Amicus Curiae Brief — Camreta v. Greene

Nos. 09-1454, 09-1473

IN THE

Supreme Court of the United States

a ee 2 Gees

BOB CAMRETA,

Petitioner.

-

SARAH GREENE, personally and as next

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

Respondent

JAMES ALFORD,

Deschutes County Deputy Sheriff,

Petitioner,

v.

SARAH GREENE, personally and as next

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

Respondent.

On Writs OF CERTIORARI TO THE

Unirep Srares Court or APPeAtS For tHe Nintu Circorr

BRIEF OF THE LEGAL AID SOCIETY, |

JUVENILE RIGHTS PRACTICE AS

AMICUS CURTAE IN SUPPORT OF RESPONDENT

STEVEN BANKS

Counsel of Record

‘TAMARA STECKLER

GARY SOLOMON

THe LEGAL Alp Society

199 Water Street

New York, New York 10068

(212) 577-355]

sbanks@lepal-aid.org

Counsel for Amicus Curiae

234433 g

COUNSEL PRESS

(S00) 274-3321 © (bO0) 459 GAL

i

TABLE OF CONTENTS

pet PR by yy i

TABLE OF CITED AUTHORITIES ........... iil

INTEREST OF THE AMICUS CURIAE ....... l

SUMMARY OF ARGUMENT

Er er ne ee 6

UNDER THE FOURTH AMENDMENT,

CHILD PROTECTIVE AUTHORITIES

SHOULD BE REQUIRED TO OBTAIN

ADVANCE JUDICIAL APPROVAL

OF SEARCHES AND SEIZURES

OF CHILDREN WHENEVER IT IS

PRACTICABLE TO DOSO................. 6

1. The Fourth Amendment Creates a

Presumption in Favor of Judicial Review,

Which, in this Context, Will Protect Children

and Families from Inappropriate and

Potentially Harmful Searches and Seizures

By Child Protective Authorities, and

Involves No Additional Risk of Harm... . . . 6

Il. Federal Appeals Court Decisions Have

Applied Probable Cause and Advance

Judicial Review Requirements To Home

iintries, Removals of Children for Placement

in Foster Care, and Physical Examinations of

Children by Child Protective Authorities .. 14

vi

Table of Contents

Page

IL]. The Emergency and Exigent Circumstances

Exceptions to the Judicial Authorization

Requirement, and the Possibility of Obtaining

Consent, Provide Child Protective Agencies

With More Than Enough Authority to

Protect Children From Imminent Harm... — 19

IV. Investigative Activity by Child Protective

Authorities Which Falls Short ofa Removal for

Placement in Foster Care, But Far Exceeds

the Scope of a Limited Seizure, Should

Require Advance Judicial Authcrization

Whenever It is Practicable............... 22

V. When the Child is Seized in a Manner

Equivalent to a Limited “Terry Stop,”

Application of Terry’s Reasonableness

Standard is Appropriate, But Where, as

Here, the Child is Seized Several Days

After the Report of Abuse, Advance Judicial

Authorization Should be Required ........ 24

RE cveb esse dbeN se eceeacewun cesar 30

dit

TABLE OF CITED AUTHORITIES

Page

SUPREME COURT CASES

Brigham City v. Stuart,

eT III e's vs 0 aks nune eeu couse 3 20

Hayes v. Florida,

SP RN ED vc vocnsuncsvewetcesvenane 22, 23

Illinois v. Lidster,

SP Ny IID so o'5 pcb vecescdeveeseewes 26

Indianapolis v. Kdmonds,

Se Ey noe wa snteeksdseua Sane as 26

Michigan v. Fisher,

Chat, WU Mk, PGE 0 vce cecccccsecens 20

New Jersey v. T:1..0.,

i Or POD 6 ovo vaccnsccvcsce veces 6, 28, 29

Payton v. New York,

EEE Geb ucuesdcuencueecsaces 18

Pennsylvania Board of Probation and Parole v.

Scott,

Ee I ED bes sce oS Kean desi aceyes. 23

Terry v. Ohro,

Se OS IEE 60 5 cbs o SSNs a3 eke sas euaee passim

l/nited States v. United States Dist. Ct.,

PE 0 io pb atueacuscdccsecswun 18

Ww

Cited Authorities

Page

United States v. Watson,

er eee 23

OTHER FEDERAL CASES

Brokaw v. Mercer County,

235 F.3d 1000 (7th Cir. 2000). ................ 19

Calabretta v. Floyd,

189 F.3d 808 (9th Cir. 1999) ................2.6. 14

Darryl H. v. Coler,

801 F.2d 893 (7th Cir. 1986) .................. 29

Doe v. Heck,

327 F.3d 492 (7th Cir. 2003). ............. 25, 27, 29

Doe v. Kearney,

329 F.3d 1286 (11th Cir. 2003)............... 16, 19

Gates v. Texas Department of Protective and

Regulatory Services,

537 F.3d 404 (5th Cir. 2008)... ............... 18

Gomes v. Wood,

451 F.3d 1122 (0th Cir. 2006) ................ 16

Good v. Dauphin County Social Services for

Children and Youth,

891 F.2d 1087 Gd Cir. 1989) ................2.. 18

Greene v. Camreta,

588 F.3d 1011 Gth Cir. 2009) ............... passim

Vv

Cited Authorities

Page

Kenny A. v. Perdue,

2004 WL 5503780 (N.D.Ga. 2004). 2.000.000... 12

LaShawn A. v. Kelly,

990 F.2d 1319 (D.C. Cir. 1998) 2.00002 12

Marisol A. v. Giuliani,

126 F.3d 372 (2d Cir. 1997)................... 12

Nicholson v. Williams,

344 F.3d 154 (2d Cir. 2003). .............0..... 10

People United For Children, Inc. v.

City of New York,

214 F-R.D. 252 (S.D.N.Y. 2003), reconsideration

ceented 2003 WIL 22056930. .................. 10

Roe v. Texas Department of Protective and

Regulatory Services,

299 F.3d 395 (5th Cir. 2002).................. 18

Roska ex rel. v. Peterson,

$28 F.3d 1230 (10th Cir. 2003)............0.2.. 19

Tenenbaum v. Williams,

193 F.3d 581 (2d Cir. 1999)................ passim

Tierney v. Davidson,

133 F.3d 189 (2d Cir. 1998)... 0.0 00000000000.. 20

(/nited States v. Antwine,

873 F.2d 1144 (8th Cir. 1989) ................. 20

vi

Cited Authorities

Page

Williams v. Pollard,

44 F.3d 433 (th Cir. 1995). ...........2...... 26

STATE CASES

Nicholson v. Scoppetta,

Es 6c 5 cdo a vos idee ccuwe tase 12,13

STATE STATUTES

A Gs OEE ious ecb rdanessawseceeceuns cs I

ee: CNN SI ee, ic eerie passim

Tees GA UL GEE 6c o Ke cecéacvdaccecueaces 23

8 Me ON ee ree 7

i we 8 7,9

JOURNALS

Mark R. Brown, Rescuing Children from

Abusive Parents: The Constitutional Value

of Pre-Deprivation Process, 65 OH1O ST. L. J.

