The North Carolina Supreme Court agreed
to review the case just before I took over as
HSLDA’s litigation counsel. As the new guy, I
reviewed the record, the briefs, the opinions,
and all the cases cited by both sides and by
the courts. Here’s the shocking news I learned:
CPS investigators—and the trial courts where
they appear—did not believe the Fourth
Amendment applied to them.
Shocking, because I had been in law
enforcement before going to law school, and
the police academy trained us extensively on
the Fourth Amendment. Not to mention the
judges I appeared before in evidence suppression hearings and the defense attorneys who
quibbled with my every move. The Stumbo
trial judge even went so far as to say the
only issue for her to decide was whether the
parents had obstructed the CPS investigator
by asserting the Fourth Amendment—not
whether the Fourth Amendment applied.
I wrote the brief, Mike Farris argued, and
the Supreme Court of North Carolina agreed
with us unanimously. Four of the seven
justices made the commonsense observation
that, “We have a report of a circumstance that
probably happens repeatedly across our state,
where a toddler slips out of a house without
the awareness of the parent or caregiver—no
matter how conscientious or diligent the parent or caregiver might be. While no one wants that to happen, such a lapse does not in and
of itself constitute ‘neglect.’” And the other
three justices clearly stated that the Fourth
Amendment applies to CPS investigations,
and that judges are to protect the constitutional rights of those parents the state brings
before them.
Like the cases Peter highlights in our cover
story, the Stumbos’ case was decided years after
the initial encounter and the unlawful search
was prevented. But the more heart-wrenching
cases we sometimes handle involve a CPS investigator who doesn’t go to court first, ignores
the Fourth Amendment rights of a parent, and
causes enormous harm to children and parents.
Three homeschool moms HSLDA
successfully represented while suing
rogue CPS investigators have indelibly changed the way I view these
kinds of cases: Shirley Calabretta,
Vanessa Wilson, and Holly Curry.
Shirley preceded me as a speaker
at a small conference in the early
days of 2020. It was the 20th anniversary of
her family’s ordeal, and she had been asked
to tell the story of the day an investigator
ignored her rights, barged into her home, and
strip-searched her child. Describing that strip
search was an extremely tender moment for
her. The helplessness to protect her child
in unfair and arbitrary circumstances still
affected her these many years later.
We sued a CPS investigator who took
Vanessa’s children into foster care based on
a provably false understanding of juvenile-onset diabetes. Vanessa never told me this,
but one of the defendants during deposition
described the moment the CPS investigator
decided to wrongfully seize the children. The
defendant recalled witnessing the deputy
holding Vanessa across the room from the
children, and seeing her collapse and fall to
the floor, utterly distraught, while her crying
children were hauled away. The kids were
separated from Vanessa for 50 days.
District Judge Justin Walker’s
take on the Curry case:
“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.”
– Excerpted from Curry et al. v. Kentucky Cabinet for Health and Family Services et al.,
Memorandum Opinion and Order, United States District Court Western District of Kentucky
And Holly’s recollection about how a deputy
and CPS investigator bullied their way into
her home and strip-searched all her kids, even
though there was no allegation of physical
abuse, is haunting and unforgettable. The
investigator euphemistically referred to the
strip search as nothing more than a routine
“body check” before leaving Holly’s home and
closing the case as unfounded.
Holly and Shirley’s cases resulted in a published federal court opinion setting important
Fourth Amendment precedents. And in each
case, the moms were paid substantial damages
for the violation of their rights. In Vanessa’s
case, $700,000, and in Holly’s case more than
$500,000. (Shirley’s settlement amount is subject to a non-disclosure agreement.)
Shirley, Vanessa, and Holly each unequivocally say that no amount of money could
repair the damage done to their children and
their family’s sense of security in their own
homes. And they each struggle to hold back
tears when they recount the events that led
them to sue a CPS investigator.
After more than two decades of involvement
with Fourth Amendment cases, today when
I am asked why HSLDA defends the Fourth
Amendment rights of homeschoolers, I answer
the question with a question of my own:
“Where do you think homeschooling parents
homeschool their homeschooled kids?” The
home is the one place the Fourth Amendment
is most jealous of protecting.
HSLDA never writes a legal brief involving
the Fourth Amendment’s protection of the
home without quoting the last sentence of the
court of appeals decision that ruled in favor
of Shirley Calabretta: “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.”
That’s why HSLDA fights for the Fourth
Amendment rights of homeschool families.
