# Amicus Curiae Brief — Camreta v. Greene > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0596%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2011 - **Citation:** 563 U.S. 692 ## Text Nos. 09-1454 and 09-1478 —— SS Supreme Court of the Anited BOB CAMRETA, z Petitioner, Vv. SARAH GREENE a minor, and K.G., a minor, Respondent. 7 oe. — —_ JAMES ALFORD, Petitioner, y SARAH GREENE, personally and a a minor, and K.Gi., a minor, Respondent. ————— . ——E— On Writs Of Destios ari To The United States Court Of Appeals For The Ninth Circuit Sd BRIEF OF THE STATES OF ARIZONA, ALABAMA, ALASKA, ARKANSAS, CALIFORNIA, COLORADO, DELAWARE, DISTRICT OF COLUMBIA, FLORIDA, GEORGIA, HAWALTL, IDAHO, ILLINOIS, IOWA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MARYLAND, MICHIGAN, MINNESOTA, MISSISSIPPI! MONTANA, NEBRASKA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NORTH DAKOTA, PENNSYLVANIA, RHODE ISLAND, SOU'TH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VERMONT, WASHINGTON, WEST VIRGINIA, WISCONSIN, AND WYOMING AS AMICI CURIAE IN SUPPORT OF PETITIONERS - @ aa 15 South 15th Avenue Phoenix, Arizona 85007 (602) 542-8027 SohcitorGeneral@azay vo Counsel for the State of Arizona TERRY GODDARD ARIZONA ATTORNEY GENERAL, “PAULA S. BICKETT CHIEF COUNSEL, CIVIL APPEALS KATHLEEN }. SWEENEY DAWN KR. WILLIAMS MICHELILE Ro NIMMO ASSISTANT ATTORNEYS GENERAL, ‘Counsel of Record {Other Counsel IL iste -d On Inside Front Cc love fer} Coe KLE LAW BRIEF PRINTING CO) (800) 225 tA OK CALL COLLECT (402) 2 Zh51 ee ees In The Sees 4 / 2010 OFFICE OF THE CLERK )}, personally and as next friend for S.G., s next friend for S.G., = SF ) TROY KING ALABAMA ATTORNEY GENERAL 500 Dexter Avenue Montgomery, AL, 36140 (334) 242-7300 RICHARD A. SVOBODNY ALASKA ACTING ATTORNEY GENERAL Department of Law P.O. Box 110300 Juneau, AK 99811-0300 (907) 465-3600 DUSTIN MCDANIEL ARKANSAS ATTORNEY GENERAL 323 Center Street, Suite 200 Little Rock, AR 72201 (501) 682-2007 EDMUND G. BROWN Jk. CALIFORNIA ATTORNEY (IENERAL 1300 | Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 (916) 445-9555 JOHN W. SUTHERS COLORADO ATTORNEY GENERAL 1525 Sherman Street, Seventh Floor Denver, CO 802038 (403) 866-5634 JOSEPH RK. Bipen, Ll DELAWAKE ATTORNEY GENERAL $20 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 PETER J. NICKLES DISTRICT OF COLUMBIA ATTORNEY GENERAL One Judiciary Square 441 4th Street, N.W. Suite 600 South Washington, D.C. 20001 (202) 727-3400 Bink MCCOLLUM FLORIDA ATPORNEY GENERAL The Capitol, PL-O1 Tallahassee, FL 32399-1050 (850) 414-3300 THURBERT EF. BAKER CRORGIA ATTORNEY GENERAL 132 Judicial Building 40 Capitol Square, SW Atlanta, GA 40334 (404) 656-3300 RUSSELL A. SUZUKI HAWAL ACTING ATTORNEY GENERAL 425 Queen Street Honolulu, Hl 96813 (8OS8) 586-1500 LAWRENCE G. WASDEN IDAHO ATTORNEY GENERAL. P.O. Box 83720 Boise, ID 83720-0010 (208) 334-2400 LISA MADIGAN ILLINOIS ATTORNEY GENERAL 100 W. Randolph St, 12th Floor Chicago, IL 60601 (312) 814-3698 THOMAS J. MILLEK IOWA ATTORNEY GENERAL 1305 Kast Walnut Street Des Moines, IA 50319 (515) 281-5164 STEVE SIx KANSAS ATTORNEY GENERAL 120 SW 10th Avenue, 2nd Floor Topeka, KS 66612 (785) 296-2215 JACK CONWAY KENTUCKY ATTORNEY GENERAL 700 Capital Avenue, Suite 118 Frankfort, KY 40601 (502) 696-5300 JAMES D. “BUubbY” CALDWELL LOUISIANA ATTORNEY GENERAL P.O. Box 94005 Baton Rouge, LA 70804-9005 (225) 326-6716 JANET ‘T. MiLis MAINE ATTORNEY GENERAL Stix State House Station Augusta, ME 04333 (207) 626-8599 DOUGLAS F. GANSLEK MARYLAND ATPORNEY GENERAL 200 Saint Paul Place Baltimore, MD 21202 (410) 576-6300 MicHaAk. A. Cox MICHIGAN ATPORNEY GENERAL, P.O. Box 30212 Lansing, MI 48909 (517) 373-1110 LOKL SWANSON MINNESOTA ATTORNEY (GENERAL, 102 State Capitol 75 Rev Dr. Martin Luther King, Jr. Boulevard St. Paul, MN 55155-1609 (651) 296-6196 JiM HOOD MISSISSIPPL ATTOKNEY GENERAL P.O. Box 220 Jackson, MS 39205 (601) 359-3680 STEVE BULLOCK MONTANA ATRORNEY GENERAL P.O. Box 201401 Helena, MT 59620-1401 (406) 444-2026 JON BRUNING NEBRASKA ATTORNEY GENERAL. 2115 State Capitol P.O. Box 98920 Lincoln, NE 68509 (402) 471-2683 CATHERINE COKTEZ MASTO NEVADA ATTORNEY GENERAL Office of the Attorney General 100 North Carson Street Carson City, NV 89701 (775) 684-1112 MICHAEL A. DELANEY Niew HAMPSHIRE ATTORNEY GENERAL 33 Capitol Street Concord, NH 03301 (603) 271-1202 PAULA T. Dow New JERSEY ATTORNEY GENERAL 25 Market Street P.O. Box O80 Trenton, NJ 08625 (609) 292-4930 TARY K. KING New MEXICO ATTORNEY GENERAL, P.O. Drawer 1508 Santa Fe, NM 87504-1508 (505) 827-6000 WAYNE STENEHJEM NoOrRTH DAKOTA ATTORNEY (GENERAL 600 East Boulevard Avenue Bismarck, ND 58505-0040 (701) 328-2210 ‘THOMAS W. CORBETT, JR. PENNSYIVANIA ATTORNEY GENERAL 16th Floor, Strawberry Square Harrisburg, PA 17120 (717) 787-3391 Parrick C. LYNCH RHODE ISLAND ATTORNEY GENERAL 1508S. Main St. Providence, RI 02903 (401) 274-4400 Henry D. MCMASTER SOUTH CAROLINA ATTORNEY GENERAL PO. Box 11549 Columbia, SC 29211 (803) 734-3970 MARTY J. JACKLEY SOUTH DAKOTA ATTORNEY GGENERAL, 1302 FE. Highway 14, Suite | Pierre, SD 57501-8501 (605) 773-3215 ROBERT E. COOPER, JR ‘TENNESSEB ATTORNEY GENERAL P.O. Box 20207 Nashville, TN 37202-0207 (615) 741-3491 GREG ABBOTT TEXAS ATTORNEY GENERAL P.O. Box 12548 Austin, TX 78711-2548 (512) 463-2100 MARK L. SHUKTLEFF UTAH ATTORNEY GENERAL. Utah State Capitol, Suite # 230 PO. Box 142320 Salt Lake City, UT $4114-2320 (801) 538-9600 WILLIAM HL. SOkRELL VERMONT ATTORNEY GENERAL. Office of the Attorney General 109 State Street Montpelier, V'T 05609-1001 (802) 628-3173 RoBerRT M. MCKENNA WASHINGTON ATTORNEY TENERAL, 1125 Washington Street P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 DARKELL V. MCGRAW, JR. West VIRGINIA ATTORNEY CGENERAL Office of the Attorney General State Capitol, Room 26-E Charleston, WV 25305 (304) 558-2021 J.B. VAN HOLLEN WISCONSIN ATTORNEY GENERAL, 17 West Main Street Madison, WI 53703 (608) 266-1221 Bruce A. SALZBURG WYOMING ATPORNEY GENERAL 123 State Capitol Cheyenne, WY 82002 (307) 777-7841 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...00000000000000 00... iv INTEREST OF THE AMICI] CURIAE STATES... | SUMMARY OF THE ARGUMEN'T....00000000000....... 2 SPIE sia thin cd ekcntciisbassdsravantiesatsnineseiaxincestonars § Requiring a Warrant, Court Order, Paren- tal Consent, or Exigent Circumstances Before Interviewing a Suspected Child- Abuse Victim Is Not Reasonable Under the Fourth Amendment Because Such «# Requirement Does Not Adequately Protect the Victim A. The Ninth Circuit Incorrectly Balanced the Competing Interests at Stake in Child-Abuse Investigations Because It Did Not Recognize that Many “Un. substantiated” Child-Abuse Reports Result from the Inherent Difficulties of Substantiating Maltreatment and Not from False Reporting.................... B. The States Have a Compelling Interest in Using Multidisciplinary Teams _ to Investigate Child-Abuse Reports to Minimize Further Trauma to Victims and Maximize the Reliability of In- vestigation Outcomes .......0....0..0..0....00.05. 9 21 TABLE OF CONTENTS — Continued Page Requiring a Warrant, Court Order, Parental Consent, or Exigent Circum- stances Before Allowing a Multidisci- plinary Team to Interview a Suspected Child-Abuse Victim Undermines the States’ Compelling Interests in Detect- ing and Preventing Child Abuse ........... Because initial child-abuse reports are often hearsay statements that will not support probable cause, requiring investigators to obtain prior judicial authorization before interviewing alleged = child-abuse victims would seriously impede their investigations ........................ Given that the majority of child abusers are parents or other mem- bers of an abused child’s household, requiring parental consent before interviewing a suspected = victim may sabotage the goals of protect- ing children and prosecuting abus- If a child welfare agency can deter mine that an exigency exists before it interviews a child, it can take the child into temporary custody and interview the child ....0..00.000....... Rie 30 30 37 1 TABLE OF CONTEN'IS — Continued Page > It Is Reasonable to Interview a Sus- pected Child-Abuse Victim at School... 38 SP AMRIT soc coc veiecnadetntaraconicetecessieceneierer eaten, 4] iV TABLE OF AUTHORITIES Page CASES Calabretta v. Floyd, 189 F.3d 808 (9th Cir. BIR ccs vicssecaentin $n. ocia excnpnnogeunnen Weacitonanpaeamareenbs tekin 2, 22 Darryl H. vo. Coler, 801 F.2d 893 CII. 1986)................38 Decatur City Bd. of Educ. v. Aycock, 562 So. 2d SE BIE FE, Pei icc cv cesekescecincaxegessstessennssesaveses te Greene v. Camreta, 588 F.3d 1011 (9th Cir. I eis kets saabileitineixadescd-erasckscansiemipaett tate passim H.R. v. State Dep't of Human Kes., 612 So. 2d MT CN I Sis avcice dnc tuned caceiéin shivcneraesssage Parham v. Jo.R., 442 U.S. SB4 (1979)......c.cccceccecsccccssees 16 Pennsylvania v. Ritchie, 480 U.S. 39 (19e,7)........30, 36 Rogers v. County of San Joaquin, 487 F.3d CIE, SE Bask conevstinvacaduenieccestenensevevesstsansovnss 3& RS. v. State, 459 N.W.2d 680 (Minn. 1990) ........30, 36 Santosky v. Kramer, 455 U.S. 745 (1982) «0.0.0... ] Wong Sun vo. United States, 371 U.S. 471 (1963).......31 CONSTITUTIONAL PROVISIONS U.S. Const. amend. IV............. sana AAG Ap cen Be passim STATUTES 18 U.S.C. § 35092 )1)......... gE PPS RR narnia gone BFE ent 24 RE a et sooo cps cc teisccxesvssassstpsavdnnscrisusveovers 24 BE Ee We oo cise cs eacndcycsecieavccsracessekectsnstneaursccionee TABLE OF AUTHORITIES — Continued Pape Fe as ae ii acdcnaicis saiccbngs cteeinchs esta hicenes 23 ER UA.ZAS, F DOORS) os ciscciiesssccnssccscesessennsesees 23 Pied, Te, RUE. Be Bh io vn sco sccevndecccsscacscceccccdiecaccnccess 26 Ariz. Rev. Stat. § 6-BOI1(2)............0ccceccssess SOO ee 26 POGR, De FIO, BS Fe vans cckescnecccscceccccvcnssscenecsonnsss 26 a Ne I Oh OI reece cacinvrricussnenesisusevedaiscanes 26 Cae: I BE CIR ooo c soc ccansdocccsnscccsecieocccscceences 28 as ee MEY Oh WE OOP wc. cca coco scavecanccctcesccccreceetnsaas 40 ON Oy Sena al ae i ee ere ere ee 25 Sr nr o.oo euubde 25 Minn. Stat. Ann. § 626.556 subd. 10(a) ..................... 