I so ores oe Rede cece cuwiececdens 8, 24

Doriane Lambelet Coleman, Storming the Castle

to Save the Children: The [ronic Costs of a Child

Welfare Exception to the Fourth Amendment,

4TWM. & MARY L. REV. 413 (November, 2005)

INTEREST OF THE AMICUS CURIAE'

The Legal Aid Society is the nation’s oldest and

largest provider of legal services to low income families

and individuals, providing legal representation in more

than 300,000 legal matters for clients each year. The

Legal Aid Society’s Juvenile Rights Practice provides

comprehensive legal representation to children who

appear before the New York City Family Courts in all

five boroughs, in abuse, neglect, juvenile delinquency, and

other proceedings affecting children’s rights and welfare.

Last year, our Juvenile Rights staff represented some

30,000 children. Our perspective comes from our daily

contacts with children and their families, and also from

our frequent interactions with the courts, social service

providers, and State and City agencies. In addition to

representing many thousands of children each year in trial

and appellate courts, Legal Aid also pursues law reform

litigation and initiatives on behalf of our clients.

We are deeply devoted to furthering the interests of

children. Our experience teaches us that those interests

are best served when the law attempts to strike a

fair balance between the parents’ right to raise their

children as they see fit, the family’s right to be together,

the children’s own Fourth Amendment right to be free

from unreasonable searches and seizures, the State’s

interest in protecting children from harm at the hands

1. Pursuant to Sup. Ct. R. 37.6, Amicus Curiae certify that no

counsel for a party to this action authored any part of this brief, nor

did any party or counsel for a party, or any other person or entity,

make a monetary contribution intended to fund the preparation or

submission of this brief. Counsel of record for the parties to this

action have consented to the filing of this brief.

2

of their caretakers, and the children’s own interest in

being protected. We want child protective authorities to

be able to function effectively in their investigations. We

are troubled when we learn of child abuse that might have

been prevented by faster and more effective intervention

by a child protective agency. But we also know that child

protective agencies sometimes overreact to sensational

publicity regarding child abuse that occurred on their

watch by sending overt or subtle signals to employees that

they should “remove the children first and ask questions

later” whenever there is a hint of danger however remote.

So we are fearful at both extremes: we fear too little

agency action, and too much. Yet, while there is precious

little the courts can do about a child protective agency’s

undue reluctance to seize children, there is much the

courts can do about an agency’s abuse of its authority

to seize children without first seeking a court order. For

that reason, we believe that there should be advance

judicial review of any agency action that implicates Fourth

Amendment rights, unless such review is impracticable or

would unduly constrain the agency in its efforts to protect

children from serious harm. We hope this Court will arrive

at a decision in this case that will advance that goal.

3

SUMMARY OF ARGUMENT”

Investigations conducted by child protective authorities

involve a broad range of activities, some of which Go not

implicate the liberty and privacy interests protected by

the Fourth Amendment at all, some of which go just over

the line, and some of which are highly intrusive and clearly

threaten not only compelling liberty and privacy interests,

but also children’s physical and emotional well-being.

Child protective authorities, sometimes accompanied

by law enforcement officers, enter homes without a court

order or the occupants’ consent to conduct investigative

interviews regarding allegations of abuse or neglect, to

conduct an intrusive physical examination of the children,

and/or to remove children who, the agency already believes,

require immediate protection. Like a warrantless entry by

law enforcement officers who are investigating criminal

activity, an intrusion into the sanctity of the home by child

protective authorities implicates fundamental privacy

interests protected by the Fourth Amendment.

When a child protective worker takes physical control

of a child outside the home and places the child in foster

‘are, the restraint on the child’s liberty is, at the very

least, the functional equivalent of an arrest. Some types of

2. Since the facts of this case already have been set forth

by the parties and other amict, we have chosen not to offer the

Court yet one more version. Relevant facts have been integrated

as necessary into our brief. We have also chosen not to address

the question of the reviewability of the Ninth Circuit’s Fourth

Amendment ruling. But while our brief is designed to assist the

Court should it reach the Fourth Amendment issues, we agree

with respondents that the Ninth Circuit's ruling is not reviewable.

4

physical interference with the child’s freedom of movement

- for instance, when a child protective caseworker compels

the child to travel from one location to another - involve

restraints that fall short of a seizure for placement in

foster care, but still go well beyond what is typical in the

context of a police officer’s Terry stop.* Other types of

physical interference resemble a Terry stop, while other

activities - for instance, investigative questioning that

involves little or no significant restraint on the child’s

freedom of movement - will not even activate Fourth

Amendment protections. Needless to say, there can be no

“one-size-fits-all” application of the Fourth Amendment in

the child protective context. Different standards should

govern different activities. In this case, there was, in

fact, a seizure of S.G. at the school, and advance judicial

authorization should have been sought beforehand. But,

however the Court rules, what we want most of all is for the

Court to ensure that any Fourth Amendment standards

it announces while resolving the dispute in this one ease

make sense when the entire continuum of child protective

interventions is contemplated.

It is equally important that the Court not fall prey

to alarmist rhetoric proffered by petitioners and their

amtci supporters. We acknowledge the State’s compelling

interest in protecting children from abuse and neglect,

and the children’s interest in being protected, but

“state officials cause real harm in their quest to protect

children, including fear, humiliation, shame, and emotional

devastation, not to mention the loss of the children’s and

sometimes also their families’ Fourth Amendment rights

and the fundamental interests these implicate.” Coleman,

Storming the Castle to Save the Children: The Tronic Costs

3. Terry v. Ohio, 392 U.S. 1 (1968).

D

of a Child Welfare Exception to the Fourth Amendment,

47 WM. & MARY L. REV. at 527.

Moreover, child protective workers and law enforcement

officers sometimes exercise very poor judgment, whether

because of an excess of zeal or because of incompetence.

See Doriane Lambelet Coleman, Storming the Castle to

Save the Children: The Ironic Costs of a Child Welfare

Kaception to the Fourth Amendment, 47 WM. & MARY

lL. REV. 413, 525 (November, 2005) (“Too many officials

on the ground are undertrained in relevant respects.

Moreover, experience shows that children and families

cannot count on officials to exercise their discretion

in objectively reasonable ways. In particular, [Child

Protective Services] and the police often assume guilt

at the outset, and thus approach the evidence gathering

process with an eye toward proving that assumption”).

