The Home School Court Report
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July / August 2004

Without probable cause

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Over the years, Home School Legal Defense Association has worked at the forefront of protecting homeschooling families from unconstitutional searches and seizures. Despite the Fourth Amendment requirement of "probable cause" for searches and seizures, many in the child protection system have held the mistaken belief that the requirement does not apply to social workers. Ignoring families' constitutional right to refuse a search, social workers have pressured their way through numerous front doors "for the good of the children."

In cases like Calabretta v. Floyd (9th circuit), HSLDA successfully sued for damages after social workers made an unconstitutional intrusion into a member's home based on nothing more than an anonymous tip. Federal court after federal court has since ruled that social workers are subject to the Fourth Amendment and must have more than an anonymous tip to justify forced entry into a home.

This success in the federal courts has changed how social worker investigations are conducted. Now, more and more social workers follow the legally established channel of obtaining a court order before searching a home. Unfortunately, some courts do not hold these social workers to the standard of evidence required to determine whether probable cause exists to justify the search order. Instead, they simply rubber-stamp the request.

In Cleveland County v. Stumbo, for example, a social worker received an anonymous tip that a 2-year-old child had been seen running naked in the family's rural driveway for a few moments. The county took the Stumbo family to court when they refused to allow the social worker into their home to interview their children.

"If the trial court in Stumbo had performed its duty," explains HSLDA President Mike Smith, "it would have carefully evaluated the anonymous tip to determine if there was probable cause to enter the home. Instead, the judge simply rubber-stamped the social worker's request. Based on nothing more than the anonymous tip, she ruled that the issue was not whether there were grounds to justify the entry, but whether the family had declined the requested permission."

HSLDA defended the Stumbos in the trial court and in the North Carolina Court of Appeals, which ruled against the family in a two-to-one vote. HSLDA followed with an appeal to the Supreme Court of North Carolina, which ruled unanimously that the initial court order was improper.

Two current HSLDA cases demonstrate that although social workers are now more likely to understand that they cannot enter a home without a court order, the courts are not necessarily carrying out their own duties under the Fourth Amendment.

ER visit snowballs into abuse investigation
When HSLDA member Susan Gauthier of Pennsylvania rushed her 2-week-old daughter Isis to the hospital on a Saturday evening in mid-February 2004, she didn't expect that a doctor's annoyance and a social worker's insistence would take precedence over her parental rights—both in the hospital and at her front door.

Mrs. Gauthier took Isis to the hospital because she seemed to be having trouble breathing. Without first thoroughly examining the child, the emergency room doctor aggressively pressured the frightened Mrs. Gauthier to allow Isis to undergo invasive testing, including a painful spinal tap. He also wanted to administer intravenous antibiotics that Mrs. Gauthier knew carried a high risk of infection.

At this point, Rob Gauthier arrived and together the Gauthiers declined these invasive procedures, wanting the doctor to conduct a thorough examination before making a diagnosis. "They were going to start treating for things she didn't have," a frustrated Mr. Gauthier told HSLDA.

The doctor, apparently annoyed with their initial refusal and interpreting their reluctance as a lack of concern for their child, called two hospital social workers to help him convince the parents to acquiesce. After repeatedly asking the doctor to check for a respiratory problem and repeatedly being ignored, the Gauthiers reluctantly consented to the treatment offered.

"They didn't do all the proper diagnostic procedures," Mr. Gauthier remembers. "If they had, they would have found out that it was a respiratory problem and she only needed oxygen!"

Once Isis had begun receiving treatment, the Gauthiers had reason to believe they would finally be left alone. Instead, a third social worker from Susquehanna County Social Services (SCSS) was called in to continue investigating the doctor's allegations of "possible medical neglect." She conducted an interview of the Gauthiers there at the hospital, offering no consideration for the strain these parents had undergone in taking their newborn to the emergency room. In her eyes, "we were guilty right from the start," notes Mr. Gauthier.

