Improving the Foster Care System - Part XIX

Hat tip to Micky for sending me this article from MSNBC:

Welfare Workers Charged in Girl's Death

Two child welfare workers have been charged in connection with the death of a 4-year-old girl they were responsible for monitoring, and authorities said she "might be alive today" if they had done their jobs.

Marchella Brett-Pierce weighed just 18 pounds when she died Sept. 2. Authorities said she was tied to her bed and starved, beaten and drugged.

Brooklyn District Attorney Charles J. Hynes said Damon Adams, the caseworker who had been assigned to her case before her death, and Chereece Bell, his former supervisor, are charged with criminally negligent homicide, endangering the welfare of a child and official misconduct.

This case is another horrific example of the child welfare system failing to do its job. It's cases like these that make me think we should abolish the system entirely. If children are going to die when they are supposed to be supervised by authorities, then clearly kids aren't necessarily any better off than if they'd been left alone.

I find myself wondering this, since the system manages to do so much damage to birth, foster and adoptive families already. If the system that's supposed to protect kids fails at it so miserably, and manages to destroy the lives of innocent people whose only crime was to be anonymously accused of wrongdoing, perhaps it simply shouldn't exist at all.

Now I know that this is an extreme case. Unfortunately, it happens too frequently to be acceptable, even in our local area. There was a case not too long ago where a child that was under the watchful eye of social workers ended up being murdered by a relative caregiver.

I realize that there were probably a lot of reasons, in this particular case, why the workers involved didn't do their jobs. Maybe their caseloads were too high, and there weren't enough hours in the day to cover all families they were supposed to supervise. Maybe the economic crisis and state budgetary problems left the entire department with too many cases and not enough staff.

Or maybe, just like postal worker Newman in the television show Seinfeld who hid mail in the basement instead of delivering it, they were just lazy.

Clearly the two workers involved were aware that they had screwed up. They attempted to falsify visit records after the child died. Instead of admitting, right off the bat, that they'd missed checking in on the child, they tried to cover their tracks and pretend to have made visits that were never made.

Now as much as I dislike social most workers, and I despise these two in particular for not doing their jobs, I'm not sure that I agree they should be prosecuted for criminally negligent homicide. It's true they did not do their jobs, but I'm not sure that justice is served by holding them accountable for a death that was caused by the child's grandmother.

So how do we prevent this from happening?

Again, the issue comes down to one of money. If the child welfare system was properly funded:

• We wouldn't have jobs that should be performed by LCSWs being done by untrained hacks.
• We wouldn't have social workers making decisions based on expediency, so a kid can be jettisoned from their caseload.
• We wouldn't have such high turnover because good workers would stay because they were being adequately compensated.
• Bad workers wouldn't stay, because management would have the ability to pay competitive wages and benefits to attract the really good people.
• Most importantly, kids in care would get the necessary services and treatments they need, and the foster families who care for them would be motivated to do a good job because they'd be properly trained and compensated.

Perhaps this sounds really extreme, but we as a society wouldn't want to pay for city garbage service that charges to pick up the trash, but then doesn't actually empty the dumpsters. As soon as the garbage started piling up in our streets, people would complain.

So why is it, when kids start dying because social workers don't do their jobs, nobody says a word?

Update to "Do Social Workers Need Search Warrants"

A few weeks ago, I (FosterEema) posted about an interesting case now before the United States Supreme Court. That case, Camreta v. Greene, confronted the issue of whether, and when, social workers need a search warrant to interview children in a school context.

For the legal eagles in the crowd, you can read a transcript (PDF) of the oral argument which took place before the Supreme Court, or listen to a recording of the argument.

At this point, while everyone waits for the Supreme Court to issue its opinion, the $64,000 question is how the Court will rule. Based upon my reading of the transcript, here're my thoughts:

First of all, the Justices seemed really uncomfortable with a blanket rule that would require social workers to always obtain search warrants before interviewing children. John Kroger, the attorney arguing for the social worker and sheriff's deputy, made the statement that in many cases it would be impossible to establish probable cause to get warrants without talking to the kid because "the child is usually the only witness that is available to the government". Therefore, he argued, reasonable suspicion - and not a warrant backed by probable cause - should be the legal standard for interviewing children.