Thus, whatever the truth may be with respect to

reports of abuse or neglect that are based on false

information,‘ the importance of judicial oversight, in

those circumstances in which it is practicable, cannot be

grainsaid.

4. In the Brief of the States of Arizona, et al. as Amicus

Curiae in Support of Petitioners, itis suggested that the reported

61.3% of child maltreatment referrals that were determined to

be “unsubstantiated” is not as alarming as it appears because

an “unsubstantiated” determination merely indicates that child

protective authorities were unable to amass sufficient evidence, not

that the allegations were untrue. /d. at 11-12. But we wonder what

message this is meant to send given that the percentage of false

allegations, and thus the number of unnecessary child protective

agency interventions - including seizures of children - still must

be quite substantial.

6

ARGUMENT

UNDER THE FOURTH AMENDMENT,

CHILD PROTECTIVE AUTHORITIES SHOULD

BE REQUIRED TO OBTAIN ADVANCE

JUDICIAL APPROVAL OF SEARCHES AND

SEIZURES OF CHILDREN WHENEVER

IT IS PRACTICABLE TO DO SO

1. The Fourth Amendment Creates a Presumption

in Favor of Judicial Review, Which, in this

Context, Will Protect Children and Families from

Inappropriate and Potentially Harmful Searches

and Seizures By Child Protective Authorities, and

Involves No Additional Risk of Harm

The Fourth Amendment is applicable to the activities

of civil as well as criminal authorities. Even school officials,

who, unlike child protective authorities, have temporary

physical custody with the consent of students’ parents,

are deemed to be exercising public rather than parental

authority when they search students. New Jersey v. 7.L.0.,

469 U.S. 325, 335-337 (1985). Thus, the starting point

for any Fourth Amendment analysis of child protective

investigations should be this presumption articulated in

Terry v. Ohio, 392 U.S. 1 (1968): “We do not retreat from

our holdings that police must, whenever practicable, obtain

advance judicial approval of searches and seizures through

the warrant procedure (citations omitted), or that in most

instances failure to comply with the warrant requirement

can only be excused by exigent circumstances (citations

omitted).” 392 U.S. at 20.

Removal from parental custody constitutes the

ultimate governmental intrusion on the child’s Fourth

7

Amendment rights. The child experiences a complete

deprivation of personal liberty, and the wrenching loss of

familial connections. The child is compelled to live away

from his or her family, in a foster family home if he or she

is lucky, or, if not so lucky, in a congregate care facility

in which emotional support is difficult if not impossible

to come by. Although an adult arrestee knows about the

possibility of release with or without bail, a child might

well fear that the removal is permanent, and that the

family life ue or she once took for granted, and perhaps

those he or she loves, have been lost for all time. This

exacerbates the risk of serious and lasting trauma, which,

of course, is particularly vexing in those cases in which

the removal is later found to have been unwarranted and

is overturned by a judge.

Accordingly, the New York State Legislature

recognized long ago that a fair balancing of families’

constitutional right to remain together, and the State’s

interest in protecting children, justifies imposition of a

requirement that the authorities seek a court order before

removing a child when the resulting delay will not place

the child at risk. New York Family Court Act § 1024,

which authorizes emergency removal by child protective

authorities and other specified officials without a court

order, states that such a removal may take place if: “(i)

such person has reasonable cause to believe that the

child is in such circumstances or condition that his or her

continuing in said place of residence or in the care and

custody of the parent or person legally responsible for the

child’s care presents an imminent danger to the child’s life

or health; and (ii) there 1s not time to apply for an order

under | N-Y. Fam. Ct. Act § 1022)” (emphasis supplied).

8

The safeguards and benefits provided by advance

judicial review are obvious. Judges are far more likely

to be faithful to the law governing removal and other

searches or seizures than a well-intentioned but possibly

skittish child protective worker. Judges lack an emotional

or professional stake in the outcome, while child protective

agencies often adopt “safety first” policies that encourage,

or at least condone, employees’ reliance on guesswork and

hunches. Agencies also overreact and intervene too often

and too aggressively in the wake of a highly-publicized

child fatality that allegedly resulted from an agency’s

failure to intervene. Judges do have personal views about

child safety issues, but, because of their assigned role

and their training, are far more likely to steer a middle

course no matter what the public mood seems to be or what

political winds are blowing inside the child welfare agency.

Those of us who are familiar with the workings of

the juvenile/family courts also know that once an agency

has removed a child without a court order, the deck can

become stacked in favor of continued removal. After the

child already has experienced the trauma of separation, a

judge might be more likely to order removal than the judge

would be when making the decision in the first instance.

Although a parent has a presumptive right to custody, a

judge might be influenced by the fact that the children

already are residing with foster parents who are believed

to be capable and caring, or be swayed by a natural

reluctance to uproot the children yet again before more

information is obtained. See Mark R. Brown, Rescuing

Children from Abusive Parents: The Constitutional Value

of Pre-Deprivation Process, 65 OHIO ST. L. J. 913, 928

(2004) (author notes that judges apply a higher standard

when judging warrant applications before a search than

9

when deciding suppression motions after incriminating

evidence has been found).

Child protective agencies are well aware that they

can carry out their own changing and idiosyncratic

policies regarding searches and seizures, and gain an

advantage in litigation, when they act unilaterally rather

than expose their decision-making to judicial review.

New York City’s child protective agency (now called the

Administration for Children’s Services, or “ACS”) has a

history of violating N.Y. Fam. Ct. Act § 1024 by removing

children without attempting to obtain a court order in

circumstances in which there was ample time to do so

without placing the child at any risk of harm. The message

from child protective agencies that operate in this way is

unmistakable: we know best how to protect children, and

because judicial review will only postpone the inevitable

or else hinder our work, we will avoid it when we can and

do what we believe is best for the children. This is not to

say that the agencies do not have good intentions, but, like

many other government agencies, they often prefer not

to have their behavior scrutinized, or be inconvenienced.

This tendency to avoid judicial oversight whenever

possible has not gone unnoticed by courts in New York.

In Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999),

the Second Circuit cited evidence that it was routine child

protective agency practice to seek a removal order from

a court only after removing the child. New York City

specifically conceded that both “the removal of Sarah and

her subsequent examination” were accomplished pursuant

to City policy, and that concession was reconfirmed at oral

argument in the Second Circuit. 1938 F.3d at 591.

