April 2, 2003

The Fourth Amendment's Impact on Child Abuse Investigations

Michael P. Farris
President, Patrick Henry College
Chairman, Home School Legal Defense Association

The United States Court of Appeals for the Ninth Circuit said it best, "The government's interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children's interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents." Calabretta v. Floyd, 189 F.3d 808 (1999).

This statement came in a case which held that social workers who, in pursuit of a child abuse investigation, invaded a family home without a warrant violate the Fourth Amendment rights of both children and parents. Upon remand for the damages phase of the trial, the social workers, the police officers, and the governments that employed them settled this civil rights case for $150,000.

The facts in the Calabretta case are fairly typical for the kind of situation we see almost daily at Home School Legal Defense Association. An anonymous call came into a hotline manned by social workers in Yolo County, California. The tipster said that he/she had heard a child's voice coming from the Calabretta home or property which cried out, "No, daddy, no." This same tipster said that an unnamed neighbor had told her that she had heard a child cry out from the back yard, "No, no, no" on another occasion.

The tipster added that the family was home schooling their children and noted that the family was very religious. During the course of discovery in the civil rights case, we found that the social worker listed the home schooling and religious information not as merely general background facts but as "risk factors" in her internal reports.

The social worker came to investigate the matter four days after receiving the call. Acting on the advice HSLDA gives all its members, Mrs. Calabretta refused to let the social worker into the home because she did not have a warrant.

The social worker returned to her office and requested that another worker be sent to follow up while she was on vacation. Since this was not done, ten days later, she returned to the home with a police officer and demanded that Mrs. Calabretta allow them to enter. The police officer informed Mrs. Calabretta that they did not need a warrant for any child abuse investigation and when she still refused to allow entry he told her that they would enter with or without her consent.

Not wanting a physical confrontation with a police officer, Mrs. Calabretta opened the door and allowed the social worker and the police officer to enter. A partial strip search was done of one of the young Calabretta children, and an interview was conducted with the family's 12 year old daughter.

The social worker, police officer, and their government agencies moved to dismiss claiming that there was no violation of any clearly established constitutional right. Both the federal district court and the Ninth Circuit disagreed with these arguments.

Contrary to the assumption of hundreds of social workers that we have interacted with at HSLDA, the Ninth Circuit held that the Fourth Amendment applies just as much to a child abuse investigation as it does to any criminal or other governmental investigation. Social workers are not exempt from the requirements of the Fourth Amendment when they act alone. They are not exempt from its rules if they are accompanied by a police officer. And police officers are not exempt from the requirement even if all they do is get the front door open for the social worker.

What are the requirements of the Fourth Amendment?

The general rule is that unreasonable searches and seizures are banned. But the second part of the rule is the most important in this context. All warrantless searches are presumptively unreasonable.

There are two and only two recognized exceptions to the requirement of having a warrant for the conduct of a child abuse investigation:

  1. The adult in charge of the premises gives the social worker his/her free and voluntary consent to enter the home.

  2. The social worker possesses evidence that meets two standards:

    (a) it satisfies the legal standard of establishing probable cause; and

    (b) the evidence demonstrates that there are exigent circumstances relative to the health of the children.

Consent.

If a police officer says, "If you don't let us in your home we will break down your door"—a parent who then opens the door has not given free and voluntary consent. If a social worker says, "If you don't let me in the home I will take your children away"—a parent who then opens the door has not given free and voluntary consent. Threats to go get a "pick up order" negate consent. Any type of communication which conveys the idea to the parent that they have no realistic alternative but to allow entry negates any claim that the entry was lawfully gained through the channel of consent.

It should be remembered that consent is only one of the three valid ways to gain entry: (warrant, consent, or probable cause and exigent circumstances.) There is nothing improper about saying, "We have a warrant you must let us in" or "We have solid evidence that your child is in extreme danger, you must let us in." Such statements indicate that the social worker is relying on some theory other than consent to gain lawful entry. Of course, the social worker must indeed have a warrant if such a claim is made. And, in similar fashion, if a claim is made that the entry is being made upon probable cause of exigent circumstances, then that must also be independently true.

Probable Cause & Exigent Circumstances

The Fourth Amendment does not put a barrier in the way of a social worker who has reliable evidence that a child is in imminent danger. For example, if a hotline call comes in and says, "My name is Mildred Smith, here is my address and phone number. I was visiting my grandchildren this morning and I discovered that one of my grandchildren, Johnny, age 5, is being locked in his bedroom without food for days at a time, and he looked pale and weak to me"—the social worker certainly has evidence of exigent circumstances and is only one step away from having probable cause.

Since the report has been received over the telephone, it is possible that the tipster is an imposter and not the child's grandmother. A quick verification of the relationship can be made in a variety of ways and once verified, the informant, would satisfy the legal test of reliability which is necessary to establish probable cause.

However, a case handled by HSLDA in San Bernadino County, California, illustrates that even a grandparent cannot be considered a per se reliable informant.

A grandfather called in a hotline complaint with two totally separate allegations of sexual abuse. The first claim was that his son, who was a boarder in an unrelated family's home, was sexually abusing the children in that home. The second claim concerned his daughter and her husband. The claim here was that the husband was sexually abusing their children. These were two separate allegations in two separate homes.

The social workers went to the home of the unrelated family first to investigate the claims about the tipster's son. They found the claims to be utterly spurious. They had gained entry into the home based on the consent of the children's parents.

