Kidjacked » legal » constitutional_rights.asp Kidjacked? Share your story!!!Want to share your story? Follow these posting guidelines.AddThis Social Bookmark Button
Wednesday, June 12, 2024
 1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
 Kidjacked | Jacked Up 
Comments are strictly moderated.
decorative corner
Join Kidjacked on Facebook

Being abused and/or neglected as a child are not the only painful and potentially damaging experiences that human beings may suffer in childhood. -- Jim Hopper

decorative corner

The Constitution and Child Protective Services

This test is used as a training tool to teach caseworkers about your rights under the law and how to do their job, without violating your rights.


After completing this course, participants will understand:

  • That the Fourth Amendment applies to Child Protective Services investigations.
  • What constitutes a "reasonable expectation of privacy" during a child abuse and/or neglect investigation.
  • How to keep criminal child abusers from avoiding conviction on a "technicality."
  • How to avoid being sued for violations of civil rights.
  • When to contact a supervisor and/or attorney for guidance during a child abuse and/or neglect investigation.


  • Q1: The Constitution limits what police may do. Does it also apply to CPS workers?
  • Q2: Do parents have a right to refuse to allow CPS workers to enter their homes?
  • Q3: What is required for a warrant or court order to enter a private residence?
  • Q4: Who gets hurt when CPS workers don't understand and follow the law?

(Click to view Pre-test answers.)

Initial Scenario

Sophie Smart is a child protective services worker ("CPS worker") investigating a case of alleged physical abuse of a ten-year-old boy. An anonymous source reported that his father spanked him with a belt, leaving bruises. School is out for the summer, so Sophie can't interview the child at the local elementary school. She goes to the home and explains that she is there to investigate an allegation of physical abuse. The mother refuses to let her in.

What should Sophie do?

  • Say the law requires her to enter the home and interview her child.
  • Say she will get a court order to remove her child from the home unless she cooperates.
  • Ask whether she can see the child just to make sure he is okay.
  • Go to her car and call her supervisor for instructions.

Sophie asks the mother for permission to see the child. The mother refuses, saying he fell down and hurt himself and can't get out of bed.

What should Sophie do?

  • Say she must see the child right away.
  • Call for backup by law enforcement.
  • Ask whether the mother has taken the child to a doctor.
  • Go to her car and call her supervisor for instructions.

The mother says she took the child to the doctor that morning, and offers Sophie his name and phone number. She signs a release so that Sophie can talk to him. When Sophie calls, the doctor says he examined the child that morning for injuries from a skateboard accident. He says the injuries were consistent with the description of the accident. Sophie asks him about suspicious bruises and he says he saw nothing suspicious. He reminds her that he is a mandatory reporter and is required to report anything that might indicate abuse or neglect.

What should Sophie do?

  • Start knocking on doors in the neighborhood to ask if anyone has evidence that these parents abuse their children.
  • Ask the mother to bring her son to Sophie's office as soon as he gets better.
  • Make a note that the mother refused to cooperate and close the case as "unable to determine."
  • Call her supervisor for instructions.

The mother agrees to come to Sophie's office with her husband and her son. Both parents admit that they believe in spanking and have been known to use a belt, but they cannot recall ever having seen any bruises from a spanking. Sophie talks to the child privately, who says that his father does spank him occasionally but "it's no big deal." Sophie asks him whether he would mind pulling down his pants so she can check for bruises, but he refuses.

What should Sophie do?

  • Substantiate a finding of physical abuse because the parents admit to striking the child with an implement.
  • Tell the child she has to check for bruises and make him pull down his pants despite his objections.
  • Close the case as unsubstantiated.
  • Call her supervisor for instructions.

How did you do?

  • If you checked "call her supervisor" at every step, Sophie won't get sued—but she won't get promoted anytime soon.
  • If you had Sophie close the case as unsubstantiated after talking to the child, you completed a thorough investigation without violating any civil rights. Congratulations!
  • If you had Sophie close the case as "unable to determine" without inviting the family to your office, you failed to complete a thorough investigation.
  • If you had Sophie do anything else, she might wind up in court! This training manual is designed to keep that from happening.

