Ruling limits searches by child welfare workers

May 26, 2005

Wednesday, May 25, 2005By Barbara White Stack, Pittsburgh Post-Gazette

The duty of child protective agencies to rescue abused children doesn't exempt them from the type of standards police must meet to search homes for evidence of crimes, a state appeals court has ruled. A three-judge panel of state Superior Court decided last week that caseworkers can't ignore parents' Fourth Amendment freedom from unreasonable searches. The responsibilities of a child welfare agency "to investigate each and every allegation of child abuse [and] neglect, including visiting the child's home at least once during its investigation, do not trump an individual's constitutional rights," Judge Kate Ford Elliott wrote. The ruling tips the scales that traditionally had been weighted in favor of child safety toward parents' privacy rights, said Frank Cervone, an expert in child welfare issues and executive director of Philadelphia's Support Center for Child Advocates. "I think it makes family affairs a little more private and children a little less safe," he said. The case involved Susquehanna County parents Robert and Susan Gauthier, who refused a caseworker's request to enter their home to investigate an allegation, only to be subjected to a search anyway when the county Services for Children and Youth agency got a court order forcing them to open their door. After checking the home, the Children and Youth agency sent the Gauthiers notice that the allegation of medical neglect against them was unfounded. Superior Court said caseworkers requesting court orders to enter homes must show probable cause, the type of standard required of police seeking search warrants. The court said the Susquehanna County request did not meet that standard. In a concurring opinion, Senior Judge Phyllis W. Beck said that what constitutes probable cause in child protective services cases is different from what it is in criminal law. She said agencies must present sufficient reasons to warrant entering a home within the bounds of the U.S. Constitution, but "they should not be hampered from performing their duties because they have not satisfied search and seizure jurisprudence developed in the context of purely criminal law." She did not, however, explain what the child welfare search standard should be. Eleanor Grainy, director of Allegheny County's Juvenile Court Project, which represents parents accused of abuse, said her lawyers cheered the decision. "Basically what this means for our clients is families are protected from unjustified intrusion into their homes by child protective service agencies when the agency does not possess facts sufficient to establish probable cause to believe that a child in that household is abused or neglected." The decision could put workers in a difficult position when a parent refuses them access. State law requires them to see the child who is the subject of an abuse allegation and state regulation requires workers to visit the home. When a parent turns them away, they must ask a judge to order the parent to let them in. Now, when they do that, their court petitions must show that they have probable cause to believe the child was injured. If a judge feels they haven't met the standard and denies the request, they may not be able to complete the investigation in the way the law and regulation appear to mandate. Though some might say innocent parents should just let workers into their homes because they have nothing to fear, James Mason, the attorney who represented the Gauthiers, disagrees. Mason, litigation counsel for the Home School Legal Defense Association of Purcellville, Va., said that children subjected to questions by a stranger about whether their parents beat or molested them suffer as a result of those interrogations. An example of potential harm is described in the decision. In a Dauphin County case, a caseworker entered a home without a court order, contending she didn't need one to investigate an anonymous allegation that a mother had fought with her 7-year-old, leaving bruises. The caseworker strip-searched the 7-year-old. She found no bruises. Mason got involved in the Gauthiers' case because they home-school their four children and are members of the legal defense association. Mason said he took the case because of complaints the group had received. "It was our experience over time that when a home schooling family was subjected to a social work investigation, it was a result of disgruntled relatives with no foundation in fact," he said. This decision, similar to those in Ohio, North Carolina, California, Alabama and other states, protects the rights of families against spurious allegations, he said. The ruling allows caseworkers standing on doorsteps hearing screams rising from the basement or seeing blood covering the stoop to enter the home without a court order, he noted. Cervone expressed concern about the potential effect on children: "The anonymous report, without any supporting information, may not rise to the level of cause this court is seeking for a judge to issue a court order, and that is troubling." The problem could arise particularly in cases where the alleged victim is a toddler who rarely if ever leaves the home. If the child is being starved or if he's being brutalized when he has a potty training accident, for example, the caseworker may not be able to find out unless she can get into the house."We have erred on the side of caution [by investigating]. Perhaps we have been overly cautious, and this court is reining in some of that," Cervone said. He said he hopes Susquehanna officials appeal the decision. The lawyer who represented the agency, Marion O'Malley, said yesterday that has not been decided.

(Barbara White Stack can be reached at bwhitestack or 412-263-1878.)