Amicus Curiae Brief — Camreta v. Greene

Nos. 09-1454, 09-1478

Sn The

Supreme Court of the United States

———__—___—__ — ¢ —_ ___ __

BOB CAMRETA,

Petitioner.

\

SARAH GREENE, personally and as next

fmend for S G., a minor, and K.G., a minor

Respondent

7

JAMES ALFORD

Deschutes County Deputy Sheriff,

Petitioner

\

SARAH GREENE. personally and as next

frend for S CG, a minor, and KG. a minor

Respondent

——¢

On Writs Of Certiorari To The

t nited States Court Of Appeals

bor The Ninth Circuit

e

BRIEF OF THE CHILDREN’S LAW

SECTION OF THE STATE BAR OF MICHIGAN

AS AMICUS IN SUPPORT OF RESPONDENT

e —

MLIZABETH S. WARNER" JoObt M. LATUSZEK

2464 Spring Arbor Rd SPEAKER LAW FIRM PLLC

Jackson, MI 49203 230 N. Sycamore St.

(517) 787-3560 Lansing, MI 48933

eswarner@aol com (517) 4842-8936

‘Counsel of Record jlatuszek@speakerlaw.com

(im REE LAW HIE PRINTING. CF tr Jf ome e

ORE ALL Conlba i'd: Ah

Page

TABLE OF AUTHORITIES | iv

INTEREST OF AMICUS ...... |

SUMMARY OF ARGUMENT .. 2

ARGUMENT... 7

I. FEDERAL LAW HAS SOME VALUE

TO ASSESSING THE POLICY ARGU-

TABLE OF CONTENTS

MENTS OF THE PARTIES AND THEIR

AMICL CONGRESSIONAL FINDINGS

AND LAWS PROVIDE AN EXPRESSION

OF NATIONAL CHILD WELFARE POL

ICY AND BEST PRACTICES IN CIVIL

AND CRIMINAL INVESTIGATIONS OF

CHILDABUSK AND NEGLECT

A. National Child Protection Policy

Seeks Protection Of Children And

Their Families In Child Abuse In

vestigations

Congress Has Made A Finding

That An Incompetent Sexual

Abuse Investigation Can Harm

Children And The Legal System ....

Federal Law Recognizes The Im

portance Of Enforcing The Civil

Rights Of The Family In A Child

Abuse Investigation

Congress Recommends That The

Non-Ollending Parent Be Included

In The lavestipation

4

10

TABLE OF CONTENTS — Continued

Page

Bb The Child Has No Legal Protector

Besides A Parent Or A Judge During

The Investigative Phase. The Child’s

Right To Counsel Commences Later

With The Filing Of A Court Depend

Ae ere

NO RESOLUTION ON THE CONSTITU

TIONAL ISSUE CAN BE MADE BASED

ON A FEW STATE LAWS ON CHILD

INTERVIEWS. THE INVESTIGATION

LAWS PROVE POLICE ARE USUALLY

NOT WELCOME AT SCHOOL, STATE

JUDGES ARE ALREADY OBLIGATED

BY STATE LAW AND FEDERAL

COURTS TO DECIDE REQUESTS FOR

INVESTIGATION ORDERS. THEREFORE,

THE JUDICIAL BURDEN OBJECTION

A. State Child Abuse Investigation Laws

Are Similar Due To Federal Funding

Incentives. They Are Not Independent

Policy Choices By States Supporting A

Reasonableness Argument ........ saad

Is State Laws Must Yield To The Con

IIE irouvesxcuauecens ele Cad eee

(. Most Interview Laws Do Not Support

The Police Officer’s Presence At A

PEED BOWIE isc csccncenssstuosascrtoneses

16

17

21

TABLE OF CONTENTS — Continued

Page

1). The Juvenile Judiciary Will Not Be

Burdened By A Constitutional Obl

gation To Rule On Requests For In-

vestigation Orders. This Is Already

Part Of Their Duties... 23

lll ALL PARTICIPANTS IN THE CHILD

WELEARE SYSTEM BENEFIT FROM A

COURT DECISION THAT SUPPORTS A

RELIABLE, HUMANE, AND LAWFUL

CHILD INTERVIEW ABOUT ABUSE

QUESTIONABLE INTERVIEWING PRAC

TICKS CREATE AMBIGUITY IN) THE

JUVENILE LEGAL SYSTEM THAT

DOKS NOT FURTHER ITS CHILD

PROTECTION MISSION... ae 27

CONCLUSION... Savetareces ) 33

IV

TABLE OF AUTHORITIES

Page

CASES:

District of Columbia v. Heller, 554 US. 570

SINE vis vad ccd acisers Deen dtaudaghenns Bia ntwecden tiskoucckecteuders ee

Ferguson vo City of Charleston, 532 U.S. 67

SET Pints ttedrcdsimineededacnateders PE ea ae SCPE ES OF eeu

Illinois v. Lidster, 540 U.S. 419 (2004)......0.0..........6, 27

Lorillard Tobacco Co. v. Reilly, 583 U.S. 525

SNE Wisc. sai cscs-dushartnceoctcebalecs Mresooacdbcateauvaen dem eaaacsucbanwan Zi; aa

Monroe v. Pape, 365 U.S. 167 (1960) ........... 22

Prince v. Massachusetts, 8321 US. 158 (1944) .. 27

Saenz v. Roe, 526 U.S. 489 (1999)... e.. 17

Santosky v. Kramer, 455 U.S. 745 (1982)... 2, 22

Stanley v. llinois, 405 US. 645 (1972) a iste, oO

Suter v. Artist M., 503 U.S. 347 (1992)................19, 20

United States v. Stevens, US , 338

A MS Ue BD aren cecssvax.0s1s0deuscidatcuidteelons ay

PREDERAL Cikcurr CASES:

Darryl H. vw. Coler, 801 F.2d 893 (7th Cir 1986) 26

Dubbs v. Head Start, Inc., 8335 F.3d 1194 (10th

i a oh ivnce sdendcagd sh dcpksernsshocetatoventesiosediaeutubas 26

Good v. Dauphin County Social Services for

Children & Youth, 891 F2d 1087 (8d Cir

SIE dui chevcz as Apcenudedtas wakeeskanas uicnd cette sind innvuseoaenl 25

TABLE OF AUTHORITIES — Continued

Page

Gireene vo Camreta, 588 FoSd 1011 (9th Cir.

8 ee so koe LST Bae 2. a.

Roe vo. Texas Dept of Protective & Regulatory

Services, 299 F.2d 395 (5th Cir. 2002) ......0.0........... 25

Tennenbaum ovo. Williams, 193 F.2d 582 (2d Cir.

Sooo) ....... sAedreaibanteiade Gesnceniasciscan sdianasiaiaa’ siadaalaneneesa 2D

Wallts vo. Spencer, 202 2d 1126 (9th Cir. 2000)... 26

KepeKaAL Distrier Cournr CASES:

O'Donnell vo. Brown, 335 ¥. Supp. 2d 7&7 (WD.

ty: Ra ED sen kat oate yeuaueeccasthadesteeasenuceeds 16

Walsh vo Erie County Department of Job &

Family Serowes, 240 F Supp. 2d 731 (NLD.

