Amicus Curiae Brief — Camreta v. Greene

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Supreme Court. US.

FILED

Nos. 09-1454, 09-1478 JAN 26 2011

—————— = — Tatas SRAGE GE THE CLERK —

In The

Supreme Court of the Anited States

—— ¢

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,

’etitioner,

SARAH GREENE, personally and as next

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

Respondent

--—— ----—-— ens

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF OF THE PACIFIC JUSTICE INSTITUTE

AND CPS WATCH LEGAL TEAM AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

DENNIS B. ATCHLEY' SHAWN A. MCMILLAN

DONNIE R. Cox 4955 Via Lapiz

LAW OFFICE OF DONNIE Ro Cox San Diego, CA 92122

402 N. Nevada Street (858) 646-0069

Oceanside, CA 92054 Attyshawn@netscape. net

(76 -O26:

Monla stains com PAUL W > ownage

*Counsel of Record 2 ~ Rast Fig Street,

, - Ste. 101

DAVID J. BRAUVAIS fallbrook, CA 92028

409 13th Street, 20th BL (760) 723-0711

Oakland, CA 94612 Law@leehey.com

(510) 832-3610

davebeau@pacbell net

Counsel for Amict Curtae

_—— eve -— ed

COCKLE LAW BIUED PRINTING CO. (800) 225 O004

OK CALL COLLECT 402) 542 “531

II.

III.

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURITIAE ...............

DISCUSSION OF CAMRETA V. GREENE...

SUMMARY OF ARGUMENT ...00000000.0.......

ARGUMEN'TP............ fe daaidditntearamehindsd cusvenieccesis

IV.

Vi.

VIL.

VILL.

IX.

JUDICIAL REVIEW IS ESSENTIAL IN

THE ABSENCE OF EMERGENCY OR

PARENTAL CONSENT. .........................0064

CPS AGENTS ARE THE FUNCTIONAL

EQUIVALENT OF POLICE OFFICERS

AND SHOULD BE REQUIRED TO OB-

SERVE THE SAME CONSTITUTIONAL

STANDARDS AS POLICE OFFICERS .....

EXIGENCY IS AN ADEQUATE EXCEP-

TION TO WARRANT REQUIREMENTS ...

NO REMEDY EXISTS IN THE JUVE-

NILE COURTS FOR ABUSE OF CON-

STITUTIONAL RIGHTS ....... Ae Thtaieckesioaes

THE VAST MAJORITY OF CPS AGENTS

LACK THE EDUCATION AND TRAIN

ING REQUIRED TO QUALIFY AS A

TEINS. Sicrsvesitdgndhesecadassassnpssenese

THE PERNICIOUS EFFECT OF SE-

CRECY IN THE JUVENILE COURT

EE ofakins orvcdostasasdlankipteiasedpeieecesinyinanes

OTHER SYSTEMIC ISSUES ILLUS-

TRATE THkE NEED FOR A CHECK ON

THE POWER OF CPS AGENTS

ee ee

]

TABLE OF CONTENTS — Continued

XI. MONEY CREATES A PERVERSE INCEN

TIVE IN THRE JUVENILE SYSTEM .........

TED. CPAP ORIOD costes vesccaecarcnencaceseinigabdaciiel

APPENDIX A

Certified copy of transcript of the deposition of

Verrt Ruffert, dated March 22, 2001, taken in

Tulare County Superior Court Case, No. 00-

0190263, Bucholz v. Tulare County, at pages

Rh, Oey RO RO, SII kccovcncancccscssaccccttiniceen App.

APPENDIX B

Associated Press story dated August 2, 2005,

regarding the Utah Attorney Generais adapt-

ing to the new requirement that warrants be

issued prior to the removal of children from

their homes for suspected abuse ..................... App.

APPENDIX C

Letter to the editor of the Syracuse Post-

Standard dated October 13, 2008, from Mark

Buttighei, Central Division Director of the

National Association of Social Workers’ New

York Chapter, regarding use of the term “so-

cial worker” in New York State ....................... App.

APPENDIX D

Letter to the editor of the Philadelphia Inquir-

er dated November 16, 2006, from Jenna

Mehnert, Executive Director of the Pennsyl-

vania Chapter of the National Association of

Social Workers, regarding licensing of social

workers in Pennsylvania ...........................00008. App.

TABLE OF AUTHORITIES

Page

CASES

Calabretta v. Floyd, 189 F.3d 808 (9th Cir.

era erg inseaWieSevinsseGankcnthaxcnceissecsecves sapseierdes

Camara v. Municipal Court, 387 U.S. 523

Ni ee er te oa tan cauabeeunndeuosveriundne 16

Chandler v. Miller, 520 U.S. 305 (1997)..................... 29

Chimel v. California, 395 U.S. 752 (1969) ...0. 0000... 28

Coolidge v. New Hampshire, 403 U.S. 448

NN a ashi dei las date ubentsgeanacsenes ccensackace scasavacess 13

Ferguson et al. v. City of Charleston, 532 US.

ar. asaucienntpnscaeauiace 29

Good v. Dauphin County Soc. Servs. For Chil-

dren & Youth, 891 k.cd 1087 (3rd Cir. 1989)... 3

Heartland Academy Church v. Waddle, 335

Se SI MD ooo ccicc sc ancs Concasonduseccevesswaces 2

Indianapolts v. Edmond, 531 U.S. 32 (2000)....... fede

Johnson v. United States, 333 U.S. 10 (1948) ........... 29

In re Jonathan L., 165 Cal. App. 4th 1074 (2008) ........ 1

Jonathan M. v. Superior Court, No. GO043674,

8/27/10, 2010 WL 3367683 (Cal. App. 4 Dist.).....3, :

los Angeles County v. Humphries, Nov. 30

2010 {2010 WL 482368 1] .... 0.0. ccccecc cece 27

[In re Mary S., 186 Cal. App. 3d 414 (1986) 00000000... 17

May v. Anderson, 345 U.S. 528 (1953)......0..00..0..0...... 28

Meyer v. Nebraska, 262 U.S. 390 (1923) -000000coo. 28

TABLE OF AUTHORITIES — Continued

Page

Michigan v. Tyler, 486 U.S. 499 (1978)... 13

Michael C. v. Gresbach, 526 F.3d 1008 (7th Cir.

NO mais cabsinnis Seda duced spick Aentsgic eatin wed teen 4s eneaies Chaat ee

Mincey v. Arizona, 437 U.S. 385 (1978) ... 0. 28

New Jersey v. 7.L.0., 469 U.S. 325 (1985) ...0 02... 12

People of the Territory of Guam v. McGravey, 14

ee ROG CORis CAae. PDS) «un... cc ccccevcccccsecccrsesnsescnves 7,38

People United for Children, Inc. v. City of New

ork, 108 F. Supp. 2d 275 (S.D.N-Y. 2000) ....... 17, 18

Prince v. Massachusetts, 821 U.S. 158 (1944) ..... a

Roska v. Peterson, 304 F.3d 982 (10th Cir. 2002) ........3

Santosky v. Kramer, 455 U.S. 745 (1982).....00..... 23, 24

Skinner v. Oklahoma, 316 U.S. 535 (1942) ...0........... 28

Skinner v. Ratlway Labor Executives’ Ass'n,

4389 U.S. 602 (1989)........ eb sshansatpuseuausediasibancustashaneh 29

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

Wallis vo. Spencer, 202 F.3d 1126 (9th Cir, 2000)......8, 9

CONSTITUTION

CP SE TO osc ces iidncsccunecrecscrjnsctinsdubenes passim

Op ee Ee rE ee iene eer reer iene cas 4

TABLE OF AUTHORITIES — Continued

Page

STATUTES

United States Code

BF Er, Ge RIAD Sosaceveoscteciesutncessevenscstestes 14

is Oe i irspced sce scans in acs acco cee cecsacecsacnccnesmesae 18

Oe FF. BID ois ovecasesccccnsesssncecoussesenecosee 11

42 UB... § SIDS SMAMEB)..00-cvcciccoisccccccnsccsssscess 1)

Child Abuse Prevention and ‘Treatment Act

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

ee di vracenvosbioscdbvueccadsstnscnteodacanthedupconsazeaesess 1}, 12

Tithe 1V-F of the Social Security Act ..0...0.0...0.............30

Alabama Code

I Te I WD aes ice de nde wecdckvcdspacerteseenses Le chaeusiticicael

I le ia as acts inten sepa tetera dead 11

NE I os Bo csici beds 3p Scdinretdanicskoadantipadacesaealites 11

Alaska Statutes

Section 47. 14.3 a). .......ccccccccccvssess hee BRET SMR ANNA Ps SA! 1}

section 47.17.033()....... Aiahiia Corina deamvetecobdsovacmenanisism 1]

