# Amicus Curiae Brief — Camreta v. Greene

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0596%3A27

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0596%3A27. Public record. Not legal advice.