PU Ison << vussac nuevas ceacesceeviceveickwain cis SUMMER TAesaeeus 17

STATE CASES:

HR wv Alabama Dept of Haman Resources,

612 So.2d 477 (Ala. App. 1992)...0..00000000...... Seadvada sume

State vo. Weaver, 964 P. 2d 713 (Mont. 1998) ....-...... 30

CONSTITUTIONS, STATUTES AND REGULATIONS:

cee Te i i fh -

Een, RN. GUNNING WAP occ sexs excuscacenecisaonkxceserceciins passim

Vi

TABLE OF AUTHORITIES — Continued

Page

FEDERAL STATUTES:

42, U.S.C. § 5106c(a)(1) (2006), Pub. L.. No. 102-

a Serre yecngsa been pendnaieneeemcvnaeesnanesseees wi a

42 USC. § 5101 (note) (2006), Pub. L. No. 102-

295, tit. 1, § 102(aX7), 106 Stat. 188 (1992

CAPTA amendment) ..................-.--.-.---- scideaatnaeualoel 1]

42 U.S.C. § 510Gal(bM2MA OID)... eee cence eee eeeeeeeee 15

42 U.S.C. § 5106a(b)(2 xix) (2006) .... eee neces 11

Adoption Assistance and Child Welfare Act of

1980, 42 U.S.C. §§ 670 to 676 (2006). ..000 19

Adoption Promotion Act of 2003, Pub. L. No.

108-145, 117 Stat. 1879, 42 U.S.C. § 673b

POD 5 csc vccccciuccsascccescsnstceccsscesasiecasevardesenteisensessssenss 19

Child Abuse Prevention and Treatment Act, 42

LB... BIO OF Gg. .02..00060c0scccsscece 2000s dtcuancasens passim

Child and Family Services Improvement Act

of 2006, Pub. L. No. 190-288, 120 Stat. 1233,

42 U.S.C. §$ G21 ef seq............. eerste ridislde sx dvaseenedncen 19

lostering Connections to Success and Inereas

ing Adoptions Act of 2008, Pub. L. No. 110:

351, 122 Stat. 3949, 42 U.S.C. § 1305 (Supp.

RGD oe icsncesee: Li dacheeineacddimatiaphtesipeseanisdeaiesinuntansersesenss 19

Pub. L. No. 93-247 (Jan. 31, 1974), 68 Stat. 4,

42 USC. §§ 5101 to 5119¢ (2006), amended

and reauthorized, Keeping Children and

lamilies Safe Act of 2003, Pub. L. No. 108-

36, 117 Stat. 795 (June 26, 2003) -.............-...----- %, 15

vil

TABLE OF AUTHORITIES — Continued

Pape

cy RIT a TY ee Satta t cei aedad cats 19

Pub. lL. No. 108-36, 1140b)01 )Gxix), 117 Stat. &10....... ))

Strengthening Abuse and Neglect Courts Act of

2000, Pub. L. No. 106-134, 114 Stat. 1266

(Oct. 17, 2000), 42 U.S.C. § 670 (2006) .......0.......... 19

Victims of Child Abuse Act of 1990, Pub. L. No.

101-647, tit. Il, sub. tit. A, 104 Stat. 4792

(Nov. 29, 1990), 42 U.S.C. §§ 13001 to 13004

(2006)........ icine souks bs aaa sett EL 8,9, 14,15

STATE STATUTES:

Pe Ss BS re Bee CIR iosiinis cides cocsestcdcsdascndacsecceus 24

iden. Cictits B BG Fee Cav ccencisccvecsccsscccsccecoceusccssses 26

Ark. Code Ann. § 12-12-510(b) (2009)...............0.00..... 24

Colo. Rev. Stat. § 19-5-308(3)(b) (West 2005 &

POUND. TOPE isescciesiscvises Sabin abpeneuboeenednedoeines kedeimates 24

16 Del. Code Ann. § 910€a)(1)03) (2003 & Supp.

i eciisteeidsastorsrciniasetn doduatuetiexstswapresntedcctenpercdsceaveden 24

Mla. Stat. Ann. § 39.301(12) (West 2010)................... 24

325 Ill Comp. Stat. 5/7.5 (West 2010) -................ a

lowa Code Ann. § 232.71B.5 (West 2010) .................. 24

eh en RO Oe I ccd wie danbednrsisidesessuawvnebaves y

922 Ky. Adm. Regs. 1:330(S3 ZO) ............0....ccceccsessesees 25

Ky Rev. Stat. Ann. § 620/040(5 a) (Lexis Nexis

PD osivisakscine cusvatcinvanes sunchvesdeceetsseenioeesie spiabonnesyecsetys 2D

Vij)

TABLE OF AUTHORITIES — Continued

Pape

La. Child Code 613(A) (2004 )...............0. 00... ccc ccc ecee cee 25

Minn. Stat. § 626.556(010)(e)-(1) (West 2011)... 25

Neb. Rev. Stat. § 28-713 ............... rivdesecceegwianlnwoik 22

N_H. Rev. Stat. Ann. § 169-C:34(1V) (West 2002

& Supp. 2010)............... bi satel eli Autlesra Wale Latedide slog taaewsbens 25

N_H. Rev. Stat. Ann. § 169-C:38(1V) (West 2002

sic sivitturccsivsns bsecasesbweuneil high nmin ciiice buses 22

BW.Dee. Pett. Aim. BOTS © SB- 0-6-8 occ oicecsccccccecccccccocencs 22

N_Y. Fam. Ct. Act § 1034(2) (2009)........0. 0000 25

N.C. Gen. Stat. § 7B-303 (2009).......0...0.. ccc ccecec cece eee 25

RDPO. BOW FORME. GS QEMIIIOD oon c cee cscccneccvessonsecccssss eieeeets 22

».C. Code 1976, § 63-7-380...................... SAL Sh Ear 22

Utah Code Ann. §& 78A-6-106(1) (2003) 0000000000... 25

MISCELLANEOUS:

Timothy LL. Arcaro, Child Victims of Sexual

Abuse and the Law, 12(3) Mich. Child Wel-

ee a Be I ec draroce du cacuihichens Secunda 3, 28, 29

Mark R. Brown, Rescuing Children from Abu-

sive Parents: The Constitutional Value of Pre

Deprivation Process, 65 Ohio St. L. J. 913

dba Sisainisiranncneniatueticices dattmeaniadessns Seeitaudcs; sasdnces puedion 4

Child Maltreatment 2009, 94 (U.S. Department

of Health & Human Services), available on

line at the Children’s Bureau web site at

SNE oi ciccivenvebadcsscavinsecccesbswsesastesses 16

1x

TABLE OF AUTHORITIES — Continued

Donane L. Coleman, Storming the Castle to

Save the Children: The Tlronic Costs of a

Child Welfare’ Exception to the Fourth

Amendment, 47 Wm. & Mary LL. Rev. 413

I ee ea ee ee ard

Zuzana Murarova & Elizabeth Thornton, Med-

eral Funding for Child Welfare: What You

Should Know, 29(3) ABA Child Law Practice

Fe MND iaitidenivascdanebdscidiismessds peaednansbbdssodtsuainmenta

Vincent J. Palusei, Identifying and Reporting

Child Abuse and Neglect, 1003) Mich. Child

nS a CS... cd ccccesvesussinwasisansteuccensn

Miriam kollin, Frank Vandervort, Ann M.

Haralambie, /kederal Child Welfare Law and

Policy: Understanding the Federal Law and

Funding Process, in Child Welfare Law and

Practice (Marvin Ventrell & Donald N.

Duquette, eds., Bradford Publishing Co., Ist

UNG NE bio Scek ci sictaiimans isi shchacsaslabeabhaesusssctiectgrnabehdas Gemeduncedents

Marvin Ventrell, The History of Child Welfare

Law, in Child Welfare Law and Practice

(Marvin Ventrell & Donald N. lL uquette eds.,

a A oO et aut ereuenert

Hollida Wakefield, “Guidelines in Investigatory

Interviewing of Children: What is the Con

sensus in the Scientific Community?” 24(3)

Amer. J. Forensic Psychol. 57 (2006) ...0............

