Amicus Curiae Brief — Camreta v. Greene

Nos O98 1454 ANDOU L478

IN Tate

Supreme Canurt of the United States

Bom CAMRETA,

Petitiones

0

SIe tete PRKSONALLY AND AS NEXT PREEND FOR

or, 5G), A MINOR, AND KG. A MINOR.

Respondent

JAMES ALFORD,

Petitioner.

*

SARAH GREENE, PERSONALLY AND AS NEXT EEE FOR

So). A MINOR, AND ALG) A MINOR,

Hespondents

On Writ of Certrorari To The

Urnited States Court of Appeals for the Ninth e

BRIE OF THE FAMILY RESEARCH COUNCIL AND

Tith AMERICAN COALPETPION FOR FATHERS AND

CHILDREN AS AMICLCURIAE

INSUPPORT OF THE RESPONDENTS

(Aten MeCaten Davin AtsTin Ro Nen

Bei AN N Rat Counsel of Record

ALLIANCE DEPENSE Bunt IIe DPPENSD BUNd

„ee 90th Street Street, NW Suite o09

Swottsdale, AZ 8 Washington, 0 20001

6180 000 (VOY) Sob BOO

Dini MAKEN ammockstelhadt ory

5 i \

ATTORNEY AT LAW

6974 Criativess Pourte Wary

West Palo Beach PL 62

(obL ON 10

Counsel for Amtcus Curiae kamily Research Council and

American Coalition for Fathers and Children

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INTEREST OF AAT

TABLE OF CONTENTS

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PARENTS HAVE A KUNDAMEN'PAL,

LIBERTY INTEREST IN ‘THE CUSTODY,

CARE, CONTROL AND MANAGEMENT OF

THEIR CHILDREN UNDER THe

FOURTEENTH AMENDMENT OF THI

UNITED STATES CONSTIPUTION, 22000000... a

PARENTS DO NOP FORKEIT ‘THEDR

FUNDAMENTAL LIBERTY INTERESTS BY

KNROLLING Lien CHILDREN IN

op ge Ree tn

THE NONCONSENSUAL IN'PERROGATION

OF THE CHILD VIOLATED THkE PARENTS’

CONSTITUTIONAL RIGHEP TO PRIVACY,

RIGHT TO DIRECT THE EDUCATION OF

THE CHILD, AND RIGHT TO Dk TERMINE

FAMILIAL ASSOCIATION, .....0.0....... 14

PARENTS’ FUNDAMENTAL IN'TPERES'T IN

THEIR CHILD SUPERSEDES Tike

LIMITED INTEREST OF THE STATE... Li

it PROCESS DUE PARENTS AT THE

INVESTIGATIVE STAGE... 233

lL. Private Interests of Families 3

2. The States Interest....... . 7

3. The Unlimited License Sought by the

State to Interview Children without

Parental Consent or Management Risks

— HN 0 ys cicecvesndedenivatsocs aia 25

A. Depriving Parents of their Fundamental

Liberty Interest in Consenting — to,

Participating in, or Terminating Child

Interviews Invites Risk of Producing

Inaccuracies in Fact-Finding................... 27

„, The Risk of Error in Unchecked

Investigatory Practices is Deterred by

Safeguarding the Parental — Liberty

Interests in the Investigative Phase ......... 28

G The Government's Limited Interest tn

Children is not being Hampered, but

Advanced, by Securing Parental

— ge ee 9565 31

D ĩ—ꝶGr¹MmV! ĩ⅛e ĩ puopienienes 37

111

TABLE OF AUTHORITIES

Federal Cases:

Addington v. Texas,

„ oa vac swe sancitecneie ca dedesbecocl Post vee a)

Calabretta v. Floyd,

189 F.3d 808 (8th Cir. 1999)

Darryl H. v. Coler,

801 F.2d 893 (7th Cir. 1986) 13, 16, 28

Doe v. Heck,

327 F. 3d 492 (7th Cir. 2003)

33 K e,

Dubbs v. Head Start, Ine.

836 F. 8d 1194 Goth Cir. 2003)

67... oloee ian 12, 13, 14, 30, 36

Hel icards vu. Rees,

S83 F. 2d 882 (Goch Cir. 1989) 11

Ferguson v. City of Charleston,

532 U.S. 67 (2001)....... ponte les . „

Franz v. Lytle,

997 F. 2d 784 (Oth Cir, 1998)... 2S: 2): Za: Ze

Good v. Dauphin County Social Services,

891 F. 2d 1087 (rd Cir, 1989) „

1

Griswold v. Connecticut,

BE OID io coven cccccsscadcctcssvexiecrvers han ae ee

Illinois v. Lidster,

nC ·x

In re Gault,

Le ge eT.

Jones v. Hunt,

430 ©. 3a 31221 (10th Vow. 2005)... osc. 13. 14

Lassiter v. Dept. of Social Servs. of Durham C

C

Mathews v. ide.

ccc e

May v. Anderson,

345 U.S. 528 (1959)..... ea take hacudesanee nine Dak eae aioan ee

Meyer v. Nebraska,

e .

Miiranda v. Arizona,

SORES eee),

M. I. B. v. &. L. d.,

S2 8, 15; 23. 31.

Moore v. City of Fast Cleveland,

431 U.S. 494 (1977)...... 2. 8

New dersey vo .I. O.

469 UTS. 325 (1985). „„.

Olmstead v. S.,

277 U.S. 438 (1928)...... JJJJJCCSCTCCCChſTCCTTTCT ans ie tee cca

Parham vo e,,

442 U.S. 584 G979).........2, 6, 7, 17, 18, 19, 23, 32

Pierce v. Society of Sisters,

268 U.S. 510 (1925). eee

Prince v. Massachusetts,

321 US. 158 (1944)

Roe v. Texas Dept. of Protective and Reg. Servs.,

209 F. 3d 395 (5th Cir. 2002).......................18, 31

Santosky v. Kramer,

455 US. 745 (1982)

. 2. 7, 8, 17, 18. 20. 28, . 25, 26, 27, 31. 3:

Skinner v. Oklahoma,

r css sco asdisnnasenccaiagucanctvaacscesaxeameee

Smith v. Organization of Foster Families,

%% . ˙ WWW.. ˙ nce’

Stanley v. Illinors,

405 ULS. 645 (1972)

5. 6, 19, 20, 23, 26, 30, 31, 32, 33, 34

Tenenbaum v. Willtams,

193 F. 38d 581 (2nd Cir, 1999)

2, 23, 29. 38, OF, 36

v1

Tinker v. Des Moines Indep. Comm. Sch. Dist,

393 U.S. 503 (1969 . 1. 12, 35

Troxel v Granville,

5 0 LS. 57 (2000)

. „ . 21, 22. . 26, 27

Van Emrik v. Chemung County

Dept. of Social Services,

911 F. 2d 863 (2nd Cir. 1990)......... .

Vernonia Sch. ist. 47) vo Acton,

7 A ii .

Wallis vo Spencer,

202 F. 8d 1126 (9th Cir. 1999)

E 20, 21, 23, 25. 26, 28, 29. 30, 32, 33

Wisconsin e Yoder,

r 20, VO: 26

State Cases:

Kazerv State,

995 So. 2d 827 (Miss. 2008)....... W N.

Weis v. State.

