CHILD PROTECTIVE SERVICES

AND THE JUVENILE JUSTICE SYSTEM

A guide to protect the constitutional rights of both parents and children.

“Know your rights before you talk to anyone from CPS/DCF or let them in your house, they won’t tell
you your rights. CPS/DCF can’t do anything without your consent, demand a warrant and speak with
an attorney first before speaking with anyone from CPS/DCF, it could cost you your children.”

The United States Court of Appeals for the Ninth Circuit said it best, “The government’s interest in the welfare of
children embraces not only protecting children from physical abuse, but also protecting children’s interest in the
privacy and dignity of their homes and in the lawfully exercised authority of their parents.”
Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999).

“Permanent termination of parental rights has been described as the family law equivalent of the death penalty in a
criminal case.” Therefore, parents “must be afforded every procedural and substantive protection the law allows.”
Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54.

“There is no system ever devised by mankind that is guaranteed to rip husband and wife or father, mother and child
apart so bitterly than our present Family Court System.”

Judge Brian Lindsay

Retired Supreme Court Judge
New York, New York

“There is something bad happening to our children in family courts today that is causing them more harm than
drugs, more harm than crime and even more harm than child molestation.”

Judge Watson L. White

Superior Court Judge
Cobb County, Georgia

Written by:

Thomas M. Dutkiewicz, President

Connecticut DCF Watch
P.O. Box 3005
Bristol, CT 06011-3005
860-833-4127
[email protected]
www.connecticutdcfwatch.com
WE AT CONNECTICUT DCF WATCH ARE NOT ATTORNEYS AND ARE UNABLE TO
OFFER ANY LEGAL ADVICE. ANY INFORMATION CONTAINED IN THIS
DOCUMENT IS FOR EDUCATIONAL PURPOSES ONLY. IF YOU CHOOSE TO USE
ANY OF THIS INFORMATION, YOU DO SO BY YOUR OWN CHOICE, CONVICTION
AND RISK. WE ONLY OFFER UP AN OPINION FROM OUR POINT OF VIEW. WE
ARE NOT RESPONSIBLE FOR ANY DECISIONS YOU CHOOSE TO MAKE OR FAIL
TO MAKE. BEFORE MAKING ANY DECISIONS, SEEK LEGAL ADVISE FROM AN
ATTORNEY IN THE AREA OF LAW YOU WISH TO PURSUE.

IT’S UNCONSTITUTIONAL FOR CPS TO CONDUCT AN INVESTIGATION AND INTERVIEW A

CHILD ON PRIVATE PROPERTY WITHOUT EXIGENT CIRCUMSTANCES OR PROBABLE
CAUSE.

The decision in the case of Doe et al, v. Heck et al (No. 01-3648, 2003 US App. Lexis 7144) will affect
the manner in which law enforcement and Child Protective Services (“CPS”) investigations of alleged child
abuse or neglect are conducted. The decision of the 7 th Circuit Court of Appeals found that this practice, i.e. the
“no prior consent” interview of a child, will ordinarily constitute a “clear violation” of the constitutional rights
of parents under the 4th and 14th Amendments to the U.S. Constitution. According to the Court, the investigative
interview of a child constitutes a “search and seizure” and, when conducted on private property without
“consent, a warrant, probable cause, or exigent circumstances,” such an interview is an unreasonable search and
seizure in violation of the rights of the parent, child, and, possibly the owner of the private property.

The mere possibility or risk of danger does not constitute an emergency or exigent circumstance that
would justify a forced warrantless entry and a warrantless seizure of a child. Hurlman v. Rice, (2nd Cir. 1991)

A due-process violation occurs when a state-required breakup of a natural family is founded solely on
a “best interests” analysis that is not supported by the requisite proof of parental unfitness. Quilloin v. Walcott,
434 U.S. 246, 255, (1978)

PREFACE

This is only a guide to your constitutional protections in the context of an investigation of alleged child
abuse and neglect by Child Protective Services (“CPS”). Every state has variances of CPS in one form or another.
Some are called DCF, DHS, DSS, DCYS, DCFS, HRS, CYS and FIA, collectively known as “CPS” for the purposes
of this handbook. The material in this handbook should be supplemented by your own careful study of the 4th and
14th Amendment and other Constitutional protections that are guaranteed even in the context dealing with CPS.

The intent of this handbook is to inform parents, caregivers and their attorneys that they can stand up
against CPS and Juvenile Judges when they infringe upon the rights of both parents and children. As you read this
handbook, you will be amazed what your rights are and how CPS conspires with the Assistant Attorney General
(“AAG”) who then in turn has the Judge issue warrant/orders that are unlawful and unconstitutional under the law.
Contrary what any CPS officials, the AAG, Juvenile Judge or any social workers may say, they are all subject to and
must yield to the 4th and 14th Amendment just like police officers according to the Circuit and District Courts of the
United States and the Supreme Court. CPS workers can be sued for violations of your 4 th and 14th Amendments,
they lose their “immunity” by those “Deprivation of Rights Under the Color of Law” and must be sued in their
“Official and Individual” capacity in order to succeed in a §§ 1983 and 1985 civil rights lawsuit. If the police
assisted CPS in that deprivation of rights, they also lose immunity and can be sued for assisting CPS in the violation
of both yours and your child’s rights when they illegally abduct your children or enter your home without probable
cause or exigent circumstances which are required under the warrant clause of the 14th Amendment.

ABOUT THE AUTHORS

The authors of this handbook are not attorneys and do not pretend to be attorneys. The authors were
victims of a false report and were falsely accused by DCF in Connecticut without conducting a proper investigation.
The authors fought back for 8-months against this corrupt organization whose order of the day was to deny them
their 4th, 6th and 14th Amendment rights and to fabricate false charges without evidence.

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 The author’s goals are that not another child is illegally abducted from their family and that CPS and
juvenile judges start using common sense before rushing to judgment and to conduct their investigations the same as
do the police in order to be constitutionally correct and legal and that CPS MUST by law comply with the “Warrant
Clause” as required by the Constitution and the Federal Courts whereas they are “governmental officials” and are
subject to the Constitution as are the police. There are NO EXCEPTIONS to the Constitution for CPS.

INTRODUCTION

You as a parent or care giver MUST know your rights and be totally informed what you have a legal right
to have and to express, whether you are a parent caught up in a very oppressive, abusive and many times unlawful
actions of CPS or if you have never been investigated by CPS. Many individuals come to the wrong conclusion that
the parents must have been abusive or neglectful in order for CPS to investigate, this is just a myth. The fact of the
matter is that over 80% of the calls that are called in to CPS are false and bogus.

Another myth is that CPS can conduct an investigation in your home without your consent and speak to
your child without your consent. CPS employees will lie to you and tell you they do not need your consent. The
fact of the matter is they absolutely need your consent to come in your home and speak with your children. If there
is no “exigent circumstances” (imminent danger) to your children with “probable cause” (credible witness) to
support a warrant, CPS anywhere in the United States cannot lawfully enter your home and speak with you and your
children. In fact it is illegal and you can sue the social worker and the police who assist them and they both lose
immunity from being sued.

If CPS lies to the AAG and the Judge in order to get a warrant/order and you can prove it, that also is a 4 th
th
and 14 Amendment rights violation which is a civil rights violation under § 1983 and conspiracy against rights
covered under § 1985. If a CPS official knocks on your door and has no legal warrant and you refuse them entry
and the worker then threatens you with calling the police, this is also illegal and unlawful and both lose immunity.
This is coercion, threatening and intimidation tactics even if the police only got the door open so CPS official can
gain entry. Both can be sued.

Remember, CPS officials will not tell you your rights; in fact they are going to do everything in their power
including lying to you, threatening you with police presence telling you that you have to let them in. The police may
even threaten you to let CPS in because you are obstructing an investigation. Many police officers do not realize
that CPS MUST comply with the warrant clause of the 14th Amendment or be sued for violating it.

CPS does not have a legal right to conduct an investigation of alleged child abuse or neglect in a private
home without your consent. In fact removing a child from your home without your consent even for several hours is
a “seizure” under federal law. Speaking to your children without your consent is also a “seizure” under the law. If
CPS cannot support a warrant and show that the child is in immanent danger along with probable cause, CPS cannot
enter your home and speak with your children. Remember, anonymous calls into CPS are NEVER probable cause
under the Warrant Clause. And even if they got a name and number from the reporter on the end of the phone, that
also does not support probable cause under the law. CPS must by law, investigate the caller to determine to see if he
or she is the person who they say they are and that what they said is credible. The call alone, standing by itself, is
insufficient to support probable cause under the law. Many bogus calls are made by disgruntle neighbors, ex
spouses, someone wanting to get revenge so CPS needs to show due diligence as do police to get sworn statements.
All CPS agencies all across the country have a much exaggerated view of their power. And what you think is abuse
or neglect is or is not, CPS has a totally different definition. That definition is what ever they want it to be. DCF
will lie to you, mark my word, they will tell you they can do anything they want and they have total immunity. Tell
that to the half dozen social workers sitting in jail in California, they lied to the judge. We will discuss this in further
detail on what CPS and the police can do and not do.

SECTION 1

NEVER EVER TRUST ANYONE FROM CPS/DCF

You have to under stand that CPS will not give you or your spouse a Miranda warning nor do they have to.
If CPS shows up at your door and tells you they need to speak with you and your children, you have the legal right
to deny them entry under the 4th and 14th Amendment. But before they leave, you should bring your children to the
door but never open it, instead show them the children are not in imminent danger and that they are fine. If you do

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not at least show them your children, they could come back with an unlawful and unconstitutional warrant even
though your children are not in imminent danger.

Every thing CPS sees and hears is written down and eventually given to the AAG for your possible
prosecution. You also need to know if the focus of the investigation is on your spouse or significant other you may
think you may not be charged with anything and that you are the non-offending spouse, wrong. If your spouse gets
charged with anything, you are probably going to get charged with allowing it to happen. So if a spouse gets the
bright idea and lies and makes things up, he/she is also confessing that he allowed what ever he/she alleges.

What you say will more then likely not be written down the way you said it or meant it. For example, the
CPS worker asks the wife, “Does your husband yell at the children?” your response could be once in a while. Then
they ask, “Does he yell at you and argue with you. Your response could be “yes we argue sometimes and he may
raise his voice.” The next question is, “Does your husband drink alcohol?” Your response could be “yes he has
several drinks a week.” Now let’s translate those benign responses and see what CPS may right in her paperwork.
“When the father drinks, he yells at children and wife and wife is a victim of domestic violence.” This is a far cry
on what really took place in that conversation. CPS routinely will take what you say out of context and actually lie
in their reports in order to have a successful prosecution of their case. They have an end game in mine and they will
misrepresent the facts and circumstances surrounding what may or may not have happened.