Page

2

eeeeeee ae

pooea 21

7, 20

INTEREST OF AMICUS'

The Children’s Law Section for the State Bar of

Michigan is comprised of 492 members. Unlike other

groups appearing as amici in this case, the Children’s

Law Section is comprised not only of attorneys who

represent parents, children, and the Department of

Human Services in child protective proceedings, but

membership also includes the juvenile judiciary. The

fact that our members play different roles and enter

at different stages of child protection cases provides a

unique vantage point for assessing the need for

consistent and reliable procedures at the investiga-

tive phase of child protection cases.

The impact ef a rule of Jaw governing how

interviews of suspected victims of child abuse are

conducted will be felt by all of our members who,

despite their different roles in the system, share an

interest in developing a legal landscape that offers

the best outcomes for children and their families

even if they are involved in a CPS investigation.

That interest compels the Children’s Law Section, as

amicus curiae, to highlight the importance of a rule

from this Court that would result in consistent,

humane, and lawful interviews of suspected victims

Counsel of record, Klizabeth Warner, and co-counsel Jods

Latuszek, authored this brief without compensation by the party

or anyone else. The Children’s Law Section of the State Bar of

Michigan paid for the preparation and submission of the brief

For consent to file the bref, counsel releed on the written

blanket consents provided by all the parties to all amici

2

of child abuse. Interviews with those core features are

interviews that will ultimately serve the best interest

of the children at the very heart of CPS investigations

because they produce results that can be used in

court to secure legal results that will protect’ them

from further abuse.

SUMMARY OF ARGUMENT

The protection of children from unsafe homes

and unfit caretakers is the task of public child wel-

fare agencies, the state civil juvenile courts, and

criminal law enforcement. Sadly, a child can be hurt

more than helped by state intervention. Some degree

of victimization of a child by the official response to a

report of abuse or neglect ts inherent in these cases.”

Harm can occur whether the abuse accusation is

true or not. Sometimes the juvenile justice system

separates a child from a safe parent for a variety of

reasons, including a flawed protective services in

vestigation. Without question, that is an intolerable

harm to a child’ For confirmed sexual abuse victims,

Domane lL. Coleman, Storming the Castle to Save the Chil

dren? The tronic Costs of a Child Welfare Exception to the Fourth

Amendment, 47 Wm. & Mary L. Rev. 413, 540 (2005) (“The vio

lence that these official investigations do to the children can be

just as destructive as the private violence they seek to avert.”).

* Santosky vo Kramer, 455 US. 745, 760-761 (1982) (TT Ihe

child and the parents share a vital interest in preventing

erroneous termination of their natural relationship”); Stanley v

Illinois, 405 US. 645, G52 (1972) CUP he State registers no pain

(Continued on following page)

3

the failures of the legal systeia have “frequently

resulted in children being: victimized by the abuse

and then re-victimized by the judicial system through

misguided prosecutorial efforts.” True or not, mis-

treatment or manipulation of a child in an abuse

investigation should be not tolerated by any court,

especially when the investigators violate laws or the

Constitution. Simply put, the rule of law is the best

child protection.

If this court decides it has jurisdiction in Ques-

lion 2, the amicus supports affirming the Ninth

Circuit ruling on Question 1. Amicus supports con-

stitutional protection for the respondent child S.G_,

a mine year old special education student who was

seized, detained, and interviewed by CPS and police

investigators at her school, until she accused her

father of sexually abusing her. The lower court rule

works on a practical and legal level. The exigent

circumstances exception will allow officials to protect

a child from serious harm when time and immediate

danger do not allow the prior involvement of the

juvenile courts. The child interview requirement for

either parental consent, or a court order based on

probable cause, properly align the investigative phase

of a child) protective services case with both the

towards its declared poals when tt separates children from the

custody of fit parents.”)

* Tymothy L. Arcaro, Child Victums of Sexual Abuse and the

law, 1213) Mich. Child Welfare L.Jd. 2, 2 (2009)

4

Constitution and the welfare of a defenseless child.”

The petitioners advocate for essentially unsupervised

discretion for the child welfare workers. The peti-

tioners say a court interview order would burden

them and the court. But the juvemile judiciary is

capable of handling the necessary court orders, as it

does now routinely on other investigation tasks.

The constitutional rules for child protective ser-

vices (CPS) investigations should be considered with

an understanding of the civil juvenile legal system

that governs that investigation and the dependency

case that may follow.” A basic understanding of the

* Judicial review by the warrant process reduces harmful

mistakes for the child and her family. Mark Ro Brown, Rescuing

Children from Abusive Parents: The Constitutional Value of Pre

Deprivation Process, 65 Obio St. L. d. 918, 979 (2004) (Summary

rescues of children without warrants increases the volume of

court cases, but “translates into more mistakes, which mn turn

result in more children being needlessly placed in foster care.”)

* “Dependency court is that part of the yovemile court that

handles child maltreatment cases. A child who has been adjudi

cated maltreated or is under state custody ts often referred to as

a dependent child. Child maltreatment is the general term used

to describe all forms of child abuse and neglect that give rise to

dependency court jurisdiction.” Marvin Ventrell, The flistory of

Child Welfare Law, in Child Welfare Law and Practwe 113-114

(Marvin Ventrell & Donald N. Duquette eds, Ist ed) 2005)

“Dependency” is the most common name tor the child protection

case filed by a public child welfare agency tn a civil court. These

cases po by other names, like abuse and neglect, or child-in-

need-of-aid. ‘This brief refers to the civil court handling depend

ency cases as a “juvenile court,” but the cases may be in a pro

bate, family, surrogacy, or other specialized court. /d at 139

At one time criminal prosecution was the exclusive remedy for

(Continued on following page)

~

evidentiary requirements of dependency cases, and the

‘apabilities of the juvenile judiciary, is important to

assess some of the broad and unsupported arguments

of the petitioners. Because CPS workers appear much

more frequently than police officers in our civil court

system, the focus will be on them in this brief.

Part I identifies the federal laws relevant to these

investigations. Congressional findings and enactments

are the best sources for arguments based on child

welfare policy. The text and context of Congressional

enactments do not support the broad generalizations

and justifications attributed to them by the peti-

tioners and their amici.

Part Il discusses state laws on child interviews at

school and other locations. Reliance on the state laws

does not answer the constitutional question presented

in this case. Numerous state laws that are consistent

in permitting some interviewing practices do not

demonstrate that the petitioners’ tactics were constt-

tutionally reasonable in this instance. Those state

laws simply reflect federal funding requirements for

states to enact these laws. State statutes do not

define or obliterate constitutional rights. Many states

permit CPS investigators to interview children at

school. Very few of them extend that permission to a

Child abuse. Now the dependency court in the last half of the

20th Century has become an “active tribunal to determine

whether a child is abused or neglected, and if so, what disposi

tion is appropriate” for the child’s safety and welfare. Jd at 138

8)

police officer, like Deputy Alford. The petitioners’

judicial burden argument is weakened by the fact

that existing law already requires judges to rule on

requests for investigation or interview orders.

Part IIL explains the harm to the juvenile justice

system from an unregulated child interview like the

one that occurred in this case. This adverse impact on

the civil dependency case of flawed interviewing

practices is a relevant consideration if the Court

apphes the balancing test in /llinots v. Lidster as

proposed by the petitioners.’ All parties to a depend-

ency case benefit from a child interview that is hu-

mane, reliable, and lawful. Anything less leaves a

factual ambiguity that does not further the child

protection goals of the juvenile court.

Illinois vo Lidster, 540 US 419 (2004)

~]

ARGUMENT

I. FEDERAL LAW HAS SOME VALUE TO

ASSESSING THE POLICY ARGUMENTS

OF THE PARTIES AND THEIR AMICI.

CONGRESSIONAL FINDINGS AND LAWS

PROVIDE AN EXPRESSION OF NATION-

AL CHILD WELFARE POLICY AND BEST

PRACTICES IN CIVIL AND CRIMINAL

INVESTIGATIONS OF CHILD ABUSE

AND NEGLECT.

