Texas proposal: Confirmed progress for families
The Lone Star State agrees with Home School Legal Defense Association that respect for the Fourth Amendment rights of families being investigated is good social worker practice and reflects well on both caseworkers and child protective services (CPS). With the law now clear that the Fourth Amendment applies to child welfare workers as well as to law enforcement officials, the Texas Department of Family and Protective Services is preparing to train its caseworkers in procedures that will coincide with the Fourth Amendment requirements.
The January 2004 training proposal draft lays out guidelines that will benefit not only children and families by respecting their rights, but also caseworkers by reducing their possible exposure to litigation. "The case law makes it clear that CPS investigations can constitute an unreasonable search and seizure under the Fourth Amendment, if not properly conducted," the draft begins.
This agency has drawn the lines for its caseworkers, stating, "An individual's home is a private place and entitled to special protection under the Fourth Amendment. A caseworker may not enter a person's home for a child abuse investigation without . . . consent, court order, [or] exigent circumstances."
Home visits can no longer be a matter of protocol, with social worker "immunity" being used as a tool to force entry into a home. "A caseworker should never threaten, coerce, or misrepresent the facts in order to get consent to enter the home," the proposal instructs. "[I]t is extremely important not to state or imply that CPS will get a court order or will remove a child, as the decision to issue a court order is entirely up to a judge, not CPS."
Texas CPS also recognizes that an anonymous tip is not enough to establish probable cause to enter a home without consenteven in exigent circumstances. "Exigent circumstances cannot be based solely on a report of abuse or neglect, but require personal knowledge of facts to support . . . the alleged risk."
The proposal concludes by stating that CPS must be careful to "make sure that that conduct is warranted based on the specific facts of the case."
Texas' proposal reflects HSLDA's efforts to protect the best interests of families and children, both in the courtroom with cases like Calabretta v. Floyd (CA) and Cleveland County v. Stumbo (NC), and in Congress with the Keeping Children and Families Safe Act of 2003, which amended CAPTA to require notification of allegations and Fourth Amendment training.
Only 16 states specify any standard in their child welfare codes that comes even close to the constitutional requirement for "probable cause." Home School Legal Defense Association has been working with state legislatures and Congress over the last 20 years to reform state child welfare laws. One way we have done this is by supporting legislation requiring social workers to abide by the Fourth Amendment.
With the Keeping Children and Families Safe Act of 2003, HSLDA successfully attached two key amendments to the federal Child Abuse Prevention and Treatment Act (CAPTA) legislation that helped increase protections for any parent facing a child abuse investigation. Now, social workers are required by federal law to reveal allegations to a family being investigated at the time of the first contact, and more significantly, all 50 states are required to adopt provisions for training social workers to protect the legal, constitutional rights of children and families for the duration of their investigations.
Five states (Arizona, Indiana, Iowa, Texas, and Virginia) have passed bills in compliance with these amendments to CAPTA, and 10 other states have introduced similar bills in their legislatures.