Something similar happened to the authors where DCF employees lied in front of the judge and said the
husband was a victim of domestic violence even though all 5 members of the family stated clearly that there was
never any domestic violence. The husband would like to know when this occurred because he wasn’t there. They
will also misrepresent the condition of your home. Even if you were sick or injured and hadn’t had a chance to
straighten anything out. CPS will not put anything exculpatory in the record so any one that reads her notes will
read that the house was a mess and cluttered. Never give them a chance to falsify the record or twist your words.
The best advice we can offer is before letting any CPS official in if you choose to do so is to tell them you want your
attorney there when they come and schedule a time for that.

Remember, CPS could care less about your rights or your children’s constitutional rights. Removing a
child from a safe home is more harmful then most alleged allegation as stated by many judges. They will lie and say
they have to come in or you have to comply. Remember CPS has no statutory authority to enter your home when no
crime has been committed. They are trained to lie to you in order to get in any way they can and this comes from
interviewing employees at DCF. Do not sign anything or agree to anything. Even if you’re not guilty and you agree
to go through some horse and pony show. That is used against you as if you admitted to it. The case plan or what
ever they call it in your state is essentially a plea of guilty to the charges and you’re admitting to the abuse and/or
neglect allegations and to the contents of the record. You are assisting them in their case against you and in your
own prosecution if you sign their agreements, case plan or menu. Demand a trial at the very first hearing and never
stipulate to anything and force them to prove your guilty, don’t willingly admit to it by signing a case plan. Due to
ignorance and/or incompetence, your attorney will tell you to sign their agreement so you can get your children back
sooner, do not believe it. This will only speed up the process of terminating your parental rights.

SECTION 2

ARE ALL CPS WORKERS IN THE UNITED STATES

SUBJECT TO THE 4TH AND 14TH AMENDMENT?

Yes they are, the 4th Amendment is applicable to DCF investigators in the context of an investigation of
alleged abuse or neglect as are all “government officials.” This issue is brought out best in Walsh v. Erie County
Dept. of Job and Family Services, 3:01-cv-7588. If it is unlawful and unconstitutional for the police who are
government officials, likewise it is for CPS employees who are also government officials.

The social workers argued, “the Fourth Amendment was not applicable to the activities of their social
worker employees.” The social workers claimed, “entries into private homes by child welfare workers involve
neither searches nor seizures under the Fourth Amendment, and thus can be conducted without either a warrant or
probable cause to believe that a child is at risk of imminent harm.”

The court disagreed and ruled: “Despite the defendant’s exaggerated view of their powers, the Fourth
Amendment applies to them, as it does to all other officers and agents of the state whose request to enter, however
benign or well-intentioned, are met by a closed door.” The Court also stated “The Fourth Amendment’s prohibition

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on unreasonable searches and seizures applies whenever an investigator, be it a police officer, a DCFS employee, or
any other agent of the state, responds to an alleged instance of child abuse, neglect, or dependency.” (Emphasis
added) The social worker’s first argument, shot down by the court. The social workers then argued that there are
exceptions to the Fourth Amendment, and that the situation was an “emergency.” They state, the “Defendants argue
their entry into the home, even absent voluntary consent, was reasonable under the circumstances. They point to:
the anonymous complaint about clutter on the front porch; and the plaintiff’s attempt to leave.

These circumstances, the defendants argue, created an ‘emergency situation’ that led Darnold and Brown
reasonably to believe the Walsh children were in danger of imminent harm. (Thus is the old “emergency” excuse
that has been used for years by social workers.) The Court again disagreed and ruled: “There is nothing inherently
unusual or dangerous about cluttered premises, much less anything about such vaguely described conditions that
could manifest imminent or even possible danger or harm to young children. If household ‘clutter’ justifies warrant
less entry and threats of removal of children and arrest or citation of their parents, few families are secure and few
homes are safe from unwelcome and unjustified intrusion by state officials and officers.” The Court went on to rule,
“They have failed to show that any exigency that justifies warrantless entry was necessary to protect the welfare of
the plaintiff’s children. In this case a rational jury could find that ‘not evidence points to the opposite conclusion’
and a lack of ‘sufficient exigent circumstances to relieve the state actors here of the burden of obtaining a warrant.”
The social worker’s second argument, shot down by the court.

The social workers then argued that they are obligated under law to investigate any reported case of child
abuse, and that supersedes the Fourth Amendment. They argued, “Against these fundamental rights, the defendants
contend that Ohio’s statutory framework for learning about and investigation allegations of child abuse and neglect
supersede their obligations under the Fourth Amendment. They point principally to § 2151.421 of the Ohio Revised
code as authority for their warrantless entry into and search of the plaintiff’s home. That statute imposes a duty on
certain designated professionals and persons who work with children or provide child care to report instances of
apparent child abuse or neglect.” This is the old “mandatory reporter” excuse.

The Court disagreed and ruled: “The defendant’s argument that the duty to investigate created by §
2151.421(F)(1) exempts them from the Fourth Amendment misses the mark because, not having received a report
described in § 2151.421(A)(1)(b), they were not, and could not have been, conducting an investigation pursuant to §
2151.421(F)(1).” The social worker’s third argument, shot down by the court.

The Court continues with their chastisement of the social workers: “There can be no doubt that the state can
and should protect the welfare of children who are at risk from acts of abuse and neglect. There likewise can be no
doubt that occasions arise calling for immediate response, even without prior judicial approval. But those instances
are the exception. Other wise child welfare workers would have a free pass into any home in which they have an
anonymous report or poor housekeeping, overcrowding, and insufficient medical care and, thus perception that
children may be at some risk.” The Court continues: “The anonymous phone call in this case did not constitute a
‘report’ of child abuse or neglect.” The social workers, Darnold and Brown, claimed that they were immune from
liability, claiming qualified immunity because “they had not had training in Fourth Amendment law.” In other
words, because they thought the Fourth Amendment did not bind them, they couldn’t be sued for their “mistake.”

The police officers, Chandler and Kish, claimed that they couldn’t be sued because they thought the social
workers were not subject to the Fourth Amendment, and they were just helping the social workers. The Court
disagreed and ruled: “That subjective basis for their ignorance about and actions in violation of the fourth
Amendment does not relieve them of the consequences of that ignorance and those actions.” The Court then lowers
the boom by stating: “The claims of defendants Darnold, Brown, Chandler and Kish of qualified immunity are
therefore denied.”

THE 9TH CIRCUIT COURT SAID, PARENTS HAVE THE CONSTITUTIONAL RIGHT
TO BE LEFT ALONE BY CPS AND THE POLICE.

The 9th Circuit Court of Appeals case, Calabretta v. Floyd, 9th Cir. (1999) “involves whether a social worker
and a police officer were entitled to qualified immunity, for a coerced entry into a home to investigate suspected
child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without a
special exigency.”

The court did not agree that the social worker and the police officer had “qualified immunity” and said,
“the facts in this case are noteworthy for the absence of emergency.” No one was in distress. “The police officer

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was there to back up the social worker’s insistence on entry against the mother’s will, not because he perceived any
imminent danger of harm.” And he should have known better. Furthermore, “had the information been more
alarming, had the social worker or police officer been alarmed, had there been reason to fear imminent harm to a
child, this would be a different case, one to which we have no occasion to speak. A reasonable official would
understand that they could not enter the home without consent or a search warrant.”

And now the 9th Circuit Court of Appeals defines the law: “In our circuit, a reasonable official would have
known that the law barred this entry. Any government official (CPS) can be held to know that their office does not
give them unrestricted right to enter people’s homes at will. We held in White v. Pierce county (797 F. 2d 812 (9 th
Cir. 1986), a child welfare investigation case, that ‘it was settled constitutional law that, absent exigent
circumstances, police could not enter a dwelling without a warrant even under statutory authority where probable
cause existed.’ The principle that government officials cannot coerce entry into people’s houses without a search
warrant or applicability of an established exception to the requirement of a search warrant is so well established that
any reasonable officer would know it.”

And there we have it: “Any government official can be held to know that their office does not give them
an unrestricted right to enter peoples’ homes at will. … The fourth Amendment preserves the ‘right of the people to
be secure in their persons, houses … ‘without limiting that right to one kind of government official.”

In other words, the parents have the constitutional right to exercise their children’s and their 4 th and 5th
Amendment protections and should just say no to social workers especially when they attempt to coerce or threaten
to call the police so they can conduct their investigation. “A social worker is not entitled to sacrifice a family’s
privacy and dignity to her own personal views on how parents ought to discipline their children.” (The Constitution
and the Bill of Rights were written to protect the people from the government, not to protect the government from the
people. And within those documents, the people have the constitutional right to hold the government accountable
when is does deny its citizens their rights under the law even if it is CPS, the police, or government agency, or local,
state, or federal government.)

The Court’s reasoning for this ruling was simple and straight forward: “The reasonable expectation of
privacy of individuals in their homes includes the interests of both parents and children in not having government
officials coerce entry in violation of the fourth Amendment and humiliate the parents in front of the children. An
essential aspect of the privacy of the home is the parent’s and the child’s interest in the privacy of the relationship
with each other.”

PARROTING OF THE PHRASE “BEST INTEREST OF THE CHILD” WITHOUT SUPPORTING FACTS
OR A LEGAL BASIS IS LEGALLY INSUFFICIENT TO SUPPORT A WARRANT OR COURT ORDER TO
ENTER A HOME.

In North Hudson DYFS v. Koehler Family, filed December 18, 2000, the Appellate court granted the
emergency application on February 6, 2001, to stay DYFS illegal entry that was granted by the lower court because
DYFS in their infinite wisdom thought it was their right to go into the Koehler home because the children were not
wearing socks in the winter or sleep in beds. After reviewing the briefs of all the parties, the appellate court ruled
that the order to investigate the Koehler home was in violation of the law and must be reversed. The Court
explained, “[a]bsent some tangible evidence of abuse or neglect, the Courts do not authorize fishing expeditions into
citizens’ houses.” The Court went on to say, “[m]ere parroting of the phrase ‘best interest of the child’ without
supporting facts and a legal basis is insufficient to support a Court order based on reasonableness or any other
ground.” February 14, 2001.

In other words, a juvenile judges decision on whether or not to issue a warrant is a legal one, it is not based
on “best interest of the child” or personal feeling. The United States Supreme Court has held that courts may not
use a different standard other than probable cause for the issuance of such orders. Griffin v. Wisconsin, 483 U.S. 868
(1987). If a court issues a warrant based on an uncorroborated anonymous tip, the warrant will not survive a judicial
challenge in the higher courts. Anonymous tips are never probable cause. “[I]n context of a seizure of a child by the
State during an abuse investigation . . . a court order is the equivalent of a warrant.” Tenenbaum v. Williams, 193
F.3d 581, 602 (2nd Cir. 1999). F.K. v. Iowa district Court for Polk County, Id.”

