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Child abuse investigation held unconstitutional

By: dmc-admin//April 23, 2003//

Child abuse investigation held unconstitutional

By: dmc-admin//April 23, 2003//

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Section 48.981(3)(c)(1) is unconstitutional to the extent it authorizes government officials to conduct an investigation of child abuse on private property without a warrant, probable cause, consent, or exigent circumstances, the Seventh Circuit held on April 16.

Nevertheless, the court found that officials who conducted such an unlawful investigation are entitled to qualified immunity, because reliance on the statute was reasonable at the time.

Corporal Punishment

Greendale Baptist Church and Academy is a private school in Milwaukee County which employs corporal punishment to discipline its students.

The method of punishment came to the attention of the Bureau of Milwau-kee Child Welfare in 1998 when a parent whose daughter had attended the school, and been disciplined, complained. The daughter identified another student who had also received corporal punishment as “John.”

In response, two caseworkers, Carla Heck and John Wichman, went to the school to attempt to interview the boy. They did not call the school ahead of time, because the principal, Troy Bond, was the alleged maltreater.

The caseworkers did not obtain a warrant, but brought along a copy of sec. 48.981(3)(c)1, which provides, “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.”

School officials refused to permit the interview without a court order, but ultimately relented based on the statute. During the interview, the boy stated that he had been spanked by Bond approximately four months earlier, and that he and his sister had been spanked at home. The boy also identified six other students who had been spanked at the school.

Heck attempted to interview Bond and the boy’s mother, but both refused. The caseworkers also made threats to the mother that they would remove the children from the home if an interview was not arranged.

The caseworkers further attempted to interview the other six students identified by the boy as having been spanked, but after a standoff with school officials, they left without talking to them. Ultimately, the case file was closed without having taken any action.

The school, the boy and his parents, and seven other parents, filed suit against the caseworkers pursuant to 42 U.S.C. 1983, alleging an illegal search of the school, an illegal seizure of the boy, and a violation of their rights to familial relations under the Fourteenth Amendment.

District Court Judge J.P. Stadtmueller concluded that the caseworkers were entitled to qualified immunity, and granted them summary judgment. The plaintiffs appealed, and in a decision by Judge Daniel A. Manion, the Seventh Circuit held the caseworkers did violate the constitutional rights of the plaintiffs, but agreed that the caseworkers were entitled to qualified immunity.

Privacy

The court concluded that the boy and school had a reasonable expectation of privacy that was invaded by the caseworkers, stating, “Private schools, by their very nature, are controlled environments that, out of sheer necessity … are not open to the general public. … Thus, by their very operation, private schools exhibit a subjective expectation of privacy in their premises.”

The court added, “by enrolling their son in Greendale, and entrusting him to the care of the school’s officials in loco parentis, … the Does manifested a subjective expectation of privacy in the premises of the school.

The court also held those subjective expectations to be reasonable, noting that the in loco parentis doctrine remains in full force in private schools, and stating, “there is no basis for concluding that when a minor child is entrusted to the care of a private school in loco parentis his reasonable expectation of privacy, vis-a-vis government officials, differs in any material respect from that which he would otherwise expect to receive at home. In both cases, the child is in an enclosed structure that is not open to the general public, and is cared for and looked after by individuals with parental authority. Furthermore, it is entirely reasonable for parents who place their children in private schools, along with the teachers and administrators of those schools, to expect that the parents’ express delegation of parental authority to school officials will be both acknowledged and respected by government actors.”

Reasonableness

Having found that the plaintiffs had reasonable expectations of privacy, the court turned to whether any exceptions to t
he warrant requirement were present, and concluded they were not.

The court distinguished the cases of Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986), and Landstrom v. Illinois Dept. of Children & Family Services, 892 F.2d 670 (7th Cir. 1990), both of which involved challenges to the constitutionality of child welfare caseworkers forcing children suspected of abuse to disrobe for physical examination on school grounds.

The court noted, “The key difference between the searches at issue in Darryl H. and Landstrom, and the search and seizure in this case, is that the searches in Darryl H. and Landstrom took place on public school grounds with the consent of public school officials.”

The court acknowledged that private schools are subject to reasonable regulation by the state, and that states have a compelling interest in protecting children from child abuse. Nevertheless, in the absence of a warrant, consent, probable cause, or exigent circumstances, such as articulable evidence that the child has been abused or is in imminent danger of abuse, the court held the search of the school and seizure of the boy violated the Fourth Amendment.

Qualified Immunity

Nevertheless, the court held that the defendants were entitled to qualified immunity, because a reasonable caseworker would not have known that the statute was unconstitutional.

