Just Say No

Just Say No
Detective Robert R. Surgenor

Most of you know how I have exhorted parents to "just say no" to a social worker calling on the telephone or knocking at their door. I spent a lot of time as a police officer asking people for permission to enter their homes because I didn't have enough evidence to obtain a warrant. If a police officer or social worker has the evidence that you are committing a crime, believe me, they will have that court order in their hand when they knock on your door! In July of 2002, the United States Court of Appeals for the Fifth District ruled on a case where a social worker investigated a family for allegations of child abuse. The two distinct decisions in this ruling demonstrate the difference between allowing the social worker into your home, and just saying "no."

On June 29, 1999, the Texas Department of Protective and Regulatory Services received an "anonymous tip" that a six year old girl was acting in a manner that the caller felt indicated possible sexual abuse by touching another small girl and kissing her. A social worker was assigned to the case and contacted the girl's mother nine days later. The social worker refused to identify the nature of the complaint, and insisted that she come to the residence. The mother made her first mistake by consented to the visit.

The social worker arrived at the home on July 10th, and claims that she was invited into the home by the mother. The mother claims that the social worker entered her home without an invitation or permission, although the mother admits that she did not object to the social worker entering the home. The social worker then explained the nature of the complaint. When the mother asked if she should contact an attorney, she was assured by the social worker that she did not need one.

The social worker then insisted on taking photographs of the daughter. She instructed the mother to undress the girl and proceeded to photograph the girl's body. The mother asked several times whether the photographs were necessary and voiced objections to the procedure. The mother "teared up" as the social worker took the pictures, but did not cry. The social worker insisted on continuing with the procedure and took several pictures of the girl's body. She then completed her interview with the girl, and left the residence.

The girl subsequently experienced frequent nightmares involving the incident, and exhibited anxiety responses, for which she underwent counseling. The symptoms persisted for about six months. The mother experienced a loss of sleep, sadness, and depression for the same period of time.

The mother decided to sue the social worker and the Texas Department of Protective and Regulatory Services alleging a violation of their Fourth Amendment right to freedom from unreasonable searches, Fourth and Fourteenth Amendment rights to privacy, and Fourteenth Amendment liberty interests. The case ended up being heard by the United States Court of Appeals for the Fifth District.

The Fifth Circuit Court of Appeals admitted that there was one major problem with this case. The Court states, "The only disputed, material fact is whether (the mother) invited (the social worker) into the house while the two stood on the front porch. (The social worker) argues, first, that social workers need not satisfy the traditional Fourth Amendment requirements when conducting an investigative home visit, and, second, that (the mother) consented to her entry. We avoid the first question by holding that (the mother) consented to an investigative home visit." In other words, the Court believed the social worker about being invited into the home! Because the mother agreed to the meeting with the social worker in the first place, the Court assumed that the social worker had permission to enter the home. This mother should have declined the social worker's request over the telephone. If you expect a social worker to tell the truth when they are being sued for a civil rights violation, you will find out very quickly that self-preservation far outweighs telling the truth if it means the social worker will lose. Unfortunately, the mother lost this portion of the case because she did not refuse to meet with the social worker during her initial conversation on the telephone.

The Court then addressed the strip search of the daughter. You will recall that the mother objected to this procedure and made it clear that she was unhappy with the social worker's actions. Because the mother voiced her objections to the social worker, the Court ruled that the social worker violated the mother's rights. The Court stated, "We must apply the traditional Fourth Amendment analysis where a child protective services search is so intimately intertwined with law enforcement. In non-exigent circumstances, the worker then has time to obtain a warrant either personally to conduct a visual body cavity search or to have a physician perform it." The court ruled that because this was not an emergency, the social worker had more than enough time to obtain a warrant to perform the strip search, the same standard that any law enforcement agency is held to.

The Court continues with it's ruling: Although (the mother) gave affirmative consent to the home interview by scheduling a home visit, she never verbally consented to the visual body cavity search. Our caselaw teaches that silence or a failure to resist, standing alone, cannot count as consent." Here, the court rules that although the mother agreed to the meeting with the social worker, and according to the social worker, let her into the home, she did not consent to the cavity search of her daughter. The Court continues: "The Fourth Amendment offered (the mother) and (the girl) complete protection from (the social worker's) investigative home visit and visual body cavity search. (The mother) could have refused to permit (the social worker's) entry into the home, and (the social worker) then would have been forced to obtain a court order. (The mother) refused to consent to the strip search, and the Fourth Amendment rendered that subsequent search unlawful."

There it is, folks! Because the court found that the mother agreed to the meeting with the social worker, and because the Court ruled that the mother let the social worker into the home, there was no Fourth Amendment violation. Because the mother objected to the cavity search and pictures of her daughter, the social worker violated the family's Constitutional protection against unreasonable searches and seizures. If this doesn't convince parents to "just say no" to the investigative social worker, I don't know what else I can say to convince them!