Numerous Checks Fail

One of the amici in Greene v. Camreta included this observation in their amicus brief:

Children's Advocacy Institute
". . .the system in place includes numerous checks to protect the rights of suspected parental abusers, including required “reasonable efforts” not to remove a child; a detention hearing before a neutral court with the burden on the State to show child danger; appointment of counsel for all involved parents;mandated “reasonable efforts” to reunify; jurisdiction hearing; disposition hearing (pendente lite); review hearings; and permanent placement hearings – all before the judiciary, and including liberal rights of appellate review."

CAI is absolutely correct. Congress has provided these checks in order to prevent the unnecessary removal of children from their family homes and to protect family integrity and privacy.

Do they work? In theory, yes, they do. In practice, rarely. Why? I'm so glad you asked. . .what you will read here is the result of twenty years of observation and analysis of this cases in courtrooms around the country. Yes, even in states with closed courts, I get in.

First, permit me comment on the grammar, ". . . protect the rights of suspected parental abusers. . ." They are accused of child abuse, not parental abuse. Suspicion of child abuse when one is only accused indicates a predisposition to presume guilt, a principle at odds with our judicial traditions. But the entire child welfare system is administered in a manner that initiates find shocking to our time-honored notions of justice.

So, let's move on to the checks, point by point.

1. " including required “reasonable efforts” not to remove a child" (tsk tsk tsk. . .the grammar again-a lawyer wrote this? Don't they have to have a certain degree of competence in language skills?) Congress has mandated the state make reasonable efforts to prevent removal. This means providing services intended to eliminate the risk of abuse and keep the child safely in the home. This can be as simple as removing the offinding parent from the family home. Yet this fails as a matter of usual practice, or even under the auspices of "best practice."  
1.  It fails because the caseworker did not/refused/neglected to offer any services to the parent that would keep the child safely in the home. Futhermore, the caseworker will refuse to accept any alternatives offered by the parents. But the caseworker will recite the proper incantation in her court documents, "reasonable efforts were made to prevent removal" without detailing what those efforts were and why they failed, as Congress has mandated.
2. It fails because the judge--who has the duty to require the agency to provide proof of reasonable efforts, doesn't require it, as Congress has mandated.The judge has the authority to require this sua sponte, but let's suppose this judge is particularily lazy/busy/biased. If the judge fails, there are two or three other participants whose job it is to give the judge a reason to find that reasonable efforts were not made.
3. It fails because the Guardian ad litem (GAL) refuses to demand the caseworker--the maker of the report--be placed under oath and testify to the services she offered and why they failed to prevent removal, as Congress has mandated. Futhermore, the GAL refuses to object to the court's finding that reasonable efforts were made without a shred of evidence in the record to support that finding. 
4. It fails because the respondent parent attorneys refuse to demand the caseworker --the maker of the report--be placed under oath and testify to the services she offered and why they failed, as Congress has mandated. Futhermore, the respondent parent attorneys refuse to object to the court's finding that reasonable efforts were made without a shred of evidence in the record to support that finding. 
5. Conclusion, is has been rendered impotent as a check on agency conduct with the express consent of all participants. 
2. "a detention hearing before a neutral court with the burden on the State to show child danger" This is correct. Yet this fails as a matter of usual practice, or even under the auspices of "best practice."  
1. The agency makes the allegations of the danger unopposed and without being under oath.
2. The judge wants these hearings over with quickly. He gets testy when a parent demands an evidentiary hearing. Even if he grants the evidentiary hearing, the parents are only permitted a brief amount of time to contest the danger. They are often denied the right to call witnesses and present evidence. In practice, it is a sham proceeding.
3. The GAL does not demand the caseworker be placed under oath to cross-examine her report. The GAL has the right and the duty in his capacity as acting in the best interets of the child to challenge everything the agency does and recommends. In practice, GALs appear as bobble heads to rubber stamp all agency findings and recommendations. GALs endorse the sham proceeding.
4. Respondent parent attorneys (especially court appointed) prepare for a hearing!? Hello! They advise their clients not to contest the removal of the child nor demand a contested detention hearing. "Just cooperate and you'll get your kids back." Besides, they have a number of other hearings today and are too busy running from one courtroom to the next for their five minute hearing. They claim they don't get paid enough to represent their clients at contested hearings. And if they are court appointed, they don't get paid enough, but they did sign up for the ~$700 flat fee so they lose all right to complain about their pay. If the parents dare to show up with evidence and witnesses, their attorney threatens to withdraw. They facilitate the sham proceeding.
5. Conclusion: A sham proceeding is devoid of any power as a check and balance to the state agency's acts.
3. "appointment of counsel for all involved parents"  True, again. But what good is appointed counsel if counsel refuses to provide competent representation?
1. For example, appointed counsel always tell parents, "cooperate with the agency." If a criminal attorney told a defendant,"cooperate with the DA," he could be sued for malpractice. 
