practices
(hereinafter referred to as "policy" or "policies") which confirm and 28 provide the protections guaranteed Plaintiffs under the United States Constitution,
24

v.8/12/2015
v.8/12/2015
I including those under the First and Fourteenth Amendments, to include without 2 limitation, the protection of the right to familial relations; the right to privacy; the 3 right not to be
defamed or stigmatized; the right to be free of governmental 4 deception, trickery, fabrication of evidence, and suppression of exculpatory
5 evidence in juvenile dependency proceedings; and the right to procedural due
6 process. Said defendants also had a duty to use reasonable care to select, assign,
7 supervise, train, control and review the activities of all their agents, officers, 8 employees and those acting under them, including within HHSA, so as to protect
9 these constitutional rights; and to refrain from acting with deliberate indifference 10 to the constitutional rights of Plaintiffs in order to avoid causing the injuries and 11 damages
alleged herein. 12 91. Plaintiffs are informed and believe and thereon allege that as the 13 Director of HHSA, Nick Macchione, was at all times relevant herein, possessed of 14 final
policymaking authority in that the County Board of Supervisors delegated 15 such power and responsibility to them, including but not limited to the
16 responsibility to set policies and priorities for HHSA and the supervision and 17 management of staff performing all child welfare services. 18 92. Based on the duties charged to
County of San Diego, including the
19 nature of its work relating to juvenile dependency proceedings, County of San 20 Diego and Nick Macchione knew or should have known of the obvious need to 21 establish
customs, policies, and practices required to protect the aforementioned 22 civil rights of parents and their children. 23 93. Defendant County of San Diego, including through its entity
HHSA, 24 established and/or followed policies, procedures, customs, and/or practices which
25 policies were the moving force behind the violations of Plaintiffs' constitutional 26 rights, including those under the Fourth and Fourteenth Amendments, by, but not 27 limited to:
28
25
COMPLAINT FOR DAMAGES 1 a. the policy of detaining and/or removing children from their family 2 and homes without exigent circumstances (imminent danger of 3 serious
bodily injury), court order and/or consent; 4 b. the policy of removing children from their family and their homes
5 without first obtaining a warrant when no exigency exists; 6 C. the policy of examining children without exigency, need, or proper
7 court order, and without the presence and/or consent of their parent or 8 guardian; 9 d. the policy of removing and detaining children, and continuing to 10 detain them for an
unreasonable period after any alleged basis for 11 detention is negated; 12 e. the policy of using trickery, duress, fabrication and/or false testimony 13 and/or evidence, and in failing to
disclose exculpatory evidence, in 14 preparing and presenting reports and court documents to the Court, 15 causing an interference with parental rights, including those as to 16
familial relations; 17 f. by acting with deliberate indifference in implementing a policy of
inadequate training and/or supervision, and/or by failing to train 19 and/or supervise its officers, agents, employees and state actors, in 20 providing the constitutional protections
guaranteed to individuals, 21 including those under the Fourth and Fourteenth Amendments, when 22 performing actions related to child abuse and dependency type 23 proceedings;
24 g. the practice of setting forth allegations in Juvenile Dependency
25 Petitions against parents claiming violations of WIC §300 regardless 26 of whether or not specific, articulable evidence exists at the time to 27 support the claims set out in the
petition under penalty of perjury; 28
v.8/12/2015
v.8/12/2015
26
1 h. the policy, practice, or custom of making knowingly false allegations
2 of child abuse, neglect, or abandonment in Juvenile Dependency
3 Petitions signed under penalty of perjury as a means of intimidating
4 parents, by coercion, into accepting lesser charges, whether true or
5 not and whether justified by extant evidence or not, thereby enabling
6 the county to keep the family in the juvenile dependency system and
7 record the case as a positive outcome for purposes of statistical
8 analysis related to funding by the State and Federal governments; and
9 i. the custom, policy, and/or practice of fraudulently charging parents
10 with child abuse where none exists.
11 (This list is not exhaustive due to the pending nature of discovery and the
12 privileged and protected records of investigative and juvenile dependency type
13 proceedings. Plaintiffs may seek leave to amend this pleading as more information
14 becomes available.)
15 94. County of San Diego, including by and through its entity HHSA and
16 its policymaking officials, breached its duties and obligations to Plaintiffs by, but
17 not limited to, failing to establish, implement and follow the correct and proper
18 Constitutional policies, procedures, customs and practices; by failing to properly
19 select, supervise, train, control, and review its agents and employees as to their
20 compliance with Constitutional safeguards; and by deliberately permitting the

v.8/12/2015
v.8/12/2015
21 Social Worker Defendants, and DOES 1 through 50, inclusive, to engage in the
22 unlawful and unconstitutional conduct as herein alleged with at total indifference
23 to the rights of affected parents, including Plaintiffs herein.
24 95. County of San Diego knew, or should have known, that by breaching
25 the above-mentioned duties and obligations that it was reasonably foreseeable that
26 its agency policies, practices, customs, and usages would, and did, cause Plaintiffs
27 to be injured and damaged by County of San Diego's wrongful policies, or
28 deliberate lack thereof or deliberate indifference to the need for such policies
27
1 and/or training, and other acts as alleged herein, and that such breaches occurred
2 in contravention of public policy and their legal duties and obligations to
3 Plaintiffs; and that such policies were the moving force behind the violation of
4 Plaintiffs' constitutional rights as alleged herein above. Namely, Plaintiffs' civil
5 rights were violated, as mentioned above, when Social Worker Defendants and
6 DOES 1 through 50, while acting under color of state law and in conformance
7 with official County of San Diego policies, conspired and/or acted to seize
8 Plaintiffs's child without a warrant; and then lied about Plaintiffs in various court
9 reports submitted to the Juvenile Court.
10 96. These actions, and/or inactions, of County of San Diego are the
11 moving force behind, and direct and proximate cause of Plaintiffs' injuries, as
12 alleged herein; and as a result, Plaintiffs have sustained general and special
v.8/12/2015
v.8/12/2015
13 damages, to an extent and in an amount to be proven at trial. In addition, Plaintiffs
14 have incurred, and will continue to incur, attorneys fees, costs and expenses,
15 including those as authorized by 42 U.S.C. § 1988, to an extent and in an amount
16 subject to proof at trial.
17 COUNT 2
18 By All Plaintiffs
19 Against City of San Diego; and DOES 1 through 50, inclusive
20 97. Plaintiffs reallege, and to the extent applicable, incorporate herein as
21 if set forth in full, each of the foregoing paragraphs.
22 98. Defendant County of San Diego, including through its San Diego
23 Police Department entity, is a "person" within the meaning of 42 U.S.C. § 1983
24 and subject to Monell liability. Monell v. Dept. ofSocial Services (1978) 436 U.S.
25 658. Defendants, and each of them, acted under color of state law when
26 committing the acts alleged herein, in violation of Plaintiffs' rights.
27 99. Defendant City of San Diego, including through its entity San Diego
28 Police Department, and those Defendants sued in their official capacity who had
28
supervisory and/or policy making authority, had a duty to Plaintiffs, Donna
2 Greenspan and A.G., at all times to establish, implement and follow policies,
ki procedures, customs and/or practices (hereinafter referred to as "policy" or
Ell "policies") which confirm and provide the protections guaranteed Plaintiffs under
v.8/12/2015
v.8/12/2015
5 the United States Constitution, including those under the First, Fourth, and
6 Fourteenth Amendments, to include without limitation, the protection of the right
7 to familial relations; the right to privacy; the right not to be defamed or
8 stigmatized; the right to be free of the use of excessive police force; and the right
9 to procedural due process. Said defendants also had a duty to use reasonable care
10 to select, assign, supervise, train, control and review the activities of all their
11 agents, officers, employees and those acting under them, including within SDPD,
12 so as to protect these constitutional rights; and to refrain from acting with
13 deliberate indifference to the constitutional rights of Plaintiffs in order to avoid
14 causing the injuries and damages alleged herein.
15 100. Based on the duties charged to City of San Diego, including the
16 nature of its work relating to juvenile dependency matters, City of San Diego
17 knew or should have known of the obvious need to establish customs, policies,
18 and practices required to protect the aforementioned civil rights of parents and
19 their children.
El 101. Defendant City of San Diego, including through its entity SDPD,
21 established and/or followed policies, procedures, customs, and/or practices which
22 policies were the moving force behind the violations of Plaintiffs' constitutional
23 rights, including those under the Fourth and Fourteenth Amendments, by, but not
24 limited to:
25 a. the policy of detaining and/or removing children from their family
26 and homes without exigent circumstances (imminent danger of

v.8/12/2015
v.8/12/2015
27 serious bodily injury), court order and/or consent;
28
29
COMPLAINT FOR DAMAGES 1 b. the policy of removing children from their family and their homes 2 without first obtaining a warrant when no exigency exists; 3 C. the policy of
examining children without exigency, need, or proper 4 court order, and without the presence and/or consent of their parent or
5 guardian; 6 d. the policy of removing and detaining children, and continuing to
7 detain them for an unreasonable period after any alleged basis for 8 detention is negated; 9 e. the policy of pointing firearms on all occupants of a home during the 10 execution of
search and seizure warrants, including young children, 11 without probable cause for believing such children represent any 12 danger; and 13 f. by acting with deliberate indifference
in implementing a policy of 14 inadequate training and/or supervision, and/or by failing to train 15 and/or supervise its officers, agents, employees and state actors, in 16 providing the
constitutional protections guaranteed to individuals, 17 including those under the Fourth and Fourteenth Amendments, when 18 performing actions related to child abuse and
dependency type 19 proceedings. 20 (This list is not exhaustive due to the pending nature of discovery and the 21 privileged and protected records of investigative and juvenile
dependency type 22 proceedings. Plaintiffs may seek leave to amend this pleading as more information 23 becomes available.) 24 102. City of San Diego, including by and through its
entity SDPD and its
25 policymaking officials, breached its duties and obligations to Plaintiffs by, but not 26 limited to, failing to establish, implement and follow the correct and proper 27 Constitutional
policies, procedures, customs and practices; by failing to properly 28 select, supervise, train, control, and review its agents and employees as to their
30
1 compliance with Constitutional safeguards; and by deliberately permitting the
2 Police Defendants, and DOES 1 through 50, inclusive, to engage in the unlawful
3 and unconstitutional conduct as herein alleged with at total indifference to the
4 rights of affected parents, including Plaintiffs herein.
5 103. City of San Diego knew, or should have known, that by breaching the
6 above-mentioned duties and obligations that it was reasonably foreseeable that its
7 agency policies, practices, customs, and usages would, and did, cause Plaintiffs to
8 be injured and damaged by City of San Diego's wrongful policies, or deliberate
v.8/12/2015
v.8/12/2015
9 lack thereof or deliberate indifference to the need for such policies and/or training,
10 and other acts as alleged herein, and that such breaches occurred in contravention
11 of public policy and their legal duties and obligations to Plaintiffs; and that such
12 policies were the moving force behind the violation of Plaintiffs' constitutional
13 rights as alleged herein above. Namely, Plaintiffs' civil rights were violated, as
14 mentioned above, when Police Defendants, while acting under color of state law
15 and in conformance with official City of San Diego policies, conspired and/or
16 acted to seize Plaintiffs' child without a warrant and point a loaded firearm at
17 A.G.'s face for a substantial amount of time.
104. These actions, and/or inactions, of City of San Diego are the moving
19 force behind, and direct and proximate cause of Plaintiffs' injuries, as alleged
20 herein; and as a result, Plaintiffs have sustained general and special damages, to an
21 extent and in an amount to be proven at trial. In addition, Plaintiffs have incurred,
22 and will continue to incur, attorneys fees, costs and expenses, including those as
23 authorized by 42 U.S.C. § 1988, to an extent and in an amount subject to proof at
24 trial.
25 I/I
26
27
28
31

v.8/12/2015
v.8/12/2015
1 THIRD CLAIM FOR RELIEF
2 FOR VIOLATION OF STATE CIVIL RIGHTS
3 By All Plaintiffs
4 Against All Defendants and DOES 1 through 50, inclusive
5 105. Plaintiffs realleges, and to the extent applicable, incorporates herein
as if set forth in full, each of the foregoing paragraphs.
7 106. Plaintiffs are informed and believe and thereon allege that County
8 Social Worker Defendants and City Police Defendants, by the use of threats,
9 intimidation, deception, fraud, and coercion (or attempts to threaten, intimidate,
10 deceive, defraud, and coerce), interfered with Plaintiffs' exercise and enjoyment of
11 the rights secured by the United States Constitution and other Federal laws, the
12 Constitution and laws of the State of California, California Government Code
13 section 820.21, and California Civil Code sections 43, 49, 51, 52 (The Unruh Civil
14 Rights Act), and 52.1.
15 107. As to the individual Social Worker Defendants, such conduct
16 includes, but is not limited to, the wrongful seizure of A.G., the continued
17 detention of A.G. after any alleged basis for detention had been negated, the
18 procuring of false testimony, fabrication of evidence, refusal to disclose
19 exculpatory evidence in preparing and presenting reports and documents to the
20 Court in relation to dependency proceedings, and the denial of reasonable
21 accommodations, all in violation of the right to familial association and privacy
22 arising under the Fourteenth Amendment.

v.8/12/2015
v.8/12/2015
23 108. As to the Police Defendants, such conduct includes, but is not limited
24 to, the wrongful seizure of A.G. and the pointing of a loaded firearm at his face
25 during the execution of the above mentioned search warrant.
26 109. Plaintiffs are informed and believe and therefore allege that
27 government searches and seizures are inevitably acts of "political violence" that
28 causes fear, degradation, humiliation, and indignity along with its obvious
32
COMPLAINT FOR DAMAGES I physical impacts including confinement. (See Exhibit "C", Doriane Lambelet
PA Coleman, Storming the Castle to Save Children: The Ironic Costs of Child Welfare 3 Exception to the Fourth Amendment, 47 Wm. & Mary L. Rev. 413, 422 fn. 20 4 (2005); relied
upon for other reasons in Greene v. Camreta (9th Cir. 2009) 588
5 F.3d 1011, 1016.) 6 110. County of San Diego is vicariously responsible for the conduct of its
7 social services agents, and City of San Diego is vicariously responsible for the 8 conduct of its police officers, pursuant to California Government Code section 9 815.2, and other
applicable statutory and case law. 10 111. As the direct and proximate result of these actions of the County of 11 San Diego and City of San Diego public employees, Plaintiffs have
suffered, and 12 will continue to suffer, physical, mental, and emotional injury, all to an extent and 13 in an amount subject to proof at trial. 14 112. The rights violated by the public
employees mentioned herein, and 15 each of them, are protected by California Civil Code sections 43, 49, 51, and 52.1, 16 which entitle Plaintiffs to compensatory and punitive
damages, injunctive relief, 17 statutory civil penalty (where applicable) and attorney's fees, as provided for by
the laws and the Constitution of the State of California, and are requested herein. 19 113. In doing the acts alleged in this Complaint, Social Worker 20 Defendants, Police Defendants,
and DOES 1 through 50, and each of them, knew 21 or should have known that their actions would, or were likely to, injure and 22 damage Plaintiffs. Plaintiffs are informed and
believe and thereon allege that the 23 Social Worker Defendants, Police Defendants, and DOES 1 through 50, and each 24 of them, intended to cause injury and damage to Plaintiffs,
and/or acted with a
25 willful and conscious disregard of Plaintiffs' rights, thus entitling Plaintiffs to 26 recover punitive damages as against said social services agents. 27 28
33
COMPLAINT FOR DAMAGES I FOURTH CLAIM FOR RELIEF 2 FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 3 By All Plaintiffs Against Social Worker
Defendants, Police Defendants, and 4 DOES 1 through 50, inclusive
v.8/12/2015
v.8/12/2015
6 if set forth in full, each of the foregoing paragraphs. 7 115. Plaintiffs are informed and believe that County Social Worker 8 Defendants, and each of them, engaged in the above-
mentioned extreme,
9 outrageous, unlawful and unprivileged conduct, including, but not limited to, 10 removing and detaining A.G. from the love and care of his mother, Donna 11 Greenspan, without
court order or exigent circumstances; continuing to detain 12 A.G. for an unreasonable period after any alleged basis for detention had been 13 negated; as to the Police Defendants, the
use of excessive force; and as to the 14 Social Worker Defendants, placing A.G. in a situation where it was reasonably 15 foreseeable that A.G. would be sexually battered and
consequently was battered; 16 disconnecting a monitored phone to prevent A.G. from telling his mother that he 17 had been sexually battered; preventing Donna Greenspan from
asking A.G. about
i:i the circumstances of said sexual battery; trivializing the nature of A.G.' s sexual 19 battery to Donna, which actually involved a boy forcing A.G. to kiss his penile 20 area, as 'lust a
kiss," and suppressing the true nature of the molest from A.G's 21 parents, in further aggravation of A.G.'s injuries; failing to conduct a reasonable 22 investigation or report said sexual
battery; placing A.G. in a situation where it was 23 reasonably foreseeable that A.G. would be physically battered and was, again, 24 consequently battered; presenting perjured
testimony and fabricating evidence to 25 support the County and its social services agents' false and malicious allegations 26 that minor Plaintiff A.G. was being abused and/or
neglected by his parents and 27 failing to disclose exculpatory evidence; questioning and obtaining testimony from 28 Plaintiffs through the use of undue influence, coercion, and
duress; and continuing
34
COMPLAINT FOR DAMAGES 1 to harass, annoy, and lie to Plaintiffs, and otherwise interfere with Plaintiffs' lives, 2 after any purported exigency or need ceased to exist. These acts
exceeded the 3 bounds of common decency usually tolerated by a civilized society. 4 116. Each of the abovementioned Social Worker Defendants, Police
5 Defendants, and DOES 1 through 50, participated in, conspired with, approved of, 6 and/or aided and abetted the conduct of the remaining culpable parties mentioned
7 herein.
117. Plaintiffs are informed and believe that Social Worker Defendants,
9 Police Defendants, DOES 1 through 50, and each of them, intended to cause harm 10 to Plaintiffs, or acted with reckless disregard for the possibility that Plaintiffs 11 would suffer
extreme emotional distress as a result of the outrageous conduct 12 listed above. Further, because County assumed wardship of A.G., it owed the 13 child and his mother, as part of
A.G.'s protected liberty interest and Donna's 14 familial liberty interest, reasonable safety and adequate care of A.G. County's 15 social services agents abused this special relationship
and/or position which gave 16 them power to damage the Plaintiffs' interest, in egregious fashion; they knew of 17 Plaintiffs' susceptibility to injuries through mental distress in order
to inflict 18 trauma; and/or they acted intentionally or unreasonably with the recognition that 19 the acts were likely to result in illness through mental distress. Said conduct was 20
done with deliberate indifference to the liberty interests of Plaintiffs, such that said 21 public employees' actions assault and shock the public conscience. 22 118. As the direct and
proximate result of the Social Worker Defendants, 23 Police Defendants, and DOES 1 through 50, extreme and outrageous conduct, 24 Plaintiffs have suffered extreme emotional and
physical distress, including but not
25 limited to fright, nervousness, sleeplessness, anxiety, worry, mortification, shock, 26 humiliation, and indignity, to an extent and in an amount subject to proof at trial. 27 Nobody,
including Plaintiffs, could reasonably be expected to endure the types of 28
35

v.8/12/2015
v.8/12/2015
1 affront inflicted upon Plaintiffs without sustaining the type of damages herein
2 alleged.
4 social services agents acted knowingly and wilfully, with malice and oppression,
5 and with the intent to harm Plaintiffs. Therefore, Plaintiffs are entitled to an award
6 of punitive damages for the purpose of punishing said governmental agents, and to
7 deter them and others from such conduct in the future.
8 120. County of San Diego and City of San Diego are vicariously
9 responsible for the conduct of their respective public employees, under California
10 Government Code section 815.2 and other applicable statutory and case law.
11 FIFTH CLAIM FOR RELIEF
12 FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
13 By All Plaintiffs Against Social Worker Defendants; and DOES 1 through 50
16 122. By virtue of the relationship between A.G. and County, including as
17 between A.G. and the individual County social services agents, a fiduciary duty
18 existed relating to the provision of reasonable care and a safe environment to A.G.
19 Further, because County assumed wardship of A.G., it owed his mother, as part of
20 Donna's familial liberty interest, reasonable safety and adequate care of A.G. A
21 preexisting relationship between County and Plaintiffs therefore existed at all
22 relevant times mentioned herein.

v.8/12/2015
v.8/12/2015
23 123. County and its agents and employees, breached their respective duties
24 of care by, but not limited to, continuing to detain A.G. for an unreasonable period
25 after any alleged basis for detention had been negated; placing A.G. in a situation
26 where it was reasonably foreseeable that A.G. would be sexually battered and was
27 consequently battered; disconnecting a monitored phone call in order to prevent
28 A.G. from telling his mother that he had been sexually battered; preventing Donna
36
1 Greenspan from asking A.G. about the circumstances of said sexual battery;
2 trivializing the nature of A.G.'s sexual battery to Donna, which actually involved a
3 . boy forcing A.G. to kiss his penile area, as "just a kiss," and suppressing the true
4 nature of the molest from A.G's parents, in further aggravation of A.G.'s injuries;
5 failing to conduct a reasonable investigation or report said sexual battery; failing
6 to promptly provide aid, comfort, or professional treatment to A.G.; placing A.G.
7 in a situation where it was reasonably foreseeable that A.G. would be physically
8 battered and was, again, consequently battered; presenting perjured testimony and
9 fabricating evidence to support the County and its social services agents' false and
10 malicious allegations that minor Plaintiff A.G. was being abused and/or neglected
11 by his parents and failing to disclose exculpatory evidence; questioning and
12 obtaining testimony from Plaintiffs through the use of undue influence, coercion,
13 and duress; and continuing to harass, annoy, and lie to Plaintiffs, and otherwise
14 interfere with Plaintiffs' lives, after any purported exigency or need ceased to
v.8/12/2015
v.8/12/2015
15 exist.
16 124. As the direct and proximate result of the County's social services
17 agents negligent conduct, Plaintiffs have suffered extreme emotional and physical
18 distress, including but not limited to fright, nervousness, sleeplessness, anxiety,
19 worry, mortification, shock, humiliation, and indignity, to an extent and in an
20 amount subject to proof at trial. Nobody, including Plaintiffs, could reasonably be
21 expected to endure the types of affront inflicted upon Plaintiffs without sustaining
22 the type of damages herein alleged.
25 and with the intent to harm Plaintiffs. Therefore, Plaintiffs are entitled to an award
26 of punitive damages for the purpose of punishing said governmental agents, and to
27 deter them and others from such conduct in the future.
28
37
126. County of San Diego is vicariously responsible for the conduct of its
social services agents, under California Government Code section 815.2 and other
applicable statutory and case law.
SIXTH CLAIM FOR RELIEF
FOR NEGLIGENCE
By All Plaintiffs Against County; Social Worker Defendants; and DOES 1

v.8/12/2015
v.8/12/2015
through 50, inclusive
127. Plaintiffs reallege, and incorporate herein as if set forth in full,
paragraphs 1 through 56, inclusive.
128. Pursuant to Cal. Welf. & Inst. Code §306(b), each of the Social
Worker Defendants owed Plaintiffs the following statutory duty:
Before taking a minor into custody, a social worker shall
consider whether the child can remain safely in his or her
residence. The consideration of whether the child can
remain safely at home shall include, but not be limited
to, the following factors:
(1) Whether there are any reasonable services
available to the worker which, if provided to the minor's
parent, guardian, caretaker, or to the minor, would
eliminate the need to remove the minor from the custody
of his or her parent, guardian, or caretaker.
(2) Whether a referral to public assistance
pursuant to Chapter 2 (commencing with Section 11200)
of Part 3, Chapter 7 (commencing with Section 14000
of Part 3, Chapter 1 (commencing with Section 17000
of Part 5, and Chapter 10 (commencing with Section
18900) of Part 6, of Division 9 would eliminate the need
to take temporary custody of the minor. If those services

v.8/12/2015
v.8/12/2015
are available they shall be utilized.
(3) Whether a nonoffending caretaker can provide
for and protect the child from abuse and neglect and
whether the alleged perpetrator voluntarily agrees to
withdraw from the residence, withdraws from the
residence, and is likely to remain withdrawn from the
residence.
129. County and Social Worker Defendants, breached their respective
duties of care by, but not limited to, failing to even consider - as they are required
to do - whether A.G. could, with the provision of reasonable services, remain
38
COMPLAINT FOR DAMAGES 2 3 4
78
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
25 26 27 28
1 safely with his mother. County and Social Worker Defendants, breached their
2 respective duties of care by, but not limited to, failing to perform any assessment
3 at all, much less the mandatory assessment of the statutory factors, prior to the
4 removal of A.G. from his mother's custody.
5 130. As the direct and proximate result of the County's social services
v.8/12/2015
v.8/12/2015
agents negligent conduct, Plaintiffs have suffered extreme emotional and physical
7 distress, including but not limited to fright, nervousness, sleeplessness, anxiety,
8 worry, mortification, shock, humiliation, and indignity, to an extent and in an
9 amount subject to proof at trial. Statutes, including, without limitation, Cal. Welf.
10 & Inst. Code §306(b), were specifically enacted to avoid the types of harm
11 suffered by Plaintiffs as mentioned herein.
14 and with the intent to harm Plaintiffs.
15 132. County of San Diego is vicariously responsible for the conduct of its
16 social services agents, under California Government Code section 815.2 and other
17 applicable statutory and case law.
18 SEVENTH CLAIM FOR RELIEF
19 LIABILITY FOR CHILDREN'S TORT
20 By All Plaintiffs Against County; Social Worker Defendants; and DOES 1
21 through 50, inclusive
24 134. A special relationship exists between County and the children placed
25 in its ward at Polinsky Children's Center, such that County and its social services
26 agents bear a responsibility to care for and control children placed in their care.
27 As such, County and its social services agents owe a duty to exercise reasonable
v.8/12/2015
v.8/12/2015
28
39
COMPLAINT FOR DAMAGES 1 care to prevent harm to others when they know of any dangerous habits or 2 propensities of children placed in their care. 3 135. Plaintiffs are
informed and believe and thereon allege that, that the 4 first roommate the County assigned to A.G. had a history of sexual abuse, history
5 of committing sexual battery, or some other characteristic which made it
6 foreseeable that the child would likely sexually molest other children placed in a 7 confined area with him. 8 136. Plaintiffs are informed and believe and thereon allege that, that the
9 second roommate the County assigned to A.G. had a history of committing violent 10 acts, had violent tendencies, or some other characteristic which made it 11 foreseeable that the
child would likely batter other children placed in a confined 12 area with him. 13 137. County and its agents and employees, breached their respective duties 14 to protect A.G., by but
not limited to, placing A.G. with children with dangerous 15 predilections and propensities. A reasonable person standing in the shoes of the 16 County and/or its social services agents
would not have placed A.G., a small six 17 year old boy, with much older boys that were likely to batter him.
IEI 138. As the direct and proximate result of the County's social services 19 agents negligent conduct, A.G. was sexually and physically battered on at least 20 two occasions with
resultant extreme emotional and physical distress, including 21 but not limited to fright, nervousness, sleeplessness, anxiety, worry, mortification, 22 shock, humiliation, and indignity,
to an extent and in an amount subject to proof at 23 trial. 24 139. County of San Diego is vicariously responsible for the conduct of its
25 social services agents, under California Government Code section 815.2 and other 26 applicable statutory and case law. 27 III 28 I/I
40
COMPLAINT FOR DAMAGES 1 EIGHTH CLAIM FOR RELIEF 2 FOR FALSE IMPRISONMENT CA By A.G. 4 Against County; Social Worker Defendants and DOES 1
through 50,
5 inclusive 6 140. Plaintiffs reallege, and incorporate herein as if set forth in full,
7 paragraphs 1 through 56, inclusive. 8 141. As mentioned above, County social services agents restrained A.G. 9 by means of physical force and confined him in the Polinsky
Children's Center. 10 142. Said confinement was nonconsensual, arose from a warrantless search 11 and seizure, happened in the absence exigent circumstances, and without 12
discharging the duties imposed by Cal. Weif. & Inst. Code §306(b). 13 143. The above mentioned detention was not authorized by law and took 14 place for an appreciable length of
time, i.e. sufficient time for A.G. to be sexually 15 molested and physically beaten on two separate occasions while in the County's 16 custody and care. 17 144. As the direct and
proximate result of the County's social services 18 agents dereliction of duty, Plaintiff had his familial liberty interests violated, and 19 has suffered, and will continue to suffer,
physical, mental, and emotional injury, 20 all to an extent and in an amount subject to proof at trial. Plaintiff has also 21 incurred, and will continue to incur, attorneys fees, costs and
expenses, to an 22 extent and in an amount subject to proof at trial. 23 145. In addition to compensatory damages, attorneys fees, and costs, 24 1 Plaintiff is entitled to punitive
damages as authorized by Cal. Civ. Code §3294, in
25 order to deter the Social Worker Defendants, from committing the same egregious 26 acts in the future. 27 III 28 I/I
41
v.8/12/2015
v.8/12/2015
COMPLAINT FOR DAMAGES 1 146. County of San Diego is vicariously responsible for the conduct of its
3 applicable statutory and case law.
4 NINTH CLAIM FOR RELIEF
5 FOR ASSAULT
6 COUNT 1
VA By A.G.
8 Against County; Social Worker Defendants; and DOES 1 through 50, 9 inclusive 10 147. Plaintiffs reallege, and incorporate herein as if set forth in full,
11 paragraphs 1 through 80, and 146 through 150, inclusive. 12 148. As mentioned above, these Social Worker Defendants, and each of 13 them, conspired to violate Plaintiff A.G.'s
civil rights, by, but not limited to, 14 seizing and abducting A.G. from the care and custody of Donna Greenspan, 15 without a warrant, parental consent, or exigent circumstances; and
committing 16 perjury, fabricating evidence and suppressing exculpatory evidence. As part of the 17 continuum of events comprising said violations of civil rights, Social Worker 18
Jennifer Williams intentionally, willfully, wantonly, and maliciously threatened to 19 seize A.G.'s person and physically sever him from the care and custody of his 20 mother, without
a warrant, without parental consent, and in the absence of exigent 21 circumstances. Plaintiff A.G. did not consent to such conduct. 22 149. As a direct and proximate result of the
threatening conduct of 23 defendant Jennifer Williams, as mentioned above, coupled with their present 24 ability to carry out the threat, Plaintiff A.G. reasonably felt the imminent
25 apprehension of such contact, and therefore suffered severe emotional distress and 26 other serious injuries to his person, in an amount to be shown according to proof. 27 150. By
joining the conspiracy to violate Plaintiff A.G.'s civil rights, 28 Social Worker Defendants, and each of them, are responsible for all acts done as 42
COMPLAINT FOR DAMAGES 1 part of the conspiracy, whether the acts occurred before or after he or she joined 2 the conspiracy, including the aforementioned acts of defendant
Jennifer Williams. 3 151. A.G. is informed and believes that the aforesaid acts were carried out 4 with the base and vile motivation of seizing and abducting A.G., before his
5 mother, Donna Greenspan, could arrive and contest their illegal plan. Said acts
6 were done with a conscious disregard of Plaintiff A.G.'s right to be free from such 7 tortious and criminal behavior, such as to constitute oppression, fraud or malice 8 pursuant to
California Civil Code Section 3294, entitling Plaintiff to punitive
9 damages in an amount appropriate to punish and set an example of said Social 10 Worker Defendants. 11 152. County of San Diego is vicariously responsible for the conduct of its
12 Social Worker Defendants, under California Government Code section 815.2 and 13 other applicable statutory and case law. 14 COUNT 2 15 By A.G. 16 Against City; Police
Defendants; and DOES 1 through 50, inclusive 17 153. Plaintiffs reallege, and incorporate herein as if set forth in full, 18 paragraphs 1 through 68, and 81-87, inclusive. 19 154. As
mentioned above, the Police Defendants intentionally acted, or 20 knew and agreed and thereby conspired, to threaten harmful contact to Plaintiff, 21 A.G., including, without
limitation, by threatening to seize A.G.'s person and 22 sever him from the care and custody of his mother, without a warrant, and in the 23 absence of exigent circumstances, and by
threatening to put a bullet in his head. 24 Plaintiff A.G. did not consent to such conduct.
v.8/12/2015
v.8/12/2015
25 155. As a direct and proximate result of the threatening conduct of the 26 Police Defendants, as mentioned above, coupled with their present ability to carry 27 out the threat,
Plaintiff A.G. reasonably felt the imminent apprehension of such 28
43
COMPLAINT FOR DAMAGES 1 contact, and therefore suffered severe emotional distress and other serious injuries 2 to his person, in an amount to be shown according to proof. 3
156. A.G. is informed and believes that the aforesaid acts were carried out 4 with the base and vile motivation of seizing and collaborating in the abduction of
5 A.G., before his mother, Donna Greenspan, could arrive and contest their illegal 6 plan, and to use A.G. as a pawn to coerce his father, Howard Greenspan, to make a
7 confession and/or give up substantial rights by cooperating with the Police Kc Defendants investigation. Said acts were done with a conscious disregard of 9 Plaintiff A.G.'s right to
be free from such tortious and criminal behavior, such as 10 to constitute oppression, fraud or malice pursuant to California Civil Code Section 11 3294, entitling Plaintiff to punitive
damages in an amount appropriate to punish 12 and set an example of said Police Defendants. 13 157. City of San Diego is vicariously responsible for the conduct of its 14 Police
Defendants, under California Government Code section 815.2 and other 15 applicable statutory and case law. 16 TENTH CLAIM FOR RELIEF 17 FOR BATTERY 18 By A.G. 19
Against All Defendants; and DOES 1 through 50, inclusive 20 158. Plaintiffs reallege, and incorporate herein as if set forth in full, 21 paragraphs 1 through 80, and 146 through 150,
inclusive. 22 159. As mentioned above, these Social Worker Defendants and Police 23 Defendants, and each of them, conspired to violate Plaintiff A.G.'s civil rights, by, 24 but not
limited to, seizing and abducting A.G. from the care and custody of Donna
25 Greenspan, without a warrant, parental consent, or exigent circumstances; and, as 26 to the Social Worker Defendants, committing perjury, fabricating evidence and 27 suppressing
exculpatory evidence. As part of the continuum of events comprising 28 said violations of civil rights, Social Worker Jennifer Williams, with the
44
COMPLAINT FOR DAMAGES 1 concurrence of Police Defendants, intentionally and/or recklessly grabbed A.G. 2 and dragged him to her car. Neither A.G., nor his mother,
consented to the said 3 harmful or offensive touching. 4 160. Social worker Jennifer Williams did the aforementioned acts with the
5 intent to cause a harmful or offensive contact to the body of Plaintiff, A.G.
6 161. As a direct and proximate result of the conduct of these Defendants,
7 as mentioned above, Plaintiff suffered severe emotional distress and other injuries 8 to his person, in an amount to be shown according to proof.
9 162. By joining the conspiracy to violate Plaintiff A.G.'s civil rights, 10 Social Worker Defendants, and each of them, are responsible for all acts done as 11 part of the conspiracy,
whether the acts occurred before or after he or she joined 12 the conspiracy, including the aforementioned acts of defendant Jennifer Williams. 13 The Police Defendants, and each of
them, are likewise responsible for the acts 14 committed by Jennifer Williams because the knew in advance, concurred, and 15 agreed, with the intended seizure and abduction of A.G.
16 163. A.G. is informed and believes that the aforesaid acts were carried out 17 with the base and vile motivation of seizing and abducting A.G., before his 18 mother, Donna
Greenspan, could arrive and contest their illegal plan. Said acts 19 were done with a conscious disregard of Plaintiff A.G.'s right to be free from such 20 tortious and criminal behavior,
such as to constitute oppression, fraud or malice 21 pursuant to California Civil Code Section 3294, entitling Plaintiff to punitive 22 damages in an amount appropriate to punish and
set an example of said Social 23 Worker Defendants and Police Defendants. 24 164. County of San Diego is vicariously responsible for the conduct of its
25 Social Worker Defendants, under California Government Code section 815.2 and 26 other applicable statutory and case law. 27 28
v.8/12/2015
v.8/12/2015
45
COMPLAINT FOR DAMAGES 1 165. City of San Diego is vicariously responsible for the conduct of its 2 Police Defendants, under California Government Code section 815.2 and
other 3 applicable statutory and case law 4 ELEVENTH CLAIM FOR RELIEF
5 FOR INVASION OF PRIVACY
By All Plaintiffs
7 Against Police Defendants; Social Worker Defendants and DOES 1 through 8 50, inclusive 9 166. Plaintiffs reallege, and to the extent applicable, incorporates herein as 10 if set
forth in full, each of the foregoing paragraphs. 11 167. Plaintiff Donna Greenspan and her son, A.G., have a protected liberty 12 interest in the privacy and integrity of their family unit,
free of unwarranted 13 governmental intrusion. 14 168. County, by and through its Social Worker Defendants, and City, by 15 and through its Police Defendants, intruded upon the
privacy of Plaintiffs' family 16 by, but not limited to, removing A.G. from the family home without judicial 17 authorization, without parental consent, and in the absence of exigent 18
circumstances; failing to discharge their duty to consider whether A.G. could 19 remain safely in his residence with his father, prior to removal; and continuing to 20 detain A.G. after
any purported reason for doing so had been extinguished or 21 discovered as without basis. Each and every act mentioned above was carried out 22 intentionally, and with full
knowledge of the probable consequences thereof. 23 169. Said intrusions upon the family home and privacy interests of 24 Plaintiffs would be highly offensive to any reasonable
person, and was, in fact,
25 highly offensive to Plaintiffs. 26 170. As the direct and proximate result of the County's social services 27 agents dereliction of duty, Plaintiffs have suffered, and will continue to
suffer, 28 physical, mental, and emotional injury, all to an extent and in an amount subject to
46
COMPLAINT FOR DAMAGES 1 proof at trial. Plaintiffs have also incurred, and will continue to incur, attorneys
2 fees, costs and expenses, to an extent and in an amount subject to proof at trial.
3 171. County of San Diego is vicariously responsible for the conduct of its
Wi applicable statutory and case law.
THIRTEENTH CLAIM FOR RELIEF
7 FOR DECLARATORY RELIEF
8 COUNT 1 9 By All Plaintiffs 10 Against County; Social Worker Defendants; and DOES 1 through 50, 11 inclusive 12 172. Plaintiffs reallege, and to the extent applicable,
incorporate herein as 13 if set forth in full, each of the foregoing paragraphs. 14 173. As stated herein, Plaintiffs, as citizen and individuals, are protected 15 by the laws of the State of
California, as well as those of the United States 16 Constitution, including the Fourth and Fourteenth Amendments thereto. 17 174. As stated herein, Defendants County of San Diego,
and DOES 1 18 through 50, inclusive, have wrongfully, unlawfully, and with deliberate 19 indifference to the rights of Plaintiffs, and with utter disregard of County's duties 20 and
obligations to Plaintiffs, acted, practiced and/or adopted policies, practices, 21 procedures and/or customs which are in violation of the rights of Plaintiffs, 22 including those to be free
v.8/12/2015
v.8/12/2015
from governmental interference as to their familial 23 associations and from unreasonable searches or seizures, including those relating 24 to child abuse allegations and related actions
and proceedings.
25 175. County of San Diego has failed to acknowledge their improper, 26 unlawful and unconstitutional actions, conduct and policies at the time of the 27 incidents at issue in the
present action, and Plaintiffs are informed and believe, and 28
47
on that basis allege, that presently County of San Diego has not changed or
2 modified such actions, conduct and/or policies to conform to law.
3 176. County's wrongful and unlawful conduct, actions and/or policies,
4 unless and until enjoined and restrained by order of this court, will cause, and
5 continue to cause, great and irreparable injury to Plaintiffs, and other individuals
6 and citizens, in that County of San Diego will continue to act in accordance with
7 said unlawful policies, and with deliberate indifference to their duties and
8 obligations under state and federal law, including those under the Fourth and
9 Fourteenth amendments as alleged hereinabove.
10 177. In addition, so long as A.G., remains a minor, and in the custody and
11 care of Plaintiff Donna Greenspan, all of the acts mentioned herein are repeatable.
12 178. Plaintiffs have no adequate remedy at law to prevent or prohibit
13 County of San Diego from continuing, and/or repeating, its unlawful and
14 unconstitutional conduct and policies other than through injunctive relief, and
15 therefore seeks an order enjoining and prohibiting County of San Diego and
16 HHSA by, but not limited to, the following:
17 a. the policy of detaining and/or removing children from their family

v.8/12/2015
v.8/12/2015
18 and homes without exigent circumstances (imminent danger of
19 serious bodily injury), court order and/or consent;
20 b. the policy of removing children from their family and their homes
21 without first obtaining a warrant when no exigency exists;
22 C. the policy of examining children without exigency, need, or proper
23 court order, and without the presence and/or consent of their parent or
24 guardian;
25 d. the policy of removing and detaining children, and continuing to
26 detain them for an unreasonable period after any alleged basis for
27 detention is negated;
28
48
e. the policy of using trickery, duress, fabrication and/or false testimony 2 and/or evidence, and in failing to disclose exculpatory evidence, in 3 preparing and presenting reports and
court documents to the Court, 4 causing an interference with parental rights, including those as to
5 familial relations; 6 f. by acting with deliberate indifference in implementing a policy of 7 inadequate training and/or supervision, and/or by failing to train 8 and/or supervise its
officers, agents, employees and state actors, in 9 providing the constitutional protections guaranteed to individuals, 10 including those under the Fourth and Fourteenth Amendments,
when 11 performing actions related to child abuse and dependency type 12 proceedings; 13 g. the practice of setting forth allegations in Juvenile Dependency 14 Petitions against
parents claiming violations of WIC §300 regardless 15 of whether or not specific, articulable evidence exists at the time to 16 support the claims set out in the petition under penalty of
perjury; 17 h. the policy, practice, or custom of making knowingly false allegations II of child abuse, neglect, or abandonment in Juvenile Dependency 19 Petitions signed under
penalty of perjury as a means of intimidating 20 parents, by coercion, into accepting lesser charges, whether true or 21 not and whether justified by extant evidence or not, thereby
enabling 22 the county to keep the family in the juvenile dependency system and 23 record the case as a positive outcome for purposes of statistical 24 analysis related to funding by
the State and Federal governments; and
25 i. i. the custom, policy, and/or practice of fraudulently charging parents 26 with child abuse where none exists. 27 (This list is not exhaustive due to the pending nature of discovery
and the 28 privileged and protected records of investigative and juvenile dependency type
49
v.8/12/2015
v.8/12/2015
proceedings. Plaintiffs may seek leave to amend this pleading as more information
becomes available.)
'I COUNT 2
4 By All Plaintiffs
5 Against City; Police Defendants; and DOES 1 through 50, inclusive
7 if set forth in full, each of the foregoing paragraphs.
8 180. As stated herein, Plaintiffs, as citizen and individuals, are protected
9 by the laws of the State of California, as well as those of the United States
10 Constitution, including the Fourth and Fourteenth Amendments thereto.
11 181. As stated herein, Defendants City of San Diego, and DOES 1 through
12 50, inclusive, have wrongfully, unlawfully, and with deliberate indifference to the
13 rights of Plaintiffs, and with utter disregard of City's duties and obligations to
14 Plaintiffs, acted, practiced and/or adopted policies, practices, procedures and/or
15 customs which are in violation of the rights of Plaintiffs, including those to be free
16 from governmental interference as to their familial associations and from
17 unreasonable searches or seizures, including those relating to child abuse
18 allegations and related actions and proceedings
19 182. City of San Diego has failed to acknowledge their improper, unlawful
and unconstitutional actions, conduct and policies at the time of the incidents at
21 issue in the present action, and Plaintiffs are informed and believe, and on that
v.8/12/2015
v.8/12/2015
22 basis allege, that presently City of San Diego has not changed or modified such
23 actions, conduct and/or policies to conform to law.
24 183. In addition, so long as A.G., remains a minor, and in the custody and
25 care of Plaintiff Donna Greenspan, all of the acts mentioned herein are repeatable.
26 184. City's wrongful and unlawful conduct, actions and/or policies, unless
27 and until enjoined and restrained by order of this court, will cause, and continue to
28 cause, great and irreparable injury to Plaintiffs, and other individuals and citizens,
50
COMPLAINT FOR DAMAGES 1 in that City of San Diego will continue to act in accordance with said unlawful 2 policies, and with deliberate indifference to their duties and
obligations under state 3 and federal law, including those under the Fourth and Fourteenth amendments as 4 alleged hereinabove.
5 185. Plaintiffs have no adequate remedy at law to prevent or prohibit City 6 of San Diego from continuing, and/or repeating, its unlawful and unconstitutional,
7 conduct and policies other than through injunctive relief, and therefore seeks an 8 order enjoining and prohibiting City of San Diego from, but not limited to, the
following: 10 a. the policy of detaining and/or removing children from their family 11 and homes without exigent circumstances (imminent danger of 12 serious bodily injury), court
order and/or consent; 13 b. the policy of removing children from their family and their homes 14 without first obtaining a warrant when no exigency exists; 15 C. the policy of
examining children without exigency, need, or proper 16 court order, and without the presence and/or consent of their parent or 17 guardian; 18 d. the policy of removing and detaining
children, and continuing to 19 detain them for an unreasonable period after any alleged basis for 20 detention is negated; and 21 e. the policy of pointing firearms on all occupants of a
home during the 22 execution of search and seizure warrants, including young children, 23 without probable cause for believing such children represent any 24 danger
25 (This list is not exhaustive due to the pending nature of discovery and the 26 privileged and protected records of investigative and juvenile dependency type 27 proceedings.
Plaintiffs may seek leave to amend this pleading as more information
becomes available.)
51
JURY DEMAND
Plaintiffs, Donna Greenspan and A.G., demand a jury trial as to all issues so
v.8/12/2015
v.8/12/2015
triable.
PRAYER
WHEREFORE, Plaintiffs, Donna Greenspan and A.G., prays for judgment
against Defendants, as to all causes of action, as follows:
1. General damages and special damages according to proof, but in no
event less than $1,000,000;
2. As against only the individual defendants and not any municipality,
punitive damages as allowed by law;
3. Attorneys fees pursuant to 42 U.S.C. § 1988, and any other
appropriate statute;
4. Injunctive relief, both preliminary and permanent, as allowed by law,
(including preliminary injunctive relief to be based upon a separate application);
5. Costs of suit incurred herein; and
6. Such further relief as the Court deems just and proper. Dated: January 25, 2013 THE LAW OFFICES OF SHAWN A. McMILLAN, APC Shawn A. McMillan, Esq. Stephen D.
Daner, Esq. Samuel H. Park, Esq. Attorneys for Plaintiffs, Donna Greenspan and A.G.
52
COMPLAINT FOR DAMAGES 1 2 3 4
5 6 7 8 9 10 11 12 13 14 15 16 17 I 18 19 20 21 22 23 24
25 26 27 28
EXHIBIT "A"
EXHIBIT "A"
EXHIBIT "A"
v.8/12/2015
v.8/12/2015
County of San Diego
OFFICE OF COUNTY COUNSEL
CLAIMS AND INVESTIGATION DIVISION
1600 PACIFIC HIGHWAY, ROOM 355, SAN DIEGO, CALIFORNIA 92101-2469 September 27, 2012 Law Offices of Shawn A. McMillan
4955 Via Lapiz San Diego, CA 92122 Re: Clients/Claimants: Donna J. Greenspan and minor, A.G. County File Number: 120289 Date of Incident: "February 22, 2012" and asserted as
ongoing
SUBJECT: NOTICE OF REJECTION OF CLAIM The subject claim has been received by the Claims Division for investigation and a determination of liability, if any. The
liability of a governmental entity and its employees to a person who claims damages is strictly limited by the laws of the State of California. Your claim has been reviewed within the
terms and restrictions of those laws. Because no formal denial has been issued by the County of San Diego within the fortyfive (45) day period as prescribed by California Government
Code Section 912.4, your claim is deemed rejected by operation of that law.
WARNING Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on those causes
of action recognized under the California Tort Claims Act. See Government Code Section 945.6. Sincerely, Office of County Counsel Claims and Investigation Division (619)531-
4899
EXHIBIT "B"
EXHIBIT "B"
EXHIBIT "B"
THE Cm,' OF SAN DIEGO
August 15, 2012
A.G. Greenspan
do Shawn A. McMillan
4955 Via Lapiz
San Diego, CA 92122-3910
Reference: City File #: 6627
Date of Incident: 02/22/2012
v.8/12/2015
v.8/12/2015
Claimant: A.G. Greenspan
Dear Mr. Greenspan:
Your claim, which was filed sometime ago against the City of San Diego, was referred to
this office for investigation, and, with the advice of the office of the City Attorney, a
determination of legal liability.
As you may know, the liability of a municipality to persons who claim damages is strictly
limited by the acts of the legislature of the State of California governing municipal
operations.
Because subsequent investigation and legal opinion determined that your claim cannot be
honored, and because no formal denial has been caused to be issued by the City of San
Diego within the 45-day time period as prescribed in California Government Code
Section 912.4, your claim is deemed denied by operation of that law.
Subject to certain exceptions, you have only six (6) months from the date this notice
was personally delivered or deposited in the mail to file a court action on this claim.
See Government Code Section 945.6.
You may seek the advice of an attorney of your choice in connection with this matter. If
you desire to consult an attorney, you should do so immediately.
Sincerely,
6111-7al 4— - -
Charles Hopper
Claims Representative
Risk Management
v.8/12/2015
v.8/12/2015
1200 Third Avenue, Suite 1000•San Diego, CA 92101-4107
Tel (619) 236-6670 Fax (619) 236-6106
EXHIBIT "C"
EXHIBIT "C's
EXHIBIT "C"
Duke Law School
Duke Law School Faculty Scholarship Series
NELLCO Year 2006
Storming the Castle to Save the Children:
The Ironic Costs of a Child Welfare
Exception to the Fourth Amendment
Doriane Lambelet Coleman Duke University Law School, dlc©law.duke.edu
This paper is posted at NELLCO Legal Scholarship Repository.
http://lsr.nellco.org/duke1s/33
DUKE LAW
DUKE LAW SCHOOL
Duke Law School Legal Studies
Research Paper Series
Research Paper No. 94 January 2006
Storming the Castle to Save the Children:
The Ironic Costs of a Child Welfare Exception
to the Fourth Amendment

v.8/12/2015
v.8/12/2015
Doriane Lambelet Coleman Professor of Law Duke University dlc@law.duke.edu This paper can be downloaded without charge from the Social Science Network Electronic Paper
Collection: http://ssrn.com/abstract=875432 Copyright 2006 by Doriane Lambelet Coleman
STORMING THE CASTLE TO SAVE THE CHILDREN:
THE IRONIC COSTS OF A CHILD WELFARE EXCEPTION TO
THE FOURTH AMENDMENT
DORIANE LAMBELET COLEMAN*
TABLE OF CONTENTS
INTRODUCTION ..................................... 414
I. THE PREVAILING APPROACH TO
MALTREATMENT INVESTIGATIONS .................... 426
A. Defining the Cases for Investigation ................ 428
B. The Nature and Scope of the Investigation Itself ...... 433
C. The Impact of the Prevailing Approach
to Investigations ................................. 441
II. THE DOCTRINAL VALIDITY OF THE STATES' RELIANCE
ON A CHILD WELFARE EXCEPTION TO
THE FOURTH AMENDMENT .......................... 458
A. The Amendment's Presumptive Protections .......... 458
B. The Traditional Consent and Exigent
Circumstances Exceptions ......................... 461
C. The Special Needs "Administrative Search"
Exception ..................................... 466
v.8/12/2015
v.8/12/2015
D. Reasonableness as the Ultimate Measure of
Fourth Amendment Constitutionality ................ 501
III. REJECTING A CHILD WELFARE EXCEPTION ON THE BASIS
OF FUNDAMENTAL FOURTH AMENDMENT PRINCIPLES ... 508
A. The View from History .......................... 509
B. Individual Interests ............................. 511
C. The Government's Needs ......................... 522
D. A Final Accounting ............................. 531
CONCLUSION ....................................... 538
* Professor of Law Duke Law School. BA., Cornell University, 1982. J.D., Georgetown
University Law Center, 1988. For their enormously helpful comments and contributions,
I thank Chris Baird, Kate Bartlett, Erwin Chemerinsky, Jim Coleman, Molly Donovan,
Catherine Fisk, Amanda Lacoft Janet Mason, Laura Underkuffler, Neil Vidmar, and Larry
Zelenak. For inspiring this Article, I also thank Ken Dodge and Duke University's Center
for Child & Family Policy.
413
414 WILLIAM AND MARY LAW REVIEW [Vol. 47:413
INTRODUCTION
Six-year-old Jackie Doe dances suggestively in the bathroom
at camp, laughing as she touches herself and another girl in
private places. Concerned that Jackie's behavior indicates a
premature sexual awareness, her counselor reports the incident

v.8/12/2015
v.8/12/2015
to the child abuse hotline. Child Protective Services (CPS)
assigns a caseworker to investigate the possibility that Jackie
has been sexually abused. Understate law, sexual abuse is both
a crime and a basis to remove the child from the custody of her
parents.
At the door of the Doe family home, the caseworker explains
to Jackie's mother that she needs to come in, look around, and
see the child. At first, her mother refuses to allow the
caseworker in, but the caseworker insists. When Jackie's mother
wonders if she should call a lawyer, the caseworker tells her
there is no need to consult with anyone. Jackie's mother
reluctantly accedes. The caseworker says that she needs to take
pictures of Jackie's body. Her mother, visibly shaken, again
expresses discomfort, but the caseworker tells her "Oh, don't
worry. It's more stressful for the parent than it is the child."
And so Jackie's mother helps Jackie to take offher clothes. The
caseworker asks Jackie to lie down on the bed and spread her
legs. Despite having no training in this specialized work, she
then "[takes/ pictures of Jackie's vagina and buttocks in a
closed position, and then instruct[s] [her mother] to spread
Jackie's labia and buttocks, so that she [can] take pictures of
the genital and anal areas.* For months afterwards, both

v.8/12/2015
v.8/12/2015
Jackie and her mother suffer from nightmares, anxiety, and
depression.
Finding no basis to substantiate its concern that the child
may have been abused, the state closes its case file. Jackie's
mother files suit alleging violations of her and her daughter's
Fourth and Fourteenth Amendment privacy rights. In that
context, the caseworker's supervisor allows that "she would not
1. Roe v. Tex. Dep't of Protective & Regulatory Servs., 299 F.3d 395,399(5th Cir. 2002).
2005] STORMING THE CASTLE TO SAVE THE CHILDREN 415
have taken the pictures but opine(s] that the decision to do so
lay within [the caseworker's] discretion.'5
This story is both recent and true. Child welfare investigations
tend to involve strip searches or genital examinations only when
the state suspects that a child has been the victim of serious
physical or sexual abuse; however, even mundane abuse and neglect
reports investigated by officials acting in good faith can result in
deeply intrusive state action that touches upon aspects of privacy
that the culture and law typically have considered fundamental.
State officials, including caseworkers and the police, annually
conduct about 2 million such investigations which generally involve
entry into and search of the family home, and interviews with and
physical examinations of the children whose welfare is in question.