Knowing that the allegations were false, the Gauthiers did their best to cooperate with the social worker throughout the interview. But when she asked to see the medical records of the other three Gauthier children, the dismayed parents called HSLDA.

THE GAUTHIER GIRLS: Unaware of the controversy her trip to the hospital stirred up, baby Isis enjoys the attention of her three big sisters (L to R): Sage, Zoe, and Piper.

HSLDA Senior Counsel Dewitt Black immediately contacted the social worker. "There is absolutely no indication that Mr. and Mrs. Gauthier's children have been medically neglected in any way which would give rise to your investigation of their health," Mr. Black informed her, adding that the family did not intend to release any of their medical records.

Mr. Black also advised the social worker not to pursue the matter further. "Home School Legal Defense Association is committed to defending the constitutional rights of parents. I would caution you about proceeding against the Gauthier family in any manner that would infringe upon the exercise of their constitutional rights."

Ignoring his warning, the social worker insisted that she needed to examine the Gauthiers' home. "You should have known that a home visit is required," she said. (As a matter of protocol, every SCSS investigation requires a "home visit," even if the allegations are known to be false or have no connection with the home.)

The Gauthiers refused the visit. "My understanding was that we had provided everything they needed to close the case," Mr. Gauthier explained to HSLDA. "The baby was already being treated and had a proven history of being taken care of. At that point they should have turned around and said, ‘Okay, that's the end of it.'"

Unfortunately for the Gauthiers, that was exactly what the social worker did not say. Giving no notice whatsoever to the family, she filed a petition on March 4, 2004, in the Susquehanna County Court to compel the Gauthiers to allow her into their home. She cited no facts that showed any abuse had occurred, stating only that the family had refused to allow a home visit.

Though the petition failed to establish probable cause for violating the Gauthier's Fourth Amendment rights, the court granted the social worker's request and mailed the order to the family, giving them 10 days to comply.

SCSS soon discovered, however, that this family wouldn't open their door without a fight. "According to the lawyer [for SCSS], nobody's ever fought this before," says Mr. Gauthier.

As soon as the family received the order, HSLDA simultaneously filed an appeal of the order and a petition for a stay of the order for the duration of that appeal. Twenty-four hours after filing, the petition for stay was denied at the county level. HSLDA appealed it to the intermediate appellate court. Again, the stay was denied.

That weekend, HSLDA's litigation team prepared an appeal to the Pennsylvania Supreme Court. "The order had to be carried out within 10 days," says HSLDA Litigation Attorney Darren Jones, who drove from Purcellville, Virginia, to Harrisburg, Pennsylvania, to file the completed petition. "That's all the time we had to appeal it through all three courts."

During the appeals for the stay, friends and neighbors asked the Gauthiers why they didn't just allow the visit, since they had nothing to hide.

The family stood firm against SCSS. "It isn't a question of hiding something or not. You don't have any reason to come out here. That is what our Constitution is supposed to protect us from."

Despite the fact that the order flew in the face of the Gauthiers' guaranteed Fourth Amendment rights, the stay was again denied, compelling the family to allow the visit.

The social worker walked through the house, finding absolutely nothing to substantiate the allegations of "possible medical neglect." She closed the file with a parting shot to the Gauthiers. "No offense, but I hope we never hear your name again."

The damage, however, was already done—the Gauthiers' Fourth Amendment rights had been violated. Although the Pennsylvania Supreme Court refused to stay the search order, the appeal of the order is still alive and the appellate court will eventually be faced with the merits of the Fourth Amendment claim. The Gauthiers hope that their ordeal can benefit others by establishing a legal precedent in Pennsylvania like the Stumbo case did in North Carolina.

Anonymous tip establishes social worker prerogative
In September 2003, HSLDA members Steve and Kathy Hannoval* of New Jersey adopted four siblings in a state-sponsored adoption.

"Two of the children were in seven foster homes in one year before they came to us," recounts Mr. Hannoval. "We spent six months preparing to bring the other two home."

