(Note: Portions of referenced article found at the end of this article; the complete text can be found at the link provided).

One of the most tragic facts of life in America is the number of American citizens whose rights are violated because, quite simply, they were not educated as to those rights. One of the reasons I write the articles I do on Child Protective Services is because they are a government entity who have consistently asserted unConstitutional authority, which is unfortunately expanded by state legislatures in light of certain high profile instances of abuse. As April is Child Abuse Awareness Month, I felt it was a good time to enumerate many of the rights of parents, rights of which they are often unaware.

When we dealt with CPS, we faced a lot of criticism because we refused to allow social workers into our home. To someone unfamiliar with the system, that would seem to be stupid. After all, the concept of "disobeying" authority figures is such a deeply ingrained taboo in many of our minds that we don't even stop to question the obvious: what if the person is asserting authority they do not have? In the case of CPS, that is almost always the case.

As Homeschool Legal Defense Association attorney Michael Farris points out below, there are only three circumstances in which a social worker may enter your home. This fact has been reaffirmed in numerous higher court rulings. They may enter if you give them permission, if they have enough evidence to constitute probable cause (in which case, they will probably bring an accompanying warrant), or if there are exigent circumstances. As the vast majority of cases lack probable cause or exigent circumstances, in many cases, social workers will obtain the "permission" of the parent by threatening the parent with legal action if they do not allow the social worker entry. In many cases the social worker will use this voluntary entry to gather what they consider to be probable cause for a future visit.

Preying on the ignorance of the accused is a tactic that is disallowed in many criminal cases; in fact, it is the basis for the Miranda warning ("you have the right to remain silent"). The theory behind requiring government agents to notify the accused of their rights is sound: an agent of the government is viewed by most individuals as having nearly unlimited authority, and it is the responsibility of that agent to inform the accused of their rights.

Where CPS is concerned, however, it is all too often true that even the case workers are unaware of your rights. When we asserted our 4th amendment rights to the CPS caseworker investigating our case, she did not know what to do...she had to consult with the agency's attorneys. Not only did I cite the rights in the letter I mailed them, I cited the courtroom precedents that affirmed my case. Without that information, it's likely I could have confronted an armed sherrif muscling his way into our house.

I'm one of the fortunate ones: I have access to that information. As a longtime homeschooler, I have studied these situations over the years. But too many families DON'T have access to this information, and don't know where to obtain it. They certainly won't obtain it from CPS, and even the local police aren't forthcoming with that information. While a high priced attorney MAY provide the correct information, there are just as many attorneys, if not more, who are terrified of the stigma of standing up against this agency, and who haven't taken the time to study the laws as they've been applied to these cases.

I believe it is vitally important as government agents begin asserting nonexistent authority, for those of us who know better to inform people otherwise. If we don't, who will?

(The following is the link to the article referring to the limitations of social workers, as well as a portion of the article provided at that link):

http://www.hslda.org/research/docs/200404020.asp

What are the requirements of the Fourth Amendment?

The general rule is that unreasonable searches and seizures are banned. But the second part of the rule is the most important in this context. All warrantless searches are presumptively unreasonable.

There are two and only two recognized exceptions to the requirement of having a warrant for the conduct of a child abuse investigation:

1. The adult in charge of the premises gives the social worker his/her free and voluntary consent to enter the home.
   

2. The social worker possesses evidence that meets two standards:

   (a) it satisfies the legal standard of establishing probable cause; and
   

   ( the evidence demonstrates that there are exigent circumstances relative to the health of the children.
   

Consent.

If a police officer says, "If you don't let us in your home we will break down your door"—a parent who then opens the door has not given free and voluntary consent. If a social worker says, "If you don't let me in the home I will take your children away"—a parent who then opens the door has not given free and voluntary consent. Threats to go get a "pick up order" negate consent. Any type of communication which conveys the idea to the parent that they have no realistic alternative but to allow entry negates any claim that the entry was lawfully gained through the channel of consent.

It should be remembered that consent is only one of the three valid ways to gain entry: (warrant, consent, or probable cause and exigent circumstances.) There is nothing improper about saying, "We have a warrant you must let us in" or "We have solid evidence that your child is in extreme danger, you must let us in." Such statements indicate that the social worker is relying on some theory other than consent to gain lawful entry. Of course, the social worker must indeed have a warrant if such a claim is made. And, in similar fashion, if a claim is made that the entry is being made upon probable cause of exigent circumstances, then that must also be independently true.