v.8/12/2015
v.8/12/2015
In many cases the latter occur during school hours, so that parents
do not know about them and are unable to interfere. And, states
formally rely upon their officials' ability to conduct investigations
unfettered by procedures designed to safeguard the privacy of the
family so they can exercise the maximum discretion possible in
this process. Specifically, although such investigations seek
evidence that could support both a criminal and civil charge, and
touch upon the Fourth Amendment's most hallowed ground—the
personal residence and the person herself—states generally pursue
their approach as though there is a child abuse exception to the
Fourth Amendment's presumptive requirements of a particularized
warrant and probable cause!
The premise underlying this approach to the child maltreatment
problem is that privileging family and individual privacy risks
enormous damage to children who might be the victims of abuse or
neglect. Indeed, some have argued (including myself in a different
context) that it is precisely a strong cultural and legal concept of
privacy that allows maltreatment of vulnerable family members to
2. Id.
3. The Fourth Amendment provides that "(t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated; and no Warrants shall issue but upon probable cause, supported by Oath or
v.8/12/2015
v.8/12/2015
affirmation, and particularly describing the place to be searched, and the person or things
to be seized." U.S. C0NST. amend. W.
416 WILLIAM AND MARY LAW REVIEW Wol. 47:413
occur.' As applied to child welfare programs, this argument
suggests that where the government is unable to investigate reports
of the possibility that children are at risk, some children will
continue to suffer and even to die at the hands of their abusive
parents and guardians. A child welfare exception to the Fourth
Amendment's presumptive requirements is believed to be essential
to protect these children.
Perhaps because many states agree with these arguments,
their practices have gone largely unimpeded by the courts: The
United States Supreme Court has yet to decide a case involving
the constitutionality of child maltreatment investigations, and in
particular, the Fourth Amendment's applicability to those investigations. Moreover, no state supreme court has addressed this issue
in a straightforward manner. The lower courts, including the
federal circuits and state appellate courts, only recently have
begun to hear relevant cases in large enough numbers to provide
a sense of how the issue is percolating. Notably, while all of the
federal circuits agree that the Fourth Amendment applies to state
maltreatment investigations, they are split on the essential
question whether it requires a particularized warrant and probable

v.8/12/2015
v.8/12/2015
cause, 5 or merely some version of the administrative or "special
4. See, e.g., DORIANE LAMBELET COLEMAN, FIXING COLUMBINE: THE CHALLENGE To
AMERICAN LIBERALISM 6-9,91-144(2002) (arguing that American liberalism, particularly as
ensconced in the First Amendment's free speech doctrine and the Fourteenth Amendment's
doctrine of parental autonomy, enables adults to create harmful circumstances for children
and precludes law-based solutions to those circumstances); Judith G. McMullen, Privacy,
Family Autonomy, and the Maltreated Child, 75 MAiQ. L. Ray. 569, 569 (1992) (setting out
the thesis that "[a]ttempts to accommodate family autonomy and privacy interests have
significantly compromised the protection of our children"); Jim Puzzanghera, The Dilemmas
of Child Welfare: Protect Kids or Preserve Family?, NEWSDAY, Jan. 17, 1993, at 53 (referring
to a policy of protecting the rights of parents and keeping families together as being
"sometimes at the expense of children in danger").
5. A particularized warrant is one which, according to the Amendment's own terms,
"particularly describ[es] the place to be searched, and the persons or things to be seized."
U.S. CONST. amend. IV; see also infra notes 136.38, 322-33 and accompanying text
(explaining that particularization is essential to assure that investigations are appropriately
fettered in scope, and concomitantly that the investigating officials cannot exercise undue
discretion in their conduct). Although the quantum of evidence necessary to meet the
probable cause teat may have varied historically and is often said to mean different things
in different contexts, a survey of judges indicates that the threshold is substantially higher
than that necessary to meet the reasonable suspicion test, which states tend to apply to their
child maltreatment investigations, and which courts tend to apply in removal cases under
v.8/12/2015
v.8/12/2015
the Fourteenth Amendment. See infra notes 132.35 and accompanying text (describing these
needs" exception to the traditional warrant preference.' Depending
on how liberally it is applied, the special needs standard is effectively the child welfare exception to the Fourth Amendment that
states seek to perpetuate, as it may permit warrantless intrusions
on the basis of no, mere, or reasonable suspicion.
The profound irony of this approach is that, in the name of saving
children from the harm that their parents and guardians are
thought to pose, states ultimately cause more harm to many more
children than they ever help. In 2002, for example, the states
conducted approximately 1.8 million investigations concerning
the welfare of nearly 3.2 million children. Only about 896,000, or
twenty-eight percent, of these children were ultimately found to be
victims of abuse or neglect .7 Seventy-one percent, or roughly 2.3
million children were thus subjected to state mandated "thorough"
investigations involving at a minimum interviews, examinations,
and/or home visits, in circumstances where the state in the end
could not show that the children were unsafe and in need of rescue."
points in detail).
6. The United States Supreme Court has held that, except in "a few specially
established and well-delineated exceptions," it is per as unreasonable for the government to
search or to seize in the absence of a warrant issued by a neutral magistrate on a finding of

v.8/12/2015
v.8/12/2015
probable cause. Katz v. United States, 389 U.S. 347, 357 (1967). Joining the traditional
consent and exigent circumstances exceptions, the special needs doctrine has developed as
a narrow but important exception to these conventional strictures. It applies when an
investigation's primary programmatic purpose is civil and not law enforcement related.
Where it applies, the constitutionality of a search or seizure depends on the outcome of a
reasonableness balancing analysis. The exception has resulted in reductions in privacy
protections ranging from the elimination of both the particularized warrant and probable
cause standards, to the requirement of a warrant but on less than probable cause, that is,
on the grounds of no, mere, or reasonable suspicion. See infra notes 160-253 and
accompanying text (discussing in detail the special needs exception and its applicability to
child welfare investigations).
7. See infra notes 25-45 (providing this data).
8. Seventy one percent represents the percentage of cases investigated in which the
state ultimately did not substantiate the original report. I take the position in this Article
that, despite its beneficent intent, the state does more harm than good in many if not most
of these cases. A report may be unsubstantiated for two principal reasons: First, there may
have been no abuse or neglect to begin with, because the report was either fraudulent or
simply wrong. Second, there may have been some evidence of abuse or neglect, but not
enough to allow the relevant officials to substantiate the report. A portion of the cases in this
category likelyinvolves maltreatment that goes undiscovered. There are data suggesting that
fifteen percent of all New York reports, or approximately 300,000 reports annually, are
intentionally false. IRA MARK ELLMAN ET AL., FAMILY LAW: CASES, TEXT, PROBLEMS 1384.88
v.8/12/2015
v.8/12/2015
(3d ed. 1998) (providing data from the New York Department of Social Services on
Investigating these children is consistent with the states' highly
precautionary strategy to remedy the nation's maltreatment
problem. However, from the perspective of the investigated child,
the process is not so clearly meritorious. Indeed, despite the
authorities' best intentions, the process can be harmful in two
related ways. First, the investigations undermine the fundamental
values of privacy, dignity, personal security, and mobility that are
protected by the Fourth Amendment. It is critical in this regard
that the Fourth Amendment uniquely has been interpreted to
recognize the child's own individual interest in these values, by
guarding her right also to be free from unreasonable searches and
seizures both inside and outside the family home.' Second, as the
intentionally false reports, including reports filed by spouses in contentious divorce and
custody situations). It has also been persuasively argued that a significant percentage of
investigated reports ultimately involve only poverty and not maltreatment. Douglas J.
Besharov, ChildAbuse Realities: Ouer-ReportingPoverty, 8VA. J. Soc. POL'Y&L. 165,183-88
(2000). On the other hand, the National Clearinghouse on Child Abuse and Neglect
Information suggests that close to 63,000 investigations annually, implicating approximately
100,000 children, yield some evidence of maltreatment, but in an amount insufficient to
substantiate the allegation under state law. NAT'I CLEARINGHOUSE ON CHILD ABUSE &
v.8/12/2015
v.8/12/2015
NEGLECTINFO., U.S. DEP'T OFHEALTH & HUMAN SERvS., CHILD MALTREATMENT 2002, at 716.
1 tbls.2-5 (2004) [hereinafter CHILD MALTREATMENT 2002], available athttp:llwww.acf.bhs.
gov/programs/cb/publicationslcmo2/cmO2.pdf. Other than these analyses, I have found
nothing that attempts to allocate the 71 percent of unsubstantiated cases among the two
explanations provided above. Thus, as between these two explanations, there simply is not
an adequate basis to say in which category most cases fall. Certainly, there is no basis to
conclude that any large percentage of these unsubstantiated cases involved children who
were, in fact, the victims of unproven maltreatment. The 71 percent figure is thus a rough
one. Nevertheless, as the only figure available, it does evidence that each year states
intervene in the lives of approximately 2.3 million children where the intervention is not
needed or where it fails to help a child at risk. One of my objectives is to challenge the
assumption implicit in the prevailing approach that these interventions are harmless for the
children involved.
9. See infra notes 173.74 and accompanying text (discussing this aspect of the doctrine).
I claim in this Article that the Fourth Amendment is "unique" in this regard because the
First and Fourteenth Amendments, under which the subject of family privacy is typically
considered, do not usually provide "rights" to the children, but rather assume that their
"interests" will be adequately cared for by the adults responsible for their care. See COLEMAN,
supranote 4, at 100 (noting this point in the context of the Fourteenth Amendment's doctrine
of parental autonomy). Moreover, in practice, the procedural protections afforded individuals
under the Fourth Amendment are likely stronger than under the Fourteenth Amendment.
See infra notes 132.35 and accompanying text (describing the quantum of evidence typically
v.8/12/2015
v.8/12/2015
required to meet the Fourth Amendment's probable cause standard as opposed to the
Fourteenth Amendment's reasonable suspicion standard). I use these distinctions, among
others, in a companion piece entitled Through the Prism of the Fourth Amendment: A New
Look at Family Privacy to develop the argument that the Fourth Amendment has important
20051 STORMING THE CASTLE TO SAVE THE CHILDREN 419
introductory illustration intimates, depending upon the child and
the nature of the investigation, the process can cause emotional and
psychological damage ranging from temporary discomfort to
significant long-term harm.'°
If this strategy were a particularly effective tool in the battle
against child maltreatment, it might be more defensible. However,
even its proponents concede that because abuse and neglect are
underreported, many more victims exist than are known to the
system. 11 And they surmise that the investigations that do take
place sometimes, or even often, fail to discover adequate evidence
of maltreatment in cases where children are in fact truly victims.' 2
Meanwhile, states largely ignore alternative approaches that could
enhance the success of their efforts. For example, states could do
more to increase societal awareness of the need to report child
abuse with relevant particularity, especially in localities and among
populations known to be reluctant to do so.' They could work to
reconcile the current conflict among experts about how to define

v.8/12/2015
v.8/12/2015
and as yet unrecognized contributions to make to the continuing evolution of family privacy
theory. Doriane Lambelet Coleman, Through the Prism of the Fourth Amendment. A New
Look at Family Privacy (work in progress, on ifie with author).
10. The range of emotional and psychological damage that can be caused by the
investigations process is discussed throughout this Article. However, the argument and
supporting cases and studies are featured in Parts I.C, TUB, and uI.D.
11. See NAT'L CLEARINGHOUSE ON CHILD ABUSE & NEGLECT IiePo., U.S. DEP'T OF HEALTH
& HUMAN SERVS., CURRENT TRENDS IN CHILD MALTREATMENT REPORTING LAws 21.22(2002)
[hereinafter CURRENT TRENDS] (discussing the dangers of both over and under-reporting in
the mandatory reporting sstem currently in force throughout the country); CHILD
MALTREATMENT 2002, supra note 8, at 716-17 tbla.2-5 (2004) (noting that of the
approximately 1.8 million child welfare investigations conducted annually, close to 63,000,
which implicate over 100,000 children, conclude that child abuse is "indicated" but that
"maltreatment [could not] be substantiated under state law or policy, [even though] there
was reason to suspect that the child may have been maltreated or was at risk of
maltreatment").
12. See supra note 8 and accompanying text (providing illustrations of this view).
13. For example, North Carolina, one of the states with the highest annual incidence of
child maltreatment, requires "every person to report suspected maltreatment." N.C. CHILD
ADVOCACY INST., NORTH CAROLINA CHILD PROTECTIVE SERVICES DATA CARD (2004). However,
"[i]t does not require citizens to provide any proof." Id.; see also State v. Wilkerson, 247
S.E.2d 905, 907.08 (N.C. 1978) (case in which neighbors and friends witnessed repeated
v.8/12/2015
v.8/12/2015
incidents of father severely beating toddler, and only described those incidents after child
was killed after a beating); Leslie Boyd, DSS Can't Investigate Abuse Allegations if It Is Not
Made Aware of the Situation, ASHEVILLE CITIZEN-TIMES, Apr. 25, 2004, at lÀ (noting
importance of reporting suspected maltreatment, and setting out maltreatment definitions,
reasons for suspicion, and information about what a citizen might expect when filing a
report).
abuse and neglect, to eliminate definitions that are so broad they
give officials on the ground unfettered discretion to define maltreatment,' 4 and to make sure that the definitions that remain include
real instances of maltreatment that society currently prefers to
ignore.' 5 Perhaps most importantly, they could do what is necessary
to hire, tram, and retain officials to work in the field who are given
an appropriately sized caseload, sufficient support, and clear
guidelines to reduce the extent of their discretion, so that they can
do their jobs with due care and precision, and with respect both for
the privacy of the family and for the health and safety of all of the
children who are subject to their programs and procedures.' 6 These
alternative strategies are not cheap and in some respects they
14. See NAT'L CLEARINGHOUSE ON CHILD ABUSE & NEGLECT INFO., U.S. DEP'T OF HEALTH
& HUMAN SERVS., STATE STATUTE SERIES 2005: DEFINITIONS OF CHILD ABUSE AND NEGLECT
3 (2005) [hereinafter DEFINITIONS], available at http-J/nccanch.acfhhs.gov/general/legal/
statutes/deflne.pdf (stating that "[tihe standard for what constitutes an abusive act varies
v.8/12/2015
v.8/12/2015
among the States," and states with broader definitions provide child protective services with
greater discretion in determining what constitutes abuse).
15. See COLEMAN, supra note 4, at 23-27, 56-66 (exploring the manifestations of the
epidemic of childhood emotional dysfunction in the U.S. and discussing the absence of
adequate parenting and childcare that is principally responsible for this epidemic).
16. See, e.g., JOHN BOWLBY, CHILD CARE AND THE GROWTH OFLOVE 140 (Margery Fry ed.,
1970) ("Only if the caseworker is mature enough and trained enough to respect even bad
parents and to balance the less-evident long-term considerations against the manifest and
perhaps urgent short-term ones, will she help the parents themselves and do a good turn to
the child."); GWENDOLYN L. HARRIS, N.J. DEP'T OF HUMAN SERVS., TRANSFORMING CHILD
PROTECTIVE SERVICES IN NEW JERSEY: DYFSTRANSF0RMATION PLAN 3-4(2003), available at
http://www.state.nj.uslhumanserviceslReportslflYFS %2oTransformation%2OPlan-O3pdf
(calling for increased resources and finding that the New Jersey Division of Youth and
Family Services lacks the sufficient and required tools to support staff' in terms of access
to supervision, technology, equipment, training, and worker safety); Don't Economize on
Saving Children, INDIANAPOLIS STAR, Feb. 9, 2004, at 8A (calling for the appropriation of
funding for two child protection bills passed to reform Indiana's child protective services
system, "a system with a policy of secrecy and an admitted history of underreporting child
deaths"); Jessica Guenzel, A Little Girl Lost: State Review Will Try to Determine Whether
Cracks in DSS System Led to Toddler's Death, WINSTON-SALEM J., Nov. 9, 2003, at Al
(reporting on the death of a two-year-old girl attributed in part to "high turnover rates,
unfilled positions and inadequate financing" negatively affecting the county's social services
v.8/12/2015
v.8/12/2015
department); Susan K. Livio, Problems Multiplied for DYFS in 2003, STAN-LEDGER (New
Jersey), Dec. 28, 2003, at 1 (reporting that following the discovery of "the battered body of
a 7-year-old boy," the New Jersey state government took steps to overhaul its "chronically
understaffed, underfunded Division of Youth and Family Services"); Jonathan Martin, ChildAbuse Hotline Puts Callers on Hold, SEATTLE TIMES, Mar. 20, 2003, at Bi (reporting
that
because of understaffing and budget cuts a hotline "intended to more efficiently dispatch
state child-abuse investigators" had up to two-hour hold times and complaints unanswered
for a week).
are also conceptually and politically complicated. Reforming the
reporting requirements to demand more of the citizenry and
adopting more precise maltreatment definitions are particularly
thorny issues in these respects. But it is wrong for states annually
to risk the welfare of millions of children and families to avoid the
political and fiscal burdens involved in adopting a more effective
approach to the nation's child abuse problem. It is also wrong to
abandon all respect for the values ensconced in the Fourth
Amendment in support of such a flawed, over- and underinclusive
system.
Children's interests are always particularly vulnerable in the
ubiquitous constitutional and political battle between protecting the
rights of individual adults and governmental exercises of power in
v.8/12/2015
v.8/12/2015
the name of the public good. Advocates of the prevailing approach
to the maltreatment problem are right to be concerned about
unfettered family privacy, for children are "the Achilles heel of
liberalism."" Enabled and then protected by liberalism's doctrine
of parental autonomy, adults sometimes cause great harm to their
children."' Understanding this is not the end of the story, however,
for sometimes the opposite is true. Sometimes, in its zeal to protect
children from the perceived and real inclinations of their parents
and to safeguard its own health and welfare, the state itself
commits violent acts that harm the children. The most prevalent
example of this phenomenon throughout history—which I believe
is again at issue in the context of this Article—has been the
needless separation either psychologically or physically of healthy
children from their normally functioning families."' Discerning the
17. This wonderful expression, which explains much about the state of childhood in the
liberal scheme, has been attributed to Professors Steven Shiffrin, whose article, Government
Speech, 27 UCLA L. REv. 665,647 (1980), appears to contain the expression's first mention
in the legal literature, and Larry Alexander, whose article, Liberalism as Neutral Dialogue:
Man and Manna in the Liberal State, 28 UCLA L. Rsv. 816, 855 (1981), was published
shortly after Shifrin's.
18. See COLEMAN, supra note 4, at 99.107 (exploring this idea).
19. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 401.02(1923) (discussing the draconian
v.8/12/2015
v.8/12/2015
removal policies of the Ancient Spartan state); State v Kargar, 679 A.2d 81, 82-85 (Me. 1996)
(describing the removal of a young boy from the custody of his Afghani immigrant parents
because of biased conceptions about the nature of Afghani cultural practices and their
tendency to harm children); Nancy McDaniel & Nita C. Leecher, The History of Child
Protective Services, in HELPING IN CHILD PROTECTiVE SERVICES: A COMPETENCY-BASED
CASEWORK HANDBOOK 39 (Charmaine Brittain & Deborah Esquibel Hunt eds., 2004)
(discussing the New Deal program of Aid to Families with Dependent Children (AFDC) as
necessity of a separation is obviously the critical issue. In this
Article, I argue that the Fourth Amendment's unusually express
and considered compromise between individual rights and social
order, and the presumptive requirements that codify that compromise, are particularly useful tools to resolve this issue because they
assure that we always balance the threat of private violence against
the public violence that necessarily results from governmental
searches and seizures." More than that, though, the Amendment
recognizes that while privacy sometimes permits the individual to
"established to prevent child welfare authorities from removing children from their parents
forfinancial reasons"); Lone Graham, Indigenous Peoples: Reparations and the Indian Child
Welfare Act, 25 LEGAL STUD. F. 619, 624-26 (2001) (noting that "[b]y the time [the Indian
Child Welfare Act] was enacted into law in 1978, one-third of all Native American children
were being removed from their communities and families and placed in non-Indian foster
care, adoptive homes, and educational institutions" and discussing at length the reasons and
v.8/12/2015
v.8/12/2015
consequences of such unnecessary removals); Jonathan L. }Iafetz, "A Man's Home Is His
Castle?" Reflections on the Home, the Family, and Privacy During the Late Nineteenth and
Early Twentieth Centuries, 8WM. & MARY J. WOMEN & L. 175,178,207-08(2002) (describing
the increased regulatory activity of government during the late nineteenth and early
twentieth centuries, stating, "intervention in the homes of poor families expanded through
child neglect and abuse investigations, and frequently led to the removal of children to
institutions").
20. In his most recent work, Fourth Amendment scholar Andrew Taslitz develops the
compelling argument that government searches and seizures are inevitably acts of "political
violence." ANDREW E. TASLITZ, LAW ON THE STaRRy: SEARCH AND SEIZURE, RACEAND RESPECT
IN AMERICAN LIFE (forthcoming 2006). In Professor Taslitz's words, "[a]bsent a citizen's
voluntary consent, all police activity involves violence or its threat. A'search' is by definition
an unwanted, thus forced, invasion of a reasonable expectation of privacy. A 'seizure'
similarly is anunwanted interference with a person's freedom of movement or his possessory
interest in property." Id. As he describes it, this violence typically causes its subjects to
experience a range of emotional responses including fear, degradation, humiliation, and
indignity along with its obvious physical impacts including confinement. Id. And he insists
that these facts ought not to be obscured simply because political violence "may often be
legitimate, necessary to enforcing the law, to encourage respect for it, and to catch the bad
guys." Id. Indeed, given that the Framers were "distrustful of the state, fearful that it [would]
use its awesome force to .. impose tyrannical rule in ways both large and small," Taslitz
suggests that "[t]he Fourth Amendment is best understood ... as ... an attempt to tame
v.8/12/2015
v.8/12/2015
political violence, ensuring its service to the 'security' of a free People by prohibiting
unreasonable exercises of the state's use of force." Id. In other words, the Amendment's own
terms, which Taslitz agrees involve a preference for the particularized warrant and probable
cause, strike the balance between "[t]he right of the People to be secure in their persons,
houses, papers, and effects," see U.S. CONST. amend. N, and the need for the government
to be allowed to commit acts of political violence to secure "the 'public' or 'common' good," see
TASLITZ, supra. Because I think that it more aptly describes the acts of the government in
child welfare cases, I use the term "public violence" in lieu of Professor Taslitz's "political
violence," but the essential point is the same.
hide bad facts, it always means the right to dignity, personal
security, and mobility. This last and deeply valuable idea ought not
be abandoned, certainly not in the name of saving children who can
benefit from it as much as adults.
The important relationship of the Fourth Amendment to the child
welfare system has been surprisingly neglected by the legal
academy. This dearth of scholarly attention is especially surprising
given the judiciary's deeply conflicting views on the subject. Largely
because of their tendency to focus on criminal procedure to the
exclusion of even dual (civil-criminal) purpose investigations, no
Fourth Amendment scholar has given the matter much attention in
the legal literature or in case or hornbooks. 21 And because of their

v.8/12/2015
v.8/12/2015
tendency to focus on the First and Fourteenth Amendments and
state law, family and children's law scholars also have ignored the
subject, both in the legal literature and in casebooks. 22 Occasional
21. Most notable in this regard is that Wayne R. LaFave's essential treatise contains only
a brief section referring to the subject. See WAYNE R. LAFAvE, SEARCH AND SEIZURE: A
TREATISE ON THE FOURTH AMENDMENT § 10.3, at 457 (3d ed. 199 (focusing on case law
involving home visits as a condition to receiving state welfare funds, and within that context
discussing also ordinary child abuse investigations). In that section, he notes that addressing
the subject further is unnecessary because 'it has been thoughtfully addressed in the recent
legal literature." Id. § 10.3, at 464-65. As explained below, this is in fact not the case. See
infra note 23 and accompanying text. Professor LaFave also notes that the subject has
"seldom emerged in the reported cases." LAFAVE, supra § 10.3, at 464. He provides a "but
see" cite to one federal appellate case and two state cases. Id. § 10.3, at 464 n.32. Of course,
as Iwill discuss below, this issue has emerged quite strongly in the reported cases in the last
ten years. See infranotes 169-89 and accompanying text (discussing this case law). Professor
LaFave otherwise relies on dated analyses from two older articles to suggest that the legal
standard likely requires a warrant but only on a finding of reasonable suspicion that
maltreatment has occurred or that a child is at risk of abuse or neglect. Id. § 10.3; see infra
notes 328, 337.39 and accompanying text (discussing the relevance of this work). Most
important from a doctrinal standpoint is the absence from Professor LaFave's treatise of any
discussion of the relevance of modern special needs analysis to this obviously apposite body
Of facts.
v.8/12/2015
v.8/12/2015
22. See, e.g., JUDITH ARBEN, FAMILY LAW: CASES AND MATERIALS (4th ad. 1999)
(containing important treatment of issues implicated by abuse and neglect laws, and an
article excerpt arguing that mandatory reporting requirements, among other things, trigger
intrusive investigations, and thus ought to be considered most carefully, but otherwise not
mentioning investigations and their relationship to the Fourth Amendment); ROGER J.R.
LEVESQUE, CHILI) MALTREATMENT LAW: FOUNDATIONS IN SCIENCE, PRACTICE AND POLICY 295.
374 (2002) (containing a chapter entitled 'Seizing Children, Terminating Relationships and
Providing Alternate Care," which despite the 'seizure" language focuses exclusively on
Fourteenth Amendment issues and does not otherwise address maltreatment investigations
or any Fourth Amendment issues); ROBERT H. MN00KIN & D. KELLY WEISBERO, CHILD,
FAMILY, AND STATE: PROBLEMS AND MATERIALS ON CHILDREN AND THE LAw (4th ed. 2000)
flurries of interest in this relationship have arisen over the last 15
years, which have generated two particularly noteworthy pieces. 23
(containing a substantial treatment ofthe broader subject entitled 'Protecting the Child from
Abuse and Neglect" and a subcategory called "Discovery of Abuse" but focusing exclusively
in that context on reporting laws, and then skipping directly to "The Causes and Effects of
Abuse and the Treatment of the Abusing Family"); Michael Wald, State Intervention on
BehalfofWeglected"Children:A Search for Realistic Standards, 27 STAN. L. REV. 985,1000-
36 (1975) (discussing the risks and utilities inherent in the child welfare scheme, including
in the investigation process, without noting the Fourth Amendment's relevance to this area).
Indeed, I have found only one family law text that gives any attention to the matter; its
v.8/12/2015
v.8/12/2015
authors state the problem exactly and nail the critical question on its head. See ELLMAN ET
AL., supra note 8, at 1384-87. Reflecting on the large number of unfounded reports and
unsubstantiated claims that pervade the system, its authors note that "[p]ractices used in
child abuse investigations are also the subject of increasing criticism." Id. at 1385. In support
of this point, they cite "the provisions, explicit or implied, in many states that allow coercive,
investigatory home visits, often without a search warrant or the necessity of establishing
probable cause." Id. The authors then ask:
What is to be made of [the] criticisms [regarding the practices used in child
abuse investigations]? The risks of inaction, and of overly-aggressive
intervention, are both severe: failing to stop abuse causes great harm, even
death, to children; false accusations, aggressively pursued, can destroy families
and reputations.... egregious examples of both are plentiful. Has the law shown
enough sensitivity to the need to balance the risks of both mistakes? What
improvements seem most necessary in this area?
Id. at 1387. My goal in this Article is specifically to address this series of questions.
23. Both pieces attempt squarely and thoroughly to address whether and how the Fourth
Amendment applies to child welfare investigations, and both recognize the critical
significance of the special needs exception to the analysis of this issue. The first piece is a
scholarly student note by Michael R. Beeman, Note, Investigating Child Abuse: The Fourth
Amendment and Investigatory Home Visits, 89 C0LUM. L REV. 1034(1989), which argues in
an older doctrinal context that the appropriate balance of the state's need for an investigation
and the family's right to privacy mitigates in favor of requiring only an administrative
v.8/12/2015
v.8/12/2015
warrant issued on the basis of the investigation's reasonableness in the circumstances,
rather than on the basis of probable cause. The other piece is a more pragmatic article by
Mark Hardin, the Assistant Director of the American Bar Association's National Legal
Resource Center for Child Advocacy and Protection. Mark Hardin, Legal Barriers in Child
Abuse Investigations: State Powers and Individual Rights, 63 WASH. L. Ray. 493 (1988).
Hardin's article provides a detailed analysis of then-applicable Fourth Amendment law to
all conceivable aspects of child maltreatment investigations in the context of his thesis that
states ought to enact legislation specifically authorizing CPS and police to force compliance
with child abuse investigations when necessary. Id. at 517-19. Hardin argues that such
legislation ought to require a warrant on reasonable suspicion for social workers and on
traditional probable cause for police in particularly intrusive settings. Id. at 536-48.
A few other pieces discuss aspects of the issues this Article raises. See Alan W. Blackman,
Comment, Warrantless Home Searches: The Road to Calabretta, 22 J. Juv. L 64(2001.2002)
(providing an overview of the special needs doctrine's evolution and its application to the
child abuse investigation in Calabretta v. Yolo County Dept of Social Services, 189 F.3d 808
(9th Cir. 1999)); Steven F. Shatz et al., The Strip Search of Children and the Fourth
Amendment, 26 U.S.F. L. REV. 1 (199 1) (arguing from the child development perspective that
This earlier work, however, was produced before the Supreme Court
refined the parameters of the Fourth Amendment's special needs
exception, and before the issue had received attention from the
federal appellate courts. Consequently, it is relatively unhelpful in

v.8/12/2015
v.8/12/2015
today's quite different jurisprudential climate. And because it gives
no more than a passing nod to the crucial individual interests and
real-world harms implicated by the states' current investigatory
approach, it also fails to tee up the facts so as to allow a thorough
evaluation of the competing interests at issue. This Article seeks to
fill this broad and deep hole in the legal literature.
Part I first summarizes the child maltreatment problem and
describes the prevailing approach to investigating reports of abuse
and neglect. It then explores the real-world impact of this approach,
arguing that an unfettered and overbroad investigatory tool comes
at a steep cost to literally millions of children and families. Part II
sets out relevant Fourth Amendment doctrine and examines
whether the special needs exception might constitutionalize the
prevailing strategy of conducting warrantless investigations, often
on little more than mere suspicion. This doctrine applies where
"special needs, beyond the need for normal law enforcement"
renders these protections "impracticable."" Part II concludes that
the degree of interconnectedness between civil and law enforcement
authorities and motivations that underlie many if not most
investigatory schemes likely will preclude the doctrine's usefulness
the standards applied to governmental strip searches of children ought to vary based on the
child's age); Michael Compitello, Comment, Parental Rights and Family Integrity: Forgotten
v.8/12/2015
v.8/12/2015
Victims in the Battle Against Child Abuse, 18 PACE L REv. 135 (1997) (recognizing that child
abuse investigations often cause more harm than good so that a healthier balance must be
struck between family privacy and the states' need to investigate maltreatment reports, and
arguing that because the courts and the constitutional doctrine under the First, Fourth, and
Fourteenth Amendments are ineffective in this context, a legislative solution protecting
family privacy would best achieve this needed balance); Jilhian Grossman, Note, The Fourth
Amendment. Relaxing the Rule in Child Abuse Investigations, 27 FoRDHAM IJRB. L.J. 1303
(2000) (proposing that children be able to consent to searches and that the evidentiary
standard for exigent circumstances in child abuse cases be lowered to reasonable suspicion
to allow the government greater latitude in such investigations); Christina B. Sailer, Note,
Qualified Immunity for Child Abuse Investigators: Balancing the Concerns ofProtecting Our
Children from Abuse and the Integrity of the Family, 29 J. PAle. L. 659 (1990) (contending
that allowing officers qualified immunity from civil rights claims in child maltreatment
contexts best reflects the balance between family privacy and the state's need to investigate
maltreatment allegations).
24. New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring).
for this purpose. My own view is that absent exigent circumstances
or lawfully obtained consent, the Fourth Amendment's presumptive
warrant and probable cause requirements ought to apply whenever
the state investigates children and their families in this context.
As the introductory illustration reflects, CPS acting alone can do

v.8/12/2015
v.8/12/2015
substantial harm to a child and her family. Part Ill thus develops
a normative argument based in fundamental Fourth Amendment
principles rejecting the exception. The investigations are generally too intrusive of deeply and reasonably held expectations
about privacy, dignity, personal security, and mobility, to justify
unfettered official intervention. I conclude that the Amendment
provides a unique and unexplored opportunity within the constitutional jurisprudence to solve the delicate cultural impasse
between advocates of family privacy and proponents of aggressive
maltreatment programs in a way that best reflects the children's
need for protection against both private and public violence.
I. THE PREVAILING APPROACH TO MALTREATMENT INVESTIGATIONS
Approximately 896,000 children are abused or neglected in the
United States each year. 25 The maltreatment included in this
estimate ranges from physical beatings and sexual abuse to
medical, nutritional, and emotional neglect. 26 At least 1,400
children die each year from the most serious instances of maltreatment. 27 The majority of child victims are below age three, with 41
percent of fatalities involving children under age one, and 76
percent involving children under age four."' Undoubtedly, abuse
25. This statistic is based on the number of cases that CPS agencies across the country
were able to substantiate. CHILD MALTREATMENT 2002, supra note 8, at xiv.
26. Id. at 22. Broken down by category, the data reveals that
[d]uring 2002, 60.5 percent of victims experienced neglect (including medical
neglect); 18.6 percent were physically abused; 9.9 percent were sexually abused;
v.8/12/2015
v.8/12/2015
and 6.5 percent were emotionally or psychologically maltreated. In addition,
18.9 percent of victims experienced such "other" types of maltreatment as
"abandonment," "threats of harm to the child," and "congenital drug addiction."
Id. (citations omitted).
27. NAT'L CL&iuNoHousE ON CHILD ABUSE & NEGLECT INFO., U.S. DEPT OF HEALTH &
HUMAN SERVE., CHILD ABUSE AND NEGLECT FATALITIES: STATISTICS AND INTERVENTIONS 1
(2004) fhereinafter FATALITIES], available at http:/Inccanch.acfhhs.gov/pubslfactsheets/
fatality.pdf.
28. Id. at 2. According to the National Clearinghouse on Child Abuse and Neglect
Information, "[t]his population of children is the most vulnerable for many reasons, including
and neglect is a significant national problem that takes a real and
personal toll on children and families everywhere. Consequently, it
also is a most pressing policy and practical concern of state and
local governments, which are ultimately responsible for developing
and administering the response.
The most recent estimates from 2002 indicate that "2.6 million
referrals, including 4.5 million children, were made to [state and
local] CPS agencies [throughout the United States]." 29 A combination of federal and state statutory law requires either "everyone" or
specially defined categories of persons, including teachers and
doctors, for example, to report suspected maltreatment. 30 The ten
their dependency, small size, and inability to defend themselves." Id.