2. For example, if the parents refuse to comply with his recommendations to waive all the shelter hearing, admit to the petition and do whatever the agency demands, the attorney moves the court to withdraw. The court grants him motion to withdraw, and refuses to appoint counsel to replace him. In fact, if the parents demand the degree of self-determination mandated in the statutes, complain about abuse in foster care, demand more frequent and meaningful visits and speedy reunification, the lawyer withdraws. 
3. The GAL is appointed for the child, and only serves to rubber stamp the agency findings and recommendations. Talk about stacking the deck in favor of the agency. . .
4. Conclusions: Counsel that acts a court-appointed facilitator to agency demands is devoid as a check and balance to state agency conduct.
4. "mandated “reasonable efforts” to reunify; See #1 above.  
1. What good is a check that has been reduced to a check box and incantation? It is devoid of any power to check agency conduct with the express participation of all participants.
5. "jurisdiction hearing" which is another name for the adjudicatory hearing, where the court finds the children are dependent and neglected and brings them under the jurisdiction of the court so the agency can provide services.
1. Does anyone remember me telling you the attorneys recommend the parents to admit to the petition or they will withdraw?
2. There are almost never adjudicatory hearings. In Colorado, out of over three thousand petitions filed a year, there are less than ten jury trials for this hearing and there are a few more to the court. If parents are coerced to waive these hearings by their attorneys, or threats of retaliation by the agency, what good is having the option? 
3. Before you get snotty and say the parent should just resist, just stop and think how strong your resolve would be if your kids were in a hostile stranger's home and visitation was being withheld for your admission to the petition?
4. If the parents are strong in their resolve, the attorney withdraws, and the court may or may not appoint a replacement and the hearing is delayed by as long a year, all this while the child remains in foster care; or, the attorney does not effectively represent the parent and the parent loses which results in another sham proceeding.
5. The GAL also has the right to demand a contested hearing on behalf of the child, but I've never heard of this happening.
6. If through coercion and threat, the parents waive this right, or if the hearing is reduced to a sham proceeding, it fails as a check and balance to state agency acts. 
6. "disposition hearing (pendente lite)" This is where the case plan is ordered by the court. Services are:
1. Uniformly inappropriate services based on a one-size-fits-all boilerplate plan,
2. proffered by incompetent, cut-rate providers, which do not conform to the standards of the profession or which encompass untested or questionable theories, and
3. not intended to address the legitimate issues that brought the children under the jurisdiction of the court. 
4. Parent and child attorneys refuse to contest the agency recommendations, or to demand a contested hearing, or to even challenge the fact that the parents were not permitted to participate in the formation of the case plan as the law mandates. 
5. Conclusion, if the hearing is reduced to yet another sham proceeding, it fails as a check and balance to the agency conduct. Once again, this could be resolved IF counsel or GAL were to demand a contested hearing instead of coercing the parents not to piss off the caseworker by challenging any service she recommends. 
7. "review hearings" Yes. . .every six months, AFTER the adjudication which the soonest that can occur is sixty days after removal. 
1. These cases go to permanency at twelve months. Pretty meaningless in the scheme of these cases. It usually means one review hearing before the permanency hearing. . .which brings us to. . .
2. Once again, these hearings are merely a pro forma exercise at paper shuffling, sham proceedings which do nothing as a check and balance to agency conduct. 
8. "and permanent placement hearings" – at twelve months after removal. Most kids don't get home before this hearing. Half of them never make it home. 
1. The agency presents their report and recommendations whether to return the child or terminate parental rights. Often, this information in this report is based on subjective information, and offers nothing measurable or objective to support the recommendations. 
2. GAL and parent attorneys do not want contested hearings, do not want to submit evidence or cross examine service providers or case workers. They act as rubber stamps for what the agency wants.
3. Conclusion: even if this weren't a sham proceeding, the damage has already been done with the faciliation of the court and attorneys for parents and children. It often cannot be undone, and the parents face termination of parental rights over fifty percent of the time.
9. "all before the judiciary," yes. . .but,
1. Judges get really testy if you contest anything the agency says, wants, recommends or demands. 
2. Who abhor contested hearings and parents being in denial, after all, any parent who wouldn't do anything the agency demands--regardless of the mertis of the demands--to get their child back must be a bad parent. 
3. who believe everything the agency says and believes all parents are liars and abusers. 
4. Who retaliate against attorneys who present a too-vigorous defense of the parents, by ruling against their other clients. 
5. Conclusion, if the judiciary are not fair and impartial, it renders this check and balance impotent.
10. "and including liberal rights of appellate review"  Form over substance. . .
1. You can only appeal issues that were raised on the record.
2. GALs and attorneys don't object, or preserve appealable issues. Remember, they advise the parents to waive all hearings, to admit, to comply. There is nothing on the record to preserve for an appeal. 
3. Conclusion: This is a meaningless option if the attorneys don't preserve the issues during the pendency of the case. 