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 THE U.S COURT OF APPEALS FOR THE 7TH CIRCUIT RECENTLY
RULED THAT CHILD ABUSE INVESTIGATIONS HELD ON PRIVATE PROPERTY
AND INTERVIEW OF A CHILD WITHOUT CONSENT UNCONSTITUTIONAL.

The decision in the case of Doe et al, v. Heck et al (No. 01-3648, 2003 US App. Lexis 7144) will affect the
manner in which law enforcement and child protective services investigations of alleged child abuse or neglect are
conducted.

The decision of the 7th Circuit Court of Appeals found that this practice, i.e. the “no prior consent”
interview of a child, will ordinarily constitute a “clear violation” of the constitutional rights of parents under the 4th
and 14th Amendments to the U.S. Constitution. According to the Court, the investigative interview of a child
constitutes a “search and seizure” and, when conducted on private property without “consent, a warrant, probable
cause, or exigent circumstances,” such an interview is an unreasonable search and seizure in violation of the rights
of the parent, child, and, possibly the owner of the private property.

Considering that one critical purpose of the early stages of an investigation is to determine whether or not
the child is in danger, and if so, from who seems to require a high threshold level of evidence to commence the
interview of a child, whether the child is on private or public property.

“In our circuit, a reasonable official would have known that the law barred this entry. Any government
official can be held to know that their office does not give them an unrestricted right to enter peoples’ homes at will.
We held in White v. Pierce County a child welfare investigation case, that ‘it was settled constitutional law that,
absent exigent circumstances, police could not enter a dwelling without a warrant even under statutory authority
where probable cause existed.’ The principle that government officials cannot coerce entry into peoples’ houses
without a search warrant or applicability of an established exception to the requirement of a search warrant is so well
established that any reasonable officer would know it.” “we conclude that the Warrant clause must be complied
with. First, none of the exceptions to the Warrant Clause apply in this situation, including ‘exigent circumstances
coupled with probable cause,’ because there is, by definition, time enough to apply to a magistrate for an ex parte
removal order. See State v. Hatter, 342N.W.2d 851, 855 (Iowa 1983) (holding the exigent circumstances exception
to the Warrant Clause only applies when ‘an immediate major crisis in the performance of duty afforded neither time
nor opportunity to apply to a magistrate.’). Second, as noted by the Second Circuit, ‘[I]n context of a seizure of a
child by the State during an abuse investigation . . . a court order is the equivalent of a warrant.’ Tenenbaum v.
Williams, 193 F.3d 581, 602 (2nd Cir. 1999). F.K. v. Iowa district Court for Polk County, Id.”

“Another recent 9th Circuit case also held that there is no exception to the warrant requirement for social
workers in the context of a child abuse investigation. ‘The [California] regulations they cite require social workers
to respond to various contacts in various ways. But none of the regulations cited say that the social worker may
force her way into a home without a search warrant in the absence of any emergency.’ Calabretta v. Floyd, 189 F.3d
808 (9th Cir. 1999) Calabretta also cites various cases form other jurisdictions for its conclusion. Good v. Dauphin
County Social Servs., 891 F.2d 1087 (3rd Cir. 1989) held that a social worker and police officer were not entitled to
qualified immunity for insisting on entering her house against the mother’s will to examine her child for bruises.
Good holds that a search warrant or exigent circumstances, such as a need to protect a child against imminent danger
of serious bodily injury, was necessary for an entry without consent, and the anonymous tip claiming bruises was in
the case insufficient to establish special exigency.

The 9th Circuit further opined in Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000), that ‘[b]ecause the swing
of every pendulum brings with it potential adverse consequences, it is important to emphasize that in the area of
child abuse, as with the investigation and prosecution of all crimes, the state is constrained by the substantive and
procedural guarantees of the Constitution. The fact that the suspected crime may be heinous – whether it involves
children or adults – does not provide cause for the state to ignore the rights of the accused or any other parties.
Otherwise, serious injustices may result. In cases of alleged child abuse, governmental failure to abide by
constitutional constraints may have deleterious long-term consequences for the child and, indeed, for the entire
family. Ill-considered and improper governmental action may create significant injury where no problem of any
kind previously existed. .’ Id. at 1130-1131.”

This was the case involving DCF in Connecticut. Many of their policies are unlawful and contradictory to
the Constitution. DCF has unlawful polices giving workers permission to coerce, intimidate and to threatened
innocent families with governmental intrusion and oppression with police presences to squelch and put down any

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citizen who asserts their 4th Amendment rights by not allowing an unlawful investigation to take place in their
private home when no imminent danger is present.

DCF is the “moving force” behind the on going violations of federal law and violations of the Constitution.
This idea of not complying to the 4th and 14th Amendment is so impregnated in their statutes, policies, practices and
customs, it affects all and what they do and they take on the persona of the feeling of exaggerated power over
parents and that they are totally immune and can do basically do anything they want including engaging in
deception, misrepresentation of the facts and lying to the judge. This happens thousands of times every day in the
United States where the end justifies the mean even if it is unlawful, illegal and unconstitutional.

We can tell you stories for hours where CPS employees committed criminal acts and were prosecuted and
went to jail and/or was sued for civil rights violations. CPS workers have lied in reports, court documents, asked
others to lie, kidnapped children without court order, crossed state lines impersonating police and then kidnapping
children and were prosecuted for that and including a number of cases were the case worker killed the child.

It is sickening on how many children are subject to abuse, neglect and even killed at the hands of Child
Protective Services. These numbers include DCF in Connecticut.

Perpetrators of Maltreatment
Physical Sexual Neglect Medical Fatalities
Abuse Abuse Neglect
CPS 160 112 410 14 6.4
Parents 59 13 241 12 1.5

Number of Cases per 100,000 children in the United States. These numbers come from The National
Center on Child Abuse and Neglect (NCCAN) in Washington.

Imagine that, 6.4 children die at the hands of the agencies that are supposed to protect, and only 1.5 at the
hands of parents per 100,000 children. CPS perpetrates more abuse, neglect, and sexual abuse and kills more
children then parents in the United States. If the citizens of this country hold CPS to the same standards that they
hold parents to, no judge should ever put another child in the hands of ANY government agency because CPS
nationwide is guilty for more harm and death than any human being combined. CPS nation wide is guilty for more
human rights violations and death of children then the homes they took them out of. When are the judges going to
wake up to see that they are sending children to their death and a life of abuse when children are removed from safe
homes at the mere opinion of a bunch of social workers.

SECTION 3

THE FOURTH AMENDMENT’S IMPACT ON CHILD ABUSE INVESTIGATIONS.

The United States Court of Appeals for the Ninth Circuit said it best, “The government’s interest in the
welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest
in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.” Calabretta v.
Floyd, 189 F.3d 808 (1999).

This statement came in a case, which held that social workers who, in pursuit of a child abuse investigation,
invaded a family home without a warrant violate the Fourth amendment rights of both children and parents. Upon
remand for the damages phase of the trial, the social workers, the police officers, and the governments that
employed them settled this civil rights case for $150,000.00.

Contrary to the assumption of hundreds of social workers, the Ninth Circuit held that the Fourth
Amendment applies just as much to a child abuse investigation as it does to any criminal or other governmental
investigation. Social workers are not exempt from the requirements of the Fourth Amendment when they act alone.
They are not exempt from its rules if they are accompanied by a police officer. And police officers are not exempt
from the requirement even if all they do is get the front door open for the social worker; this would be intimidation,
coercion and threatening. The general rule is that unreasonable searches and seizures are banned. But the second
part of the rule is the most important in this context. All warrantless searches are presumptively unreasonable.

8
 SECTION 4

WHEN IS CONSENT NOT CONSENT?

If a police officer says, “If you don’t let us in your home we will break down your door” –a parent who
then opens the door has not given free and voluntary consent. If a social worker says, “if you don’t let me in the
home I will take your children away” –a parent who then opens the door has not given free and voluntary consent.
If a social worker says, “I will get a warrant from the judge or I will call the police if you do not let me in” negate
consent. ANY type of communication, which conveys the idea to the parent that they have no realistic alternative,
but to allow entry negates any claim that the entry was lawfully gained through the channel of consent. DCF’s
policy clearly tells the social worker that they can threaten parents even if the parents assert their 4 th Amendment
rights.

Consent to warrantless entry must be voluntary and not the result of duress or coercion. Lack of
intelligence, not understanding the right not to consent, or trickery invalidate voluntary consent. Schneckloth v.
Bustamonte, 412 US 218 (1973). One’s awareness of his or her right to refuse consent to warrantless entry is
relevant to the issue of voluntariness of alleged content. Lion Boulos v. Wilson, 834 F. 2d 504 (9th Cir. 1987).
“Consent” that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their
constitutional rights when they are coerced to comply with a request that they would prefer to refuse. Florida v.
Bostick, 501 US 429 (1991). Coercive or intimidating behavior supports a reasonable belief that compliance is
compelled. Cassady v. Tackett, 938 F. 2d (6th Cir. 1991). Coercion can be mental as well as physical. Blackburn v.
Alabama, 361 US (1960)

Probable Cause & Exigent Circumstances

The Fourth Amendment does not put a barrier in the way of a social worker who has reliable evidence that
a child is in imminent danger. For example, if a hot line call comes in and says, “My name is Mildred Smith, here is
my address and phone number. I was visiting my grandchildren this morning and I discovered that one of my
grandchildren, Johnny, age 5, is being locked in his bedroom without food for days at a time, and he looked pale and
weak to me” –the social worker certainly has evidence of exigent circumstances and is only one step away from
having probable cause.

Since the report has been received over the telephone, it is possible that the tipster is an imposter and not
the child’s grandmother. A quick verification of the relationship can be made in a variety of ways and once verified,
the informant, would satisfy the legal test of reliability, which is necessary to establish probable cause. Anonymous
phone calls fail the second part of the two-prong requirement of “exigent circumstances” and “probable cause” for a
warrant or order. Anonymous phone calls cannot stand the test of probable cause as defined within the 14th
Amendments and would fail in court on appeal. The social worker(s) would lose their qualified immunity for their
deprivation of rights and can be sued. Many social workers and Child Protection Services (“CPS”) lose their cases
in court because their entry into homes was in violation of the parents civil rights because the evidence in their
possession did not satisfy the standard of probable cause.