A. National Child Protection Policy Seeks

Protection Of Children And Their Fami-

lies In Child Abuse Investigations.

The petitioners cite federal laws for the proposi

tion that the investigation tactics used in this case

were lawful and appropriate. Yet, the citation ts

unavailing because Congress does not make much

substantive law in this area, and the petitioners are

appropriately not claiming that it has.” Their argu

ment apparently is that their acttons must be reason

able under the Fourth Amendment if Congress has

suggested their practices to the states. Therefore,

"“(Mlost provisions of these statutory schemes are not

intended to and do not establish substantive law that apphies to

individual cases.” Rather, a failure to adopt a federally compl

ant state plan can result in fines agaimst the state. Miriam

Rollin, Frank Vandervort, Ann M. Haralambie, Federal Child

Welfare Law and Policy: Understanding the Federal Law and

Funding Process, wi Child Welfare law and Practwe 151

(Marvin Ventrell & Donald No Duquette, eds , Bradford Publish

ing Co., Ist ed. 2005)

ra)

their actions must be reasonable for Fourth Amend

ment purposes because, in essence, they are tollowing

national child protection policy. For those federal law

based arguments, it is worthwhile to look at the text

of those laws on subjects that both sides have intro-

duced into this discussion. That would be on the

topics of child harm, non-offending parents, famuly

rights, and legal protectors for the child. This law

based analysis, devoid of policy rhetoric, reveals that

federal laws do not coincide as definitively with their

side as petitioners claim.

Congress has made findings, and enacted laws,

relevant to the investigative phase of a child welfare

case.” TWo stand out. One is the Child Abuse, Preven-

tion and Treatment Act of 1974 “CAPTA”). CAPTA

deals with mandatory reporting laws for child mal

treatment and the investigative response to those

reports. ‘The other one is the Victims of Child Abuse

Act of 1990 (““VOCA”)," which suggests best practices

for investigation of child abuse cases.

_

State law remains the primary source of legal rules for

many aspects of the child protection case. The procedural rules

of puvenile court proceedings are local. The adjudicative, or trial,

phase of the case ts governed primarily by state law State

leygishatures make the substantive Law for puvenile court purisdic

tion and the grounds to terminate parental rmyhts

* Pub. L. No 93-247 Wan. SL, 1974), BS Stat 4,42 USC

$§ 5101 to 5119¢ (2006), amended and reauthorized, Keepiny

Children and Famihes Sate Act of 2003, Pub L, No 108-36, 117

Stat. 795 (June 26, 2003)

Pub. L. No 101-647, tit. I], sub. tit A, 104 Stat 4792

(Nov 29, 1990), 42 US.C. §§ 13001 to 138004 (2006)

9

1. Congress Has Made A Finding That

An Incompetent Sexual Abuse In-

vestigation Can Harm Children And

The Legal System.

Conpress has found that the investigation of

Child abuse can harm children. One of the findings of

VOCA an 1990 was that “in such cases, often the

system does not pay sufflaaent attention to the needs

and welfare of the child victim, appgravating the trau

ma that the child vietim has already experienced.”

42US€ & 130014) (2006), Pub. L. No. 101-647, tit.

IH, sub tit A, & 211, 104 Stat. 4792 (Nov. 29. 1990)

In a 1992 amendment to CAPTA’s grant program,

Conpress singled out the special necd to limit’ addi-

Gional tragma caused by investigations in child sexual

abuse and exploitation cases. 42 USC. § 5306e(a)1)

(2006), Pub tL. No 102-95, 6 bag

The petitioners give mixed messapes on where

they stand on this truth that a sexual abuse imivests,

pation can harm a child) Camreta clearly endorses it.

Brief Camreta, IEC The povernment has a compelling

Interest on conducting child abuse sovestigations in a

manner that as least likely to be traumatic for the

child] |") Alford agrees that at least this child was

upsel from her unannounced encounter with the two

Of them dle admits Camreta was “posing difficult

questions of SG in what was likely a confusing and

uncomlortable situation ” Brief Alford 5%. He pives

an account of SGi’s lenpthy mterview by Camreta in

Which for the first hour she deemed any abuse. He

discloses, Camreta thereafter enyayved in persistent

10

questioning of SG. after she insisted that her father’s

touching “all over” was not “bad.” brief Alford, 59.

Twice in his bref Alford refers to the child as “a

frightened girl.” /d. On the other hand, earlier in his

boef he refers to their interview of S.G. as a “modest

measure” to ferret out child abuse, rd. 12, that the

interview in SG’s case “resulted in only a minimal

intrusion into her privacy interests.” Regardless of

where the parties stand, the Congressional finding

that a sexual abuse investigation is not harmless

should be suffiaent response to any petitioner sup

porter that denies or discounts it.

2. Federal Law Recognizes The Impor-

tance Of Enforcing The Civil Rights

Of The Family In A Child Abuse

Investiyation.

Congress has endorsed a more holistic and hu

mane national child welfare policy than the govern

ment mission onmentation of the petitioners. This ts

not a policy that sees this as a child allied with pov-

ernment on the one side and the parents on the other

side. ‘The very federal law petitioners cite most fre

quently, CAPTA, demands states protect the civil

nights of the entire family in a child maltreatment

mnveslivation and that investigators treat the child

well) Government actors who beheve children have

virtually no legal mphts, who ignore the parents, who

beheve legal restrictions are a dangerous nuisance,

and who mistreat a child in the initial mnterview, can

hardly argue they are following federal statutory

requirements.

Congress made a finding that this is our national!

child) welfare policy: “the child) protection system

should) be comprehensive, child-centered, family-

focused, and community based.” This is accomplished

in an environment that fosters “the health, safety,

self-respect, and dignity of the child.” 42 USC. § 5101

(note) (2006), Pub. L. No. 102-295, tit. I, § 102(a)7),

106 Stat. 1&8 (1992 CAPTA amendment). In another

CAPTA provision enacted in 2005 in the Keeping

Children and Families Safe Act,” Congress affirmed

that the child and family bave legal mghts worth

protecting in an abuse investigation. A state cannot

vel CAPTA funding for its child protective services

system unless it provides “training of representatives

of the child protective services system regarding the

legal duties of the representatives, which may consist

of various methods of informing such representatives

of such duties, in order to protect the legal nghts and

safety of children and families from the initial time

of contact during investigation through treatment.”

AZUSC. § 5106a0b 2 )Oxcix) (2006).

Petitioners would have to admit that Congress

contemplated and expressly recognized that a child

has “nyhts” during an abuse investigation when it

decided to require investigators like petitioners to be

~ “Safety” was added in a subsequent amendment

Pub i. No 108 36, § 1140b)01) A)Gdx), 117 Stat #10

12

trained and notified of the existence of those rights.

At a minimum these “legal rights” must include the

Bill of Rights. Despite the clarity in which Congress

articulated the notion that mghts are to be afforded to

the subjects of abuse investigations, petitioners are

extremely dismissive of the constitutional rights of

children, and ignore the rights of their parents

Iynoring the rights of children or Cheir parents during

abuse investigations is contrary to the national policy

expressed by Congress. "hey address only the child’s

Fourth Amendment right to privacy, which in their

view is virtually non-existent due to the child’s age.

Brief Alford, 50-53, Brnef Camreta, Bref 11, 30-31.