However, the Court also spent a great deal of time on a more foundational issue: whether or not this appeal is even something they can decide. Under Article III of the United States Constitution, the courts cannot decide a case when there is no meaningful action they can take to benefit the party appealing. This is a legal doctrine known as "mootness", which stems from the requirement that courts only decide matters where there exists a "justiciable case or controversy".)

Here, the Supreme Court expressed considerable doubt that a justiciable case still existed. S.G., the minor in this case, is now 18 and no longer residing in Oregon, so her life is unaffected by the outcome of the appeal. And, since the lower court already granted social worker Camreta and Deputy Alford qualified immunity from liability, the Supreme Court's decision - whatever it ends up being - will change nothing for them, either. Given this, the only possible difference the Supreme Court's ruling could make would be to clarify the legal standard for the future, and several justices seemed reluctant to tackle that issue here.

So, what are the options available to the Supreme Court? I see at least four potential outcomes:

1. The Court could agree with the Ninth Circuit's decision that search warrants are required before interviewing a child at school. Based on the tenor of the argument, I'd be very surprised if the Court did this.
2. The Court could reverse the Ninth Circuit's decision on the merits, thereby setting a rule that search warrants are not required in child welfare investigations. I think this is also unlikely.
3. The Court could withdraw its grant of certiorari as improvidently granted. Essentially, this would be the Court saying "we shouldn't have agreed to hear this case, so we're going to pretend we never did that and let the lower court's ruling stand."
4. The court could issue a vacactur order back to the Ninth Circuit under United States v. Munsingwear, Inc.. I'll let you read this detailed article for a fuller explanation of what vacatur and the Munsingwear decision are all about, but the short version is that it would throw out the Ninth Circuit's decision mandating warrants and return things to the way they were without actually deciding the issue of whether and when warrants are needed.

To be clear, the difference between options #3 and #4 is what happens within the Ninth Circuit's jurisdiction. Both outcomes would defer the establishment of a blanket rule about search warrants, but under a vacatur, the Ninth Circuit's decision would be erased entirely. By contrast, if the Supreme Court withdraws the grant of certiorari, no national rule would be established, but the Ninth Circuit's requirement for search warrants would remain law within the states under its jurisdiction.

What's going to happen in this case? If I had to guess, I'd say this last option - vacating the Ninth Circuit's decision under Munsingwear is the most likely option. Although the Supreme Court Justices expressed considerable doubt that the Ninth Circuit's decision mandating search warrants was correct, they definitely seemed to feel that this might not be the right case from which to create a blanket rule. Vacating under Munsingwear would signal agencies within the Ninth Circuit's jurisdiction that they need not follow the search warrant rule, while kicking the larger issue down the road to a case with clearer facts and a justiciable controversy.

I'll update you all again when the Supreme Court issues its ruling.

I Still Think Neglect is Better than Foster Care

A couple of weeks ago, I wrote that I thought that we should eliminate neglect as a reason to place children in foster care. Not surprisingly, a few people disagreed with me. One of those who disagreed is my blogging buddy Baggage, who wrote about this topic on her blog.

In her post, she wrote:

Foster Abba questions whether being in foster care is worse than being neglected. And while being in foster care isn’t great and my children have suffered the loss of their birthparents, the effects of their neglect still remain. Stargirl is still significantly smaller than her peers. As a result of her food neglect, she still, four years later, has anxiety over when food is coming and how much she will be allowed to eat. Both of my children are afraid to sleep with the lights off. Stargirl had to have extensive dental surgery where they removed many of her back baby teeth. She suffered hearing loss from untreated ear infections that required ear tubes. This delayed her speech. She learned to walk late and she still has gross motor skills. Although they are in regular classrooms now, they still struggle with keeping up with their peers in terms of academics and social skills and this is AFTER four years of intensive work on my part to get them up to speed.

I have to say that as much as I respect and care about Baggage* I still think that neglect is better than foster care.

Now it might not be true for all kids. Certainly Baggage's kids had a better foster care experience than most children. They weren't bounced around from foster home to foster home, nor were they further mistreated by abusive or neglectful foster parents. Danielle's experience is similar -- she landed in one foster home and stayed until she was adopted. That's not a bad experience, and certainly the experience of these three kids is better than being neglected.