It is not enough to have information that the children are in some form of serious danger. The evidence
must also pass a test of reliability that our justice system calls probable cause. In H.R. v. State Department of
Human Resources, 612 So.2d 477 (Ala. Ct. App. 1992); the court held that an anonymous tip standing alone never
amounts to probable cause. The Calabretta court held the same thing, as have numerous other decisions, which have
faced the issue directly. The Fourth Amendment itself spells out the evidence required for a warrant or entry order.
No warrant shall issue but on probable cause. The United States Supreme Court has held that courts may not use a
different standard other than probable cause for the issuance of such orders. Griffin v. Wisconsin, 483 U.S. 868
(1987). If a court issues a warrant based on an uncorroborated anonymous tip, the warrant will not survive a judicial
challenge in the higher courts. Anonymous tips are never probable cause.

Children are not well served if they are subjected to investigations base on false allegations. Little children
can be traumatized by investigations in ways that are unintended by the social worker. However, to a small child all
they know is that a strange adult is taking off their clothing while their mother is sobbing in the next room in the
presence of an armed police officer. This does not seem to a child to be a proper invasion of their person –quite
different, for example, from an examination by a doctor when their mother is present and cooperating. The misuse
of anonymous tips is well known. Personal vendettas, neighborhood squabbles, disputes on the Little League field,

9
child custody battles, revenge, nosey individuals who are attempting to impose their views on others are turned into
maliciously false allegations breathed into a hotline.

“Decency, security and liberty alike demand that government officials shall be subject to the rules of
conduct that are commands to the citizen. In a government of laws, existence of government will be imperiled if it
fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or ill, it teaches
the whole people by example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt
for the law. It invites every man to become a law unto himself. It invites anarchy. U.S. v. Olmstead, 277 U.S. 438
(1928), Justice Brandeis.

We the people of the United States are ruled by law, not by feelings. If the courts allow states and their
agencies rule by feelings and not law, we become a nation without law that makes decisions based on subjectivity
and objectivity. CPS has been allowed to bastardize and emasculate the Constitution and the rights of its citizens to
be governed by the rule of men rather then the rule of law. It is very dangerous when governmental officials are
allowed to have unfettered access to citizens home. It is also very dangerous to allow CPS to violate the
confrontation clause in the 6th Amendment were CPS hides, conceals and covers up the accuser/witness who make
report. It allows those individuals to have a safe haven to file fraudulent reports and CPS aids and abets in this
violation of fundamental right. All citizens have the right to know their accuser/witness in order to preserve the
sanctity of the rule of law and that the Constitution is the supreme law of the land.

SECTION 5

IS IT ILLEGAL AND AN UNCONSTITUTIONAL PRACTICE FOR CPS TO REMOVE CHILDREN

SOLELY BECAUSE THEY SAW A PARENT WAS A VICTIM OF DOMESTIC VIOLENCE?

Yes it is illegal and an unconstitutional practice to remove children which results in punishing the children
and the non-offending parent. In a landmark class action suit in the U.S. District Court, Eastern District of New
York, U.S. District Judge Jack Weinsein ruled on Nicholson v. Williams, Case No.: 00-cv-2229. This suit challenged
the practice of New York’s City’s Administration for Children’s Services of removing the children of battered
mothers solely because the children saw their mothers being beaten by husbands or boyfriends. Judge Weistein
ruled that the practice is unconstitutional and he ordered it stopped.

ARE PARENTS GUILTY OF MALTREATMENT OR EMOTIONAL NEGLECT IF THE CHILD WITNESSES

DOMESTIC VIOLENCE?

“Not according to Judge Weistein’s ruling and to the leading national experts.”

During the trial several leading national experts testified on the impact on children of witnessing domestic
violence, and the impact on children of being removed from the non-offending parent. Views of Experts on Effects
of Domestic Violence on Children, and defining witnessing domestic violence by children as maltreatment or
emotional neglect is a mistake. “great concern [regarding] how increased awareness of children’s exposure [to
domestic violence] and associated problems is being used. Concerned about the risk adult domestic violence poses
for children, some child protection agencies in the United States appear to be defining exposure to domestic violence
as a form of child…Defining witnessing as maltreatment is a mistake. Doing so ignores the fact that large numbers
of children in these studies showed no negative development problems and some showed evidence of strong coping
abilities. Automatically defining witnessing as maltreatment may also ignore battered mother’s efforts to develop
safe environments for their children and themselves.” Ex. 163 at 866.

Effects of Removals of Children and on the Non-offending Parent.

Dr. Wolf testified that disruptions in the parent-child relationship might provoke fear and anxiety in a child
and diminish his or her sense of stability and self. Tr. 565-67. He described the typical response of a child separated
from his parent: “When a young child is separated from a parent unwillingly, he or she shows distress … At first, the
child is very anxious and protests vigorously and angrily. Then he falls into a sense of despair, though still hyper
vigilant, looking, waiting, and hoping for her return …” A child’s sense of time factors into the extent to which a
separation impacts his or her emotional well-being. Thus, for younger children whose sense of time is less keenly
developed, short periods of parental absence may seem longer than for older children. Tr 565-65. See also Ex. 141b.

10
 For those children who are in homes where there is domestic violence, disruption of that bond can be even
more traumatic than situations where this is no domestic violence. Dr. Stark (Yale New Haven Hospital researcher)
asserted that if a child is placed in foster care as a result of domestic violence in the home, then he or she may view
such removal as “a traumatic act of punishment … and [think] that something that [he] or she has done or failed to
do has caused this separation.” Tr. 1562-63. Dr. Pelcovitz stated that “taking a child whose greatest fear is
separation from his or her mother and in the name of ‘protecting’ that child [by] forcing on them, what is in effect,
their worst nightmare, … is tantamount to pouring salt on an open wound.” Ex. 139 at 5.

Another serious implication of removal is that it introduces children to the foster care system, which can be
much more dangerous and debilitating than the home situation. Dr. Stark testified that foster homes are rarely
screened for the presence of violence, and that the incidence of abuse and child fatality in foster homes is double that
in the general population. Tr 1596; Ex. 122 at 3-4. Children in foster care often fail to receive adequate medical
care. Ex. 122 at 6. Foster care placements can disrupt the child’s contact with community, school and siblings. Ex.
122 at 8.

Dr. Pelcovitz stated that “taking a child whose greatest fear is separation from his or her mother and in the name
of ‘protecting’ that child [by] forcing on them, what is in effect, their worst nightmare, … is tantamount to pouring
salt on an open wound.” Ex. 139 at 5.

SECTION 6

DO CHILDREN HAVE LEGAL STANDING TO SUE CPS FOR THEIR ILLEGAL ABDUCTION FROM
THEIR HOME AND VIOLATING THEIR 4TH AND 14TH AMENDMENT RIGHTS?

Yes they do, children have standing to sue for their removal after they reach the age of majority. Parents
also have legal standing to sue if CPS violated their 4th and 14th Amendment rights. Children have a Constitutional
right to live with their parents without government interference. Brokaw v. Mercer County, 7th Cir. (2000) A child
has a constitutionally protected interest in the companionship and society of his or her parents. Ward v. San Jose, 9th
Cir. (1992) State employees who withhold a child from her family infringe on the family’s liberty of familial
association. K.H. through Murphy v. Morgan, 7th Cir. (1990)

The forced separation of parent from child, even for a short time, represents a serious infringement upon
the rights of both. J.B. v. Washington county, 10th Cir. (1997) Parent’s interest is of “the highest order.” And the
court recognizes “the vital importance of curbing overzealous suspicion and intervention on the part of health care
professionals and government officials.” Thomason v. Scan Volunteer Services, Inc., 8th Cir. (1996)

You must protect you and your child’s rights. CPS has no legal right to enter your home or speak to you
and your child when there in no imminent danger present. Know your choices; you can refuse to speak any
government official whether it is the police or CPS as long as there is an open criminal investigation. They will tell
you that what they are involved with is a civil matter not a criminal matter. Don’t you believe it. There is nothing
civil about allegations of child abuse or neglect. It is a criminal matter disguised as a civil matter. Police do not get
involved in civil matters if it truly was one. You will regret letting them in your home and speaking with them like
the thousands of other parents who have gone through this. Ask a friend, family member or some one at work.
They will tell you if you agree to services, they will leave you alone or you can get your kids back.

Refusing them entry is NOT hindering an investigation, it’s a Fourth Amendment protection and CPS or the
juvenile judge can’t abrogate that right as long as your children are not in imminent danger. Tell them to go
packing. DO NOT sign anything, it will come back to be used against you in any possible kangaroo trial. Your
children’s records are protected by FERPA and HIPAA regarding your children’s educational and medical records.
They need a lawful warrant like the police under the “warrant clause” in order to seize any records. If your child
school records contain medical records, then HIPAA also applies. When the school or doctor sends records to CPS
or allows them to view them with out your permission, both the sender and receiver violated the law. You need to
file a HIPAA complaint on the sender and the receiver, a PDF version http://www.hhs.gov/ocr/howtofileprivacy.pdf
and a Microsoft Word version http://www.hhs.gov/ocr/howtofileprivacy.doc. Remember, you only have 180-days
from the time you found out about it. Tell them they need a lawful warrant to make you do anything. CPS has no
power; do not agree to a drug screen or a psychological evaluation.

11
 SECTION 7
FAMILY RIGHTS (FAMILY ASSOCIATION)

The state may not interfere in child rearing decisions when a fit parent is available. Troxel v. Granville, 530
U.S. 57 (2000).