10

In Nicholson v. Williams, 344 F.3d 154 (2d Cir. 20038),

plaintiffs alleged that there was a government custom

or practice of removing children from the custody of a

parent who had been battered by a spouse or paramour,

based on the theory that the parent’s failure to protect the

child from witnessing the abuse was itself a form of child

neglect. The district court found that, in many instances,

removal took place, either with or without court order,

where the only substantiated basis for finding neglect was

that the custodial parent “allowed” the child to witness

the custodial parent being abused by another adult. The

district court also found that top policy-makers at the

agency knew of the practices alleged, and responded

by making only cosmetic changes in the agency’s policy

statements, which offered contradictory guidance or no

guidance at all, and generally had taken only preliminary

and insufficient steps to train the agency’s staff to

understand domestic violence issues. 193 F.3d at 163-164.

In People United For Children, Inc. v. City of New

York, 214 F.R.D. 252 (S.D.N.Y. 2003), reconsideration

denied 2003 WL 22056930, plaintiffs who were “African

American or black” alleged that ACS failed to fully

investigate allegations of child neglect and abuse against

parents and legal guardians before removing children

from their custody, and that there was a policy of resolving

“lajny ambiguity regarding the safety of a child ... in favor

of removing the child from harm’s way” and returning

children to their parents or guardians “[o|]nly when

families demonstrate to the satisfaction of ACS that their

homes are safe and secure.” 214 F.R.D. at 254-55.

Our staff still sees evidence of these practices.

We often represent children who have been removed

by the agency without a court order months after the

initial report of abuse or neglect was made, and in many

instances the removal does not appear to have been fueled

by new evidence of abuse or neglect. Sometimes removal

is a child protective worker’s reaction to the parents’ lack

of cooperation, and is designed to create a more powerful

incentive for the parents to comply with the agency’s

efforts to provide rehabilitative services. Needless to

say, the agency is later hard-pressed to explain why it

allowed the children to remain at home for many months,

and, all of a sudden, found there was an emergency that

justified removing the children without first seeking court

authorization.

Petitioners and their amici supporters highlight the

State’s compelling interest in protecting children and

the fact that seizures by child protective agencies flow

from a desire to protect the child, and also observe that

the child has an independent right to be protected from

harm.® We do not doubt that. But that is in no way relevant

to the question of whether judicial review is practicable

or desirable. Arrests of criminal suspects flow in part

from a desire to protect the community from a potentially

dangerous individual: that impulse is no less salutary than

the desire to protect a child from an abuser, yet no one

has ever cited it as reason for circumventing court review.

See Coleman, Storming the Castle to Save the Children:

The lronic Costs of a Child Welfare Exception to the

Fourth Amendment, 47 WM. & MARY L. REV. at 475-

476 (“Notably, courts that favor the Fourth Amendment’s

particularized warrant and probable cause requirements

5. See, e.g, Breef of the California State Ass'n of Counties,

and League of California Cities as Amicus Curiae in Support of

Petitioners, at 23-28; Brief of the Cook County Public Guardians

as Amicus Curiae in Support of Neither Party and Suggesting

Reversal, at 7.

12

reject the argument that state officials need unfettered

discretion to conduct this class of investigations simply

because they concern children. Instead, they equate child

abuse with other violent crimes for which no exception

exists to the Fourth Amendment’s usual strictures;

they find that the exigent circumstances exception is an

adequate tool to protect children who the government

legitimately perceives to be at risk”).

Moreover, while child protective agencies’ intent

may be to protect children from abuse and neglect at

home, often they provide substandard conditions as an

alternative, and make inadequate efforts to reunite the

family. In our practice, we see children who have been

denied visitation with their parents that is sufficient to

preserve familial ties, or been placed inappropriately

in institutional settings when they should be in a foster

family home, or been separated from their siblings and

placed in different homes or congregate care facilities,

or been deprived of adequate medical and mental health

treatment and other essential services. The many lawsuits

aimed at dysfunctional child welfare systems around the

country attest to the failure of child protective authorities

to provide quality care and services to children and their

families, and, in many instances, to protect children from

being abused and neglected in foster care.’ So, when child

6. A number of these cases are cited in Kenny A. v. Perdue,

2004 WL, 5503780 (N.D.Ga. 2004). In LaShawn A. v. Kelly, 990

Ik 2d 1319 (D.C. Cir. 1993), affg 762 F.Supp. 959 (D.D.C. 1991),

scandalous problems in the Distriet of Columbia’s child welfare

system were exposed. Problems in New York City’s child welfare

system were brought to light in Marisol A. v. Giuliani, 126 F.3d 372

(2d Cir. 1997), affg 929 F.Supp. 662 (S.D.N-Y. 1996). In Nicholson

v Scoppetta, 3 N.Y.3d 357 (2004), the New York State Court of

1s

protective authorities pray for special treatment under

the Fourth Amendment, they do not do so with clean

hands. Their history of failing to protect children sounds

the alarm for as much judicial oversight as is practicable.

In sum, requiring advance judicial authorization

for child protective seizures whenever practicable is a

“win-win” proposition. It will create no additional risk

to children’s safety, and will improve overall] outcomes

by protecting children and their families from the harm

that flows from unnecessary and improper searches and

seizures. See Tenenbaum v. Williams, 193 F.3d 581, 604

(“As we observed in discussing procedural due process,

judicial authorization makes a fundamental contribution to

the proper resolution of the tension among the interests of

the child, the parents, and the State”). Law enforcement

authorities investigate crimes, and confront public

emergencies and dangers, that require a prompt and

focused response, and yet those authorities have managed

to function effectively under the Fourth Amendment’s

probable cause and warrant requirements. There is no

reason why child protective authorities cannot do so as

well. The agencies and their attorneys are fully familiar

with the courts in which they practice and appear, and

know how to obtain court orders when they need them.

Appeals held that the risks to the child resulting from removal

itself must be factored into the agency’s removal determination,

and thus a court, when considering removai, must do more than

identify the existence of a risk of serious harm. “Rather, a court

must weigh, in the factual setting before it, whether the imminent

risk to the child can be mitigated by reasonable efforts to avoid

removal. It must balance that risk against the harm removal might

bring, and it must determine factually which course is in the child’s

best interests.” 3 N-Y.3d at 378.