They make no mention of the child’s familial right to

have her family undisturbed by the government with-

out’ proof. While Camreta focuses on avoiding par-

ents, Alford is more intent on avoiding judges. Alford

pointedly claims that probable cause and warrants

just pet in the way of their government mission of

protecting children. Brief Alford, 46 (A) warrant

requirement would “frustrate the efforts of state

officials to act quickly to protect the safety of children

where abuse is suspected|.|”), 48 Cimposing a re-

quirement of probable cause would clearly frustrate

the needs of government|.|”). In Deputy Alford’s view,

a state’s adoption of the federal guideline for a rapid

response to an abuse report precludes court orders in

all cases. Brief Alford, 46, 62-63. But at least he its

willing to submit to a reasonable suspicion standard

for initiating a seizure of a child in order to interview

her Id, 47-48 Camreta, on the other hand, says he

is not constrained by any constitutionally based

Ms

standard. Ile invents a “reasonably credible evidence”

standard, which has no legal precedent. Brief Cam.

reta, 62-63. Although federal law recognizes that

children and their families have some rights to pro-

tect them during CPS investigations, Camreta argues

there are no legal restrictions on his work. Armed

with nothing but a report to CPS, “reasonably eredi-

ble evidence”), he can seize a child and interview

her just because he is investigating parental sexual

abuse allegations. Brief Camreta, 12, 13-14, 34. His

interpretation encompasses a per se approach to con-

stitutional standards for conducting interviews: that

his interviews with children are per se constitutional!

based on the subject matter alone. This proposition ts

a 180 degree turn from Congress’s repeated recogni-

tion of “rights” during interviews. Such a per se rule

opens the door to abusive tactics being used on those

who have already suffered abuse.

Despite petitioners’ arguments to the contrary,

actual analysis of congressional policy reveals the

legal positions and attitudes of the petitioners are not

the national child welfare policy established by Con-

press. Instead of disregarding constitutional protec

tions based on subject matter alone, national child

welfare policy actually contemplates protections and

safeguards by recognizing, the “rights” of parties to

child abuse investigations.

14

$3. Congress Recommends That The

Non-Offending Parent Be Included

In The Investigation.

In Camreta’s opinion the investigators can ignore

parents to pet access to their children because all

parents are presumed unfit or uncooperative. Brief

Camreta, 11 “Seeking parental consent is simply not

a safe or viable option.”); 41 (Seeking consent from

either parent could be detrimental to the child.”) By

contrast, Congress recommends incorporating the

non-ollending parent into the investigation process

because this helps the child and the justice system.

In the Victims of Child Abuse Act of 1990, 42

USC. §§ 13001 to 18004 (2006), the participation of

the non-offending parent, whois Mrs. Greene in this

case,’ as encouraged. This is based on a finding

by Congress that at the investigation stage “loo

often the system does not pay sufficient attention to

the needs and welfare of the child victim, agyravat-

ing the trauma that the child victim has already ex

permenced.” 42 U.S.C. § 13001(4) (2006). Another goal

was to “increase the successful prosecution of chitd

abuse offenders” by these child and family centered

best practices. VOCA established discretionary prants

for child advocacy centers, exclusively for physical and

sexual abuse cases, and staffed by multi disciplinary

“ “The term ‘non-offendimy fanuly member’ means a mem

ber of the family of a victim of child abuse other than a member

who has been convicted or accused of committing an act of child

abuse! |" 420 SC. § 138001a08)

Ih

teams. 42 USC. §§ 13001b, 18002. The initial inter-

view of the child can be conducted by well-trained

interviewers in a comfortable setting, 42 USC

§ 138002(bK 2) Counseling for abuse victims and

their families is part of the services. 42 USC

§ 14800 1b(e)(2).B)0C) ‘These centers must also

“provide support for non-offending family members.”

A2 USC. § 18001 b(ay(2), (b2 Cada).

B. The Child Has No Legal Protector

Besides A Parent Or A Judge During

The Investigative Phase. The Child’s

Right To Counsel Commences Later

With The Filing Of A Court Depend-

ency Case.

One shortcoming of federal law has implications

for evaluating the child’s legal protection in a mal

treatment investigation. Juveniles interviewed as

possible victims do not have the same right to counsel

that a juvenile suspect has. S.CG.’s only legal protec

tors al the investigation stage are a parent or a judge

The child does not pet a legal advocate until a de

pendency case is filed) In its original enactment

CAPTA required states to provide a guardian ad litem

(GAL) to the child in every child maltreatment court

case. Pub. L. No. 93-247 § 4(b) 2G). This GAL is not

even required to be an attorney. A later amendment

added that the guardian ad litem “may be an attorney

or a court appointed special advocate” (CASA). 42

USC. § 5106aib(2xAK xt) For unknown reasons,

states are not fully complying with even this minimal

representation by a person who may not be a legal

16

professional. Only about 16% of children get a court

appointed representative like an attorney, GAL, or

CASA volunteer” There is no system in place to

provide representation to the child at the investiga

tive phase of a child protection case in order to stop or

amehorate the trauma of an investigation before the

dependency court case is filed. Consequently, the

implementation of protections and safeguards during

the interview process is an essential component to an

effective interview

I. NO RESOLUTION ON THE CONSTITU-

TIONAL ISSUE CAN BE MADE BASED ON

A FEW STATE LAWS ON CHILD INTER-

VIEWS. THE INVESTIGATION LAWS

PROVE POLICE ARE USUALLY NOT

WELCOME AT SCHOOL. STATE JUDGES

ARE ALREADY OBLIGATED BY STATE

LAW AND FEDERAL COURTS TO DE-

CIDE REQUESTS FOR INVESTIGATION

ORDERS. THEREFORE, THE JUDICIAL

BURDEN OBJECTION FAILS.

This Court should not entertain the state law ex-

cuse in this case. A common defense by social workers

and police in § 1983 cases is to claim their actions

were authorized by state law. The lower federal

courts have not piven it any weight. koe, O'Donnell v.

Child Maltreatment 2009, 9A (US) Department of Hlealth

& tlauman Services), avathable on line at the Children’s Bureau

web site at www childwelfare poy Ooly 32 states reported on

this topic

L/

Brown, 335 & Supp. 2d 787, 801-802 (WD. Mich. 2004)

(“State statutes and regulations cannot be construed

to displace the protections of the Constitution — even

When the statute acts to protect the welfare of chil-

dren.”); Walsh vo Erie County Department of Job &

Family Services, 240 F. Supp. 2d 731, 751 (N.D. Ohio

2003) CLT he defendants contend that Ohio’s statuto

ry framework for learning about and investigating

allegations of child abuse and neglect superseded

their obligations under the Fourth Amendment

State statutes and regulations cannot displace

the protections of the United States Constitution.”)

Neither should this Court. Legislatures have “no af-

firmative power to authorize States to violate” consti

tutional guarantees. Saenz v. Roe, 526 US. 489, 508

(1999).

A. State Child Abuse Investigation Laws

Are Similar Due To Federal Funding

Incentives. They Are Not Independent

Policy Choices By States Supporting

A Reasonableness Claim.

Much in the same way as they use federal law

references, petitioners and their amici cite state CVS

investigation laws as authorizations for their chal

lenped investipation practices. It is true that prompt

and joint investigation obligations are part of many

state Jaws about investigation of child abuse and

neglect reports. Most states also authorze agency

investigators to interview a child at school about the

abuse report. Accordingly, the Ninth Circuit properly

considered these laws as evidence of entanglement

1s

with criminal law enforcement, which triggers the

Fourth Amendment warrant and probable cause pro

cedures under Ferguson v. City of Charleston.” The

petitioners’ citations to many more police entangle

ment laws outside Oregon prove that this is a na

tionwide problem. Any other relevance of these laws

on other Fourth Amendment ts less clear.

Perhaps the petitioners are using these state

investigation laws to demonstrate the reasonableness

of their conduct. The implied constitutional relevance

is that this volume of substantially similar state laws

express independently considered policies that are

reasonable, and as such they render state actor con-

duct pursuant to them constitutional under a Fourth

Amendment reasonableness analysis. Actually, these

state investigation laws are all about money ~ federal

money. Under CAPTA, if the states tail to enact cer

tain federal mandates, they lose massive amounts of

federal funding for their child welfare programs. It

follows then that the state investigation laws resem,

ble each other because they came trom the same

source federal law. ‘The similarities shared by

numerous state interviewing statutes is not mere

coincidence or an expression of independent policy

statements by state legislatures. ‘Therefore, this Court

should not afford any deference or evidentiary value

to them.