Respecting Parents and Protecting Children

Federal law now requires all child protective services workers ("CPS workers") to be trained about the legal rights of parents. [1] The United States Senate explained why it added this section to the Keeping Children and Families Safe Act of 2003:

While the committee is strongly committed to the main mission of the child protective services system--to ensure that child safety and the best interests of the child are protected, the committee believes it is important for child protective services personnel to understand and respect fourth amendment limitations on their right to enter a home when investigating an allegation without a court order. [2]

One basic freedom is the right to privacy in the home. This particular right is enshrined in the Fourth Amendment to the U.S. Constitution, which is part of the Bill of Rights. This part of the Constitution says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated... [3]

Congress wanted to make sure that every CPS worker is "fully aware of the extent and limits of their legal authority and the legal rights of parents" each time they carry out a child abuse or neglect investigation. [4]

Reasonable Expectations of Privacy

Every American citizen has a right to a reasonable expectation of privacy in his or her home and family life. What counts as a "reasonable" expectation of privacy during a child abuse or neglect investigation? Some social workers have assumed that parents have no meaningful right to privacy under such circumstances, but the courts have disagreed.

Courts have ruled that the Fourth Amendment right to a reasonable expectation of privacy means that government workers must have one of three things before they can constitutionally search for evidence of wrongdoing in a private home. They must either have (1) consent, (2) exigent circumstances, or (3) a warrant or other valid court order authorizing entry.

  1. Consent — A parent who has a right to privacy in the home can waive that right and invite CPS workers in to conduct an investigation. The vast majority of CPS investigations take place with the consent of the parents. In order to be sure that an investigation is legal, CPS workers should ask the parents for permission to enter their home. Valid consent cannot be obtained through threats or lies.
  2. Exigent Circumstances — If the parents won't let the government in, but there's a real emergency, special rules apply. Nobody has a reasonable expectation of privacy in an emergency situation. You don't need a permission to rescue a child from a burning building! This is considered an "exigent circumstance" and is an exception to the normal requirement that government workers need consent or a court order to enter a private home. If the allegations aren't serious, aren't credible, or the children don't appear to be in immediate physical danger, then the circumstances probably aren't "exigent." Exigent circumstances are not just another way to carry out an investigation: for any circumstances that are truly "exigent" are extreme enough to halt the investigation until the safety of the child has been ensured. It is appropriate to take a child into temporary protective custody if that is truly necessary to ensure the child's safety, but temporary "protective" custody should not be used as temporary "investigative" custody. CPS workers take a grave legal risk whenever they take a child into custody solely for the purpose of questioning the child, since that constitutes a "seizure" for purposes of Fourth Amendment law, and any such seizure must be justified at the outset.
  3. Court Order — If the parents won't consent but there is no emergency, CPS workers need a court order to enter the home or seize a child. The Fourth Amendment authorizes search warrants, as long as there is "probable cause" to believe that a crime or other violation of the law has occurred or is occurring.
Why Respecting Rights Matters

There are many reasons CPS workers need to understand the rights of parents. First, of course, the Constitution requires it. That should be enough for any American citizen. But there are three good practical reasons why respecting parental rights improves the child protection system.

  1. Winning Cooperation through Respect — It's easy for CPS workers to wind up in court if parents won't let them in their home and refuse to allow them to interview the children. If a government employee forces his or her way into a home without consent or exigent circumstances, they can be sued for civil rights violations.

