“If I have seen further,” Sir Isaac Newton wrote to a fellow scientist in 1675, “it is by standing upon the shoulders of giants.”
One of the great joys we have as homeschooling parents is getting to see this concept play out in the course of day-to-day life. We try to cultivate in our students a love of learning by sharing with them the works of giants: Einstein and Euclid, Bowditch and Banneker, Tolstoy and Tolkien, Dickens and Dr. Seuss.
The lessons from the past shape the minds and imaginations of the future, as our children learn to better understand and navigate the world in which they live.
This works for adults, too.
For the last 37 years, HSLDA has been working to protect the freedom of homeschooling families. In that time, there have been a lot of challenges, but there have been a lot of successes, too. Most of them seem small in the moment, affecting just one or a few families. But every once in a while, those small victories coalesce into something much, much bigger.
Like they did in Texas a few months ago.
When is “good cause” enough cause?
It all began when the Berryman family was visited by an investigator with the Texas Department of Family Protective Services. An unknown person had reported seeing the Berrymans put their 8-month-old infant to sleep on a closet floor with the baby crying “excessively.”
The Berrymans told the investigator this description was wrong: their baby slept in a walk-in closet, which they had converted to a small nursery.
They also brought their infant to the front door. According to the investigator’s notes, the baby, who at the moment was wearing only a diaper, had “no visible physical injuries” and “appeared to be clean and healthy."
That should have ended the matter.
But it didn’t.
The investigator said she had to enter the Berrymans’ home and interview all of their children. But she had no court order, and the family declined to give her permission.
So she left , and the family heard nothing more—until a sheriff delivered a court order saying the department could not only enter the Berrymans’ home but also remove the baby from the home to interview her, along with any other children.
If that order strikes you as an unusual response to a baby sleeping in a converted closet nursery, you’re not alone. It’s called an Order in Aid of Investigation of Child Abuse or Neglect, and judges in Texas are allowed to issue them “for good cause shown” if the department is investigating a report of child abuse or neglect, and if “admission to the home, school, or any place where the child [may be] cannot be obtained.”
In the abstract, laws like these are good laws.
Child abuse and neglect investigations are complex because there is almost always a conflict between wanting to keep children safe and protecting their privacy and the privacy of their parents.
Both goals are incredibly important, and balancing them is hard, even under the best conditions. And an impromptu meeting on the family’s doorstep, where the parents have a growing fear that the government will remove their children, never presents the best conditions.
That’s why the Fourth Amendment generally requires such decisions to be made by neutral judges, rather than the parties involved in the dispute in the heat of the moment.
That was the part that was odd.
Texas defines “abuse” and “neglect” like many states do: abusive or neglectful 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 to obtain the order, or the supporting affidavit of the investigator, 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.
In short, the Fourth Amendment demands that in order to enter a home to investigate abuse or neglect, the department needs to have probable cause to believe a child is being abused or neglected. They didn’t. And yet they’d gotten a court order allowing them into the home anyway.
So what could the family do now?
A playbook 20 years in the making
Fortunately, we had the answer. Or at least most of it. Because what happened to the Berrymans resembled what had happened to two other homeschooling families, two decades ago.
The first began in 1999: the North Carolina Department of Social Services (DSS) received an anonymous report that an unsupervised 2-year-old child had been seen naked in the driveway of the Stumbo family’s house. (It turned out that the toddler—halfway through getting dressed—had briefly darted outside after her kitten.)
When DSS said they had to enter the home to investigate and interview their children, the Stumbos declined. So DSS filed a petition in court to “prohibit interference with or obstruction of” their investigation, and they got an order from the court that did just that.
We argued that because DSS wanted an order allowing them to enter the Stumbos’ home, it needed probable cause first. It didn’t have it, for two reasons: first, it is well settled that an anonymous report standing on its own doesn’t amount to probable cause. And second, what the reporter alleged—even if true—wasn’t “abuse” or “neglect” under North Carolina law.
Over the next four years, the case—officially called In re Stumbo—made its way up to the North Carolina Supreme Court, which unanimously agreed with us on our second argument: DSS couldn’t seek this kind of an order unless it was investigating allegations of “abuse” or “neglect,” and these allegations didn’t qualify.