Ferguson vo City of Charleston, 532 US 6¢ (2001)

1g

The federal funding impetus underlies the entire

child welfare system today. Until the enactment of

CAPTA in 1974, child welfare law was mostly left to

the states, like other types of family law. But sigmifi-

cant parts of the foster care and adoption systems

have become identical in most states — essentially

federalized — through a series of federal statutes

starting in 1980." Along the way, Congress has been

conducting hearings, making findings on the scope

and response to child maltreatment, ordering studies

of policies and practices, and making significant

policy shifts based on this research. So for over three

decades Congress has been the author and enforcer of

remarkably uniform child welfare policy and practic-

es for the states through its spending power. There

are basically two types of funding: large statewide

For example, there is the Adoption Assistance and Child

Welfare Act of L980, 42 USC. §$§ 670 to 676 (2006). This was the

law construed in Suter vo Artist MU, 508 US. 3847 (1992) After

Suter, Congress amended the statute substantially in the

Adoption and Sate Families Act of 1997 (APSA), Pub LL. No 105

8Y Other federal laws poverning foster children, adoptions, and

system improvements are

Strengthening Abuse and Neglect Courts Act of 2000, Pub

Ll. No. 106 134, 114 Stat. 1266 (Oct 17, 2000), 42 USC § 670

(2006),

Adoption Promotion Act of 2008, Pub Lo No LOS 145, 117

Stat 1879, 42 LI SC. § 673b (2006),

Fostering Connections to Success and Locreasing Adoptions

Act of 2008, Pub L. No 110 351, 1?2 Stat 3949 47 USC

§ 1305 (Supp 2009).

Child and Family Services Improvement Act of 2006, Pub

lL No 190 288, 120 Stat. 1285, 42 USC §$ 62bet seg (amending

Secial Security Act, tit IV, part B)

20

block grants for federally compliant states and small-

er discretionary grants for approved best practice

programs. If a state wants federal funds for CPS.

foster care, and adoptions, the state must replicate a

federal model for case processing.’” That is the same

process as what this Court found when it reviewed

the first major adoption law with this funding model

in Suter v. Artist M., 503 U.S. 347 (1992). Even before

the Adoption Act, Congress was successful in using

CAPTA tunds to create mandatory reporting laws in

all states with substantially similar provisions on

investigating reports.

The Court cannot infer reasonableness, and

therefore constitutionality, of the child’s interview at

school by citing state laws or administrative rules

authorizing the investigation choices of the petition-

ers. Most states now have substantially the same

practices because they have adopted the federal plan,

which can require passing laws on investigation of

child maltreatment reports.” The financial pay-offs to

For an excellent explanation of the incentivized federal

state funding model for child welfare practices, see Miriam

Rotlin, Frank Vandervort & Ann M Haralambie, Federal Child

Welfare Law and Polueys Understanding the Federal Law and

Funding Process, in Child Welfare Law and Practice 143-183

(Marvin Ventrell & Donald No Duquette, eds , Bradtord Publish

my Co, Ist ed 2005)

* “The funding incentives — hundreds of millions of dollars

annually for larger states — are sufficrent so that each state has

determined it is in its interest to take the money When a state

avails itself of the federal financial support, it must comply with

the requirements of the federal law” Jd at 144

21

write federal “suggestions” into state law are huge.

This means that loss or ineligibility for such pay-otts

can be a crippling financial blow to cach state’s child

welfare budget. “Every year, mlhons of federal, state

and local dollars are used to finance child welfare

services. In 2006, the cost for child welfare services

nationwide was at least $25.7 billion. Almost half

of that amount, $12.4 bilhon, was funded by the

federal government.” Zuzana Murarova & Elizabeth

Thornton, Federal Funding for Child Welfare: What

You Should Know, 2913) ABA Child Law Practice 33

(2010), available at www-echildlawyerpractice org. ‘To

fund foster care costs, a state that adopts the tederal

mandates can be reimbursed 50% to 83° of what it

spends. Id. at 33.

RB. State Laws Must Yield To The Consti-

tution.

The state investigation laws are irrelevant to the

resolution of the constitutional issues in thus case,

except as used by the lower court to establish crimua-

nal law enforcement purposes of the jyornt investiga

tion. State laws establishing abuse investigation

procedures must yield to the Constitution, even when

the law promotes child protective purposes The case

of Lorillard Tobacco Co. v. Reilly, 5383 U.S. 525 (2007)

illustrates this point. At issue was a state law re

stricting Cigarette advertising around schools. ‘The

Court agreed that the law advanced an important

public interest to curb underage smoking. Although

this harm to children “poses perhaps the single most

significant threat to public health in the United

States,” the Court held that the First Amendment

trumped this child-focused state law. /d. at 570. When

the federal courts set the minimum constitutional

standards in family matters “they are not diminished

by the fact the state may have specified its own

procedures that it may deem adequate for determin

ing the pre-conditions to adverse action.” Santosky ¢

Kramer, 455 U.S. 745, 755 (1982); see Monroe vo Pape,

365 US. 167, 1838 (1960) (lt is no answer that the

State has a law which if enforced would give reliet.”)

C. Most Interview Laws Do Not Support

The Police Officer’s Presence At A

School Interview.

The amici does not advocate deciding this case on

state law or policy But if the Court considers that

authority, it does not favor Deputy Alford. Most states

have laws allowing representatives of the public child

welfare agency (the Department” or “CPS”) to inter

view a child at school about suspected maltreatment

Kar fewer state laws expressly allow a police invest

gator to do the same. Only seven states, including

Oregon, authorize a law enforcement officer to inter

View a suspected child abuse victim at a school Kan

Stat. Ann. § 38-226; Neb. Rew. Stat. § 258-713; NH

Rev. Stat. Ann. § 16%C 3s, IV (West 2002 & Supp

2010); N.M. Stat. Anm. 1978 § 32-4-4-3; Ore. Rev

Stat. § 419b/045.- SC. Code 1976, § 63-7-380

23

DD. The Juvenile Judiciary Will Not Be

Burdened By A Constitutional Obli-

gation To Rule On Requests For Inves-

tigation Orders. This Is Already Part

Of Their Duties.

The petitioners argue that a warrant require-

ment should not be adopted because tt places a bur-

den on the judiciary. That is a policy argument, not a

legal argument. Petitioners’ proposition equates to a

presumption that imposing additional safeguards is

always burdensome and is thus, improper. As this

Court explained in Stanley v. Illinois, “Procedure by

presumption is always cheaper and easier than

individualized determination.” Stanley v. Illinois, 405

U.S. 645, 655 (1972). When protections of children

and their families are at issue, it is clear that pre-

sumptions are disfavored. Further, the specific policy

debate asserted by petitioners ended when the Consti-

tution was adopted. The Fourth Amendment “reflects

a judgment by the American people that the benefits

of its restrictions on the Government outweigh the

costs.” United States v. Stevens, _— U.S. __, 1380

S.Ct. 1577, 1585 (2010); see District of Columbia v.

Hleller, 554 U.S. 570, 634 (2008) (“A constitutional

guarantee subject to future judges’ assessments of its

usefulness is no constitutional guarantee at all.”).

The juvenile judiciary will not be burdened by an

obligation to rule on requests for interview orders.

Keep in mind that in most cases the order would be

unnecessary due to exigency, parental consent, the

young age of the child, or sufficient other evidence.

