That can’t be right, I thought. Confused, I looked at it again, thinking I must have read it wrong.
The “it” was a court order that authorized the Texas Department of Family Protective Services to enter the home of a member family and remove their children for interviews.
That the department had sought such an order wasn’t strange—many states have laws that allow social services to petition judges for access to a home (which, by the way, is exactly what the Fourth Amendment requires the government to do if it wants to enter your home over your objection).
What was strange was the reasons the government wanted the order. Attached to the order was an affidavit from a CPS investigator, containing the grounds for the order.
She alleged three things. First, that an unknown person had seen Mrs. Berryman put her infant to sleep in a closet, where the baby had “cried excessively” before falling asleep. Second, when the investigator asked about this incident, Mrs. Berryman told her that the baby slept in a walk-in closet, which the family had converted into a nursery. Third, while the Berrymans declined to let the investigator into their home, they did bring their baby outside, clothed only in a diaper, and the investigator noted that the baby was clean and healthy.
One week later, the county sheriff served the Berrymans with a court order.
A playbook twenty years in the making
If that order strikes you as an unusual response to a baby sleeping in a converted closet nursery, you’re not alone. Texas defines “abuse” and “neglect” like many states do: it’s conduct that poses a substantial risk of harm to the child, or impairs the child’s growth, development, or functioning.
Converting a closet to a bedroom for an infant doesn’t pose any such risk, and there was nothing in the department’s petition or supporting affidavit that suggested otherwise. On the contrary, the affidavit recounted that the investigator had seen the baby during her visit to the home, and that the baby appeared clean and healthy.
Since the department had already obtained an order allowing them into the Berrymans’ home, our first step was to petition the Court of Appeals for a writ of mandamus, which tells another member of the government how to act. We asked the Texas Court of Appeals to overrule the court that had issued the entry order, because that order wasn’t supported by probable cause.
The writ was filed the following Tuesday by HSLDA’s attorney in Texas, Tom Sanders. Tom has represented families for decades in disputes with the department, and as we helped Tom prepare the petition, it was surreal to see how cases that we’d worked on years ago were continuing to make a difference.
In all, our petition and reply brief in the Court of Appeals cited six cases where HSLDA either represented the family or filed an amicus brief. On one end of the spectrum is Calabretta v. Floyd, which concluded more than 20 years ago that “[t]he 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.”
The final case we footnoted came out of the US District Court for the Western District of Kentucky, just this past August. We filed that case in 2018, when a Kentucky CPS investigator and a deputy sheriff entered the home of Holly Curry after threatening to remove her children, then strip-searched them all. The District Court, in the conclusion of its opinion allowing the Curry’s suit to go forward, described the case as a “three-act tragedy”:
Act One: An “attentive and loving” mother gets muffins for her children. Act Two: There’s a knock on her door and a threat by the government to take away her children. Act Three: Her children are strip searched without cause.
America’s founding generation may never have imagined a Cabinet for Health and Family Services. But they knew their fair share of unwelcome constables. And they added a Fourth Amendment to our Constitution to protect against this three-act tragedy.
Another shoulder to stand on
The day after our petition was filed, the Texas Court of Appeals issued an emergency stay, which protected the family from the department while the court considered the petition. Over the next month and a half, both sides filed more papers with the court, then awaited its decision, which came on October 14.
The court began by noting that the allegations did not even meet the definitions of “abuse” or “neglect.”
“It is not uncommon for a parent to place a baby on the floor to play or nap,” the court wrote. “Nor is it uncommon for a parent to allow an infant to cry herself to sleep, which is a known method of sleep training. And it is certainly not beyond the realm of reasonableness that a parent might convert a closet into a nursery, albeit a small one.”
While the department might disapprove of these parenting decisions, the court stressed that the Constitution “[does] not permit a state to infringe on a parent’s fundamental right to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.”
While the state “may legitimately interfere with family autonomy to protect children from genuine abuse and neglect,” its “responsibility to protect children from abusive parents does not authorize the state to oversee the internal affairs of every family.” That interference requires an affidavit that alleges abuse or neglect; without one, the department cannot obtain an order in aid of investigation.
The following day, the trial court withdrew its order, and the matter came to a close.
The Fourth Amendment protects all of us from “unreasonable” searches without cause, whether that search is conducted by the police or a social worker. It does so, in part, because of the carefully reasoned opinions of judges. But it also does so because of families who have chosen to defend their rights, and asked judges to issue those carefully-reasoned opinions.