Probable Cause & Exigent Circumstances

The Fourth Amendment does not put a barrier in the way of a social worker who has reliable evidence that a child is in imminent danger. For example, if a hotline call comes in and says, "My name is Mildred Smith, here is my address and phone number. I was visiting my grandchildren this morning and I discovered that one of my grandchildren, Johnny, age 5, is being locked in his bedroom without food for days at a time, and he looked pale and weak to me"—the social worker certainly has evidence of exigent circumstances and is only one step away from having probable cause.

Since the report has been received over the telephone, it is possible that the tipster is an imposter and not the child's grandmother. A quick verification of the relationship can be made in a variety of ways and once verified, the informant, would satisfy the legal test of reliability which is necessary to establish probable cause.

However, a case handled by HSLDA in San Bernadino County, California, illustrates that even a grandparent cannot be considered a per se reliable informant.

A grandfather called in a hotline complaint with two totally separate allegations of sexual abuse. The first claim was that his son, who was a boarder in an unrelated family's home, was sexually abusing the children in that home. The second claim concerned his daughter and her husband. The claim here was that the husband was sexually abusing their children. These were two separate allegations in two separate homes.

The social workers went to the home of the unrelated family first to investigate the claims about the tipster's son. They found the claims to be utterly spurious. They had gained entry into the home based on the consent of the children's parents.

The following day they went to the home of the tipster's daughter. The daughter had talked to her brother in the meantime and knew that her father had made a false report about him. When the social workers arrived at her home, she informed them that they were in pursuit of a report made by a known false reporter—her father. Moreover, she informed the social workers that she had previously obtained a court order requiring her father to stay away from her family and children based on his prior acts of harassment.

Despite the fact that the social workers knew that their reporter had been previously found to be unreliable—they insisted that they would enter the family home without consent.

In a civil rights suit we brought against the social workers and police officers, they settled the matter with a substantial payment to the family in satisfaction of their claims that the entry was in violation of their civil rights because the evidence in their possession did not satisfy the standard of probable cause.

It is not enough to have information that the children are in some form of serious danger. The evidence must also pass a test of reliability that our justice system calls probable cause.

In the first appellate case I ever handled in this area, H.R. v. State Department of Human Resources, 612 So. 2d 477 (Ala. Ct. App. 1992); the court held that an anonymous tip standing alone never amounts to probable cause. The Calabretta court held the same thing, as have numerous other decisions which have faced the issue directly.

On the surface, this places the social worker in a dilemma. On the one hand, state statutes, local regulations, and the perception of federal mandates seem to require a social worker to conduct an investigation on the basis of an anonymous tip. But, on the other hand, the courts are holding in case after case that if you do enter a home based on nothing more than an anonymous tip you are violating the Fourth Amendment rights of those being investigated. What do you do?

The answer is: Pay attention to the details of each set of the rules.

First and foremost, keep in mind that the ultimate federal mandate is the Constitution of the United States. No federal law can condition your receipt of federal funds on the basis that you violate some other provision of the Constitution. South Dakota v. Dole, 514 U.S. 549 (1995).

Second, realize that the mandate to conduct an investigation does not require you to enter every home. Even if your rules or statutes seem to expressly require entry into every home, such rules and statutes must be construed in a manner consistent with the Constitution. The net requirement is this: if your laws and regulations seem to require entry into every home, then social workers should be instructed to add this caveat: "when it is constitutional for me to do so."

Obviously, nothing in the Constitution prevents a social worker from going to a home and simply asking to come in. If the parent or guardian says "yes", there is no constitutional violation whatsoever—provided that there was no coercion.

This covers the vast majority of investigations. The overwhelming response of people being investigated is to allow the social worker to enter the home and conduct whatever investigation is reasonably necessary.

The second alternative is to seek a warrant or entry order. The Fourth Amendment itself spells out the evidence required for a warrant or entry order. No warrant shall issue but on probable cause. The United States Supreme Court has held that courts may not use a different standard other than probable cause for the issuance of such orders. Griffin v. Wisconsin, 483 U.S. 868 (1987).

If a court issues a warrant based on an uncorroborated anonymous tip, the warrant will not survive a judicial challenge in the higher courts. Anonymous tips are never probable cause.

This was the essence of the decision in the case of H.R. v. Alabama. In that case, the social worker took the position that she had to enter every home no matter what the allegation.

In court, I gave her some improbable allegations involving anonymous tipsters angry at government officials demanding that social workers investigate these officials for abusing their own children. Her position was that she had to enter the home of all those who were reported. The trial judge sustained her position and held that the mere receipt of a report of child abuse or neglect was sufficient for the issuance of an entry order. However, the trial judge's decision was reversed by the Alabama Court of Appeals. That court held that the Alabama statute's requirement of "cause shown" had to be read in the light of the Fourth Amendment. An anonymous tip standing alone did not meet the standard of cause shown.