Based on an anonymous report that their children play in the street and that their 3-year old was seen in the street, Russell and Wendy Billiot have been the focus of an investigation for child neglect since November 28, 1995.
The Billiots submitted to questioning about their home and parenting and provided a letter from a licensed social worker who regularly visits their home stating that they are loving, caring parents whose children are perfectly healthy. They provided the name and phone number of a public school teacher in the community who works in the home with the family's Down Syndrome child to vouch for their home environment. Their neighbors, a local police officer and his wife, offered to speak with social services to verify their excellent parenting. But social services would not be satisfied. They insisted on personal, private interviews with each child. The Billiots refused.
On January 3, 1996, a social services caseworker and her attorney went to a judge without notifying HSLDA or the Billiots to get an order to permit the interviews of the children. This was done despite our office's specific request in writing to be notified if such a request was made to a court. Instead, the sworn affidavit of the caseworker was presented to the judge and the order granted without inquiry. The Billiots were delivered the Order and instructed to present their children for interrogation at 3 p.m. that afternoon.
HSLDA took immediate steps to file a Motion to Quash or Set Aside the Court's Order. With the help of local counsel, Joel Hanberry, we were able to get an extension on the interviews in order to prepare and file our motion and brief. The judge ordered us to file our brief by Friday, January 5. He would read it over the weekend and rule on Monday.
The argument against the court order is four-fold:
- Louisiana law authorizes such a court order where "reasonable suspicion" exists to believe that a child has been abused or neglected. The social worker's affidavit in the Billiot case failed to demonstrate that reasonable suspicion exists that a child has been neglected because it stated only that a report had been received. It gave no specific information regarding the neglect. It is a mere allegation of an allegation. We cited to the court cases from other states which held that there must be credible evidence of abuse to order the entry into a private home. Specifically, we directed the court to the Alabama Court of Appeals, where the court overruled a trial judge who had permitted entry on an anonymous report of abuse. H.R. v. Alabama Department of Human Resources is a case we handled where two telephone reports had been made to social services that certain events were occurring in the home that affected the children's welfare. An investigation ensued including the gaining of a medical report that showed no health problems. When the family refused entry, social services went to court for an order to permit them to interview the children. The Court of Appeals held that such an order was illegal in the absence of "reasonable or probable cause shown that there has been an abuse of a child." Anonymous, unsworn hearsay is not such evidence.
- The Louisiana statute is unconstitutional because it contains a lower standard ("reasonable suspicion") than "probable cause" as is required by the Fourth Amendment.
- The Louisiana statute is unconstitutional because it permits an ex parte order when there is no emergency. (An ex parte order is one obtained without notice to the other side.) When a protected liberty interest is at stake, such as the care and custody of a child, then notice and opportunity to be heard should be given. To our knowledge this issue has not been litigated before and is the kind of question that could ultimately reach the Louisiana Supreme Court, or even the United States Supreme Court.
As of January 29, the judge had not ruled on our motion. The Billiots have returned to their routine, but know that a court decision against them will again expose their children to the trauma of these interviews.
Situations like this one threatening the Billiots are not uncommon. Social services departments around the country are exceeding their constitutional authority to enter homes, interview children, and even do physical examinations of naked children. In fact, on a report of physical or sexual abuse, regardless of whether it is corroborated, it is routine for many departments to insist upon inspection of the home, private interviews with the children, and physical examination (by the social worker). On an allegation of neglect, only the physical examination is avoided. These departments do not have this authority. Call our office immediately upon contact by a social services agency so we can protect your Fourth Amendment rights and at the same time satisfy the agency that there is no abuse or neglect. It is the exception that an agency such as in Louisiana refuses to cooperate with us and insists upon rights it does not have. Let us pray that the Louisiana court recognizes its error and causes no further harm to the Billiot family.
[CAPTION] The Billiot Family: (back row, l-r) Russell, Jeremiah (3), Rachel (13), Wendy (front row, l-r) Daniel (8), David (10),