The problem is, our situation is just not the norm for foster children.

Most kids aren't lucky enough to land in one foster home and stay until they go home, are adopted, or age out. Most kids are bounced around through a series of homes, some of which are uncaring at best, and abusive at worst.

When I hear stories like the ones that LT and Growing Up Lost share, I really believe that in many cases, being abused and neglected by the devil that you know is better than being abused and neglected by the devil that you don't.

Now don't get me wrong -- kids shouldn't be abused in foster care any more than they should be abused at home. Unfortunately, there's a big difference between the way the world should be and the way it really works.

The reality is that there are some really sick, messed-up foster parents, just like there are sick, messed-up birth families. There was a case in our local area, not too long ago, where a long-time, and well-respected foster parent was accused of doing some terrible things to the children in her care. I'd met the woman, though I can't say that I knew her well, and the allegations didn't match up with what I thought I knew about the woman.

Did she do it? There's no way to know for sure, but there were corroborating statements made by multiple witnesses. The case is still pending, and no doubt it will be a long time before the case is finally settled. If she's innocent, then this is just another example of how false allegations can ruin someone's life. If she's guilty, then it's another situation that feeds the stereotype that all foster parents are bad.

What I do know is that the outcomes for foster children aren't good. I also realize that it's often hard to determine if the problems foster children suffer are caused by being in foster care, or caused by the abuse or neglect they suffered before they came into the system. What I do know, is that many of the foster care alumni I've spoken to have said that they would have rather stayed with their abusive or neglectful birth family than to be abused and neglected by strangers.

If there's a choice between a child being neglected by their birth family or going into foster care, I still think that the neglect is better, only because the foster care system can't guarantee an outcome that's any better than what a kid might have had if they'd stayed at home. I know that goes against everything we've been taught as a society, but I think it's the reality. We can't fix kids or families by grabbing children and putting them in foster care.

As much as I'd like every foster child's experience to be like Baggage's children, where kids are placed with one good and caring home, the reality is that's not what usually happens. Kids suffer multiple placements, disrupted attachments and sometimes even more abuse and neglect in the homes that are supposed to protect them.

So I think that kids will do better, even neglected, by the devils they know, rather than the ones they don't.

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* I think Baggage is completely awesome. She sent Danielle a much-appreciated and needed gift a few years ago, and her kindness and generosity has not been forgotten.

Improving the Foster Care System - Part XVIII

In response to Improving the Foster Care System - Part XVI, Process wrote:

One problem with these "Improving the Foster Care System" posts of yours is that you don't really know the system. Yes, you've had some experiences with it, and certainly you have some legitimate comments to make about that experience. But when you write these posts, you make assumptions about the way the system works that just aren't true, at least in my state.

The biggest mistake you make in these posts is that social workers make the decision to remove children. I know this isn’t the case in my state, and I can’t imagine that it is the case in any state—the individual liability would just be way too high. Instead, the decision is made by a group of people at different levels within the agency. And, although you must know this, you forget to mention in your posts that the legal system is also involved in all removals. Now, I’m not by any means suggesting that having the legal system involved makes everything right, but what I am telling you—reminding you, since there is no way you could not know this—is that there is a system of checks and balances in place that prevents removals from occurring simply at the whim of individual social workers.

Process actually wrote a much longer comment, much of which I will be addressing in future Improving the Foster Care System posts. She had a lot to say, much of which does not match our experiences or the way our local system works.

I should probably point out that I'm not just writing about the system from the perspective of a disgruntled former foster parent. FosterEema has worked from within the system, so she's seen firsthand how some decisions are made.

In our county, social workers very much do make the decision to remove a child, especially in after-hours situations. In our child's case, there was not a committee that made a reasoned and informed decision. Although the worker's supervisor was probably notified, the worker herself was the one to make the judgment call.

In our state, the law is very clear. Workers do not have to consult with their supervisor or the court to effect a removal if they feel there is reasonable cause to believe that a child is in danger. This alleged danger can include physical, emotional or sexual abuse, or neglect. Furthermore, there's nothing in our state's social services regulations that require a worker to get her supervisor's approval before acting. The social worker has to document why she removed the child, but she doesn't have to get her boss' okay before she does it.