v.8/12/2015
v.8/12/2015
29. CHmD MALTREATMENT 2002, supra note 8, at 5.
30. See, e.g., Child Abuse Prevention and Treatment Act of 1974, Pub. L. No. 93.247, 88
Stat. 4 (codified as amended in scattered sections of 42 U.S.C. §§ 5101-5116) (conditioning
funding to states for child abuse prevention and treatment programs on states having in
effect, among other things, laws that provide for some form of mandatory reporting of child
abuse); D.C. CODE § 4-1321.02 (2001) (requiring professionals such as medical personnel,
teachers, law enforcement, daycare providers, and others who come into contact with
children through their work to report suspected abuse either to the police or CPS); N.J. STAT.
ANN. § 9:6-8. 10 (West 1993) (requiring "[a]y person having reasonable cause to believe that
a child has been subjected to child abuse or acts of child abuse" to report the information to
the Division of Youth and Family Services); N.Y. Soc. SERV. LAW § 413(1) (Consol. Supp.
2005) (requiring reporting by medical personnel and others that might "have reasonable
cause to suspect that a child coming before them in their professional or official capacity is
an abused or maltreated child," as well as if they gain knowledge of possible abuse by the
parent or guardians coming before them in their professional capacity). Approximately
eighteen states have "any person" reporting requirements, while the majority "limit
mandatory reporting to professionals working with children." CURRENT TRENDS, supranote
11, at 3. The reporting requirements were adopted in the mid. to late 1960s in response to
two important articles that for the first time described as medical diagnoses the "battered
child syndrome" and the "maltreatment syndrome," and provided that a physician's failure
to follow up on the diagnoses constituted a violation of professional ethics. See Vincent J.
Fontana et al., The "Maltreatment Syndrome"in Children, 269 NEW ENG.J.MED. 1389 (1963)
v.8/12/2015
v.8/12/2015
(expanding the "battered child syndrome" diagnosis to include "a situation ranging from the
deprivation of food, clothing, shelter and parental love to incidents in which children are
physically abused and mistreated by an adult," thereby suggesting that by broadening the
diagnosis in this way and renaming it the 'maltreatment syndrome" the term more 'fully
describe[s] the true picture of this often life-threatening condition"); C. Henry Kempe et al.,
The Battered-Child Syndrome, 181 JAMA 17, 17 (1962) (describing the "battered child
syndrome" as "a clinical condition in young children who have received serious physical
abuse" explaining that the diagnosis 'should be considered in any child exhibiting evidence
of fracture of any bone, aubdural hematoma, failure to thrive, soft tissue swelling or skin
bruising ... or where the degree or type of injury is at variance with the history given
regarding the occurrence of the trauma," and stating that "[p]hysicians have a duty and
responsibility to the child to require a full evaluation of the problem and to guarantee that
states with the most annual reports of child maltreatment are, in
descending order: California, New York, Florida, Texas, Michigan,
Georgia, Ohio, North Carolina, Illinois, and Missouri. 31 In describing the typical state policies and practices relating to child welfare
investigations, this Article relies primarily on national figures and
on illustrative provisions and practices from these states.
A. Defining the Cases for Investigation
The first feature of the prevailing strategy involves, at least in
principle, taking no chances and casting the widest net possible in
identifying the cases that will be investigated. This objective is

v.8/12/2015
v.8/12/2015
accomplished through broad legal definitions of abuse and neglect,
and screening criteria that are nearly as broad. It also involves
statutory or regulatory provisions that mandate the investigation
of all screened-in reports, and related provisions that allow state
officials to go to court to compel compliance with the investigations.
Legal definitions of "abuse" and "neglect" are typically vague and
overbroad, often purposefully so. 32 This is to assure that the state
can exercise wide discretion in treating targeted parental conduct
as maltreatment; and it ensures that the state is not precluded
from addressing such conduct by the failure of the legislature or
administrative officials to include all conceivable forms of abuse or
neglect in its laws. 38 For example, although California apparently
no expected repetition of trauma will be permitted to occur"). For a discussion of the history
of the states' child maltreatment efforts, see generally CURRENT TRENDS, supra note 11.
31. CHILD MALTREATMENT 2002, supra note 8, at 16.17 tbl.2-5; see also U.S. CENSUS
BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2002, at 201 tbl.321 (2002) (listing
the same ten states as having the highest number of child abuse reports, albeit in a slightly
different descending order).
32. See generally DEFINITIONS, supra note 14, at 1 (providing the minimum state
statutory definitions of child abuse, neglect, and sexual abuse required by the Child Abuse
Prevention and Treatment Act).
33. See, e.g., People v. Beaugez, 43 Cal. Rptr. 28, 32 (Cal. Dist. Ct. App. 1965) (rejecting
v.8/12/2015
v.8/12/2015
a "void for vagueness" challenge to a state child abuse statute in part because, "[t]he type of
conduct [addressed] defies precise definition" and"[i]n number and kind the situations where
a child's life or health may be imperiled are infinite"); Campbell v. State, 240 So.2d 298,299
(Fla. 1970) (stating that, "[t]he fact that specific acts of chastisement are not enumerated, an
impossible task at best, does not render the statutory standard void for vagueness");
SANFORD N. KATZ, WHEN PARENTS FAIL: THE LAW'S RESPONSE TO FAMILY BREAKDOWN 64
(1971) ("[N]eglect statutes recognize that'neglectftul' behavior can also vary, and thus cannot
be easily or specifically defined.... The broad neglect statutes allow judges to examine each
situation on its own facts."). But see Wald, supra note 22, at 1020 (emphasizing the
has no intention to proscribe such culturally acceptable practices
as ear piercing, male circumcision, or reasonable corporal punishment, it nevertheless defines "physical abuse" all-inclusively, as
"non-accidental bodily injury that has been or is being inflicted on
a child."" Similarly, North Carolina defines a "neglected juvenile"
most broadly to include the child "who does not receive proper care,
supervision, or discipline ... or who is not provided necessary
medical ... or ... remedial care; or who lives in an environment
injurious to [her] welfare...
In part because the definitions of abuse and neglect are so broad,
and because anyone is permitted to make a report, including those
with no training in identifying maltreatment, most states have
procedures to "screen in" reports that conform to their official

v.8/12/2015
v.8/12/2015
interpretations, and correspondingly to "screen out" nonconforming
reports. This process serves to ensure, to the extent possible, that
the state conducts formal investigations only in circumstances
where legally relevant conditions exist. 36 Of the 2.6 million referrals
importance of "specific terminology" as a means of "limit[ing] the scope of intervention,
[clarifying] the types of harm that justify official action, and [constraining] expert testimony
so that it will not be based solely on individual views regarding proper child development").
Wald further points out the difficulty of defining terms such as "inadequate home" and
"inadequate parent," observing that, "[t]here is certainly no consensus about what types of
'inadequate' behavior would justify intervention." Id. at 1022. Moreover, because of the
vagueness of so-called "moral neglect" statutes, "intervention is likely to be haphazard and
subject to the social worker's or judge's personal value judgments." Id. at 1034.
34. STATE OF CAL. ET AL., MANUAL OF POLICIES AND PROCEDURES: CHILD WELFARE
SERVICES § 31-002(9)(B) (2002), available athttpil/www.dss.cahwnet.gov/getinfo/pdf/cwSl.pdf.
35. N.C. GEN. STAT. § 7B-101 (2004). Applying this definition, CPS sought to interview
a two-year-old child apart from her mother and to enter into and examine the family home
based on an anonymous report that the child had once been seen naked and apparently
unsupervised in the family's driveway. In re Stunibo, 582 S.E2d 255,256-57 (N.C. 2003). On
appeal from a lower court's order compelling parental compliance with the investigation, the
North Carolina Supreme Court found that CPS had exceeded its authority in defining neglect
so broadly as to include these facts. Id. at 258.59 (noting that "not every act of negligence on
the part of parents or other caregivers constitutes 'neglect' under the law and results in a
v.8/12/2015
v.8/12/2015
'neglected juvenile," and that, in general, such terms are defined only in situations of "either
severe or dangerous conduct or a pattern of conduct either causing injury or potentially
causing injury to the juvenile"). Nevertheless, absent a parent's willingness to challenge a
proposed investigation in court, the broad definitions continue to serve as only minimal
limitations on official discretion to intervene in the family.
36. Virtually all states "included specific criteria for accepting or excluding referrals
alleging child abuse and neglect," with exclusionary criteria such as third-party perpetrators
not responsible for the child's care, referrals that lacked sufficient information, cases of
educational neglect, and referrals related either to reasonable discipline or custody issues.
OFFICE OF THE ASSISTANT SEC'Y FOR PLANNING & EVALUATION, U.S. DEPT OF HEALTH &
made nationally in 2002,67.1 percent, or approximately two-thirds,
were screened in, and 329 percent, or approximately one third,
were screened out. 37
Most investigations, over 90 percent by some estimates, are
conducted with the apparent consent of relevant adults. 38 As I will
HUMAN SERVS., NATIONAL STUDY OF CHILD PROTECTIVE SERVICES SYSTEMS AND REFORM
EFFORTS: REvIEw OF STATE CPS POLICY ch. III (2003), available at http:/Iaspe.hhs.govl
hsp/CPS-statuso3/state-policyo3lchapter3.htm; see, e.g., GA. DEP'T OF HUMAN Ras., SOCIAL
SERVICES MANUAL §§ 2103.1, .18 (1999) (requiring that reports be screened to assure that
they meet certain criteria before being passed along for investigation). In Georgia, a report
is screened in if (1) it includes an allegation against a known or unknown person who may
v.8/12/2015
v.8/12/2015
be the child's parent, guardian, or caretaker; (2) the alleged victim is under eighteen; and (3)
the report is consistent with the state's maltreatment definition. Id. Most screened-out
reports in Georgia involve dated incidents, educational neglect, incidents of a criminal nature
where the parent's negligence in allowing a child to be exposed to the situation has been
previously ruled out, reports of statutory rape when evidence exists that the parent has
protected the child, allegations concerning an unborn child, juvenile delinquency, and some
poverty and custody issues where the "only indicated concerns contain absolutely no report
of any abuse or neglect." Id.; see also 40 TEx. ADMIN. CODE § 700.503(2003) (requiring that
reports be screened out that involve, inter alia, truancy, runaways, children between the
ages of ten and seventeen who need supervision because they have committed certain
offenses and are already under the juvenile court's jurisdiction, reasonable physical
discipline, latchkey children whose parents have taken "appropriate precautions to assure
the children's safety," or harmful or violent children); N.C.Div. OF Soc. SERVS., N.C. DEP'T
OF HEALTH & HUMAN SERVS., 1 FAMILY SERVICES MANUAL § 1407 (2004), available at
http-J/info.dh s.state.nc.uslolmlmanuals/dss/csm.60/man/CS1407.pdf (requiring that reports
be screened out if they would not "minimally meet the statutory guidelines for child abuse,
or dependency" if true, such as reports of homelessness, head lice, truancy, and ageappropriate sexual activity); OHIO DEPT OF JOBS & FAMILY SERVS., FAMILY, CHILDREN
AND
ADULT SERVICES MANUAL § 5101:2-34-06 (requiring reports to be screened out before
investigation unless they contain at least the names and addresses of the child and her
parents; the child's age; the type, extent, and duration of the alleged abuse or neglect; the
circumstances giving rise to the maltreatment; and the child's current condition).
v.8/12/2015
v.8/12/2015
37. CHILD MALTREATMENT 2002, supranote 8, at 5; see supranote 36 (providing examples
of reasons why reports are screened in or out). Although data is not available about the
source of screened.in, rather than screened-out, reports, "professionals submitted more than
one-half (56.5%) of the [initial] reports," CHILD MALTREATMENT 2002, supra note 8, at 6.
These "professionals" are defined as individuals whose work regularly brings them into
contact with children, and they are generally legally mandated to report suspicions of child
abuse. Id. Of the screened-in reports that are ultimately substantiated, "nearly one-quarter
were referred by legal, law enforcement or justice personnel"; nevertheless, "four groups
of reporters [educational and social services personnel, anonymous reporters, and law
enforcement] accounted for more than one-half of all unsubstantiated reports." Id. at 8; see
also Id. at 18 tbl.2-7.
38. According to a New York CPS official, most families under investigation do not realize
that they have the right not to talk to investigators; if they do recognize the existence of this
right, however, CPS is able to convince them of the value of cooperation "ninety-nine out of
100 times." See Telephone Interview with Official, New York Child Protective Services,
explain below, there is reason to believe that state officials do not
lawfully obtain many of these consents. Specifically, the Supreme
Court has indicated that consent obtained from misleading
representations about the law enforcement motivations underlying
the investigation may be unlawful, as is consent given by children
who are not mature minors. 39 No data exists that describes the
v.8/12/2015
v.8/12/2015
portion of apparently consent-based investigations that fall into
these categories. However, one could reasonably imagine that the
number is not insubstantial as officials appear to rely both on
deception" and school-based examinations"' to avoid parental
interference with the investigatory process.
At the same time, states have developed a variety of compliance
protocols for use in circumstances where parents are approached
but refuse to cooperate with the investigation. They range from
Albany County, N.Y. (June 24, 2003) (on file with author). In some cases, officials may
mislead parents regarding the state's authority to compel cooperation. Thus, Georgia's CPS
manual provides that when parents are uncooperative in a 24-hour investigation, the
investigator should "take immediate action to gain access to the child" by "[i]nform[ing] the
parents of the department's intent to involve courtllaw enforcement unless they immediately
cooperate" with the investigation and, if this step fails, "contact[ing] the agency SAAG
[Special Assistant Attorney General] and/or the Juvenile Court for immediate legal
assistance" or "contact[ing] law enforcement for immediate assistance." GA. Dnp"r OF HUMAN
Ras., supra note 36, § 2104.20. For cases that do not warrant an immediate response from
the courts or law enforcement, CPS is encouraged to (1) "[c]ontactfl relatives, friends, or
neighbors who may be of assistance in gaining entry to the home;" (2) "[c]ontactl] the school
principal or social worker or a public health nurse to assist;" (3) "[s]end[1 the parent written
notification that explains the legal requirement" requiring CPS to investigate or (4)
"[o]btain[] a court order for [the] parent's cooperation." Id. In many cases, the quality of the
v.8/12/2015
v.8/12/2015
consent that is obtained also can be criticized on the basis that a large percentage of the
families subject to investigation are accustomed to state intervention in the home for other
reasons; these families may not be afforded the same privacy protections as those who are
otherwise free from such intervention. For example, the adults involved may be required to
permit home visits as a condition of receiving certain government benefits. See infra note 226
(discussing the Supreme Court's decision in Wyman v. James, 400 U. S. 309(1971)), and notes
296-300 and accompanying text (discussing this phenomenon generally).
39. See infra notes 139-46, 154-55 and accompanying text (discussing the contours of the
consent exception and its misuse by officials).
40. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), is illustrative in this respect. In
that case, a CPS supervisor instructed the assigned caseworkers "to visit the Tenenbaum's
home... to examine the child for marks and bruises, to assure herself that [the child's] living
conditions were acceptable, and to discuss with the Tenenbaums [their child's] sleeping in
school and her delayed development." Id. at 589. "In accordance [with their supervisor's]
instructions, [the caseworkers] did not mention the real reason they were there—the reports
of possible sexual abuse." Id.
41. See infra notes 57-58 and accompanying text (discussing this investigatory approach).
requiring CPS to obtain a court order based on the report and an
affidavit of parental noncompliance, 42 to requiring CPS to obtain a
search warrant based on a finding of probable cause to suspect that
a child is at risk of maltreatment. 43 Notably, the latter approach,

v.8/12/2015
v.8/12/2015
which is most protective of family privacy, is relatively unusual.
42. See, e.g., Telephone Interview with Official, Georgia Department of Human
Resources, Division of Family and Children's Services (June 24, 2003) (on file with author)
(explaining that in Georgia, a court will order parental compliance with a CPS investigation
where the department demonstrates by a preponderance of the evidence that "good cause"
exists to believe that maltreatment has occurred); see also FLA. STAT. ANN. § 39.301(12) (West
Supp. 2005) (providing that, if a parent denies CPS "reasonable access" to the child when
CPS deems access necessary, CPS shall seek a court order or other legal authority); N.C.
GEN.SmT. § 713-303 (2003) (allowing state officials to obtain an order of noncompliance based
on a report and evidence of noncooperation with the investigation); Telephone Interview with
Official, Florida Department of Children and Families (June 24, 2003) (on file with author)
(explaining that the probable cause standard for obtaining a court order under section 39.301
is met "by virtue of a report [of abuse or neglect] being received"); Telephone Interview with
Official, Tennessee Department of Children and Families (July 9, 2003) (on file with author)
(explaining that, if denied access, CPS will first enlist the aid of law enforcement and then
file a motion asking the court to order the investigation's completion without the parents'
consent; the judge then grants the order, for which no standard exists beyond noncompliance
with a statutorily required investigation, so no showing of abuse or neglect is necessary);
Telephone Interview with Attorney, Legal Division, Texas Child Protective Services (June
24, 2003) (on file with author) (explaining that, although compliance orders are generally not
used, "good cause" is usually shown through a report of child abuse or neglect and the lack
of cooperation by the child's family with the investigation).

v.8/12/2015
v.8/12/2015
43. See, e.g., SHELDON SILVER & ROGER GREEN, A GUIDE TO NEW Yoag's CHILD
PROTECTIVE SERVICES SYSTEM 32 (2001) (noting that if a caseworker is not allowed into a
home, a Family Court judge can order the parent to permit entry if the judge concludes by
a fair preponderance of the evidence that probable cause exists to believe that the child has
been abused or neglected); see also Telephone Interview with Official, Communications
Division, Ohio Department of Job and Family Services (July 8, 2003) (on file with author)
(explaining that if denied entry into a home, CPS generally contacts law enforcement for
assistance, who in turn, must obtain a search warrant to gain access to the child and home,
and noting that although court orders are not usually used, they would vary from county to
county depending on the local court rules). Some states formally require CPS to obtain a
warrant on a finding of probable cause, but then define probable cause as being met by the
filing of a report. See, e.g., FLA. STAT. ANN. § 39.301 West Supp. 2005) (requiring court order
in certain circumstances); Telephone Interview with Official, Florida Department of Children
and Families (June 24, 2004) (on file with author) (explaining that probable cause for the
court order is met by receiving a report of abuse).
20051 STORMING THE CASTLE TO, SAVE THE CHILDREN 433
B. The Nature and Scope of the Investigation Itself
Once reports are screened in, the authorities are required to
investigate their allegations. 44 In 2002, the states screened in
approximately 1.8 million referrals involving the welfare of
approximately 3.2 million children. 46 The investigation's purpose is
to gather evidence to determine if the report can be substantiated.

v.8/12/2015
v.8/12/2015
This evidence is typically used by civil authorities whose ultimate
objective is to assure the safety of the child, and by law enforcement
44. See FLA. STAT. ANN. § 39.301(1) (West Supp. 2005) ("Upon receiving an oral or written
report of known or suspected child abuse, abandonment, or neglect, the central abuse hotline
shall determine if the report requires an immediate onsite protective investigation."); GA.
CODE ANN. § 49.5.8(a), (a)(B) (Supp. 2004) ("The Department of Human Resources is
authorized and empowered ... to establish, maintain, extend, and improve throughout the
state ... [Iprotective services that will investigate complaints of deprivation, abuse, or
abandonment of children."); 325 ILL. COMP. STAT. ANN. 5/2 (West Supp. 2005) ("The Illinois
Department of Children and Family Services shall, upon receiving reports [of abuse or
neglect], protect the health, safety, and best interests of the child in all situations in which
the child is vulnerable to child abuse or neglect, offer protective services in order to prevent
any further harm .:., stabilize the home environment, and preserve family life whenever
possible."); MICH. COMP. LAWS ANN. § 722.628(1) (West Supp. 2004) ("Within 24 hours after
receiving a report ... the department ... shall commence an investigation of the child
suspected of being abused or neglected."); Mo. ANN. STAT. § 210.145 (West Supp. 2005) ("All
child abuse and neglect reports shall be initiated within twenty-four hours and shall be
classified based upon the reported risk and injury to the child.... The division shall
immediately communicate all reports that merit investigation to its appropriate local
office."); N.C. GEN. STAT. § 713.302(a) (2003) ("When a report of abuse, neglect, or dependency
is received, the director of the department of social services shall make a prompt and
thorough investigation in order to ascertain the facts of the case, the extent of the abuse or
v.8/12/2015
v.8/12/2015
neglect, and the risk of harm to the juvenile...."); N.Y. Soc. SERv. LAW § 422(2)(,) (ConsoL
1994) ("Any telephone call made by a [mandated reporter],... which if true would constitute
child abuse or maltreatment shall constitute a report and shall be immediately transmitted
to the appropriate local child protective service for investigation."); OHIO Ray. CODE ANN.
§ 2151.421(F)(1) (West Supp. 2004) ("[T]he public children services agency shall investigate,
within twenty-four hours, each report of known or suspected child abuse or child neglect
to determine the circumstances surrounding the injuries, abuse, or neglect... and the person
or persons responsible."); TEX. F. CODE ANN. § 261.301(a) (Vernon Supp. 2004-2005) ("With
assistance from the appropriate state or local law enforcement agency, the department
shall make a prompt and thorough investigation of a report of child abuse or neglect
allegedly committed by a [caregiver]."); STATE OF CAL. ST AL., MANUAL OF PoLiciEs AND
PROCEDURES: CHILD WELFARE SERVICES § 31-101.1 (1993), available at http://www.dss.
cahwnet.gov/getinfo/pd'cws2.pdf( "1'he county shall respond to all referrals for service which
allege that a child is endangered by abuse, neglect, or exploitation [by conducting an
investigation]."); id. § 31.125 (setting out the requirements for an investigation).
45. CHILD MALTREATMENT 2002, supra note 8, at 5 n.3, 21.
434 WILLIAM AND MARY LAW REVIEW (Vol. 47:413
authorities who seek to monitor violations of the criminal code and
sometimes to pursue charges against the offending parent."'
To achieve these objectives, investigations generally include a
home visit, an interview with the child's parents or guardians, and
an interview with and examination of the child . 47 The investigations

v.8/12/2015
v.8/12/2015
46. See U.S. DEPT OF HEALTH & HUMAN SERVS. ET AL., NATIONAL STUDY OF CHILD
PROTECTIVE SERVICES SYSTEMS AND REFORM EFFORTS: SUMMARY REPORT ch. VII (2003),
aunllakthttp//aspe.hhs.gov'hsp/CPS-status03/summaiy/index.htm#Looking(highlighting
the prevailing "competing ideas" that the state's child welfare effort 'should primarily
function as a service to assist families in meeting the needs of their children" and should
work to "assisti] law enforcement to gather the evidence to punish parents who do not meet
societal norms of caring for their children"); infra notes 48-49, 236-42 and accompanying text
(describing the role of law enforcement in the child welfare investigatory scheme). Compare
U.S. DEp'T OF HEALTH & HUMAN SERVS., supra note 36, at ch. 1V (explaining purposes of
investigation including 'determining whether abuse or neglect had occurred or the child was
at risk," 'determining a disposition," 'assessing or remediating safety ... [and/or] risk,"
"determining need for services," "protecting the child," and "maintaining the family"), with
U.S. DEP'T OF JUSTICE LAW ENFORCEMENT RESPONSE TO CHILD ABUSE, PORTABLE GurnEs TO
INVESTIGATING CHILD ABUSE 1 (2001) (emphasizing, in offering an overview, that "[t]he role
of law enforcement in child abuse cases is to investigate to determine if a violation of
criminal law occurred, identify and apprehend the offender, and file appropriate criminal
charges"), and Robert B. Kean, Search and Seizure Law: A Primer for the Child Abuse
Investigator, in USING THE LAW TO PROTECT CHILDREN 129, 131 (1989) (stating that '[t]he
challenge presented to police and other law enforcement investigators is how to protect the
battered or abused child while at the same time gathering evidence which will be admissible
in a criminal trial").
47. See, e.g., FLA. STAT. ANN. § 39.301 (West Supp. 2005) (requiring that the investigation
v.8/12/2015
v.8/12/2015
include (1) a generally unannounced visit to the family home; (2) an overall assessment of
the child's residential environment; and (3) face-to-face interviews with the alleged child
victim, the child's siblings, parents, and other adults in the household); N.Y. Soc. SERV. LAW
§ 424 (Consol. Supp. 2005) (requiring that all screened-in reports be investigated; that the
investigation include an evaluation of the alleged child victim's home environment and
any other children who live in the same environment; a determination of the risk to the
children if they remain in the home; and a determination of the nature, extent, and cause
of the alleged maltreatment); PENN. CODE ANN. § 37-1-406 (Supp. 2004) (providing that
investigations be made promptly and include a home visit; a determination as to the nature,
extent, and cause of the harm; the identity of the perpetrator and others responsible for the
child; the home environments condition; the condition of other children in the home; an
interview with and physical observation of the child; and an interview with the child's parent
or guardian); STATE OFCAL. ETAL., supra note 44, if 31.101,31-110,31-125(2003) (requiring
state officials to conduct an initial investigation of screened-in reports that, unless the official
determines that an in-person investigation is not necessary, includes in-person contact with
the alleged child victim or victims, and with at least one adult who has information
concerning the allegations; if, after this initial investigation, the official concludes that the
allegations are not unfounded, the official must conduct a more thorough investigation that
includes a second round of in-person interviews with the child or children present at the
initial in-person investigation, and with all parents who have access to the child alleged to
be maltreated; additionally, the state must have contact with other persona having

v.8/12/2015
v.8/12/2015
are generally conducted by officials from CPS, either alone or
with the assistance of law enforcement. 48 Depending on the
jurisdiction and the circumstances, some investigations or aspects
of investigations may be staffed exclusively by law enforcement."'
knowledge of the child or children's condition); STATE OF TENN. DEP'T OF CrnioaEN's SERVS.,
ADMINISTRATIVE POLICIES AND PROCEDURES §§ 14.3, 14.5 (2002) (setting out procedures
based on code provisions); SILVER & GREEN, supranote 43, at 6, 31 (explaining that during
the mandated "home visit," CPS look specifically for unattended children, "immediate
observable symptoms" of abuse such as bruises, ongoing parental mistreatment of a child,
and parental intoxication).
48. In many jurisdictions, CPS is authorized to and in fact does investigate cases without
the assistance of law enforcement. On the other hand, even in these states a substantial
degree of collaboration often exists amongst the two agencies. In some jurisdictions, the fact
that child maltreatment is often both a civil and criminal violation drives collaboration
designed "to eliminate unnecessary duplication of effort, to promote proper and expeditious
collection and preservation of evidence, and to 'develop a coordinated system for identifying
and investigating appropriate calls [sic]." DONNA PENCE & CHARLES WILSON, U.S. DEPT OF
HEALTH & HUMAN SERVS., THE ROLE OF LAW ENFORCEMENT IN THE RESPONSE TO CHILD
ABUSE AND NEGLECT 8 (1992) (quoting D.J. BESHAROV, CHILD ABUSE AND NEGLECT
REPORTING AND INVESTIGATION: POLICY GUIDELINES FOR DECISION MAKING 3 (1988))
available at http://nocanch.aAhha.gov/pubstusermanuals/law/law.pdf; see alsoLeroy D. Baca
et al., "Silent Screams"—One Law Enforcement Agency's Response to Improving the

v.8/12/2015
v.8/12/2015
Management ofChildAbuse Reporting and Investigations, 22J.Juv. L. 29,41.47(2001-2002)
(detailing five programs and projects undertaken in Los Angeles County that "allow[ed] all
of the county's child protective agencies to [better] respond to allegations, address the most
critical aspects of investigations and, hopefully, resolve them to the victims' benefit"). In
others, collaboration between the two agencies occurs to assure the safety of the CPS officials
or to maximize "voluntary" compliance rates as parents are typically more likely to consent
to an investigation faced with the in terrorem effect of police presence. PENCE & WILSON,
supra, at 6. For example, Illinois law requires CPS to seek the assistance of law enforcement
where "serious physical or sexual abuse has been alleged" or where there is reason to believe
that the home is unsafe because, for example, the parent is violent or has a lot of weapons.
Telephone Interview with Linda Williams, Illinois Department of Children and Family
Services (June 12, 2003) (on file with author); see generally U.S. DEPT OF HEALTH & HUMAN
SERvS., supra note 36, at ch. W tbL4-D (providing an overview of law enforcement
involvement in child abuse investigations in all fifty states and showing that in almost every
state, law enforcement participates in circumstances involving allegations of severe abuse
and/or cases of emergency removal); infra notes 237.41 (describing thoroughly the
relationships between CPS and law enforcement in this context).
49. This may be the case, for example, where CPS is understaffed and requests that law
enforcement conduct the investigation so that the state's mandatory timelines are met. See,
e.g., Franz v. Lytle, 997 F.2d 784, 785 n.1 (10th Cir. 1993) (noting that police were asked to
investigate the welfare of a child who had excessive diaper rash because no CPS official was
available to do so). Or CPS and law enforcement both may be authorized or required to
v.8/12/2015
v.8/12/2015
respond collaboratively to child maltreatment reports. This could result in officials from the
two agencies actually conducting each aspect of the investigation together, or in the officials
parsing out the work and conducting aspects of the investigation separately. See, e.g., Wallis
v. Spencer, 202 F.3d 1126,1131-35 (9th Cir. 2000) (describing CPS and police in California
During the home visit, officials searching for evidence may enter
the home; walk from room to room; open refrigerators, cupboards,
closets, and drawers; and request that the adults and children
cooperate to locate and examine items or conditions that may be
relevant to the investigation. 50 For example, if a child is reported to
have been neglected, officials may look to see if the home is
relatively clean, and if there are responsible adults, food, clothing,
and other necessaries on the premises."' If the child is reported to
have been excessively disciplined, officials may seek out, in addition
to the child herself, objects or other conditions in the home that
might have been used in such discipline. 52
collaborating on investigations); CM'rY. ALLIANCE OF PALM BEACH COUNTY, CHILD ABUSE
PROTECTIVE INVESTIGATION PROTOCOL (2002) (defining roles and responsibilities for law
enforcement and CPS in child abuse protective investigations; protocol includes a detailed
"wire diagram" that maps out the investigation's steps, the responsibilities of each agency
at each step, and points at which key decisions, such as whether to remove the child, should
be made).
v.8/12/2015
v.8/12/2015
50. For example, North Carolina explains, in most general terms, that "[a] home visit
provides firsthand knowledge of the home environment and observations of family
interactions in their everyday setting. The home visit allows an assessment of the physical
environment, problems and resources within the neighborhood, and family access to
community and family resources." N.C. Div. OF Soc. SERVS., N.C. DEPT OF HEALTH & HUMAN
SERVS., 1 FAMILY SERVICES MANUAL § 1408(fll)(C)(5) (2002), available at http://info.dhhs ,
state.nc.us/olmImanualsIdssIcsm-60/manICS1408.pdf see also infranotes 51-52 (detailing the
scope of the home visit). But see Telephone Interview with Linda Williams, supra note 48
(during home visits, investigators are allowed to view the home, but not to search it—that
is, they may look for signs of abuse or neglect such as broken glass or feces on the floor, but
cannot go through any personal papers, drawers, or cabinets).
51. See, e.g., Janine Tondroweki, Intake and Investigation. Initial Stages ofthe CPS
Process, in HELPING IN CHILD PROTECTIVE SERVICES: A COMPETENCY-BASED CASEWORK
HANDBOOK 185 (Charmaine R. Brittain & Deborah Esquibel Hunt eds., 2004) (stating that,
in cases of chronic child neglect, "[a]ssessing whether the physical living conditions are
hazardous for the children is an important process to ensure safety'. In recommending how
a caseworker should proceed, the author further notes that
[h]aving an adult give [the caseworker] a 'tour' is necessary if [the caseworker]
is to actually observe the conditions throughout the house. (The caseworker]
must determine whether community living standards are met, noting such
items as whether the utilities are functional, the home has hot water, the
plumbing works, and there is a functioning heater. [The caseworker is] also
v.8/12/2015
v.8/12/2015
looking for safety hazards such as exposed wiring, broken glass, and unsanitary
conditions. Only by observing each room in the home can [the caseworker]
assess if there are obvious structural problems that pose a hazard.... Visiting
the kitchen and actually looking for food in the refrigerator and pantry are
necessary in making a complete assessment of well-being.
Id.
52. See, e.g., Calabretta v. Floyd, 189 F.3d 808, 811-12 (9th Civ. 1999) (describing a social
Broad discretion is given to state officials undertaking these
investigations for two reasons. First, reports often are unspecific,
alleging, for example, that a younger child was heard crying, or that
a child was left at home alone. In such cases, officials are given the
latitude to determine the circumstances that led to the report. 58
Second, even specific reports may be evidence of further and
different maltreatment. For example, a report indicating that a
child appears to be malnourished might lead to information that
the child also is being physically and emotionally abused, as
multiple forms of maltreatment sometimes coexist."' In such
cases, merely investigating and even confirming the allegations of
malnourishment would result in an incomplete picture of the child's
circumstances and needs. Thus, for example, North Carolina
requires its investigating officials not only to determine whether the

v.8/12/2015
v.8/12/2015
allegations in the report can be substantiated, but also "to assess
[w]hether the specific environment in which the child is found
meets the child's need for care and protection.""' Recently, the state
has added the requirement that every investigation, regardless of
the allegations in the report, also assess the possibility that the
child has been exposed to domestic violence."'
worker during a home visit examining children for bruises and insisting on seeing the "piece
of Lincoln log roofing" that the mother allegedly had used to discipline the children in the
past); GA. DEP'T OF HUMAN Ras., supra note 36, § 2104.1 (giving the state enormous
discretion in discovering evidence of physical abuse by calling for all children subject to an
abuse or neglect report who are under age one to be undressed and examined for physical
signs of maltreatment, as well as children four years and under who are the subject of a
physical abuse allegation; in the course of this examination, investigators should "[c]onsider
asking the parent's assistance when undressing a young child"); DIANE DEPANPILIS &
MARSHA K. SALUS, CHILD PROTECTIVE SERVICES: A Gtrma FOR CASEWORKERS 42 (2003)
(recommending that, in cases of suspected physical abuse, "[c]aseworkers ... examine the
nature of the injury, such as bruises or burns in the shape of an implement, e.g., a welt in
the shape of a belt buckle or a cigarette burn").
53. See Tondrowski, supra note 51, at 155 (suggesting to "always remember that it is
better to have too much information than too little, since the more comprehensive
information provided the reported, the better able [the caseworker is] to decide to accept the
referral and provide follow-up); see also Id. at 160 (noting that "[a] report may raise serious
v.8/12/2015
v.8/12/2015
safety concerns but otherwise offer limited information on the whereabouts of a child. In this
situation, the worker should be creative about finding ways to locate the child").
54. CHILDMALTBEATMENT2002, supranote 8, at 22 (noting that "[t]he maltreatment type
percentages total more than 100 percent because many children were victims of more than
one type of maltreatment and were coded multiple times").
55. N.C. Dap'r OF HEALTH & HUMAN SERVS., supra note 50, § 1408(ffl)(C)(5).
56. Id. § 1409(11/) (providing in the context of an overall effort both to reduce the state's
incidence of domestic violence in the state and to assure that children who witness domestic
Interviews with and examinations of children may be conducted
at school or away from the family home to assure, to the extent
possible, that parents will not interfere by coaching, intimidating,
or otherwise influencing their children's response."" Indeed, one
California official suggested that this investigatory strategy is
additionally useful as a way for the state to conduct its investigation without ever having to enter the family home. 58 Like home
visits, investigations of the child herself may be relatively narrow
in scope, initially including only a private discussion with the
violence are not unnecessarily separated from their nonabusive parent, that there is
"universal screening for domestic violence during CPS Intake for all reports of alleged child
maltreatment ... Assessment for the presence of domestic violence and its impact on the
safety of children is an ongoing activity throughout CPS Intake, Assessment, Case Planning
and Case Management, and Placement Services").

v.8/12/2015
v.8/12/2015
57. See. e.g., CAL PENAL CODE § 11174.3 (West Supp. 2005) (identifying school as a site
where a child can be investigated; during the investigation, the child may choose to have a
school staff member present, but that person may not participate in the interview); MICH.
COMP. LAWS ANN. § 722.628 (West Supp. 2004) (requiring schools and other institutions to
cooperate with child abuse investigations, including allowing access to the child without
parental consent for the purposes of conducting an investigation and/or preventing the abuse
or neglect of a child so long as CPS notifies the parent or guardian at the time of the contact
or 'as soon afterward as the person can be reached," unless such notification 'would
compromise the safety of the child or ... the integrity of the investigation"); GA. DEP'T OF
HUMAN RES., supra note 36, § 2104.11 ("Interview and observe separately each allegedly
maltreated child .... Make every attempt to make the interview setting a private location
where the child can be interviewed alone."); Telephone Interview with Official, California
Child Protective Services (July 23, 2003) (on file with author) (stating that school is a
preferred location for examining a child because it avoids parental interference); see also JAN
MCCARTHY E'r AL., A FAMILY'S GUIDE TO THE CHILD WELFARE SYSTEM 21 (2003) (informing
families that '[t]he CPS worker has the authority to talk to your child ... without your
consent and outside of your presence.... mhe CPS worker decides who should be present
during the interview. Although your child can be interviewed and physically examined
without your permission, your cooperation and permission may be requested").
58. Telephone Interview with Official, Legal Division, California Child Protective
Services (July 19, 2003). According to this official, 'usually kids are interviewed without the
parent even knowing it. Very rarely does CPS actually go to the home, so we just don't need"
v.8/12/2015
v.8/12/2015
to worry about parental noncompliance and obtaining a warrant to search the family
residence. Id. As a result of a series of decisions out of the Ninth Circuit, California is one
of the states where—until further review by the United States Supreme Court--a warrant
on a traditional finding of probable cause is clearly necessary to conduct a home visit in
circumstances where the parents refuse consent. See infra note 170.
child."' On the other hand, contact with the child may be pervasive,
including a strip search and a gynecological exam."
State officials generally are cautioned to respect the child's
dignity and the family's sanctity as they engage their thorough
investigations. 61 However, while most agencies undoubtedly expect
their officials to act in good faith, these two tasks—respecting
privacy and conducting the sort of comprehensive investigation the
59. E.g.. Doe v. Heck, 327 F.3d 492,503-04, 510 (7th Cir. 2003) (describing state officials
in Milwaukee, Wisconsin, taking a fourth grade boy from his classroom, placing him in an
empty nursery, and interviewing him alone about intimate details of his family life).
60. E.g., Dubba v. Head Start, Inc., 336 F.3d 1194,1199-200 (10th Cir. 2003) (describing
state officials in Tulsa, Oklahoma, putting group of Head Start children together on tables
in a classroom, separated only by partitions, and conducting full medical examinations
including gynecological examinations and blood tests); see also CAL. PENAL CODE § 11171.2
(West Supp. 2005) (setting out the right of doctors acting without parental consent to x-ray
a child to determine if the child has been abused); id. § 11171.5 (setting out the right of state
v.8/12/2015
v.8/12/2015
officials to obtain a court order directing the x-ray procedure); N.Y. Soc. SERv. LAW § 416
(Consol. 1994) (allowing investigators to take photographs of visible areas of trauma and
order radiological examinations for a child); FLA. Dii?'? OF CHILDREN & FAMILIES, CF
OPERATING PROCEDURE 1175-21 (2001) (depending on the circumstances, the assessment
may include a medical evaluation, psychological/psychiatric evaluation, or other assessment);
STATE OF MICH. GOVERNOR'S TASK FORCE ON CHILDREN'S JUSTICE, FIA PUB. 794, A MODEL
CHILD ABUSE PROTOCOL: COORDINATED INVESTIGATIVE TEAM APPROACH (1998) (requiring a
medical examinationwhen an allegation exists involving sexual and/or severe physical abuse
which occurred in the past 72 hours, and strongly recommending such examination when an
allegation involves abuse which did not occur in the past 72 hours); Telephone Interview with
Linda Williams, supra note 48 (explaining that investigators are permitted to observe a
child's body, but they must have parental consent before removing any clothing and
explaining that a child cannot be transported to see a physician without parental consent
unless in departmental custody).
61. See. e.g., DEPANFILIS & SALUS, supra note 52, at 9 (stressing that "[a] safe and
permanent home and family is the best place for children to grow up," cautioning that "[m]ost
parents want to be good parents," and admonishing that "CPS agencies and practitioners
must be responsive to and respectful of [differences in families' structure, culture, race,
religion, economic status, beliefs, values, and lifestyles]"); CAL. Soc. WORK EDUC. Cvii.,
FUNDAMENTAL ISSUES IN PUBLIC CHILD WELFARE 14 (Ray Liles ed., 2001) (identifying as
critical the need for state officials to 'balanc[e] ... the rights of a child to minimum levels of
care and freedom from harm, with the rights of parents to retain custody of, and authority
v.8/12/2015
v.8/12/2015
and responsibility for, their children"); CAL. Soc. WORK EDUC. OrB., WORKING EFFECTIVELY
WITH FAMILIES (Martha Carlson ed., 2001) (offering guidelines and best practices on issues
such as "cultural factors in the casework relationship," working with family strengths,
promoting family involvement in case planning, and working with children and resistant
clients); N.C. Div. OF SOCIAL SERvS., supra note 50, § 1412(11), available at
http:iinfo.dhhs.state.nc.us/ohn/manuals/dasfcem-60/man/CS1412.pdf ("Family centered
practice focuses on the family with full knowledge and appreciation for its dynamics.... The
family-centered social worker values family resources, respects diversity among families,
supports parental efforts to care for their children.")
system contemplates—are inherently irreconcilable, at least when
delegated to a single official." As one commentator wrote, "[t]he
parent-investigator relationship is likely to be adversarial, not
mutually supportive. The two parties seek conflicting ends: the
parent seeks to preserve family unity and privacy, whereas the
investigator is obligated to violate the family's privacy, the child's
privacy, and, if necessary, disrupt the family unit." 63 The fact
that law enforcement is also typically involved in the investigatory scheme and/or in the conduct of the investigation itself
necessarily increases the process' intrusiveness." Thus, in the best
62. See U.S. GEN. ACCOUNTING OFFICE, No. GAO/HEHS-97.115, CHILD PROTECTIVE
SERVICES: COMPLEX CHALLENGES REQUIRE NEw STRATEGIES 3(1997) (offering an overview
of challenges faced by caseworkers and noting that they "must balance the often conflicting
v.8/12/2015
v.8/12/2015
roles of investigator and social worker. As investigators, CPS caseworkers collect evidence
and work with law enforcement officials; as social workers, they work with families to
identify services needed to improve conditions in the home and provide a safe environment
for the child"); Troy Anderson, Foster Care Cash Cow; 'Perverse Incentive Factor"Rewards
County for Swelling System, L.A. DAILY NEws, Dec. 7, 2003, at Ni (reporting that in a twoyear investigation, the newspaper found a "perverse incentive factor" resulting in "states
and
counties earn[ing] more revenues by having more children in the system—whether it is
opening a case to investigate a report of child abuse and neglect or placing a child in foster
care" (quoting a report by the State Department of Social Services Child Welfare
Stakeholders Group)). The L.A. Daily News article also quotes David Sanders, the director
of the Department of Children and Family Services (DCFS), as believing that caseworkers
were sometimes overly eager to remove children from their homes:
At the extreme, there are clearly parents who never should have had their
children. They torture their children and everyone in the community would
agree that they should not have their children. On the other end, you clearly
have situations where families have done things, but may be under stress one
day, have every intention of taking care of their children and are not dangerous,
but involvement by child protective services ends up being much too intrusive.
Id. Bruce Robenstein, a previous DCFS deputy director, also goes on record as saying that
high-profile child fatality cases increased pressure for removals: "The word was, 'Remove
everybody. Remove all the kids.' It's pretty fundamental that the county was breaking up
families that didn't need to be broken up." Id. As will be argued infra, it is precisely for these
v.8/12/2015
v.8/12/2015
reasons that the Fourth Amendment's neutral magistrate is essential to include in this
scheme. The warrant process assures that this balancing is done by a person who is not
bound to follow state law, but rather, who is bound to weigh the privacy rights of individuals
against the state's need to conduct a specific investigation. See infra notes 136-38, 323-34 and
accompanying text (describing the rationale for the warrant process and applying that
rationale to the child welfare context).
63. Beeman, supra note 23, at 1052 (footnote omitted).
64. See infra notes 190-220,273 and accompanying text (describing the Supreme Court's
view that law enforcement involvement in a civil investigation adds to its intrusiveness
quotient); supranotes 46, 48-49 and accompanying text (setting out the dual motivations that
underlie the investigations and discussing the role of law enforcement in conducting child
of circumstances, state officials may choose to be kind as they
conduct their thorough investigations, but it nevertheless remains
a required aspect of their job to complete them. 65
C. The Impact of the Prevailing Approach to Investigations
Although child maltreatment investigations clearly serve an
essential purpose in the overall CPS scheme, the reporting and
investigations process is also an enormous intrusion on individual
and family privacy: Once CPS screens in a report of maltreatment,
the state typically seeks to enter into and examine the family home,
and to seize and separate the children from their parents or the
v.8/12/2015
v.8/12/2015
school setting in which their parents have placed them so that they
can be interviewed and examined, either by CPS, the police, or
medical personnel designated by these officials. Generally, state
officials are authorized to exercise extraordinarily unfettered
discretion when they engage these intrusions. Approximately 70
percent of the time no abuse or neglect is found by the conclusion of
the investigations."' Even recognizing that some unknown portion
of the unsubstantiated cases involves maltreatment that cannot be
proven, the majority of intrusions on family privacy do not directly
benefit the children involved, and in many instances actually cause
them demonstrable harm."" The table immediately below demon
welfare investigations).
65. See Anderson, supra note 62 (quoting a California Department of Social Services
Child Welfare Stakeholders Group report as "[finding] the vague definition of neglect,
unbridled discretion and a lack of training [to] form a dangerous combination in the hands
of social workers charged with deciding the fate of families," and ultimately that thousands
of children were unnecessarily removed from their homes). In this regard, it has been noted
that
CPS workers, who are the first decision-makers in a child welfare case, are the
ones who have the most power to keep children in their families or to remove
them.... [E]ven the beat family preservation program could not be an effective
resource unless the CPS worker decided to use it.

v.8/12/2015
v.8/12/2015
INsoo K04 BERG & SUSAN KELLY, BUILDING SoLu'rioNa IN CHILD PROTECTiVE SERVICES 6.7
(2000).
66. See infra notes 68.74 and accompanying table (setting out the national data on this
issue).
67. It is noteworthy in this regard that poor and minority children are significantly
overrepresented in the child welfare system. Consequently, these already-stressed children
and their families bear the brunt of the states' prevailing approach to solving the child
maltreatment problem. According to the Children's Bureau, "[a]lthough African-American j]
[children] account for 15% of all children in the United States, they account for 25% of
strates the numbers at issue in this regard, both nationally and for
the ten states with the highest annual number of maltreatment
reports.
substantiated maltreatment victims.... [and] comprise 45% of the total number of children
in foster care." SusAN CHIBNALL ETAL., CHILDREN OF COLOR IN THE CHILD WELFARE SYSTEM:
PEEspEc'nVEs FROMTHE CHILD WELFARE COMMUNITY 3(2003). This study was commissioned
"[un response to concerns about [this] over-representation." Id. at 1. It identifies a number
of theories to explain this data, including "disproportionate need," "racial bias and child
welfare decision making," and "substantially greater risks of child abuse and neglect for
children of color and their families due to a variety of risk factors (e.g., poverty)." id. at 4-5.
The study found that social workers perceive the problem to be based on factors such as
"poverty, lack of resources in poor communities, discriminatory practices in the larger

v.8/12/2015
v.8/12/2015
society, the characteristics of the families entering the system, and the media," as well as
factors internal to the child welfare system, such as worker bias and agency practices. Id. at
19-28. The National Clearinghouse on Child Abuse and Neglect Information also identified
poverty as a major risk factor for maltreatment, particularly neglect. NAT'L CLEARINGHOUSE
ON CHILD ABUSE & NEGLECT INFO., U.S. DEP'T OF HEALTH & HUMAN SERVS., RISK AND
PROTECTIVE FACTORS FOR CHILD ABUSE AND NEGLECT 1 (2003), available athttp://nccanch.
acf.hhs.gov/topicslprevention/emerging/tiskprotectivefactors.pdf As the Children's Bureau
noted, "[t]here has been a persistently strong relationship between poverty and minority
status in the United States." CHIBNALL ST AL., supra, at 4. The study goes on to say,
"[s]pecificaily, African-American and Hispanic children are more than twice as likely to live
in poverty as non-Hispanic white and Asian-Pacific Islander children. Almost one-third of
African-American (30%) and Hispanic (28 9/6) children live in poverty." Id. (citation omitted).
Because "abuse [has been found to be] 14 times more common in poor families and neglect
is 44 times more common in poor families" and "the incidence rate [of child mistreatment]
is 26.5 times higher in lower income families," it follows that, "{t]he greater incidence of
maltreatment among low-income families combined with the over-representation of families
of color living in poverty suggests a plausible explanation for the disproportional
representation of minority children in the child welfare system." Id.; see also Wald, supra
note 22, at 1020-21 ("All commentators agree that the great majority of neglect cases involve
very poor families who are usually receiving welfare.... Many of these parents can beat be
described as extremely 'marginal' people."). Wald cites another study indicating that
"probably 75% of neglecting families seen by agencies have incomes below the poverty level;
v.8/12/2015
v.8/12/2015
half may be on welfare. Blacks are highly overrepresented." Id. at 1021 n.186; see also
Candra Bullock, Comment, Low-Income Parents Victimized by Child Protective Services, 11
AM. U. J. GENDER SOC. P0L'Y & L. 1023 (2003) (arguing that the child protective system
disproportionately affects low-income parents in part because poverty is confused with
neglect due to vague definitions, no legal right to counsel and the lack of financial resources
to secure representation, a lack of training or knowledge to understand the issues involved,
and a reporting biasin that professionals are more likely to report low-income families to
CPS).
Annual Data on Maltreatment Investigations:
Percentage of Unsubstantiated Claims"
Jurisdiction Child
Population' 2
Investigations" Children
Investigated"
Children
Found To
Be Victims"
Unsubstanti.
ated Claims"
U.S." 72,894,483 1,811,836 3,134,694 879,726 71.4%
California 9,452,391 260,924 512,880 132,181 74.2%

v.8/12/2015
v.8/12/2015
New York 4,613,251 155,678 262,643 79,049 69.9%
Texas 6,102,316 129,956 210,375 48,808 76.8%
Florida 3,882,271 142,547 254,856 122,131 52.1%
Ohio 2,879,927 68,236 110,495 50,141 54.6%
Michigan 2,570,264 72,999 190,164 28,830 84.80/0
N. Carolina 2,068,840 63,747 127,702 35,523 72.2%
Illinois 3,254,523 58,704 137,321 28,160 79.50/6
Georgia 2,268,477 69,108 126,677 41,206 67.5%
Tennessee 1,404,661 28,348 1 37,525 1 8,494 77.4%
68. In those states where the CPS system is state-supervised but county-administered,
the percentage of unsubstantiated claims likely represents an average of the precautionary
policies that prevail at the local level. Thus, for example, North Carolina's index of 72.2
percent, as derived from data reported to the National Clearinghouse, is quite close to the
average of 69.3 percent calculated from its 2001-2002 state report of the precautionary
policies of its one hundred counties. See N.C. CHILD ADVOCACY INST., supra note 13
(providing data for fiscal year 2001-2002 on all one hundred North Carolina counties,
including data on the number of reports, the number of reports screened in and out, and the
number of screened-in reports investigated and substantiated; the aggregate numbers vary
slightly from what is presented here because of the different data sources). The one hundred
counties had indexes that ranged from a low of 5.1 percent substantiation to a high of 59.4
percent substantiation, with a standard deviation of 8.7 percentage points. See id. Such wide
disparities in substantiation rates among counties may be accounted for by differences in

v.8/12/2015
v.8/12/2015
staffing and support for the system's overall programmatic purposes; the interpretation of
legal definitions of abuse and neglect and thus in screening policies; investigation protocols;
and substantiation requirements. North Carolina is relatively unique in having such detailed
data. However, because child maltreatment is in important respects a culturally relative
designation and because the inclination of officials to intervene in the privacy of the family
can also differ by region, one can safely assume that such variation among localities exists
across the country.
69. CHILD MALTREATMENT 2002, supra note 8, at 28 tbL3-1.
70. Id. at 17 tbL2-5.
71. Id. at 29 tbL3-1.
72. Id. at 30 tbl.3-2.
73. These percentages reflect the number of children affected by unsubstantiated
investigations or other nonvictim findings.
74. Because data on investigated children are unavailable for Maryland, the state is
excluded from all of the national data.
The states' decision to adopt standards for screening in and
investigating allegations that allow overly broad discretion is
rationalized primarily on the ground that their officials need this
discretion to ferret out even subtle and hidden forms of maltreatment. 75 The fact that some maltreatment experts believe that
many more abused and neglected children exist than we know
about, and that many unsubstantiated reports actually involve

v.8/12/2015
v.8/12/2015
abuse or neglect, likely explains the perceived need for this broad
tool. 76 This policy choice is also justified by the belief that, on
balance, maltreatment is clearly worse than the intrusions that are
necessary to find it. As one court explained:
[T]he "balance of harms" tips strongly in favor of [the state's
broad authority to conduct investigations]. If [this authority
were restricted], it is likely that "some child abuse would go
undetected and some innocent lives unprotected." This harm
is much greater than the loss of privacy in cases where [the
state's approach] produces a false alarm.... "[T]he life of even one
child is too great a price to pay for the possible increased degree
of parental privacy." 77
The sentiments expressed in this excerpt are obviously weighty, for
it is a fact that approximately 1400 times a year in this country,
families and officials must confront a dead child who is the victim
of an abusive parent or guardian. 78 The child is often younger than
75. See supra notes 32.35 and accompanying text (explaining the rationale for the broad
legal definitions of maltreatment) and note 62 (explaining CPS's enthusiasm for this
excessively precautionary approach to removals especially after a child fatality).
76. See, e.g., LEVESQUE, supranote 22, at 3.7 (summarizing studies that describe children
as maltreated when maltreatment is either actually substantiated or merely indicated).
77. Darryl H. v. Coler, 801 F.2d 893, 897, 899 (7th Cir. 1986) (quoting earlier district
v.8/12/2015
v.8/12/2015
court opinion in same case); see also Croft v. Westmoreland County Children & Youth Serve.,
103 F.3d 1123, 1125 (3d Cir. 1997) (stating that the "liberty interest in familial integrity is
limited by the compelling governmental interest in the protection of children—particularly
where the children need to be protected from their own parents"); Franz v. Lytle, 997 F.2d
784,784-85 (10th Cir. 1993)(in response to claims that he had violated a child's and family's
Fourth and Fourteenth Amendment rights, the officer argued that "(a]gainst the societal
imperative to protect children, particularly young children suspected of being victims of
neglect or abuse, plaintiffs' interests in privacy must yield"); Watterson v. Page, 987 F.2d 1,
8 (1st (liz. 1993) (holding that "[t]he right to family integrity clearly does not include a
constitutional right to be free from child abuse investigations").
78. FATALITIES, supra note 27.
one, and in the overwhelming number of cases, younger than
eight."' The child's death usually results from physical abuse or
neglect, including battered child syndrome, drowning, suffocating,
shaking, and extended malnourishment. 8°
The facts in the North Carolina case State v. Wilkerson"' are
emblematic of those that the states are anxious to avoid. The victim
in this case was two-year-old Kessler Wilkerson. 82 His father killed
him after a long period of serious physical abuse. On the morning
Kessler died, "neighbors heard loud sounds 'like something was
being throwed [sic] inside the trailer"' where Kessler lived with his
v.8/12/2015
v.8/12/2015
mother, Nancy, and his father, Kenny. Neighbors then heard "the
voice of a little boy crying, and defendant shouting at him to shut
up." Later that day, his father "delivered the child's limp body to
ambulance attendants"; the boy was pronounced dead on arrival at
the hospital. An initial examination of his body revealed "[b]ruises
on his chest, shoulders, upper arm and forearm." The autopsy
showed "multiple bruises all over the child's body and, internally,
significant bleeding and a deep laceration of the liver." The medical
examiner determined that Kessler actually died as a result of
"abdominal hemorrhage from a ruptured liver." In the criminal trial
of Kenny Wilkerson for the death of his son, witnesses testified that
they had observed him "frequently kick[ing] the child and on
occasion [making] him stand 'spread eagle' against a wall for long
periods of time."" Wilkerson was observed two days before his son's
death kicking the child "with such force that his chest hit the wall."
There are no words to describe the outrageousness of such
senseless abuse."' It took me several years to learn to teach this
case and others like it without overwhelming emotion; they always
79. Id. at 2.
80. Id. at 3.
81. 247 S.E.2d 905 (NC. 1978). The following factual narrative is derived entirely from
the case of Sta*e v. Wilkerson.