Those six months were filled with visits, interviews, and counseling from Department of Youth and Family Services (DYFS) workers who were involved in their transition, during which three of the children were assured again and again that their new parents were good people and that they would be safe in their new home.

One child, however, did not receive those assurances. Nine-year-old Kassidy* and her sister had been placed together in a single foster home. While the adoption was being completed, DYFS allowed the foster mother to keep them with her, on the condition that she help prepare them for adoption. The foster mother, who had wanted to adopt only Kassidy, did not fully comply, and the Hannovals suspect that she may have tried to turn Kassidy against her new family.

When the adoption was completed, the family settled into a routine, with Mr. and Mrs. Hannoval assuring the four sisters who had been shuffled from house to house for so long that they were really home, they were loved, and they were all a part of the Hannoval family.

Six months after the adoption was final, however, the Hannovals arrived home to find the business card of a DYFS caseworker on their front door with a note requesting a call from the family.

A concerned Mr. Hannoval called the caseworker. "We'd had a lot of dealings with DYFS in the last few years, so I was surprised I didn't recognize this name," he told HSLDA.

When he asked the reason for the contact, neither the social worker nor her supervisor would disclose the allegations, other than to say that they had been made in an anonymous letter. Refusing to disclose the allegations is contrary to federal law, which requires social workers to tell parents the nature of any allegations at the first contact. Eventually, Mr. Hannoval was told that there had been an allegation that Kassidy was suffering from malnutrition.

Mr. Hannoval was stunned when the social worker asked if he had other children. Apparently, she had done no research on his family at all. She had even missed the fact that in 2003, the family had been named an adoption family honoree for opening their home to the four sisters. Mr. Hannoval tried to explain how he had been involved with DYFS throughout the 18-month adoption process, but the social worker insisted that she needed to interview his daughter. Once she realized that Kassidy was not the Hannovals' only child, the social worker determined that she needed to speak with the rest of the children as well.

"Since you already know DYFS, you shouldn't have any problem with us coming in," she reasoned.

But the Hannovals wouldn't stand for it. Knowing that the disruption of interviews with unfamiliar caseworkers might undermine the security they had been trying to build for their new daughters, they refused to consent to a home visit.

"I felt like they were coming in blindly," Mr. Hannoval explains. "I don't think it was researched enough for them to come into our house."

Due to their years in foster care, the Hannoval children were already worried enough about being taken away again. That evening Mr. and Mrs. Hannoval had to tell their new children what was happening. "My kids turned white when they heard," says Mr. Hannoval. "Here is an organization that just convinced my kids that we're safe people, and now they're coming in and saying that we may not be safe!"

That evening, the Hannovals called HSLDA. Attorney Scott Woodruff warned them that DYFS might use legal means to gain access to the Hannoval home and children.

There was little time to waste.

Following HSLDA's advice, the Hannovals immediately took all of their daughters to their regular pediatrician, asking that he specifically examine them for signs of physical abuse and malnourishment. The physician found neither, stating emphatically, "I have no concerns of physical abuse and no evidence of nutritional neglect."

Nonetheless, the social worker was determined to get into the Hannoval home and complete her interviews. As HSLDA had predicted, on April 12, 2004, she filed an emergency petition for an order to compel the Hannovals to let her interview the children in the home, and notified the family that there would be a hearing the next day.

HSLDA put together a defense of the Hannovals' right to refuse the visit under the Fourth Amendment. They prepared the doctor to testify that there was no need for an investigation, contacted social workers who knew the family, and composed a brief for the judge detailing both the practical and constitutional harm that the visit would bring to the Hannoval children. The brief also explained how an anonymous tip does not establish the "probable cause" required by the Fourth Amendment to grant a search order.

The social worker, on the other hand, supplied no facts showing neglect, abuse, or parental unfitness outside of the obviously false allegations made in the anonymous tip, which comprised her entire case to get into the Hannoval home. "After last fall's sensational Jackson scandal—the case in which police discovered four severely malnourished children who had been under the supervision of the New Jersey DYFS—this social worker was probably counting on judges being more inclined to grant social worker requests than ever before," surmises HSLDA Litigation Attorney Jim Mason.