In our state, and in most of the country, workers have something called absolute immunity which protects them from liability in the event that they make a bad call. Perhaps in other states workers exercise this immunity with a bit more caution, but in our area workers know that they can pretty much do what they like, as long as they stay within the confines of the law.

A social worker's immunity does not protect her from criminal prosecution in the event she crosses the line and does something illegal. Still, the threat of prosecution doesn't always keep social workers honest. In our case, we have documented evidence that unequivocally proves a worker committed perjury, but the Court opted to ignore her conduct.

As for the checks and balances that are supposed to be provided by the court system, the social worker doesn't have to file a dependency petition until 48 hours after the removal. By then, it's too late. The kids have already been taken, and the emotional damage has already been done.

It's fairly common for a social worker to remove a child and for that child to be returned to his or her birth family at the first court hearing. FosterEema has seen it happen with a number of her cases, and we remember getting a call about a potential foster placement, only to have the worker later call us back saying she wouldn't need the bed after all. As I recall, she grumbled quite a bit about the judge's "bad" decision to return the teen girl to her family.

I'm glad that, at least in Process' state, there is a system of checks and balances that prevents children from being removed in the first place. In our state, unfortunately, there is not. Here, we clearly have a system that removes the kids first, and asks questions later.

During the first 30 days a child is in foster care, there are a number of hearings held (typically at least three) to determine whether or not a child will stay in care. In a significant portion of these cases, the kids are returned during that initial 30-day period.

I have to ask the question, are kids better off for having spent 30 days in foster care, only to be returned home?

My answer to this, of course, is no. There's no way a child is going to be better off having been removed from his parents for a month and then returned. It's all well and good that the child made it back home, but the psychological damage has already been done. The entire family has been traumatized, and I don't see how this can be good for anyone, especially the kids.

So how do we improve this part of the foster care system? I think that we have to improve the system of checks and balances before a social worker swoops in and takes the kids. Cases should be reviewed, not only by workers and their supervisors, but by people who aren't routinely involved with the system. I think establishing a rotating volunteer review board of community members would help immensely. If people from outside the system get some transparency into what's going on, I believe things will change.

I also think that if community volunteers could see what's going on, there would be less opportunity for abuse. If community members could see that a mother was passing her drug tests, it would give the worker less wiggle room to lie in court and say that she wasn't. On the other hand, if they could see that a mother was messing up, it would increase people's confidence that the system was making good decisions. Having community oversight would mean that there would be less opportunity for social workers (and their managers) to abuse their power.

In the addition to the checks and balances provided by community oversight, the system could be improved by giving the state's Foster Care Ombudsman some teeth. When we received notice that Nasty Number Seven planned a removal, one of our first calls was to the Ombudsman's Office. There, we talked to a very nice and very sympathetic person who basically told us there was nothing she could do. She told me that she received calls all the time from foster children, birth parents and foster parents about out-of-control workers, but they had no enforcement powers at all. She said that they could call up individual workers or supervisors and advise, but in her experience that usually only made bad situations worse.

Now an ombudsman is supposed to be a trusted intermediary and a mediator, but if nothing she recommends is binding, there's not a whole lot of point to the office, is there?

Bottom line, if we want to improve the foster care system, we need to strengthen the checks and balances that prevent children from being taken into the foster care system in the first place. I think there are enough disturbing tales from unhappy foster care alumni that clearly document the misery of being placed in foster care. If you aren't convinced, go read Growing Up Lost or I Was a Foster Kid for a while, and see if they don't change your mind about how rotten the system is.

But really, strengthening checks and balances isn't just a win for a kids. It's a win for the system for two reasons: 1) it strengthens everyone's confidence that good decisions are being made, and 2) it potentially reduces the workload for everyone. If a kid isn't taken into care in the first place, it's one less case some worker has to handle.

And that, clearly, is a win for everyone.