v.8/12/2015
v.8/12/2015
82. Id. at 907.
83. Id. at 908.
84. The fact that witnesses observed Kessler's father abusing his baby but did not report
it merely adds to the outrageousness of the abuse. The reluctance of many witnesses to
report child abuse is an important obstacle to solving the child maltreatment problem. This
reluctance may come from an individual's desire not to become involved in other people's
problems, or it may stem from a more general cultural or community bias against invading
family privacy.
cause students extraordinary discomfort."' At the same time,
despite their compelling power, they do not explain the routine
failure to give anything more than a nod to the intrusive impact—on family privacy and on the children's own well-being--of
the official interventions designed to prevent them. That is, we
understand the extraordinarily harsh message that on one side of
the scales there is the real possibility of a dead baby like Kessler.
It is not so obvious, however, that on the other side of the scales
there is nothing more than a "possible [de]creased degree of
parental privacy."" Indeed, the use of such impersonal rhetoric by
advocates of the current system to describe the calculus on the
other side does the society and especially the children a huge
disservice by obscuring the reality that fully functioning real-life
families often pay a steep and very personal price for this approach.
v.8/12/2015
v.8/12/2015
Like Kessler, the children in these other families also have names,
faces, and stories that ought not to be hidden from view.
Throughout this Article, I will use these previously obscured
faces alongside Kessler's to illustrate the complex dynamic that
must be acknowledged in any legitimate analysis of the child
welfare exception to the Fourth Amendment. Fortunately, like
Kessler, the particular children I focus on for this purpose do not
represent the norm for state officials who investigate suspicions of
child maltreatment. 87 They are also clearly more fortunate than
Kessler because their lives were not sacrificed to private or public
violence. Nevertheless, as Kessler does, they serve as appropriate
"poster children" for the important issues raised by their stories.
85. For example, in my experience it is not unusual for a student who is also the mother
of a young child to ask to be excused from class, because she does not believe she can remain
composed during the discussion of this case.
86. Darryl H. v. Coler, 801 F.2d 893, 899 (7th Cir. 1986) (quoting earlier district court
opinion in same case).
87. Thus, for example, investigations concerning severe and sexual abuse comprise only
a small bit of the work of officials who work in this area. Specifically, while sexual abuse is
initially implicated in a larger percentage of cases, only about ten percent of substantiated
maltreatment cases are attributed to sexual abuse. See supra note 26 (describing this
category). And although approximately 800,000 children annually are victims of

v.8/12/2015
v.8/12/2015
maltreatment, only about 1400 of these are child fatalities. Notably, most child fatality cases
involve child victims who were previously unknown to the system. See supra notes 27-28 and
accompanying text (setting out this data).
1. The Story of John Doe, Jr."'
In September 1998, CPS in Milwaukee, Wisconsin received a
written report from a ten-year-old girl's guardian alleging that the
principal at the girl's private Christian academy had spanked her. 89
For two months, CPS did nothing: It did not screen the report in
or out; nor did it assign the report to an investigator. Only after
the child's guardian sent a second letter was the case assigned to
John Wichman, who was characterized as "an experienced Bureau
caseworker."" Wichman visited the family's home and the guardian, who told him that the child's principal swatted the child on two
occasions, the second swatting leaving a bruise mark. She also gave
him a copy of the school handbook which explained that children
who received "[t]hree marks [for bad behavior] in one day or four
marks in one week" would get one swat from the principal. 9'
Wichman then spoke to the girl who told him that 'the second
paddling was administered above the rear area, approximately six
inches above her tailbone, and that she had struggled to get away
from [the principal]." The girl also told Wichman that she knew of
88. Doe v. Heck, 327 F.M 492(2003). The following factual narrative is derived entirely
v.8/12/2015
v.8/12/2015
from this case.
89. Id. at 500. In general, spanking by a parent or by a private school teacher acting in
loco parentis is not against the law. Specifically, in most states it is only when a spanking
exceeds the scope of "serious physical harm" that CPS and/or the police can substantiate a
claim of physical abuse based on that conduct. See SAMUELM. DAVIS ETAL., CffILDRENIN THE
LEGAL SYSTEM: CASES AND MATERIALS 334, 507 (3d ed. 2004) (setting out California rule
excluding reasonable corporal punishment from definition of physical abuse and discussing
modern criticism of legality of corporal punishment).
90. Doe, 327 F.3d at 500.
91. Id. at 501 n.2. According to the handbook, swats were administered based on a "mark
system." This system was "used for enforcing discipline and control in the classroom.
Penalties for marks [were] at the discretion of the individual teacher. Marks [were]
accumulated weekly for students in all elementary grades, and they beg[an] each week with
a clean record. Three marks in one day or four marks in one week [would] result in one swat
to be administered the same day the last mark was given." The handbook provided for a
"verbal reprimand" on the first mark, parental notification on the second mark, detention on
the third mark (unless it was given on the same day as the first two), and a swat on the
fourth mark. The handbook also indicated that the school would attempt to notify a child's
parents in advance of a swat, "however, a swat will be given regardless if the parent can be
reached or not." Finally, the handbook provided that "[p]arents should deal with each mark
at home to deter getting enough marks for a swat." The academy served children from
kindergarten through fourth grade, although the handbook provided that only "elementary"
v.8/12/2015
v.8/12/2015
aged children were subject to the swatting. Id. at 500-01 & nn.2-3.
at least one other child, a fourth-grade boy named John Doe, Jr.,
who also had been swatted, but she did not know if he had been
hurt.
Based on these two interviews, Wichman told his supervisor,
Christine Hansen, that "the principal may have been out of control."
And he suggested that the parents of the children who attended the
academy also were appropriate child abuse suspects based on their
acquiescence to the swatting policy, and the possibility, which
Wichman apparently imagined out of thin air, that they might have
been the subject of maltreatment reports in the past. 92 Without
requiring any further investigation, Hansen substantiated the girl's
allegations against the principal"' and asked Wichman to report the
allegations concerning John Jr." That case was assigned to Carla
Heck, another Bureau caseworker. 95
On December 16, Heck and Wichman went to the academy to
interview John Jr. The associate pastor of the affiliated church
"asked [the social workers] whether he was legally required to allow
them to interview the boy" without a court order. 96 In response, the
Heck and Wichman explained that "the [relevant] statute gave
them the authority to interview the child at school without notice

v.8/12/2015
v.8/12/2015
or parental consent," and that if the school refused to comply, they
would "call the police, who would then force the school to allow the
92. No evidence existed in the record that otherwise explains this suspicion.
93. This decision to substantiate was
contrary to Bureau's Investigation Standards, which provide that
substantiation can occur only after the assigned caseworker has obtained
statements from all "pertinent persons," including the alleged maltreater and
any eyewitnesses. At the time Hansen made the decision to substantiate [the
principal], Wichman had not interviewed [him] or [the girl's] teacher.., who was
present during both of the girl's spankings.
Id. at 501-02. Additionally, no physical evidence of excessive corporal punishment existed,
as the bruises that were alleged to have appeared on the girl's back had disappeared by then,
and her guardian had not taken any pictures of them when they were still present. Id. at
501.
94. Id. at 502.
95. At the time, state law "technically require[d] a 24-hour response to all screened-in
reports." Id. at 499. Nevertheless, CPS "guidelines separate[d] reports into three categories:
(1) 0.2 hour response; (2) 24-hour response; and (3) 2-5 day response." Id. In this case, the
months .long delay was the result of CPS's failure, whether deliberate or not, to screen in the
reports when they were first made. The guidelines for investigatory response times are only
invoked once a report is screened in. Id.
96. Id. at 503.

v.8/12/2015
v.8/12/2015
interview in short order." Heck and Wichman also refused to
disclose the reason for the investigation, or to permit anyone from
the school to accompany John Jr. as he was being examined.
Because of this, the assistant pastor told the social workers that he
would not allow them to proceed without a court order. And so they
called the police.
The police officer who arrived on the scene was "fu]nsure of how
to proceed." He called his captain, who in turn "called the local
district attorney's office, and received confirmation that [the state
statute] gave caseworkers the authority to interview children
suspected of abuse on school premises without having to notify or
obtain the consent of their parents or the school." The captain,
joined by two other police officers, then went to the school to assist
the original officer and the two social workers to gain access to the
boy. The assistant pastor initially continued to resist the efforts of
the now six state officials to enter the premises to see John Jr.,
asking again whether a court order was needed before the interview
could proceed. Although no such conditions existed, the captain
responded that "a court order was not needed for an interview
under exigent circumstances."' The associate pastor finally
acquiesced to the investigation.

v.8/12/2015
v.8/12/2015
"John Jr. was then escorted to the [empty] nursery section of the
church for the interview."" He was "questioned by Heck and
Wichman, with the uniformed police officer present, for twenty
minutes about intimate details of his family life."" During the
interview, the social worker asked the boy a series of questions,
including whether he had been physically disciplined at school,
whether his parents knew about the principal's spanking, whether
he was physically disciplined at home, about "his father's military
97. The Seventh Circuit's opinion notes that "[a]lthough [the captain] made reference to
'exigent circumstances,' neither the caseworkers nor the police officers indicated that they
believed John Jr. was under any threat of immediate harm." Id. at 503 & n.7. In fact, nothing
in the report on John Jr. suggested that such a threat was present, because the girl who told
CPS about the boy was unable to say whether he had been hurt by the swat he received from
the principal. The fact that the state waited afull three months before screening in the initial
report and investigating the case further undermined the state's ability to make out exigent
circumstances on these facts. This suggests that at least the police knew that they were not
proceeding on lawful authority.
98. Id. at 503.
99. Id. at 510.
history, where his father worked ... where his sister attended
school," and "whether he knew of any other students at school who

v.8/12/2015
v.8/12/2015
had been spanked." 10° John Jr. responded that the principal had
spanked him once, that he had "held back tears" during the
spanking, and that "after the spanking [the principal] and his
teacher ... (who had witnessed the spanking), prayed with him."°'
He also confirmed that his parents knew he had been spanked, and
that his parents spanked both him and his sister with a paddle or
a spatula. Finally, he indicated that he knew of "at least six other
students, whom he identified for Heck," who also had been spanked
at school. 102
Meanwhile, CPS launched a parallel investigation of John Jr.'s
family based on the social workers' suspicion that John Jr.'s
parents, John and Jane Doe, also were abusing him and his sister.
Heck and Wichman pursued this investigation for over a month.
During this period, the Does hired an attorney who communicated
with CPS but who would not allow the agents to meet with the
family or to interview or examine the children without a court
order. CPS responded by going to "several private schools in the
area in an attempt to interview John Jr.'s sister."° 3 CPS also
threatened the family with "tak[ing] this whole thing up a notch,"
by "go[ing] to the District Attorney,"""' and "'tak(ing) steps to
protect the children in [the family's] home""° 5 if the parents did not
100. Id. at 503.04.

v.8/12/2015
v.8/12/2015
101. Id. at 503.
102. Id. at 504.
103. Id. at 505.
104. Id. at 504.
105. Id. at 506.
voluntarily comply with the investigation.' 06 John and Jane Doe
explained that, throughout this period, they
"lived in constant fear that Ms. Heck or one of her associates
would come to [their] home and remove [their] children," and
that this fear caused them: (1) to maintain "a continual watch
for strange vehicles, believing that Ms. Heck or an associate
might come in an unmarked car or van"; (2) not to let their
children play outside ... without one of them present to "guard
to [e]nsure no [CPS] case worker came for them"; (3) to put up
blankets over their windows to prevent Heck or anyone else
with [CPS] from monitoring their activities; and (4) to purchase
a caller identification system to screen any calls from [CPS]
caseworkers. 101
They also "took their children to a friend's house [one evening] to
spend the night, fearing that Someone from [CPS] would come to
their home and attempt to remove their children from their

v.8/12/2015
v.8/12/2015
custody";... "purchased a cellular phone [so that they could] keep in
constant contact... regarding [CPS's] ongoing investigation of their
family"; and Jane Doe, "overwhelmed that [CPS officials] had
interviewed her son at school" and by CPS's conduct otherwise "took
a leave of absence from work from December 17, 1998 through
January 19, 1999 because she 'was afraid to be away from her
children for any length of time ... not knowing what [CPS] might
do." °8
106. The Does "interpreted [these expressions] as a threat to remove their children from
their custody" if they did not voluntarily comply with CPS's investigation as Heck and
Wichman saw fit to conduct it. Id. The validity of this interpretation was confirmed by
Wichman, who told the police that "if the Does did not have their attorney contact [CPS]
within the next 24 hours, he and Heck planned to go to [the family] residence and physically
remove the children from their custody so they might be interviewed." Id. wichman's
supervisor, Christine Hansen, "testified in deposition that Wichman's stated intention to
the police that he would seek to remove the Doe children from their parents' custody, if true,
would have been illegal, a drastic step, and inconsistent with [CPS] protocol." Id. at n.1 1. In
light of this, the social workers' threats can be interpreted in one of two ways. First, it could
be that they intended to violate either knowingly or unknowingly the CPS protocol described
by Hansen. Second, it could be that they intended to use the threat of removal—just as they
had used the police in the original visit to John Jr.'s school—to force compliance with their
investigation.
v.8/12/2015
v.8/12/2015
107. Id. at 506 & n.10.
108. Id. at 507 & n.12.
During this same period and without any new evidence, CPS also
launched investigations of the other children John Jr.had identified
as having been spanked by the principal; as in John Jr.'s case, these
investigations included interviews with the children conducted
without parental notification orconsent.'° 9 And it "opened a file on
the corporation, 'Greendale Baptist Academy.""° In the course of
this last investigation, CPS "ran background checks (for prior
contacts with [CPS]) on every family listed in the [church membership] directory, whether they had children enrolled at the school
or not." Its officials met with the police to update them on the
investigation, and to supply them '"with copies of [CPS] reports
a copy of the [school's] handbook, the church directory and some
information [CPS] received off of the Internet in regards to Bob
Jones University.""" And it returned to the school with another
social worker and two police officers to interview the other children,
a visit during which the school's attorney refused to allow the state
officials' entry without a court order and the police threatened to
arrest the principal "for obstruction of justice.""'
All of the investigations ultimately were closed in early- to mid-
1999." No action was taken against the school, the principal, or

v.8/12/2015
v.8/12/2015
the parents of the children who were the alleged victims of maltreatment. CPS's lawyer sent the Does' lawyer a letter "advising
that the investigation of [their family] was being closed because '[i] n
discussing the matter with you, we have been assured that there is
no safety, nor service needs for the... family." CPS's internal files
read differently. They "indicate[] that the investigation had been
closed because of the Does' refusal to cooperate, thus preventing
caseworkers from substantiating abuse." At no point in the
investigation did CPS or the police seek a court order to conduct the
investigation. This baffled the school's lawyer, who said, "I don't
know why they don't just get an order from a judge. If they [can] get
the order then we can't do anything about it.""" Ultimately, the
Seventh Circuit Court of Appeals found that the investigation had
109. Id. at 505.
110. Id. at 504.
111. Id. at 506.
112. Id. at 506.07.
113. Id. at 508.
114. Id. at 507.
proceeded in the absence of "'definite and articulable evidence
giving rise to a reasonable suspicion that a child has been abused
or is in imminent danger of abuse."""

v.8/12/2015
v.8/12/2015
2. The Story ofJessie and Lauren Wallis"'
In the latter part of 1991, the Wallis family, comprised of Bill,
Becky, and their two children, five-year-old Lauren and two-yearold Jessie, lived in San Diego, California."' Many months had
passed since they last had contact with Bill's sister, Rachel, "who
suffer[ed] from a long history of psychiatric problems, including
severe dissociative and multiple personality disorders." The family's
estrangement from Rachel stemmed from a false report she had
filed with the San Diego County CPS "in April of 1990, alleging that
Bill was sexually abusing Lauren. CPS had investigated the report
and found that there was no credible evidence to support the
allegations and no action was taken against the Wallises." Nevertheless, "Bill and Becky remained angry at Rachel ... and terminated their relationship with her."
115. Id. at 515. When the investigations were closed, the Doe family, the school, and other
parents sued the social workers under 42 U.S.C. § 1983 alleging, inter alia, that the state
officials had violated their Fourth Amendment rights to be free from unreasonable searches
and seizures. Id. at 508. Specifically, they alleged that the officials had "conducted an
unreasonable search of [the school's] premises" and illegally seized John Jr." Id. They also
alleged that the state law provision pursuant to which the officials claimed authority to
conduct an investigation that included interviewing the children outside the presence of and
without notifying or obtaining consent from their parents was unconstitutional. Id. The
district court granted summary judgment to the defendants on the ground that if these were
constitutional violations, the doctrine of qualified immunity, which applies where a
constitutional right is not clearly established, barred the suit against them. Id. On appeal,
v.8/12/2015
v.8/12/2015
the Seventh Circuit "th[ought] it clear that [the state's entry onto the school's property and
its taking of John Jr. to interview him] constitute[d] both a search and a seizure under the
Fourth Amendment." Id. at 509. It also found that the school and John Jr. both had
reasonable expectations of privacy as against state intrusions at school, id. at 511, and that
the searches were conducted without 'definite and articulable evidence giving rise to a
reasonable suspicion that a child has been abused or is in imminent danger of abuse,'" id. at
515. Finally, the court held that although the investigation and the statutory provision that
authorized them were unconstitutional under the Fourth Amendment, the suit against the
state officials was properly dismissed under the doctrine of qualified immunity. Id. at 515-16.
116. Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000). The following factual narrative is
derived entirely from this case.
117. Id. at 1131.
Rachel was subsequently "hospitalized in a psychiatric facility
because she was suicidal and was afraid she would be murdered."
During her stay there, "[s]he reported to her therapist ... that Bill
Wallis was planning to sacrifice his young son Jessie to Satan at the
'Fall Equinox ritual,' and that Bill had told her that Jessie's ritual
murder would be covered up by staging a car accident in which his
body would be burned." Rachel added that "both her parents
[Lauren and Jessie's grandparents] were in a satanic cult, and that
Bill Walls was also in the cult, but that Becky was not, and indeed
v.8/12/2015
v.8/12/2015
'might not know' about her husband's and parents' cult membership." In the course of this recitation, "Rachel recounted her
recently recovered memory 'of being with her father in the woods,
with him wearing a cult robe reciting hypnotically "On the third full
moon after two blue moons a child will be killed."" Then, "[o]ne of
Rachel's 'alter' multiple personalities told [the therapist] that the
incantation referred to Jessie and meant that he would be sacrificed
to Satan on the 'Fall Equinox,' supposedly one of the Satanic 'High
Holidays." The court later explained that "[i]n 1991, the Fall
Equinox evidently fell upon September 23.118
California law requires therapists to report suspected abuse and
neglect."' Acting on this requirement, Rachel's therapist wrote
CPS a letter on September 19 detailing what she could of her
consultations with her patient. This letter formed the basis for
CPS's call to the state's child abuse and neglect hotline. That same
day, CPS also called the police department, and provided the
responding officers with the information contained in the report. On
September 20, the police assigned two detectives to the case. CPS
separately assigned a caseworker to its own investigation.' 20
In the evening of September 22, 1991, the detectives "stake[d]
out" Becky Wallis's car, tailed her as she began her drive home, and
118. Id. at 1131-32.
119. Id. at 1132.

v.8/12/2015
v.8/12/2015
120. At the same time, the CPS caseworker who had received the initial report from the
therapist "wrote up her recommendations for the ... caseworker who would be assigned to the
matter, stating that she felt 'we have no choice but to take the children into protective
custody until an investigation can be done.' Id. And in a subsequent communications with
that caseworker, she indicated "that a district attorney ... told then that 'we have enough to
pick up the kids.' Id. Whether anyone at CPS that day ever communicated with anyone at
the Police Department concerning the possibility of removing Lauren and Jessie from the
custody of their parents is entirely unclear from the record.
eventually pulled her over in the parking lot of a local 7-11 convenience store.' 21 There, they "told her that they needed to 'check on'
[her two children, Lauren and Jessie], and said that if she took
them to her house, they would be able to 'sit down and talk about
it."' In fact, the officers' intent was to remove the children from the
Wallis's home. "In response to the officers' [mis]representations,
Becky took the officers to the family's home and agreed to their
entry."
When Becky and the officers reached the family home, it was
"around midnight, [and] her children were asleep," in the care of
their father, Bill Wallis.' 22 According to the officers, "[t]he children
appeared well-cared for," and "there was no sign of anything
suspicious." Despite this, one of the officers
decided to "interview" Lauren. She required Bill and Becky

v.8/12/2015
v.8/12/2015
[Wallis] to awaken Lauren so that she could question her.
According to [the officer], the sleepy five year old was "evasive,"
but told her that they had to move from the apartment in which
they had previously lived because of "spiders on the walls."
Although [the officer] acknowledged that she had no information
from any source that Lauren had ever been sexually abused, she
asked her whether 'anybody had ever given her bad touches or
abused her." Lauren denied that anyone had.
Without interviewing either Bill or Becky Walls, the officers then
announced that they were taking the children away because "'there
was a pickup order"' that CPS had obtained.' 23 This was untrue;
121. Id. at 1134.
122. Id.
123. Id. at 1133. In the course of the subsequent litigation, CPS disavowed police claims
that they had been notified by CPS that "there was a pick up order." See id. at 1132-33
(describing the controversy concerning whether CPS told the police it had an order, and in
particular the principals' changing stories concerning the controversy). Clearly, no one at
CPS got a court order to remove the children that day, and no one at the police department
ever checked to see whether the department's actions were authorized by such an order. Id.
Officers and supervisors from the police department testified in the ensuing litigation that
at the time ... the Police Department had in effect a practice of taking "at face
value" telephonic representations from CPS that there was a court order to
v.8/12/2015
v.8/12/2015
remove children from their parents' custody. Claytor testified that "It was not
unusual for CPS workers to call and ask for our units to respond to a particular
scene, and tell them that 'we have a petition that's been filed,' or [that] kids
have already been made a ward of the court in response to a petition. That
there never was such a document. 114 Nevertheless, at 1:00 a.m. on
September 22, Lauren and Jessie were awakened, taken away from
their parents and the family home, and brought to "a county
institution." In the following days, "[t]he children were not allowed
to see their parents and cried for them constantly."
Again without obtaining a court order or advising Bill or Becky
Wallis so that they would have an "opportunity to object to the
intrusive examinations, to suggest conditions under which they
might take place, or to be present," the police arranged for Jessie
and Lauren to be taken from the institution to a local hospital for
"an evidentiary physical examination ... to determine whether
either child had been sexually abused.""' Dr. Mary Spencer
conducted both children's examinations, which
included internal body cavity examination of the children,
vaginal and anal. Dr. Spencer also took photographs of both the
inside and the outside of Lauren's vagina and rectum and
Jessie's rectum. These examinations were conducted on Jessie's

v.8/12/2015
v.8/12/2015
third birthday. A social worker who observed the examinations
reported, not surprisingly, that Lauren was very upset by the
procedures and asked for her parents. 126
happened fairly often.'
Id. at 1133. A supervisor testified that
the Police Department did nothing to verify that a pickup order existed because
"there's been a longstanding agreement between law enforcement agencies, that
ill tell you I have a search warrant, up until recent times, you would be taken
at face value that you did, in fact, have a search warrant. Same way as when
I call down to verify that there is a warrant in the system for someone and
make the arrest, I don't physically see it."
Id. Also in dispute was whether anyone at CPS that day discussed with anyone at the Police
Department the previous allegations of sexual abuse that had been investigated and
dismissed, and whether the Police believed they were investigating the case or simply
locating the family to enforce the (nonexistent) pick-up order.
124. Id. at 1134. The record is replete with different and sometimes contradictory
explanations from the officers involved in the investigation concerning the basis for their
belief that a court order in fact existed that mandated the removal of Lauren and Jessie that
night. Some of the court's analysis suggests that the judges did not believe at least some of
the officers' statements. In any event, all that is clear is that there never was such a court
order, that CPS never requested one, and that the court's ultimate view was that the officers
were, if not prevaricating, at least unreasonable in their belief that a warrant existed.
v.8/12/2015
v.8/12/2015
125. Id. at 1134.35.
126. Id. at 1135.
Dr. Spencer subsequently told the social worker "that the results
disclosed medical evidence that both children had been molested,
and that Dr. Susan Horowitz, a specialist from Children's Hospital's
Sexual Abuse Unit concurred with her findings."
Based on this representation and the allegation that "Bill was
going to sacrifice Jessie to Satan," the social worker requested an
order from the juvenile court—the first contact with a court in this
case—to have the children placed in the county's custody. The
judicial officer reviewing the request "specifically rejected the
allegations regarding occult sacrifice as a basis for retaining
custody of the children, but determined that Dr. Spencer's report
provided sufficient evidence of sexual abuse to keep them in county
custody." The order further provided that the children's parents
were to be allowed "only one supervised visit per week."
According to the court:
Two months went by. Then, on November 25, Dr. Horowitz sent
[the social worker] a letter that changed the lives of the Wallis
family. It informed CPS that Dr. Spencer's statement in her
report that Dr. Horowitz supported the finding of sexual abuse

v.8/12/2015
v.8/12/2015
was false. In fact, Dr. Horowitz wrote, as of the time of Dr.
Spencer's report, she [Dr. Horowitz] ... had not performed a full
review, and had not offered any conclusion. Dr. Horowitz's letter
further stated that she now had reviewed the full file and, based
on all the evidence, she did not agree with Dr. Spencer's
conclusion that the children had been abused. To the contrary,
Dr. Horowitz concluded that there was no evidence of abuse, and
that there were alternative, normal physiological explanations
for what Dr. Spencer had observed. Dr. Horowitz's explanations
were based on Lauren's history of vaginal irritation and
infection, as documented in her medical records, as well as other
information contained in those records.' 27
Based on this letter, the social worker "to his credit, immediately
released [Lauren and Jessie] ... to their maternal grandmother."
CPS then
moved swiftly to dismiss the case in Juvenile Court. [And on]
December 6, 1991, Lauren and Jessie were returned by court
127. Id. at 1135.
order to the custody of their parents. No one now contends that
either child was ever sexually or physically abused, that there
was ever any evidence of any abuse by their parents, or that Bill
v.8/12/2015
v.8/12/2015
Wallis had ever had any intention of sacrificing Jessie to Satan.
II. THE DOCTRINAL VALIDITY OF THE STATES' RELIANCE ON A
CHILD WELFARE EXCEPTION TO THE FOURTH AMENDMENT
States have developed and implemented the approach to the child
maltreatment problem described in Part I in substantial reliance on
the existence of a child welfare exception to the Fourth Amendment.
Specifically, they annually conduct over a million investigations on
the assumption that the reasonableness of the ultimate goal (or
perhaps some individualized suspicion) suffices to authorize them;
and they often exercise broad discretion in their conduct on the
assumption that the particularized warrant that would otherwise
fetter them is not required in this context. Part II of this Article
begins to explore the validity of these reliances.
A. The Amendment's Presumptive Protections
The Fourth Amendment provides that
[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or
things to be seized. 128
"[T]he essence of a Fourth Amendment violation is 'not the breaking
of [a person's] doors, and the rummaging of his drawers,' but rather

v.8/12/2015
v.8/12/2015
'the invasion of his indefeasible right of personal security, personal
liberty, and private property."" 2° Consistent with this account,
128. U.S. C0N5T. amend. IV.
129. Bowers v. Hardwick, 478 U.S. 186, 205 (1986) (Blackmun, J., dissenting); see also
ANDREW E. TASLITZ & MARGARErL. PARIS, CONSTITUTIONAL CRIMINAL PROCEDURE 97 (2d ed.
2003). The personal security, personal liberty, and private property aspects of this right have
been described as encompassing notions of autonomy, dignity, and locomotion. Thus, as
Fourth Amendment scholar Andrew Taslitz explains:
"[t]he basic purpose of this Amendment as recognized in countless
decisions of this Court, is to safeguard the privacy and security of
individuals against arbitrary invasions by government officials. The
Fourth Amendment thus gives concrete expression to a right of the
people which Is basic to a free society."" 3° Much of the Supreme
Court's Fourth Amendment doctrine and a significant portion of the
related scholarship is concerned with fixing the point at which an
invasion by government officials ceases to be reasonable and
becomes unlawfully arbitrary. In this regard, the prevailing view of
the text presumes that absent "a few specifically established and
well-delineated exceptions" a warrant and probable cause are
necessary to constitutionalize, or to make "reasonable," a Fourth
Amendment search or seizure. 131

v.8/12/2015
v.8/12/2015
Privacy is essential to the flourishing of human relationships and free thought.
Property adds to the independence and security that give us a measure of
freedom from state and private coercion. Free movement—the right of
locomotion—allows us to travel, work visit friends and participate in
community and educational activities unmolested, in ways essential to human
autonomy and diversity. The inviolability of these interests is central to our
sense that we are being treated with dignity.
Andrew E. Taslitz, Stories of Fourth Amendment Disrespect: From Elba to the Internment,
70 F0RDHAM L. REV. 2257, 2266.67 (2002) (footnotes omitted); see also Akhil Reed Amer,
Foreword, The Document and the Doctrine, 114 }IARV. L. REv. 26, 79 (2000) (asserting that
the Amendment implies "values of bodily autonomy, privacy, and free expression" as well as
"issues of bodily integrity, dignity, and liberty"); David Meyer, The Paradox of Family
Privacy, 53 VAND. L. REV. 527, 595 (2000) (explaining that Fourth Amendment privacy, like
the privacy protected under the Fourteenth Amendment's Due Process Clause, is concerned
with safeguarding the dignity of the individual against state incursion).
130. Camera v. Mun. Court, 387 U.S. 523, 528 (1967).
131. Katz v. United States, 389 U.S. 347, 357 (1967). This view of the Amendment's
presumptive protections is based in general agreement amongst constitutional historians and
Fourth Amendment scholars about the relationship between its two clauses; specifically, it
reflects the sense of these scholars that "the 'reasonable' search is one which meets the
warrant requirements specified in the second clause." JACOB W. L&NDYNsici, SEARCH AND
SEIZURE AND THE SUPREME COURT: A STUDY IN CONSTITUTIONAL INTERPRETATION 42-43

v.8/12/2015
v.8/12/2015
(1966). Landyneki further described this interpretation thusly:
The first clause ... recognized (an] already existing ... right to freedom from
arbitrary governmental invasion of privacy and did not seek to create or confer
such a right. It was evidently meant to re-emphasize (and, in some undefined
way, strengthen) the requirements for a valid warrant set forth in the second
clause. The second clause, in turn, defines and interprets the first, telling us the
kind of search that is not "unreasonable," and therefore not forbidden, namely,
the one carried out under the safeguards there specified.
Id.; see also NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION 103 (1937) (same); Tracey Macha, The
The probable cause requirement is generally thought to have
been intended to assure that "common rumor or report, suspicion,
or even 'strong reason to suspect"' would be insufficient to
support a warrant application.' 32 Because "[p]robable cause is a
fluid concept—turning on the assessment of probabilities in
particular factual contexts—not readily, or even usefully, reduced
to a neat set of legal rules," the Court has consistently refused to
quantify this formula. Nevertheless, some judges have suggested
that "probable cause hovers somewhere just over or just under the
50% mark, depending upon the court and the situation.""' In any
event, it is clearly "more than 'reasonable suspicion' which a

v.8/12/2015
v.8/12/2015
judicial "surveyD ... pegged ... at about a 30% certainty. $1135
Cent ral Meaning of the Fourth Amendment, 35 WM. & MnL.Rsv. 197(1993) (same); David
A. Sklansky, The Fourth Amendment and Common Law, 100 COLUM. L. REV. 1739 (2000)
(same); William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning (1990)
(unpublished Ph.D. dissertation, Claremont Graduate School) (on file with Duke University
School of Law) (same). The most notable academic opponent of this view is Professor Akhil
Reed Amer. who has interpreted the Amendment's history as suggesting that searches and
seizures are presumptively more reasonable without a warrant. See Akhil Reed Amar,
Fourth Amendment First Principles, 107 FIARV. L. Ray. 757, 772-85 (1994). His different
historical interpretation of the text has been flatly rejected as "simply wrong" and "delusive"
by Professor Macin, who is joined in this view by the other scholars already mentioned in
this footnote. Tracy Macun, When the Cure for the Fourth Amendment Is Worse than the
Disease, 688. CAL. L. REV. 1, 5-6, 21-23, 45-47(1994).
132. Henry v. United States, 361 U.S. 98, 101 (1959). But see Craig S. Lamer, The
Reasonableness of Probable Cause, 81 Tax. L. REV. 951 (2003) (detailing in Parts Wand V
the historical evolution of the meaning and evidentiary value of probable cause). See also
James Etienne Viator, The Fourth Amendment in the Nineteenth Century, in THE BILL OF
RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING 176 (Eugene W. Hickok, Jr. ed.,
1991) (arguing that The Collection Act of 1789 codified "the narrow contemporary
understanding of probable cause" which in essence required the magistrate to issue the
requested warrant "once the oath or affirmation of suspicion was made to him").
133. Maryland v. Pringle, 540 U.S. 366,370-71(2003) (quoting Illinois v. Gates, 462 U.S.
v.8/12/2015
v.8/12/2015
213,231 (1983)). According to the modem Court, "the probable-cause standard is a practical,
nontechnical conception that deals with the factual and practical considerations of everyday
life on which reasonable and prudent men, not legal technicians, act." Pringle, 540 U.S. at
370 (internal citations omitted) (quoting Gates, 462 U.S. at 232). Thus, it "is incapable of
precise definition or quantification into percentages because it deals with probabilities and
depends on the totality of the circumstances." Id.; see Lerner, supra note 132, at 995-97
(discussing the "Li]llusion of [in]athematical [p]recision!' inherent in the probable cause
inquiry).
134. TASLITZ & Pszis, supra note 129, at 180; see also Akhil Reed Ainar, The Fourth
Amendment, Boston, and the Writs of Assistance, 30 SUFFOLK U. L. REV. 53, 62 (1996)
(suggesting that in the Founding Era and with respect to writs of assistance in particular,
probable cause meant "a high likelihood... that a particular place contained stolen goods").
135. TASLITZ & PARIS, supra note 129, at 180-81 & n.110; see also Beeman, supra note 23,
The particularized warrant requirement ensures that the
question of "[w]hen the right of privacy must reasonably yield to the
right of search is, as a rule, to be decided by a judicial officer, not by
a policeman or government enforcement agent.""' In this context,
"[t]he magistrate's duty is to ... [conduct an] inquiry into the need
for the intrusion on the one hand, and the threat of disruption to
the occupant on the other," to determine whether, taking these
circumstances into consideration, the officer's warrant request is

v.8/12/2015
v.8/12/2015
reasonable. 137 In the case of an administrative search, the answer
will turn on such factors as "the purpose, frequency, scope, and
manner of conducting the inspections.""'
B. The Traditional Consent and Exigent Circumstances Exceptions
Traditionally, the two most relevant exceptions to the presumptive protections of the Warrant Clause have been consent and
exigent circumstances.
Consent will justify a warrantless search or seizure when it is
"freely and voluntarily given."" 39 The Court, balancing the
"competing concerns [of] ... the legitimate need for ... searches and
at 1040 (exploring the difference between the probable cause standard as traditionally
applied in the criminal search and seizure context, and its incarnation—as reasonableness,
reasonable suspicion, etc.—in other (including administrative) contexts); Lerner, supranote
132, at 996.1003 (discussing efforts to quantify the evidentiary weight of probable cause,
contrasting that with the weight ascribed to reasonable suspicion, and exploring the "[b]irth
of [r]easonable [s]uspicion").
136. Johnson v. United States, 333 U.S. 10, 13-14 (1948).
137. Michigan v. Tyler, 436 U.S. 499, 507 (1978).
138. Id. Where such a search is "not programmatic but ... responsive to individual events,
a more particularized inquiry maybe necessary." Id. Although some administrative searches
are inevitable given how "vital [the] social objective" in issue, "the magistrate can perform
the important function of preventing harassment by keeping that invasion to a minimum."
Id. at 507-08. This gateway procedure also serves to reassure the individual that a
v.8/12/2015
v.8/12/2015
contemplated search or seizure is lawful. See id. at 508.
[W]hen the inspector demands entry [without a warrant], the occupant has no
way of knowing whether enforcement of the municipal code involved requires
inspection of his premises, no way of knowing the lawful limits of the
inspector's power to search, and no way of knowing whether the inspector
himself is acting under proper authorization.
Id.
139. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (quoting Bumper v. North
Carolina, 391 U.S. 543, 548(1968)). This means that it must not be "coerced, by explicit or
implicit means, by implied threat or covert force." Id. at 228.
the equally important requirement of assuring the absence of
coercion," has held that "the question whether a consent to a search
was in fact 'voluntary' or was the product of duress or coercion,
express or implied, is a question of fact to be determined from the
totality of all the circumstances.""' Among the factors that must be
taken into account in evaluating those circumstances are "subtly
coercive police questions, as well as the possibly vulnerable
subjective state of the person who consents.""' In this regard,
courts will consider the age, education, and intelligence of the
person in issue, as well as any advice that may have been given
concerning her constitutional right to refuse to give consent.' 42

v.8/12/2015
v.8/12/2015
Mature minors have been found capable of giving lawful consent to
enter and search premises over which they have common access and
regular exclusive control for certain portions of the day, 143 and to
searches and seizures of their own persons.' 44 Nevertheless, the
140. Id. at 227.
141. Id. at 229.
142. id. At the same time, "[w]hile knowledge of the right to refuse consent is one factor
to be taken into account, the government need not establish such knowledge as the sine qua
non of an effective consent." Id. at 227. The Court reasoned that imposing such a
requirement would "create serious doubt whether consent searches could continue to be
conducted," because in most cases, "where there was no evidence of any coercion, explicit or
implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the
search in fact had known of his right to refuse consent." Id. at 229.30.
143. See, e.g., United States v. Gutierrez-Hermosillo, 142 F.3d 1225,1233 (10th Cir. 1998)
(affirming that the defendant's minor child had the legal capacity to grant third-party
consent to enter the defendant's motel room); Lenz v. Winburn, 51 F.3d 1540,1548 (1 1th Cir.
1995) (finding as a matter of law that minors do have the capacity to give third-party consent
to police officers because, among other reasons, consent searches serve a legitimate purpose
properly balanced against the possible harm of limiting a child's ability to consent); United
States v. Clutter, 914 F.2d 775, 778 (6th Cir. 1990). The Clutter Court found that
[u]nder the circumstances of this case, where children twelve and fourteen
years of age routinely were left in exclusive control of the house, and
v.8/12/2015
v.8/12/2015
defendants' possession of large quantities of marijuana was so open and
patently non-exclusive that its odor pervaded the house, the government
satisfied its burden of demonstrating the initial warrantless search of the
bedroom was by consent, since the boys enjoyed that degree of access and
control over the house that afforded them the right to permit inspection of any
room in the house.
Id.; see also Gregoire v. Henderson, 302 F.Supp. 1402 (E.D. La. 1969) (holding that a
seventeen-year-old boy, a permanent resident in his brother's home, was capable of giving
valid consent to law enforcement to search the premises).
144. See, e.g., Fare v. Michael C., 442 U.S. 707, 728 (1979) (finding that, under the totality
of the circumstances, a sixteen-year-old juvenile familiar with the criminal justice system
understood his Mirandarights and knowingly waived them in making a murder confession
authorities may not "mislead the consenting party as to the nature
of the crime under investigation and, consequently, the character
of the objects for which they desire to conduct a search," then
"subsequently use that consent ... to conduct a general exploratory
search.""" Finally, although consent in this context usually does
not need to be knowing, and the mere presence of police ordinarily
will not vitiate voluntary consent, the Court's recent decision in
Ferguson v. City of Charleston suggests that where family privacy
concerns are involved, a more rigorous test involving a requirement

v.8/12/2015
v.8/12/2015
of "knowing waiver" may be applied.""'
to the police); Gachot v. Stalder, 298 F.3d 414,420-21 (5th Cir. 2002) (holding that the state
court had adequately considered the "totality of the circumstances" in determining that a
fifteen-year-old's murder confession was voluntary after four hours of police questioning and
repeated notice of his Miranda rights); Hardaway v. Young, 302 F.3d 757,765(7th Cir. 2002)
(applying the "totality of circumstances" test, and upholding as voluntary the confession of
a fourteen-year-old child, but stating nonetheless that "the younger the child, the more
carefully [the court] will scrutinize police questioning tactics to determine if excessive caution
or intimidation or simple immaturity that would not affect an adult has taintedthe juvenile's
confession"). Cf. In re David W., 163 Cal. Reptr. 87(1980), cert. denied, 449 U.S. 1043, 1043
(1980) (Marshall, J.. dissenting) (arguing that the questioning of a thirteen-year-old, with
permission from his mother but no arrest warrant or probable cause, "presents an important
question concerning a parent's authority to waive her minor child's right under the Fourth
and Fourteenth Amendments to be free from 'unreasonable seizures).
Contrary to Hardin's view, supra note 23, at 552-53 (arguing that because children can
talk to whomever they want at school, they have the right to consent to being interviewed
and examined by the state in connection with child welfare investigations), the notion that
immature minors cannot give lawful consent to the authorities to seize and to search their
person (including to interview and examine them) should not be particularly controversial,
as the law generally presumes that children lack the capacity to make legally relevant
decisions for themselves. DAvIs ST Ai., supra note 89, at 1 (setting out as the foundational
premise of law concerning children that "[l]egal policy affecting children is shaped by
v.8/12/2015
v.8/12/2015
presumptions about particular attributes of childhood that set children apart from adults.
Because children are immature, the law assumes that they are unable to care for themselves
and incapable of making important decisions affecting their lives").
145. LAFAVB, supra note 21, § 8.2(n), at 707.
146. 532 U.S. 67, 85 (2001) (noting that when state hospital employees "undertake to
obtain [evidence of criminal conduct] from their patients for the specific purpose of
incriminating those patients, they have a special obligation to make sure that the patients
are fully informed about their constitutional rights, as standards of knowing waiver require")
(emphasis in original); 4. at 93-96 (Scalia, J, dissenting) (attacking the majority's apparent
suggestion that consent in such cases henceforth should be both knowing and voluntary, and
exclaiming that this expansion of the consent requirements "opens a hole in our Fourth
Amendment jurisprudence, the size and shape of which is entirely indeterminate"). On
remand on this issue, the Fourth Circuit held that the general consent given to a state
hospital by pregnant women for medical treatment in connection with pregnancy was invalid
to immunize the state from a Fourth Amendment challenge to the hospital's subsequent
Exigencies or emergencies also will justify warrantless searches
and seizures. This exception is intended to assure the right of the
authorities to intrude where a person's welfare is believed to be in
immediate jeopardy, and otherwise to "protectfl officer safety and
the integrity of evidence in circumstances in which time is of the
essence." 47 These have been defined as circumstances where "there

v.8/12/2015
v.8/12/2015
is compelling need for official action and no time to secure a
warrant ." 48 Thus, the exception applies where probable cause exists
to search or seize, and the conditions are sufficient to meet the
exigency requirement.' 49 The scope of this exception often depends
on "the nature of the underlying offense."'" When the offense is
"relatively minor,""' for example, where it involves at most a
misdemeanor with no threat of jail time, or where no imminent
physical harm is involved, the courts will often hesitate to ratify a
warrantless search or seizure on the basis of the exception.' 52
urinalysis that, unbeknownst to the women, was intended for use by law enforcement.
Fergusonv. City of Charleston, 308 F.3d 380,404 (4th Cir. 2002). As one scholar has argued,
this decision has potentially "radical implications" for the Fourth Amendment's consent
doctrine, as it suggests that "in addition to voluntariness," it may now also require that
consent in similar circumstances be "knowingly and intelligently made.' Andrew E. Taslitz,
A Feminist Fourth Amendment?: Consent, Care, Privacy, and Social Meaning in Ferguson
v. City of Charleston, 9 DUKE J. GENDER L. & P0L'Y 1, 2-3(2002). Professor Taslitz's article
provides a thorough examination of the ramifications of Ferguson in this regard.
147. TASLITZ & PARIS, supra note 129, at 344.
148. Michigan v. Tyler, 436 U.S. 499, 509 (1978).
149. Id.
150. Welsh v. Wisconsin, 466 U.S. 740, 751 (1984).
151. Id. at 750.

