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When Helpers Hurt: Investigations That Go Too Far

by Darren Jones • April 24, 2018

One of the most important goals that caring parents set is providing a safe, nurturing environment where their children can grow up free from fear.

But what happens when that longed-for sanctuary is violated by those who are supposed to protect children—government investigators?

It’s an unfortunate dilemma, but one that Home School Legal Defense Association has had to address with increasing frequency.

Last December, HSLDA sued on behalf of a Kentucky homeschool family after a CPS investigator forced her way into their home and strip-searched all six children.

And this month, our litigation team and other attorneys assisted the Parental Rights Foundation with filing an amicus brief in federal court, arguing that warrantless strip searches harm children and families.

Strip-searching a 3-year-old

The brief, filed in the Tenth Circuit in the case of Doe v. Woodard, provided the court with scholarship and case law about the harm to children, parents, and families caused by unfettered child welfare investigations, including those that involve strip searches of young children.

The case arises from incidents in 2014 when Woodard, an investigator with El Paso County (Colorado)’s Department of Human Services (DHS), allegedly conducted a strip search of a 3-year-old without parental knowledge.

The search took place at the girl’s Head Start preschool and stemmed from allegations of physical child abuse (ultimately deemed unfounded). The mother didn’t learn that the search had taken place until days after the entire investigation was closed, when her daughter commented while riding in the car, “I hope [the investigator] doesn’t come [to my school] again, because I don’t like it when she takes all my clothes off.”

The mother filed suit, but it was dismissed under the principle of qualified immunity for the investigator.

What about the Constitution?

The question on appeal is whether conducting a strip search of a child without parental consent violates the Fourth and Fourteenth Amendments to the Constitution, including the child’s right to be free from unreasonable and warrantless searches and the parent’s right to direct the upbringing and care of her child.

Our desire to reinforce these constitutional protections is one of the reasons why HSLDA took on the Curry case in Kentucky. Though we recognize child abuse as a serious crime, we also see the need to protect innocent families from the harm caused by unnecessarily intrusive government investigations.

The Parental Rights Foundation’s brief deals specifically with evidence that child welfare investigations harm families. According to Michael Ramey of PRF, “We aren’t saying that investigations are never warranted; where abuse or neglect does exist, an investigation is (sometimes infinitely) preferable to the harm being caused in the home. But according to numbers from the U.S. Department of Health and Human Services for 2016, as many as 83% of all investigations involve innocent families whose children were traumatized only by the investigation itself, not by any other form of abuse or neglect.”

Darren Jones

Senior Counsel

Darren is a litigation attorney and homeschool graduate who helps HSLDA member families resolve legal difficulties related to homeschooling. Read more.

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