800 N. N A 209 (Bad. App. 2003). .. 37

Statutes:

Or Rev. Stat. § 419B.020 — : 16

Vil

Other Authorities:

Barbara Shulman, The Supreme Courts

Mandate for Proof Beyond a Preponderance

of the Evidence tn Terminating Parental

Rights, 73 J. Crim. & Criminology 1595

„ III os. cav cs scccddece xonsicnaiwderdadenksreutsssuma 18, 19

Candra Bullock, Comment: Low-Income Parents

Victimized by Child Protective Services, 11

Am. U.Jd. Gender Soc. Pol’y & I., 1023 (20038) ....21

Doriane Lambert Coleman, Storming the Castle:

The Ironic Costs of a Child Welfare Exception

to the Fourth Amendment, 47 Wilham &

Mary I. Rev. 413 (2005) 14, 25, 29, 33

Martin Guggenheim, What's Wrong, with

Children’s Rights (Harvard University Press

, | TT.. ᷣ ͤ ᷣ—:... 18, 19

Paul Chill, Burden of Proof Begone: The

Pernicious Effect of Emergency Removal in

Child Protective Proceedings, 42 Fam. Ct.

ne ee 24

Vivek S. Sankaran, rens Patriae Run Amuck:

The Child Welfare Systems Disregard for the

Rights of Non-Offending Parents, 82 Temple

Law Review 55 (Spring 2009) 19, 33

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INTEREST OF AMICI

Amict are non-profit organizations, with

memberships in various states, that share a common

concern over laws and policies that impact the

family. The Family Research Council (FRC) is a

501003 non-profit organization located in

Washington, D.C., that exists to develop and analyze

governmental policies affecting the family. FRC is

committed to strengthening traditional families in

America and advocates policies promoting that goal.

Therefore, FRC supports an understanding of the

Fourth Amendment that protects parents' rights

regarding their children's interaction with

government agencies. The American Coalition for

Fathers and Children (ACFC) based in Washington,

D. C. is also a non-profit organization that recognizes

the parent and child relationship is essential to our

society and constitutionally protected against

unreasonable government interference. Their

collective work has included policy reports,

education, testimony before governmental bodies,

and litigation.!

LEGAL ARGUMENT

The propriety of child abuse investigations is

inextricably intertwined with one of this nation’s

oldest, most sacred fundamental liberties—the right

Amici, pursuant to the open consent letters filed by the

respective counsel for Petitioners and Respondent, submit this

brief in support of the Respondent, Greene family. In

accordance with Supreme Court Rule 37.6 Amici state that no

attorney from any of the parties participated with, or paid for,

this amicus brief.

INS

of parents in the care, custody, control, and

management of their child, and the right to maintain

family integrity. The Ninth Circuit’s holding was in

part based on the Fourteenth Amendment

fundamental liberty interest of parents. Greene v.

Camreta, 588 F.3d 1011, 1037 (9th Cir. 2009). Even

this Court’s consideration of the matter under the

Fourth Amendment, will undoubtedly implicate the

parents’ procedural and substantive due process

rights under the Fourteenth Amendment. . L. B. v.

S. I.., 519 US. 102, 121 (“due process and equal

protection principles converge’). “What process is

constitutionally due cannot be divorced from the

nature of the ultimate decision that is being made.”

Parham v. J.R., 442 U.S. 584, 608 (1979).

I. PARENTS HAVE A FUNDAMENTAL

LIBERTY INTEREST IN THE CUSTODY,

CARE, CONTROL AND MANAGEMENT OF

THEIR CHILDREN UNDER THE

FOURTEENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION.

“(T]he Constitution protects the sanctity of the

family precisely because the institution of the family

is deeply rooted in this Nation’s history and

tradition.” Moore v. City of East Cleveland, 431 U.S.

494, 503-04 (1977) (plurality opinion). This Court

has long recognized the fundamental right of natural

parents to direct the upbringing of their children,

especially when the state purports to know better.

Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality

opinion); M. L. B. b. S. IL. J., 519 US. 102, 116 (1996);

Santosky v. Kramer, 455 U.S. 745, 753-54 (1982),

Parham b. J.R., 442 U.S. 584, 608 (1979); Prince o.

Massachusetts, 321 U.S. 158, 166 (1944); Pierce v.

Society of Sisters, 268 U.S. 510, 534-35 (1925); Meyer

v. Nebraska, 262 U.S. 390, 399 (1923). Uniformly,

these cases uphold the time honored principle that

parents have a fundamental liberty interest in

maintaining the care, custody, companionship and

management of their children.

ln Meyer, a German schoolteacher challenged his

conviction for illegally teaching a foreign language to

students. Meyer, 262 U.S. at 397. Meyer argued

that the law unreasonably infringed on his liberty

interest protected by the Fourteenth Amendment.

Id. at 399. This Court embraced Meyer's argument,

explaining:

While this Court has not attempted to

define with exactness the liberty thus

guaranteed, the term has received

much consideration and some of the

included things have been definitely

stated. Without doubt, it denotes ... the

right of the individual ... to marry,

establish a home and bring up children

(The teacher's] right to teach and the

right of parents to engage him so to

instruct their children, we think are

within the liberty of the Amendment.

Id. at 399-400. Meyer began the long cascade of

cases specifically rejecting a broad parens patriae

notion that children were held in “common” between

the State and the parent. Id. at 401.

Two years later, in Pierce v. Society of Sisters,

supra, this Court again upheld the wide scope of the

liberty interest provided to parents by the

Fourteenth Amendment when it overturned an

Oregon statute that prohibited parents from

enrolling their children in private school. Pierce, 268

U.S. at 530. Relying on Meyer, this Court held that

the statute:

unreasonably interferes with the liberty

of parents and guardians to direct the

upbringing and education of children

under their control. ... The fundamental

theory of liberty upon Which all

governments in this Union repose

excludes any general power of the state

to standardize its children by forcing

them to accept instruction from public

teachers only. The child is not the mere

creature of the state; those who nurture

him and direct his destiny have the

right, coupled with the high duty, to

recognize and prepare him for

additional obligations.

Id. at 584-35.

This Court again revisited the issue of parental

rights in Prince v. Massachusetts, supra, when a

woman took her niece (over whom she had custody),

to sell religious literature on the streets of Boston.

The woman was convicted for violating a child labor

law. Prince, 321 U.S. at 160-61. Here, this Court

concluded that the state’s interest in prohibiting

child labor outweighed custodial rights, but

cautioned that its “ruling dlid] not extend beyond the

facts the case presentled].”. Id., at 171 (“religious

training and indoctrination of children may be

accomplished in many ways ... [t}hese and all others

except the public proclaiming of religion on the

streets ... remain unaffected by the decision”).

This Court reaffirmed its commitment to the

rights of natural parents in Wisconsin v. Yoder, 406

U.S. 205, 207 (1972), overturning convictions of

Amish parents for removing their children from

school before age sixteen. The state’s interest in

providing universal education had to “yield to ... the

interest of parents in directing the rearing of their

off-spring.” Yoder, 406 U.S. at 213-14. The Yoder

Court noted that the state can override parents only

where “it appears that parental decisions will

jeopardize the health or safety of the child, or have a

potential for significant social burdens.” Id. at 233-

34. “The primary role of parents in the upbringing of

their children is now established beyond debate as

an enduring American tradition.” Id. at 232.

Around the same time, this Court also took up

the issue of parental rights as apphed to an unwed

father in Stanley v. Illinois, 405 U.S. 645 (1972).

Following the death of the mother, Stanley, the

natural father, directed that his children move into

his friend’s home, much to the chagrin of the state,

which sought to make another choice for the

children. Stanley, 405 U.S. at 658.

The private interest here, that of a man

in the children he has sired and raised,

6

undeniably warrants deference and,

absent a powerful countervailing

interest, protection. It is plain that the

interest of a parent in the

companionship, care, custody, and

management of his or her children

“come[s}| to this Court with 2

momentum for respect lacking when

appeal is made to the liberties which

derive merely from shifting economic

arrangements.”