v.8/12/2015
v.8/12/2015
152. Id. at 750.53 (explaining that - [t]he exception is limited to the investigation of
serious crimes; misdemeanors are excluded"'). Thus, as Justice Brennan wrote for the Court
in Welsh v. Wisconsin, a case that involved a warrantless, nighttime entry into the home of
an individual suspected of the then misdemeanor offense of drunk driving,
[t]his method of law enforcement displays a shocking lack of all sense of
proportion. Whether there is reasonable necessity for a search without waiting
to obtain a warrant certainly depends somewhat on the gravity of the offense
thought to be in progress as well as the hazards of the method of attempting to
reach it.... It is to me a shocking proposition that private homes, even quarters
in a tenement, may be indiscriminately invaded at the discretion of any
auspicious police officer engaged in following up offenses that involve no
violence or threats of it.... When an officer undertakes to act as his own
magistrate, he ought to be in a position to justify it by pointing to some real
immediate and serious consequences if he postponed action to get a warrant.
Id. at 751. The defendant in Welsh was, at the time of the warrantless entry into his home,
reported by one witness to have "driven [his car] erratically ... chang[ed] speeds and veer[ed]
from side to side, the car eventually swervfing] off the road and c[oming] to a stop in an open
Courts generally scrutinize carefully a state actor's assertion of
exigent circumstances, as the exception is '"narrowly drawn to cover
cases of real and not contrived emergencies."" 53
States rely heavily on these two exceptions when they conduct

v.8/12/2015
v.8/12/2015
child maltreatment investigations. Indeed, over ninety percent of
investigations are said to be based on consent. 114 Certainly authorities intrude without a warrant or consent when a child appears to
be in imminent danger of important abuse or neglect. To the extent
they are appropriately employed, these exceptions will continue to
be available to state officials who wish or need to avoid the Fourth
Amendment's particularized warrant and probable cause requirements. There is reason to suspect, however, that the exceptions are
frequently misused, for example, by officials who obtain consent
from a parent in part by misleading her about the law enforcement
aspects of an investigation,' 55 or who obtain "consent" from a child
who does not have the capacity to give it,"" or who falsely claim the
right to intrude on the basis of exigent circumstances, 157 or where
the report does not concern serious maltreatment or establish
probable cause to believe the allegations are true.' 58 Depending
upon the jurisdiction—California, for example—the most problematic use of the exceptions in terms of the number of investigations
conducted and the doctrine's clarity may be investigations of
younger children at school without the knowledge of their
field. No damage to any person or property occurred.... the driver [subsequently] walked
away from the scene," and eventually went home. Id. at 742-43.
153. Id. at 752 (quoting State v. Guertin, 461 A.2d 963, 970 (Conn. 1983)).
154. See supra note 38 and accompanying text (discussing this statistic in the context of
the states' use of consent).
155. See supra notes 40, 140.46 and accompanying text (discussing the Supreme Court's
v.8/12/2015
v.8/12/2015
concern about the validity of consent obtained in this circumstance).
156. See supra notes 39, 143.44 and accompanying text (discussing children's incapacity
generally to give lawful consent).
157. See supra notes 147-48 and accompanying text <discussing the requirements of the
exigent circumstances doctrine).
158. See supra notes 149.63 and accompanying text (discussing these prerequisites).
parents.' 59 For these reasons, they are not the child welfare
exception to the Fourth Amendment that states claim to need.
C. The Special Needs 'Administrative Search" Exception
To the extent that a child welfare exception exists, it does so
because the special needs "administrative search" exception applies
in this context. The following discussion outlines the historical
contours and use of this doctrine, describes its most recent iteration, and analyzes its compatibility with typical child maltreatment
investigatory procedures. It concludes that investigatory schemes
and investigations that are insufficiently divorced from law
enforcement, as when their purpose is to discover evidence that
would support both a civil and criminal charge, likely do not meet
the requirements of the special needs exception.
1. The Historical Contours and Use of the Doctrine
The Court has held that "in those exceptional circumstances in
which special needs, beyond the normal need for law enforcement,
v.8/12/2015
v.8/12/2015
make the warrant and probable-cause requirement impracticable
a court [is] entitled to substitute its balancing of interests for
that of the Framers.""' In other words, when this exception applies,
159. See supra notes 57-58 and accompanying text (describing the states' use of the inschool interview as a way to avoid parental involvement and interference with their
investigation of the child, and at least some California officials' use of this tool in particular
to avoid having to obtain conducting a home visit); infra notes 170, 177, 181 and
accompanying text (explaining the Ninth Circuit's position that the presumptive
requirements of the Fourth Amendment apply to child welfare investigations). As a practical
matter, until the constitutionality of this strategy reaches the courts, there is nothing (other
than the potential for legislative action) to prevent the states from proceeding in this fashion.
And even where the issue does reach the courts, unless they find that the children's right to
be free from the investigations was 'well established" at the time of the investigations, the
officials who engaged in them will be entitled to qualified immunity as against any claims
for damages. Doe v. Lebbos, 348 F.3d 820, 826 (9th Cir. 2003) (quoting Soucier v. Katz, 533
U.S. 194, 200 (200 1)). In other words, the only apparent risk to the states that have adopted
this approach is the possibility that in the future, the federal courts will determine that the
children's rights were in fact well-established, and will require the officials at issue in those
cases to compensate their victims. I suggest that the states likely assume this is a small price
to pay for the ability in the meantime to continue to interview and examine children at
school.
160. New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., dissenting).

v.8/12/2015
v.8/12/2015
the Amendment's presumptive protections are discarded and
replaced by the courts' own assessment of the relative value of
individual rights as against the government's need to conduct an
investigation unfettered by those protections.' 6' Over time and
based on varying standards,"" the Court has applied the special
needs exception to inspections of highly regulated industries,""
routine regulatory health and safety inspections, 114 public school
161. Id. at 341.
162. Compare New York v. Burger, 482 U.S. 691(1987), andChandlery. Miller, 520 U.S.
305 (1997) (defining special needs as "substantial" and "important" and related to public
safety), with Ferguson v. City of Charleston, 532 U.S. 67(2001), andCity of Indianapolis v.
Edmond, 531 U.S. 32 (2000) (defining special needs as those involving primarily civil or
administrative rather than law enforcement concerns, and requiring a focus on the
investigation's 'immediate" or "primer rather than "ultimate" purpose in this context).
These varying standards explain the conclusion reached by Hardin and Beeman, writing in
the late 1980s, that the special needs administrative search exception was applicable to child
welfare investigations. See Hardin, supra note 23, at 522 n.109 (assuming that the
administrative search exception applies to child welfare investigations even though its
"ultimate purpose ... is to rehabilitate the family [and its] primary initial concern ... is to
uncover possible abuse and neglect" (emphasis added)); Beeman, supranote 23, at 1049-52
(assuming that "as long as the administrative function of the search is not a 'mere pretext'
the search will be judged on administrative terms," and finding that child maltreatment
v.8/12/2015
v.8/12/2015
investigations meet this standard despite that they are '"true search[es] for violations,'" that
"the ultimate objective of state intervention maybe to 'stabilize the home environment and
preserve family life'" and that "the investigator's immediate objective is to determine 'if
credible evidence of abuse or neglect exists'" (citations omitted)).
168. See, e.g., Skinner v. Ry. Labor Executives' Assn, 489 U.S. 602 (1989) (holding that
the Federal Railroad Administration's promulgation of regulations for alcohol and drug
testing of railroad employees is not a violation of their Fourth Amendment rights in part
because the industry is highly regulated for safety); New Yorkv. Burger, 482 U.S. 691 (1987)
(allowing an exception to the warrant requirement for administrative inspections of
businesses that implicate public safety and that traditionally have been closely regulated);
United States v. Biswell, 406 U.S. 311 (1972) (upholding provisions of the Gun Control Act
of 1968 that authorized warrantless searches of gun store premises because such owners
chose to engage in a highly regulated industry and thus have a reduced expectation of
privacy).
164. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873-74(1987) ("[S]earches pursuant to
a regulatory scheme need not adhere to the usual warrant or probable cause requirements
[of the FourthAmendnient]."); Camara v. Man. Court, 387 U.S. 523, 533 (1967) (recognizing
that the warrant requirement would be impracticable and perhaps "frustrate the
governmental purpose behind the search," but holding nevertheless that the Fourth
Amendment applied to such searches); Palmieri v. Lynch, 392 F.3d 73,85-86 (2d Cir. 2004)
(holding that an inspector's entry onto a landowner's property was not a violation of his
Fourth Amendment rights because his permit was conditioned on such regulatory inspections
v.8/12/2015
v.8/12/2015
and the state's interest in protecting tidal wetlands constituted a special need). In Camara,
the Court did find that "a number of persuasive factors combine to support the
reasonableness of area code-enfureement inspections," and that system, based on "reasonable
order and discipline-based searches,"' highway roadblocks,"'
routine monitoring of probationers,' 67 and drug testing of public
school children and government employees. 168
legislative or administrative standards" has been found to meet probable cause requirements
without individualized suspicion for such inspections. Camara, 387 U.S. at 538; see also
TASLITZ & PARIs, supra note 129, at 363-64.
165. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822(2002) (upholding as constitutional the
suspicioniesa and warrantless drug testing of public high school students involved in any
extracurricular activity); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (finding a
suspicioniess, warrantless random drug testing program of high school athletes to be
constitutionally valid because of the compelling need to combat drug use among students and
their decreased expectation of privacy in school); New Jersey v. T.L.O., 469 U.S. 325 (1985)
(holding a warrantless search based on reasonable suspicion of a public high school student
as constitutionally valid because of the special need for discipline in the schools, quick action
with respect to the student, and a lowered expectation of privacy among public school
students).
166. See, e.g., Mich. Dept of State Police v. Sitz, 496 U.S. 444 (1990) (upholding a
checkpoint program that stepped drivers to check for drunk driving, the Court finding the
v.8/12/2015
v.8/12/2015
public interest to be compelling enough and the invasion of privacy minimal enough to
overcome the lack of individualized suspicion). But see City of Indianapolis v. Edmond, 531
U.S. 32, 34 (2000) (striking down as unconstitutional a city program that established
checkpoints whose "primary purpose" was the "discovery and interdiction of illegal
narcotics").
167. See. e.g., United States v. Knights, 534 U.S. 112 (2001) (holding that the government
could enter probationer's home without a warrant where there was reasonable suspicion that
he had been involved in a crime, even though that crime was unrelated to the one for which
he had received probation, but leaving open the question whether the government could
enter a home in these circumstances on less than reasonable suspicion); Griffin v. Wisconsin,
483 U.S. 868, 880 (1987) (upholding a local statute allowing warrantless searches of
probationers' homes only if the search was based on "reasonable grounds" to suspect
possession of contraband goods, a violation of probationary terms).
168. See supra note 165 (setting out the cases involving drug testing amongst the cases
involving public school searches and seizures of children); see also Nat'l Treasury Employees
Union v. Von Raab, 489 U.S. 656 (1989) (holding that the warrantless, suspicionless drug
testing (urinalysis) of U.S. Customs Services employees who applied for positions relating
to drug interdiction or that required the use of firearms is constitutional where positives are
not disclosed to law enforcement without employees' consent (so that the program falls
outside of the realm of normal law enforcement), employees have a diminished expectation
of privacy, and the government's needs are compelling); Skinner v. Ry. Labor Executives'
Ass'n, 489 U.S. 602, 621 n.5 (1989) (holding that a warrantless, suspicionless program to
v.8/12/2015
v.8/12/2015
drug (urinalysis or blood) and alcohol (breathalyzer or blood) test railway workers who had
previously been involved in train accidents was constitutional because individuals' privacy
interests are slight in comparison with the government's compelling interest in ensuring
railway safety; the Court in Skinner recognized that the "record [did] not disclose that [the
provision allowing for retention of samples] was intended to be, or actually has been ... used
[to authorize the release of samples to law enforcement]" and thus "[left] for another day the
question whether routine use in criminal prosecutions of evidence obtained pursuant to the
administrative scheme would give rise to an inference of pretext").
The Court has yet to rule on the applicability of the special
needs exception to child welfare investigations. The federal
appellate courts, however, began their examination of the broader
relationship of the Fourth Amendment to these investigations in
the mid-1980s.' 69 As of this writing, only a sparse patchwork of law
169. Notably, a survey of state supreme court decisions shows that they are largely silent
on the subject. A few have implicitly adopted a child welfare exception to the Fourth
Amendment or to its particularized warrant and probable cause requirements, ruling that
the reasonableness of an investigation determines its lawfulness. See, e.g., Tate v. Sharpe,
777 S.W.2d 215, 216 (Ark. 1989) (finding that reasonable cause is sufficient for an order
compelling compliance with a child neglect investigation); Wildberger v. State, 536 A.2d 718
(Md. 1988) (finding reasonable, without engaging in any discussion of Fourth Amendment,
a warrantless search of a couple's daughter in the family home for signs of physical abuse);
v.8/12/2015
v.8/12/2015
N.J. Div. of Youth & Family Serve. v. Wunnenberg, 408 A.2d 1345 (N.J. App. 1979) (holding
that, to compel parents to comply with investigation, a showing of probable cause was not
required, just reasonableness based on the best interests of the child). A few others have
considered but avoided ruling directly on the issue, with the same result. See, e.g., In re
Stumbo, 582 S.E.2d 255, 261 (N.C. 2003) (deciding case on alternative grounds and thus
leaving intact the appellate decision that apparently holds the Fourth Amendment
inapplicable to child maltreatment investigations, which could presumably proceed on mere
reasonableness standard); H.R. v. State Dept of Human Res., 612 So.2d 477, 478-79 (Ala.
Civ. App. 1992) (avoiding the Fourth Amendment question by construing the words "upon
cause shown" in the relevant state statute as allowing an investigatory entry into a private
home to mean reasonable or probable cause to believe that there was maltreatment); Parents
of Two Minors v. Bristol Div. of the Juvenile Court Dep't, 494 N.E.2d 1306 (Mass. 1986)
(refusing to engage the Fourth Amendment issues involved in forcing compliance with a child
abuse investigation and instead holding that the juvenile court lacked the statutory or
common law authority to order compliance with a non-emergency home visit).
Finally, a few have explicitly rejected arguments in favor of a child welfare exception that
would shield state officials from the particu]arizedwarrant and probable cause requirements.
See, e.g., Chavez v. Casarez, 31 P. 3d 1027, 1036-37 (N.M. Ct. App. 2001) (holding that police
had to obtain a warrant before entering a home in the context of a child abuse investigation
where no exigent circumstances permitted a warrantless search); F.K. v. Iowa Dist. Court,
No. 99-0095, 2000 WL 1593391, at *8 (Iowa Ct. App. Oct. 25, 2000) (holding in part that the
"Warrant Clause must be complied with ... '[i]nthe context of a seizure of a child by the State
v.8/12/2015
v.8/12/2015
during an abuse investigation'" (quoting Tenenbaum v. Williams, 193 F.3d 581,602 (2d Civ.
1999))), vacated on other grounds, 630 N.W.2d 801 (Iowa 2001); In re A.R. & C.P., 937 P.2d
1037 (Utah Ct. App. 1991) (finding no basis to hold that the Fourth Amendment is
inapplicable in the child maltreatment investigations context); State v. Freed, No. A-95-
196, 1995 WL 663603, at *5 (Neb. Ct. App. Nov. 7, 1995) (holding in part that "the duty to
investigate imposed by [state law does not] eclipsef] the Fourth Amendment'); H.R. v. State
Dep't of Human Res., 612 So.2d 477,479 (Ala. Civ. App. 1992) (recognizing the difficult task
of social workers, but refusing to "empower[I (them] to enter private homes, poor or rich,
without reasonable cause to believe that the charged acts are occurring," and holding that
the unsworn hearsay of two anonymous reports does not meet that requirement); State v.
Boggess, 340 N.W.2d 516 (Wis. 1983) (holding that searches and seizures conducted in
context of child maltreatment investigations are subject to the Fourth Amendment); N.J. Div.
of Youth & Family Serve. v. B.W. & V.W., 398 A.2d 611,613 (N.J. Juv. & Dom. Rol Ct. 1978)
exists in the area. Nevertheless, eight of the twelve circuits have
resolved at least some of the questions that arise in this context."'
.("It is also clear that the Fourth Amendment ... protect[s] (parents) from invasion of their
right to privacy within their home(sJ."). None of the opinions in these cases expressly
considers the applicability of the special needs exception by that or any other name.
Where the cases do include discussion of Supreme Court doctrine and federal appellate
case law, this discussion is often weak as a result of the failure to cite <and thus to
acknowledge the existence of) the most relevant cases, and to distinguish between Fourth
v.8/12/2015
v.8/12/2015
and Fourteenth Amendment doctrines. See, e.g., In re Stumbo, 582 S.E.2d 255,257 n.j (N.C.
2003) (in declining to decide the case on Fourth Amendment grounds, making only one, brief
reference to the Seventh Circuit's decision in Doe v. Heck to apply the Fourth Amendment
to child abuse investigation); Chavez v. Casarez, 31 P.ad 1027, 1035.36 (N.M. Ct. App. 2001)
(discussing the treatment of the Fourth Amendment in child abuse investigations in the
federal circuits, without mentioning the Supreme Court's special needs cases); In re A.R. &
C.P., 937 P.2d 1037,1040-42 (Utah Ct. App. 1997) (citing Supreme Court decisions regarding
the applicability of the Fourth Amendment in civil contexts and the reasonableness
requirement, but only with respect to child protective proceedings).
170. Wojcik v. Town of N. Smithfield, 76 F.3d 1 (1st Cir. 1996) (using reasonableness
analysis to find school's actions in reporting suspicions of abuse and agency's actions in
investigating the reports to be constitutional); Nicholson v. Scoppetta, 344 F.3d 154, 172.73
(2d Cir. 2003) (holding that the removal of a child is a seizure under the Fourth Amendment,
with requirements at least equal to those of ordinary arrests and perhaps even more
restrictive); Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000) (holding that the Fourth
Amendment applies to the seizure of a child in the context of a child abuse investigation but
that the seizure was reasonable in this case; the court offered "three modes of determining
whether a seizure was reasonable,"' including probable cause, the less stringent
requirements under the special needs doctrine, and exigent circumstances); Tenenbaum v.
Williams, 193 F.3d 581 (2d Cir. 1999) (holding that the examination of a child was subject
to the Fourth Amendment requirements of consent or probable cause and a court order, as
exigent circumstances were not present); Hurlman v. Rice, 927 F.2d 74 (2d Cir. 1991)
v.8/12/2015
v.8/12/2015
(holding that seizures in the home are presumptively unreasonable without a warrant or
exigent circumstances); Good v. Dauphin County Soc. Serve. for Children & Youth, 891 F.2d
1087,1093 (3d Cir. 1989) (holding that under the Fourth Amendment, the strip search of a
child in the family home can be justified only by a warrant, consent, or exigent
circumstances); Wildauerv. Frederick County, 993 F.2d 369,372 (4th Cir. 1993) (holding that
the entry into and search of a foster mother's home and children is "not subject to the same
scrutiny as searches in the criminal context" so the state did not need a warrant or probable
cause); Roe v. Tex. Dept of Protective & Regulatory Serve., 299 F.3d 395, 407-08 (5th Cir.
2002) (holding that the Fourth Amendment applies to strip searches of children but finding
consent for the home visit and explicitly rejecting the applicability of the special needs
doctrine); Wooley v. City of Baton Rouge, 211 F.3d 913 (5th Cir. 2000) (holding in a child
custody (not maltreatment) case that the warrantless seizure of a child was a violation of the
Fourth Amendment because none of the exceptions were present); Doe v. [lack, 327 F.3d 492
(7th Cir. 2003) (holding that searches and seizures of children on private property can be
effected only with probable cause, a warrant, or exigent circumstances, and explicitly
rejecting the applicability of the special needs doctrine to child maltreatment investigations);
Brokaw v. Mercer County, 235 F.3d 1000(7th Cir. 2000) (holding that the seizure of a child
from the family home requires a warrant, probable cause, or exigent circumstances, and
probable cause is not met by non-specific allegations of child abuse); Landatrom v. M. Dept
All eight circuits agree that maltreatment investigations
constitute Fourth Amendment "searches" and "seizures,""" and that

v.8/12/2015
v.8/12/2015
CPS and the police participating in such investigations are state
of Children & Family Serve., 892 F.2d 670, 676-77 (7th Cir. 1990) (holding that state actions
in verbally and physically examining a child without parental knowledge or consent may be
a constitutional violation); Darryl H. v. Coler, 801 F.2d 893 (7th Cu. 1986) (finding on a
motion for a preliminary injunction that where child protective services regulations appear
to guarantee the Fourth Amendment reasonableness of an investigation, a warrantless strip
search of a child in the public school is constitutional if it is reasonable, while a search in the
home requires a warrant based on probable cause); Wallis v. Spencer, 202 F.3d 1126 (9th Cir.
2000) (holding that the standard for removal is the same under either the Fourth or
Fourteenth Amendments and requires a court order, consent, or a reasonable belief in
exigent circumstances and narrow action to eliminate only that emergency); Calabretta v.
Floyd, 189 F.3d 808,814(9th Cur. 1999) (making an explicit statement that no social worker
exception to normal search and seizure law exists, and that the Fourth Amendment's
presumptive requirements apply to child maltreatment investigations); White by White v.
Pierce County, 797 F.2d 812, 815-17 (9th Cir. 1986) (disallowing the warrantless entry into
a home, even to investigate child abuse, unless exigent circumstances are present); Dubbs
v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003) (holding that the Fourth Amendment's
presumptive requirements apply to child maltreatment investigations both inside and
outside of the home, and that the special needs doctrine does not apply because the program
could have secured consent of parents for genital examinations and blood tests of children);
Roska ex rd. Roska v. Peterson, 328 F.3d 1230, 1240-42 (10th Cir. 2003) (holding that the
warrantless entry of a home to remove a child was a violation of the Fourth Amendment, as
v.8/12/2015
v.8/12/2015
neither the exigent circumstances nor special needs exception applied); Malik v. Arapahoe
County Dep't of Soc. Serva., 191 F.3d 1306 (10th Cir. 1999) (holding that a court order to
seize a child that was based on distortion, misrepresentation, and omission was a violation
of the Fourth Amendment); J.B. v. Washington County, 127 F.3d 919 (10th Cir. 1997)
(holding that the state had probable cause to remove the child, but that seizures implicate
the Fourth Amendment and could be subject either to its strict requirements or to the special
needs exception);Lopkoffv. Sister, 103 F.3d 144 (10thCir. 1996) (unpublished table decision)
(holding that the Fourth Amendment warrant requirement, not the special needs exception,
applies both to police and social workers investigating child maltreatment reports and
intervening in families to protect children); Doe v. Bagan, 41 F.ad 571 (10th Cir. 1994)
(holding that a ten-minute interview with a principal to determine if child had abused
another was reasonable even if it was a seizure under the Fourth Amendment); Franz v.
Lytle, 997 F.2d 784 (10th Cir. 1993) (holding that the special needs exception does not apply
to a child maltreatment investigation that included a genital examination by the police,
rather than social workers).
171. See, e.g., Doe v. Heck, 327 F.3d 492,509-10 (7th Cir. 2003) (discussing definitions of
"search" and "seizure" and concluding that both apply in the context of the removal of a child
from his private school classroom for the purpose of interviewing him about possible corporal
punishment); Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000) ("We have observed that
the Fourth Amendment applies in the context of the seizure of a child by a government.
agency official during a civil child-abuse or maltreatment investigation."); Wildauer v.
Frederick County, 993 F.2d 369, 372 (4th Cir. 1993) (assuming, without discussing, that a
v.8/12/2015
v.8/12/2015
CPS visit to a residence constituted a search, albeit not an unreasonable one); see also supra
note 170 (listing decisions from all circuits that have addressed the issue).
actors.' 72 Moreover, courts that have had occasion to address the
issue have held that although certain aspects of parental privacy
are protected under the Fourth and Fourteenth Amendments, the
child has enforceable Fourth Amendment rights separate from her
172. Despite the tendency of litigants to raise the issue of whether state officials acting
with a civil administrative purpose qualify as state actors under the Fourth Amendment, it
is clear that they do. As the Tenth Circuit explained; "[t]he ... Amendment protects the right
of the people to be 'secure in their persons' from government intrusion, whether the threat
to privacy arises from a policeman or a Head Start administrator. There is no 'social worker'
exception to the Fourth Amendment." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th
Cir. 2003). A particularly clear statement of the more general proposition that civil officials
fall within the Fourth Amendment's state action requirement can be found in New Jersey v.
T.L.O., in which the United States Supreme Court rejected the state's argument that the
Fourth Amendment "was intended to regulate only searches and seizures carried out by law
enforcement officers" and thus that "although public school officials are concededly state
agents for purposes of the Fourteenth Amendment, the Fourth Amendment creates no rights
enforceable against them." 469 U.S. 325, 334 (1985). Indeed, the Court "has never limited the
Amendment's prohibitions on unreasonable searches and seizures to operations conducted
by the police. Rather, (it] has long spoken of the Fourth Amendment's strictures as restraints
v.8/12/2015
v.8/12/2015
imposed upon 'governmental action'—that is, 'upon the activities of sovereign authority.' Id.
at 335 (quoting Burdeau v. McDowell, 256 U.S. 465, 475 (1921)). In Camara v. Municipal
Court, the Court explained that this broad view of "state action" arises out of "[tihe basic
purpose of this Amendment ... (which] is to safeguard the privacy and security of individuals
against arbitrary invasions by governmental officials." 387 U.S. 523, 528 (1967). Thus,
[b]ecause the individual's interest in privacy and personal security "suffers
whether the government's motivation is to investigate violations of criminal
laws or breaches of other statutory or regulatory standards," it would be
"anomalous to say that the individual and his private property are fully
protected by the Fourth Amendment [only] when the individual is suspected of
criminal behavior."
T.L.O., 469 U.S. at 335 (quoting Camara, 387 U.S. at 530, and Marshall v. Barlow's, Inc.,
436 U.S. 307, 312.13 (1978)). Every federal appellate court that has reached the issue has
agreed that CPS officials are state actors under this doctrine. See Doe v. Heck, 327 F.3d 492,
509 (7th Cir. 2003) (holding that the doctrine "protects against warrantless intrusions during
civil as well as criminal investigations by the government.... Thus, the strictures of the
Fourth Amendment apply to child welfare workers, as well as all other government
employees."); Roska ex rel Roska v. Peterson, 328 F.3d 1230, 1241.42 (10th Cir. 2003)
(holding that social workers are covered by the Fourth Amendment and its Warrant Clause);
Roe v. Tex. Dep't of Protective & Regulatory Servs., 299 F.3d 395,401(5th Cir. 2002) ("[Tihe
Fourth Amendment regulates social workers' civil investigations."); Calabretta v. Floyd, 189
F.3d 808, 813 (9th Cir. 1999) <noting that there is no "child welfare exception to normal
v.8/12/2015
v.8/12/2015
search and seizure law").
parents.' 73 This is consistent with the Supreme Court's approach in
cases where children are subject to official searches and seizures.' 74
The circuits disagree about whether child maltreatment investigations trigger the Fourth Amendment's particularized warrant
and probable cause requirements, or whether they come within the
173. Most of the federal appellate decisions discussed in this section arise on Fourth
Amendment grounds from the outset, so this distinction is unnecessary to the courts'
analysis or outcome. On the other hand, the distinction does arise in cases where plaintiffs
raise claims under both the Fourth and Fourteenth Amendments. The claims under the
Fourth Amendment involve arguments that certain searches and seizures were conducted
in violation of that doctrine's standards. The claims under the Fourteenth Amendment
involve arguments that certain aspects of the investigation process were in violation of the
rights of parental autonomy, or family integrity, or procedural due process. It is in reviewing
these different arguments that the courts have noted that the child's own right to privacy in
the context of maltreatment investigations is to be addressed under the Fourth rather than
the Fourteenth Amendment. See, e.g., Dubbs v. Head Start, Inc., 336 F.3d 1194, 1203 (loth
Cir. 2003) (holding that the scope of an infant's right to privacy is to be reviewed under the
specifically applicable terms of the Fourth Amendment, and not the general terms of the
Fourteenth); Kia P. v. McIntyre, 235 F.3d 749, 757.58 (2d Cir. 2000) (same). This result is
reached using the standard rule of textual interpretation that where there is a provision that
on its terms is specific to the circumstances, it is to be used in lieu of general provisions that
v.8/12/2015
v.8/12/2015
can be interpreted to encompass the circumstances. Because children in general are
recognized as having objectively reasonable expectations of privacy sufficient to trigger the
Fourth Amendment's terms, and because the various things that happen to them in the
context of maltreatment investigations—they are forciblyinterviewed, examined, (re)moved,
and held away from their families—otherwise fit the operative (search and seizure)
definitions to the letter, the courts refer to the Fourth Amendment's standards, including its
procedural requirements, when addressing their related constitutional complaints. Older
children are seen as having a subjective expectation of privacy that is legitimized under the
doctrine. Darryl H. v. Coler, 801 F.2d 893, 899-900 (7th Cu. 1986) (citing T.L.O., 469 U.S. at
325; Terry v. Ohio, 392 U.S. 1 (1968)) (noting that a thirteen-year-old child's 'legitimate
expectation of privacy' is substantially violated by a nude body search (quoting T.L.O., 469
U.S. at 325)). Children who are too young to exhibit a subjective expectation of privacy may
be permitted to sue in their own right, substituting their parents' expectations of privacy for
their own. Doe v. Heck, 327 F.3d 492,511.12(7th Cir. 2003) (holding that elementary-aged
children at a private Christian academy were permitted to sue for violations of Fourth
Amendment substituting their parents' expectations of privacy in that setting for their own).
174. See Bd. of Educ. v. Earls, 536 U.S. 822 (2002) (acknowledging and applying the
children's own Fourth Amendment rights in a public school drug testing context); Vernotha
Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) <same); T.L.O., 469 U.S. at 325 (acknowledging
and applying the children's own Fourth Amendment rights in the context of a public school
search concerning disciplinary violations). These cases all involved searches and seizures of
children in the public schools. The Court applied the special needs exception to judge the
v.8/12/2015
v.8/12/2015
constitutionality of the intrusions because law enforcement did not motivate any aspect of
the searches, and because the warrant and probable cause requirements were found to be
impracticable in the context of public schools' enforcement of their order and discipline
obligations.
special needs exception. Only a few circuits have explicitly discussed "special needs."""' In effect, however, only the First and
Fourth Circuits appear to recognize the exception's applicability at
least to certain kinds of child welfare investigations.' 76 Five other
circuits, the Second, Third, Fifth, Ninth, and Tenth, either categorically or probably have rejected its applicability in this setting. 177
The position of the remaining circuit, the Seventh, is equivocal; it
has suggested, in different cases, both that the special needs
175. See supra note 170 and accompanying text (reviewing all of the cases and noting
especially those that use special needs language).
176. See Wojcik v. Town of N. Smithfield, 76 F.3d 1, 2.3 (1st Cir. 1996) (finding that the
intrusion standard under both the Fourth and Fourteenth Amendments was
"reasonableness"; and holding that CPS acted reasonably when it removed a child without
a warrant from her classroom and transported her to her sister's school so that they could
both be interviewed together as part of an investigation of a report alleging that the girls
may have been excessively disciplined by their parents); Wildauer v. Frederick County, 993
F.2d 369, 372-73 (4th Cir. 1993) (holding that CPS and the police could conduct a warrantless
entry into and search of a state-authorized foster home as part of an investigation to assure
that the foster children were not being neglected, on the basis that foster parent had a
v.8/12/2015
v.8/12/2015
"substantially attenuated" privacy interest because of her relationship with the state
(quoting Smith v. Org . of Foster Families, 431 U.S. 816, 847 (1977))).
177. In these jurisdictions, this rule attaches whether the search or seizure is conducted
by CPS acting alone, CPS acting in concert with the police, or the police acting alone in the
context of a child maltreatment investigation. See, e.g., Walls v. Spencer, 202 F.3d 1126 (9th
Civ. 2000) (unreasonable seizure conducted by police, on orders from social workers);
Tenenbaum v. Williams, 193 F.3d 581 (2d Civ. 1999) (unreasonable search and seizure
conducted by social worker); Franz v. Lytle, 997 F.2d 784 (10th Civ. 1993) (unconstitutional
search conducted by police officer). See also supra note 170 (reviewing all of the cases
including those from these five circuits).
exception"" and the arrest standard—a warrant or probable cause
or exigent circumstances' 79—applies.
Notably, courts that favor the Fourth Amendment's particularized warrant and probable cause requirements reject the argument
that state officials need unfettered discretion to conduct this class
of investigations simply because they concern children.' 80 Instead,
178. See Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986). Darryl H. is frequently used for
the proposition that the Seventh Circuit has validated the constitutionality of strip searches
of children in public schools in the context of child maltreatment investigations. See, e.g., Roe
v. Tex. Dept of Protective & Regulatory Serve., 299 F.3d 395, 403 (5th Cir. 2002) ("The
Seventh Circuit has held that a child protective services worker need only satisfy the lesser
special needs test and not the more rigorous probable cause requirement."); Tenenbaum v.
v.8/12/2015
v.8/12/2015
Williams, 193 F.3d 581, 603 (2d Cir. 1999) (citing Darryl H. as standing for the proposition
that "neither warrant nor probable cause [is] necessary for visual inspection of child's body
for signs of abuse so long as relatively stringent state regulations [are] followed"). In fact, the
appellate court in Darryl H. merely armed two preliminary rulings to that effect by the
district court (involving the denial of a preliminary injunction and the granting of summary
judgment on qualified immunity grounds), expressly reserving for later consideration the
question whether the official acts at issue were constitutional. See Darryl H., 801 F.2d at
904.05 ("We have some misgivings about the final product. However, those misgivings may
be answered at trial. Until the trial judge has had an opportunity to deal with this matter
at a more mature stage of the litigation process, we cannot fault him for avoiding the most
costly error of all—loss of human life. Accordingly, we arm the district court's decision to
deny the preliminary injunction."). In the course of its decision, however, the appellate court
emphasized its discomfort with the district court's preliminary judgment that a state
screening procedure used in maltreatment cases was sufficient to assure the Fourth
Amendment reasonableness of the strip searches. Id. at 901 ("[W]hile we do not believe it is
outcome determinative at this early stage of the litigation, we are somewhat less convinced,
at least on this record, that a nude body search may be constitutionally conducted in every
instance in which the hot-line criteria are met."); see Id. at 903 ("[A]t this point in the
litigation, we remain unconvinced that the Handbook will ensure, in all cases, the
reasonableness of the visual inspection."). Thus, for reasons ofboth substance andprocedure,
I believe that it is inaccurate to characterize Darryl H. as many courts have done, that is, as
a decision in support of the constitutionality of reasonableness-based official strip searches

v.8/12/2015
v.8/12/2015
of children on public school grounds. For authorities recognizing this point, see Franz v.
Lytle, which notes the Seventh Circuit's emphasis in its decision on the "very preliminary
stages of the litigation process" and the fact that final decision in the case could not be
reached "without a more fully developed record." 997 F.2d 784, 789 (quoting Darryl H. v.
Coler, 801 F.2d 893, 895, 908 (7th Cir. 1986)).
179. See Doe v. Heck, 327 F.3d 492 (7th Cix. 2003) (suggesting in dicta that this is the
appropriate standard to apply in child maltreatment investigations).
180. The beat example of this apparently losing argument in the federal appellate case law
is found in Darryl H., 801 F.2d 893, in which the court of appeals recounts (but does not
adopt) the district court's rationale for upholding the constitutionality of strip searches of
children by social workers in the public schools setting on mere reasonableness grounds:
Not only would (application of the Fourth Amendment's traditional standard in
these cases] require more manpower and a larger budget, the more serious
they equate child abuse with other violent crimes for which no
exception exists to the the Fourth Amendment's usual strictures;
they find that the exigent circumstances exception is an adequate
tool to protect children who the government legitimately perceives
to be at risk; and they recognize that in many of the cases in which
the government intrudes, not only does it fail to find abuse or
neglect, but it often itself causes substantial harm to children and
families through its intervention.' 8 '

v.8/12/2015
v.8/12/2015
problem with the procedure is that a delayed examination of a child may simply
come too late to protect a child in imminent danger of grave bodily harm or
even death. Unfortunately, there is no quicker way of knowing whether a child
is at grave risk than by an actual examination of the child. Even assuming that
most abuse situations are not life-threatening, this court finds that the life of
even one child is too great a price to pay for the possible increased degree of
parental privacy through additional preliminary investigation which [the
traditional requirements] would demand.
Id. at 899 (quoting from the district court's opinion below); see supranote 178 (discussing the
courts' frequent misuse ofDarryl H.) and supra note 75 (explaining that this is a principle
rationale for the states' "take no chances" approach to maltreatment investigations).
181. See. e.g., Wallis v. Spencer, 202 F.3d 1126, 1130-31 (9th Cir. 2000) (finding that,
in the area of child abuse, as with the investigation and prosecution of all
crimes, the state is constrained by the substantive and procedural guarantees
of the Constitution. The fact that the suspected crime maybe heinous—whether
it involves children or adults—does not provide cause for the state to ignore the
rights of the accused or any other parties. Otherwise, serious injustices may
result. In cases of alleged child abuse, governmental failure to abide by
[traditional] constitutional constraints may have deleterious long-term
consequences for the child and, indeed, for the entire family. ill-considered and
improper governmental action may create significant injury where no problem
of any kind previously existed);

v.8/12/2015
v.8/12/2015
Goody. Dauphin County Soc. Serve. for Children & Youth, 891 F.2d 1087, 1094 (3d Cir. 1989)
(finding that
[i]t evidences no lack of concern for the victims of child abuse or lack of respect
for the problems associated with its prevention to observe that child abuse is
not aui generis in this context. The Fourth Amendment caselaw has been
developed in a myriad of situations involving very serious threats to individuals
and society, and we find no suggestion there that the governing principles
should vary depending upon the court's assessment of the gravity of the societal
risk involved);
White by White v. Pierce County, 797 F.2d 812, 817(9th Cir. 1986) (emphasizing that "(cihild
abuse is a heinous crime. So are murder and rape. Just as the repulsiveness of the latter two
crimes does not affect the constitutional restrictions placed on police officers, neither should
our repugnance to the former crime cause us to condone police procedures that infringe
constitutional protections."); cf. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1207 (10th Cir.
2003) (commenting that
[t]he defendants' argument seems to be based, at bottom, on the view that in
the absence of a criminal or other investigatory purpose, medical exams such
Because of its particular relevance to this Article, Part II.C.2.a
below discusses the Supreme Court's 2001 decision in Ferguson v.
City of Charleston at some length. 182 It is important to note here,
however, that the few federal appellate cases that have been
v.8/12/2015
v.8/12/2015
decided since then interpret Ferguson to preclude application of
the special needs exception to child maltreatment investigations.
The Fifth Circuit's Roe v. Texas Department of Protective and
Regulatory Services,"" from which the introductory illustration is
taken, typifies these recent cases. In rejecting CPS's argument
that the constitutionality of the intrusion should be evaluated
under the special needs test, the Fifth Circuit panel noted that
"[t}he [Supreme] Court only rarely [in the prisons setting] has
permitted 'special needs' searches in the face of a person's strong
subjective privacy interests.""' It also noted that "[t]he Court has
never upheld a 'special needs' search where the person's expectation
of privacy was as strong as [this child's] interest in bodily
privacy.""' Most significantly, it distinguished earlier circuit court
cases applying the exception to child maltreatment investigations
on the ground that these had been decided before the Court's
critical decision in Ferguson: "Identifying the goal of protecting a
child's welfare and removing him from an abusive home is easy;
disentangling that goal from general law enforcement purposes is
difficult.""' This is because the law in Texas, as elsewhere, requires
a thorough investigation both to satisfy this public welfare goal, and
to assure that the criminal law consequences of abuse and neglect
cases are treated efficiently and effectively.' 87 Thus, even when

v.8/12/2015
v.8/12/2015
as those [required by the Head Start program in issue] are for the good of the
children and should not be hamstrung by legalistic requirements like warrants
or consent. We do not doubt that Ithis program] was acting in the interests of
children, as it understood them. But the requirement of patient consent, or
parental consent in the case of minor children, serves important practical as
well as dignitary concerns, even when a social welfare agency, like [this one],
believes it is acting for the good of the child).
182. 592 U.S. 67(2001); see generally infra Part ILC2 and accompanying text (describing
the modern special needs doctrine and the place of Ferguson in that doctrine).
183. 299 F.3d 395 (5th Cir. 2002).
184. Id. at 406.
185. Id. The Fifth Circuit explained that the Court has "permitted visual body cavity
searches only in the prison setting." Id. at 406 n.14.
186. Id. at 406-07.
187. Id. at 407.
478 WILLIAM AND MARY LAW REVIEW WoL 47:413
conducted entirely without the police, "social workers' investigations {are} ... a tool both for gathering evidence for criminal
convictions and for protecting the welfare of the child.""" It
concluded, "Fergusonteaches that we must apply traditional Fourth
Amendment Analysis where a child protective services search is so
intimately intertwined with law enforcement.""'
Finally, because all of these appellate decisions have been

v.8/12/2015
v.8/12/2015
reached on facts that involve either intrusions into the personal
residence—in the guise of investigatory home visits—or interviews
coupled with examinations of the children who are the subject of
maltreatment reports, we know very little about how the courts
would rule in cases involving less intrusive searches and seizures.
The fact that the decisions often fail to distinguish between their
special needs and reasonableness analyses compound this uncertainty. Thus, for example, the cases tell us little about whether a
student's brief detention at school by a state official, such as a
teacher, an administrator, a social worker, or a police officer, would
trigger the Fourth Amendment's particularized warrant and
188. Id.
189. Id.; see also Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1242 (10th Cir, 2003)
(noting that in "special needs" cases, the nature of the need addressed makes particularized
suspicion impossible or otherwise renders the warrant requirement impractical, the court
found that "no special need ... renders the warrant requirement impracticable when social
workers enter a home to remove a child, absent exigent circumstances"; "individualized
suspicion is at the heart of a removal of a child from a home, distinguishing the instant case
from the various drug testing cases that have been addressed by the Court"; "unlike the
situation in [the Supreme Court's heavily regulated industry cases] ... there is no need for
surprise or sudden action that renders obtaining a warrant counterproductive"; "this
situation [is also not] similar to the [Court's special needs probationary decisions]—the
Roskas were not [already] in the criminal justice system, there was no deterrent function
v.8/12/2015
v.8/12/2015
being served by the threat of a sudden, warrantless search, and there was no immediate need
for a quick response"; and "[s]imply put, unless the child is in imminent danger, there is no
reason that it is impracticable to obtain a warrant before social workers remove a child from
the home"); Doe v. Heck, 327 F.3d 492, 517 n.2{) (7th Cir. 2003) (declining to decide "the
propriety of a generalized 'special needs' exception to the Fourth Amendment" but
nevertheless citing Ferguson and noting that "there is no apparent justification for carving
out a 'special needs' exception for child abuse investigations in this context"); Dubbs v. Head
Start, Inc., 336 P.3d 1194, 1214-15 (10th Cir. 2003) (rejecting the applicability of the special
needs doctrine to medical—including genital and blood—examinations of preschool children
who were enrolled in a state-administered Head Start program, and emphasizing the
government's failure to demonstrate that obtaining consent to conduct these examinations
was "impracticable" in the circumstances).
probable cause requirements in jurisdictions that already use that
standard in more intrusive contexts.
2. Modern Principles
The special needs exception's parameters and requirements have
evolved significantly since many of these cases were decided. Today
the exception applies potentially to insulate the government from
the Warrant Clause's strictures only in circumstances where the
government is able to show that an investigation or investigatory
scheme's immediate and "primary programmatic purpose" is civil

v.8/12/2015
v.8/12/2015
or administrative rather than law enforcement. Under this test,
which requires an objective analysis of the official motive that
predominantly drives the particular investigation or scheme, a civil
program and investigation may have incidental criminal implications without losing its special needs status.'°°
The same may be true of programs that have a dual purpose that
is, both a civil and law enforcement purpose. As the Court explained
in Burger v. New York,"" "a State can address a major social
problem both by way of an administrative scheme and through
penal sanctions. Administrative statutes and penal laws may have
the same ultimate purpose of remedying the social problem, but
they have different subsidiary purposes and prescribe different
methods of addressing the problem.""' In City of Indianapolis v.
Edmond"' and Ferguson v. City of Charleston,' 94 however, the
Court cautioned that where the "primary programmatic purpose"
of a dual-purpose scheme is law enforcement, or where the investigation itself is insufficiently "divorced" from law enforcement
motives, the special needs exception will not apply.' 95
190. See generally Ferguson, 532 U.S. 67 (stating that mere incidental implications will
not pose a problem for conferring special needs status); Camara v. Mun. Court, 387 U.S. 523
(1967) (finding that the question of criminal consequences is relevant to the requirement of
a warrant, but not dispositive of special needs status, as the standard to get a warrant is
reasonableness of administrative scheme as applied to the subject individual).
191. 482 U.S. 691 (1987).

