*Christina Han
I. Introduction
In New York City, Ronisha Ferguson, mother of three, suddenly heard loud banging on her door while waiting for her two sons to return from school.[1] Having an intricate history of dealing with the Administration for Children’s Services (ACS), she knew that the ones knocking on her door were, once again, ACS caseworkers, investigating a tip that one of her sons was not regularly attending school and sported bruises and a black eye.[2] With a growing frustration against them for repeatedly putting her in a humiliating position in front of her children, she refused to grant them access to her home and to her children.[3] Around 4:30 A.M. the next morning, she awoke to loud banging not only from the ACS, but from the New York Police Department, demanding she hand over her children or face arrest.[4]
Similar home investigations happen nationwide, leaving many parents in fear that their children will be taken away.[5] The bond between parent and child is an established fundamental right in the United States,[6] yet CPS searches easily infringe on these rights, more often than not without the use of a warrant[7] and based on coerced parental consent.[8] As such, families are constantly burdened with the fact that their homes and their rights to care for their children can be easily disturbed by strangers.[9]
II. A Brief Look Into the Consequences of CPS Investigations
Child Protective Services (CPS) receives an average of 3.9 million referrals for potential child neglect and abuse cases annually.[10] Only 17.8% of these referrals are victims of child neglect, abuse, or both.[11]
CPS is essential for protecting children in abusive homes and would be justified in performing certain actions, such as removing a child from their home due to a parent inflicting physical abuse on them.[12] However, CPS also investigates the remaining 82.2% of families who show no signs of child abuse or neglect but are instead struggling with structural externalities such as poverty and racial disparity, which CPS then declares as signs of abuse or neglect.[13]
CPS investigations are incredibly invasive.[14] Investigations almost inevitably involve home searches,[15] which often include inspecting the child’s naked body to look for signs of physical abuse.[16]
Despite the invasive nature of these investigations, state and federal courts are often unwilling to directly intervene. Many scholars point out that the constitutional implications of CPS investigations (and family rights as a whole) is gray due to various factors such as a historical desire to protect children and that creating laws that leave children in potentially abusive homes is “morally dubious.”[17] All in all, the invasiveness of an investigation creates emotional trauma within both the child[18] and the parents,[19] can degrade the relationship between a child and parent, and harms parents’ fundamental rights to raise and care for the child.[20]
III. What Actions Have Been Taken by the Government?
Federal circuits generally require CPS agents to obtain a search warrant in the absence of consent or exigency.[21] But on the state level, where state family and dependency courts hear the majority of CPS cases, many families, particularly those of a racial minority or who are in poverty, maintain little privacy within their own homes.[22] Due to the minimal threshold for obtaining a search warrant,[23] families are at the mercy of CPS investigations that can occur at any time.[24]
In contrast, the Supreme Court of Pennsylvania held that the Fourth Amendment applied to CPS investigations, and that a warrant could be granted only upon a showing of probable cause supported by the facts of the case.[25] The court’s heightened standard for a warrant required CPS to adhere to certain principles based on the criminal law standards for probable cause: CPS must show that (1) the facts of the case are sufficient to warrant a reasonable person to conduct a search, (2) a causal connection between the search and the suspected wrongdoing, and (3) must also show how the facts presented will establish probable cause.[26] This heightened standard may help narrow the door for litigation by setting a base level standard for what investigators must show, and encourage CPS agents to apply more discernment in deciding who to investigate or raise claims against.
IV. Conclusion
The bond between parent and child is fundamentally protected in this nation’s history.[27] Yet with one single report, a CPS agent can trample upon parents’ right to maintain that bond, even when such actions prove unnecessary.[28] While federal courts require CPS agents to obtain warrants in the absence of consent or exigency, state courts generally permit CPS agents to enter a home without a warrant or consent.[29] Families deserve the right to be protected from invasive practices into their lives—and now that the Pennsylvania Supreme Court recognizes this right, other states have an example to follow in order to preserve families rather than rip them apart.
*Christina is a second-year day student at the University of Baltimore School of Law. She is a Staff Editor for Law Review, Treasurer of the Asian Pacific American Law Students Association, and a member of the Royal Graham Shannonhouse III Honor Society. She received her undergraduate degree in Political Science from the University of California San Diego, and spent her first-year summer in the Law Office of Kent L. Greenberg, where she developed an interest in family law. Christina hopes to bring her knowledge and passion back to her home state of California. In her spare time, Christina enjoys writing short stories and hiking.
