DCF Interviews at School

It is a pet peeve of mine that DCF investigators think they can talk to children at school and that schools let them.

It has been a major debate in several federal appeals courts, amongst attorney members of the National Association of Counsel for Children, on the American Bar Association Child / Parent Attorneys email discussion list, amongst members of the National Association of CPS Defenses Attorneys and even at the U.S. Supreme Court.

Unfortunately it remains an open question. But I lean toward the proposition that schools should not permit DCF personnel, police or other employees of outside agencies to interview children, who are not in the custody of the interviewing person, at school.

My answer to the question "is it legal?"on avvo.com, which lays out some of my reasoning, can be found here: http://www.avvo.com/legal-answers/my-child-is-being-questioned-at-school-by-dcf.

If your school committee has a policy about visitors or interviews and you know or suspect that your child might be a target for an interview, consider adapting the form letters in my previous post to your situation.

And consult with an attorney who is familiar with DCF policies and practices.

SCOTUS overturns CA9 on Warrantless CPS interrogations

The U. S. Supreme Court issued its decision today in Camreta v. Greene. Read the full decision here:
http://www.supremecourt.gov/opinions/10pdf/09-1454.pdf

This is the 9th circuit case in which the circuit court found a Fourth Amendment violation based on a CPS worker and Sheriff's deputy's warrantless interrogation of a then 9-year-old at school. The 9th Circuit, though finding the violation, found that the official had qualified immunity since the law was unclear before. The deputy was granted cert in the U.S. Supreme Court.

The Supreme Court ruled it could review the appellate court's constitutional decision, even though Camreta was the prevailing party below, based on qualified immunity. Nevertheless, the Court held the case is moot, because Greene has no continuing stake in the controversy. Consequently, it vacated the portion of the 9th Circuit opinion that imposed the warrant requirement.

Justice Kagan wrote the majority opinion in which Roberts, Scalia, Ginsberg and Alito joined. Scalia wrote a concurring opinion. Sotomayor, joined by Breyer wrote an opinion concurring in the result, but opining that the court should have decided only that the case was moot and vacated the judgment below. Kennedy, joined by Thomas, wrote a dissent concluding that Camreta as a "prevailing party" should not have been permitted to appeal the constitutional decision below, which he describes as "obiter dictum".

Thanks to the NACC yahoo group for notice of and the link to the decision and to members of the group for the concise summary quoted above.

Supreme Court to hear school strip search case

As reported here, the U.S. Supreme Court has agreed to hear Safford (AZ) Unified School District's appeal of the Ninth Circuit's reversal of the dismissal of Savana Redding's suit against it for strip searching her to look for ibuprofen when she was a 13-year-old honor student with no history of discipline issues at her middle school.

I hope SCOTUS isn't taking the case in order to overturn the Ninth Circuit. The July 11, 2008, Opinion of nine of the eleven appeals court judges who heard the case details the Constitutional basis for holding the school personnel responsible for their unreasonable violation of the privacy and person of the 13-year-old student.

The Ninth Circuit held that

[T]he public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person.

It would be a shame if parents had to worry more about schools abusing their children than the "evils" that Safford U.S.D.'s officials say they want to protect our children from.

WHAT?@@!??

A young mother's apparently disturbed young friend steals her baby Thursday night so on Friday

the Department of Social Services took custody of the baby and his 16-month-old sister, and Sterrett's third child, a 2-year-old boy, was placed with relatives, according to a spokeswoman for the agency.

DSS previously investigated Sterrett for alleged neglect involving one of her other children. That case was closed last year, according to Alison Goodwin, a spokeswoman for DSS, who gave no details.

Does DSS not realize, like the Texas authorities in the FLDS case didn't realize, that they need specific, articulable "reasonable cause to believe that the removal of the child is necessary to protect him from further abuse or neglect"? See Mass. General Laws chapter 119, section 51B (emphasis added). Doesn't "further" imply that there had to have been some abuse or neglect in the first place?

Nothing in the Globe article about poor Ms. Sterrett's troubles indicates that there was any evidence of

reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child’s health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth

which is the applicable statutory definition from the infamous section 51A.