Arizona Revised Statutes

PRI IND oi cscs ike oaks dnsapecanseccorscsaltiencorintl

Arkansas Code Annotated

SNS - Tris WEI og on oa cnc cnaune semonmisweun dees waceswioll

TABLE OF AUTHORITIES — Continued

Page

California Penal Code

Section 11166(a), (j), I) occcccocccccccecceececceceeeecececceceeee 11

California Welfare & Institutions Code

UNE III iss cose esinnscacvcunnnruuvssieciruiunstinngonnprsaenaen 1]

MINN UIID ecesteres acess. orci econ ceceas cdr nies eae 5

IIIT opie: coasisstantoaeconaceuscos oeccospeseceney menace: 22

Colorado Code Regulations

Section 2609-3:7.202.53(A) ..................cc.cccecesscceceees 11

Colorado Revised Statutes

I Bie ois vnc esecncssicsccssenccsecsvatedsecesenccdces 5

INI POD 5053 cdi ats Bo ec cifecatsecs came vicatoncl {1

Delaware — 16 Del. Code Ann.

oo RI Eee eh ear et or eae 12

Section 910(bXM 1) and (2) .0......0c.ccccceeceeccccecesecececeeee edd

Florida Statues Annotated

RDU TIP BO si siocitiic vce siivavonnvenipacconecsancoasedeecczonsedll

Hawaii Revised Statutes

IR TINIE vniniecnceiss sce sevnovecccesseacuceecsidssssreussanss 12

Idaho Admin. Code

PI Soils «ane conthoaucdesuncauevdresenavendedicecsedwcseoveseins 12

Idaho Code Annotated

Section 16-1617

Vil

TABLE OF AUTIIORITIES — Continued

Illinois 825 Compiled Statutes Annotated

Section 5/7.1(a)

Section 5/7.3

lowa Code Annotated

Section 232.71 B(6) ........... cekatacaniatsbkasc cs iodo seaaeah

Kentucky Revised Statutes Annotated

Section 620.040(5)

Section 620.04(0(7)

Louisiana Child. Code

Section 613(A)

Maryland Code Annotated, Family Law

Section 5-712(b)

Massachusetts Regulation Code 110

NS GE rr eee eee

Michigan Statutes

PME. Ge Cte GA PIIN EP wocccencassocoavencosssensseccssamete

Minnesota Statutes

Section G2G.556( VOM C).........cccccccccccccccccccccccccccccee

Mississippi Code of Rules

SR os cectnsacidencscdiicesteavcsbitcasssaiasdaces

Missouri Annotated Statutes

Section 210.145(10)

OPPO eee eee ee eee ee eee eee eee ee ee ee ee ee ee

ee ee ee ee

~eeee Bae

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osenes ~

obseceel )

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Vill

TABLE OF AUTHORITIES — Continued

New Hampshire Revised Statutes Annotated

Section 169-C: 38 TV

New York Family Court Act

NR ae Seas saeere as

New York Social Services Law

I rs os gupenguacesnuupeuine eo Pere

Section 423(6).................. Se eee

I CID oi na.cinncocaccecepnaccysvecnancvensd ccocassesi

North Carolina General Statutes

Bectiicns Ti SOI G-)...cccccccsccccccccccoscccccvcccscccscovces

North Dakota Century Code

Section 50-25. 1-05(2) 200... emt

Ohio Revised Code Annotated

eh ah.) | ee ee

Oklahoma Statutes

EF NE dees cnchavshseexeecenpdsdstanbecusies puedes

Oregon Revised Statutes

uN cia 05s dn cca Sccndcousdsacaxndbescunedenpaee

NG bad os vas cacas etn hachavseenten toGaibs

SIOCCHOR SIDE. DIAM) ovicicsccscsscccsccscscsccccsnsccsecses

PN MUI ME isi sels sandal ip addnacladcodbhstnadees

ee ee ee ee ee ee ee ee |

s+eees BS

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cosceons ~

TABLE OF AUTHORITIES — Continued

Page

South Carolina Code

Section 63-7-920(b) ..... inavh sash hasiusatoevasmenssviskuotsetaaiee

UN i cx arn cs buiad anus perunseaknendmcnetivadebnk 12

Tennessee Code Annotated

IN I os ccaiitivswnaeunlsnawnintknchniassaediecenssspbeienis 12

LE |, 12

Utah Code Annotated

Section GZA-40-2OZ.WS) ........6.2.cccccccesseccesececsscecesases 12

SO NEUE o wncecs au un pedsanensesnutupedcdus cited: 5,13

Washington Revised Code

Section 26.44. 180(2).....0.cccccccccececeseeeee: oe ee 12

Wisconsin Statutes Annotated

PG BI GR ois savinscnscnicnnssssocvavevisdecceseteson:, 12

OCR SEBO LACIE MOD osc icciisss iccececsusverivccnccenvvcvencell

Wyoming Statutes Annotated

ie a ce, SONS Ei et MES SSRI AIDES SOS TEL OE

RULES OF COURT

United States Supreme Court Rule 37.6 .....000000000....... l

TABLE OF AUTHORITIES — Continued

QrHibhk

American Bar Association Center on Children

and the Law (2009), Legal Representation

for Parents in Child Welfare Proceedings:

A Performance-Based Analysts of Michigan

Practice, at http//new.abanet.org/child/Public

Documents/michigan parent representation

report. pdf................::--eeeeeeeeeeeseeeeeeeees ee teiee ql

Anderson, Troy, Government Bonuses Accelerate

Adoptions, Daily News of Los Angeles, Decem-

ber &, 2003, at http//www.thefreelibrary.com/

GOVERNMENT BONUSES+ ACCELERATE=

ADOPTIONS .........-..:.cscceceececserecereceesseeeecerereeenens

Author Unknown, Mother Jailed, Put on Trial

for Curing her Son of Melanoma, Angry Scien-

tist, October 3, 2007, at bttp-//angryscientist.

wordpress.com/2007/1 0/03/mother-jailed-put-

on-trial-for-curing-her-son-of-melanoma ..........

Author Unknown, To Protect the Children, Los

Angeles ‘Times, November 21, 2010, at http://

articles.latimes.com/2010/nov/2 1/opinion/la-ed-

defs-20101121......

“Civil Liberties Without Exception,” August 2005,

at http://www.ncepr.org/reports/ducprocess. pdf af

Coleman, Doriane L., Storming the Castle to

Save the Children: The Lronic Costs of a Child

Welfare Exception to the Fourth Amendment,

47 William and Mary Law Review, 413 (2005) ..

Page

saat 22.

seas Mh

TABLE OF AUTHORITIES — Continued

De Sa’, Karen, (February 14, 2008), A Call For

Swift Change for Juvenile Dependency Courts,

MercuryNews.com, at http//www.mercurynews.

com/dependency/ci_82584 28? nclick_check=1..... :

Dearen, Jason, (The Associated Press) (January

15, 2011), California Custody Battle Sparks

Overseas Outrage, WashingtonPost.com., at

hitp//www. washingtonpost.com/w p-dyn/content/

article/2011/01/15/AR2011011501848 html.......

Kinkelhor, Jones, and Shattuck, Updated

Trends In Child Maltreatment 2009, Univer-

sity of New Hampshire, at http://www.unh.edu/

cercd/pdf/U pdated%20Trends%20in%20C hild%20

Maltreatment%202007. pdf .................-....2-ce ee eee

Glaberson, William, (December 4, 2004), Mamuly

Nivhtmare: A False Report of Child Abuse, at

http://www.nytimes.com/1990/12/04/nyregion/

family-nightmare-a-false-report-of-child-abuse.

8 paeedoaswatearaaeusaswines ie eewatimcmedceal

Lyons, Brendan J., A 5-minute Mrror, 25 Years

on Child Abuse List? (May 23, 2010),

Timesunion.com., at http//albarchive.merlinone.

netV/mweb/wmsql.wm request?oneimage&image

id=10696111

National Public Radio, Failure to Protect, at

http://www. pbs.org/wyebh/pages/fronthine/shows/

fostercarc/inside/welfarefag html ................-.....

Page

owes 20

x1)

TABLE OF AUTHORITIES — Continued

National Public Radio, Failure to Protect, inter-

view with Martin Guggenheim, at http://www.

pbs.org/webh/pages/frontline/shows/fostercare/

inside/guggenheim. html .............................22005

Opinion, An Open and Shut Case, Los Angeles

Times, December 19, 2010, at http://articles.

latames.com/2010/dec/19/opinion/la-ed-defs-

PIII sc ciiannc oxic colns van sonubisuecmndnecceseceusisekekibiave

Police Association for College Education, In-

formation Paper, March 18, 2004, at http://

www. police-association.org/library/articles/

SORPOU OEIC MMMOT. PUG 5... 0.05 osc ccscccsccccccscscsscese

San Diego Police Dept. hiring requirements, at

http://www.sandiego pov/police/recruiting/join/

I IE nettansthccesnasss ea dCendeaviinisdel ai ben dahbaiaens

Thompson, Lea, Increasing Adoptions: A Good

Idea Gone Wrong? MSNBC, at http://www.

msnbe.msn.com/id/13304867/ .....000000.0.0000.0.020...