A child has a constitutionally protected interest in the companionship and society of his or her parent. Ward
v. San Jose (9th Cir. 1992)

Children have standing to sue for their removal after they reach the age of majority. Children have a
constitutional right to live with their parents without government interference. Brokaw v. Mercer County (7th Cir.
2000)

The private, fundamental liberty interest involved in retaining custody of one’s child and the integrity of
one’s family is of the greatest importance. Weller v. Dept. of Social Services for Baltimore (4th Cir. 1990)

State employee who withholds a child from her family may infringe on the family’s liberty of familial
association. Social workers could not deliberately remove children from their parents and place them with foster
caregivers when the officials reasonably should have known such an action would cause harm to the child’s mental
or physical health. K.H. through Murphy v. Morgan (7th Cir. 1990)

The forced separation of parent from child, even for a short time (in this case 18 hours); represent a serious
infringement upon the rights of both. J.B. v. Washington County (10th Cir. 1997)

Absent extraordinary circumstances, a parent has a liberty interest in familial association and privacy that
cannot be violated without adequate pre-deprivation procedures. Malik v. Arapahoe Cty. Dept. of Social Services (10
Cir. 1999)

Parent interest is of “the highest order,” and the court recognizes “the vital importance of curbing
overzealous suspicion and intervention on the part of health care professionals and government officials.” Thomason
v. Scan Volunteer Services, Inc. (8th Cir. 1996)

SECTION 8
WARRANTLESS ENTRY

Police officers and social workers are not immune for coercing or forcing entry into a person’s home
without a search warrant. Calabretta v. Floyd (9th Cir. 1999)

The mere possibility of danger does not constitute an emergency or exigent circumstance that would justify
a forced warrantless entry and a warrantless seizure of a child. Hurlman v. Rice (2nd Cir. 1991)

Police officer and social worker may not conduct a warrantless search or seizure in a suspected child abuse
case absent exigent circumstances. Defendants must have reason to believe that life or limb is in immediate
jeopardy and that the intrusion is reasonable necessary to alleviate the threat. Searches and seizures in investigation
of a child neglect or child abuse case at a home are governed by the same principles as other searches and seizures at
a home. Good v. Dauphin County Social Services (3rd Cir. 1989)

The Fourth Amendment protection against unreasonable searches and seizures extends beyond criminal
investigations and includes conduct by social workers in the context of a child neglect/abuse investigation. Lenz v.
Winburn (11th Cir. 1995)

The protection offered by the Fourth Amendment and by our laws does not exhaust itself once a warrant is
obtained. The concern for the privacy, the safety, and the property of our citizens continues and is reflected in knock
and announce requirements. United States v. Becker, 929 F.2d 9th Cir.1991)

Making false statements made to obtain a warrant, when the false statements were necessary to the finding
of probable cause on which the warrant was based, violates the Fourth Amendment’s warrant requirement. The
warrant clause contemplates the warrant applicant be truthful: “no warrant shall issue, but on probable cause,
supported by oath or affirmation.” Deliberate falsehood or reckless disregard for the truth violates the warrant

12
clause. An officer who obtains a warrant through material false statements which result in an unconstitutional
seizure may be held liable personally for his actions under § 1983. When a warrant application is materially false or
made in reckless disregard for the Fourth Amendment’s warrant clause. A search must not exceed the scope of the
search authorized in a warrant. By limiting the authorization to search to the specific areas and things for which
there is probable cause to search, the Fourth Amendment particularity requirement ensures that the search will be
carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the
Framers of the Constitution intended to prohibit. There is a requirement that the police identify themselves to the
subject of a search, absent exigent circumstances. Aponte Matos v. Toledo Davilla (1st Cir. 1998)

SECTION 9
DUE PROCESS

Child’s four-month separation from his parents could be challenged under substantive due process. Sham
procedures don’t constitute true procedural due process. Brokaw v. Mercer County (7th Cir 2000)

Post-deprivation remedies do not provide due process if pre-deprivation remedies are practicable.
Bendiburg v. Dempsey (11th Cir. 1990)

Children placed in a private foster home have substantive due process right to personal security and bodily
integrity. Yvonne L. v. New Mexico Dept. of Human Services (10th Cir. 1992)

When the state places a child into state-regulated foster care, the state has duties and the failure to perform
such duties may create liability under § 1983. Liability may attach when the state has taken custody of a child,
regardless of whether the child came to stay with a family on his own which was not an officially approved foster
family. Nicini v. Morra (3rd Cir. 2000)

Social worker who received a telephone accusation of abuse and threatened to remove child from the home
unless the father himself left and who did not have grounds to believe the child was in imminent danger of being
abused engaged in an arbitrary abuse of governmental power in ordering the father to leave. Croft v. Westmoreland
Cty. Children and Youth Services (3rd Cir. 1997)

Plaintiff’s were arguable deprived of their right to procedural due process because the intentional use of
fraudulent evidence into the procedures used by the state denied them the fight to fundamentally fair procedures
before having their child removed, a right included in Procedural Due Process. Morris v. Dearborne (5th Cir. 1999)

When the state deprives parents and children of their right to familial integrity, even in an emergency
situation, the burden is on the State to initiate prompt judicial proceedings for a post-deprivation hearing, and it is
irrelevant that a parent could have hired counsel to force a hearing. K.H. through Murphy v. Morgan, (7th Cir. 1990)

When the State places a child in a foster home it has an obligation to provide adequate medical care,
protection, and supervision. Norfleet v. Arkansas Dept. of Human Services, (8th Cir. 1993)

Children may not be removed from their home by police officers or social workers without notice and a
hearing unless the officials have a reasonable belief that the children were in imminent danger. Ram v. Rubin, (9th
Cir. 1997)

Absent extraordinary circumstances, a parent has a liberty interest in familial association and privacy that
cannot be violated without adequate pre-deprivation procedures. An exparte hearing based on misrepresentation and
omission does not constitute notice and an opportunity to be heard. Procurement of an order to seize a child through
distortion, misrepresentation and/or omission is a violation of the Forth Amendment. Parents may assert their
children’s Fourth Amendment claim on behalf of their children as well as asserting their own Fourteenth
Amendment claim. Malik v.Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)

Plaintiff’s clearly established right to meaningful access to the courts would be violated by suppression of
evidence and failure to report evidence. Chrissy v. Mississippi Dept. of Public Welfare, (5th Cir. 1991)

Mother had a clearly established right to an adequate, prompt post-deprivation hearing. A 17-day period
prior to the hearing was not prompt hearing. Whisman V. Rinehart, (8th Cir. 1997)

13
 SECTION 10
SEIZURES (CHILD REMOVALS)

Police officers or social workers may not “pick up” a child without an investigation or court order, absent
an emergency. Parental consent is required to take children for medical exams, or an overriding order from the court
after parents have been heard. Wallis v. Spencer, (9th Cir 1999)

Child removals are “seizures” under the Fourth Amendment. Seizure is unconstitutional without court
order or exigent circumstances. Court order obtained based on knowingly false information violates Fourth
Amendment. Brokaw v. Mercer County, (7th Cir. 2000)

Defendant should’ve investigated further prior to ordering seizure of children based on information he had
overheard. Hurlman v. rice, (2nd Cir. 1991)

Police officer and social worker may not conduct a warrantless search or seizure in a suspected abuse case
absent exigent circumstances. Defendants must have reason to believe that life or limb is in immediate jeopardy and
that the intrusion is reasonably necessary to alleviate the threat. Searches and seizures in investigation of a child
neglect or child abuse case at a home are governed by the same principles as other searches and seizures at a home.
Good v. Dauphin County Social Services, (3rd Cir. 1989)

Defendants could not lawfully seize child without a warrant or the existence of probable cause to believe
child was in imminent danger of harm. Where police were not informed of any abuse of the child prior to arriving at
caretaker’s home and found no evidence of abuse while there, seizure of the child was not objectively reasonable
and violated the clearly established Fourth Amendment rights of the child. Wooley v. City of Baton Rouge, (5th Cir.
2000)

For purposes of the Fourth Amendment, a “seizure” of a person is a situation in which a reasonable person
would feel that he is not free to leave, and also either actually yields to a show of authority from police or social
workers or is physically touched by police. Persons may not be “seized” without a court order or being placed under
arrest. California v. Hodari, 499 U.S. 621 (1991)

Where the standard for a seizure or search is probable cause, then thee must be particularized information
with respect to a specific person. This requirement cannot be undercut or avoided simply by pointing to the fact that
coincidentally there exists probable cause to arrest or to search or to seize another person or to search a place where
the person may happen to be. Yabarra v. Illinois, 44 U.S. 85 (1979)

An officer who obtains a warrant through material false statements which result in an unconstitutional
seizure may be held liable personally for his actions under § 1983. Aponte Matos v. Toledo Davilla, 1st Cir. 1998)

SECTION 11
IMMUNITY

Social workers (and other government employees) may be sued for deprivation of civil rights under 42
U.S.C. § 1983 if they are named in their ‘official and individual capacity’. Hafer v. Melo, (S.Ct. 1991)

State law cannot provide immunity from suit for Federal civil rights violations. State law providing
immunity from suit for child abuse investigators has no application to suits under § 1983. Wallis v. Spencer, (9th Cir.
1999)

If the law was clearly established at the time the action occurred, a police officer is not entitled to assert the
defense of qualified immunity base on good faith since a reasonably competent public official should know the law
governing his or her conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)

Immunity is defeated if the official took the complained of action with malicious intention to cause a
deprivation of rights, or the official violated clearly established statutory or constitutional rights of which a
reasonable person would have known. McCord v. Maggio, (5th Cir. 1991)

14
 A defendant in a civil rights case is not entitled to any immunity if he or she gave false information either in
support of an application for a search warrant or in presenting evidence to a prosecutor on which the prosecutor
based his or her charge against the plaintiff. Young v. Biggers, (5th Cir. 1991)

Police officer was not entitled to absolute immunity for her role in procurement of court order placing child
in state custody where there was evidence officer spoke with the social worker prior to social worker’s conversation
with the magistrate and there was evidence that described the collaborative worker of the two defendants in creating
a “plan of action” to deal with the situation. Officer’s acts were investigative and involved more that merely
carrying out a judicial order. Malik v. Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)

Individuals aren’t immune for the results of their official conduct simply because they were enforcing
policies or orders. Where a statute authorizes official conduct which is patently violation of fundamental
constitutional principles, an officer who enforces that statute is not entitled to qualified immunity. Grossman v. City
of Portland, (9th Cir. (1994)

Social workers were not entitled to absolute immunity for pleadings filed to obtain pick-up order for
temporary custody prior to formal petition being filed. Social workers were not entitled to absolute immunity where
department policy was for social workers to report findings of neglect or abuse to other authorities for further
investigation or initiation of court proceedings. Social workers investigating claims of child abuse are entitled only
to qualified immunity. Assisting in the use of information known to be false in order to further an investigation is
not subject to absolute immunity. Social workers are not entitled to qualified immunity on claims they deceived
judicial officers in obtaining a custody order or deliberately or recklessly incorporated known falsehoods into their
reports, criminal complaints and applications. Use of information known to be false is not reasonable, and acts of
deliberate falsity or reckless disregard of the truth are not entitled to qualified immunity. No qualified immunity is
available for incorporating allegations into the report or application where official had no reasonable basis to assume
the allegations were true at the time the document was prepared. Snell v. Tunnel, (10 Cir. 1990)

Police officer is not entitled to absolute immunity, only qualified immunity, to claim that he caused plaintiff
to be unlawfully arrested by presenting judge with an affidavit that failed to establish probable cause. Malley v.
Briggs, S.Ct. 1986)

Defendants were not entitled to prosecutorial immunity where complaint was base on failure to investigate,
detaining minor child, and an inordinate delay in filing court proceedings, because such actions did not aid in the
presentation of a case to the juvenile court. Whisman v. Rinehart, (8th Cir. 1997)

Case worker who intentionally or recklessly withheld potentially exculpatory information from an
adjudicated delinquent or from the court itself was not entitled to qualified immunity. Germany v. Vance, (1st Cir.
1989)

Defendant was not entitled to qualified immunity or summary judgment because he should’ve investigated
further prior to ordering seizure of children based on information he had overheard. Hurlman v. Rice, (2nd Cir. 1991)

Defendants were not entitled to qualified immunity for conducting warrantless search of home during a
child abuse investigation where exigent circumstances were not present. Good v. Dauphin County Social Services,
(3rd Cir 1989)

Social workers were not entitled to absolute immunity where no court order commanded them to place
plaintiff with particular foster caregivers. K.H through Murphy v. Morgan, (7th Cir. 1991)

15
 SECTION 12

Decisions of the United States Supreme Court Upholding

Parental Rights as “Fundamental”

Paris Adult Theater v. Slaton, 413 US 49, 65 (1973)

In this case, the Court includes the right of parents to rear children among rights “deemed fundamental.”