28 N.D. Cent. Code Ann. § 50-25.1-05(2 (ec)... 40 N.D. Cent. Code Ann. § 50-25.1-05.05 «2.000000... cea.. 40 NH. Rev. Stat. Ann. § 169-C:38-a....00000000000 cece 26 N.H. Rev. Stat. Ann. § 169-C:38, IV... 000... 40 N.Y. Soc. Serv. Law § 423-a(1), (2M f) ....................0000. 28 Okla. Stat. Ann. tit. LOA, § 1-2-105(B)01) ...000000000.. AO Okla. Stat. Ann. tit. LOA, § 1-2-105(B)(5) «2.0. 26 Okla. Stat. Ann. tit. LOA, § 1-9-102............................ 26 Pub. L. No. 93-247, 88 Stat. 4 (Jan. 31, IIE ceceinchcesiocnncrctmcstanaasusdaterteasssdsennescCa@nerce: 23, 24, 25 Vt. Stat. Amm. tat: SS, B 4BEGCE).... .......c0cecccvennscccccesseses- 26 Wash. Rev. Code Ann. § 26.44.030(12)(a)................... 40) vi TABLE OF AUTHORITIES — Continued Page OTHER AUTHORITIES 88 Op. Att’y Gen. 84 (Ariz. 1988) .....00.0.. 0. eee 40 89 Op. Att'y Gen. 49 (Utah 1990)... See neeSeceiak 40 Ruby Andrew, Child Sexual Abuse and _ the State: Applying Critical Outsider Methodolo- pies to Legislative Policymaking, 39 UC. Dawes L,. ReV. 1651 (QOOB) «......0..cccccccccsccccsceseserescsees 15 Jennifer M. Collins, Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Rela- tionship, 93 lowa L. Rev. 131 (2007)....14, 30, 34, 36 John Doris, Rosaleen Mazur & Marney Thom- as, Training in Child Protective Services: A Commentary on the Amicus Brief of Bruck and Ceci, 1 Psycuo.. Pus. Powy & L. 479 PUENTE. «cco uussusaredadciesaepernedscnisamentaadiniahpabeotantsatanes 28, 29 Brett Drake, Unraveling “Unsubstantiated,” 1 Child Maltreatment 261 (1996)....00.000.0........0..66.. 13 Brett Drake, Melissa Johnson-Reid, Inecke Way & Sulki Chung, Substantiation and Recidi- vism, 8 Child Maltreatment 248 (2003)................. 13 Ann N. Elhot & Connie N. Carnes, Reactions of Nonoffending Parents to Sexual Abuse of Their Child: A Review of the Literature, 6 Child Maltreatment 314 (2001).....0.......-.. 18 Kathleen Coulborn Faller, Interviewing Chil- dren About Sexual Abuse: Controversies and cel Feet GI D accinnsssesccetsnens tcsnesessstasevesas passim Vu TABLE OF AUTHORITIES — Continued Marcia Herman-Giddens & Thomas E. Froth- ingham, Prepubertal Female Genitalia: Ex- amination for Bvidence of Sexual Abuse, 80 PINES TIE RUINED © go. vacnacdcondoneacedcacicesdccvaceuvcs Hearing on S.B. 2716 before Sen. Comm. on Human Sos., 25th Ley., Reg. Sess. GHI 2010)... Lisa M. Jones, Kathryn EF. Atoro & Wendy A. Walsh, Nonoffending Caregiver and Youth Experiences with Child Sexual Abuse Inves- tigations, 25 Journal of Interpersonal Vio- I Sealed “a RE oS Caner Sees ey Var a Owen DD. Jones, Hvuolutionary Analysis in Law: An Introduction and Application to Child Abuse, 75 N.C. L. Rev. 1117 (31997) ................... Patricia Kohl, Melissa Johnson-Reid & Brett Drake, Time to Leave Substantiation Behind: Findings from a National Probability Study, 14 Child Maltreatment (Issue No. 1) 17 -.......... Danielle Laraque, Amy DeMattia & Chrstine Low, Forensic Child Abuse Evaluation: A Review, The Mount Sinai Journal of Medt- cine, vol. 73 No. 8 (Dec. 2006)..........0.00.0.c eee Kee Mackarlane & dill Waterman, Sexual Abuse of Young Children (1986) ...0.0.000000.00........ Tomiko D. Mackey, Child Abuse: Victim’s Race and Prosecution, ls There a Correlation?, 26 HIAMLINE J. Pus. L. & Pow’y 131 (2006)............. Page ‘ cane aw heh 2] aia 13 sans 20 scone aa 29 Vill TABLE OF AUTHORITIES — Continued Page Lindsay C. Malloy & Thomas D. Lyon, Caregiv- er Support and Child Sexual Abuse: Why Does It Matter?, 15 Journal of Child Sexual Abuse (Issue No. 4) 97 (2006) ....0..00..00........ 17 Judith G. MeMullen, Privacy, Family Auton- omy, and the Maltreated Child, 75 Mara. 1. Ny I an ol casa auenrebytesssuesstieesensccxil Mo. Dep't of Soc. Servs., Child Welfare Manual........ 25 Mo. Dep't of Soc. Servs., Guidelines for Man- dated Reporters of Child Abuse and Neglect.......... 40 John E.B. Myers, Hurdence in Child Abuse and Neplect Cases, vol. 1 (2nd ed. 1992)........................31 18, 20 William Wesley Patton, Revictimizing Child Abuse Victims: An Empirical Rebuttal to the Open duvenile Dependency Court Reform Movement (2005) ..... Pius hit taiceaeccnaduitscatsais sduatae 24, 39 Denise Pintella & Susan Zuravin, lntrafamilial Child Sexual Abuse. Predictors of Post disclosure Maternal Beltef and Protective Action, 6 Child Maitreatment 344 (2001) ........ 16,17 Timothy Ross, Francescs Levy & Robert Hope, Vera Inst. of Justice, improving Responses to Allegations of Severe Child Abuse: Results from the fnstant Response Team Program (charol Shakeshaft, “Educator Sexual Abuse,” Hofstra Horizons (Spring 2003)... 00.02.00 OY TABLE OF AUTHORITIES — Continued Pape lena Silva, Education Sector Reports, On the Clock: Rethinking the Way Schools Use Time GRUNT BiGU 05s sei ndoancaracoaenes dineabennisdnanduspacesstadenipantansawe vers 39 Linda Spears, “The Role of the Child Welfare League of America,” in Preventing Child Sexual Abuse: A National Resource Directory IE I SIN Ds kasi cu ekg rakessevindcadcescrenverrniaxeesdes 22 Caroline 'T. ‘Trost, Chilling Child Abuse Report- ing: Rethinking the CAPTA Amendments, 51 fe Pe A eee U.S. Dep't of Health & Human Servs. Admin. for Children & Families, Child Maltreatment PERE. FU Te SHED sc cisccecotsenncsrsscectsecieess 10, 11, 12 U.S. Dep't of Health & Human Servs. Admin. for Children & Famulies, Child Maltreatment FEE Tal TS CRD vetccsoseccovessseviscsveeareses 14, 15, 37 US. Dep’t of Justice, Attorney General Guide- lines for Vectim and Witness Assistance | eee hdepdlabecenate! ts cicaia een d oes Mana Wegener coments Baad 24 Tisha R. Wiley, Legal and Social Service Re- sponses to Child Sexual Abuse: A Primer and Discussion of Relevant Research, 18 Journal of Child Sexual Abuse 267 (2009)......... 13, 14, 19, 20 Amy P. Winterfeld & Taina Sakapawa, /nves- ligation Models for Child Abuse and Neglect Collaboration with Law Enforcement (2OOB) .....eccecec0s-.. Pete tithe Caer e ae 26, 27, 28 INTEREST OF THE AMICI CURIAE STATES Amici States share a compelling parens patriae interest in protecting children. Santosky v. Kramer, 455 U.S. 745, 766 (1982). In furtherance of that interest, many States have enacted statutes or adopt- ed policies designed to encourage child welfare agen cies and law enforcement departments to cooperate in investivating and prosecuting child abuse. In this case, the Ninth Circuit held that because “Jaw enforcement personnel and purposes” were involved in caseworker Bob Camreta and deputy sheriff James Alford’s (Petitioners) warrantless in- school interview of S.G., an allegedly abused child, the interview violated the Fourth Amendment’s guarantee against unreasonable searches and sei- zures.' Greene v. Camreta, 588 F.3d 1011, 1027 (9tI Cir. 2009). The Ninth Circuit’s decision will hamper States’ ability to effectively and sensitively investi- gate child-abuse’ allegations by preventing child protective services (CPS) workers and law enforce ment from interviewing suspected abuse victims at school in the absence of a warrant, a court order, ‘Given that Petitioners “{didj not contest the district court’s holding that the two-hour interview of SG. at her school was a seizure,” Greene, 588 F3d LOL, 1022 (9th Cir. 2009), Amici address the Fourth Amendment seizure considerations without conceding that social worker or law enforcement personnel interviews of alleved child-abuse victims in the public school setting implicate Fourth Amendment tnterests. ‘ Except where otherwise apparent, the term “child abuse” refers here to child-maltreatment penerally, including neglect 2 parental consent, or exigent circumstances. Not allowing such interviews will undermine States’ ability to protect vulnerable children from being sexually abused by parents or other members of the abused child’s household. SUMMARY OF THE ARGUMENT In its ruling, the Ninth Circuit reiterated its ‘arlier holding that “‘the general law of search war- rants appliels| to child abuse investigations.” Greene, 588 F.3d at 1030 (quoting Calabretta v. Floyd, 189 3d 808, 814 (9th Cir. 1999)) Finding that law enforcement purposes were too entangled in the investigation of the possible sexual abuse of S.G., the court held that “the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exi- gent circumstances, or parental consent was uncon- stitutional.” /d. That approach overlooks that the participation of law enforcement in the joint inter- view of suspected child-abuse victims serves not merely law enforcement purposes, but also the vic- tims’ own interests in being afforded a safe and appropriate Opportunity to disclose abuse away from the influence of a parental perpetrator or non offending, but unsupportive, caregiver. It further overlooks the States’ related and compelling interest in applying best practices for child-abuse investiga- tions — of which child interviews are a keystone — to maximize their ability to reliably discover abuse where it occurs and minimize trauma to child victims. 