Many of you assumed when I wrote about our struggle against CPS that we were tilting at windmills and that we were simply pulling out card after card blindly, hoping to draw the ace. We were not; I had actually done my research before I spoke. In my haste to post, I may have given the wrong impression. In this article I'm hoping to help you understand the basis upon which we mounted our fight. If you know of anyone who is having difficulty with CPS, please feel free to give them access to this information.

The Fourth Amendment states that "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."  The Fourteenth Amendment insures that Constitutional protections are not infringed by the states when it states that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws".

Not only is illegal search and seizure prohibited, but a warrant is required to be supported by oath or affirmation. This renders investigations initiated by anonymous tipsters effectively toothless, as an anonymous tipster is unlikely to surrender their anonymity to swear an oath or affirmation against you. Those who do risk certain civil action for false reporting and harassment and a sworn allegation that is later proven false opens them up to a charge of perjury. Few case workers will willingly risk their job (and subject themselves to civil and criminal action as well) to swear an oath to initiate a search warrant, and few judges will risk their profession by issuing a search warrant that is not based on solid evidence. Frankly, if I'd have known this, I'd have advised people in this direction years ago.

Now, allegations made by tipsters who are NOT anonymous are another matter. If the worker has basis for a warrant, they may get it, but it may still be in your best interests to hold them to it because of the final portion of the 4th amendment that requires the search describe the place to be searched and the persons or things to be seized.

But, as many are quick to point out, CPS action is, in fact, a CIVIL action, rather than a criminal action (something that needs to change, as parents who have their children stripped should only have this done when and if they are proven guilty of CRIMINAL abuse or neglect, an action that RARELY happens). The question arises: does the 4th amendment still apply?

The answer is a resounding YES, as appellate court decisions have repeatedly affirmed. Not only does it still apply, but it also applies to CPS' request to interview your children.

In Dubbs v. Head Start, Inc (2003), the Tenth Circuit court of appeals examined a case in which eight preschool children enrolled in the Head Start program were subjected to physical examinations on school grounds absent parental notice or consent. They affirmed that there was no social worker exception to the 4th amendment.

In Doe v. Heck (2003), the 7th Circuit Court of Appeals held that the 4th Amendment applies to child welfare workers and other government employees as well in a case where a private Christian elementary school and a student's parents sued caseworkers after a student was interviewed about corporal punishment without the school or parent's consent.

In Jones v. Hunt (2005), the 10th circuit Court of Appeals determined that where no legitimate basis exists for detaining a child, a seizure is plainly unreasonable. They further found this standard was clearly established as far back as 1994 in Doe v. Bagan, another 10th Circuit Court of Appeals decision involving the seizure of a 9 year old, a decision where the seizure was deemed justified because the child was identified as an abuser of a victim of child abuse, who had clearly identified him.

As I have said before, regardless of what I have to say about certain federal court decisions, they have nonetheless remained reasonably consistent in affirming our Constitutional rights. But no decisions they make can stand unless we, as citizens, hold them to the letter of the law.