Id. at 651. This Court concluded “that all | | parents

are constitutionally entitled to a hearing on their

fitness before their children are removed from their

custody” and laid the groundwork for the

presumption of parental fitness. Id. at 658.

In Moore v. City of Hast Cleveland, supra, this

Court struck down a housing ordinance’ that

restricted categories of relatives who could live

together as “intrud|ing] on choices concerning family

living arrangements.“ Moore, 431 U.S. at 499

(plurality opinion). The Moore court employed the

principles elucidated in “Yoder, Meyer and Pierce” in

a school setting, and extended them to “households”

where “decisions concerning child rearing” were

“shared with ... other relatives” who take on major

responsibilities for the child. Id. at 503-05.

In Parham v. e, supra, this Court considered

the ability of the state to second guess the decisions

of natural parents to commit their own child to a

mental institution without state approval. This

Court recognized that parents made such difficult

choices based on their own observations and

independent professional recommendations, and that

“|njeither state officials nor federal courts are

equipped to review such parental decisions.”

Parham, 442 U.S. at 604.

{Hjistoncally [the law] has recognized

that natural bonds of affection lead

parents to act in the best interest of

their children. ... The statist notion

that governmental power should

supersede parental authority in all

cases because some parents abuse and

neglect children is repugnant to the

American tradition.

Id. at 602-03 (emphasis in original); see also Smith o.

Organization of Foster Families, 431 U.S. 816, 847,

860 (1977) (differentiating foster families as

“squatters” to the rights enjoyed by natural parents,

who would have a liberty interest” in the “survival”

or an “expectancy” of “continuation” of their family

that is protected under the Fourteenth Amendment).

Finally in 1982, in Santosky b. Kramer, 455 US.

745 (1982), this Court squarely addressed parental!

rights in the context of a state proceeding seeking to

extinguish both a family’s natural and legal

relationship. The Santosky Court held that before a

state could completely and irrevocably sever the

rights of a parent in their natural child, due process

required that the state support its allegations by at

least clear and convincing evidence. New York’s

statutory scheme providing for a “fair preponderance

of the evidence” standard was “inconsistent with due

process” owed to parents and children. Santosky,

455 U.S. at 758. The Court held that the private

interest affected in maintaining family association

was a “commanding” one, and that the “risk of error”

from employing the lower standard of proof was

“substantial” since it distributed a near equal

allocation of risk of error as shared between the

parents and the State. Id. at 761 (“we have no

difficulty finding that the balance of private

interests strongly favors heightened procedural

protections’).

Though the children had been in the state’s care

for three years, and the parents were not ideal, this

Court held that the “fundamental liberty interest of

natural parents in the care, custody and

management of their child” did not “evaporate.” Jd.

at 753. The Court again reiterated that a natural

parent’s “interest [is] far more precious than any

property right.“ Id. at 758-59.

After Santosky, this Court decided that a state

may not condition a right to appeal a termination of

parental rights decree on that parent’s ability to pay

a record preparation fee in M. I. B. U. S. I. I., 519 U.S.

102 (1996). Though much of the M_L.B. opinion was

based on the equal access to courts rationale, this

Court nonetheless reaffirmed that the family

relationship is a protected associational right that is

“sheltered by the Fourteenth Amendment against

the State's unwarranted usurpation, disregard, or

disrespect.” M.. B., 519 US. at 116.

Even within the last decade, this Court has

remained steadfast to the rights of natural parents.

In Troxel v. Granville, 530 U.S. 57 (2000), six

justices coalesced around the parents’ liberty

interest to determine a child’s associations, finding

“breathtakingly broad” a state law that, based on a

“best interest” standard, opened the door to any

third parties seeking legal relationships with

children over the objections of the natural parents.

Troxel, 530 U.S. at 65-68 (plurality opinion), 78

(Souter, J., concurring), 80 (Thomas, J., concurring).

The liberty interest at issue in this

case—the interest of parents in the

care, custody, and control of their

children—is perhaps the oldest of the

fundamental liberty interests

recognized by this Court.

Id. at 65 (plurality opinion), accord at 77 (Souter, J.,

concurring); 80 (Thomas, J., concurring).

The distillation of these cases means that natural

parents have the protected right to direct, control,

care for, and manage their children, including the

right to determine their associations, for what

purpose, for how long, and of what they are

informed. This fundamental liberty is not.

diminished simply because an abuse allegation was

cast, or when children are located away from their

home or parents.

10

II. PARENTS DO NOT FORFEIT THEIR

FUNDAMENTAL LIBERTY INTERESTS BY

ENROLLING THEIR CHILDREN IN

PUBLIC SCHOOL.

The parents’ right to control the education of

their children is fundamental. When schools are

employed to this end, they are entrusted agents of

the parents’ desire to carry out the educational

process. Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646, 654 (1995) (public school children are only

“committed to the temporary custody of the State as

schoolmaster’); Meyer, 262 U.S. at 400 (“it is the

natural duty of the parent to give his children

education suitable to their station in life”); Yoder,

406 U.S. at 213 (the state’s interest in education, i e.,

creating good citizens ... “yield[s] to ... the interest of

parents in directing the rearing of their off-spring”);

Prince, 321 U.S. at 166 (parents have the “primary

function” to prepare children); Troxel, 530 U.S. at 65-

66 (“It is cardinal with us that the custody, care and

nurture of the child reside first in the parents”)

(emphasis added). Thus, the State is merely acting

in loco parentis to fulfill the educational mission,

New Jersey b. T. L. O, 469 U.S. 325, 336 (1985), and in

entrusting children to schools, parents are merely

extending their authority to educate the child, not

giving up their rights or authority over the child.

[A parent] may ... delegate part of his

parental authority, during his life, to the tutor

or schoolmaster of his child; who is then in

loco parentis, and has such a portion of the

power of he parent committed to his charge,

viz. that of restraint and correction, as may be

11

necessary to answer the purposes for which he

is employed.

Vernonia Sch. Dist., 515 U.S. at 655, quoting !

William Blackstone, Blackstone’s Commentaries on

the Laws of England 441 (1769) (emphasis added).

for that reason, schools receive some latitude

and escape exacting constitutional scrutiny when it

comes to “maintaining order and discipline” in the

school because that goal is consonant with the

overall educational mission. 7'L.0., 469 U.S. at 340;

Edwards v. Rees, 883 F.2d 882, 884 (lOth Cir. 1989).

But children do not belong to the State “during

classroom hours” and to parents afterwards. Tinker

v. Des Moines Indep. Comm. Sch. Dist., 693 U.S. 503,

506, 512 (1969). Children are always extensions of

their family. Pierce, 268 U.S. at 534-35.

Petitioners argue that the child's privacy

interests must only be balanced against the State’s

interest in child abuse. (Camreta Brief 15; Alford

Brief 32-33). However, that proposition makes S.G.

(the child in question) a “mere creature of the State,”

by implying that her parents choice for her to attend

public school makes anything fair game. But this

Court has held that its “decision|s}] cannot be taken

as establishing that the State may impose and

enforce any conditions that it chooses upon

attendance at public institutions of learning,

however violative they may be of fundamental

constitutional guarantees.” Tinker, 393 U.S. at 507

n.2.

12

as

Petitioner Alford discounts any affront to the

fundamental liberty interests of S. Ges parents

because he sought “permission” from the school “to

interview S.G.” (Alford Brief 8). But schools cannot

give meaningful consent to an interview. Tinker,

393 U.S. at 511 (“[s]chool officials do not possess

absolute authority over their students”); Doe v. Heck,

327 F.3d 492 (7th Cir. 2003) (school officials cannot

consent for the parents to produce a child). Nor can

passivity or silence form a basis for consent. Dubbs

v. Head Start, Inc, 336 F.3d 1194 (Oth Cir. 2003)

(head start program needed actual parental consent

to do physical examination of children).