What the court held

Case: Doe v. Heck, No. 01-3648

Issue: Is sec. 48.981(3)(c)1 unconstitutional to the extent it authorizes social workers to interview children on private property without their parents’ consent?

If so, are social workers who committed an unconstitutional investigation entitled to qualified immunity?

Holding: Yes. Such an investigation violates the Fourth Amendment rights of the child, and the rights to familial relations of the parents and the child.

Yes. The caseworkers should not be held liable for acting pursuant to a presumptively valid statute.

Counsel: Sheila M. Smith, Michael D. Dean, for plaintiffs; John J. Glinski, for defendants.

The court reasoned, “Although we conclude that sec. 48.981(3)(c)1 is unconstitutional as applied to Greendale and John Doe Jr., we are not prepared to hold that this statutory subsection is so patently unconstitutional as to deny the defendants qualified immunity from their claims. First, prior to this litigation the constitutionality of sec. 48.981(3)(c)1 had never been challenged. Second, although certainly not dispositive of the issue, we find it relevant that there is, to our knowledge, no reported decision (state or federal) addressing the precise issues before us. Finally, we think it would be especially draconian to expect a reasonable caseworker to conclude that sec. 48.981 (3)(c)1 was ‘grossly and flagrantly unconstitutional’ when, at the time the search and seizure took place, the Wisconsin Attorney General had issued a formal opinion on the legality of the statute.”

The court cited with approval a Tenth Circuit case holding, “an officer who conducts a warrantless search on the same day he was advised by fully informed, high-ranking government attorneys that a particular statute, which had not yet been tested in any court, lawfully authorized that particular search … should not be expected to have known that the search was unconstitutional.” V-1 Oil Co. v. State of Wyoming Dept. of Envtl. Quality, 902 F.2d 1482, 1489 (10th Cir. 1990).

Although the court concluded that, until now, the plaintiffs’ constitutional rights were not clearly established, the court put caseworkers on notice, stating, “At this juncture, … we now make it clear that it is patently unconstitutional for governmental officials to search the premises of a private or parochial school and/or seize a child attending that school without a warrant or court order, probable cause, consent, or exigent circumstances.”

Familial Relations

The court also held that the manner in which the investigation was conducted violated the plaintiffs’ constitutional right to familial relations under the Fourteenth Amendment’s Due Process Clause.

The court noted that the Supreme Court has long recognized that parents have a liberty interest in familial relations, which includes the right to “establish a home and bring up children” and “to control the education of their own,” quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

The court agreed that the caseworkers unreasonably interfered with their right to familial relations by: (1) conducting a custodial interview of John Doe Jr. without notifying or obtaining the consent of his parents; (2) targeting the plaintiff parents as child abusers; and (3) causing the plaintiff parents to fear that their children would be removed from their custody.

The court concluded that, by taking these actions, despite the absence of any evidence any children had ever been injured as a result of a spanking by Bond, or that the parents had ever abused the children, the caseworkers treated corporal punishment as child abuse, per se, a view rejected by the U.S. Supreme Court.

The court stated, “no matter one’s view of corporal punishment, the plaintiff parents’ liberty interest in directing the upbringing and education of their children includes the right to discipline them by using reasonable, nonexcessive corporal punishment, and to delegate that parental authority to private school officials.”

Because the caseworkers had no reasonable suspicion that the parents were abusing their children, the court found they violated the plaintiffs’ right to familial relations by conducting the custodial interview of the boy without obtaining the consent of his parents and by targeting the parents as child abusers.

The court further found that the threats to remove the children from the custody of their parents violated their right to familial relations, calling “the right of the family to remain together without the coercive interference of the awesome power of the state” the most essential and basic aspect of familial privacy.

Links

Seventh Circuit Court of Appeals

Related Article

Case Analysis

The court stated, “Although there are undoubtedly cases where it is difficult to weigh a state’s interest in investigating an allegation of child abuse against a parent or child’s right to familial relations, this is not one of them. Here, the defendants had no basis to suspect the plaintiff parents of child abuse, and thus had no reason to interfere with their familial relationships in the manner described herein.”

Again, however, the court held that the caseworkers were entitled to qualified immunity. The court acknowledged a few cases in other jurisdictions holding that threatening to remove a child from his parents’ custody violates the right to familial relations, but found that the law in the Seventh Circuit did not place a reasonable caseworker on notice that such conduct was clearly unconstitutional.

Due Process

The court further found that the caseworkers violated the plaintiffs’ procedural due process rights, but once more concluded they were entitled to qualified immunity.

Accordingly, after summarily rejecting a claim by the plaintiffs that the entire statute is facially unconstitutional, and not merely as applied to them, the court affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.

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