Tithe IX, Section 9101, at http://ritter.tea state.

tx.us/nelb/hottopics/hgqdef html .......... Ee Re ae

U.S. Deptartment of Education, “A Summary of

Highly Qualified Teacher Data,” May 2008, at

www2.ed.pov/programs/teacherqual/briefing-

on-2006-07-hqt-data.doc ..................ccce ccc ee scence es

US. Department of Health & Human Services,

Child Maltreatment 2009, at http://www.actf.

hhs.gov/programs/cb/pubs/em09/cem09_pdf.......

Pape

cade 23

aees 24

cones 20

25, 26

1. INTEREST OF AMICI CURIAE'

The amici here include The Pacific Justice Insti

tute (PSI) and CPS Watch Lepal Team (an outgrowth

of CPS Watch, a national nonprofit organization that

provides education, information and assistance to

furilies involved with child welfare agencies). Estab-

lished in 1997 in California, PJI is a nonprofit

HOMES) legal defense organization with several

repional offices. PJl has helped defend the rights of

hundreds of families from threats by county child

protective service agencies. PIL routinely files briefs

in cases involving defense of religious liberties and

family nights. For example, PJ! represented Sunland

Christian School ino /n re Jonathan L.., 165

Cal. App. 4th 1074 (2008). In this landmark decision,

the Court of Appeal reversed itself on rehearing,

finding that home schooling is lawful in California.

There, PJ) participated in briefing and oral argument.

CPS Watch Legal VYeam consists of attorneys,

paralegals, case managers, litigation support special-

ists, and advocates from various backprounds, inelud-

ing civil rights, juvenile law, dependency, family law,

and criminal law. The team assisted in all phases

Pursuant to Supreme Court Rule 57.6, the parties have

consented to the filing of this brief No counsel for a party

authored this brict in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or Submission of this brief. No person other than amici curiae or

their counsel made a monetary contribution to its preparation or

submission

of the case in Heartland Academy Church v. Waddle,

335 F.3d 684 (8th Cir. 2008). The case arose from

the unlawful removal of 115 of Heartland Academy’s

students by Lewis County (Missouri) officials in 2001.

That removal led to the issuance of an injunction

ayainst Lewis County officials, which was upheld on

appeal. The team has continued in their work, focus-

ing on mass child removals and civil rights violations.

il. DISCUSSION OF CAMRETA V. GREENE

In Greene, the Ninth Circuit Court of Appeals

considered whether a two-hour interview of a child by

a caseworker and armed deputy sheriff on school

grounds constituted an “unreasonable” seizure under

the Fourth Amendment. At the time of the interview,

no warrant, court order, or parental consent had been

sought or obtained. The Court held the seizure of the

child under these circumstances violated the Fourth

Amendment.

Hi. SUMMARY OF ARGUMENT

Several Circuit Courts have found that Child

Protective Services (CPS) Agents investigating child

abuse are the functional equivalent of police officers

conducting such investigations and should, therefore,

be poverned by the same Fourth Amendment stan-

dards. The Fourth Amendment preserves the “right of

the people to be secure in their persons, houses

without limiting that right to one kind of government

official,” Calabretta v. Floyd, 189 F.3d 808, 813-814

(9th Cir. 1999). Accord: Good vo. Dauphin County Soe.

Serus. Kor Children & Youth, 891 F.2d 1087 1094-

1095 (3rd Cir. 1989); Roska v. Peterson, 304 F.3d 982,

996 (10th Cir. 2002); Tenenbaum vo. Willtams, 193 F.3d

581, 604-605 (2d Cir. 1999); Michael C. v. Gresbach,

526 F.3d 1008, 1016 (7th Cir, 2008)

The juvenile dependency system in this country

is dysfunctional. Even Justice Carlos Moreno of the

California Supreme Court has noted that the system

is in need of a major overhaul. See A Call For Swift

Change for Juvenile Dependency Courts, by Karen

De Sa’ (February 14, 2008), MercuryNews.com, at http://

www.rmercarynews.com/dependency/ci_ 8258428? nclick_

check=).

The problem stems in part from CPS agents’ lack

of proper education, training, accountability, and

oversight. Each of these problems is magnified by the

secrecy endemic to juvenile court proceedings. The

combination of these circumstances prevents the

nation’s public child welfare agencies from achieving

their laudable goal — to protect children and, where

possible, maintain the family.

CPS agents play a crucial role in) protecting

children, and with that role comes a duty to act in a

responsible and ethical manner. An unwarranted

intrusion upon a family may be as devastating to a

child as any failure to act in a case of severe abuse.

CPS agents have the power to protect children and

families or destroy them. Jonathan M. v. Superior

Court, 2010 WL 3367683 (Cal. App. 4 Dist.). Through

misuse of this power — whether intentional or negh-

gent — social services agencies have become feared

institutions in the minds of many Americans.

The Fourth and Fourteenth Amendments provide

the only nationally enforceable check against the ar-

litrary exercise of the great power CPS agents wield.

This compels adoption of a constitutional standard

adequate to insure CPS agents and police officers

carry out their mandate — to protect children and pre-

serve families where possible — without denigrating

the rights of those they are charged to protect.

In the absence of exigency, the laws of all states

require the involvement of a neutral magistrate

before children may be detained and removed from

their parents’ custody. Hence, there is no need to adopt

the standard advocated by Petitioners when detain-

ing children to interroyate them. Social service work-

ers and police siinply need to adhere to established

constitutional principles of search and seizure. The

Ninth Circuit’s decision in this case properly balances

the competing interests at stake. This Court should

affirm that decision, if this Court reaches the merits.

—-@

ARGUMENT

IV. JUDICIAL REVIEW IS ESSENTIAL IN

THE ABSENCE OF EMERGENCY OR

PARENTAL CONSENT

Virtually all states have provisions whereby CPS

agents and police officers investigating suspected

child abuse may obtain a court order to interview or

‘ . . . ”

detain a suspected child victim.

experience demonstrates that when CPS agents

and police or sheriffs investigating alleged child

abuse bypass judicial review, violations of the consti-

tutional mphts of children and parents often occur.

The Beck Family

In October 198%, CPS agents at Westchester

County New York’s Department of Social Services

received an anonymous report claiming that three

teenage pirls were being beaten by their parents with

* Laws in each of the following twenty five states permit the

ayency uivestigating child abuse to seek a court order showing

rood cause before removing or interviewing a child: Alabama —

Ala. Code § 26-14-7(c), Arizona — Amz Kev. Stat. § &-8OS(D)-

Arkansas — Ark. Code Ann. § 12-12-510(b), California —

Welfare & Institutions Code § 340; Colorado — Colo. Kev. Stat.

§ 19-3-308(3)b); Delaware — 16 Del. Code Ann. § 910(b) 1) and

2); Florida — Fla. Stat. Ann. § 39.301(13); Hlinois — 325 IIL

Comp. Stat. 5/7.5, lowa — lowa Code Ann § 242 71106), Ken-

tucky Ky. Rev. Stat. Ann. § 620.040(5), Louisiana — La

Child. Code § 614(A),; Maryland — Md. Code Ann., Fam. Law

$ 5-712(b); Massachusetts — Mass. Rey. Code 110 § 4.273,

Michigan — Mich. Ro Ct. 3.9650131); Minnesota — Minn. Stat

§ 626 556010)Kc), Mississippi — Code of Miss. Rules 11-111-

001(2046); New Hampshire — N.H. Rev. Stat. Ann. § 169-C: 38

IV; New York — Soc. Serv. Law § 424; NY. kam. Ct. Act § 1022,

North Carolina Gen. Stat. § 7B 303(a-b); Ohio Ohio Rev.

Code Ann. § 2151.51; Oklahoma — Okla. Stat. tit. 10 § 7106.0 2;

Oregon — Or Kev Stat. §419B 150; South Carolina S.C.

Code. Ann. § 63-7-920(0b), Utah — Utah Code Ann. § 78A- 10601),

Wisconsin — Wis. Stat Ann. § 48 981045)(c4 1b) Wyoming

Wyo. Stat. Ann. § 14-3-405

belts and paddles at an address in Scarsdale. ‘The

caller claimed that the victims were three giris. The

police determined the Becks did not have three girls.

Despite these facts CPS ayent Kvelyn Hester went

first to the home of Jennifer Beck, then sixteen, and

her brother David, then thirteen. No one was home.

The CPS agent then went to the children’s school.