[1] Eli Hager, CPS Workers Search Millions of Homes a Year. A Mom Who Resisted Paid a Price., NBC News (Oct. 13, 2022, 8:00 AM), https://www.nbcnews.com/news/us-news/child-abuse-welfare-home-searches-warrant-rcna50716.
[2] Id.
[3] Id.
[4] Id.
[5] Id.; Children’s Bureau, U.S. Dep’t of Health & Hum. Services,. Child Maltreatment 2021 (2023) [hereinafter Child Maltreatment 2021], https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2021.pdf.
[6] Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“[T]he relationship between parent and child is constitutionally protected.”).
[7] Eli Hager, In Child Welfare Cases, Most of Your Constitutional Rights Don’t Apply, ProPublica (Dec. 29, 2022, 6:00 AM), https://www.propublica.org/article/some-constitutional-rights-dont-apply-in-child-welfare.
[8] Hager, supra note 1; Tarek Z. Ismail, Family Policing and the Fourth Amendment, 111 Calif. L. Rev. 1485, 1502–03, 1541 (2023) (detailing how consent obtained by CPS workers may often be based on the threat of either removing a parent’s child(ren) or police involvement).
[9] Ismail, supra note 8, at 1489.
[10] See, e.g., Child Maltreatment 2021, supra note 5.
[11] Michael S. Wald, Replacing CPS: Issues in Building an Alternative System, 12 Colum. J. Race & L. 712, 717 (2022) (describing actions like “reporting the parent’s behavior, investigating the child’s home environment […] and possibly removing the child from the home.”); see also Restatement of Child and the Law § 2.41 (Am. L. Inst., Tentative Draft No. 4, 2022) for more examples of emergency CPS action without parental consent.
[12] Wald, supra note 11, at 719 (describing how many parents often have undiagnosed mental health issues, involved in domestic violence, or are in deep poverty, as well as the fact that 30% of overall children being reported to CPS are African American) (citing Leroy H. Pelton, The Continuing Role of Material Factors in Child Maltreatment and Placement, 41 Child Abuse & Neglect 30, 31–32 (2016)); see also Anna Arons, The Empty Promise of the Fourth Amendment in the Family Regulation Systems, 100 Wash U. L. Rev. 1057, 1098 (2023) (describing how many parents may also have generational and historical trauma due to “[g]enerations of family separation and the ongoing fear of government intrusion into parenting.”).
[13] Arons, supra note 12, at 1072–73.
[14] Id. at 1071.
[15] See, e.g., Hager, supra note 1 (describing how CPS workers conduct home searches, such as going through the house’s cabinets and kitchen supplies, inspecting the house floors and rooms, and how parents organize clothes); Ismail, supra note 8, at 1487–88; Arons, supra note 12, at 1072.
[16] Ctr. for Improvement of Child & Fam. Servs., Portland State Univ., Sch. Of Soc. Work, Reducing the Trauma of Investigation, Removal, & Initial Out-of-Home Placement in Child Abuse Cases (2009), https://www.pdx.edu/center-child-family/sites/centerchildfamily.web.wdt.pdx.edu/files/2020-07/CJA-project-Information-and-discussion-guide.pdf (describing ways in which children can be traumatized by CPS investigations, such as a feeling of helplessness, loss of trust in their parents, and sense of guilt for potentially breaking apart their family).
[17] Hager, supra note 7.
[18] See Vivek Sankaran, Christopher Church & Monique Mitchell, A Cure Worse Than the Disease? The Impact of Removal on Children and Their Families, 102 Marq. L. Rev. 1161, 1169–70 (2019) (describing ways in which parents are traumatized by CPS investigations, such as a loss of their identity, a deterioration of their mental and social health, and a deep sense of grief over the loss of their children).
[19] Ismail, supra note 8, at 1534–36; see also Arons, supra note 12, at 1073.
[20] It should still be noted that there are currently two federal circuits that hold that CPS agents can conduct searches without warrants—namely, the Fourth and Eleventh Circuits. See Ismail, supra note 8, at 1528–29, 1528 n.268.
[21] Arons, supra note 12, at 1092–94.
[22] Id. (stating that a majority of state courts only require either reasonable suspicion, or an if necessary standard, and many judges will often grant entry orders to permit CPS agents to enter the home without a showing of the state’s legal standard).
[23] Id. at 1094.
[24] Int. of Y.W.-B., 265 A.3d 602, 628 (Pa. 2021).
[25] Id. at 618, 627.
[26] Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“[T]he relationship between parent and child is constitutionally protected.”).
[27] Ismail, supra note 8, at 1489; see also supra Part II.
[28] See supra notes 22–24 and accompanying text.
[29] See generally Hager, supra note 1.
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