Additionally, there is a_ logical disconnect to

treating the school, a state actor, simultaneously, as

a parental surrogate for purposes of consent:

If school authorities are state actors for

purposes of the constitutional

guarantees of freedom of expression

and due process, it is difficult to

understand why they should be deemed

to be exercising parental authority

when conducting searches of their

students.

J. I. O., 469 U.S. at 336. One agency of the

government cannot give consent for the parents to

another state instrumentality. Greene, 588 F.3d at

1030 n.18. “The handing over of a child from a

public school teacher to another State official, then,

is not the equivalent of the consent of the parents.”

Tenenbaum v. Williams, 193 F.3d 581, 594 n.9 (2nd

Cir. 1999).

13

Children also cannot give meaningful consent

because of the legal handicap of minority. “The law’s

concept of the family rests on a presumption that

parents possess what a child lacks in maturity,

experience, and capacity for judgment required for

making life's difficult decisions.” T'roxel, 530 U.S. at

68. Moreover, children would naturally feel

overpowered and are too vulnerable to terminate

encounters with agents of the State. See Jones v.

Hunt, 410 F.3d 1221 (Oth Cir. 2005) (J. L. O. and

Rees cases are distinguished as maintaining school

discipline” cases, and irrelevant to determining if a

seizure has occurred), Doe, 327 F.3d at 510. Parents

are the natural guardians of their children and

speak exclusively for their children. Dubbs, 336 F.3d

at 1207.

Therefore, only a parent can give meaningful

consent to an interview, and that consent must be

knowing and voluntary. Darryl II. v. Coler, 801 F.2d

$93 (7th Cir. 1986) (mother comforting child during

a physical strip search at school is not voluntary

consent); Franz v. Lytle, 997 F.2d 784 (10th Cir.

1993) (misleading parent on nature of the

investigation means no consent); Ferguson v. City of

Charleston, 532 U.S. 67 (2001) (no consent of drug-

addicted mothers for hospital tests that were

disclosed to government); Roe vu. Texas Dept. of

Protective and Reg. Servus., 299 F.3d 395 (5th Cir.

2002) (initial allowance to investigator for home

interview did not extend “consent” to photographing

child’s body).

14

The public school’s reflexive accommodation of

other agents of the state is no substitute for the

consent of a parent.

III. THE NONCONSENSUAL INTERROGATION

OF THE CHILD VIOLATED THE PARENTS’

CONSTITUTIONAL RIGHT TO PRIVACY,

RIGHT TO DIRECT THE EDUCATION OF

THE CHILD, AND RIGHT TO DETERMINE

FAMILIAL ASSOCIATION.

“Privacy interests suffer| |” when government

officials intrude into the life of the family. Jones v.

Hunt, 410 F.3d 1221, 1225 0th Cir. 2005); 7. O.,

469 U.S. at 335. The right of familial privacy

belongs to every member of the family regardless of

location.2 No parent or child is any less a member of

their family when attending school or work, driving

around town, or conducting any other activity

outside the home. The liberty interest of parents in

maintaining the custody, control, care and

management of their children becomes “less secure”

if their privacy interests are eroded simply because

members of their family are temporarily in different

locations. See Griswold v. Connecticut, 381 U.S. 479,

Ihe focus of the [Fourth] Amendment ts | | on the security of

the person, not the identity of the searcher or the purpose of

the search” Dubbs, 336 F.3d at 1206. [The Amendment

focuses on safeguarding persons from unwarranted intrusion

Jones, 410 F.3d at 1225 (citing Dubbs, 336 F.3d at 1205

(“There is no ‘social worker’ exception to the Fourth

Amendment’)), see also Doriane Lambert Coleman, Storming

the Castle: The lronic Costs of a Child Welfare Exception to the

Fourth Amendment, 47 William & Mary L. Rev. 413 (2005).

482-83 (1965) (“[wjithout those peripheral rights the

specific rights would be less secure”).

“An essential aspect of privacy ... is the parent’s

and the child’s interest in the privacy of their

relationship with each other.” Calabretta v. Floyd,

189 F.3d 808, 820 (9th Cir. 1999). The questioning

of a child (on any nonconsensual topic) by a third

party, in and of itself, violates the privacy rights of

both the child and his parents, whether the state

directed inquiry centers around pet cats, or veers off

into a discussion about parental reading choices,

drinking and smoking habits, family history, or

discipline methods.. Doe, 327 F.3d at 504, 510 (going

“to the school for the specific purpose of gathering

information” is a “search’). The home lives of

children do not become a proverbial “open book”

when they attend a public school. “[E])ven where the

chilu is too young to have the same subjective sense

of bodily privacy,” certain actions unquestionably

affect the “legitimate expectations of the parents ...,

protected by the fourteenth amendment, that their

familial relationship will not be subject to

unwarranted state intrusion.” Calabretta, 189 F.3d

at 818. Unreasonably intrusive state action cannot

be justified on the basis of sexual abuse occurring “in

secret” because family life in general occurs in

private, and the right of each family member to

maintain this privacy is constitutionally protected.

An interrogation of the child as to her home life,

if done without parental consent, constitutes a

deprivation of the parents’ fundamental liberty

interest in family association as well. M.L.B., 519

U.S. at 116. Thus, it is a constitutional betrayal to

16

parents who, through their oon constitutional

authority, placed a school in loco parentis, when that

school, without notice or consent, removes their

children from class and places them into a secluded

room with strangers so that the State can explore

allegations. Parents and children maintain their

inextricable and non-circumstantial “expectations of

privacy” in a public school setting, even if a child is

too young to appreciate such a right. Doe, 327 F.3d

at 512; Darryl H., 801 F.2d at 901.

Indeed, schools routinely require written parental

permission for a field trip, and yet, flout parental

prerogatives in handing over someone else’s child to

perfect strangers to have carte blanche in asking

anything the state asserts as important.’ This irony

is especially great where the nonconsensual

conversation implicates the child’s present and

future relationship with his family, and vice-versa.

Parents have an interest in who their child is

talking to, whether malicious strangers, positive role

models, corruptible childhood companions, or child

protective investigators with their own agenda.

Troxel, 530 U.S. at 78 Ca parent’s interest in

Oregon did not require law enforcement or child protective

investigators to notify or seek the consent of parents in

interrogating their child when the underlying incident

occurred, nor have any statutory revisions since then improved

this constitutional deficiency. Compare Or. Rev. Stat. 8

419B.020 (2001) and Or. Rev. Stat. § 419B.020 (2009).

Petitioner Alford admits that it was their policy, .. “regular

practice,” pursuant to “DHS rules and training” to not

necessarily advise parents in conducting school based

interviews (Alford Brief 8).

17

controlling a child’s associates is | | obvious], ... it is

a] choice... not essentially different from the

designation of adults who will influence the child in

school’). Thus, the constitutional offenses resulting

from the kinds of nonconsensual interrogations

involved in the case sub judice are many, going well

beyond the privacy interests of the parents and their

children. Parents are being deprived of their rights

in the management of their child, their right to

participate in the conversation, to comfort and

support the child regarding any emotional trauma

resulting from the interrogation, and to terminate

the conversation if the parent believes that to be in

the best interests of their child.

IV. PARENTS’ FUNDAMENTAL INTEREST IN

THEIR CHILD SUPERSEDES THE

LIMITED INTEREST OF THE STATE.