3 Yo the detriment of the same children that it sought to protect, the Ninth Circuit’s decision unnec- essarily requires parental consent, a warrant, a court order, or exigent circumstances before CPS and law enforcement may cooperatively interview a suspected child-abuse victim. Realistically, imposing those requirements will cause many abused children to remain in harm’s way because the Ninth Circuit's unnecessary and erroneous rule hampers States’ abilities to protect children and prosecute abusers. Because the Ninth Circuit relied on tnaccurate and incomplete information about the realities of child-abuse investigations, it failed to strike the correct balance of the competing public and private interests at stake. First, in weighing parents’ and children’s interests in avoiding the intrusion of such investigations, the court incorrectly inflated” the number of investigations that fail to result in the substantiation of maltreatment. Second, although millions of CPS child-abuse investigations are, in fact, unsubstantiated, the Ninth Circuit overlooked the many difficulties Chat attend intrafamilial child- abuse investigations and contribute to “unsubstanti- ated” outcomes even where maltreatment has oc curred. Cooperative CPS and law enforcement inves- tigations, and more particularly cooperative child interviews, have gained wide acceptance as the best practice because such interviews are the most effec- tive tool available for overcoming the many obstacles to obtaining reliable investigative outcomes while simultaneously reducing system-induced trauma _ to the child. Yet the Ninth Circuit’s ruling here would further curtail the use of this critically important and common practice, leading to even larger numbers of incorrectly unsubstantiated investigative outcomes and protecting fewer children from abuse. To understand the gravity of the States’ interest -and, by extension, the reasonableness of the joint- interview practice absent a warrant, court order, parental consent, or exigent circumstances — one must understand the intrafamilial abuse dynamics that impede child-abuse investigations before any added layer of consiitutional protections even comes into play. By their nature, CPS investigations typical- ly involve situations in which the perpetrator is a parent or other family member, and often a member of the child’s household. If, as the Ninth Circuit implies, CPS investigations are therefore to be seen as “storming the castle,” see Greene, 588 F.3d at 1016, then one must also perceive the strength of the fortress walls behind which abused children await rescue. Comprised of several interlocking monoliths that block the path to reliable detection of intrafamilial abuse, those walls smeld abuse and abusers from discovery because: (1) frequently, there is no witness to the abuse other than the child-victim and no physical evidence; (2) the child often has a close relationship to the perpetrator and may even be dependent on him or her for basic care and necesst- ties; (3) the nonoffending caregiver, if any, Lkewise often has an intimate or other close relationship to the abuser, and these relationships may be further influenced by imbalances of financial, physical, or other forms of power that lead nonoffending care- givers to protect the perpetrator, rather than the child; and (4) child victims are inherently vulnerabie and often reticent to disclose abuse, a phenomenon only compounded by their susceptibility to their abusers’ efforts to prevent such disclosure. The need to overcome these substantial barriers lends great weight to the States’ already compelling interest in utilhzing those investigative methods most likely to create an atmosphere in which children will disclose enough information about their abuse to enable the government to intervene and _ protect them. States have recognized that cooperation among agencies is the best means of advancing that interest while minimizing investigation-related trauma to victims of child abuse. Most States therefore employ some variation of multidisciplinary teams (MDTs) to investigate reports of intrafamilial child abuse. One yoal of MDTs is to reduce the number of interviews to which a child is subjected, minimizing both the risk of suggestibility in the interviewing process and the traumatic effects of the child’s retelling his or her tale of maltreatment to multiple interviewers. Important- ly, MDTs’ widespread use has not as a rule resulted in unreasonably intrusive investigative experiences for children and families who undergo child sexual-abuse investigations. Instead, a recent study revealed that most children and nonoffending caregivers reported fecling satisfied with their investigation experiences. 6 These successful strides in striking the right balance between the public and private interests at stake — achieved over decades by the cumulative efforts of experts in all aspects of child maltreatment are directly threatened by the Ninth Cuircuit’s decision here. Initial child-abuse reports are often hearsay statements that will not support the finding of probable cause necessary to obtain a warrant or court order. Accordingly, requiring investigators to obtain prior judicial authorization before interviewing alleged child-abuse victims would seriously impede their investigations. Coupling that with what ts known about the reticence of many child-abuse victims to disclose abuse absent the use of child- sensitive investigative techniques, the expectation that probable cause could be obtained in an abbrevi ated encounter with the child defies the realities of intrafamilial child-abuse dynamics. Sexually abused children who do not disclose their abuse until adult hood establish that many children already go unpro- tected. Imposing a warrant requirement will only increase their ranks. Requiring parental consent before interviewing a suspected victim will similarly sabotage the compel- ling state interests in protecting children and prose culing perpetrators of child abuse. Abuse-related deaths comprise the leading cause of trauma death in young children, and research establishes that large numbers of, though not all, nonoffending caregivers will fail to protect their children even from known abuse. Consequently, any presumption that parents of allegedly abused children, as a group, wall consent to investigative interviews designed to elicit: infor- mation sufficient to uncover child abuse is a danger- ous fallacy. In no other context would a= court countenance requiring a state agent to obtain a criminal suspect’s advance consent to interview the alleged victim, especially when the victim ts one who is particularly susceptible to the alleged perpetrator’s influence or coerqmon. Yet the Ninth Circuit’s ruling contemplates exactly that. Requiring a demonstration that exigent circum- stances justify interviewing a child at school in the absence of a warrant or parental consent presents similar problems. If exigencies become known to CPS, the child may be taken into a State’s protective custody in proceedings to protect that child. Once the child is in the State’s custody, investigative inter- views may take place under that authority. That is a far greater intrusion into the family than simply interviewing the child. More importantly, children in cases where exigencies are known betore the child is interviewed are not the children whose welfare the Ninth Circuit’s ruling jeopardizes. Instead, it is those children whose circumstances are not sufficiently known and cannot be determined in the absence of an effective investigative interview By contrast, allowing States to effect in-school interviews of children is a reasonable alternative that satisfactorily balances the relative interests involved Children are likely to be available during predictable and reasonable hours at school. More importantly, a) school is a familiar settings to most children, and one likely to be away from both the location and the perpetrator of the suspected mtrafamilial abuse. Applying the reasonableness balancing test that this Court has apphed inp similar circumstance: would adequately protect the relative interests at take and lead to the conclusion that the interview, or “cseyzure,” of SG. conducted here was reasonable and did not run afoul of the Fourth Amendment. Accord miply, this Court should reverse that portion of the Ninth Circuit’s judgment that holds that Petitroners violated the fkourth Amendment. ARGUMENT Requiring a Warrant, Court Order, Parental Consent, or Exigent Circumstances Before Interviewing a Suspected Child-Abuse Victim Is Not Reasonable Under the Fourth Amend- ment Because Such a Requirement Does Not Adequately Protect the Victim. Petitioners have addressed the lepal issues Supporting ther argument that the Ninth Circuit erred in holding that they violated the Fourth Amendment when they interviewed SG. at her schoo! without obtamiung a warrant, court order, or parental consent, and in the absence of exigent circumstances Thus, Amie: States will focus on the difficulties involved in investigating child abuse; the need for MI)'Ts toanvestupate child abuse; and the reasons that 4 requiring prior yudiqal authorization, parental con- sent, or