v.8/12/2015
v.8/12/2015
192. Id. at 712.
193. 531 U.S. 32(2000).
194. 532 U.S. 67 (2001).
195. Ferguson and Edmond mark a shift in the Court's special needs jurisprudence.
Principally, this is because of the Court's precise enunciation in these cases of the "primary
Recognizing that the primary programmatic purpose inquiry can
be a slippery one gross understatement at best—the Court
emphasized its intention to scrutinize carefully in the future the
government's assertions of special needs to ensure that they meet
these standards.' 96 However, beyond suggesting that the inquiry is
an objective one, the Court did not explain how to determine the
primary purpose of a dual-purpose program.' 97 Some indication of
the methodology that is likely to prevail maybe gleaned from cases
and scholarship that have addressed the issue. These suggest that
where a reasonable outside observer concludes that a dual-purpose
search or seizure is heavily steeped in or "excessively entangled"
with ordinary criminal law enforcement, and/or that the law
programmatic purpose" test. Ferguson, 532 U.S. at 81, 83.84; Edmond, 531 U.S. at 44. As
applied to dual purpose investigations, this test is a means to distinguish a program's
"ultimate" purpose from its "immediate" or "direct" purpose. Ferguson, 532 U.S. at 84;
Edmond, 531 U.S. at 32. In turn, it is a means to rein in the special needs exception,
v.8/12/2015
v.8/12/2015
especially in circumstances where law enforcement is involved and thus, where the
investigation is deemed particularly intrusive. Edmond, 531 U.S. at 54; see also infra notes
251-53 and accompanying text (concluding that my reading of Ferguson's applicability to
maltreatment investigations is consistent with the Court's recent narrowing of the
exception's applicability). Courts since Edmond andFergusonhave noted this shift, although
they have disagreed as to its application. Remarkably, however, other than student
commentators, only a few scholars have considered its implications. See Lucinda Clements,
Note, Fergusonv. City of Charleston: Gatekeeper of the Fourth Amendment's "Special Needs"
Exception, 24 CAMPBELL L. REV. 263 (2002) (discussing at length the distinctions between
multiple orultiniate purposes and a primary purpose, and the implications of this distinction
for a special needs search); Jonathan Kravis, Case Comment, A Better Interpretation of
"Special Needs" Doctrine After Edmond and Ferguson, 112 YALE L.J. 2591 (2003) (using the
DNA Analysis Backlog Elimination Act as an example, arguing that special needs analysis
should focus on the context for the search, rather than on its purpose); Christopher Mebane,
Note, Rediscovering the Foundation of the Special Needs Exception to the FourthAmendment
in Ferguson v. City of Charleston, 40 Hous. L. REV. 177 (2003) (analyzing the impact of
Ferguson on special needs searches, including the extent to which law enforcement may be
involved); cf. Ronald M. Gould & Simon Stern, Catastrophic Threats and the Fourth
Amendment, 77 S. CAL. L. REV. 777 (2004) (arguing that the special needs exception should
apply to searches for bombs and other weapons of mass destruction, as their primary purpose
is to thwart a terrorist attack not to further traditional law enforcement purposes).
196. See Ferguson, 532 U.S. at 84 (stating that this case did not fit within the closely
v.8/12/2015
v.8/12/2015
guarded category of "special needs').
197. In applying this test, the articulated goals of the program's and investigation's
administrators are relevant in determining programmatic purpose, but they are not
dispositive. Id.; see also Taslitz, supra note 146, at 27.28 <noting that in this ruling is an
implicit rejection of its holding in Whren v. United States, 517 U.S. 806,810 (1996), that "an
officer's subjective intentions fare] irrelevant under the Fourth Amendment, except, when
determining that a search is an administrative one").
enforcement aspect is dominant or highly stigmatic, special needs
will not apply. 98 In this regard, the Court has emphasized that
investigations intended from the outset to gather evidence for law
enforcement purposes will be especially suspect.' 99
198. Ferguson itself is particularly useful for this purpose. See infra notes 214-26 and
accompanying text (describing the Court's analysis of these factors); see also Illinois v.
Lidster, 540 U.S. 419 (2004) (involving the constitutionality of a law enforcementadministered roadblock designed to gather evidence from possible witnesses to an earlier hitand-run
accident that killed an elderly man on a bicycle, in which the Court held that the
roadblock was reasonable and thus constitutional because its purpose was to seek
information from willing witnesses and not to inspect the stopped vehicles and their drivers
to determine if they had committed the crime, thus minimizing if not eliminating the stigma
associated with a targeted criminal investigation; the government had an important interest
in apprehending the hit-and-run driver and thus in seeking any information it could gather
from possible witnesses as to his/her identity; and the investigation was well-tailored, thus
v.8/12/2015
v.8/12/2015
the intrusion on the drivers was minimal in time and scope); infra note 224 (comparing
Ferguson and Edmond on the one hand, and Lidster on the other, to explain the Court's
apparent interest in the stigmatizing effects of investigations in the context of its special
needs analysis). Only one scholar thus far has sought to interpret the Court's newest twist
on the special needs exception. See Taslitz, supranote 146, at 4.6,28-30 (suggesting that the
only way to make sense of the Court's primary programmatic purpose test in light of its
related precedents is to look to the meaning "attributed to the state actors by their audience"
which itself "turn(s) on the common social meaning of particular conduct in our political
culture"; the Court has not allowed special needs to apply where this social meaning is
particularly stigmatic). Others have written about Ferguson in particular, but in ways that
seek to avoid rather than understand the new test. See Kravis, supra note 195 (arguing, in
effect, that a useful way to interpret this test is to collapse it with the reasonableness test's
practicability inquiry, i.e., asking "[d]oes the context of the search at issue create a special
need for warrantless searches?"); Mebane, supranote 195 (analyzing the impact ofFerguson
on special needs searches, including the extent to which law enforcement may be involved);
Rosemary Missisian, Note, The True Need of the Special Needs Doctrine: Individual
Rights—Ferguson v. City of Charleston, 33 U. T0L. L. Ray. 879, 911-12 (2002) (offering an
overview of how lower courts have decided special needs cases in the wake of Ferguson, and
how the role of law enforcement has been distinguished in different fact patterns).
199. See Ferguson, 532 U.S. at 83-84, 88 (Kennedy, J., concurring) ("The traditional
warrant and probable-cause requirements are waived in our previous cases on the explicit
assumption that the evidence obtained in the search is not intended to be used for law
v.8/12/2015
v.8/12/2015
enforcement purposes."); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995) (resting
the approval of the public school drug testing program in part on the fact that "the results
of the tests are disclosed only to a limited class of school personnel who have a need to know;
and they are not turned over to law enforcement authorities or used for any internal
disciplinary function"). Note that an authority's intent to discover evidence also for law
enforcement purposes goes both to proving the extent of the intimate relationship between
civil and law enforcement authorities and to demonstrating the particular intrusiveness of
an investigation.
a. Ferguson v. City of Charleston
Ferguson v. City of Charleston sets out the Court's most modern
iteration of the special needs doctrine in the context of the type of
dual-purpose scheme that the states have adopted in the child
welfare area more generally. For that reason, some lower courts
have concluded that the case is determinative of when the Fourth
Amendment's warrant and probable cause requirements apply to
child maltreatment investigations. 200 In the Court's own words,
Ferguson involved the issue "whether the interest in using the
threat of criminal sanctions to deter pregnant women from using
cocaine can justify a departure from the general rule that an official
nonconsensual search is unconstitutional if it is not authorized by
a valid warrant." 20' By a majority of six-to-three, 202 the Court found

v.8/12/2015
v.8/12/2015
that the state's policy of warrantless, suspicionless searches of
pregnant patients' urine violated the Fourth Amendment!" Five of
the Justices in the majority found that the state's articulated
"special needs" to protect the patient and her fetus were secondary
to its normal law enforcement functions!"
200. See supra notes 182-89 and accompanying text (discussing these cases).
201. 532 U.S. at 70.
202. Justice Stevens wrote for the majority, in an opinion which was joined by Justices
O'Connor, Souter, Ginsburg, and Breyer. Justice Kennedy concurred. See infra note 204
(discussing his opinion). Justice Scalia wrote a dissenting opinion, which was joined by the
Chief Justice and Justice Thomas. See infra notes 204, 223 and accompanying text
(discussing this dissent).
203. 532 U.S. 67. As a threshold matter, the Court found that the hospital's personnel
were state actors, id. at 76; the drug tests were searches, id; and the profile the hospital had
developed to determine which pregnant patients were to be tested for illegal drugs met
neither the probable cause nor reasonable suspicion tests, id. In this regard, the Court noted
that while the state argued that the searches were not suspicionlesa, it failed to "point to any
evidence in the record indicating that any of the nine search criteria was more apt to be
caused by cocaine use than by some other factor, such as malnutrition, illness, or indigency."
Id. at 77 n.10; see infra note 208 (setting out hospital's search criteria). I would add that
there are also many individuals who are not drug users who choose for various personal
reasons not to seek routine and periodic prenatal treatment. In any event, the Court
v.8/12/2015
v.8/12/2015
emphasized the irrelevance of the state's posture in this respect, based on its position that
"the policy would be valid even if the tests were conducted randomly." id.
204. Id. at 83-84. As of this writing, there is on the Court a majority of five in support of
what a disgruntled Chief Justice Rehnquist called the "non-law enforcement primary
programmatic purpose test" for the special needs doctrine. The Justices who comprise this
majority are Justices Stevens, O'Connor, Ginsberg, Souter, and Breyer. The stability of this
group is unclear, as Justice O'Connor has announced her retirement and it is possible that
The drug-testing program in Ferguson originated from the
hospital's concern about "an apparent increase in the use of cocaine
by patients who were receiving prenatal treatment." 208 The staff
concluded that adding a cocaine metabolite screen to the standard
prenatal urinalysis would allow it to refer patients who tested
positive to substance abuse treatment and counseling services, both
of which were designed ultimately to protect the growing fetus's
health. 20° To enhance the likelihood that drug-abusing pregnant
women would enter counseling and treatment, the hospital entered
she will be replaced by a jurist whose views are more in line with those of the dissenters on
this issue. Nevertheless, it remains the majority view. It is also not a weak majority, as
Justice Kennedy concurred in Ferguson,expressing his view that a program's"ultimate goal"
rather than its "immediate purpose" is the proper starting point for the special needs inquiry,
id at 86-87, and that its focus ought instead to be on the degree of "law enforcement
v.8/12/2015
v.8/12/2015
involvement" in the program. Id. at 87-89 (describing the Court's analysis in Skinner, Von
Raab, and Vernonia as resting on the government's ultimate health, welfare, and safety
objectives in each instance, rather than on the immediate motivations for evidence-gathering
toward those ends). Specifically, he wrote that
[t]he special needs cases we have decided do not sustain the active use of law
enforcement, including arrests and prosecutions, as an integral part of a
program which seeks to achieve legitimate, civil objectives. The traditional
warrant and probable-cause requirements are waived in our previous cases on
the explicit assumption that the evidence obtained in the search is not intended
to be used for law enforcement purposes.
Id. at 88. The dissent in Ferguson was written by Justice Scalia, who was joined by Chief
Justice Rehnquist and Justice Thomas. Scalia wrote that in assessing the applicability of the
special needs doctrine, the Court was bound by "the District Court's finding of fact that the
goal of the testing policy 'was not to arrest patients but to facilitate their treatment and
protect both the mother and the unborn child.' Id. at 98. In other words, in his view, the
purpose of the policy was established below by the state's assertion (and the lower court's
acceptance of the assertion) that it was administrative and not law-enforcement. He argued
that the program's additional (and in this case later-acquired) goal related to law
enforcement was irrelevant to the outcome of the special needs inquiry, as this doctrine
"contains no such exclusivity requirement." Id. at 98 n.8. He wrote, "the addition of a lawenforcement-related purpose to a legitimate medical purpose [cannot] destroyl] applicability
of the special needs doctrine" because "the special needs doctrine was developed, and is
ordinarily employed, precisely to enable searches by law enforcement officials who, of course,
v.8/12/2015
v.8/12/2015
ordinarily have a law enforcement objective." Id. at 100 (citing Griffin v. Wisconsin, 483 U.S.
868, 870-72 (1987)) (describing the warrantless search of a probationer's home by a civil
probation officer after the probation officer received a tip that the probationer had a gun in
violation of the terms of his probation). Thus, while "the doctors [in Ferguson] do not
'ordinarily conduc[t] searches against the ordinary citizen,' and they are 'supposed to have
in mind the welfare of the [mother and child],' the fact that "they have in mind in addition
the provision of evidence to the police should make no difference" to the outcome of the
special needs inquiry. Id. at 101.
205. Id. at 70.
206. Id.
into an agreement with the local prosecutor, who believed that
women who used drugs during pregnancy were committing child
abuse, to "prosecut[e] mothers whose children tested positive for
drugs at birth.""' Thus, the policy provided (as it had before the
local prosecutor became involved) that pregnant patients were to
have their urine screened for illegal drugs in circumstances where
the hospital had some reason to suspect they might be drug
users. 208 Initially, the policy provided that when a newborn tested
positive for cocaine metabolites, "the police were to be notified
without delay and the patient promptly arrested";"' but this aspect
of the protocol was later amended to exempt mothers from arrest

v.8/12/2015
v.8/12/2015
who promised to enter treatment and counseling. 21° When the
patient herself tested positive during pregnancy, the police were
to be informed of the results but were not to take any action and
the patient was to be urged to enter treatment and counseling. 21 '
Only if the patient tested positive a second time were the police
authorized to arrest her. 212 Finally, the policy established "procedures for the police to follow when a patient was arrested" as well
as "the precise offenses with which a woman could be charged,
depending on the stage of her pregnancy.""'
Examining the hospital's argument that its program qualified for
special needs status, the Court explained that to constitute "special
needs," the motives that primarily or most immediately animate its
investigations must be "divorced from the State's general interest
in law enforcement."' ," Applying this standard, the Court noted the
207. Id. at 70.71.
208. Id. at 71. The profile provided that women with one or more ofthe following nine
characteristics would be subject to the illegal drug screen: '"1. No prenatal care; 2. Late
prenatal care after 24 weeks gestation; 3. Incomplete prenatal care; 4. Abruptio placentae;
5. Intrauterine fetal death; 6. Preterm labor "of no obvious cause"; 7. IIJGR [intrauterine
growth retardation "of no obvious cause"]; 8. Previously known drug or alcohol abuse; 9.
Unexplained congenital anomalies."' Id. at n.4.
209. Id. at 72.
210. Id.
v.8/12/2015
v.8/12/2015
211. Id.
212. Id. Nevertheless, in the early phases of the program, the police immediately arrested
a patient who had tested positive. Id. at n.5.
213. Id. at 72.
214. Id. at 79. In this regard, and by analogy to its previous drug testing decisions, the
Court described the degree of divorce from law enforcement that is necessary for the doctrine
to apply. Thus, in Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989), the
government "prescribed toxicological tests, not to assist in the prosecution of employees, but
extent to which the hospital's written policy was dominated by its
law enforcement aspects, and the fact that it failed to focus on
the patient's and the fetus's health care. 215 It further noted the
extensive involvement of the local police and prosecutor's offices
in the development of the policy at its outset, as well as their
involvement throughout its administration. 216 For example, the
Court observed that
[i]n the course of the policy's administration, [law enforcement]
had access to [the principal nurse's] medical files on the women
who tested positive, routinely attended the [hospital's own]
substance abuse team's meetings, and regularly received copies
of team documents discussing the women's progress. Police took
pains to coordinate the timing and circumstances of the arrests

v.8/12/2015
v.8/12/2015
with [the hospital's] staff, and, in particular, [the principal
nurse] 217
Holding that this degree of entanglement between administrative
and law enforcement authorities and motivations was fatal to the
government's claim of special needs, the Court concluded:
While the ultimate goal of the program may well have been to
get the women in question into substance abuse treatment and
off of drugs, the immediate objective of the searches was to
generate evidence for law enforcement purposes in order to reach
that goal. The threat of law enforcement may ultimately have
rather to prevent accidents and casualties in railroad operations that result from impairment
of employees by alcohol or drugs." Ferguson, 532 U.S. at 80 n.16 (internal quotation
omitted). In National Treasury Employees Union v. Von Raab, 489 U.S. 856(1989), the Court
concluded that "it was clear that the ... program is not designed to serve the ordinary needs
of law enforcement. Test results may not be used in a criminal prosecution of the employee
without the employee's consent." Id. (internal quotations omitted). In Vernonia School
District 47J v. Acton, 515 U.S. 646(1995), the Court rested its approval of the program "in
part on the fact that the results of the tests are disclosed only to a limited class of school
personnel who have a need to know; and they are not turned over to law enforcement
authorities or used for any internal disciplinary function." Id. (internal quotations omitted).
In other words, in its previous drug testing cases, the Court had approved the
warrantless—and in some instances auspicionless-searches in circumstances where the

v.8/12/2015
v.8/12/2015
individual subject to search had a reduced expectation of privacy, and the evidence was
sought for objectives other than law enforcement.
215. Ferguson, 532 U.S. at 82.
216. Id.
217. Id.
been intended as a means to an end, but the direct and primary
purpose of [the hospital's] policy was to ensure the use of those
means. In our opinion, this distinction is critical. Because law
enforcement involvement always serves some broader social
purpose or objective, under [the government's] view, virtually
any non-consensual suspicionless search could be immunized
under the special needs doctrine by defining the search solely in
terms of its ultimate rather than immediate purpose. Such an
approach is inconsistent with the Fourth Amendment. 218
In so holding, the Court emphasized
[t]he fact that positive test results were turned over to the police
does not merely provide a basis for distinguishing our prior
cases applying the "special needs" balancing approach to the
determination of drug use. It also provides an affirmative reason
for enforcing the strictures of the Fourth Amendment. While
state hospital employees, like other citizens, may have a duty to

v.8/12/2015
v.8/12/2015
provide the police with evidence of criminal conduct that they
inadvertently acquire in the course of routine treatment, when
they undertake to obtain such evidence from their patients for
the specific purpose of incriminating those patients, they have a
special obligation to make sure that the patients are fully
informed about their constitutional rights, as standards of
knowing waiver require. 219
218. Id. at 83-84. The Fourth Circuit, apparently viewing the collaboration between the
hospital and the prosecutor in this case as a classic dual-purpose program, had earlier held
that the special needs exception attached because the hospital '"conducted the urine drug
screens for medical purposes wholly independent of an intent to aid law enforcement efforts'
and because on balance "the interest in curtailing the pregnancy complications and medical
costs associated with maternal cocaine use outweighed... a minimal intrusion on the privacy
of the patients." Id. at 75.
219. Id. at 84-85. The Court further noted that some hospital staff members "made this
distinction themselves." See id. at n.24 (citing PL Ex. No. 14, Hulsey, 11-17-89, Coke
Committee, 1-2:
The use of medically indicated tests for substance abuse, obtained in
conventional manners, must be distinguished from mandatory screening and
collection of evidence using such methods as chain of custody, etc.... The
question is raised as to whether pediatricians should function as law
enforcement officials. While the reporting of criminal activity to appropriate

v.8/12/2015
v.8/12/2015
authorities maybe required and/or ethically just, the active pursuit of evidence
to be used against individuals presenting for medical care may not be proper).
The hospital's administrators were probably surprised that the
Court's "objective view" of their primary programmatic purpose was
law enforcement, and that their health and safety motivations were
only "indirect" and "ultimate." 22° As the Court itself noted, the
hospital employed a number of means to protect fetuses by ensuring
the health and safety of their mothers, including collecting and
analyzing the women's urine for the presence of illegal drugs, and
counseling them to attend rehabilitation programs to remediate
the fetal environment. 22' The in terrorem effect of possible law
enforcement action likely was seen by the hospital staff as merely
an additional tool, albeit an important one, in its arsenal of
persuasive, compensatory, and punitive tactics. 222 Given that
220. See Raju Chebium, High Court to Decide it Hospital Erred in Sharing Medical Test
Results with Police, CNN.com, Oct. 3, 2000, http://archives.cnn.comJ2000ILAW/scotus/
10/031scotus.prenataltesting/index.html ('MUSC officials, local prosecutors and the
Charleston, South Carolina Police Department all said the policy was designed to safeguard
the lives of the fetuses, citing medical studies definitively linking birth defects and other
problems to cocaine use by the expectant mothers."). Robert Hood, the hospital's attorney,
also stated that, "[m]edical criteria underlie the program. The law enforcement's only role
v.8/12/2015
v.8/12/2015
was as a tool ... by which the health care providers were trying to prevent pregnant women
from using cocaine." Id.
221. Despite the hospital's insistence that the threat of prosecution was designed to
protect the health and safety of the fetuses, over 100 leading medical professionals sent a
letter to the U.S. Surgeon General expressing their opinion that such a policy was ultimately
more harmful to the fetus, as mothers were less likely to seek prenatal care and medical
attention in such circumstances. Sign on Letter: Ferguson v. City of Charleston, Letter from
American Acad. of Physician Assistants et al., to David Satcher, Surgeon Gen. of the U.S.
(Oct. 2000), available at http://www.drugpolicy.org/library/ferguson..letter2.cfm . A number
of women's groups submitted amicus briefs on behalf of the Plaintiffs; the hospital had no
briefs filed in its support. Ferguson, 532 U.S. at 67.
222. See supra note 220 (setting out the hospital's lawyer's views in this regard).
Nevertheless, it is worth noting that it was Nurse Shirley Brown, the case manager for the
MUSC obstetrics department, who initiatedcontact with the prosecutor's office after hearing
of such prosecutions on the news. Ferguson, 532 U.S. at 70.71. Although very few women
were actually arrested and prosecuted for drug use under the hospital's program, supporting
the proposition that such law enforcement purposes were secondary in the hospital's actions,
the plaintiff' attorney alleges that "whenever a woman seriously challenged the legality of
the prosecution, the prosecutor would drop the charges. They did not want to risk losing in
court." Interview by Christian Harlan Moen with Lynn Paltrow, The Fight for Reproductive
Rights: Hard-Won Protections for Reproductive Freedo mAre Increasingly UnderAttack, Says
This Advocate for Pregnant Women, 39 TRIAI. 48 (Aug. 2003). In addition, during the trial it
v.8/12/2015
v.8/12/2015
was revealed that Nurse Brown held racist views, including that interracial relationships
were "against God's way;" that she had noted on white patients' charts if their partners were
African-American; and "[s]he also raised the option of sterilization for black women testing
positive for cocaine, but not for white women." Plaintiff's Brief at 13 n.10, Ferguson v. City
of Charleston, 532 U.S. 67 (2001) (No. 99-936), 2000 WL 728149.
hospitals generally have longstanding systematic approaches to
prenatal care, many of which were part of the program in this case,
it is understandable that the joint protocol's emphasis would be on
the novel law enforcement component, and not on its established
parts. 223
Viewing the program this way begs the question why the Court
ruled as it did. Why was this not a classic "dual-purpose" scheme
whose civil component qualified for special needs status? Although
the answer is not obvious in the opinion, one could reasonably
conclude that the Court was swayed by the highly stigmatizing
nature of law enforcement's involvement in the development and
administration of the policy. 224 As one Fourth Amendment scholar
has explained, the program allowed a set of particularly vulnerable
women to be labeled "potential child abusers" based on quite
223. Dissenting in the case, .Justice Scalia remarked on these same inconsistencies and
asserted that the majority's characterization of the searches was incompatible with the true
v.8/12/2015
v.8/12/2015
facts, including as found by the district court. Ferguson, 532 U.S. at 98-100.
224. The idea that the stigma associated with law enforcement might be a basis for
distinguishing amongst at least the Court's most recent special needs decisions is based in
a comparison of its decisions in Ferguson and City of Indianapolis u. Edmond, 531 U.S. 32
(2000), on the one hand, and Illinois v. Lidsger, 540 U.S. 419(2004), on the other. The Court
found that the special needs exception was inapplicable to insulate the government from the
presumptive requirements of the Fourth Amendment in both Ferguson and Edmond, but
later allowed its application in Lidster. Compare Lid ster, 540 U.S. at 426-28, with Ferguson.
532 U.S. at 83-84, and Edmond, 531 U.S. at 32. To the extent the cases can be distinguished,
it is in the absence of stigma associated with the search and seizure in Lidster. 540 U.S. at
425. In Lidster, the majority noted that unlike evidence-gathering highway stops,
information-seeking ... stops are less likely to provoke anxiety or to prove
intrusive. The stops are likely brief. The police are not likely to ask questions
designed to elicit self-incriminating information. And citizens will often react
positively when police simply ask for their help as "responsible citizen[s]" to
"give whatever information they may have to aid in law enforcement."
Id.; see also id. at 423-25, 428 (discussing the difference between evidence and informationgathering searches and seizures). On the other hand, the searches and seizures at issue in
Ferguson and Edmond involved individuals whom the government suspected might be
implicated in both civil and criminal law violations. See Ferguson, 532 U.S. at 70-72 (state
suspected pregnant women of using illegal narcotics); Edmond, 531 U.S. at 34 (discussing
legality of city roadblocks designed to find illegal drugs). Thus, objective observers of the
searches in Lidster would not conclude that the targets were suspects, whereas objective
v.8/12/2015
v.8/12/2015
observers of the searches in Ferguson and Edmond could not help but come to that
conclusion. Thus, it is this problem of being considered a suspect of both civil and law
enforcement authorities that distinguishes these most recent decisions. Notably, the police
were responsible for staffing both the Edmond and Lidster investigations, which makes clear
that it is the law enforcement motivation underlying a search or seizure rather than its
staffing that is determinative for the Court.
meager evidence. 225 In the end, this label may have been too
incendiary for the Court, especially in a country that still views
mothers and motherhood as sacred.
Ultimately, Ferguson's place in the Supreme Court's modern
special needs jurisprudence may be marked by the attention given
to stigma, and by its special facts: Women who would be mothers,
vulnerable because of their pregnancy and their poverty, targeted
for a deeply demeaning investigation by civil and law enforcement
authorities who often proceeded with little evidence to support
their suspicions of maltreatment and guilt. These facts distinguish
the case from the Court's other special needs precedents involving
children's health and welfare. For doctrinal purposes, the most
important distinction is the presence of a significant law enforcement purpose to the investigations almost from the outset of the
program, and the finding that in the factual context, the objective
view inevitably sees this purpose as predominant. 226

v.8/12/2015
v.8/12/2015
225. See Taslitz, supranote 146, at 5-67 (discussingthe stigmatizing effect of being labeled
a child abuser and its possible impact on the Court in reaching its decision in Ferguson); see
also supranote 208 (setting out the criteria for screening women into the program).
226. Compare B(L of Educ. v. Earls, 536 U.S. 822 (2002) (judging a school board's drug
testing policy according to reasonableness and finding it to be constitutional because it
served the board's important interest in detecting and preventing drug use among its
students, its regulation of extracurricular activities diminished the expectation of privacy
among students, and its method of obtaining urine samples and maintaining test results was
minimally intrusive); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (judging the
Fourth Amendment constitutionality of a public school's program randomly to search
students' urine for drugs according to its reasonableness rather than its compliance with the
requirements of the Warrant Clause, for the same predominant order and discipline
reasons upon which it based its decision in New Jersey u. T.L.O.; in addition, this program
was not suspicion-based, and by its explicit terms, the results of the drug tests would not
be provided to law enforcement); New Jersey v. T.LO., 469 U.S. 325 (1985) (judging the
Fourth Amendment constitutionality of a search and seizure of a child's purse by a public
school official in connection with the investigation of an allegation of a violation of school
rules—smoking in the bathroom—according to its reasonableness rather than its compliance
with the requirements of the Warrant Clause, because public schools have the responsibility
to assure order and discipline in the schools, a responsibility which the Court has long held
trumps or substantially diminishes the weight of students' individual constitutional rights;
while the inspection in this case was suspicion-based, it was not at the outset associated with
v.8/12/2015
v.8/12/2015
law enforcement); Wyman v. James, 400 U.S. 309 (1971) (judging the Fourth Amendment
constitutionality of a home visit to be conducted by state officials in connection with the Aid
to Families with Dependent Children (AFDC) program according to its reasonableness rather
than its compliance with requirements of the Warrant Clause because the receipt of AFDC
funds was otherwise constitutionally conditioned on the accessibility of the home to the
officials who were to assure that they were appropriately used by parents for food and
b. The Applicability of the Modern Special Needs Exception
to Child Welfare Investigations
Whether states can rely on the special needs exception to
constitutionalize their present approach to child welfare investigations clearly will depend on the nature and degree of law
enforcement's involvement in the administrative scheme and in
particular investigations. Where a program's or investigation's
primary programmatic purpose is obviously law enforcement, the
special needs exception will not exempt it from the requirement of
a particularized warrant based on probable cause. The paradigmatic example in this category is a police-staffed investigation of a
report suggesting that a child may have been sexually or physically
abused in such a way that would constitute a criminal offense if
substantiated. 227 The incidental participation by civil authorities
whose exclusive interest was to prevent any further harm to the
child would not affect this result. 228 On the other hand, programs
and investigations that are primarily or exclusively motivated by

v.8/12/2015
v.8/12/2015
civil concerns likely will pass muster and thus be accorded special
clothing for the children; the home visit, i.e., inspection of the personal residence, was
neither based on individualized suspicion nor associated in any way with law enforcement).
227. See, e.g., Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993) (reviewing the actions of a
police officer asked by CPS to investigate a case of severe diaper rash who conducted a
standard law enforcement investigation into the possibility that the child had been sexually
abused; and holding that the special needs exception is inapplicable in these circumstances
involving both the appearance and fact of crime control). The trial court in Franzfound that
although the police officers had a "statutory responsibility... to cooperate with [CPS]," in this
case "at all times [Officer Lytle] was conducting a criminal investigation involving searches
'aimed at uncovering incriminating evidence of sexual abuse by one or both parents.' Id. at
786, 788. Specifically, the court found that the officer's "focus was not so much on the child
as it was on the potential criminal culpability of her parents. ... [which] is the hallmark of
a criminal investigation." Id. at 791. The court also noted that the officer "was in uniform and
carrying a gun at all times; he recorded his meeting with Mrs. Franz following police policy;
he filed standard [state bureau of investigation] reports of his investigation; and he informed
his superior that he was investigating a possible child molestation." Id. Finally, the court
found that because he misled the Franz family concerning the nature of his investigation, he
could not "reasonably [have] believe[d] plaintiffs gave llawful] consent to the searches" that
formed the investigation. See supra notes 38.41, 139-46, 155.56 and accompanying text
(discussing the role that official deception concerning the law enforcement motives
underlying an investigation plays in the determination of lawful consent).

v.8/12/2015
v.8/12/2015
228. Thus, in Franz, the fact that CPS had originally called on the police to conduct the
investigation to assure that the child was safe, 997 F.2d at 785 n. 1, was ultimately irrelevant
to the court's determination that the investigation's motivation was law enforcement.
needs status. For example, a jurisdiction may choose to track
certain allegations of maltreatment to an entirely civil system, and
otherwise to treat the individuals targeted for investigation in ways
that do not trigger the moral opprobrium that ordinarily is
associated with suspicions of abuse or neglect. 229 Note, however,
that like in Ferguson, the state's exclusive use of civil personnel to
staff a program is not dispositive of this inquiry if its purpose in
part is to gather evidence for law enforcement; the converse is also
true. 23°
The more difficult programs to assess are those that lie in
between, the arguably true dual-purpose schemes that are or
appear to be equally motivated by civil and law enforcement
229. An illustration of such treatment would be where a state or locality tracks simple
neglect cases—cases involving allegations about a dirty house or an ill-clothed or dirty child,
for example—exclusively to civil authorities who investigate the allegations on their own and
exclusively for civil purposes, and where the authority's approach to the family is
rehabilitative or therapeutic, rather than adversarial and punitive. These programs likely
would pass special needs muster because their advocates could claim what they cannot in the
v.8/12/2015
v.8/12/2015
usual context, thattheir programmatic purposes are divorced from law enforcement; that the
investigations are designed to yield evidence in support of civil and not joint civil/criminal
ends; that to the extent they land on evidence that is destined also for law enforcement, it
is merely incidental in the same sense that it would be when a pediatrician or a
schoolteacher lands on similar evidence and reports this as required to law enforcement or
to a multidisciplinary team; that their primary civil motivation is objectively evident because
law enforcement personnel are in fact nowhere to be seen in the equation; and that the
program is run in such a way that substantially diminishes if not eliminates the stigma and
fear that attaches to ordinary maltreatment investigations because of their ties to crime
control. See, e.g., CrnLDREN'S SERVe., N.C. Div. OF Soc. SERVe., MULTIPLE RESPONSE SYSTEM
AND TEAM DECISION MAKING APPROACHES (on Me with author); see also DEPANPILIS & SALUS,
supra note 52, at 50 (offering an overview of "noninvestigative or alternative responses" such
as dual-track responses that "permitfi CPS agencies to respond differentially to children's
needs for safety, the degree of risk present, and the family's need for support or services").
In such systems, law enforcement personnel become involved only in the more severe cases
of physical or sexual abuse. Id. According to a North Carolina CPS official, North Carolina,
Missouri, and Florida all have begun such dual-track pilot programs. Rebecca Brigham,
North Carolina Children's Services, Presentation Before the Duke University Center for
Child and Family Policy's Child Abuse and Neglect Working Group (Feb. 26, 2003)
(presentation handouts and notes on Me with author).
230. Writing before me, Hardin took the position that the special needs exception could
not attach where the investigation was either conducted by or involved the substantial
v.8/12/2015
v.8/12/2015
participation of the police. See Hardin, supra note 23, at 536-38. While the involvement of
law enforcement clearly continues to have important implications for modern special needs
analysis, the mere fact that law enforcement is responsible for staffing an investigation is
not dispositive. See, e.g., Illinois v. Lidster, 540 U.S. 419(2004) (applying the special needs
doctrine to roadblock search and seizure conducted by the police).
concerns. (These are also the most important for the purposes of
this Article, because the majority of child welfare programs fall
into this category.) The investigation in Wallis v. Spencer involving allegations of satanic worship and child sacrifice"' and the
investigation in Roe v. Texas Department of Protective and
Regulatory Services involving a social worker's decision to photograph the genitals of a six-year-old girl during a home visit"' fall
into this category. Older precedents suggest that they would qualify
for special needs status primarily because their civil objectives are
more than pretextual. 233 More recent cases, Ferguson in particular,
suggest that the degree of interconnectedness between their civil
and law enforcement aspects, and the stigma that consequently
arises, create the impression (at least) that the investigations are
motivated primarily by law enforcement and thus are inappropriate
for special needs treatment. 234
Part I described typical maltreatment schemes and the investigations that are pursued according to their terms. 235 Because in
"most States, all or most all forms of reported child abuse or
neglect are crimes," 236 an important relationship inherently exists

v.8/12/2015
v.8/12/2015
between CPS and law enforcement. This relationship is diverse and
wide-ranging: Many states require CPS and law enforcement to
coordinate the development and/or implementation of intake,
231. 202 P.3d 1126 (9th Cir. 2000); see also supra notes 116.27 and accompanying text
(describing this case).
232. 299 F.3d 395 (5th Cir. 2002); see also supra note 1 and accompanying text.
233. See supra note 162 (describing older analyses of the application of this doctrine to
child welfare contexts).
234. See supra Part II.C.2.a (discussing Ferguson and the special needs analysis that
emerges from that decision).
235. See supra notes 25-65 and accompanying text.
236. PENCE & WILSON, supra note 48, at 5 (quoting AM. BAR ASS'N EL' AL., LAW
ENFORCEMENT/CHILD PROTECTION COOPERATION IN HANDLING OF CHILD ABUSE CASES 10
(1989)). Depending upon the state, there is more or less overlap in the civil and penal codes'
definitions of abuse and neglect. North Carolina, for example, defines general forms of abuse
and neglect in its Juvenile Code, and these definitions are applied by reference "in criminal
cases involving a charge of contributing to the abuse or neglect of a minor child." JANET
MASON, REPORTING CHILD ABUSE AND NEGLECT IN NORTH CAROLINA 13,14 n.7 (2d ed. 2003).
On the other hand, child sexual abuse is defined only in the Criminal Code which is crossreferenced in the Juvenile Code. Id. at 103 (setting out the text of the Juvenile Code's abuse
definition, which references the Criminal Code's definition of the covered sexual offenses).
The proper supervision of children also is defined in the Criminal Code. Id. at 30 n.8.

v.8/12/2015
v.8/12/2015
screening, and investigatory procedures. 237 This collaborative
approach is likely to become more prevalent, as the federal
government is actively seeking to "eliminate unnecessary duplication of effort, to promote proper and expeditious collection and
preservation of evidence, and to 'develop a coordinated system for
identifying and investigating appropriate calls.""" Toward that
end, the government is promoting the use of multidisciplinary
"teams" comprised of CPS and law enforcement officers who
"shar[e] information, assignfl investigative tasks, and participatfe]
in a shared decisionmaking process.""' Presently, however, most if
237. For example, Michigan requires each county within the state to assure that its
prosecuting attorney and CPS together determine how law enforcement should be involved
in investigations, as well as "adopt and implement standard child abuse and neglect
investigation and interview protoeols." MICH. COMP.LAWSANN. § 722.628 (West 2002). These
procedures are required to be modeled after protocols developed by a government task force
on children's justice issues. See A MODEL CHILD ABUSE PROTOCOL: COORDINATED
INVESTIGATWETs" APPROACH, STATE OFMICHIGAN GOVBRNOR'STASK FORCE ON CHILDREN'S
JUSTICE, FIAPus. 794(1998). The Model Protocol provides that the purpose of investigations
is to determine whether a child has been abused or neglected, to determine whether there
is probable cause to believe that a crime has been committed, to minimize trauma to the
child, and to ensure fairness to the accused. Id. California requires law enforcement and CPS
to implement cooperative arrangements to coordinate duties in connection with
investigations. CAL. PENAL CODE § 11166.3 (West 2001). Georgia provides that the
v.8/12/2015
v.8/12/2015
investigation is to be conducted by CPS coordinating with law enforcement as necessary, but
particularly where allegations have possible criminal law implications, or where a CPS
investigator finds children at home unattended. GA. DEP'T OF HUMAN RES., SocLqL SERVICES
MANUAL § 2104.1, .16 (1999); see also FLA. STAT. §§ 39.301, 39.306(2003) (requiring CPS to
forward allegations of criminal conduct to law enforcement, which determines if an
investigation is required; if so, the two agencies are required to coordinate their investigative
activities where feasible, with law enforcement assuming the lead where the allegations
involve death, aggravated abuse, or sexual abuse); OHIO REV. CODE ANN. § 2151.421 (West
2004) (providing that required investigation "shall be made in cooperation with law
enforcement"); STATE OF WISCONSIN, DEP'T OF HEALTH & FAMILY SERVE., Div. OF CHILDREN
& FAMILY SERVS., COLLABORATION WITH LAW ENFORCEMENT AGENCIES ON CHILD ABUSE AND
NEGLECT REPORTS (Feb. 2004), available at http:lldhfs.wisconsin.gov/dcfs_infolnum_
memosI200412004.05.htm (containing revision of existing Child Protective Service
Investigation Standards to provide for collaboration with law enforcement in compliance with
the Seventh Circuit's decision in Doe u. Heck, 327 F.3d 492 (2003)).
238. PENCE & WILSON, supra note 48, at 8 (quoting D.J. BESHAROV, CHILD ABUSE AND
NEGLECT REPORTING AND INVESTIGATION: POLICY GUIDELINES FOR DECISION MAKING 3
(1988)).
239. Id. The government has "encouraged [local officials] to establish formal CPS/law
enforcement protocols" to achieve these coordinated ends. Id. In support of this approach, the
Clearinghouse cites the 1984 final report of the Attorney General's Task Force on Family
Violence and the conclusions of the Tennessee's Child Sexual Abuse Task Force, which in
v.8/12/2015
v.8/12/2015
1986 found as follows:
not all states contemplate that the evidence-gathering function may
be conducted by officials from either agency, or both working
together, 14' and that relevant evidence will be shared between the
The team representatives of each discipline (law enforcement, child protective
services, and in some cases prosecutors and mental health) bring their various
expertise to be utilized as part of the total investigative process. By applying
their expertise as part of acoordinated effort the Team members can work more
efficiently and effectively. The independent goals of each discipline are still met
with the only difference being that the investigative process will be coordinated
through the Team. All Team members will not actually work all aspects of the
investigation, but will actively coordinate the total process drawing from the
resources available through all involved disciplines and other disciplines as
needed.
Id. The Department of Health and Human Services advocates this team approach to the
investigation of child maltreatment reports, and describes the complete team (including the
police, CPS, and others) this way:
Law enforcement brings to the team "expertise in the collection and
preservation of evidence, in crime scene examination, and in taking statements
and confessions." Law enforcement can also make arrests and present the
criminal case in a lawsuit through obtaining warrants, presenting the case at

v.8/12/2015
v.8/12/2015
a preliminary hearing or grand jury and in criminal court. CPS caseworkers
often have greater experience in interviewing children (victims and siblings),
in assessing the risk of further abuse, in arranging for medical or psychological
exams and services, and in working with the protective alternatives of juvenile
or family court. Law enforcement can also place children in custody, but the
CPS agency generally must provide foster care services. Other members of an
investigative team might include the prosecutor or agency attorney who
assesses the evidence as it is collected and then formally prosecutes the case.
The prosecutor can assist in drafting search warrants, preparing witnesses, and
providing general direction and guidance. Mental health professionals also
provide consultation to investigators on the clinical needs of the victim and
others involved in the investigation, help interpret psychological information
secured, and offer guidance on interviewing strategies with children and adults.
Id. "Participation in... [multidisciplinary teams] is mandated for Federal agencies under the
Victims of Child Abuse Act of 1990 and the Indian Child Protection and Family Violence
PreventionAct (Public Law 101.630)." NAT'LINDLANJUSTICE CTR. FOR THE OFFICE OF VICTIMS
OF CRIME, U.S. Dzp"r OF JUSTICE, IMPROVING TRIBAL/FEDERAL PROSECUTION OF CHILD
SEXUAL ABUSE CASES THROUGH AGENCY COOPERATION, available at http://www.ojp.usdoj .
gov/ovc/publications/infores/pdftxt/tribslbult.pdf.
240. Typically, the police are used to provide direct "law enforcement support to CPS." See
PENCE & WILSON, supra note 48, at 6. In some localities, such support is provided
systematically. For example, in Palm Beach County, Florida, a protocol developed by the
v.8/12/2015
v.8/12/2015
Department of Children and Families (DC and the Law Enforcement Planning Council
ensures that all reports of child abuse received through either 911 calls or the state hotline
are jointly investigated by DCF and law enforcement." CMrv. ALLIANCE OF PALM BEACH
COUNTY, supra note 49. The protocol includes a detailed "wire diagram" that maps out the
steps of the investigation, the responsibilities of each agency at each step, and points at
which key decisions, such as whether to remove the child, should be made.
agencies for eventual use in both civil and penal proceedings. 241
In other localities, law enforcement is used to support CPS when its officials "must visit
isolated, dangerous locations and deal with mentally unstable, violent, and/or substance
controlled individuals." PENCE & WILSON, supra note 48, at 6-7. And Texas provides that.,
"with assistance from the appropriate state or local law enforcement agency, [CPS] shall
make a prompt and thorough investigation of a report of child abuse or neglect committed
by a person responsible for a child's care, custody or welfare." TEX. PAM. CODE ANN. § 261.301
(Vernon 2002). Specifically, in Texas, CPS must notify law enforcement within one to three
days of receiving a report, 40 Tax. ADMIN. CODE § 700.506(2003).
In other jurisdictions, the police may become involved at the request of CPS, for example,
when CPS believes that it needs the in terrorem effect of the police to be permitted to conduct
the investigation, as "[1]aw enforcement's authority is... much more widely accepted than the
CPS authority" and "[m]any times CPS caseworkers are denied access to alleged victims of
maltreatment while law enforcement's requests to see the child are honored." PENCE &
WILSON, supra note 48, at 6.7. In these jurisdictions, however, police involvement in the
v.8/12/2015
v.8/12/2015
investigation of reports that allege particularly severe kinds of maltreatment may be
required U.S. Dap'i OF HEALTH AND HUMAN Saavs., supra note 36, at ch. IV tbL4D
(providing an overview of law enforcement involvement in child abuse investigations in all
fifty states, showing that in almost every state, law enforcement participates in
circumstances involving allegations of specific types of cases, such as severe abuse and/or
cases of emergency removal). For example, Illinois requires CPS to seek the assistance of law
enforcement where "serious physical or sexual abuse has been alleged" or where there is
"reason to believe that the home is unsafe because, for example, the parent is violent or has
a lot of weapons." Telephone Interview with Linda Williams, supra note 48. And Texas
requires that reports alleging serious physical or sexual abuse must be investigated jointly
with law enforcement. 40 TEX. ADMIN. CODE § 700.506 (2003). Finally, depending on the
community and the nature of the formal relationship between civil and law enforcement
authorities, the police also respond to routine, emergency, and after-hours calls on their own.
PENCE & WILSON, supra note 48.
241. See supra note 237 (providing, among other things, jurisdictional examples of
evidence-sharing among agencies). North Carolina is most specific in this regard, as it
requires that
[wihenever an investigation by a social services department reveals that a child
may have been abused, the director of social services must make an oral report
immediately and a written report within 48 hours to both the district attorney
andthe appropriate law enforcement agency. The law enforcement agency must
begin a criminal investigation immediately ... and must coordinate its

v.8/12/2015
v.8/12/2015
investigation with the protective services investigation being done by social
services. When the criminal investigation is complete, the district attorney
decides whether any criminal charges should be filed.
MASON, supra note 236, at 63-64. The threat of criminal sanctions appears to be designed
primarily to serve as a deterrent, as refusals to cooperate with investigations, and even
substantiated reports do not typically result in criminal prosecutions. See U.S. DEP'T OF
HEALTH & HUMAN SERVS., WORKING WITH THE COURTS IN CHILD PROTECTION (1992),
available at http:IInccanch.acfhhs.govIpubaIusermanualsIcourta/courtse.cfm (noting that
"[m]any instances of child maltreatment that rise to a level of criminal behavior are not
prosecuted for a number of reasons," including a lack of full information in that context, a
belief that the case cannot be successfully prosecuted, and a fear that such prosecution might
interfere with attempts to rehabilitate the family or might further traumatize the child).
Finally, depending on the jurisdiction, the failure to comply
voluntarily with an investigation as well as a finding of maltreatment can result in criminal sanctions. 242
The analogies to Fergusonin many of these respects are striking
and thus they provide the basis for the best argument against
special needs status for dual-purpose investigations. 141
The state hospital staff and the local prosecutor developed
together the investigatory scheme in Ferguson. It was incorporated
into a protocol that, among other things, set out the two authorities'
respective roles and responsibilities. In the same way, many child

v.8/12/2015
v.8/12/2015
welfare investigatory schemes are characterized by protocols that
law enforcement and civil officials collaboratively developed to
ensure that their respective agencies coordinate intake, screening,
and investigatory efforts.
Child welfare investigations, like the investigation in Ferguson,
are often initiated on the basis of a report containing a suspicion of
a violation which does not necessarily reach the level of reasonable
suspicion or probable cause. Despite their weak evidentiary basis,
the states justify the ensuing investigations on the view that
nonaction risks the children enormous harm, either serious bodily
and emotional injury or death. In Ferguson,, the analogous concern
was damage from in utero exposure to narcotics.
Like the investigation in Ferguson, child welfare investigations,
including home visits and unsupervised examinations of children,
have as their ultimate purpose the safety and health of children.
More immediately, however, like the investigation in Ferguson,
their purpose is to gather evidence to determine if parents are
242. See, e.g., In re Stumbo, 582 S.E.2d 255, 259 (N.C. 2003) (explaining that "a noninterference order may be enforced by civil or criminal conduct"); see also supranotes 42.43
and accompanying text (describing the implications of refusals to cooperate with
investigations); supranote 241 (noting that the prohibitions against refusing to comply with
investigations, and against maltreatment itself appear mostly designed as deterrents,
because few individuals are in fact charged pursuant to their terms).