“The statist notion that governmental power

should supersede parental authority in all cases

because some parents abuse and neglect children is

repugnant to American tradition.“ Parham, 442

U.S. at 603 (emphasis in original). Parents and

children do not have competing interests, and it is

not correct to presume or assume that parents and

children are “adversaries.” Santosky, 455 U.S. at

760 (until the State proves parental unfitness, the

child and his parents share a vital interest in

preventing erroneous termination of their natural

relationship”). Our Constitution treats parents as

natural allies of their children. Parham, 442 U.S. at

602. The Petitioners are guided by the view that

parents are “frequent perpetrators of abuse.” (Alford

Brief 41).

18

Our jurisprudence holds a high regard for the

family inte which a child has been born. Santosky,

455 U.S. at 759, 765-66 (rejecting “balanc|ing]” of the

“the child’s interest in a normal family home against

the parents’ interest in raising the child,“ or

consideration of “whether the child would have a

better home elsewhere”). Our Constitution assumes

that children want to remain with their natural

family. Id. at 766. This Court has never recognized a

separate interest or right that is child-specific, per

se; the only recognized right for children in this

context is the child’s reciprocal right to maintain his

natural family relationship. Parham, 442 U.S. at

603 (not all choices will be “agreeable to a child,” but

that “does not automatically transfer the power to

make that decision from parents to some agency or

officer of the state”); Santosky, 455 U.S. at 765.

Shibboleths urging the government’s 9 “special

interest” in protecting children, or invoking the

altruistic language of “best interest,” or simply

saying that “children have a right to be free from

harm” are legally insufficient criteria for “children’s

rights” and elevating the role of the state into the

lives of families. See Martin Guggenheim, What's

Wrong with Children’s Rights, passim (Harvard

University Press 2005). All human beings have

dignity and the right to be free from harm—t is not

uniquely a children’s right. The Santosky Court's

“refusal to consider the rights of the children [was]

analytically correct, since such consideration would

involve the assumption of unproven facts. .. [T]he

refusal demonstrates this] Court’s commitment, as

a policy matter, to the autonomy of the family unit.”

Barbara Shulman, Ihe Supreme Courts Mandate for

19

Proof Beyond a Preponderance of the Evidence in

Terminating Parental Rights, 73 J. Crim. &

Criminology 1595, 1606 (Winter 1982).

Qur jurisprudence does not see the child in

isolation, but as an extension and ward of his

parents, not the state. Parham, 442 U.S. at 602-03

(parents are presumed to “act in their child’s best

interest”); Pierce, 268 U.S. at 535; Meyer, 262 U.S. at

401. Children are not merely autonomous

individuals needing the cacophony of alternate

voices (e.g., state social services, guardian ad litems,

educators, ete.) contending to speak on their behalf.

Yoder, 406 U.S. at 213; Parham, 442 U.S. at 606

(reyecting childhood by committee approach);

Guggenheim, What’s Wrong with Children’s Rights

95 (e.g., assigning independent counsel for a toddler

to advance the child’s so-called interest is a legal

fiction, as that grown-up lawyer assigned is merely

advancing what that grown-up envisions as best for

the child). Our Constitution rejects the notion that

children receive independent consideration “absent a

finding of neglect or abuse” by their parents.

Parham, 442 U.S. at 604.

The State and the parent do not stand in

equipoise, or have an equal interest in the child.

Vivek S. Sankaran, Parens Patriae Run Amuck: The

Child Welfare System’s Disregard for the Rights of

Non-Offending Parents, 82 Temple Law Review 55

(Spring 2009) (showing a historical rejection of broad

parens patriae doctrine as case law on parental

liberty interest was developed in Meyer, Pierce,

Prince, Yoder). “The State’s interest in caring for .

children is de minimis if [the parent] is shown to be |

20

| fit.” Stanley, 405 U.S. at 657-58 (the State “spites

its own articulated goals” of child protection when it

presumptively and arbitrarily removes children

without a due process hearing). The State’s parens

patriae interest in promoting the welfare of the child

is secondary and triggered only where parents have

been determined unfit. Santosky, 455 U.S. at 767

n.17; cf. In re Gault, 387 U.S. 1, 16, 30 (1967)

(peyoratively describing latin term parens patriae as

a rationalization “to exclude juvemles from the

constitutional schemes” and invite “procedural

arbitrariness’).

The State has no viable interest in children who

are with fit parents. The State only has an interest in

children who are genuinely abused and need

protection, and even then, that interest arises only

after a judicial adjudication of parental unfitness.

The State’s obligation to investigate criminal conduct

is a general welfare concern that extends to all its

citizenry. That the State may not know whether the

child in question ts or is not abused, or encounters

difficulty in determining same, is not a basis for the

violation of fundamental rights of all parents to

discover same.

The fact that the suspected crime may

be hemous—whether it involves

children or adults—does not provide

cause for the state to ignore the rights

of the accused or any other parties.

Otherwise, serious injustices may

result. In cases of alleged child abuse,

governmental failure to abide by

constitutional constraints may have

21

—

deleterious long-term consequences for

the child and ... for the entire family.

Wallis o. Spencer, 202 F.3d 1126, 1130 (9th Cir.

1999). “Fourth Amendment ... governing principles

should not]! vary depending on the court’s

assessment of the gravity of the societal risk

involved.” Good v. Dauphin County Social Services,

891 F.2d 1087, 1094 (3rd Cir. 1989) (citing Mincey v.

Arizona, 437 U.S. 385, 393 (1969)); Franz, 997 F.2d

at 785 (“because of our deep concern for the safety

and well-being of young children that we ... do not

balkanize the Fourth Amendment’).

Here, assuming Petitioners were pursuing the

proper mission“ of investigating suspected child

maltreatment, its interest in the Greene children is

still de minimis because the children were with

presumptively fit parents. Stanley, Santosky, infra.

Here, the Greene parents are presumed fit because

that is how the Constitution treats natural parents

and they retain that presumption because there

never was a judicial finding of abuse or neglect as to

either one. Troxel, 530 U.S. at 68 (“no court has

found, that Granville was an unfit parent, [and t}hat

aspect of the case is important, for there is a

presumption [of parental fitness]”). An anonymous

call is constitutionally insufficient to rebut the

4 Under misguided federal legislation, states have a monetary

incentive to create wards. Candra Bullock, Comment: Low

Income Parents Victiumized by Child Protective Services, 11 Am

UJ. Gender Soc. Pol'y & L. 1023, 1048 (2003) (the Child Abuse

Prevention and Treatment Act (““CAPTA”) “has been criticized

as being the source of ‘huge fundraisers’ for child protective

service agencies.”).

22

presumption of parental fitness; it is quite a leap to

conclude that neither of the Greene parents can any

longer function in their child’s best interest. “Any

apprehension” entertained by the state neither

topples the presumption, nor is it a constitutionally

acceptable standard for the deprivation of liberties,

because concerns are something anyone can have.

(Alford Brief 44: “any apprehension”; Camreta Brief

11, 27: based on “speculation and hearsay”). A

concern-driven interview of a child, bereft of

parental consent, deprives parents of their well-

established fundamental liberty interests, turning

the constitutional presumption due parents on its

head. Troxel, 530 U.S. at 68 (the state’s decision to

force an association onto the mother “applied exactly

the opposite presumption” from “fit parents act in

the best interests of their children’)

Consequently, all parents under any suspicion

are presumed abusers unfit to care for their

children, unworthy to even have a voice in their

child’s interrogation. See Doe, 327 F.3d at 521 (the

State “not only failed to presume that the plaintiff

parents would act in the best interest of their

children, they assumed the exact opposite, that the

parents might be complicit in any abuse ... meted

out by [the] Principal”). Simultaneously, the State

crowns itself the champion of children and their self-

appointed warden. However, this lofty view of the

State as a super-parent has been soundly rejected by

this Court in Meyer, Pierce, Yoder, Stanley,

Santosky, and Troxel, infra. Thus, Petitioners’

suggested constitutional framework, designed to

obviate parental consent, undermines almost a

century of this Court’s jurisprudence.