Our prior decisions recognizing a right to privacy guaranteed by the 14th Amendment included only personal rights
that can be deemed fundamental or implicit in the concept of ordered liberty . . . This privacy right encompasses
and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing .
. . cf . . . Pierce v. Society of Sisters; Meyer v. Nebraska . . . nothing, however, in this Court’s decisions intimates that
there is any fundamental privacy right implicit in the concept of ordered liberty to watch obscene movies and places
of public accommodation. [emphasis supplied]

Carey v. Population Services International, 431 US 678, 684-686 (1977)

Once again, the Court includes the right of parents in the area of “child rearing and education” to be a liberty interest
protected by the Fourteenth Amendment, requiring an application of the “compelling interest test.” Although the
Constitution does not explicitly mention any right of privacy, the Court has recognized that one aspect of the liberty
protected by the Due Process Clause of the 14th Amendment is a “right of personal privacy or a guarantee of
certain areas or zones of privacy . . . This right of personal privacy includes the interest and independence in making
certain kinds of important decisions . . . While the outer limits of this aspect of privacy have not been marked by the
Court, it is clear that among the decisions that an individual may make without unjustified government interference
are personal decisions relating to marriage . . . family relationships, Prince v. Massachusetts, 321 US 158 (1944);
and child rearing and education, Pierce v. Society of Sisters, 268 US 510 (1925); Meyer v. Nebraska, 262 US 390
(1923).’ [emphasis supplied]

The Court continued by explaining that these rights are not absolute and, certain state interests . . . may at some
point become sufficiently compelling to sustain regulation of the factors that govern the abortion decision . . .
Compelling is, of course, the key word; where decisions as fundamental as whether to bear or beget a child is
involved, regulations imposing a burden on it may be justified only by a compelling state interest, and must be
narrowly drawn to express only those interests. [emphasis supplied]

Maher v. Roe, 432 US 464, 476-479 (1977)

We conclude that the Connecticut regulation does not impinge on the fundamental right recognized in Roe ... There
is a basic difference between direct state interference with a protected activity and state encouragement of an
alternative activity consonant with legislative policy ... This distinction is implicit in two cases cited in Roe in
support of the pregnant woman’s right under the 14th Amendment. In Meyer v. Nebraska. . . the Court held that the
teacher’s right thus to teach and the right of parents to engage in so to instruct their children were within the liberty
of the 14th Amendment . . . In Pierce v. Society of Sisters . . . the Court relied on Meyer . . . reasoning that the 14th
Amendment’s concept of liberty excludes any general power of the State to standardize its children by forcing
them to accept instruction from public teachers only. The Court held that the law unreasonably interfered with the
liberty of parents and guardians to direct the upbringing and education of the children under their control ...

Both cases invalidated substantial restrictions of constitutionally protected liberty interests: in Meyer, the parent’s
right to have his child taught a particular foreign language; in Pierce, the parent’s right to choose private rather than
public school education. But neither case denied to a state the policy choice of encouraging the preferred course of
action ... Pierce casts no shadow over a state’s power to favor public education by funding it — a policy choice
pursued in some States for more than a century ... Indeed in Norwood v. Harrison, 413 US 455, 462, (1973), we
explicitly rejected the argument that Pierce established a “right of private or parochial schools to share with the
public schools in state largesse,” noting that “It is one thing to say that a state may not prohibit the maintenance of
private schools and quite another to say that such schools must as a matter of equal protection receive state aid” ...
We think it abundantly clear that a state is not required to show a compelling interest for its policy choice to favor a

16
normal childbirth anymore than a state must so justify its election to fund public, but not private education.
[emphasis supplied]

Although the Maher decision unquestionably recognizes parents’ rights as fundamental rights, the Court has clearly
indicated that private schools do not have a fundamental right to state aid, nor must a state satisfy the
compelling interest test if it chooses not to give private schools state aid. The Parental Rights and Responsibilities
Act simply reaffirms the right of parents to choose private education as fundamental, but it does not make the right
to receive public funds a fundamental right. The PRRA, therefore, does not in any way promote or strengthen the
concept of educational vouchers.

Parham v. J.R., 442 US 584, 602-606 (1979).

This case involves parent’s rights to make medical decisions regarding their children’s mental health. The lower
Court had ruled that Georgia’s statutory scheme of allowing children to be subject to treatment in the state’s mental
health facilities violated the Constitution because it did not adequately protect children’s due process rights. The
Supreme Court reversed this decision upholding the legal presumption that parents act in their children’s best
interest. The Court ruled:

Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental
authority over minor children. Our cases have consistently followed that course; our constitutional system long ago
rejected any notion that a child is “the mere creature of the State” and, on the contrary, asserted that parents
generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional
obligations.” Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) ... [other citations omitted] . . . The law’s
concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience,
and capacity for judgment required for making life’s difficult decisions. More important, historically it has been
recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone,
Commentaries 447; 2 J. Kent, Commentaries on American Law 190. As with so many other legal presumptions,
experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse
cases attests to this. That some parents “may at times be acting against the interests of their children” ... creates a
basis for caution, but it is hardly a reason to discard wholesale those pages of human experience that teach that
parents generally do act in the child’s best interest ... The statist notion that governmental power should supersede
parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”
[emphasis supplied]

Parental rights are clearly upheld in this decision recognizing the rights of parents to make health decisions for their
children. The Court continues by explaining the balancing that must take place:

Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing
with children when their physical or mental health is jeopardized (See Wisconsin v. Yoder; Prince v. Massachusetts).
Moreover, the Court recently declared unconstitutional a state statute that granted parents an absolute veto over a
minor child’s decisions to have an abortion, Planned Parenthood of Central Missouri v. Danforth , 428 US 52
(1976), Appellees urged that these precedents limiting the traditional rights of parents, if viewed in the context of a
liberty interest of the child and the likelihood of parental abuse, require us to hold that parent’s decision to have a
child admitted to a mental hospital must be subjected to an exacting constitutional scrutiny, including a formal,
adversary, pre-admission hearing.

Appellees’ argument, however, sweeps too broadly. Simply because the decision of a parent is not agreeable to a
child, or because it involves risks does not automatically transfer power to make that decision from the parents to
some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or
other medical procedure. Most children, even in adolescence, simply are not able to make sound judgements
concerning many decisions, including their need for medical care or treatment. Parents can and must make those
judgements ... we cannot assume that the result in Meyer v. Nebraska, supra, and Pierce v. Society of Sisters, supra,
would have been different if the children there had announced or preference to go to a public, rather that a church
school. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic
surgery does not diminish the parent’s authority to decide what is best for the child (See generally Goldstein,
Medical Case for the Child at Risk: on State Supervention of Parental Autonomy, 86 Yale LJ 645, 664-668 (1977);

17
Bennett, Allocation of Child Medical Care Decision — Making Authority: A Suggested Interest Analyses, 62 Va LR
ev 285, 308 (1976). Neither state officials nor federal Courts are equipped to review such parental decisions.
[emphasis supplied]

Therefore, it is clear that the Court is recognizing parents as having the right to make judgments concerning their
children who are not able to make sound decisions, including their need for medical care. A parent’s authority to
decide what is best for the child in the areas of medical treatment cannot be diminished simply because a child
disagrees. A parent’s right must be protected and not simply transferred to some state agency.

City of Akron v. Akron Center for Reproductive Health Inc., 462 US 416, 461 (1983)

This case includes, in a long list of protected liberties and fundamental rights, the parental rights guaranteed under
Pierce and Meyer. The Court indicated a compelling interest test must be applied. Central among these protected
liberties is an individual’s freedom of personal choice in matters of marriage and family life ... Roe ... Griswold ...
Pierce v. Society of Sisters ... Meyer v. Nebraska ... But restrictive state regulation of the right to choose abortion as
with other fundamental rights subject to searching judicial examination, must be supported by a compelling
state interest. [emphasis supplied]

Santosky v. Kramer, 455 US 745, 753 (1982)

This case involved the Appellate Division of the New York Supreme Court affirming the application of the
preponderance of the evidence standard as proper and constitutional in ruling that the parent’s rights are permanently
terminated. The U.S. Supreme Court, however, vacated the lower Court decision, holding that due process as
required under the 14th Amendment in this case required proof by clear and convincing evidence rather than merely
a preponderance of the evidence.

The Court, in reaching their decision, made it clear that parents’ rights as outlined in Pierce and Meyer are
fundamental and specially protected under the Fourteenth Amendment. The Court began by quoting another
Supreme Court case:

In Lassiter [Lassiter v. Department of Social Services, 452 US 18, 37 (1981)], it was “not disputed that state
intervention to terminate the relationship between a parent and a child must be accomplished by procedures meeting
the requisites of the Due Process Clause”. . . The absence of dispute reflected this Court’s historical recognition that
freedom of personal choice in matters of family life is a fundamental liberty interest protected by the 14th
Amendment ... Pierce v. Society of Sisters ... Meyer v. Nebraska.

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not
evaporate simply because they have not been model parents or have lost temporary custody of their child to the state
... When the state moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair
procedures. [emphasis supplied]

Lehr v. Robertson, 463 US 248, 257-258 (1983)

In this case, the U.S. Supreme Court upheld a decision against a natural father’s rights under the Due Process and
Equal Protection Clauses since he did not have any significant custodial, personal, or financial relationship with the
child. The natural father was challenging an adoption. The Supreme Court stated: In some cases, however, this Court
has held that the federal constitution supersedes state law and provides even greater protection for certain formal
family relationships. In those cases ... the Court has emphasized the paramount interest in the welfare of children
and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed. Thus, the
liberty of parents to control the education of their children that was vindicated in Meyer v. Nebraska ... and
Pierce v. Society of Sisters ... was described as a “right coupled with the high duty to recognize and prepare the
child for additional obligations” ... The linkage between parental duty and parental right was stressed again in
Prince v. Massachusetts ... The Court declared it a cardinal principle “that the custody, care and nurture of the child
reside first in the parents whose primary function and freedom include preparation for obligations the state can
neither supply nor hinder.” In these cases, the Court has found that the relationship of love and duty in a recognized
family unit is an interest in liberty entitled to Constitutional protection ... “State intervention to terminate such a

18
relationship ... must be accomplished by procedures meeting the requisites of the Due Process Clause” Santosky v.
Kramer ... [emphasis supplied]

It is clear by the above case that parental rights are to be treated as fundamental and cannot be taken away without
meeting the constitutional requirement of due process.