exigent circumstances before allowing a Child-abuse vietim to be interviewed would seriously undermine the States’ ability to detect and prevent Child abuse and thereby harm the very vietims whom the Ninth Circuit wanted to protect. The standard apphed to determine whether interviews of suspected Child-abuse victims comply with Fourth Amendment requirements should recognize the inherent differ- ences ino interviewing children who are victims. of abuse versus those who are being investipated as Suspect: A. The Ninth Circuit Incorrectly Balanced the Competing Interests at Stake in Child-Abuse’ Investigations Because lt Did Not Recognize that Many “Un- substantiated” Child-Abuse Reports Result from the Inherent Difficulties of Substantiating Maltreatment and Not from False Reporting. The Ninth Cireuit identified the competing interests at issue in this case as sometly s “compelling: interest in protecting ats most vulnerable members from abuse within their home” on one hand, and parents’ “exceedingly strony ianterest]s} in directing the upbringing of them children... land| protecting both themselves and their children from the embar- rassment and socal stigmatization attached to child abuse investivations” on the other. Greene, 588 I Sd at 1015-16. The Ninth Cireuit imptred that parents’ 1 Inferest in protecting themselves from potential negative consequences of CPS investigations is “ex cecdingly strong,” in part, because “only about a quarter” of “the millions of investigations conducted hy state and local agencies in Z0O07 ©. . concluded that the children were indeed victims of abuse” fd. at 1015-16. The reader is left to draw the mistaken inference that roughly 75% of those investigations must have needlessly exposed parents and children to “embarrassment and social stigmatization” where the child-abuse allegations investigated were simply false. But the court’s assumption is wrong because it maccurately inflates the uumber of investigations and overlooks the difficulties inherent in mivestiyat- ing intrafamilial child abuse that can result in the failure to substantiate maltreatment. The Ninth Circuit inaccurately states that in that same year, “state and local agencies investigated 432 million reports of child abuse or neglect.” Greene, 588 Sd at JOS Ceting the Child Maltreatment Report for 2007 by the U.S. Departinent of Health and Human Services Administration for Children and Parmuilies)” The court’s statement is inaccurate in two ways. First, it refers to 3.2 million “reports,” when, in fact, the cited Child Maltreatment Report states that CVS agencies received 3.2 million “referrals.” Child Maltreatment Report for 2007, supra, ch. 2. Second, ~ Accessible at: http //www.aetihs pov/programs/cb/pubs/emo 7// chapter2 htm (viewed December 14, 2010) (hereinafter Child Maltreatment Keport for 2007) 1] the Greene ruling states that all 4.2 millon of these were “investigated,” when, in fact, 380% of them were nol ld When CPS ayencies receive a referral, a screen- ing process determines whether the referral meets state criteria for investigation or assessment. /d Only those referrals that meet those criteria become a “report” and reach the investigative or assessment stage. Id. As the Child Maltreatment Report for 2007 plainly states, only 62% of the 3.2 million referrals reeeinved in fiseal year 2007 reached the report-and Investigation stage, meaning that 48% were “screened out.” Id. Accordingly, the Ninth Circuit’s statement that 4.2 milhon “reports” were “investigated,” Greene, 54S Sd at 1015, 1s incorrect. Well over one million of those referrals were never investigated at all. Child haitreatment Report jor 2007, supra, ch. 2 With regard to the other 620 of referrals that were “sereened in” for investigation or assessment in 2007, 61.3% were determined to be “unsubstantiat- ed.” Child Maltreatment Report for 2007, supra, ch. 2 An “unsubstantiated” report means “[ajln invests pation disposition that determines that there was not suffiaent evidence under State law to conclude or suspect that the child was maltreated or at risk of being maltreated.” Id) A “substantiated” report denotes “lajn investigation disposition that concludes that the allegation of maltreatment or risk of 12 tnaltreatment was supported or founded by State law or State pohey.” Jd Although the Child Maltreatment Report for 2007 categorically includes “unsubstantiated” dispositions amony a class of investigations described as having “led to a finding that the children were not victims of maltreatment,” rd., such findings do not necessarily mean that abuse did not occur or that the children were not at risk for maltreatment.’ Certainly, a report right be unsubstantiated because abuse did not occur or no identifiable risk was present. However, because the absence of “sufficient evidence under State law” is the defining feature of an unsubstant: a ated report, barriers to obtaining “sufficrent evidence” of child abuse to justify substantiation may also be responsible. Notably, “children whose cases are determined to be unsubstantiated and children whose cases are substantiated are equally likely to return to the system, regardless of how stringent the criteria used to define rereferral. This trend would not be ‘ “Unfortunately, some authors, referring to the proportion of cases that are not substantiated, imply that an unsubstants. ated case is the equivalent of a deliberate false allegation,” and, “{bJased upon this distortion, —.. have asserted that there is an overwhelming flood of false, malbeously made reports of child maltreatment.” Kathleen Coulborn Faller, Interviewing Children About Sexual Abuse Controversies and Best Practices (2007) at 194-94 (citations omitted) Others “have declared that there ts an atmosphere of hysteria about allegations of sexual abuse | and have compared this to the Salem watch trials,” but “(jo data ... are provided to support these assertions.” Jd at 194 (citations omitted) is expected if it were simply the case that unsubstanti ated cases were false.” Tisha Ro Wiley, Legal and Social Service Responses to Child Sexual Abuse: A Primer and Discussion of Relevant Research, 18 Journal of Child Sexual Abuse 267, 282 (2009) Coitinys Brett Drake, Melissa Johnson-Reid, Ineke Way, and Sulki Chung, Substantiation and Recidivism, 8 Child Maltreatment 248 (2003); Brett: Drake, Unraveling “Unsubstantiated,” 1 Child Maltreatment 261 (1996)): see also Patricia Kohl, Melissa Johnson-Reid, and Brett Drake, Time to Leave Substantiation Behind: Findings from a National Probability Study, 14 Chald Maltreatment 17 (finding risk of recidivism similar regardless of substantiation status of the index Investigation) An unknown proportion of “unsubstantiated” investigations are therefore “false negative” outcomes (meaning that maltreatment occurred but went undetected). Many of these false negative CPS inves- tigative outcomes result from the facet that chuld- abuse investigations, by nature, present a minefield of intrinsic obstacles that CPS investigators (with or without the participation of law enforcement) must overcome, notwithstanding any additional layer of Kourth Amendment protections afforded to the abus. ers or their child victims. Because the Ninth Circuit fuuled to understand these complexities, it erred in holding that Petitioners violated the Fourth Amend ment when they interviewed a suspected child-abuse victim without prior judiqial authorization, parental consent, or exigent circumstances. It also failed to 14 recognize the pravity of the States’ interest in ensur- my that their investigative methods specifically, child interviews — are as likely as possible to suceeed in both unearthing child abuse and preventing the infliction of investiyation-related trauma on the abused children that States most need to protect hirst among the dynamics involved, “|tlhere are typically no witnesses to the abuse other than the child victim... .” Jennifer M. Collins, Lady Madonna, Children at Your Feet: The Criminal Justice Systenis Romanticization of the Parent-Child Relationship, 93 Jowa LL. Rev. 131, 151 (2007). Likewise, in child sexual abuse cases, “physical evidence ts often non- existent or inconclusive.” Wiley, supra, at 275. For these reasons, “lalnterviewing child victims is) a crucial aspect of investizations. .. .” Id Second, the child often has a close relatsonship to his or her abuser, as does the co-offending or nonoffending parent in many cases. According to the Child Maltreatment Report for 2008, 81.2% of the victims were maltreated by a parent” Stepparents inflicted the abuse in 4.4% of the cases, parents’ unmarricd partners inflicted the abuse in another * See http//Awww.acl hhs pov/proprams/ch/pubs/cm0s tipures 6 him (igure $-6, Vietams by Perpetrator Kelationship, 2005) (viewed December 14, 2010), see also http /www act hhs pov/ proprams/cb/pubs/em0W chapters htm (reflecting that appross mately 49% of the victums were maltreated by their mother, 18% hy their father, and 18% by both parents) (viewed December 14, 2010) lo 44% of the cases, and other relatives inflicted the abuse in 6.5% of the cases.” It is therefore likely that many of the perpetrators also lived in the child's household) Like other forms of maltreatment in CPS cases, “[cJhild sexual abuse remains, in the over- whelming majority of cases, a crime perpetrated by members of the child’s family and circle of trust.” Ruby