23

V. THE PROCESS DUE PARENTS AT THE

INVESTIGATIVE STAGE.

The Santosky Court balanced three distinct

factors found in Mathews v. Eldridge, 424 U.S. 319,

335 (1976) to grapple with the question of what

process was due parents: (1) the private interest

that will be affected by the state’s action; (2) the risk

of an erroneous deprivation of the fundamental

interest through the procedures used, and the

benefit of other additional procedural safeguards;

and (3) the government’s interest, including any

administrative or fiscal burdens associated with

substituted or additional requirements. Santosky,

455 U.S. at 754-55.

I. Private Interests of Families

A parent's interest in maintaining his family is

an “essential,” “basic civil right of man,” “far

exceeding mere property rights,” and “beyond debate

as an enduring American tradition.” Stanley, 405

U.S. at 649-52; Skinner v. Oklahoma, 316 U.S. 535,

541 (1942), May v. Anderson, 345 U.S. 528, 533

(1953); see also Parham, 442 U.S. at 602 (1979);

M.L.B., 519 U.S. at 118; Troxel, 530 U.S. at 66. Both

the child and the parent share the same interest in

living free from unwarranted = governmental

interference. Stanley, 405 U.S. at 649-52, Santosky,

455 U.S. at 753, 765-66; Tenenbaum, 193 F.3d at

600; Wallis, 202 F.3d at 1136.

Since parents’ “fundamental liberty interest” in

their child “does not evaporate simply because they

have not been model parents,” there is no reason to

24

allow the rights of parents to be cast aside during an

investigation, where parents merely sit under

suspicion. Santosky, 455 U.S. at 753. “[PJarents

[always] retain a vital interest in preventing the... .

destruction of their family life.“ Id. Alt the

factfinding [stage], the interests of the child and his

natural parents coincide to favor use of error-

reducing procedures.” Santosky, 455 U.S. at 761.

Accordingly, parents are due process during

investigations, just like they receive due process

during a termination proceeding. Paul Chill, Burden

of Proof Begone: The Pernicious Effect of Emergency

Removal in Child Protective Proceedings, 42 Fam.

Xt. Rev. 540, 543-45 (2004) (discussing the high rate

of “false positives,” “more than one in three” were

“later found not to have been maltreated at all” in

light of easily wrought “drastic protective action”

and “removal stampedes’). The “risk of error” is still

strongly prevalent ab initio in unconstitutional

searches and seizures of children and improper

investigative techniques that both harm children,

and lead to erroneous removals.

2. The State’s Interest

The State has two interests: (I) protecting

children from genuine abuse; and (2) ensuring that

children are spared harms’ from improper

investigations. Calabretta, 189 F.3d at 813. “The

government’s interest in the welfare of children

embraces not only protecting children from physical

abuse, but also protecting children’s interest in the

privacy and dignity of their homes and in the

lawfully exercised authority of their parents.”

Calabretta, 189 F.3d at 820; see also Santosky, 455

U.S. at 766-67 (“while there is reason to believe that

a nurturing parent-child relationship exists, the

parens patriae interest favors preservation, not

severance, of natural family bonds’). The State has

a duty to do “no harm” to fit families. Wallis, 202

F.3d at 1131 (improper governmental action may

create significant injury where no problem of any

kind previously existed”). Thus, the State’s interests

in investigation requires a_ respect for the

presumption of parental fitness, no pre-emptive

interference with the parents’ maintaining custody,

control, care and management over their children,

and usage of best practices to reach accurate

conclusions, so as not to harm the children involved

or erroneously separate them from their families. .

3. The Unlimited License Sought by the

State to Interview Children without

Parental Consent or Management

Risks Harming the Child

Camreta claims to have chosen the school venue

to make S.G. “feel safe.” (Camreta Brief 3). His

stated objective failed because S.G. felt “scared”

when placed into a unfamiliar room with two

complete strangers, and “sick” during the seizure.

(A. 48,54,55,58; see also Docket # 53, Exh. C, pp.

72.-80: S.G. described state’s counsel who deposed

her as “less scary” than Camreta). Camreta’s motive

was parental avoidance couched in theories of

parental interference. Coleman, Storming the

Castle, at 431.

26

The State believes that the only worthy question

in this debate is “who will protect the children from

parents?” Equally indispensable to the query 1s

“who will protect the children from the State?” This

question must be asked and answered, since the

State, though constitutionally prohibited, is in

essence functioning as a child's super-parent in

bypassing the natural parents’ consent. See Meyer,

Pierce, Yoder, Stanley, Santosky, and Troxel, infra.

lere, Camreta’s heavy-handed interrogation of a

speech delayed child for two hours, and repeated

contradiction of her initial statements, eventually

wore the child into agreeing with everything

Camreta wanted to make true, just to get out of the

room and not miss her school bus home —where her

parents were. (JA. 42,47-48,51-52,57-58). In the

safety of her home, the child threw up five times that

evening. (J. A. 43). Of course, it was S8.G's parents

who comforted and cared for her during that difficult

time, not Camreta. “Merely because some intrusion

on a child’s protected privacy and security interests

may be reasonable does not mean that any intrusion

is.” Wallis, 202 F.3d at 1140 (emphasis in original);

Doe, 327 F.3d at 512.

S.G. experienced a great deal of internal turmoil;

she did not understand why she was required to say

bad things about her father, and she instinctively

knew that what she said would have an impact on

her and her sister’s relationship with their family.

(J. A. 57-58). However, we define the generic societal

interest in “child protection,” it must necessarily

include protection against abuse by all authorities,

and guard “the child's psychological well-being,

27

autonomy, and relationship to the family.” Franz,

997 F. 2d at 792.

Our Constitution treats parents as the first line

of defense for children for good reason. Troxel, 530

US. at 66, citing Parham, 442 U.S. at 602 (Our

jurisprudence historically has reflected Western

civilization concepts of the family as a unit with

broad parental authority over minor children’).

Parental consent and a parent’s ability to withdraw

consent, as part of the whole bundle of parental

rights, is what would have “protected” S.G. from any

abusive “child protection” experiences.

4. Depriving Parents of their

Fundamental’ Liberty Interest in

Consenting to, Participating in, or

Terminating Child Interviews Invites

Risk of Producing Inaccuracies in

Fact-Finding

The State “shares the parent’s interest in an

accurate and just decision.” Santosky, 455 U.S. at

766. The State has an obligation to be searching for

the truth in the most legal and reliable manner, and

to employ the best and least restrictive services to

arrive at “accurate” conclusions. Santosky, 455 U.S.

at 761 Cerror-reducing procedures’).

Depriving parents of an opportunity to consent,

watch or participate in any interview allows an

investigator over the course of a multi-hour custodial

mterrogation to badger a child into making

unrehable statements. Yet, Petitioners actually

assert that “reason” “does not require the abrupt

termination of an abuse assessment” because

“victims are reluctant.” (Alford Brief 59). Camreta,

an adult, intimidated a child, repeatedly challenging

S.G.’s denials of inappropriate touching, by telling

her, That's not it.“ (J. A. 52, 71). As with Mr.

Miranda, Petitioner interrogated S.G. until she

emerged from the room with the evidence that he

sought. (J. A. 57, 71); Miranda v. Arizona, 384 U.S.

