Social Workers and the Fourth Amendment

It should come as no surprise that social workers and other child welfare workers are covered by the Fourth Amendment to the United States Constitution. What might be surprising is that the most conservative federal district courts are taking the lead in defining this new and rapidly evolving constitutional mandate, most notably the Tenth Circuit Court of Appeals (covering Wyoming, Utah, Colorado, New Mexico, Oklahoma and Kansas).

Applicable to the states through the Fourteenth Amendment’s Due Process Clause, the Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” Because the Amendment focuses on safeguarding persons from unwarranted intrusion, and not on regulating the behavior of particular governmental actors, the prohibition against unreasonable seizures extends to civil, as well as criminal, investigations by the government.

In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), the Tenth Circuit Court of Appeals held that there is no social worker exception to the Fourth Amendment. In Dubbs, eight pre-school children enrolled in the Head Start program were subjected to intrusive physical examinations, including genital examinations and blood tests, on school premises without parental notice or consent.

Also in 2003, the Seventh Circuit Court of Appeals, in Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), held that the strictures of the Fourth Amendment apply to child welfare workers, as well as all other governmental employees. In that case, a private Christian elementary school and a student’s parents sued several child welfare caseworkers under the Fourth and Fourteenth Amendments after the caseworkers interviewed a student about corporal punishment without a warrant or the consent of the school or parents.

A Fourth Amendment analysis is based on the totality of the circumstances in determining whether a reasonable person would have believed that he was not free to terminate an encounter with government. Some of the factors considered include:

1) the threatening presence of several officials;
2) the brandishing of a weapon by an official;
3) some physical touching by an official;
4) use of aggressive language or tone of voice indicating that compliance with an official’s request is
5) prolonged retention of a person’s personal effects;
6) a request to accompany the official to the station;
7) interaction in a nonpublic place or a small, enclosed place;
8) and absence of other members of the public.

In the Tenth Circuit Court of Appeal’s most recent decision issued last week, Jones v. Hunt, 2005 WL 1395095 (10th Cir. 2005), the court analyzed a sixteen year old girl’s encounter with child welfare social workers “through the eyes of a reasonable sixteen year old” child.

After concluding that the alleged encounter constituted a seizure, the court then reviewed whether the seizure was reasonable which depends on the context in which it took place. With limited exceptions, a search or seizure requires either a warrant or probable cause.

In this case, the court found that the social worker’s actions “violated the most minimal standard of which we can conceive.” The court held that where no legitimate basis exists for detaining a child, a seizure is plainly unreasonable. The court further found that this standard was clearly established as far back as 1994 when it held, in Doe v. Bagan, 41 F.3d 571 (10th Cir. 1994) that a seizure of a nine year old boy was justified at its inception because a victim of child abuse had identified him as her abuser and a ten minute interview with a social services caseworker was reasonably related in scope to determining Doe’s role in the incident.

In a critical footnote in Jones v. Hunt, the court noted that “we do not imply that a social worker investigating allegations of abuse or neglect necessarily requires a warrant, probable cause, or exigent circumstances before questioning a child on public school property. Where a social worker merely conducted an interview of a child at a public school, and thus did not remove the child nor interfere with the sanctity of the private home, we have applied the Terry standard.” (a search of a child by a government official is reasonable if “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place”)

The court concluded “it may be that the Terry standard applies even where a social worker removes a child from her parents’ custody at a public school following a legitimate investigation into child abuse and neglect.”

Should the Fourth Amendment apply to the day to day workings of social workers in child welfare investigations? Do social workers understand and apply this constitutional mandate in your jurisdiction?

6 Replies to "Social Workers and the Fourth Amendment"

  • L.
    July 8, 2005 (4:37 am)

    Mr. Marsh, thank you for commenting on the misapplication of our Earned Social Security Benefit Fund. I find it so strange that DHS agencies are being given BONUS MONEY and AWARDS from our earned Social Security Benefit Fund! The ASFA states there is NO limit to the amount of money that can be paid to the agency.

    My fellow citizens and I along with our employers paid into the Social Security Fund so it could be used to help us pay for essentials of life in our aging years. Now, our Social Security Benefit Fund is being given freely to DHS agencies as Bonuses and Awards for destroying our families and emotionally disabling our little children.

    I just learned that our Social Security Benefit Fund is also being freely given to DHS agencies as Bonuses and Awards for reducing Out-Of-Wedlock Births, too! It’s totally unbelievable how FW&A of our federal funds is overlooked!

    The programs (P.L.) that our EARNED Social Security Benefits go to are not in any way related to the original plans for our Social Security Benefits Fund! How long will my fellow Americans sit back and watch DHS agencies as they userp the authority, given by Public Laws, to for destroy our future generation. When will our Congressional representatives wake up and see what these laws are doing to everyone involved.