Andrew, Child Sexual Abuse and the State Applying Critical Outsider Methodologies to Legisla- tive Policymaking, 89 ULC. Davis L. Rev. 1851, 18535 (2006) Third, not only are child sexual abusers likely to be close to the child, but they “may have engaged in a range of strategies to prevent children from disclosing sexual abuse.” Faller, supra note 4, at 175. In other words, abuser: most often the child’s parent or parents, who have ready access to the child — may actively foster the potential for false negative tnvest- gation oulcomes sy contrast, professionals who interview children about sexual abuse “are usually strangers to the children they interview,” and wall often employ an interview protocol designed to avoid “false-positives” (eg., asking open-ended questions to counter any sugyestibility of the chuld). fd. linally and consequently, intrafamilial relationship dynamics profoundly, and negatively, affect the lkeh- hood that CPS investigations will discover “suffierent * See http /iwww. act hhs pov/progranms/ch/pubsvemod/chapters htm (viewed December 14, 2010) 1G evidence” of child abuse to allow for substantiation Virtually by definition, CPS investigations most often involve the child's parents or parent figures. But research suggests that the likelihood of a child dis- closing abuse drops considerably when the abuser is a parent figure or when a nonoffending parent is un- supportive of the child. See Faller, supra note 4, at 189. Faller’s comprehensive review of research on child sexual-abuse interviews “supports a conclusion that there are substantial numbers of false negatives or disclosure failures in cases of actual sexual abuse,” particularly in “cases of children abused by someone close to them and cases in which children’s caretakers are unsupportive.” Id. Cases of this nature “seem to result in a very high number of disclosure failures.” Id Notwithstanding traditional legal presumptions about parents’ tendencies to act in their children’s best interests, see Parham vo. d.R., 442 US. 584, 602 (1979) empirical data show that the presence of a supportive or protective caretaker cannot reasonably be presumed in the context of intrafamilial child sexual abuse and, by extension, neither can the likelihood of the child’s disclosure. For ¢xample, in a study of 435 biological, nonoffending mothers of children involved with CPS who were victims of sexual abuse perpetrated by a parent, relative, or houschold or family member, nearly one-third (GO.8% neither beleved nor protected their children. Denise Pintello and Susan Zuravin, lntrafameltal Child Sexual Abuse: Predictors of Postdtsclosure Maternal 17 Beltef and Protective Action, 6 Child Maltreatment 344, 347-48 (2001). In fact, only 41.8% of the mothers belreved their children’s disclosures and took protec tive action. 1d) And the remaining 27.30 of the moth- ers het “ambivalent” reactions, meaning they either beheved that abuse had occurred but did not protect their children or took protective action despite their disbehef. Jd. at 348 In sum, as many as 44.1% of mothers did not take protective action. Jd) at 347-48. Moreover, mothers’ relationships to the abusers influenced the hkelihood that they would belreve and protect their children. More than half of the mothers were in a current sexual relationship with the offend er, id. at 346, but those who were not in such rela Gionships were 4.3 times more likely to beleve and protect their sexually abused children, md. at 348 The chillng effect of a nonoflending parents disbelief or unsupportaveness tends to survive even in the presence of compelling medical evidence of abuse See Lindsay C. Malloy and Thomas D. Lyon, Caregiv er Support and Child Sexual Abuse: Why Does It Matter?, 15 Journal of Child Sexual Abuse (Issue No. 4) 97, 95 (2006) (discussing a study in which children presenting a sexually transmutted disease ino the absence of prior suspicions of abuse failed to disclose at dramatically different rates when children had supportive [37%] versus nonsupportive caregivers I839)) “Many children, if they disclose at all, will disclose to their mothers,” but “|nlonsupportive caregivers ... are unlikely to report the abuse to social services [and] (even supportive caregivers may 18 have reasons not to notify the authorities)” Jd at 99 ‘These so-called “dead-end” disclosures may further reduce, preclude, or delay the likelihood of disclosure fil But perhaps most significantly, even if a caregiy cr reports the abuse, the caregiver’s unsupportive ness nevertheless “may lead the child to fail to disclose the abuse when questioned by CPS. Thus would ltkely prevent substantiation and intervention, because social workers primarily rely on a disclosure from the child to substantiate abuse.” Id. (emphasis added ) The presence of an abusive parent, not surpris- ingly, also correlates with lower disclosure rates among physically and sexually abused children. For example, in a review of more than 26,000 forensic interviews conducted for physical and sexual abuse. almost two thirds of the alleged offenders were parent figures, yet disclosure of abuse occurred in only 20.9% of cases involving parent figures, compared to 89.3% of nonparent cases. See Faller, supra note 4, at 54 Many factors influence maternal beliet or supportiveness following disclosure of sexual abuse, sacluding intimacy, finan- eral dependence, or cohabitation with the offender, the mother’s own history of abuse, the victim's age (younger children are more hkely to be beheved); and the victim’s pender See Ann N Elliot and Comme N. Carnes, Reactions of Nonoffending Parents to Sexual Abuse of Their Child) A Review of the Literature, © Child Maltreatment 314, 317-19 (200)) 19 Given these known barriers to children’s disclo- sure of intratamulial sexual abuse, an inherent meth- odology limitation of the related research (only those cases that come to professional attention can be studied) suggests that countless other abused chil dren go wholly unidentified) Faller, supra mote 4, at 189 “|Tihe findings regarding disclosure failures probably represent an underidentification of the prob lem of children who do not tell.” Jd “Indeed, many people who are abused never disclose their abuse or only do so as adults.” Wiley, supra, at 275 (citations omitted). “Children may also blame themselves or feel guilty for their abuse.” /d (citations omitted). Even for many children who do tell, “disclosure is a process, Which may involve mitial denial of abuse and later retraction.” Faller, supra note 4, at 1&9 Against these many hurdles, it is often “the responsibility of child welfare professionals to obtain children’s stomes through forensic interviewing.” Wiley, supra, at 275. What this means, of course, ts that the children most likely in need of CPS interven tion — that is, children who are abused by parent figures and whose nonoffending parents, if any, are unsupportive or not protective — may very well be those least likely to disclose their abuse to anyone, let alone disclose it in a single, brief encounter with a CPS investigator. Such children might very well end up on the rosters of “unsubstantiated” reports — and unprotected children. In one study, as many as 60% of children who made “dead-end” disclosures to a parent 20 reported that the abuse reoccurred Malloy, supra, at LOO Accordingly, States have a compelling interest in “vetting children to disclose enough information about actual abuse to support a successful investiga- tion and protect children.” Wiley, supra, at 277 (cita- tions omitted). Best practices guidelines for doing so vary to a degree, but generally advise that the inter view should take place in a neutral setting and that the interview be phased, allowing sufficient time for rapport building, information gathering, and closure See Faller, supra note 4, at 66-89 (for an overview of Interview structure, protocol, and guidelines), Dan elle Laraque, Amy DeMattia, and Christine Low, Forenste Child Abuse Rvaluation: A Revorew, 73 Mount Sinai Journal of Medicine, 1138, 1142 ©2006). Inter- view structures “are designed to avoid interviewers eliciting false posttives, which appear to be a lesser problem than false negatives.” Faller, supra note 4, at S58. For example, use of rapport building has been shown to increase children’s accuracy in event recol- lection. Jd. at 72 Child interviews have come to be widely recog nized as “the most viable and valuable source of information about the likelihood of sexual abuse.” /d at 35. Contrary to fears that families experience these investigations as soqally sttymatizing or embarrass ing, Greene, SSS F3d at 1016, a recent study of nonoflending caregiver and youth experiences with child sexual abuse investigations found that both groups were mostly satisfied with ther experiences 21 during the investigative process. See Lisa M. Jones, Kathryn EF. Atoro, and Wendy A\ Walsh, Nono/fendins Caregiver and Youth Expertences urith Child Sexual Abuse Investigations, 25 Journal of Interpersonal Violence 291 (2010). In fact, the chief complarnt among nonoflending caregivers Was “the teeling that compared to what they had expected, cases were mot being pursued effectively or vigorously enough by investivators.” dd. at SO7 Cemphasis added). Such findings hardly comport with the motion that govern ment widely engages in unreasonable investigative practices in this context In sum, States have an