Improving the Foster Care System - Part XVII

In response to Improving the Foster Care System - Part XVI, where I advocated that we eliminate neglect as a reason to remove children from their parents, marythemom wrote:

Maybe as a reason for removal, but definitely neglect needs to continue to be addressed. I still remember taking care of my 2 year old nephew. His dad didn't know he still needed to be supervised in the tub. My nephew was used to getting his own food (mostly cereal) rather than having others prepare food for him. He didn't seem to care about the change in caregivers (he's not RAD - just very easygoing). That Summer we discovered he was allergic to bandaids, peanut butter and corn. No one knew - even though he had fairly severe reactions (poor thing was trying to potty train and spent most of his time trapped on the potty with diarrhea).

And Carmel wrote:

Here is the grey area though...are the parent's poor and not able to afford food and housing because 'Dad' refuses to put any effort into finding a job and the Mom has a job which covers barely the basic and everytime they come into a large amount they buy TV's, Xboxs, and fun things for themselves. These parent's are generally good people but they cannot or will not make the sacrafices needed to really provide for their kids.

Both Mary and Carmel have a valid point. However, the problem is that the damage the foster care system does can often be worse than being neglected. Certainly, if a child can go to a better-functioning relative, that might be a better option, but if the choice is between being neglected and being sent to the foster care system, I'm not sure that foster care is always the wise choice.

In my post Improving the Foster Care System - Part XII, I mentioned a paper written by a Georgetown University law professor that examined why confidentiality within the foster care system creates problems.

What I didn't fully examine in that post was that Professor Fraidin's paper also mentioned that many mistreated children would be better off left at home.

The master narrative of child welfare depicts foster care as a haven for child-victims savagely brutalized by “deviant,” “monstrous” parents. Notwithstanding this shared public understanding, however, most children in foster care have experienced, or are alleged to have experienced, neglect—deprivation of food, clothing, shelter, education, or another necessity of life—not physical abuse. There is also a growing understanding that some children in foster care ought not to be there at all. In addition, research and experience indicate that many maltreated children would be better off if simply left at home—with those responsible for the maltreatment—rather than placed in foster care. [emphasis mine]

So given this information, how do we improve the foster care system?

First off, just like I advocated last week, we stop removing kids for neglect. Yes, I absolutely agree that neglected children suffer their own private version of hell, but it's not the same hell that children who are actively being abused suffer.

So what do we do about neglect instead?

Provide family supports that address the neglect.

If a family lives in sub-standard housing, help them with that. If they are unemployed or under-employed, help them find a job or give them job training. If they have poor parenting skills, offer them parenting classes. If they or their children have unattended medical needs, provide them. If the parents have mental health or substance-abuse problems, address those too.

Help them for sure, but don't take someone's kids away because they aren't winning a parent of the year award. Don't punish parents by listing them in the child abuse databases simply because they need help. There's a big difference between someone who actively abuses their kids and someone who simply isn't capable.

Finally, we have to realize that there are going to be some families who simply can't be helped. We have to realize that there will always be a certain percentage of the population who can't or won't do better. The question then becomes whether the damage a child will suffer from neglect would be worse than the damage of having family bonds severed and being sent to foster care.

It's a hard question to answer, but I really believe that unless a child is in real danger, the status quo is probably less damaging.

Improving the Foster Care System - Part XVI

Several studies have shown an undeniable link between poverty and child welfare investigations. It seems that the lower your income is, the higher the chances that your children could end up in foster care. If you happen to be poor and of color, your chances are even worse.

So for this week's installment of Improving the Foster Care System, I advocate that we eliminate neglect as a reason to remove children from their parents.

Neglect can be defined as, "the negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred."¹

That definition seems awfully subjective, doesn't it?

Now there's clearly a big difference between parents who are deliberately depriving their children, and parents who simply are too poor to afford decent (or sufficient) food, clothing, shelter, etc. The former is clearly abuse; the latter is not.

In 2008, 14.6% of U.S. households were found to be food insecure. This means that though these families are not starving, they sometimes go hungry. Often, they run out of food and money before the end of the month. Even when these families aren't going hungry, they are often skimping on groceries and end up buying the cheapest (and often the least nutritious) items.

If a social worker shows up on the 25th of the month, would there be adequate food in this family's refrigerator?

Probably not.

