# Amicus Curiae Brief — Camreta v. Greene

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0596%3A25

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 692

## Text

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
— nnniinuneieeneieeteiemmeeeieiaamemementmmememmnmedmminaenenemmmmnniomemnammemneamneemmnemanneeeeeee ee

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

2 r
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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0596%3A25. Public record. Not legal advice.