    If they don't force their way into the home, they need a court order to get in. Everyone is better off if CPS workers go to court to get the authority they need, rather than acting without constitutional authority and getting sued for it. People fear what they don't understand. Frightened parents often make things worse for their families out of ignorance. It takes some time to help parents understand how the system works and to help them understand their rights, but this small investment of time up front can save a great deal of time in litigation later. By demonstrating a real respect for their rights, CPS workers can improve the chances that they will cooperate.
  2. Building Effective Relationships — Even if the parents insist on going to court, the chances of helping the children are better if CPS workers demonstrate their respect for the parents throughout the process. If CPS treats the parents with dignity before, during, and after court proceedings, the family is much more likely to work constructively with CPS when and if the court authorizes intervention.
  3. Avoiding Civil Rights Liability — Last, but not least, the chance of losing a civil rights lawsuit drops to zero if CPS workers show that they understand and respect the rights of parents at every step of the investigation process.

Case Study: Calabretta v. Floyd


On Thursday morning, an anonymous caller alleged that she had once been "awakened by a child screaming 'No Daddy, no' at 1:30 a.m. that morning at the Calabretta home." She said she had also heard one of the children scream 'No, no, no' two days before. Social worker Jill Floyd did not go out to investigate until four days later. Mrs. Calabretta refused to let Jill in, but the children were standing at their mother's side and did not appear abused or neglected.

Ten days later, Jill returned to the Calabretta house with a policeman. Mrs. Calabretta did not open the door, and said she felt uncomfortable letting them in without her husband at home. The policeman said if she did not open the door, he would force his way in. Mrs. Calabretta then opened the door and let them in.

Was the entry into the home permissible?


A constitutional entry into a private home requires consent, exigent circumstances, or court order. There was no court order in this case, so the only options are consent or exigent circumstances.

The federal court that heard this case concluded that a reasonable jury could decide that Mrs. Calabretta did not consent to this entry, even though she opened the door.

The police and social workers argued that they were entitled to enter the home under "exigent circumstances" because they were investigating the possibility of harm to a child.


The Ninth Circuit Court of Appeals ruled against the social worker and police officer. "The facts in this case are noteworthy for the absence of emergency. The social worker and her department delayed entry into the home for fourteen days after the report, because they perceived no immediate danger of serious harm to the children." Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir. 1999) [emphasis supplied].

Case Study: Good v. Dauphin


An anonymous caller claimed that seven-year-old Jochebed Good had bruises on her body and that Jochebed said some of the bruises were caused by a fight with her mother. She didn't go to school the next day, so at 10 p.m. that night, Mrs. Good was startled by loud pounding at her door. There she saw a uniformed police officer and a man from Social Services who said, "You must let us see your daughter."

Mrs. Good asked to see a warrant or a court order, but the social worker said they did not need a warrant and that they had a report that her daughter had been abused and she must let them enter. Mrs. Good wanted to telephone a lawyer, but it was too late at night. The police officer called the station on her walkie-talkie and informed the duty officer that "they were going in" to the home. At this point, Mrs. Good allowed them in, but said she did so only because she understood that she was being compelled to do so.

Was the entry into the home permissible?


A constitutional entry into a private home requires consent, exigent circumstances, or court order. The police and social worker said they did not need a warrant, so the only options are consent or exigent circumstances.

The federal court that heard this case concluded that a reasonable jury could decide that Mrs. Good did not consent to this entry, even though she opened the door.

The police and social workers argued that they were entitled to enter the home under "exigent circumstances" because they were investigating the possibility of harm to a child.


The Third Circuit Court of Appeals refused to treat this case as an emergency situation. The anonymous report merely said that Jochebed once "had bruises on her body" of unspecified severity. Nothing the officials saw or heard nothing during their conversation with Ms. Good at the door suggested in any way that Jochebed was being mistreated.

The court said, "The [exigent circumstances] exception must not be permitted to swallow the rule: in the absence of a showing of true necessity—that is, an imminent and substantial threat to life, health, or property—the constitutionally guaranteed right to privacy must prevail." Good v. Dauphin County Social Services for Children and Youth, 891 F.2d 1087, 1094 (3rd Cir. 1989) [emphasis supplied].