14

Il. Federal Appeals Court Decisions Have Applied

Probable Cause and Advance Judicial Review

Requirements To Home Entries, Removals of

Children for Placement in Foster Care, and

Physical Examinations of Children by Child

Protective Authorities

When child protective authorities investigating

allegations of abuse or neglect enter a family’s home

without consent and/or seize a child for the purpose of

placing the child in foster care, or conduct an intrusive

body search, Fourth Amendment probable cause and

judicial authorization requirements should apply unless

a person exercising reasonable judgment would conclude

that the child will be exposed to the danger of abuse

before court authorization can be obtained. If there is

time to go to court, there is no emergency, and thus it

is unreasonable to seize the child. Support for this view

appears in federal appeals decisions, and we urge the

Court to adopt the reasoning in those cases. While some

of those decisions, like the Ninth Circuit’s decision in this

case, appear to have turned on the fact that there was

police involvement,’ we do not believe that the absence

of police involvement should be a decisive factor since

the need for judicial review is compelling no matter who

is taking action. And, even if the Court does not apply

probable cause and judicial review requirements, and

chooses instead to apply a “reasonableness” standard,

the Court should hold that it is not reasonable for a child

protective agency to engage in these intrusive activities

7. The Ninth Circuit itself had previously applied traditional

hourth Amendment protections to a non-consensual home entry

by a social worker and a police officer to interview and examine

the children. Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999).

15

without a court order when there is ample time to obtain

an order without endangering the children.

The dangers created by child protective agency

overreaching are nowhere more evident than in the Second

Cireuit’s decision in Tenenbaum v. Williams, 193 F.3d

581. Five-year-old Sarah Tenenbaum was removed at

about noon from her kindergarten class without a court

order or parental consent and taken to the emergency

room at Coney Island Hospital where a pediatrician and

a gynecologist examined her for signs of possible sexual

abuse. When no signs were found, Sarah was returned

to her parents and the matter was abandoned by the

authorities as an “unfounded” report of abuse. Sarah’s

parents brought suit against, inter alia, New York City

and its child protective agency (then known as the Child

Welfare Administration), and raised substantive and

procedural Due Process and Fourth Amendment claims.

A Second Circuit majority, reversing an award of

summary judgment in defendants’ favor, found a triable

issue of facet as to whether defendants’ removal of Sarah

from school was contrary to Sarah’s right to be free from

unreasonable seizures under the Fourth Amendment. In

doing so, the court, while holding that it is appropriate to

apply Fourth Amendment probable cause and warrant

requirements to child protective authorities, concluded

that “liJf information possessed by [the child protective

workers] warranted a person of reasonable caution in

the belief that Sarah was subject to the danger of abuse

if not removed from school before court authorization

reasonably could be obtained, Sarah’s removal complied

with Fourth Amendment requirements despite the

absence of a warrant equivalent because probable cause,

16

reasonable cause, and exigent circumstances sufficient to

justify it existed.” 193 F.3d at 605."

Rejecting application of Fourth Amendment “special

needs” analysis, the Second Circuit asserted that “if [child

welfare] caseworkers have ‘special needs,’ we do not think

that freedom from ever having to obtain a predeprivation

court order is among them. Caseworkers can effectively

protect children without being excused from ‘whenever

practicable, obtainling] advance judicial approval of

searches and seizures, Terry v. Ohio, 392 U.S. 1, 20, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968) (emphasis added). As

we observed in discussing procedural due process, judicial

authorization makes a fundamental contribution to the

proper resolution of the tension among the interests of the

child, the parents, and the State. At the same time, it cannot

be said that the requirement of obtaining the equivalent of

a warrant where practicable imposes intolerable burdens

on the government officer or the courts, would prevent

such an officer from taking necessary action, or tend to

render such action ineffective.” 193 F.3d at 604.

%. The Eleventh Circuit prefers an exigent circumstances

analysis that does not automatically turn on the feasibility

of prompt court review and allows consideration of all the

circumstances. Doe v. Kearney, 329 F.3d 1286, 1297-1298 (1th

Cir. 2003). The Tenth Circuit agrees with the Eleventh Circuit

that the presence or absence of sufficient time for judicial approval

should not be “the single focus,” because “|ijn many instances, it

may not be entirely clear either how long it would take to obtain

judicial approval or whether the period of delay would jeopardize

the safety of the child,” but has warned that if no consideration is

given to the availability of judicial approval, “the definition of an

emergency may be broadened to such an extent that due process

rights are eroded. Tenenbaum, 193 F.3d at 584.” Gomes v. Wood,

451 F.8d 1122, 1130-1131 (0th Cir. 2006).

17

The Second Circuit also held that even under special

needs analysis, the same result was required: “If a more

general ‘special needs’ ‘reasonableness’ test applies,

we nonetheless see no basis upon which to depart from

the probable cause standard here. If the information

possessed by |the child welfare workers] would have

warranted a person of reasonable caution in the belief that

Sarah was subject to the danger of abuse if not removed

from school before court authorization could reasonably

have been obtained, her removal was reasonable also.”

193 F.3d at 604.%

The Second Circuit also found that the physical

examination of Sarah violated her Fourth Amendment

rights, noting that there was no emergency because, at

the time of the examination, Sarah “could not have been

in danger from her father while she was being held by the

lchild protective agency].” 193 F.3d at 606.

Similarly, when addressing home entries made by

child protective authorities, federal appeals courts have

held that Fourth Amendment probable cause and judicial

authorization requirements apply, at least when there is

police involvement. This should come as no surprise given

9. The Second Circuit did not hold that special needs

analysis will never be appropriate: “But we refrain from deciding

categorically, as did the district court, that the removal of a child

of whom abuse is suspected is not a ‘special needs’ situation. There

may be circumstances in which the law of warrant and probable

cause established in the criminal setting does not work effectively

in the child removal or child examination context.” 193 F.3d at

604. But the Second Circuit did not give the child welfare agency

unfettered discretion to proceed without a warrant as petitioners

and their supporters would have this Court permit.

1%

that the }ourth Amendment is concerned most of all with

protecting citizens from physical entry into the home.

Payton v. New York, 445 U.S. 578, 585-586 (1980); United

States v. United States Dist. Ct., 407 U.S. 297, 313 (1972).

In Good v. Dauphin County Social Services for

Children and Youth, 891 F.2d 1087 (3d Cir. 1989), the Third

Circuit held that a caseworker and a police officer violated

the Fourth Amendment when they entered plaintiffs’

home and strip searched a child in the absence of consent,

a valid search warrant, or exigent circumstances. The

court noted that “(t]he Fourth Amendment caselaw has

been developed in a myriad of situations involving very

serious threats to individuals and society, and we find no

suggestion there that the governing principles should

vary depending on the court’s assessment of the gravity

of the societal risk involved. We find no indication that the

principles developed in the emergency situation cases we

have heretofore discussed will be ill suited for addressing

cases like th one before us.” 891 F.2d at 1094.

In Gates v. Texas Department of Protective and

Regulatory Services, 537 F.3d 404 (5th Cir. 2008), the

Fifth Circuit, noting that traditional Fourth Amendment

standards regulate social workers’ civil investigations,

537 F.3d at 419-420, held that social workers violated

the Fourth Amendment when they made a warrantless

entry into plaintiffs’ home in the absence of consent or

exigent circumstances. The court found no special needs

in light of the involvement of law enforcement officers,

who accompanied the social workers into the home. 537

I.3d at 424. The Fifth Circuit had reached a similar

conclusion in foe v. Texas Department of Protective

and Regulatory Services, 299 F.8d 395 (5th Cir. 2002),

19

where child protective workers and the police entered

and conducted a visual search of a child’s body cavities

without a warrant.