Three of the seven justices on the court would have gone further, concluding that even though the North Carolina statute didn’t explicitly require that orders be supported by “probable cause,” orders that weren’t based on probable cause would violate the Fourth Amendment (and thus be unconstitutional, like this one was).
We modeled our strategy in the Berrymans’ defense after our approach in Stumbo: the Texas statute, like the North Carolina statute, didn’t explicitly require that the order to enter the home be supported by probable cause (just “good cause”), but in order for the Texas statute to be constitutional, whatever “good cause” there was had to amount to “probable cause” of abuse or neglect.
That posed a second problem for the Texas Department of Family Services, because even if the reporter’s allegations against the Berrymans were true, putting a baby to sleep in a nursery converted from a closet isn’t “abusive” or “neglectful.”
The second case that resembled the Berrymans’ happened in 2005, in Pennsylvania, appropriately named In re Petition to Compel Cooperation. Like Stumbo, the case started when local child protective services (CPS) investigators petitioned a court to get an order to enter a family’s home, over the parents’ objection.
In support of its petition, CPS didn’t provide the court with any specific allegations about the family or the children. Instead, it merely said that it had received allegations of “medical neglect,” and that the caseworker had requested permission to enter the home and been refused. Pennsylvania law required CPS to “complete a home visit,” so that justified the order, CPS argued.
We filed an emergency appeal on behalf of the family, arguing that this wasn’t enough to satisfy the Fourth Amendment.
The Pennsylvania Superior Court agreed with us that an order to enter a home couldn’t be issued absent a showing of probable cause, and that simply arguing that the order “should be granted because a home visit is required under the Code” did “not allege facts sufficient for a search warrant to issue.” The justices pointed out that while “the importance of protecting this Commonwealth’s children from abuse and neglect” was not in doubt, the laws requiring CPS “to investigate each and every allegation of child abuse/neglect, including visiting the child’s home at least once during its investigation, do not trump an individual’s constitutional rights under the Fourth Amendment.” 
If CPS had probable cause to enter the home, it had to provide it to the judge—or conduct further investigation outside the home to produce probable cause. It hadn’t, and its order violated the Fourth Amendment.
Old principles, new challenges
As in In re Stumbo and In re Petition, the Texas Department of Family Protective Services had already obtained an order allowing them into the Berrymans’ home. So our first step was to challenge that order through a writ of mandamus—a special order issued by a court that tells another member of the government how to act moving forward. In our writ, 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 by HSLDA’s local counsel in Texas, Tom Sanders.
Tom has represented families for decades in disputes with the department, and as we helped Tom prepare the petition for writ, it was surreal to see how cases that we’d worked on years ago were continuing to make a difference. Two cases that featured prominently in our Berryman petition also came out of Texas: Roe v Texas Department in 2002 and Gates v Texas Department in 2008—both against the Texas Department of Protective and Regulatory Services (DPRS), now known as Texas Department of Family Services. We had filed amicus brief curiae (“friend of the court”) briefs in both cases when they were being considered by the Fifth Circuit Court of Appeals, which makes federal law for the states of Mississippi, Louisiana, and Texas.
Roe, decided by the Fifth Circuit, was a watershed case in many respects. It began when a DPRS investigator received an anonymous report about a 6-year-old girl at a day camp, strip-searched the child, and took photos of her private parts.
When the mother sued, DPRS argued—just like Pennsylvania CPS had argued in In re Petition—that the agency was required to enter the child’s home under state law.
The Fifth Circuit disagreed, concluding that a Texas statute couldn’t overrule the Fourth Amendment, which applied to DPRS investigators—just as it applied to police officers and all other government investigators.
Six years later, the Fifth Circuit reaffirmed in Gates that the Fourth Amendment applies to DPRS investigators.
DPRS tried to argue that child abuse investigations fall within the “special needs” exception to the Fourth Amendment—an exception reserved for administrative searches, which are unrelated to the needs of law enforcement and thus not subject to the probable cause standard.
The court disagreed, noting that the primary aim of the investigations was to uncover evidence of “abuse” or “neglect.” That aim was not unrelated to law enforcement—on the contrary, it was “closely tied with law enforcement.” The Fourth Amendment applied.