 The checks and balances built into the child welfare process have been reduced to mere formalities that lack any substance. By the time of the hearing to terminate parental rights, the record reflects exactly what the agency wants it to reflect. . .without a hint that the entire process was a sham.

Oral Arguments Camreta v. Greene

Oral arguments were this morning. The transcript has been published.

What can I say? I am underwhelmed at the arguments presented on behalf of the respondent Greene, by Carolyn A. Kubitschek, Esq. She faced a court that appeared to be in support of the respondents, and hemmed and hawed apologetically for even daring to suggest that case workers do not have the right or authority to seize children without a court order, exigent circumstances or parental consent. It was almost as if she hadn't even read the amicus briefs in support of her client.

She was all over the issue, "yes we want the ruling vacated," "oops that's not what I meant, we don't want the ruling vacated."

"It's a seizure," "oops, the length of time determines if it's a seizure," "oops, it depends on if there are exigent circumstances."

The strongest statement she could muster was a wishy-washy ". . .that would be to -- to tell the officials who investigate child abuse that in the name of protecting children, they do not have free rein to do anything and everything that they think is appropriate, because what they do harms children, including the very children they claim to be trying to protect." Child welfare practices do much more than harm the children, and besides, child advocates claim that the harm the child suffers is minimal and justifiable.

The Justices gave her all the clues she needed to make effective and compelling arguments, and she missed them. Counsel was obviously a person who did not understand the practices in these kinds of cases, and she was clueless about the legal history surrounding this issue. She did not even appear to be convinced that caseworkers--government agents-- needed to obey the constitution in administering these cases.

Interviewing a child in school, without exigent circumstances, without a court order supported by evidence and affidavit, or without parental consent, starts a chain of events that becomes an juggernaut,virtually  impossible to turn aside or stop. It is the cornerstone violation of every subsequent violation of rights, privacy dignity and self-determination more often resulting in the destruction of the child's family, security, and assets  than resulting in any beneficial outcome for the child.

But counsel didn't appear to understand that simple and well-established principle, which pretty much makes her as dumb as the rest of the population who think the ends justify the means when protecting children.

She actually sounds like a respondent parent attorney before a hostile dependency judge, like Oliver Twist begging for more food, "Please, Your Honor, I'm sorry, my client insists on a contested hearing against my advice. Otherwise, I wouldn't be here."

No wonder the cause of family rights is so stifled. The people who set themselves up to speak for family rights are inarticulate and clueless.

Update March 2, 2011: Here's what other news organization said about her performance

See this editorial discussing Ms. Kubitschek's performance before SCOTUS.

CNN said in this article, "Arguing for the family, lawyer Carolyn Kubitschek offered seemingly conflicting answers on when it is proper for officials to question children without parents present. She suggested the one-hour-plus interrogation of S.G. was inappropriate but a shorter interview might have been all right."

Quotes From Amici - Camreta v. Greene

In support of neither party:

Children's Advocacy Institute
". . .the system in place includes numerous checks to protect the rights of suspected parental abusers, including required “reasonable efforts” not to remove a child; a detention hearing before a neutral
court with the burden on the State to show child danger; appointment of counsel for all involved parents;
mandated “reasonable efforts” to reunify; jurisdiction hearing; disposition hearing (pendente lite); review
hearings; and permanent placement hearings – all before the judiciary, and including liberal rights of
appellate review."

In support of the respondents:

Liberty Counsel
"Moving the seizure and interrogation of S.G. from the family's residence to a school office did not shield Petitioners from the requirements of the Fourth Amendment. A mere change in locale did not transform the
criminal investigation of alleged child abuse by a county child protection officer and deputy sheriff into a school discipline investigation by a principal or superintendent. The lessened expectation of privacy accorded to students in the latter circumstances cannot be applied to relieve Petitioners of their obligations under
the Fourth Amendment."