In Roska ex rel. Roska v. Peterson, 328 F.3d 1230

(10th Cir. 2003), the Tenth Circuit held that there was

no special need that rendered the Fourth Amendment’s

warrant requirement impracticable when social workers,

accompanied by a police officer, entered a home to remove

a child. 328 F.3d at 1242.

In Doe v. Kearney, 329 F.3d 1286 (11th Cir. 2003), the

Kleventh Circuit held that a state official must obtain a

court order prior to removing a suspected victim of child

abuse from parental custody unless there is probable

cause to believe the child is threatened with imminent

harm. 829 F.3d at 1293-1294."

lil. The Emergency and Exigent Circumstances

Exceptions to the Judicial Authorization

Requirement, and the Possibility of Obtaining

Consent, Provide Child Protective Agencies With

More Than Enough Authority to Protect Children

From Imminent Harm

When a child is at risk of being abused before a court

order can be obtained, child protective agencies can rely

10. The Seventh Circuit has taken a somewhat different

approach. In Brokaw v. Mercer County, 285 F.3d 1000 (7th Cir.

2000), the Seventh Circuit held that the removal of a child from

his or her home is reasonable if it is: (1) done pursuant to a court

order; (2) supported by probable cause; or (3) justified by exigent

circumstances, meaning that state officers had reason to believe

that life or limb was in immediate jeopardy. 235 F.3d at 1010.

20

on the emergency and exigent circumstances exceptions.

With respect to home entries, the emergency exception is

particularly suitable. Child protective officials “may enter

a home without a warrant to render emergency assistance

to an injured occupant or to protect an occupant from

imminent injury.” Brigham City v. Stuart, 547 U.S. 398,

403 (2006). All that is required is an objectively reasonable

basis for believing that a person in the house is in need

of immediate aid. Michigan v. Fisher, U.S._, 130 S.Ct.

546, 548 (2009) (entry was reasonable where defendant’s

projectiles might have a human target, “perhaps a spouse

or achild”). The exigent circumstances exception provides

broad discretion in other circumstances. See, e.g., Tierney

v. Davidson, 133 F.3d 189 (2d Cir. 1998) (search after

officer discovered defendant was justified by concern that

defendant or children were still in danger); United States

v. Antwine, 873 F.2d 1144 (8th Cir. 1989) (entry justified

after arrest of defendant where agent believed he needed

to obtain weapon displayed by defendant prior to leaving

children alone in home).

The exigent circumstances exception certainly could

come into play during an investigation at a child’s school.

Say a thirteen-year-old child is interviewed at 9:00 a.m.

and discloses that her father, her sole caretaker, has been

sexually abusing her. She is scheduled to be discharged

from school and picked up by her father at 2:30. That leaves

more than five hours within which the agency can appear

before a judge and seek a court order. But if the same child

walks up to her teacher minutes before she will be picked

up by her father and makes the same disclosure, getting

a court order before the father takes the child home is

impossible, and thus the agency may remove the child

without a court order. Moreover, if, in the former scenario,

21

the agency found that because of court congestion it could

not get in front of a judge before 2:30, removal without a

court order might also be appropriate.

Undoubtedly, it is in the interests of petitioners and

their amici supporters to downplay the prominent role

of these exceptions in Fourth Amendment jurisprudence.

They would rather have the Court be alarmed at the

prospect of children being harmed while child protective

authorities are seeking a court order. Yet, where a child

protective agency has reasonably concluded that a child

would be seriously harmed if allowed to return to or

remain in the home, and there is not sufficient time to

obtain a court order, who would second guess the decision

to rely on an exception to the warrant requirement?

In many instances, child protective authorities are

able to obtain voluntary consent from the parents or

from the child. Again, petitioners and their supporters

might prefer to downplay the utility of this option, but in

our experience consent is provided routinely. The Ninth

Circuit, as well as petitioner and their amici supporters,

have focused on parental consent. Yet, because a child’s

own Fourth Amendment rights are at stake, we think

the child’s willingness, or refusal to consent will be a

critical factor in certain contexts. Say, for instance that a

seventeen-year-old child’s parents refuse to consent to an

examination of the child for signs of physical abuse, but

the child, seeking protection from her abusive parents, is

willing to submit to the examination. The child’s consent

should control. The same would be true if the parent

consented to the examination, but the child refused. In

contrast, we think the parent’s consent should be effective

when a three-year-old child is to be examined since a

22

child that age has no reasonable expectation of privacy

that competes with parental prerogatives. In this case,

what if S.G., upon leaving her classroom, had asked why

she was being taken out of class, was informed that there

were people there who wanted to talk to her about whether

her father was hurting her, and promptly said she did not

want to go and started back towards her classroom. Would

anybody be arguing that she was not seized if she had been

grabbed by the elbow and, while she tried to pull away,

been forcibly taken to see Camreta and Alford? And if

5.G. had expressed relief that, finally, someone had found

out what was happening and was going to help her, would

anybody be arguing that there was a seizure?

IV. Investigative Activity by Child Protective

Authorities Which Falls Short of a Removal

for Placement in Foster Care, But Far Exceeds

the Scope of a Limited Seizure, Should Require

Advance Judicial Authorization Whenever It is

Practicable

Due to the length of time involved and the level of

interference with a child’s liberty, certain seizures that

do not involve placement in foster care should activate

probable cause and judicial authorization requirements.

An example would be a case in which a child protective

caseworker and a police officer, after being allowed to

enter a family’s home, compel the parents and the child to

accompany them to the caseworker’s office, or to a doctor’s

office or a hospital, for purposes of further investigation.

In Hayes v. Florida, 470 U.S. 811 (1985), the Court held

that the Fourth Amendment was violated when a suspect

was transported to the station house for fingerprinting,

23

without his consent and without probable cause or prior

judicial authorization. The Court noted: “There is no doubt

that at some point in the investigative process, police

procedures can qualitatively and quantitatively be so

intrusive with respect to a suspect’s freedom of movement

and privacy interests as to trigger the full protection of

the Fourth and Fourteenth Amendments. . .. We adhere

to the view that such seizures, at least where not under

judicial supervision, are sufficiently like arrests to invoke

the traditional rule that arrests may constitutionally be

made only on probable cause.” 470 U.S. at 815-16.