In all, our petition and reply brief for the Berrymans in the Texas Court of Appeals cited six cases where HSLDA either represented the family or led an amicus brief:
- In re Stumbo, decided in 2001;
- Roe v Texas Department, in 2002;
- In re Petition to Compel, in 2005;
- Gates v Texas Department, in 2008;
- Calabretta v Floyd, a 1999 case on which both Roe and Gates relied (in Calabretta, the court ruled 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); and
- Curry et al v Kentucky Cabinet, a case that was decided in the US District Court for the Western District of Kentucky, in August 2020.
We led the Curry case in 2018, after a Kentucky Cabinet for Health and Family Services investigator and a deputy sheriff threatened to remove Holly Curry’s children, entered her home, and then strip-searched all six kids (ages 1–7). The district court, in the conclusion of its opinion allowing the Currys’ 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. 
For more than two hundred years, the Fourth Amendment has stood as a bulwark between the people and their government, offering security from searches that aren’t supported by probable cause. Sadly, those searches still happen, and even more sadly, they will continue to happen until they are challenged and corrected.
Like what happened in Texas.
Another shoulder to stand on
Tom led the Berrymans’ petition in late August 2020, armed with the lessons we’d learned from Calabretta and Stumbo, In re Petition and Roe, and Gates and Curry. The following day, 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.
It came on October 14.
The Texas Court of Appeals began by taking issue with the department’s decision to classify the report as a “Priority One” report of abuse or neglect. Under Texas law, such reports are supposed to be limited to children who are facing “an immediate risk of abuse or neglect that could result in death or serious harm.”
The department’s supporting affidavit never explained how Mrs. Berryman’s actions created such a risk; on the contrary, it “[set] forth absolutely no facts regarding the Berrymans’ other children, abusive, neglectful, or otherwise.” In fact, the court said, 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. 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. . . .
Without more, the conclusory assertions in [the] affidavit do not allege sufficient facts from which [the district court] could reasonably conclude that abuse or neglect had potentially occurred . . .
Finally, 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 ‘believer’ decision could be made.”
The court continued: 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.” And, said the court, 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 closed the case.
In some ways, this outcome is small: after all, it only affects one family.
But it could also change the way these investigations are done in Texas.
Orders in aid of investigation are extraordinary measures and are designed for extraordinary circumstances: when children are abused and neglected by the parents who are supposed to love and care for them.
The department can still seek an order in those circumstances.
What it can’t do is enter a family’s home, over their objection, when the department can’t provide the court with any reason to conclude that parents are abusing or neglecting their children.
The Fourth Amendment protects all of us from “unreasonable” searches without cause, whether that search is conducted by the police or a CPS investigator.
It does so, in part, because of the carefully reasoned opinions of judges.
But it also does so because ordinary families like the Calabrettas, the Stumbos, the Roes, and the Gateses have chosen to defend their rights and asked judges to issue those carefully reasoned opinions.
Their courage has changed the law for the better. And now they are the giants upon whose shoulders today’s homeschooling families stand.
Your support of HSLDA has allowed us to come alongside each of these families with a strong defense, so that the next generation of homeschooling families—like the Currys, the Berrymans, and our own kids—can continue the fight for freedom, for their kids to flourish and learn in a safe, nurturing place called home.
 In re Berryman, No. 12-20-00210-CV (Tex. App. Oct. 15, 2020).
 In Re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003), https://scholar.google.com/scholar_case?case=13505241941868648042&q=in+re+stumbo&hl=en&as_sdt=6,39.
 In re Petition to Compel Cooperation, 875 A.2d 365 (Pa. Super. Ct. 2005).
 In re Petition, 875 A.2d at 379.
 Roe v. Texas Dept. of Protective & Reg. Services, 299 F.3d 395 (5th Cir. 2002); Gates v. Texas Dept. of Protective & Reg. Services, 537 F.3d 404 (5th Cir. 2008).
 Calabretta v. Floyd, 189 F.3d 808 at 820 (9th Cir. 1999).
 Curry v. Kentucky Cabinet for Health and Family Services, No. 3: 17-CV-00730-JRW-CHL (W.D. Ky. Aug. 18, 2020).
 Curry, 2020 17-CV-00730-JRW-CHL, at *14.
 In re Berryman, 2020 No. 12-20-00210-CV, at *7.