If you are a low, or even a moderate-income family without health insurance, have you found yourself in the position of having a sick child and being reluctant to take him to the doctor or Emergency Room, knowing you can't afford the expensive medical bill?

If a social worker showed up because your child missed too many days from school and you hadn't been able to take him to the doctor because you couldn't pay for it, would she find you as being medically neglectful?

Probably.

If you are living in substandard housing, have a landlord who won't make necessary and routine repairs, and are unable to move because you can't afford it, what happens when a social worker shows up and sees your home has holes in the floor, leaks in the roof, and is infested with cockroaches? Will she call up your landlord and demand that he fix the house?

No, she'll come and take your children away.

If you are poor, then you run the real risk of losing your children, not because you have done anything wrong, but simply because you aren't able to afford the lifestyle that your social worker thinks you should be living. If you have lost your job and end up homeless, a social worker will take your kids away because you have failed to give them adequate shelter.

Again there's a big difference between a parent who deliberately withholds needed food, clothing, shelter and medical care from a child, and one who simply cannot afford to provide it. If a parent is living in the same conditions as the child, then that shouldn't be considered neglect.

Of course the biggest problem with neglect is that the definition is completely subjective on the part of the social worker. There is no legal, measurable, objective definition. In fact, our country uses something called "community standards" to measure these things. If your house, your standard of living, and the food in your refrigerator is substantially less in quality than the invisible "community standard," then you run the risk of losing your children.

And again, it's subjective. One social worker might not have a problem with ten people living in a one-bedroom apartment. Another might.

Since poverty is a huge predictor of whether or not one will be investigated for neglect, it makes me wonder if the system is simply acting as a Robin Hood for children. Instead of stealing money from the rich and giving it to the poor, I wonder if neglect cases are simply a way for the child welfare system to steal children from the poor and give them to the more affluent.

Is that fair? Is it right? Is it just?

Of course not.

We need to eliminate neglect as a reason for taking children into foster care. There's very little difference between what a social worker would call neglect, and a sensible person would recognize as intractable poverty.

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1. Keane Law Firm

Do Social Workers Need Search Warrants?

I'm making a (relatively rare, these days) guest post today, with a rundown an interesting case that's being argued today before the US Supreme Court. The case, or rather a pair of cases arising from the same set of circumstances, will help bring some guidance to an important question for the child welfare system: When do social workers, talking to suspected abused children, need a search warrant?

The facts which gave rise to this case, titled Camreta v. Greene, are fairly straightforward and mostly undisputed. A child welfare referral was made in Oregon, alleging that S.G. and K.G. (both minor girls) were sexually abused by their father. Bob Camreta, a child welfare worker, and deputy sheriff James Alford, visited S.G.'s elementary school and pulled her from class to interview her. During most of a two hour interview (conducted with an armed cop in the room) S.G. denied that any abuse had taken place. Toward the end of the questioning, S.G. admitted to sexual abuse, although she said later she only did so to get the questioning to stop.

Armed with S.G.'s admission, S.G. and K.G. were taken into emergency custody and were given a medical exam to look for signs of sexual abuse. The girls' mother, Sarah, asked for and was denied permission to be present at the medical exam, which revealed no clear signs of sexual abuse. When the dependency petition was finally heard, faced with a lack of physical evidence and S.G.'s recantation of her confession, DHS requested and juvenile court ordered the children returned to Sarah's custody.

Sarah filed a civil rights lawsuit (under 42 USC 1983) on her own behalf and on behalf of her children. She argued, in essence, that the combined police/law enforcement interview violated S.G.'s Constitutional rights because it was conducted without a warrant, and that her parental rights were violated by not being permitted to be with S.G. during the medical exam when she was not suspected of any wrongdoing. (There was also a claim that Camreta had misrepresented certain facts in his dependency petition, but since the petition was ultimately dismissed, that was an issue of secondary importance with regard to the appeal.)