It is true that a criminal suspect may be arrested

outside his or her home without a warrant. In United

States v. Watson, 423 U.S. 411 (1976), the Court noted that

“the judgment of the Nation and Congress has for so long

been to authorize warrantless public arrests on probable

cause rather than to encumber criminal prosecutions

with endless litigation with respect to the existence

of exigent circumstances, whether it was practicable

to get a warrant, whether the suspect was about to

flee, and the like.” 423 U.S. at 423-424. But no such

judgment has been made regarding seizures of children

during child protective investigations, and there is no

possibility of “endless litigation” in child protective court

proceedings since evidence is not subject to suppression

in such proceedings on Fourth Amendment grounds. See

Pennsylvania Board of Probation and Parole v. Scott,

524 U.S. 357, 363 (1998) (court “hals] repeatedly declined

to extend the exclusionary rule to proceedings other than

criminal trials”).

Moreover, while an at-large criminal suspect may do

more harm and must be apprehended as soon as possible,

24

a child who has allegedly been victimized presents no

danger. As well, a child protective worker’s determination

that a child is in imminent danger involves an intricate

and potentially subjective and speculative analysis that

differs dramatically from a police officer’s faect-driven,

dispassionate determination of probable cause. Thus,

judicial review is far more important as a safeguard in

the context of child protective investigations. As one

author has put it: “For all these reasons, rescue is more

of a gamble than might initially appear. While I am not

aware of data that proves or disproves this proposition,

it appears reasonable to believe that the likelihood of

erroneous rescue is larger than the likelihood of erroneous

arrest. The modern child welfare system lacks the indicia

of reliability attached to criminal law enforcement. Unlike

police forces, caseworker turnover is constant. Training

is minimal and morale low. Caseworkers are routinely

expected to apply vague standards to ambiguous facts.

In light of the uncertainty that is naturally attached to

these problems, one could easily conclude that greater

procedural protections are needed. Post-deprivation

review may suffice for arrest, but not for rescue and

removal.” Mark R. Brown, Rescuing Children from

Abusive Parents: The Constitutional Value of Pre-

Deprivation Process, 65 OHIO ST. L. J. at 962.

V. When the Child is Seized in a Manner Equivalent

to a Limited “Terry Stop,” Application of Terry’s

Reasonableness Standard is Appropriate, But

Where, as Here, the Child is Seized Several Days

After the Report of Abuse, Advance Judicial

Authorization Should be Required

Petitioners and their amici supporters suggest that

the Ninth Circuit’s ruling poses a threat to all questioning

25

of children during child protective investigations.

Admittedly, if this Court were to rule that any incidental

restriction on a child’s freedom of movement during

interviewing by child protective authorities always

constitutes a seizure, and always activates probable cause

and warrant requirements, we would have concerns as well.

Yet the Ninth Circuit did not come close to ruling

that interviews of the type involved in this case always,

or even frequently, constitute a seizure. Rather, the

court was persuaded that there was a seizure in a case

involving an interview that had certain coercive elements,

including: (1) the fact that the school counselor told S.G.

that someone was there to talk with her and took her to

the room where Camreta and Alford were waiting; (2)

Camreta’s insistent questioning about “bad touches” in

an attempt to get S.G. to change her answers; (3) the

two-hour length of questioning; and (4) the presence of an

armed police officer. On these facets, we do not think that

ruling was unreasonable."' Indeed, support for the Ninth

Circuit’s ruling appears in Doe v. Heck, 327 F.3d 492 (7th

Cir. 2003), which was cited by the Ninth Circuit (588 F.8d

at. 1022). In Heck, the Seventh Circuit found that a private

school student was seized when he was escorted from class

by the Principal, the caseworkers, and a uniformed police

officer into the church's nursery, and then questioned,

with the police officer present, for twenty minutes about

intimate details of his family life, because no reasonable

child would have believed that he was free to leave the

11. Petitioners do not directly challenge the Ninth Cireuit’s

finding that a seizure occurred. Their amici supporters are divided

into two camps: some, including the Solicitor General (Brief for

the United States as Amicus Curiae Supporting Petitioners, at

21-22), assume arguendo that there was a seizure, while others

directly challenge the Ninth Circuit’s seizure finding.

26

nursery. Likewise, in Williams v. Pollard, 44 F.3d 4383

(6th Cir. 1995), the Sixth Circuit found that there was a

seizure when a social worker interviewed the child for

more than two hours.”

It is true that this case involves a limited seizure, and

not a full-blown removal of the child from the custody of

the parents or an intrusion that far exceeded the scope of

a typical seizure. Nevertheless, the Ninth Circuit properly

applied traditional Fourth Amendment requirements. The

Oregon Department of Human Services (“DHS”) was

informed that about a week earlier Nimrod Greene had

been arrested on a charge that he had touched the penis

of F.S., aseven-year-old boy, over his jeans when Nimrod

was drunk in the home of F.S.’s parents. F.S.’s mother told

the police that S.G.’s mother Sarah had complained about

the way her husband Nimrod makes S.G. and her sister

K .G. sleep in his bed when he is intoxicated, and that Sarah

did not like the way Nimrod acts when S.G. and K.G. are

sitting on his lap. F.S.’s father told the police that Nimrod

12. These seizures by child protective authorities bear no

resemblance to the suspicionless, information-seeking highway

stops approved in /llinois v. Lidster, 540 U.S. 419 (2004). Although

S.G., like the motorists in Lidster, was potentially a witness to

illegal conduct, in Lidster the Court relied on the fact that “(iJ

nformation-seeking highway stops are less likely to provoke

anxiety or to prove intrusive” than the checkpoint stops in

Indianapolis v. Edmonds, 531 U.S. 32 (2000) that were aimed at

individuals involved in drug offenses; the fact that information

seeking stops “are likely brief”; and the fact that “citizens will

often react positively” to being stopped. 540 ULS. at 425. In

contrast, seizures of children by child protective workers are

likely to provoke anxiety and/or prove intrusive, are not likely to

be brief, and usually will not inspire a positive reaction.

27

himself had commented about accusations made by Sarah

that he molested his daughters, and about the fact that

Sarah did not like it when the girls lay in bed with him

when he had been drinking. F.S.’s father informed the

police that these types of comments and accusations had

“come in several ways” from Nimrod and Sarah.

This was more than enough information - it included

Sarah’s admission that she had allowed inappropriate

contacts between the girls and their father, and a possible

admission by Nimrod - to support an application for a

court order permitting DHS to seize S.G. for purposes of

an interview. DHS had no need to develop additional facts

in order to persuade a judge that there were sufficient

yrounds for the school seizure. Instead, DHS waited three

days before going to S.G.’s school. This was not a dynamic,

rapidly developing investigative process. This was a pre-

planned seizure that could, and should, have been reviewed

by a judge before it happened. Faced with ample time to

seek a court order, the agency chose to act unilaterally.