imperative interest: in ensuring their ability both to interview children whom they reasonably suspect are victims of abuse and to conduct those interviews im a@ manner that maximizes the likelihood of “actual abuse” disclo sures, While minimizing investigation-related trauma and preventing false accusations. Cooperative, ot! multidisciplinary, investigations are the best avails ble means to that end B. The States Have a Compelling Interest in Using Multidisciplinary Teams to Investigate Child-Abuse Reports to Minimize Further Trauma to Victims and Maximize the Reliability of Inves- tigation Outcomes. States have recognized that the best way to achieve safety for children and to minimize trauma to child victims is to require the state agencies charged with gaveslipating and prosecuting child abuse to cooperate. Child-abuse investigations necessarily implicate law enforcement issues.” Moreover, they are inherently difficult for the children and the famihes involved. Many States therefore encourage or require cooperation between child-welfare agencies and law enforcement departments because as the Ninth Curcuit acknowledged, “\ilt may well be that fostering coordination and collaboration between caseworkers and law enforcement officers is an effective way both to protect children and to arrest and prosecute child abusers — each, of course, povernmental activity of the highest importance.” Greene, 586 BF.Sd at 1029. Indeed, “|sjome of the measures which seem to have the preatest impact on lowering instances of child sexual abuse are yoint protocols with law enforcement and forensie evaluations — teams with individuals from various fields... 2” Janda Spears, “The Role of the Child Welfare Leayue of America,” in Preventing Child Sexual Abuse: A Nattonal Resource Directory and Handbook C2005) Nevertheless, the Ninth Circuit: found that law cnforcement’s direct involvement in the Greene inves liyation necessitated the appheation of ““the peneral law of search warrants’” Greene, 588 FS8d at JOGO (quoting Calabretta, 189 IeSd at &14). It did so even theugh the law enforcement officer merely observed “AL filly States have laws eriuminalizing child abuse. See tref of Amie States in Support of Petition for Certiorarnt Cstates: Cart) Amuser Brief), od) 2:3 Camreta’s interview of SG. while simultaneously chnyapiny in an ongoing investigation into criminal charges apainst S.G.’s father. See ad. at 1017. What the Ninth Cireuit failed to recognize, however, is that state agencies for protecting children and for prose culing crimes against children are often required to collaborate under state law and under best-practices principles in both the social work and the law en- forcement fields. Bepinning with the passage of the Child Abuse Prevention and Treatment Act (CAPTA) in 1974, Pub. L. No. 93-247, &% Stat. 4 (Jan. 41, 1974) (eodified as amended at 42 U.S.C. &§ 5101 to 5119¢), the federal povernment has demonstrated an interest in improyv- my Child-abuse prevention efforts, specifically by “creating and improving the use of |MDT} and inter ayeney protocols to enhance investigations,” 42 U.S.C. { 5J0Galan 2A. States cligible for federal grants to support the development of these MDTs may lose those funds af they are unable to continue using information that was collaboratively collected in cases in Which there was law enforcement involvement. See 42 U.S.C. § 5106a(b 2) A)Og) (conditioning cligibility for funding under CAPTA on a State’s submission of a plan that assures that a state law or program relat- my to child abuse and neglect includes “the coopera- lion of State law enforcement officials, courts of competent jurisdiction, and appropriate State agen aes providing human services in the investigation, assessment, prosecuuon, and treatment of child abuse or neyvlect”). 24 The U.S. Department of Justice has similarly advocated for the use of MDTs “composed of repre sentatives from health, social service, law enforce ment, and legal service agencies to coordinate the assistance needed to handle cases of child abuse.” US. Dep't of dustice, Attorney General Guidelines for Victim and Witness Assistance (2005) at 50. The purpose of these leams “is to maintain the credibility and reliability of the child’s testimony as well as to monitor the child’s safety and well-being throughout the case.” Id. Multidisciphnary teams “shall be used when it is feasible to do so,” with the goals of min mizing the number of interviews to which the child is subjected “to reduce the risk of supgestibility mn the interviewing process,” to provide services to the child, and to monitor the child’s safety and well-being. /d. And, under federal law, victims of crimes have “[t}he right to be reasonably protected from the accused.” 18 USC. § 3771 (a1). More specifically, child victims of crimes are specifically puaranteed the services of MDITs “when it is feasible to do so” 18 USC. & $509(p)(1). Following CAPTA’s cnactment, the States quickly adopted joint-investigation protocols. Missour: identi- fied several ways that joint-investigation protocols can benefit victims and state agences: reducing the number of interviews for child) victims, avoiding ' Accessible at http //www justice pov/olp/pdi/ay puidelines pal (viewed December 14, 2010) 25 dupheation of efforts, enhancing the quality of evi- dence, smoothing transitions between investigation and intervention, facilitating direct communication between team members, improving team members’ skills by “sharing different: perspectives,” enhancing efficiency, and expediting treatment. Mo. Dep't of Soc. Servs., Child Welfare Manual, sec. 2, ch. 4, subsec. 2 (2008)."" Hawaii just revised its children’s code during the 2010 legislative session, in part to bring it into compliance with CAPTA. See 2010 Haw. Sess. Laws Act 135 (S.B. 2716) (codified at Haw. Rev. Stat. SS 587A-1 through -43); Hearing on S.B. 2716 before Sen. Comm. on Human Servus., 25th Leg., Reg. Sess. (HI 2010) (testimony of the Department of the Attor- ney General 2/4/2010)." That information gleaned from a cooperative investigation between CPS and law enforcement may ultimately be used to pursue criminal charges against an abuser should not negate the collaborative child- interview processes that many state statutes contem plate. For example, Arizona’s Leyislature required Arizona's Department of Economic Security to devel op and implement protocols with law enforcement for * Accessible at http //dss mo gov/ed/nfo/ewmanual/section2/ ch4é/seeZch4subZ htm (viewed December 14, 2010) Notably, Hawaii also allows departmental representatives to “fajaterview the child without the presence or prior approval of the child’s fiamily and temporarily assume protective custody of the child for the purpose of conducting the interview.” Haw. Kev Stat. §& 587A-1102) 26 investigating and = sharing information regarding reports of abuse that implicate certain Arizona crim nal statutes. Ariz. Rev. Stat. §§ &-304(B), -801(2), -SO7T(1S), -8 17. Oklahoma also requires multidisciplinary inves- tivation of allegations of sexual abuse or serious physical abuse “when appropriate and possible,” Okla. Stat. tit. LOA, §& 1-2-105(B)(5), to “ensure coor- dination and cooperation between all agencies in- volved so as to increase the efficiency in handling such cases and to minimize the stress created for the allegedly abused child by the legal and investigatory process,” Okla. Stat. tit. 1OA, § 1-9-102. At least nineteen other States have similar statutes in effect that mandate or encourage collaboration between child welfare departments and law’ enforcement avencies investigating child-abuse allegations.” These federal and state laws and policies are consistent with the recognition by experts im child- abuse investigations that best practices require the use of MDTs. The Children’s Services division of American Humane conducted a comprehensive na- tional study to evaluate the effectiveness of varying levels of cooperative child-abuse investigation prac- tices. See Amy P. Winterfeld and Taina Sakagawa, Investipation Models for Child Abuse and Neplect - * See States’ Cert. Amici brief, nl’; NEE Rev Stat Ann & 169-C.38-a, Vt. Stat. Ann. tit. 54, § 491501). 27 Collaboration with Law Enforcement (2003). The investivation revealed that “[aleross sites, profession. al disciplines, and amony all national representa lives, a joint, collaborative approach to investigating child maltreatment by law enforcement and child protective services is seen as the preferred ap- proach. ...” Id. at 7. The collaborative approach is scen as “a strength of the investigative process” because a. It minimizes the trauma to child-victims by reducing the number of times that they must reiterate their retelling of traumatic events. b. It reduces the trauma and intrusion of the investigative process for non-oflending family members by avoiding the annoyance of having povernment personnel in the houschold on multiple occasions. ce The process itself helps to produce inter- agency collaboration by bringing together personnel from different agencies when the interview is conducted and for pre- and post- interview meetings. do. The development of common interview yuidelines that specify how to conduct a child interview concerning sexual abuse is) a strength, * Accessible at http//www americanhumane orp/assets/docs/ protecting -children/PCanvestipation models child abuse neglect pdt (viewed December 14, 2010). 