It's hard to tell for sure from the Globe article, but it seems as if this is another case of DSS breaking up a family in the name of protecting children from a parent they don't need protection from. Will the Globe report on Tuesday, after Ms. Sterrett's 72-hour hearing , if she gets her children back from the juvenile court judge? Will DSS apologize or even have its spokesperson report that they were wrong if Ms. Sterrett does get her children back?

The Fourth Amendment to the U.S. Constitution gives even young mothers the right not to have their children seized by the state without probable cause.

Corporal punishment

Following a discussion on the Arlington email list about anti-corporal punishment legislation that Rep. Jay Kaufman filed on behalf of Arlington resident Kathleen Wolf, Rep. Kaufman posted his rationale for testifying in favor of the bill.

My reply to Rep. Kaufman's post and letter to the editor:

I believe that the Department of Social Services (DSS) provided misleading statistics to the Legislature that Rep. Kaufman cited in his testimony and Letter to the Editor concerning the corporal punishment bill (The Advocate, December 6, 2007) .

My experience as an attorney who has represented parents and children in abuse and neglect cases for almost 30 years tells me that the "19,000 cases of abuse reported to DSS in the 3rd Quarter" almost certainly included "incidental or minor physical contact" that the bill exempts and its proponents say they are not concerned about.

The mandated reporting statute (General Laws chapter 119, section 51A) is interpreted by DSS to require reporting whenever there is any suspicion of abuse or neglect.

I have had two cases already this quarter and several more in my career in which DSS decided to "support for abuse" in cases where there was merely a "spanking" or "a swat". Involvement of DSS in those families and its erroneous findings that there was abuse occurred even though "abuse" is defined in DSS's own regulations and the Supreme Judicial Court's 1999 *Cobble* case as requiring more than brief, minor pain and a rapidly fading red mark.

The referral of 1,200 cases to the District Attorney (DA) level is cited as meaning that "there was compelling evidence of abuse and prosecution was warranted." Not so. Under DSS regulations referral to the DA merely means that a DSS "investigator" has determined that there was "reasonable cause to believe" that certain serious kinds of abuse had occurred. "Reasonable cause" does not require physical evidence or even medical confirmation.

If the cited statistic was even the number of cases referred by DSS on which DAs filed criminal cases, maybe it would be an indication that someone had determined there was "probable cause" to believe a crime had been committed. That is not what a DSS referral to the DA means. "Reasonable cause" in DSS-speak does not equal "probable cause." Rarely are any of the 19,000 reported cases presented to a court or even to anyone outside of the intake unit for independent fact-finding determinations.

The constitutional burden of proof for criminal cases is "beyond a reasonable doubt." Courts have ruled that family relationships can be permanently severed upon "clear and convincing evidence." To temporarily remove a child from a family into foster care while the court determines if the child is at risk of harm requires only "a fair preponderance of the evidence." But DSS referring a case to the DA is an even lower standard -- "reasonable cause to believe" that abuse has occurred. The fact that only "1,200 of [the 19,000 reported cases] "advanced to the DA's level" means that 17,800 were either "unsupported" or were found not to have any evidence of serious abuse.

Yes, abuse is a serious problem and should be uncovered, prosecuted and prevented. Children should be protected from it. But, if this bill passes DSS, an agency that already involves itself with 80,000 cases per year (many of which are not significant enough to refer for law enforcement investigation), will have an excuse to continue its micromanagement of parents who do not conform to its belief that all physical contact in discipline is harmful and warrants intervention.

I am certainly in favor of the legislative deliberations that Rep. Kaufman's testimony suggests but I think focusing on corporal punishment and giving DSS additional incentive to investigate families that use it reasonably, runs the risk of driving parents underground with their questions about how best to raise their children. If medical and other childcare professionals must report a family to DSS every time there is a suspicion of the use of corporal punishment, insecure parents may refrain from asking for advice.

So, yes, have the debate; reforms are needed. The Legislature should consider requiring a judicial determination of probable cause or real, documentable exigent circumstances (as I believe to be required by the Fourth Amendment to the US Constitution and Article XII of the Massachusetts Declaration of Rights) before DSS is allowed to pierce a family's privacy or take their children involuntarily into foster care.