Without a warrant and without even notifying the

children’s parents, the CPS agent interrogated Jen-

nifer and David and forced them to undress as she

peered into their underpants while other people looked

on. See William Glaberson, Family Nightmare: A

False Report of Child Abuse, New York ‘Vimes, De-

cember 4th, 1990, at http://www nytimes.com/1990/

12/04/nyregion/family-nightmare-a-false-report-of-child-

abuse. html.

The Bucholz Family

Dawn Bucholz was five years old and develop-

mentally delayed. In March 1999 her school principal

called ‘Tulare County (California) Child Protective Ser-

vices. The principal reported that Dawn complained

of pain in her vaginal area.” CPS agents Kristen

Smith and Arlene Nunez, accompanied by a Tulare

County sheriff, went to Dawn’s school.

* All pave and line references are to the deposition of Terri

Rufert, taken on March 22, 2001 in Bucholz v. County of Tulare

et al., Tulare County Supernor Court case No 00-0190263,

attached hereto as Appendix A. This material has becon lodged

with the clerk and provided to petitioner’s counsel

The principal told the sheriff and social workers

that Dawn had difficulty describing things and ex-

pressing herself, and that she tended to get fixated.

The principal wanted to call Dawn’s parents, but the

sheriff refused to let her. (21:22-22:9) The CPS agents

ordered the school principal to restrain Dawn. One of

the workers then inserted her ungloved finger into

the resisting child’s vagina to do what was termed an

“examination.” (113:12-114:20; 160:13-19)

It turned out that the swelling in Dawn's vaginal

area was caused by the topical application of medicine.

The McMartin Family, Dale Akiki

In his dissent in People of the Territory of Guam

vu. McGravey, 14 F.3d 1344 (9th Cir. 1994), Justice

Reinhardt cited the McMartin and Akiki cases as

examples of the pernicious effect of leading and

suggestive interviews of minor witnesses in cases of

alleged child abuse:

It is difficult to understand the ma-

jority’s argument in light of recent well-

publicized cases where sensational charges,

later proved to be false, were made by chil-

dren after they were interviewed by thera-

pists who employed aggressive and leading

questions. In the McMartin case ... [the]

owners of the McMartin pre-school in Man-

hattan Beach, CA, were charged with multi

ple counts of rape and sodomy, acts which the

children alleged took place over many months

and were accompanied by the slaughtering

of animals and elaborate satanic rituals... .

Despite wide and arguably prejudicial pre-

trial publicity, both defendants were acquitted

by a jury on 52 counts of child molesta-

In the Akiki case ... another pre-school

teacher, Dale Akiki, was acquitted by a jury

on all counts but only after spending more

than two years in jail awaiting trial. Alle-

gations in this case, again made after inter-

views with a large number of children,

included the ritual slaying inside the pre

school of a giraffe and an elephant... .

Id.

The Wallis Family

In 1991, San Diego County (California) CPS

agents and City of Escondido Police Officers inter-

viewed and detained a three-year-old boy and his five-

year-old sister based on a report they received from a

woman who had spent most of her adult life in men-

tal institutions, and was going through repressed

memory therapy. The woman told the agents that her

brother-in-law, Bill Wallis, was going to sacrifice his

son, Jesse, to the Devil. Wallis v. Spencer, 202 F.3d

1126 at 1131 (9th Cir. 2000). Without obtaining a

court order and without any exigency whatsoever, the

CPS agents and police officers removed both Lauren

and Jesse from their parents. Then, without court

order or medical need, agents performed a series of

highly intrusive medical examinations, including in-

ternal vaginal and anal exams.

As the Wallis court noted “lalt the time Lauren

and Jessie were removed, the police department had

received a report from a mental health worker that

an institutionalized mental patient, who had an ex-

tensive history of severe delusional disorders and

multiple personalities, had told a story of anticipated

ritual murder by Jessie's father — a story that would

appear to an objective observer clearly to be founded

in mental illness. In fact, Detective Claytor later

testified that the allegations “sounded a little bizarre”

to him, and that he had expressed that opinion to

Detective Pitcher at the time. Applying a reasonable

cause standard, the juvenile court judge who subse

quently heard the dependency petition in this case

explicitly reyected those charges as a basis for remov-

ing Lauren and Jessie from their parents’ custody.”

Id. at 1138-1139.

The N. Family

On danuary 15, 2011, the Washington Post car-

ried a story concerning the removal of a nine-year-old

boy and five-year-old girl from their parents after

police seized photographs taken by the children

themselves posing nude. Although the district attor-

ney declined to prosecute the parents for this child

play, CPS agents have nevertheless proceeded with a

juvenile dependency case against them.

Months after the removal, the five year old made

an ambiguous statement that her father had touched

her without revealing sufficient detail to exclude

the possibility that the touching was innocent. The

parents are Serbian nationals and the case has caused

outrage in Serbia and pressure on the United States

government to return the children immediately

A trial is scheduled in February, 2011. See Jason

Dearen, California Custody Battle Sparks Overseas

Outrage, (January 15, 2011) WashingtonPost.com, at

http://www. washingtonpost.com/wp-dyn/contenUarticle/

2011/01/15/AR2011011501848 html.

In each of these cases, the investigating CPS

agents or law enforcement personnel undertook the

offensive conduct without requesting a warrant from

a neutral magistrate. Moreover, and equally as im-

portant, there was no exigency shown in any of these

CASES.

These cases, like the case at bar, illustrate why

review by a neutral magistrate is essential to protect

children and their parents from the vayaries of war

rantless interrogation of children and subsequent

removal to foster care. Allowing CPS agents and

policemen to interview children at school in the

absence of exigency, parental consent, or a warrant as

Petitioners urge, will undoubtedly lead to many more

abuses of families such as those documented above.

V. CPS AGENTS ARE THE FUNCTIONAL

EQUIVALENT OF POLICE OFFICERS

AND SHOULD BE REQUIRED TO OB-

SERVE THE SAME CONSTITUTIONAL

STANDARDS AS POLICE OFFICERS

In the dependency context, CPS agents are the

functional equivalent of police officers, since both have

the power to investigate abuse and remove children

from their homes. Or. Rev. Stat. § 419B.007, California

Welfare & Institutions Code §§ 300-396.

The federal scheme of funding the states’ child

abuse prevention efforts mandates that CPS agents

and policemen jointly investigate allegations of child

abuse. With the passage of the Child Abuse Preven-

tion and Treatment Act (Pub. 1. No. 93-247, § Stat. 4

(Jan. $1, 1974) (CAPTA)), the federal government has

acted to improve child abuse prevention efforts, and

Congress codified this preference for multi

disciplinary teams in CAPTA by “creating and im-

proving the use of multidisciplinary teams and inter

agency protocols to enhance investigations.” 42 U.S.C.

§ 510Ga(ay 2A). To be eligible for a prant under

CAPTA, a state must submit a plan that includes an

assurance that it has a child abuse program in place

that requires “the cooperation of state law enforce

ment officials, courts of competent jurisdiction, and

appropriate state agencies providing human services

in the investigation, assessment, prosecution, and

treatment of child abuse or neglect.” 42. USC.

§ 5106a(bX 2K Ax). Perhaps in recognition of the

lack of professional qualifications and training of CPS

agents (see uifra section VID), most states require

multi-disciplinary investigations.”

* Alabama — Ala. Code §§ 26-1613, -50, Alaska - Alaska

Stat. §§ 47.14. 800(a), 17. 033), California Cal Penal Code

§ 11166(a), G), (k); 12; Colorado — Colo. Code Reps § 2509

47.202 5A), Colo. Rev. Stat. § 19-3 - 30804): Delaware — Del

(Continued on following page)

This joumng of forces, required by CAPTA, be-

tween CPS apents and police creates doctrinal confu

sion under the Fourth Amendment because of the

mixed motives of the government officials participat-

myoonm the mivestiyation. This court made reference to

this problem ain another context in’ New Jersey vu

ThO., 469 US. 325, 341 (1985), where it distin

puished criminal uivestivations from those conducted

to assure school safety and noted that reasonable

Suspicion was the approprate standard in the latter

mistance

But child interrogations during child abuse in

vestigations do not impheate a governmental interest

in assurmy safety at school. Rather they touch on

fundamental mehts of parents and children to be free

from governmental action which interferes with fa-

miihal associatuon Since the interests are so different

from those identified in 7L.O., a different standard is

called for That standard should require submission of

a Warrant appleation to a neutral magistrate in the

absence of parental consent or exigency

Clade Ann tit 16,6 906Gb 15) Hawaii Haw Kev Stat § 54#

l(b), Idaho — Idaho Code Ann § 16 1617, Idaho Admin Code

16 0601 570. Thineis I} Comp Stat Ann 5/7 Wad, 5/7 3;