National Association of Criminal Defense Counsel
"History teaches that the Framers in the last quarter of the Eighteenth Century would not have countenanced government’s meddling with America’s families. They would not have allowed government officials to take children because of alleged abuse. Simply put, the Founders did not consider raising and rearing children government’s business. Warrantless rescues based on claimed abuse would therefore not have been tolerated. Nor did such a practice exist at the time the Fourteenth Amendment was adopted."

"One’s right to family cannot depend on location. It follows the family."

". . .the class of potentially “dependent” children is huge. It encompasses all children in America. Infants, toddlers and young school-age children, like S.G., are all potential targets. This vast universe of potential “status” victims, coupled with mandatory reporting requirements, vague understandings of “neglect,” and undertrained investigators produces a significant error rate within the child protection system."

"Petitioners’ demand for a lower standard is premised less on a desire to protect children than to win unbridled discretion. History teaches, however, that license breeds abuse. See, e.g., Kolender v. Lawson,
461 U.S. 352, 358 (1983) (warning that 'virtually complete discretion in the hands of the police' cannot
be tolerated); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1983). History teaches that 'unbridled discretion, however benevolently motivated, is
frequently a poor substitute for principle and procedure.' Gault, 387 U.S. at 18."

Liberty Counsel
"Rather than according Respondents' Fourth Amendment rights the respect required by Congress, Petitioners side-stepped the issue by conducting the investigation at S.G.'s school instead of the family home. Petitioners should not be permitted to evade their obligations under the Fourth Amendment by simply changing the venue for their investigations. Respondents' Fourth Amendment rights are not limited to the confines of their residence, and Petitioners should not be permitted to flout the will of this Court and Congress by doing at
a child's school what they cannot do in the home. Fourth Amendment rights should not be subjected to such gamesmanship."

Camreta Revisited by SCOTUS

In past posts here and here, I discussed a Ninth Circuit Court of Appeals ruling (Greene v. Camreta) which determined that removing a child from a classroom and subjecting that child to a two hour interrogation was a violation of the child's and the parent's fourth amendment rights. I mentioned that the states were in an uproar, doomsaying that this would cause more children to be abused. Gasp.

The question before the Supreme Court is whether police and child protective services investigators, consistent with the Fourth Amendment, may conduct a custodial interrogation of a child in a public school as to the details of her home life, without: (1) a warrant supported by probable cause, (2) consent of parent, (3) a court order, or (4) exigent circumstances. Press Supreme Court orders for the questions as framed in the petitions for certiorari.

The caseworker and the police officer sought certiorari because even thought the Ninth Circuit ruled that they had qualified immunity for this event (because the law was not clearly established at the time) they did violate fourth amendment rights of the family. This means that any subsequent incident would find the offending government official liable. 

I have been reading the merits and amicus briefs provided at The Family Defense Center web site. I observe that nine amicus briefs were filed in support of the caseworker/police officer and eighteen in support of the parents. I found the brief of the Attorneys General of forty-one states to be extremely revealing. I will note, for the record, the states listed do include the the worst states for child welfare outcomes and violations, i.e. Colorado, California, Florida, Illinois, Michigan, Wisconsin.

The states have expressed a compelling interest to continue running roughshod over the rights of parents and children as having, "gained wide acceptance as the best practice because such interviews are the most effective tool available for overcoming the many obstacles to obtaining reliable investigative outcomes. . ."

They view their abusive tactics as justified because, "By their nature, CPS investigations typically involve situations in which the perpetrator is a parent or other family member, and often a member of the child’s household. If, as the Ninth Circuit implies, CPS investigations are therefore to be seen as 'storming the castle,' see Greene, 588 F.3d at 1016, then one must also perceive the strength of the fortress walls behind which abused children await rescue."

Agencies view mothers who deny the father sexually abused the child (this involved a sexual abuse allegation based on third-hand hearsay from outside the home) as part of the problem, and therefore refuse to consider her as a non-offending parent, but as an enabler. I have analyzed many of these cases, and more often than not, the agency discounts the evidence showing daddy couldn't have possibly done it, such as daddy was out of state at the time the incident was alleged, and  insists mom is enabling the abuse. This is their justification for not seeking parental consent, nor obtaining a court order or warrant. 

Interesting that in this case, there was, as there usually is, a non-offending parent whose presumption that she acts in the best interests of her child means nothing because her child is "awaiting rescue" from mommy and daddy who hide behind the fourth amendment? How perverted is this delusion? The little girl that was the protected puked five times after the interrogation when she got home because her <ahem> well-intentioned, highly professional knights-in-shining-armor were just doing their job. They argue they need to do their job and the fourth amendment just gets in the way.