Mr. Hannoval, who still has not seen the anonymous letter, was amazed at the allegations revealed in court.

"The more I heard about what was in the letter," Mr. Hannoval relates, "the more I realized that there were things in it that made this letter unbelievable." The author of the letter claimed to have overheard the allegations at a cafeteria lunch table, which woul
d have been impossible. The Hannoval girls are homeschooled and eat lunch every day at home with their mother, a fact to which Mr. Hannoval testified under oath in court.

Such common sense made little difference to the judge, however. Despite the clear lack of evidence against the Hannovals, the court granted the petition based on an old New Jersey case which held that social worker investigations don't need "probable cause."

"This ruling is based on an old misconception about social worker authority in the New Jersey case law, and it's unconstitutional," Mr. Mason says. "Since that original New Jersey case, five federal circuits have ruled that a social worker must have ‘probable cause' to gain a warrant to search a home."

When Mr. Hannoval asked what was to stop someone from harassing his family in this manner each time an anonymous tip was filed, the judge replied, "Nothing."

The social worker offered even less comfort. "Well, if this happens again and again, you'll just get to know me really well."

"I don't want her in my life for the rest of my life," Mr. Hannoval declares. "My wife and I were just appalled that someone who we didn't even know could come into our house."

After the court ruled, the Hannovals decided not to appeal. They just wanted the matter resolved quickly so their children would not have to live in constant dread.

Several days later, the social worker visited the home and privately interviewed all four of the children, finding nothing to substantiate the claims made in the anonymous letter. She told the Hannovals that the case would be dropped.

Simply dropping the case won't make the Hannovals' trauma any less severe, however.

Mr. Hannoval explains his children's perspective on the case: "It instilled in them this idea that the state could come into their lives at any time." With no guarantee of privacy or security, the children cannot know if they are truly safe with their new parents, and their parents can't give them much assurance. "If this was a vindictive move, I know it's going to happen again," adds Mr. Hannoval.

To prevent a repeat occurrence and to protect other New Jersey families, HSLDA will be filing a suit in federal court on the Hannovals' behalf. The suit's purpose will be to change the rule of law currently followed by New Jersey courts.

The prospect of helping others has encouraged the family. "When Jim Mason told us that there's a possibility that this case could change the rules—that gave me hope," Mr. Hannoval concludes.

Without exception: A new level in the battle for the front door
The costs of decisions like the ones in Pennsylvania and New Jersey aren't paid by only one or two families. When courts fail to uphold the constitutional rights of even a few Americans, the rights of all of us are in jeopardy. Because one precedent sets another precedent, it is vital that the recent trend of holding social workers to Fourth Amendment standards be continued throughout the states.

Mike Smith explains that "in more than 20 years of protecting the constitutional rights of its members, Home School Legal Defense Association has worked through the court system to establish that social workers are not exempt from the requirement that government agents must have probable cause before searching a private home. Now, we're taking this battle for the front door to the next level. If courts become nothing more than ‘rubber stamps' for social workers seeking unconstitutional search orders, then the Fourth Amendment protection is a hollow one indeed."

HSLDA agrees that real child abuse must be prosecuted to the full extent of the law—but civil rights must be respected to protect the innocent from becoming victims of overreaching state agencies. An anonymous tip that is patently false on its face does not constitute "probable cause" for a social worker's intrusion into a home.

Both families and social workers benefit when social workers abide by the Fourth Amendment. Instead of forcing unconstitutional protocols, social workers can reduce the risk of litigation by respecting the rights of families for whom there is no evidence to support probable cause. When shown this kind of respect, families will feel more comfortable about cooperating with investigations, and children will benefit from increased security and permanency in their homes. Following the law is good practice. Q

* Names changed to protect family's privacy.