24

In the few remaining cases where an order is re-

quired to secure a necessary child’s interview, like a

verbal child in a sexual abuse investigation, juvenile

judges can do their job and rule on order requests

from the agency or police. Many of them are already

doing that with no constitutional command. By

statutes in some states they are already tasked with

deciding investigation disputes by orders, before the

dependency case is filed in most instances.” At least

fourteen states allow the court to issue investigation

orders for agency access to the child.’ For the most

“ This is in addition to the routine rulings on protective

custody or removal orders. As documented in other respondent

amici briefs, eg. Brief of CPS Watch, state law and federa!

circuit’ decisions require these orders. In that process, the

juvenile judges are complying with the warrant and probable

cause requirements imposed by the lower court in this case.

“ Alabama: Ala. Code § 9.301(12) (2009) (best interest plus

refusal); #1. R. v. Alabama Dep't of Human Resources, 612 So.2d

477 (Ala. App. 1992) (probable cause read into statute).

Arkansas: Ark. Code Ann. § 12-12-510(b) (2009) (no stan

dard)

Colorado: Colo. Rev. Stat. § 19-3-308(3\b) (West 2005 &

Supp. 2010) (good cause).

Delaware: 16 Del. Code Ann. § 910(a)(13) (2003 & Supp

2010) (need plus parent unavailable).

Florida: Fla. Stat. Ann. § 39.301(12) (West 2010) (best

interest plus refusal).

Illinois: 825 I. Comp. Stat. 5/7.5 (West 2010) (best interest

plus refusal).

Iowa: lowa Code Ann. § 232.71B.5 (West 2010) (probable

cause)

(Continued on following page)

) 5

part, the investigation access orders in state laws are

issued with low to no legal standards, and far below

probable cause (refusal or report. only, best interest,

good cause, reasonable suspicion). Only four of these

statutes use the constitutional probable cause stand-

ard. But the probable cause standard is used in the

27 states where physical examination orders are

constitutionally mandated by federal appeal courts.~

Kentucky: Ky. Rev. Stat. Ann. § 620/040(5\(a) (Lexis Nexis

2008) (probable cause plus refusal); 922 Ky Adm. Kegs.

13300320).

Loursiwana: La. Child Code 613(A) (2004) (reasonable

suspicion plus refusal).

Minnesota: Minn. Stat. § 626.556(10)(e)-(f) CWest 2011)

(refusal).

New Hampshire: N.H. Rev. Stat. Ann. § 169-C:34(IV) (West

2002 & Supp 2010) (child safety)

New York: N-Y. Fam. Ct. Act § 1034(2) (2009) (report plus

refusal)

North Carolina: N.C. Gen. Stat. § 7B-3038 (2003) (refusal)

(2009).

Utah: Utah Code Ann. § 78A-6-106(1) (2003) (“investigative

subpoenas” with warrant standard).

“ 9d Circuit: Connecticut, New York, Vermont

Tennenbaum v. Williams, 193 F.2d 582, 585 (2d Cir.

1999).

3d Curcuit: Delaware, New Jersey, Pennsylvania

Good v. Dauphin County Social Services for Children

& Youth, 891 F.2d 1087, 1093 (3d Cir. 1989).

5th Curcuit: Louisiana, Mississippi, Texas

Roe v. Texas Dep't of Protective & Regulatory Services,

299 F.2d 395, 407-08 (5th Cir, 2002).

7th Circuit: Illinois, Indiana, Wisconsin

(Continued on following page)

26

There is no evidence that juvenile judges are uniquely

incapable of applying the probable cause standard to

investigation access orders, like the interview order

that should have been sought in the case before S.G.

was seized at school. Indeed, juvenile courts are

already handling orders on protective custody, re-

movals, physical exams in the majority of states, all

of which use the probable cause standard. They can

be the “neutral and detached magistrate” required by

the Fourth Amendment to referee a dispute between

the government and a child with constitutional

rights. Consequently, the suggestion that additional

safeguards impose an unworkable burden on the

juvenile judiciary is unavailing.

Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).

9th Circuit: Alaska, Arizona, California, Ldaho, Ha

watt, Montana, Nevada, Oregon, Washington

Wallis ov. Spencer, 202 F.2d 1126, 1141 (9th Cir. 2000).

10th Circuit: Colorado, Kansas, Oklahoma, New

Mexico, Utah, Wyoming

Dubbs v. Head Start, Inc., 335 F.3d 1194 (10th Cir.

2003)

There is one additional state, Alabama, where exami-

nation orders are required by state law, but on less

than probable cause. Ala. Code § 26-14-7(c) (“cause”

plus refusal)

27

Ht. ALL PARTICIPANTS IN THE CHILD WEL-

FARE SYSTEM BENEFIT FROM A COURT

DECISION THAT SUPPORTS A RELIABLE,

HUMANE, AND LAWFUL CHILD INTER-

VIEW ABOUT ABUSE. QUESTIONABLE

INTERVIEWING PRACTICES CREATE AM-

BIGUITY IN THE JUVENILE LEGAL SYS-

TEM THAT DOES NOT FURTHER ITS

CHILD PROTECTION MISSION.

The Lidster balancing test promoted by the

petitioners includes evaluation of the degree to which

the interview seizure advances the public interest.

Illinois v. Lidster, 540 U.S. 419, 427 (2004). The

petitioners have correctly argued that child protection

in civil and criminal courts is an important and

constitutional public purpose. Prince v. Massachu-

sells, 321 US. 158 (1944). An individual juvenile

dependency case can be undermined when it lacks

sufficient reliable evidence to make good decisions for

a child’s welfare. Unprovable maltreatment is just as

damaging to the child as undetected maltreatment.”

But an unjustified accusation of an innocent parent

also harms the child. “In either case, the failure

to obtain competent and reliable evidence of child

sexual assault has a profound impact on the victim.”

“ The latter is the only harm touted by the petitioners

justifying their request for unregulated access to children. Their

argument falls short. Detection, without proof, will not save a

child. Only a civil or cruninal court can legally separate a child

from an unfit home or an unfit parent. To do that, the court

needs relrable evidence

28

Timothy L. Arcaro, Child Victims of Sexual Abuse and

the Law, 12(3) Mich. Child Welfare L.J. 2, 5 (2009).

Inappropriate child interviewing techniques “may

significantly impact certain aspects of the child’s

account,” which in turn affects “the reliability of the

statements” and “may seriously compromise subse-

quent legal proceedings.” /d.

The important public purpose of child protection

is served only by humane, reliable, and lawful inter-

views of suspected child abuse and neglect victims.”

This principle benefits all parties to the civil

dependency case. Truth seeking and reliability of the

juvenile court’s decisions are undermined by ques-

tionable child interviewing practices. Civil child

protection by state intervention is based on past

harm or future danger. Those determinations must

be based on evidence, not speculation or suspicion.

Clearly, there is an adverse impact on the fact-finding

process in a dependency case when the juvenile court

must contend with an unreliable and unrecorded

child statement. In this case the lack of reliability

was exacerbated where the interview involved a child

who did not report abuse before the interview and

where the allegation was secured in an ambush of a

“ It may be surprising to this Court, but in most dependen-

cy cases a child is not interviewed during the initial investiga-

tion. The child may be too young, traumatized, or uninformed.

Often the child’s input is not necessary because a parent admits

or there is other reliable and sufficient evidence to prove the

case, like adult witnesses who encounter an abusive or neplect-

ful situation

29

special education elementary student at school by two

strange men, one an armed uniformed police officer,

and the other one badgering the student until her

denials turned into accusations of “sexual abuse”

against her father.”