This might be arguable, IF they were as infallible as they believe they are. But S.G. (the victim) recanted saying that Greene kept telling her she was giving the wrong answer so she just said what he wanted to hear so he would leave her alone. I've seen this happen so often that it brings most disclosures under suspicion, and the biggest crime is that they don't video record these interrogations (they REFUSE to video record because it would expose them) so that you can prove they did it wrong. They get it wrong far more often than they get it right, so infallibility is not a valid consideration.

The doomsaying continues to run amok. Only WE (CPS) can protect the kiddies, parents don't ever protect their own children. Parents are perpetrators. Is it any wonder parents give these government agents the hairy eyeball when the agencies want to invade their castle?

The Attorneys General would have a lot more credibility if the state agencies could get it right, if they could administer a case without traumatizing the kiddies, bankrupting the parents and destroying the child's family, and if the children in foster care were safer than in their own homes.

I hope the Supremes recognize that the emperor has no clothes.

Panic in the Child Welfare Agencies

Business as usual by Oregon child welfare has been nipped by the 9th Circuit Court of Appeals in a case  where a family sued a child welfare agency for unconstitutional search and seizure arising out of their interview with a child at school and subsequent removal from home.

Exhibiting their typical knee-jerk overreaction to anything that appears to protect anyone accused of child abuse or neglect, the child protection industry is burning with child-saver horror speculation and doomsday scenarios that more children will be abused because the constitution shockingly protects a child's right to family association. Child abusers win one. . . I have always maintained that the child savers gave too little consideration to the negative effects of their  assistance to families they, in their infinite wisdom, determine need their help. 

The mother, Sarah Greene, and her children sued the state agency for various constitutional claims associated with the agencies handling of a child welfare investigation and case. The U.S. District court dismissed the case. Mother and children appealed. The appeals court overturned the District Court. The findings were as follows:

1) "In short, applying the traditional Fourth Amendment requirements, the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exigent circumstances, or parental consent was unconstitutional."  In this case, the court distinguished searches and seizures of students by school officials from situations where a police officer or social worker, not connected with the school, conducts an interview. School officials who acquiesce to an interview demand by child welfare agencies may now be open to liability. Especially if there is a 4th amendment letter  (on my web site, the password to open the letter is "I agree") in the child's school file as I have recommended for years. The court ruled that, because this precedent was not established prior, the defendants had immunity. However, if anyone does it again, they will not be immune from civil liability as this case clearly establishes the law in that regard.


2)"Because Camreta's alleged misrepresentation in support of his request for a protective custody order . . . violated the Greenes' clearly established rights, he is not entitled to qualified immunity." Exaggerating, misrepresenting, outright lying on affidavits and requests for court orders has been a long-standing tradition in child welfare cases. The problem has been in proving the lies, which is why I recommended as early as 1996 that parents record all interactions with state agencies and their providers. Deceitful case workers have responded by refusing to be recorded and retaliating when parents insist. I am on the record stating they, as public servants, cannot refuse to be recorded. It just keeps things honest. . .and provides evidence for future lawsuits like this. 


3) "Camreta's decision to exclude Sarah not just from the examination but from the entire facility where her daughter was being examined violated the Greenes' clearly established rights." The practice of preventing the parents from attending the child during medical examinations has already been condemned in another 9th Circuit case so the caseworker has no immunity for violating the child's constitutional rights.  Caseworkers routinely isolate the child from the parents, limit contact to infrequent supervised situations and refuse access to the child's medical, school and other records. It's long past time these capricious, heavy-handed control-reak practices by case workers bite the dust.


These are among the issues I have included in my accredited Continuing Legal Education training designed for attorneys representing parents and children in child welfare cases, and I am gratified to see that I, a mere mortal, have been vindicated by being right in my analysis and education of these particular issues. Too bad not enough lawyers "get it."


The court actually discussed family association and family rights in this case. 

• [P]arents have a right arising from the liberty interest in family association to be with their children while they are receiving medical attention 
• Finally, we hold that Camreta's decision to exclude Sarah from her daughters' medical examinations at the KIDS Center violated the Greenes' clearly established familial rights under the Fourteenth Amendment.
• The interest in family association is particularly compelling at such times, in part because of the possibility that a need to make medical decisions will arise, and in part because of the family's right to be together during such difficult and often traumatic events.
• . . .Wallis establishes two points central here: first, parents and children maintain clearly established familial rights to be with each other during potentially traumatic medical examinations. . .

If the U.S. Constitution can prove to be so powerful to protect the fundamental human right to family association, think of the double whammy a family rights amendment to the state constitution could provide in your state.