436, 491-92 (1966). S.G. stated, “I had a feeling

that’s what he wanted to hear, just les, not truth.”

(JA. 57).

The State’s interview approach, with a young,

fragile, speech-delayed child, forced an involuntary

and an unreliable admission to parental abuse out of

desperation to regain her freedom from the seizure.

See Greene, 588 F.3d at 1017. Assuming that every

child witness will eventually “break” is hardly a

mechanism for achieving “accuracy” in fact-finding.

Lassiter o. Dept. of Social Servs. of Durham Cty., 452

U.S. 18, 27 (1981) Cla] parent’s interest in accuracy

and justice ... is ... a commanding one’).

5. The Risk of Error in Unchecked

Investigatory Practices is Deterred by

Safeguarding the Parental Liberty

Interests in the Investigative Phase

Since Santosky, case law is replete with examples

of child protective investigators making unilateral

decisions to violate privacy rights and = parental

prerogatives because such was allegedly necessary

“to protect” children. Often, untrained and

unobjective “investigators’® go unchecked in

isolating children and making unilateral choices that

rightfully belong to the parent(s). Where there is no

parental consent or probable cause order, these

»“A reasonable inference may be drawn ... that it [is} ‘standard

operating procedure’ to obtain [child] examinations without

seeking judicial authorization or notifying the parents.” Wallis,

202 F.3d at 1148; Darryl , 801 F.2d at 901 (strip search of

child at school was seen as a significant intrusion into the

child’s privacy and violates the legitimate expectation of

parents that their familial relationship will not be subject to

unwarranted state intrusion); Calabretta, 189 F.3d at 820

(“there is a very substantial interest, which forcing the mother

to pull the child’s pants down invaded, in the mother’s dignity

and authority in relation to her own children in her own

home”); Franz, 997 F.2d at 785 (police officer photographed

child’s vaginal area without parents knowledge); Roe, 299 F.3d

at 497 (suggestive dancing by six year old girl led social worker

to pressure mother into allowing her genitals to be spread and

photographed); Van Emrik u. Chemung County Dept. of Social

Services, 911 F.2d 863 (2nd Cir. 1990) (parents brought child to

hospital suspecting that their babysitter was responsible for

spiral fracture of mght leg; social worker without parental

consent had doctor perform x-rays to determine if older injuries

to child existed); Tenenbaum, 193 F.3d at 598 (secreting child

to the hospital for a vaginal exam without parental consent).

* See Tenenbaum, 193 F. 3d at 590 (misinterpreting selectively

mute child answering “no” to everything even when certain

questions would have required an affirmative answer to be

patently true); Doe, 327 F.3d at 523 (misinterpreting

nonexcessive corporal punishment as child abuse); Wallis, 202

bead at 1134 (waking up sleepy child at midnight for an

interview only to misinterpret a story about a “spider” as

meaning possible sexual abuse); Franz, 997 F.2d at 786

(misinterpreting diaper rash from wet pamper as possible

sexual abuse); Calabretta, 189 F.3d at 813 (child crying “no, no,

no” could have multiple interpretations, including disliking

vepetables)

30

investigative Judgment calls” are not even

reviewable. “Respecting privacy and conducting the

sort of comprehensive investigation the system

contemplates are inherently irreconcilable, at least

when delegated to a single official.“ Coleman,

Storming the Castle at 439-40.

Having parental involvement/oversight keeps

state investigators honest. Dubbs, 336 F.3d at 1207

(“the requirement ... of parental consent in the case

of minor children, serves important practical as well

as dignitary concerns, even when a social welfare

agency ... believes it is acting for the good of the

child”). It is a meaningful check on the State's

amnesiac tendencies to remember that the mission

of child protection also embraces the duty to not

harm the child during questioning or in erroneously

separating her from her fit family. Wallis, 202 F.3d

at 1130-31; Stanley, 405 U.S. at 653; Calabretta, 189

Led at 820. Having a parent nearby provides a

watchful eye against misconduct/deception-——was the

child intimidated, coaxed, improperly led into stating

a mistruth, or provided an implanted memory by

repetitive questioning? Otherwise, “[ijll-considered

and improper governmental action may create

significant injury where no problem of any kind

previously existed.” Wallis, 202 F.3d at 1130-31.

The constitutional limitations placed on = law

enforcers specializing in child protection should be

no different than the limitations placed on other law

enforcement, especially given the identity of those

whom they regularly interrogate. Access to

impressionable children, whose lives and dignity are

inextricably intertwined with their parents, should

3]

not be made easier, but be subject to more

formalized processes to protect the high value of the

constitutional rights at stake. “The individual

should not be asked to share equally with society the

risk of error when the possible injury to the

individual is significantly greater than any possible

harm to the state.” Santosky, 455 U.S. at 768 (citing

Addington vu. Texas, 441 U.S. 418, 427 (1979),

M.L.B., 519 U.S. at 121 (we inspect the character

and intensity of the individual interest at stake, on

the one hand, and the State’s justification for its

exaction, on the other”); Stanley, 405 U.S. at 658

(‘convenien|ce for the State to] “presume [rather]

than to prove ... is insufficient ... when the issue at

stake is the dismemberment of his family”).

Preserving the fundamental liberty interest of

parents will substantially reduce the risk of

arbitrary and = grossly subjective acts by child

protective investigators.

6. The Government’s Limited Interest in

Children is not being Hampered, but

Advanced, by Securing Parental

Consent or a Warrant

Petitioners represent that “bleak statistics” and

“staggering proportions” of child abuse should

endorse a rule for child seizures requiring “scant

judicial oversight.” (Alford Brief 20, 32). “[CJases of

this order ‘cannot be resolved by resort to easy

slogans and pigeonhole analysis,“ M.L.B., 519 U.S.

at 120. ‘Touting the “protection of children” is easy

to appreciate. Roe, 299 F.3d at 406-07; Meyer, 262

U.S. at 401-02. But the “means adopted [must not]

exceed the limitations upon the power of the State

32

and conflict with rights assured to [the family] in

error.” Mever, 262 U.S. at 402.

Here, the “private interest is commanding,” while

the “governmental interest ... is comparatively

slight.” Santosky, 455 U.S. at 760-61. This is not

simply a debate of balancing the child’s interests

against the State’s interest in protecting the child, as

narrowly framed by both Camreta and Alford.

Parham, 442 U.S. at 600 (“the private interest at

stake is a combination of the child’s and parents’

concerns’); M. I. ., 519 U.S. at 119 (the parent

“maintains that the accusatory state action she ts

trying to fend off is barely distinguishable from

criminal condemnation in view of the magnitude and

permanence of the loss she faces”). Camreta and

Alford conveniently ignore the child and parents’

shared interest in maintaiming familial integrity, as

well as the parental liberty interest in child

management, and the government's duty to ensure

that children are not harmed by its own actions.

Santosky, Stanley, Wallis, Calabreta, infra. A closed

door, multi-hour interrogation of an impressionable,

speech-impaired child by a perfect stranger not only

harms the child immediately, but also long term

when the child discovers that what was cajoled out of

her severed her family. Children like S.G. are not

just disinterested witnesses, but have a personal

stake in the outcome. Compare Z//linois v. Lidster,

540 U.S. 419 (2004) (warrant unnecessary where

adult road-stop witness’ statements would have

absolutely no consequence, criminal or otherwise, for

the witness herself).

33

The Petitioners contend that notifying parents

and sceking their consent, or securing a warrant

impedes the State in its investigations. They

demand unchecked “flexibility” and “swiftness” in

the execution of their described duties. (Alford Brief

43). But in truly exigent circumstances,

investigators always retain the power to seize a child

without a court order. Tenenbaum, Doe, infra.