Kentucky Ky Kev Stat. Ann §& 620 04007). Missouri — Mo

Ann Stat) ¢ 210 145/10) New York NY. Soc. Serv. Law

bh 4vuo) 4445 4) North Dakota ND Cent. Code &&§ 50

251.0502), 12, Oregon — Or Key Stat § 419BR O20C2 4a); South

Carolina S€ Code Ann § 65 7-980, Tennessee ‘enn Code

Ann $$ 47-11-6007, Olitarsy Utah Utah Code Ann & G2A-4a

02 S06), Washington Wash Kev Code Ann & 26 44 18002).

Wisconsin Wis Stat Ann §& 48% GRIMS Hah 4)

At present. such 4 requirement imposes only the

shphtest burden given the ready availability of mag-

istrates in every jurisdiction at all times of day or

night and the ability to obtain warrants by telephone

or fax. For example, since the passave of Utah Stat

Ann. § 74A-6-106 in 2002, Mary Noonan, the chief of

the Child Protection Division of the Attorney General

noted that, “as attorneys have become accustomed to

secking removals, they have cut the average time

needed (to obtain warrants] from five hours to about

two.” Associated Press State & Local wire, “DCES,

Meeting Legislative Mandates Harder than Ex

pected,” July 2, 2003. Sce Appendix B

Vi. EXIGENCY IS AN ADEQUATE EXCEDP-

TION TO WARRANT REQUIREMENTS

This Court) has long recopnmized that) exipent

circumstances wall pyustify warrantless searches and

seizures. Exigent carcumstances have been defined as

crcumstances where “there is compelling need for

Ofieral action and no time to secure a warrant.”

Michipan v. Tyler, 436 U.S. 499, 509 (1978). This

Court bas also held that “|Pyhe most basic constutu

tional rule” an the search and seizure area ws that

exceptions to the warrant requirement must be “spe-

cifically established,” “well delineated,” and “jealously

and carefully drawn.” Coolidge vo New Hampshire,

403 US. 44%, 454-455 (197))

Neither Petitioners nor their amzce discuss this

powerful law enforcement tool anywhere in their

briefs. Nor is there any argument that exigency

supported the conduct of the officers and social work-

ers tm this case — at did not. Quite obviously, had a

true emergency situation existed, enforcement agents

would have had the mpht to interrogate and detain

S.G

For instance, had S.G. complained to her teacher,

or other school offieral, that she was being abused,

had she come to school with unexplamed bruising or

other myures; or even if someone had called the au

thormies and stated that SG. was about to be abused

when she returned home; it would not only have been

appropriate, but mandatory that she be questioned

and, if justified, detamed

That is not what happened here. No complaint

was ever made by S.G., her teachers, or any of the

mandated reporters at her school. No doctor or other

health care professional ever told the authorities that

they suspected abuse. In fact, S.G. was a special

education student who had an LEP” and was more

closely monitored as a result.

Qne could surmise the only reason these agents

went to the school to interrogate this little purl was

lick? stands for Individualized Educational Program, man-

dated by the Individuals With Disabilities Educational Act tor

children ike SG 20 USC. §§ 1414fa),(b),(e). It is desizned to

help teachers and school administrators understand a child's

disability and how the disability affeets the learning process

There is no evidence in the record that either Camreta or Alford

mquired about or understood S G.’s disability.

that they were trying to skirt the constitutional war-

rant requirement, a requirement they knew existed to

protect families from intrusion imto their homes. This

has become a widespread practice among police and

CPS agents. As one Califorma official admitted,

“asually kids are interviewed without the parent even

knowing it. Very rarely does CPS actually po to the

home, so we just don’t need” (to worry about parental

noncompliance and obtamimnyg a warrant to search the

family home|. Dortane 1. Coleman, Storming the

Castle to Save the Children: The tronic Costs of a

Child Welfare kxception to the Fourth Amendment, 47

William and Mary Law Review, 413 at 438 (2005).

The circumstances of S Gi’s interrogation demon-

strate why a warrant should be required. According

to an evaluation done of SG. at Elk Meadow School,

ber eoynmitive ability and her comprehension were

below normal. School evaluators told her mother that

she processed things very differently and was slow to

respond or understand. J.-A” 42. Moreover, SG. tes-

tified that during the interrogation by Camreta and

Alford she “was scared, had a stomach ache and did

not feel pood.” JA. 54. Despite S.Gi.’s condition,

Camreta kept at her for two hours, J.A. 55, refusing

to accept her dentals of having been abused. J.-A. 71.

Finally, SG. testified tha: she did not know what

Camrceta was talking about when he inquired about

“sexual abuse,” J.-A. 56. In the end, predictably, 5.G

JA refers to the Joint Appendix

simply and finally told her interrogators “what she

thought they wanted to hear.” JA. 57

On the facts of this case, there was no exigency to

justify the conduct of these officers. Had there been,

the CPS agent and the police officer would not have

waited more than four days to intervene in the case

after they knew S.G.’s father was back in the home.

Nor would they have sent SG. home to live with her

allegedly abusive — father for more than a week be

fore she was removed

Vil NO REMEDY EXISTS IN ‘THRE JUVENILE

COURTS FOR ABUSE OF CONS'TEPU-

TIONAL RIGHTS

Juvenile court systems are designed to protect

children from abuse or neglect rather than vindicate

constitutional rights. Therefore, it is mecessary that

thas court direct that pudicial oversight, exigency, or

parental consent operate as constraints against such

abuses

Parents and children whose mghts have been

violated by an improper in-school seizure have no

remedy in the javenile courts. ‘Thus, strict adherence

to Fourth Amendment warrant requirements is even

more critical than im other mstances. This Court has

recognized that, except in certain carefully defined

classes of cases, a search of private property without

proper consent is “unreasonable” unless it has been

authorized by a valid search warrant. Camara v.

Municipal Court, 387 U.S. 523, 528-529 (1967).

For example, there is no suppression of evidence

ino a juvenile court no matter how egregious the

Fourth Amendment violation may be. As the Cah

fornia Fourth District Court of Appeal noted in Jn re

Mary S., 1&6 Cal. App. 4d 414 (1986):

Dependency proceedings are civil i nature,

designed not to prosecute a parent, but to

protect the child. [Citations | A parent at a

dependency hearing cannot assert the Fourth

Amendment exclusionary rule, since ‘the

potential harm to children im allowing them

to remain in an unhealthy environment

outweighs any deterrent effect which would

result from suppressing evidence’ unlawfully

serzed. [Citations |

186 Cal. App. 3d at 418-419, fn. omitted

The juvenile court itself does not review the

manner by which evidence is obtammed once the child

is in the system. Particularly pertinent to this discus-

sion is the case of People United for Children, Inc. v

City of New York, 108 F Supp. 2d 275 (5S. DON-Y. 2000),

where the plaintiffs challenged a system-wide poley

of resolving any ambiguity in an abuse investigation

in favor of finding that abuse had occurred. The court

ruled that the issues raised in the parents’ current

challenge had not been actually and = necessarily

decided in prior proceedings. “Although the Family

Court addressed the removal in plaintiffs’ individual

cases, i did not consider the broader claims asserted

here, which relate to the system-wide policies and

practices of ACS.” Id. at 287.

The court also found that plaintiffs did not have

a full and fair opportunity to litigate their current

claims in the Family Court. “New York courts rec

ognize that parents’ mghts are subordinate to the

purpose of child protective proceedings, which is to

protect the child from abuse or neglect” [citations

omitted|. /d. The court also noted that in Family

Court the parents are principally concerned with

regaining custody of their children and have little

meentive to raise or litigate constitutional claims

especially where doing so may disrupt or prolong the

proceedingss. Id. at 287-288.

While a family may later seck to redress consti

tutional violations in an action under 42 USOC.

than preventing a violation by adhering to federal

standards where they require a warrant in the first

rmistance

Vill. THE VAS'T MAJORITY OF CPS AGENTS

LACK ‘THE EDUCATION AND TRAINING

REQUIRED TO QUALIFY AS A “PRO-

FESSIONAL”

As stated earlier, CPS agents in general are not

professionals. The word “professional” implies a cer

tain level of expertise, education, and traiming that ts

lacking in those who generally work for CPS. Nor is

training just a technical matter. It is designed to

influence attitudes and to curb abuses of power. Ieflec

tive traiing should engender sufficient “professional:

ism” to overcome even momentary impulses toward

retmbution or other unsavory actions.

Unfortunately, training provided to CPS workers

leaves much to be desired. Their lack of suffierent

education and traimming, both in their field generally

and with regard to the constitutional rights of chal-

dren and parents in particular, has a devastating

impact on families who come into contact with CPS,

as can be seen from the several cases deseribed above.

In those cases and many others across the coun

try, Where parents have been wrongly accused of mis-

treatment of their children, this lack of professional

training has led to children being illegally seized,

physically and mentally injured, and families being

traumatized and destroyed

According to national data from the Child Welfare

League of America, investipative caseworkers’ qualifi-

cations fall into the following categories:

1 No depree: 5 percent

2. Bachelor’s deyree, any held: 26 percent

Merriam Webster's Online Dictionary defines “profession:

al” as “Charactemzed by or conforming to the technical or ethical

standards of a profession.”