I respectfully urge the legislature not to pass this bill. Stop abuse, prevent abuse, prosecute abuse - but keep the government out of the private affairs of families.

was published in The Arlington Advocate as a Guest Column "More on corporal punishment" and was promoted by Atty. Deborah Sirotkin Butler on the Blue Mass Group blog "Legislation on corporal punishment - protection for children or invasion of privacy ?".

The issue seems to sharply divide people between those who believe that all corporal punishment constitutes abuse or battery and should be punished and those who think that corporal punishment is a personal choice and may not warrant state intervention in all cases.

DSS Reform Bill

Massachusetts House Bill 4191 An "Act Relative to Child Abuse and Neglect" is scheduled for public hearing tomorrow (9/26/07, 10:30 a.m. in room 222) by the Legislature's Joint Committee on Children, Families and Persons with Disabilities.

Though the bill fixes several of the issues of lack of real oversight highlighted by the Haleigh Poutre case, too much of the lack of oversight, dearth of definitions, confusing language and lack of due process for families in the current statute are left essentially untouched. What tries to look like major overhaul of the whole statutory scheme is really just a minor tune up of a small portion of what really affects families involved with the child protection system.

I am afraid that passage of the bill in its entirety will make it appear that thoughtful consideration was given by the legislature to the troubling issues that are really not addressed.

I call on Senator Spilka, Rep. Coakley-Rivera and the rest of their committee to recommend passage of the new oversight and second opinion provisions of H. 4191 but to remove the portions that merely restate the existing sections of chapter 18B and 119 until a comprehensive review and restructuring particularly recognizing parents' rights, due process, probable cause and true judicial oversight of DSS or the Department of Children and Families can be accomplished.

It's not KidLaw but I couldn't resist

After seeing this post from my friend and colleague Atty. Marie Saccoccio on the MassPrivateCounsel yahoogroup (for criminal and other defenders), I couldn't resist posting it here. (Sorry I don't know Marie's original source, so I can't cite it right now.)

Los Angeles County, California v. Rettele, 550 U.S. ___ (#06-605 , decided May 21, 2007)

"When the Court gets jittery, it reaches for its equivalent of a nicotine patch to calm its nerves: a good old per curiam summary reversal of the Ninth Circuit. Everyone on First Street is a little calmer after Monday.

"The plaintiffs in this case, who are white, sued under § 1983 after officers mistakenly searched their home looking for 4 black suspects. Turns out the plaintiffs had bought the home from the suspects shortly before the police got their search warrant.

"Just as it only rains when you forget your umbrella, going to sleep naked more or less guarantees that the cops will arrive that night. And so it was here. The officers rousted the plaintiffs out of the bed and forced them to make like Greek statues for 3 minutes (but probably minus the placid expressions on their faces), while police searched the rest of the house.

"The CA9 found that this treatment unnecessarily denuded the plaintiffs of their dignity and therefore their Fourth Amendment rights. Proving that turnabout is fair play, the CA9 stripped the officers of their qualified immunity. The court of appeals reasoned that once the officers saw the white occupants of the house, they should have known they had the wrong house and stopped the search.

"It took the Court 7 pages to set the law aright. Police may reasonably detain a house’s occupants during a search, to protect officer safety and the integrity of the search. Here, they did not have to abandon their search simply because they encountered persons of a different race than the suspects—“the presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well.”

"This was the rare case in which the CA9 was not politically correct enough, for the Court had to instruct that “it is not uncommon in our society for people of different races to live and work together”, or for that matter, to commit crimes together.

"Finally, the plaintiffs’ brief au naturel detention was reasonable because the suspects were believed to be armed and could have been hiding a gun under the bed covers. There was no allegation that the police left plaintiffs unclothed any longer than necessary to secure the room.

"JPS (+RBG) penned a two-page concurrence in the judgment, blasting the CA9 for issuing a hotly contested 2-1 decision as an unpublished opinion (a well-known CA9 tactic for hiding summary reversal candidates). He also restated his long-held view that the Court should not decide the constitutional merits of a case when it can more easily be resolved on qualified immunity grounds, as this one could. "