v.8/12/2015
v.8/12/2015
243. Indeed, the analogies to Ferguson are so striking that it is not surprising that the
federal appellate courts that have had an opportunity to review the issue since Ferguson
have found its holding to be dispositive. See supra notes 182-89 and accompanying text
(discussing these cases). It is noteworthy that child maltreatment investigations are also
distinguishable from the Court's other special needs cases involving children, as well as those
that lower courts tended to cite before Ferguson. See supranote 226 (contrasting these older
cases).
violating laws prohibiting maltreatment.'" Both the "delivery" of
narcotics to a fetus and the abuse or neglect of a child are violations
of the civil and criminal laws. And in both contexts—under the
Ferguson protocol and typical state protocols—it is known from the
outset that all evidence that supports the authorities' initial
suspicions will be provided to law enforcement officials. In the
typical child welfare context, this evidence is provided to the police
and/or to the prosecutor's office as a matter of course. Civil child
welfare officials, like the state hospital staff in Ferguson, thus serve
in part as agents for law enforcement when they pursue their
investigations; at a minimum, they are conduits.
Child welfare investigations, like the investigation in Ferguson,
can result in criminal charges if the allegations in a screened-in
report are substantiated. However, like in Ferguson, criminal

v.8/12/2015
v.8/12/2015
charges are rarely pursued. Thus, in both instances, the threat of
criminal charges serves primarily to encourage, frighten, or force
parents to stop engaging in risky or harmful behaviors.
Finally, the stigma of being officially identified with criminal
child abuse, a significant factor in Ferguson, is inherent in most
child maltreatment investigations. Despite its prevalence in the
society, the label "child abuser" or "neglectful parent" carries with
it profound negative connotations. Being a "parent" means being a
good mother or a good father, who devotes him- or herself to
nurturing, protecting, guiding, loving, and respecting their children.
In turn, being a "child" means being positively cherished by a good
mother and/or a good father. In American culture, this period
lasts a long time if the child is "lucky." Of course, this standard
frequently goes unmet for reasons other than parental maltreatment; nevertheless, it is the expectation that we dare to hold as a
central and organizing principle in our lives. It gives parents and
children special meaning and a special social and personal status:
"This is my son, the beaming mother announces as she gazes upon
her offspring with obvious love and pride." "That is my father, the
adoring child states as she points him out with unconditional love
and respect."
244. While I disagree with Hardin and Beeman in other respects, it is noteworthy that
they agree with this analysis, i.e., that the ultimate purpose of child welfare investigations
v.8/12/2015
v.8/12/2015
is the health and safety of the child, whereas their immediate purposes are evidentiary. See
supra note 162.
A knock at the door by an official who suggests that someone—a
bystander, a neighbor, a friend, a teacher, or a doctor—has given
the state reason to believe that a child in the family is being abused
or neglected by the very people who are intended to cherish her is
the ultimate challenge to the strength and existence of this central
premise in a family, and thus is also the ultimate vehicle for shame
for its members. Not incidentally, this knock is also utterly
frightening, perhaps particularly if one is indeed a devoted parent
or a loved child, as nothing is more earth-shattering to contemplate
than the separation a state official can effect in the name of child
welfare. When a state treats these matters as both civil and
criminal concerns, the potential for shame and fear is enhanced
dramatically. Because criminal conduct carries the deepest moral
opprobrium, such an investigation implies almost by definition
that the authorities believe the parent involved may be a
particularly bad mother or father, and that the child may be
particularly unloved. This opprobrium understandably overshadows even significant objectives that civil authorities may separately
pursue. 245
Given the foregoing, the best argument in support of special

v.8/12/2015
v.8/12/2015
needs status for dual-purpose child welfare investigations depends
on the ability to distinguish Ferguson. 246 Such an argument would
suggest that unlike in the typical child welfare setting, the civil
purpose in Ferguson was slight . 14' A related argument might
suggest that even in dual-purpose investigatory schemes, the state's
245. See also Beeman, supra note 23, at 1057, 1066 n.220 (noting the stigmatizing effect
of maltreatment investigations, and the need for procedures to restrain the discretion of
investigating officials to minimize this stigma).
246. As already noted, before Ferguson it was possible to argue that dual-purpose
investigations could pass special needs muster so long as their civil purpose was not
pretextual. See supra note 162 and accompanying text. In the absence of a more apposite
case, it was also possible to rely on broad propositions contained in decisions such as New
Jersey v. T.L.O., 469 U.S. 325(198s), Wyman u. James, 400 U.S. 309(1971), and Camara v.
Municipal Court, 387 U.S. 523(1967). Since Ferguson, however, such reliance is difficult to
justify because this case is closest on the facts to child welfare investigations and because it
lays to rest at least some of the ambiguities inherent in that older case law. See supra Part
fl.C.2 (introducing Ferguson and explaining its place in the doctrine).
247. It cannot be that Ferguson did not involve a dual-purpose scheme or investigation,
i.e., that it was exclusively law enforcement motivated. This is because the hospital before,
during, and after its affiliation with the local prosecutor used the results also to treat their
patients. See supra notes 205-23 and accompanying text. Thus, at best, the argument must
be that this civil purpose was secondary to the law enforcement motives.
v.8/12/2015
v.8/12/2015
primary programmatic purpose is always the child's health and
well-being. This account sees the law enforcement aspects of the
multidisciplinary approach to investigations as complementary, not
dominant, in both the immediate and ultimate equation. Thus,
whether the CPS caseworker examines a child alone or with a police
companion, or the police investigate a report on their own, the
primary motivation is to ensure the child's safety. When evidence
is gathered in this context, its immediate purpose also is to ensure
the child's safety. Only secondarily, or even incidentally, is the
evidence gathered to advance a criminal law enforcement purpose.
In this sense, the investigators, civil or criminal, are no different
than teachers and doctors and other mandated reporters who
happen upon evidence of maltreatment in the course of ordinary
caregiving.
This Article features the argument against special needs status
for dual-purpose investigations because these more favorable
arguments are likely to fail. The best analogy to Ferguson does not
exaggerate the civil purpose underlying the urine screens in that
case; rather, it reveals and explores the rationales for the Court's
own exaggeration of their law enforcement purpose."" Even if the
analogy is shown to be imperfect, however, the Ferguson majority

v.8/12/2015
v.8/12/2015
made clear that an investigatory scheme entangled with law
enforcement, and/or an investigation that is designed at the outset
to collect evidence for law enforcement, ordinarily will not pass
special needs muster. 249 By taking this approach, the Court
expressly rejected the argument, which was made by the state and
accepted by both the lower courts and the dissenters in that case,
that the hospital's overriding beneficent motives required that the
investigation be seen as primarily civil, and that its relationship to
law enforcement be seen as merely incidental to those health and
welfare objectives. 250
248. See supra notes 220.26 and accompanying text (reconciling the Coures use of
the facts with the subjective intent of the hospital staff responsible for implementing the
program, and noting that Justice Scaha's dissenting opinion in the case reflects on the
majority's recharacterization of the facts as described by the hospital and as adopted by
the district court).
249. See supra notes 214-19 and accompanying text (discussing the Court's rationale).
250. Ferguson v. City of Charleston, 532 U.S. 67,80-81(2001). Indeed, in this context, the
Court expressly rejected the attempt to analogize the hospital staff to mandated reporters
who merely happen upon evidence relevant to law enforcement. Id.
Most importantly, the Court's rejection of the hospital's arguments reflects the current majority's recent effort to reign in the
special needs exception in both search and seizure contexts. It has

v.8/12/2015
v.8/12/2015
done this by rejecting the government's arguments, apparently
compelled by past decisions, to describe a program's health and
safety objectives as significant and thus as dominant. Relatedly,
and again contrary to the precedents, the Court has recast the
government's evidence-gathering function in part as simple crime
control. This effort is exemplified (and arguably was initiated) in
City of Indianapolis v. Edmond,sel which involved a suspicionless
roadblock seizure designed to uncover narcotics and to check for
drunk drivers and drivers' licenses and registrations. The city
sought to analogize its program to previous roadblocks that had
been accorded special needs status because their ultimate purposes
were both civil and significant. Writing for the majority that
rejected this argument, Justice O'Connor explained:
If we were to rest the case at this high level of generality, there
would be little check on the ability of the authorities to construct
roadblocks for any conceivable law enforcement purpose.
Without drawing the line at roadblocks designed primarily to
serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming
a routine part of American life.... There is no doubt that traffic
in illegal narcotics creates social harms of the first magnitude....
But the gravity of the threat alone cannot be dispositive of
questions concerning what means law enforcement officers may

v.8/12/2015
v.8/12/2015
employ to pursue a given purpose. 252
251. 531 U.S. 32 (2000).
252. Edmond, 531 U.S. at 42. But see id. at 50-51 (Rehnquist, C.J., dissenting).
Plaintiffs acknowledge that the "primary purpose" of these roadblocks is to
interdict illegal drugs, but this fact should not be controlling.... The District
Court found that another "purpose of the checkpoints is to check driver's
licenses and vehicle registrations,"... and the written directives state that the
police officers are to "[1]00k for signs of impairment" ... Because of the valid
reasons for conducting these roadblock seizures, it is constitutionally irrelevant
that Plaintiffs also hoped to interdict drugs.
Id. (citation omitted); see also supranote 195 and accompanying text (describing the shift in
the doctrine which previously accorded special needs status to dual-purpose investigations
where the civil objective was not mere pretext for allowing a criminal investigation).
These are the same themes that governed Justice Stevens' majority
opinion one year later in the search context at issue in Ferguson.""
D. Reasonableness as the Ultimate Measure of Fourth
Amendment Constitutionality
The Court has repeatedly made clear that reasonableness is
the ultimate measure of constitutionality under the Fourth
Amendment.""' This premise reflects the prevailing approach to the
text, which holds that even where an exception to the Amendment's

v.8/12/2015
v.8/12/2015
particularized warrant and probable cause requirements applies,
the constitutionality of an official search or seizure depends upon
its reasonableness. 255 The Court's traditional approach to determining the reasonableness of official conduct requires balancing
the strength of an individual's expectation of privacy in the
circumstances and the degree of intrusiveness involved in the
search or seizure, against the government's need for the investiga-
253. Thus, writing for the Ferguson majority, Justice Stevens wrote:
As defss have repeatedly insisted, their motive was benign rather than
punitive. Such a motive, however, cannot justify a departure from Fourth
Amendment protections, given the pervasive involvement of law enforcement
with the development and application of the ... policy. The stark and unique fact
that characterizes this case is that [the policy] was designed to obtain evidence
of criminal conduct by the tested patients that would be turned over to the
police and that could be admissible in subsequent criminal prosecutions. While
defss are correct that drug abuse both was and is a serious problem, "the
gravity of the threat alone cannot be dispositive of questions concerning what
means law enforcement officers may employ to pursue a given purpose."
532 U.S. at 85.86 (quoting Edmond, 531 U.S. at 42-43); see also id. at 86.88 (Kennedy, J.,
concurring) (explaining his view that the current majority's reconstruction of the
ultimate/immediate purposes analysis is inconsistent with the Court's prior special needs
cases).
254. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 828 (2002) ("[R]easonableness'... is the
v.8/12/2015
v.8/12/2015
touchstone of the constitutionality of a government search."); United States v. Knights, 534
U.S. 112, 118 (2001) ("The touchstone of the Fourth Amendment is reasonableness.");
Dunaway v. New York, 442 U.S. 200, 219 (1979) (White, J., concurring) ("As our prior cases
hold... the key principle of the Fourth Amendment is reasonableness—the balancing of
competing interests."); Terry v. Ohio, 392 U.S. 1,19(1968) (TI']he central inquiry under the
Fourth. Amendment [is]—the reasonableness in all the circumstances of the particular
governmental invasion of a citizen's personal security.").
255. TASLITZ & Pius, supranote 129, at 169. it is also apparently useful to the dissenters
from that approach, who prefer to imagine that reasonableness can be invoked as the
constitutional test even in circumstances where there is no exception.
tion and its effectiveness in meeting that need. 256 Depending on the
circumstances, the result of the reasonableness inquiry at least in
theory could be that an official intrusion is unreasonable (1) in the
absence of a particularized warrant and probable cause; (2) in the
absence of a particularized warrant and reasonable suspicion; (3)
in the absence of reasonable suspicion; or (4) in the case of a
suspicionless search or seizure, in the absence of a finding that the
program pursuant to which the intrusion is made itself is reasonable.257
The Court has emphasized that "[t]he Fourth Amendment does
not protect all subjective expectations of privacy, but only those that
society recognizes as 'legitimate.""" The reasonable expectation of

v.8/12/2015
v.8/12/2015
privacy test requires that "particular attention ... be given to the
nature of the place at which the observed objects or activities are
located, for this will bear directly upon whether there was justified
expectation of privacy as to those objects or activities.""' Consistent
with this attention to context, the government is said to have
conducted a Fourth Amendment "search" when it "physically
intruded into 'a constitutionally protected area." 261 Professor Wayne
LaFave explains that "[t]hese areas were those enumerated in the
Fourth Amendment itself: 'persons,' including the bodies and
clothing of individuals; 'houses,' including apartments, hotel rooms,
garages, business offices, stores, and warehouses; 'papers,' such as
letters; and 'effects,' such as automobiles.""'
The law is clearest on official incursions into an individual's
home. Thus, "searches of the dwelling house were the special object
of [the] universal condemnation of official intrusion," and in
particular the "[n]ight-time search was the evil in its most obnoxious form." 262 True to these origins, the Court has found that "the
256. Id.
257. Taslitz, A Feminist Fourth Amendment, supra note 146, at 26 (noting that where
special needs applies, the "Court eliminates or modifies the warrant requirement, the
probable cause requirement, or both").
258. Vernonia Sch. Dist. 47J v. Acton, 615 U.S. 646, 654 (1995) (quoting New Jersey v.
T.L.O., 469 U.S. 325, 338 (1985)).

v.8/12/2015
v.8/12/2015
259. LAFAvE, supra note 21, § 2.2(c).
260. Id. § 2.1(a) (quoting Silverman v. United States, 365 U.S. 505 (1961)).
261. Id. § 2.1(b) (citations omitted).
262. Monroe v. Pape, 365 U.S. 167, 210 (1961); see also Kyilo v. United States, 533 U.S.
27, 37 (2001) ("The Fourth Amendment's protection of the home has never been tied to
most stringent Fourth Amendment protection" is afforded to
"searches [and to] ... the sanctity of private dwellings""' so that
"searches and seizures inside a home without a warrant are
presumptively unreasonable. 112"
Individuals' expectations of privacy with respect to their persons
and their substantial interests in mobility and property also have
an important pedigree and are well described in the case law. 265 For
example, Justice O'Connor has described a "long history of outrage
at personal searches before 1789.266 Under the modern doctrine,
"[a]ll that is required Ito constitute the seizure of a person] ... is
that an 'officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen.""" Proving that
such restraint occurred requires a showing that "'in view of all of
the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave."""' Typical
seizures include "full-fledged arrests, ... 'investigatory detentions'

v.8/12/2015
v.8/12/2015
and any other 'detention of the [person] against his will.""" Most
important, the Court made clear in New Jersey v. T.L.O. 27° that
measurement of the quality or quantity of information obtained.... [A]ny physical invasion
of the structure of the home, 'by even a fraction of an inch,' was to much.... In the home, our
cases show, alldetails are intimate details, because the entire area is held safe from prying
government eyes." (quoting Silverman, 365 U.S. at 512)); Wilsonv. Layne, 526 U.S. 603,609-
11 (1999) (noting that "[t]he Fourth Amendment embodies this centuries-old principle of
respect for the privacy of the home," and holding that it is a violation of a suspect's Fourth
Amendment rights to bring the media into his home to witness his arrest).
263. Ferguson v. City of Charleston, 532 U.S. 67, 83 n.21 (2001) (internal quotations
omitted) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976)).
264. Welshv. Wisconsin, 466 U.S. 740,748.49(1984) (internal quotations omitted)(noting
that the "physical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed" (internal quotations omitted)).
265. See, e.g., TASLITz & Paais, supra note 129, at 100.42 (describing the law on the
expectation of privacy including as it pertains to seizures).
266. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,673(1995) (O'Connor, J., dissenting)
(quoting Cuddihy, supra note 131, at 835, 1518, 1552 & n.394).
267. LAFAVE, supra note 21, § 2.1(a) (quoting Terry v. Ohio, 392 U.S. 1 (1968)).
268. Id. (quoting United States v. Mendenhall, 446 U.S. 544 (1980)).
269. Id. (quoting Cupp v. Murphy, 412 U.S. 291(1973)). On the other hand, an individual's
reasonable expectation of privacy may not be violated by brief investigatory detentions, or

v.8/12/2015
v.8/12/2015
by the confiscation and analysis of personal attributes which are typically the subject of
public display and observation, such as a person's handwriting, voice, and the like. Id. §
2.6(a).
270. 469 U.S. 325 (1985) (involving the detention of a child in the vice principal's office
during a disciplinary action, and the search of the child's purse for evidence of a violation of
school rules, and subsequently of a violation of state law).
children are considered "persons" within the meaning of the
search-and seizure rule. Specifically, it found that the "search of a
child's person ... no less than a similar search carried out on an
adult, is undoubtedly a severe violation of subjective expectations
of privacy. 11171
As distinguished from the reasonable expectation of privacy test,
the intrusiveness inquiry requires analysis of the scope and degree
of the intrusion to determine whether it is relatively minimal or
extensive. 272 In this context, the Court has emphasized the intrusiveness of searches that start out with, among other objectives,
an intent to provide the results to third parties, especially to law
enforcement or other disciplinary authorities. 273 The Court also
has considered whether the investigations scheme is over- or
underbroad in terms of the number of individuals it captures,
overbreadth also being an indicator of intrusiveness. 274 Thus, for
example, although body searches are prototypical invasions of the

v.8/12/2015
v.8/12/2015
individual's reasonable expectation of privacy, some body searches
are clearly more intrusive than others. Strip searches, genital and
excretory examinations, x-rays, and surgical operations have been
271. Id. at 337-38; see also Doe v. Heck, 327 F.3d 492, 511.12 (7th Cir. 2003) (explaining
that children, even young children, can be found to have "reasonable expectations of privacy"
recognizable in the Fourth Amendment context, even where they do not "exhibitI] a
subjective expectation of privacy"); see supra note 173 and accompanying text (discussing this
point in the context of the federal appellate caselaw in the area).
272. See Winston v. Lee, 470 U.S. 753, 761 (1985) ("Another factor [in analyzing the
magnitude of the intrusion] is the extent of the intrusion upon the individual's dignitary
interests in personal privacy and bodily integrity.").
273. Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) ("The use of an adverse test
result to disqualir one from eligibility for a particular benefit, such as a promotion or an
opportunity to participate in an extracurricular activity, involves a less serious intrusion on
privacy than the unauthorized dissemination of such results to third parties.").
274. Vernonia Sch. Dint. 47J v. Acton, 515 U.S. 646,678(1995) (O'Connor, J, dissenting)
(explaining that suspicion-based searches are far less intrusive than general searches
because they "invad[e] the privacy of a few... rather than many"); id. at 669-71 (explaining
the history of the Amendment and its focus on objective probable cause as a check on the use
of general warrants which were considered highly intrusive both because they unreasonably
captured innocent people and because they captured so many such individuals); Illinois v.
Kru]l, 480 U.S. 340,365 (1987)(0'Connor, J., dissenting) (discussing the different roles of the
v.8/12/2015
v.8/12/2015
legislator and the judicial officer in authorizing searches and that the former "sweeps
broadly, authorizing whole classes of searches," while the latter "affects one person at a time"
rather than "thousands or millions," which "poses a greater threat to liberty").
found to be particularly intrusive, whereas simple patdowns have
not.275
Finally, the individual's interests and the investigation's
intrusiveness are balanced against the "nature and immediacy of
the governmental concern at issue .. and the efficacy of [the state's
chosen] means for meeting it." 276 It is in this context that the
"practicability" of the warrant and probable cause requirements
and the government's relative "need" to avoid them is most
relevant. The Court has sometimes closely scrutinized the nature,
immediacy, and efficacy of the government's articulated needs in
these respects; at other times it has been quite deferential. 1117 In any
event, although the government's approach does not have to be the
best imaginable or the least restrictive, it must at a minimum be an
effective strategy. 278
275. Compare Winston v. Lee, 470 U.S. 753 (1985) (holding that a surgical operation into
a robbery suspect's cheat to recover a bullet was unreasonable under the Fourth
Amendment), with Schnierber v. California, 384 U.S. 757 (1966) (ruling that a state may,
over a suspect's protests, remove and test his blood based on suspicion of drunk driving
v.8/12/2015
v.8/12/2015
without violating his Fourth Amendment rights). In Schmerber, the Court added, "[t]hat we
today hold that the Constitution does not forbid the States[sic] minor intrusion into an
individual's body under stringently limited conditions in no way indicates that it permits
more substantial intrusion, or intrusions under other conditions." Id. at 772. The Court
distinguished Winston from Schmerber primarily on the basis of the need for general
anesthesia for the operation, the significant medical risks to the suspect's life, and the
possible availability of other means to pursue a case against him, as well as the "extent of
the intrusion upon the individual's dignitary interests in personal privacy and bodily
integrity," which would be far greater for an operation than for a commonplace blood test.
Winston, 470 U.S. at 761-66; see also Doe v. Groody, 361 F.3d 232, 238-43 (3d Cir. 2004)
(finding "the nature of the intrusion [to be] significant," the court held that a strip search
without probable cause was a violation of the Fourth Amendment); cf. Terry v. Ohio, 392 U.S.
1,29-30(1968) (holding that a "patdown" search during a investigatory stop does not violate
a person's Fourth Amendment rights). In Terry, the Court refused to delve too deeply into
the discussion of what constitutes a search or seizure, focusing instead on "recognizing] that
the Fourth Amendment governs all intrusions by agents of the public upon personal security,
and J]mak[ing] the scope of the particular intrusion, in light of all the exigencies of the case,
a central element in the analysis of reasonableness." Id. at 17 n.15.
276. Vernonia, 515 U.S. at 660.
277. Compare id. at 663 ("We have repeatedly refused to declare that only the 'least
intrusive' search practicable can be reasonable under the Fourth Amendment." (quoting
Skinner v. Ry. Labor Executives' Assn, 489 U.S. 602, 629 n.9 (1989))), with id. at 680
v.8/12/2015
v.8/12/2015
(O'Connor, J., dissenting) ("[A] suspicion-based scheme, even where reasonably effective in
controlling in-school drug use, may not be as effective asa mass suspicionlesa testing regime
just as itis obviously true that suspicion-based law enforcement is not as effective as mass,
suspiciouless enforcement might be.").
278. Mich. Dep't of State Police v. Sit; 496 U.S. 444, 449 (1990) (factoring into the
506 WILLIAM AND MARY LAW REVIEW jVol. 47:413
Consistent with this doctrine, the presumption that a warrant
and probable cause are needed to constitittionalize a search or
seizure is most likely to be overcome in the context of investigations
that do not strongly implicate the individual interests protected
by the Fourth Amendment. The quintessential examples in this
category are highway roadblocks, which have been characterized as
brief and suspicionless seizures involving only a minor intrusion on
privacy and mobility;"" inspections of highly regulated industries,
which have been described as being the historical subject of
statutorily based routine and thorough searches, and thus as
having a highly reduced expectation of privacy; 280 and investigations
of probationers for parole violations, public school children for
disciplinary violations, and welfare recipients for compliance with
the conditions upon which aid is given, all of which the Court has
found to involve significantly reduced expectations of privacy and
mobility, owing to the subjects' preexisting status relationship with

v.8/12/2015
v.8/12/2015
the state. 28' Conversely, the Fourth Amendment's presumption in
favor of a warrant and probable cause is least likely to be overcome
in cases involving searches and seizures that implicate important
individual interests. Searches of the family home, which are almost
always intrusions of the highest order, and of parts of the body that
are not typically in plain view, exemplify this category. 282
balancing analysis of the state's interest against the intrusion on individual liberties the
effectiveness of the state's sobriety checkpoints in curbing drunk driving).
279. See, e.g., id. at 451-52.
280. See, e.g., Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602 (1989); New York v.
Burger, 482 U.S. 691 (1987).
281. See, e.g., Ed. of Ethic. v. Earls, 536 U.S. 822 (2002) (public school drug testing);
United States v. Knights, 534 U.S. 112 (2001) (probation violation); Vernonia Sch. Dist. 47J
v. Acton, 515 U.S. 646 (1995) (public school drug testing); Griffin v. Wisconsin, 483 U.S. 868
(1987) (probation violation); New Jersey v. T.L.O., 469 U.S. 325 (1985) (public school
disciplinary violation); Wyman v. James, 400 U.S. 309 (1971) (public assistance inspection).
282. Ferguson v. City of Charleston, 532 U.S. 67, 83-84 (2001) <finding that the
government's need to protect fetuses from maternal drug use is insufficient to outweigh the
mothers' FourthAn,endment rights); Chandlery. Miller, 520 U.S. 305, 321-22 (1997) (finding
that the "symbolic" act of requiring candidates for state office to undergo drug testing is
insufficient as a state interest to outweigh the individual's privacy interest); Winston v. Lee,
470 U.S. 753, 765.66 (1985) (finding that a surgical operation to remove a bullet from a
v.8/12/2015
v.8/12/2015
suspect's chest was too intrusive as balanced against the government's need to build a case
against him, particularly given the availability of other types of evidence); Roe v. Tex. Dep't
of Protective & Regulatory Servs., 299 F.3d 395, 406 (5th Cir. 2002); Goody. Dauphin County
Soc. Servs. for Children & Youth, 891 F.2d 1087, 1093.94 (3d Cir. 1989) (holding that privacy
intrusions as significant as strip searches can be justified only by a warrant, consent, or
The Court has already established the reasonableness of
particular sorts of intrusions using this balancing test; consequently, it is unlikely to reconsider whether a warrant and/or
probable cause is required in these contexts. 283 For example,
investigations that meet the doctrinal requirements of the Court's
consent and exigent circumstances exceptions, as well as certain
kinds of special needs investigations, presumptively will meet
Fourth Amendment requirements without further review. Recently,
the Court also has eschewed this analysis where evidence exists in
the historical record that a particular sort of search or seizure was
permissible at common law at the time of the founding. 284 However,
where the program and investigation are sui generis—that is, where
exigent circumstances). In Roe, the Fifth Circuit noted that
[t]he Court only rarely has permitted "special needs" searches in the face of a
person's strong subjective privacy interests.... The Court has never upheld a
"special needs" search where the person's expectation of privacy was as strong
as is [this child's] interest in bodily privacy. The potency of her privacy interest
v.8/12/2015
v.8/12/2015
makes us reluctant to apply the "special needs" doctrine.
299 F.3d at 406.
283. TASLITZ & PARis, supra note 129, at 169-70.
284. See Sklansky, supra note 131, at 1743, 1745 (describing this doctrinal shift in the
Court's reasonableness analysis, and denominating it "the new originalism"). This "new
originalist" methodology was used, for example, in Vernonia School District 47J v. Acton,
where the Court was asked to review the constitutionality of a public school's suepicionless
drug testing program that targeted student athletes. Writing for the majority, Justice Scala
began his analysis this way:
(Tihe ultimate measure of the constitutionality of a governmental search is
"reasonableness." At least in a case such as this, where there was no clear
practice, either approving or disapproving the typeofsearch at issue, at the time
the const it utional provision was enacted, whether a particular search meets the
reasonableness standard "is judged by balancing its intrusion on the
individual's Fourth Amendment interests against its promotion of legitimate
governmental interests."
615 U.S. 646, 652.53 (1995) (emphasis added) (quoting Skinner v. Ry. Labor Executives'
Ass'n, 489 U.S. 602, 619 (1989)). Justice Scalia then proceeded to apply that standard,
ultimately holding that the program was constitutional because, having met the
requirements of the special needs exception, see id. at 653.54, the government was
persuasive that on balance the program was not particularly intrusive, id. at 668-60, did not
tread on particularly strong expectations of privacy, Id. at 654-57, and was effective at
v.8/12/2015
v.8/12/2015
meeting the school board's objectives, id. at 660-64. See also Atwater v. City of Lago Vista,
532 U.S. 318 (2001) (applying "new originalist" methodology to uphold a police officer's
extremely frightening and degrading search and seizure of a mother in front of her children
based on the officer's accurate assessment that the mother had violated a law requiring the
placement of young children in car seats).
the Court has not yet had occasion to decide a closely related
case—reasonableness balancing analysis is generally required. 285
Because they ensconce the competing values fundamental to the
Fourth Amendment, these methodologies and principles are not
only relevant to any doctrinal analysis of child maltreatment
investigations; they are also essential to a normative evaluation of
the merits of the prevailing approach to solving the nation's abuse
and neglect problem. In light of this, my analysis of the reasonableness of this approach and the investigations conducted under its
auspices is reserved for Part III, which contains an argument
against the child maltreatment exception to the Fourth Amendment.
III. REJECTING A CHILD WELFARE EXCEPTION ON THE BASIS OF
FUNDAMENTAL FOURTH AMENDMENT PRINCIPLES
This Part sets out a normative argument against a child welfare
exception to the Fourth Amendment. The likely inapplicability of
the special needs exception to investigations that have a significant
law enforcement aspect forces the doctrinal result that no child

v.8/12/2015
v.8/12/2015
welfare exception exists to the Amendment's presumptive requirements. In other circumstances, where the role of law enforcement
is not so apparent, the special needs exception's applicability is less
predictable. In either case, however, this Article does not rest its
argument against a child welfare exception on these doctrinal
grounds. Specifically, I do not find the distinctions most relevant for
determining special needs status to be compelling rationales for or
against a child welfare exception: Whether family privacy can
constitutionally be invaded based on no, mere, or even reasonable
suspicion in the ways that CPS and/or the police currently conduct
investigations ought not rest on the details of law enforcement's
involvement in an underlying scheme or a particular search.
Rather, this deeply important question ought to be decided based
on the value that is placed on privacy, mobility, dignity, and
personal security for children and families, and on the government's
corresponding need to invade those rights for the public good. As
285. TASLITZ& Pais, supranote 129, at 170 ('If the case does not fit an existing category,
then the court must engage in balancing to craft a new categorical rule.").
the introductory illustration to this Article and the cases described
in Part I reflect, police and prosecutors are by no means unique in
their ability to wreak havoc in the life of a child and her family;
indeed, even the more subtle "family-friendly" approaches to

v.8/12/2015
v.8/12/2015
interventions adopted by some CPS agencies can be pervasively
destructive of the values ensconced in the Fourth Amendment, and
consequently of the children's and the family's well-being. Thus, I
argue from fundamental Fourth Amendment principles that in the
absence of consent or exigent circumstances and whether or not the
special needs exception applies, it is unreasonable for the state to
conduct maltreatment investigations without a particularized
warrant and probable cause. Proceeding without these protections
reflects an unacceptable bias against individual and family privacy.
Nevertheless, to assure this argument's doctrinal relevance, it is
developed within the confines of the Court's modern reasonableness
analysis.
A. The View from History
The question whether searches and seizures of children and the
family home are reasonable in the context of child welfare investigations has no colonial precedent or analog. Indeed, in the colonial
era, it was generally accepted that parents owned their children,
and could do with them what they wished, including leasing out
their labor to others for long periods of time, and disciplining
them in ways that would be considered draconian today. 286 For
that reason, it rarely if ever would have been the case that the
government would have conducted search and seizure operations in
connection with child welfare; and thus, common law courts rarely
v.8/12/2015
v.8/12/2015
286. As Barbara Bennett Woodhouse has described, in the colonial era,
the father's power over his household, like that of a God or King, was absolute.
Law employed a property theory of paternal ownership and treated children "as
assets of estates in which fathers had a vested right.... Their services, earnings,
and the like became the property of their paternal fathers in exchange for life
and maintenance."
Barbara Bennett Woodhouse, "Who Owns the Child?": Meyer andPierce and the Child as
Property, 33 Was. & MARY L. REV. 995, 1037 & n.182 (1992) (quoting MICHAEL GROSSBERG,
GOVERNING THE HEALTH LAW AND THE Fieux IN NINETEENTH-CENTURYAMERICA 54 (1986))
(noting also that "(t]he punishment in several Colonies for striking or cursing one's father
was death").
would have had occasion to deliberate over their reasonableness!"
Consequently, common law precedents from the colonial era do not
inform our assessment of the reasonableness of the states' current
approach to child welfare investigations. 258 The matter therefore
must be settled using traditional reasonableness analysis.
At the outset, however, it is useful to recall the broader history
of the colonial period as it relates to the Fourth Amendment.
Specifically, the Fourth Amendment was developed in principal
response to the British authorities' use of the so-called "general
warrant," which allowed officers of the executive to conduct

v.8/12/2015
v.8/12/2015
unfettered searches of personal residences and indiscriminate
seizures of personal papers and property on the basis of mere
suspicion. 289 The sense of the Framers and ratifiers of the Bill of
Rights was that these warrants were so utterly abhorrent that it
was important to constitutionalize, rather than merely to leave to
tort law, the protection of the individual's right to privacy against
such searches and seizures."' At the same time, the Fourth
287. The modern child welfare movement began in earnest only in the late 1800s. The
NewYork Society for the Prevention of Cruelty to Children, modeled after the Society for the
Prevention of Cruelty to Animals, is most often credited with launching the movement.
COLUM. ENCYC. (6th ed. 2005), available athttp://www.bartleby.com!65/cr/cruelty.htm. Of
course, this history suggests that such investigations would have been considered absolutely
unreasonable in the Founding Era, i.e., that because parents were perceived to own their
children and thus to have almost inviolable authority over them, any governmental efforts
to question or limit that authority using inspections would be unlawful. Because I reject the
property-based model of parent-child relations and its systematic disregard of many if not
most of the children's own interests, this Article does not base its reasonableness argument
even partly in this history.
288. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652.53(1995) 4applying the
traditional balancing test because a threshold historical analysis by the Court found that
"there was no clear practice, either approving or disapproving the type of search at issue ti.e.,
drug testing of public school students], at the time the constitutional provision {i.e., the
v.8/12/2015
v.8/12/2015
Fourth Amendment] was enacted")
289. Henry v. United States, 361 U.S. 98, 100 (1959). General warrants permitted the
government 'to search suspected places, or to apprehend suspected persons, without naming
or describing the place or the person in special.' Id. at 101 (quoting THE MARYLAND
DECLARATION OF RIGHTS art. XXIII (177€)). They also permitted the government to 'search
suspected places without evidence of a fact committed.'" Id. at 100 (quoting THE VIRGINIA
DECLARATION OF RIGHTS (1776)).
290. See Vernonkz, 515 U.S. at 669.70 (O'Connor, J., dissenting); LANDYNSKI, supra note
131, at 19.20 <stating that the founders' opposition to the practice of British executive
authority's use of general warrants reflected the sense of the common law, "hallowed by the
centuries," that governmental intrusions on the sanctity of personal space were inherently
wrong).
Amendment's text makes clear that the Framers and ratifiers
understood the need to reserve the government's right to conduct
reasonable investigations. As I have already noted, the consensus
among constitutional historians is that the text presumes the need
for a particularized warrant and probable cause to assure the
reasonableness of a search or seizure. 291 Ultimately though, the
Amendment's principal thrust was to abolish the general warrant
as authority for investigations into suspected individual wrongdoing.
In this regard, the child welfare exception to the Fourth

v.8/12/2015
v.8/12/2015
Amendment is a throwback to the broad authority granted the
British and colonial authorities under general warrants. 292 That is,
the exception operates to give the executive branch the unfettered
right to enter and to search a person's home and to seize and
examine children on mere suspicion of maltreatment. Given how
strongly .they felt about the unfairness inherent in the general
warrant's terms, the Framers and ratifiers are likely rolling over in
their proverbial graves.
B. Individual Interests
1. Privacy, Dignity, Personal Security, and Mobility
Child welfare investigations that involve CPS and/or police entry
into and search of the family home encroach upon the Fourth
Amendment's most sacred ground, and thus conflict with our most
deeply held expectations of privacy, dignity, personal security, and
mobility. Although it is no longer true—if it ever was—that a
family's home is a castle, it is true that in law and culture, the
personal residence is expected to be the individual's principal
private sanctuary. Indeed, the law allows even the criminal to
retreat into his home carrying with him the knowledge that the
government generally may not enter without a particularized
291. See supra note 131 and accompanying text (discussing this point).
292. For another example of an instance in which the government proceeded under such
v.8/12/2015
v.8/12/2015
broad authority, consider the internment of Japanese Americans during World War II, see
ExparteMitsuye Endo, 323 U.S. 283(1944); Korematsu v. United States, 323 U.S. 214(1944);
Hirabayashi v. United States, 320 U.S. 81(1943); and Yasui v. United States, 320 U.S. 115
(1943).
warrant and probable cause. 293 Thus, what is in the family's
refrigerator, closets, drawers, or even in plain view, is usually
subject to its individual members' most reasonable and highest
expectations of privacy.
A narrow exception exists to the high value implicated by
intrusions into the personal residence, involving particular persons
in preexisting relationships with the state that contemplate
home visits. In such circumstances, the Court has considered the
individual's expectations of privacy to be substantially diminished,
thus opening the door to the possibility that related searches and
seizures could be conducted in the absence of a particularized
warrant and/or probable cause. 294 The only federal appellate court
to have applied the special needs exception to a home visit fits
within this exception.
Wildauer v. Frederick County involved the constitutionality of a
warrantless entry into and search of a woman's home for children
the state believed were located inside. 295 The woman was the
v.8/12/2015
v.8/12/2015
children's foster mother and thus was in a contractual relationship
with the state concerning their custody and care. Without elaborating on its reasons, the court applied the reasonableness test to
resolve this issue. It is logical to assume, however, that the court
was at least partially if not entirely motivated in this approach by
293. See Silverman v. United States, 365 U.S. 505,512(1961); see also supranotes 262-64
and accompanying text (explaining that the personal residence is the paradigmatic personal
space the Fourth Amendment seeks to protect).
294. The Court itself has decided only two suspicion-based cases that fall in this category.
The first was Wyman v. James, in which the Court held that the constitutionality of
warrantless and suspicionless home visits by officials from the Aid to Families with
Dependent Children program would be judged according to their reasonableness (in other
words, the special needs exception implicitly applied to these visits) because the mother had
agreed to allow the officials into her residence in exchange for receiving funds under the
program and thus could not contend that she had a high expectation of privacy as against
these officials. 400 U.S. 309,318-24(1971). The second was Griffin v. Wisconsin, in which the
Court similarly held that the constitutionality of a warrantless and suspicionless home visit
by a probation officer would be judged according to its reasonableness because the individual
subject to investigation had agreed to periodic inspections of his residence as one of the
conditions for probation and thus he could not claim to have a high expectation of privacy as
against that officer. 483 U.S. 868,872-73(1987); see also United States v. Knights, 534 U.S.
112, 118-21(2001) (finding reasonable and thus constitutional a search conducted pursuant
to a probation condition, in part because of the probationer's diminished expectation of

v.8/12/2015
v.8/12/2015
privacy and the officer's reasonable suspicion that he was engaged in criminal activity).
295. 993 F.2d 369, 371.73 (4th Cir. 1993).
the woman's preexisting agreement with the authorities which
contemplated their right to access her home to monitor her
performance. This is not the situation in most child maltreatment
investigatory contexts.
Relatedly, the fact that poor and minority families are significantly overrepresented in the child welfare system may influence
how maltreatment investigations are approached. 296 These groups
may be viewed by state officials and maybe even by some of their
family members as having an inherently diminished expectation
of privacy in this context. There is certainly some historical
support for this notion. For example, notwithstanding at least one
well-known argument to the contrary,"" poor and minority citizens
up to and during the Founding Era could not always expect their
homes to be treated as castles. 298 And it is certainly beyond dispute
that state officials in the late nineteenth and early twentieth
centuries disproportionately targeted poor and minority—including
immigrant and Native American—families for investigation and
intervention, on the grounds that poverty made neglect inevitable
and that many minority parenting practices were inherently
abusive."" Whatever this history's legacy in current state practices,

v.8/12/2015
v.8/12/2015
poor and minority families obviously do not have a reduced
296. See supra note 67 and accompanying text (providing data on the relative
representation of poor and minority families in the child welfare system).
297. William Pitt, the first Earl of Chatham, insisted to the English Parliament that
(t]he poorest man may, in his cottage, bid defiance to all the force of the Crown.
It may be frail; its roof may shake; the wind may blow through it; the storm
may enter; the rain may enter; but the King of England may not enter; all his
force dares not cross the threshold of the ruined tenement.
LEFAvE, supra note 21, § 1.1(a) (citing LAsS0N, supra note 131, at 49).
William Pitts eloquent description of this right has been often quoted. The late
Judge Jerome Frank made the point in more contemporary language: "A man
can still control a small part of his environment, his house; he can retreat
thence from outsiders, secure in the knowledge that they cannot get at him
without disobeying the Constitution. That is still a sizable hunk of
liberty—worth protecting from encroachment. A sane, decent, civilized society
must provide some such oasis, some shelter from public scrutiny, some
insulated enclosure, some enclave, some inviolate place which is a man's
castle."
Silverman v. United States, 365 U.S. 505, 511 n.4 (1961).
298. Cuddihy, supra note 131.
299. See supranote 19 (listing poverty as amongst the reasons historically that children
were taken from their parents).

v.8/12/2015
v.8/12/2015
expectation of privacy in law as compared to otherwise similarly
situated families. 300
Because searches and seizures of children in the family home and
at school involve the person herself, they also represent intrusions
on the child's own privacy, dignity, personal security, and mobility
interests. As I have already noted, the Supreme Court and the
lower courts have recognized this and have consistently found that
children have reasonable expectations regarding their protection!"
Although this view does not appear to be controversial, one could
logically argue that children, especially younger ones, are or ought
to be considered incapable of having such protected expectations,
either because they lack relevant cognitive capacity, or because the
law ought to assume so. Such a legal fiction would be consistent
with how the law generally regards childhood, namely that it is best
to assume a lack of capacity on the part of children so that adults,
including parents and the state, continue to have the ability to
provide them with adequate oversight and protection during their
formative and vulnerable years. 302 Nevertheless, I believe that such
arguments ought to be rejected in favor of both factual and
normative positions supporting continued recognition of children's
individual Fourth Amendment interests.

v.8/12/2015
v.8/12/2015
The liberal idea that underlies the requirement of a reasonable
expectation of privacy is both objective and normative. Individuals
need and thus have a right to a certain personal space or zone of
privacy from which the government is generally barred. 303 This
right is not grounded in the actual knowledge or expectations of
individual members of the society; indeed, to the extent that some
300. But see William J. Stunts, Race, Class, and Drugs, 98 C0LTJM. L. REV. 1795, 1824
(1998) (positing as a fact—and not as his own normative position—that "people with money
enjoy more privacy than people without. They live in freestanding houses and own more
land; they conduct less of their lives in public places like neighborhood streets. Fourth
Amendment law accordingly gives them greater protection.").
301. See supra notes 173-74 and accompanying text (discussing this case law).
302. A version of this argument was implied in a Ninth Circuit decision in which the court
opined that '[t]here is not much reason to be concerned with the privacy and dignity of the
three year old whose buttocks were exposed [during a CPS-ordered strip-search actually
conducted by the child's mother], because with children of that age ordinarily among the
parental tasks is teaching them when they are not supposed to expose their buttocks."
Calabretta v. Floyd, 189 F.3d 808, 820 (9th Cir. 1999).
303. This zone of privacy includes the area around one's body, one's home, and one's most
personal things.
people lack an appreciation for this zone of privacy, others who

v.8/12/2015
v.8/12/2015
act as surrogates identify it for them. Aside from children, a whole
range of adults are subject to and benefit from this approach,
from those who in fact are mentally incapacitated and have no
subjective expectations of privacy, to those who have an exaggerated subjective sense of where the boundaries of privacy should lie.
Because of this, individuals' cognitive capacities and emotional
sensibilities ultimately are irrelevant in the analysis. This approach
should also govern how children are viewed under the Fourth
Amendment. Indeed, the same strand of American political
philosophy and jurisprudence that spawned the Fourth Amendment
and its reasonable expectation of privacy test also recognizes that
children need the government to leave them alone with their
families in both physical and decisional respects unless good
evidence exists that their families are relevantly dysfunctional. 304
Even if cognitive capacity were relevant, however, the scientific
evidence is strong that children, even babies, have the ability to
develop—and indeed most healthy children do develop—a strong
sense of bodily security, intimacy, and privacy. Thus, we know from
extensive work in the fields of developmental biology and child
psychology that children from a very young age develop a sense of
attachment to their primary caregiver(s) and conversely a sense of
trepidation if not fear of those whom they do not know. These
senses are inherently physical in their manifestations, as all it

v.8/12/2015
v.8/12/2015
takes to make many babies—particularly those who are not
accustomed to being handled by strangers—whimper or cry is to
remove them from the arms and places with which they are
familiar. And even as they come to understand that authorities
304. The classic liberal vision of the role of the family as the fundamental unit of society,
and its responsibility to inculcate the children in liberal democratic values, was largely
responsible for the construction of our present day notions of family privacy and parental
autonomy. In turn, these notions rest on the assumptions that parents are the children's first
and best caretakers, that they will act in the best interests of their children, that their
children need them particularly to succeed, and therefore that the state may only intrude on
their authority in cases where they are not performing their expected role. That children
have privacy interests recognized under the Fourteenth Amendment, and privacy rights
recognized under the Fourth Amendment, is consistent with this philosophical foundation,
as it serves to protect their ties to their parents and family as against the state's efforts to
separate them. As I have already noted, see supra note 9,1 will elaborate on this theme in
a forthcoming article entitled Through the Prism of the Fourth Amendment: A New Look at
Family Privacy (work in progress, on file with author).
other than their parents exist, and thus to mediate their physical
responses to strangers, older children—beginning as early as two
or three—develop an emotional and intellectual appreciation for
personal space and zones of privacy that almost by definition

v.8/12/2015
v.8/12/2015
recognizes government officials as the quintessential strangers. The
fact that these officials are legally tasked with their care and
protection under the twin police power andparenspatriaedoctrines
and the related maltreatment laws is generally a foreign notion
even to older children. These children have been taught (including
by their parents, pediatricians, and even the government itself in
the public schools context) to elevate privacy as a value, and to
allow intimate contact only within the family or close personal
associates. Without a doubt, children of most ages know when they
are "not free to leave," and when strangers have otherwise invaded
their personal space.
The Court's separate view that children have a reduced
expectation of privacy in school with respect to programs
designed to ensure order and discipline and to protect the public
against communicable disease, has some potential relevance for
child maltreatment investigations. The issue here is whether the
cases that reflect this view can be interpreted more broadly to allow
the government extensive discretion to conduct whatever searches
and seizures of children in the schools they believe are necessary.
Or more narrowly, whether they can be interpreted to permit
unfettered searches and seizures intended to determine whether a
child has been the victim of abuse or neglect. It could be argued in

v.8/12/2015
v.8/12/2015
favor of the broadest extension that children themselves likely do
not distinguish among the states' various reasons for searching and
seizing them in the public schools, and so they may in fact have
reduced expectations of privacy in that setting. For example, as
Justice Scalia opined in Vernonia School District 47J v. Acton,
students at least in many cases are accustomed to seeing the school
nurse for routine physicals and vaccinations, to stripping down for
gym class or for sports team practices and games, and to having
their things searched or at least accessible for search by school
authorities to preserve the schools' ability to maintain order and
discipline.'" And it could be argued in favor of the narrower
305. 515 U.S. 646,653-59 (1995).
extension that searches and seizures conducted to determine abuse
and neglect are not significantly different than the same intrusions
conducted in connection with a compelled vaccination, routine
physical, or even targeted treatment for illness or injury. In both
cases, the intrusions, which raise similar privacy implications, are
designed at least in part to protect the child's health and welfare,
and involve no suspicion of wrongdoing on the child's part.
These arguments ought also to fail. As the data and cases
described in Part I reflect, child welfare investigations differ in kind

v.8/12/2015
v.8/12/2015
and not just degree from routine vaccination programs, annual
checkups, and drug testing programs because of their potential to
cause real harm. Indeed, the harm occurs on a regular basis. The
damage is primarily emotional and psychological, but it is also
sometimes physical. The state's reason for wanting to inquire into
my personal affairs, or to look at my body, makes a big difference
to me as I consider whether or not I am comfortable with or
potentially traumatized by its examination; there is no reason to
believe that it is not or should not be the same for a child.`
Indeed, the fact that a child who is the subject of a maltreatment
investigation is singled out for different treatment—treatment that
inevitably implies the state believes she has done something wrong
or that her parents are bad—adds considerably to the distress she
is likely to feel in this process. 307 It is patently wrong for states to
306. A direct adult analogy would be the partial strip search of a woman at an airport as
part of the random screening of passengers, or a partial strip search of a woman as part of
an investigation initiated by the state and not the woman, which is designed to discover
whether her partner abuses her. Although neither suggests that the woman herself has done
anything wrong, the latter is fraught with emotional complexities that are absent in the
former. Importantly, this is true whether or not the woman in the latter case has been
abused by her partner.
307, See Sabrina Luza & Enrique Ortiz, The Dynamic of Shame in Interactions Between
v.8/12/2015
v.8/12/2015
Child Protective Services and Families Falsely Accused of Child Abuse, 3 INST. FOR PSYCH.
THERAPIES (1991), available at http:I/www.ipt-forensics.com6ournallvolume3lj3_2_5.htm
(noting that after being falsely accused of child abuse, family members reported feelings of
powerlessness, self-doubt, depression, and isolation, similar to emotions demonstrated by
adults and children who feel shame; authors speculate that CPS and accused families act
in a shaming parent-shamed child relationship); cf. ANTHONY J. URQUIZA& CYNTHIA WINN,
U.S. Des"v or HEALTH & HUMAN SERVE., TREATMENT FOR ABUSED AND NEGLECTED
CHILDREN: INFANCY TO AGE 18, at 71-80 (1994), available at http:Ilnccanch.acLhhs.govlpubsl
usermanualsltreatmen/treatmen.pdf (discussing treatment issues for abused and neglected
children, including intrapersonal issues such as fear, trauma, anxiety, guilt, and
stigmatization).
assume that a child will be equally comfortable with a full or partial
strip search conducted during an annual checkup and a full or
partial strip search conducted during a child abuse investigation.
The same distinction applies where the state is conducting a
probing personal interview.
2. The Intrusiveness of the Investigations
Child maltreatment investigations are highly intrusive in two
constitutionally relevant respects. First, as described in the
Introduction and Part I, states' "take no chances" approach to
defining and screening-in cases for investigation results in a

v.8/12/2015
v.8/12/2015
disturbingly overbroad scheme that wrongfully captures hundreds
of thousands of children within its auspices each year. Many of
these children are victims of either intentionally fraudulent or
simply erroneous reports. 808 Second, the highly discretionary
approach to conducting individual investigations often results in
searches and seizures that are deeply intrusive in both symbolic
and actual terms. Indeed, it is accurate to say that the authorities'
very intent is to be highly intrusive, because only searches this
thorough are sufficient to assure that all maltreatment can be
identified. 309
Home visits epitomize deep intrusion in both symbolic and actual
respects. During these "visits," state officials do not merely cross
the threshold into the realm of what is deemed to be ultimately
private as a political and philosophical matter. They also quite
literally storm the castle, opening closed bedroom doors to find, talk
to, examine, and remove the children; opening and looking through
refrigerators and cupboards to see if the children have sufficient
food to eat; opening and searching closets and drawers to check if
the children have enough clothing and that no inappropriate
disciplinary methods are being used in the family. 310 They do this
both during the day and at night.
308. See supra notes 8, 68-74 and accompanying text (breaking down these statistics).
v.8/12/2015
v.8/12/2015
309. See supra notes 44.65 and accompanying text (describing the requirement of
"thorough investigations" and states' reliance on the right of their officials to conduct the
investigations unfettered by procedures designed to safeguard the privacy of the family).
310. See supra notes 50.56 and accompanying textexamining the scope of the authorities'
thorough investigations of the child's home environment).
Similarly high degrees of symbolic and real intrusiveness will
often be involved as state officials search and seize children inside
or outside of the family home, including for sequestered interviews
with the child about private family matters, and for physical
examinations of the child's body. John Doe, Jr.'s story is exemplary
of the former, as it involved unfamiliar CPS and law enforcement
officials physically removing fourth-grade John Jr. from his
classroom in the middle of the day without his parents' knowledge,
and taking him to an unoccupied room where these officials
interviewed him alone about private family matters in connection
with an ultimately unfounded allegation of excessive discipline by
the school's principal. 311 The stories of Jackie Roe 312 and Jessie and
Lauren Wallis"' are exemplary of the latter, as they involved CPS,
medical, and law enforcement officers conducting physical examinations of young children, including physical examinations of their
genital and anal areas, in connection with ultimately unfounded
suspicions of sexual abuse.