Credible Evidence

Federal law requires CPS to investigate every allegation that meets certain specific criteria, but not all allegations are credible. In fact, as any experienced CPS worker knows all too well, some allegations are malicious. The most malicious reports tend to allege horrific abuse which would clearly constitute "exigent circumstances" if true. CPS workers should be careful to look for corroborating evidence before taking steps that can frighten children and violate parents' constitutional rights, possibly leading to civil rights litigation.

All three cases examined above involved anonymous reports. Courts treat anonymous tips as significantly less credible than reports from identifiable individuals. Judges will not issue a search warrant for an anonymous tip unless there is significant "corroborating" evidence to support it. When authorities force a warrantless entry solely on the basis of an uncorroborated anonymous tip, however, they take a great risk. While the tip might be accurate, it might just as well be false. Overzealous officials can terrify children, traumatize parents, and wind up being sued for violating civil rights. The risk of error and the resulting harm to family and children are too great to ever justify entering a home on the basis of an uncorroborated anonymous tip.

In the Boggess case on the previous page, the Wisconsin Supreme Court looked hard at the credibility of the anonymous call. Before the authorities entered the Boggess home, they had no way to be certain that the report was accurate. Here's what they found when they entered, however:

Once inside the home, Hammel went over to L.S. and saw that a pronounced part of his lip was missing and that the wound was inflamed and needed to be cleaned. Without directing the question to anyone in particular, Hammel asked, "What happened? How did he get hurt?" Calvin Boggess responded that he had fallen on L.S. and had hurt him. Later, Boggess stated, without prompting, that he had spanked both children several times.

With Janice Boggess present, Hammel examined L.S. more thoroughly in a rear bedroom. She observed that he had bruises on both sides of his legs from the ankles to the thighs, and that his arms were black and blue from the elbows to the wrists and halfway up his back. She also noticed that L.S. had hair missing from the top of his head, and that he walked with a "waddled limp." Hammel then examined K.S. and observed bruises on her body.

Calvin Boggess was tried for felony child abuse. He tried to exclude all this evidence from his criminal case because it was obtained without a warrant. If the court had excluded the evidence—and it was a close question—this criminal might have gone free.

CPS workers face twin risks every time they enter a home without a warrant. If the parents are innocent, children get frightened, parents get angry, and social workers get sued. If the parents are guilty, however, social workers take the risk of letting a criminal child abuser off on a "technicality." The right answer is to get a warrant or court order before coercing entry into a home on anything less urgent than an emergency.

Case Study: Wallis v. Spencer


Bill and Becky Wallis were happily married with two children, but Becky's sister Rachel had mental problems. The Wallises cut off all contact with Rachel after she falsely accused Bill of sexually abusing his little girl. The next year, Rachel was hospitalized for suicidal paranoia and multiple personality disorder. In the hospital, she told her therapist about a recently recovered "memory."

She said that she and her father were in the woods twenty years earlier, where he wore a cultic robe and hypnotically chanted, "On the third full moon after two blue moons a child will be killed." One of Rachel's "alter egos" then told the therapist that the "child" in the twenty-year-old incantation was her two-year-old nephew Jessie, and that her brother-in-law Bill intended to sacrifice Jessie to Satan at the "Fall Equinox" ritual in a few days.

Based on this information, social workers told police officers to "pick up" the children. The police seized both children without consent or court order.

Was the seizure of the children permissible?


A constitutional seizure of a child requires consent, exigent circumstances, or court order. The police argued that there were "exigent circumstances" because they were trying to prevent a human sacrifice.


The Ninth Circuit ruled in favor of the parents. "Officials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury." Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000) [emphasis supplied]. The court ruled that a mental patient's delusions were not a credible basis for a "reasonable" seizure.