Thus, Petitioners’ frustration rings hollow.

Petitioners unreasonably ask this Court to accept

as a constitutional foundation for its interference

with the Greene parents rights their speculation

regarding the motives of all parents suspected of

abuse. But it is wrong to presume that al/ parents

under suspicion will refuse consent to interview a

child or interfere with an investigation. Coleman,

Storming the Castle at 430-31 (“most investigations,

over 90 percent by some estimates, are conducted

with the apparent consent of relevant adults”); cf.

Stanley, 405 U.S. at 654 (refusing to label “all

unmarried fathers” as “unsuitable”). Contrary to the

State’s speculation regarding the denial of consent,

Sarah Greene answered Camreta’s questions during

the home visit and gave him physical access to view

S.G.’s bedroom door knob. (J. A. 48, 50).

Procedure by presumption is always

cheaper and easier than individualized

determination. But ... it needlessly

risks running roughshod over the

important interests of both parent and

child. It therefore cannot stand.

34

Stanley, 405 US. at 656-57; see also Sankaran,

Parens Patriae Run Amuck, passim (due process

violation to lump together both parents and deprive

both of custody, control, and management of their

children, when allegations are only against one

parent); Wallis, 202 F. 3d at 1142 (“The government

may not, consistent with the Constitution, interpose

itself between a fit parent and her children simply

because of conduct—real or imagined—of the other

parent”). Contrary to interfering with the truth,

Sarah Greene pursued the truth, repeatedly

approaching S.G. to make sure that there was no

abuse that had escaped her maternal attention.

(JA. 43-44).

Finally, “there is a critical difference between

necessary latitude and infinite license.” Tenenbaum,

193 F.3d at 595. Petitioners argue that they cannot

“develop| | pre able cause” against parents without

cutting constitutional corners in their schoolhouse

seizures. (Camreta Brief 11) The violation of

familial privacy and the disregard of parental hberty

interests cannot provide a posterior justification for

an otherwise unconstitutional investigation. “The

establishment of prompt efficacious procedures to

achieve legitimate state ends is a proper state

interest worthy of cognizance in constitutional

adjudication. But the Constitution recognizes higher

values than speed and efficiency.” Stanley, 405 U.S.

at 656.

In a government of laws, existence of

the government will be imperiled if it

fails to observe the law scrupulously.

Our government is the potent, the

omnipresent teacher. For good or for

ill, it teaches the whole people by its

example. Crime is contagious. If the

government becomes a lawbreaker, it

breeds contempt for law; it invites every

man to become a law unto himself; it

invites anarchy. To declare that in the

administration of the criminal law the

end justifies the means-to declare that

the government may commit crimes in

order to secure the conviction of a

private criminal-would bring terrible

retribution. Against that pernicious

doctrine this court should resolutely set

its face.

Olmstead . I. S., 277 US. 438, 485 (1928)

(Brandeis, J., dissenting).

So, Petitioners ask for a lower threshold, be, that

“any apprehension” meriting “prompt attention” is

the equivalent of the probable cause requirement.

(Alford Brief 44). employing this standard would

allow any agent of the state to search and seize any

child for any length of time, at any place, and at any

hour, as reasonable per se. (/ Tinker, 393 U.S. at

5O8 (criticizing “undifferentiated fear or

apprehension” as being an unreasonable basis to

overlook fundamental right). Such a standard is

entirely too broad to be constitutional.

The Petitioners were entitled to

constitutionally investigate through securing a court

order. ‘The State knew about Nimrod Greene’s

alleged post-drinking friskiness on or about

36

February 10, 2003 from the Smiths who left their

son alone with him despite having such prior

knowledge. Yet, the State did not interview S.G.

until February 24, 2003, almost two weeks later.

Camreta personally let four days pass from notice.“

Clearly, the State perceived no immediacy. or

exigency from these internally flawed allegations.

Under these facts, had the State sought a warrant,

and assuming arguendo probable cause was

established, it is unlikely that the warrant would

allow Camreta to seize and interrogate the child as

he did. Tenenbaum at 594 (Judicial contribution

makes a fundamental contribution to the proper

resolution of the tension among the interest”). Of

course, submitting to a neutral magistrate always

runs the risk of being told no, which could be the

motive here than the proffered need for swiftness

and flexibility. Doe, 327 F.3d at 513 (the “failure [to

seek a warrant} speaks volumes’).

Alternatively, the State could secure parental

consent before questioning the child. Dubbs, 336

.d at 1215 (“parental notice and consent is [not]

“impracticable” in this context, which is the

requirement for a special needs exception to the

Ine claimed need for swiftness is often betrayed by the sheer

number of days that elapse between the initial tip and the

subsequent seizure. Calabretta, 189 F.3d at 813 (14 days as

investipator went on vacation after receiving tip); Wallis, 202

Fand at 1182-33 (4 days elapsed from social workers receiving

report from therapist of psychotic relative rambling about child

sacrifice rituals to seizing the children); Doe, 327 F.3d at 501-

02 (“nearly two weeks later” for the first reported spankee, and

“[ffinally more than three months” for the second identified

spankee); Tenenbaum, 193 F.3d at 588 90 (5 days from the

initial report by a mandatory reporter to seizing child).

37

fourth Amendment”). Instead the State impugns

the motives of all parents across the board as a basis

to avoid obtaining parental consent.

Child protective investigators should seek to

operate within all constitutional constraints if

committed to serving the long-term interests of

children. Wets o. State, 800 N. E. 2d 209 (Ind. App.

2003) (suppressing evidence of poor housekeeping on

a charge of criminal neglect of a dependent, where

there was no emergency to create the exigent

circumstances to permit a warrantless entry into a

dirty home); Kazery v. State, 995 So. 2d 827 (Miss.

2008) (social service work should reflect a desire for

reliable prosecution Outcomes by using best practices

in limiting child interviews to trained forensic

interviewers). Honoring parental prerogatives can

only strengthen a State’s interest in prosecuting

proscribed conduct by having legally obtained

evidence through a consensual search. Similarly,

“requiring caseworkers to obtain the equivalent of a

warrant before searching ... ensures that the

constitutional interests of the child, parents, and

schools, are safeguarded, while at the same time

preserving the state’s compelling interest in

protecting children from being abused.” Doe, 327 F.

d at 514.

CONCLUSION

Schools have long served as battlegrounds

where the State has competed for children by

encroaching upon the fundamental liberty interests

belonging to parents. Constitutionally unrestrained

investigations are fraught with peril for children and

38

for their parents who love them. In an isolated

school setting, the State is essentially unfettered in

its ability to control children, thereby stripping

parents of their presumption of fitness firmly

ensconced in this Court’s case law. “Any

apprehension” is not a constitutionally sufficient

basis for subverting parents’ interest in maintaining

custody, control and management over their

children. Hanging in the balance of this struggle is

the shared interest that children and parents have

in maintaining the integrity of their natural family.

For these reasons, amici support the position of the

Respondent, the Greene family.

Respectfully submitted,

GARY S. MCCALEB DAVID AUSTIN R. NIMOCKS

BRIAN W. RAUM Counsel of Record

ALLIANCE DEFENSE FUND ALLIANCE DEFENSE FUND

15100 N. 90th Street 801 G Street, N. W.

Scottsdale, AZ 85260 Suite 509

(480) 444-0020 Washington, D.C. 20001

(202) 393-8690

DEBBIE MAKEN animocks@telladf_org

ATTORNEY AT LAW

7924 Cranes Pointe Way

West Palm Beach, FL

33412

(561) 685-4505

January 31, 2011

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