3. Rachelor’s degree, related field: 45 percent

4 Bachelor of Social Work: 14 percent

5. Master of Social Work: 2 percent

6 Other: 7 percent

In some states, caseworkers are required to have

additional tramimg, anywhere from one day to several

days’ worth! See National Public Radio investigative

report, Fatlure to Protect, at http://www. pbs. org/wgebh/

pages/fronthine/shows/fostercare/inside/welfarefag html.

This means that 84% of caseworkers who work

for CPS have no education, background, or traming to

work in a field that allows them to make momentous

decisions about whether children should be removed

from their parents’ care, custody and control. Accord

ings Lo executives of the National Association of Social

Workers, in some states, these caseworkers are not

allowed to refer to themselves as “social workers.” See

Appendix ©. “Case and Social Worker Not the Same,”

Syracuse Post-Standard, Oct. 13, 2008 author Mark

Buttighen; Appendix D. The Philadelphia Inquirer,

Nov. 16, 2008, author Jenna Mehnert.

Contrast this with the education and training

of public school teachers. Ninety seven percent (97%

of teachers nationwide are designated as “highly

qualified.” US. Dept. of Education, “A Summary of

Highly Qualified Teacher Data,” May 2008, at www?2.

ed. gov/programs/teacherqual/briefing-on-2006-07-hqt-

data.doc. Generally, this means that teachers have a

four-year collepe education, specialized training, and

are certified in the subject that they are teaching. Sce

Tithe IX, Section 9101, at http://ritter.tea.state.tx.us/

nclb/hottopics/hqdef. html.

Simularly, most police officers tn major cities are

now required to have a two-year or four-year college

degree. Police Association for College Education,

Information Paper, March 18, 2004, at http://www.

pohice-association.org/library/articles/information_paper.

html. Moreover, police training ts comprehensive

(up to twenty five weeks) and includes study of con-

stitutional principles, including search and seizure

law. In addition, officer candidates undergo psycho

logical evaluations, both before hiring and during

training. See San Diego Police Dept. hiring require-

ments, at http//www.sandiego gov/police/recruiting/join/

index shtml

By comparison to police officers, CPS agents are

undereducated, undertrained, and poorly versed in

constitutional principles. Moreover, they are charged

with weighty responsibilities for which they are not

adequately equipped.

IX. THE PERNICIOUS EFFECT OF SECKE-

CY IN THE JUVENILE COURT SYSTEM

Thirty four states cloak their Juvenile Court

proceedings in secrecy. “Civil Liberties Without

Exeeption,” August 2008, at) http://www.enecepr.org/

reports/dueprocess.pdf. Neither the press nor indi-

viduals other than parties are permitted to observe

the proceedings. All documents related to the proceed-

ings are confidential. Access to documents is strictly

controlled and almost never available to the public

See Or. Rev. Stat. § 419A.255; California Welfare &

Institutions Code § 827.

Parties are routinely prohibited from speaking to

others about the proceedings. This includes the press.

See Mother Jailed, Put on Treial for Curing her Son of

Melanoma, Angry Scientist, October 3, 2007, at http://

angryscientist.wordpress.com/2007/10/03/mother jailed

put-on-trial-for-curing her-son-of-melanoma. Rather

than protecting the privacy of the parties, this secrecy

is more often used to hide the muisfeasance or mal-

feasance of child welfare agencies.

The juvenile court system not only operates in

the dark but gives short shrift to the cases it handles

It is a system driven by the clock. There is little time

for deliberation. Appointed lawyers pay scant atten-

tion to their chents, often meeting with them only on

hearing days and just before critical decisions will be

made in their cases. See http://wwwomercurynews

com/dependency/cei 8258428? nelick check=1. These

flaws are not limited to those described by Justice

Moreno and include the routine use of substitute

counsel and failure to advocate by attorneys. See

American Bar Association Center on Children and the

Law (2009), Legal Representation for Parents in Child

Welfare Proceedings: A Performance-Based Analysts

of Michigan Practice, at http://new.abanet.org/child/

PublicDocuments/michigan_parent_representation_report.

pdf, at pages 4-7.

As Martin Guggenheim, Fiorello LaGuardia Pro-

fessor of Clinical Law at New York University Schoo!

of Law, observed:

This is not a system of law that operates like

most others, in which there is an under-

standing that an independent fact finder, the

judge, is to play the prominent role in what

happens. Instead, child welfare is seen most

ly as case management, and the expert is not

the judge but the case supervisor. So judges

tend to give great deference to what is ree

ommended. And in most jurisdictions, what

the agency seeks, it pets.

National Public Radio, Farlure to Protect, inter

view with Martin Guggenheim, at http://www.epbs org/

webh/pages/frontline/shows/lostercare/inside/pugyen hein,

html.

This Court has recognized the disparity between

the parties at the termination of reunification stage of

the proceedings:

The State’s ability to assemble its case al

most inevitably dwarfs the parents’ ability lo

mount a defense. No predetermined limits

restrict the sums an agency may spend in

prosecuting a given termination proceeding,

The State’s attorney usually will be expert on

the issues contested and the procedures em

ployed at the factfinding hearing, and enjoys

" At the time of Santosky v Kramer, 495 US. 745 (1982),

termination of parental rights was litigated in family courts.

Today, they are litigated in juvenile courts

full access to all public records concerning

the family. The State may call on experts in

family relations, psychology, and medicine to

bolster its case. Furthermore, the primary

witnesses at the hearing will be the agency's

own professional caseworkers, whom the

State has empowered both to investigate the

family situation and to testify against the

parents. Indeed, because the child ts already

in agency custody, the State even has the

power to shape the historical cvents that

form the basis for termination.

Santosky at 763.

Respected juvenile court jurists beleve the effect

of secrecy in these courts is to protect the agencies

themselves, rather than children. The Honorable

Michael Nash, presiding judge of the Los Angeles

County Juvemle Court one of the largest in the

nation opined that “the main entity that’s protected

by closing these proceedings is the system itself.”

see Opinion, An Open and Shut Case, Los Angeles

Times, December 19, 2010, at http://articles latimes.

com/2010/dec/19/opinion/ta-ed-defs- 20101219.

Nowhere is the negative impact of this opaque

shicld of secrecy more apparent than in the statistics

presented by Petitioners and their amrct when they

suggest the scope of the child abuse problem is “stag

gering” (Alford Br. at 36) or an “epidemic.” Camreta

Br. at 24; Br. of National Ass'n of Social Workers and

The Oregon Chapter of National Ass’n Of Social

Workers at 4.

Petitioners, and virtually all of the armurcit briefs

submitted in their support, stress the “huge” threat

child abuse poses to society. They urge and attempt to

justify the broad expansion of powers based on that

perceived threat. Alford Br. at 28-29, 36; Camreta Br.

at 11, 24. Statistics reveal, however, that the sky — in

fact — is not falling. The “threat of abuse” trumpeted

by Petitioners remains unrealized in the vast major.

ty of cases

Child Maltreatment 2009 presents national data

about child abuse and neglect known to CPS agencies

in the United States during federal fiscal year 2009.

The data were collected and analyzed through the

National Child Abuse and Nepleet Data System

(NCANDS), which is the twentieth of such reports

That data demonstrate that the rate of “substantiat

ed” child abuse is the lowest it has been in nineteen

years. See http://www.acthhs gov/programs/eb/pubs/

em09/cm09 pdf For the 2004 data, see http://www

act-hhs pov/programs/cb/pubs/cm04 ).

In addition, a recent report analyzing the data

presented in Child Maltreatment 2009 reveals that

the rate of sexual abuse per 10,000 persons under ape

18 has declined 61% and the rate of physical abuse

per 10,000 persons under age 18 has decreased 55%

The report also notes that the overall rate of substan

tiated child abuse “is the lowest level of child mal

treatment since the NCANDS system was put in

place in 1990.”

260

Petitioners’ sugyestion that child abuse is a yrow-

ing phenomenon is not supported by them own data.

The statisti¢s show substantiated instances of “child

abuse” have decreased over the last 19 years, not in-

,and Shattuck, Updated

Trends ii Child Maltreatment 2009, University of New

Hampshire, at’ http://www.unh.edu/cerc/pdf/U pdated

Trends in Child) Maltreatment 2009. pdf.

creased. See kinkelhor, Jones

Perhaps more importantly, the definition of what

constitutes “abuse” is mecomprehensibly vague and

cubycetive. Those who argue for expansive povern-

ment powers at the expense of familial rights skew

their statistics by including instances of “neglect”

under the penumbra of “abuse.” “Neglect,” constitutes

76.3% of all reported “abuse.” See US. Department of

Health & Human Services, Child Maltreatment 2009,

at http//www.aact hihs.pov/proprams/cb/pubs/em09/em0g.

pdf, higure 3-4, pape 23. This “neglect” — also loosely

defined — can range anywhere from leaving a child

unattended in a feneed playyround for 5 minutes, to

mistances where the parents have pone on 2 day

drinking binges. Lyons, Brendan Jd, A S-minute

Mrrorv, 25 Years on Child Abuse Last? (May 23, 2010)

Timesunion.com, at http://albarchive merlinone.net/

miweb/wmsgql win requestonemapye& mayeid = lO696 111.