The following day they went to the home of the tipster's daughter. The daughter had talked to her brother in the meantime and knew that her father had made a false report about him. When the social workers arrived at her home, she informed them that they were in pursuit of a report made by a known false reporter—her father. Moreover, she informed the social workers that she had previously obtained a court order requiring her father to stay away from her family and children based on his prior acts of harassment.

Despite the fact that the social workers knew that their reporter had been previously found to be unreliable—they insisted that they would enter the family home without consent.

In a civil rights suit we brought against the social workers and police officers, they settled the matter with a substantial payment to the family in satisfaction of their claims that the entry was in violation of their civil rights because the evidence in their possession did not satisfy the standard of probable cause.

It is not enough to have information that the children are in some form of serious danger. The evidence must also pass a test of reliability that our justice system calls probable cause.

In the first appellate case I ever handled in this area, H.R. v. State Department of Human Resources, 612 So. 2d 477 (Ala. Ct. App. 1992); the court held that an anonymous tip standing alone never amounts to probable cause. The Calabretta court held the same thing, as have numerous other decisions which have faced the issue directly.

On the surface, this places the social worker in a dilemma. On the one hand, state statutes, local regulations, and the perception of federal mandates seem to require a social worker to conduct an investigation on the basis of an anonymous tip. But, on the other hand, the courts are holding in case after case that if you do enter a home based on nothing more than an anonymous tip you are violating the Fourth Amendment rights of those being investigated. What do you do?

The answer is: Pay attention to the details of each set of the rules.

First and foremost, keep in mind that the ultimate federal mandate is the Constitution of the United States. No federal law can condition your receipt of federal funds on the basis that you violate some other provision of the Constitution. South Dakota v. Dole, 514 U.S. 549 (1995).

Second, realize that the mandate to conduct an investigation does not require you to enter every home. Even if your rules or statutes seem to expressly require entry into every home, such rules and statutes must be construed in a manner consistent with the Constitution. The net requirement is this: if your laws and regulations seem to require entry into every home, then social workers should be instructed to add this caveat: "when it is constitutional for me to do so."

Obviously, nothing in the Constitution prevents a social worker from going to a home and simply asking to come in. If the parent or guardian says "yes", there is no constitutional violation whatsoever—provided that there was no coercion.

This covers the vast majority of investigations. The overwhelming response of people being investigated is to allow the social worker to enter the home and conduct whatever investigation is reasonably necessary.

The second alternative is to seek a warrant or entry order. The Fourth Amendment itself spells out the evidence required for a warrant or entry order. No warrant shall issue but on probable cause. The United States Supreme Court has held that courts may not use a different standard other than probable cause for the issuance of such orders. Griffin v. Wisconsin, 483 U.S. 868 (1987).

If a court issues a warrant based on an uncorroborated anonymous tip, the warrant will not survive a judicial challenge in the higher courts. Anonymous tips are never probable cause.

This was the essence of the decision in the case of H.R. v. Alabama. In that case, the social worker took the position that she had to enter every home no matter what the allegation.

In court, I gave her some improbable allegations involving anonymous tipsters angry at government officials demanding that social workers investigate these officials for abusing their own children. Her position was that she had to enter the home of all those who were reported. The trial judge sustained her position and held that the mere receipt of a report of child abuse or neglect was sufficient for the issuance of an entry order. However, the trial judge's decision was reversed by the Alabama Court of Appeals. That court held that the Alabama statute's requirement of "cause shown" had to be read in the light of the Fourth Amendment. An anonymous tip standing alone did not meet the standard of cause shown.

If a social worker receives an anonymous tip, he/she can always go to the home and ask permission for entry. If permission is denied, then the social worker—if he/she believes it is justified—can seek independent sources to attempt to verify the tipster's information. For example, if a tipster says, that the child is covered with bruises from head to toe, contact could be made with the child's teacher to see if he/she has ever seen such bruises. If the teacher says "Yes, I see them all the time," then the report has been corroborated and upon that kind of evidence the social worker probably has the basis for either the issuance of a warrant or an entry on the basis of exigent circumstances if it is not possible to get a warrant in a reasonable time.

Policy Implications
It is my opinion that the welfare of children is absolutely consistent with our constitutional requirements. Children are not well-served if they are subjected to investigations based on false allegations. Little children can be traumatized by investigations in ways that are unintended by the social worker. However, to a small child all they know is that a strange adult is taking off their clothing while their mother is sobbing in the next room in the presence of an armed police officer. This does not seem to a child to be a proper invasion of their person—quite different, for example, from an examination by a doctor when their mother is present and cooperating.

The misuse of anonymous tips are well-known. Personal vendettas, neighborhood squabbles, disputes on the Little League field, are turned into maliciously false allegations breathed into a hotline. From my perspective, there is no reason whatsoever in any case, for a report to be anonymous. There is every reason to keep the reports confidential. The difference between an anonymous report and a confidential report is obvious. In an anonymous report the social worker or police officer does not know who the reporter is and has no evidence of the reliability of their report. There is no policy reason for keeping social workers or police officers in the dark.

On the other hand, there is every reason to keep the name of the reporter confidential. There are a great number of reasons that the person being investigated shouldn't know who made the call.

Moreover, precious resources are diverted from children who are truly in need of protection when social workers are chasing false allegations breathed into a telephone by a malicious anonymous tipster. If such a tipster is told: "May we please have your name, address, and phone number? We will keep this totally confidential," it is highly probable that the vast majority of reports made in good faith will give such information. It is also probable that those making maliciously false allegations will simply hang up.

Children are well-served when good faith allegations are investigated. They are equally well-served if malicious allegations can be screened out without the need for invasion.