Board of Directors of Rotary International v. Rotary Club of Duarte, 481 US 537 (1987)

In this case, a Californian civil rights statute was held not to violate the First Amendment by requiring an all male
non-profit club to admit women to membership. The Court concluded that parents’ rights in child rearing and
education are included as fundamental elements of liberty protected by the Bill of Rights.

The Court has recognized that the freedom to enter into and carry on certain intimate or private relationships is a
fundamental element of liberty protected by the Bill of Rights ... the intimate relationships to which we have
accorded Constitutional protection include marriage ... the begetting and bearing of children, child rearing and
education. Pierce v. Society of Sisters ... [emphasis supplied]

Michael H. v. Gerald, 491 U.S. 110 (1989)

In a paternity suit, the U.S. Supreme Court ruled: It is an established part of our constitution jurisprudence that the
term liberty in the Due Process Clause extends beyond freedom from physical restraint. See, e.g. Pierce v. Society of
Sisters ... Meyer v. Nebraska ... In an attempt to limit and guide interpretation of the Clause, we have insisted not
merely that the interest denominated as a “liberty” be “fundamental” (a concept that, in isolation, is hard to
objectify), but also that it be an interest traditionally protected by our society. As we have put it, the Due
Process Clause affords only those protections “so rooted in the traditions and conscience of our people as to be
ranked as fundamental” Snyder v. Massachusetts, 291 US 97, 105 (1934). [emphasis supplied] The Court explicitly
included the parental rights under Pierce and Meyer as “fundamental” and interests “traditionally protected by our
society.”

Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)

One of the more recent decisions which upholds the right of parents is Employment Division of Oregon v. Smith,
which involved two Indians who were fired from a private drug rehabilitation organization because they ingested
“peyote,” a hallucinogenic drug as part of their religious beliefs. When they sought unemployment compensation,
they were denied because they were discharged for “misconduct.”

The Indians appealed to the Oregon Court of Appeals who reversed on the grounds that they had the right to freely
exercise their religious beliefs by taking drugs. Of course, as expected, the U.S. Supreme Court reversed the case
and found that the First Amendment did not protect drug use. So what does the case have to do with parental rights?

After the Court ruled against the Indians, it then analyzed the application of the Free Exercise Clause generally. The
Court wrongly decided to throw out the Free Exercise Clause as a defense to any “neutral” law that might violate an
individual’s religious convictions. In the process of destroying religious freedom, the Court went out of its way to
say that the parents’ rights to control the education of their children is still a fundamental right. The Court declared
that the “compelling interest test” is still applicable, not to the Free Exercise Clause alone:

[B]ut the Free Exercise Clause in conjunction with other constitutional protections such as ... the right of parents,
acknowledged in Pierce v. Society of Sisters, 268 U.S. 510 (1925), to direct the education of their children, see
Wisconsin v. Yoder, 406 U.S.205 (1972) invalidating compulsory-attendance laws as applied to Amish parents who
refused on religious grounds to send their children to school.19 [emphasis supplied]

In other words, under this precedent, parents’ rights to control the education of their children is considered a
“constitutionally protected right” which requires the application of the compelling interest test. The Court in Smith
quoted its previous case of Wisconsin v. Yoder:

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Yoder said that “The Court’s holding in Pierce stands as a charter for the rights of parents to direct the religious
upbringing of their children. And when the interests of parenthood are combined with a free exercise claim ... more
than merely a reasonable relationship to some purpose within the competency of the State is required to sustain
the validity of the State’s requirement under the First Amendment.” 406 U.S., at 233.20 [emphasis supplied]

Instead of merely showing that a regulation conflicting with parents’ rights is reasonable, the state must, therefore,
reach the higher standard of the “compelling interest test,” which requires the state to prove its regulation to be the
least restrictive means.

Hodgson v. Minnesota, 497 U.S. 417 (1990)

In Hodgson the Court found that parental rights not only are protected under the First and Fourteenth Amendments
as fundamental and more important than property rights, but that they are “deemed essential.”

The family has a privacy interest in the upbringing and education of children and the intimacies of the marital
relationship which is protected by the Constitution against undue state interference. See Wisconsin v Yoder, 7 406
US 205 ... The statist notion that governmental power should supersede parental authority in all cases because some
parents abuse and neglect children is repugnant to American tradition.” In other words, under this precedent, parents’
rights to control the education of their children is considered a “constitutionally protected right” which requires the
application of the compelling interest test. The Court in Smith quoted its previous case of Wisconsin v. Yoder:

Yoder said that “The Court’s holding in Pierce stands as a charter for the rights of parents to direct the religious
upbringing of their children. And when the interests of parenthood are combined with a free exercise claim ... more
than merely a reasonable relationship to some purpose within the competency of the State is required to sustain
the validity of the State’s requirement under the First Amendment.” 406 U.S., at 233.20 [emphasis supplied]

Instead of merely showing that a regulation conflicting with parents’ rights is reasonable, the state must, therefore,
reach the higher standard of the “compelling interest test,” which requires the state to prove its regulation to be the
least restrictive means.

Parham, 442 US, at 603, [other citations omitted]. We have long held that there exists a “private realm of family
life which the state cannot enter.” Prince v Massachusetts ...

A natural parent who has demonstrated sufficient commitment to his or her children is thereafter entitled to raise the
children free from undue state interference. As Justice White explained in his opinion of the Court in Stanley v
Illinois, 405 US 645 (1972) [other cites omitted]:

“The court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s
children have been deemed ‘essential,’ Meyer v Nebraska, ... ‘basic civil rights of man,’ Skinner v Oklahoma, 316
US 535, 541 (1942), and ‘[r]ights far more precious ... than property rights,’ May v Anderson, 345 US 528, 533
(1953) ... The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth
Amendment, Meyer v Nebraska, supra.” [emphasis supplied]

The Court leaves no room for doubt as to the importance and protection of the rights of parents.

H.L. v. Matheson, 450 US 398, 410 (1991)

In this case, the Supreme Court recognized the parents’ right to know about their child seeking an abortion. The
Court stated: In addition, constitutional interpretation has consistently recognized that the parents’ claim to authority
in their own household to direct the rearing of their children is basic in the structure of our society.

Ginsberg v. New York, 390 US 629 (1968) ... We have recognized on numerous occasions that the relationship
between the parent and the child is Constitutionally protected (Wisconsin v. Yoder, Stanley v. Illinois, Meyer v.
Nebraska) ... “It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose
primary function and freedom includes preparation for obligations the state can neither supply, nor hinder.” [Quoting
Prince v. Massachusetts, 321 US 158, 166, (1944)]. See also Parham v. J.R.; Pierce v. Society of Sisters ... We have

20
recognized that parents have an important “guiding role” to play in the upbringing of their children, Bellotti II, 443
US 633-639 ... which presumptively includes counseling them on important decisions.

This Court clearly upholds the parent’s right to know in the area of minor children making medical decisions.

Vernonia School District 47J v. Acton, 132 L.Ed.2d 564, 115 S.Ct. 2386 (1995)

In Vernonia the Court strengthened parental rights by approaching the issue from a different point of view. They
reasoned that children do not have many of the rights accorded citizens, and in lack thereof, parents and guardians
possess and exercise those rights and authorities in the child’s best interest:

Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of
self-determination—including even the right of liberty in its narrow sense, i.e., the right to come and go at will.
They are subject, even as to their physical freedom, to the control of their parents or guardians. See Am Jur 2d,
Parent and Child § 10 (1987).

Troxel v. Granville, 530 U.S. 57 (2000)

In this case the United States Supreme Court issued a landmark opinion on parental liberty. The case involved a
Washington State statute which provided that a "court may order visitation rights for any person when visitation may
serve the best interests of the child, whether or not there has been any change of circumstances." Wash. Rev. Code §
26.10.160(3). The U.S. Supreme Court ruled that the Washington statute "unconstitutionally interferes with the
fundamental right of parents to rear their children." The Court went on to examine its treatment of parental rights in
previous cases: In subsequent cases also, we have recognized the fundamental right of parents to make decisions
concerning the care, custody, and control of their children…Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15,
92 S. Ct. 1526 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern
for the nurture and This case clearly upholds parental rights. In essence, this decision means that the government
may not infringe parents' right to direct the education and upbringing of their children unless it can show that it is
using the least restrictive means to achieve a compelling governmental interest.

Crawford v. Washington No. 02-9410. Argued November 10, 2003--Decided March 8, 2004

certiorari to the Supreme Court of Washington

Petitioner was tried for assault and attempted murder. The State sought to introduce a recorded statement that
petitioner's wife Sylvia had made during police interrogation, as evidence that the stabbing was not in self-defense.
Sylvia did not testify at trial because of Washington's marital privilege. Petitioner argued that admitting the evidence
would violate his Sixth Amendment right to be "confronted with the witnesses against him." Under Ohio v. Roberts,
448 U. S. 56, that right does not bar admission of an unavailable witness's statement against a criminal defendant if
the statement bears "adequate 'indicia of reliability,' " a test met when the evidence either falls within a "firmly
rooted hearsay exception" or bears "particularized guarantees of trustworthiness." Id., at 66. The trial court admitted
the statement on the latter ground. The State Supreme Court upheld the conviction, deeming the statement reliable
because it was nearly identical to, i.e., interlocked with, petitioner's own statement to the police, in that both were
ambiguous as to whether the victim had drawn a weapon before petitioner assaulted him.

Held: The State's use of Sylvia's statement violated the Confrontation Clause because, where testimonial statements
are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Pp. 5-33.

(a) The Confrontation Clause's text does not alone resolve this case, so this Court turns to the Clause's historical
background. That history supports two principles. First, the principal evil at which the Clause was directed was the
civil-law mode of criminal procedure, particularly the use of ex parte examinations as evidence against the accused.
The Clause's primary object is testimonial hearsay, and interrogations by law enforcement officers fall squarely
within that class. Second, the Framers would not have allowed admission of testimonial statements of a witness who
did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-
examination. English authorities and early state cases indicate that this was the common law at the time of the

21
founding. And the "right ... to be confronted with the witnesses against him," Amdt. 6, is most naturally read as a
reference to the common-law right of confrontation, admitting only those exceptions established at the time of the
founding. See Mattox v. United States, 156 U. S. 237, 243. Pp. 5-21.