The data on which Petitioners rely are collected

from databases inaintaimed in cach state to identify

persons who are suspected of abuse or neglect. In cases

where “sexual abuse” is “substantiated,” as in others,

the data are misleading. The obvious implication of a

“substantiated” finding is that a court has adjudreated

the matter, Such an assumption would be incorrect.

‘

yy statute, a “substantiated” finding is permitted

based on conclusions reached by cither a social work-

er, police officer, or other governmental ayent without

trial or any other judicial determination. Even when

a Court has found there was no abuse, the govern-

ment refuses to clear the accused of wrongdoing. Los

Anpeles County vo Humphries, Nov. 30, 2010 [2010

WL 482568 1 |.

X. OTHER SYSTEMIC ISSUES ILLUSTRATE

THE NEED FOR A CHECK ON ‘THE

POWER OF CPS AGENTS

Petitioners sugyest that to protect children from

potential abuse CPS agents and police iust be armed

with powers even broader than those under existing

statutory frameworks. Camreta Br. at 11, 14; Alford

iro at 11, 46. The necessity for such broad powers 1s

beled by the circumstances of this case, i.c. the utter

lack of probable cause or exigency. Seizures and

interrogations of children under circumstances that

are themselves intimidating: and traumatic are a form

of abuse

Petitioners espouse the notion that governmental

power supersedes parental authority because some

parents may refuse to allow their children to be inter

ropated based on any allegation of abuse or neglect.

This “notion” is repugnant to American traditions.

This Court has Jony held that there exists a “private

p |

realm of family life which the state cannot enter.”

Prince vo. Massachusetts, 312 U.S. 15%, at 166 (1944).

The Court has frequently emphasized the impor-

tance of the family. The rights to conceive and to raise

one’s children have been deemed “essential,” Meyer v.

Nebraska, 262 U.S. 390, 3899 (1923); “basie civil rights

of man,” Skinner vo Oklahoma, 316 U.S. 535, 541

(1942); and “[rlights far more precious ... than

property rights,” May vu. Anderson, 345 U.S. 528, 533

(1953).

The government’s vital interest in’ preventing

child abuse does not require sacrifice of Fourth

Amendment protections. The argument which Peti-

tioners make here has been made before and reyected

by this Court. For example, in Mincey vo. Arizona, 437

US. 385, 393 (1978), this Court rejected a proposed

exception to the Fourth Amendment for warrantless

searches at homicide scenes. The Court aptly noted

that there would be no rational limitation to such a

doctrine piven any number of vital interests the

povernment could assert to justufy such an exception.

In Mincey, supra at 393, quoting Chimel v. California,

395 US. 752, 766 (1969), the Court stated

The State points to the vital publie interest

in the prompt investigation of the extremely

serious crime of murder. No one can doubt

the importance of this goal. But the publie

interest in the investigation of other serious

crimes as comparable. I the warrantless

search of a homicide scene is reasonable, why

not the warrantless search of the scene of a

,a robbery, or a burglary? “No consider

ation relevant to the Fourth Amendment

suppests any pomt of rational limitation” of

such a doctrine.

Pape

Child abuse - where it does occur — poses a

serious threat. But, “the gravity of the threat alone

cannot be dispositive of questions concerning what

means law enforcement officers may employ to pur-

sue a piven purpose.” Indianapolis v. Edmond, 531

US. 32 at 42-43 (2000). The Fourth Amendment’s

vencral prohibition against non-consensual warrant-

less searches, and searches where there is no proba-

ble cause necessarily apples to interrogations such as

the one at issue here. See, e.g., Chandler v Miller,

620 US. 305 at 308 (1997); Skinner v. Ratlhway Labor

KMvecutives’ Ass'n, 489 U.S. 602 at 619 (1989); Ferpu-

son et al. v. City of Charleston, 532 U.S. 67 at &6

(2001). While it would serve the interests of expedi-

ency and efficiency to abrogate warrant requirements,

it simply cannot be said that the rights of innocent

families and children must give way to expediency. As

this Court so cloquently stated, “When the right of

privacy must reasonably yield to right of search is, as

a rule, to be decided by a judicial officer, not by a

policeman or government enforcement agent.” John

son vo. United States, 333 US. 10 at 14 (1948).

Xfi. MONEY CREATES A’ PERVERSE IN-

CENTIVE IN THE JUVENILE SYSTEM

Due to enormous federal matching grants to

support the foster care system, CPS apents are

encouraged to find abuse or neglect wherever they

look. Since the funding is tied to the removal and

adoption of children, little effort is made to keep

children at home with services to the parents. The

longer children remain out of home, the more money

CPS agencies receive. This funding under ‘Title [V-f

of the Social Security Act has spawned a huge child

abuse industry.

The budpet of Los Angeles County’s Department

of Children and Family Services for 2009, alone, was

$1.8 billion. That agency has a staff of more than

7,000. A decade ago 3,000 workers managed about

50,000 foster children. Since then, the number of CPS

ayents has increased to about 3,900, while the num

her of children in the system has declined to about

32,000. See Author Unknown, Jo Protect the Chil-

dren, tos Angeles Times, November 21, 2010, at

http-/articles latimes.com/20 10/nov/21/opinion/la-ed-

def{s- 20101121.

These tremendous financial incentives have per-

verted the poal of the juvenile court system — to

protect children. “What you have now 1s an incentive

to initially remove the child and an incentive to

adopt them out,” said David Sanders, former head of

the Los Angeles County Department of Children and

Family Services, one of the nation’s largest child

welfare systems. “I think when you put these two

together, there is a problem.” Troy Anderson, Govern

ment Bonuses Accelerate Adoptions, Daily News of

Los Angeles, December &%, 2003, at http//www.thefree

library.con/GOVERNMENT4+ BONUSES+ACCELERATE=

ADOPTIONS.-A01110753 10.

oy |

Petitioners sugyest that with dwindling budgets

they need greater discretion to make efficient use of

their more limited resources. Br. of Attorneys Gen-

eral at p. 11. But constitutional proscriptions against

the exercise of povernment power should not be

sacrificed in the interest of expediency or efficiency.

As pressure mounts to justify the immensity of “child

protection” budgets, the necessity of vreater judicial

oversight becomes paramount

This need is illustrated by states such as Ken-

tucky, where the State carns federal bonuses for

keeping adoption numbers high, and where an NBC

computer analysis showed that adoptions have tripled

in-six years, and the number of children returned to

their homes has dropped sharply. See Lea Thompson,

Increasing Adoptions: A Good tdea Gone Wrong?,

MSNBC, at http://www. msnbe.msn.com/id/13304867/.

Nowhere is this pressure better illustrated than

in the recent dectsion of the California Fourth Dis

trict Court of Appeal in Jonathan M. vo. Supertor

Court, supra. There, the Court issued a writ of man

date, finding that the juvenile court had abused its

discretion when it reduced the petitioner father’s

visitation with his children simply because he had

had sexual relations with the mother when she was

16 years old and he was less than two years older

than she was. /d. at 7.

Noting that the allegation was proundless, the

court stated:

This kind of pleading undermines confidence

in the system. It damages the reputation of

the Social Services Agency and causes par

ents to suspect the system is_ prejudiced

against them, and social workers will use

any excuse they can think of -- whether cred-

ible or not — to deprive them of the custody of

their children. /t has to stop.

[Emphasts in original. |

XI. CONCLUSION

Petitioners call for a radical new “doctrine” which

would vest broad quasi-judicial powers in CPS agents.

This doctrine would give them carte blanche to intrude

into family life on the flimsiest of pretexts. The Peti

tioners’ and their amici’s claimed justification for these

powers finds no support in law, and 1s antithetical to

the American tradition of limited and accountable

vovernment.

In the juvenile dependency system a system

that operates largely under a shroud of secrecy ~ the

neutral magistrate stands as a buffer designed by the

architects of our constitutional system to prevent

abuses. ‘The importance of this buffer agaimst arbi

trary governmental intrusions cannot be overstated.

‘To remove this buffer, as Petitioners urge, would

only serve to further undermine public confidence in

a system already assailed as dysfunctional. It is the

function of the neutral magistrate, not the CPS

agent, to determine what constitutes probable cause

as required by the Fourth Amendment. The well-

reasoned and deliberate decision of the Ninth Circuit

should be affirmed in its entirety, if the Court reaches

the merits.