Case Study: H.R. v. State Dept. of Human Resources


Alabama CPS workers received an anonymous report of child abuse or neglect regarding Helene Richards's four children. A second report came in the next day. The evidence she offered the court consisted of the following anonymous allegations:

  • two children being kept shut in a room;
  • a child being sick and not receiving sufficient food;
  • a child choking a cat;
  • a child trying to "hang" himself;
  • the children being kept in the back of a van; and
  • infestations of roaches in the physical home of the children.

CPS worker Donna Jones was assigned the case four weeks after the anonymous reports came in. She did not go out to the home for another seven days. When she got there, the mother kept her outside and would not let her interview the children privately. Ms. Jones filed a petition to gain access, based on a statute that authorizes Alabama courts to issue such an order "upon cause shown."


A constitutional entry requires consent, exigent circumstances, or a court order. Judges will not issue a search warrant without "probable cause," which means credible evidence that a crime or other violation of the law has been committed or is being committed. An uncorroborated anonymous tip falls short of the "probable cause" standard. CPS argued that Alabama law only required "cause shown," not "probable cause."


The Alabama Court of Appeals ruled in favor of the mother. The court wrote, '[T]he power of the courts to permit invasions of the privacy protected by our federal and state constitutions, is not to be exercised except upon a showing of reasonable or probable cause to believe that a crime is being or is about to be committed or a valid regulation is being or is about to be violated." H.R. v. State Dept. of Human Resources, 612 So.2d 477, 479 (Ala. Civ. App., 1992) [emphasis supplied]. The court refused to rely on uncorroborated hearsay to invade the privacy of a home.

Interviewing Children

Most states expressly authorize CPS workers to interview children without a parent's permission. This means CPS workers don't need to get the parent's consent to talk to a child at a public school or other location where the child is temporarily in the custody of some other adult who consents to the interview. It does not empower government workers to forcibly separate the child from his or her parent for the purpose of an interview. That is a "seizure," for constitutional purposes, which requires consent, exigent circumstances, or a court order.

Court after court has determined that the test of whether a government action is a "seizure" or not is whether the subject of that action feels free to leave. If a child feels like he can leave the interview at any time, he has not been "seized." If, on the other hand, the child does not feel free to go, the Fourth Amendment applies.

Here is how to analyze an interview with a child:

  • If a mature child indicates a willingness to talk to a government worker privately, the child's consent may satisfy the Fourth Amendment. Younger children, however, are too impressionable to give meaningful consent. If a child is not old enough to babysit, the child is probably not old enough to waive his or her constitutional rights.
  • If the parent or other caretaker allows a government worker to interview the child, there may be a "seizure," but it is constitutional because consent was given.
  • If there is evidence that the child is in immediate danger, a government worker may seize the child because of exigent circumstances.
  • In all other cases, government workers need authorization from a court before they can separate a child from his or her parents for the purpose of an investigation.

Many states have statutes that allow CPS workers to interview a child without the parent's permission. These statutes have been upheld as constitutional for interviews at public schools, but each public school student is in the care of a public school employee who is required by law to consent to these investigations. Cases involving children at private schools have had very different outcomes.

Medical Tests

The statutes that allow CPS workers to interview a child without parental consent do not automatically empower CPS workers to order x-rays or other medical tests. In the absence of a statute to the contrary, these are medical decisions that fall within the scope of traditional parental rights. [5] A child or a babysitter can choose whether or not to let the child talk to a stranger, but neither a child nor a babysitter can consent to invasive medical procedures. Only a parent, a legislature, or a court can authorize such actions in the absence of a medical emergency.

Case Study: Doe v. Heck


CPS workers received a letter alleging that a ten year old girl had been bruised by a spanking she received at the Greendale Baptist Church and Academy. CPS worker Carla Heck went to the school to investigate. Despite the objections of the principal, and without parental notice or consent, Ms. Heck removed eleven-year-old John Doe Jr. from his fourth-grade classroom and interviewed him about corporal punishment. Heck relied on Wisconsin statute § 48.981, which said:

The agency may contact, observe or interview the child at any location without permission from the child's parent, guardian or legal custodian if necessary to determine if the child is in need of protection or services, except that the person making the investigation may enter a child's dwelling only with permission from the child's parent, guardian or legal custodian or after obtaining a court order to do so.