    Paying DHS agencies $80,000 per child for fewer Out-of-Wedlock births is quite a large financial misuse of our Earned Social Security Benefit Fund. Of course, as the Adoption Bonuses and Awards are given to DHS agencies and the Adoption Incentives given to adoptive parents along with the Out-of-Wedlock Birth Incentives, it’s plenty clear to me that our Earned Social Security Benefit Fund will be gone in a few short years.

    These laws should be rescinded to reduce DHS abuse and neglect inflicted upon children they manage to take into custody! POOR CHILDREN! They are not even told why they are taken into custody! Children think they’ve done something really bad or that somebody else has done something really bad! Then, they’re given mind-altering drugs and/or counseling to help them ‘recover’ from the emotional pains inflicked upon them by the agency whose responsibility is to Protect Children.

    Actually, in the majority of cases, it’s DHS that has done something really wrong! It’s like Judge Stuart said, “DHS has failed to help this family!” DHS takes great pride in NOT helping families! They are not given Bonus Money or Awards if they help a family. They’re only given Bonus Money and Awards for destroying families, disabling little children.

    California Appelate Judges J. Baxter and J. Kennard see DHS as it really is and included their conclusions in the Supreme Court of California Case Nomber S030556.

    Something should be done to STOP the abuse and neglect DHS agencies force upon little children and families! SAVE the children! SAVE the families! RESCIND the ASFA and all relating laws that promote child abuse and neglect for Bonus Money and Awards!

    When will our fellow citizens wake up and SEE what DHS/CPS is doing to our future generation?

  • Cindy Ripke
    July 27, 2005 (4:55 am)

    Yes I believe that there should be an investigation into the DHS/CPS because they take children away from families without even doing their jobs correctly and following the Laws on the CONSTITUTION!!!!! Families should be FREE from them (DHS/CPS)intruding on our Rights to raise our children.

  • L.
    July 28, 2005 (4:02 am)

    There is GREAT conflict in statements given by DHS/CPS employees and their contracting agencies!

    For example, in parenting classes, DHS agents tell the father of a child to help the mother CARE for the child! Help the mother feed the child. Help the mother give the child a bath. Help the mother with shopping for foods for the baby.

    Then, conversely, when a kindergarten child is taken into protective custody as a result of a sexual assault while on school property, the DHS caseworker says, “A father should NEVER touch his child! It is NOT acceptable!” The caseworker adds in VERY assertive language, “A father should NEVER give his child a bath! A father should NEVER dust bath or baby powder on his child! It is NOT acceptable! A father should NEVER give the mother money to purchase items for the children!”

    There is also great conflict in the endeavors of DHS agencies as they state that parents should marry and make a two-parent home for a child (rather than rear the child in a one-parent home by an un-wed mother) then conversely when the father of a child requests parenting classes to help the family learn how to function better and salvage the marriage, the DHS caseworker tells the father, “You should move out of the house, take the children and seek a divorce or you WILL be charged with child neglect!”

    It seems to me that DHS agencies and ALL of their contractors SHOULD be on the same track in their recommendations! Either the father should stay married to the mother OR the mother should never marry (unwed mother) OR the parents should get a divorce OR the one parent will face DHS accusations of child neglect and the parenting rights removed! WHAT IS GOING ON??

    When will DHS agencies get their recommendations on the same track … get married, stay married, get a divorce or continue to support unwed mothers.

    These activities are clearly Fraud, Waste and Abuse (FW&A) of our federal and state funds. DHS agents and their contractors are paid funds from OUR federal and state funds to dissect (cut apart to examine the inner workings of the structure or parts thereof) and pay additional contractors to make feable attempts to put the dissected members of the individuals back together in some sort of functional order.

    Attempting to put the dissected children and/or their members of the family back together is called DHS Reunification!

    It’s insane! There’s no way to reunify something that’s been so inhumanely dissected. The memories (scars) will remain a part of those lives forever! Even the most specialized doctors cannot remove the horribly obvious scars in every life that’s been dissected by DHS!

    Why does DHS insist on dissecting members of a family unit? There’s several reasons for their activities but they all relate to ONE obvious reason. The obvious reasons for dissecting a family unit is for (1) MONEY, (2) More MONEY, (3) Bonus Money and (4) Dissecting Performance Awards!

    NOW, HHS/DHS wants faith-based organizations to take some of their ill-gotten BONUS MONEY to help them continue to dissect the family unit. They want the faith-based organizations to take part of the FW&A funds to pay for the care of the dissected children.

    All the while, DHS agencies are busy promoting divorces rather than providing parenting assistance classes. If the family appears to not have, as determined by DHS agents, sufficient income to provide ALL of the needs of a family unit, the children are removed, taken into custody and FOSTER PARENTS given all the money needed to care for the children.