Dated: January 28, 2011

Respectfully submitted,

DENNIS B. ATCHLEY* SHAWN A. MCMILLAN

DONNIE Ro Cox 4955 Via Lapiz

LAW OFFICE OF DONNIE Ko Cox = San Diego, CA 92122

402 N. Nevada Street ($58) 646-0069

Oceanside, CA 92054 Attyshawn@netscape. net

(760) 400-0263

dbalaw@yahoo com

*Counsel of Record

Patil W. LeERHEY

210 East Fig Street,

Ste. 101]

DAVID J. BEAUVAIS Fallbrook, CA 92028

409 13th Street, 20th FL. (760) 723-0731

Oakland, CA 94612 Law@leehey.com

(510) 832-3610

davebeau@pacbell net

Counsel for Amici Curtae

App. I

APPENDIX A

Bucholz v. Tulare County. Superior Court — California.

Case No. 00-0190263

Deposition of Terr: Ruffert, Dated March 22, 2001

Pape 13:1-16

():

()

And do you know what prompted their visit?

Yes. Pm the one that called CPS.

Okay.

Dawn was complaining of pain in her lower area

and the teacher brought her in — she was kind of

difficult to understand — brought her in and |

asked her questions based on what the teacher

had said. The teacher said she kept pointing and

saying it hurt and saying that daddy did it. So |

questioned her. | tried to question her in a lot of

different ways, and all she responded is she

would point and respond that daddy did it, and so

at that time with my responsibility, | had to call

(CPS, so] called them out at that time.

Page 21:22-26, Page 22:1-9

Okay. When you talked to the officer when the

social workers weren't present, what did that

conversation consist of ?

Basically | explained what happened like Ive

stated before and I also explained that | was a

litthe uncomfortable with the referral because of

the child’s difficulty with receptive and expres-

sive Skills and the fact that she pets fixated on

\):

App. 2

something. And | believe I asked at the time - at

that time if | could call the parents.

And did he respond to that”

He told me no.

Page 113:12-26, Page 114:1-20

q):

():

Do you know if she touched her vaginal area with

her hands?

I did not see her touch that

That’s not the question.

1 heard her talk to — [ overheard a conversation

with her and Arlene. And I didn’t pick up the

whole conversation, but my interpretation was

that she did, but I didn’t see it.

Did what?

And I only heard part. Used her fingers

Used her fingers where?

To kind of spread to show Arlene

The labia?

Uh-huh. She didn’t say that. She just —

Tell me what she said. You can use the vernacu

lar if you need to.

Okay. She was talking. It was when they were

outside when | said they were outside the room

kind of talking, and IT really couldn't hear what

they said, I just overheard a few things. And the

only things | can remember, and | can’t remem-

ber exactly, was — actually, it was after Kristen

():

App. 38

made a phone call. And then T heard her say

something about, “Did you see that? Did you see

that when | pushed it to the side,” and that’s all I

heard. I assumed that meant that she had her

fingers somewhere or her hands or something.

Somewhere where?

In the girl’s private area or on her leys or some-

thing like that because of her comments that

she’s been violated.

Page 160:13-19

q):

Did Kristen go over and wash her hands before

she examined the little girl?

Didn’t use gloves?

No.

And they were available?

Yes.

App. 4

APPENDIX B

HEADLINE: DCFS: Meeting legislative mandates

harder that expected

DATELINE: SALT LAKE CITY

BODY:

Meeting new mandates from the Legislature with a

smaller staff has been tougher than expected, Divi-

sion of Child and Family Services officials said.

One bill requires the division to seek a yudge-signed

warrant before removing a child from a home in non-

emergency situations. The second requires the divt-

sion to clean up its database of possible child abusers.

Both are providing more costly and time-consuming

than anticipated. “It’s adding up to a huge burden on

this system,” said Adam ‘Trupp, legal administrator

for the division.

Since July 1, when the mandates went into effect, the

Utah Attorney General's Office has filed for 45 war

rants to seize children.

“We're challenged to meet the demand,” said Mary

Noonan, the chief of the child protection division for

the attorney peneral.

Ilowever, as attorneys have become accustomed to

seeking Warrants, they have cut the average time

needed from five hours to about two, Noonan said

App. 5

APPENDIX ©

Syracuse Post-Standard

Case and social worker not the same

Monday, October 13, 2008

To the Editor:

The circumstances surrounding Erin Maxwell's tragic

death has created much controversy and leaves us

perplexed. How could this happen again, another

child in New York slipped through the system’? The

public is angry, looking to place blame.

The Sept. 28 editorial, “Protecting Our Children:

Social services response to child neglect needs through

review” utilizes the designation “social workers”

interchangeably with “case workers.” I would like to

correct the misperception that “social workers” are

professionals one and the same as “case workers,”

which is a generic unregulated term.

While the educational criteria for a case worker vary,

and are often quite liberal; those for a social worker

are much tighter, following strictly regulated curricu

ja and requiring hundreds of hours of supervised

practicum and rigorous academic standards

Over 20 years ago, when IT worked for Department of

Social Services, a bachelor’s degree was required to

be a case worker: while I had earned my bachelors in

human services before becoming a case worker, some

of my Child Protective Services case worker col-

leagues held various degrees, including cooking.

English, general studies, ete.

App. 6

The interchangeable use of the term “social worker”

with that of other professions often serves to deni-

grate and deprofessionalize a title of significant

meaning; even more so when the profession is mad.

vertently and implicated in tragedies such as report

ed in your paper this week. The National Association

of Social Workers recognizes that the title “social

worker” may only refer to a person holding a bache-

lors, masters or Ph.D in social work.

Further, as a licensed profession in New York state,

the practice of this profession is regulated by the

New York State Education Department, limiting the

provision of critical services such as mental health

diagnosis and psychotherapy to degreed and duly

lieensed clinical social workers in this state.

jt would be to the benefit of vour readers and New

Yorkers across the state to learn the true meaning of

the term “social worker”: an often mistunderstood

profession.

Mark Buttighert is a licensed clinical social worker

and Central Division director of the Natronal Associa-

tion of Social Work’s New York chapter.

App. 7

APPENDIX D

Date Thursday, November 16, 2006

Source. ‘Phe Philadelphia Dnquirer

Author denna Mehnert

There are many professions that) perform critical

funetions mm our society, but they aren't all treated

equally Doctors and nurses receive education specific

to ther life-saving roles, and then are heensed to

practice their profession The same can't be said of

those who protect socety’s children Why not? Look at

the number of children who were murdered by care-

yavers or sexually assaulted. Aren't child-protection

workers pust as erstical as doctors and nurses?

Kadiog Violence apamst children is amportant not

only because hurting the vulnerable is wrong, but

also because the damapye done comes back tenfold to

society Abuse costs millions of dollars and thousands

of anfalfilled lives when damayed children drop out of

high school, become teenage parents, enter the juve

nile pustiee system, become addicts, or enter the adult

correctsons system. Abused children do all) these

things at statustieally hagher rates than children who

are pot abused

Given how eritical protecting children is, one would

assume that child protection workers are educated,

trasned and heensed to ensure they adequately per-

form: thus eritieal role. Not in Pennsylvania. The Child

Protective Services Law does not even require that

a child-protection worker have a college degree, let

App. &

alone a degree in socal work, the professional field

developed to educate people to protect children. You

would not want a doctor without a medical depree

operating on your child, yet Pennsylvania allows

mdividuals without the proper education to protect

children

If they don’t have a deyrec, do they have to at least be

well trained? No. In Pennsylvamia, a new child-

protection worker has up to two years to be trained.

You would not want a doctor who had not completed a

resideney to make your medical decisions alone, yet

poorly tramed, inexpenenced child protection work

ers are making life-and-death decisions every day in

this state.

Is a state heensing: board watching over these work

ers? Noo Child-protection workers are mot required to

be a member of any heensed profession, so there is no

one to ensure that they are doing an adequate, ethical

job

The bottom tine as that child protection is not repard

edias a profession in Pennsylvania. Individuals who

msk there lives and are responsible for the lives of

others aren't viewed as professionals, and are not

compensated adequately for the meredibly challeng

my work they doo Philadelphia's Department of

Hluman Serviecs has parnered puble attention for

its problems lately, but at’s not alone in failing to

protect children) Across the state, child protection

workers are prossly underpaid, ridiculously over

worked through hagh caseloads, and larypely

App. y

paraprofessional. Do we really want nonprofesstonals

removing children from homes and breaking: apart

families because they lack the professional training

to determine when a family can be safety [sie] kept

topether’

The bottom line is that children and their farihes

will suffer until the state requires that child welfare

workers be professional social workers, sets minimum

standards for traming, develops a professional pay

seale, and honits caseloads.

Jenna Mehnert is executive director of the Pennsyl-

van chapter on the National Association of Social

Workers

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.