In these circumstances, the Ninth Circuit's ruling

makes complete sense. Indeed, the Ninth Circuit remained

true to this Court’s admonition in Terry v. Ohio that,

whenever practicable, advance judicial approval of

searches and seizures should be obtained. The Ninth

Circuit’s holding also finds support in Doe v. Heck, 327

I.3d 492, where the Seventh Circuit, after finding that the

child was seized when he was escorted from a classroom

into a church nursery and questioned with a police

officer present, held that the seizure was presumptively

unreasonable and could be upheld only if it fell within

one of the few specifically established and well delineated

238

exceptions to the Fourth Amendment’s warrant and

probable cause requirements. 327 F.3d at 513."

It is true that conducting an interview with S.C. rather

than removing the children was a prudent thing to do,

since the possibility existed that DHS would determine

that S.G. and her sister had not been abused or that there

was a safety plan that would suffice as protection. It is

also true that seeking parental consent would have given

the parents a “heads-up” and created a risk that they

would interfere with the free flow of information from the

children.“ If DHS had merely conducted a non-coercive

13. For the reasons cited by the Ninth Circuit (Camreta, 588

I 3d at 1023-1025), and by the Second Cireuit in Tenenbaum (193

I’.3d at 607), the fact that S.G. was seized in school is not relevant.

It is true that “requiring a teacher to obtain a warrant before

searching a child suspected of an infraction of school rules (or of

the criminal law) would unduly interfere with the maintenance

of the swift and informal disciplinary procedures needed in the

schools.” New Jersey v. T.-L.0. 469 U.S. at 340. But when there is

more than sufficient time to obtain a court order while the child

remains safe, requiring child protective officials to apply for an

order causes no inconvenience that justifies forgoing the ample

benefits of judicial oversight. We reject any suggestion that merely

because the child is not free to leave the school during school

hours, the child is virtually fair pame for anyone, including a child

protective caseworker or a police officer, who wishes to seize the

child on school grounds.

14. We apree with the Ninth Circuit (Camreta, 588 F.3d at

1030, n.18) and the Second Cireuit (Tenenbaum, 193 F.3d at 594,

n. 9) that school officials’ consent to a seizure of a student is not

effective for Fourth Amendment purposes. A child attends school

to get an education. That is the expectation of the parents when

they send their child to school, and that is the child’s expectation.

W hen school officials interfere with a child’s freedom of movement

within the school for the purpose of maintaining discipline and

order, it does not upset the reasonable expectations of the child

29

interview of S.G., there would be no Fourth Amendment

issue presented. And if DHS had gone to the school without

the police immediately after the allegations came to light,

and, as a result of information developed during non-

coercive initial questioning, detained S.G. temporarily in a

Terry-like dynamic encounter to determine whether it was

safe for her to return home, we would be on petitioners’

side, arguing that the reasonableness standard should

apply and that DHS needed only reasonable suspicion that

S.G. had been abused.”

or her parents. In contrast, when a child protective caseworker

removes a child from a classroom learning environment and

confines the child in a room and questions the child about abuse

allegations that have absolutely nothing to do with school discipline

and order, the child’s freedom of movement has been restricted ina

manner that bears no resemblance to what is expected or typical in

the school setting. Although the Seventh Circuit takes a different

view when public school (rather than private school) officials are

involved |compare Darryl H. v. Coler, 801 F.2d 893, 902 (7th Cir.

1986) (where visual inspections of children were conducted by child

protective workers in public school with consent of school officials,

probable cause and warrant not required) with Doe v. Heck, 327

I 3d 492], we urge this Court not to do so and transform teachers

into adjuncts of child welfare workers.

15. Both petitioner Alford (Brief For Petitioner James

Alford, at 61), and the Solicitor General (Brief for the United States

as Amicus Curiae Supporting Petitioners, at 7), have proposed

a reasonable suspicion standard. This position finds support in

cases upon which petitioners rely, such as Terry v. Ohio and New

Jersey v. T1,0. Others have pointed out that “|djJemonstrating

that probable cause exists is particularly difficult in child abuse

situations because often only the abuser and the victim know about

the offense.” Brief of the States of Arizona, et al. as Amicus Curiae

in Support of Petitioners, at 30. But because this argument, taken

Lo its logical conclusion, would justify rejection of even a reasonable

suspicion requirement, and leave child protective authorities free

to act based on rumor and conjecture, the argument must fail. The

30

Kut all that has nothing to do with the question of

whether DHS, sufficiently sanguine about S.G.’s safety to

let three days go by without speaking to her, should have

obtained a court order before conducting a pre-planned

Fourth Amendment seizure with the assistance of an

armed police officer.

CONCLUSION

We know full well the importance of a prompt,

thorough, and probing investigation of allegations of

abuse or neglect. At the same time, we know that the

child welfare system is deeply flawed. Child protective

apencies, protective of their prerogatives and resistant

to judicial oversight, do not have the kind of track record

that justifies awarding them special treatment under the

Fourth Amendment.

If the Court wishes to find a weather vane to point it in

the right direction, it need look no further than the Federal

trial and appellate courts. Those are the courts in which

child welfare authorities have been sued by families that

have been victimized by unnecessary and arbitrary agency

intervention, and by foster care systems in which children

languish for years without finding permanency, receive

inadequate medical and mental health treatment and

educational services, and are physically and emotionally

abused. Those are the courts that know well the child

welfare system’s worst flaws, and the response from those

courts has been to require judicial review, whenever it is

practicable, before a child is seized.

need to develop evidence via an interview with the child cannot,

by itself, justify a seizure, much less a removal for placement in

foster care.

3]

We do not doubt the good faith of child welfare

authorities. But under Fourth Amendment analysis,

“special needs” arise not from noble motives, but from

the need to take action unfettered by probable cause and

warrant requirements. There is a special need to seize

a child without a warrant when an informal interview

suddenly yields information about abuse and the child

would be in danger if she were allowed to go on her

way. But there is no special need when there is ample

time to get a court order authorizing a home entry, or

the removal of a child for placement in foster care, or a

physical examination for signs of sexual abuse, without

exposing the child to danger. And, in this case, there was

no special need when S.G. was seized three days after

abuse allegations came to the attention of child protective

authorities.

Accordingly, we urge the Court to find that the seizure

of S.G. violated the Fourth Amendment and affirm the

decision below.

Respectfully submitted,

STEVEN BANKS

Counsel of Record

TAMARA STECKLER

GARY SOLOMON

THe Lecar Arp Socirery

199 Water Street

New York, New York 10038

(212) 577-3551

sbanks@legal-aid.org

Counsel for Amicus Curiae

¢

ee