    When will federal and state funds be used as American citizen THINK they should be used … to HELP families in need? When will federal and state funds be used to help keep families united?

    Legislators, read the FACTS! Stop FW&A of our state and federal funds!

    Help families when they ask for help or when others see the family needing help! Stop dissecting children and families for BONUS MONEY from our Social Security Fund!

    Oh, PLEASE, fellow American citizens and members of our Congress, do something FOR our future generation instead of FOR DHS agencies!

    Read Luke 17:2-3 where the Holy Scriptures says in The Children’s Living Bible, “If he were thrown into the sea with a huge rock tied to his neck, he would be far better off than facing the punishment in store for those who harm these little children’s souls. I am warning you! Rebuke your brother if he sins, and forgive him if he is sorry.”

  • Anonymous
    July 4, 2008 (2:29 am)

    It is far over due that someone take action to stop these people,but Im asking whats to be done when the corruption goes way up the ladder of justice,and funds are lineing these peoples pockets ,who do you turn to,who can you trust there diffinently needs to be an up rising of the people.and alot of america really isnt informed on whats happening,only the ones who have been touched and destroyed by these money hungry sons of bitches truly know what they are capable of, and by the time there done with you most people are broken mentaly and financially and dont have much left to fight with. As we know the wheels of justice turn very slowly and even slower when some of these people in there judicial positions are being showered with the funds they generate.So as someone who has been tormented by cps for the last almost three years and has had a law suit pending for about the same amount of time and almost 100 thousand dollars later. PLEASE Tsomeone advise me on what else I can do to destroy these people and shut down cps

  • Personal support worker program
    March 31, 2010 (7:50 am)

    Social work is a profession for those with a strong desire to help improve people’s lives. They conduct research, advocate for improved services, or become involved in planning or policy development.

  • Anonymous
    February 23, 2011 (5:59 pm)

    NO government agency should be above the Constitution. That gives them absolute power, and absolute power corrupts absolutely. Things should be put in perspective as far as the risks are concerned. Almost all child abuse “reports” are wrong. The official statistics say that at least 80% of “reports” are false, although the real number is much higher. Why? Because around 75% of the parents who appeal their substantations are found innocent. Social workers aren’t required to prove that abuse/neglect happened, and are allowed to go on hearsay and circumstantial evidence. If there’s any evidence at all, it’s often enough for them to substantiate a case.

    They devastated my family last year. A vindictive neighbor turned me in after I decided to hire someone else for home improvements instead of her husband. There wasn’t anything wrong that the average adult couldn’t handle while keeping her child safe. I asserted my 4th Amendment rights but the social worker repeatedly threatened me. She called another social worker and four cops for backup. My son is severely autistic and had regressed over the summer. These children thrive on routine and often can’t deal with change or with visitors in the home. Even opening the door made him very upset. I was packing to move and he started throwing things around. When they finally coerced their way in, I was berated for the messiness. Well, it wouldn’t have been that way if they hadn’t upset him! I showed them a school document stating that the did the very same thing there. See, it was NOT my fault. That’s how these children often are. I took him to the doctor several times over the summer to address his health, and NONE of them had any concerns about my care.

    The next few months were hell. They had immediately realized that the initial complaint was wrong, but instead changed their tune. The scope of the investigation after that day immediately changed. Now they were confusing my son’s autism symptoms with child neglect on my part! I repeatedly stated that these were common things for autistic children. I asked if they had any experience with autistic children and they said no. I told them where to look up this information to prove that I was right. Weeks later, they were still hounding me and admitted that they hadn’t done the research.

    My daughter was 8 at the time, she’s now 9. She is still scared to death of these idiots. She begs me every day to buy a house with a secret room “so I can hide from CPS”. She talks about how she hated hearing them “say bad things about my mommy”. She also talks about how she was scared the time that one social worker yelled at me for having laundry on the floor. (Right before they came, I was going through the previous year’s clothing to see what would still fit.)

    When people think of CPS, they think of true abuse and neglect. They imagine children beaten, bruised, starved, and unloved. These things make up a minority of CPS cases. Most of their cases are either poverty confused with neglect, or with ordinary family life being misunderstood. The horror stories seem to all come from social workers who are fresh out of college and have no parenting experience, like mine. And while they bully and harass families who are just having ordinary lives, they are missing the few children who truly are abused and neglected and in true danger.

    This issue is about to be decided by the US Supreme Court. For the sake of our children, I hope CPS is finally put in their place. The Fourth Amendment doesn’t keep them from protecting a child in imminent danger. If there’s imminent danger, the Fourth Amendment doesn’t apply. (Although in mine and many other cases, the social workers try to portray every case as having “imminent danger” and this too needs to stop.) If there’s no probable cause, there’s not enough grounds to excuse a social worker from adhering to our Constitution.