The child, parents, and private school sued Heck and others for civil rights violations.


The CPS worker relied on a Wisconsin statute that expressly authorized her to talk to children without permission from the parents. The United States Constitution, however, prohibits unreasonable searches and seizures. May a CPS worker rely on a statute that authorizes search and/or seizure on private property without a warrant, consent, or exigent circumstances?


The Seventh Circuit Court of Appeals struck down the statute but did not hold the CPS worker personally liable for relying on it. "[T]o the extent § 48.981(3)(c)1 authorizes government officials to conduct an investigation of child abuse on private property without a warrant or probable cause, consent, or exigent circumstances, the statute is unconstitutional." Doe v. Heck, 327 F.3d 492, 515 -516 (7th Cir. 2003) [emphasis supplied].

Frequently Asked Questions

Q:   My investigation protocol requires me to visit the home and interview each child privately. The parents refuse to let me in and won't let me talk with the children. What should I do?
A:   Make sure you have the latest version of the protocol. Many states used to insist on private interviews with all children in all cases without any concern for the Constitution. If your investigation protocol still requires this, please report it to an attorney for your agency.
Q:   I thought police and CPS workers operated under different rules. What has changed?
A:   Police and CPS workers are both government workers, and are therefore both ultimately governed by the Constitution. The "different rules" that apply to police and CPS workers are the result of different court systems. Police routinely testify in criminal courts, which exclude all evidence that has been unconstitutionally obtained. As a result, police are very careful to make sure they comply with the Constitution at all times. CPS workers usually testify in juvenile courts, which allow the use of evidence that has been unconstitutionally obtained. Because the juvenile courts allow this evidence, CPS workers may not know they have violated the Constitution until they are personally sued for civil rights violations. Congress now requires all CPS workers to be trained about parents' rights.
Q:   Isn't there a "special needs" exception to the Fourth Amendment that allows CPS workers to protect children?
A:   The United States Supreme Court has identified certain "special needs" situations where traditional Fourth Amendment restrictions do not apply, but the "specials needs" exemption does not apply when the government is investigating allegations of unlawful activity. As the Tenth Circuit recently said, "The Fourth Amendment protects the right of the people to be 'secure in their persons' from government intrusion, whether the threat to privacy arises from a policeman or a Head Start administrator. There is no 'social worker' exception to the Fourth Amendment." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003).
Q:   Why can Welfare workers enter a home without a warrant but CPS workers cannot?
A:   The United States Supreme Court has ruled that Welfare workers do not need a warrant to enter a private home. Wyman v. James, 400 U.S. 309 (1971). Subsequent cases have made it clear that this is because the penalty for refusing to allow a Welfare worker into the home is a denial of future Welfare benefits, not removal of a child or criminal prosecution.
Q:   How can I be sure the circumstances are really "exigent"?
A:   This is an uncertain area of law, which means CPS workers should generally try to get a court order if there is time to do so. The Second Circuit Court of Appeals has decided that CPS workers in Connecticut, New York, and Vermont must get a court order if there is time to do so. Tenenbaum v. Williams, 193 F.3d 581 (2nd Cir. 1999).

The Tenth Circuit, which covers Colorado, Kansas, Oklahoma, Nevada, New Mexico, and Utah, agrees. "Simply put, unless the child is in imminent danger, there is no reason that it is impracticable to obtain a warrant before social workers remove a child from the home." Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1242 (10th Cir. 2003).

The rule is different in Alabama, Florida, and Georgia, because the Eleventh Circuit Court of Appeal has ruled that CPS workers do not need a court order to remove a child if the child really is in immediate danger. Doe v. Kearney, 329 F.3d 1286 (11th Cir. 2003).