24 Id. at 13 (internal quotes omitted); see also John Doris, Rosaleen Mazur, and Marney Thomas, Train ing in Child Protective Services: A Commentary on the Amicus Brief of Bruck and Cect, 1 Psychol. Pub. Pol'y & L. 479, 487 (1995) (MDTs have been documented to “reducle| the number of interviews a child must undergo,” “increase| | the number of perpetrators identified and the number of charges pressed,” and increase “the provision of mental health and other services for the sexually abused child.”) (citations omitted); Kee MacFarlane and Jill Waterman, Sexual Abuse of Young Children (1986) at 318 (wherever possible, medical, psychological, and law enforcement evaluations should be coordinated and jointly con ducted in one place in order to prevent duplication and minimize investigatory trauma to children”). “ Many state laws and policies require cooperation and coordination between child welfare workers and law entforce- ment personnel precisely to “avoid a duplication of fact-finding efforts and multiple interviews,” Mion. Stat. Ann. § 626.556, subd. 10Ga), and to “consider the needs of the child victims and _do whatever is necessary to prevent psycholojyacal harm to the child vietim,” Cal. Penal Code § 11164(b) Many States also encouraye that interviews be kept to a minimum or even specifically limit the number of times that state entities may interview a child abuse victim to “minimizel | the trauma to the children and their non-offending family members” during investigations. NY Soc Serv Law § 424-a(b), (2006) “[Blecause abused children’s cesiltence and defense mechanisms are not as strony as those of adults, children are more lkely to suller renewed episodes of PTSD when questioned about the abuse,” making at imperative to limit the situations in which the child ts expected to relive the abuse. William Wesley Patton, Revictunizing (Continued on following page) 2 States have also mandated that anyone responsi- ble for conducting the interviews possess specialized training to maximize the effecuuveness of the inter view while minimizing the trauma to the child.” Consequently, law enforcement personnel may dele gate responsibility for child-victim interviews — to trained social workers, while observing the interviews in order to comply with their mandate to investigate and ultimately prosecute child abuse. See Doris, supra, at 485 (noting that CPS agencies may have necessary investigatory resources that are not availa- ble to law enforcement agencies) Finally, the use of MDTs can he!p eliminate bias in investigating and prosecuting child-abuse and neglect cases due to increased accountability to team members. Tomiko D. Mackey, Child Abuse: Victim’s Race and Prosecution, Is There a Correlation?, 26 Hamline J. Pub. L. & Poly 131, 138 (2006). Child Abuse Victims: An Empirical Rebuttal to the Open Juve nile Dependency Court Reform Movement (2005) at 345 " See States’ Cert Amici Bret, 21-22 30 ©. Requiring a Warrant, Court Order, *arental Consent, or Exigent Circum- stances Before Allowing a Multidisci- plinary ‘Team to Interview a Suspected Chiid-Abuse Victim Undermines the States’ Compelling Interests in Detect- ing and Preventing Child Abuse. 1. Because initial child-abuse reports are often hearsay statements that will not support probable cause, requiring investigators to obtain prior judicial authorization before interviewing alleged = child-abuse victims would seriously impede their investigations. Generally, obtaining a warrant or a court order to authorize an interview of a child requires the entity seeking the warrant or the court order to demon- strate that there is probable cause to believe that the child has been or will be subjected to abuse or neglect See US. Const. amend. IV Demonstrating that probable cause exists is particularly difficult in child- abuse situations because often only the abuser and the victim Know about the offense. See Pennsylvania v. Ritchie, 480 US. 39, 60 (1987) (“Child abuse ts one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim.”); accord Collins, supra, at 151. lor the same reason, investigative agencies are often unable to determine the validity of an initial abuse report until they interview the alleged child victinn. See ROS. v. State, 459 N.W.2d 680, 686 (Minn. 1990) 31 (acknowledging the State’s argument that “|[blecause so often only the child victim and perpetrator have actual specific knowledge of the abuse, ... the as- sessment interview is the best means of assessing the truth or falsity of a report of abuse”). The prohibi- tion against basing probable cause on untested hear say statements, such as those that often form the basis for initial child-abuse investigations, exacer- bates this conundrum. See Wong Sun vo. United States, 371 US. 471, 479-80 (1963) (stating that untested informant information is insufficient to support probable cause) Many States do have some procedure for obtain: ing prior judicial authorization to conduct a search or seizure incident to a child-abuse investigation.” However, States have also recognized the difficulties inherent in such procedures. Alabama’s courts have noted that requiring CPS to obtain a court order before conducting an interview sometimes “impedes the intent of the child abuse statute and in emer- gency instances may render it inoperable and * The interview of the victim is “the most critical factor in establishing whether or oot sexual abuse or exploitation has occurred,” Marcia Herman-Giddens and Thomas & Frottungham, Prepubertal Female Genitalia: Kxamination for Fetdence of Sexual Abuse, 80 Pediatrics 203, 208 (1987), piven that there is physical or laboratory evidence of sexual abuse tn only 10 to 50 percent of eases, Jolin EB Myers, Rurdence in Child Abuse and Neglect Cases, vol 1, at 268 0 243 (2nd ed 199?) ' See States’ Cert Amici Brief, n 4 32 ineffective.” Decatur City Bd. of Educ. vo. Aycock, 562 So. 2d 1331, 1335 (Ala. App. 1990). And when the investigation itself may result in criminal proceed ings or in the removal of the child, establishing the probable cause necessary to obtain a court order may be difficult if the only source of information regarding the abuse or neglect allegations is the “unsworn hearsay” of a child-abuse hotline report. H.R. vo. State Dept of Human Res., 612 So. 2d 477, 479-80 (Ala. Civ. App. 1992). Trying to determine whether probable cause exists to support an application for a warrant or court order based on nothing more than the initial child- abuse hothne report or a brief interview with the child increases the chances for error: either determin ing that there is insufficient evidence to support a warrant resulting in a child being left in a dangerous environment or engaging the court’s resources in addition to CPS and law enforcement to undertake a full-blown investigation when none was necessary. See Caroline T. Trost, Chilling Child Abuse Reporting: Rethinking the CAPTA Amendments, 51 Vand. L. Rev 183, 204 (1998) (“If a social worker must decide on the basis of a bnef phone call or fifteen minute visit whether a report is true, the margin for error is bound to be fairly high.”). Recognizing the problems inherent in obtamiung the information necessary to support further investi gation of child-abuse claims, many of the same States that have a warrant or a court order procedure for child-abuse cases also permit interviews of children 33 without a warrant, a court order, or parental approval - . . al m certain circumstances. 2. Given that the majority of child abusers are parents or other mem- bers of an abused child’s house- hold, requiring parental consent before interviewing a_ suspected victim may sabotage the goals of protecting children and prosecut- ing’ abusers. As discussed above, within the population « abused children, the frequency with which children are abused by a parent or by another household member demonstrates why CPS and law enforcement personnel often have a compelling need to interview suspected abuse victims in a neutral setting away from and without notice to their parents or other household members. See Argument LA, supra. Pre suming that every parent of an abused child will always do what is necessary to protect that child is a dangerous fallacy: [Ojne reason we do not pay sufficient atten- tion to the reality of violence against chail- dren in this country, that we struggle with holding some parents accountable for the harm they do to their children, is because of our tendency lo romanticize the parent-child relationship.... [Wle continue to believe that love, not law, is sufficient to protect our ia Sev States Cert Amici briet, of 34 children, even in situations where love is clearly not enough. In other words, we en- gage in denial; we want to believe that par- ents will do the right thing by their children without the intervention of the criminal jus tice system. Collins, 93 lowa L. Rev. at 134. In cases of maltreatment, the assumption — that parents and families will protect their children from harm — is belied by the frequency of intrafamuilial! sexual abuse and even infanticide.’ Moreover, the “belief that parenting comes naturally is not only wrong, it endangers the welfare of children by pre- Venting necessary interventions.” dudith G. MeMul- len, Privacy, Family Autonomy, and the Maltreated Child, 75 Marq. L. Rev. 569, 592 (1992). “It is appar ent that although parents may be in the best position to assess and act to further their children’s best interests, there are no guarantees they will actually do either” Jd. at 596. “|[DJjepending on their knowledge, experience, social supports, and environ. ment, parents may not be able to accurately assess the best interests of their children.” Jd) Consequently, wiving a parent — whether or not he or she is the * “Very conservative estimates of infanticide rates in the Limited States, for example, range trom about three to thirteen abuse related deaths per day, makiny abuse the leading cause ot trauma death tor young children — over auto accidents, acct dental falls, choking on food, drowniny, and the like” Owea D Jones, Kvolutionary Analysts ino Lan: An Introduction and Applicatum to Child Abuse, 748 NLC. L. Rev. 1117, 1172-73 (1907) 35 abuser — the power to prevent an imterview of a child alleged to be the victim of the abuse further victimiz es the child When, as in the present case, the alleged abuser is a member of the child’s household, requiring a parent’s consent to interview the child provides the parent with an opportunity to deliberately or inad- vertently influence the child’s statements regarding any abuse that may have occurred.” Even a parent whois not the alleged perpetrator will often have an emotional and/or a financial interest in maintaming an intact family unit. For example, there was some suggestion in the present case that removing the allegedly abusive father from the home would have caused the family financial hardship. Sce Greene, S88 I.Sd at 1018. {EjJamiles often are more supportive of the suspect than the child. For example, in summarizing the findings of a survey of GOO prosecutors, the American Bar Association reported that “[wle were told time and time again that nonoffending parents (most often au See Timothy Ross, Francesca Levy, and Robert Llope, Vera Inst. of Justice, Improving Responses to Allegations of Severe Child Abuse Results from the Instant Response Team Program (2004) at 1 The arrival of a child protective worker may cause a perpetrator to destroy evidence, influence responses trom children, and otherwise hinder law entorcement investigations ”) (Accessible at http://www veraorp download ‘files 135 responses % 2 Bro%2 Balleyations’ 2Bot™ 2Behild® 2Babuse pdt (viewed Dx cember 14, 2010) 36 mothers) are likely to pressure children to recant, ciluny cconomic hardships onec the lamuly bread-winner as removed from the home or gatled.” Collins, supra, at 155 Caving parents and other houschold members the opportunity to taint the evidence that only the child vietim can provide frustrates the objectives of both child protective services and law enforcement person. The purpose of an... interview outside the presence of parents, guardians, or other per- sons responsible for the care of the child is so that welfare officials and poliee offieers may obtain an untainted interview. The reasons for anterviewmpy without parental consent when a parentas the alleged abuser are obvi- tls kOS)| 459 N.W2d at 647. Moreover, & “child's feelings of valnerability and pualt and his or her unwolling ness to come forward are particularly acute when the abuseris a parent.” Ritchie, 480 US. at 60 ln the anterest of protecting children and of oblarnioag untamted evidence of abuse, many States have codified the circumstances ander which children suspected of bemng abuse vietiins may be mterviewed without parental pernussin” Repoeding child-abuse See States’ Cort Anu Bret, a & mivestivgations an Indian country, Congress codified that when authorities have “reason to beheve” that an Indian child has been subjected to abuse, investigat- ing agencies “shall be allowed to interview the child without first obtamung the consent of the parent, yuardian, or legal custodian.” 25 USC. §& 52060) 3%. oa child welfare agency can de- termine that an exipvency exists be- fore it interviews a child, it’ can take the child into temporary cus- tody and interview the child. A requirement of demonstrating that exigent circumstances justify mterviewing a child at school in the absence of a warrant or parental consent 1s simi- larly problematic. The Ninth Circuit: concluded that an exigency exists when “the caseworker has ‘reason able cause to beheve that the child is likely to experi- enee serous bodily harm in the time that would be »n<2 ’ ) ‘« required to obtain a warrant Greene, 588 13d at The Nonth Circuit concluded that Camreta’s interview of 4) three days after receipt of the report that she may have been the vielinn of abuse rendered the “exupent circumstances” exception inapplicable Greene, 588 BSd at 1030 0.17 The court fruled to recopvmize, however, the staggennge workloads under which most CPS caseworkers operate. According to the Child Maltreatment Keport for 2008, CVS investasated approximately Lf) gothhom child abuse referrals in fiscal year 2ZOOK, with an averape response time between report and investigation of 45 days See http /www aet bhs pov/programs/eb/pubs/cmOs/ chapterZ htm (viewed December 14, 2010) With current coonomuc Conditions deteriorating rapidly, state resources, for (Continued on following: pape) 4H 1OSO nil? (quoting Rogers vo. County of San Joaquin, 447 BSbd 124%, 1296 (9th Cir. 2007)). Tf the child welfare agent is able to determine before speaking with the child that the child will suffer harm before prior judieial authorization can be obtained, the State either through the child welfare apency or law enforcement — can simply take temporary custody of the child and conduct the interview under the auspi- ces of its custody.” Doing so, however, is a far greater iitrusion into the family than simply interviewing the child. See Darryl H. vo. Coler, 801 F.2d 893, 902 (Il 1986) Crecopnizing that “extensive interrogations” of families or “widespread inquiries of extra-familial sourees” may inflict preater suyyma than the initial intervention) ID. It Is Reasonable to Interview a Sus- pected Child-Abuse Victim at School. By discouraging the use of at-school interviews, the Ninth Cireuit has also affected the States’ ability to effectively and safely interview suspected child- abuse vietims an a familiar, neutral setting Inter- views of children at school are advisable for a numbe of reasons. Furst, children spend a significant amount of time there, making it reasonably certain that an investayating: child abuse and neplect reports are lkewise evaporatiny. ‘The Gime that elapses between a report and an iavestapation may therefore reflect a lack of resources rather than a determination that no exigent circumstances exist i See States’ Cent Amico Bret mn lO 39 investigator can locate the child quickly. See Elena Silva, Education Sector Reports, On the Clock: Re thinkinp the Way Schools Use Time (2007) at 2 (noting that children spend on average 6.5 hours per day at school for 180 days out of the year)’ Second, the child’s school hours wall often correspond to the working hours for many mandatory reporters and CPS and law enforcement investigators. Third, a child's abuser as not hkely to be present at the sehool, See Argument LA, supra (noting that most abusers are parents or other housetold members), see also Charol Shakeshaft, “lducator Sexual Abuse,” /lofstra Horizons (Spring 2003) at 11 (noting that only a “small percentage” of educators abuse children). An in school interview therefore takes place away trom the site of the abuse and outside the perpetrator’s presence. hinally, and most importantly, a sehool as a fanuhar environment at which the child as likely to feel safe and more relaxed than at a police station or CPS offiee. The need for a safe environment in which to disclose abuse is “erttically important to abused children who have lost a sense of control over their world and who have internalized the betrayal, power lessness and stigma often associated with mappro priately disclosed child abuse.” Patton supra note 14, at $15. States have also recognized the importance of “ Accessible at http Awww educationsector orp/sites/defaull/ files/pubhications/OntheClock pdf (viewed December 14, 2010) 40) interviewing children in a safe place by explicitly authorizing interviewing children at school. See, e.g., 44% Op Att’y Gen. &4 (Ariz. 1988) (“In some cases CPS cannot adequately investigate and determine wheth- er custody of a child is necessary without obtaming information from the child, preferably in a neutral apd non-threatening environment such as a school”); see also Cal. Penal Code § 11174.3, NH. Rev. Stat. Ann. § 169-€:38, TV. ND. Cent. Code Ann. §§ 50-25.1- O5(2)(c), -05.05; Okla. Stat. tit. LOA, & 1-2-105(18)01); Wash. Rev. Code Ann. § 26.44.030012)(a); 89 Op. Att'y Gen 49 (Utah 1990); see also Mo. Dep't of Soc. Servs., Guidelines for Mandated Reporters of Child Abuse and Neplect at 26 7 © Accessible at http //www.dss mo pov/ed/pdf/puidelines can reports pdf (viewed December 14, 2010) Al CONCLUSION For the forepoings reasons, this Court) should reverse the portion of the Ninth Circuit's judgment that holds Amendment Petitioners violated the Fourth Ternky GOopbpAkp ARIZONA ATTORNEY GENERAL ‘PAULA S. Bicker’ (Hike COUNSEL, Civit. APPEALS ‘Counsel of Record KATHLEEN P. SWEENEY DAWN R. WILLIAMS Micienie Ro NIMMO ASSISTANT ATTOKNEYS GENEKAL Counsel for the State of Arizona [Other Counsel Listed On Inside Front Cover] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0596%3A13. Public record. Not legal advice.