(b) This Court's decisions have generally remained faithful to the Confrontation Clause's original meaning. See,
e.g., Mattox, supra. Pp. 21-23.

(c) However, the same cannot be said of the rationales of this Court's more recent decisions. See Roberts, supra,
at 66. The Roberts test departs from historical principles because it admits statements consisting of ex parte
testimony upon a mere reliability finding. Pp. 24-25.

(d) The Confrontation Clause commands that reliability be assessed in a particular manner: by testing in the
crucible of cross-examination. Roberts allows a jury to hear evidence, untested by the adversary process, based on a
mere judicial determination of reliability, thus replacing the constitutionally prescribed method of assessing
reliability with a wholly foreign one. Pp. 25-27.

(e) Roberts' framework is unpredictable. Whether a statement is deemed reliable depends on which factors a
judge considers and how much weight he accords each of them. However, the unpardonable vice of the Roberts test
is its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to
exclude. Pp. 27-30.

(f) The instant case is a self-contained demonstration of Roberts' unpredictable and inconsistent application. It
also reveals Roberts' failure to interpret the Constitution in a way that secures its intended constraint on judicial
discretion. The Constitution prescribes the procedure for determining the reliability of testimony in criminal trials,
and this Court, no less than the state courts, lacks authority to replace it with one of its own devising. Pp. 30-32.

147 Wash. 2d 424, 54 P. 3d 656, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer,
JJ., joined. Rehnquist, C. J., filed an opinion concurring in the judgment, in which O'Connor, J., joined.

THE CONSTITUTIONAL RIGHT TO BE A PARENT

Below are excerpts of case law from state appellate and federal district courts and up to the U.S. Supreme Court, all
of which affirm, from one perspective or another, the absolute Constitutional right of parents to actually BE parents
to their children.

The rights of parents to the care, custody and nurture of their children is of such character that it cannot be
denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and
political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5,
9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).

The several states have no greater power to restrain individual freedoms protected by the First Amendment
than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).

Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital
importance, the burden of proving which rests on their government. Elrod v. Burns, 96 S Ct 2673; 427 US 347,
(1976).

Law and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand"
was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118
US 356, (1886).

22
 Even when blood relationships are strained, parents retain vital interest in preventing irretrievable
destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more
critical need for procedural protections than do those resisting state intervention into ongoing family affairs.
Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982).

Parents have a fundamental constitutionally protected interest in continuity of legal bond with their
children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .

The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus, a
state may not interfere with a parent's custodial rights absent due process protections. Langton v. Maloney, 527 F
Supp 538, D.C. Conn. (1981).

Parent's right to custody of child is a right encompassed within protection of this amendment which may
not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without
reasonable relation to some purpose within competency of state to effect. Regenold v. Baby Fold, Inc., 369 NE 2d
858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).

Parent's interest in custody of her children is a liberty interest which has received considerable
constitutional protection; a parent, who is deprived of custody of his or her child, even though temporarily, suffers
thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d
437; 5 Kansas App Div 2d 584, (1980).

The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child
relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v.
City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).

Father enjoys the right to associate with his children which is guaranteed by this amendment (First) as
incorporated in Amendment 14, or which is embodied in the concept of "liberty" as that word is used in the Due
Process Clause of the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356
F Supp 620; DC, WI (1973).

"Separated as our issue is from that of the future interests of the children, we have before us the elemental
question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her
immediate right to the care, custody, management and companionship of her minor children without having
jurisdiction over her in person. Rights far more precious to appellant than property rights will be cut off if she is to
be bound by the Wisconsin award of custody." May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).

A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed
protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C.,
324 A 2d 90; supra 129 NJ Super, at 489.

The Court stressed, "the parent-child relationship is an important interest that undeniably warrants
deference and, absent a powerful countervailing interest, protection." A parent's interest in the companionship, care,
custody and management of his or her children rises to a constitutionally secured right, given the centrality of family
life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).

Parent's rights have been recognized as being "essential to the orderly pursuit of happiness by free man."
Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).

The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother
and is no longer living with his child" could not constitutionally be treated differently from a currently married
father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255^Q56, (1978).

The U.S. Court of Appeals for the 9th Circuit (California) held that the parent-child relationship is a
constitutionally protected liberty interest. (See; Declaration of Independence --life, liberty and the pursuit of
happiness and the 14th Amendment of the United States Constitution -- No state can deprive any person of life,

23
liberty or property without due process of law nor deny any person the equal protection of the laws.) Kelson v.
Springfield, 767 F 2d 651; US Ct App 9th Cir, (1985).

The parent-child relationship is a liberty interest protected by the Due Process Clause of the 14th
Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct App 7th Cir WI, (1985).

No bond is more precious and none should be more zealously protected by the law as the bond between
parent and child." Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).

A parent's right to the preservation of his relationship with his child derives from the fact that the parent's
achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of
his children. A child's corresponding right to protection from interference in the relationship derives from the
psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582,
595^Q599; US Ct App (1983).

A parent's right to the custody of his or her children is an element of "liberty" guaranteed by the 5th
Amendment and the 14th Amendment of the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App
Div (1983).

Reality of private biases and possible injury they might inflict were impermissible considerations under the
Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S Ct 1879; 466 US 429.

Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent
risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even
statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women
must be carefully tailored. the state cannot be permitted to classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440
US 268, (1979).

The United States Supreme Court held that the "old notion" that "generally it is the man's primary
responsibility to provide a home and its essentials" can no longer justify a statute that discriminates on the basis of
gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the
marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).

Judges must maintain a high standard of judicial performance with particular emphasis upon conducting
litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456 F.2d 532; cert denied 92 S
Ct 2411; US Ct App MN, (1972).

State Judges, as well as federal, have the responsibility to respect and protect persons from violations of
federal constitutional rights. Gross v. State of Illinois, 312 F 2d 257; (1963).

The Constitution also protects "the individual interest in avoiding disclosure of personal matters." Federal
Courts (and State Courts), under Griswold can protect, under the "life, liberty and pursuit of happiness" phrase of the
Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his
children, and this cannot be taken away from him without due process of law. There is a family right to privacy
which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US
479, (1965).

The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or
substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and
Utah's Constitution, Article 1 § 1. In re U.P., 648 P 2d 1364; Utah, (1982).

The rights of parents to parent-child relationships are recognized and upheld. Fantony v. Fantony, 122 A 2d
593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982). State's power to legislate, adjudicate and administer all
aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal
judiciary within reach of due process and/or equal protection clauses of 14th Amendment...Fourteenth Amendment
applied to states through specific rights contained in the first eight amendments of the Constitution which declares

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fundamental personal rights...Fourteenth Amendment encompasses and applied to states those preexisting
fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence
of fundamental rights with it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people." The United States Supreme Court in a long line of decisions has
recognized that matters involving marriage, procreation, and the parent-child relationship are among those
fundamental "liberty" interests protected by the Constitution. Thus, the decision in Roe v. Wade, 410 US 113; 93 S
Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the "Constitutional
underpinning of ... a recognition that the "liberty" protected by the Due Process Clause of the 14th Amendment
includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in
certain matters of marriage and family life." The non-custodial divorced parent has no way to implement the
constitutionally protected right to maintain a parental relationship with his child except through visitation. To
acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42
USC § 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely.
Wise v. Bravo, 666 F.2d 1328, (1981).

FROM THE COLORADO SUPREME COURT, 1910

In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and
controlling question by which the court must be guided. This rule is based upon the theory that the state must
perpetuate itself, and good citizenship is essential to that end. Though nature gives to parents the right to the
custody of their own children, and such right is scarcely less sacred than the right to life and liberty, and is
manifested in all animal life, yet among mankind the necessity for government has forced the recognition of the rule
that the perpetuity of the state is the first consideration, and parental authority itself is subordinate to this supreme
power. It is recognized that: 'The moment a child is born it owes allegiance to the government of the country of its
birth, and is entitled to the protection of that government. And such government is obligated by its duty of
protection, to consult the welfare, comfort and interest of such child in regulating its custody during the period of its
minority.' Mercein v. People, 25 Wend. (N. Y.) 64, 103, 35 Am. Dec. 653; McKercher v. Green, 13 Colo. App. 271,
58 Pac. 406. But as government should never interfere with the natural rights of man, except only when it is
essential for the good of society, the state recognizes, and enforces, the right which nature gives to parents [48 Colo.
466] to the custody of their own children, and only supervenes with its sovereign power when the necessities of the
case require it.
The experience of man has demonstrated that the best development of a young life is within the sacred precincts
of a home, the members of which are bound together by ties entwined through 'bone of their bone and flesh of their
flesh'; that it is in such homes and under such influences that the sweetest, purest, noblest, and most attractive
qualities of human nature, so essential to good citizenship, are best nurtured and grow to wholesome fruition; that,
when a state is based and builded upon such homes, it is strong in patriotism, courage, and all the elements of the
best civilization. Accordingly these recurring facts in the experience of man resulted in a presumption establishing
prima facie that parents are in every way qualified to have the care, custody, and control of their own offspring, and
that their welfare and interests are best subserved under such control. Thus, by natural law, by common law, and,
likewise, the statutes of this state, the natural parents are entitled to the custody of their minor children, except when
they are unsuitable persons to be entrusted with their care, control, and education, or when some exceptional
circumstances appear which render such custody inimicable to the best interests of the child. While the right of a
parent to the custody of its infant child is therefore, in a sense, contingent, the right can never be lost or taken away
so long as the parent properly nurtures, maintains, and cares for the child. Wilson v. Mitchell, 111 P. 21, 25-26, 48
Colo. 454 (Colo. 1910)

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 Conclusion

The U.S. Supreme Court has consistently protected parental rights, including it among those rights deemed
fundamental. As a fundamental right, parental liberty is to be protected by the highest standard of review: the
compelling interest test.

As can be seen from the cases described above, parental rights have reached their highest level of protection in over
75 years. The Court decisively confirmed these rights in the recent case of Troxel v. Granville, which should serve to
maintain and protect parental rights for many years to come.

As long as CPS is allowed to have an exaggerated view of their power and is allowed by state officials and the
courts to exploit that power and abuse it against both children and parents, they will both be continually harmed.

The constitution is there for two primary reasons, 1) to restrict the power of the government and 2) to protect the
people from the government, not the government from the people. And the constitution is there to prohibit certain
activity from government officials and that prohibition does not apply to one type or kind of official but to ANY
government official whether it is the police, CPS or the FBI.

For additional copies or questions,

please e-mail us at

[email protected]

Check out our website at:

www.connecticutdcfwatch.com

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