Even without the child’s later recantation,” the

abuse allegation would be difficult to sustain. With

the recantation, the juvenile court is left with am-

biguous and unknowable facts. The lack of a record-

ing of the interview presents an inexcusable and pre-

ventable credibility problem for the juvenile court. A

recording requirement is one best practice on which

all child forensic interview experts agree.”’ The only

witness to Camreta’s interrogation of S.G. was Dep-

uty Alford, a local colleague of the other police agency

in a small town that had arrested her father for

molesting another child. Alford admits he had a tape

recorder in his car, but he did not use it and he

took no notes. The failure of the two investigating

officers to record a child’s initial interview about

abuse “in a controlled situation and absent exigent

circumstances, will be viewed with distrust in the

” “Sexual abuse” is what the petitioners call it. It is difficult

to ascribe that label to an allegation of touching the genital area

through clothing by a sleeping father, in the absence of other

evidence showing sexual intent. Child Victims of Sexual Abuse

and the Law, supra at 3-4.

* See note 29 infra

Hollida Wakefield, “Guidelines in’ Investigatory Inter-

viewing of Children: What is the Consensus in the Scientific

Community?” 24(3) Amer. J. Forensic Psychol. 57 (2006)

30

judicial assessment of the veracity of the child vic-

tims’ statements.” State v. Weaver, 964 P. 2d 713, 723

(Mont. 1998). ‘This ambiguity and lack of reliability

can lead to over-protection of a safe child or under-

protection of a maltreated child, depending on which

direction the doubts lead a particular judge. The bot-

tom line is that all parties to a child welfare case are

better served by a ruling from this Court that sup-

ports reliable, humane, and lawful child interviews.

While the damage to the dependency case for an

unreliable child interview may not occur in all cases,

its correlation to the most serious cases magnifies the

harm from practices like those used on S.G. Although

most of the policy advocacy of the petitioners and

their amici is about child abuse, abuse cases are not

the bulk of the juvenile docket. Child abuse is by far

the smallest part of the dependency court case load.

Child neglect comprises at least 90% of the cases

reported to CPS, substantiated, and filed in court.

When the more infrequent sexual abuse case ts filed,

amicus agrees with petitioners that the child’s state-

ment may be the sole or primary basis for making all

the court decisions, including ordering a temporary to

permanent break-up of the child’s family.” The fact

that the child’s statement is essential in some of these

most serious cases is, by far, the most compelling

There is usually no medical evidence to corroborate or

rule out the sexual abuse, even if there was penetration. Vincent

J. Pahusci, Identifying and Reporting Child Abuse and Neglect,

1013) Mich. Child Welfare L.J. 17, 21-22 (2007).

31

reason for investigators to take care to get it right —

both factually and legally. Judicial involvement could

help, too, in order to provide parameters to improve

reliability of the important first child interview. For

example, these parameters might include securing a

skilled interviewer or conducting the interview in a

humane and comfortable setting for the child. It is

interesting that the petitioners want to cooperate with

each other in an investigation, but they are not in-

terested in cooperating with the juvenile court judge,

who is in the best position to help them get the truth.

The facts of this case reveal just how severely a

dependency case is impacted by faulty and unreliable

interviews of suspected child abuse victims. Petitioners’

investigative methods did not work for them in this

case. They were able to conduct this investigation

without the legal restrictions they oppose in this

Court. Yet all the harms they claim will happen if

the Fourth Amendment legal requirements are

strictly applied occurred anyway — child recantation,”

” The school interview of S.G. happened on February 24,

2003. The record is not clear on the exact date she first told her

mother that she had led about her father abusing her. It had to

have been sometime between February 24 and March 11, 2003,

before the two girls were put in foster care, because little sister

K.G. overheard her sister confessing to their mother that she

lied to Camreta. Greene v. Camreta, 2006 WL 75847 *2 (D. Ore.

Mar. 23, 2006). When K.G. was interviewed at the assessment

center on March 20, she reported the recant conversation.

When S.G. came to the center on March 31, she also told the

“lady” who did the physical exam that her father had not abused

her. Greene v. Camreta, 588 F.3d 1011, 1019 (9th Cir. 2009)-

(Continued on following page)

32

ambiguous and inadequate evidence, “burdening” the

juvenile court with more hearings and orders, loss of

dependency court protection, and an unsuccessful

prosecution. By using parental consent or a court

interview order to create optimal conditions for the

child, the parent or the dependency court judge could

have given the state and the child’s family the best

chance for getting to the truth. Instead, this flawed

CPS and police investigation left the juvenile court

with so much ambiguity that it had to release S.G.

and her sister from protective custody and dismiss

the case. When the criminal case against the father

about molesting S.G. went to trial, it resulted in no

conviction on the charges about S.G.”

An interview where a child is badgered into

accusing a parent of abuse, and then immediately

recants, yields unreliable evidence. Such evidence does

not support the important child protection decisions

Depos. S.G. 137-139 at Dist. Ct. Doc. 53, Ex. C. So the record

shows that S.G. did not recant in order to go home, as the

assessment center surmised. Camreta v Green, at 1019-20

(quoting KIDS Center report: “{Tjhere appears to be a high

likelihood that S.G. may have recanted her statements about

her father touching her privates in an attempt to expedite her

return home.”). She was still living at home when she denied the

abuse the first time.

” Two weeks after S.G.’s school interview, the grand jury

indicted her father on multiple counts of felony sexual abuse

against her and FS., the five-year-old son of a family fnend.

Greene v. Camreta, 2006 WL, 758547 *2 (D. Ore. Mar. 23, 2006).

The jury could not reach a verdict. The case was plea bargained

for a conviction on the boy, and a dismissal on his daughter.

Greene v. Camreta, 588 F.3d 1011, 1020 (9th Cir. 2009).

33

of the juvenile court. It could result in a “hung” judge,

just like the hung jury in Mr. Greene’s criminal trial.

Where the ultimate safety of a child hangs in the

balance, it is of utmost importance to the child protec-

tion bench and bar that interviewing practices and

procedures yield reliable results that aid in securing

the best possible outcomes of protection and perma-

nency for all children.

CONCLUSION

The attorneys who represent, advocate, negoti-

ate, and fight their way through child protection

cases all share this knowledge: good intentions do not

always render good results. Normally, such a proposi-

tion is of little consequence but, in the context of

protecting children from the ravages of child abuse,

bad results could mean physical and emotional trau-

ma, continued abuse, and sadly, even death of a child.

In that regard, professionals who work on child

welfare cases need the best tools possible, along with

good intentions, if they are to achieve good results.

This case presents frightening components that

could cripple the probability of good results (protect-

ing children), including the suggestion that procedur-

al safeguards are not necessary for protection of a

child or the child’s family during an interview of a

suspected abuse victim so long as the subject mat-

ter alone shocks the conscience of the investigator.

Yet, free reign and unchecked authority of investiga-

tors failed in this case because those tactics yielded

34

unreliable results. Consequently, if free reign is the

rule, it will fail again.

National policy on child welfare and current

practices reveal that the best results, protection of

children, are obtained when child interviews are

humane, reliable, and lawful. That involves imple-

menting safeguards before and during a child inter-

view. Safeguards are not additional burdens to the

judiciary, they are additional tools for the child wel-

fare bench and bar. The Children’s Law Section of the

State Bar of Michigan would ask this Court to consid-

er that the burden of prosecuting, defending, and pre-

siding over cases where critical evidence is obtained

through unreliable means is far greater in scope and

complexity than the burden of implementing addi-

tional safeguards that are more likely to result in

reliable evidence. Ultimately, we all share the good

intentions of protecting children with varying ideas of

how to exercise that intent. In the end the child

welfare law, policy, data, and current practice reveal

that the best way to do so is to exercise that intent

while recognizing the rights of children and their

families during the investigative phase of child wel-

fare cases.

Respectfully submitted,

ELIZABETH S. WARNER* Jovi M. LATUSZEK

2464 Spring Arbor Kd. SPEAKER LAW FikM PLLC

Jackson, MI 49203 230 N. Sycamore St.

(517) 787-3560 Lansing, MI 48933

eswarner@aol.com (517) 482-8936

*Counsel of Record jlatuszek@speakerlaw.com