v.8/12/2015
v.8/12/2015
Of course, searches and seizures of the person may vary in the
degree of their intrusiveness. In this regard, children are no
different than adults. Thus, brief interviews of children conducted
outside the home and in circumstances where they are clearly not
uncomfortable are likely to be judged less intrusive than the
sequestrations, removals, interviews, and physical examinations
that I have just described. Nevertheless, the Court has been clear
that an investigation's intrusiveness is enhanced significantly when
an intent exists to turn over its fruits to a third party, especially to
law enforcement. 314 Thus, although a brief detention and interview
311. See supra notes 88.115 and accompanying text (describing the case Doe V. Heck, 327
F.Sd 492 (2003)).
312. See supra notes 1.2 and accompanying text (describing the case Roe v. Tex.
Department of Protective and Regulatory Services, 299 F.3d 395 (5th Cir. 2002)).
313: See supra notes 116.27 and accompanying text (describing the case Wallis o. Spencer,
202 F.3d 1126 (9th Cir. 2000)).
314. Compare Ferguson v. City of Charleston, 532 U.S. 67,78-79(2001) (finding that the
state hospital urine screens designed to obtain evidence of illegal substance abuse by
pregnant women were particularly intrusive in part because the evidence was intended for
use both by hospital workers and law enforcement officials), with Bd. of Educ. v. Earls, 536
U.S. 822, 833 (2002) (finding that public school urine tests are not intrusive in part because
"results are not turned over to any law enforcement authority. Nor do the test results here
v.8/12/2015
v.8/12/2015
lead to the imposition of discipline or have any academic consequences."), andVernonia Sch.
Dist. 47Jv. Acton, 515 U.S. 646,658(1995) (finding that public school urine screens designed
520 WILLIAM AND MARY LAW REVIEW (Vol. 47:413
of a child ordinarily may involve limited intrusion, the intrusion
appreciates significantly when the police either conduct or assist
with the investigation, or when they otherwise are associated with
it from the beginning. And certainly, the intrusiveness inherently
involved in a residential search, a long detention, or body search of
a child, is exacerbated in these circumstances.
Finally, regardless of its beneficent motives, when the state
intrudes in the ways that I have just described, it may also cause
real emotional and psychological harm. These consequences must
also be weighed in the ultimate calculus of reasonableness.
Probably because the subjects of unsubstantiated reports are
unknown to researchers, there is a dearth of empirical evidence to
support this proposition. The few related studies support my
assumption that as a result of the investigation, family members,
including children, suffer from a range of responses including
trauma, anxiety, fear, shame, guilt, stigmatization, powerlessness,
self-doubt, depression, and isolation. 815 And in the ultimate irony,
to obtain evidence of illegal substance abuse by student athletes were not intrusive in part
because the evidence was intended exclusively for use by school officials and would not be
v.8/12/2015
v.8/12/2015
turned over to law enforcement), and New Jersey v. T.L.O., 469 U.S. 325, 341 n.7 (1985)
("Fhis case does not present the question of the appropriate standard for assessing the
legality of searches conducted by school officials in conjunction with or at the behest of law
enforcement agencies, and we express no opinion on that question.").
315. See supra note 307 (citing studies to this effect). It should be noncontroversial
otherwise that interventions designed from the outset to help children can also cause them
harm. See, e.g., Craig Elliott, Psycho logical Iterueirt ions for Children with Cancer Undergoing
Invasive Medical Procedures: A Meta-Analysis of the Research, in 59 (9-B) DISSERTATION
ABSTRACTS INTERNATIONAL: SECTION B: THE SCIENCES & ENGINEERING 5110 (1999)
(describing children's frequent and unabated stress responses to routine cancer therapies,
and ways clinicians can mediate such responses); Gail S. Goodman et al., Testifying in
Criminal Court. Emotional Effects on Child Sexual Assault Victims, in 57(5) MONOGRAPHS
OF THE SOCIETY FOR RESEARCH IN CHILD DEVELOPMENT: 1-142 to -161 (1992) (describing the
short- and long-term stress reactions of child victims of sexual abuse who are required to
testify in court against their alleged abusers); Myron A. Hofer, On the Nature and
Consequences of Early Loss, 58(6) PSYCHOSOMATIC Man. 570-581 (1996) (describing results
of studies on maternal deprivation which show "a number of discrete sensorimotor, thermal,
and nutrient-based events that have unexpected long-term regulatory effects on specific
components of infant physiology and behavior"); C.M. Kuhn & S.M. Schanberg, Responses
to Maternal Separation: Mechanisms and Mediators, 1€(3-4) IN1'L J. OF DEVELOPMENTAL
NEUROSCIENCE 261-70(1998) ("Consequences of disrupting mother-infant interactions range
from marked suppression of certain neuroendocrine and physiological systems after short
v.8/12/2015
v.8/12/2015
periods of maternal deprivation to retardation of growth and behavioral development after
chronic periods."). The difference between these contexts and that which is at issue in this
Article is that the children here do not need these interventions, and so the harms that are
children who are subject to genital examinations appear to
experience the investigatory examinations as sexual abuse. 3 t6
Nevertheless, it is anecdotal evidence and human intuition that
today provide the best proof that the state can cause serious harm
to the children it seeks to rescue. In addition to the facts and cases
described in Part I, what happened to three-year-old Lacey Doe
when a well-intentioned CPS official made a "reasonable mistake"
in investigating allegations of paternal maltreatment exemplifies
this proof:
The agency screener characterized this supposedly neglected
child, a few hours after being whisked away, as "friendly and
cooperative.... She appeared to enjoy watching cartoons and
playing with toys, exhibited curiosity about her surrounding.
She displayed no anxiety to be among strangers and ate a
sandwich, chips and cookies hungrily." ... After being bounced
around in the agency and foster-parent bureaucracy for over a
year, Lacey was quite a different little girl. She was "diagnosed
with Post Traumatic Stress Disorder, hearing voices, and

v.8/12/2015
v.8/12/2015
suicidal ideation." She was put on anti-psychotic medication.
She had taken to smearing feces and to other abnormal and
highly disruptive behavior. Though Lacey had somehow held
her personality together through her mother's death, her
father's lack of financial success, and the move back to California, what the county did to her to "protect" her apparently
destroyed her. Something in this experience, perhaps being
ripped away from her father for whom she consistently expressed love during the whole miserable period, perhaps having
strangers strip her and search her heretofore private parts,
perhaps being put with caretakers instead of her father,
amounted to a trauma that was too much for her. 317
incurred as a result are less easily justified.
316. John Money & Margaret Lamacz, Genital Examinations and Exposure Experienced
asNosocomial SexualAbuse in Childhood, 175J. NERVOUS &MErer.L DIsEASE, 713-21(1987)
(peer-reviewed article setting out this finding and noting the implications of sexual abuse by
care providers).
317. Doe v. Lebbos, 348 F.3d 820,834(9th Cir. 2003) (Kleinfeld, J., dissenting) (citations
omitted).
C. The Government's Needs
The individual interests just described are to be balanced against
the government's need to forego compliance with the presumptive
requirements of the Warrant Clause. 318 In this context, the burden

v.8/12/2015
v.8/12/2015
is on the government to prove that such compliance would be
impracticable and would "frustrate the [legitimate] governmental
purpose behind the search.""' And while some Justices appear to
require more, the government must at least demonstrate that the
means it has chosen to effect its purpose are somewhat effective. 320
In the child welfare context, the government's overarching
objective is protecting children from harm. The immediate objective
of the investigation is to determine whether evidence exists to
substantiate an allegation of abuse or neglect. In defense of
conducting the investigation outside the Fourth Amendment's
requirements, the government can argue that forced compliance
with the Warrant Clause would substantially undermine its
mission to protect child welfare by making the business of conducting investigations more difficult. In addition to the insufficiency of
the consent and exigent circumstances exceptions which have
already been addres sed, three arguments support this position. 32 t Formatted: Font: (Default) Times New Roman, Font color:
Red
1. The Practicability of the Warrant Requireme nt Formatted: Font: (Default) Times New Roman, Font color:
Red
The government can argue that the warrant process itself
—taking the time to visit a jud ge and for the judge to consider the Formatted: Font: (Default) Times New Roman, Font color:
Red
application—is impracticable and frustrates the governmental
purpose behind the search. Specifically, state officials claim they Formatted: Font: (Default) Times New Roman, Font color:
Red
need to act quickly to investigate reports of abuse or neglect to
ensure that maltreated children are saved from their unfortunate

v.8/12/2015
v.8/12/2015
circumstances before it is too late; the implication is that the
cumbersome warrant process would impede the states' ability to
318. See Vernonia, 515 U.S. at 652-64 (applying a balancing test to determine the
reasonableness of a government action infringing on an individual's Fourth Amendment
interests).
319. Camara v. Mun. Court, 387 U.S. 523, 533 (1967).
320. Cf. Vernonia, 515 U.S. at 683 ("We have repeatedly refused to declare that only the
'least intrusive' search practicable can be reasonable under the Fourth Amendment.").
321. See supra notes 154.59 and accompanying text (explaining why these traditional
exceptions are not the child welfare exception states purport to need in this context).
save at least some of these children. 822 The government also can
argue that the requirement of a "particularized" warrant substantially diminishes the flexibility that state officials need during an
investigation to leave no stone unturned in their search for evidence
of maltreatment. If, for example, the report alleges that a child has
been excessively disciplined with a whip, and the court issues a
particularized warrant that allows the state to investigate only
whether the child has injuries consistent with this or some
substantially similar disciplinary method and whether a whip-like
apparatus is located in the home, the government's ability to open
the refrigerator and cupboards to determine whether the child is
also the victim of nutritional or other neglect will be hamstrung by

v.8/12/2015
v.8/12/2015
the restrictive terms of that warrant. Finally, the government may
argue that resort to a neutral magistrate to evaluate the need for
and scope of a particular investigation is unnecessary because CPS
officials in the field are best suited by their specialized training and
experience to weigh the relevant individuals' privacy rights against
the states' special need quickly to find evidence.
The argument that the states need to circumven t the warrant Formatted: Font: (Default) Times New Roman, Font color:
Red
process to assure that children in emergency need of assistance are Formatted: Font: (Default) Times New Roman, Font color:
Red
reached without undue delay is without merit. The exigent
circumstance s exception precisely covers this situation. The fact Formatted: Font: (Default) Times New Roman, Font color:
Red
that it does not permit warrantles s interventions based solely Formatted: Font: (Default) Times New Roman, Font color:
Red
upon a mere suspicion that a child is at risk of serious harm is
unhelpful to the states' position; as Jessie and Lauren Wallis's story
illustrates, there is no reasonable basis in such cases to permit
officials to perpetrate the kind of violence on the family that the
drama of an emergency necessarily creates. 328 As the first judge who
reviewed their case intimated, an official midnight entry into the
family home and the subsequent removal of the two young children
to an institutional setting on the basis of a psychotic woman's
rantings about satanic sacrifices ought not to be permitted, pure
322. For example, this argument was accepted by the trial court in Darryl H. v. Coler, 801
F.2d 893 (7th Cir. 1986) (reporting in part on the decision below). There, the federal district
v.8/12/2015
v.8/12/2015
judge wrote, "the more serious problem with the [warrant] procedure is that a delayed
examination of a child may simply come too late to protect a child in imminent danger of
grave bodily harm or even death. Unfortunately, there is no quicker way of knowing whether
a child is at grave risk than by an actual examination of the child." Id. at 899.
323. See supra notes 116.27 and accompanying text (describing the facts of Wallis v.
Spencer, 202 F.3d 1126 (9th Cu. 2000)).
and simple. 324 Additionally, the statutes, protocols, and practices of
many if not most states contain embedded delays for investigating
all but the most obvious emergency reports. In these circumstances,
unnecessary emergencies are actually created by the states
themselves. 325
Morever, although the states may prefer to have unfettered
discretion to investigate families and their homes in pursuit of
their comprehensive approach to evidence gathering, in general
this approach is unnecessary to assure that the child is safe from
the specific harm alleged in the report. Thus, for example, if the
allegation is that a child is inadequately clothed and cleaned, it may
be useful for other reasons for the state also to investigate whether
the home has smoke detectors, whether the family is also experiencing domestic violence, and generally whether the child's environment is suitable. 326 However, these extra searches
are unrelated
except perhaps in a most tangential way to the state of the child's
v.8/12/2015
v.8/12/2015
wardrobe and hygiene. Nor is there any emergency that compels
these searches. Because of this, and because the law—in contrast
with other disciplines perhaps—continues to privilege privacy,
dignity, and personal security even after a violation is suspected, it
does not permit the state to take advantage of the fact that it has
gotten into the house to go on a fishing expedition. Such expeditions
are anathema to the values at the core of the Fourth Amendment
which exists precisely to fetter the discretion of government
officials. 327
Finally, there is little merit to the argument that the neutral
magistrate is unnecessary in this context, or that state officials are
better suited in general to evaluate the reasonableness of a
324. Wallis, 202 F.3dat 1131.
325. The facts in Doe v. Heck, 327 F.3d 492, 499-508 (10th Cir. 2003), also described in
Part I, are particularly illustrative of this last point. See supra notes 88-115 and
accompanying text. The authorities in that case waited two months to initiate an
investigation of a woman's allegations that the private school her child attended had
excessively disciplined her and perhaps other children. Heck, 327 F.3d at 500. Once the state
finally sought to enter the school and interview John Doe, the principal target of the
investigation, it attempted to proceed based on the emergency exception to the warrant
requirement, without any evidence that the circumstances warranted this designation.
326. See supra notes 56.56 and accompanying text (describing these extra searches North
v.8/12/2015
v.8/12/2015
Carolina requires its officials to pursue as they investigate specific unrelated maltreatment
allegations).
327. See supra notes 130-38 and accompanying text (describing this foundation).
particular intrusion on the children's or the family's privacy.
Indeed, as two previous commentators have already emphasized,
the preservation of the neutral magistrate's role is tremendously
important. 328 Too many officials on the ground are undertrained in
relevant respects. Moreover, experience shows that children and
families cannot count on officials to exercise their discretion in
objectively reasonable ways. In particular, CPS and the police
often assume guilt at the outset, and thus approach the evidencegathering process with an eye toward proving that assumption.
The case that introduced this Article is particularly noteworthy
in this respect. It involved six-year-old Jackie Roe's apparently
precocious awareness of things sexual or suggestive, and a challenge to the discretion exercised by a social worker who entered the
family's home without a warrant to investigate her suspicion that
the child had been the victim of sexu
al abuse. In the course of that Formatted: Font: (Default) Times New Roman, Font color:
Red
visit, the social worker rejected the mother's efforts to curb the
investigation or to call a lawyer, and she took photographs of the
girl's labia in an open and closed position which she later turned
over to her supervisor. 329 When asked about the propriety of this
v.8/12/2015
v.8/12/2015
aspect of the official's conduct, her supervisor "testified that she
would not have taken the pictures but opined that the decision to
do so lay within [the official's] discretion."'" The program director
also "described the visual examination and pictures as appropriate
because 'caseworkers are trained to find and document all available
evidence during their investigations.""" It is abundantly clear that
no one working for CPS in this case felt confined by any external
boundaries of reasonableness. It is also abundantly clear that no
328. Beeman, supranote 23, at 1037-39, 1046-47, 1051 (discussing the role of the warrant
requirement in restraining official discretion to search and to seize and arguing that
"[a]dequately protecting the family's privacy interest requires the imposition of a neutral and Formatted: Font: (Default) Times New Roman, Italic,
Underline, Font color: Red
detached decision maker" to assure that someone other than the investigation official
"decides if the criteria for investigating are mee' and that "requiring warrants for
investigatory home searches would afford families some protection against unjustified and
often officious intrusion"); Hardin, supra note 23, at 539.41 (suggesting that a warrant is Formatted: Font: (Default) Times New Roman, Underline,
Font color: Red
necessary to "provide a meaningful protection against arbitrary or oppressive state action," Formatted: Font: (Default) Times New Roman, Italic,
Underline, Font color: Red
to assure that "the standard of evidence has been satisfied in the individual case," and "[to]
discipline the child protective agency to carefully consider and document its decisions to Formatted: Font: (Default) Times New Roman, Font color:
Red
make forced entries and searches").
329. Roe v. Tex. Dept of Protective & Regulatory Servs., 299 F.3d 395,399(5th Cir. 2002).
330. Id.
331. Id.
v.8/12/2015
v.8/12/2015
one within that agency sought to balance their interest in conducting the investigation against either the child or the mother's
interest in privacy and bodily security in the family home; or at
least that if they did—for example, if the social worker attempted
to value the mother's hesitation and concern about the nature and
scope of her search—their assessment of the value of the family's
privacy interest was dismissive at best. It is unimaginable that a
judge objectively balancing the same competing interests would
have issued a warrant that allowed an untrained state employee
such unbridled discretion literally to pry into this young child's
vagina and to photograph its particulars based on a report about a
sexy dance in the locker room at day camp. The warrant process is
essential to establishing the boundaries of reasonableness.
Finally, the need for a neutral arbiter to be part of this process is
not an argument that state officials do not act in good faith. Rather,
it is recognition that child maltreatment law formally privileges the
exhaustive investigation over privacy. Thus, although officials are
cautioned or encouraged to respect family privacy during their
investigations, 332 it is irrational to assume that they can in fact
reconcile these conflicting messages. 333 Indeed, my argument is that
they are legally bound not to give due weight to privacy as they do
their work. Injecting a neutral arbiter into the equation enhances

v.8/12/2015
v.8/12/2015
the likelihood if not assures that these two competing values will be
more properly balanced.
2. The Practicability of the Probable Cause Requirement
The government may also argue that it needs to circumvent the
probable cause requirement because the allegations in reports are
often insufficient to meet this standard. Indeed, to continue to
conduct thorough investigations of all screened-in reports, the
government really must presume its ability to act on the lesser
standard of mere suspicion. Without this "pass," it will miss out on
the opportunity to safeguard the health and welfare and even the
lives of some at-risk children. 334
332. See supra note 61 and accompany text (describing this policy objective).
333. See supra notes 62-65 and accompanying text (discussing this point).
334. See, e.g., E.Z. v. Coler, 603 F. Supp. 1546, 1558 (ND. 111. 1985) (suggesting that
investigators would have trouble meeting the probable cause requirement and that this
This is all true. The probable cause and reasonable suspicion
requirements would preclude pervasive home visits and examinations of children when officials merely suspect that a child is at
risk. And the probable cause requirement would bar such investigations when officials cannot prove to a neutral judge or magistrate
that a child likely has been injured or at risk. Either way, the
authorities will miss some opportunities to help children in need.
Therefore, the question is not whether the states need to avoid

v.8/12/2015
v.8/12/2015
these evidentiary burdens to pursue the prevailing approach to
maltreatment reports, but rather whether this policy itself is
necessary. A meaningful response to this question requires careful
evaluation and balancing of both its benefits and risks.
These benefits and risks are clear: On the one hand, the policy
allows states potentially to save some children from private violence
who would not be saved if stronger evidentiary burdens were placed
on their officials' ability to investigate allegations that amount to no
more than mere suspicion, and if these officials could not otherwise
develop the required evidence. The majority of child fatalities that
result from parental maltreatment involve children who were
previously unknown to the government. 335 However, a few of these
children each year are known to the authorities, who are not able
to save them because the relevant reports are either not investigated or cannot be substantiated. 336 Thus, the concern in their
regard is a real one. On the other hand, the prevailing approach to
the child maltreatment problem results in the commission of
millions of acts of public violence each year. As illustrated by the
stories told throughout this Article, state officials cause real harm
in their quest to protect children, including fear, humiliation,
shame, and emotional devastation, not to mention the loss of the
requirement would therefore jeopardize the welfare of at-risk children). It is not known how
many children at risk of serious harm would be jeopardized by a stricter evidentiary

v.8/12/2015
v.8/12/2015
standard. As I have already explained, no definitive statistical evidence exists that breaks
down the cases that are investigated but ultimately unsubstantiated. See supra note 8
(discussing the lack of such statistical evidence). Thus, although there is good reason to
believe the authorities who, because of their experience, say that stricter standards would
jeopardize some number of children, my evaluation must proceed on the basis of only this
generalization.
335. See supra note 87 and accompanying text (noting this point).
336. See supra notes 81.83 and accompanying text (describing the facts of State u.
Wilkerson, 247 S.E.2d 905 (N.C. 1978), in which a father killed his two-year-old son by
throwing him against the side of the family's trailer).
children's and sometimes also their families' Fourth Amendment
rights and the fundamental interests these implicate. Notably,
hundreds of thousands of these acts of official violence are without
any compensating benefit to the investigated children, either
because the reports that trigger them are intentionally fraudulent, Formatted: Font: (Default) Times New Roman, Italic, Font
color: Red
or because they are simply erroneous. The question begged by this
juxtaposition is whether the states are justified in committing these
many acts of public violence so that they can save some children Formatted: Font: (Default) Times New Roman, Font color:
Red
from acts of private violence that otherwise would go undiscovered.
Recognizing that family privacy is at issue in this context, two
other commentators focusing on home visits have suggested that

v.8/12/2015
v.8/12/2015
officials should be required to prove to a warrant officer in advance Formatted: Font: (Default) Times New Roman, Italic, Font
color: Red
that conducting the contemplated investigation would be reasonable. Specifically, Michael Beeman has argued that officials ought
to be permitted to investigate maltreatment reports if they can
show that the intrusion is reasonable in the circumstances, 337 and
Mark Hardin has argued that the investigation ought to proceed
if a reasonable suspicion of maltreatment exists. 338 In their view, Formatted: Font: (Default) Times New Roman, Font color:
Red
intermediate standards like these—which fall between mere or
no suspicion and probable cause—best balance families' and
particularly parents' interest in privacy against the states' interest
in reducing the number of at-risk children who would be the victims
of the stricter probable cause standard. 339
As I will elaborate in my "final accounting" below, I disagree
with the prevailing approach of proceeding on the basis of mere
suspicion, and with Beeman and Hardin's compromise, because
neither reflects sufficient care and respect for the interests of the
total population of investigated children. Rather, each focuses on
337. Beeman, supra note 23, at 1064-65 (urging that, despite its inapplicability on the
facts, the New Jersey v. T.L.O., 469 U.S. 325 (1986), standard of reasonableness in the
circumstances best balances parents rights and governmental needs.)
338. Hardin, supra note 23, at 530.32 (this "relaxed evidentiary standard" is necessary
because of "severe and long-term potential consequences of child maltreatment" and because
child abuse can be difficult to detect especially where preschool-aged children are involved.)
v.8/12/2015
v.8/12/2015
Whether these two standards, "reasonable suspicion" and "reasonableness in the
circumstances," really are different in practice is questionable. Indeed, the T.L.O. standard
upon which Beeman premises his distinction is generally considered to represent reasonable
suspicion. See DAVIS ET AL., supranote 89, at 353 (noting that "[t]he Court in T.L.O. adopted
a reasonable suspicion standard"). Consequently, I discuss Hardin's and Beeman's proposals
together.
339. See supra notes 23, 162 (describing Hardin's and Beeman's positions).
the tension between the states' interests and parental privacy. In
doing so, each ignores that it is the children who primarily pay the
price for the states' investigatory policies. While it may be difficult
to think of the equation this way, I believe that it is dishonest to
ignore that children like Jessie and Lauren Wallis—who are safe
and healthy but nevertheless targeted for investigation—are not
interested in sacrificing their welfare or their rights to preserve the
states' ability to protect other children who may be at risk even of
death. Because we should do all that we can to respect their
interests, but also because the states could protect at-risk children
in other ways, their officials should be required to show probable
cause before they conduct maltreatment investigations!"
3. The Administrative Burden Involved in Fulfilling the
Requirements of the Warrant Clause

v.8/12/2015
v.8/12/2015
The government's third and final set of arguments centers on the
overall administrative burden that the particularized warrant and
probable cause requirements would impose on the states' child
welfare systems. 341 As they exist today in many jurisdictions, the
systems fundamentally rely on the ability to circumvent the
Warrant Clause's strictures. Consequently, states could argue that
imposing particularized warrant and probable cause requirements
would be cost prohibitive and emotionally debilitating to the
relevant state officials and agencies, many of whom are already
overburdened, underpaid, and morally depleted. States also could
argue that imposing the requirements of the Warrant Clause on
state officials would increase the workload of family court judges
around the country, many of whom are also overburdened like their
CPS brethren.
340. See supra notes 11-16 and accompanying text (describing the combination of
alternative strategies that could allow the states to do an even better job protecting
maltreated children, and at the same time to minimize the harm investigations cause to
children and families; acknowledging that these strategies would not be without cost, but
arguing that such costs would be justifiable in ways that forcing the children to suffer the
impacts of the prevailing approach is not).
341. Atwater v. City of Lago Vista, 532 U.S. 318, 347-51 (2001) (focusing on the
administrative burden involved in the state altering the apparently time-honored

v.8/12/2015
v.8/12/2015
presumption that law enforcement officers can conduct a warrantless search and seizure if
they reasonably believe they are witnesses to the commission of a crime).
Imposing the Warrant Clause's requirements would add pressure
to an already taxed system. However, whether the additional
pressure would be particularly difficult to absorb in the long run is
unclear. Many if not most investigations would continue to proceed
with consent or on the basis of exigent circumstances. Nevertheless,
the new requirements would likely reduce substantially the total
number of investigations conducted. And those investigations that
were conducted would be significantly tailored and thus more
easily administered. In the short run, of course, imposing these
requirements would require the development of new protocols and
procedures and additional staff training. And alternative investigatory strategies would have to be developed when access to the
home and child initially is denied. But as with the long-term costs,
there is a dearth of evidence suggesting that these additional
burdens would be overwhelming or insufficiently offset by the
related reduction in work that would result from the imposition of
the Warrant Clause's traditional strictures.
In any event, notwithstanding the merits of this argument about
costs, the system ought to be reformed because it currently is
ineffective in important ways. That is, we can assume that substantial resources are being expended today in pursuit of the prevailing
v.8/12/2015
v.8/12/2015
approach toward solving the maltreatment problem. It is also
apparent that a significant percentage of these resources are
wasted in the sense that they are expended on reports about
children and families who do not need help or who the system
ultimately does not help. Alternative strategies that could result in
both a reduction of the existing administrative burden and in an
amelioration of the maltreatment problem are not pursued with
equal vigor. More precise and comprehensive reporting requirements and more refined conceptions of maltreatment, for example,
would go a long way toward the development of a more effective
program by reducing the number of cases investigated and the
expenditure of resources to conduct alternative investigations. I Formatted: Font: (Default) Times New Roman, Italic, Font
color: Red
acknowledged in the Introduction that such reforms would be
neither cheap nor easy to implement. 342 And yet if there was ever a
342. Michael Wald first tackled the issue of reforming the states' broad definitions of
abuse, neglect, and maltreatment, and the associated costa in his seminal article, Stair Formatted: Font: (Default) Times New Roman, Font color:
Red
Intervention on Behalf of "Neglected" Children: A Search for Realistic Standards. See Wald,
supranote 22, at 987. His work resulted in important refinements, both at the statutory level
poster child for such a difficult cause, it is Kessler Wilkerson, the
two-year-old baby killed by his father after repeated beatings
witnessed by others who did not know abuse when they saw it, and
who never bothered to report their observations in any event. The

v.8/12/2015
v.8/12/2015
Constitution does not require the states to use the best approach to
solving a problem. But I suggest that Kessler and the Wallis
children are proof that the current approach outside the Fourth
Amendment is not even a good one, and thus an argument that it
needs to be preserved intact so as to minimize administrative costs
is simply inadequate. No one, from the taxpayer to the child and
family implicated by a report, to the responsible state agencies and
officials, has a legitimate interest in propping up a failed program.
D. A Final Accounting
In the final analysis, the state's need to investigate is weighed
against the individual's reasonable expectations of privacy and the
intrusiveness of the specific search or seizure."" Constitutional
balancing tests, including this one, have been strongly criticized
for their lack of rigor and for their outcomes, on the ground that
they tend to reflect normative judgments rather than objective
conclusions about the merits of the evidence.'" This is an important
and at the level of the agencies' processing of evidence in support of substantiation.
Notwithstanding his unassailable arguments about the need to balance the risk of harm to
children from maltreatment against the risk of harm from state intervention, however, state
schemes continue to reflect a callous disregard for the damage the state itself can and does
do to the children they are trying to protect.
343. See supra notes 318-20 and accompanying text (discussing this last aspect or prong
v.8/12/2015
v.8/12/2015
of reasonableness analysis).
344. The legal literature is replete with this critique. For some recent examples, see
Donald L Beschle, Kant's Categorical imperative: An Unspoken Factor in Constitutional
Rights Balancing, 31 Psp.L. REV. 949,963(2004) ("Individual rights may not act as 'trumps'
over social welfare in all cases but neither are they always subservient to community
interests. Balancing, then, becomes inevitable, but at the same time, difficult to do in a way
that seems principled and not simply as a reflection of a particular court's subjective
preferences."); Robert D. Dodson, Ten Years of Randomized Jurisprudence: Amending the
Special Needs Doctrine, 51 S.C. L.Rav. 258,275(2000) (lamenting that the outcome of special
needs balancing reflects the personal inclinations of individual Justices); Timothy Zick,
Constitutional Empiricism: Quasi-Neutral Principles and Constitutional Truths, 82 N.C. L
REV. 115,133-38(2003) (discussingthe extent to which constitutional jurisprudence has been
"consumed" by balancing tests, and evaluating the critiques by realists that balancing tests
permit judges to effectuate their 'subjective preferences").
critique, as the Supreme Court itself often engages in conclusory
balancing analysis, relying instead on its values-laden characterization of the relevant competing interests to justify its outcomes.
Nevertheless, the balancing critique fails sufficiently to allow for
the intuitive point that, as Learned Hand noted in the context of
the Fourth Amendment, "when you are dealing with such admonitions as 'unreasonable searches' there appears to be 'no escape in
each situation from balancing the conflicting interests at stake."""
Nor is it inevitable that balancing analysis will lack rigor or that an

v.8/12/2015
v.8/12/2015
outcome will be so imbued with personal orientation that it cannot
be said to be legitimate. There may be no such thing as true
objectivity, but this does not dictate nihilism in the law: We can be
better and worse—it is our choice—at determining "reasonableness"
and thus the "right" and "wrong" outcomes. Indeed, I suggest that
thoroughness in the analysis begets good outcomes precisely
because it forces a careful and thoughtful evaluation of the
competing arguments about interests.
The discussion that immediately precedes this final accounting
reflects the first real attempt at thoroughness in the face of
individuals' and states' important competing claims as to the reasonableness of a child welfare exception to the Fourth Amendment's
presumptive requirements. My conclusion based upon that analysis
is simply this: When all of the relevant interests are carefully
evaluated—notwithstanding the almost religious sense of many
child advocates to the contrary—there is a strong child-friendly case
to be made for requiring valid consent, a real exigency, or a
particularized warrant and probable cause before a state conducts
a child maltreatment investigation that involves either a home visit
or a sequestration and oral or physical examination of a child.
These traditional procedures best balance the various private
interests and public needs at issue in the child welfare context, by
assuring that the state can conduct a properly circumscribed

v.8/12/2015
v.8/12/2015
investigation when it has proved to a neutral evaluator that a child
is probably at risk.
This approach uniquely respects the child's own Fourth Amendment interest in privacy, dignity, personal security, and mobility,
by recognizing that, in general, the vitality of these values is
345. LEARNED HAND, THE SPIRIT OF LIBERTY 179(1960).
intimately and even inextricably linked to the child's sense that she
is one with her family. At the same time, it allows for the reality
that this unity is sometimes broken from within by abusive or
neglectful parents, giving rise to the need for the state to intrude
into the circle of family privacy when a child likely needs to be
rescued. As applied in real-life cases, this standard would have
permitted the state to intrude to rescue Kessler Wilkerson from his
abusive father before he killed the baby by repeatedly throwing him
against the walls of the family's trailer, if only one of the outsiders
who later indicated that they had known about Kessler's situation
had reported it in time to the authorities. And it probably would
have protected two-year-old Jesse and five-year-old Lauren Wallis
from the official investigation—triggered by a psychotic woman's
report that their father intended to sacrifice Jesse to Satan—which
involved midnight interviews conducted by police in their home,
followed by a devastating and ultimately months-long separation

v.8/12/2015
v.8/12/2015
from their parents, and CPS-ordered genital examinations in the
hospital.
On the other hand, a careful look at the competing arguments
shows that the case in favor of a child welfare exception to the
Fourth Amendment is relatively weak, as it gives the state almost
unfettered access to the child and to her home on the barest
suspicion of maltreatment. Nothing is balanced about this approach: The state receives an abuse or neglect report (however
strong or weak) and this alone permits its officials constitutionally
unfettered access to the child and to her home. Although a version
of this standard—the inherent reasonableness of the administrative scheme—has been approved in other contexts involving
suspicionless searches,"" it has only rarely supported suspicionbased investigations. 347 Indeed, as I have already suggested, the
truly extraordinary deference afforded to caseworkers and the
police under the prevailing approach to child maltreatment
346. See, e.g., Camera v. Mun. Court, 387 U.S. 523 (1967) (allowing a warrant to issue to
a city official to conduct a routine suspicionless search of a rental unit for compliance with
the housing code on the basis of the reasonableness of the administrative scheme).
347. See supra notes 132-35 and accompanying text (explaining the historical basis for the
probable cause requirement and the concomitant rejection of targeted government searches
conducted in the absence of a sound evidentiary basis).
investigations is similar in scope to that given colonial authorities
under the universally abhorred general warrant.

v.8/12/2015
v.8/12/2015
The compromise "reasonable suspicion" standard suggested by
Hardin and Beeman and adopted by some courts does recognize
what the most absolute version of the child welfare exception
rejects, namely that there are individual interests worthy of some
consideration in the balance. However, because the compromise
standard defines these interests primarily in terms of parental
privacy, and specifically without relevant reference to the children's
multifarious concerns, the standard fails to give them due weight. 348
It is simply an insufficient recognition of these concerns to say that
the state is entitled to conduct exhaustive and often damaging
investigations of the children and their families (amounting in
many cases to a significant amount of public violence) so long as it
can prove that there is approximately a thirty percent likelihood
that the targeted child is at risk of some parental violence.
Proponents of the child welfare exception have succeeded in
influencing policy and practice largely by masking the existence of
the sympathetic argument on the other side, and the deep flaws
inherent in the authorities' claims of necessity. It is undoubtedly
true that being able to circumvent the particularized warrant
and probable cause requirements—in other words, the Fourth
Amendment—would make the states' child welfare job easier in
many respects. Among other things, it would—and does today de

v.8/12/2015
v.8/12/2015
facto—assure that investigations take less time, that the system as
a whole uses less resources, that officials have more discretion to
invade individuals'privacy, and that many more investigations can
be conducted. What is unconvincing, however, is the argument that
states' need these extraordinary allowances here any more than
they need them in other instances involving heinous crimes or
serious civil transgressions where the requirements of the Warrant
Clause obviously apply."" As the Tenth Circuit explained in Dubbs
348. See supra notes 23,337-38 and accompanying text (discussing Hardin's and Beeman's
privacy analyses) and notes 169,173 and accompanying text (discussing the tendency of some
lower courts to equate the Fourth and Fourteenth Amendments' reasonableness standards,
and to consider those standards as applying to incursions on parental autonomy and privacy).
349. Good v. Dauphin County Soc. Servs. for Children & Youth, 891 F.2d 1087, 1094 (3d
Cir. 1989). This court's view has since been echoed by others, including the Ninth and Tenth
Circuits, that have continued to analogize child maltreatment to other deeply violent
offenses, such as murder and rape, which specifically trigger the particularized warrant and
v. Head Start, Inc., a case involving challenges to incredibly
invasive well-child examinations conducted without parental
consent by the civil officials of a local Head Start program, the fact
that the state "was acting in the interests of children, as it understood them" does not absolve it from having to comply with these
requirements because among other things, they "serve[] important

v.8/12/2015
v.8/12/2015
practical as well as dignitary concerns." 350
At bottom, what this argument fails adequately to reflect is that
the Fourth Amendment's presumptive requirements already
recognize and allow the states to investigate crime and other
social problems. The presumptive requirements just place some
reasonable limits on official exercises of discretion both as to the
number and scope of intrusions on privacy, if the claim is that the
government's need is different and more expansive here, so that it
requires systematically unfettered discretion to invade individual
rights, the case has not been made. It is obviously appealing simply
to respond (as the Head Start officials did in Dubbs) that children
are special and thus, because state authorities are acting in their
interests, they "should not be hamstrung by legalistic requirements
like warrants or consent.""' What I hope to have made clear is that
this response is unsound in many if not most cases, both because
the states in fact can do their child maltreatment work without
probable cause requirements. For example, in Wallis v. Spencer, the Ninth Circuit found that
in the area of child abuse, as with the investigation and prosecution of all
crimes, the state is constrained by the substantive and procedural guarantees
of the Constitution. The fact that the suspected crime maybe heinous—whether
it involves children or adults—does not provide cause for the state to ignore the
rights of the accused or any other parties. Otherwise, serious injustices may
v.8/12/2015
v.8/12/2015
result.
202 F.3d 1126, 1130 (9th Cir. 2000). And in White by White o. Pierce County, the Tenth
Circuit stated that
[c]hild abuse is a heinous crime. So are murder and rape. Just as the
repulsiveness of the latter two crimes does not affect the constitutional
restrictions placed on police officers, neither should our repugnance to the
former crime cause us to condone police procedures that infringe constitutional
protections.
797 F.2d 812, 817 (9th Cir. 1986); see also Dubba v. Head Start, Inc., 336 F.3d 1194, 1207
(10th Cir. 2003).
350. Dubbs, 336 F.3d at 1207. The searches in this case included genital examinations and
blood tests conducted on preschool children who were placed together on tables in a
classroom.
351. Id,
ignoring the Warrant Clause—it is not nearly so impracticable as
they might suggest—and because the clause itself is a barrier to the
converse problem that is the perpetration of public violence against
children and families.
Perhaps most importantly though, proponents of a child welfare
exception have succeeded in influencing policy and practice by
telling a false story. This story posits family privacy as a bad

v.8/12/2015
v.8/12/2015
thing—at least in this context—that only protects fringe and
abusive parents from the scrutiny they properly deserve; here,
mainstream and innocent parents have no stake in family privacy.
The story further assumes that the interests of children who are
subjects of screened-in maltreatment reports are aligned with
those of the government rather than with their parents for the
duration of the investigation, because they are either in fact being
maltreated, or because they have a group-based stake in the
existence of the prevailing approach to the child abuse problem. As
in, "you never know, someday it could be me."
Neither piece of this story could be further from our collective
philosophical truth. As against the government, privacy, including
family privacy, is valued in general for reasons that have absolutely
nothing to do with rejecting a mainstream lifestyle or hiding
personal flaws and dirty laundry. For example, I do not abuse or
neglect my children, and they are quite secure in their relationships
with me and their family. Nevertheless, I know that I would feel
violated if state officials, either subtly or overtly, threatened their
way into my home and searched through my cupboards and closets;
and it is inevitable that my vulnerability would be felt by my
children. I also know that my children would feel frightened,
humiliated, and betrayed if a caseworker or police officer interviewed or examined them at school or took them to a doctor's office
v.8/12/2015
v.8/12/2015
to be examined. That the state would mean well, that its actions
would be "for their own good" is something neither of them could
even begin to believe for years to come, if ever. In this context,
which is the context of this Article, privacy is essential to securing
parental authority and the unity of the family group, and to the
sense of dignity and personal security of its individual members
especially the children. The law cannot realign the children's
interests away from their parents on the basis of a mere subjective
suspicion of maltreatment and also be true to the children's
developmental needs or their Fourth Amendment rights. The fact
is, most parents are their children's first, best caretakers, and thus
the time-honored presumption that parents act in their best
interests is both deserved and necessary to the children's wellbeing.
Ultimately, the case in favor of a child welfare exception to the
Fourth Amendment is flawed for the same reason that an unbounded and absolute notion of family privacy should be rejected:
Both are extreme positions that fail to acknowledge the important
individual and governmental interests at stake. As I have written
elsewhere, the sovereignty of the family cannot be so impenetrable
that it prevents the state from saving children who are at real risk
of maltreatment. 352 At the same time, it cannot be so porous as to
v.8/12/2015
v.8/12/2015
allow the state to storm the castle to "save" children who do not
need saving. From the children's perspective, only a compromise
conception that reflects appropriate respect for family privacy is
just and healthy. The Fourth Amendment's traditional requirements precisely ensconce this conception.
One final note: As Justice O'Connor has written "'[t]here is
nothing new in the realization' that Fourth Amendment protections
come with a price.""' If I am correct in this final accounting, and
particularly in my view that the states can address most of their
concerns in alternative ways that do not exact so much damage to
our values and our children, the price of the Fourth Amendment in
this context lies primarily in the inability of the states to investigate circumstances where parents choose to isolate themselves and
their children from the scrutiny of others. In such cases, a child can
be abused with almost complete impunity. I suspect that this
concern largely drives much of the prevailing approach to child
maltreatment investigations. In my view, however, it is wrong to
352. COLEMAN, supranote 4 (arguing that the doctrine of parental autonomy is too strong
if it recognizes a parent's right to ignore her child's emotional and developmental well-being);
DorianeLambelet Coleman, Individualizing Justice ThroughMulticulturalism: TheLiberals'
Dilemma, 96 coLuM. L. Rsv. 1093, 1093-100 (1996) [hereinafter Coleman, Individualizing
Justice] (arguing that multiculturalism as avahie is too strong if it forces courts to recognize
traditional parenting practices that cause physical harm and even death to the children); cf.
v.8/12/2015
v.8/12/2015
Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and
Americanization, 47 DuKE L.J. 717, 717-24 (1998) (arguing that the states ought not intrude
when immigrant parents seek symbolic compromises to traditional practices so that their
children are not harmed).
353. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 680 (1995) (O'Connor, J., dissenting)
(quoting Arizona v. Hicks, 480 U.S. 321, 329 (1987)).
force millions of apparently healthy children each year to undergo
often deeply intrusive invasions—sometimes resulting in unjustified removals and even death in alternative homes—just to preserve
the states' prerogative to intervene into the lives of these relatively
few isolated families. Indeed, these situations point directly to the
irony inherent in the child welfare exception: It causes more
children more harm than good. Because of this it cannot be the
solution to the problem of assuring the welfare of isolated children.
Their unique circumstances represent an essential conundrum of
American constitutional law that should not be solved at the
expense of children generally. 354
CONCLUSION
The battle to defme the rights of individuals and the boundaries
of official authority in child welfare cases has traditionally been
seen as pitting the states' interest in saving children from maltreatment against their parents' interest in family or parental privacy.
v.8/12/2015
v.8/12/2015
This account allows states to rationalize enormous intrusions on the
family as they seek to determine which children actually need
saving, because "the life of even one child is too great a price to pay
for the possible increased degree of parental privacy" that would
354. As I and others have argued elsewhere, the First and Fourteenth Amendment
doctrines which allow parents to raise their children as they see fit including outside the
mainstream and completely isolated from others in the society are the genesis of the idea
that "children are the Achilles heel of liberalism." See supra note 17 and accompanying text
(quoting this language and citing its sources); see also COLEMAN, supra note 4, at 99-107
(exploring the problems that strong religious and parental liberties create for the
children who would be isolated as a result); Coleman, Individualizing Justice, supra note
352, at 1166-67 (developing the argument that immigrant children are denied equal
protection when their parents' violent traditional practices are respected in the name of
multiculturalism); James G. Dwyer, The Children We Abandon: Religious Exemptions to
Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious
Objectors, 74 N.C. L. REV. 1321, 1323 (1996) (exploring "the law's denial of equal protection
to some children simply because of their parents' religious beliefs"). Using the historical
precedent of mandatory schooling and labor laws, these First and Fourteenth Amendment
doctrines could be made child-friendly so that parents would not be entitled to create the
isolated conditions that allow those who abuse their children to do so with impunity.
Constitutional evolution along these lines would certainly be an intrusion on parental
v.8/12/2015
v.8/12/2015
autonomy, but in my view it would not intrude on family privacy and the children's
individual privacy interests in the developmentally destructive ways that unwarranted
Fourth Amendment searches and seizures do.
result from a less intrusive scheme. 355 Thus, exploiting the absence
of definitive law in the area, state officials largely ignore the Fourth
Amendment's prohibition on unreasonable searches and seizures as
they conduct exhaustive and unfettered investigations of the family
home and the children who reside there.
The states' view of the children's own interests is consistent with
their public policy objectives. That is, they assume the children
would want state officials to take no chances, and to leave no stone
unturned, in their effort to substantiate a maltreatment report.
These generic children are willing to pay the price of the investigations—in separations from their parents, in probing personal
interviews, and in pervasive medical, including genital, examinations—to realize the fruits of the states' approach. Acceptance of
this view requires suspending the standard legal presumption that
the children's interests are aligned with those of their parents until
the state proves otherwise; and it requires accepting the opposite
presumption that the children's interests are realigned with those
of the state for the duration of the investigation. The heroes in this
scene are the benevolent social workers and police officers who
v.8/12/2015
v.8/12/2015
would rescue vulnerable or injured children from their bad parents
before it is too late.
The trouble with this story is that it is only partly true; and as a
result, it simply cannot support the temporary but nevertheless
significant realignment of interests that justifies the child welfare
exception to the Fourth Amendment. It is true that some parents
abuse and neglect their children, and therefore, there are children
who need to be saved. It is also true that social workers and police
officers are mostly benevolent. The rest is categorically untrue:
Children who do not need saving—most investigated children fall
into this category—have no interest in a legal scheme that allows
even benevolent state officials to assume that their good parents are
no longer their best caretakers. And no child, whether she needs
saving or not, is interested in a legal scheme that permits these
officials absolute and unfettered discretion to launch invasive and
often harmful investigations based upon such assumptions.
355. Darryl H. v. Coler, 801 F.2d 893, 899 (7th Cir. 1988) (quoting E.Z. v. Coler, 603 F.
Supp. 1546, 1559 (N.D. M. 1985)).
The violence that these official investigations do to the children
can be just as destructive as the private violence they seek to avert.
v.8/12/2015
v.8/12/2015
And where no private violence exists—for example in the hundreds
of thousands of cases each year involving intentionally fraudulent
or simply erroneous reports—the state ends up being the (only) one,
to cause the children harm. Recognizing this fact is essential to
understanding why the presumptive protections of the Fourth
Amendment, a particularized warrant and probable cause, are
necessary to assure the integrity of the child welfare system. For it
is only according to the balance these requirements strike that the
children's interests, as well as those of their parents and the states,
are given due respect.
v.8/12/2015
v.8/12/2015

Myfinal Merged NORemoval USDCrt y Memoranudum Cases Citas Chron Exh Referenced CT RT X3po Mo SWR Canereports Texas Calif v1 - 19jun2015

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Myfinal Merged NORemoval USDCrt y Memoranudum Cases Citas Chron Exh Referenced CT RT X3po Mo SWR Canereports Texas Calif v1 - 19jun2015

Transféré par

Droits d'auteur :

Formats disponibles

NO.

___________________ Formatted: Font: (Default) Times New Roman, Font color:

FOURTH APPELLATE COURT

(SAN DIEGO COUNTY)

EXHIBIT NO.______ Formatted: Line spacing: single

PETITIONER'S PROPOSED PARENTING PLAN

ROSEMARY BENSON-ROJAS AND GEOVANNY A. ROJAS

EXHIBIT NO.______ Formatted: Attorney Name, Left

Formatted: Attorney Name

Formatted: Attorney Name

Formatted: Font: (Default) Times New Roman, Font color:

www.imporpercustoryorderviaporectectionorder.pdf Formatted: Font: (Default) Times New Roman, Font color:

7908. A court having jurisdiction to place delinquent children may

7908.5. For the purposes of an interstate adoption placement, the

7909. "Executive head" as used in Article 7 of the Interstate

7910. Approval of an interstate placement of a child for adoption

7911. The Legislature finds and declares all of the following:

7911.1. (a) Notwithstanding any other provision of law, the State

thereby making the slanders and libels impervious to legal relief.

About these ads Formatted ...

FEATURED POSTS Formatted ...

Formatted: Font color: Red

Formatted: Font color: Red

OR START ONE OF YOUR OWN LIKE MS. BETTY KRACHEY OF KODAK, TN

The truth won’t set you free.

PRAYER FOR RELIEF

Claim 5: Negligent Infliction of

Claim 7: Liability for Children's

Claim 8: False Imprisonment

Claim 10: Battery

Claim 12: Invasion of Privacy

Claim 13: Declaratory Relief

DONNA GREENSPAN, an individual;

and A.G., a minor, by and through her

COUNTY OF SAN DIEGO, a public

JENNTFER WILLIAMS, individually;

JOSE PADILLA, individually;

SHELLY PAULE, individually;

DIONNE PUCKETT, individually;

MIKE GREEN, individually;

CITY OF SAN DIEGO, a public entity;

OFFICER J. TANGREDI, individually;

OFFICER G. AVALOS, individually;

OFFICER A. JOHNSON, individually;

and DOES 1 through 100, Inclusive,

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF CALIFORNIA

COMPLAINT FOR DAMAGES

3 7. At all times applicable herein, social worker JOSE PADILLA ("Jose

4 Padilla" or "Padilla") was an individual residing, on information and belief, in the

h 8. At all times applicable herein, social worker SHELLY PAULE

10 HHSA. Defendant Paule is sued herein in her individual capacity

11 9. At all times applicable herein, social worker DIONNE PUCKETT

12 ("Dionne Puckett" or "Puckett") was an individual residing, on information and

16 Green" or "Green") was an individual residing, on information and belief, in the

18 HHSA. Defendant Green is sued herein in his individual capacity.

19 11. Hereinafter, when referred to collectively, the Defendants in

20 paragraphs 6 through 10, inclusive, will be referred to as Social Worker

23 a public entity ("City" or "City of San Diego").

24 13. At all times applicable herein, the SAN DIEGO POLICE

25 DEPARTMENT ("San Diego Police Department" or "SDPD") was and is a

26 subdivision, entity, or administrative arm of the CITY OF SAN DIEGO.

27 14. At all times applicable herein, OFFICER J. TANGREDI ("Officer