That rule can be risky, however, as the Ninth Circuit shows. A CPS worker who removed a child from her home without a warrant could be sued for doing so without truly exigent circumstances. Mabe v. San Bernardino County, Dept. of Public Social Services, 237 F.3d 1101 (9th Cir. 2001). Given this disagreement between the circuits, it is just a matter of time before this question winds up before the United States Supreme Court.
Q:   Doesn't it make a difference that the CPS worker is trying to protect children, not punish parents?
A:   The Fourth Amendment guarantees the privacy of the home, regardless of the government's motives. The Tenth Circuit Court of Appeals put it well, saying, "[T]he defendant's motive to protect the child ... does not vitiate plaintiffs' [constitutional] rights. That motive, however, may enter the calculus of the damages, if any, that his actions justify." Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1255 (10th Cir. 2003).

Conclusion: The Constitution Is Good For Children

CPS workers who are unfamiliar with constitutional law may wonder whether all this emphasis on parental rights is good for children. There are a number of reasons why children are better off when CPS workers demonstrate their respect for family freedoms.

  • Respect puts criminal child abusers in jail. It's one thing to pull a child out of a dangerous situation, but far too many criminal child abusers go on to hurt other children. Remember the Boggess case! An abuser may lose his own children and still move into some other home where children are present. Constitutionally admissible evidence puts abusers in jail. That is good for children.
  • Respect builds trust. Treating parents with dignity makes it easier for them to accept help if it is needed. If CPS workers tell parents, "You must let me in or I will take your children away," they may submit but they will never trust CPS again. If CPS workers say, "You have a real choice in this matter," the parents are much more likely to trust CPS in the future, which means they are more likely to get the help they need to succeed as parents. That is good for children.
  • Respect protects innocent children and families. Too many people have learned how to use anonymous allegations of child abuse as a way to attack innocent families. Some of the most awful allegations of abuse are also the most false—and these false allegations hurt innocent children and families. Weeding out false and malicious allegations is good for children.
  • Respect protects CPS workers. CPS workers who do not know the law tend to break it. There is no excuse for reckless disregard of federally protected civil rights: a zeal for protecting children without proper respect for family freedoms can subject CPS to civil rights suits and substantial damages.

The best place for a child is in his or her own home, in the care of fit and loving parents. Most parents believe they are both fit and loving, even if their behavior puts their children at risk. CPS workers can do a better job of protecting children if they follow the Constitution in each investigation of abuse or neglect. Whether the investigation winds up clearing the family of unfounded allegations or helping parents get the services they need, the CPS worker's attitude of respect makes a real difference.

The Constitution doesn't keep CPS workers from doing their job. It makes that job possible. Our Constitution is designed to enable the government to punish the guilty and protect the innocent. Nobody deserves punishment more than criminal child abusers, and nobody deserves protection more than innocent children.

Pre-Test Answers

Constitutional Principles

  • Principle 1: The Fourth Amendment protects all people from unreasonable government searches and seizures; regardless of which branch of government is acting.
  • Principle 2: Parents have a right to assert the privacy of their homes, although the courts may override this with a warrant or other court order.
  • Principle 3: No court may issue a warrant or other order authorizing entry into a private home without probable cause to believe that the law has been violated.
  • Principle 4: The law enables us to protect the innocent and punish the guilty. When CPS workers fail to follow the law, criminals evade conviction, innocent families feel hurt and angry, and CPS workers lose the trust they need to help vulnerable children.


  1. 42 USC § 5106a(b)(2)(A)(xix).
  2. Committee report. S. Rep. No. 108-12, at 16 (2003).
  3. U.S. Const. Amend. IV.
  4. Committee report. H. Rpt. 108-26, p 27.
  5. "[The] Constitution assures parents that, in the absence of parental consent, [physical examinations] of their child may not be undertaken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents, and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances." Doe v. Lebbos, 348 F.3d 820, 828 -829 (9th Cir. 2003).