The Ninth Circuit Court of Appeals, in a decision written by Judge Marsha Berzon, concluded that Sarah's Constitutional rights, as well as those of S.G. and K.G., had been violated. Judge Berzon wrote that:

We hold, as we did in Calabretta, that “the general law of search warrants applie[s] to child abuse investigations.” Once the police have initiated a criminal investigation into alleged abuse in the home, responsible officials must provide procedural protections appropriate to the criminal context. At least where there is, as here, direct involvement of law enforcement in an in-school seizure and interrogation of a suspected child abuse victim, we simply cannot say, as a matter of law, that she was seized for some “special need[ ], beyond the normal need for law enforcement.”

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. We follow the lead of our sister circuits and hold that in the context of the seizure of a child pursuant to a child abuse investigation, a court order permitting the seizure of the child is the equivalent of a warrant.

As regards the other issues, Judge Berzon ruled that, since Sarah was not suspected of any wrongdoing, it was a violation of her rights and the rights or her children to exclude her from being present at S.G.'s medical examination, and that her rights had been violated by having her children removed from her custody based without good reason (ie, because she was not suspected of any wrongdoing).

However, Judge Berzon also ruled that the Deputy Sheriff and social worker were entitled to qualified immunity with respect to the claims about the interview which was conducted without a search warrant. Judge Berzon explained that, because it was not clearly established at the time of Camreta and Alford's interview that search warrants were required when conducting a "custodial interrogation" of a child in the school setting, Camreta and Alford could not be held liable for damages.

So, how'd the US Supreme Court get involved? Curiously, both Camreta and Alford appealed Judge Berzon's decision, and they argued both that a search warrant shouldn't have been required prior to conducting their interview of S.G. and that they should have been given absolute immunity, rather than qualified immunity, for their actions.

The $64,000 question is this: Camreta and Alford essentially won in the Ninth Circuit, in that Judge Berzon's ruling gave them a free pass, in the form of qualified immunity, from any damages for their actions. So, why are they appealing, and why are they appealing BOTH the search warrant issue and the qualified immunity issue? Here's what I think: I'm betting that Bob Green very much would like the Supreme Court to decide that child welfare workers needn't bother with pesky details like search warrants, which require would probable cause - not mere suspicion - that child abuse has occurred. I'm betting he'd also like the Supreme Court to say that child protective workers are more like prosecutors than bureaucrats, and hence that they should have absolute immunity from consequences for their actions. Even (or especially) in cases like this one, where misconduct was alleged.

Jennifer Clark over at SCOTUSblog has an excellent rundown of the arguments that were made in the legal briefs, so I won't rehash that here. Instead, I'd like to offer my thoughts about why this case was appealed in the first place, and what I hope the Supreme Court will do here.

Personally, I believe child protective services workers should need a search warrant, and probable cause rather than mere suspicion, to interview a child outside of her/his parents' presence. Probable cause isn't an especially high bar, so it seems likely to me that requiring a warrant isn't likely to handicap CPS much where real abuse is happening. But it will unquestionably restrict the ability of social workers to go rooting in people's private lives based on unsubstantiated suspicions or personal animus. I also think, of course, that social workers should not have absolute immunity from the consequences of their actions or misconduct. There's too much abuse of discretion in that system already without giving social workers a permanent 'get out of jail free' card and a blank check to go fishing whenever they'd like.

Apparently, I'm not the only one who thinks this, either. A host of agencies, individuals, and legal professionals, including the Juvenile Law Center, New York University School of Law Family Defense Clinic, and the Pacific Justice Institute, filed amicus curiae briefs in support of Sarah Greene with the Supreme Court. By contrast, and not surprisingly, the National Association of Social Workers and a number of other agencies filed briefs in support of Mr. Camreta and/or Mr. Alford. In all, 29 different groups filed amicus briefs - 8 in support of Camreta or Alford, 18 in support of Ms. Greene's position, and 3 "in support of neither party".

What's the Supreme Court going to do? Who knows. The tenor of the questioning in today's argument may offer some clue, and I'll update this post with a link to the transcript and recording of the oral argument when they're available. However, the outcome has the power to dramatically change the legal landscape in which child welfare investigations operate, so suffice it to say there are a great many of people with either a personal or professional interest in the child welfare system who will be watching today's argument with a great deal of interest.

If you're one of the legal beagle types who, like me, enjoys reading case briefs, you can find them on the SCOTUSwiki pages here: Camreta v. Greene, Alford v. Greene