Child Welfare Reform Begins By Simply Following The Law

Say an anonymous person calls Child Protective Services and says that three weeks ago, you and your children were sleeping outside. The person also claims that the day before that, you were protesting for eight hours and it was unknown whether you fed your children during the protest. You never learn who made the allegations.

Would you be okay based on these claims alone – without any evidence to actually support them – if a trial court permitted a social worker to search your entire residence?

Probably not, I’m guessing. 

The Pennsylvania Supreme Court, confronting these facts, agreed this past December, ruling that the Fourth Amendment prevents social workers from entering a parent’s home without first establishing probable cause. The Court held that when determining probable cause, trial courts must assess the nexus between the alleged neglect and the area to be searched, as well as the reliability of information from anonymous reporters, and the timeliness of the facts in the petition. 

In this case, the justices said, the trial court had violated the parents’ constitutional rights by allowing the search to occur. 

In many ways, the decision was unexceptional. The Court simply applied decades of Fourth Amendment law to the facts of the case, and ruled that the government had no basis to enter the parents’ home. No probable cause existed. No exigent circumstances were present. And the parents certainly did not consent to the search. None of us would want a social worker to be able to search our home based on such flimsy evidence provided by an anonymous report.

But this decision is a significant win because all too often, well-established legal rules and principles are discarded by family court judges in the name of protecting children. We allow junk opinion testimony by non-experts to justify the separation of children from their parents. We don’t give lawyers full access to information in the agency’s possession (what’s known as discovery) so that they can ensure that a judge hears all the relevant facts. We permit the rights of parents to their children to be terminated based on hearsay evidence.   

In any proceeding involving litigants with power, we would never tolerate this. Think about a medical malpractice claim involving a rich doctor, or a criminal case involving a high-profile defendant. Fraud allegations against a Fortune 500 company. We wouldn’t even allow a slight deviation from the rules. Lawyers would scream. Appellate courts would intervene. The system would move quickly to protect the powerful.     

But in child welfare, not only do we tolerate this, attorneys are often chastised when they demand that well-established processes be followed. When my student objected to hearsay testimony at a trial and cited an actual evidentiary rule, the judge mocked her. He said he’d have to “dust off” his rules of evidence book to look up the rule; then he denied her objection.

When a former colleague cited a statute requiring more visits between his client and her children, the judge angrily accused him of “going down the statutory road” again, whatever that meant. She denied his request.

When another student cited the seminal United States Supreme Court of Stanley v. Illinois in court, the judge admonished my colleague (who was supervising) and instructed him to tell the student that “those Illinois cases” don’t apply in Michigan courts. Apparently, neither did pronouncements from the United States Supreme Court.

Child welfare cases involve the adjudication of fundamental rights. Those rights are protected by well-established rules and processes. Following settled law and procedure ensure that judges only infringe on those rights based on actual, high-quality evidence. When we discard these rules, we risk making bad decisions, that can permanently alter the trajectory of the lives of families.

Kudos to the Pennsylvania Supreme Court for resisting this temptation and for recognizing that the same constitutional rights that the powerful enjoy also apply to those on the margins, regardless of whatever the alleged benevolent intent of the government might be. As Justice Louis Brandeis famously wrote, “Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent.”  

The child welfare system would better serve families if it consistently applied his wisdom.